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Per Curiam:
Two separate disciplinary complaints were filed by Arno Windscheffel, Disciplinary Administrator, pursuant to Supreme Court Rule No. 212 (232 Kan. clxvii) against William J. Craven, an attorney, admitted to practice law in Kansas. The complaint in Docket No. W 2832 alleged that respondent had neglected a legal matter entrusted to him by Betty Newman. Ms. Newman employed respondent to represent her in a child support case. She paid respondent an agreed fee of $200. Respondent promised Newman that the whole matter would take about a month. Thereafter, Newman made many attempts to contact respondent but was unable to do so. Respondent never performed the services he promised and at the time the formal complaint was filed had not offered to return the $200 or any part thereof.
The complaint in Docket No. W 2946 alleged that the respondent had neglected a legal matter entrusted to him in connection with an appeal of a criminal action, State v. Kramer, arising in Brown County District Court. Kramer was convicted of possession of marijuana with intent to sell and was sentenced to the custody of the secretary of corrections. His appointed attorney had filed a notice of appeal and taken the necessary steps to perfect the appeal. In July of 1982, Kramer expressed dissatisfaction with his appointed attorney and requested that a new attorney be appointed instead. That motion was granted and the district court appointed a different attorney to represent Kramer in his pending appeal. In August of 1982, Kramer retained the services of respondent in pursuing his appeal. Kramer paid respondent $1500 and respondent agreed to represent him in the appeal. Respondent entered his appearance on behalf of Kramer in the Court of Appeals and was granted an extension of time in which to file a reply brief. Respondent did not file the reply brief and, although notified, did not appear at the appointed time for oral argument in the Court of Appeals. Thereafter, the conviction of Kramer was affirmed. Respondent acknowledged to Kramer that he did not provide the service that he promised to provide and promised to promptly return the $1500 fee that he had been paid. At the time the complaint was filed, the respondent had refused or neglected to return any portion of the $1500 previously paid. Respondent was charged with neglect of a legal matter entrusted to him and failure to promptly pay or return funds in his possession owed to a client.
Both of the above complaints were heard together by a panel of the Kansas Board for Discipline of Attorneys after the parties agreed and stipulated that the two complaints should be consolidated and heard simultaneously. The evidence in the case supported the complaints and the panel unanimously found that respondent had failed to perform the services promised to Newman in W 2832 and to Kramer in W 2946; that he never offered to return the fee paid to him by Newman until notified of the formal complaint; and that respondent did not return to Kramer the $1500 fee previously paid until after the hearing was completed by the panel. Based upon those findings, the panel found respondent had violated the Code of Professional Responsibility, specifically DR 6-101 (A) (3) (232 Kan. clxxxvi) and DR 9-102 (B) (4) (232 Kan. cxcii).
The panel recommended that respondent be disciplined by Public Censure. Respondent did not file any exceptions to the panel report. Supreme Court Rule No. 212(d) (232 Kan. clxviii).
On June 6, 1984, the respondent appeared before this court pursuant to Supreme Court Rule No. 212(d). A careful examination of the record in this case reveals that the findings and conclusions of the disciplinary panel are correct and supported by clear and convincing evidence. It appears from the record that respondent has had no previous violations of the disciplinary rules and that at the time these violations occurred there were extenuating circumstances resulting from respondent’s over-involvement in several unsuccessful businesses with resulting mental stress and depression. In view of the prior unblemished record of the respondent and the mitigating circumstances present in the case, the court has determined that it will accept the recommendation of the Board for Discipline of Attorneys that the discipline be limited to public censure.
It is Therefore by the Court Ordered that William J. Craven be and he 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 this Order of Censure be published in the official Kansas Reports.
By Order of the Court this thirteenth day of July, 1984. | [
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The opinion of the court was delivered by
Herd, J.:
This is an action to sever the parental rights of Janice Seelke to her minor children Charity and Chad Seelke.
This appeal is from the trial court’s decision holding the Secretary of the Department of Social and Rehabilitation Services (SRS) in contempt of court. The basis for the contempt citation was the failure to obey the court orders of November 3, 1982, and March 11, 1983, to hold a joint meeting with the natural mother to arrive at a plan whereby the natural.mother and her children could be reunited.
On November 17, 1981, the appellant, SRS, and the appellee, Janice Seelke, the natural mother, stipulated to a finding by the district court that Chad and Charity Seelke were deprived children as defined by the juvenile code of Kansas. K.S.A. 38-801 et seq. (since repealed). That stipulation was in response to a social worker’s report that the two children had sustained injuries as a result of excessive discipline by Mrs. Seelke and her boyfriend. Pursuant to K.S.A. 38-825, the children were then committed to the care, custody and control of the Secretary of SRS. The mother was urged to participate in counseling as her “progress in coun seling is essential to extended visitation and the minors’ return to the home.”
Ten months later, on August 30, 1982, a motion for review was filed by the SRS alleging, among other things, that the mother had not provided a psychological evaluation to the court or to the SRS. The SRS requested the mother be ordered to obtain a psychological evaluation and make it available to the SRS and the court. The trial court made no specific ruling on this motion.
On November 3, 1982, the SRS motion was continued to February 10, 1983, “in order for there to be a joint meeting to work out a specific plan for the mother to follow.” Meetings scheduled for December 1 and December 8, 1982, were can-celled.
On January 7, 1983, the SRS filed a motion for review and termination of parental rights which alleged the mother was an unfit parent. This motion was still pending when the briefs in this appeal were submitted.
On February 24, 1983, the court ruled on discovery motions and continued the SRS motion for termination until March 11, 1983.
On March 11, 1983, the court ordered that:
“1. The meeting between the parties, social workers and psychologists be held April 5, 1983, at 1:00 p.m.; and,
“2. counsel are to inform the court on the afternoon of the meeting of the plan or the reasons for not accepting the plan for Janice Seelke to follow.”
On April 5, the scheduled meeting was held. Appellee attended with her attorney and psychologist. An SRS supervisor advised that the agency’s goal was permanent placement of the children with someone other than the mother. The meeting was then adjourned by appellee’s counsel. No plan was proposed by either party. Later that day, the SRS informed the trial court that a plan had not been agreed upon at the meeting.
Appellee then filed a motion to cite SRS for contempt on April 11, 1983, alleging it had failed to comply with the trial court’s order to meet and discuss a plan to reunite the family. The SRS filed a motion to order a specific plan on April 12, 1983. This motion included a proposed plan for the mother to follow.
On June 15, 1983, the trial court found the SRS had acted in direct contravention of its orders of November 3, 1982, and March 11,1983, to hold a joint meeting to openly exchange views and attempt to arrive at a plan for the natural mother to follow. The trial court also held the Secretary of the SRS was in contempt of court. The trial judge ordered the Secretary of the SRS to pay the attorney and psychologist fees of the natural mother. A plan which had been agreed upon by the parties at the June 15, 1983, hearing was included in the trial court’s order. The SRS agreed to continue the motion to terminate pending the success of the mother’s rehabilitation pursuant to the plan. A motion for rehearing was filed by the Secretary on June 30, 1983. This motion was denied on July 11, 1983. Notice of appeal was filed July 14, 1983.
Appellant initially argues the trial court did not have jurisdiction to determine the indirect contempt issue due to the failure of appellee to comply with the .technical requirements of the contempt statute, K.S.A. 20-1204a. This statute provides:
"(a) When an order in a civil action has been entered, the court that rendered the same may order a person alleged to be guilty of indirect 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.
“(b) 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.”
Initially, SRS argues the failure of the motion to name a specific “person” who was in contempt is fatal to the motion. The motion names only the SRS, rather than a specific individual, as being in contempt of court. Despite this failure, the trial court in its order held the Secretary of the SRS in contempt. The Secretary had not been given notice of the proceedings. In addition, the contempt motion was unaccompanied by an affidavit as required by the statute.
Appellant’s argument concerning the deficiencies in the motion is meritorious. We have held contempt proceedings founded in statute must follow the prescribed procedure and are to be strictly construed against the movant. Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 390, 673 P.2d 1126 (1983). However, appellee argues even though the technical requirements of the statute were not followed, appellant’s attorney waived all technical deficiencies. In Pork Motel, while we held the statute must be strictly complied with, we also noted the accused may waive the statutory requirements. See also State v. McPherson, 208 Kan. 511, 493 P.2d 228 (1972); Weber v. Sutorius Bread Company, 185 Kan. 171, 180, 341 P.2d 959 (1959); Butler v. Butler, 82 Kan. 130, 133, 107 Pac. 540 (1910). We agree with the reasoning of the foregoing cases, but this case is clearly distinguishable. A citation for contempt is an action against a specific person requiring all of the due process criteria. It is well settled that a person cannot be held in contempt if he does not have knowledge of the order or notice of the proceedings. See Perfect Fit Industries, Inc. v. Acme Quilting Co., 646 F.2d 800, 808 (2nd Cir. 1981); Yates v. United States, 316 F.2d 718, 724-25 (10th Cir. 1963). Here the record is devoid of notice. The Secretary of the SRS had no knowledge of the action or that there was such a proceeding. In addition, he had no knowledge of what attorney represented him or that he was represented. An attorney can waive only those rights he is authorized to waive by the client. The attorney in this case clearly exceeded his authority, thus rendering his waiver of the technical errors a nullity. Failure to name a specific party to whom contempt is directed and to give proper notice is jurisdictional and therefore fatal to the proceeding. The contempt citation and the order to pay attorney and psychologist fees are therefore set aside.
Since the foregoing is dispositive of the case, we will not discuss the other points raised on appeal.
The judgment of the trial court is reversed. | [
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal by the State of Kansas in a criminal prosecution from an order of the district court dismissing two counts of a four-count information.
On June 19, 1982, a pickup truck driven by the defendant, James D. Freeman, II, was involved in a two-vehicle collision at the junction of Highways 81 and 24 in Cloud County. A passenger in the other vehicle, Edward Strecker, subsequently died. The State alleges Mr. Strecker died as a result of injuries received in the accident and that the accident was caused by the defendant. Defendant was originally charged in a complaint and information with one count of involuntary manslaughter (K.S.A. 1982 Supp. 21-3404). Immediately following the preliminary hearing the State issued three new misdemeanor complaints against defendant and filed an amended information. The amended information charged the defendant with 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.
On December 6, 1982, defendant was arraigned on all four counts. Defendant pled not guilty to counts one, two and four and guilty to count three, the charge of failing to yield the right-of-way. On December 22, 1982, the defendant filed a motion to dismiss counts one and two on the grounds that further prosecution of those two counts would be duplicitous in violation of K.S.A. 21-3107(2)(d), and barred by the double jeopardy provisions of K.S.A. 21-3108(2)(a). After extensive argument on January 3, 1983, the court sustained defendant’s motion on the basis of double jeopardy and dismissed counts one and two. Without dismissing the remaining speeding charge, the State filed this appeal from the dismissal of counts one and two.
At the outset we are faced with a jurisdictional challenge by the defendant asserting there are no statutory grounds for the appeal. We agree. The right to appeal in a criminal case is strictly statutory and absent statutory authority there is no right to an appeal. In State v. Hermes, 229 Kan. 531, Syl. ¶ 1, 625 P.2d 1137 (1981), we held:
“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.”
The statutes authorizing appeals in criminal actions are found at K.S.A. 22-3602 and 22-3603.
K.S.A. 22-3602(b) provides:
“(b) 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. 22-3603 provides:
“When a judge of the district court, prior to the commencement of trial of a criminal action, makes an order quashing a warrant or a search warrant, suppressing evidence or suppressing a confession or admission an appeal may be taken by the prosecution from such order if notice of appeal is filed within ten (10) days after entry of the order. Further proceedings in the trial court shall be stayed pending determination of the appeal.”
The question squarely before this court is 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.
In State v. Grimes, 229 Kan. 143, 622 P.2d 143 (1981), the State attempted to appeal from an order of the district court granting Grimes a new trial in a criminal case. The defendant asserted there was no right to appeal as there had not been a final determination of the case in the district court. This court stated:
“When the State filed its notice of appeal in September of 1979, the case was pending. A new trial had been ordered. The appeal was interlocutory, one taken between the commencement and termination of the action in the trial court. The order did not terminate the case; it directed that a trial be held. The legislature provided for interlocutory appeals by the State by K.S.A. 1980 Supp. 22-3603. This appeal, however, did not fit within the confines of that statute; the trial court made no order quashing a warrant or search warrant, no order suppressing evidence or a confession or admission. Thus the attempted appeal was not one authorized by 22-3603.
“The appellant wants us to hold that an order of a trial court granting a new trial may form the basis for an appeal ‘[u]pon a question reserved by the prosecution’ under K.S.A. 1980 Supp. 22-3602(b)(3). To do so would invite a plethora of interlocutory appeals by the prosecution. If orders granting new trials are appealable as a matter of right as questions reserved, then every ruling adverse to the prosecution, made by the trial court prior to final disposition of the case, could become the subject of appeal by the prosecution! Conceivably the State could drag the case on for years without a trial.
“K.S.A. 1980 Supp. 22-3602(¿)(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.’ See K.S.A. 22-3502. By dismissing or by arresting judgment, the trial court has ended the case.” pp. 146-147.
The rationale in Grimes is applicable here. The case against defendant as to count four is still pending in district court. The State’s attempted appeal appears to be in the nature of an interlocutory appeal in that the case has not been terminated in district court. K.S.A. 22-3603 does not provide for an interlocutory appeal under the factual situation in this case. Neither does K.S.A. 22-3602(fe)(l) authorize an appeal because, as stated in Grimes, that statute only provides “for appeals by the State when the trial court has terminated the case (1) by dismissing the charging document.” 229 Kan. at 146.
The State, in its response to defendant’s motion for dismissal of the appeal, cites no authority for its contention that it may appeal from the dismissal of only part of the charges. Our research discloses only two Kansas cases which might be considered authority for the State’s position. In State v. Cuezze, Houston & Faltico, 225 Kan. 274, 589 P.2d 626 (1979), the State originally charged Cuezze and Houston with four counts in a criminal information. Houston was arraigned in May, 1977, and Cuezze in June, 1977. Over three months later the State filed a new case charging Cuezze, Houston and Faltico in an information charging all three defendants with three felony counts. The first case was then dismissed. In May of 1978 the court dismissed all three counts against the defendants Cuezze and Houston for violation of the speedy trial provisions of K.S.A. 22-3402. The court also dismissed one count of the three charges against Faltico on the grounds that proper venue lay in Shawnee County rather than Wyandotte County. The State appealed the dismissal of the three counts against Cuezze and Houston and the dismissal of the one count against Faltico. Two counts against Faltico were left pending in the district court pending the appeal. We affirmed the dismissal as to Cuezze and Houston and reversed the dismissal of the count against Faltico.
In State v. Burkett, 231 Kan. 686, 648 P.2d 716 (1982), the defendant was originally charged with aggravated battery with an automobile. Plea negotiations resulted in an agreement whereby the State would dismiss the felony charge in return for pleas of nolo contendere to charges of reckless driving and failure to stop and remain at the scene of an accident. The State agreed that it would recommend that defendant not be incarcerated. The bargain was carried out and the complaint was amended to charge the two misdemeanor counts. Defendant entered pleas of nolo contendere as agreed. The district magistrate judge refused to accept the recommended punishment and sentenced defendant to jail. Defendant thereupon appealed to the district judge and the State promptly filed an amended complaint containing three offenses: the original charge of aggravated battery and the two misdemeanor violations. On motion by the defendant, the district judge dismissed the felony count and the State appealed the dismissal to this court. We found the dismissal to be improper and remanded the case for further proceedings on all three charges.
In neither Cuezze nor Burkett was the jurisdiction on appeal raised or considered by the court and we do not consider the decisions in those cases to be binding precedent for the issue which is now squarely before the court. In addition, the appeals in Cuezze and Burkett arose out of totally different factual situations from the instant case.
To hold that K.S.A. 22-3602(b)(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.
The appeal is dismissed. | [
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The opinion of the court was delivered by
McFarland, J.:
Plaintiff Christine Roberson, the widow and heir-at-law of Richard C. Roberson, deceased, brings this professional malpractice action against G. Ed Counselman, a chiropractor. Plaintiff contends defendant was professionally negligent in failing to recognize his patient (the deceased) was experiencing symptoms consistent with those of acute heart disease and in failing to refer the patient for appropriate medical treatment. Plaintiff contends this negligence substantially reduced deceased’s chance of surviving the heart attack which took his life within hours after he had received chiropractic treatment. The district court held plaintiff had failed to meet her burden of proof to show it was more likely than not defendant’s conduct was a substantial factor in the causation of the injury and sustained defendant’s pretrial motion for summary judgment. Plaintiff appeals therefrom.
The applicable rules relative to summary judgment were reiterated in McAlister v. Atlantic Richfield Co., 233 Kan. 252, 662 P.2d 1203 (1983), 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.” Syl. ¶ 1.
“A trial court, in ruling on motions for summary judgment, should search the record to determine whether issues of material fact do exist.” Syl. ¶ 2.
“When a motion for summary judgment is filed, a mere surmise or belief by the trial court, no matter how reasonably entertained, that a party cannot prevail upon a trial, will not justify refusing that party his day in court.” Syl. ¶ 3. (Emphasis supplied.)
“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.” Syl. ¶ 4. (Emphasis supplied.)
A summary of the facts, in the light most favorable to the plaintiff, is as follows. Richard C. Roberson was initially seen by defendant Counselman in December 1972. At that time he complained of and was treated for a back sprain. Approximately a week later Mr. Roberson became ill. Plaintiff then contacted defendant and advised him she believed her husband had a heart problem and requested that defendant urge her husband to see a heart specialist. Defendant made arrangements for Mr. Roberson to be seen by Dr. Robert Roeder, a Topeka cardiologist where he was diagnosed as having suffered a heart attack and was hospitalized.
Under Dr. Roeder’s supervision, a continuing course of treatment, including medication, was undertaken and Mr. Roberson was ultimately released from the hospital. On January 12, 1973, Mr. Roberson was rehospitalized complaining of chest discomfort. Three years later, in May 1976, Mr. Roberson was again admitted to the hospital with similar complaints. During the 1976 hospitalization Mr. Roberson underwent diagnostic coronary arteriograms to determine the state of his cardiac circulation in relation to his coronary arteries. The tests revealed the right coronary was totally blocked while there was a seventy percent narrowing in the left anterior descending to a forty percent narrowing in the circumflex. Also during the 1976 hospitalization, x-rays of Mr. Roberson’s back revealed he had a mild degenerative arthritic change of the lumbar and cervical regions of the spine. All these findings were presented to Mr. Roberson. The last time Dr. Roeder saw Mr. Roberson was on January 24, 1980, where he exhibited stable angina pain.
On July 28, 1980, Mr. Roberson appeared at defendant’s office complaining of “pain in the left shoulder area and left side causing hard breathing and chest ache.” Defendant, with knowledge of the decedent’s prior heart history, diagnosed Mr. Roberson as suffering from a neuromuscular difficulty and gave two chiropractice adjustments which were described as an anterior move for his upper back and an intersegmental traction. At no time during the July 28th consultation did the defendant advise Mr. Roberson he should consult a medical physician about his heart. Throughout the evening of July 28, Mr. Roberson’s condition deteriorated and plaintiff became very concerned about her husband’s health. Plaintiff urged her husband to seek immediate medical treatment. In her deposition, plaintiff testified the following exchange occurred between her husband and herself:
“A. [Christine Roberson] He said that, ‘Dr. Counselman is a regular doctor like any other doctor.’ He said, ‘And I have told Ed [Counselman] exactly how I feel, I have told him that I had shortness of breath, that my chest hurt, that my shoulder hurt; and he said, “Don’t worry about it, Dick, it’s not your heart, it’s not your heart, it’s a ligament what’s out but it’s pressing on a nerve.” ’ And he said, ‘Christine, after all, the man knows what he’s talking about, he gives me every symptom that I have.’ And I threatened to call an ambulance and he said, ‘You’ll feel pretty foolish when I don’t go. After all, Counselman is a doctor, he knows what he’s talking about.’
“Q. [Mr. Wright, defendant’s counsel] And he wouldn’t take your advice?
“A. He would not.
“Q. He wouldn’t take your advice and let an ambulance be called?
“A. He would not.”
Plaintiff and her husband argued over his medical condition. Later in the evening, the following conversation occurred:
“A. It ended that we talked to each other again but I was enraged, I told him that he should see Dr. Roeder, I told him, I even told him, I said, ‘All right, even if it wouldn’t be your heart, for God’s sake if you have that much pain, then let’s go to a regular doctor, maybe he has to put you in traction if it’s really your back.’
“Q. What did he say?
“A. He said, ‘Dr. Counselman said I’m supposed to feel this way.’ He said, ‘It’s my back, I’m seeing him again on Wednesday, why don’t you just lay off me..’ ”
A few hours later Mr. Roberson died of a heart attack in his home, without medical attention. He was 51 years of age at the time of his death.
Plaintiff presented three expert witnesses whose depositions were taken during discovery. Their testimony, as pertinent to the issue before us, may be summarized as follows:
1. Dr. Malcolm W. Haber (chiropractor) stated that Dr. Counselman had a duty to refer a patient with Mr. Roberson’s symptoms to a medical specialist and the failure to do so constituted a breach of that duty.
2. Dr. Richard Roeder (cardiologist) stated with in-hospital treatment for his heart attack, Mr. Roberson had a nineteen percent chance of dying. Without such treatment the mortality rate is twenty-five percent. Therefore, the failure to receive proper medical treatment cost Mr. Roberson a six percent chance of survival.
3. Dr. Lillian Rodriquez-Tocker (cardiologist) stated with proper medical treatment Mr. Roberson had a forty percent chance of survival and that without such treatment his chance of survival was zero percent.
The district court in sustaining defendant’s motion for summary judgment reasoned:
“A mere possibility of causation is not enough to meet plaintiff s burden of producing evidence; plaintiff must show that it was more likely than not defendant’s conduct was a substantial factor in bringing about the harm in order for plaintiff s case to be submitted to the trier of the fact. Prosser, Law of Torts sec 41 (4th ed. 1971); Restatement (Second) of Torts sec. 433B comments a & b (1965).
“The expert medical testimony upon which plaintiff relies is not sufficient to meet plaintiffs burden of proof on causation. Dr. Rodriquez-Tocker’s testimony that plaintiff s decedent would have had a forty percent chance of survival in the hospital does not show that it is more likely than not the defendant’s conduct caused the death of plaintiffs decedent. Likewise, Dr. Roeder’s testimony that Mr. Roberson would have had a six percent better chance of survival if he had gone to the hospital is not enough to fulfill plaintiff s burden of proof on causation. The third expert witness, Dr. Haber, declined to state that defendant’s failure to refer Mr. Roberson to a cardiologist was the cause of his death.
“The court concludes, as a matter of law, that there is insufficient proof contained in the pretrial discovery record that defendant’s conduct was a cause in fact of plaintiffs injuries. Accordingly, the evidence is clearly insufficient to submit the issue of causation to the jury with respect to plaintiff s claim against defendant.”
The sole issue on appeal is whether the district court erred in concluding the evidence on causation was insufficient to constitute a submissible jury question.
Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86 (1983), contains a general review of the Kansas law relative to medical malpractice. A physician has the duty to exercise reasonable and ordinary care and diligence. The particular decision and acts required of the physician in fulfilling the duty will vary with the circumstances of the patient’s situation and the medical specialty of the physician. 234 Kan. at 490. The rules of law pertaining to medical malpractice are applicable to chiropractors. See Hinthorn v. Garrison, 108 Kan. 510, 196 Pac. 439 (1921); Case v. Vearrindy, 339 Mich. 579, 64 N.W.2d 670 (1954). Like physicians (see Annot., Malpractice: Physician’s Failure to Advise Patient to Consult Specialist or One Qualified in a Method of Treatment which Physician is not Qualified to Give, 35 A.L.R.3d 349), a chiropractor may be liable for failing to refer a patient to a medical practitioner. Annot., Chiropractor’s Liability for Failure to Refer Patient to Medical Practitioner, 58 A.L.R.3d 590; 24 Am. Jur. Proof of Facts, Chiropractic Malpractice § 21, p. 467; 61 Am. Jur. 2d, Physicians, Surgeons, Etc. § 233; Mostrom v. Pettibon, 25 Wash. App. 158, 607 P.2d 864 (1980); Tschirhart v. Pethtel, 61 Mich. App. 581, 233 N.W.2d 93, appeal denied 395 Mich. 774 (1975); Salazar v. Ehmann, 505 P.2d 387 (Colo. App. 1972), 58 A.L.R.3d 585; Ison v. McFall, 55 Tenn. App. 326, 400 S.W.2d 243 (1964); Ritter v. Sivils, 206 Or. 410, 293 P.2d 211 (1956).
It should be emphasized that the summary judgment herein was not granted on the basis plaintiff s evidence was insufficient to establish the duty owed or the breach thereof. Indeed, the deposition of Dr. Haber was sufficient to establish the duty and the breach thereof for purposes of withstanding a summary judgment motion. Rather, the district court concluded there was insufficient evidence that the alleged breach of Dr. Counsel-man’s duty to Mr. Roberson caused the man’s death. Therefore, the issue before us relates wholly to causation — not whether Dr. Counselman was negligent in his treatment of Mr. Roberson.
In granting the summary judgment herein the district court cited Restatement (Second) of Torts § 433B, comments a and b (1965).
“a. . . . [I]n civil cases, the plaintiff is required to produce evidence that the conduct of the defendant has been a substantial factor in bringing about the harm he has suffered, and to sustain his burden of proof by a preponderance of the evidence. This means that he must make it appear that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the harm. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation and conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.”
Comment b declares:
“b. The plaintiff is not, however, required to prove his case beyond a reasonable doubt. He is not required to eliminate entirely all possibility that the defendant’s conduct was not a cause. It is enough that he introduces evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not. The fact of causation is incapable of mathematical proof, since no man can say with absolute certainty what would have occurred if the defendant had acted otherwise. If, as a matter of ordinary experience, a particular act or omission might be expected to produce a particular result, and if that result has in fact followed, the conclusion may be justified that the causal relation exists. In drawing that conclusion, the triers of fact are permitted to draw upon ordinary human experience as to the probabilities of the case." (Emphasis supplied.)
Comment b concludes by providing a hypothetical drowned child scenario which appears analytically applicable in the instant action.
“Thus when a child is drowned in a swimming pool, no one can say with absolute certainty that a lifeguard would have saved him; but the common experience of the community permits the conclusion that the guard would more probably than not have done so, and hence that the absence of the guard has played a substantial part in bringing about the death of the child. Such questions are normally for the jury, and the court may seldom rule on them as matters of law. ” (Emphasis supplied.)
Dean Prosser, also cited by the district court, is consistent with the Restatement (Second) of Torts in holding causation must be established by the so-called “substantial factor” test. Prosser, Law of Torts § 41, pp. 240-41 (4th ed. 1971). Prosser is critical of the “but for” test of causation. Prosser, pp. 238-40. Like the Restatement (Second) of Torts, Prosser argues whether the defendant’s conduct was a substantial factor in bringing about the plaintiff s injury “is for the jury to determine, unless the issue is so clear that reasonable men' could not differ.” Prosser, p. 240.
57 Am. Jur. 2d, Negligence § 147, at pp. 503-04, states:
“The actor’s negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm. To hold a tortfeasor liable for the injuries which result in the ordinary course of events from his negligence, it is generally sufficient if his negligent conduct was a substantial factor in bringing about the injuries. The word ‘substantial’ is used in the Restatement, Torts 2d in the sense that the defendant’s conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called ‘philosophic sense.’ It has been held that in using the term ‘substantial factor’ in a charge to the jury, the substance of the Restatement definition must be explained in terms likely to be understood by laymen in order to avoid any misconception that the negligence referred to must be ‘substantial’ in degree.” (Emphasis supplied.)
As the preceding passage from Am. Jur. 2d reveals, the Restatement (Second) of Torts discusses and defines “substantial factor” as it relates to causation in negligence actions. Initially, Restatement (Second) of Torts § 430 (1965) provides, in order that a negligent actor shall be liable for another’s harm, it is necessary not only that the actor’s conduct be negligent toward the other, but also the negligence of the actor be the legal cause of the other’s harm. Restatement (Second) of Torts § 431 (1965) defines “legal cause”;
“The actor’s negligent conduct is a legal cause of harm to another if
(a) his conduct is a substantial factor in bringing about the harm, and
(b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.” (Emphasis supplied.)
Comment a, following § 431, proclaims in order to be a legal cause of another’s harm it is not enough the harm would not have occurred had the actor not been negligent — a rejection of the “but for” test. Rather, the negligence must also be a substantial factor in bringing about the plaintiff s harm.
“The word ‘substantial’ is used to denote the fact that the defendant’s conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than the so-called ‘philosophic sense,’ which includes every one of the great number of events without which any happening would not have occurred.” Restatement (Second) of Torts § 431, Comment a, p. 429 (1965).
In State Highway Comm. v. Empire Oil & Ref. Co., 141 Kan. 161, 40 P.2d 355 (1935), the court defined legal cause as the invasion of some legally protected interest of another for which the actor is held responsible in law for the harm. Further, “the act or omission must be a substantial factor in bringing about the harm (see § 431).” 141 Kan. at 165. (Emphasis supplied.)
In Adams v. Casebolt, 145 Kan. 3, 63 P.2d 927 (1937), at p. 7, this court, relying upon Restatement of Torts § 431, comment b (1934), said:
“ . . [T]he testimony often makes it clear that, if the defendant’s conduct had any effect, the effect was substantial. It is only where the evidence permits a reasonable finding that the defendant’s conduct had some effect that the question whether the effect was substantial rather than negligible becomes important.’ ”
Cole v. Shell Petroleum Corp., 149 Kan. 25, 86 P.2d 740 (1939), at p. 37, saw this court, in relying upon authority, noting “[c]ausation is a matter of fact.”
As is evident from the preceding discussion, causation is easier stated than explained. The legal treatises on causation are voluminous. A few good examples are: Delgado, Beyond Sindell: Relaxation of Cause-In-Fact Rules for Indeterminate Plaintiffs, 70 Calif. L. Rev. 881 (1982); King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L. J. 1353 (1981); Danner & Sagall, Medicolegal Causation: A Source of Professional Misunderstanding, 3 Am. J. L. & Med. 303 (1977); Note, Expert Testimony on Causation in a Wrongful Death Case: Should “Reasonable Medical Certainty”be Necessary to Make a Submissible Case? 36 Mo. L. Rev. 127 (1971); 3 Am. Jur. Proof of Facts, Causation — Medical Opinion, p. 161; Annot., Proximate Cause in Malpractice Cases, 13 A.L.R.2d 11.
To iterate, in the case before us, for purposes of withstanding the summary judgment motion, negligence on the part of Dr. Counselman was adequately established. In essence, the district court held that, to establish a submissible jury issue of causation, plaintiff must show that, but for defendant’s negligence, deceased would have had a better than even chance of surviving the heart attack. The plaintiff s evidence in its most favorable light showed only a forty percent chance of survival. This, the district court concluded, was insufficient.
Plaintiffs claim centers on defendant’s negligence having reduced or obliterated her husband’s chance of survival. While such action frequently arises within the context of a wrongful death case, the complainant is really seeking redress not for the death but for the deprivation of the chance to survive. Delgado, 70 Calif. L. Rev. at 889. It should be noted that there is no issue before us relative to by what legal capacity the action is brought and such is not germane to the issue to be decided. The case does appear, however, to be the first deprivation-of-the-chance- to-survive action before a Kansas appellate court. This type of action has been before a number of appellate courts in other jurisdictions.
In Hernandez v. Clinica Pasteur, Inc., 293 So. 2d 747 (Fla. Dist. Ct. App. 1974), Mr. Hernandez visited defendant clinic with symptoms which should have resulted in an electrocardiogram being administered, but which was not done.. He was diagnosed as suffering from gastric distress. The patient was told he had no serious health problems and should exercise more. The patient exercised that evening and was dead by morning from a myocardial infarction. At trial a cardiologist testified Mr. Hernandez would “probably and possibly” have had a better chance of survival if he had received proper treatment at the defendant clinic. A directed verdict was entered for defendants at trial. The Florida Appellate Court reversed the directed verdict holding:
“ ‘Proximate cause is not a question of science or legal knowledge — it is a fact to be determined in consideration of all the circumstances. It is only when the facts are susceptible of only one inference that the question is one of law for the court. Otherwise it should be submitted to the jury.’ ” 293 So. 2d at 750.
Continuing:
“It further appears that once the malpractice was established, the question of causation for the decedent's demise within hours of the malpractice was one which was properly submitted to the jury.” 293 So. 2d at 750. (Emphasis supplied.)
Concluding:
“In the case now before us, there was evidence that appellant’s decedent was at all times suffering from the condition which ultimately caused his death. The issue of proximate cause was as to whether appellees’ malpractice contributed to the cause of death. In this connection, the testimony that appellant's decedent would have had a better chance to survive if he had received prompt medical attention was sufficient to form a basis for the submission of the issue to the jury.” 293 So. 2d at 750. (Emphasis supplied.)
Hernandez arose in the District Court of Appeal of Florida, Third District.
A different result was reached in the First District of the same appellate court. In University Hosp. Bldg., Inc. v. Gooding, 419 So. 2d 1111 (Fla. Dist. Ct. App. 1982), the patient had a condition when brought to the hospital which, with proper medical treatment, he had a fifty percent chance to survive. The treatment was not given and the patient died. A verdict was rendered against the hospital. In reversing, the appellate court said:
“Causation in fact is proved by evidence that more likely than not defendant’s negligence caused the injury. This same burden of proof applies regardless of whether the ‘but for’ or the ‘substantial factor’ test is used. The rule is stated by Prosser as follows:
“ ‘On the issue of the fact of causation, as on other issues essential to his cause of action for negligence, the plaintiff, in general, has the burden of proof. He must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.’ (emphasis added)
“The testimony of plaintiff s expert, the strongest evidence presented on plaintiff s behalf, establishes that decedent’s chances of survival, given all optimum conditions and prompt efficient action, [were] at best evenly balanced and less than probable. On this state of the proof, the case should not have been submitted to the jury.” 419 So. 2d at 1113-14.
Perhaps the most liberal view is expressed in Hicks v. United States, 368 F.2d 626 (4th Cir. 1966), which involves Virginia law. In Hicks a diabetic patient was taken to a navy hospital with intense abdominal pain and vomiting. Proper testing would have revealed a high obstruction. Instead the patient was diagnosed as having a minor problem and sent home, where she died. There was expert testimony the patient would have survived if- given proper treatment. The district court dismissed the action. In reversing the district court the Court of Appeals stated:
“When a defendant’s negligent action or inaction has effectively terminated a-person’s chance of survival, it does not lie in the defendant’s mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly. Harvey v. Silber, 300 Mich. 510, 2 N.W.2d 483 (1942).” 368 F.2d at 632. (Emphasis supplied.)
Hicks has been followed by the Maryland Court of Appeals (Maryland’s highest court) in Thomas v. Corso, 265 Md. 84, 101-02, 288 A.2d 379 (1972).
In Kallenberg v. Beth Israel Hosp., 45 App. Div. 2d 177, 357 N.Y.S.2d 508 (1974), aff'd 37 N.Y.2d 719, 374 N.Y.S.2d 615, 337 N.E.2d 128 (1975), the decedent was admitted to the Beth Israel Hospital for surgery. The decedent had a cerebral aneurysm. Upon admission her physician ordered she receive a specific medication to reduce her blood pressure. It was critical her blood pressure be reduced as a condition for performing surgery. The decedent never received the medication. Her blood pressure remained high and, consequently, surgery could not be performed. Ultimately the patient died when the cerebral aneurysm hemorrhaged. The evidence revealed the decedent did not reach the point where nothing could be done for her until six days after admission. Expert testimony established had the decedent been promptly, properly, energetically and adequately treated, she would have had at least a twenty percent survival chance, but no more than forty percent. 45 App. Div. 2d at 179. If the decedent had received medication, but had not undergone surgery, she would have had a two percent chance of survival. 45 App. Div. 2d at 180. Even with this less than evenly balanced survival chance, the New York appellate court, in affirming a jury verdict for the plaintiffs, said:
“The question of proximate cause is a jury question, and a jury alone may weigh conflicting evidence and determine the credibility of witnesses and the weight to be accorded expert testimony.” 45 App. Div. 2d at 180. (Emphasis supplied.)
In Jones v. Montefiore Hospital, 494 Pa. 410, 431 A.2d 920 (1981), plaintiff alleged the misdiagnoses and delay in treating her for breast cancer resulted in her life being impaired and shortened, and caused financial loss. The trial court, in charging the jury on causation, said proximate cause is that cause which in direct and continuous sequence uninterrupted by any intervening cause produces the result and without which it would not occur. 494 Pa. at 415. The jury returned a verdict in favor of the defendants. On appeal the Pennsylvania Supreme Court reversed, holding the lower court had erred in charging the jury on causation.
“Proximate cause is a term of art, and may be established by evidence that a defendant’s negligent act or failure to act was a substantial factor in bringing about the harm inflicted upon a plaintiff. Pennsylvania law has long recognized that this substantial factor need not be, as the trial court incorrectly charged, the only factor, i.e., 'that cause which . . . produces the result.’ Gradel v. Inouye, 491 Pa. 534, 542, 421 A.2d 674, 678 (1980); Hamil v. Bashline, 481 Pa. at 266, 392 A.2d at 285; Majors v. Brodhead Hotel, 416 Pa. 265, 273, 205 A.2d 873, 878 (1965). A plaintiff need not exclude every possible explanation, and ‘the fact that some other cause concurs with the negligence of the defendant in producing an injury does not relieve defendant from liability unless he can show that such other cause would have produced the injury independently of his negligence.’ Majors v. Brodhead Hotel, 416 Pa. at 273, 205 A.2d at 878.” 494 Pa. at 416.
In Jones the Pennsylvania court applied liability under Restatement (Second) of Torts § 323 (1965), which provides:
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.” (Emphasis supplied.)
The Pennsylvania court specifically relied upon subsection (a). According to the Pennsylvania court, once a plaintiff demonstrated defendant’s acts or omissions, in a situation to which § 323(a) applied, increased the risk of harm to another, such evidence would furnish a basis for a factfinder to go further and find that such increased risk was in turn a substantial factor in bringing about the resultant harm. To the Jones court the necessary proximate cause would have been made out if the jury saw fit to find causation in fact. According to the Pennsylvania court, “. . . medical opinion need only demonstrate, with a reasonable degree of medical certainty, that a defendant’s conduct increased the risk of the harm actually sustained, and the jury then must decide whether that conduct was a substantial factor in bringing about the harm.” 494 Pa. at 417. Recently, in Circle Land & Cattle Corp. v. Amoco Oil Co., 232 Kan. 482, 490, 657 P.2d 532 (1983), this Court adopted Restatement (Second) of Torts § 323 (1965).
Clark v. United States, 402 F.2d 950 (4th Cir. 1968), applying Virginia law, involved allegations the physicians had been negligent in delaying use of proper and standard diagnostic procedures to identify the patient’s illness and the delay was the cause of the loss of a kidney. The trial court entered judgment for plaintiff and the United States Government appealed, contending lack of causation. The Fourth Circuit Court of Appeals, in affirming the lower court, commented:
“The district judge, it is true, said, that no expert could testify ‘with any probable degree of certainty’ that earlier action would have saved Mrs. Clark’s kidney, but we know of no court that requires a plaintiff to prove causation to a certainty or even to ‘negative entirely the possibility that the defendant’s conduct was not a cause.’ Prosser, Torts § 41 at 246 (3d ed. 1964). It appears to be settled in Virginia that the question of causation is for the jury with only the admonition that ‘if the proof leaves it equally probable that a bad result may have been due to a cause for which the defendant was not responsible as to a cause for which he was responsible the plaintiff cannot recover.’ Reed v. Church, 175 Va. 284, 8 S.E.2d 285, 288 (1940). The district court found in the instant case an ‘indicated probability that an earlier operation to repair the ureter may have saved the kidney.’ We think such a finding is clearly adequate under the law of Virginia." 402 F.2d at 953-54. (Emphasis supplied.)
Perhaps the most rigid position is expressed in Cooper v. Sisters, 27 Ohio St.2d 242, 56 Ohio Op.2d 146, 272 N.E.2d 97 (1971). In Cooper, plaintiffs minor son was involved in a bicycle-truck collision. Improper emergency room procedures failed to disclose a major head injury. The child was released and died the following morning. One expert testified death had been almost certain without proper treatment but declined to speculate on the percentage of chance of survival with proper treatment. Another expert placed survival chances with proper treatment “around” fifty percent. The trial court entered judgment for the defendants. In affirming, the Ohio Supreme Court stated:
“A rule, which would permit a plaintiff to establish a jury question on the issue of proximate cause upon a showing of a ‘substantial possibility’ of survival, in our judgment, suffers the same infirmity as a rule which would permit proof of a ‘chance of recovery’ to be sufficient. While the substantial possibility concept appears to connote a weightier burden than the chance of recovery idea, both derogate well-established and valuable proximate cause considerations. Traditional proximate cause standards require that the trier of the facts, at a minimum, must be provided with evidence that a result was more likely than not to have been caused by an act, in the absence of any intervening cause.
“Lesser standards of proof are understandably attractive in malpractice cases where physical well being, and life itself, are the subject of litigation. The strong intuitive sense of humanity tends to emotionally direct us toward a conclusion that in an action for wrongful death an injured person should be compensated for the loss of any chance for survival, regardless of its remoteness. However, we have trepidations that such a rule would be so loose that it would produce more injustice than justice. Even though there exists authority for a rule allowing recovery based upon proof of causation by evidence not meeting the standard of probability, we are not persuaded by their logic. See Craig v. Chambers, supra (17 Ohio St. 25[3] [1867]); Hicks v. United States, supra (368 F.2d 626 [4th Cir. 1966]); Neal v. Walker (1968), 426 S.W.2d 476; Rogers v. Kee (1912), 171 Mich. 551, 137 N.W. 260, quoting from Craig v. Chambers, supra; Burk v. Foster, (1902), 114 Ky. 20, 69 S.W. 1096. The following authorities appear to require the establishment of proximate cause by evidence of probability: Harvey v. Silber (1942), 300 Mich. 510, 2 N.W.2d 483; Schuler v. Berger (1967), 275 F. Supp. 120; Walden v. Jones (Ky. 1969), 439 S.W.2d 571 (distinguishing Neal v. Walker, supra); Connellan v. Coffey (1936), 122 Conn. 136, 187 A. 901.
“We consider the better rule to be that in order to comport with the standard of proof of proximate cause, plaintiff in a malpractice case must prove that defendant’s negligence, in probability, proximately caused the death.” 27 Ohio St. 2d at 251-52. (Emphasis supplied.)
In Daniels v. Hadley Memorial Hospital, 566 F.2d 749 (D.C. Cir. 1977), a Mr. Horace Miller went to a hospital emergency-room for treatment for abrasions he received following a fall from his bicycle. During treatment Mr. Miller received a penicillin shot and fifteen to twenty minutes later was allowed to leave. About ten minutes after being discharged, he was found in the hospital parking lot suffering from an anaphylactic reaction to the penicillin. Thirty-four minutes after he had been rushed back into the emergency room, Mr. Miller was dead. In a wrongful death action against the hospital the plaintiff alleged when the hospital staff was treating the decedent for the anaphylactic reaction it had a duty to provide both oxygen and adrenalin as quickly as possible (for proper ventilation) and the staff s failure to do so effectively eliminated whatever chance Mr. Miller had of surviving. 566 F.2d at 753. Plaintiff s expert testimony established while Mr. Miller had been in a grave condition when he was rushed back into the emergency room, he still had a significant chance of recovery if properly treated. His condition was capable of being medically corrected. Death was possible, but not inevitable. According to one expert there was an appreciable chance of survival in anaphylactic reaction to penicillin cases although fifteen to twenty-five percent of the victims ultimately die. As each moment passed the chances of survival diminished. The plaintiff s expert witness testified the hospital staff s failure to supply proper ventilation “significantly diminished” Mr. Miller’s chances of survival. 566 F.2d at 758. The trial court found the hospital staff had been negligent in its emergency treatment of the decedent, but such treatment had not been the proximate cause of his death. 566 F.2d at 751. The plaintiff appealed and the United States Court of Appeals, District of Columbia Circuit, reversed and remanded the case.
In reversing the lower court the federal appellate court wrote:
“In determining that there was no causal connection between inadequate ventilation and Mr. Miller’s death, the District Court applied the ‘substantial factor’ test. This is the appropriate test for causation in cases, such as this, where the harm appears to have been brought about by two or more concurrent causes. Under this test, the plaintiff must show that the defendant’s deviation from the standard of care was a ‘substantial factor’ in bringing about the harm complained of. This test has been applied in circumstances similar to those presented here, involving the medical mismanagement of a patient’s already potentially fatal condition. In Hicks v. United States the court dismissed defendant’s contention that proximate causation had not been shown because, although the negligent diagnosis had prevented the application of proper therapy, ‘. . . even if surgery had been performed immediately, it is mere speculation to say that it would have been successful’:
“ ‘. . . [I]t does not lie in the defendant’s mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass.’
The Hicks decision, and the cases which have followed it, illustrate that there are at least two important factors relevant to the issue of causation in cases involving negligent treatment of a potentially fatal condition: first, the patient’s chances of survival if properly treated according to medical procedures generally recognized as appropriate under the circumstances; and second, the extent to which the patient's chances have been reduced by improper departure from these established procedures. We are not suggesting, as some courts have, that these two factors can be reduced to precise verbal formulae, supplanting the ‘substantial factor’ test. We do not think it is either possible or desirable to reduce the ‘substantial factor’ test to lower and more concrete terms in this way. We do believe, however, that in considering the question of causation in a case such as this, the finder of fact must at least take into account both the patient’s chances of survival and the extent to which defendant has interfered with these chances. ” 566 F.2d at 757-58. (Emphasis supplied.)
The question of causation in cases involving negligent treatment of a potentially fatal condition (including failure to refer the patient to an appropriate specialist) is generally a matter to be determined by the finder of fact where the evidence has established the patient had an appreciable chance to survive if given proper treatment. In making the determination, the finder of fact should take into account both the patient’s chances of survival if properly treated and the extent to which the patient’s chances of survival have been reduced by the claimed negligence.
In the case before us one of plaintiffs experts testified the failure to obtain proper treatment increased Mr. Roberson’s chances of dying from the heart attack from nineteen percent mortality rate to twenty-five percent mortality rate (an increase of over thirty percent). The other expert testified the patient had a forty percent chance of surviving with treatment and zero percent chance without treatment. In addition to the failure to refer aspect of this case, we have the added factor of assuring the patient his heart was not causing his suffering and that his pain was to be expected from the muscular problem. We believe under the totality of the circumstances herein, the district court’s entry of summary judgment in favor of defendant predicated upon insufficient evidence of causation was erroneous, and, in so doing, the district court usurped the function of the jury as the finder of fact. Whether the negligence of defendant was a substantial factor in Mr. Roberson’s death is a matter for determination by a jury upon due consideration of all related factors.
We conclude that under the totality of the circumstances sufficient evidence was before the district court to have precluded summary judgment being granted on causation.
There are sound reasons of public policy involved in reaching this result. The reasoning of the district court herein (which is similar to the extreme position taken in Cooper v. Sisters, 27 Ohio St.2d 242), in essence, declares open season on critically ill or injured persons as care providers would be free of liability for even the grossest malpractice if the patient had only a fifty-fifty chance of surviving the disease or injury even with proper treatment. Under such rationale a segment of society often least able to exercise independent judgment would be at the mercy of those professionals on whom it must rely for life-saving health care.
The judgment is reversed and the case is remanded for trial.
Holmes, J., not participating.
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The opinion of the court was delivered by
Miller, J.:
This is an action in the nature of quo warranto, brought by the attorney general against the Board of County Commissioners of Lyon County to contest the validity of two charter resolutions enacted by the Board. The resolutions exempted Lyon County from paying, as required by certain statutes, out-district tuition to Kansas community colleges and municipal universities. The trial court held the resolutions unconstitutional, enjoined the implementation of the charter resolutions, and ordered the Board to continue paying out-district tuition as provided by law. The principal issues to be resolved are whether this court should consider a law enacted while this case was on appeal; whether that statute is controlling; and whether the statutes requiring the payment of out-district tuition are constitutional.
To put this controversy in proper perspective, we will first review the constitutional and statutory provisions applicable, together with the procedural history of this action. Article 6 of the Constitution of Kansas deals with the subject of education. It provides in applicable part as follows:
Ҥ 1. Schools and related institutions and activities. The legislature shall provide for intellectual, educational, vocational and scientific improvement by establishing and maintaining public schools, educational institutions and related activities which may be organized and changed in such manner as may be provided by law.
Ҥ 2. State board of education and state board of regents, (a) The legislature shall provide for a state board of education which shall have general supervision of . . . educational institutions and all the educational interests of the state, except educational functions delegated by law to the state board of regents. . . .
Ҥ 6. Finance, (a) The legislature may levy a permanent tax for the use and benefit of state institutions of higher education and apportion among and appropriate the same to the several institutions, which levy, apportionment and appropriation shall continue until changed by statute. Further appropriation and other provision for finance of institutions of higher education may be made by the legislature.
“(b) The legislature shall make suitable provision for finance of the educational interests of the state.”
Acting under authority of these constitutional provisions over sixty years ago, the Kansas Legislature authorized the establishment of junior colleges having a two-year course of post-high school study. See R.S. 1923, 72-3301 et seq. “Junior colleges” and “community junior colleges” became “community colleges” pursuant to a statute enacted in 1980. See K.S.A. 71-120. These community colleges generally have as a tax base a taxing district consisting of one county or less, and the board of trustees of each community college is authorized to levy a tax on the taxable tangible property of the community college district. K.S.A. 71-204. In order to provide additional financial assistance to the community colleges, the legislature authorized each community college, under certain circumstances, to charge out-district tuition for each student attending the college whose residence is outside the community college district. Out-district tuition is paid by the board of county commissioners of the county of residence of the students who live outside of the community college district. See K.S.A. 1982 Supp. 71-301.
Washburn University of Topeka, Kansas, is a municipal university. See K.S.A. 13-13a03 et seq. Its taxing district was originally co-extensive with the limits of the city of Topeka. Later, the legislature authorized extension of the taxing district to include all of Shawnee County. See K.S.A. 13-13a24. Before 1982, there was no statutory authorization for Washburn University to charge or receive out-district tuition from other counties, although students attended it from various counties of the state.
Laws of Kansas 1982, chapter 282, became effective upon publication on May 20, 1982. This law spawned the charter resolutions enacted by the Board of County Commissioners of Lyon County, resulting in this litigation. Chapter 282 is entitled:
“An Act concerning certain institutions of postsecondary education; increasing the rate of out-district tuition charged to counties by community colleges; providing for increases in state aid to community colleges and municipal universities; authorizing the charging of out-district tuition by municipal universities and requiring the levy of taxes for payment thereof by taxing subdivisions; relating to the provision of instruction by community colleges and municipal universities under agreements with state agencies; amending K.S.A. 71-602, 71-607 and 72-6503 and K.S.A. 1981 Supp. 71-301, and repealing the existing sections; also repealing K.S.A. 71-207, 71-208, 71-209, 71-303 and 71-307.”
Chapter 282 is lengthy and need not be set forth in full; instead, we provide the following summary of its sections.
Section 1 amends K.S.A. 1981 Supp. 71-301 and provides for and limits the charging of student tuition and out-district tuition by community colleges, and requires the boards of county commissioners to pay out-district tuition.
Section 2 amends K.S.A. 71-602 and prescribes to the state board of education the method for calculating credit hour state aid to be given community colleges.
Section 3 amends K.S.A. 71-607 and prescribes to the state board of education the method for calculating out-district state aid payments to be made to community colleges.
Section 4 amends K.S.A. 72-6503 and prescribes to the state board of education the method for calculating payments to be made to Washburn University from the municipal university fund of the state treasury.
Section 5 defines certain terms, including “municipal university district” and “taxing subdivision.” This section is now K.S.A. 13-13a25.
Section 6 provides for, and limits, the charging of out-district tuition by any municipal university, commencing with the spring semester of 1983; and it requires boards of county commissioners and other “boards of levy” to pay such charges. This section is now K.S.A. 13-13a26.
Section 7 concerns the residence of students for the purposes of determining out-district tuition charges and out-district state aid entitlement. This section is now K.S.A. 13-13a27.
Section 8 entitles a municipal university to receive out-district state aid payments and prescribes to the state board of education the method for calculating these state aid payments. This section is now K.S.A. 13-13a28.
Section 9 specifies times at which, and persons and agencies by whom, a determination of credit hours of duly enrolled out-district students of the municipal university shall be made. (The number of credit hours of duly enrolled out-district students is one of the factors that is used to calculate both out-district tuition and out-district state aid. See K.S.A. 13-13a26.) This section is now K.S.A. 13-13a29.
Section 10 imposes duties and places restrictions upon the state board of education regarding distribution of out-district state aid entitlements of the municipal university. This section is now K.S.A. 13-13a30.
Section 11 imposes a limitation regarding the students for whom a municipal university may charge out-district tuition. This section is now K.S.A. 13-13a31.
Section 12 imposes another limitation regarding the students for whom a community college may charge out-district tuition. It also provides for an increase in out-district state aid entitlements of community colleges, if certain facts exist. This section is now K.S.A. 13-13a32.
Section 13 imposes duties upon the state board of education regarding matters necessary to determine out-district tuition charges that may be made by a municipal university and the amount of out-district state aid that the municipal university is entitled to receive. This section is now K.S.A. 13-13a33.
Section 14 places yet another restriction on the amount of out-district tuition a municipal university can charge and on the amount of out-district state aid that the municipal university is entitled to receive. This section is now K.S.A. 13-13a34.
Section 15 authorizes the governing body of any community college or municipal university and any state agency to enter into agreements for the provision of instruction at the community college or municipal university, or off the campus thereof. It prescribes how the amount to be paid by the state agency for such instruction is to be determined and limits that amount to appropriations of the state agency made by the legislature. It also provides that no credit hour state aid entitlement and no out-district state aid entitlement shall be based upon, and no tuition shall be charged or collected for, any subject, course or program taught under an agreement with a state agency. This section is now K.S.A. 1982 Supp. 75-3099.
Section 16 repeals various statutes relating to the financial affairs of community colleges and Washburn University.
Section 17 prescribes the effective date of the act.
To attempt to exempt itself from the above summarized provisions, Lyon County invoked its home rule powers. Article 12, section 5, of the Constitution of Kansas, commonly referred to as the home rule amendment, empowers cities to determine local affairs and government. It does not, however, provide for county home rule. This is provided by statute, K.S.A. 19-101 et seq., as amended. The home rule powers of a county are thus subject to determination and limitation by the legislature and do not emanate from the constitution. County home rule powers are to be exercised by charter resolutions, as provided by K.S.A. 19-101b. We discussed the history and application of the county home rule act thoroughly in Missouri Pacific Railroad v. Board of Greeley County Comm’rs, 231 Kan. 225, 643 P.2d 188 (1982).
On September 23, 1982, the Board of County Commissioners of Lyon County, Kansas, enacted charter resolutions Nos. 18 and 19. Resolution No. 18 exempts Lyon County from various acts of the legislature, including K.S.A. 1981 Supp. 71-301, as amended by 1982 Session Laws, chapter 282, relating to the payment of out-district tuition to community colleges. Resolution No. 19 exempts the county from other acts of the legislature, including Laws of 1982, chapter 282, § 6, now K.S.A. 13-13a26, relating to the payment of out-district tuition to municipal universities. Both resolutions were unanimously adopted and both were to take effect sixty days after final publication unless a petition of electors demanding that the matter be submitted to popular vote was filed.
On October 25, 1982, the attorney general commenced this action, seeking a declaratory judgment that the charter resolutions were illegal, an injunction to prevent implementation of the resolutions, and relief in the form of quo warranto. Washburn University, the only municipal university in Kansas, and the nineteen community colleges were permitted to intervene as plaintiffs. The board answered and counterclaimed, alleging (1) that Laws of Kansas 1982, chapter 282, is unconstitutional because it contains more than one subject; (2) that Kansas community colleges are operating in violation of “public policy” and should be enjoined from collecting out-district tuition; and (3) that the Kansas community colleges must refund out-district tuition paid by Lyon County. The plaintiffs then replied, denying that defendant is entitled to any relief on its counterclaim.
The matter was tried to the court on January 7, 1983. The trial judge made extensive findings of fact and conclusions of law, and entered judgment generally in favor of the plaintiffs and against the Board. The court found that charter resolutions Nos. 18 and 19 are illegal and unconstitutional, and that the Board exceeded its legal authority by adopting them. It enjoined the Board from implementing any of the provisions of the charter resolutions, and it ordered the Board to continue paying out-district tuition as provided by law. The court dismissed the counterclaims and denied the defendant the relief it sought. The Board appeals from the trial court’s judgment.
While this matter was pending on appeal, the legislature enacted Laws of Kansas 1983, chapter 92, effective July 1, 1983. Section 1 of that act amends one of the county home rule statutes, K.S.A. 1982 Supp. 19-101a, and so far as is here pertinent reads as follows.
“(a) The board of county commissioners may transact all county business and perform all powers of local legislation and administration it deems appropriate, subject only to the following limitations, restrictions or prohibitions ....
“(16) Counties may not exempt from or effect changes in K.S.A. 13-13a26, and amendments thereto. Any charter resolution adopted by a county, prior to the effective date of this act, exempting from or effecting changes in K.S.A. 13-13a26, and amendments thereto, is null and void.
“(17) Counties may not exempt from or effect changes in K.S.A. 71-301, and amendments thereto. Any charter resolution adopted by a county, prior to the effective date of this act, exempting from or effecting changes in K.S.A. 71-301, and amendments thereto, is null and void.”
K.S.A. 13-13a26, referred to in section 16, deals with out-district tuition to municipal universities. K.S.A. 71-301, referred to in section 17, deals with out-district tuition to community colleges.
This brings us to the first issue, whether chapter 92 of the Laws of Kansas 1983, quoted above, renders this case moot. The defendant Board contends that the enactment does not nullify the charter resolutions and in support of this conclusion makes three arguments: (1) The trial court did not have the opportunity to consider the new statutes; (2) the new statute itself is special legislation and thus violates article 2, section 17, of the Kansas Constitution; and (3) the statutes referred to in the new legislation, K.S.A. 13-13a26 and K.S.A. 71-301 and amendments thereto, enacted as a part of Laws of Kansas 1982, chapter 282, are themselves unconstitutional.
It is true that ordinarily this court will not consider an issue not raised in the trial court. This does not, however, prevent us from considering a pertinent statute enacted by the legislature after a trial court’s judgment is entered. Statutory construction is a matter of law and if the statute is controlling it would not benefit the parties or the judicial system to send the matter back to the trial court merely for consideration of the newly enacted statute. The new statute is the law presently in effect. When called upon to consider legislative enactments which follow trial court rulings, this court has not hesitated. We did so in Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1291 (1974); Dairy Belle, Inc. v. Freeland, 175 Kan. 344, 264 P.2d 894 (1953); and Ash v. Gibson, 146 Kan. 756, 74 P.2d 136 (1937). We will therefore proceed to consider K.S.A. 19-101a as amended in 1983.
First, we must determine whether K.S.A. 1983 Supp 19-101a is constitutional. Article 2, section 17, of the Kansas Constitution was amended on November 5, 1974, when the proposed revision of that article was adopted by the people of Kansas at the general election. Section 17 in its present form provides that: “All laws of a general nature shall have a uniform operation throughout the state . . . .” Deleted from the constitution but contained in earlier versions of section 17 was the phrase, “and in all cases where a general law can be made applicable, no special law shall be enacted.” Justice Prager discussed the history of article 2, section 17, and fully described its present-day scope in Stephens v. Snyder Clinic Ass’n, 230 Kan. 115, 123-127, 631 P.2d 222 (1981). Article 2, section 17, of our constitution no longer contains the special law prohibition. Ullrich v. Board of Thomas County Comm’rs, 234 Kan. 782, 676 P.2d 127 (1983). The new enactment may have been engendered by the Lyon County action, but it operates uniformly throughout the state: It applies to all boards of county commissioners, and it forbids any county from exempting itself from either the municipal or the community college out-district tuition act. The new act does not violate our present article 2, section 17.
Next, defendant contends that K.S.A. 13-13a26 and K.S.A. 1982 Supp. 71-301 are unconstitutional because chapter 282 violates article 2, section 16, of the constitution, which provides that “[n]o bill shall contain more than one subject . . . .” As our summary above shows, the sections of the bill are concerned with a single subject — the financing of present or future community colleges and municipal universities. It does not deal with those state institutions of higher learning which are under the board of regents. On the contrary, it deals only with those institutions of post-high school education whose primary support comes not from the entire state, but from smaller taxing subdivi sions, i.e., cities or counties. Defendant’s argument is primarily based on the contention that chapter 282, section 15 treats the right of community colleges or municipal universities to enter into agreements with state agencies for the providing of instruction and for the determination of the amount to be paid for such instruction, and that the section’s further direction that no out-district tuition shall be based upon instruction provided under an agreement with a state agency is “merely peripheral.” This is not so; the legislature was simply authorizing state agencies to enter into contracts to pay for instruction in certain cases. Once these contracts are authorized, the question of whether the student’s county of residence is still liable for out-district tuition necessarily arises. The legislature answered the question: When the state is making a direct contribution to the post-secondary institution, the student’, s county of residence is not liable for out-district tuition. The entire subject matter of section 15 deals, as does the rest of the act, with the matter of financing community colleges and municipal universities. The act does not offend article 2, section 16.
Defendant also contends that the fact that the legislature consolidated several bills into chapter 282 at the close of the legislative session is somehow suspicious. There is absolutely no indication, however, that a matter of legislative merit was tied to an unworthy matter or that matters having no relation to each other were intermixed. No legislative history or extrinsic evidence of how the act evolved is necessary or relevant where the act contains no unrelated or unworthy matters and is clear on its face. We find no merit to defendant’s attack on chapter 282 of the Laws of 1982, and we hold that chapter to be constitutional.
As we noted in Nitchals v. Williams, 225 Kan. 285, Syl. ¶ 1, 590 P.2d 582 (1979), it is a general rule of statutory construction that a statute will operate prospectively unless its language clearly indicates that the legislature intended that the statute operate retrospectively. Such is the case here. The legislature clearly intended that chapter 92 of the Laws of Kansas for 1983, and particularly section 1 thereof, operate retrospectively. The 1983 act nullifies Lyon County charter resolutions Nos. 18 and 19, and any similar resolutions which may have been enacted by other county boards. As we noted earlier, county home rule has no constitutional basis but is dependent upon legislation. The leg islature has spoken and has specifically denied to counties the authority to avoid paying the out-district tuition required by K.S.A. 13-13a26 and K.S.A. 1982 Supp. 71-301. We know of no reason why the legislature cannot so limit county home rule. Chapter 92 of the Laws of 1983 is, in our opinion, a valid enactment.
Defendant’s challenge to K.S.A. 13-13a26 and K.S.A. 1982 Supp. 71-301 is based upon the fact that as presently enacted they were a part of chapter 282 of the 1982 laws, and defendant contends that the entire chapter is unconstitutional. It makes no separate claim as to the constitutional invalidity of K.S.A. 13-13a26 and K.S.A. 1982 Supp. 71-301. We have dealt with defendant’s claim of the constitutional invalidity of the 1982 act and find the argument to be without merit.
Finally, defendant claims that the community colleges are acting outside the public policy of the state in that they have exceeded the powers granted them by the legislature or are not complying with expressed legislative goals. The legislature has provided by statute, K.S.A. 71-802, that the state board of education may take action any time it finds that a community college has failed to comply with the community college act, any other statute, or any rule or regulation adopted by the state board. The action of the state board in granting, denying or withdrawing approval of a community college is expressly made subject to legislative review.
We conclude that the county cannot challenge the community colleges’ compliance with the law in the fashion here asserted, and that the county does not have standing to raise this issue. The appropriate avenue of challenge, if any, is through the state board of education. We see no reason to permit every county required to pay out-district tuition to challenge the manner of operation and degree of compliance with law of each of the community colleges. This would unnecessarily invite litigation when such claims should be heard by the central authority designated by the legislature to hear them.
Defendant raises numerous other issues but none are dispositive of this appeal. In light of the conclusions announced herein, the trial court did not err. The judgment is affirmed. | [
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The opinion of the court was delivered by
McFarland, J.:
Plaintiff Gregory C. Halford, a Topeka police officer, was suspended on December 17, 1980, for 15 days without pay by the defendant City’s Chief of Police Fred Howard. The suspension was entered without a hearing. At the time of the suspension, the chief of police sent a letter to the defendant Topeka Police and Fire Department Civil Service Commission asking for plaintiff s termination and the Commission to continue plaintiff s suspension until it issued its final order. The Commission issued no order continuing the suspension in the interim period. Hearing was had on the merits of the charges and the Commission issued its order on February 12,1981, demoting plaintiff one rank and suspending plaintiff for 90 days without pay. Plaintiff did not work for the police department and was not paid for the interim period between the expiration of the 15-day suspension and the time the Commission issued its final order, a period of approximately 45 days. The Commission credited plaintiff with these days he had been off work without pay, which left approximately 45 days of the Commission’s 90-day suspension to be served (which has since been satisfied). Plaintiff appealed to the district court which held the demotion was lawful, but the two suspensions without pay (totalling 105 days) were unlawful, thereby entitling plaintiff to 105 days back pay. Defendants City and Civil Service Commission seek appellate review of the judgment of the district court.
The facts giving rise to disciplinary actions being taken against Officer Halford may be summarized as follows. Plaintiff was a corporal with the traffic safety unit of the Topeka Police Department at all times in question. Additionally, he served extra shifts (for additional pay) in the specially funded Alcohol Safety Action Project (ASAP). Officer Halford usually worked the night shift and his assignment involved being on the streets alone in a police vehicle.
On November 27, 1980, a notice appeared in the Topeka Capital-Journal stating Officer Halford was the defendant in an action filed by the State of Kansas seeking child support. This notice prompted an investigation by a Topeka Police Department internal affairs officer. The following uncontroverted facts were disclosed. Officer Halford was married. Officer Halford had admitted paternity of a child born April 7, 1980, to Carol H., an unmarried woman (Officer Halford had acknowledged paternity in a sworn “Acknowledgement of Paternity” executed on November 25, 1980, and filed in the support action the same day). Carol H. was, at all time pertinent hereto, a PBX operator with the Topeka Police Department. Additionally, the investigation revealed Officer Halford made many trips in uniform to the residence of Carol H. while he was on duty. In any event, when Chief of Police Fred Howard was advised of the results of this investigation, he issued his order suspending plaintiff for 15 days without pay and sought his termination by the Civil Service Commission, all as previously noted. Other facts will be stated as are necessary in the consideration of particular issues.
The first issue is whether the district court had jurisdiction to review the orders of the Topeka Police and Fire Department Civil Service Commission and the Police Chief relative to the discipline of Officer Halford. This issue is actually a three-pronged challenge to jurisdiction. First, appellants contend plaintiff s failure to plead a jurisdictional basis for his appeal to the district court rendered the appeal fatally defective. We do not agree. It is agreed there is no statute specifically authorizing the appeal herein. Therefore, the appeal to the district court came under K.S.A. 60-2101(d) which provides:
“(d) A judgment rendered or final order made by an administrative board or officer exercising judicial or quasi-judicial functions may be reversed, vacated or modified by the district court on appeal. 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.”
The appeal filed does not specifically state it is being taken pursuant to K.S.A. 60-2101(d). However, the pleadings filed clearly show it is an appeal rather than an attempted original action. K.S.A. 60-2101(d) is the only statute under which the appeal herein could have been taken. The notice of appeal was filed within the statutory 30-day period. We conclude, under the circumstances herein, the failure specifically to plead the appeal was being taken pursuant to K.S.A. 60-2101(d) did not deprive the district court of jurisdiction to hear the matter.
Appellants herein next contend Officer Halford’s appeal to the district court was never perfected and should have been dismissed. This assertion is predicated upon the fact Officer Hal-ford filed his notice of appeal on February 19, 1981 (the date being erroneously asserted by appellants as February 12, 1981), but did not cause copies of the proceedings appealed from to be filed until March 12, 1981. Appellants contend this is not in compliance with K.S.A. 60-2101(d) which requires copies of the proceedings appealed from to be filed with the clerk of the district court. On the same day Officer Halford filed his appeal, his attorney requested copies of the proceedings before the Commission. We conclude the filing of the copies of the proceedings within a month of the time the order was filed and within three weeks of the filing of the appeal is in compliance with the requirements of K.S.A. 60-2'101(d).
Finally, appellants contend Officer Halford’s notice of appeal to the district court was void for inadequacy. The notice of appeal clearly specifies what order is being appealed and to whom the appeal is being taken. This point is also without merit.
After considering all jurisdictional challenges asserted by appellants herein, we conclude the district court had jurisdiction to hear Officer Halford’s appeal.
The second issue on appeal is whether the district court erred in holding the police chief s 15-day suspension of Officer Hal-ford without pay was unlawful.
The Code of tire City of Topeka § 2b-233 (1975), now codified as § 31-203 (1981), states:
“Departmental Regulations. The head of any department may formulate in writing reasonable administrative regulations for the conduct of the department which shall be available to all departmental employees; Provided, that nothing herein shall be construed as granting any department authority to adopt regulations in violation of, or in conflict with, personnel regulations as set out in Chapter 2b, Code of the City of Topeka, 1970, and amendments thereto. (Ord. 13191, § 2, 1-10-72.)” (Emphasis supplied.)
The Code of the City of Topeka § 2b-235 (1975), now codified as § 31-309 (1981), provides:
“[Disciplinary Action]; Suspension; Discharge. Employees who wilfully violate city personnel rules and/or departmental regulations may be suspended without pay for not to exceed IS calendar days for any given offense; Provided, however, that no person shall be suspended until he first has been given a reprimand in writing warning him that continuation or repetition of the offense will result in suspension or discharge; Provided further, that certain offenses, including but not limited to, drinking on the job, assault, wilful refusal to obey an order or offenses of a like nature shall be cause for immediate suspension and filing of charges before the Civil Service Commission. (Ord. 13191, § 4, 1-10-72.)” (Emphasis supplied.)
Finally, the Code of the City of Topeka § 21-106(c) (1975), now codified as § 34-21(c) (1981), states:
“Duty Manuals; Regulations. The Chief of Police may, from time to time, prepare and issue duty manuals for the members of the Department and ivith the approval of the Mayor, the Board of Commissioners or the Civil Service Board, prescribe rules and regulations which pertain to the conduct of the Police Department and performance of duties of its members. The regulations shall fix and establish lines of authority and designate ranking officers to be in charge of the Department in the absence of the Chief. Any police officer may be required at any time, whether on or off duty, to perform the duties required of him by law or ordinance or orders of the Chief. (R. O. 1947, 19-104; K.S.A. 13-1808, 13-2213.)” (Emphasis supplied.)
The Topeka Police Department Duty Manual (R-000-1) submitted to and approved by the mayor and city commission on April 13, 1976, pursuant to Code of the City of Topeka § 21-106(c) (1975), provides in pertinent part:
“III. PENALTIES
“B. A violation of any General Policy, General Rule and Regulation or Procedural Instruction may result in a penalty of:
1. A written reprimand being placed in the employee’s personnel jacket or;
2. Demotion in rank - Utilized only when the employee’s deficiency is a result of not meeting the present job requirements;
3. Suspension without pay up to a maximum, of fifteen (IS) days at the option of the Chief of Police.
a. Shift Commanders have the authority to suspend for one (1) day.
b. Any action above the Shift Commander’s authority for disciplinary reasons must be approved by the Division Commander and the Chief of Police.
4. Infractions which warrant a penalty that exceeds the Chief s authority will be presented to the Civil Service Board in the form of charges by the Chief of Police for Civil Service Board action.
a. Board action could result in up to ninety (90) day suspension, demotion in rank, or dismissal from the service.” (Emphasis supplied.)
The Topeka Police and Fire Department Civil Service Commission specifically found:
“[T]he Rfespondant [sic] [Officer Halford] did violate the rules and regulations governing the operation of the Topeka Police Department and is guilty of the following offenses as charged in Chief Howards [sic] letter of December 17, 1980.
1. Adultry [sic]
2. Failure to discharge the faithful and diligent performance of his duties due to the unauthroized [sic] activities of a personal nature.
3. Improper [sic] and misuse of a police vehicle in pursuit of his personal activities as refered [sic] to in (2) above.
“The Commission further finds that violations as determined by us and stated above constitute conduct unbecoming an officer, and that such actions tend to bring discredit and tarnish the image that the public has a right to expect of the Topeka Police Department.
“The Commission further finds that Respondant [sic] is not guilty of the offense as charged of failure to obey a legal order issued by his immediate supervisor.”
The Police Department Duty Manual (R-000-1) was adopted and approved by the city commission pursuant to the Code of the City of Topeka § 2b-233 and § 21-106(c) (1975). Section 2b-233 specifically prohibits any department head from formulating regulations in violation of Chapter 2b which includes § 2b-235 limiting suspensions.
It should also be noted the Rules and Regulations of the Police and Fire Department Civil Service Commission of the City of Topeka, Kansas (the commission being established pursuant to K.S.A. 13-2203 et seq.) provide:
“Section 25. The Chief of Police or the Chief of the Fire Department may suspend an employee alleged to have committed offenses including, but not limited to, drinking on the job, assault, wilful refusal to obey an order or offenses of a like nature. Immediately upon issuing such an order of suspension the Chief of the Police Department or the Chief of the Fire Department shall cause formal sworn charges to be filed with the Secretary of the Civil Service Commission as provided herein.” (Emphasis supplied.)
The offenses for which the police chief may suspend an officer under section 25 of the civil service rules are identical to those set forth in the Code of the City of Topeka § 2b-235 (1975).
Defendant City contends the Police Chief s authority to suspend arises from R-000-1, unfettered by the requirements of section 2b-235 of the Code of the City of Topeka.
Section 2b-235 is an ordinance of the City of Topeka. This court has long recognized, as applied to city governing bodies, an ordinance prescribes some permanent rule of conduct of government, to continue in force until repealed. An ordinance is distinctively a legislative act. Benson v. City of De Soto, 212 Kan. 415, Syl. ¶ 1, 510 P.2d 1281 (1973). An ordinance is the equivalent of a municipal statute. Black’s Law Dictionary 989 (5th ed. 1979). Being the equivalent of a statute, § 2b-235 is superior to city departmental regulations. While an administrative regulation may have the force of law, Jones v. The Grain Club, 227 Kan. 148, 150, 605 P.2d 142 (1980), it is always subservient to statutes. Recently in Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 673 P.2d 1126 (1983), this court observed rules and regulations of an adminis trative agency, to be valid, must be within the statutory authority conferred upon the agency. Those rules and 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. 234 Kan. at 378-79. See also Wesley Medical Center v. Clark, 234 Kan. 13,18-19, 669 P.2d 209 (1983); Woods v. Midwest Conveyor Co., 231 Kan. 763, 771, 648 P.2d 234 (1982).
We conclude the district court did not err in holding the police chief s authority to suspend under R-000-1 was subject to and limited by the Code of the City of Topeka § 2b-235 (1975).
It is uncontroverted no written reprimand was issued to Officer Halford prior to his 15-day suspension. Therefore, in order to be valid, the suspension must come within the “certain offenses” exception of § 2b-235, reproduced for convenience, as follows:
“[Cjertain offenses, including but not limited to, drinking on the job, assault, wilful refusal to obey an order or offenses of a like nature shall be cause for immediate suspension and filing of charges before the Civil Service Commission.”
The district court concluded the “certain offenses” proviso of § 2b-235 contemplates a situation in which an immediate suspension is necessary to remove an officer whose presence on the force poses a serious threat to discipline or the police department’s ability to function effectively. In Parton v. City of Topeka, 1 Kan. App. 2d 18, 561 P.2d 885 (1977), it was held adultery was not one of the “offenses of a like nature” for which immediate suspension was authorized by § 2b-235. The district court found none of Officer Halford’s improper activities were “offenses of a like nature” so as to permit immediate suspension by the police chief under § 2b-235. That is, Officer Halford’s presence on the force did not pose a serious threat to discipline or the police department’s ability to function effectively. The district court then concluded the 15-day suspension was, accordingly, unlawful.
We believe the “certain offenses” proviso clearly relates to misconduct which seriously impairs the officer’s ability to function effectively in the discharge of his official duties or which otherwise jeopardizes the discipline or operation of the police department. We conclude that the district court did not err in finding Officer Halford’s misconduct was not within the “certain offenses” proviso of § 2b-235 and that, accordingly, his 15-day immediate suspension without pay was unlawful.
The third issue is whether the district court erred in holding the order of the Topeka Police and Fire Department Civil Service Commission suspending Officer Halford without pay for 90 days was unlawful.
It is conceded Police Chief Howard had no authority to terminate Officer Halford. Chief Howard believed termination was justified and duly requested the Topeka Police and Fire Department Civil Service Commission to terminate Officer Halford after a hearing. Chief Howard further requested the Civil Service Commission to suspend Officer Halford pending the issuance of a final order. The Commission did not issue the requested interim suspension order.
The rules and regulations of the Civil Service Commission provide:
“Section 26. The Board shall take jurisdiction over all complaints alleging misconduct or failure to perform duties constituting grounds for demotion, dismissal or removal, or suspension.
“Section 31. If the Board finds by a propounderance [sic\ of the evidence that an act of misconduct or failure to perform duties has been committed, the Board may suspend without pay for a period of not more than ninety (90) days, demote in rank, dismiss or remove from the department. If the Board finds that said acts have not been committed, the employee shall be restored to duty with no loss of pay. The action of the Board shall be final.” (Emphasis supplied.)
The district court found the Commission’s findings of improper conduct on the part of Officer Halford were supported by substantial competent evidence and the Commission’s order demoting the officer was within the scope of its authority and therefore lawful. No appeal has been taken from this determination. The district court then struck down the Commission’s order for a 90-day suspension on the grounds it violated Officer Halford’s constitutional right of due process. The district court’s rationale in reaching this curious result is difficult to follow. It appears, however, the district court believed Police Chief Howard’s improper 15-day suspension somehow vitiated the suspension order subsequently entered by the Civil Service Commission. The district court seems to have utilized the rationale of the “fruit of the poisonous tree” doctrine applicable to exclusion of improperly acquired evidence in criminal cases. In invalidating the 90-day suspension order the district court appears to have been influenced by the fact the Civil Service Commission, in essence, gave Officer Halford credit on the 90-day suspension for the 45-day period he was off work, without pay, between the expiration of the initial 15-day suspension and the entry of the Civil Service Commission’s final order on February 12, 1981.
Officer Halford’s 90-day suspension without pay by the Civil Service Commission occurred after a full hearing where full due process rights were afforded the officer. We fail to see how the improper 15-day suspension imposed by the police chief in any way limited the Civil Service Commission’s authority to impose a 90-day suspension without pay. The order of the Commission was not the result of an appeal from a disciplinary order of the police department. The matter was before the Commission on the police chief s request the officer be terminated. Only the Commission had authority to terminate or suspend for 90 days. The district court did not find the 90-day suspension was an excessive or arbitrary penalty for the officer’s misconduct.
We conclude the final order of the Civil Service Commission suspending Officer Halford for 90 days without pay was a valid order. The fact the Commission credited Officer Halford for the 45 days he had not worked and had not been paid between the expiration of the 15-day police chief s order of suspension and the final order of the Civil Service Commission was not improper and in no way invalidated the 90-day suspension order. We therefore conclude the district court erred in holding the 90-day suspension order entered by the Civil Service Commission was unlawful.
The judgment of the district court is affirmed in part and reversed in part with directions to enter judgment in accordance with the opinion. | [
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The opinion of the court was delivered by
Herd, J.:
This is an appeal from an order of the Edwards County District Court which found the Kansas Corporation Commission (KCC) to have acted unlawfully and unreasonably in setting the allowable of oil to be produced from a well owned by appellee.
Robert-Gay Energy Enterprises, Inc., appellee, owns an oil and gas lease in Edwards County on a three-acre tract. It desired to drill an oil well on the tract but was restricted by KCC regulations which prohibit the drilling of wells nearer than 330 feet from any lease or unit boundary line without prior approval of the KCC. Appellee filed an application with the KCC on January 25, 1983, seeking commission authority to drill its well nearer than 330 feet to a lease line. Three interested parties protested the application, causing it to be set for hearing.
Appellee then sought to comply with the alternative provisions of K.A.R. 1983 Supp. 82-3-108 which provide an exception to the 330-foot restriction may be granted where a waiver has been signed by all offset operators and unleased mineral owners. To accomplish this, appellee acquired waivers of objection from all offset operators and unleased mineral owners whose lease lines were nearer than 330 feet to the well. This group included two of the three parties who had initially protested the application.
One unleased mineral owner who filed an objection with the KCC refused to withdraw his objection. The owner, Welton Parker, had originally agreed with appellee to sign a waiver of objection, but later breached the agreement after appellee had commenced drilling preparations on its lease. As a part of the agreement with Mr. Parker appellee had proposed to set its well within 330 feet of Mr. Parker’s property line. When Mr. Parker refused to withdraw his objection, the location of the well was moved to a distance which appellee maintains is further than 330 feet from Parker’s property line.
Prior to the scheduled hearing on the exception, appellee drilled its well. The Affidavit of Completion, filed by appellee’s joint-venture partner, Sunwest Exploration Company, indicates the drilling of the well was commenced on March 24, 1983, and completed to a total depth of 4,600 feet on March 30, 1983. The well was drilled without approval of the KCC.
The issue as to whether authority to drill the well should be granted by the Commission to the appellee was heard by a special hearing examiner on April 4, 1983. Evidence was presented at the hearing indicating that due to financial considerations, the appellee decided to proceed with the drilling of the well during the pendency of the hearing procedure. The Commission issued an order on May 5, 1983, whereby the appellee was granted authority to drill the well and produce a total of five barrels of oil per day from the well. A temporary bonus allow able, which is an additional production amount granted to some wells, was denied. The reason for the denial was based upon the Commission’s findings that there was uncertainty as to the distance of the well from the remaining objector’s lease line and because of the appellee’s willful violation of the Kansas statutes and the Commission’s regulations.
A petition for rehearing was filed with the KCC by appellee on May 16, 1983. On May 23,1983, appellee filed an application for a temporary restraining order and preliminary injunction with the United States District Court for the District of Kansas, in Wichita. The application for a temporary restraining order and preliminary injunction was denied. The action was then appealed to the United States Court of Appeals for the 10th Circuit on May 26, 1983. At the time of oral argument in this case the parties were awaiting a decision from that appeal.
The KCC declined to act on appellee’s petition for rehearing. Appellee then filed a petition for judicial review and a restraining order and temporary injunction with the state district court. The district court upheld the KCC’s May 5, 1983 order in part and remanded it in part.
The court ruled the KCC’s order granting a five-barrel-a-day basic allowable was reasonable and therefore affirmed. The court further ruled the denial of a daily bonus allowable because of appellee’s violations of the Commission’s regulations amounted to a taking of appellee’s property and was arbitrary and capricious. The court also ruled the Commission did not have discretion to punish an operator for regulation violations by denying a daily bonus allowable. The court ruled instead that operators who violate KCC regulations should be punished by the imposition of a monetary penalty pursuant to K.S.A. 55-164. The district court remanded to the KCC the denial of the daily bonus allowable.
After a hearing on the matter, the KCC issued an order granting the appellee authority to produce a total of 11.1 barrels of oil per day, as a basic allowable. The KCC continued to deny a bonus allowable.
Appellee again appealed to the district court. On September 6, 1983, the court ruled a monetary amount should be established to punish the appellee for regulation violations if the KCC intended to punish the appellee. The court further ordered a bonus allowable should be considered without regard to the punishment intended for the appellee.
This appeal was then filed by the KCC.
The sole issue is whether the KCC’s order limiting the production at appellee’s well is reasonable and lawful.
Appellant KCC first asserts the trial court abused its authority on appeal and substituted its judgment for that of the KCC. Appellant argues the KCC has broad discretion in its regulatory authority which will be upset only when the KCC acts unlawfully or unreasonably. Appellant’s support for this statement is threefold.
First, under the statutes granting power to the KCC (K.S.A. 66-101 et seq.), it is stated:
“[Proceedings for review [of KCC decisions] shall be forthe purpose of having the lawfulness or reasonableness of the original order . . . determined, and the court hearing said cause shall have the power to vacate or set aside such order ... on the ground that such order ... is unlawful or unreasonable.” K.S.A. 66-118d.
Thus, the statute which defines the power of the KCC clearly establishes the limited scope of review of appellate courts in these cases.
Second, appellant cites several Kansas cases which determine the scope of an appellate court’s review in administrative agency decisions. The scope of review is limited to three questions:
“(1) Was there substantial evidence to provide a reasonable basis for the conclusion reached by the administrative body? (2) Was the action taken by the administrative board unreasonable, arbitrary, fraudulent or oppressive? (3) Was the action taken within the authority, or competence, of the administrative agency?” Morra v. State Board of Examiners of Psychologists, 212 Kan. 103, 106, 510 P.2d 614 (1973).
See also Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P.2d 828 (1968).
Third, appellant cites several cases dealing specifically with the scope of review in KCC cases. This review is often stated as allowing a determination only of the lawfulness and reasonableness of the KCC actions. Support for this review is based upon K.S.A. 66-118d. See Central Kansas Power Co. v. State Corporation Commission, 221 Kan. 505, 561 P.2d 779 (1977); Central Kansas Power Co. v. State Corporation Commission, 206 Kan. 670, 482 P.2d 1 (1971); Kansas Transport Co., Inc. v. State Corporation Commission, 202 Kan. 103, 446 P.2d 766 (1968); Graves Truck Line v. State Corporation Commission, 195 Kan. 82, 402 P.2d 757 (1965); Midwest Gas Users Ass'n v. Kansas Corporation Commission, 3 Kan. App. 2d 376, 595 P.2d 735, rev. denied 226 Kan. 792 (1979).
Appellant’s argument is well supported but it must be squared with K.S.A. 55-101 et seq., which applies specifically to cases involving the KCC in oil and gas regulation. The KCC’s duties in this area are stated in K.S.A. 55-603:
“The state corporation commission is authorized and it shall be its duty, to so regulate the taking of crude oil from any pool within the state of Kansas as to prevent waste therein or, independently of waste, to prevent the inequitable or unfair taking of crude oil therefrom by any person and to prevent unreasonable discrimination therein [correlative rights]; and said commission is further authorized, and it shall be its duty, to prevent unreasonable discrimination in favor of any one pool as against any other pool or pools in this state in the allocation of allowable production among such pools.”
K.S.A. 55-606 defines the court’s scope of review in oil and gas cases:
“Any rule, regulation, order or-decision of the commission may be superseded by the district court upon such terms and conditions as it may deem proper.
“. . . The court shall not be bound by any finding of fact made by the commission.
“The authority of the court shall be limited to a judgment either affirming or setting aside in whole or in part the rule, regulation, order or decision of the commission.”
However, we have construed K.S.A. 55-606 to cover the same scope as K.S.A. 66-118d. In Wakefield v. State Corporation Comm., 151 Kan. 1003, 101 P.2d 880 (1940), we held K.S.A. 55-606 “in providing that the district court shall not be bound by any finding of fact made by the commission, clearly indicates it was intended the district court should review the record before the commission in order to make its own independent findings of fact.” 151 Kan. at 1007. In Colorado Interstate Gas Co. v. State Corporation Comm., 192 Kan. 1, 386 P.2d 266 (1963), cert. denied 379 U.S. 131 (1964), we stated:
“The administration of the law with respect to the production and conservation of natural gas is classified in that recognized area of regulation which necessitates the authority to exercise a considerable degree of discretion. The legislature delegated that authority to the Commission and with great latitude for the exercise of discretion through the promulgation of rules, regulations, orders, and decisions.” p. 14.
“What facts are to be considered and the relative weight to be accorded them are matters left to the Commission’s discretion. Unless the determination is arbitrarily or capriciously made without supporting evidence, the courts cannot interfere and substitute their judgment for that of the Commission. The question for the reviewing court is the power of the Commission to make the order, not its wisdom, propriety or expediency in having made it.” p. 18.
We conclude, therefore, the rule for appellate review set out by this court in Foote and Morra is applicable to this case.
The KCC conducted two evidentiary hearings with regard to granting appellee authority to drill its well closer than 330 feet to Parker’s property line. It also heard evidence on the amount of allowable production to be granted. The evidence was inconclusive on the location of the well site but was conclusive that appellee had violated the laws of Kansas and the regulations of the KCC. The violations included drilling a well without prior approval, completing the well without the supervision of KCC staff and failing to file completion information with the Conservation Division of the KCC. The KCC was justified in punishing appellee.
The question is what kind of punishment the KCC may impose for such violations. K.A.R. 1983 Supp. 82-3-110 states in pertinent part:
“(a) Any well drilled or being drilled in violation of an order or rule of the commission in effect at the time drilling commences shall be considered to be an unlawful location. Such a well shall be presumed to be in violation of correlative rights and to constitute waste. ...
“(b) . . . [T]he commission may order the well to be permanently capped or plugged and abandoned ... or it may permit production at a reduced rate to ensure protection of correlative rights and the prevention of waste.”
The district court found the KCC’s refusal to grant Robert-Gay a temporary bonus allowable constituted the taking of property without due process of law. This conclusion is incorrect. The production of oil and gas is subject to regulation by the Legislature. K.S.A. 55-604 provides:
“(A) The commission shall have and is hereby given jurisdiction and authority over all matters involving the application and enforcement of this act [act regulating production of petroleum oil, etc.], and shall have authority to make and enforce rules, regulations and orders for the prevention of waste as herein defined and for carrying out and enforcing each and all of the provisions of this act . . . .”
K.S.A. 55-704 provides for the KCC’s rule-making authority:
“The commission shall promulgate such rules and regulations as may be necessary for the prevention of waste as defined by this act, the protection of all water, oil or gas-bearing strata encountered in any well drilled in such common source of supply ... as the commission may find necessary and proper to carry out the spirit and the purpose of this act . . . .”
In Bay Petroleum, Corporation v. Corporation Commission, 36 F. Supp. 66 (D. Kan. 1940), the court ruled:
“Whether the [statute regulating production of oil and gas] is wise, or based upon sound economic theory, or is the best means of preventing physical or economic waste, or of protecting correlative rights of producers of oil, rest[s] exclusively with the legislature and is of no concern to the court, if the means selected have a real and substantial relation to the objects sought to be attained, and are not unreasonable, arbitrary, or capricious. . . . The sole question within the range of judicial inquiry is whether the statute and the orders entered under it transcend constitutional limitations.” p. 70.
We find nothing in K.S.A. 55-604 or K.S.A. 55-704 or K.A.R. 1983 Supp. 82:3-110 which transcends constitutional limitations.
That appellee had violated KCC regulations is undisputed. Ry virtue of the violations, appellee is presumed to be in violation of correlative rights so as to constitute waste. Therefore, the KCC order setting the allowáble and denying appellees the bonus is lawful and reasonable. However, the presumption of a violation of correlative rights and the commission of waste is a rebuttable presumption. In this case appellee can rebut the presumption by complying with all statutes and KCC regulations and satisfying the KCC its oil well is located more than 330 feet from Parker’s property line. Thereafter, appellee is entitled to take its fair and equitable portion of the production from this pool pursuant to K.S.A. 55-604.
The judgment of the trial court is reversed.
Holmes, J., not participating. | [
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The opinion of the court was delivered by
Lockett, J.:
Elaine Hicks Kelley, plaintiff, appeals from a summary judgment in favor of Commercial National Bank (Commercial). Commercial cross-appeals on the denial of a deficiency judgment against the plaintiff.
In February, 1980, the plaintiff, Elaine Hicks Kelley, purchased a new 1980 Toyota Corolla. A note for $7,836.48 was executed by Kelley. The note was subsequently assigned to Commercial. Under the terms of the note, Kelley was to insure the car. Kelley allowed the collision insurance on the car to expire. Kelley maintains she never received notice the insurance was terminated. Commercial did receive notice and failed to apprise her of it.
In June, 1981, after the insurance had expired, Kelley was involved in an automobile accident while driving the Toyota. The car was towed to Clete’s Auto Body (Clete’s) at the direction of Kelley’s husband, and repaired at a cost of $3,156.70. Kelley informed Cl.ete’s the car was uninsured and she could not pay for the repairs. Clete’s notified Commercial it had possession of an uninsured vehicle. Clete’s asserted its mechanic’s lien on the vehicle for repairs performed. The car would be sold by Clete’s to satisfy the lien unless Commercial paid for the repairs. November 4, 1981, Commercial paid Clete’s $3,156.70 and took possession of the car pursuant to its security agreement. December 14, 1981, Commercial notified Kelley it intended to sell the car if she did not redeem it. Kelley retained counsel who responded by letter December 23, 1981, requesting Commercial not sell the car until the parties had an opportunity to negotiate a settlement.
The discussions were not fruitful. On February 10, 1982, Kelley filed this action. Kelley claimed Commercial (1) wrongfully repossessed the automobile, and (2) was negligent in failing to protect its security interest in plaintiff s car after receiving notice of the lapse of collision insurance coverage. The petition was entitled “Petition for Damages and Injunctive Relief.” Kelley prayed for recovery of actual damages, punitive damages, certain statutory penalties, costs, attorney’s fees, and for such other relief as may be just
In a letter dated March 17, 1982, Kelley’s attorney proposed a settlement which included the immediate return of the car to Kelley. The offer was not accepted. May 7, 1982, Commercial filed a motion requesting the court to allow it to sell the automobile. After a hearing on June 11, 1982, the court filed its order July 13, 1982, permitting the car to be sold. The order contained this statement: “That defendant may proceed to sell the 1980 Toyota Corolla but that by sustaining defendant’s motion, the court is not effecting in any way the claim of plaintiff that defendant has, prior to this date failed to proceed according to Article 9 of the Uniform Commercial Code.” Commercial sold the car on August 16, 1982. After the sale, the balance remaining on the loan was $136.31 plus interest, plus the $3,156.70 the bank had advanced for the repairs.
Commercial and Kelley filed motions for summary judgment. Kelley argued Commercial failed to resell the car within the 90-day limit prescribed in K.S.A. 84-9-505(1). The trial court heard arguments on October 1, 1982, and filed a journal entry on October 15, 1982. The trial court sustained Commercial’s motion finding Kelley was in default on the note for failing to keep the insurance in effect and Commercial had the right to repossess the car. The court granted Commercial judgment for $3,156.70 (the amount for repairs), but denied judgment for the balance of $136.31 due on the note after sale of the car.
Kelley appeals the court’s failure to find a violation of K.S.A. 84-9-505(1), and failure to award the statutory penalty provided by K.S.A. 84-9-507(1). Commercial cross-appeals the trial court’s denial of its claim for the deficiency of $136.31.
Kelley claims Commercial violated K.S.A. 84-9-505(1), which provides:
“If the debtor has paid sixty percent (60%) of the cash price in the case of a purchase money security interest in consumer goods or sixty percent (60%) of the loan in the case of another security interest in consumer goods, and has not signed after default a statement renouncing or modifying his rights under this part a secured party who has taken possession of collateral must dispose of it under section 84-9-504 and if he fails to do so within ninety (90) days after he takes possession the debtor at his option may recover in conversion or under section 84-9-507(1) on secured party’s liability.”
Where 60% of the cash sales price in the case of a purchase money security interest in consumer goods or 60% of the loan in the case of a security interest has been paid, a secured party in possession may not, after default, retain the collateral in satisfaction of the obligation. K.S.A. 84-9-505(1) provides protection to the debtor who has purchased consumer goods and has built up substantial equity in the goods by requiring the creditor to sell the goods within 90 days. Such a swift resale is intended to result in a greater sale price and a surplus above that which the debtor owes on the goods. Unless the defaulting party has signed a statement renouncing or modifying his rights, a secured party who has taken possession of the collateral must dispose of the collateral within 90 days.
Kelley argues Commercial violated K.S.A. 84-9-505(1) by failing to dispose of the car within 90 days after taking possession on November 4, 1981. The car was not sold by Commercial until August 16, 1982. K.S.A. 84-9-507(1) states the penalty for violation of K.S.A. 84-9-505(1) as follows:
“If it is established that the secured party is not proceeding in accordance with the provisions of this part disposition may be ordered or restrained on appropriate terms and conditions. If the disposition has occurred the debtor or any person entitled to notification or whose security interest has been made known to the secured party prior to the disposition has a right to recover from the secured party any loss caused by a failure to comply with the provisions of this part. If the collateral is consumer goods, the debtor has a right to recover in any event an amount not less than the credit service charge plus ten percent of the principal amount of the debt or the time price differential plus ten percent of the cash price.”
Kelley calculates the penalty at $2,565.39. See Charley v. Rico Motor Company, 82 N.M. 290, 480 P.2d 404 (Ct. App. 1971); Crosby v. Basin Motor Company, 83 N.M. 77, 488 P.2d 127 (Ct. App. 1971).
Commercial contends the letter sent by Kelley’s counsel December 23, 1981, constitutes a statement renouncing or modifying Kelley’s rights under K.S.A. 84-9-505(1). The letter, in part, stated:
“I would appreciate your either returning the vehicle to the Hicks’ or contacting LaVone Daily or myself at the above listed number to discuss this matter. In any event, we would appreciate your not taking any action to sell the above listed vehicle until we have had an opportunity to discuss this situation with you, since it is our opinion that you have not complied with the applicable Kansas statutory provisions for the repossession and default sale in this case.”
The letter does modify Kelley’s rights, but to what extent? Kelley only requested that the vehicle not be sold until the parties had an opportunity to discuss the situation. Kelley filed this action February 10, 1982, thereby notifying Commercial she was no longer in a talking mood.
Kelley claims the filing of her suit was not a renouncement or modification of her rights under K.S.A. 84-9-505(1). Kelley’s petition was entitled “Petition for Damages and Injunctive Relief,” but the petition did not specifically include a request that the defendant not sell the vehicle. Kelley cites the case of Marshall v. Fulton Nat. Bank, 145 Ga. App. 190, 243 S.E.2d 266 (1978). There plaintiff executed a note payable to defendant bank. Plaintiff defaulted after paying more than 60% of the loan; defendant accelerated the note to maturity and repossessed the automobile pledged as security. Plaintiff brought an action alleging an illegal conversion of the automobile. Plaintiff claimed defendant failed to sell the automobile within 90 days after repossession as required by the Code. The trial court held that the penalty provision of the Code was not available to plaintiff due to estoppel arising from the initiation of the action. The Court of Appeals of Georgia held the repossessing creditor had to comply with the ninety-day limitation of Ga. Code Ann. § 109A-9 — 505 [now Ga. Code Ann. tit. 11, § 9-505 (Michie 1982)], even though an action challenging the propriety of the repossession had been filed and was still pending. 145 Ga. App. at 192. The mere filing of a suit by a defaulting debtor is not a renouncement or modification of his rights under K.S.A. 84-9-505(1). The filing of the suit does not relieve the secured party who has taken possession of the goods from disposing of the goods as required by K.S.A. 84-9-505(1). It is the nature of the relief requested by the defaulting party in his suit that determines whether or not the defaulting party has renounced or modified his rights.
Commercial also points to a letter dated March 17, 1982, from the plaintiff s counsel proposing a settlement. That letter, in part, stated:
“My client would consider a settlement offer along the lines of (1) an immediate return of the automobile to her, (2) the bank pays the repair bill and (3) the bank pays her accrued attorney fees. If you are interested, please contact me and I will advise you what Mrs. Kelley’s accrued attorney fees are.”
Commercial argues Kelley, pursuant to K.S.A. 84-9-505(1), was renouncing or modifying her rights. Was the letter merely an offer for settlement? Was there a clear renunciation or modification of the plaintiffs statutory rights under K.S.A. 84-9-505(1)? The offer made would permit the defendant to return the car to the plaintiff as part of a settlement agreement.
After Commercial had repossessed Kelley’s car November 4, 1981, the trial court noted Kelley gave three indications of her desires:
(1) December 23, 1981, in a letter to Commercial, she requested return of the vehicle and asked Commercial not to take any action to sell the vehicle until the parties had discussed settlement.
(2) February 10, 1982, Kelley filed her petition for damages and injunctive relief requesting just and equitable relief.
(3) March 17,1982, Kelley’s attorney’s letter offered settlement if there was an immediate return of the automobile and other specified relief.
The trial court determined under K.S.A. 84-9-505(1) Kelley had signed a statement renouncing or modifying her rights. After Kelley’s renouncing or modifying her rights, Commercial was not required to dispose of the car within the 90-day limitation. Therefore, Commercial was not subject to liability under K.S.A. 84-9-507 for its failure to sell the car within 90 days after repossession. We agree with the findings of the trial court that Kelley had renounced or modified her rights and Commercial was not required to sell the car within 90 days of repossession.
Commercial cross-appealed the trial court’s refusal to grant a deficiency judgment against Kelley. Commercial claims it is entitled to the deficiency of $136.31 due on the note.
If Commercial violated K.S.A. 84-9-505(1) it is not permitted to recover any deficiency. Under K.S.A. 16a-5-103 a consumer is not liable for a deficiency judgment as a matter of law unless the repossessed creditor has disposed of the goods in good faith and in a commercially reasonable manner. Westgate State Bank v. Clark, 231 Kan. 81, 85, 642 P.2d 961 (1982). K.S.A. 16a-5-103(1) provides:
“This section applies to a deficiency -on a consumer credit sale of goods or services and on a consumer loan in which the lender is subject to defenses arising from sales (section 16a-3-405); a consumer is not liable for a deficiency unless the creditor has disposed of the goods in good faith and in a commercially reasonable manner.”
The Kansas Comment, 1973, No. 3, to the statute, states:
“Under subsection (1) the creditor’s right to a deficiency judgment may be snuffed out if he fails to comply with the default provisions of UCC article 9 or with the requirements of article 5 of this act in disposing of the collateral.”
Where there is a default in a secured transaction, the rights of the creditor and debtor are controlled by K.S.A. 84-9-501 et seq. Such rights may be changed by the Uniform Consumer Credit Code; K.S.A. 84-9-203(4) states a transaction subject to the Uniform Commercial Code may also be subject to the UCCC. Where provisions of the UCC and the UCCC conflict, the provisions of the UCCC shall control.
Where a secured creditor brings an action for a deficiency judgment after a sale of the collateral, the burden of proof as to the commercial reasonableness of the sale is on the creditor. Whether or not a sale of collateral by a secured creditor was conducted in a commercially reasonable manner is a question of fact to be determined by the trier of fact. Westgate State Bank v. Clark, 231 Kan. 81. The trial court determined that Commercial had proceeded in a commercially reasonable fashion and thereby was entitled to the deficiency. However, it further determined that Kelley’s insurance company bore the responsibility and should pay the deficiency even though not a party to the action. Such logic is incorrect. Where a creditor has proceeded under the UCC in a commercially reasonable fashion in the repossession and sale of a debtor’s automobile, the creditor is entitled to recover from the debtor any deficiency balance remaining on the installment note after the sale.
The trial court is affirmed as to the summary judgment against Kelley, and reversed and instructed to enter judgment on Commercial’s counterclaim against Kelley for $136.31.
The judgment is affirmed in part and reversed in part. | [
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The opinion of the court was delivered by
Lockett, J.:
The plaintiff, Credit Union of America (Credit Union), filed an action to set aside two conveyances of land it alleges were fraudulent. The conveyances involve two separate transactions. The trial court granted summary judgment against the plaintiff and it appeals. The named defendants in the action were Cecil Myers, Kenneth Myers, Loberta Myers and Doris Gilbert.
The first series of events began June 17, 1976, when Cecil Myers and his stepbrother, Kenneth Myers, formed a partnership. The partnership was formed to buy certain real property in Wyandotte County as an investment. The partnership agreement states:
“Contribution of Partners: The Partners contemplate personally borrowing Three Hundred Fifty Five Thousand and no /100ths Dollars ($355,000.00) to contribute to the Partnership for the purpose of developing a car dealership facility on the property described in Exhibit ‘A’ herein. Each Partner shall be liable for 50% of the loan, namely One Hundred Seventy Seven Thousand Five Hundred and no/100ths Dollars ($177,500.00). The loan shall be a mortgage on the Land described in Exhibit ‘A’ and Partner, Cecil Myers, shall further contribute the equity in said Real Estate at the time the mortgage loan is closed; said equity shall be valued at Seventy Four Thousand and no/100ths Dollars ($74,000.00). The Partners shall from time to time make additional contributions equal to their pro rata share, in accordance with their interest in the capital of the Partnership, of such capital as is necessary to hold and/or develop the Real Property in accordance with the purposes of the Partnership until the same is disposed of as agreed by the Partners.”
Cecil Myers was apportioned a 58 percent share of the partnership, and Kenneth Myers held a 42 percent share.
Cecil Myers owned part of the real estate the partnership planned to purchase. He conveyed this property on September 16,1976, to himself and Kenneth as joint tenants. The deed does not mention the Myers’ partnership. Cecil and Kenneth, as individuals, borrowed $350,000.00 from the Fidelity State Bank of Kansas City on September 23,1976. The loan was secured by a mortgage on the land conveyed on September 16, 1976. The two men had formed an automobile dealership corporation, Myers Buick-Opel, Inc., in June, 1976, and a building was constructed on the property and leased to the corporation on January 3, 1978. The lease was entered into “by and between CECIL MYERS AND KENNETH W. MYERS, both single persons, Lessors, and Myers Buick-Opel, Inc., Lessee.”
In 1977, criminal charges for commercial bribery were filed against Cecil Myers. Cecil was accused of having paid secret commissions or bribes to a loan officer employed by Credit Union in return for the loan officer’s approval of loan applications of customers of Myers Buick-Opel, Inc. In 1978, Cecil was convicted of commercial bribery. Buick Motor Division terminated the dealership agreement it had with Myers Buick-Opel, Inc. on November 15, 1978, because of the conviction of Cecil. The termination was effective in 60 days.
July 10, 1978, Credit Union filed a civil action against Cecil Myers seeking actual and punitive damages. Credit Union alleged that by paying its loan officer secret commissions for approving loan applications of customers of Myers Buick-Opel, Inc., Cecil Myers had conspired to defraud Credit Union and had tortiously intermeddled with Credit Union’s contract of employment with the loan officer.
In January, 1979, the property at 6336 State Avenue was leased to Chrysler Realty Corporation. The lease agreement did not expressly mention the Myers’ partnership. The lease was for 15 years with total rent amounting to $1,562,580.00.
On May 1, 1979, Cecil and Kenneth Myers dissolved their partnership. The dissolution agreement provided:
“DISSOLUTION OF
CECIL MYERS AND KENNETH V. MYERS,
A PARTNERSHIP
“WHEREAS articles of copartnership were entered into on the 17th day of June, 1976 by and between CECIL MYERS and KENNETH V. MYERS, and
“WHEREAS, the said Cecil Myers and Kenneth V. Myers have mutually agreed to dissolve said copartnership by mutual consent: It is hereby stipulated and agreed that all the assets of any kind and nature, all outstanding accounts, office fixtures, and so forth, and the good will of said business shall be the property of said Kenneth V. Myers for his own use and behoof forever. The said Kenneth V. Myers agrees to assume and to pay all liabilities of said copartnership and for and in consideration of all interest in said copartnership heretofore owned by the said Cecil Myers, the said Kenneth V. Myers hereby agrees to cancel a certain promissory note dated June 15, 1976, from Cecil Myers to Kenneth V. Myers in the amount of $150,000.00, a copy of which is attached hereto and made a part hereof.
“Witness our hands this 1st day of May, 1979.
s/ Cecil Myers
CECIL MYERS
si Kenneth V. Myers
KENNETH V. MYERS”
The $150,000.00 was a June 15, 1976, loan made from Kenneth to Cecil Myers when Kenneth paid in $300,000.00 to Myers Buick-Opel, Inc. as capital. The quitclaim deed transferring Cecil’s realty to Kenneth was dated May 1, 1979, but was not recorded until June 5, 1980. This transfer is labeled by the plaintiff as a fraudulent conveyance.
Also on May 1, 1979, a partnership was formed between Lobería Myers, Kenneth’s wife, and Doris Gilbert, Cecil Myers’ ex-wife. On the same date the Myers-Gilbert partnership purchased from Kenneth Myers the property and automobile dealership facilities at 6336 State Avenue. The Myers-Gilbert partnership was to pay $50,000.00 to Kenneth Myers for the property and pay the balance of the loan from Fidelity State Bank, which equaled $338,128.58. The property had been appraised at a value of $670,000.00 on September 20, 1978.
Kenneth Myers assigned the lease with Chrysler Realty Corporation on the State Avenue property to the Myers-Gilbert partnership for $25,000.00 on May 1, 1979. As previously stated, the 15-year lease would provide $1,562,580.00 in rentals to the lessor. Rental payments by Chrysler Realty Corporation were made to Kenneth and Cecil Myers until August 25, 1980, when Kenneth Myers notified the lessee that future payments should be made to Loberta Myers and Doris Gilbert.
The second series of events Credit Union complains of occurred between Cecil Myers and Doris Gilbert. The two were married on January 27, 1978. The marriage was annulled on December 7, 1978. No division of property was ordered by the district court in its annulment decree, and no formal settlement agreement was executed by the parties. A quitclaim deed dated December 8, 1978, and recorded May 11, 1979, transferred a parcel of realty from Cecil to Doris Gilbert. The property contained four rental units and had a market value of between $10,000.00 and $25,000.00, but was subject to a mortgage. Cecil Myers’ grandmother continued to receive rents from the rental property after the conveyance. At the same time, Ms. Gilbert conveyed to Cecil Myers her share of the residence they had jointly purchased and had lived in during their marriage. Cecil Myers and Gilbert continued to live in the home until 1980. The trial court determined the property transfers were part of an annulment property division.
After the two transactions transferring real property were completed, Cecil Myers owned only his residence. The residence was exempt property not attachable by creditors.
On August 22, 1980, a jury awarded Credit Union $335,315.15 in damages against Cecil Myers in its suit against him for conspiracy to defraud and tortious interference with a contract. Credit Union filed an action on November 3, 1980, against Cecil Myers, Kenneth Myers, Lobería Myers and Doris Gilbert, seeking to set aside the two series of conveyances of land as fraudulent. The trial court granted a summary judgment motion against Credit Union on all counts.
The facts of this case have been fully developed by discovery. The trial judge reviewed the pleadings filed in the action, examined the documentary evidence, and read the depositions of the four defendants prior to granting the defendants’ motion for summary judgment. There was no further evidence between the parties to present at the time of trial. Is Credit Union correct when it claims the trial judge improperly granted the defendants summary judgment?
First, summary judgment is proper only if the pleadings and depositions taken, viewed in the light most favorable to Credit Union, the party against whom the motion was directed, together with the benefit of all reasonable inferences and doubts, show there remains no genuine issue of material fact. When summary judgment is challenged on appeal, the appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. Dugan v. First Nat'l Bank in Wichita, 227 Kan. 201, Syl. ¶ 3, 606 P.2d 1009 (1980). Using this standard, was it proper for the court to grant summary judgment?
In Kansas every conveyance of land made with the intent to defraud creditors is deemed utterly void and of no effect. K.S.A. 33-102. 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. Cox v. Cox, 39 Kan. 121, 123, 17 Pac. 847 (1888).
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. Polk v. Polk, 210 Kan. 107, 110, 499 P.2d 1142 (1972).
What was the relationship between the grantor and the grantees in the two transactions? In the first transaction, Cecil Myers is Kenneth Myers’ stepbrother. In the second transaction, Cecil Myers was married to Doris Gilbert; the property was exchanged under an agreement entered into by them outside the court’s decree annulling their marriage. We have a well-established rule of law that conveyances and transfers of property from one member of a family to another are subject to stricter scrutiny as to their bona fides than between strangers, where the rights of creditors are, or may be, thwarted thereby. Hardcastle v. Hardcastle, 131 Kan. 319, 291 Pac. 757 (1930). The fact that the parties to the transfers of properties are related by blood or marriage does not warrant a conclusion that the transactions were fraudulent as to creditors but it does subject the transfers to closer scrutiny by the finder of fact.
In Stephenson v. Wilson, 147 Kan. 261, 265-66, 76 P.2d 810 (1938), this court reviewed decisions from other jurisdictions:
“In Hansen v. First Nat. Bank of Dunlap, 197 Ia. 1101, 198 N.W. 505, the action was to quiet the title to certain real estate held by plaintiff by a deed from her husband on the same date on which an execution had been issued to subject the property to satisfy a judgment in favor of the defendant bank. Plaintiff prevailed in the court below, but the supreme court reversed the judgment, saying—
“ ‘Although the mere relationship between the parties to a contract does not per se constitute a badge of fraud, courts sense the obligation to scrutinize closely transactions between relatives when a creditor’s interests are involved. Therefore, in dealing with this class of testimony, we necessarily, and perhaps unconsciously, give weight to it in the light of experience and are influenced by the accordance of the evidence offered with facts within the realm of human conduct and experience. The circumstances surrounding the impeached transaction are mute witnesses in the case, and usually are vitally forceful and probatively cogent. We think in terms of their probability, and in the last analysis, the weight to be given the evidence rests, as Greenleaf said, “upon our faith in human testimony, as sanctioned by experience.” ’ (p. 1103.)
“In a similar case, Barks v. Kleyne, 198 Ia. 793, 200 N.W. 439, the court said:
“ ‘Although blood relationship is not per se a badge of fraud, it strengthens the inferences that arise from circumstances; and whenever this confidential relation exists, the parties are held to a fuller and stricter proof of the consideration and the fairness of the transaction.’ (p. 799.)
“In Miller v. Correll, 97 W. Va. 215, 124 S.E. 683, the rule is thus stated:
“ ‘A conveyance of land between near relatives is not a badge of fraud when such conveyance is attacked by creditors, though it may require less proof to show fraud than where such relationship does not exist.’ (Syl. ¶ 2.)
“In Williams v. Ellington, 233 Ala. 638, 172 So. 903, the suit was a creditor’s bill which attacked as fraudulent and void a conveyance of real estate from a husband to his wife and children. In reversing the judgment of the trial court the supreme court said:
“ ‘As to the deed, it is to be observed that at the time of its execution the grantor was largely indebted to the bank, and the conveyance is to the wife, son, and daughter. The burden of proof was then shifted to defendants to establish by strong and convincing evidence that an adequate and valuable consideration was paid for the conveyance. (Citations.)
“ ‘True, the relationship is not within itself a badge of fraud, but under all the authorities, supported by reason and common sense, transactions between such relatives are to be jealously watched, and must be subjected to closer scrutiny than would be required of a stranger. (Citations.)’ (p. 640.)”
Transfer of property by a debtor in anticipation of a suit against the debtor, or while a suit is pending against him is commonly recognized as an indication of fraud. This is especially so where the transfer renders the debtor insolvent or greatly reduces his assets. Here Credit Union filed its civil action against Cecil Myers July 10, 1978. Cecil Myers transferred two pieces of real property after Credit Union commenced its action: (1) Cecil quitclaimed by deed the house containing the four apartments to Doris Gilbert (his ex-wife) December 8, 1978; (2) Cecil quit-claimed by deed to Kenneth the building and land where the automobile dealership was located May 1, 1979. Cecil Myers’ remaining property was a homestead exempt from attachment by creditors. Roth grantees, Doris Gilbert and Kenneth Myers, were aware of litigation pending against Cecil.
Secret, hurried or transactions not in the usual course of business are examples of possible fraudulent intention. Cecil’s quitclaim deed to Doris shows December 8, 1978, as the date executed, but the quitclaim deed was not recorded until May 11, 1979. Cecil’s quitclaim deed to Kenneth indicates May 1, 1979, as the date executed, but that quitclaim deed was not recorded until June 5, 1980.
Our decisions have recognized that whether a conveyance is or is not fraudulent as to creditors is largely a question of fact. Houska v. Lake, 148 Kan. 229, 80 P.2d 1102 (1938); Bank of Inman v. Graves, 148 Kan. 468, 83 P.2d 666 (1938). A court should be cautious in granting a motion for summary judgment when the resolution of the dispositive issue necessitates a determination of the state of mind of one or more of the parties. Hustead v. Bendix Corp., 233 Kan. 870, Syl. ¶ 2, 666 P.2d 1175 (1983). The trial court erred in granting summary judgment in this case since questions of fact remain to be determined.
The trial court stated in its memorandum opinion the following:
“A conveyance made for fair consideration cannot be set aside as a ‘fraudulent conveyance’ because by definition such a conveyance is without fair consideration. In addition, a conveyance can only be set aside by clear and convincing evidence of fraud.”
Credit Union argues that the trial court erred in stating that clear and convincing evidence is required to defeat a motion for summary judgment in a fraudulent conveyance case. We agree.
The general rule is that fraud is never presumed and must be proven by clear and convincing evidence. Nordstrom v. Miller, 227 Kan. 59, 65, 605 P.2d 545 (1980). The trial court incorrectly applied the trial evidentiary standard to the motion for summary judgment. There are no special tests for a court to apply when a motion for summary judgment is considered. A party resisting a motion for summary judgment in an action based on fraud need not present “clear and convincing” evidence of fraud in opposing the motion. The usual rules governing the ruling upon motions for summary judgment apply to actions based on fraud. Dugan v. First Nat’l Bank in Wichita, 227 Kan. 201, Syl. ¶ 4.
Whether Credit Union can set aside Cecil Myers’ conveyances to Doris Gilbert and Kenneth Myers as fraudulent conveyances is a question of fact. The trial court, when considering defendants’ motion for summary judgment, could not determine the credibility of witnesses or the weight to be given their testimony. The trier of fact has the responsibility of determining what testimony should be believed and what weight should be given the testimony. Here the court, when granting the Myers’ motion for summary judgment, determined the state of mind of the defendants, and found from the facts that the conveyances between the defendants were not fraudulent. In effect, in a motion for summary judgment, the trial court tried the issues, weighed the facts, determined the credibility of the witnesses and granted judgment for the defendants. By such action the trial court erred.
Other issues presented by Credit Union in its appeal deal with the introduction of evidence or the law to be applied at the trial. Those issues are for the trial judge to rule upon and determine at the time of trial.
The district court’s granting of summary judgment is reversed and the case remanded for trial on the issues. | [
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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 8 Kan. App. 2d 412, 658 P.2d 1059 (1983). James E. Russell Petroleum, Inc., (defendant-appellant) appealed from the trial court’s determination that it had abandoned its oil and gas production rights under two oil and gas leases to land owned by Maxine Rook Cooper and her son John Rook (plaintiffs-appellees). The Court of Appeals modified the trial court’s ruling, holding that where evidence of a breach of implied covenant of an oil and gas lease is relied upon to infer the intent to abandon and the lease has been extensively developed in the past, the lessor is required to make demand for performance upon the lessee prior to initiating a lawsuit before a court will cancel the lease. The Court of Appeals ordered that the appellant be given 60 days to begin production efforts before the oil and gas leases would be deemed cancelled. We granted review.
The facts are summarized in the Court of Appeals opinion, 8 Kan. App. 2d 412-13, but for purposes of review an expanded version is warranted. James Russell purchased the leases in question in 1963 from W. S. Fees, the original lessee, and subsequently sold them to the defendant corporation in 1973. Two adjacent tracts of land situated in Anderson County are involved, hereinafter referred to as “Tract I” and “Tract II.”
Tract I (the Southeast Quarter of Section 22, Township 22, Range 19, Anderson County, Kansas) is covered by an oil and gas lease executed between the original landowner and Fees in 1921, and a supplemental agreement executed on June 27, 1936. Under the original oil and gas lease the landowner is to receive a one-eighth royalty from all gas and oil produced and to have gas supplied free of charge to the principal dwelling on the premises. The supplemental agreement expanded the terms of the original lease by allowing the property to be used for the storage and removal of natural gas. The landowner was paid a sum in exchange for his royalty interest in gas remaining in the land at depths not exceeding 1,050 feet below the surface. As consideration for the storage rights the lessee was to pay the landowner an annual gas storage rental of $1.00 per acre. The habendum clause of the lease was enlarged by the agreement to provide:
“SECOND: The term of said oil and gas lease shall be and is hereby enlarged so as to run as long as oil and gas or either of them is produced, and as long thereafter as the premises above described shall be utilized for the introduction, storage and/or removal of natural gas (whether introduced into or withdrawn from this or other land) and/or as long as the storage rentals hereinafter fixed shall be paid.”
The agreement also stated:
“SIXTH: Lessee shall have the right to assign said lease as hereby modified as to all or any portion of the acreage covered thereby or as to any interest therein, and upon any such assignment, Lessee shall have thereafter no personal liability as to any covenant of said modified lease in respect to the acreage or interest as to which assignment has been made.”
At the same time the supplemental agreement pertaining to Tract I was executed, the landowner and Fees entered into a similar oil, gas and underground gas storage lease covering Tract II (the North Half of Section 22, Township 22, Range 19, Anderson County, Kansas). As in the lease pertaining to Tract I, the lessor was paid a sum for his interest in the gas remaining in the land above 1,050 feet, and the lessee was required to pay an annual storage rental of $1.00 per acre for the right to store gas on the premises and furnish free gas to the landowners for living purposes. The gas storage rental provision in the lease additionally provides:
“During such times as Lessee is not producing any of such minerals from sands or formations containing them in their original state, Lessee may during the primary term hereof defer development from year to year by the payment of an annual rental in the same amount and in the same manner as herein provided, which payment shall be in addition to the storage rental herein provided.”
The habendum clause of this lease provides:
“2. This lease shall remain in force for a term of ten years from this date and so long thereafter as oil, gas, casinghead gas or other kindred products [are] produced or the storage right is being exercised as hereinafter set forth.”
The lease also stated:
“12. Lessee shall have the right to assign this lease as to all or any portion of the acreage covered thereby or as to any interest therein, and upon any such assignment Lessee shall have thereafter no personal liability as to any covenant thereof in respect to the acreage or interest as to which assignment has been made, and the default of either owner shall not affect the other.”
The supplemental agreement pertaining to Tract I provides the lessee may relinquish its gas storage rights at any time it becomes unprofitable to continue such operations, and the lease pertaining to Tract II provides the lessee may continue its gas storage operation from year to year beyond the expiration of the primary term of the lease by the payment of annual storage rentals as long as the lessee deems it necessary or convenient to do so.
In 1937 Fees assigned to Cities Service Gas Company all his gas production and gas storage rights existing under the Tract I and Tract II leases at depths not exceeding 1,050 feet from the surface. This assignment was made subject to a contract between Fees and Cities Service Gas Company, dated March 18, 1936. A supplemental contract relating to the assignment of the gas rights was executed by the parties on March 31, 1937, specifically making the leasehold subject to the provisions of Section IV of the contract executed March 18, 1936, entitled “Future Operation of Leaseholds.” This provision of the March 18, 1936, contract specifically reserved to Fees all oil rights under the two leases and all gas production rights at depths below 1,050 feet. In addition, it provided that the assignor (Fees) had the right to elect to obtain an assignment of the assignee’s (Cities Service) interests in the leasehold at such time as the assignee no longer has any use for the leasehold.
As stated previously, Fees subsequently transferred his rights and interests in these leases to James E. Russell in 1963, who transferred them to the defendant corporation in 1973. The assignment of the oil and gas leases by Fees in 1963 to Russell was for a consideration of $75,000.00, payment of which was secured by a reservation of one-eighth of the seventh-eighths working interest free of all costs. The assignment then specifically stated:
“4. Assignee expressly covenants and agrees that, until said Production Payment of $75,000.00 is retired and discharged in full in the manner provided for herein, that Assignee, for himself and his heirs, executors, administrators and assigns will cause the producing oil wells on said leases to be operated in a good, prudent and workmanlike manner, to the end that each well capable of producing oil in paying quantities under reasonable prudent operations shall continue to produce its daily allowable, if it has an allowable, and, if not, then to the extent of its capacity; Assignee does hereby stipulate and agree that a well is capable of producing oil ‘in paying quantities’ so long as the value of the oil attributable to the Assignee’s interest therein, less said Production Payment interest, exceeds the costs of operation (including the well’s proportionate share of all expenses of operating in the field in which the well is located) and that no such well will be plugged or abandoned; provided, however, that nothing shall prevent Assignee from abandoning a well which is not producing in paying quantities, nor from converting present or future oil producing wells to input wells. Assignee agrees to comply with all expenses and implied covenants of the said oil and gas leases.” (Emphasis added.)
The plaintiff and her husband purchased the two tracts in 1961. In 1963 when Fees’ interests in the leases were assigned to Russell, there were sixteen producing oil wells on the tracts. Records indicate production from these wells was marginal after 1959, with 48 barrels of oil being produced in 1965. Russell ceased production of these wells in 1966, and since that time no oil or gas has been produced and no new wells have been drilled by either Russell or the appellant corporation of which Russell is president. Cities Service Gas Company has continually exercised its gas storage and production rights under the 1937 assignment. It has paid the annual storage rental and furnished free gas to the landowner since that time. The rights of Cities Service Gas Company under the leases are not contested by the plaintiffs. Cities Service Gas Company was joined as a third-party defendant to this lawsuit, but was later dismissed.
At the time this lawsuit was filed in January 1980 no production or active exploration had been undertaken under the lease rights for fifteen years. James E. Russell, president and chief executive officer of the appellant corporation, testified at the trial production of the wells was marginally economical under then existing methods of recovery. However, prior studies had indicated there were additional oil reserves which were potentially available using other recovery methods. Consequently, the wells were not plugged so they could be used at a future time. Equipment left on the property was allowed to rust and deteriorate. In the early 1970’s the pump house was torn down and removed after it was partially demolished in a storm. The power source equipment was also removed at that time because it was obsolete and could no longer be used with any available methods of recovery. The defendant was not physically present on the land after 1972.
The evidence presented by the appellant to sustain its position was that beginning in 1970 numerous studies were conducted by the defendant corporation to determine the economic feasibility of resuming production on the subject leases using more sophisticated and expensive methods of tertiary recovery. The studies were to determine the likely yield of such a proj'ect given the known information of the land’s potential reserves and technology available to undertake the task, as well as the projected economic return on such a project using current crude oil prices and cost of development. Although the studies indicated production was profitable as early as 1970, the appellant declined to resume production because of the depressed economy existing at that time, particularly in the oil market. As the economic picture improved through the 1970’s the appellant began to develop a plan to proceed with the development of the leases. Russell testified that in 1979 a specific plan had been formulated to resume production of the leases in 1980. The projected cost for the pilot project was $170,000, and $750,000 for full development of the entire lease. These plans were postponed when the lawsuit was initiated. Other leases owned by the appellant on adjoining tracts of land in the same oil formation were brought into production by the appellant in 1980 and 1981. Russell testified the corporation intended at all times to resume production when it would be more economically advantageous under existing market conditions. The leases were continually evaluated to effectuate that purpose. The corporation believed they were protected while not developing by the habendum clause contained in the leases, in that as long as the gas storage rentals were paid to the landowner they could postpone resuming production until the most economically advantageous time, which would be beneficial for both the corporation and the landowner. The leases were always considered to be assets by the corporation, property taxes were paid each year on one of the leases, and the required semiannual reports were submitted to the Kansas Corporation Commission designating all the wells as temporarily abandoned but unplugged and available for future use. The plaintiffs never requested that the appellant resume production or inquired as to its plans for future development. As soon as the lawsuit was filed the appellant expressed its willingness to begin immediate production. The corporation failed to pay property taxes on equipment on one of the leases for several years.
Both parties submitted briefs to the trial court, pursuant to the court’s pretrial order, on the issue of whether the leases involved in this action contained divisible provisions. Prior to trial the court issued a memorandum opinion setting forth its conclusions of law based upon its construction of the provisions contained in the leases and the applicable law. The trial court first held that by virtue of the continuous storage of natural gas on the property and payment of the gas storage rental, the leases were still in effect by the terms of the habendum clause, stating:
“Exhibits A and B cover Tract One. A careful reading of those two documents indicates that the habendum clause contained in paragraph Second of Exhibit B, has been complied with by the third party defendant and that it’s compliance keeps the lease in force and the lease has not expired on it’s own terms. None of the other provisions of either Exhibits A or B contain any language which modify that obligation.
“The lease contained in Exhibit D, covering Tract Two, is substantially different than Exhibits A and B. Pertinent language is contained in paragraph 2., the habendum clause, and paragraphs 6. and 12. These three provisions must be read together to determine the purport of the instrument. The language in paragraph 12. indicates the default of either owner shall not affect the other. That language does have the effect of creating independent rights upon the assignment of any interest. The language in the last sentence of paragraph 6. only applies during the primary term, prior to development, and, as the lease was developed and production had for some time, that language has no application to my considerations at this time. The lease terms in paragraph 2. indicate that the exercise of the gas storage rights is sufficient to meet the expressed terms of the lease and the language of paragraph 12. is not sufficient to change that basic language and I would find that, as to Tract Two, the lease does not expire on its own terms.”
The trial court also ruled the provisions of the lease were partially divisible, and therefore the oil and gas production portion of the lease could be forfeited for failure to comply with the implied covenants, while the gas storage rights remained intact. Finally, the trial court found as a matter of law that the failure to produce the lease since 1965 constituted violation of an implied covenant to operate the leasehold efficiently and market the minerals, but found it necessary to have additional evidence presented on the factual issue of whether or not the defendant had abandoned the lease, to determine whether or not demand for performance was necessary before the defendant’s lease interests would be cancelled. After hearing evidence presented at trial and actually viewing the land involved the trial court found there had been an intent to abandon the lease in 1966 until a time when it would become financially feasible to begin production, and that the removal of the power source from the premises as well as the deterioration of the equipment remaining on the premises were evidence of external acts of abandonment. The trial court ruled the defendant’s oil and gas production rights under the lease were void.
The defendant appealed to the Court of Appeals from the trial court’s finding of abandonment and from the court’s ruling that a demand upon the defendant for further development prior to cancellation of the lease was not necessary. Neither party challenged the trial court’s ruling that the leases were still in effect under the terms of the habendum clause. The parties have not briefed this point for the court and further discussion of the case will proceed upon the assumption that this is the law of the case.
The Court of Appeals determined the trial court had inferred the intent to abandon from the appellant’s “breach of an implied covenant,” and held the lessor should be required to give the lessee notice before a court will cancel the lease. The Court of Appeals ordered “that the oil and gas lease shall be deemed to be cancelled in the event defendant does not begin production efforts within 60 days’’ from the effective date of the judgment. 8 Kan. App. 2d at 415.
The parties to this appeal have briefed this case on the theory that the leases on Tract I and Tract II are identical insofar as the issues between them are concerned. Accordingly, we accept this proposition as the law of the case, but hasten to add our opinion should not be construed as finding them to be identical.
It is readily apparent from a reading of the documents establishing the two leases here under consideration that the parties contemplated, upon assignment of the leases, the severability of the storage portion of these leases from the oil and gas production portion of the leases. Furthermore, it is clear a default in either the storage portion of these leases or the oil and gas production portion of these leases would not affect the other.
Therefore, in accordance with the law of the case, this court is presented with a hybrid situation in which there are two identical oil and gas leases, valid and subsisting at the time this lawsuit was filed, where the storage portion of these leases has been severed from the oil and gas production portion of the leases by assignment. On the facts in this case those in privity with the lessor challenge the validity of these leases on the ground that the oil and gas production portion of these leases are terminated by abandonment.
The appellant’s argument proceeds on the theory that these leases, by reason of their extended term and enlarged purposes (referring to the gas storage portion of these leases), continue the leases in force in their entirety to this date; and that abandonment of these leases therefore cannot be considered correctly in the context of abandonment of the usual oil and gas lease, where oil is discovered and production continued beyond the primary term followed by the termination of production because further production ceases to be profitable. In the usual oil and gas lease the appellant concedes under Kansas law the lease would terminate by its own terms when further production of the lease by the lessee was abandoned by reason of unprofitable production. The points material to our determination of the case asserted by the appellant are (1) whether the lessee abandoned its oil and gas production rights in these leases; and (2) whether the action should be dismissed for failure of the landowners to first make demand upon the lessee for further development in compliance with the implied covenants of the lease. Other points asserted by the appellant are immaterial.
At the outset it is appropriate to discuss the general rules governing the construction of oil and gas leases. Oil and gas leases containing ambiguities are to be strictly construed against the lessee-producer and in favor of the lessor-royalty owner because the lessee usually provides the lease form or dictates the terms thereof, and where the lessee desires it may protect itself by the manner in which the lease is drawn. See Lightcap v. Mobil Oil Corporation, 221 Kan. 448, 458, 562 P.2d 1, cert. denied 434 U.S. 876 (1977); Gilmore v. Superior Oil Co., 192 Kan. 388, Syl. ¶ 2, 388 P.2d 602 (1964). In Jackson v. Farmer, 225 Kan. 732, Syl. ¶ 7, 594 P.2d 177 (1979), the court summarized the pertinent rules as follows:
“Rules governing the construction of oil and gas leases include these: the intent of the parties is the primary question; meaning should be ascertained by examining the documents from all four corners and by considering all of the pertinent provisions, rather than by critical analysis of a single or isolated provision; reasonable rather than unreasonable interpretations are favored; a practical and equitable construction must be given to ambiguous terms; and any ambiguities in a lease should be construed in favor of the lessor and against the lessee, since it is the lessee who usually provides the lease form or dictates the terms thereof.”
A habendum clause in a lease, similar in effect to the one contained in the lease at issue here, stating “this lease shall remain in force for a term of five years from this date, and as long thereafter as production is had from said land by the said Lessee or assigns,” was held in Smith v. Holmes, 181 Kan. 438, 441, 312 P.2d 228 (1957), to be clear and unequivocal where there were no conflicting provisions in the lease, so that the clause was to be given its plain and ordinary meaning without resort to further rules of construction.
The leases at issue here both contain clauses which extend the term of the interest beyond the primary term and as long thereafter as (1) oil or gas is produced on the property and/or (2) the gas storage rights are exercised and/or (3) the storage rentals are being paid. The leases also contain an assignment clause which states that upon any assignment of all or any portion of the leasehold interest the lessee “shall have thereafter no personal liability as to any covenant [thereof] in respect to the acreage or interest as to which assignment has been made.”
For purposes of review it is noteworthy the trial court’s ruling is in accord with the view expressed by modern authorities on oil and gas law that absent a contrary provision in the lease the habendum clause is unaffected by assignments or partial assignments by the lessor or lessee. See 2 Williams and Meyers, Oil and Gas Law § 406 (1983); 3 Williams, Oil and Gas Law § 604.10 (1981); 3 Summers, Oil and Gas § 512, p. 400-01 (perm. ed. 1958); McCammon v. Texas Company, 137 F. Supp. 256, 258-59 (D. Kan. 1955). In 2 Williams and Meyers, Oil and Gas Law § 406, it is stated:
“The habendum clause of the oil and gas lease is usually treated as indivisible. Hence such production or drilling operations anywhere on the leased premises as would have kept the lease alive into the secondary term had there been no partial assignment will keep the lease alive after the primary term as to all parties in interest — the original lessor, his assignees, the original lessee, and his assignees.”
In the early development of the law relating to covenants implied in oil and gas leases, and before the doctrine of implied covenants was developed fully, there was a tendency on the part of courts to rely upon the doctrine of abandonment to explain results that would otherwise be reached by the enforcement of implied covenants. This tendency and the confusion of abandonment with the breach of implied covenants has been de scribed in considerable detail by Dr. Merrill in two sections of his monumental treatise on implied covenants. See Merrill, Covenants Implied in Oil and Gas Leases §§ 8, 9 (2d ed. 1940).
Merrill describes three situations in which abandonment may be confused with breach of an implied covenant. The first situation is where a lessee permits a lease to terminate under its express terms by failing either to drill or to pay delay rentals. In a sense, by so failing to act, the lessee has “abandoned” the lease, but the lease expired by its own terms, and such situation is properly identified as a termination of the lease rather than an abandonment.
The second situation noted in Merrill’s analysis is where the lessee consciously intends to give up the lease and commits some positive act of abandonment. This is a true abandonment. Abandonment in this instance requires not only a physical relinquishment but a positive intention to abandon the lease.
The third situation posed by Merrill is where there has been no act done to demonstrate an intention to abandon but the lessee intends to postpone work of development while keeping the lease. Merrill summarizes this situation at p. 34 by saying:
“Abandonment is an intentional and voluntary relinquishment; an enforced and involuntary giving up of rights under the lease must be a forfeiture for breach of the obligations imposed by the implied covenants. The weight of authority recognizes this important and fundamental distinction.”
Kansas has recognized that the lessee of an oil and gas lease has certain implied obligations under an oil and gas lease to develop and to operate the leased premises as a prudent operator. Such implied obligations have been expressed in terms of implied covenants that relate to the various phases of a lessee’s operations in exploiting the mineral interest. In Shaw v. Henry, 216 Kan. 96, 99, 531 P.2d 128 (1975), the court recognized a classification of the implied covenants as follows:
“In Cohen, Implied Covenants in Kansas Oil and Gas Leases, 9 Kansas Law Review 7, the author notes six implied obligations arising from the lessor-lessee relationship: to drill a well, to develop the leasehold, to explore the leasehold, to operate the leasehold efficiently, to protect the leasehold from drainage and to market the minerals produced.” (Emphasis added.)
With minor variations in expression, this classification is the same as the classification made by text writers on the subject. See 5 Kuntz, Oil and Gas § 55.1(c) (1978) for a comparison of classification by Merrill, Summers, Williams and Meyers, and other legal commentators. The implied covenant “to operate the leasehold efficiently” is commonly identified as the implied covenant “of diligent and prudent operation.” See, e.g., 5 Kuntz, Oil and Gas § 55.1(c), pp. 15-16; Temple v. Continental Oil Co., 182 Kan. 213, Syl. ¶ 2, 320 P.2d 1039, reh’g denied 183 Kan. 471 (1958); Renner v. Monsanto Chemical Co., 187 Kan. 158, 167, 354 P.2d 326 (1960).
Such implied covenant requires the lessee, as part of its duty of diligent and prudent operation, to produce and market oil or gas after discovery. It is rarely invoked to require a lessee to produce, because ordinarily a failure to produce after the primary term because production is no longer profitable will result in termination of the lease. In the instant case, however, the covenant is involved because the lease has not terminated despite a cessation of production. The instant case is unusual in that it involves two oil and gas leases under which production ceased but which were nevertheless continued in force and effect by the express provisions of the habendum clauses in these leases relative to gas storage rights.
The implied covenant of diligent and prudent operation of the lease was recognized in Shaw v. Henry, 216 Kan. 96. There diligent and prudent operation of the lease by the lessee required the drilling of a salt water disposal well in order to continue production in compliance with an order from the Kansas Department of Health. Any analogy to the instant case ends with recognition of the implied covenant of diligent and prudent operation because the lease there was in constant production until the lessee complied with a “cease and desist” letter from the Kansas Department of Health.
The appellant throughout its brief relies exclusively on cases involving the implied covenant to fully develop the lease, citing, Storm v. Barbara Oil Co., 177 Kan. 589, 282 P.2d 417 (1955); and Sander v. Mid-Continent Corp., 292 U.S. 272, 78 L.Ed. 1255, 54 S.Ct. 671 (1934), among many other cases. In all of the cases there was continuing production on the lease when the lessor sought cancellation of a portion of the lease for breach of the implied covenant to fully develop the lease. These cases demonstrate that a lease may be subject to partial cancellation as to the undeveloped portion of the leasehold for breach of the implied covenant to fully develop the lease, but usually require that the lessor first make demand upon the lessee or partial assignee for further development prior to the entry of a decree terminating the undeveloped portion of the lease, or the order of the court may set a time within which further development must be commenced by the lessee before cancellation will be decreed. See, e.g., Stamper v. Jones, 188 Kan. 626, 642, 364 P.2d 972 (1961); Renner v. Monsanto Chemical Co., 187 Kan. at 173-74; Temple v. Continental Oil Co., 182 Kan. at 236; Harris v. Morris Plan Co., 144 Kan. 501, 506-07, 61 P.2d 901 (1936); Cowman v. Phillips Petroleum Co., 142 Kan. 762, 769-70, 51 P.2d 988 (1935); Alford v. Dennis, 102 Kan. 403, 407, 170 Pac. 1005 (1918).
Here the trial court determined the oil and gas production portion of these leases was severable from the gas storage rights of Cities Service, and correctly ruled the oil and gas production portion of these oil and gas leases could be terminated for abandonment of the lease or for failure to comply with the implied covenant of diligent and prudent operation, while the gas storage rights of Cities Service were retained intact. The trial court terminated the oil and gas production portion of these leases upon a finding of abandonment — the intentional and voluntary relinquishment of rights under the leases.
On the record here presented these two leases were fully developed and had been producing oil for many years after the primary term. Sixteen wells were producing oil on these tracts when Russell terminated production of these sixteen producing oil wells becausé they were incapable of producing oil in paying quantities under reasonable prudent operations.
Affirmative evidence that Russell knew the production portion of these leases assigned to him could be terminated by abandonment of production is illustrated by the written terms of the 1963 assignment of these interests to him by W. S. Fees. Both W. S. Fees, as assignor, and James E. Russell, as assignee, signed this document which had two parts: (1) Assignment of oil and gas leases, and (2) Bill of Sale.
In this document Russell expressly “covenants and agrees” for himself and his assigns:
1. That the producing oil wells on these leases capable of producing oil in paying quantities will be operated in a good, prudent and workmanlike manner to the fullest extent of their capacity; and
2. Stipulates “that a well is capable of producing oil ‘in paying quantities’ so long as the value of the oil attributable to the Assignee’s interest therein, less said Production Payment interest, exceeds the costs of operations . . . and that no such well will be plugged or abandoned.” (Emphasis added); and
3. Acknowledges his right to abandon wells which will not produce oil in paying quantities; and
4. That they will comply with all implied convenants.
The foregoing written acknowledgment and undertaking by Russell, in the assignment, coupled with Russell’s positive acts which followed, all clearly support the finding of the trial court that Russell and his assignee abandoned these leases. Russell’s actions supporting the trial court’s conclusion include terminating production of all wells on these two leases with no further production activity on these leases for fifteen years, permitting equipment left on the property to rust and deteriorate, tearing down and removing the pump house after it was partially demolished in a storm, removing the power source equipment, and not physically going onto the premises in any manner after 1972.
Having abandoned the production of oil on these two leases, Russell and his assignee cannot now be heard to say those in privity with the lessor were required to demand and give notice that production be continued prior to termination of these leases for breach of the implied covenant of diligent and prudent operation.
Accordingly, the judgment of the trial court terminating these leases upon a finding of abandonment is affirmed, and the judgment of the Court of Appeals is reversed. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an appeal by plaintiff Pioneer Container Corporation (a Missouri corporation) from a judgment of the district court which affirmed an order of the Kansas Board of Tax Appeals finding plaintiff corporation and its wholly owned subsidiary, Pioneer Bag Company (a Kansas corporation, now defunct), constituted a unitary business and requiring a combined report method for allocation of income and expenses for state corporate income tax purposes.
For its first issue plaintiff contends the district court applied an improper standard of review.
In Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P.2d 828 (1968), 28 A.L.R.3d 472, this court enunciated the standard rules for judicial review of administrative actions. In Foote this court declared a district court could not, on appeal, substitute its judgment for that of an administrative tribunal but was restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order was substantially supported by evidence, and (3) the tribunal’s actions were within the scope of its authority. 200 Kan. 447, Syl. ¶ 1. See also In re Due Process Hearing of Bailey, 233 Kan. 714, 717, 664 P.2d 1379 (1983); Hemry v. State Board of Pharmacy, 232 Kan. 83, 86, 652 P.2d 670 (1982); Boswell, Inc. d/b/a Broadacres v. Harkins, 230 Kan. 738, 740, 640 P.2d 1208 (1982); Kansas Dept. of Health & Environment v. Banks, 230 Kan. 169, 171-72, 630 P.2d 1131 (1981); U.S.D. No. 461 v. Dice, 228 Kan. 40, 50, 612 P.2d 1203 (1980); Brinson v. School District, 223 Kan. 465, 469, 576 P.2d 602 (1978); Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, 539 P.2d 1 (1975). In reviewing a district court’s judgment on an administrative action, Kansas appellate courts 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 did the district court. Kansas Dept. of Health & Environment v. Banks, 230 Kan. 169, Syl. ¶ 2; U.S.D. No. 461 v. Dice, 228 Kan. 40, Syl. ¶ 4; Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, Syl. ¶ 4; Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, Syl. ¶ 2.
The district court herein utilized the Foote rules for judicial review of administrative actions. Plaintiff contends the Foote rules were inapplicable herein by virtue of the matter having been submitted to the Board of Tax Appeals upon a stipulation of facts. This contention is fatally flawed. The case was not submitted to the Board of Tax Appeals on stipulated facts. Rather, the parties agreed the Board should use the record made at the hearing before the Director of Taxation in lieu of a de novo hearing. The testimony on the record was not consistent and, indeed, was conflicting in a number of respects. We conclude this issue is wholly lacking in merit.
For its second issue plaintiff contends the Board of Tax Appeals erroneously found that plaintiff and its subsidiary, Pioneer Bag Company, constituted a unitary business.
In tax law the concept of unitary business arises when a corporation has one or more subsidiaries or divisions which are dependent to or upon, or contribute to the parent corporation or other subsidiaries or divisions so, in essence, to constitute a homogenous enterprise. When such an entity exists it may be described as a unitary business and in determining the tax liability of the given subsidiary or division the taxing authority may consider the entire income of the unitary business and apportion taxes on the basis of the income attributable within the jurisdiction.
As defined by the Illinois Supreme Court:
“A unitary business operation is one in which there is a high degree of interrelationship and interdependence between, typically, one corporation, which generally is a parent corporation, and its corporate subsidiaries or otherwise associated corporations, which group is usually engaged in multistate, and in some cases in international, business operations. Because of this integrated relationship, which is reflected in all phases of the business operations, it is extremely difficult, for puiposes of taxation, to determine accurately the measure of taxable income generated within a State by an individual corporation of the unitary group which is conducting business in the State. Typically, the corporation’s transactions and the income derived from them actually represent the business efforts of the individual corporation, plus efforts of other and possibly all members of the unitary business operation. As a result, the claimed income of each member of the group standing alone does not, in a real sense, reflect the conducting of a unitary business operation because the income is not attributable solely to the effort of the particular corporation.” Caterpillar Tractor Co. v. Lenckos, 84 Ill. 2d 102, 108, 417 N.E.2d 1343 (1981).
See also PMD Investment Co. v. State, 216 Neb. 553, 345 N.W.2d 815 (1984).
In Crawford Manufacturing Co. v. State Comm. of Revenue and Taxation, 180 Kan. 352, 304 P.2d 504 (1956), this court held:
“A multi-state business is a unitary business for income tax purposes when the operations conducted in one state benefit and are benefited by the operations conducted in another state or states. If its various parts are interdependent and of mutual benefit so as to form one integral business rather than several business entities, it is unitary.” Syl. ¶ 1.
“Whether a multi-state business is separate or unitary depends upon the manner in which its business is conducted. The essential test to be applied is whether or not the operation of the portion of the business within the state is dependent upon or contributory to the operation of the business outside the state. If there is such relationship, the business is unitary.” Syl. ¶ 2.
“Various portions of a business may be carried on exclusively in different states without destroying its unitary character if the integral parts are of mutual benefit to one another.” Syl. ¶ 3. (Emphasis supplied.)
See also Webb Resources v. McCoy, 194 Kan. 758, 401 P.2d 879 (1965).
We turn now to the facts of this case.
The Board of Tax Appeals made the following findings: •
“[P]rior to the formation of Pioneer Bag all of the assets and property used to form the company were owned by Pioneer Container Corporation, a Missouri corporation (hereafter referred to as Pioneer Container). Pioneer Bag was incorporated for the express purpose of selling off the burlap bag division to a third party. The sale was never consumated and Mr. William Gore was hired by Pioneer Container as general manager to operate Pioneer Bag. During the tax years at issue (February 26, 1978 through February 24, 1980) Mr. Gore operated the plant, manufacturing burlap bags and made sales of burlap bags and paper bags (the latter being manufactured by Pioneer Container). A salesman for Pioneer Container sold burlap bags, as well as paper bags, which were manufactured by Pioneer Bag.
“Pioneer Container paid the bills of Pioneer Bag from co-mingled funds. The funds of the two companies were kept in one bank account at Commerce Bank at Kansas City. With the exception of the payroll account for Pioneer Bag, the funds received on sales by Pioneer Bag were never separated from the funds of Pioneer Container. Only one cash receipt book was kept for both companies, and this was kept by Pioneer Container. The separation of the receipts was reflected only by bookkeeping transactions. An executive of Pioneer Container signed all of the checks for each company. Mr. Gore, who managed Pioneer Bag, was not authorized to sign checks. The operating status of Pioneer Bag was never known until the annual tax returns were prepared. Pioneer Container paid all of the debts of Pioneer Bag regardless of the profit or loss status.
“Both companies were in the bag business, manufacturing burlap, cotton and paper bags primarily for the agriculture industry. The Boards of Director[s] were interlocking. Control of Pioneer Bag was in Pioneer Container, which owned 100 percent of the stock of Pioneer Bag.
“There were mutual benefits to each company from the other. The expertise of the executive staff of Pioneer Container, such as accounting services, financing, business experience and operational expertise, were furnished to Pioneer Bag. The availability of Mr. Gore to sell paper bags for Pioneer Container to customers he called on and the same benefit to Pioneer Bag for sales to customers of Pioneer Container by its salesmen was of benefit, one to the other.
“The two companies were operated as one out of the offices of Pioneer Container in Missouri. Pioneer Bag was dependent upon Container for accounting services, management expertise and financing. Without these services Pioneer Bag could not operate.”
The Board’s findings are supported by substantial competent evidence.
The Board, based upon these findings, then concluded:
“The Board therefore concludes that the two companies are operating a unitary business. The definition of a unitary business was set out by the Kansas Supreme Court in Crawford Manufacturing Co. v. State Comm. of Revenue and Taxation, 180 Kan. 352, 304 P.2d 504 (1956). At syllabus numbers 1 and 2 it states the following:
“ ‘A multistate business is a unitary business for income tax purposes when the operations conducted in one state benefit and are benefited by the operations conducted in another state or states .... The essential test to be applied is whether or not the operation of the portion of the business within the state is dependent upon or contributory to the operation of the business outside the state. If there is such a relationship, the business is unitary.’
“In the Crawford case the facts were similar to [the] case here being reviewed. The company headquarters kept the books for all the manufacturing plants in other states; fiscal policies were planned and carried out at the home office; and central purchasing was done by the home office. The Court stated that the operation of the central purchasing division alone demonstrates clearly that Crawford’s home office and its three manufacturing plants stand in the relationship of reflected dependency, mutual contribution and mutual benefits.
“In the area of persuasive authority, the Board examines Container Corp. of America v. Franchise Tax Bd., 117 Cal. App. 3d 988, 173 Cal. Rptr. 121 (1981) [, aff'd _ U.S. __, 77 L.Ed.2d 545, reh. denied _ U.S. __, 78 L.Ed.2d 248 (1983),] where the California Court enunciated three factors a court must consider in determining whether a business is unitary. They are: unity of ownership; unity of operations as evidenced by central purchasing, accounting and management; and, unity of use in its centralized executive force and general system of operation. All of these tests have been met in the instant case.
“The Board therefore finds that Pioneer Bag and Pioneer Container were engaged in a unitary business during the period of time under appeal in the case herein.”
We find no error in the Board’s conclusion the corporations herein were engaged in a unitary business. In fact, the findings herein portray virtually a textbook example of a unitary business operation.
For its third issue plaintiff contends the Board of Tax Appeals erred in affirming the Director of Taxation’s determination he had authority to require Pioneer Container Corporation and Pioneer Bag Company to submit their income tax returns on the basis of a combined reporting method.
After having found the two corporations herein were engaged in a unitary business the Board of Tax Appeals determined:
“The Board further finds that Kansas has the authority pursuant to K.S.A. 79-32,141 to require the combined report method of allocation of income and expenses, when it is found that two or more corporations are engaged in a multistate or multinational unitary business.
“The Board . . . concludes that a combined report method of allocation and apportionment of income and expenses is authorized by Kansas law.”
The Board then concluded the method of allocation and apportionment utilized herein had not been applied in an unconstitutional manner. This latter determination has not been appealed and, accordingly, is not before us.
In affirming the Board of Tax Appeals, the district court held:
“K.S.A. 79-32,141 authorizes the utilization of the combined report method of allocation of income and expenses when it is determined that two or more corporations are engaged in a multistate unitary business. Therefore the Board correctly concluded that a combined report method of allocation and apportionment of income and expenses is authorized by Kansas law.”
Before proceeding to a discussion of what the “combined report method” of allocation of income and expenses is and is not, it is appropriate to summarize the general scheme of Kansas taxation relative to taxpayers having income from business activity which is taxable both within and without the state. In 1963 Kansas adopted the Uniform Division of Income for Tax Purposes Act (UDITPA), K.S.A. 79-3271 et seq., L. 1963, ch. 485. The basic structure and purpose of the Uniform Act were summarized in Amoco Production Co. v. Armold, Director of Taxation, 213 Kan. 636, 518 P.2d 453 (1974), as follows:
“The Uniform Act was approved by the National Conference of Commissioners on Uniform State Laws and by the House of Delegates of the American Bar Association in 1957 (Vol. 7 Uniform Laws Annotated, p. 365). Professor William J. Pierce, of the University of Michigan Law School, a member of the National Conference, was the draftsman. In a treatise analyzing the provisions of the Act appearing in Vol. 35, ‘TAXES’ The Tax Magazine (October 1957), commencing at page 747, Professor Pierce states that its basic purpose should be the simplification of computing state taxes and that, ‘the Act, if adopted in every state having a net income tax or a tax measured by net income, would assure that 100 percent of income, and no more or no less would be taxed.’ The Uniform Act was first adopted by Alaska in 1960, followed by Arkansas in 1961, and Kansas in 1963. At the time this action was tried it had been adopted in substantially its original form in twenty-three states.
“K.S.A. 79-3272 of the Uniform Act mandates that any taxpayer (with certain exceptions not pertinent herein) having income from business activity taxable both within and without this state shall allocate and apportion his net income as provided in the Act.
“The ‘three-factor’ formula is set out in K.S.A. 79-3279 which reads:
‘All business income shall be apportioned to this state by multiplying the income by a fraction, the numerator of which is the property factor plus the payroll factor plus the sales factor, and the denominator of which is three.’
“The three factors are defined in the following section of the Act. K.S.A. 79-3280 defines the property factor in this fashion:
“ ‘The property factor is a fraction, the numerator of which is the average value of the taxpayer’s real and tangible personal property owned or rented and used in this state during the tax period and the denominator of which is the average value of all the taxpayer’s real and tangible personal property owned or rented and used during the tax period.’
“K.S.A. 79-3281 and 79-3283 prescribe rules for the valuation of owned and rented property and the averaging of the values thereof.
“The ‘payroll factor’ is defined in K.S.A. 79-3283:
“ ‘The payroll factor is a fraction, the numerator of which is the total amount paid in this state during the tax period by the taxpayer for compensation, and the denominator of which is the total compensation paid everywhere during the tax period.’
“The ‘sale factor’ is defined in K.S.A. 79-3285:
“ ‘The sales factor is a fraction, the numerator of which is the total sales of the taxpayer in this state during the tax period, and the denominator of which is the total sales of the taxpayer everywhere during the tax period.’
“The provisions of the Uniform Act most critical to this litigation appear in K.S.A. 1973 Supp. 79-3288 which read in pertinent part:
‘If the allocation and apportionment provisions of this act do not fairly represent the extent of the taxpayer’s business activity in this state, the taxpayer may petition for or the secretary of revenue may require, in respect to all or any part of the taxpayer’s business activity, if reasonable:
“ ‘(a) Separate accounting;
‘(b) the exclusion of any one or more of the factors;
“ ‘(c) the inclusion of one or more additional factors which will fairly represent the taxpayer’s business activity in this state; or
“ ‘(d) the employment of any other method to effectuate an equitable allocation and apportionment of the taxpayer’s income; or . . .’
“This section of the Act is frequently referred to as the ‘relief provision (Vol. 1972 Utah Law Review, p. 607; and Vol. 15 University of California Los Angeles Law Review [1967], [Keesling and Warren], Corporate Taxation, pp. 156, 171).” 213 Kan. at 639-41.
At issue in Amoco was the propriety of the Director of Taxation’s assessment of Amoco on the basis of separate accounting pursuant to K.S.A. 79-3288(a) rather than apportionment of income under the three-factor formula. In Amoco this court recognized allocation and apportionment under the three-factor formula is the general rule of UDITPA and the alternative methods under the “relief’ provision (K.S.A. 79-3288) are the exceptions.
Presently twenty-five states have adopted UDITPA with another eleven having enacted substantially similar legislation. 7A U.L.A. 13 (1984 Supp.); Am. Jur. 2d Desk Book, p. 225 (1983 Supp.).
A good summary of the cases decided under UDITPA is found at Annot., Construction and Application of Uniform Division of Income for Tax Purposes Act, 8 A.L.R.4th 934. See also Comment, State and Local Taxation: Challenges to the Apportionment of Corporate Income, 20 Washburn L.J. 679 (1981); Comment, Taxation: The Uniform Division of Income for Tax Purposes Act, 14 Washburn L.J. 415 (1975).
Nowhere in UDITPA is there any reference to “combined reporting” or the “combined report method.” In Caterpillar Tractor Co. v. Dept. of Rev., 289 Or. 895, 618 P.2d 1261 (1980), the Oregon Supreme Court succinctly distinguished combined and consolidated returns.
“A combined report is an accounting method whereby each member of a group carrying on a unitary business computes its individual taxable income by taking a portion of the combined net income of the group. A consolidated return is a taxing method whereby two corporations are treated as one taxpayer.” 289 Or. at 898.
To contrast more fully “combined reporting” from a “consolidated return,” reference should be made to the Kansas tax statute relative to the filing of consolidated returns (K.S.A. 79-32,142) which provides:
“(a) In the event two or more corporations file federal income tax returns on a consolidated basis, and in the event that all of such corporations derive all of their income from sources within Kansas, then, and in such events, such corporations shall file consolidated returns for purposes of determining their Kansas income tax liability the same as if such corporations were one corporation.
“(b) The director may permit or require any group of affiliated corporations to file consolidated returns under regulations to be promulgated by the director where the director determines, that the filing of such consolidated returns is necessary to clearly reflect the Kansas taxable income of the affiliated group. For purposes hereof, any affiliated group means any group of corporations permitted to file a consolidated return for federal income tax purposes.”
The above quoted version was in force for the tax years (1978 through 1980) here in question. In 1980 the Kansas Legislature amended K.S.A. 79-32,142 by adding “and expenses” after the phrase “of such corporations derive all of their income” in subsection (a). L. 1980, ch. 316, § 14. See K.S.A. 1983 Supp. 79-32,142. See also K.A.R. 1983 Supp. 92-12-52 and K.A.R. 92-12-52 (1978).
A combined report is not the same as a consolidated return and does not in any way result in the taxing of one corporation on or measured by the income of another. Actually, the combined report is not a tax return, but, rather, is in the nature of an information return. Notwithstanding its use, each corporation doing business in the taxing state is taxed on or measured by only its own income from sources within the state. However, if the corporation doing business in the state is a member of an affiliated group conducting a business within and without the state, then instead of computing the income attributable to the state on the basis of the corporation’s books of account (which may reflect the operation of only a small segment of the business), the apportionment is made with reference to the income from the entire business just as would be done if the business had been conducted by one entity. Keesling, A Current Look at the Combined Report and Uniformity in Allocation Practices, 42 J. Tax’n 106, 109 (1975). See also Caterpillar Tractor Co. v. Dept. of Rev., 289 Or. at 899.
Courts in a number of states which have adopted UDITPA have been confronted with the question of whether the failure of the Uniform Act specifically to allow combined reporting or unitary apportionment means its application is not authorized. In Caterpillar Tractor Co. v. Lenchos, 84 Ill. 2d 102, 417 N.E.2d 1343 (1981), the Illinois Supreme Court held:
“Considering whether UDITPA authorizes the use of unitary apportionment, we first observe that UDITPA does not make any reference to unitary apportionment or combined reporting. The absence of specific reference to the unitary method is not, however, critical, for in a number of jurisdictions that adopted UDITPA and in some of them, the MTC [Multi-State Tax Compact] as well, courts have held that unitary apportionment or combined reporting was authorized though the particular income tax statute made no reference to this method of reporting. In Coca Cola Co. v. Department of Revenue (1975), 271 Or. 517, 533 P.2d 788, the Oregon Department of Revenue applied a unitary or combined apportionment method of accounting to the income tax returns of the plaintiff corporation and its wholly owned subsidiaries, which had filed separate returns using Oregon’s three-factor apportionment formula, which is similar to that set out in the Illinois statute. The Department argued that the combined method, though not specifically provided for in the tax statutes into which UDITPA had been incorporated, would more accurately reflect the income of what it contended was a unitary business operation. Concluding that the company’s syrup and bottling operations were so inextricably connected as to constitute a unitary business, the court stated: ‘The combined method of apportionment reporting is wholly consistent with, and a natural extension of, the apportionment method.’ (271 Or. 517, 528, 533 P.2d 788, 793.) The court held that the plaintiff and its subsidiaries ‘are all part of the same unitary operation and were required to use the combined method of reporting for the tax years in question.’ 271 Or. 517, 529, 533 P.2d 788,794. See also American Smelting & Refining Co. v. Idaho State Tax Com. (1979), 99 Idaho 924, 592 P.2d 39; Montana Department of Revenue v. American Smelting & Refining Co. (1977), 173 Mont. 316, 567 P.2d 901.
“The Supreme Court has also held that the absence of any statutory reference to the unitary method of reporting does not forbid its use. In Butler Brothers v. McColgan (1942), 315 U.S. 501, 86 L.Ed. 991, 62 S.Ct. 701, the plaintiff, an Illinois corporation conducting a wholesale goods and general merchandise business, was licensed to conduct business in California. The company had wholesale distributing divisions located in seven states, including California, each serving a district area and each controlling its own sales force, accounting procedures, sales operations and credit and financing procedures as well. Though the California tax statute did not specifically authorize the combined method of reporting or make any references to unitary operations, the court upheld the State’s decision to apply the unitary method to the combined income derived from the operations of the seven divisions. In its holding the court stated that ‘this Court has recognized that unity of the use and management of a business which is scattered through several states may be considered when a State attempts to impose a tax on an apportionment basis. As stated in Hans Rees’ Sons, Inc. v. North Carolina, [283 U.S. 123, 133, 75 L.Ed. 879, 905, 51 S.Ct. 385, 389 (1931)], “the enterprise of a corporation which manufactures and sells its manufactured product is ordinarily a unitary business, and all the factors in that enterprise are essential to the realization of profits.” ’ 315 U.S. 501, 508,86 L.Ed. 991, 996, 62 S.Ct. 701, 704-05.
“In a later case, Northwestern States Portland Cement Co. v. Minnesota (1959), 358 U.S. 450, 3 L.Ed.2d 421, 79 S.Ct. 357, the court addressed a similar challenge to the use of a unitary apportionment method, and in citing Hans Rees’ and other apportionment decisions (e.g., Bass, Ratcliff & Gretton, Ltd. v. State Tax Com. (1924), 266 U.S. 271, 69 L.Ed. 282, 45 S.Ct. 82; Underwood Typewriter Co. v. Chamberlain (1920), 254 U.S. 113, 65 L.Ed. 165, 41 S.Ct. 45) the court upheld the use declaring; ‘These cases stand for the doctrine that the entire net income of a corporation, generated by interstate as well as intrastate activities, may be fairly apportioned among the States for tax purposes by formulas utilizing in-state aspects of interstate affairs.’ 358 U.S. 450, 460, 3 L.Ed.2d 421, 428, 79 S.Ct. 357, 363. See also Exxon Corp. v. Wisconsin Department of Revenue (1980), 447 U.S. 207, 65 L.Ed.2d 66, 100 S.Ct. 2109; Mobil Oil Corp. v. Commissioner of Taxes (1980), 445 U.S. 425, 65 L.Ed.2d 510, 100 S.Ct. 1223.” 84 Ill. 2d 118-20. (Emphasis supplied.)
The Illinois rationale set forth in Caterpillar was recently approved by the Nebraska Supreme Court in PMD Investment Co. v. State, 216 Neb. 553, 345 N.W.2d 815 (1984).
K.S.A. 79-32,141 provides:
“The director may allocate gross income, deductions, credits, or allowances between two or more organizations, trades or businesses (whether or not incorporated, or organized in the United States or affiliated) owned or controlled directly or indirectly by the same interests, if the director determines such allocation is necessary to prevent evasion of taxes orto clearly reflect income of the organizations, trades or businesses.” (Emphasis supplied.)
K.S.A. 79-3292 declares Kansas’ version of the Uniform Act shall be and constitute a part of and shall be supplemental to the Kansas income tax act.
Joslin Dry Goods v. Dolan, 200 Colo. 291, 615 P.2d 16 (1980), involves Colorado statutes very similar to K.S.A. 79-32,141 and -3288. Joslin was a Colorado corporation, wholly owned by a Delaware corporation which was engaged in the retail department store business throughout the United States. During the tax year in question Joslin filed its Colorado corporate income tax return using a separate accounting method. The state director of revenue determined the Delaware parent corporation and its wholly-owned Colorado subsidiary constituted a unitary operation and therefore, under the three-factor formula (see K.S.A. 79-3279), Joslin should present its income tax return on a combined method. One of the contentions before the Colorado Supreme Court was that while the state’s taxing statutes, like Kansas’, made explicit reference to consolidated returns (see K.S.A. 79-32,142; -3288[<?]; also K.A.R. 92-12-52 [1978]), as the statutes did not mention combined reporting, such method was impermissible. The Colorado Supreme Court reviewed cases from numerous jurisdictions then succinctly observed:
“The law in other jurisdictions which have addressed this issue is clear — the power of the taxing authority to require a combined report is independent of the power to require a consolidated return.” 200 Colo, at 295. (Emphasis supplied.)
The United States Supreme Court has also addressed the power of a state to tax a unitary enterprise which is engaged in multi-state and even multi-national operations. See Comment, State and Local Taxation: Challenges to the Apportionment of Corporate Income, 20 Washburn L.J. 679 (1981), for a good review of the high court’s opinions in this area. In Container Corporation of America v. Franchise Tax Bd., _ U.S. _, 77 L.Ed.2d 545, 103 S.Ct. 2933, reh. denied _ U.S. _, 78 L.Ed.2d 248 (1983), the United States Supreme Court again approved, in general, the three-factor income allocation formula set forth in UDITPA. As to its application to a particular unitary business, the high court stated:
“The first, and again obvious, component of fairness in an apportionment formula is what might be called internal consistency — that is the formula must be such that, if applied by every jurisdiction, it would result in no more than all of the unitary business’s income being taxed. The second and more difficult requirement is what might be called external consistency — the factor or factors used in the apportionment formula must actually reflect a reasonable sense of how income is generated. The Constitution does not ‘invalidat[e] an apportionment formula whenever it may result in taxation of some income that did not have its source in the taxing State.’ ”_ U.S. at_, 77 L.Ed.2d at 556.
Continuing:
“[W]e will strike down the application of an apportionment formula if the taxpayer can prove ‘by “clear and cogent evidence” that the income attributed to the State is in fact “out of all appropriate proportions to the business transacted in that State,” ... or has “led to a grossly distorted result . . . .” ’ ” _U.S. at_, 77 L.Ed.2d at 556.
As previously noted, there is no issue before us relative to the Board of Tax Appeals’ conclusion the apportionment formula had not been unconstitutionally applied herein.
Based on the rationale heretofore expressed and authorities cited, we conclude:
1. The absence in UDITPA of any specific reference to combined report method of allocation of income and expenses does not preclude its appropriate application to a unitary business;
2. The combined report method of allocation of income and expenses is wholly consistent with and a natural extension of the allocation and apportionment purpose of UDITPA and its three-factor formula rather than an exception thereto; and
3. K.S.A. 79-32,141 authorizes utilization of the combined report method of allocation of income and expenses when it is properly determined two or more corporations are engaged in a multi-state unitary business.
The judgment of the district court sustaining the order of the Board of Tax Appeals is affirmed.
Prager, J., not participating. | [
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The opinion of the court was delivered by
McFarland, J.:
Gary W. Brown was convicted of the first-degree murder: (K.S.A. 21-3401) of John Brown and the aggravated battery (K.S.A. 21-3414) of Peggy Ensley. Peggy and defendant had previously lived together in a relationship with some of the indicia of a common law marriage. John Brown was the husband of Peggy’s sister. On December 10, 1982, defendant shot the victims while' they were sitting in John Brown’s van in Viola, Kansas. The defense raised at the j'ury trial was insanity. Defendant appeals his convictions.
The first issue presented is alleged improper limitation of defense counsel’s cross-examination of the State’s expert psychiatric witness. The question propounded was:
“Doctor, you would agree with me that it’s not fair to send an insane man to jail, is it?”
The State’s objection on the grounds of relevancy and materiality was sustained by the trial court on the ground of materiality.
The witness had testified on direct examination as to defendant’s mental capacities and psychological composition relative to the time of the shootings. The question propounded by defense counsel was seeking the personal opinion of the witness on one aspect of the judicial system.
The extent of cross-examination for purposes of impeachment lies largely within the sound discretion of the trial court. State v. Wheeler, 215 Kan. 94, 99, 523 P.2d 722 (1974); State v. Osburn, 171 Kan. 330, 333, 232 P.2d 451 (1951). Absent proof of clear abuse, the exercise of that discretion will not constitute prejudicial error. State v. Jones, 233 Kan. 112, 114, 660 P.2d 948 (1983). Discretion is abused when no reasonable person would take the position adopted by the trial court. State v. Stellwagen, 232 Kan. 744, Syl. ¶ 3, 659 P.2d 167 (1983).
We conclude no abuse of discretion has been shown in the trial court’s limitation of defense counsel’s cross-examination of the State’s expert witness.
The second issue is whether the trial court erred in denying defendant’s pretrial motion to be notified of the time and place of the State’s psychiatric examination of defendant and in refusing defense counsel’s request to be present at the examination. The State presented a letter from the expert who was to conduct the examination stating the presence of a third party would be improper and could alter the results of the examination. The expert had extensive experience in conducting this type of examination for criminal proceedings.
Defendant does not specifically argue that he had a constitutional right to have his counsel present at the examination. The issue of whether such examination affords defense counsel a constitutional right to be present is considered at Annot., Right of Accused in Criminal Prosecution to Presence of Counsel at Court-Appointed or -Approved Psychiatric Examination, 3 A.L.R. 4th 910. The majority rule is that such an examination is not a “critical stage” of the proceeding vesting defendant with a constitutional right to have his counsel present. As noted in the annotation, a number of jurisdictions have held that an accused is not entitled to have counsel present on the ground that counsel’s presence would limit the effectiveness of the examination. We concur with both of these rationales.
Defendant asserts his counsel should be allowed to be present at the examination for the reason his presence was necessary for full disclosure. He relies heavily on State v. Pyle, 216 Kan. 423, 532 P.2d 1309 (1975), in support of this contention, but such reliance is misplaced. Pyle involved a situation where the defendant had been through a competency to stand trial evaluation and later asserted an insanity defense. Defendant then sought to use the experts involved in the competency proceeding as experts for his insanity defense. However, he desired to use the shield forbidding disclosure of statements made by defendant in the competency proceedings (K.S.A. 22-3302[3]) in limiting cross-examination of the experts when called by him as experts in support of his insanity defense at trial. As noted by this court:
“We do not believe, however, that the statute [K.S.A. 22-3302] was intended to extend the privilege beyond the extent necessary to effectuate its purpose. It is designed as a shield, not a sword. If the defendant proposes to alter the roles of the examining doctors from competency examiners to insanity defense experts, he must comply with the disclosure provisions of the insanity defense statute. If they take the stand, they, like any other experts, are subject to cross-examination as to the basis for their opinions. If the opinions are based on statements made by the defendant, those statements must be revealed, and to that extent the statutory privilege is waived.” 216 Kan. at 443.
Ry some recondite reasoning, defendant contends the Pyle decision mandates that his counsel be present at the psychiatric examination of the defendant by the State’s expert witness relative to defendant’s insanity defense. We conclude a defendant asserting an insanity defense in a criminal proceeding has no right to require his counsel be given prior notice of the time and place of the State’s psychiatric examination of the defendant or to have his counsel present at the examination. Accordingly, the trial court did not err in the complained-of rulings relative thereto.
The third issue presented is whether the trial court erred in denying defendant’s motion to suppress certain extrajudicial statements made by him. Defendant contends that, by virtue of his psychological imbalances, he lacked the capacity to make voluntary statements during the police interrogation.
The trial court, in denying the motion, found:
“By a preponderance of the evidence, I’ll have to find that on the tenth day of December of last year, following a fairly short interview session for a period of time that was conducted in a very reasonable manner with the defendant having normal ability to communicate, considering Mr. Brown’s age which is forty-three, considering him to either be —• to either have an eleventh grade or twelfth grade education depending on whether the interview sheet or the information he gave to Detective Willey or the information that he gave to Dr. Schalon is correct, considering the fairness of the interview and the officers’ conduct toward the defendant, the lack of any promises either direct or casual, I find the statement to have been freely and independently made, a product of the defendant’s free and independent will, and will overrule the motion to suppress.”
When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statément 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. State v. Knapp, 234 Kan. 170, 671 P.2d 520 (1983); State v. Kanive, 221 Kan. 34, 558 P.2d 1075 (1976).
The trial court’s findings relative to the voluntariness of defendant’s extrajudicial statements are supported by substantial competent evidence and will not, accordingly, be disturbed on appeal.
The final issue raised is alleged abuse of discretion by the trial court in permitting the jury to begin its deliberations at 5:01 p.m. on Good Friday of Easter weekend. This issue was first raised in defendant’s motion for a new trial. The record indicates the jury was asked whether it wished to begin deliberations immediately or recess for the weekend. The jury responded it would like to deliberate for a while and brought in a verdict shortly after 7:00 p.m.
We conclude this issue is without merit.
The judgment is affirmed. | [
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Standridge, J.:
James Duncan, Jr., was convicted of driving under the influence (DUI) of alcohol to an extent that rendered him incapable of safely driving a vehicle, in violation of K.S.A. 2006 Supp. 8-1567(a)(3) and (e) (second offense) and failure to illuminate headlights when required, in violation of K.S.A. 2006 Supp. 8-1703(a)(l). This is his direct appeal.
Facts
On January 19,2007, at approximately 11:06 p.m., Deputy Justin Crafton of the Sedgwick County Sheriff s Office was in his vehicle driving on a street in Wichita when he saw' another vehicle traveling in the opposite direction with its fog lights turned on, but not its headlights. According to Crafton, it was dark outside and the roads were “somewhat icy” and covered in slush. Crafton turned his vehicle around and eventually pulled over the vehicle. When Crafton made contact with the driver, later identified as Duncan, Crafton smelled “a very strong odor of alcoholic beverage” emanating from Duncan. Crafton also observed that Duncan’s eyes were bloodshot and watery and that his speech was slurred.
As part of a “divided attention test” (a test where an officer asks a suspected impaired driver to complete two tasks at once — the theory being that an impaired person will not remember to complete both tasks), Crafton asked Duncan for his driver’s license and proof of insurance, and Duncan only remembered to give Crafton his driver’s license. Crafton asked Duncan where he was coming from, and Duncan told him that he was coming from a liquor store. Crafton then asked Duncan to exit the vehicle in order to conduct field sobriety testing. Crafton noticed that when Duncan exited the vehicle, he was “unsteady.”
Crafton asked Duncan to perform the walk-and-tum and the one-leg-stand tests. Crafton stated that during the “demonstration and explanation phase” of the walk-and-turn test — where subjects are required to stand with their right foot directly in front of their left in a heel-to-toe position as they listen to instructions — Duncan lost his balance several times while Crafton was explaining the test to him. Crafton stated that Duncan eventually gave up standing heel-to-toe and simply stood with his feet side by side. During the testing phase, Duncan failed to walk in a straight line, used his arms for balance, and took an incorrect number of steps. During the one-leg-stand test, Duncan used his arms for balance and failed to stand on one foot throughout the duration of the test. Crafton believed Duncan’s performances on both tests indicated that Duncan was impaired.
Crafton ultimately arrested Duncan for DUI and searched his car, finding an opened botde of “MD 20/20” containing half an inch of liquid in the bottle and an unopened bottle of Bud Light. Crafton then transported Duncan to the Sedgwick County Detention Facility where, after providing Duncan with the applicable written and oral statutory notices, Crafton asked Duncan if he would take an evidentiary breath test. Duncan refused to submit to testing. Subsequently, Crafton issued a citation to Duncan for DUI (second offense) and failure to have his headlights illuminated when required.
Duncan’s case proceeded to a bench trial where Crafton testified to the above-mentioned facts. Furthermore, the State introduced into evidence a DVD recording of Duncan’s performance on the field sobriety tests. This recording is not included in the record on appeal, but according to the district court, the DVD showed that Duncan clearly had problems with performing the walk-and-tum and one-leg-stand tests.
At the bench trial, Duncan took the witness stand and admitted to drinking “about two cans of beer” 45 minutes prior to being pulled over. Duncan claimed, however, that the beer did not affect his ability to drive a vehicle. Duncan admitted to driving without his headlights turned on, but stated that the street on which Crafton saw him driving was well lit and that the dash lights of his vehicle were turned on, making Duncan believe that his headlights were illuminated. When he turned his vehicle onto another street, Duncan stated that he realized his headlights were off and quicldy turned them on.
With regard to the field sobriety tests that Crafton had him perform, Duncan claimed that the coldness and the snow and ice on the streets caused him to be nervous, thereby affecting his performance on the walk-and-tum and one-leg-stand tests. During cross-examination, Duncan stated that he knew if he submitted to breath testing and the results showed that he was not intoxicated, there would be no adverse consequences to his license, and he would be allowed to go home. With regard to the bottle of MD 20/20 found in his car, Duncan admitted that it was a type of wine but claimed he did not drink any of it that night.
After hearing all the evidence and arguments of counsel, as well as viewing the DVD showing Duncan perform the field sobriety tests, the district court found Duncan guilty of DUI and failing to have his headlights illuminated when required. The district court sentenced Duncan to an underlying jail sentence of 12 months and placed him on probation for 1 year. Prior to being placed on probation, the district court ordered Duncan to first serve 2 days in jail and then 8 days under house arrest. Finally, the district court ordered Duncan to pay fines totaling $1,560 ($1,500 for the DUI and $60 for failure to have his headlights illuminated).
Analysis
On appeal, Duncan claims his convictions must be vacated and the charges against him dismissed because the State failed to present sufficient evidence to convict him of either DUI or failing to have his headlights illuminated when required. Alternatively, Duncan claims his DUI conviction must be vacated and the charge remanded for a new trial on grounds that (1) the district court erred in allowing Deputy Crafton to testify that Duncan’s performance on the walk-and-tum and one-leg-stand tests indicated his blood alcohol concentration (BAC) was over .08; (2) his constitutional right to a jury trial was violated because he was never informed of or waived his right to a jury trial; (3) K.S.A. 22-3404 should be stricken as unconstitutional because it unlawfully restricts the time period within which persons charged with misdemeanors must request a jury trial; (4) the district court erred in sentencing Duncan; and (5) the district court erred when it allowed the State to reopen its case after it rested.
For the reasons stated below, we find there was sufficient evidence presented at trial to convict Duncan for DUI and for failing to have his headlights illuminated when required. We further find, however, that Duncan unlawfully was denied the constitutional right to have his case tried to a jury instead of a judge. As such, we reverse the DUI conviction and remand for a new trial with directions. Given our decision to reverse and remand for a new trial on this ground, we find it unnecessaiy to determine whether the al tentative grounds submitted by Duncan in support of reversal and remand have any merit.
Sufficiency of the Evidence
Duncan argues that the State failed to present sufficient evidence to convict him of either DUI or failure to have his headlights illuminated when required. When the sufficiency of the evidence is challenged in a criminal case, an appellate court reviews all the evidence in the light most favorable to the prosecution to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Trautloff, 289 Kan. 793, 800, 217 P.3d 15 (2009). In its review of the evidence, an appellate court will not reweigh the evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. State v. Hayden, 281 Kan. 112, 132, 130 P.3d 24 (2006).
The State presented sufficient evidence to convict Duncan of DUI.
As noted above, Duncan was charged pursuant to K.S.A. 2006 Supp. 8-1567(a)(3) for operating a vehicle while “under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle.” In State v. Blair, 26 Kan. App. 2d 7, Syl. ¶ 2, 974 P.2d 121 (1999), a panel of this court stated: “Evidence of incapacity to drive safely can be established through sobriety tests and other means. Observed erratic driving is not a requirement for conviction of driving while under the influence of alcohol.” The panel ultimately found the State presented sufficient evidence to convict Blair of DUI under K.S.A. 1997 Supp. 8-1567(a)(3) even though there was no evidence showing that she drove her vehicle in an erratic manner. 26 Kan. App. 2d at 7-8.
The evidence presented here showed that after pulling Duncan over for failing to have his headlights illuminated, Crafton made contact with Duncan and smelled “a very strong odor of alcoholic beverage” emanating from him, observed that his eyes were bloodshot and watery, and noticed that his speech was slurred. In order to assess impairment, Crafton requested Duncan complete a two-part task: produce his driver s license and proof of insurance. Duncan only remembered to give Crafton his driver’s license. Crafton asked Duncan where he was coming from, and Duncan told him that he was coming from a liquor store. When Duncan exited his vehicle, Crafton noticed that Duncan was “unsteady.”
Crafton had Duncan perform the walk-and-tum and the one-leg-stand tests. Duncan’s performance on these tests indicated to Crafton that Duncan was impaired and unable to safely operate a vehicle. A DVD recording was introduced into evidence at the bench trial showing Duncan performing the field sobriety tests. Though this DVD is not part of the record on appeal, the district court reviewed a copy of the DVD showing Duncan performing the field sobriety tests and noted at the bench trial that Duncan had numerous problems with performing both tests. The court also stated that Duncan’s problems appeared not to be related to the weather or the road conditions.
After arresting Duncan, Crafton searched Duncan’s car and found an opened bottle of MD 20/20 containing half an inch of liquid in the bottle and an unopened bottle of Bud Light. At trial, Duncan conceded that MD 20/20 was a type of wine but claimed that he did not consume any of it that night. Nevertheless, Duncan admitted to drinking “about two cans of beer” 45 minutes prior to being pulled over. When confronted at trial with his refusal to submit to an evidentiary breath test, Duncan stated he knew that if he had submitted to testing and the results showed that he was not intoxicated, there would have been no adverse effect upon his license and he would have been allowed to go home. See K.S.A. 2006 Supp. 8-1001(i) (“The person’s refusal [to submit to testing] shall be admissible in evidence against the person at any trial on a charge arising out of the alleged operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both.”).
Viewing all of this evidence in the light most favorable to the prosecution, we believe a rational factfinder could find that Duncan consumed alcohol prior to operating a vehicle and that, based on his demeanor during the traffic stop and his performance on the field sobriety tests, such consumption impaired psychomotor skills that are essential to safely driving a vehicle. In other words, a rational factfinder could find beyond a reasonable doubt that Duncan was operating his vehicle while under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle. For these reasons, we conclude that the State presented sufficient evidence to convict Duncan of DUI under K.S.A. 2006 Supp. 8-1567(a)(3).
The State presented sufficient evidence to show that Duncan failed to have the headlights of his vehicle illuminated while driving after sunset.
K.S.A. 2006 Supp. 8-1703 states:
“(a) Every vehicle ... upon a highway within this state, at all times shall display lighted head and other lamps and illuminating devices as required for different classes of vehicles, subject to exceptions with respect to parked vehicles:
(1) From sunset to sunrise;
(2) when due to insufficient light or unfavorable atmospheric conditions, including smoke or fog, persons and vehicles on the highway are not clearly discernible at a distance of 1,000 feet ahead; or
(3) when windshield wipers are in continuous use as a result of rain, sleet or snow.” (Emphasis added.)
K.S.A. 8-1424 defines “highway” as “the entire width between the boundary lines of eveiy way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.”
The State presented evidence at trial that established that Duncan was driving his vehicle at 11:06 p.m. on a public street in Wichita without his vehicle’s headlights turned on. In fact, Duncan conceded this fact at trial during his testimony and closing argument. We may take judicial notice that on the date of Duncan’s arrest, January 19, 2007, sunset occurred prior to 11:06 p.m. in Wichita, Kansas. See K.S.A. 60-409(a) (judicial notice may be taken of such facts generally known or of such common notoriety that they cannot reasonably be the subject of dispute); Martin v. Kansas Dept. of Revenue, 38 Kan. App. 2d 1, 6-7, 163 P.3d 313 (2006) (taking judicial notice that sunset occurred prior to 9:20 p.m. on April 28, 2004, in Glaseo, Kansas). For these reasons, we find sufficient evidence was presented at trial showing, beyond a reasonable doubt, that Duncan violated K.S.A. 2006 Supp. 8-1703(a)(l).
Simply put, we find no merit to Duncan’s claims of insufficient evidence.
Right to Trial hy Jury
Duncan argues his conviction for DUI must be reversed because he was unlawfully denied the constitutional right to have his case tried to a jury instead of a judge.
Duncan did not raise this issue before the district court. Generally, issues not raised before the district court cannot be raised on appeal. State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007). There are exceptions to this rule, however, including where (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case, (2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights, or (3) the judgment of the trial court may be upheld on appeal despite its reliance on the wrong ground or reasons. 283 Kan. at 339. With regard to the second exception, a panel of this court previously has recognized “[tjhere is no more fundamental right in the United States than the right to a jury trial.” State v. Larraco, 32 Kan. App. 2d 996, 999, 93 P.3d 725 (2004). Accordingly, we will address the merits of whether Duncan’s constitutional right to a jury trial was violated in this case. See State v. Bowers, 42 Kan. App. 2d 739, 740, 216 P.3d 715 (2009) (deciding to address a jury trial waiver issue for the first time on appeal because “the consideration of the denial of a right to a jury trial is necessary to prevent the denial of a fundamental right”).
Determining whether Duncan effectively waived his right to a jury trial requires constitutional interpretation; thus, our review is unlimited. See State v. Morfitt, 25 Kan. App. 2d 8, 11, 956 P.2d 719, rev. denied 265 Kan. 888 (1998). We begin our analysis by reviewing the right to trial by jury that is guaranteed by both the United States and the Kansas Constitutions.
The Sixth Amendment to the United States Constitution, which applies to the states through the Fourteenth Amendment, guarantees a jury trial to any defendant charged with a crime punishable by more than 6 months of imprisonment. Lewis v. United States, 518 U.S. 322, 325-26, 116 S. Ct. 2163, 135 L. Ed. 2d 590 (1996); State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975). Likewise, Section 5 of the Kansas Constitution Bill of Rights states that “[t]he right of trial by jury shall be inviolate.” A defendant’s constitutional right to be tried by a jury rather than solely by the court is “ ‘fundamental to the American scheme of justice.’ ” Irving, 216 Kan. at 589 (quoting Duncan v. Louisiana, 391 U.S. 145, 149, 88 S. Ct. 1444, 20 L. Ed. 2d 491 [1968]).
Nevertheless, a defendant can waive his or her constitutional right to a jury trial. Irving, 216 Kan. at 589. In order for a defendant to effectively waive his or her constitutional right to a jury trial, however, two conditions must be met: (1) the trial court must advise the defendant of his or her right to a jury trial, and (2) the defendant must waive the right personally, either in writing or in open court for the record. Waiver will not be presumed upon a silent record. 216 Kan. at 589-90.
As Duncan asserts, he had a constitutional right to a jury trial with regard to the DUI charges against him because that crime was punishable by more than 6 months of imprisonment. See K.S.A. 2006 Supp. 8-1567(e) (providing that upon a second conviction for driving under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle, such person shall be sentenced to not less than 90 days nor more than 1 year’s imprisonment). In support of the assertion that his constitutional right to a jury trial was violated, Duncan argues there is no evidence in the record that the district court advised him of his right to a jury trial or that he personally waived his right to a jury trial in writing or in open court. See Irving, 216 Kan. at 589 (waiver of the right to a jury trial will not be presumed from a silent record).
In response to this argument, the State counters that Duncan’s reference to a silent record is insufficient to satisfy his burden to designate a record which affirmatively shows prejudicial error. See State v. Goodson, 281 Kan. 913, Syl. ¶ 3, 135 P.3d 1116 (2006) (“A party asserting error has the burden to designate a record which affirmatively shows prejudicial error in the trial court, and, without such a record, this court presumes the trial court’s action was proper.”). In Goodson, the defendant appealed the district court’s decision to deny a motion to suppress statements the defendant made to a detective on grounds that the statements were not voluntary. Although there was a videotape of the interview during which the statements were made, the defendant failed to include the videotape or a transcript of the videotape in the record on appeal. The holding in Goodson was grounded in the particular facts of the case: that defendant failed to include in the record on appeal evidence that both existed in the record and was presented to the district court.
Unlike Goodson, there has been no assertion by either party in this case that Duncan failed to include in the record on appeal any evidence that existed in the record and was presented to the district court. This factual distinction is significant because it requires Duncan to prove an absence of evidence; in other words, to prove a negative fact. To that end, and unlike the definitive burden necessary to prove an existing fact, the burden to prove a negative fact does not require a defendant to irrefutably demonstrate the fact does not exist; it requires only that the defendant do what is .ordinary for one who bears a clear and convincing burden of proof, i.e., show that his or her version of the facts is highly probable. See In re B.D.-Y., 286 Kan. 686, 690-98, 187 P.3d 594 (2008); accord In re Chicago Rys. Co., 175 F.2d 282, 290 (7th Cir. 1949) (establishing through evidence that it is probable a fact does not exist may be sufficient to satisfy burden of proof); Zero Wholesale Gas v. Stroud, 264 Ark. 27, 34c, 571 S.W.2d 74 (1978); Dorsey v. Brigham, 177 Ill. 250, 262, 52 N.E. 303 (1898) (same); Shumak v. Shumak, 30 Ill. App. 3d 188, 191, 332 N.E.2d 177 (1975) (same); Young v. Woodman, 18 N.M. 207, 210-11, 135 P. 86 (1913) (same); Higgins v. Salewsky, 17 Wash. App. 207, 210, 562 P.2d 655 (1977) (same); 31A C.J.S. Evidence § 200 (same). Stated another way, the party asserting an absence of evidence to support a claim still bears the burden to prove that claim, but the standard of proof required to satisfy this burden necessarily is less onerous.
We find instructive the Arkansas Supreme Court’s explanation of this alternative standard of proof:
“The ‘burden of evidence’ or ‘of going forward’ is more easily discharged when the proposition is a negative one than when it is a positive one, and the burden of evidence will shift when the evidence, even though circumstantial, renders provable the existence of a negative fact. . . . ‘Full and conclusive proof is not required where a party has the burden of proving a negative, but it is necessary that the proof be at least sufficient to render the existence of the negative probable, or to create a fair and reasonable presumption of the negative until the contraiy is shown.’ ” Stroud, 264 Ark. at 34c (supplemental opinion on petition for rehearing).
Applying the standard of proof applicable in negative evidence cases to the facts presented here, Duncan bears the burden to designate a record that establishes a high probability (as opposed to conclusively) that he did not effectively waive his right to a jury trial. Upon review of the record designated by Duncan, we are satisfied Duncan met his burden in this regard.
The appearance docket contained in the record on appeal shows that several disposition hearings took place in this case prior to the bench trial. Although none of these hearings were recorded, there is nothing contained in the appearance docket or the disposition sheets from these hearings to indicate that the district court ever advised Duncan of his right to a jury trial or that Duncan waived this right. The appearance docket reflects that die only hearing recorded was the bench trial, and Duncan properly added the transcript of this hearing to the record on appeal. Nevertheless, there is nothing in this transcript to suggest, let alone establish, that Duncan was advised of, or waived his right to, a jury trial.
Duncan included in the record on appeal documents and other evidence that typically reflect whether the district court advised a defendant of his or her constitutional right to a juiy trial and whether the defendant waived that right, either in writing or in open court. Review of the record designated by Duncan reveals nothing to indicate that the district court advised Duncan of his constitutional right to a jury trial or that Duncan personally waived his right to a jury trial. And, although it bore no burden to do so, the State did not submit any evidence to refute the silent record affirmatively designated by Duncan in support of his claim that he did not voluntarily and knowingly waive his right to a jury trial.
We are satisfied Duncan met his burden to designate a record establishing a high probability that Duncan did not effectively waive his right to a jury trial on the DUI charge. Because we have found Duncan to have adequately sustained his burden, we necessarily conclude that Duncan was unlawfully deprived of his constitutional right to a jury trial on the DUI charge; thus, Duncan’s conviction for DUI must be reversed and the case remanded for new trial on this claim. See Irving, 216 Kan. at 590 (after determining that the record on appeal did not contain any evidence showing that Irving validly waived his constitutional right to a jury trial, the panel reversed Irving’s convictions for felony DUI and several traffic offenses and remanded for a new trial). Prior to scheduling the new trial, (1) the district court shall advise Duncan in open court on the record of his right to a jury trial; and (2) Duncan shall state either in writing or in open court whether he wants to proceed with a jury trial or waive the right.
Based on our decision to reverse the DUI conviction and remand with directions, we find to be moot the four alternative claims presented by Duncan in support of reversal and remand for a new trial on the DUI charge: (1) the district court erred in allowing Deputy Crafton to testify that Duncan’s performance on the walk- and-tum and one-leg-stand tests indicated his BAC was over .08; (2) K.S.A. 22-3404 should be stricken as unconstitutional because it unlawfully restricts the time period within which persons charged with misdemeanors must request the right to jury trial; (3) the district court erred in sentencing Duncan; and (4) the district court erred when it allowed the State to reopen its case after it rested.
Based on the discussion above, we affirm Duncan’s conviction for failure to illuminate headlights but reverse Duncan’s DUI conviction, and remand for further proceedings consistent with this opinion. | [
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Caplinger, J.:
David Sipe appeals the district court’s denial of his petition for discharge from the Sexual Predator Treatment Program at Lamed State Security Hospital (Lamed). Because we find that Sipe established probable cause entitling him to a hearing on the issue of whether he is safe to be placed in transitional release, we remand to the district court for a hearing pursuant to K.S.A. 2009 Supp. 59-29a08(c)(l).
Factual and Procedural Background
In 1994, Sipe was convicted of aggravated criminal sodomy of a child under the age of 14 and aggravated indecent liberties with a child over 14 and under 16. In 2000, Sipe was involuntarily civilly committed to the custody of the Secretary of the Kansas Depart ment of Social and Rehabilitation Services (SRS) after stipulating he met the statutory criteria of a sexually violent predator under the Sexually Violent Predator Act (SVPA), K.S.A. 59-29a01 et seq.
According to his initial examination and report from Lamed, Sipe met the criteria for “Pedophilia, Sexually Attracted to Females, Nonexclusive Type; and Antisocial Personality Disorder” and had a “very high risk of reoffending.”
Annually from 2001 through 2007, SRS examined Sipe’s mental condition as required by K.S.A. 2009 Supp. 59-29a08(a). On each occasion SRS recommended that Sipe continue to be considered a sexually violent predator and remain in SRS custody. Sipe acknowledged receipt of written notice of the SRS reviews and notice of his right to petition for discharge over SRS’s objection. Each year, the district court reviewed SRS’s reports, noted that Sipe had not petitioned for discharge, and accepted SRS’s findings and recommendations.
However, in January 2008, Sipe filed a pro se petition seeking discharge from treatment or discharge to transitional release. In his petition, Sipe alleged he had successfully completed all prerequisite treatments and that his mental condition and personality disorder had sufficiently changed such that it was safe for him to be discharged from treatment or to transitional release. Sipe further alleged he was indigent and requested appointment of an expert to examine him and provide testimony supporting his petition. Sipe also moved for appointment of counsel. The district court appointed counsel and scheduled a hearing to consider Sipe’s request for appointment of an expert.
After performing the annual examination of Sipe’s mental condition in March 2008, Mayda Nel Strong, Ph.D, found that Sipe had progressed in his treatment program but had been “unable to complete all course requirements” and had maintained satisfactory employment since March 2007. Dr. Strong concluded that Sipe’s prognosis was “good but guarded due to his animosity towards the treatment program,” that he remained a sexually violent predator, and that it would not be safe to place Sipe in transitional release. SRS concluded Sipe’s mental condition or personality disorder had not sufficiently changed for it to be safe for him to be at large, and did not authorize Sipe to petition for discharge. In May 2008, SRS forwarded the 2008 annual review to the district court, which then appointed Bruce Nystrom, Ph.D, to examine Sipe.
Dr. Nystrom’s testing revealed Sipe had “no indications of a significant psychological disorder.” However, Nystrom noted that the results of one test indicated “[s]ome degree of cognitive distortion and justification of his sexual deviance” and he concluded Sipe had “a personality based tendency to be immature, self-centered, and demanding of attention and affection.” Nystrom further concluded Sipe represented a “ ‘medium’ ” risk of reoffending and recommended he be transferred to transitional release.
Following a February 2009 hearing at which the district court considered reports from Drs. Strong and Nystrom and heard arguments from counsel, the district court concluded Sipe failed to establish probable cause that his mental condition or personality disorder had sufficiently changed, and denied Sipe’s petition to seek discharge. The court stated:
“And the reasons for this finding are going to be from the two reports that have been submitted, specifically, I’ll start with Dr. Nystrom’s. Dr. Nystrom’s report indicates that there is some degree of cognitive distortion and justification of a sexual deviance. He does put in his report that the current psychological test results do not indicate a significant psychological disorder.
“I would agree with the State that the initial confinement of Mr. Sipe was also based on the diagnosis of pedophiha. And Mr. Nystrom’s report fails to give the Court any basis — well, any basis to find probable cause that the pedophilia diagnosis has in someway changed.
“In fact, I’m going to read again from Nystrom’s report; actuarial risk assessments pointed to a medium risk of future sex offending. That’s a concern of the Court’s. And in Dr. Nel Strong’s report, and I’m actually looking at her conclusion; finds and indicates that Mr. Sipe remains a sexually violent predator.
“We’ve made a record regarding Mr. Sipe’s lack or reluctance to complete the progression of the treatment programs. And, quite frankly, I can’t see Mr. Sipe ever getting any kind of a favorable report until he either cooperates or whatever the problem is out there. He needs to cooperate, gets the initiative to move through the remaining steps of that program.
“Therefore, under 59-029a08 [sic] the Court finds that there’s not probable cause existing to believe that his mental abnormality of [sic] personality disorder has so changed that he’s safe to be placed in transitional release.”
In the journal entry denying Sipe’s petition, the district court reiterated that its ruling was based upon Dr. Nystrom’s report find ing Sipe to be at medium risk of reoffending. Additionally, the court noted that Sipe was originally diagnosed with pedophilia and that Nystrom’s report did not suggest that he had been cured of that condition.
Application of K.S.A. 2009 Supp. 59-29a08
In this appeal of the district court’s denial of his petition for discharge, Sipe contends that by impermissibly weighing conflicting expert reports, the district court improperly applied the probable cause standard.
Overview of SVPA
To obtain an order of involuntary civil commitment, the State is required to prove beyond a reasonable doubt that the person it seeks to commit is a sexually violent predator. K.S.A. 2009 Supp. 59-29a07(a). A sexually violent predator is “any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in repeat acts of sexual violence.” K.S.A. 2009 Supp. 59-29a02(a). The term “personality disorder” is not defined in die SVPA, but “mental abnormality” is defined as “a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.” K.S.A. 2009 Supp. 59-29a02(b). The term “sexually violent offense” is also defined by statute. K.S.A. 2009 Supp. 59-29a02(e).
If a unanimous jury or a trial court determines beyond a reasonable doubt that the person the State seeks to commit is a sexually violent predator, the court shall commit the person to SRS custody “until such time as the person’s mental abnormality or personality disorder has so changed that the person is safe to be at large.” K.S.A. 2009 Supp. 59-29a07(a).
Once involuntarily committed, a sexually violent predator is entitled to an annual review of his or her mental condition. Following the review, the Secretary of the SRS is required to provide the committed person with written notice of the person’s right to pe tition for discharge over SRS’s objection, and a form to waive that right. The committed person may retain, or if indigent may request appointment of, a professional to perform an independent examination. SRS is required to forward a copy of the annual review, including a copy of the written notice and waiver form, to the district court that initially committed the person. K.S.A. 2009 Supp. 59-29a08(a).
The court must then determine whether continued commitment is warranted. The SVPA contemplates a court hearing for that determination. The committed person is not entitled to be present at the hearing but has a right to be represented by counsel at the hearing and may petition for discharge during the hearing. K.S.A. 2009 Supp. 59-29a08(a), (b); In re Care & Treatment of Miles, 42 Kan. App. 2d 471, 474, 213 P.3d 1077 (2009).
At the annual review hearing, “[i]f the court.. . determines that probable cause exists to believe that the person’s mental abnormality or personality disorder has so changed that the person is safe to be placed in transitional release, then the court shall set a hearing on the issue.” K.S.A. 2009 Supp. 59-29a08(c)(l). “Transitional release” is defined as “any halfway house, work release, sexually violent predator treatment facility or other placement designed to assist the person’s adjustment and reintegration into the community once released from commitment.” K.S.A. 2009 Supp. 59-29a02(i).
If the court makes a probable cause determination and sets a second hearing, the State is required to prove beyond a reasonable doubt “that the committed person’s mental abnormality or personality disorder remains such that the person is not safe to be placed in transitional release and if transitionally released is likely to engage in acts of sexual violence.” K.S.A. 2009 Supp. 59-29a08(c)(3). At the second hearing, the committed person is afforded the same rights as he or she was entitled to during the initial commitment proceeding. K.S.A. 2009 Supp. 59-29a08(c)(3). “If, after the hearing, the court or jury is convinced beyond a reasonable doubt that the person is not appropriate for transitional release, the court shall order that the person remain in secure commitment. Otherwise, the court shall order that the person be placed in transitional release.” K.S.A. 2009 Supp. 59-29a08(d).
Standard of Review
Preliminarily, Sipe points out that the SVPA statutory scheme does not specify the applicable standard of review of a probable cause determination under K.S.A. 2009 Supp. 59-29a08, but he suggests we apply a de novo review.
Sipe argues de novo review is appropriate because: (1) de novo review is applied to similar probable cause determinations made at the prehminary hearing stage of a criminal proceeding; (2) other jurisdictions with statutes similar to the SVPA apply a de novo standard to probable cause determinations; and (3) this court’s ability to review the limited evidence presented at an annual review hearing is the same as that of the district court.
As noted above, at an annual review hearing, “[i]f the court. . . determines that probable cause exists to believe that the person’s mental abnormality or personality disorder has so changed that the person is safe to be placed in transitional release, then the court shall set a hearing on the issue.” K.S.A. 2009 Supp. 59-29a08(c)(l).
When the State initially files a petition seeking commitment of an alleged sexually violent predator, a district court must determine if probable cause exists to believe that the person is a sexually violent predator. K.S.A. 59-29a05(a). In that context, our Supreme Court has explained: “The probable cause determination in a sexual predator case must be compared to that of a criminal trial and requires evidence sufficient to cause a person of ordinary prudence and action to conscientiously entertain a reasonable belief that the accused is a sexually violent predator.” In re Care and Treatment of Hay, 263 Kan. 822, 834, 953 P.2d 666 (1998). Although the Hay court defined probable cause in the SVPA context, the court did not identify the appropriate standard of review as it found the challenge to the district court’s probable cause determination in that case to be procedurally faulty. 263 Kan. at 834-35.
Nevertheless, since a probable cause determination under the SVPA is comparable to the probable cause determination made at the prehminary hearing stage of a criminal proceeding, it would seem appropriate for us to apply the same de novo standard of review under the SVPA as we apply in the criminal context. See, e.g., State v. Horton, 283 Kan. 44, 57, 151 P.3d 9 (2007); State v. Romo-Uriarie, 33 Kan. App. 2d 22, 27, 97 P.3d 1051, rev. denied 278 Kan. 851 (2004).
Moreover, the United States Supreme Court has held that probable cause determinations generally are reviewed de novo. Ornelas v. United States, 517 U.S. 690, 699, 133 L. Ed. 2d 911, 116 S. Ct. 1657 (1996); see also Det. of Petersen, 145 Wash. 2d 789, 799-801, 42 P.3d 952 (2002) (discussing Ornelas and concluding when atrial court makes factual findings at show cause hearing under Washington’s sexually violent predator civil commitment statute, the legal conclusion as to whether those facts establish probable cause is reviewed de novo). But see United States v. Wolny, 133 F.3d 758, 762 (10th Cir. 1998) (limiting Ornelas to search and seizure context); State v. Hicks, 282 Kan. 599, 602-13, 147 P.3d 1076 (2006) (citing Ornelas but retaining deferential standard for probable cause determination in context of magistrate’s decision to issue a search warrant).
Finally, as Sipe points out, when the district court’s probable cause determination at an annual review hearing is based on expert reports and arguments of counsel, this court is in the same position as the district court to determine whether the evidence is sufficient to establish probable cause. See Crawford v. Hrabe, 273 Kan. 565, 570, 44 P.3d 442 (2002) (when controlling facts are based upon written or documentary evidence, appellate court has same opportunity as trial court to examine and consider the evidence and to determine de novo what the facts establish).
Therefore, when as here the district court’s probable cause determination under K.S.A. 2009 Supp. 59-29a08 is based solely on documentary evidence, we review that determination using a de novo standard.
Existence of probable cause to permit second hearing
Applying a de novo standard, we next consider whether the district court erred in failing to find probable cause requiring it to conduct a hearing under K.S.A. 2009 Supp. 59-29a08(c)(l).
As noted, at an annual review hearing, “[i]f the court. . . determines that probable cause exists to believe that the person’s mental abnormality or personality disorder has so changed that the person is safe to be placed in transitional release, then the court shall set a hearing on the issue.” K.S.A. 2009 Supp. 59-29a08(c)(l).
Initially, Sipe contends the district court impermissibly weighed conflicting reports in determining the existence of probable cause justifying a second hearing. And while Sipe cites support from other jurisdictions with statutes similar to the SVPA, we find it unnecessaiy to address this contention in light of our determination that we apply a de novo review to probable cause determinations under the SVPA. Instead, the only question we must decide is whether the facts presented at the hearing were sufficient to establish probable cause.
Although K.S.A. 2009 Supp. 59-29a08 does not assign the burden of proof at an annual review hearing, as a general rule the burden of proof lies with the moving party or the party asserting the affirmative of an issue. Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 412, 681 P.2d 1038 (1984); In re G.M.A., 30 Kan. App. 2d 587, 593, 43 P.3d 881 (2002). Accordingly, when a person committed under the SVPA petitions the court for discharge at an annual review hearing, that person must bear the burden to establish probable cause for a second hearing on the issue.
Moreover, as Hay instructs, a probable cause determination under the SVPA is comparable to that made in a criminal proceeding. Hay, 263 Kan. at 834. In a criminal proceeding, the State bears the burden to establish probable cause, the district court must consider the evidence in the light most favorable to the State, and the court’s task is to determine whether probable cause exists to warrant a trial on the merits. Romo-Uriarie, 33 Kan. App. 2d at 26-28.
Accordingly, because a sexually violent predator bears the burden to establish probable cause at an annual review hearing, the district court must consider the evidence in the light most favorable to the committed person and resolve all conflicting evidence in that person’s favor. Further, the court’s task is not to make a final determination on the committed person’s petition, but rather to determine whether there is sufficient evidence to cause a person of ordinary prudence and action to conscientiously entertain a reasonable belief that the committed person’s mental abnormality or personality disorder has so changed that the person is safe to be placed in transitional release. See Hay, 263 Kan. at 834 (defining probable cause in SVPA context); Romo-Uriarie, 33 Kan. App. 2d at 27 (citing guiding principles for probable cause determination in criminal cases). For foreign cases reaching a similar conclusion see In re Commitment of Allen, 927 So. 2d 1070, 1074 (Fla. Dist. App. 2006); Det. of Elmore, 162 Wash. 2d 27, 37, 168 P.3d 1285 (2007); and Det. of Petersen, 145 Wash. 2d at 798-99.
In this case, the evidence at the annual review hearing consisted of reports from Dr. Nystrom, an independent examiner, and Dr. Strong, who performed Sipe’s 2008 annual review. As noted earlier, Sipe’s initial Lamed examination in 1999 indicated that Sipe met the criteria for Pedophilia, Sexually Attracted to Females, Nonexclusive Type and Antisocial Personality Disorder, and that Sipe had a “very high risk of reoffending.”
Dr. Strong’s 2008 report found Sipe had progressed in his treatment program and Sipe’s prognosis was “good but guarded due to his animosity towards the treatment program.” According to Strong, Sipe remained a sexually violent predator whose mental abnormality was such that it was “likely that he will engage in repeated acts of sexual violence.” Accordingly, Strong recommended against placing Sipe in transitional release.
Dr. Nystrom’s report concluded Sipe showed a marked lack of insight into the underlying causes of his behavior; a tendency to be immature, self-centered, and demanding attention and affection from others; and “[s]ome degree of cognitive distortion and justification of his sexual deviance.” However, unlike Dr. Strong, Dr. Nystrom concluded Sipe had no current indications of a “significant psychological disorder” and presented a “ 'medium’ risk of future sex offending given cautions about the prediction of low base rate behaviors.” Further, Dr. Nystrom recommended Sipe be permitted to transfer to the transitional living portion of the treatment program.
The district court recognized Dr. Nystrom’s conclusions that Sipe had no “significant psychological disorder” and recommendation that Sipe be transferred to the transitional release program. Nevertheless, the district court then appeared to view the facts in a light more favorable to the State when it relied upon Dr. Strong’s report indicating Sipe remained a sexually violent predator who was “likely” to reoffend and who should not be transferred to transitional release.
However, when viewed in the light most favorable to Sipe, the facts presented at the hearing were sufficient to cause a person of ordinary prudence and action to conscientiously entertain a reasonable belief that Sipe’s mental abnormality or personality disorder have so changed that he is safe to be placed in transitional release.
As noted, our probable cause determination does not entitle Sipe to transitional release. Instead, based upon the probable cause finding, the district court is now required to conduct an evidentiary hearing on the issue of whether transitional release is appropriate. At that hearing, the State again has the burden “to prove beyond a reasonable doubt that the committed person’s mental abnormality or personality disorder remains such that the person is not safe to be placed in transitional release and if transitionally released is likely to engage in acts of sexual violence.” K.S.A. 2009 Supp. 59-29a08(c)(3).
Accordingly, we reverse the district court and remand with directions to conduct an evidentiary hearing pursuant to K.S.A. 2009 Supp. 59-29a08(c)(l). | [
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Green, J.:
This case comes before us for the second time on direct appeal after the trial court found that Howard’s first appellate counsel was ineffective in failing to adequately supplement the appellate record, which prohibited this court from adequately considering Howard’s argument concerning his forced removal from the courtroom during a motions hearing. After finding that Howard’s appellate counsel was ineffective, the trial court provided relief in the form of a second direct appeal. Nevertheless, we determine that the trial court did not have the authority to order a second direct appeal, and this court does not have jurisdiction to consider a second direct appeal. Accordingly, we dismiss Howard’s current appeal.
In his underlying criminal case, Howard was found guilty by a jury of severity level 4 aggravated battery and sentenced to 144 months in prison. Howard’s conviction was based upon an incident that occurred when he and his friend, Cooper Tunnell, went to the home of Matthew Brantley and an altercation ensued between the three men. During the incident, Howard hit Brantley with a shotgun. Brantley sustained injuries during the altercation and received treatment for a lacerated scalp and a hairline skull fracture.
Howard and Tunnell were tried together. After being convicted by a jury of severity level 4 aggravated battery, Howard filed a direct appeal with this court. One of the issues raised by Howard in his direct appeal was that the trial court erred in ordering him from the courtroom during a motions hearing. In rejecting Howard’s argument, this court noted that Howard had failed to object to the trial court’s statement about leaving the courtroom. Moreover, this court determined that the record failed to show that Howard was actually required to leave the courtroom. This court also rejected the remainder of Howard’s arguments and affirmed his conviction and sentence. State v. Howard, No. 96,620, unpublished opinion filed November 21, 2007.
Howard’s appellate counsel attempted to file a petition for review, but it was beyond the 30-day time period. Although Howard’s appellate counsel moved to file the petition for review out of time, the motion was denied.
Howard later moved for relief under K.S.A. 60-1507 and raised ineffective assistance of counsel claims. Specifically, Howard argued that his trial counsel was ineffective for failing to make a contemporaneous objection to his removal from the courtroom during the motions hearing. Howard further argued that his appellate counsel was ineffective for failing to supplement the record and provide a complete record so that this court could adequately address the issue of his removal from the courtroom during the motions hearing.
The trial court held an evidentiary hearing on Howard’s K.S.A. 60-1507 motion. In a written order, the trial court found that defense counsel’s conduct in failing to object to Howard’s removal from the courtroom was deficient. The trial court determined, however, that the errors committed by Howard’s trial counsel were not so serious as to deprive Howard of a fair trial. Accordingly, the trial court denied Howard relief on his K.S.A. 60-1507 motion.
On the other hand, the trial court determined that appellate counsel’s failure to adequately supplement the record and his failure to timely file the petition for review prohibited the appellate court from considering Howard’s argument concerning his removal from the courtroom. The trial court further found that the errors of Howard’s appellate counsel, combined with the court reporter’s failure to accurately record the events of the trial, prohibited Howard from receiving a fair appeal. Further, the trial court determined that there was a reasonable probability of a different outcome had appellate counsel not committed error.
As a remedy, the trial court allowed Howard to file a second direct appeal in his criminal case with a supplemented appellate record on his allegation of his involuntary absence from the courtroom during the motions hearing. The trial court ruled that if this court did not grant Howard relief, Howard’s petition for review to our Supreme Court should be allowed to include the issue of his absence from the courtroom and any of the issues raised in his original untimely petition for review. On January 7, 2009, nearly 3 years after his criminal conviction and sentencing, Howard filed a second notice of appeal in his criminal case.
Importantly, neither the State nor Howard has filed an appeal in Howard’s K.S.A. 60-1507 case. As a result, the trial court’s rulings in that case are not before this court for review. The only case presently before this court is Howard’s second direct appeal in his criminal case.
On July 12, 2010, this court issued an order to the parties to show cause why this appeal should not be dismissed for lack of jurisdiction. In the show cause order, the parties were directed to provide this court with authority concerning whether the trial court can order a second direct appeal and whether this court has jurisdiction to consider a second direct appeal in Howard’s criminal case.
The issue of subject matter jurisdiction may be raised at any time by a party or by a court, including an appellate court. An appellate court’s standard of review on the issue of subject matter jurisdiction is unlimited. State v. Patton, 287 Kan. 200, 205, 195 P.3d 753 (2008).
Kansas appellate courts have jurisdiction only as provided by law. See K.S.A. 22-3608; Patton, 287 Kan. at 206. The right to appeal is controlled by statute. Under K.S.A. 22-3602(a), a criminal defendant can appeal from any judgment against the defendant in the district court and “upon appeal any decision of the district court or intermediate order made in the progress of the case may be reviewed.” A judgment has been rendered when the defendant has been convicted and sentenced or imposition of sentence suspended. City of Topeka v. Martin, 3 Kan. App. 2d 105, 590 P.2d 106 (1979). A criminal defendant has 10 days from sentencing to file a notice of appeal. See K.S.A. 22-3608(c); State v, Bost, 21 Kan. App. 2d 560, Syl. ¶ 1, 903 P.2d 160 (1995). There is no statutory provision authorizing a second direct appeal.
Kansas courts have held that in the interest of fundamental fairness, a defendant may file a late direct appeal under the following narrow exceptional circumstances: (1) when the defendant has not been informed of his or her right to appeal; (2) when the defendant has not been furnished an attorney to perfect his or her appeal; and (3) when the defendant has been furnished an attorney who failed to perfect the appeal. See Patton, 287 Kan. at 206; State v. Ortiz, 230 Kan. 733, 735-36, 640 P.2d 1255 (1982).
In his response to the show cause order, Howard argues that Kansas appellate courts “have expanded the scope of the appellate statutes on the basis of fundamental fairness and have granted the district courts the ability to implement such actions.” Howard asserts that the trial court’s ruling allowing him to file a second direct appeal was authorized under the decisions in Kargus v. State, 284 Kan. 908, 169 P.3d 307 (2007); Brown v. State, 278 Kan. 481, 101 P.3d 1201 (2004); Ortiz, 230 Kan. 733; and In re T.M.C., 26 Kan. App. 2d 297, 988 P.2d 241 (1999).
Nevertheless, the language pointed to by Howard in those cases involves situations where an attorney’s deficient conduct denied a defendant’s or a K.S.A. 60-1507 movant’s right to an appeal or prevented our Supreme Court from considering a timely petition for review. See K.S.A. 22-3602(a); K.S.A. 20-3018(b); see also Kargus, 284 Kan. at 929 (holding that if defendant could establish ineffective assistance of counsel in failure to file petition for review in his direct appeal, then appropriate remedy would be to allow filing of petition for review out of time); Brown, 278 Kan. at 484-86 (holding that appointed counsel’s failure to timely notify K.S.A. 60-1507 movant that motion was denied and that movant had right to appeal entitled movant to file notice of appeal out of time for original K.S.A. 60-1507 motion); Ortiz, 230 Kan. at 736 (recognizing that exception to requirement of timely filing of notice of appeal exists in cases where defendant either was not told of right to appeal or was not furnished attorney to exercise those rights or was furnished attorney for that purpose who failed to perfect and complete appeal).
Unlike the cases where the defendant or a K.S.A. 60-1507 movant has been deprived of the right to file an appeal or a petition for review, a right to which he or she was entitled by law, Howard has not been deprived of such a right. Howard has already exercised his right to file a direct appeal in his criminal case. This court affirmed Howard’s convictions in the unpublished opinion filed on November 21, 2007, and the mandate in his criminal case was issued on December 26, 2007. Since that time, there has been no new conviction and sentence from which Howard is entitled to file a direct appeal under K.S.A. 22-3602(a).
As pointed out by Howard in his response to the show cause order, the plain language of K.S.A. 60-1507(b) limits the authority of the trial court as follows:
“(b) Hearing and judgment. Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the county attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. The court may entertain and determine such motion without requiring the production of the prisoner at the hearing. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence said prisoner or grant a new trial or correct the sentence as may appear appropriate.”
Thus, K.S.A. 60-1507(b) gives the trial court the authority to vacate and set aside the judgment and discharge the prisoner, re-sentence the prisoner, grant a new trial, or correct the sentence. Nothing in K.S.A. 60-1507 provides the trial court with authority to grant a second direct appeal.
If the trial court in this case found that Howard’s argument concerning his forced removal from the courtroom had merit and that the conduct by Howard’s attorney was deficient and prejudiced Howard, then the proper remedy would have been to grant Howard a new trial. Nevertheless, it is unclear from the trial court’s ruling what the trial court actually found. On the one hand, the trial court held that the conduct by Howard’s trial counsel in failing to adequately raise an issue before the trial court did not warrant a new trial; but on the other hand, the trial court held that the conduct by Howard’s appellate counsel in fading to adequately raise the same issue on appeal warranted a second direct appeal. Such rulings are inconsistent, and, as set out previously, the trial court did not have the legal authority to order a second direct appeal.
It is unnecessary to address the trial court’s findings concerning Howard’s ineffective assistance of counsel claim in his K.S.A. 60-1507 case any further because neither party appealed the trial court’s judgment in that case. Because the trial court lacked the authority to order a second direct appeal, this court does not have jurisdiction to consider Howard’s appeal. As a result, we dismiss Howard’s appeal.
Appeal dismissed. | [
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Greene, J.:
The Kansas Department of Agriculture Division of Water Resources (DWR) appeals the district court’s reversal of an agency order terminating water right file number 1743 due to abandonment, a right owned during these proceedings by Norman and Gloria Nelson. The DWR argues that the district court erred in finding the agency order unsupported by sufficient evidence and in substituting its own judgment for the agency. Concluding that sufficient evidence supported the agency order, we reverse the district court and remand with directions to reinstate the agency order terminating the Nelsons’ water right.
Factual and Procedural Background
In 1953, Otto C. Eulert filed his application for a permit to divert water from the Saline River for irrigation of his adjoining agricultural real property in Russell County. The application specified and depicted by plat the particular points of diversion from the river and provided that the diversion would be effected by 8-inch centrifugal pump with capacity of 1600 gallons per minute and associated pipeline sprinkler system. DWR approved the application in October 1953, and the approval specified the use for the water as irrigation, specified the detailed location of permissible points of diversion, and limited the quantity of water to be diverted to 600 acre-feet per year. The water right was perfected in 1969 for a maximum quantity of 278 acre-feet per calendar year, at a maximum rate of 965 gallons per minute, for irrigation on specific tracts of land owned by Eulert.
Before the Nelsons purchased the property and associated water right in 2004 from Eulert, they contacted the DWR to investigate the status of the water right. The DWR assistant water commissioner Stewart advised the Nelsons that there was a potential abandonment issue due to nonuse of the water right. The Nelsons completed their purchase but submitted a letter to the DWR reflecting a conversation with Eulert explaining his nonuse. According to that letter, Eulert admitted the nonuse and gave three reasons for it:
“Mr. Eulert said the main reasons that they quit using the WATER RIGHT was that people above him on the river pumped, which left little water for him. He had informed DWR of the problem, but received little relief.
“Another reason was that their sprinkler systems were hand move equipment which were too difficult and expensive to use.
“The third reason was the crop rotation was alfalfa hay on the bottom land which did not require irrigation.”
In October of 2005, the DWR initiated proceedings to declare the water right abandoned and terminated. The proceedings were provoked by an investigation and resulting verified report filed by the assistant water commissioner that stated the last reported use of water was in calendar year 1978 and found no beneficial use had been made of the water right for 14 consecutive years between 1979 and 1992, and for 11 consecutive years between 1994 and 2004.
The chief engineer of the DWR designated a hearing officer, who conducted an evidentiary hearing under K.S.A. 82a-701 et seq. Based on that hearing, the officer filed a recommended initial order, and after the parties were permitted to submit comments, the chief engineer issued his 23-page initial order declaring the Nelsons’ water right abandoned and terminated. The order contained detailed findings of fact and conclusions of law, which served as the basis for the declaration of abandonment.
The Nelsons perfected an administrative appeal of the order to the Secretary of Agriculture, who denied their petition for review and ordered the chief engineer’s initial order to become the final agency action subject to judicial review. The Nelsons then filed their petition for judicial review to the district court, which found that the agency’s declaration of abandonment was not supported by substantial evidence, that the Nelsons had contradicted the prima facie report of the DWR, and that the agency order should be set aside.
The DWR has appealed the decision of the district court.
Standards of Review
A final agency action or order of the Secretaiy of Agriculture is subject to judicial review under the Kansas Judicial Review Act, K.S.A. 77-601 et seq. K.S.A. 2009 Supp. 82a-1901(b); Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, 697, 216 P.3d 170 (2009). Although such review is first conducted by district court, on appeal to this court we exercise the same statutorily limited review of the agency’s action as does the district court — just as though the appeal had been made directly to this court in the first instance. Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 611, 132 P.3d 870 (2006).
Although the Judicial Review Act was substantially amended in 2009, we apply fhe provisions of the Act prior to amendment because the agency action here was final in August 2006, long prior to the effective date of amendment. See Redd v. Kansas Truck Center, 291 Kan. 176, Syl. ¶ 1, 239 P.3d 66 (2010).
The DWR’s sole argument on appeal is that the district court erred in setting aside the agency order due to insufficient support for its findings. With regard to our review of agency fact findings and their sufficiency, preamendment K.S.A. 77-621(c)(7) provided that the agency decision was subject to reversal if it was based on a determination of fact that was not supported by evidence that is substantial when viewed in light of the record as a whole. This statutory language, however, was viewed by case law to have a specific meaning. As explained by our Supreme Court in Redd,
“[c]ase law defined substantial evidence as evidence possessing something of substance and relevant consequence to induce the conclusion that the award was proper, furnishing a basis of fact from which the issue raised could be easily resolved. [Citation omitted.] Under this holding, the Board’s preamendment decision should be upheld if supported by substantial evidence, even though there is other evidence in the record supporting contrary findings. [Citation omitted.]” Redd, slip op. at 10.
Overview of Statutory Framework Governing Abandonment of Water Rights in Kansas
All water within the state of Kansas is dedicated to the use of the people of the state, subject to control and regulation pursuant to the statutoiy scheme. K.S.A. 82a-702; Frick Farm Properties, 289 Kan. 690. A “water right” is defined by statute as
“any vested right or appropriation right under which a person may lawfully divert and use water. It is a real property right appurtenant to and severable from the land on or in connection with which the water is used and such water right passes as an appurtenance with a conveyance of the land by deed, lease, mortgage, will, or other voluntary disposal, or by inheritance.” K.S.A. 82a-701(g).
The water right at issue here is an “appropriation right,” which is defined by statute as
“a right, acquired under the provisions of [the Act] to divert from a definite water supply a specific quantity of water at a specific rate of diversion, provided such water is available in excess of the requirements of all vested rights that relate to such supply and all appropriation rights of earlier date that relate to such supply, and to apply such water to a specific beneficial use or uses in preference to all appropriations right of later date.” K.S.A. 82a-701(f).
One of the basic attributes of the Kansas system of prior appropriation for water rights is that water right holders who fail to use those rights lose them. K.S.A. 82a-718; Frick Farm Properties, 289 Kan. 690, Syl. ¶ 7.
“Every water right of every land shall be deemed abandoned and shall terminate when without due and sufficient cause no lawful, beneficial use is henceforth made of water under such right for five successive years. Before any water right shall be declared abandoned and terminated the chief engineer shall conduct a hearing thereon. . . .
“The verified report of the chief engineer or such engineer’s authorized representative shall be prima facie evidence of the abandonment and termination of any water right.” K.S.A. 2009 Supp. 82a-718(a).
The statutory phrase “due and sufficient cause” for any period of nonuse has been defined by regulation to include 10 specific circumstances. K.A.R. 5-7-1. For purposes of this appeal, these circumstances include:
“Adequate moisture is provided by natural precipitation for production of crops normally requiring full or partial irrigation within the region of the state in which the place of use is located.
“Water is not available from the source of water supply for the authorized use at times needed.”
Any such reason, standing alone, does not operate to excuse the nonuse of the water right unless the reasons purporting to constitute due and sufficient cause shall have in fact prevented, or made unnecessary, the authorized beneficial use of water under the water right at issue. K.A.R. 5-7-l(b).
The holder of a water right must maintain and provide annual water use documentation that is adequate to either demonstrate whether the water right was used, or explain why it was not used, as requested by the DWR. K.S.A. 82a-732(a). A water right holder s failure to maintain and provide the annual water use documentation — taken with other relevant evidence — may support a determination that there was no due and sufficient cause for non-usage in a particular year. Frick Farm Properties, 289 Kan. 690, Syl. ¶¶ 11-12.
Does Substantial Evidence Support the Agency’s Findings that No Beneficial Use Was Made of Water Under the Water Right Without Due and Sufficient Cause for 1984-1992 and 1994-2004?
Focusing as we must on the agency’s final order, the only question framed by the DWR in this appeal is whether the agency’s findings of fact are supported by substantial evidence, as that term has been defined by governing case law, and whether those findings support the agency’s conclusions of law. See Garvey Elevators, Inc. v. Kansas Human Rights Comm’n, 265 Kan. 484, 492, 961 P.2d 696 (1998). If we determine that substantial evidence supports the findings that there was no beneficial use of the water right without due and sufficient cause for both of the lengthy periods designated by the final agency order, or for any 5 successive years within those periods, the agency order must be affirmed. First, we examine the question of nonuse, and then we examine whether there has been a showing of due and sufficient cause for that nonuse.
I. Period of Cessation of Lawful and Beneficial Use of the Water Right
The agency order found that there was a period of nonuse attributable to File No. 1743 from 1984 through 2004, or 21 successive years. Indeed, as noted above, Eulert admitted that he “quit” his use of the water right, his annual reports of usage corroborate this fact, and there does not seem to be any dispute regarding the fact that the centrifugal pump and sprinkler system permitted for purposes of diversion had ceased operation as early as 1978.
The Nelsons argued before the agency and now urge on appeal that the consistent cropping of alfalfa on the land should be viewed as a lawful and beneficial use under this water right because the evidence established that such alfalfa crops root to groundwater within the same source of supply. The agency order rejected this argument, reasoning in material part:
“Although the Respondents argue that the diversion of water from an unauthorized point of diversion constitutes ‘lawful, beneficial use’ under this water right, there are no facts in the record to evidence the existence of a point of diversion (whether authorized or unauthorized) from which water was applied to the place of use authorized under this water right. The absence of this evidence renders the Respondents’ arguments moot.
“The Respondents’ argument that sub-surface irrigation of the authorized place of use is an unauthorized point of diversion is not consistent with the rules and regulations promulgated under the authority of the Kansas Water Appropriation Act. K.A.R. 5-1-1, which has the force and effect of law, defines the terms, ‘diversion,’ ‘diversion works’ and ‘point of diversion.’ Sub-surface irrigation does not accord with these definitions.
“K.A.R. 5-l-l(z) defines ‘diversion’ as:
‘. . . the act of bringing water under control by means of a well, pump dam, or other device for delivery and distribution for the proposed use.’
“The definition of ‘diversion’ as a type of ‘device’ is rendered more forceful by the definition of ‘diversion works,’ which is:
‘. . . .any well, pump, power unit, power source, dam, and any other devices necessary to bring water under control for delivery to a distribution system by which the water will be distributed to the proposed use and any other equipment required as a condition of the permit, including a check valve, water level measurement tube, meter, or other measuring device. K.A.R. 5-l-l(aa).’
“A ‘point of diversion’ is:
‘. . . the point at which water is diverted or withdrawn from a source of water supply. K.A.R. 5-l-l(zz).’
“There is no evidence to show that sub-surface irrigation of the place of use authorized under this water right requires or involves bringing water under the control of anyone. There is no evidence that a well, pump, dam or other device is used or can be used to deliver water from any source to the place of use. Moreover, there is no evidence to show the ‘point’ at which this ‘diversion’ is made. For example, a well is a discreet point from which groundwater is withdrawn from a source. Installing a well and completing it with a pump is the ‘act of bringing water under control.’ Likewise, a pump placed on a river or stream is a discreet point from which surface water is brought under control for delivery to the authorized place of use. In fact, this water right authorizes diversions from six identifiable pumpsites, or, point of diversion.
“Sub-surface irrigation is not a point of diversion and, therefore, it is neither an authorized nor an unauthorized point of diversion. . . .
“Because there is no evidence to show that sub-surface irrigation is or could constitute a diversion of water and no point of diversion exists under the facts presented, the hydraulic connection between surface water and the alluvial groundwater is irrelevant.”
We view this aspect of the agency order as a conclusion of law based on undisputed facts. There was no substantial challenge to the fact that alfalfa planted in bottomland in this area generally rooted to groundwater. The question is whether such use of groundwater should be viewed as a lawful and beneficial use of water right 1743. At the outset, we note that this natural phenomena is really quite different from the right reflected by the Nelsons’ permit. Obviously, such natural crop absorption does not utilize any diversion of the Saline River, at any of the points of diversion in the permit, or by the permitted method of centrifugal pump into a hand-movable sprinkler system.
More importantly, however, is that we agree with the agency’s construction and application of its regulations in a manner to support its conclusion that “irrigation is not occurring because there is no application of water to the crop” and, even if this was recognized as “irrigation,” natural absorption of groundwater is not a “diversion,” is not “appropriated,” and is irrelevant to the question of beneficial use pursuant to this specific permit. See Williams v. City of Wichita, 190 Kan. 317, 374 P.2d 578 (1962).
We conclude the agency’s findings and conclusions as to the cessation of lawful and beneficial use of the water right are fully supported by the evidence and fully consistent with the statutory scheme as implemented through the DWR’s regulations.
II. Whether Due and Sufficient Cause for Nonuse Has Been Shown
The final order addressed three areas of concern in determining that there had been shown no due and sufficient cause for the periods of nonuse. We will address each such circumstance, examining the agency’s findings, record support for same, and their general sufficiency to support the associated conclusions of law.
A. Economic reasons for nonuse
The agency order rejected the Nelsons’ claim that economic reasons should be considered due and sufficient reason for nonuse, reasoning in part:
“According to the water use reports submitted for File No. 1743, one of the primary reasons water was not used over the years was the high price of fuel (also stated as the high price of pumping). The regulations outlining due and sufficient cause for nonuse (K.A.R. 5-7-1) do not indicate that economic reasons, in and of themselves, constitute due and sufficient cause for non-use. ‘[I]f the price of fuel or pump repairs is high enough or crop prices low enough to make the operation of irrigation equipment unprofitable, such circumstances will not constitute due and sufficient cause for non-use. . . . The principle that economic decisions do not constitute due and sufficient cause has been upheld in numerous administrative decisions and by courts of other states. (Citations omitted.)’ 43 Kan. L. Rev. at 815-816. Therefore, the economic reasons for nonuse, such as ‘high price fuel,’ ‘high lifting costs,’ ‘lifting and pumping costs,’ and ‘prohibitive pumping costs,’ do not constitute due and sufficient cause for nonuse pursuant to K.A.R. 5-7-1. Consequently, due and sufficient cause does not exist for the years 1994, 1996, 1997 and 2001 unless there is another basis for a finding that due and sufficient cause exists.”
Our review of the record — including the reports filed by the Nelsons’ predecessor — indicate that economic reasons were given as one of the reasons for nonuse in years 1981, 1988, 1990, 1991, 1994, 1995, 1996, 1997, 1999, 2000, 2001, and 2002. These economic reasons are variously characterized in the reports as “high price of fuel,” “high lifting costs,” “high fuel costs,” “pumping costs too high,” “pumping costs prohibitive,” and “prohibitive pumping costs.” These reasons were the sole reason given for nonuse in years 1994, 1996, 1997, 1999, and 2001.
As a matter of law, economic reasons such as these do not constitute due and sufficient cause for nonuse. K.A.R. 5-7-1 lists 10 specific circumstances that may be considered “due and sufficient cause” under K.S.A. 82a-718; economic reasons such as high fuel costs, high pumping costs, or high lifting costs are not among or within any of the 10 recognized circumstances. Our Supreme Court seems to have agreed with the chief engineer in rejecting such costs as due and sufficient cause in Frick Farm Properties, where the court quotes with apparent agreement the chief engineer’s legal conclusion in that case that
“[e]conomic reasons are not fisted in K.A.R. 5-7-l(a) as a circumstance considered as due and sufficient cause for non-use. Making a decision not to irrigate for economic reasons could not have prevented [landowner] from irrigating or made it possible to produce a normally irrigated crop without irrigation. Again, [landowner] simply chose not to irrigate, and the criteria of K.A.R. 5-7-l(b) have not been satisfied.” 289 Kan. at 699.
Indeed, the DWR has consistently held that economic reasons are not due and sufficient cause for nonuse. See Peck and Owen, Loss of Kansas Water Rights for Nonuse, 43 Kan. L. Rev. 801, 816, n.111 (1995). We note that the Nelsons have abandoned any dispute of this aspect of the agency’s final order.
We conclude that substantial evidence supports the agency’s findings that a reported economic reason in many of the years at issue does not constitute a due and sufficient reason for nonuse. In particular, no further analysis is required to demonstrate that there was nonuse without due and sufficient cause in years 1994, 1996, 1997, 1999, and 2001. Because the Nelsons’ predecessor filed no report in years 1979,1980,1982, 1983, and reported non-use without any reason for year 1998, the focus of our remaining analysis will be on the remaining years only.
B. Adequate rainfall pursuant to KA.R. 5-7-l(a)(l)
The agency rejected the Nelsons’ claim that adequate rainfall in certain years should be considered due and sufficient cause for nonuse, reasoning in part:
“[A]dequate rainfall can constitute due and sufficient cause for nonuse where the crops grown would normally require ‘full or partial irrigation’ within the given region of the state. K.A.R. 5-7-l(a)(l). Documents in the record, and the testimony of Mr. Nelson, indicate the crop grown over the years was alfalfa.
“Mr. Nelson testified that alfalfa will, in areas like this one, acquire the water it needs from subsurface moisture in the soil and from alluvial groundwater. . . .
“If irrigation is not necessary to produce the desired crop, then the crop cannot be considered to be an irrigated crop regardless of the planting rate. The testimony was that irrigation was necessary to start a crop, so the Eulerts’ alfalfa was an irrigated crop in the year it was ‘started,’ but not an irrigated crop in other years.
“More likely the alfalfa crop was already established in 1995, and, although the Eulerts could have chosen to irrigate, it was not necessary in order to produce the desired crop. Under those circumstances, the costs of pumping certainly could be a consideration. Therefore, the Eulerts did not produce an irrigated crop, and the Respondents have not established due and sufficient cause for nonuse pursuant to K.A.R. 5-7-l(a)(l) for the year 1995.
“The Respondents provided daily streamflow data only for the months of July and August in 1997, 1998 and 1999. Recause the average streamflows for these months were high at the downstream gage and the previous owner did not claim low flow as a reason for not irrigating, the data cannot support a finding that low flows prevented irrigation. Nevertheless, the Respondents may have offered the data to show that sufficient precipitation prevented irrigation needed by the crops in July and August of these years.
“Nevertheless, the Eulerts’ alfalfa crop was not an irrigated crop in the years it was not ‘started’ and, more likely than not, rainfall in July and August did not make irrigation unnecessary. The analysis applied to the year 1995 also applies to the years 1997 and 1999. That is, it is not likely that the alfalfa crop was started in 1997 or 1999, because economic factors also were given as a reason for not irrigating in those years. No reasons were given for not irrigating in 1998, but the Respondents have not shown that a crop of alfalfa was started in July or August of that year.
“Additionally, the record, as a whole, supports the conclusion that any rainfall that occurred in 1995, 1997, 1998 and 1999 did not, in fact, prevent irrigation from occurring or malee irrigation unnecessary. K.A.R. 5-l-7(b). With the exception of 1998, the previous owner reported high pumping costs as at least one of the reasons irrigation did not occur for every year from 1994 through 2002. In 1998, he simply failed to state any reason. It is significant to note that only economic reasons were given for five years (1994, 1996, 1997, 1999 and 2001) indicating there were no other considerations in five of this nine-year period. More likely than not, irrigation would not have occurred in 1995, 1997,1998 and 1999 because of the ‘high pumping costs’ (i.e., economic factors) and not because of timely rainfall.”
For these reasons, the agency order rejected landowners’ claim that due and sufficient cause for nonuse was established by adequate moisture from natural precipitation for the production of their alfalfa. K.A.R. 5-7-l(a)(l) acknowledges this basis for due and sufficient cause for nonuse, but only where the crops “normally requir[e] full or partial irrigation within the region of the state in which the place of use is located.” Whether alfalfa grown by the Nelsons and their predecessor was a crop normally requiring full or partial irrigation in this area seems to have been a matter of dispute.
Although the DWR witness Stewart was unable to say whether alfalfa was a crop normally requiring irrigation in this area, the record reflects that the Nelsons’ predecessor made an admission in a 2005 letter to Nelson that he “quit using the water right” for three reasons, and his third reason was “the crop rotation was alfalfa hay on the bottom land which did not require irrigation.” (Emphasis added.) And, notably, when Nelson was asked at the hearing about this matter, he seemed to indicate that the crop planted at 15 pounds per acre was normally an irrigated crop “if it weren’t in the bottom land here,” implying that alfalfa is not an irrigated crop in this area when planted in “the bottom land.” Finally, the DWR assistant commissioner Stewart opined that “static water level in this area is approximately 10 to 15’ deep. It appears that alfalfa would root to groundwater.” We view all these record references as substantial evidence that the crop here was not one that normally required full or partial irrigation within this region— and we consider the “region” as bottomland contiguous to the Saline River in Russell County.
The agency order correctly reflects that either the historic reports or the Nelsons’ later claims reported that there was adequate rainfall in July and August of 1995,1997,1998, and 1999. The order rejected these claims as due and sufficient cause for nonuse because these years overlapped either with the years that economic factors were among the reported reasons for nonuse or there was a complete failure to provide any reason for nonuse (1998). As noted by the agency order, “irrigation would not have occurred in [these years] because of the ‘high pumping costs’ . . . and not because of timely rainfall.”
We conclude that there was substantial evidence to support the agency’s rejection of a claim that adequate rainfall should be considered due and sufficient cause for nonuse during the years so claimed by the Nelsons.
C. Unavailability of water pursuant to K.A.R. S-7-l(a)(3)
The agency order also rejected the Nelsons’ claim that low flows in the Saline River should be considered due and sufficient cause for nonuse, reasoning in part:
“Under the facts here, the credibility of any claims of low flows (whether made by the previous owner or the Respondents) can only be determined by an examination of the evidence, as a whole. The previous owners began claiming flows in 1984, and consistently claimed low flows as at least one reason for not using water from 1984 through 1991. Low flows were not again given as a reason for not irrigating until 2000, 2002, and 2003. These claims are considered to have been made by persons with personal knowledge of the circumstances at the time the reports were filed. The credibility of these reports must be judged in light of the contemporaneous claims on the water use reports themselves as well as the available streamflow data provided by the Respondents and DWR.
“The previous owner claimed that high costs were a reason that irrigation did not occur in 1998, 1990, 1991, 1994, 1996, 1997, 1999, 2000 and 2001. The Eulerts only produced irrigated alfalfa in the years the crop was ‘started’ and, more likely than not, streamflow in these years did not malee irrigation unnecessary. The analysis applied to the years 1995,1997 and 1999 also apply to the years in which the previous owner claimed both low streamflow and high costs as reasons for not irrigating (1998, 1990,1991 and 2002). That is it is not likely that the alfalfa crop was started in these years, because economic factors also were given as a reason for not irrigating. For the remaining years in which economic factors also were given for not irrigating (1984-1986, 1989 and 2003), the Respondents have not shown that a crop of alfalfa was started in any month of those years.
“As a result, due and sufficient cause pursuant to K.A.R. 5-7-l(a)(3) has not been established for 1984 through 1992, 2000, 2002, and 2003. (In accordance with the findings above, we need not address Respondents’ assertions regarding years prior to 1984.)”
For these reasons, the agency rejected the Nelsons’ argument that due and sufficient cause for nonuse was established by their predecessor’s reports of low flow in the river. K.A.R. 5-7-l(a)(3) provides that it shall be considered due and sufficient cause if “[wjater is not available from the source of water supply for the authorized use at times needed.” Reports filed by Eulert indicate that low flow was at least one of the reasons for nonuse during the years 1984 through 1991 and years 2000, 2002, and 2003.
The agency’s final order concedes that “it is reasonable to conclude that streamflows, indeed, could have been low at times in 1984,1985,1988 and 2000.” The order also conceded that “stream-flows might have been unfeasibly low in the years 1984-86, 1988-91, 2002, and 2003.” The order rejects the conclusion, however, that these low flows should be considered due and sufficient cause for nonuse because the flow did not in fact prevent or make unnecessary the authorized use (irrigation), as required by K.A.R. 5-7-l(b). This conclusion was based upon two additional facts: (1) overlap of the years of low flow with the years in which the landowner claimed nonuse due to economic factors means that low flows alone did not “prevent” irrigation; and (2) in the remaining years of claimed low flow, there was no showing that a crop of alfalfa was started in any month of those years, so — again—the low flows did not in fact prevent irrigation but rather there was no need for irrigating alfalfa that had already rooted to groundwater.
Additionally, the agency order notes that the DWR field report substantiates a conversation with Eulert explaining that in the event of low flow, he had the right to request water and the procedure for doing so. The DWR never received such a request, and the agency concluded that this failure to request enforcement of his water right “undermines the claim of unavailability of water.”
“If a water right holder is claiming that water was not used because no water was available, but the water right carries the highest priority for the given source and water would have been available had the holder requested administration (enforcement of the priority system, then due and sufficient cause may be denied.” Peck and Owen, Loss of Kansas Water Rights for Nonuse, 43 Kan. L. Rev. 801, 810 (citing DWR Admin. Policy 92-3 [Aug. 28, 1992]).
Thus, the agency order concluded — with supporting evidence— that due and sufficient cause was not established by low flows in years 1984 thru 1992, 2000, 2002, and 2003 — even though low flows were conceded for some of these years. Our review of the record shows that the agency’s findings and conclusions in this regard are fully supported by substantial evidence, both in the form of landowner’s annual reports of usage and U.S. Geologic Survey data as to flow.
Are the Nelsons’ Challenges to Procedural Aspects of the Hearing, Validity of the Applicable Regulations, or Other Challenges to the Agency Procedure or Final Order Properly Before this Court?
On appeal, the Nelsons’ brief challenges numerous procedural aspects of the administrative hearing procedure, including: (1) the quantum of evidence required by the agency; (2) the burden of proof analysis employed by the agency; (3) unfulfilled requirements for the verified report in order to shift the burden of proof; (4) inappropriate remedy considered by the agency; and (5) procedural regulations utilized exceeded authority of the agency. It is elementary that such challenges to the agency proceedings may not be considered by this court in the absence of a cross-appeal, and the Nelsons made no such filing. See Mid-Continent Special ists, Inc. v. Capital Homes, 279 Kan. 178, 191-92, 106 P.3d 483 (2005).
Appellees have also suggested that evidence cited or relied on by the agency should not be considered substantial for various reasons. Among the evidence questioned in this regard is data from gauge reports showing river flows at a location downstream from the Nelsons’ property. Appellees also urge us to consider other evidence that was not considered or was rejected by the agency, such as their testimony that upland alfalfa in the area is an irrigated crop. We have examined all such evidence, but it is not our function to reweigh competing evidence or assess the credibility ofwitnesses when applying the preamendment standard of review applicable here. We accept all evidence and reasonable inferences that support or tend to support the findings as true, and we must disregard all conflicting evidence. Frick Farm Properties, 289 Kan. at 709, citing Trees Oil Co. v. Kansas Corporation Comm'n, 279 Kan. 209, 226, 105 P.3d 1269 (2005).
Finally, we note that Appellees have urged us to adopt certain procedural rules from “Western water law” authorities, including a clear and convincing proof requirement and the principal that resumption of use cures a forfeiture. These issues were not raised before the agency, and we decline to consider them on appeal. See K.S.A. 77-617; Miller v. Bartle, 283 Kan. 108, 119, 150 P.3d 1282 (2007).
In summary, we conclude the agency’s findings of fact are supported by substantial evidence and are sufficient to support the agency’s conclusions of law. The district court erred in concluding otherwise. Accordingly, we are compelled to reverse the district court and remand with directions to reinstate the agency order terminating water right 1743.
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Leben, J.:
The Kansas Legislature has provided a real-estate tax exemption when the property is “used exclusively” as a group home for low-income people with special needs. Kouri Place, L.L.C., sought an exemption for such a property, one that has 14 of its 15 units used to house people with special needs and 1 unit devoted to housing on-site managers. The Kansas Court of Tax Appeals agreed that the exclusive physical use of the property qualified for the tax exemption. But the court nonetheless denied the exemption because Kouri Place financed most of the project’s construction through a federal tax-credit program; that court held that this constituted a separate intangible use of the real estate, thus ehminating exclusive use as a group home.
We find the Court of Tax Appeals’ interpretation of this exemption statute in error. Kouri Place used a tax-credit program established by federal law, authorized by state law, and awarded by a Kansas state agency for the purpose of building the group home. The dominant purpose of the “use” of the tax-credit program here was to build a group home. Indeed, this is exactly what Congress intended when it set up the low-income housing tax-credit program — that people would use the tax credits to help get such projects built.
Our case arises under K.S.A. 2009 Supp. 79-201b Sixth, one of several similar Kansas statutes providing exemption from real-estate property taxes. K.S.A. 2009 Supp. 79-201b Sixth provides for an exemption when the real property is (1) “actually and regularly used exclusively for the purpose of group housing” of people with special needs such as mental illness or physical or mental disability, (2) operated by a nonprofit corporation, (3) charging residents less than the actual cost of operation, and (4) licensed under Kansas law as a facility for housing people with special needs. The Court of Tax Appeals found that only one of these requirements — exclusive use — was missing. Kouri Place has appealed, and the appeal focuses on the single issue of whether the property was being “used exclusively for the purpose of group housing” of people with special needs.
The underlying facts are not in dispute. This group-home project was undertaken by Starkey, Inc., a nonprofit corporation in Wichita that has been serving people with disabilities since 1930; Starkey is funded in part by state and county funds. Starkey decided to create a community living home for people with special needs who could, with some help, live independently. Starkey turned the project into reality with three main funding sources: land donated by Wichita residents Sam and Jacque Kouri; an affordable housing grant of $67,500 from the Federal Home Loan Bank of Topeka; and $1,268,500 in federal income-tax credits allocated to this project by the Kansas Housing Resources Corporation. Starkey was able to turn the income-tax credits, usable over the next 10 years, into $1,048,930 in immediate cash paid from investors in exchange for the future tax credits. The investors were able to use the tax credits to offset federal income taxes they otherwise would have owed. By paying a discounted amount of cash for what would later be nearly $1.3 million in tax credits, the investors will earn about 1.9% on their investment over the 10-year period of the credits.
The group home was built on the donated land and opened to qualified residents in 2005. At the time the tax-exemption application was filed, all residents were low-income Kansans receiving Medicaid assistance who were charged rental rates that were below state-established guidelines for low-income housing.
Starkey used a standard organization structure — the formation of a limited-liability company — to transfer the tax credits to investors. The limited-liability company, Kouri Place, L.L.C., became the owner of the property. The investors were aggregated into a single limited partnership, called Kansas Equity Fund III, L.P., which owned 99.9% of Kouri Place. The use of such an organizational structure and the allocation of such a high percentage to the investor member(s) is a standard practice in building housing using these low-income housing tax credits. With this structure, essentially all of the tax credits can be passed through to the investors, who can use them, rather than Starkey, a nonprofit coiporation that generally doesn’t owe income taxes and thus can’t use these tax credits. See Handel & Nahas, Leveraging the Low-Income Housing Tax Credits Program, 26 L.A. Law 23 (Jan. 2004). Starkey owned the other .01% of Kouri Place.
The tax credits came through a program that Congress established by statute. See 26 U.S.C. § 42 (2006). These credits are available under limits set by Congress, and they are allocated by state agencies. See generally Partnerships: Market Segment Specialization Program Guideline, 2002 WL 32770029, at *191-92 (I.R.S. 2002). The Kansas Legislature authorized the Development Finance Authority to set up a subsidiary corporation to allocate these credits, and that program is now administered by the Kansas Housing Resources Corporation, a subsidiary of the Development Finance Authority. See K.S.A. 74-8904(v); see also K.A.R. 110-10-1. Significantly, Congress has required that at least 10 percent of the credits be allocated to nonprofit entities. See 26 U.S.C. § 42; Partnerships, 2002 WL 32770029, at *191.
As the basis for its decision, the Court of Tax Appeals seized upon the organization structure chosen by Starkey to facilitate the use of these tax credits. The real estate is owned by Kouri Place, and Kansas Equity Fund III has a 99.99% ownership interest in the limited-liability company. Thus, the Court of Tax Appeals concluded that Kansas Equity Fund III “possesses the ultimate control over the physical use of the property.” In the event that the Internal Revenue Service would determine that the property wasn’t being used for the purposes for which Congress made the tax credits available — and the IRS disallowed those credits — the Court of Tax Appeals concluded that Kansas Equity Fund III could take over the property to protect its interests since it had “the ultimate control” as a 99.9% owner of the limited-liability company.
To the extent the Court of Tax Appeals equated control with ownership, it is legally wrong to conclude that a member holding a majority ownership interest in a limited-liability company owns the company’s property. A limited-liability company may own property in its own name, and members have no ownership interest in specific limited-liability company property. K.S.A. 17-76,111. But the Court of Tax Appeals seems to have focused more on the reality of the situation than on legal ownership. Even there, though, Starkey is solely responsible for managing the operation of the property under the hmited-liability company’s operating agreement, subject to very limited decisions that require the approval of all members. In addition, while there are potential circumstances in which Starkey could be removed as manager, such as fraud, there is no suggestion in our record that there is even a remote likelihood of Starkey’s removal. Instead, Kouri Place has worked exactly as it was supposed to. Starkey used the state-allocated federal income-tax credits to finance the construction of low-income housing, and the project is being used exclusively for that purpose.
The statute at issue, K.S.A.79-201b Sixth, tells us that purpose matters: there must be exclusive use of the property “for the purpose of group housing” of these people with special needs. Using federally provided and state-allocated tax credits for the purpose of building this project — the intended purpose of K.S.A. 2009 Supp. 79-201b Sixth — should not logically turn the purpose of the use of the property into something else. We find nothing in the organization structure that Starkey adopted to get the tax credits into the hands of investors who could use them — again the intended purpose of those tax credits — that should affect this result. Our state legislature obviously was trying to encourage the development of these group homes through the property-tax exemption, and Congress and the state legislature were trying to encourage the building of such housing through these tax credits. The Court of Tax Appeals’ approach turns purposive statutory interpretation on its head by concluding that taking advantage of two statutes aimed at the same general goal somehow negates the applicability of one of the statutes — even though there’s no conflict between the language of the two statutes and our tax-exemption statute expressly tells us that purpose matters.
The question before us is one of statutory interpretation, and we generally review such questions independently, without deference to a lower court. Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, Syl. ¶ 2, 181 P.3d 549 (2008). Some level of deference has traditionally been given in Kansas to the statutory interpretation of an administrative agency regarding a statute it administers. E. g., Blue Cross & Blue Shield of Kansas, Inc. v. Praeger, 276 Kan. 232, 249, 75 P.3d 226 (2003) (giving “great deference” to Insurance Commissioner’s statutory interpretation if it has a “rational basis”). Despite its name, the Court of Tax Appeals is an administrative agency within the executive branch of state government. But the Kansas Supreme Court has recently said that “deference [is] no longer being given to the agency’s interpretation.” Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 567, 232 P.3d 856, 859 (2010); accord Ft. Hays St. Univ. v. University Ch. Am. Ass’n of Univ. Profs., 290 Kan. 446, Syl. ¶ 2, 228 P.3d 403 (2010). These cases arose in situations where the case for deference to an agency’s interpretation is relatively weak — Powell, a case before the Civil Services Board, which is a court-like tribunal, and Ft. Hays St. Univ., a case before the Public Employee Relations Board, which was interpreting its own statutory authority.
Although the factual settings of these two cases were limited, our Supreme Court’s language regarding the lack of deference to agency statutory interpretations was not. It is possible that some level of deference might yet be given to agency interpretation in some situations, such as when an agency is administering a technically complex regulatory scheme in which complicated legal issues are involved even in determining the facts. E.g., Frank v. Kansas Dept. of Agriculture, 40 Kan. App. 2d 1024, Syl. ¶¶ 1-2, 198 P.3d 195 (2008); see also Pappas, No Two-Stepping in the Laboratories: State Deference Standards and Their Implications for Improving the Chevron Doctrine, 39 McGeorge L. Rev. 977 (2008); Andersen, Chevron in the States: An Assessment and a Proposal, 58 Admin. L. Rev. 1017 (2006); Asimow, The Scope of Judicial Review of Decisions of California Administrative Agencies, 42 U.C.L.A. L. Rev. 1157, 1192-1209 (1995). But the case now before us is much like Powell, in which the administrative agency was acting in a court-like manner, a situation in which we are equally capable of the task of statutory interpretation. Based on Powell, we conclude that no deference is owed here to the statutory interpretation of the Court of Tax Appeals.
There is one standard rule of statutory interpretation in tax cases that we must consider: the rule that tax-exemption statutes are interpreted strictly in favor of imposing the tax and against granting the exemption except for one who clearly qualifies. In re Tax Exemption Application of Mental Health Ass’n of the Heartland, 289 Kan. 1209, 1211, 221 P.3d 580 (2009). Lest that be considered a strict ruling requiring that we deny an exemption any time there is an arguable ambiguity in the statute, however, our Supreme Court has cautioned in recent years that the strict construction of an exemption statute should not lead to an unreasonable interpretation. 289 Kan. at 1211; In re Tax Application of Lietz Constr. Co., 273 Kan. 890, Syl. ¶ 7, 47 P.3d 1275 (2002).
In re Tax Exemption Application of Mental Health Ass’n of the Heartland is such a case where strict construction of an exemption statute led to an unreasonable interpretation. It involved the interpretation of exclusive-use provisions. The Mental Health Association of the Heartland had set up a low-rent apartment building where residents had to “have severe and persistent mental illness” and be homeless. 289 Kan. at 1210. The Court of Tax Appeals found that the project didn’t meet some of the requirements of K.S.A. 2009 Supp. 79-201b Fourth, which provides a tax exemption for property exclusively used for the housing of persons with special needs who are low-income, but only when other requirements (like enrollment in programs for life-training skills) are also met. The Mental Health Association of the Heartland argued that it qualified for exemption under other statutes, specifically K.S.A. 2009 Supp. 79-201 Second (property exclusively used for charitable purposes) and K.S.A. 2009 Supp. 79-201 Ninth (property exclusively used for the predominant purpose of providing humanitarian services). The Court of Tax Appeals held that K.S.A. 2009 Supp. 79-201b Fourth applied, since it dealt specifically with housing low-income people with special needs and a standard rule explains that a specific statute applies over a more general one. 289 Kan. at 1214-15. A panel of our court agreed. See In re Tax Appeal of the Mental Health Ass’n of the Heartland, 40 Kan. App. 2d 531, 194 P.3d 580 (2008).
Our Supreme Court reversed, finding that there was no conflict between the three statutes and, thus, no reason that an exemption could not be granted under any of the three. The court found that the property’s use met the requirements of K.S.A. 2009 Supp. 79-201 Second (exclusive use for charitable purposes) even though the nonprofit entity that owned the property received some reduced-cost fees for its services. 289 Kan. at 1216-17. The court found that the property’s use also met the requirements of K.S.A. 2009 Supp. 79-201 Ninth (predominant purpose of use is humanitarian services). 289 Kan. at 1217-18. The court then held that there was no conflict between the statutes — and thus no need to apply the rule that a more specific statute controls over a conflicting general one. 289 Kan. at 1218.
The Mental Health Ass’n of the Heartland case is significant to the analysis of our case. First, ambiguities in the statutes were analyzed there that could have invoked application of the rule that tax-exemption statutes are strictly construed against granting the exemption — if any ambiguity were enough to invoke it. Both the Court of Tax Appeals and our court had felt there was sufficient ambiguity in the interplay of the statutes to invoke the rule that the more specific statute (which the taxpayer didn’t meet) controlled. In addition, our Supreme Court addressed an ambiguity in the statute providing an exemption for property used exclusively for charitable purposes; since the residents paid some fees, there was an argument that it was not exclusively a charitable purpose. But the court noted that “the modem view” of what constitutes charitable or benevolent purposes generally allows the receipt of some offsetting rental or fee payments. 289 Kan. at 1216-17 (citing cases). Second, the court noted that “the legislative history of the three statutes in question shows a clear intent on the part of the legislature to broaden the scope of property that is exempt by virtue of its charitable or humanitarian use.” 289 Kan. at 1217. One of those three statutes, K.S.A. 2009 Supp. 79-201b, is the statute at issue in our case.
Any analysis of K.S.A. 2009 Supp. 79-20lb Sixth must start with the words used in it, which are of course the most important guide to the legislature’s intention. 289 Kan. at 1216. The most significant word at issue here is “use,” and as we’ve noted, all agree that the exclusive physical use of the property is for an exempt purpose. In any ordinary meaning of the word “use,” Starkey and Kouri Place have made use of the tax credits to support the exempt property use, not a use of the property to support some other use (like making a profit).
Kansas courts have also consistently looked to the purpose of a statute to determine its meaning. E.g., Southwestern Bell Tel. Co. v. Beachner Constr. Co., 289 Kan. 1262, 1270, 221 P.3d 588 (2009); Mason v. McLeod, 57 Kan. 105, Syl. ¶ 2, 45 P. 76 (1896); State ex rel. Kellogg v. Mercantile Association, 45 Kan. 351, 355, 25 P. 984 (1868). There is no question here that K.S.A. 2009 Supp. 79-201b Sixth was intended to spur the development of group housing for low-income Kansans with special needs. We see no reason that the legislature could have intended that the use of these federally provided, state-allocated income-tax credits should negate the incentive our legislature provided through K.S.A. 2009 Supp. 79-201b Sixth.
We acknowledge that another panel of our court has come to the opposite conclusion in a case that is indistinguishable from this one. See In re Tax Exempt. Application of CLASS Homes I, 44 Kan. App. 2d 121, 234 P.3d 35 (2010). We respectfully disagree with its conclusion:
• The CLASS Homes opinion cited the rule that decisions of the Court of Tax Appeals about tax matters “are given great weight and deference,” 234 P.2d at 37; we believe that deference is no longer owed to statutory interpretations of the Court of Tax Appeals under the Kansas Supreme Court decisions we’ve cited. In 2009 in Mental Health Ass’n of the Heartland, a tax-exemption appeal, the court did not even mention deference to the agency interpretation; in 2010 in Powell and Ft. Hays St. Univ., the court explicitly said it no longer gave deference to agency statutory interpretations.
• The CLASS Homes opinion also relied in part on the rule of strict construction against tax exemptions, a rule that did not carry the day in Mental Health Ass’n of the Heartland. We think it has no more weight here than it did in that case; in both situations, the clear statutory purpose and the statutory language provide support for the exemption. As the court noted in Mental Health Ass’n of the Heartland, although the strict-construction rule was applied more strictly in early exclusive-use cases, the legislature has since tried to broaden the availability of these exemptions in several statutes, including K.S.A. 2009 Supp. 79-201b. 289 Kan. at 1211-13.
• The CLASS Homes opinion found two past cases of support to its holding: Board of Wyandotte County Comm’rs v. Kansas Ave. Properties, 246 Kan. 161, Syl. ¶ 5, 786 P.2d 1141 (1990); and In re Johnson County Comm’rs, 225 Kan. 517, Syl. ¶ 2, 592 P.2d 875 (1979). Those cases do confirm that that there may be a nonphysical, intangible use of property, just as there may be a physical use. One such intangible use is the leasing of the property for a profit. Thus, in each of those cases, when a nontax-exempt entity leased its property/or a profit to a tax-exempt entity (which then physically used the property only for exempt purposes), the property was not exclusively used for that exempt purpose because the property is simultaneously being used to make money for the owner. But in the case of Kouri Place, the only financial use arguably being made of the property is realistically needed to adapt the use of these tax credits to the financing of a building being built by a nonprofit corporation that can’t take tax credits for its own use. That is not akin to the leasing of the property for a profit.
• The CLASS Homes also found nonbinding language in another case, In re Tax Appeal of Univ. of Kan. School of Medicine, 266 Kan. 737, 766-67, 973 P.2d 176 (1999), supportive of its analysis. We do not find it persuasive in deciding how to interpret K.S.A. 2009 Supp. 79-201b Sixth on our facts. In the University of Kansas case, one nonprofit entity leased a building to another nonprofit entity at below-market rent, and the lessee used the building predominantly for humanitarian purposes. The court held that this qualified for a tax exemption under K.S.A. 79-201 Ninth, which grants an exemption when the “predominant purpose” of the use is for humanitarian purposes. 266 Kan. at 764-69. The CLASS Homes opinion explains that our Supreme Court noted as one of several points supporting this result that none of the funds generated by the lease rental payments went to benefit any private shareholder or individual. The CLASS Homes panel concluded that this suggested that having a private benefit to anyone holding an interest in Kouri Place would negate an exclusive-use exception. 234 P.3d at 39. But the University of Kansas court also said that its decision was ultimately guided by “the intent of the legislature,” and its reference to the lack of pass-through rental income to any private interest holder was merely one of the reasons it concluded that its interpretation in that factual setting was consistent with legislative intent. 266 Kan. at 766-67. In our case, there is a clear indication of legislative intent both in K.S.A. 2009 Supp. 79-201b Sixth, which is designed to encourage the development of group-homes for low-income, special-needs Kansans, and the federal statute, 26 U.S.C. § 42, which is designed to encourage the development of low-income housing generally by giving tax credits to entities that pay income taxes so that such entities will put money into low-income housing projects. Nothing in the University of Kansas opinion suggests to us that combining these two statutory purposes into a single project should cause the project to lose eligibility for a tax exemption under our statute.
In sum, Kouri Place is entitled to the tax exemption that it sought under K.S.A. 2009 Supp. 79-201b Sixth. The ruling of the Court of Tax Appeals is reversed, and this case is remanded with directions to enter an order approving the exemption application. | [
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Green, J.:
Matthew M. Hines pled guilty to attempted second-degree murder and aggravated battery of his wife, Charmaine Hines. The two convictions presumptively required a minimum prison term of 61-71 months or a maximum prison term of 99-114 months. The trial court determined that Charmaine’s request for leniency was a substantial and compelling reason for departing from the statutory prison term and imposed a prison term of 24 months for each conviction and ordered that the two sentences be served concurrently. On appeal, the State contends that the trial court inappropriately considered a factor that was not substantial and compellingCharmaine’s request for leniency. We agree. As a result, we reverse and remand to the trial court for resentencing.
The facts of this case are largely undisputed. One summer day in 2008, Hines and Charmaine got into an argument about a man that she had been allegedly seeing. After Charmaine asked for a divorce, Hines began choiring her. Hines was interrupted when one of their children walked into the couple’s bedroom. Hines resumed choking Charmaine after the child left the bedroom. When the child returned to the bedroom a second time, Charmaine bolted out of the home. Nevertheless, when she attempted to run to a neighbor’s house for help, Hines caught her. He then cut Charmaine’s neck with a box cutter which he had retrieved from his vehicle and fled from the scene in his vehicle.
Hines was initially charged with one count of attempted first-degree murder. The information was later amended to include one count of aggravated kidnapping and two counts of domestic battery.
Before trial, Hines and the State reached an agreement regarding the disposition of this case. In exchange for his plea of guilty to the charges of attempted second-degree murder and aggravated battery, the State agreed to dismiss the other charges. The agreement was as follows: the State would ask for the top number in the appropriate grid box for each count, would ask that the two counts be run consecutively, and would ask the trial court to follow the presumption of prison. In contrast, Hines was free to argue for a dispositional sentence of probation and for the low number in the appropriate grid box. Under the terms of the plea agreement, Hines was not to ask for either a durational departure or concurrent sentences.
Under the plea agreement, Hines moved for a dispositional departure sentence. At the sentencing hearing, Charmaine spoke and asked the trial court to impose probation. Charmaine opined that Hines “really wasn’t trying to harm me” and that his children needed him. The trial court denied the motion for dispositional departure, finding that probation would not be an appropriate sen tence. Nevertheless, the trial court did depart from the plea agreement and imposed a downward durational sentence of 24 months’ imprisonment for each conviction, with the two sentences to run concurrently. Hines was also given a 36-month term of postrelease supervision.
Did the Trial Court Err When It Imposed a Downward Durational
Departure Sentence?
On appeal, the State contends that the trial court’s sentencing decision was based solely on the victim’s testimony and request for leniency at the sentencing hearing. As a result, the State contends that the trial court inappropriately considered a factor that was not substantial and compelling.
Interpretation of a sentencing statute is a question of law, and an appellate court’s standard of review is unlimited. State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009). Appellate review of a departure sentence is limited to whether the sentencing court’s findings of fact and reasons justifying a departure (1) are supported by substantial competent evidence in the record and (2) constitute substantial and compelling reasons for a departure. State v. Blackmon, 285 Kan. 719, 724, 176 P.3d 160 (2008).
Whether the facts relied upon by the sentencing court constitute substantial and compelling reasons for a departure is a question of law, providing an appellate court with unlimited review. State v. Martin, 285 Kan. 735, 739, 175 P.3d 832 (2008). The sentencing court must state on the record at the time of sentencing the substantial and compelling reasons for the departure. K.S.A. 21-4716(a). The court’s comments when the sentence is pronounced govern as to the reasons for departure. Blackmon, 285 Kan. at 729.
Charmaine asked the court to grant Hines probation, stating, “I’m not saying that what he did wasn’t wrong, but I feel like he really wasn’t trying to harm me.” Charmaine went on to mention the couple’s children and noted that Hines was “a loving father.” After Charmaine testified, Hines’ counsel noted that the couple was separated, and this was not a case where they had reconciled and were attempting to carry on with their marriage. Although the trial court mentioned “all the facts and circumstances of the case” when entering the departure sentence, the trial court clarified that the “substantial and compelling [reason] to enter a durational departure” was that Charmaine appeared at the hearing and requested leniency. The fact that leniency was requested is clearly shown in the transcript from the sentencing hearing. Accordingly, this court must determine whether the victim’s request for leniency is a “substantial and compelling” reason under the statute.
K.S.A. 21-4716(c) sets out the nonexclusive statutory factors which may justify a departure sentence. In addition to the factors specifically enumerated in the statute, sentencing courts may consider other, nonstatutory, factors when imposing a departure sentence, as long as there is evidence in the record to support such factors and the use of the factors would be consistent with the intent and purposes of the sentencing guidelines. As long as one factor relied upon by the sentencing court is substantial and compelling, the departure sentence should be upheld. Blackmon, 285 Kan. at 725.
Because the meaning of the phrase “substantial and compelling” is not readily apparent, judicial construction is appropriate. In State v. McKay, 271 Kan. 725, 728, 26 P.3d 58 (2001), our Supreme Court stated: “The term ‘substantial’ refers to something that is real, not imagined; something with substance and not ephemeral. The term ‘compelling’ implies that the court is forced, by the facts of the case, to leave the status quo or go beyond what is ordinary.” Based on these definitions, it is clear that the words “substantial and compelling” require a real and forceful reason for granting a departure sentence. Moreover, the legislature did not intend sentencing judges to grant a departure sentence for a reason that fell short of the previously mentioned definitions.
Although this court has stated in at least two decisions that testimony or evidence from a victim or his or her family may furnish a substantial and compelling reason for a departure, these cases are distinguishable from the present case. For example, in State v. Heath, 21 Kan. App. 2d 410, 901 P.2d 29 (1995), Heath pled no contest to a charge of involuntary manslaughter, a severity level 5 person felony. This court determined that the testimony or evidence from a victim or his or her family may furnish a substantial and compelling reason for departure. In Heath, the defendant was driving under the influence of alcohol when he was involved in an accident in which his passenger was killed. At the sentencing hearing, both of the victim’s parents asked the court for leniency, specifically requesting that die defendant be given probation. In upholding the sentence, this court noted that both the Kansas Constitution and various statutes allow victims or their families to participate in the sentencing process, and that the statements made during the sentencing process may constitute substantial and compelling reasons for departure as a matter of law. 21 Kan. App. 2d at 416-17.
Nevertheless, Heath is clearly distinguishable from this case because the defendant’s conduct in Heath, in causing his passenger to be killed, was an unintentional killing of a human being. See K.S.A. 21-3404. In contrast, Hines’ conduct was obviously intentional. See K.S.A. 21-3402(a).
Further, in State v. Stanley, No. 98,261, unpublished opinion filed July 25, 2008, this court considered a case where the trial court had granted a downward durational departure sentence after the defendant had been convicted of aggravated indecent liberties with a child. The trial court imposed the departure sentence based on a letter submitted by the victim. In the letter, the victim asked that the defendant be sentenced to probation because she felt that she had “encouraged” the sexual encounter. Slip op. at 2. The trial court reduced the defendant’s sentence from the 102-month presumptive sentence to 60 months’ imprisonment. In affirming the sentence, this court noted that, in addition to other things, the victim’s request for leniency could be a substantial and compelling reason for the departure sentence.
Similarly, Stanley is distinguishable from this case because the victim felt she had “encouraged” the criminal conduct. Moreover, there is no evidence that the victim was physically harmed by the criminal conduct. On the other hand, Hines’ conduct was intended to inflict serious bodily injury on Charmaine. A further distinction between the facts in Heath and Stanley is that Hines had time to think before he cut his wife’s neck and chest with the box cutter. For example, there is evidence in the record that before Hines cut Charmaine’s neck and chest, Hines had to first retrieve the box cutter from his vehicle. As a result, the facts in this case are far different from those in Heath and Stanley.
In McKay, our Supreme Court stated that sentencing judges should be guided by the following criteria in determining whether the departure factors cited by the court are substantial and compelling reasons for imposing a departure sentence: (1) the offense of conviction, (2) the defendant’s criminal history, and (3) the purposes of the sentencing guidelines. 271 Kan. at 728.
As to Hines’ convictions, there was substantial evidence that Hines attempted to murder Charmaine in two different ways: by twice choiring her and by cutting her neck twice with a box cutter. Moreover, the evidence showed that Hines chased Charmaine down after she briefly escaped from Hines’ physical attacks. In addition, the evidence clearly shows that Hines committed the offense of aggravated battery against Charmaine. As stated earlier, the clear legislative intent of the sentencing guidelines is to insure that offenders who commit violent crimes against people receive the prescribed sentences unless there is a real and forceful reason for granting a departure sentence.
The legislature’s imposition of presumptive sentences for certain crimes against people reflects the legislature’s desire that the length of the sentences contained in the various statutes be sufficient to discipline the offender, to protect society, to deter others from committing such crimes, and to reform the offender. Here, it seems that Hines’ motive for assaulting Charmaine was based on his feelings of anger towards her. Anger and betrayal can be deadly emotions in our society. Although the law does not punish one’s feelings of anger and betrayal, the law punishes the criminal act which is prompted by these feelings. Here, there is no showing in the record that Hines’ uncontrolled anger, which precipitated his rash behavior in attacking his wife, has been brought under control. We note that Hines was participating in anger management treatment at the time of sentencing. Hines’ willingness to seek anger management treatment shows potential for his reformation. Our laws, however, are concerned not only with redeeming the of fender, but, as stated earlier, also with protecting society and deterring others from committing crimes like the ones in this case.
Based on the facts presented, the evidence clearly showed that Hines intended to kill Charmaine. Moreover, there has been no showing that society will be protected by the concurrent departure sentences of 24 months or that these concurrent departure sentences of 24 months will deter others from committing crimes like the ones in this case. We determine, therefore, that the reason advanced by the district court — Charmaine’s request for leniency — was not a substantial and compelling reason for granting departure sentences under the facts of this case. Charmaine’s request for leniency does not mitigate Hines’ culpability. As a result, we reverse the durational departure and remand to the trial court for resentencing.
Reversed and remanded with directions. | [
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Pierron, J.:
Kenneth S. Goff appeals from the trial court’s denial of his motion to suppress evidence seized during a traffic stop of his vehicle. Goff argues that the police illegally searched his vehicle without probable cause. He further argues that evidence was improperly seized after a custodial interrogation prior to his being given a Miranda warning.
On July 21, 2007, Goff was arrested and charged with possession of marijuana with intent to sell, a level 3 nonperson drug felony; no tax stamp, a level 10 nonperson felony; and possession of drug paraphernalia, a class A nonperson misdemeanor. He was arrested after police stopped his vehicle for a nonfunctioning tag light.
After approaching the vehicle in question on a traffic stop, the officer smelled the odor of raw marijuana coming from inside the vehicle. The officer then called for backup and waited for it to arrive. When backup arrived, the officer ordered Goff and two other men out of the vehicle. The officer then searched the vehicle and found marijuana cigarettes in a prescription bottle in the center console. There was also a padlocked, tool-box-type locker in the back passenger section of the vehicle.
The officer asked Goff for the key to the padlock, and Goff responded that the officer needed a warrant to search the locker. The officer told Goff that he “didn’t want to have to break the lock.” Goff responded by telling the officer that the key was on the key ring on the center console. The officer unlocked the locker and searched it. The officer found a pipe and a Tupperware container containing approximately 15 bags of marijuana. Another officer also found an additional baggie of marijuana on the passenger’s floorboard under the carpet.
Following his arrest, Goff filed a motion to suppress. The trial court held a hearing on the motion to suppress on March 31,2008. After reviewing the evidence, the court denied Goff s motion to suppress. The court thereafter conducted a bench trial and found Goff guilty of all three counts.
Goff filed a motion for a dispositional departure or suspension of execution of sentence. The court granted the dispositional departure and sentenced Goff to 18 months probation with an underlying controlling 34-month prison term.
Goff timely appeals the denial of his motion to suppress.
Goff argues that the smell of raw marijuana was insufficient for probable cause and the officer could not have smelled marijuana from his position near the vehicle. We find there was probable cause for the officer to search, and the trial court did not err in so finding.
An appellate court reviews the district court’s decision on a motion to suppress using a bifurcated standard. Without reweighing the evidence, the district court’s findings are reviewed to determine whether they are supported by substantial competent evidence. The ultimate legal conclusion regarding the suppression of evidence is reviewed using a de novo standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007).
Substantial evidence is evidence possessing both relevance and substance and which provides a substantial basis of fact from which the issues can reasonably be determined. Specifically, substantial evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. Walker, 283 Kan. 587, 594-95, 153 P.3d 1257 (2007).
In order to stop a vehicle, an officer must have reasonable suspicion based on articulable evidence that a crime had occurred. State v. Moore, 283 Kan. 344, 349-50, 154 P.3d 1 (2007). In this case, the officer had reasonable suspicion that the vehicle’s tag fight was not properly illuminated — a traffic infraction.
The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights generally protect against unreasonable searches and seizures. State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). Generally, for a search to be reasonable, an officer must first have a warrant. State v. Fewell, 37 Kan. App. 2d 283, 285, 152 P.3d 1249 (2007). There are several recognized exceptions to that general rule. An officer may search a vehicle without a warrant so long as he or she has probable cause to believe that there is evidence of a crime inside the vehicle. State v. Davis, 31 Kan. App. 2d 1078, 1083, 78 P.3d 474 (2003), rev. denied 277 Kan. 925 (2004).
Within the original purpose of a traffic stop, an officer may request a driver’s license, run a computer check on the license, and issue citations, but once the driver’s license has been returned the driver must be allowed to go without being subject to further delay by the officer. State v. Mitchell, 265 Kan. 238, 245, 960 P.2d 200 (1998). The stop is considered a seizure, and, therefore, in order to continue the stop the officer must have a reasonable and articulable suspicion that a crime has been committed, is being committed, or is about to be committed. State v. Thompson, 284 Kan. 763, 773, 166 P.3d 1015 (2007).
Here, the officer never issued a citation for the unfit tag fight. Upon smelling the raw marijuana the officer called for backup, and after backup arrived he had Goff and the other occupants exit the vehicle before searching it. In order for the officer to continue the detention without issuing the citation, he had to have a reasonable suspicion that a crime was being committed in order to detain Goff, and probable cause that evidence of the crime was in the van in order to search it. Therefore, the only question is whether the smell of raw marijuana alone is sufficient to provide both the reasonable suspicion to detain Goff and the probable cause to search the van.
Goff presents two arguments on appeal. First, he challenges the trial court’s finding that the odor of raw marijuana alone is sufficient for there to be probable cause that there is evidence of a crime inside the vehicle. Second, Goff argues the evidence establishes that the officer could not have smelled raw marijuana coming from the vehicle.
The smell of raw marijuana alone is sufficient to give an officer both reasonable suspicion and probable cause. This court has said as much in several unpublished decisions. In State v. Dixon, No. 98,881, unpublished opinion filed April 18, 2008, rev. denied 286 Kan. 1181 (2008), during a traffic stop, an officer smelled the “pretty strong, pretty pungent odor” of raw marijuana coming from the vehicle. Slip op. at 2. The defendant also told the officer that her father smoked marijuana in the vehicle and that may have caused the smell. The Dixon court found the district court had erred in granting a suppression motion, finding that there was sufficient evidence to establish probable cause based both on the smell of marijuana and the admission that the defendant’s father smoked marijuana in the vehicle. Slip op. at 7-8.
In State v. Toevs, No. 100,065, unpublished opinion filed December 19, 2008, during a traffic stop for speeding, the officer smelled the odor of raw marijuana coming from the vehicle. The Toevs court stated: “[The officer] testified that he smelled ‘a faint odor’ of raw marijuana coming from inside the car. If so, then the search was lawful.” Slip op. at 4.
In State v. Kirk, 40 Kan. App. 2d 817, 196 P.3d 407 (2008), an officer detected the smell of marijuana coming from the car he had stopped. This court found that while there were inconsistencies in the officer’s testimony over whether he smelled burnt or raw marijuana, the officer had been trained to identify the odor of marijuana. 40 Kan. App. 2d at 820. The Kirk court found that because the officer had smelled marijuana, whether raw or burned, there was substantial evidence that the officer had probable cause to search the vehicle. 40 Kan. App. 2d at 820.
In State v. MacDonald, 253 Kan. 320, 856 P.2d 116 (1993), during a lane check stop, an officer smelled the odor of burned marijuana coming from the car he had stopped. The officer looked in the car, saw a small metal box, and asked the defendant what was in the box. The defendant opened the box, revealing marijuana in baggies. The McDonald court found that the officer had probable cause to search the vehicle based on the odor of marijuana. 253 Kan. at 324-25.
Goff argues that MacDonald is distinguishable from the present case because the odor was of burnt and not raw marijuana. However, the MacDonald court does not provide an admonition against extending the scope of probable cause to the smell of raw marijuana, and there have been other rulings that support the finding that the smell of raw marijuana is sufficient to give reasonable suspicion to detain and probable cause to search a vehicle. See McKenney v. State, 165 P.3d 96 (Wyo. 2007). Therefore, the officer identifying the odor of raw marijuana, by itself, was sufficient to give him probable cause to search Goff s vehicle.
Goff next argues that the officer could not have had probable cause because he could not have smelled the raw marijuana from his position near the vehicle. During the suppression hearing, Goff cross-examined the officer who searched his vehicle. A baggie of marijuana was held away from the officer, and he stated that he probably could not smell it from the distance where it was held. Later, during the cross-examination of a drug-dog handler, Goff established that the handler could not smell marijuana in the courtroom until it was only 1 foot away. Goff argues that based on this testimony, the officer could not have smelled marijuana in baggies in a locker in the back of the vehicle.
While the trial court did not make a factual ruling regarding probable cause, the appellate court ordinarily presumes the trial court found all facts necessary to support its judgment. Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009). What remains is for us to determine whether a finding that there was probable cause was supported by substantial competent evidence.
The officer testified that when he walked up to the vehicle he smelled the odor of raw marijuana. While the officer was not able to identify the smell of marijuana in the courtroom, the State argued there was a difference between identifying the odor of marijuana in the courtroom and outside of the vehicle. In order to rule that there was probable cause, the court would have had to find the testimony of the officer was credible. When evaluating whether there was substantial competent evidence to support the trial court’s factual findings, we do not reweigh the evidence. State v. Fewell, 286 Kan. 370, 375-76, 184 P.3d 903 (2008). The trial court had to have found the officer’s testimony that he smelled marijuana was credible to have found the officer had probable cause. There was sufficient testimony presented by the State to support such a finding. Therefore, the trial court did not err in finding the officer had probable cause to search Goff s vehicle. We note the “test” conducted in the courtroom involved marijuana that was months older than at the time of the search and there was no testimony as to what marijuana was smelled by the officer.
Goff next argues that his statements given to the officer about the location of the key for the locker were taken during a custodial interrogation without his having received a Miranda warning. While Goff was not free to leave at the time of the questioning, the questioning was part of an investigatory detention and not a custodial interrogation. The officer was not required to give a Miranda warning, and the trial court did not err in denying Goff s motion to suppress.
When evaluating a motion to suppress statements, we must determine, without reweighing evidence, whether the trial court’s decision is supported by substantial competent evidence. State v. Jones, 283 Kan. 186, 192, 151 P.3d 22 (2007).
The State may not use statements made by a defendant during a custodial interrogation unless the State has provided procedural safeguards to preserve the defendant’s privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Miranda warnings are, however, only required in instances of custodial interrogations, which requires that a person be in custody at the time of the interrogation. Oregon v. Mathiason, 429 U.S. 492, 495, 50 L. Ed. 2d 714, 97 S. Ct. 711 (1977). Additionally, traffic stops are generally exempt from the typical Miranda rules, and police are allowed to ask a moderate number of questions to confirm identities and to confirm or dispel suspicions related to the scope of the stop. Berkemer v. McCarty, 468 U.S. 420, 439, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984).
“K.S.A. 22-2402(1) also permits officers to question a driver during the course of a traffic stop. That section provides: “Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand of the name, address of such suspect and an explanation of such suspect’s actions.’ ” State v. Moore, 39 Kan. App. 2d 568, 581, 181 P.3d 1258, rev. denied 286 Kan. 1184 (2008).
Here, the type of stop the officer conducted was an investigatory detention. A person may be seized and questioned by law enforcement officials without the encounter rising to the level of a custodial interrogation. State v. Hill, 281 Kan. 136, 142, 130 P.3d 1 (2006). Investigatory detentions, or Terry stops, occur when a person is seized but is not yet under arrest and the officer reasonably suspects that the person has committed or is committing a crime. Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). In the case of a traffic stop, a person is only under arrest if he or she is physically restrained or deprived of his or her freedom in a significant way for the purpose of answering for a crime. K.S.A. 22-2202(4); State v. Vanek, 39 Kan. App. 2d 529, 533-34, 180 P.3d 1087, rev. denied 286 Kan. 1185 (2008).
The officer testified he had a suspicion that there was marijuana in the locker because the odor of marijuana was so pervasive it suggested there was a larger amount of marijuana in the vehicle than just inside the pill bottle. Therefore, the officer had a reasonable suspicion that Goff was committing a crimepossession of marijuana, and could legally question Goff about his suspicions without placing Goff under arrest or giving him a Miranda warning.
The trial court did not err in denying Goff s motion to suppress, and the trial court’s ruling is affirmed.
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McAnany, J.:
Cory Elkins was convicted in May 2008 of multiple counts of rape and aggravated criminal sodomy as a result of attacks in Lawrence on J.L. in 1994 and on E.L. in 1995. Neither victim could identify her attacker. However, there were a number of similarities regarding the manner in which the two attacks occurred. Both victims were examined at the hospital and DNA samples were collected.
The Kansas Bureau of Investigation (KBI) analyzed the samples and entered the DNA profiles into the national database known as the Combined DNA Indexing System (CODIS). In 2006, CODIS generated a match between E.L.’s case and J.L.’s case, indicating that the attacker in each case was likely the same person. Elkins had been incarcerated in California, which resulted in his DNA profile being entered into the database. CODIS generated a match between Elkins and the J.L. and E.L. samples.
The KBI informed Lawrence detectives about the DNA matches. The detectives obtained a DNA sample from Elkins in California. The KBI tested the sample and confirmed that Elkins’ DNA profile matched the DNA profile of the attacker in both attacks. Elkins was then charged with rape and aggravated criminal sodomy of both J.L. and E.L.
Before trial, Elkins moved in limine to exclude evidence about the CODIS match linking him to the attacks. The trial court denied the motion but limited the State to presenting the CODIS evidence only for the purpose of explaining the actions the investigators took before arresting Elkins.
It was discovered before trial that during her analysis of the DNA samples the KBI’s DNA analyst, Sindey Schueler, had contaminated samples from E.L.’s case with some of Schueler’s own DNA. Schueler testified at trial that the contamination occurred during an examination in 1996, that the contamination was accidental, and that the contamination did not invalidate the result of her test. Her test indicated that Elkins contributed DNA to the samples taken from E.L. Schueler explained that her own DNA was not an alternative male DNA source. Because Elkins was the only identifiable male contributor in the contaminated E.L. slides, Schueler explained, her identification of Elldns’ DNA was still rehable.
In the course of her testimony, Schueler described locating Elk-ins’ DNA profile on the CODIS “offender index.” Elkins objected and moved for a mistrial. The trial court denied the motion but ordered the State to instruct Schueler to refrain from using the term “offender” in describing the database. Thereafter, no one referred to CODIS as the “offender index” for the remainder of the trial. No limiting instruction was requested or given.
Finally, during the State’s cross-examination of Dean Stetler, Elkins’ DNA expert, Stetler testified that his findings were based on his review of the records as opposed to any testing of samples. He stated that on occasion he did testing in his lab but did not have any written quality assurance protocols. He testified, “In a research lab, you always have the luxury of being able to repeat an analysis. So everything is repeated at least twice. That’s our quality assurance. If we come up with the same answer more than once, we can be assured that our answer is valid.” The prosecutor then asked Stetler if he asked to retest any of the samples in either E.L.’s or J.L.’s case.
Elkins objected and moved for a mistrial, contending that the question improperly shifted the burden of proof onto the defendant. The court overruled the objection and refused to grant a mistrial. Stetler then answered the question, stating that he did not request samples for retesting because from his review of the documents “there wasn’t anything left to retest of the critical samples.”
The jury convicted Elkins on all counts, and the court denied his request for a new trial. Elkins appeals.
Right of Confrontation
Elkins argues that allowing Schueler to testify about the CODIS “hit” linking him to the crimes violated his Sixth Amendment right to confrontation. Elkins argues that the “hit” was testimonial under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). He compares his case to the KBI drug reports at issue in State v. Laturner, 289 Kan. 727, 218 P.3d 23 (2009). Elkins asserts that the confrontation violation occurred here because he was not able to cross-examine the CODIS analyst from Cahfomia who entered his DNA into the database. He argues that even though the State was prohibited from using the term “match” to describe the database’s connection between Elkins and the Lawrence rapes, the reference to a “hit” was readily perceived by the jury as the functional equivalent.
Elkins argues that the confrontation violation was not harmless error because the State used the CODIS match to bolster or corroborate Schueler’s analysis, which was not credible because of the contamination problem.
Elkins’ confrontation argument against the CODIS “hit” testimony was presented to the trial court in Elkins’ motion in limine and again at trial in objections to the admission of testimony. We review these trial court rulings for any abuse of discretion. See State v. Abu-Fakher, 274 Kan. 584, 594, 56 P.3d 166 (2002). We examine de novo the legal issue of whether admission of the CODIS evidence violated Elkins’ right of confrontation. See State v. Appleby, 289 Kan. 1017, 1054-55, 221 P.3d 525 (2009).
There was extensive testimony from both sides on the DNA evidence. The witnesses providing that testimony were available for extensive cross-examination.
Myrl Roberts, a nurse at Lawrence Memorial Hospital, testified about the procedure for taking and preserving the victim’s clothing and obtaining DNA swabs from J.L. and preserving the material obtained on slides. Barbara Parker, another nurse at Lawrence Memorial Hospital, testified to the procedure for collecting E.L.’s clothing and obtaining DNA samples from E.L.
Laura Kwart worked for the KBI doing screening of rape kits in order to identify seminal fluid. She testified to the procedures she used to extract sperm cells from samples and to preserve die results.
Sindey Schueler, the supervisor who oversees DNA testing by the KBI, testified about the procedure for extracting DNA from material collected when a victim is examined at the hospital following a rape. She did the DNA extraction and analysis on samples from both J.L. and E.L.
Schueler testified that seminal fluid was found on an item of J.L.’s clothing, a chair pad, and a washcloth. In April 2004, she conducted a DNA extraction from the retained evidence samples. In February 2006, she put the DNA profiles she obtained from J.L. in this extraction process into the CODIS database “to see if a possible investigative lead could be generated.” As a result, Schueler obtained a “hit”; that is, the DNA profiles from the J.L. specimens led to another sample in the database: the DNA profile from E.L. which Schueler had entered into the database earlier.
Schueler testified that the DNA profile obtained in E.L.’s case came from seminal fluid identified on the vaginal and rectal swabs obtained at the hospital following her attack. Schueler extracted the DNA from these swabs and generated a DNA profile, which she entered into the CODIS database.
Apparently, at some point Elkins’ DNA was entered into the CODIS database following his arrest on unrelated charges in Sacramento, California.
Schueler testified that in November 2006, she obtained another “hit” on the CODIS database which provided Elkins’ name as a possible investigative lead in both J.L.’s case and E.L.’s case. Lawrence Police Detective Lance Flachsbarth testified that his police department was notified that “a suspect was developed” through DNA in both rape cases, and Flachsbarth went to California to obtain a DNA sample from Elkins. Flachsbarth obtained the sample using a cotton swab and delivered it to the KBI.
Schueler testified that she received the sample from Flachsbarth and conducted the procedures to extract Elkins’ DNA and generate a genetic profile. She compared the Elkins profile to the male DNA sample obtained from J.L.’s clothing and the chair pad. She testified that Elkins was the likely source of the DNA found on the chair pad. The chance that Elkins is not the source is 1 in 131 billion.
Elkins claims his confrontation rights were violated when he did not have an opportunity to examine the person in California who took his DNA sample and entered it in the CODIS database.
With that, we turn to our Supreme Court’s decision in Appleby. Appleby involved the rape and murder of a young college student who worked at a swimming pool in Leawood. Appleby was apprehended in Connecticut where the police obtained a DNA sample from him. DNA testing by two crime labs matched Appleby’s DNA to DNA taken from the victim’s body. Our Supreme Court considered whether the admission of evidence from the CODIS database violated Appleby’s confrontation rights. The court stated:
“We first note that DNA itself is physical evidence and is nontestimonial. Wilson v. Collins, 517 F.3d 421, 431 (6th Cir. 2008); United States v. Zimmerman, 514 F.3d 851, 855 (9th Cir. 2007); see also Schmerber v. California, 384 U.S. 757, 765, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1996) (holding that ‘blood test evidence, although an incriminating product of compulsion, [is] neither . . . testimony nor evidence relating to some communicative act or writing’ and is therefore not protected by the Fifth Amendment).
“Placing this physical evidence in a database with other physical evidence — i. e., other DNA profiles — does not convert the nature of the evidence, even if the purpose of pooling the profiles is to allow comparisons that identify criminals. . . . The database is comprised of physical, nontestimonial evidence.” Appleby, 289 Kan. at 1057-58.
The cases relied upon in the court’s opinion in Appleby relate to whether a defendant’s Fifth Amendment right not to be compelled to testify against himself is violated when the defendant is compelled to give a saliva or blood sample for the purpose of preserving the defendant’s DNA. As the court noted in Schmerber, “blood test evidence, although an incriminating product of compulsion, [is] neither . . . testimony nor evidence relating to some communicative act or writing.” 384 U.S. at 765. As noted in Wilson, “a DNA sample is analogous to a photograph or fingerprint, another form of physical evidence identifying an individual that falls outside the scope of Fifth Amendment protection.” 517 F.3d at 431.
Elkins complains that he had no confrontation opportunity with respect to the testimony of a CODIS “hit” because the California police or prison person who took his DNA sample is not available for cross-examination. He cites State v. Henderson, 284 Kan. 267, Syl. ¶ 3, 160 P.3d 776 (2007), for the proposition: “If the declarant is unavailable to testify at trial, and the declarant’s statement is testimonial, then the testimony is not admissible unless the defendant had a prior opportunity to cross-examine the declarant.”
This begs the question: who is the declarant Elkins had no opportunity to confront? There was no testimony at trial about any statement or declaration by any California official. In fact, there was no trial testimony whatsoever about how Elkins’ DNA got into the CODIS database. Further, if the act of Elkins allowing a DNA swab to be taken from him is not testimonial, the act of entering Elkins’ DNA information into the database is likewise nontestimonial.
The CODIS database consists of two elements: (1) the data contained in the database, and (2) the computer program and the algorithms by which the computer manipulates the data so as to enable it to recognize and to report similar items of datum. In Appleby, the defendant claimed the court erred in admitting into evidence the computer-generated report which indicated that there was only a one in two quadrillion probability of randomly selecting someone in the population other than Appleby whose DNA would match the DNA found on the victim’s garment. Thus, Appleby’s challenge was to the computer program at work in the CODIS database. However, the court in Appleby made clear not only that the statistical calculations obtained from CODIS are not testimonial, but that the DNA data in the database itself are not testimonial. 289 Kan. at 1058.
An analogue to the present issue can be expressed in the following scenario. The prosecution witness testifies that he saw the defendant at the scene and looked at the clock on the wall to determine it was 2 p.m. The defendant objects on confrontation grounds, arguing that if this testimony is to be admitted, the defendant is entitled to examine (1) a clockmaker to determine if the gears and levers in the clock were working properly so that the clock could measure time correctly, and (2) the person who last set the clock to determine if the clock was set for the correct time. The gears and levers in the clock mechanism move to produce an output that consists of the hands of the clock being in a particular position. This is analogous to the CODIS computer program that generates “hits” and the statistical probabilities that are the output of the database. The person who last set the clock and thereby entered the data (the then current time), which the gears and levers of the clock manipulate to determine the time at a later event, is analogous to the California official who entered Elkins’ DNA into the system.
Appleby makes clear that neither is the product of a testimonial declaration. Elkins would require the production of the person who set the clock before the admission of testimony about the time. In oral argument, his appellate counsel conceded that this would be Elkins’ position in this analogous situation. Why stop there? By what standard did the clock-setter set the clock? We had better get testimony about the reference clock used to set the clock as well, maybe going back to the United States Master Clock maintained by the United States Naval Observatory.
The court in Appleby recognized “the database and the statistical program are accepted sources of information generally relied on by DNA experts.” 289 Kan. at 1058. We conclude that the right of confrontation does not extend to the person who entered Elkins’ DNA profile in the CODIS database.
Elkins’ reliance on State v. Laturner, 289 Kan. 727, is unfounded. In Laturner, our Supreme Court held that K.S.A. 22-3437 violated the Confrontation Clause because the statute allowed the State to introduce into evidence a certified KBI drug analysis report without calling the analyst to testify. The court found that the reports contained assertions of fact by trial witnesses who normally would be required to testify as to their conclusions. The drug analysis certificates were therefore “ ‘functionally identical to live, in-court testimony, doing “precisely what a witness does on direct examination.” ’ ” 289 Kan. at 734.
In our case, the declaration that Elkins claims to be testimonial is the report of the CODIS database that there is a “hit.” There is no suggestion that this is the functional equivalent of the live testimony of the California official. No one has ever claimed that the California official would, or could, testify that there was a “hit” between Elkins’ DNA profile and the profile of some other entry in the CODIS database. That was the work of CODIS. Schueler, who testified to the “hit,” was in court and available for cross-examination. Latumer does not apply.
Further, even if the right of confrontation extended as far as Elkins claims, he fails to show how he was harmed by the inability to cross-examine the unknown California official. Detective Flachsbarth testified about collecting a DNA sample from Elkins and returning it to Schueler at the KBI, who testified about extracting the DNA sample and confirming that it matched DNA already collected. Both Flachsbarth and Schueler were available for cross-examination. Elkins chose not to cross-examine Flachsbarth but extensively cross-examined Schueler. Elkins questioned Schueler about possible contamination, but she explained that the contamination did not affect the accuracy of her analysis. Elkins’ expert, Stetler, opined that Schueler might have cross-contaminated the J.L. and E.L. samples with DNA from another source. Elkins fails to show that this defense had anything to do with the collection of Elkins’ DNA in California. The jury resolved the battle of the experts in favor of the State. Elkins fails to suggest how the outcome would have been any different had Schueler’s statement about the CODIS “hit” not been received into evidence.
We find no error by the district court in admitting testimony that a CODIS “hit” occurred.
Pretrial Discovery Requests
Elkins claims the State failed to turn over vital discovery before trial. He requested documentation regarding the contamination incident, and the State apparently turned over all the KBI documents it possessed before trial. However, during Schueler’s testimony, she referred to previously undisclosed handwritten notes on the envelope which contained E.L.’s contaminated DNA slides in testifying that the contamination likely occurred in 1996. Elkins moved for a mistrial. The trial court denied the motion.
Elkins argues that failing to disclose the envelope notes warranted a mistrial because his DNA expert, Stetler, testified that his review of the 1996 analysis of the material in E.L.’s case revealed neither Elkins’ DNA nor evidence of contamination. Stetler concluded that any contamination must have occurred in 2004 when the material was tested again because Schueler handled the J.L. and E.L. material on the same day in 2004. Because Schueler’s 1996 notes contradicted Stetler’s cross-contamination conclusions, Elkins argues that the State’s failure to disclose the notes undermined his theory of defense. He concludes that it was an abuse of discretion for the district court to deny his motion for a mistrial under these circumstances.
Elkins overstates the effect of Schueler’s notes on Stetler’s testimony. Schueler justified her assertion that she contaminated E.L.’s slides in 1996 by relying on notes she had written on the evidence envelope. However, Elkins’ expert opined that Schueler must have caused the contamination in 2004, not in 1996, notwithstanding the envelope notation in 1996. Schueler’s note in 1996 did not undermine Stetler’s theory that Schueler contaminated the E.L. slides with material from the J.L. case in 2004, and he offered a rebuttal to Schueler’s claim that she had examined the slides in 1996. We find no abuse of discretion in the court’s denial of a mistrial with respect to this evidence.
Offender Index
As noted earlier, in her testimony Schueler stated that Elkins’ DNA profile showed up on the “offender index” in the CODIS database. Elkins argues that this constituted K.S.A. 60-455 evidence of other crimes. Further, the district court failed to provide a limiting instruction to the jury regarding how this evidence could be used.
Schueler testified that the profile from the J.L. case hit to a “sample” in the CODIS “offender index.” She then clarified that the CODIS hit was an investigative lead. The name associated with that lead was Cory Elkins, and she forwarded that lead to Lawrence detectives so they could collect Elkins’ DNA for further testing. Schueler was never asked to explain what the offender index was or how or why a sample would be included in the index. There was no testimony that the index was limited to persons who were perpetrators of crimes. The jury was not told that Elkins had a criminal histoiy.
The reference to an offender index was an isolated event that was never repeated in the trial. We find no abuse of discretion in the district court not granting a mistrial for this bit of testimony. Because no limiting instruction was requested, we apply the clear error standard to the failure to give a limiting instruction. Given the substantive evidence regarding Elkins’ DNA, we conclude that the failure to give a limiting instruction did not alter the outcome of the trial. See State v. Hebert, 277 Kan. 61, 96, 82 P.3d 470 (2004).
Prosecutorial Misconduct
Next, Elkins claims that in cross-examining Stetler, the prosecutor improperly attempted to shift the burden of proof to the defendant when the prosecutor asked Stetler whether he had attempted to conduct retesting to confirm his results.
We fail to see any merit in this claim. Nothing about the exchange between Stetler and the prosecutor involved burden shifting. Stetler suggested that the best practice for DNA testing was to double-check results, and he testified that the State did not follow this best practice. In cross-examination the prosecutor asked Stetler to admit that he did not follow his own best practice recommendation. Stetler explained that he did not follow the practice he espoused because Schueler had already used up any DNA material he might have tested.
The trial court correctly concluded that the State conducted a proper cross-examination of Stetler. Moreover, since Stetler got the chance to explain how further testing was not possible, any claimed burden-shifting was completely harmless. We find no misconduct by the prosecutor and no error in the trial court’s ruling.
Cumulative Error
Elkins claims that an accumulation of errors denied him a fair trial. We find no accumulation of errors upon which Elkins could predicate such a claim.
Sentencing Errors
Finally, relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), Elkins claims his criminal history should have been submitted to the jury for its determination and that the jury also should have determined whether an upper grid box sentence was warranted. These claims have been resolved by our Supreme Court contrary to Elkins’ position in State v. Johnson, 286 Kan. 824, 851, 190 P.3d 207 (2008), and in State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002). We are bound to follow these precedents. State v. Merrills, 37 Kan. App. 2d 81, 83, 149 P.3d 869, rev. denied 284 Kan. 949 (2007).
Affirmed. | [
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McAnany, J.:
Dustin J. Merryfield is confined for treatment at the Lamed State Hospital under the custody of the Kansas Department of Social and Rehabilitation Services (SRS), pursuant to K.S.A. 59-29a01 et seq., the Kansas Sexually Violent Predator Act (Act). He appeals the district court’s denial of his habeas corpus petition pursuant to K.S.A. 60-1501 and of his motion for the appointment of counsel. Merryfield contends that K.S.A. 22-4503(a) entitles him to counsel in these proceedings and that he is entitled to a copy of his treatment records pursuant to K.S.A. 2009 Supp. 59-29a22(b)(10).
The district court found that in May 2009 Merryfield submitted a request for his “medical and/or treatment records” to hospital officials. The hospital’s privacy officer denied the request, and this decision was affirmed by the hospital’s medical director on November 5, 2009. The medical director contended that Merryfield was not entitled to his records because the records contained information “compiled in reasonable anticipation of or for use in civil, criminal, or administrative actions or proceedings.” The director stated that these grounds for denial of Meriyfield’s request were unreviewable under HIPAA, the Health Insurance Portability and Accountability Act, 42 U.S.C. § 1320d et seq. (2006).
On December 21, 2009, Merryfield filed his habeas corpus petition, alleging that SRS improperly denied his request for copies of his treatment records pursuant to K.S.A. 2009 Supp. 59-29a22(b)(10) and that he should not be required to pay for the copies requested. On the same date, Merryfield filed a motion requesting the appointment of counsel.
On January 4, 2010, the district court issued its memorandum decision summarily denying both Merryfield’s petition and motion. The court found that Merryfield had not demonstrated a right to inspect or receive a copy of his treatment records and had not alleged shocking or intolerable conduct of a continuing nature or mistreatment of a constitutional stature. The court also found that Meriyfield was not entitled to the appointment of counsel.
Merryfield appeals.
Appointment of Counsel
Merryfield claims the district court erred in refusing to appoint counsel for him pursuant to K.S.A. 22-4503(a). Merryfield states in his brief: “Appellant was not stating that he was entitled to appointment of counsel due to the United States Constitution, he was stating that he was entitled to the appointment of counsel due to the provisions of K.S.A. 22-4503.” However, he asserts in his brief that the Equal Protection Clause should apply. An issue incidentally raised but not argued is generally deemed abandoned. Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008). Merryfield does not assert that he is a member of a suspect class for equal protection purposes. See State v. Preston, 287 Kan. 181, 188-89, 195 P.3d 240 (2008). He does not allege, let alone demonstrate, that no legitimate legislative objective is promoted by classifying persons held as sexually violent predators differently tiran persons civilly confined for other reasons. See Hodges n. Johnson, 288 Kan. 56, 72-73, 199 P.3d 1251 (2009). Having noted these deficiencies, we need not further address Merryfield’s reference to the Equal Protection Clause.
This is a matter of statutoiy interpretation over which our review is unlimited. The fundamental rule of statutoiy construction, to which all other rules are subordinate, is that courts must apply the intent of the legislature as expressed in the plain language of the statute, unless that intent is not clearly revealed because the language is ambiguous. See State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009).
In pertinent part, K.S.A. 22-4503(a), which Meriyfield relies on, provides:
“A person subject to an order of commitment pursuant to K.S.A. 22-3428 or K.S.A. 59-2965 and amendments thereto, shall be entitled to the assistance of counsel at every stage of a habeas corpus proceeding brought by such person and the provisions of this section relating to defendants shall be applicable to such persons.”
The right to counsel under this statute is predicated on the person being confined pursuant to either K.S.A. 22-3428 or K.S.A. 59-2965. K.S.A. 22-3428 sets out the procedure for committing an individual to the state hospital for mental health treatment after that individual has been acquitted of a crime by reason of mental illness on a special verdict. K.S.A. 59-2965 involves the civil commitment proceeding for mentally ill persons. Merryfield’s confinement is not the result of either of these circumstances. Meriyfield does not argue that he is entitled to counsel pursuant to K.S.A. 59-29a06(b). Accordingly, we conclude that the district court did not err in denying Meriyfield’s request for the appointment of counsel in these K.S.A. 60-1501 proceedings for the reasons stated in his brief.
Medical and Treatment Records
Meriyfield challenges the district court’s dismissal of his habeas coipus petition. The district court is authorized to dismiss a K.S.A. 60-1501 petition if an examination of the petition and any attached exhibits demonstrates that the petitioner is not entitled to the relief sought. K.S.A. 60-1503. Under the circumstances presented here, Merryfield bears the burden of alleging continuing mistreatment of a constitutional nature to avoid dismissal. See Schuyler v. Roberts, 285 Kan. 677, 679, 175 P.3d 259 (2008). When the district court summarily dismisses the petition, our review is de novo. Johnson v. State, 289 Kan. 642, 649, 215 P.3d 575 (2009).
Merryfield alleged in his petition that SRS violated K.S.A. 2009 Supp. 59-29a22(b)(10) by refusing to provide him with copies of his treatment records upon request. The district court concluded that this allegation did not rise to the level of a constitutional violation.
To the contrary, if Merryfield has a right provided by state law, the deprivation of that right without due process is a constitutional violation. See Murphy v. Nelson, 260 Kan. 589, 597-98, 921 P.2d 1225 (1996).
Liberty and property interests are defined by substantive due process and by state law. Williams v. DesLauriers, 38 Kan. App. 2d 629, 637, 172 P.3d 42 (2007). Meriyfield has a property interest in the benefit provided by K.S.A. 2009 Supp. 59-29a22(b)(10) if he has a “legitimate claim of entitlement to it.” See Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). Meriyfield’s interest in this benefit becomes a property interest for due process purposes if there are “rules or mutually explicit understandings” that support his claim of entitlement and which he could invoke at a hearing. See Perry v. Sindermann, 408 U.S. 593, 601, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972).
K.S.A. 2009 Supp. 59-29a22(b)(10) provides:
“(b) Each patient shall have the following rights:
(10) The right to confidentiality of all treatment records, and as permitted by other applicable state or federal laws, have the right to inspect and to receive a copy of such records.”
While K.S.A. 2009 Supp. 59-29a22(c) grants SRS the limited authority to deny certain rights listed in the statute, the right of access to treatment records is not included in this authority. If Merryfield has a colorable claim to his medical and treatment records, he is entitled to seek recourse for the denial of those records by SRS.
SRS relies on HIPAA as authority for denying Merryfield access to his records. HIPAA was enacted by Congress in 1996. It was designed by Congress to promote cost efficiency in the sharing of information for medical insurance purposes, while protecting the sensitive and personal nature of stored medical information. See United States v. Elliott, 676 F. Supp. 2d 431, 436-37 (D. Md. 2009).
Merryfield argues that he is entitled to his medical and treatment records pursuant to the HIPAA regulation found in 42 C.F.R. § 482.13(d)(2) (2009), which provides:
“The patient has the right to access information contained in his or her clinical records within a reasonable time frame. The hospital must not frustrate the legitimate efforts of individuals to gain access to their own medical records and must actively seek to meet these requests as quickly as its record keeping system permits.”
However, the regulation found at 45 C.F.R. § 164.524(a)(1) (2009), includes the following exception:
“Except as otherwise provided in paragraph (a)(2) or (a)(3) of this section, an individual has a right of access to inspect and obtain a copy of protected health information about the individual. . . except for:
“(ii) Information compiled in reasonable anticipation of, or for use in, a civil, criminal, or administrative action or proceeding.”
The denial of access to documents prepared in anticipation of litigation is, according to the regulations, an “unreviewable” ground for denial. 45 C.F.R. § 164.524(a)(2)(i) (2009). However, a regulation does not “supercede a contrary provision of State law, if the provision of State law imposes requirements, standards, or implementation specifications that are more stringent than the requirements, standards, or implementation specifications imposed under the regulation.” See 42 U.S.C. § 1320d-2 Note/Recommendations (c)(2) (2006); 45 C.F.R. § 160.203(b) (2009); Northwestern Memorial Hosp. v. Ashcroft, 362 F.3d 923, 924 (7th Cir. 2004).
Our examination of the regulations discloses no mechanism whatsoever for determining when, how, and for what purpose the information SRS seeks to withhold was gathered so as to justify claiming the records were prepared in anticipation of litigation. The regulation provides no standard for evaluating SRS’s claim. It purports to completely foreclose a party from access to his or her own medical records even when the records relate to that person’s condition which is the subject matter of the litigation, which in this case presumably involves the court’s annual consideration of whether Merryfield remains a danger to the community. See K.S.A. 2009 Supp. 59-29a08.
Kansas, on the other hand, has adopted “requirements, standards, or implementation specifications” with respect to the production of a patient’s records claimed to be prepared in anticipation of litigation. The federal regulations have adopted none.
In Kansas, the Act establishes a civil commitment proceeding for sexually violent predators. K.S.A. 59-29a01; see Kansas v. Hendricks, 521 U.S. 346, 138 L. Ed. 2d 501, 117 S. Ct. 2077 (1997). Each person committed pursuant to the Act is entitled to an annual review. K.S.A. 2009 Supp. 59-29a08. As a part of that review the confined person is entitled to have an expert examine the person in order to render an opinion regarding whether the person should continue to be confined. In making that examination, the expert “shall have access to all records concerning the person.” K.S.A. 2009 Supp. 59-29a08(a). If, upon review, the district court determines that there is probable cause to believe the person is no longer in need of confinement, the court shall order an evidentiary hearing before the court or a jury at which the State must prove beyond a reasonable doubt that the committed person cannot be safely placed in transitional release. At that hearing the committed person is entitled to present expert witness testimony. K.S.A. 2009 Supp. 59-29a08(c).
Further, K.S.A. 2009 Supp. 60-226(b)(4), which is part of our Kansas Code of Civil Procedure, provides standards for evaluating the discoverability of documents purportedly prepared in anticipation of litigation. HIPAA, more particularly 45 C.F.R. § 164.524(a)(1), provides no such standard. Under these circumstances, HIPAA, which provides no standards or implementation protocol for evaluating claims that records were prepared in anticipation of litigation, does not control over state law on the issue of access to documents claimed to have been prepared in anticipation of litigation.
The United States Department of Health and Human Services has been charged with issuing regulations to implement HIPAA. To that end, the Department issued a series of regulations, the second of which consists of 367 pages (small font, three columns per page) of “Administrative Simplification Regulations” which can be found at 65 Fed. Reg. 82,462 (2000). These regulations have three major purposes, the first and primary one being: “(1) To protect and enhance the- rights of consumers by providing them access to their health information and controlling the inappropriate use of that information.” 65 Fed. Reg. 82,463.
The obvious thrust of the regulations is to deny inappropriate access to a patient’s records by third parties, not to deny a patient access to his or her own records.
“In enacting HIPAA, Congress recognized the fact that administrative simplification cannot succeed if we do not also protect the privacy and confidentiality of personal health information. The provision of high-quality health care requires the exchange of personal, often-sensitive information between an individual and a skilled practitioner. Vital to that interaction is the patient’s ability to trust that the information shared will be protected and kept confidential. Yet many patients are concerned that their information is not protected. . . .
“... An examination of state health privacy laws and regulations, however, found that ‘state laws, with a few notable exceptions, do not extend comprehensive protections to people’s medical records.’ Many state rules fail to provide such basic protections as ensuring a patient’s legal right to see a copy of his or her medical record. See Health Privacy Project, ‘The State of Health Privacy: An Uneven Terrain,’ Institute for Health Care Research and Policy, Georgetown University (July 1999) ....
“Until now, virtually no federal rules existed to protect the privacy of health information and guarantee patient access to such information. ” (Emphasis added.) 65 Fed. Reg. 82,463-82,464.
With this background we now turn to Merryfield’s petition. Our task is to accept its allegations as true in order to determine if the facts alleged and their reasonable inferences state a claim for relief. Schuyler, 285 Kan. at 679.
Merryfield asserts that his request for records was denied with the explanation: “ ‘Information was compiled in reasonable anticipation of or for use in civil, criminal, or administrative actions or proceedings.’ ” Merryfield contends that the records he seeks were not prepared in reasonable anticipation of litigation.
We do not know whether the records in question were prepared in anticipation of litigation. This is yet to be determined. If they were prepared in anticipation of litigation, we still do not know whether Merryfield has substantial need for the requested mate rials. See K.S.A. 2009 Supp. 60-226(b)(4). Nor do we know whether he can obtain the substantial equivalent of these materials by other means without undue hardship, particularly if the anticipated litigation is the annual review of his case during which his court-appointed expert will have access to all his records in order to make an evaluation of Merryfield’s current condition. See K.S.A. 2009 Supp. 59-29a08(a).
What we do know is that Merryfield has been denied access, to his “medical and/or treatment records.” We know that Merryfield has the right to inspect and to receive a copy of such records pursuant to K.S.A. 2009 Supp. 59-29a22(b)(10), if permitted by state or federal law. We know that pursuant to the HIPAA regulation found in 42 C.F.R. § 482.13(d)(2), Merryfield is entitled to his clinical records unless the records, as SRS contends, consist of “ ‘[information compiled in reasonable anticipation of, or for use in, a civil, criminal, or administrative action or proceeding’ ” as provided in 45 C.F.R. §164.524(a)(l)(ii).
At this stage of the proceedings, we must accept as true Merryfield’s version of the facts, including the fact that the information in his records was not compiled in anticipation of litigation. Thus Meriyfield has stated an actionable claim.
K.S.A. 60-1503 provides that “[i]f the judge finds that the plaintiff may be entitled to relief, the judge shall issue the writ and order the person to whom the writ is directed to file an answer within the period of time fixed by the court or to take such other action as the judge deems appropriate.” (Emphasis added.)
Accordingly, we reverse the district court’s dismissal of Meriyfield’s petition and remand for further proceedings to determine (1) the nature and extent of Merryfield’s “medical and/or treatment records”; (2) which records constitute patient records to which Merryfield is entitled under HIPAA; (3) which records contain information prepared in anticipation of litigation; and (4) with respect to that subset of documents, whether Merryfield demonstrates an entitlement to them pursuant to K.S.A. 2009 Supp. 60-226(b)(4).
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Leben, J.:
James McMillan’s neighbor, Milton Jamison, was found in Jamison’s mobile home, lying in a pool of blood with 56 knife wounds all over his body. Jamison and McMillan had played dominoes and drunk whiskey at Jamison’s home the night before. McMillan told the police that he went home that night and had returned in the morning to find Jamison dead. McMillan had testified that he checked Jamison’s body for vital signs, but McMillan was covered with more blood than would be transferred through the casual contact of checking vitals. He also had a bloody pocketknife in his pants, which the coroner concluded could have caused the wounds. A search warrant executed in McMillan’s home later that day found items that tested positive for marijuana in a locked box under McMillan’s bed. A jury convicted McMillan of intentional second-degree murder, possession of drug paraphernalia, and possession of marijuana. McMillan claims on appeal that the State committed prosecutorial misconduct and that the district court committed reversible error in six ways through his trial and at sentencing.
We will discuss McMillan’s claims in detail but will first summarize our rulings. After review of the arguments and the trial transcript, we have concluded that the State did not commit prosecutorial misconduct when the prosecutor referenced the Virginia Tech, Columbine, and Kennedy shootings. He did so as examples to show that the State didn’t need to prove motive, not to inflame the jury. And although the prosecutor’s discussion of the reasonable-doubt standard was improper, it was not prejudicial.
Additionally, four of McMillan’s remaining allegations were not error: the proffered hearsay testimony of two would-be defense witnesses did not meet the declarations-against-interest exception to the general rule that hearsay is inadmissible; McMillan explicitly rejected a voluntary-intoxication instruction at trial, and such an instruction would have been inconsistent with his defense that he didn’t commit the crime or did so while angry; the use of McMillan’s criminal-history score to calculate his sentence was constitutional; and the imposition of the aggravated sentence was also constitutional.
The district court did err when it did not include a nonexclusive-possession instruction and told the jury that the Zig Zag rolling papers were drug paraphernalia. But no real possibility existed that the jurors would have found McMillan not guilty of these offenses had they been properly instructed. Because McMillan was not prejudiced by the district court’s errors, we will not set aside the jury’s verdict, which was reached after presentation of evidence and the jury’s careful deliberation.
Factual Background
On the morning of July 1, 2007, McMillan told police he had found his neighbor, Jamison, dead on the floor of Jamison’s mobile home. The body was lying in large pool of blood. McMillan reported the incident to police as a possible suicide.
Questioned by the police, McMillan admitted that he and Jamison had played dominoes and drunk whiskey together at Jami-son’s house the night before. McMillan said that he went home around 11:30 p.m. and returned to check on Jamison the next morning because Jamison had been complaining of pains in his side. While talking with McMillan, the police noticed that McMillan had a lot of blood on the jeans, shirt, and baseball cap he was wearing. McMillan said that he got the blood on him when he checked to see if Jamison was alive.
The police took McMillan back to the station. Once there, they seized a bloody folding knife from McMillan’s pocket. The autopsy report indicated that Jamison had died from loss of blood after he’d been stabbed or cut 56 times. Additionally, the Kansas Bureau of Investigation concluded that the stains on McMillan’s clothes were most likely “expirated blood,” meaning that the blood had to have left Jamison’s body while he was still alive. The blood on McMillan’s clothes and knife matched Jamison’s DNA.
Later that day, police searched McMillan’s home. They found a locked box containing marijuana and other drug paraphernalia under McMillan’s bed. The paraphernalia included a pipe, a tin container, and Zig Zag rolling papers. The police also reviewed a call that McMillan made from jail to one of his roommates, Patty Sen-art, in which the two discussed the drug charges against McMillan. McMillan and Patty shared the same room in the trailer but had separate beds. McMillan told Patty that he had lost the key to the locked box and said that Mark Senart, another one of his roommates and Patty’s brother-in-law, might have another key.
The State charged McMillan with one count of intentional second-degree murder, one count of misdemeanor possession of marijuana, and one count of misdemeanor possession of drug paraphernalia. The complaint was amended to add an alternative count of unintentional second-degree murder, which was later dismissed by the State at trial. At trial, McMillan presented evidence intended to show that he didn’t kill Jamison and that someone else did. McMillan continued to deny any involvement in Jamison’s death at sentencing.
A jury convicted McMillan of intentional second-degree murder and the two drug charges. Based on McMillan’s criminal history of G, he was sentenced to the aggravated 203-month prison sentence for intentional second-degree murder and given 12 months in county jail for each of the misdemeanor drug charges; the sen tences were ordered to run consecutively, making the controlling sentence 227 months.
Analysis
McMillan makes several arguments on appeal. We will discuss each of them separately.
1. The State Did Not Commit Prosecutorial Misconduct When It Referenced the Virginia Tech, Columbine, and Kennedy Assassination Incidents, and the Prosecutors Comment on the Reasonable-Doubt Standard Was Improper, Though Not Prejudicial.
McMillan argues that the State committed misconduct twice during its closing argument. McMillan’s attorney did not object at trial, but Kansas appellate courts will consider potential error based on prosecutorial misconduct in closing argument even without an objection during trial. State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009).
We review prosecutorial misconduct allegations in two steps: we first determine whether there was misconduct and, if there was, we then determine whether the misconduct amounts to plain error so that reversal is required. 288 Kan. at 351. As to the first step, such misconduct occurs when the comments are outside the wide latitude prosecutors are given when arguing cases. State v. McReynolds, 288 Kan. 318, 323, 202 P.3d 658 (2009). Prosecutors cannot comment on facts not in the evidence or give a personal opinion about the defendant’s or other witnesses’ credibility. King, 288 Kan. at 351-52. But they can craft arguments that are reasonable inferences from the evidence. 288 Kan. at 351. Second, prosecutorial misconduct constitutes plain error when it prejudices the jury against the defendant. McReynolds, 288 Kan. at 323. This court considers three factors in deciding whether the remarks were prejudicial: “ ‘(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor’s part; and (3) whether the evidence [was so direct and overwhelming] that the misconduct would likely have had little weight in [the jurors’] minds.’ ” 288 Kan. at 323. No one factor is individually controlling, and the third factor cannot override the first two unless the error was harmless, meaning it had little likelihood of changing the jury’s verdict. 288 Kan. at 323; State v. Tosh, 278 Kan. 83, 96, 91 P.3d 1204 (2004).
In this case, McMillan’s allegations do not amount to prejudicial misconduct warranting reversal.
A. Comparison to the Virginia Tech Massacre, Columbine Shooting, and Kennedy Assassination
McMillan first complains that the State improperly compared his case to the Virginia Tech massacre, the Columbine shooting, and the assassination of President Kennedy. But the prosecutor’s comparison of the four cases was limited to the point that even though motives of killings could be unclear, we could still be confident about who had killed whom:
“There are crimes that we will never know why. Look at the Columbine shooting in Colorado. We don’t know why that happened. Look at the Virginia Tech massacre on the college campus. We don’t know why that happened. We don’t know why Lee Harvey Oswald shot President Kennedy, but we know those incidents happened. We know who did it. And we know how it was done. And in this case we have presented that information to you.”
McMillan insists that the comments inflamed the jury because they analogized his case to large-scale tragedies and constituted unsworn testimony about those other events. He also argues that the prosecution’s mention of a lack of motive undermined its proof that he intended to commit the crime. The State replies that it was merely commenting on the fact that it didn’t need to prove motive.
It is improper for the prosecutor to make statements intended to inflame the jury’s passions or prejudices or to divert the jury from deciding tire case on the evidence and controlling law. Tosh, 278 Kan. at 90. Inflammatoiy comments can include those that compare the case or the defendant to a high-profile crime or the person who committed it. See DeFreitas v. State, 701 So. 2d 593, 601 (Fla. Dist. App. 1997) (improper to compare the defendant’s facts to specific facts in the O.J. Simpson case); State v. Bailey, 677 N.W.2d 380, 404 (Minn. 2004) (improper to suggest that the government had put the defendant’s DNA on incriminating evidence like it had done in the O.J. Simpson case); State v. Taylor, 650 N.W.2d 190, 208 (Minn. 2002) (improper for the prosecutor to comment that the defendant killed his victim “ ‘like O.J.’ ” Simpson); State v. Thompson, 578 N.W.2d 734, 743 (Minn. 1998) (improper to refer to the O.J. Simpson verdict and to suggest that the defendant was going to “get off like O.J.” and referring to the Simpson verdict served no purpose but to inflame jury and was therefore improper); People v. Mendoza, 2001 WL 1198937, at *4 (Mich. App. 2001) (unpublished opinion) (improper to compare the defendant’s case to the Columbine shooting that occurred the day before trial).
Nonetheless, it is not misconduct for the prosecutor to use examples from common experience or history for explanation or contextual purposes. See People v. Salazar, 2010 WL 445497, at *9-10 (Cal. App. 2010) (unpublished opinion) (not improper to reference the Columbine and Virginia Tech incidents to show that a person intending suicide could also intend homicide); People v. Perez, 2008 WL 3330991, at *9-10 (Cal. App. 2008) (unpublished opinion) (not misconduct for the prosecutor to reference the Virginia Tech massacre to explain what it means for a person to “lose it” because the prosecutor did not set forth details of the massacre and did not argue that the defendant was like the shooter); People v. Bailey, 2009 WL 3323252, at *4 (Mich. App. 2009) (unpublished opinion) (not improper for the prosecutor to use Ted Bundy as an example to make her point that guilt cannot be judged solely on the defendant’s appearance); People v. Fitzpatrick, 2003 WL 21977224, at *7-8 (Mich. App. 2003) (unpublished opinion) (not misconduct for the prosecutor to compare the case’s facts to Communists killing American soldiers because the comments were related to the intent element of assault with the intent to commit murder charge, not solely to inflame the juiy or to invite the jury to convict based on prejudice); State v. Schaub, 2005 WL 1531302, at *4 (Ohio App. 2005) (unpublished opinion) (not misconduct for prosecutor to reference the Holocaust in closing argument because the prosecutor was not equating the defendant’s conduct with the Holocaust’s magnitude or comparing the defendant with the one responsible for the Holocaust); State v. Berger, 1998 WL 329590, at *2-3 (Wash. App. 1998) (unpublished opinion) (not misconduct for the prosecutor to reference O.J. Simpson because the prosecutor was not comparing the defendant to Simpson but was placing the case in temporal context by using examples that the jury likely knew); accord People v. Williamson, 172 Cal. App. 3d 737, 750, 218 Cal. Rptr. 550 (1985) (not improper for prosecutor to argue matters of common knowledge or to use illustrations from common experience, histoiy, or literature); State v. Lal, 1997 WL 407869, at *5 (Wash. App. 1997) (unpublished opinion).
In this case, the State’s comments did not compare McMillan to the shooters in those incidents or contend that the murder here was as horrific as those incidents. The comments were intended as examples of incidents with unclear motives that the jury was likely familiar with. The State’s purpose in using those statements is clear because it surrounded them with a discussion of motive: “In this case the State doesn’t know why this happened. . . . But that’s not our burden. . . . Nowhere in [the jury] instructions does it say the State has to prove the motive.”
Nor do the comments constitute unsworn testimony. Unsworn testimony usually takes the form of the prosecutor’s personal opinions about the credibility of witnesses or evidence or the prosecutor’s arguments about facts not in evidence. See, e.g., State v. Magallanez, 290 Kan. 906, 914, 235 P.3d 460 (2010); State v. Pabst, 268 Kan. 501, 507, 996 P.2d 321 (2000); State v. Gray, 2009 WL 398837, at *5 (Kan. App.) (unpublished opinion), rev. denied 289 Kan. 1282 (2009). Although the referenced incidents aren’t part of the evidence in this case, the prosecutor used them merely as examples and did not assume the role of an unsworn witness to those events, which are common knowledge. Moreover, as the State points out, the defense counsel expanded on the prosecution’s Lee Harvey Oswald example in support of McMillan’s defense by asserting that speculation still exists about whether Oswald did kill Kennedy.
Finally, the comments do not undermine the State’s burden to show intent. Motive and intent are not identical, and the State properly told the jury that motive was not an element of the crime. See State v. Carapezza, 286 Kan. 992, 999, 191 P.3d 256 (2008). Moreover, the jury was given an instruction that second-degree murder required proof that the defendant intended to kill the victim, and that instruction also defined intent. Thus, the prosecutor s comments were not improper and did not constitute misconduct.
B. Burden of Proof
McMillan also objected to the prosecutor s explanation of reasonable doubt. After noting that the State had the burden of proof, the prosecutor in part asked jurors to consider what they felt in their hearts about the defendant’s guilt:
“And, basically, what it comes down to is, if you, in your hearts and in your minds, after hearing all the evidence and taking all the evidence into consideration, you feel in your hearts and in your minds that the State had proven each and every element of the crime charged, you have reached that reasonable doubt standard and you must find the defendant guilty.”
McMillan contends that this statement reduced the State’s burden of proof and essentially told the jury to apply a completely subjective and improper definition of reasonable doubt.
The State responds that this statement did not reduce its burden; rather, the prosecution merely explained to the jury that the State had proved McMillan guilty if it had met its burden on every element of the crime. The State notes that it had mentioned its burden right before the objected-to statements.
The prosecution acts improperly when it misstates the law by incorrectly defining its burden to prove the defendant guilty beyond a reasonable doubt. Magallanez, 290 Kan. 914-15. Kansas courts have repeatedly admonished prosecutors about explaining the reasonable-doubt standard in their own words since reasonable doubt is best defined by the words themselves. See State v. Brinklow, 288 Kan. 39, Syl. ¶ 5, 200 P.3d 1225 (2009); State v. Sappington, 285 Kan. 176, 185-86, 169 P.3d 1107 (2007); State v. Wilson, 281 Kan. 277, 287, 130 P.3d 48 (2006); State v. Banks, 260 Kan. 918, 928, 927 P.2d 456 (1996); State v. Bridges, 29 Kan. 138, 141 (1882); State v. Jackson, 37 Kan. App. 2d 744, 747, 157 P.3d 660, rev. denied 285 Kan. 1176 (2007). Even trial courts are encouraged not to give more expansive definitions of the term when requested to by the jury. State v. Walker, 276 Kan. 939, 956, 80 P.3d 1132 (2003).
When prosecutors have dared to define the term, there have been somewhat mixed results as to whether a prosecutor s statements were improper. For example, it wasn’t misconduct when the prosecution referred tire jury to the definition of reasonable doubt and told the jury that it would know it when it saw it or that it must decide the definition. Wilson, 281 Kan. at 286; State v. Milligan, 2010 WL 3488660, at *4 (Kan. App. 2010) (unpublished opinion). Yet it was held improper to tell the jury that the burden is a “common sense” burden, that the defendant was no longer presumed innocent, or that jurors should vote guilty if they were reasonably sure of the defendant’s guilt. See State v. Decker, 288 Kan. 306, 315-16, 202 P.3d 669 (2009); State v. Mitchell, 269 Kan. 349, 361, 7 P.3d 1135 (2000); Jackson, 37 Kan. App. 2d at 747-49.
Most pertinent to this case are tiróse cases in which it was held improper for the prosecution to tell the jury to convict if it merely knew or believed that the defendant was guilty. Magallanez, 290 Kan. at 914 (improper to tell the juiy that reasonable doubt is “ ‘a standard that when you believe he’s guilty you’ve passed beyond’ ” a reasonable doubt); Brinklow, 288 Kan. at 49-50 (improper to tell the jury that “sometimes you just know” that the defendant is guilty). Here, the State did just that: it told the jury members to “feel in your hearts and in your minds” whether the State had shown that McMillan was guilty. It is improper to ask jurors to decide whether reasonable doubt exists based upon feelings in their heart or gut. See Randolph v. State, 117 Nev. 970, 979, 981-82, 36 P.3d 424 (2001) (prosecutor’s statement that there’s no reasonable doubt when a juror has “ ‘a gut feeling he’s guilty’ ” held improper); Wesley v. State, 112 Nev. 503, 514, 916 P.2d 793 (1996) (prosecutor’s statement that if you “ Teel it in your stomach and if you feel it in your heart. . . then you don’t have reasonable doubt’ ” was improper).
We recognize that reasonable doubt is an important issue in most criminal trials and that both prosecutors and defense lawyers often begin to address this concept during jury selection. We also recognize that both prosecutors and defense lawyers naturally want to make some comment about the issue in closing argument. But our Supreme Court has long ago provided guidance to prosecutors about what can’t be said. Given the importance of this issue in most criminal trials, a prosecutor should be able to prepare remarks on this topic that can be given without violating these admonitions. It is outside the prosecutor’s wide latitude to ask jurors to look at anything other than the evidence when determining someone’s guilt, and it is improper to ask jurors to consider what they feel in their heart when determining whether the State has met its burden of proof.
C. Prejudice
Even though the prosecution’s reasonable-doubt explanation was improper, the statement didn’t prejudice McMillan.
First, the statement didn’t rise to die level of what Kansas courts have found to be “gross and flagrant.” See State v. Kemble, 291 Kan. 109, 123, 238 P.3d 251 (2010) (gross and flagrant to comment on criminal defendant’s refusal to testify at trial); State v. Penn, 41 Kan. App. 2d 251, 277, 201 P.3d 752, rev. denied 289 Kan. 1284 (2009) (gross and flagrant to elicit testimony that was a direct violation of the district court’s order in limine); State v. Herrera, 41 Kan. App. 2d 215, 227-28, 202 P.3d 68 (2009) (gross and flagrant to intentionally attempt to taint the trial process with improper legal arguments); State v. Bunyard, 281 Kan. 392, 407, 133 P.3d 14 (2006) (same); State v. Blomquist, 39 Kan. App. 2d 101, 111, 178 P.3d 42 (2008) (gross and flagrant to repeatedly refer to the defendant’s homosexuality in prosecution for indecent liberties with a minor); State v. DuMars, 33 Kan. App. 2d 735, 746, 108 P.3d 448, rev. denied 280 Kan. 986 (2005) (gross and flagrant to deliberately frame question to elicit an inadmissible hearsay response); State v. Magdaleno, 28 Kan. App. 2d 429, 437, 17 P.3d 974, rev. denied 271 Kan. 1040 (2001) (gross and flagrant to call opposing counsel a liar).
Second, with respect to ill will, the prosecutor did comment on the reasonable-doubt definition against the urgings of both the Kansas Supreme Court and this court. See State v. Elnicki, 279 Kan. 47, 66, 105 P.3d 1222 (2005) (failure of prosecutor to heed the court’s warnings not to comment on witness credibility showed ill will). But the prosecution didn’t mock the defendant or repeat edly ask the jury to “feel in its hearts and minds” that the defendant was guilty. See Brinklow, 288 Kan. at 50 (repetition of “ ‘sometimes you just know’ ” showed ill will); Herrera, 41 Kan. App. 2d at 228 (ill will includes mocking the defendant or repeated acts of misconduct). In fact, the prosecutor’s comments also referred to a proper definition of reasonable doubt and placed the misstatement of the law in a context that otherwise was within the bounds of permissible argument:
“I want to comment briefly on the reasonable doubt statute. The State filed this case. The State has to prove the case. You know, that’s the law, and that’s fair. We have to prove the case such that there is no reasonable doubt as to the truth of the elements that we’ve alleged.
“Now, the Court has given you the instructions on the elements of each charge, and we’ll get into those later on. But that’s the burden the State has.
“A lot of people have a misconception that we have to prove it — a case beyond any and all doubt. Beyond a shadow of a doubt. That is not our burden, ladies and gentlemen. The fact is and the law is, you can have a doubt as to the claim or a claim made by the State of Kansas. But if that doubt is not reasonable, then, based upon the evidence, you must find the defendant guilty.
“And there’s no percentage on this. It’s not set forth in the law. It’s not saying, well, you got to reach 51 percent, or you got to reach this percent or that percent. There’s no such thing.
“And, basically, what it comes down to is, if you, in your hearts and in your minds, after hearing all the evidence and taking all the evidence into consideration, you feel in your hearts and in your minds that the State has proven each and every element of the crime charged, you have reached that reasonable doubt standard and you must find the defendant guilty.
“And we feel comfortable, based upon the evidence that you heard from the— from the witness stand and the physical evidence that was introduced into evidence that you’re going to find the defendant guilty beyond a reasonable doubt in this case.”
The prosecutor framed his misstatement within a discussion of the proper standard, and the court’s jury instruction included a proper definition of reasonable doubt. These are significant factors supporting a finding of no ill will. See Decker, 288 Kan. at 315-16 (although the prosecution’s statement was improper, the error was not prejudicial because the prosecutor’s other statements properly argued that the State had overcome the presumption of innocence); Jackson, 37 Kan. App. 2d at 751 (no ill will because the misstatement happened only once and the prosecutor referred the jury to the proper reasonable-doubt standard). We thus find that the prosecutor’s misstatement was not the result of ill will or bad faith.
Third, the evidence of McMillan’s guilt was very strong, although it probably cannot be deemed “overwhelming,” as the strength of the State’s evidence arguably was undermined in certain areas. We will review it in some detail, but the big picture is strongly in the State’s favor. McMillan was the last person known to have been with Jamison. McMillan also was the person who found Jamison’s body, and McMillan had a great deal of blood on himself when police arrived. And there was Jamison’s blood on the blade of a pocketknife in McMillan’s pocket, a knife that — in his pocket — was in a closed position.
The State’s case was weakened by its failure to test some evidence for blood or DNA, by blood evidence that was inconsistent with McMillan committing the crime, and by the defense’s cross-examination of the State’s blood-spatter expert. When the police transported McMillan to the station, they placed a paper bag under him to prevent the blood on his clothes from transferring to the patrol car since McMillan indicated that he had gotten the blood on him earlier that morning. The officers saw no blood transferred to the bag, supporting an inference that McMillan had gotten the blood on him well before he claimed to have checked Jamison’s body. But the paper bag wasn’t tested for traces of blood, wasn’t photographed, and wasn’t preserved; the officers admitted the bag was a precaution to prevent the patrol car from getting dirty, not an evidentiary collection. Additionally, although Jamison had blood all over his hands when the police arrived, the blood was not DNA tested; neither were the blood spatters on his baseball cap, traces of blood found on the lockbox, or the second knife found in the investigation (either in McMillan’s bedroom or on his person) that tested positive for blood.
Another strong piece of evidence in the State’s favor was the fact that Jamison’s blood was found on the bottom of both of McMillan’s socks, which the officers thought was odd since McMillan said that he didn’t remove his shoes when checking Jamison’s vital signs. Additionally, no blood was seen on the inside of McMillan’s shoes, indicating that the blood on the socks had to be dry before McMillan put his shoes on. McMillan’s explanation for how his socks got bloody was suspect; he said that he had athlete’s foot and would scratch his feet with a knife, yet a few days after the murder, the officers saw no injuries on McMillan’s feet. And he presented no explanation for how the blade of his folding pocketknife got bloody.
But McMillan’s shoes had dark interiors and they weren’t chemically tested to see if traces of blood were present. Furthermore, the investigators found bloody shoe — not sock — prints around Jamison’s body and down the mobile home’s hallway to the bathroom. Jamison was ruled out as a contributor because he had no blood on the bottom of his socks, and the officers and paramedics were also ruled out since they testified that they were vigilant about not disturbing the crime scene. And the pair of shoes found under the kitchen table had no visible blood on the soles, just on their upper portions and laces.
The blood-spatter expert’s testimony was also a key to the State’s prosecution. The expert testified that the blood on McMillan’s clothes was caused by more than the casual contact with Jamison’s body that McMillan testified to. But she admitted that her conclusions didn’t take into consideration McMillan’s testimony that he lifted Jamison’s shirt. Cross-examination also questioned her conclusion that the blood left Jamison’s body while he was still alive and that McMillan therefore had to be present when Jamison was being wounded. She said that the spatters were expirated blood— blood coming out of the body by air. Yet she admitted that expiration was not the only way to create the blood pattern on McMillan’s clothes. Another way — impact collision — could have occurred after Jamison had died, and she could not rule out an impact collision given the evidence before her. In addition, the expert saw air bubbles (consistent with expirated blood) in the spatter on the oven, but she did not see air bubbles in the blood on McMillan’s clothes. And no traces of blood were found in McMillan’s bedroom or bathroom.
Cross-examination of the coroner also raised questions about the State’s case. The coroner couldn’t tie the alleged murder weapon (the pocketknife) to Jamison’s wounds as nicely as the State would’ve liked. Jamison had multiple defensive wounds on both of his hands and forearms. Some of the stab wounds had pierced his heart and lungs, and his tongue was intentionally cut. The coroner said that the pocketknife had a 4%-inch blade that was l%-inch wide, yet he said that one stab wound was only Vk-inch wide. Yet the coroner did say that the knife could have caused Jamison’s wounds based on the notion that the blade was long enough to cause the deep wounds.
The defense also presented its own witnesses; their cumulative testimony showed that someone else could have potentially committed the crime. Angel Hollenbeck, Jamison’s former roommate, testified of her whereabouts on the night of the crime — she was camping near Topeka. The police were able to confirm that she was at a meeting in Topeka the night of June 30 until at least 9 p.m. and in Topeka again on the afternoon of July 1, but they could not explain where she was between those times. She also told the police that she had stopped at a convenience store near the campground the night of June 30; but when the officers viewed the security tapes for that night, they didn’t see her. Additionally, she claimed that her permanent residence was at the Topeka Rescue Mission during this time, but she did not register to live at the Mission until after the murder occurred. The State did ask if she had killed Jamison, and she replied that she hadn’t.
The State tried to capitalize on McMillan’s conflicting stories about what he remembered the night of June 30. At one point, he told the police that the last thing he remembered was playing dominoes and then finding Jamison the next morning — nothing else. He had also told the officers that he remembered going home, waking up in his bed the next morning, and then going to Jamison’s trailer. McMillan’s roommate, Mark Senart, bolstered the latter account. Mark testified that McMillan came home at 11:30 p.m. on June 30, and that the two talked for a bit before McMillan went to his bedroom. Mark didn’t hear anyone leave the trailer after that, but he also said that he was playing a loud video game and that McMillan had an exterior door in his bedroom that Mark might not have heard. Still, McMillan never told the police that he spoke with Mark — -just that he went straight to bed.
Jamison’s next-door neighbor said that he heard a truck pull up outside his window about 12:30 the morning of July 1; the truck was red. The neighbor couldn’t tell if the occupant went inside Jamison’s trailer but said that the truck was there for about 30 minutes. He said that he’d seen a red truck in front of Jamison’s trader before. On cross-examination, however, the State cast doubt on the neighbor’s credibility. The neighbor said that his windows were shut and that he was playing a video game that required a lot of attention. He also admitted to not getting up to actually look out the window. Further, when he was questioned by the police on July 2, he had said that he hadn’t noticed anyone next door the night before.
Even though the State’s evidence against McMillan wasn’t overwhelming, it was quite strong, and the statements complained of were neither gross nor flagrant violations nor the result of ill will. We conclude that the improper reasonable-doubt explanation did not prejudice McMillan.
2. The District Court Properly Excluded Hearsay Testimony from Two Potential Defense Witnesses that Jerald Shirack Admitted to Killing Jamison.
To support his defense at trial that someone else killed Jamison, McMillan wanted to admit the testimony of two people who allegedly heard a man named Jerald Shirack take responsibility for Jamison’s death; the defense could not locate Shirack to subpoena him.
The first witness was Angela Londeen, who would have testified that she overheard Shirack say that the police had the wrong person in jail and then, later in the same conversation, that he could get away with anything. The second was Cody Diehl; he would have testified that he overheard Shirack say that someone in Abilene would be calling the police to report a murder and that Shirack and that person would meet, split some of Shirack’s money, and then “take off.” The district court excluded the evidence as unduly prejudicial hearsay evidence.
McMillan argues that the exclusion denied him his right to a fair trial because he wasn’t able to present his defense that someone else killed Jamison. The State recognizes the defendant’s important right to present his defense but maintains that the right is not unlimited and is subject to the rules of evidence. The State maintains that the testimony was speculative and unreliable so that its prejudice far outweighed any probative value.
A defendant has a right to present his or her theory of defense; excluding evidence that is an integral part of that theoiy violates the defendant’s constitutional right to a fair trial. State v. White, 279 Kan. 326, 331, 109 P.3d 1199 (2005). Although the district court’s evidentiaiy rulings are typically reviewed by this court for abuse of discretion, the question of whether the exclusion violated a defendant’s constitutional rights is subject to unlimited review because the district court necessarily abuses its discretion when it makes an error of law and the exclusion impacts McMillan’s constitutional rights. See 279 Kan. at 332. If it were error to exclude the evidence, then reversal would be required unless the error was harmless, meaning that this court is willing to declare beyond a reasonable doubt that the error had little, if any, likelihood of changing the trial’s outcome. State v. Martinez, 288 Kan. 443, 450, 204 P.3d 601 (2009).
Angela’s and Cody’s statements are hearsay because they recount Shirack’s out-of-court statements and are offered to prove that Shirack took responsibility for Jamison’s death. K.S.A. 60-460 (“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence.”). Hearsay is generally inadmissible. See K.S.A. 60-460. McMillan admits that the statements are hearsay, but he contends that they are admissible under the declarations-against-interest exception in K.S.A. 60-460(j).
The declarations-against-interest exception allows hearsay statements that, when made, “so far subjected the declarant to civil or criminal liability . . . that a reasonable person in the declarant’s position would not have made the statement unless the person believed it to be true.” K.S.A. 60-460(j). Confessing to having committed a crime is a declaration against interest. State v. Meinert, 31 Kan. App. 2d 492, 495, 67 P.3d 850, rev. denied 276 Kan. 972 (2003). In Meinert, the defense tried to introduce someone else’s admission that he, not the defendant, had assaulted the victim; the district court excluded the testimony. This court found that the exclusion was error. 31 Kan. App. 2d at 495. Similarly, in State v. Campbell, 29 Kan. App. 2d 50, 63-64, 23 P.3d 176 (2001), this court found that the district court improperly excluded a third party’s admission to killing the victim. In Campbell, the third party told a fellow inmate the details of how had he killed the victim.
But in Meinert and Campbell, the declarants gave specific details about the crime they confessed to — names, dates, and places— that coincided with the crime that the defendants were charged with. Meinert, 31 Kan. App. 2d at 495; Campbell, 29 Kan. App. 2d at 64. Such a nexus or connection was missing in this case. The statements that Angela overheard mentioned nothing that would link Shirack’s statements to Jamison’s death, especially when the statements were separated by time within the same conversation. Cody’s testimony, however, did tie Shirack’s statement to a murder-in Abilene. But again, the statements have little nexus to Jamison’s murder and in fact reference what would be occurring after Cody heard them on July 1 (“going to call the police” and “going to meet” and “going to take off’), not what occurred before then, including Jamison’s murder. Furthermore, Cody wasn’t even sure the speaker was Shirack: Cody said it was dark and he thought that it was Shirack only because the person had long hair, a beard, and looked like Jesus.
Shirack’s statements from Angela’s and Cody’s testimony would not clearly subject him to criminal liability — they did not affirmatively show that he had confessed to murdering Jamison. Therefore, they do not meet the declaration-against-interest hearsay exception, and the district court properly excluded them. Their exclusion likewise did not prevent McMillan from pursuing his theory of defense. He still presented the testimony of others and cross-examined the State’s witnesses in a manner designed to show that someone else (although not Shirack specifically) committed the crime.
3. The District Court Did Not Err by Not Giving a Voluntary-Intoxication Instruction Because McMillan Explicitly Rejected this Defense at Trial and the Instruction Would Have Been Inconsistent with His Admonition that He Didn’t Commit the Crime.
McMillan argues on appeal that the district court should have instructed the jury that voluntaiy intoxication can sometimes be a defense to a crime. But because McMillan is challenging the district court’s failure to include an instruction he did not request, he has to show clear error, meaning that not only did the district court err but that there also is a real possibility that the jury would have rendered a different verdict had the instruction been given. See K.S.A. 22-3414(3); State v. Martinez, 288 Kan. 443, 451-52, 204 P.3d 601 (2009). McMillan has not met that burden in this case.
McMillan was charged with intentional second-degree murder, which requires proof that the defendant intended to kill. K.S.A. 21-3402(a). Voluntary intoxication operates as a defense to that crime if it prevents the defendant from forming the necessaiy intent to kill. State v. Jones, 283 Kan. 186, 209, 151 P.3d 22 (2007); State v. Hayes, 270 Kan. 535, 542-43, 17 P.3d 317 (2001); PIK Crim. 3d 54.12-A. McMillan argues that the district court should have given a voluntaiy-intoxication instruction because the jury could have found that he did not intend to kill Jamison because he was too intoxicated.
Before a defendant is entitled to an instruction on a theory of defense, evidence in support of that theory must exist and must be sufficient for a rational fact-finder to find for the theory after viewing the evidence in the defendant’s favor. State v. Anderson, 287 Kan. 325, 334, 197 P.3d 409 (2008). In this case, evidence was presented that McMillan was intoxicated the night of the crime. McMillan told the officers that he had been drinking that night, and officers found an empty bottle of whiskey in Jamison’s trash can and two glasses on the kitchen table, one of which contained alcohol.
But the State properly questions the propriety of giving a voluntary-intoxication instruction when McMillan did not raise it as a theory of defense at trial. Although a defendant may present inconsistent theories of defense, it doesn’t mean that the defendant is entitled to an instruction on every defense theory that is supported by some evidence. State v. Trussell, 289 Kan. 499, 505, 213 P.3d 1052 (2009). District courts “should not interfere with a defendant’s chosen defense theory by giving an instruction which neither party requested and which may undermine defendant’s chosen theory.” 289 Kan. at 505.
Throughout the entire trial in this case, McMillan maintained that he did not commit the crime; it was only during closing argument that his counsel alluded to another theory of defense: that the offense was committed upon sudden rage or quarrel. But McMillan never argued that he was so intoxicated that he couldn’t have intended to kill Jamison. What’s more, the defense attorney explicitly said at the jury-instruction conference-after all the evidence had been presented — that the defendant was not claiming an intoxication defense: “[W]e are not making claim of intoxication. We’ve not asked for an intoxication defense.” It was therefore appropriate for the district court to not give a voluntary-intoxication instruction when the State didn’t request one and the defense explicitly said that it would not rely on that defense.
Even if it had been error to not give the instruction, we find no real possibility exists that the juiy would’ve rendered a different verdict. The evidence did show that McMillan had been drinking. But no evidence was presented that would’ve shown that McMillan was so intoxicated that he wasn’t aware that he was killing Jamison. And the gruesome nature of the crime indicates otherwise: Jamison suffered 56 knife wounds all over his body, during which time he was apparently trying to defend himself, and the coroner found that his tongue had intentionally been cut.
Finally, McMillan tries to say that the absence of a motive to commit the crime infers an absence of intent to kill. But the jury was given a possible motive: Jamison might have “come on” to McMillan and McMillan might have reacted violently. Officers found women’s underwear, women’s earrings, and an unidentifiable sex toy in Jamison’s bedroom, and Jamison was wearing a pair of women’s underwear when he was killed. Thus, McMillan has not shown that the district court’s failure to give a voluntary-intoxication instruction was clearly erroneous.
4. The District Court Erred by Not Giving a Nonexclusive-Possession Instruction, but this Error Does Not Require Reversal Because the Jury’s Verdict Would Have Been the Same Had It Been Given.
The jury was given the standard possession instruction: Possession of a controlled substance means that the defendant must know that the substance is present and intend to exercise control over it. See PIK Crim. 3d 67.13-D. McMillan contends that this wasn’t enough and that the district court should have included the optional nonexclusive-possession paragraph in the pattern instruction because he presented evidence that one of his roommates had a key to the locked box in which the marijuana, robing papers, and tin container were found.
Again, because McMillan did not request the instruction, we do not reverse a jury’s verdict unless he shows clear error. See K.S.A. 22-3414(3); Martinez, 288 Kan. at 451-52. First, it’s important to note that the nonexclusive-possession instruction explicitly discusses the possession of controbed substances, not drug paraphernaha. PIK Crim. 3d 67.13-D; see State v. DuMars, 33 Kan. App. 2d 735, 751, 108 P.3d 448, rev. denied 280 Kan. 986 (2005). But the usage notes to the pattern instructions governing possession of drug paraphernalia refer to PIK Crim. 3d 67.13-D for the definition of possession. PIK Crim. 3d 67.17. The concepts involved in possession of either drugs or paraphernalia are the same. So this court can consider McMillan’s assertion of error as to both the drug-paraphernalia and drug-possession charges.
The nonexclusive-possession instruction is given when the defendant doesn’t have exclusive possession over the premises or vehicle in which an ibegal substance is found. PIK Crim. 3d 67.13-D. Here, McMiban did not exclusively possess the mobbe home— he lived with three other people. And although the items were found in a locked box under McMiban’s personal bed in the mobile home, evidence was presented that another one of McMiban’s roommates, Mark Senart, may have had a key to the box. Therefore, the district court erred in not giving the nonexclusive-possession instruction.
Nonetheless, McMillan cannot show clear error because there is no reasonable possibility that the jury would have rendered a different verdict had the instruction been given. The nonexclusive-possession instruction includes seven factors for the jury to consider when determining whether the defendant possessed the incriminating items. PIK Crim. 3d 67.13-D. But the district court should only instruct on those factors that are supported by evidence. See PIK Crim. 3d 67.13-D Notes on Use; State v. Douglas-Keough, 2009 WL 1766238, at *4 (Kan. App. 2009) (unpublished opinion). Here, the only factors that are supported by evidence are whether the items were found in plain view and whether the defendant’s personal belongings were found near the items. And in this case, both factors support the conclusion that McMillan exclusively possessed the paraphernalia and the marijuana.
The items were not in plain view and were not found in the mobile home’s common areas. They were found in a locked box; the locked box belonged to McMillan and was under his personal bed in the mobile home. The location and secured status of the box strongly suggest that McMillan knowingly possessed them, and none of the factors that would have been listed for consideration in the nonexclusive-possession instruction suggest otherwise. Therefore, even if the district court had properly instructed the jury on nonexclusive possession, the jury would have returned the same verdict — guilty.
5. The District Court Erred when It Told the Jury that the Zig Zag Rolling Papers Were Drug Paraphernalia, but Reversal Is Not Required Because the Proper Instruction Would Not Have Changed the Jury’s Verdict.
McMillan asserts one more error in the jury instructions. He insists that the instruction defining drug paraphernalia was improper because the definition included an item not specifically identified as paraphernalia in Kansas’ statutes — Zig Zag rolling papers. McMillan contends that the district court should have had the jury determine whether the Zig Zag papers were paraphernalia using the factors listed in Instruction 10, which is PIK Crim. 3d 67.18-C. The State responds that no error occurred because In struction 10 listed the factors for the jury to consider when deciding whether an item is drug paraphernalia. Once again, because McMillan did not object to the instruction at trial, he must show clear error to set aside the jury’s verdict. See K.S.A. 22-3414(3); Martinez, 288 Kan. at 451-52.
McMillan is correct: Kansas’ statutory definition of drug paraphernalia includes “wired cigarette papers,” and it hasn’t been established in this case that Zig Zag papers meet that definition. K.S.A. 2007 Supp. 65-4150(c)(12)(O). Thus, the district court should have told the jury that drug paraphernalia includes wired cigarette papers, leaving it up to the jury to determine whether Zig Zag papers were drug paraphernalia. While the State is correct that Instruction 10 did tell the jury the proper factors to consider when determining whether an item is drug paraphernalia, Instruction 9 expressly said that the Zig Zag papers were drug paraphernalia, so Instruction 10 did not cure the error.
Nevertheless, we agree with the State that there is no real possibility the jury’s verdict would have been different had the jury been left to determine whether the Zig Zag papers were paraphernalia under Instruction 10, so reversal is not required. Instruction 9 told the jury that paraphernalia included products used for introducing a controlled substance into the human body; Instruction 10 told the jury to consider an item’s proximity to controlled substances and testimony concerning the object’s use when making its determination. See K.S.A. 2007 Supp. 65-4150(c)(12); K.S.A. 2007 Supp. 65-4151(d), (n). The Zig Zag papers were found in a locked box that contained other items of drug paraphernalia. More to the point, other items of drug paraphernalia were also found, including two pipes — a wooden “one-hitter” and a metal pipe— that an officer said were used to smoke marijuana. No testimony suggested any other use for the pipes. Therefore, no real possibility exists that the jury would not have convicted McMillan of possession of drug paraphernalia even if a proper instruction had been given. The district court did not commit clear error, so reversal is not required.
6. The District Court Did Not Err in Using McMillans Criminal History to Calculate His Sentence Because the Kansas Supreme Court Has Deemed the Practice Constitutional.
McMillan’s next argument is that the district court violated his constitutional rights when it used his criminal history to calculate his sentence without following the procedural safeguards of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The State argues in response that prior convictions are expressly excluded from Apprendi’s rule.
Apprendi requires that “any fact that increases the penalty for a crime beyond the prescribed statutoiy maximum ... be submitted to a juiy, and proved beyond a reasonable doubt.” 530 U.S. at 490. As the State pointed out, a defendant’s prior convictions are explicitly excluded from this requirement. See 530 U.S. at 490. The Kansas Supreme Court has recognized the continuing validity of this prior-conviction exception to Apprendi’s requirements. See State v. Fewell, 286 Kan. 370, 395-96, 184 P.3d 903 (2008); State v. Ivory, 273 Kan. 44, 46-47, 41 P.3d 781 (2002). The district court did not err when it used McMillan’s criminal-history score to calculate his sentence.
7. The District Court Did Not Err when It Failed to Put the Aggravating Sentencing Factors Before the Jury to Be Proved Beyond a Reasonable Doubt Because the Kansas Supreme Court Has Deemed the Practice Constitutional.
McMillan’s final argument is that the district court further violated his constitutional rights by giving him the aggravated sentence for second-degree murder without submitting the aggravating factors to the juiy to be proved beyond a reasonable doubt. Our sentencing guidelines provide three possible sentences in each applicable grid box: a mitigated (or lower) sentence, a standard sentence, and an aggravated (or higher) sentence. The district court gave McMillan the aggravated sentence of 203 months for second-degree murder rather than the standard sentence (195 months) or the mitigated sentence (184 months). McMillan contends that this violates the right to a juiy trial based on Cunningham v. California, 549 U.S. 270, 274-75, 127 S. Ct. 856, 166 L. Ed. 2d 856 (2007). In that case, the United States Supreme Court held it unconstitutional to impose a sentence above the statutory maximum based on facts not proven by the jury.
But once again the Kansas Supreme Court has considered and rejected McMillan’s argument: because an aggravated sentence is still within the maximum statutory sentence, imposing it does not violate the holding of Cunningham. State v. Johnson, 286 Kan. 824, 851-52, 190 P.3d 207 (2008). The district court did not violate McMillan’s constitutional rights when it imposed the aggravated sentence.
The judgment of the district court is therefore affirmed. | [
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Standridge, J.:
Dustin R. Barnett appeals the suspension of his driver’s license after driving while under the influence of alcohol. For the reasons stated below, we affirm the suspension.
Facts
Barnett was pulled over by an Atwood police officer for having a loud stereo on July 24, 2007. Upon stopping Barnett, the officer noted that Barnett smelled like alcohol and had slurred speech, bloodshot eyes, poor balance or coordination, and difficulty communicating. The officer also saw alcohol containers in Barnett’s car, and Barnett admitted to drinking that night. The officer administered field sobriety tests, which Barnett failed.
Barnett was transported to the Atwood Police Department and his blood alcohol content (BAC) was tested with an Intoxilyzer 5000. His BAC was .161, just over twice the legal limit. The Intoxilyzer 5000 used on Barnett was certified by the Kansas Department of Health and Environment (KDHE).
Barnett’s driver’s license was suspended by the Kansas Department of Revenue (KDR). Barnett timely requested a hearing to challenge the suspension. After hearing the evidence, the suspension was affirmed by an administrative hearing officer.
Barnett filed a petition with the district court for review of the hearing order. In his petition, Barnett did not dispute that the Intoxilyzer 5000 used to measure his BAC was certified by the KDHE. Instead, Barnett asserted that the Intoxilyzer used to measure his BAC should not have been certified by the KDHE because the Intoxilyzer at issue was not tested with the frequency required by administrative regulations during the months of January, April, and June 2007. The district court held a hearing on the petition. Upon review of the evidence and arguments presented at die hearing, the district court ultimately denied Barnett relief on grounds that the issue presented for review by Barnett — whether the KDHE improperly certified the Intoxilyzer — did not fall within the scope of issues that could be considered in an administrative challenge to the suspension of a driver’s license.
Analysis
Under K.S.A. 2009 Supp. 8-1020(h)(2), the scope of an administrative hearing such as Barnett’s is limited to eight specific issues. The precise issue presented by Barnett in this, appeal centers on K.S.A. 2009 Supp. 8-1020(h)(2)(D), which provides that a hearing shall be limited to whether “the testing equipment used was certified by the Kansas department of health and environment.” Barnett argues that instead of limiting consideration to whether the machine is certified, the statute implicitly requires the hearing officer to further consider whether the machine was improperly certified. Interpretation of a statute is a question of law over which this court has unlimited review. Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271, 202 P.3d 7 (2009).
In support of his argument, Barnett contends this court should follow tire analysis set forth in Meehan v. Kansas Dept. of Revenue, 25 Kan. App. 2d 183, 959 P.2d 940, rev. denied 265 Kan. 885 (1998). In Meehan, this court said that “[a] licensee can challenge, factually, whether the certifications were proper and whether the machine was operated in the manner required by the operations manual. Thus, a licensee can raise inconsistencies in the certification records or whether the testing officer actually followed all operational protocols.” 25 Kan. App. 2d at 185.
Barnett’s reliance on Meehan is misplaced. This is because the Meehan decision was rendered under a previous version of the statute, which limited the scope of issues that could be considered in an administrative challenge to suspension of a driver’s license to whether “the testing equipment used was rehable.” See K.S.A. 1997 Supp. 8-1002(h)(2)(D); 25 Kan. App. 2d at 184. Under the 1997 version of the statute, the scope of issues that could be considered in an administrative challenge to suspension of a driver’s license included reliability of the testing equipment; thus, licensees could challenge the certification record for the testing equipment at administrative hearings. See 25 Kan. App. 2d at 185. K.S.A. 2009 Supp. 8-1020, the current relevant statute (enacted 2001; amended 2007) limits the scope of issues that can be considered, and the only one relevant to this appeal is whether the equipment was “certified.” K.S.A. 2009 Supp. 8-1020(h)(2)(D).
Based on this legislative history and the version of the statute in place at the time Barnett’s driver’s license was suspended, we reject Barnett’s argument that the current version of the statute implicitly requires the hearing officer to consider not just whether the testing equipment was certified, but whether the machine was improperly certified. As the district court noted, if the legislature intended to allow hearings to encompass proper certification of Intoxilyzers— rather than just whether the machine has been certified — it could have done so in the language of K.S.A. 2009 Supp. 8-1020(h)(2)(D).
Our decision to affirm the district court’s dismissal on procedural grounds renders the underlying issue presented by Barnett moot.
“The mootness doctrine is one of court policy which recognizes that it is the function of a judicial tribunal to determine real controversies relative to the legal rights of persons and properties which are actually involved in the particular case properly brought before it and to adjudicate those rights in such manner that the determination will be operative, final, and conclusive.” Board of Johnson County Comm’rs v. Duffy, 259 Kan. 500, 504, 912 P.2d 716 (1996).
At the same time, we have recognized an exception to the mootness rule “where a particular issue, although moot, is one capable of repetition and one of public importance.” Duffy, 259 Kan. at 504. In this case, Barnett asserts that the Intoxilyzer 5000 used to measure his BAC should not have been certified by the KDHE because the Intoxilyzer 5000 at issue was not tested with the frequency required by administrative regulations during the months of January, April, and June 2007. Based on our review of the arguments presented on appeal, we find the particular issue presented by Barnett, although moot, is one capable of repetition. Accordingly, we will address the merits of Barnett’s claim.
In support of his improper certification claim, Barnett relies on the KDHE Breath Alcohol Training Manual, Standard #2, paragraph 1, which states that “[e]ach certified instrument will have a certified standard run during each calendar week (2 trials), recorded on the monthly Certified Standard Report and the original submitted MONTHLY to a Kansas Health and Environment Laboratory, Kansas Department of Health and Environment.” Barnett argues that because the Atwood Police Department did not do four tests in January 2007 and April 2007 and five tests in June 2007, the machine’s certification was “deficient, according to the Kansas Department of Health and Environment’s own protocol.”
We note at the outset that under the KDHE Breath Alcohol Training Manual, Standard #2, paragraph 1, an Intoxilyzer must be tested once in “each calendar week.” (Emphasis added.) By using the “calendar week” language instead of requiring weekly tests, the KDHE presumably meant that tests could be conducted as far apart as 13 days: a test could be run on the Sunday of one week and the Saturday of the next week and still satisfy Standard #2’s requirements.
In January 2007, a test was run in the first calendar week (December 31, 2006), the second calendar week (January 7), the third calendar week (January 14), and the fourth calendar week (January 27). Therefore, Barnett’s argument that the machine was improperly certified in January 2007 fails.
In June 2007, a test was run in the first calendar week (May 31, 2007), the second calendar week (June 9, 2007), the third calendar week (June 15, 2007), the fourth calendar week (June 23, 2007), and the fifth calendar week (June 30, 2007). Therefore, Barnett’s argument that the machine was improperly certified in June 2007 fails.
Barnett is correct, however, that the Intoxilyzer at issue was not tested in each calendar week during the month of April 2007. In April 2007, the tests were conducted in the first, third, and fourth calendar weeks (April 7, 20, and 28). There was no test conducted in the second calendar week. Based on this missed test, Barnett argues the Intoxilyzer at issue in this case was improperly certified as a matter of law when he took his test in July 2007. We disagree for two reasons.
First, although paragraph 1 of the KDHE Breath Alcohol Training Manual, Standard #2 requires an Intoxilyzer to be tested once in each calendar week, the discretionary language used by the KDHE in paragraph 6 of that Standard indicates the certification revocation is not mandatory, but discretionary, in the event that instrument testing does not comply with certification directives. See KDHE Breath Alcohol Training Manual, Standard #2, para graph 6 (“Failure to participate in the breath analysis certified standard evaluation program may constitute reason for revoking certification of the Agency.” [Emphasis added.]).
Second, we find it significant that there was only one lapse in testing and it occurred in the second week of April 2007, approximately 3 months prior to the administration of Barnett’s test. The instrument was tested in each of the 14 calendar weeks immediately preceding Barnett’s test and each of the 6 weeks after the test. The Certified Standard Reports submitted to the KDHE for the months of May, June, July, and August 2007 reflect full compliance with certification directives and no lapse in weekly testing.
Under the facts of this case, it was not improper for the KDHE to have certified the testing equipment at issue.
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Marquardt, J:
John/Jane Doe, Trustee of the Thomas M. Gilkison Trust (Trust), dated December 13,1980, Richard Wilson, and Mary Wilson appeal the district court’s finding that a public road existed by prescriptive easement on property owned by the Trust. We reverse.
In October 2006, John Brownback acquired 172 acres of land in Linn County, Kansas. Several months later, Brownback sold 142 acres of the northern portion of his land and retained the remaining 30 acres to the south. Brownback accessed his 30 acres (Brownback property) by utilizing a “road,” approximately 28 feet wide and 285 feet long, bordered by parallel fences and located on the southeast portion of the Trust property.
The western edge of Brownback’s property abuts the northeastern edge of the Trust property. The “road” dead ended on the north end of the Trust property with a gate on the east fence leading to the Brownback property. The fence on the west had a gate leading to the Trust property. The “road” connected to Gwynn Road, a county road, on its south end. The Trust acquired its property in 2001 from Thomas and Elizabeth Gilkison. Mary Gilkison Wilson was the trustee of the Trust and was appointed as its property manager.
On December 12, 2007, Brownback filed a petition to establish the “road” he used to access his property as either (1) a public or private easement by prescription or (2) an easement by necessity. After several pretrial hearings, Brownback voluntarily abandoned his claims for a private easement and an easement by necessity.
The district court held a 3-day bench trial in February 2009. Several individuals testified that they sporadically used the “road” with or without permission over a period of more than 20 years to access the Brownback property to hunt, to cut timber and hay, and to “park.”
Additionally, retired Linn County Highway Department employees testified they performed maintenance twice on the “road” in the mid to late 1980’s. There was no evidence that the County did any other “road” maintenance before or after the 1980’s. Department employees testified they were aware of instances when county employees repaired and regularly maintained other private roads and driveways.
At trial, Brownback and Richard Wilson, Mary Wilson’s husband, admitted into evidence maps, pictures, and aerial photographs suggesting both the presence and absence of a public road on the Trust’s property. Brownback relied on an 1886 map of Linn County, taken off the courthouse wall during trial, and an unofficial 1906 plat book to claim that the “road” was a public road from 1886 to 1906 and continues to be a public road to the present.
According to land surveyor James Schmitz, Brownback’s map expert, the 1886 map depicted a public road running through the Trust property. However, Schmitz suggested there was some confusion about whether the 1886 map actually depicted a public road on the Trust property. The legend on the map showed this road by a single fine, but the map used double lines for public roads. Schmitz testified that the 1886 map broke the “cardinal rule of surveying” by incorrecdy portraying fractional government lots to the east of a section fine and, therefore, could contain other errors.
Additionally, Schmitz testified that there is no evidence of any official road, either public or private, that existed after 1906 on the Trust’s property. Nevertheless, Schmitz asserted the presence of two parallel rock walls that extended north from the “road” suggested the “road” was a public road at some time. Schmitz also noted the 1906 plat book indicated a “wagon road” entered the Trust property from the south; however, the plat book did not describe the function of a “wagon road.”
Brownback had two aerial photographs from 1971 and 1956 admitted into evidence. Former Linn County Engineer Richard Long compared these photographs and determined that an individual must have performed some periodic maintenance on the “road” due to the road’s coloring, but he could not confirm whether the County or a private party performed the maintenance.
In contrast, Richard Wilson admitted official county maps from 1998, 1989, 1982, 1976, 1969, 1954, and 1936, which he obtained from the Kansas Department of Transportation (KDOT). All the KDOT maps indicated there was no public road on the Trust’s property. Additionally, Larry Robinson, the Linn County traffic safety coordinator and zoning administrator, noted the “wagon roads” described in the unofficial 1906 plat book were likely roads constructed by the federal government to access government lots and were never considered public roads.
Richard Wilson testified there was a three-strand barbed wire gate across the south entrance of the “road” with a “No Trespassing” sign on or near the gate when the Trust acquired the property in 2001. Sometime between 2003 and 2006, however, vandals removed the gate. Wilson did not construct a new gate until 2008.
In its order filed on April 1, 2009, the district court found that Brownback had proved
“by clear, convincing and satisfactory evidence that the public thought this was a public road, they used it as a public road with the actual or implied knowledge of the landowner, adversely under claim or color of right and not merely by the owner’s permission and said use was continuous and uninterrupted for at least fifteen (15) years.”
The district court did not designate the specific 15-year continuous and uninterrupted prescriptive period. The district court found that (1) several witnesses testified they used the “road” without permission numerous times over the last 50 to 60 years; (2) the 1886 map, the 1906 plat book, and the rock walls indicated that the “road” was either a public road or a “wagon road”; (3) the 1886 map and the 1906 plat book showed that the Trust had actual or implied knowledge that the public used the “road”; and (4) it was the only available means of ingress and egress for the Brownback property. The district court concluded with this evidence that Brownback established continuous and uninterrupted use from 1886 to the present.
The district court, however, acknowledged that the County did not regularly maintain the “road,” that the “road” was not depicted as a public road on any official KDOT map, and that the landowners of the property paid taxes on the “road” as if it were private property since 1989. The Trust timely appeals.
The Trust contends the district court erred in determining Brownback had established a public easement by prescription. Kansas cases “use the adverse possession statute, K.S.A. 60-503, to determine if the elements of a prescriptive easement are present.” Stramel v. Bishop, 28 Kan. App. 2d 262, 264, 15 P.3d 368 (2000), rev. denied 271 Kan. 1042 (2001). The existence of a prescriptive easement is a question of fact reviewed for substantial competent evidence of a clear and convincing quality. Brady Fluid Svc., Inc. v. Jordan, 25 Kan. App. 2d 788, 793-94, 972 P.2d 787 (1998).
“In a claim of title by adverse possession, every presumption is in favor of the holder of the legal title and against the claimant. The law will not allow the property of a person to be taken by another upon slight presumptions or probabilities. The facts relied upon to establish adverse possession cannot be presumed, and presumptions will not be indulged in to establish a claim of title.” Chesbro v. Board of Douglas County Comm’rs, 39 Kan. App. 2d 954, Syl. ¶ 3, 186 P.3d 829, rev. denied 286 Kan. 1176 (2008).
In Kratina v. Board of Commissioners, 219 Kan. 499, 502, 548 P.2d 1232 (1976), the Kansas Supreme Court discussed the elements required to establish a public prescriptive easement:
“ ‘To establish a highway by prescription the land in question must have been used by the public with the actual or implied knowledge of the landowner, adversely under claim or color of right, and not merely by the owner’s permission, and continuously and uninterruptedly, for the period required to bar an action for the recovery of possession of land or otherwise prescribed by statute. When these conditions are present a highway exists by prescription; otherwise not.’ [Citations omitted.]”
The Kratina court stated: “Mere use by the traveling public is not enough to establish .. . that the use is adverse .... There must in addition be some action, formal or informal, by the public authorities indicating their intention to treat the road as a public one.” 219 Kan. 499, Syl. ¶ 3.
Here, the district court noted: “[T]he Plaintiff presented the two (2) maps . . . which clearly indicate the ‘road’ was a public road and therefore the use would be with the actual and implied knowl edge of the landowner, adverse and under claim or color of right.” (Emphasis added.) Although it is undisputed that members of the public periodically used this “road” for decades, there is no evidence in the record on appeal how the “road” was used from 1886 to 1906 and whether the use was continuous, uninterrupted, or adverse to the landowner.
In Kratina, the court found that in designating a road as a public road by prescription, public maintenance is most significant. See 219 Kan. at 501, 504-05. Although the district court did not discuss this “road’s” maintenance in its decision, it noted that Linn County employees only worked on the “road” on two separate occasions in the late 1980s. See 219 Kan. 499, Syl. ¶ 3.
In Biggs Feed and Grain, Inc. v. City of Waverly, 3 Kan. App. 2d 423, 424, 596 P.2d 171 (1979), this court applied Kratina’s “public maintenance” requirement and determined the City of Waverly, Kansas, established a public easement by prescription by expending public funds and city labor to perform maintenance on a city street for 19 years. The court noted the City performed considerable maintenance on the road, including “grading, ditching, rocking, repairing, mowing,” and removing snow. 3 Kan. App. 2d at 424. Likewise, in Schroeder v. Urban, 13 Kan. App. 2d 164, 167, 766 P.2d 188 (1988), rev. denied 244 Kan. 738 (1989), this court concluded that a township established a public easement by prescription by continually maintaining, grading, and elevating a road for more than 40 years.
In this case, the district court relied solely on Stramel to impute knowledge of public use to the landowner. See 28 Kan. App. 2d at 266. In Stramel, the Logan County Road Supervisor testified the County or the Township had maintained the road since 1946. The evidence in the record on appeal in the instant case is that over a period of more than 100 years, the County ditched and graded the “road” twice. This is not evidence of periodic county road maintenance on the “road” for a 15-year period. Linn County also argues that someone working on the “road” two times does not establish a pattern of maintaining the road.
Kratina mandates that in order to designate a public road by prescription, there must be “some action, formal or informal, by the public authorities indicating their intention to treat the road as a public one.” 219 Kan. 499, Syl. ¶ 3. There is no evidence in the record on appeal that Linn County ever formally dedicated, opened, or officially recognized this “road” as a part of the county road system.
The record on appeal does not support by clear and convincing evidence that a public easement by prescription was created on the Trust property.
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Atcheson, J.:
Thirty years ago, Helen M. Heiman sold apiece of land to her son Maurice Heiman on an installment contract. Maurice made some payments. Helen died about 3 years ago. Carol Leo Heiman, another son, is the executor of his mother’s estate and, in that capacity, filed a petition as part of the probate pro ceeding in Nemaha County to recover the balance due from Maurice on the land sale. Everybody seems to agree Maurice still owes some money. They part ways over how much. But that issue — the substantive disagreement between the Estate and Maurice about money — is not before us. It remains unaddressed and unresolved. Instead, the parties have been mired in an entirely needless dispute over “jurisdiction.” At Maurice’s request, the district court dismissed the probate petition on the notion the court lacked subject matter jurisdiction because the action should have been brought as a civil suit under Chapter 60 rather than in the probate proceeding under Chapter 59. On behalf of the Estate, Carol has appealed the dismissal. We decide the propriety of that ruling today. We reverse and remand with directions that the action be reinstated and Carol be given leave to file an amended petition restyling the pleading as one under Chapter 60.
This legal dispute has been sucked into a procedural vortex because the parties argued outdated case authority to the district judge and failed to appreciate the sweeping changes court unification made to the Kansas judicial system, particularly with respect to jurisdiction. In short, unification provided the district courts with broad jurisdictional authority to hear all types of cases and eliminated the strict jurisdictional barriers that channeled probate matters into specialized probate courts with exclusive jurisdiction to decide those cases. Since unification, district courts have had the jurisdiction to hear both Chapter 60 civil cases and Chapter 59 probate matters. The district court, therefore, had no reason or legal basis to dismiss the Estate’s action against Maurice for lack of jurisdiction.
We discuss in some detail the impact court unification has had on jurisdiction of the district courts. Because we are remanding this case for further proceedings, we also discuss several other procedural issues that have already divided the parties. We wish to make clear, however, that we express no views on the substantive legal dispute in this case. We could not, even if we were disposed to. The record is so meager — the parties effectively have not gotten beyond the pleading stage — the facts remain wholly undeveloped. What we have already said adequately sets out the factual dimensions of tire issue for purposes of this opinion.
Because there are no material factual disputes bearing on the district court’s decision to dismiss and jurisdiction typically presents a question of law, our review is plenary. Harsch v. Miller, 288 Kan. 280, 286, 200 P.3d 467 (2009); Rivera v. Cimarron Dairy, 267 Kan. 865, 868, 988 P.2d 235 (1999). That is, we owe no particular deference to the ruling below, and we may examine the issue anew.
The issue the parties have given us turns on the scope of a district court’s subject matter jurisdiction. Subject matter jurisdiction defines the legal authority of a particular court to hear a type of case or dispute. Padron v. Lopez, 289 Kan. 1089, 1106, 220 P.3d 345 (2009) (“Subject matter jurisdiction . . . establishes the court’s authority to hear and decide a particular type of action. [Citations omitted.]”). Federal courts, for example, have distinctly limited jurisdiction; they cannot hear common-law tort or contract actions unless the plaintiff and defendant are citizens of different states and the amount at issue exceeds $75,000. 28 U.S.C. § 1332(a) (2006). A court must have subject matter jurisdiction as a prerequisite to entering a valid judgment. If a court lacks subject matter jurisdiction, its actions have no legal force or effect and cannot bind the parties. See, e.g., American Fiber v. Tyco Healthcare, 362 F.3d 136, 138-39, 142-43 (1st Cir. 2004) (Noting that “in the absence of jurisdiction, a court is powerless to act,” the appellate court voids a judgment even though the losing party first asserted a lack of subject matter jurisdiction on appeal.). By the same token, the parties may not, by agreement, confer subject matter jurisdiction on a court. And a court is obligated to raise and address an apparent lack of subject matter jurisdiction even if the parties have not. Rivera, 267 Kan. at 868.
In Kansas, the district courts “have general original jurisdiction of all matters, both civil and criminal, unless otherwise provided by law.” K.S.A. 20-301. That includes subject matter jurisdiction over probate proceedings. Quinlan v. Leech, 5 Kan. App. 2d 706, 710, 623 P.2d 1365 (1981) (“Since court unification, then, a district court has subject matter jurisdiction of probate proceedings.”). As part of the court unification process, the legislature abolished probate courts as a forum distinct and separate from district courts. K.S.A. 20-335.
In 1977, court unification dramatically reconfigured the judicial system in Kansas. At the trial level, various courts with specialized jurisdictions were ehminated and their functions were transferred to district judges. The district courts became courts of general jurisdiction. They could hear civil and criminal cases, probate actions, and juvenile proceedings. That marked a major change in the way the judicial system worked, and most participants in the process hailed unification as a distinct improvement.
Before unification, Kansas used a variety of specialized courts, including probate courts, county courts, juvenile courts, and courts of common pleas. They operated separately from the district courts. Those specialized courts had defined — and limited — jurisdictional spheres. For example, the probate courts had exclusive jurisdiction to hear probate matters. No other courts could entertain or decide probate issues or disputes. In legal terminology, the other courts, including the district courts, lacked subject matter jurisdiction over probate matters. Conversely, a probate court had no jurisdiction to decide a criminal case or a juvenile matter. To further confound lawyers and other participants in the process, the configuration of the specialized courts varied from county to county. See generally Report of the Kansas Judicial Study Advisory Committee, pp. 24-26 (May 1974).
One of the primary goals of court unification was the ehmination of “jurisdictional fragmentation.” Advisory Committee Report, p. 24. As enacted by the legislature, the court unification plan accomplished that purpose by consolidating subject matter jurisdiction in the district courts. Thus, following unification, the district courts began hearing probate matters, juvenile proceedings, and other actions previously entrusted to the specialized courts. Those specialized courts were gone, along with the rigid jurisdiction boundaries that marked their judicial territories.
The principal implication of unification for this case lies in the broad, general jurisdiction the district courts have enjoyed since 1977. As we have said, they now hear Chapter 60 civil actions and Chapter 59 probate matters. Unification also meant that pre-1977 case law discussing or relying on the jurisdictional limitations imposed on the specialized courts and the district courts no longer had any relevance or application. On that legal point, those cases are relics of a bygone era. See Ram Co. v. Estate of Kobbeman, 236 Kan. 751, 764, 696 P.2d 936 (1985) (court distinguishes preunification probate cases in addressing whether a Chapter 60 action against the executor of an estate legally exhibits a demand against the estate). Their discussion of subject matter jurisdiction and limitations on the authority of trial courts to decide particular types of cases has no precedential weight or value in examining those issues under the State’s current judicial system.
Before the district court and here on appeal, the parties, however, do battle as if court unification never happened. They parry over case authority addressing pre-unification jurisdiction of probate courts. Those cases provide no guidance on the jurisdiction of modern district courts, and they fail to inform either the trial judge or us in any constructive way. For example, Maurice cites Hildenbrand v. Brand, 183 Kan. 414, 416, 327 P.2d 887 (1958), for the proposition that a probate court has jurisdiction to hear a claim against an estate, but an executor must go to district court to file an action to assert a claim on behalf of the estate. He offers a string cite of four other pre-unification cases he says stand for the same proposition. In turn, Maurice argues that Carol’s efforts to collect the balance due on the land contract were jurisdictionally improper in the “probate” court. The argument might have had merit before court unification, but not now. The district court has subject matter jurisdiction to hear Carol’s action, whether it is a probate proceeding under Chapter 59 or a civil action under Chapter 60. Accordingly, the action should not have been dismissed for lack of jurisdiction.
We do not especially fault the trial judge here. In any litigation, the parties essentially define the controversy in their moving papers and responses. The adversarial process presumes those competing disquisitions generally draw on a viable body of law, rather than extinct species. That did not happen here, and the trial judge went ahead to decide the issue presented to him, even though it was, in effect, a phony one.
What remains is the proper solution for the erroneous dismissal of Carol’s action for lack of jurisdiction. We need to send the case back to the district court. And the district court should reinstate the action against Maurice. That much is plain. Carol styled the petition as one brought under Chapter 59. But the district court correctly noted that in K.S.A. 59-103, the Probate Code limits what may be decided using the procedures outlined in Chapter 59. A suit by an executor or administrator to secure or collect an obligation owed the decedent at the time of his or her death is not among them. Such a proceeding typically should be brought as a civil action under Chapter 60. Here, the claim would be on the sales contract.
In effect, Carol miscaptioned the action as one under Chapter 59, rather than one under Chapter 60. The petition references neither chapter. It does, however, bear the caption of the probate proceeding and is verified, as required under K.S.A. 59-2201. (There is no verification requirement for most papers filed under Chapter 60.) Thus, the format suggests a Chapter 59 action, although the claim asserted and the relief sought — recovery of money from Maurice on the contract — outline a Chapter 60 action. But that is not a valid basis to dismiss for lack of jurisdiction because, as we have said, the same district court has subject matter jurisdiction to hear proceedings under either Chapter. Instead, Carol should have been allowed to amend his petition as one captioned for Chapter 60. That would have been fully consistent with established procedure. First, the courts should treat petitions, motions, or other papers for what they are based on their substance rather than on how they are captioned or titled. Ireland v. Byrne, No. 101,739 unpublished opinion filed January 22, 2010, slip op. at 7-8; Smith v. State, 22 Kan. App. 2d 922, 925, 924 P.2d 662 (1996) (“We can think of no good reason for concluding that the caption of a pleading should control over its content.”). Second, the Kansas Code of Civil Procedure contemplates that filings should be construed to effect their purpose, not in technical ways that thwart an airing of the parties’ underlying legal dispute. See K.S.A. 60-102 (The code “shall be liberally construed and administered to secure the just, speedy and inexpensive determination of every action or proceeding.”); K.S.A. 60-208(f) (“All pleadings shall be so construed as to do substantial justice.”); K.S.A. 60-215(a) (“leave [to amend] shall be freely given when justice so requires”).
Consistent with those precepts, we held in Hole-in-One, Inc. v. Kansas Industrial Land Corp., 22 Kan. App. 2d 197, 200, 913 P.2d 1225, rev. denied 260 Kan. 993 (1996), that designating what was actually a Chapter 60 action as a limited action brought under Chapter 61 did not render the action “void.” The court recognized the deficiency could be corrected by amendment and noted that the appellate courts regularly allow parties to amend pleadings to cure comparable defects, such as the absence of a verification or a misnomer. 22 Kan. App. 2d at 201. The court also pointed out that following court unification, district courts had jurisdiction over both Chapter 60 and Chapter 61 actions and the chapter designations helped the clerk’s office differentiate the types of cases being filed. The result here should be no different.
Simply because Carol had captioned the action as one brought under Chapter 59 and had identified it as being a probate proceeding, the district court should not have dismissed. Rather, the district court should have treated it as a Chapter 60 action on the land contract and should have allowed Carol to revise the form and language of the petition indicating otherwise. No judgment should have been entered against Carol, and no appeal to this court should have been necessary.
As we noted earlier, in the Quinlan decision, this court correctly described the impact of court unification as affording district courts subject matter jurisdiction over probate proceedings. Quinlan, 5 Kan. App. 2d at 709. We pause here to further note that the specific holding in Quinlan does not conflict with the result we reach in this case. In that case, the estate of J. E. Quinlan was being handled in the Jefferson County courts when a relative of Quinlan filed a Chapter 60 action in Shawnee County alleging the executor of the estate had breached his fiduciary duties. The Shawnee County district judge dismissed the suit for lack of subject matter jurisdiction, but apparently did so because the witnesses and records pertinent to the alleged breach were, for the most part, in Jefferson County. 5 Kan. App. 2d at 709-10. This court affirmed the dismissal. This court, however, recognized that district courts have subject matter jurisdiction to hear both probate matters and Chapter 60 civil actions and specifically rejected the district judge’s reliance on preunification cases in coming to the opposite conclusion. 5 Kan. App. 2d at 710-11. The dismissal was not affirmed based on lack of subject matter jurisdiction, but on deference to Jefferson County as a more appropriate forum for the breach of fiduciary duty suit. 5 Kan. App. 2d at 711. We think the better course in Quinlan might have been to transfer the breach of fiduciary duty case from Shawnee County to Jefferson County as a matter of venue for the convenience of the parties and witnesses and in the interests of justice, as allowed by K.S.A. 60-609. In a concurring opinion, then-judge Abbott made that same observation. 5 Kan. App. 2d at 711.
Before turning to two other issues suggested in the briefing, we wish to make clear that we are dealing only with jurisdiction — the authority of a court to hear a dispute — and how court unification expanded the district court as a forum. Court unification did not change the substantive law of probate. And pre-unification cases may well provide valid precedent on specific probate issues.
In his briefing, Maurice at least implies that he should be entitled to a jury trial in an action brought under Chapter 60. That implication (if we are correctly reading his brief) is inaccurate. There is no automatic right to a jury simply because a petition has been filed under Chapter 60. The right to a jury trial in a civil case usually depends upon the relief a plaintiff seeks unless a statute specifically permits a jury trial, see, e.g., K.S.A. 26-509 (jury trial in condemnation); K.S.A. 59-2960 (jury trial in care-and-treatment proceeding). If a plaintiff asserts a common-law right or remedy, such as money damages on a breach of contract, he or she is entitled to a jury. Waggener v. Seever Systems, Inc., 233 Kan.4 517, 523, 664 P.2d 813 (1983) (Money damages reflect a common-law remedy for breach of contract and, therefore, permit a jury trial under Kan. Const. Bill of Rights § 5.); see also PIK Civ. 4th 124.01-A (jury called upon to decide case when plaintiff seeks damages for breach of contract). If the relief sought is equitable, however, the plaintiff has no right to have a jury hear his or her claim. Waggener, 233 Kan. at 523 (Rescission is an equitable, rather than a common-law, remedy and, therefore, does not require ajuiy trial.).
As drafted, Carol’s petition seeks the amount due and unpaid on the contract. But the parties seem to contemplate an alternative remedy of setoff in which any inheritance due Maurice would be reduced by the amount he still owes on the contract. Setoff is an equitable remedy. Mynatt v. Collis, 274 Kan. 850, 852, Syl. ¶ 14, 57 P.3d 513 (2002) (A party may seek setoff “through a proceeding in equity.”); Westar Energy, Inc. v. Wittig, 44 Kan. App. 2d 182, 200, 235 P.3d 515 (2010) (characterizing setoff as an equitable remedy). Carol could request alternative remedies in his petition in the form of the amount due or setoff. He likely would have to elect one or the other before trial and certainly before a judgment might be entered. See Nordstrom v. Miller, 227 Kan. 59, Syl. ¶ 11, 605 P.2d 545 (1980) (noting a party suing for money damages on a contract and for rescission of the contract must elect between the two because they are inconsistent).
The parties also discuss in their briefing statute of limitations issues that might arise. We offer no opinion on the propriety of the defense in this case. Without a developed factual record regarding the payments Maurice says he made and when the payments stopped, we could only speculate. Maurice, however, suggests Carol could not seek setoff absent tire assertion of a valid limitations defense. Maurice cites In re Estate of Wernet, 226 Kan. 97, Syl. ¶¶ 7, 8, 596 P.2d 137 (1979), in support of that suggestion. We do not read Wemet as saying an executor or administrator of a probate estate can seek a setoff only in the face of a statute of limitations defense. The Kansas Supreme Court recognized setoff could be allowed in that circumstance assuming a district court found equity and fairness required that result. The court states: “[T]he statute [of limitations] is not a bar to a setoff to the extent of appellant’s distributive share.” 226 Kan. at 108. The language of the opinion, however, does not confine setoff to those facts. And Holden v. Spier, 65 Kan. 412, 414-15, 70 P. 348 (1902), on which the Wemet court relies heavily, seems to hold setoff maybe applied substantially more broadly than Maurice argues. We do not inti mate how the district court ought to treat a request for setoff in this case, since Carol’s petition does not assert such a remedy. Nor has the case progressed far enough for the district court to have an evidentiary record from which it might weigh the equitable considerations for and against setoff.
We reverse and remand so that the district court and the parties may proceed with Carol’s petition under Chapter 60. Carol should be allowed to restyle the petition as one under Chapter 60 and to otherwise amend his pleading consistent with the liberal rule of K.S.A. 60-215. Maurice, of course, should then answer, asserting any affirmative defenses he considers appropriate, as provided in K.S.A. 60-208(c).
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Green, J.:
This appeal arises out of the dismissal with prejudice of a wrongful death suit. The action was brought by Jo Ann Nilges and Wayne Nilges, the parents of Luke Nilges, deceased, and by Jo Ann Nilges as special administrator for Luke’s estate (plaintiffs). The suit named as defendant a retail firearm and ammunition dealer: Shawnee Gun Shop, Inc., d/b/a The Bullet Hole (defendant). The plaintiffs’ petition essentially alleged that the defendant negligently sold firearm magazines and ammunition to David Logs-don. The petition further alleged that Logsdon used the firearm magazines and ammunition to fatally shoot Luke.
Barely 1 month after the suit was initiated, the plaintiffs moved for dismissal of their suit without prejudice. The trial court, however, dismissed the plaintiffs’ action with prejudice. The question in this appeal is whether the trial court abused its discretion in denying the plaintiffs’ motion for an order dismissing their action without prejudice under K.S.A. 60-241(a)(2). We determine that because the defendant would have suffered no legal prejudice had the trial court sustained the plaintiffs’ motion for an order dismissing their action without prejudice and because the trial court failed to obtain a result which was fair and equitable to the parties, the trial court abused its discretion in denying the motion. Accordingly, we reverse and remand with directions that the trial court vacate the judgment entered in this matter and enter an order dismissing the action without prejudice upon the terms and conditions as the court deems proper.
Luke and Leslie Noble Ballew were shot and killed by Logsdon during a shooting spree outside the Ward Parkway Shopping Center in Kansas City, Missouri, on April 29, 2007. On that date, Luke and Leslie were sitting in their separate cars outside the Ward Parkway Shopping Center when Logsdon shot and killed them. The plaintiffs and Leslie’s parents, Carolee Noble and Leo Noble, each filed separate lawsuits against the defendant. They sought damages against the defendant for the deaths of their children resulting from the defendant’s allegedly negligent sale of the magazines and ammunition to Logsdon.
The plaintiffs alleged in their petition that a few days before the shooting, Logsdon purchased firearm magazines along with ammunition from the defendant. The plaintiffs’ petition further implied that Logsdon purchased the previously mentioned items with a stolen credit card.
Before filing the present action, the plaintiffs and the Nobles filed their initial lawsuits in Jackson County, Missouri, on December 4, 2008. The defendant moved to dismiss the Missouri actions based on the lack of personal jurisdiction. The Missouri trial court sustained the motion and dismissed the plaintiffs’ as well as the Nobles’ actions for lack of personal jurisdiction over the defendant. Both the plaintiffs and the Nobles appealed the dismissal of their lawsuits to the Missouri Court of Appeals.
While the Missouri case was still pending, the plaintiffs filed this action on April 28, 2009, before the applicable 2-year statute of hmitations for actions involving wrongful death and negligence expired. See K.S.A. 60-513(4) and (5). Moreover, the plaintiffs filed this lawsuit to preserve their rights under the Kansas savings provisions should their Missouri action fail for lack of personal jurisdiction over the defendant.
On May 28,2009, the defendant filed an answer to the plaintiffs’ petition. On that same date, the defendant moved to dismiss the plaintiffs’ action under K.S.A. 60-212(b)(6). In its motion to dismiss, the defendant asserted that plaintiffs’ petition failed to state a claim upon which relief may be granted. The next day, on May 29, 2009, the plaintiffs moved to dismiss their action without prejudice under K.S.A. 60-241(a)(2).
Meanwhile, as stated earlier, the Missouri trial court dismissed the plaintiffs’ lawsuit for lack of personal jurisdiction. The Missouri dismissal occurred before the motion to dismiss for failure to state a claim was fully briefed and argued in the Kansas trial court. The Nobles’ Missouri lawsuit was also dismissed for lack of personal jurisdiction. Like the plaintiffs, the Nobles also moved to voluntarily dismiss without prejudice their Kansas lawsuit pending the outcome of their Missouri lawsuit. The Kansas judge in the Nobles’ lawsuit allowed them to voluntarily dismiss their action. Nevertheless, the Kansas judge in the plaintiffs’ action dismissed their lawsuit for failure to state a claim.
Since the Kansas trial court’s dismissal of plaintiffs’ action, the Missouri Court of Appeals has held that the Missouri trial court erred in dismissing both the plaintiffs’ and the Nobles’ lawsuits for lack of personal jurisdiction. Noble v. Shawnee Gun Shop, Inc., 316 S.W.3d 364 (Mo. App. 2010).
Whether a voluntary dismissal should be granted under K.S.A. 60-241(a)(2) is within the sound discretion of the trial court. Unless the defendant will suffer some plain legal prejudice other than the prospect of a second action, the dismissal should be allowed. Gideon v. Bo-Mar Homes, Inc., 205 Kan. 321, 326, 469 P.2d 272 (1970).
K.S.A. 60-241(a)(2) states:
“(a) Voluntaiy dismissal; effect thereof.
(2) By order of court. Except as provided in paragraph (1) of this subsection, an action shall not be dismissed at the plaintiff s instance save upon order of the judge and upon such terms and conditions as the judge deems proper.... Unless otherwise specified in the order, a dismissal under the paragraph is without prejudice.”
The essential question in this appeal is whether a dismissal without prejudice would have been prejudicial to the defendant.
In determining whether to grant a motion for voluntary dismissal by order of the court under K.S.A. 60-241(a)(2), Kansas courts have traditionally asked whether the defendant has suffered some “plain legal prejudice” other than the continuing prospect of a second suit on the same cause of action. See Gideon, 205 Kan. at 326 (“[T]he court should follow the traditional principle that dismissal be allowed unless the defendant will suffer some plain legal prejudice other than mere prospect of a second lawsuit.”). Under this view, dismissal is more of a right of the plaintiff, subject to the impositions of reasonable conditions. See K.S.A. 60-241(a)(2) (A court’s dismissal is subject to “such terms and conditions as the judge deems proper.”). Moreover, the terms and conditions that a trial court may impose on a dismissal initiated by a plaintiff prevent a defendant from being unfairly affected by the dismissal. Cheek v. Bird, 9 Kan. App. 2d 248, 251, 675 P.2d 935 (1984).
In addition, it is no bar to a voluntary dismissal under K.S.A. 60-241(a)(2) that the plaintiff may gain some tactical advantage by the dismissal. See Gideon, 205 Kan. at 326 (“It is no bar to dismissal that plaintiff may obtain some tactical advantage thereby. . . .”).
Regarding plaintiffs’ motion to dismiss without prejudice, the trial court stated:
“I think there is a prejudice, because — Here’s why. If I dismiss it without prejudice, this matter is hanging out there. What you’re going to probably have to do is obviously re-file it within six months. That’s what our statute requires.
“What you’re hoping is that you’ll get some definition from the Missouri Court of Appeals within that period of time. That’s like a snowball’s chance in hell of occurring. It’s not going to happen.
‘What’s going to happen is we’re going to delay the process even longer.
‘What you want to do is preserve your right to pursue this if all your arguments are intact and proper. You’d rather do it over in Missouri. If you can’t do it over there, you want to make sure you keep your setting here.”
The only alleged prejudice to the defendant that the trial court mentions is the possibility of the plaintiffs refiling their action within “six months.” Prejudice does not automatically result to the defendant from the filing of a second lawsuit. See Gideon, 205 Kan. at 326.
Before granting a motion to dismiss under K.S.A. 60-241(a)(2), the court is to balance the interests of both the plaintiff and the defendant in the dismissal to obtain a result which will be fair and equitable under the circumstances of the case. Gideon, 205 Kan. at 327-28. The defendant stated in its brief in opposition to plaintiffs’ motion for dismissal without prejudice that it would be prejudiced by a dismissal without prejudice in the following way:
“Dismissal of this litigation pending in Kansas based on plaintiffs’ motion will deprive the defendant of an expeditious and efficient route to an early dismissal on the merits.
“... If this case is dismissed without prejudice pursuant to K.S.A. [60]-241(a)(2), defendant would lose the ability to rely on K.S.A. 60-1902 and 60-1903 as affirmative defenses.
“. . . Defendant will suffer legal prejudice because if the Court dismisses this action without prejudice and does not hear defendant’s motion to dismiss, plaintiffs will be provided with an inordinate amount of time to prepare opposition to the arguments set forth in defendant’s motion, as this motion will inevitably be filed or re-filed by defendant in the first court with competent jurisdiction over the defendant.
“Defendant has expended significant legal resources defending the jurisdictional claims in Missouri, the substantive claims in Kansas, and if plaintiffs’ motion is granted, defendant will suffer further significant legal resources that can be avoided by this Court addressing defendant’s pending motion to dismiss.”
The previously mentioned grounds on which the defendant contends that it would be prejudiced are not a bar to a dismissal without prejudice. For example, in each of defendant’s assertions of prejudice, it complains about a situation where plaintiffs may gain some tactical advantage. As stated previously, the fact that a plaintiff may gain some tactical advantage or a defendant may lose a defense is no bar to a dismissal without prejudice. See Greenlee v. Goodyear Tire & Rubber Co., 572 F.2d 273, 275-76 (10th Cir. 1978) (Dismissal without prejudice was held to be proper even though plaintiff may have gained a tactical advantage and defendant may have lost the defense of a period of limitations.).
There do not seem to be any grounds on which the defendant could claim to be prejudiced in its substantial rights. First, this suit had not proceeded beyond the initial stages of action and was barely a month old when the plaintiffs sought voluntary dismissal of their action without prejudice. Second, the record shows that no counterclaim was advanced by the defendant against the plaintiffs. Third, the record further discloses that no discovery or pretrial conference had been conducted in this case.
Here, the trial court failed to balance the interests of both the plaintiffs and the defendant in the dismissal. In fact, the trial court implied that it was helping the plaintiffs by dismissing their action with prejudice:
“THE COURT: If I do dismiss your case, you have a right to appeal. You’ll be able to get clarity on — under Kansas law. At the same time — It’s going to probably take our Court of Appeals a lot longer than [the] Missouri Court of Appeals. You have not given anything up, and you’re getting somebody to make a decision that has the authority to make a decision on something Mice this.
“No matter what happens, no matter what I do, you guys are going to appeal me. You might as well do it early on as opposed to later on and save yourselves both money.
"I’m doing it for obvious reasons, for the parties, and also because it just doesn’t make any sense to do a dismissal without prejudice when I know a dismissal — if that’s what I do, you’ll have plenty of time. It tolls the statute.”
Nevertheless, once the trial court granted the defendant’s motion to dismiss the plaintiffs’ suit for failure to state a claim, the defendant argued in the Missouri case that plaintiffs’ action was now moot because it was barred by the doctrines of res judicata and collateral estoppel.
In addressing the defendant’s res judicata and collateral estoppel arguments, the Missouri Court of Appeals stated that it could find “no other case with the unique timing issues”:
“We have found no other case with the unique timing issues presented in the cases before us, where one lower-court dismissal (here, in Missouri), pending appeal, occurred prior to consideration of a motion to dismiss by a second trial court (Kansas), and then that second court’s decision was held to bar reversal of the first trial-court’s decision (Missouri), all while there was still a possibility that the second trial-court’s decision could be reversed on appeal (Kansas).
“Further complicating matters is that the Kansas order, on which Gun Shop relies, only dismissed the Nilgeses’ cause of action. The Nobles also brought an action in Kansas to preserve their rights under the Kansas savings statute, but the judge in their case allowed them to dismiss voluntarily, without prejudice. Accordingly, res judicata, or claim preclusion, would not apply as to the Nobles, who have never had a judgment on the merits issued against them. Also, although Gun Shop’s brief mentions die term collateral estoppel, it is devoid of any argument or analysis as to how it could possibly apply to either plaintiff in this case. Because the Nobles’ claims, at least, have not successfully been shown to be barred by res judicata or collateral estoppel, both affirmative defenses which must be properly pleaded, we find that this appeal is not moot and proceed to analyze whether personal jurisdiction exists over Gun Shop.” Noble, 316 S.W.3d at 369.
It is clear that but for the Nobles’ action being dismissed without prejudice in Kansas, the defendant’s defensive use of res judicata in the Missouri action could have precluded the plaintiffs from ever litigating their lack of personal jurisdiction issue in the Missouri courts.
Here, the trial court failed to obtain a result which was fair and equitable to both the plaintiffs and the defendant. For example, the trial court did not give the plaintiffs leave to amend their petition to allege an essential fact or a legal theory that may have been omitted from their petition. We have made no determination whether plaintiffs’ petition is sufficient to state a claim for relief. We point out only that the trial court did not give the plaintiffs an opportunity to amend their petition, which had been filed only 31 days before the plaintiffs sought voluntary dismissal of their suit without prejudice. Moreover, the record shows that the defendant suffered no “plain legal prejudice” in this matter. Patterson v. Brouhard, 246 Kan. 700, 705, 792 P.2d 983 (1990). Finally, K.S.A. 60-241(a)(2) allows the trial court, in its discretion, to attach conditions to the order of dismissal, which prevents the defendant from being unfairly affected by a dismissal without prejudice.
Because the defendant will suffer no plain legal prejudice by the trial court dismissing the plaintiffs’ action without prejudice and because the trial court failed to balance the equities of the parties, the trial court abused its discretion in dismissing plaintiffs’ action with prejudice.
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Green, J.:
The State appeals the trial court’s decision granting Brian E. Kerestessy’s motion to suppress. On appeal, the State contends that the trial court erred by suppressing evidence obtained in a constitutional search of Kerestessy’s bus. We disagree. Accordingly, we affirm.
On February 2, 2008, Lyons Police Officer Cody Luck stopped a car driven by Kerestessy after Luck observed the driver making suspicious driving movements in an area where burglaries had occurred. Before approaching the car, Luck ran the car’s license tag information through dispatch and discovered the tag belonged to a different vehicle. After Luck stopped the car, he spoke with Kerestessy outside the car. After Luck and Kerestessy discussed the car’s registration, Luck asked Kerestessy if he could search the car. At the same time, Luck shined his flashlight into Kerestessy’s car and saw in plain view a pipe that Luck believed was used to smoke marijuana. Luck arrested Kerestessy and searched his person. Eventually, Kerestessy’s car was also searched. During these searches, officers found other items indicating drug use or manufacturing of drugs.
Because of the items found during Kerestessy’s arrest and because Kerestessy had been under investigation for manufacturing methamphetamine, Kansas Highway Patrol Trooper Mike Farmer and Rice County Sheriffs Department Sergeant Cody Goforth drove to Little River, Kansas, where Kerestessy lived. In Lithe River, the officers met with Michelle Konen. Konen and Kerestessy were not married, but the officers knew the couple had lived together for a few years and had children together.
The officers’ version of the events is as follows: The officers asked Konen for consent to search her and Kerestessy’s property. Konen asked the officers a few questions before eventually giving verbal and written consent to search. The written consent form used in this case included boxes that could be checked to indicate whether the person was giving consent to search his or her vehicle, residence, or business. On the form signed by Konen, Goforth checked the box next to “residence,” but then he wrote “& outbuildings & vehicles” and circled all the words. Goforth’s addition was made before Konen signed the form. The officers told Konen that they did not want to search the residence but wanted only to search die property, outbuildings, and vehicles. The officers specifically told Konen they wanted to search die bus on the property, and Konen knew the officers wanted to search it. The officers did not know in whose name the residence was deeded or who owned tide to the bus, and they did not ask for this information.
After the officers obtained Konen’s consent, they began their search with the bus, which was on the back part of the property and which was where the officers believed lab equipment might be contained. There was a dog on a leash tied to the entrance to the bus. The officers asked Konen if she would move the dog, and she did. Inside the bus, the officers found items used to manufacture methamphetamine. Konen was present during the search and did not ask the officers to stop searching.
Konen’s version of the events of that evening was slightiy different. She stated that she told the officers three times that she would not sign a consent-to-search form and that she wanted an attorney. When the officers asked to search the property, Konen was 6 months’ pregnant, and she said it was obvious she was pregnant. She said the police officers told her that they did not care that she was pregnant and that if they had to come back with a warrant they would take her to jail on the charges and her children would be put in foster care. The officers told Konen that if she signed the consent form, they would not charge her based on what they found. Although she stated that she did not read the consent form, which included an explanation of her rights, and the officers did not give her a chance to read it, Konen eventually decided to consent to the search. She drove to her home, where she met police officers and signed the consent form. Konen agreed that the police officers told her they did not want to search the residence but only wanted to search the property and outbuildings. She also stated that she watched as the police added to the form that they were searching the outbuildings and vehicles. Konen said the officers did not ask her who owned the house or any of the vehicles.
When the hearing on the motion to suppress was held, Konen had been living with Kerestessy for 10 years. The house she shared with Kerestessy was actually owned by Konen’s sister. Kerestessy had acquired the school bus and other vehicles after he met Konen, but Konen did not share ownership in them.
Witnesses who were present when Konen consented to the search testified that Konen initially denied the police’s request to a search. Nevertheless, tire police officers told Konen that if they had to go get a warrant, they would search the residence, too, and would charge her with everything they were charging Kerestessy with. They told her she would go to jail and lose custody of her children. It was only then that Konen left with the officers to go to her house.
Kerestessy was interviewed at the jail and was eventually charged with one count each of manufacture of methamphetamine, possession of methamphetamine, possession of anhydrous ammonia in an unapproved container, felony possession of drug paraphernalia, obstruction of official duty, possession of drug paraphernalia, driving an unregistered vehicle, and no drug tax stamp.
Kerestessy moved to suppress evidence and statements, and the State filed a response to the motions. Nevertheless, the motions and response do not appear in the record on appeal. The trial court held a hearing on the motions. Kerestessy requested that the court suppress all evidence, claiming it was illegally obtained. The trial court determined that the police officer had reasonable suspicion to stop Kerestessy. The court further determined that the officer then saw drug paraphernalia in plain view during the legal stop, which, combined with all the circumstances, gave him probable cause to arrest Kerestessy. The trial court also found that Kerestessy s statements made during interrogation were freely and voluntarily given. Therefore, the trial court denied that portion of Kerestessy’s motions to suppress.
Regarding Kerestessy’s motion to suppress the evidence found during the search of the property surrounding his and Konen’s home based on Konen’s consent, the trial court determined that although there was conflicting evidence, the State had met its burden of proof that Konen had voluntarily consented to the search. Nevertheless, the trial court determined that Konen did not have actual or apparent authority to consent to a search of the school bus. As a result, the trial court suppressed the evidence recovered from the bus.
The State filed this interlocutoiy appeal.
Did the Trial Court Err in Granting Kerestessy’s Motion to SuppressP
The State argues that the trial court erred in granting Kerestessy’s motion to suppress evidence obtained during the warrant-less search of the bus. When considering a trial court’s ruling on a motion to suppress evidence, this court reviews the factual findings underlying the trial court’s suppression decision by a substantial competent evidence standard, and the ultimate legal conclusion drawn from those factual findings is reviewed de novo. This court will not reweigh the evidence. State v. Fewell, 286 Kan. 370, 375-76, 184 P.3d 903 (2008).
Any warrantless search is per se unreasonable unless it falls within one of the exceptions to the search warrant requirement recognized in Kansas. State v. Fitzgerald, 286 Kan. 1124, 1127, 192 P.3d 171 (2008). Consent is one of the exceptions to the warrant requirement. State v. Thompson, 284 Kan. 763, 776, 166 P.3d 1015 (2007).
In this case, the State points out that the officers were relying on Konen’s consent to validate their warrantless search of the school bus. The prohibition against warrantless searches does not apply when voluntary consent has been obtained from the individual whose property was searched or from a third party who pos sesses common authority over the premises. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006). Nevertheless, the trial court determined that although Konen voluntarily consented to the search, Konen did not have common authority or apparent authority to consent to the warrantless search of the bus.
“The State has the burden of estabhshing the scope and voluntariness of the consent to search." Thompson, 284 Kan. at 776; see also Illinois v. Rodriguez, 497 U.S. 177, 181, 111 L. Ed. 2d 148, 110 S. Ct. 2793 (1990) (The government bears the burden of establishing the effectiveness of a third party’s consent.). “These questions present issues of fact which appellate courts review to determine if substantial competent evidence supports the trial court’s findings. [Citation omitted.]” Thompson, 284 Kan. at 776. “Substantial evidence is evidence that possesses both relevance and substance and that furnishes a substantial basis of fact from which the issues can reasonably be resolved. [Citation omitted.]” Wilkins v. State, 286 Kan. 971, 980, 190 P.3d 957 (2008).
Common Authority
The State first argues that the trial court erred in applying a common authority analysis to determine whether Konen had the authority to consent to the search of the residence, outbuildings, and vehicles. The State further contends that the trial court should have limited its analysis to whether Konen had the apparent authority to consent to the search of the school bus. A party other than a defendant may give valid consent, including “a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171, 39 L. Ed. 2d 242, 94 S. Ct. 988 (1974). “Common authority” is defined as
“mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” Matlock, 415 U.S. at 171 n.7.
Contrary to the State’s argument, the trial court correctly utilized both analyses in finding whether the search of the bus was valid. The trial court first considered whether Konen had authority to consent to the common areas she shared with Kerestessy. The court determined that Konen had authority to consent to a search of the house and garage she shared with Kerestessy. Nevertheless, the trial court determined that Konen did not have common authority over the school bus because she did not own it; she had never been in it nor did she know what was in it; it was located away from the property; and it had a guard dog on a leash outside the door to the school bus.
The State does not argue that Konen had common authority, allowing her to consent to a search of the school bus. Instead, the State argues that the trial court should have only applied the apparent authority analysis. Nevertheless, a court employs the apparent authority analysis when there is no actual authority. So the trial court did not err in first attempting to determine whether Konen had actual authority to consent to a search of the school bus, by analyzing whether she, as a nonowner of the searched property, possessed common authority over the property. See Porting, 281 Kan. at 324. Moreover, the State does not challenge the trial court’s finding that the evidence is insufficient to establish that Konen had actual common authority to consent to a search of the school bus.
Apparent Authority
The State challenges the trial court’s finding that Konen lacked apparent authority to consent to a search of the bus. “Under the apparent authority rule, a consent to search is valid when the facts available to the officer would warrant a person of reasonable caution to believe that the consenting party had authority over the premises to be searched.” Porting, 281 Kan. at 328 (citing Rodriguez, 497 U.S. at 188-89). Whether the facts presented when the search is conducted would “warrant a man of reasonable caution” to believe the third party has common authority over the property depends upon all of the surrounding circumstances. Rodriguez, 497 U.S. at 188. Where the circumstances presented would cause a person of reasonable caution to question whether the third party has mutual use of the property, “warrantless entry without further inquiry is unlawful[.]” Rodriguez, 497 U.S. at 188-89.
In addition, other courts have recognized an officer’s duty to inquire in ambiguous situations. See United States v. Kimoana, 383 F.3d 1215, 1222 (10th Cir. 2004) (“[W]here an officer is presented with ambiguous facts related to authority, he or she has a duty to investigate further before relying on the consent.”); United States v. Rosario, 962 F.2d 733, 738 (7th Cir. 1992) (Rodriguez “suggests that in the absence of sufficient facts, officers have a duty to seek further information in order to determine whether they may reasonably infer that the inviter has the necessary authority to consent to an entry or search of the premises.”); United States v. Whitfield, 939 F.2d 1071, 1075 (D.C. Cir. 1991) (Government’s burden to prove consent “cannot be met if agents, faced with an ambiguous situation, nevertheless proceed without making further inquiry.”).
The State contends that Konen had apparent authority because the officers believed she had authority to consent. The apparent authority rule applies when the searching officers make a mistake of fact, not when they make a mistake of law. Porting, 281 Kan. at 328. The State argues that this case involved the officers’ mistake of fact, as the officers believed Konen had apparent authority over the bus. The State contends that if the facts were as the officers believed them to be, the search was valid.
The State’s argument is flawed. The test is not whether the officers thought Konen had the apparent authority to consent. Rather, the test is whether a person of reasonable caution, having the same facts that the officers had, would believe Konen had mutual use of the school bus or any legal interest in the school bus, which would have given rise to apparent authority to consent to a search of the bus. In other words, would the officer have had a valid consent to search if the facts were as he or she reasonably believed them to be? See Porting, 281 Kan. at 328 (Officer was not mistaken about the facts, but reached an erroneous legal conclusion based on the facts.).
The trial court made findings of fact that Konen did not have the apparent authority to consent to a search of the bus. Therefore, this court will review the trial court’s findings to determine if they are supported by substantial competent evidence as required by our standard of appellate review. See Thompson, 284 Kan. at 776.
In outlining its findings of fact that Konen did not have the apparent authority to consent to a search of the bus, the trial court stated as follows:
“The bus was away from the home, on the properly and had a guard dog on [a] leash in front of the bus. The officers never made any attempt to determine who was the owner of this vehicle. Ms. Konen’s testimony and the only evidence presented was she was not the owner of the vehicle, she did not know what was in the bus and had never been in there. She stated that was her husband[’]s and she was not involved in being in or around the bus. The officer’s testimony was they never made any effort to look and determine who owned the bus but went ahead and searched this based upon the consent to search form. The court finds Ms. Konen had no authority to consent to the search of the bus. The court finds the apparent authority does not extend that far to cover the bus, based on the facts presented.”
As set forth in the trial court’s factual findings, the facts available to the officers failed to estabhsh that a person of reasonable caution would believe that Konen had authority over the premises to be searched. Moreover, the officers never made any attempt to ascertain whether Konen had “mutual use” of the school bus or whether she had any sort of legal interest in the school bus.
This is not, as the State contends, a case where the officers misunderstood the facts. The State argues that this case is similar to Rodriguez, where officers searched the defendant’s apartment after the defendant’s girlfriend told officers she lived at the apartment and used her key to unlock the door before giving officers permission to search the apartment, in which she kept her clothes and furniture. Unbeknownst to the officers, the girlfriend had moved out of the apartment weeks earlier and did not have actual authority to consent to the search. The United States Supreme Court determined that the officers could rely on their mistake of fact because if the facts were as they believed them to be, the girlfriend would have had the apparent authority to consent. 497 U.S. at 186-89.
Thus, the issue here is not whether these officers thought Konen had the apparent authority to consent, but whether a reasonable person given the information the police had in this case would believe Konen had “mutual use” of the school bus or a legal interest in the school bus, which would give rise to apparent authority to consent to a search of the bus.
According to the State, it was reasonable to believe that Konen had the apparent authority to consent to a search of the bus because the officers knew that Konen and Kerestessy were a “couple” and that they had been a couple and had shared the premises for some length of time. Our Supreme Court has found a marital relationship is a factor to consider when determining whether a person has common authority over property. Porting, 281 Kan. at 327. The State also contends that the fact that the dog tethered outside the bus was a puppy and a family pet and was removed by either Konen or her friend shows it was reasonable to believe Konen had apparent authority to consent to a search of the bus. Moreover, the State maintains that the officers reasonably believed Konen had apparent authority because Konen was present and nearby during the search and did not object to the search of the bus or claim she had no authority over it.
Nevertheless, Konen was not obligated to object or to volunteer such information. See Porting, 281 Kan. at 327 (“The State had the burden to affirmatively show objective facts supporting [inviter’s] common authority.”); see also United States v. Waller, 426 F.3d 838, 849 (6th Cir. 2005) (“Deliberate ignorance of conclusive ownership of the suitcase does not excuse the warrantless search of the suitcase, especially when actual ownership could easily have been confirmed.”).
In addition, Konen’s and Kerestessy’s marital-like relationship, without further inquiry, did not show that Konen had mutual use of the school bus. Although Konen’s removing the dog from outside the bus might weigh in favor of her having apparent authority over the bus, the fact that the officers needed the dog to be removed before they could enter the bus could be considered evidence that Kerestessy did not want other people, including Konen, entering his bus. Moreover, the trial court considered the dog, which Konen described as a pit bull, to be a guard dog and found it weighed against Konen having apparent authority to consent to a search of the school bus.
Finally, the State challenges the trial court’s reliance on the location of the bus as support for its decision that Konen did not have apparent authority to consent to a search of the bus. The State argues that the trial court erred in stating the bus was away from the property because one of the police officers testified that the bus was northeast of the residence, directly east of the garage on the north side of the property, and other officers just testified that the bus was behind the house. The State argues that this supports its argument that the bus was on the premises and under the authority of Konen, as a resident. The trial court, however, determined that the location of the bus weighed against Konen having common authority over the bus.
To support its argument, the State cites State v. Basurto, 15 Kan. App. 2d 264, 266, 807 P.2d 162, aff'd 249 Kan. 584, 821 P.2d 327 (1991), in which this court dealt with a question ofwhether a police officer’s search of a detached shed was proper when the officer was executing a search warrant that described only the residence. This court held that the search was proper under the warrant because the shed was within the curtilage. 15 Kan. App. 2d at 269. The court also mentioned that it would be proper to search any vehicle within the curtilage of a residence described in a search warrant. 15 Kan. App. 2d at 269. The State argues, therefore, that the school bus was within the curtilage of the home, so Konen’s consent was valid as to it.
Nevertheless, Basurto involved a search executed under a search warrant and not a claim of authority, whether actual or apparent, to consent to a search on behalf of an absent nonconsenting person with whom the property was shared. The location of the bus has a different bearing on whether it could be assumed to be property commonly shared with others residing in the home rather than on whether it was included in a search warrant obtained by probable cause. See Matlock, 415 U.S. at 171 n.7 (stating that common authority is not implied by property interests but rests on mutual use of the property by those who have joint access or control for most purposes, “so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched”). The trial court did not err in relying on the school bus being located away from the home when considering whether Konen had apparent authority to consent to its search. Upon the facts presented, there is substantial competent evidence to support the trial court’s finding that Konen did not have the apparent authority to consent to a search of the school bus.
In applying the previously mentioned legal principles to the present case, we determine that the circumstances surrounding the search of the bus failed to show that the school bus was subject to “mutual use” by Konen. Although an officer could have reasonably believed that Konen showed some level of control over the school bus, common authority rests “on mutual use of property by persons generally having joint access or control for most purposes.” Matlock, 415 U.S. at 171 n.7. Here, the officers did not ask any questions to determine whether Konen had “mutual use” of the school bus or whether she had any legal interest in the school bus. As a result, the officers’ warrantless entry into the school bus without further inquiiy was unlawful under the Fourth Amendment to the United States Constitution. Accordingly, the trial court properly suppressed the evidence obtained from the school bus.
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Pierron, J.:
In this employment termination case, Perkins, Smart & Boyd, Inc., (PSB) appeals the district court’s decision to affirm an arbitration award entered in favor of Jack W. Moreland. PSB argues the court erred in denying a motion to vacate the arbitration award because the arbitration panel manifestly disregarded or willfully ignored controlling Kansas law. PSB also argues tire court erred in granting sanctions and attorney fees in favor of Moreland. We vacate the sanctions but affirm the award.
For the most part, the parties do not dispute the controlling facts in this case. Rather, the issues involve questions of law and application of the law by the arbitration panel.
In October 2006, Moreland worked for PSB, an investment firm. PSB terminated Moreland upon allegations that he forged the names of his wife, son, and daughter on a letter of instruction to a mutual fund company in order to redeem fund shares from a trust set up for their benefit.
Both Moreland and PSB were subject to the rules and regulations of the Financial Industry Regulatoiy Authority (FINRA). Upon his termination, PSB was required to submit a Form U-5 to FINRA indicating the reasons for termination. PSB filed the Form U-5 on October 27, 2006. On the Form U-5, PSB gave the following reason for Moreland’s termination:
“Mr. Moreland had a notary public notarize signatures of his wife, son and daughter that he had forged. This is conduct that is inconsistent with standards of this firm. The document that he signed was a letter to a mutual fund redeeming fund shares from a trust that was set up by his deceased mother-in-law for the benefit of Mr. Moreland and [his] children.”
Moreland was outraged with the allegation of forgery and immediately voiced his concerns to PSB. Mrs. Moreland and her children told PSB they had in fact signed the letter and confirmed this in affidavits filed in November 2006. On October 27, 2006, and November 1, 2006, F. Scott Perkins, president/CEO of PSB, entered Registration Comments with FIRNA stating respectively: “I incorrectly stated in my comments that Mr. Moreland’s deceased set up a trust for ‘Mr. Moreland and his children’. It should have said ‘for Mr. Moreland’s wife and children.’ ” PSB also wrote: “I had put that Mr. Moreland was permitted to resign. The reasons listed are not true. There was no forgery involved.”
On April 24, 2007, Moreland filed a claim with National Association of Securities Dealers (NASD), now FINRA, alleging that as a result of the statements made in PSB’s Form U-5, he had been turned down for employment by multiple insurance companies and brokerage firms. Moreland stated the signatures on the letter were not forged. But he had persuaded/asked the notary public to notarize the letter without the signatories present. Moreland alleged claims of defamation, violation of the Kansas Uniform Trade Practices Act, tortious interference with business expectancy, and false hght/invasion of privacy. Moreland requested no less than $100,000 in damages, expungement of the statement, punitive damages, and attorney fees. PSB denied any wrongdoing and pled several affirmative defenses, including privilege.
PSB and Moreland were required to submit to arbitration on Moreland’s claim. The parties agreed on a three-person arbitration panel, and the matter was submitted to the panel during an evidentiary hearing September 3-5, 2008. Both Moreland and PSB submitted briefs and argued the law and facts to the panel. After consideration of the presentation, the panel granted an award in favor of Moreland. The panel specifically found that “[Moreland] was not involved in the alleged forgery and that such allegation was false. The issue was not disputed as evidenced by [PSB’s] attempted retraction soon after the event.” The panel awarded $65,000 in compensatory damages to Moreland and also reimbursement for the filing fee. The panel also granted Moreland’s request for expungement of language in the Form U-5 concerning the forgery and that the form should indicate Moreland’s termination was voluntary. The panel stated: “The recommended expungement is based on the defamatory nature of the information.” The panel denied PSB’s counterclaims and indicated that “[a]ny relief not specifically enumerated, including punitive damages and attorneys’ fees, is hereby denied with prejudice.” The panel assessed $6,000 in arbitration fees to PSB.
On December 8, 2008, PSB filed a motion to vacate the arbitration award in district court. PSB alleged that absolute privilege barred Moreland’s claims in total and, alternatively, that qualified privilege required a finding that PSB acted with actual malice, had knowledge that a statement was false, and acted with either evil-mindedness or a specific intent to injure. PSB argued that the panel made no findings concerning privilege and that “having knowledge of the controlling law, manifestly ignored it and exceeded their authority by granting relief to [Moreland].” Moreland filed a motion in opposition to PSB’s motion to vacate and also a motion to confirm the arbitration award.
The district court denied PSB’s motion to vacate. The court stated that it could not substitute its judgment for that of the arbiters with regard to the determination of the facts. The court stated there was no indication, nor did PSB raise any allegations, that the award was procured by fraud or corruption. The court found the issue of privilege was completely briefed for the panel, the arbitration panel considered PSB’s claim of privilege, and “[w]hile the term 'privilege’, whether qualified or absolute, was not used in the award, there is no indication that the arbiters had complete indifference to the law.” The court awarded $750 in attorney fees to Moreland. The court later denied PSB’s motion to alter or amend.
PSB appeals.
The Kansas Uniform Arbitration Act (Act), K.S.A. 5-401 et seq., permits an appeal from an order confirming or vacating an arbitration award, pursuant to K.S.A. 5-418(a). K.S.A. 5-418(b) provides: “The appeal shall be taken in the manner and to the same extent as from orders or judgments in a civil action.”
On appeal, an appellate court’s standard of review of an arbitration award is highly deferential and the court must affirm an award if the arbitrator acted within the scope of her or his authority. As long as errors are not in bad faith or so gross as to amount to affirmative misconduct, the appellate court is bound by an arbitrator’s findings of fact and conclusions of law. City of Coffeyville v. IBEW Local No. 1523, 270 Kan. 322, 336, 14 P.3d 1 (2000). An arbitrator is not required to provide the reasons for his or her award. Griffith v. McGovern, 36 Kan. App. 2d 494, 500, 141 P.3d 516 (2006). The district court must presume an award is valid unless one of the specific grounds in K.S.A. 5-412(a) is proven. Alexander v. Everhart, 27 Kan. App. 2d 897, 900-01, 7 P.3d 1282, rev. denied 270 Kan. 897 (2000).
K.S.A. 5-412(a) sets forth five limited circumstances in which an arbitration award must be vacated:
“(1) The award was procured by corruption, fraud or other undue means;
“(2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party;
“(3) The arbitrators exceeded their powers;
“(4) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefore or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of K.S.A. 5-405, as to prejudice substantially the rights of a party; or
“(5) There was no arbitration agreement and the issue was not adversely determined in proceedings under K.S.A. 5-402 and the party did not participate in the arbitration hearing without raising the objection;
“But the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.”
PSB does not argue any of those circumstances apply here.
In determining the question raised in the present case, it is helpful to review some general comments by the court in Coleman v. Local No. 570, 181 Kan. 969, 975-76, 317 P.2d 831 (1957), concerning the sanctify, deferential nature, and judicial economy of arbitration:
“Arbitration awards, which courts regard as valid and suitable for judicial enforcement, are neither contract nor judgment but partake of the nature of both. The award partakes of the nature of a contract because it is the result of a contract, the submission agreement, whereby the parties agree to comply with the award. It differs from a contract in that it is the act of the arbitrators, not of the parties themselves. It partakes of the nature of a judgment in that, if it is valid, it is binding upon them though imposed by an outside source.
“The dual nature of the award serves to explain the limited grounds on which it may be successfully impeached. In general it may be said that the ground urged must be good, both for attack upon a judgment and for relief against the terms of a contract. But, certain grounds that would be sufficient in an appeal from a judgment would not be grounds for impeaching an award, for the reason that the contractual element is present in the award. Thus, the fact that the arbitrator made erroneous rulings during the hearing, or reached erroneous findings of fact from the evidence, is no ground for setting aside the award, because the parties have agreed that he should be the judge of the facts. Even his erroneous view of the law would be binding, for the parties have agreed to accept his view of the law. Were it otherwise . . . , arbitration would fail of its chief purpose; instead of being a substitute for litigation, it would merely be the beginning of litigation. Error of law renders the award void only when it would require the parties to commit a crime or otherwise to violate a positive mandate of the law. [Citation omitted.]
“Judicial intervention is ill-suited to the special characteristics of the arbitration process in labor disputes.”
See Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. 683, 689, 751 P.2d 122 (1988).
The Tenth Circuit has stressed this very limited standard of review. Durkin v. CIGNA Prop. & Cas. Corp., 986 F. Supp. 1356, 1357-58 (D. Kan. 1997) (citing ARW Exploration Corp. v. Aguirre, 45 F.3d 1455, 1463 [10th Cir. [Okla.] 1995]); see also Brown v. Coleman Co., Inc., 220 F.3d 1180, 1182 (10th Cir. (Kan.) 2000). “ ‘Maximum deference is owed to the arbitrator s decision,’ and the standard of review ‘is among the narrowest known to law.’ ” Durkin, 986 F. Supp. at 1357; see Bowen v. Amoco Pipeline Co., 254 F.3d 925, 932 (10th Cir. (Okla.) 2001). Therefore, once an arbitration award is entered, the finality that courts should afford the arbitration process weighs heavily in favor of the award, and courts must exercise great caution when asked to set aside an award. Moreover, “[b]ecause a primary purpose behind arbitration agreements is to avoid the expense and delay of court proceedings, it is well settled that judicial review of an arbitration award is very narrowly limited.” ARW Exploration Corp., 45 F.3d at 1463 (quoting Foster v. Turley, 808 F.2d 38, 42 [10th Cir. [N.M.]1986]).
PSB claims Kansas courts have recognized nonstatutory grounds for vacating an arbitration award where an applicant demonstrates the arbitrator’s award is in manifest disregard of the law. Griffith, 36 Kan. App. 2d at 499 (citing Jackson Trak Group, 242 Kan. at 689); see Sheldon v. Vermonty, 269 F.3d 1202, 1206 (10th Cir. 2001) (violation of public policy, manifest disregard of the law, and denial of a fundamentally fair hearing). An arbitrator’s manifest disregard of the law occurs when the arbitrator knew of a governing legal principle yet refused to apply it. This exception does not apply when an arbitrator simply misinterprets the law. See Jackson Trak Group, 242 Kan. at 689; ARW Exploration Corp., 45 F.3d at 1463. However, PSB does not cite any Kansas case, nor did we discover any, where the arbitration award was actually overturned for a manifest disregard of the law. See Griffith, 36 Kan. App. 2d at 500; Dunn v. A.G. Edwards & Sons, Inc., 2007 WL 2767997, at *7 (Kan. App. 2007) (unpublished opinion) (“the Dunns have failed to demonstrate the arbitrator manifestly disregarded the law in calculating damages, and we conclude the district court did not err in confirming the award”). Courts must tread lightly in the area of manifest disregard of the law. The statutory mandate of K.S.A. 5-412(a) indicates the legislature’s clear intention to not permit a court to vacate or refuse to confirm an award even if the relief “could not or would not be granted by a court of law or equity.”
In short, even though the limited scope of review of what could appear to be very odd arbitration awards might cause cold shivers to go down the spines of reviewing courts, highly limited review is the law.
We now turn to PSB’s contention that it is entitled to absolute privilege regarding the statements it made in Moreland’s Form U-5. Indeed, to prevail in this appeal, considering the applicable statutory and case law, that appears to be its only potential avenue for success. Without absolute privilege, the arbitrator’s findings of fault on PSB’s actions are dispositive.
PSB argues the arbitration panel manifestly disregarded or was willfully ignorant of controlling Kansas law on absolute privilege concerning reports such as Form U-5. As we will set out below, we believe PSB is incorrect on this issue concerning both statutory law and case law.
PSB maintains the filing of the Form U-5 is absolutely privileged. PSB cites other instances of absolute privilege. See Jarvis v. Drake, 250 Kan. 645, 830 P.2d 23 (1992) (attorney discipline proceedings); Schulze v. Board of Education, 221 Kan. 351, 559 P.2d 367 (1977) (school board); Clear Water Truck Co. v. M. Bruenger & Co. Inc., 214 Kan. 139, 519 P.2d 682 (1974) (Interstate Commerce Commission); Thompson v. Amis, 208 Kan. 658, 493 P.2d 1259, cert. denied 409 U.S. 847 (1972) (administrative board); Gawith v. Gage’s Plumbing & Heating Co., Inc., 206 Kan. 169, 476 P.2d 966 (1970) (administrative board); Ellis v. Isoray Medical, Inc., 2008 WL 3915097 (D. Kan. 2008) (unpublished opinion) (unemployment compensation).
PSB argues that because of the Form U-5’s compulsory nature, its role in the NASD’s quasi-judicial process, and with the protection of public interests in mind, the courts in New York have concluded that statements made by an employer on the form should be subject to an absolute privilege. See Rosenberg v. MetLife, Inc., 493 F.3d 290 (2d Cir. (N.Y.) 2007); Pierre v. JP Morgan Chase Bank, 2008 WL 3157330 (S.D.N.Y. 2008) (unpublished opinion); Rosenberg v. MetLife, Inc., 8 N.Y.3d 359, 866 N.E.2d 439, 834 N.Y.S.2d 494 (2007); Barclays Capital Inc. v. Shen, 857 N.Y.S.2d 873, 20 Misc. 3d 319 (2008). However, this position is clearly the minority.
The majority of courts addressing the issue of whether statements on arbitration Form U-5 are privileged have held that statements on Form U-5 are entitled only to a qualified privilege. See Dawson v. New York Life Ins. Co., 135 F.3d 1158 (7th Cir. (Ill.) 1998); Glennon v. Dean Witter Reynolds, Inc., 83 F.3d 132 (6th Cir. (Tenn.) 1996); Baravati v. Josephthal, Lyon & Ross, Inc., 28 F.3d 704, 708 (7th Cir. (Ill.) 1994) (“the [employer] has a qualified privilege to defame the employee on the U-5”); Fahnestock & Co., Inc. v. Waltman, 935 F.2d 512, 516 (2d Cir. (N.Y.) 1991) (employers statements on amended Form U-5 were subject to qualified privilege); Boxdorferv. Thrivent Financial for Lutherans, 2009 WL 2448459 (S.D. Ind. 2009) (unpublished opinion); Shanklin v. Columbia Management Advisors, L.L.C., 2008 WL 4899631 (S.D. Tex. 2008) (unpublished opinion); Wietecha v. Ameritas Life Ins. Corp., 2006 WL 2772838 (D. Ariz. 2006) (unpublished opinion); Dickinson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 431 F. Supp. 2d 247 (D. Conn. 2006); Prudential Securities, Inc. v. Dalton, 929 F. Supp. 1411 (N.D. Olda.1996); Haburjak v. Prudential Bache Securities, Inc., 759 F. Supp. 293 (W.D.N.C. 1991); Eaton Vance Distributors, Inc. v. Ulrich, 692 So. 2d 915 (Fla. Dist. Ct. App. 2d Dist. 1997).
In 1995, Anne H. Wright, in Wright Form U-5 Defamation, 52 Wash. & Lee L. Rev. 1299, 1330 (1995), debated the issue of ab solute verse qualified privilege in tire context of Form U-5 defamation and concluded with these words:
“As tire Seventh Circuit noted in Baravati, an absolute privilege is ‘strong medicine,’ and a compelling case has not been made for extending the privilege beyond the judicial and quasi-judicial context into the area of Form U-5 reporting, especially given the abuses that have sometimes occurred with respect to such reporting. Given the possibility of such abuses and tire very serious damage that improper Form U-5 reporting can do to individuals’ business reputations and employment prospects, immunizing broker-dealers from all liability for defamatory Form U-5 statements would afford insufficient protection to the reputational interest of individuals employed in the securities industry. Any response to Form U-5 defamation concerns must balance these reputational interests, securities regulators’ need for accurate and complete information about the movements of problem representatives, and broker-dealers’ desire for protection against civil liability for good-faith errors in Form U-5 reporting. To achieve such a balance, Form U-5 statements should enjoy only qualified protection from defamation liability.”
PSB argues the only way the arbitration panel could have awarded Moreland damages is if it disregarded what it claims to be Kansas’ clear controlling law of absolute immunity and all of Moreland’s claim should have been dismissed except for the expungement. PSB contends that all statements made and collected in the FINRA process which relate to the proceeding are absolutely immune from claims flowing from the statements, including defamation, libel, and invasion of privacy.
We disagree and side with the majority of the courts addressing this issue. We hold the statements by PSB in the Form U-5 were entitled to a qualified privilege at most, both under case law, and even more importantly, under Kansas statutory law.
A qualified privilege exists with respect to business or employment communications made in good faith and between individuals with a corresponding interest or duty in the subject matter of the communication. Turner v. Halliburton Co., 240 Kan. 1, 8, 722 P.2d 1106 (1986). Further, “ ‘[w]here a defamatory statement is made in a situation where there is a qualified privilege the injured party has the burden of proving not only that the statements were false, but also that the statements were made with actual malice — with actual evil-mindedness or specific intent to injure.’ ” Turner, 240 Kan. at 8 (quoting Munsell v. Ideal Food Stores, 208 Kan. 909, 920-21, 494 P.2d 1063 [1972]).
Moreland argues PSB’s motion to vacate must be denied because the arbitration panel could have imposed liability on PSB and awarded damages on any of his claims. Moreland cites Dunn, 2007 WL 2767997. However, Dunn does not involve the claims of privilege as in the present case. Rather, Dunn involved an investor suing an investment firm for making untrue statements or omissions of material fact in conjunction with the sale of securities in a retirement account. The Dunns claimed violations of the Kansas Securities Act and the Kansas Consumer Protection Act, common-law fraud, negligence, negligent misrepresentation, and breach of fiduciary duty. The arbitrator awarded the Dunns only $10,000, and they contended the arbitrator manifestly disregarded the law by not awarding damages pursuant to the Kansas Securities Act. The arbitrator’s award was silent on its method of calculation, and the Dunn court held:
“It is possible the arbitrator’s award in this case was based upon a finding the defendants violated the Kansas Securities Act, thus requiring an award of damages under the Act’s mandatory damages provision. We need not vacate the award, however, because it is equally possible the award may have been based upon at least three other grounds asserted by the Dunns which did not encompass their claim under the Securities Act. As such, the Dunns have failed to demonstrate the arbitrator manifestly disregarded the law in calculating damages, and we conclude the district court did not err in confirming the award.” 2007 WL 2767997, at *7.
Moreland compares the arbitration award in this case to the functional and legal equivalent of a general juiy verdict. Consequently, the arbitration award is valid as long as it is legally supportable on any one of the submitted grounds. See Griffin v. United States, 502 U.S. 46, 48, 116 L. Ed. 2d 371, 112 S. Ct. 466 (1991); Black v. Don Schmidt Motor, Inc., 232 Kan. 458, 474, 657 P.2d 517 (1983). Moreland argues the arbitration panel identified no single basis for its monetary award and that it strains logic and reason to contend that the panel’s specific mention of the defamatory language in the Form U-5 compels a conclusion that the panel silently rejected all of Moreland’s remaining claims.
The arbitrators are under no requirement to explain the award. See Griffith, 36 Kan. App. 2d at 500 (an arbitration panel is not required to set forth the reasons for its award citing Sheldon v. Vermonty, 269 F.3d 1202, 1207 n.6 [10th Cir. [Kan.] 2001]). When an arbitration panel does not give its reasons for the award, such as here, determining manifest disregard becomes nearly impossible. See Willemijn Houdstermaatschappij, BV v. Standard Micro, 103 F.3d 9, 12-13 (2d Cir. (N.Y.) 1997); O.R. Securities v. Professional Planning Assoc., 857 F.2d 742, 747 (11th Cir. [Ga.] 1988). He contends that a high percentage of arbitration awards do not contain an explanation of the decision. Moreland contends that even without the defamation claim, there was substantial evidence to support a monetaiy award on the basis of any of the other legal theories relied upon in his claim.
In Griffith, 36 Kan. App. 2d 494, Griffith filed an arbitration claim with the National Association of Securities Dealers (NASD) against McGovern and his investment firm arguing that she was defrauded when she lost money after switching from certificates of deposit to stocks and bonds. Griffith claimed violations of the Kansas Securities Act, negligence, breach of contract, violation of NASD and Exchange Rules, and breach of fiduciary duty. An arbitration panel granted an award of $3,000 in compensatory damages to Griffith. The district court denied the motion to vacate.
The Griffith court rejected Griffith’s claims of failure to disclose and fraud of one of the arbitrators concerning an unsatisfied judgment and previous litigation. 36 Kan. App. 2d at 497-98. In addition to these claims, Griffith alleged that the arbitration panel irrationally and manifestly disregarded the Kansas Securities Act and that the award should have been vacated. Griffith claimed $213,340 in damages, but the arbitrators awarded $3,000 without disclosing the manner of their calculation. After citing the principle that arbitrators are not required to give reasons for the award, the Griffith court held as follows:
“As the district court noted, the arbitrators may or may not have considered the Kansas Securities Act in determining Griffith’s damages. Nevertheless, the burden was upon Griffith to prove a basis for setting aside the award. Because the arbitration panel did not make any statements regarding the law, Griffith cannot show the arbitration panel manifestly disregarded the Kansas Securities Act. Accordingly, the district court did not err by finding the arbitration panel did not manifestly disregard the law.” 36 Kan. App. 2d at 500.
Moreland argues the arbitration panel heard and rejected PSB’s claim that the Form U-5 was subject to absolute privilege and now PSB dresses up its argument in the guise of a claim that the panel’s decision was in manifest disregard of the law. Moreland makes this claim based on the arbitration panel’s statement that it had considered all the pleadings, testimony, and evidence and after granting Moreland an award stated: “Amy relief not specifically enumerated, including punitive damages and attorneys’ fees, is hereby denied with prejudice.”
The arbitrators would seem to have clearly considered PSB’s claims of privilege in rendering their decision. The district court stated: “The award states that the panel considered the claims made by the parties, including privilege. . . . While tire term ‘privilege’, whether qualified or absolute, was not used in the award, there is no indication that the arbiters had complete indifference to the law.” PSB has the burden to prove a basis for setting aside the award. Because the arbitration panel did not make any statements regarding the law, PSB cannot show the arbitration panel manifestly disregarded the law of privilege.
The court in Van Pelt v. UBS Financial Services, Inc., 2007 WL 2997598, (W.D.N.C. 2007) (unpublished opinion), considered employment, privilege, and arbitration facts under Form U-5 and FINRA similar to the case at bar. The Van Pelt court held:
“A party making a claim based on manifest disregard shoulders a heavy burden. A panel’s interpretation of the law will not be reversed unless there is a clear showing that the panel understood the law and chose to ignore it. A court’s belief that the law has been misapplied ‘does not justify vacation of the arbitral award.’ Remmey, 32 F.3d at 149. The Court finds nothing on the face of the award which would show that the panel was aware of the law, understood it correctly, and found it applicable to the case, and yet chose to ignore it in the decision. At best, the award of compensatory damages and finding of defamation is ambiguous. Since the panel was silent as to its reasoning for the compensatory damages, UBS cannot meet its burden of showing that the panel manifestly disregarded the law, and the award cannot be vacated on this ground.” 2007 WL 2997598, at °5.
Kansas Statutory Law Concerning Absolute and Qualified Privilege
The parties and the district court focused on the case law in this area, and after consideration of their arguments and the court’s ruling, we have determined that only a qualified privilege is due to PSB under that case law.
However, our own post-oral argument research has convinced us that there is also a statutoiy basis for this position.
K.S.A. 17-12a507 reads:
“A broker-dealer, agent, investment adviser, federal covered investment adviser, or investment adviser representative is not liable to another broker-dealer, agent, investment adviser, federal covered investment adviser , or investment adviser representative for defamation relating to a statement that is contained in a record required by the administrator, or designee of the administrator, the securities and exchange commission, or a self-regulatoiy organization, unless the person knew, or should have known at the time that the statement was made, that it was false in a material respect or the person acted in reckless disregard of the statement’s truth or falsity.”
This is apparently taken from § 507 of the Uniform Securities Act. See Uniform Securities Act (U.L.A.) § 507, pp. 156-58 (2006).
It would appear the Kansas Legislature took the bull by the horns and the bear by the paws and statutorily set the level of immunity at “qualified” for these kinds of situations.
PSB was afforded a full and fair opportunity to present to the arbitration panel its argument that the statement that it placed on the Form U-5 was not actionable because it was subject to an absolute, if not qualified, privilege. The statutoiy grounds for vacating an arbitration award permit challenges on sufficiently improper conduct in the course of the proceedings; they do not permit rejection of the panel’s award based on disagreement with the particular result the arbitrators reached. Accordingly, parties are not entitled to a second bite at the apple simply because they desire a different outcome. Such a result would transform a binding arbitration process into a purely advisory step in the litigation process. The arbitration panel considered PSB’s arguments, including privilege, and implicitly rejected them. We conclude the arbitrators did the job they were told to do, and PSB has failed to show that the arbitrators failed to consider PSB’s claim of privilege or manifestly disregarded the law.
PSB also argues the district court erred in granting Moreland’s motion for sanctions and attorney fees against PSB. We agree.
The standard of review in these matters was clarified by our Supreme Court in Evenson Trucking Co. v. Aranda, 280 Kan. 821, Syl. ¶ 1, 127 P.3d 292 (2006): ‘When an appellate court reviews a district court’s decision to impose sanctions under K.S.A. 2004 Supp. 60-211, its function is to determine whether substantial competent evidence supports the trial court’s findings of fact that the statutory requirements for sanctions are present.” In Vondracek v. Mid-State Co-Op, Inc., 32 Kan. App. 2d 98, 104, 79 P.3d 197 (2003), the court noted the sanction under K.S.A. 2002 Supp. 60-211 “is generally utilized when a party files a claim based upon a legal theory that is clearly contrary to statute or case law.”
The factors to be considered in determining an appropriate sanction under K.S.A. 60-211 are enumerated as follows:
“(1) whether the improper conduct was willful or negligent;
“(2) whether it was part of a pattern of activity or an isolated event;
“(3) whether it infected the entire pleading or only one particular count or defense;
“(4) whether the person has engaged in similar conduct in other litigation;
“(5) whether it was intended to injure;
“(6) what effect it had on the litigation process in time or expense;
“(7) whether the responsible person is trained in the law;
“(8) what amount, given the financial resources of the responsible person, is needed to deter that person from repetition in the same case; and
“(9) what amount is needed to deter similar activity by other litigants. [Citation omitted.]” Wood v. Groh, 269 Kan. 420, 431, 7 P.3d 1163 (2000).
The district court considered a postaward letter sent to Morel- and stating:
“We’ve reviewed the opinion of the arbiter panel, and we’ve decided to challenge the decision in the courts. In light of the substantial cost of appeal, I’ve recommended that an effort be made to resolve this matter without judicial challenge. If your client has any interest in the alternative, please let me know.”
The district court found $750 in attorney fees to be in order and awarded those to Moreland. The journal entry awarding the attorney fees states: “The Court does not like the manner that the No vember 13, 2008 offer of settlement letter was written by counsel for Perkins, Smart & Boyd to counsel for Jack W. Moreland.” The judge explained his ruling further at the hearing on the motion to alter or amend and the perceived purpose of the November 13, 2008, letter:
“The purpose is - - It wasn’t for the reason that it was a settlement. It was basically a threat as I saw it. The record will speak for itself. If the litigation was continued, the defendant was going to make it as costly as possible for the plaintiff.
. . . It’s not clearly an offer of compromise. That letter was primarily an offer saying either take it or we’re going to make your life miserable.”
The district court’s journal entry on the motion to amend states: “The Court does not find that the letter from Perkins, Smart & Boyd’s counsel to Jack W. Moreland’s counsel as clearly an offer of compromise, but rather finds it to be an admission of Perkins, Smart & Boyd’s obligation to pay the October 20,2008, Arbitration Award and refusal to pay.”
PSB argues that it is being penalized for appealing the arbitration award and what it contends is a legitimate challenge to the defense of absolute immunity for quasi-judicial proceedings. PSB contends the district court did not analyze the nine-part test enunciated above. Moreland states that PSB did not raise the failure to discuss the nine-part test in the district court and should be precluded from raising it on appeal.
We find the letter could not be considered a naked threat sent only for the purpose of being an unreasonable threat to cause Moreland extra in litigation costs. PSB simply stated that it believed it had grounds for an appeal and asked if a settlement was possible.
While we have ruled in favor of Moreland on all issues, PSB’s arguments are not frivolous. We agree with the district court’s analysis that PSB’s case for appeal was weak. Had PSB, the district court, or the arbitration panel noted the devastating impact of K.S.A. 17-12a507 on what was PSB’s only real appealable issue, we might give more credence to the district court’s and Moreland’s position. However, absent this statute, PSB was able to argue with fairly good authority that it was entitled to absolute privilege which would have allowed it to checkmate the arbitrators’ award. Until that possibility was shown to be without basis, PSB’s intention to appeal could not be fairly categorized as the land of behavior that should incur sanctions. We therefore vacate the attorney fee award.
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Pierron, J.:
Raton Shaha appeals the district court’s denial of the relief requested in his K.S.A. 60-1507 motion. He alleges the court failed to follow K.S.A. 75-4351 et seq. in the appointment of an interpreter at the trial and the evidentiary hearing. Shaha also challenges the district court’s rejection of his ineffective assistance of counsel claim. Specifically, Shaha contends the district court erred in finding his counsel’s pretrial meetings with him were adequate. We affirm.
Shaha was charged in the alternative with rape and aggravated indecent liberties with a child and was convicted of aggravated indecent liberties with a child. The district court sentenced him to serve 77 months in prison. Shaha appealed his conviction, which was affirmed by this court in State v. Shaha, No. 89,964, unpublished opinion filed March 19, 2004, rev. denied 278 Kan. 851 (2004).
On March 14, 2005, Shaha filed a motion under K.S.A. 60-1507, alleging several instances of ineffective assistance of trial counsel, including counsel’s alleged failure to conduct adequate pretrial preparation with Shaha. Further, in his 60-1507 motion, Shaha directly challenged the trial court’s failure to insure that his interpreter was properly qualified under K.S.A. 75-4353. Following a nonevidentiary hearing with appointed counsel, the district court denied Shaha’s request for relief. In Shaha v. State, No. 95,676, unpublished Court of Appeals opinion filed May 25, 2007, this court affirmed the denial of the motion. However, in the order granting Shaha’s petition for review, the Kansas Supreme Court reversed and remanded the case for a full evidentiaiy hearing, with directions to address the issues raised in the motion as required by Supreme Court Rule 183(j) (2009 Kan. Ct. R. Annot. 251).
The district court held a hearing on May 16, 2008. Shaha; his trial interpreter, Manjur Alam; and his trial attorney, John Henderson, testified at the hearing. Following the hearing, the court again denied Shaha’s request for relief. Shaha appeals.
On appeal, Shaha challenges the district court’s rejection of his allegation that the trial court erred in failing to require compliance with K.S.A. 75-4353 before appointing an interpreter for Shaha in his criminal trial. Shaha also challenges the district court’s failure to require compliance with this statute at the evidentiary hearing on his K.S.A. 60-1507 motion. Finally, Shaha contends the district court erred in rejecting his claim of ineffective assistance of counsel with respect to counsel’s failure to conduct adequate pretrial meetings with Shaha and his failure to consistently meet with Shaha with an interpreter present.
District Court’s Failure to Comply with K.S.A. 75-4353
Shaha first contends that the district court erred in failing to conclude that his “claim regarding the failure of the interpreter to be statutorily vetted and deficient was a basis for a new trial. ” Shaha argues the record demonstrates Alam’s lack of qualifications, and Shaha suggests Alam’s lack of qualifications constituted structural error, requiring reversal of his conviction and a new trial.
Shaha concedes that this issue was first raised in his K.S.A. 60-1507 motion but contends the issue is properly before the court as resolution of the issue is necessary to serve the ends of justice or prevent the denial of a fundamental right. Shaha also contends that he had no ability to determine whether his interpreters were in terpreting correctly, which makes it incumbent upon the district court to ensure that the interpreter is qualified.
The standard cited by Shaha is appropriate for consideration of nonevidentiaiy issues raised for the first time on appeal. See State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008). However, Shaha’s challenge to the court’s appointment of Alam as his interpreter at trial was not raised in his direct criminal appeal but in his motion for habeas corpus relief under K.S.A. 60-1507. Where a trial error of constitutional stature is challenged in a motion under K.S.A. 60-1507, the movant must demonstrate exceptional circumstances that excused the failure to raise the issue in the direct criminal proceedings. Kansas Supreme Court Rule 183(c) (2009 Kan. Ct. R. Annot. 251); Trotter v. State, 288 Kan. 112, 125, 200 P.3d 1236 (2009) (noting distinction between raising an issue for the first time on appeal and raising the issue for the first time in a motion under K.S.A. 60-1507).
Here, Shaha has articulated no exceptional circumstances excusing his failure to raise the issue concerning Alam’s qualifications in his direct criminal proceedings. Importantly, with respect to the appointment of an interpreter, Shaha does not allege his trial counsel was ineffective in failing to object to the appointment of Alam. Nor does Shaha allege his appellate counsel was ineffective for failing to raise the issue in his direct criminal proceedings. Finally, Shaha does not allege that newly discovered evidence or an unforeseen change in circumstances or the law prevented him from perceiving the issue during his direct criminal proceedings. See Bledsoe v. State, 283 Kan. 81, 88-89, 150 P.3d 868 (2007). Therefore, the issue is not properly before this court in this collateral proceeding.
However, even if this issue were properly before us, we would find that the facts of this case clearly show that any error committed by the district court as alleged would not form a basis for the relief requested by Shaha. The appointment of an interpreter is governed by K.S.A. 75-4351 et seq. Construction of a statute is a question of law, over which an appellate court possesses unlimited review. State v. Jefferson, 287 Kan. 28, 33, 194 P.3d 557 (2008).
In applicable part, K.S.A. 75-4353(c) provides:
“In appointing a qualified interpreter for a person whose primary language is other than English pursuant to the provisions of K.S.A. 75-4351 et seq., and amendments thereto, the appointing authority shall appoint: (A) A qualified interpreter who meets the following criteria ....
(1) A general understanding of cultural concepts, usage and expressions of the foreign language being interpreted, including the foreign language’s varieties, dialects and accents;
(2) the ability to interpret and translate in a manner which reflects the educational level and understanding of the person whose primary language is other than English;
(3) basic knowledge of legal rights of persons involved in law enforcement investigations, administrative matters and court proceedings and procedures, as the case may be; and
(4) sound skills in written and oral communication between English and the foreign language being translated, including the qualified interpreter’s ability to translate complex questions, answers and concepts in a timely, coherent and accurate manner.”
Shaha correctly asserts that the district court failed to record its findings regarding these criteria for the interpreter it appointed at his trial as well as the interpreter appointed at the 60-1507 hearing. While the statute does not specifically mandate that the district court make its findings on the record, the better practice would be to articulate findings regarding each of these criteria to enable an appellate court to review those findings. See State v. Robinson, 281 Kan. 538, 546-47, 132 P.3d 934 (2006) (imposing requirement that findings regarding indigent defendant’s ability to pay BIDS attorney fees be placed on the record despite absence of specific statutory mandate).
Nevertheless, Shaha’s argument that the district court’s error is structural, requiring his conviction to be reversed and a new trial to be held, is not persuasive. The Kansas Supreme Court has found structural error in the absence of a necessary interpreter during a critical stage of the criminal proceedings. State v. Calderon, 270 Kan. 241, 253, 13 P.3d 871 (2000). However, the trial in Calderon is distinguishable from Shaha’s criminal trial because Shaha was provided with an interpreter throughout his criminal proceedings; he merely challenges the adequacy of his interpreter. See State v. Engelhardt, 280 Kan. 113, 124, 119 P.3d 1148 (2005) (limiting Calderon’s structural error analysis to the facts of that case).
“No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at eveiy stage of the proceeding must disregard any error or defect in the proceeding which does not affect die substantial rights of the parties.” K.S.A. 60-261.
Although the district court did not specifically address the criteria of K.S.A. 75-4353(c), the court asked the parties whether they had any questions regarding Alam’s qualifications. Defense counsel indicated that Alam was the only person that the defense could locate who was qualified to interpret and that Alam had been involved in the preliminary hearing. Defense counsel raised no objection during the pretrial motions hearing or at any time during trial. Consequently, appellate review of Shaha’s challenge to Alam’s adequacy as an interpreter is hampered by the lack of a record. Moreover, as mentioned, Shaha does not challenge the effectiveness of his counsel with respect to the failure to object to the interpreter’s lack of qualifications.
“Only if the defendant makes any difficulty with the interpreter known to the court can the judge take corrective measures. To allow a defendant to remain silent throughout the trial and then, upon being found guilty, to assert a claim of inadequate translation would be an open invitation to abuse.” Valladares v. United States, 871 F.2d 1564, 1566 (11th Cir. 1989); see also State v. Vasquez, 272 Kan. 692, 699, 36 P.3d 246 (2001) (rejecting a challenge to a translator for the first time on appeal as a basis for withdrawing a plea); State v. Crane, 260 Kan. 208, 218, 918 P.2d 1256 (1996) (“The purpose of requiring the objection is to allow the trial court to correct an error, if one occurred.”).
In the present case, the record reflects very few indications that Alam’s qualifications as an interpreter might be substandard. While Alam admitted that he possessed no prior experience as an interpreter, he indicated he spoke the language, “Bala,” well. Alam later testified that Bala was his native language and he possessed an adequate mastery of English. On two occasions, Alam stopped the examining attorney to request that the attorney rephrase a question because the concepts did not translate easily into Bala.
Appellate review of the adequacy of an interpreter is limited. Absent some contrary showing, courts presume that an interpreter exercising his or her official duties has acted properly. A showing that an interpreter has had some difficulty translating a question or response is not sufficient to rebut the presumption because courts have recognized that languages may not translate directly. A literal translation is not essential so long as the answers of the interpreter conveyed the same meaning expressed by the witness. State v. Pham, 234 Kan. 649, 663, 675 P.2d 848 (1984).
Shaha contends that Alam’s inadequacy as an interpreter was demonstrated by his performance during the trial, specifically: (1) Alam failed to begin interpreting until the prosecutor brought the district court’s attention to the fact that Alam was not interpreting and (2) Alam told Shaha that he would not continue to interpret if Shaha talked too much.
After Alam was sworn in at the pretrial motions hearing, the district court requested that the attorneys make a record of Shaha’s ability to understand English. Henderson expressed his belief that Shaha spoke very little English and an interpreter was essential. At this point, the prosecutor noted that Alam was not interpreting.
Under the circumstances, Alam’s failure to begin interpreting for Shaha during the pretrial motions hearing did not establish Alam’s inadequacy as an interpreter. Because the district court indicated that it wished to address Shaha’s ability to understand English, Alam might understandably have believed that he was not expected to begin interpreting. Moreover, the passage of time between Alam’s oath as an interpreter and the prosecutor’s comment was very brief, the intervening discussion involved only arguments by the attorneys regarding the necessity of an interpreter, and Shaha was not prejudiced by his inability to understand this portion of the proceedings because the district court ultimately appointed Alam to interpret. Alam’s failure to interpret that brief part of the proceedings neither deprived Shaha of substantial justice nor reflected any language deficiency on Alam’s part.
In the evidentiary hearing on Shaha’s K.S.A. 60-1507 motion, Shaha testified that Alam told him not to speak too much and threatened to stop interpreting if Shaha continued to talk too much. Shaha did not provide the context for these alleged comments by Alam; however, because Shaha stated that he wanted Alam to object, the challenged comments presumably occurred during the trial. An interpreter’s admonition to a criminal defendant who is interfering with the interpreter’s performance of his or her duty by asking questions or making requests of the interpreter does not necessarily reflect inadequate interpretation. Without more evidence from Shaha, this court cannot determine whether his allegations, if true, demonstrated improper conduct by the interpreter.
Alam also testified at the evidentiary hearing. Although he did not specifically refute Shaha’s allegations regarding the admonition to avoid talking, Alam indicated that he was able to communicate effectively with Shaha and believed that Shaha was cooperative with the defense. Alam further stated that Shaha never indicated that Alam’s services were inadequate.
Even if Alam presented Shaha with an ultimatum as suggested by Shaha, Shaha fails to explain how Alam’s conduct prejudiced his substantial rights. Shaha does not indicate upon what ground Shaha wished Alam to object and does not allege how the trial would have been different had his objections been voiced. At the hearing on the K.S.A. 60-1507 motion, Shaha’s attorney told Shaha to tell the court anything concerning his complaints about the trial. Shaha’s interpreter replied, “[T]here is like a lot of stuff he wants to tell, but he’s so excited, he can’t actually express it right now.”
In a K.S.A. 60-1507 proceeding, the movant bears the burden of establishing errors sufficient to demonstrate the movant’s entitlement to relief. Rule 183(g); Wright v. State, 5 Kan. App. 2d 494, 495, 619 P.2d 155 (1980). The mere allegation that Alam told Shaha to refrain from talking too much during the trial is insufficient to warrant a new trial.
Shaha also challenges the use of an interpreter at the evidentiary hearing on his K.S.A. 60-1507 motion without estabhshing the interpreter’s qualifications according to the statutory criteria in K.S.A. 75-4353(c). The record is clear that the district court made no findings on the record regarding the interpreter s qualifications.
However, the record is also clear that Shaha did not raise any objections to his interpreter at the hearing. It is inappropriate for this court to decide the interpreter’s qualifications in the first instance unless the district court’s findings are unreasonable. Pham, 234 Kan. at 664 (“[T]he competency of an interpreter is for the trial court to determine, [citation omitted]. Further, it is for the court to determine whether a challenge to an interpreter’s competency at trial has been justified. [Citation omitted.]”); see Valladares, 871 F.2d at 1566. Consequently, the issue is not properly presented to this court for the first time on appeal. See Vasquez, 272 Kan. at 699; Crane, 260 Kan. at 218.
Shaha fails to carry his burden of establishing that any deficiencies in the interpretation affected his ability to present evidence in support of his claims for relief. Shaha’s primary complaint about his interpreter during the evidentiary hearing is that the interpreter failed to provide a literal, word-for-word interpretation of Shaha’s comments but, instead, often summarized Shaha’s responses and spoke in the third person.
“There is a rebuttable presumption an interpreter in the performance of his official duty has acted regularly. People v. DeLarco, 142 Cal. App. 3d [294,] 307[, 190 Cal. Rptr. 757 (1983)]. Merely because an interpreter has had some problems in translating is not sufficient to rebut this presumption. 142 Cal. App. 3d at 307. Courts have recognized, as is all too evident from this case, that words in one language may not have an exact companion in another language and it is therefore impossible in certain circumstances for an interpreter to convey the precise language of the witness to the court. In Seniuta v. Seniuta, 31 Ill. App. 3d 408, 334 N.E.2d 261 (1975), tire Illinois Court of Appeals declared an interpreter’s account of the answers of a witness need not be literal as long as the answers of the interpreter and the witness amounted to the same thing. 31 Ill. App. 3d at 417. Indeed, there are situations in which the interpreter may testify to the sense in which he or she understood the witness. 31 Ill. App. 3d at 417. See also United States v. Guerra, 334 F.2d 138, 142-43 (2d Cir.), cert. denied 379 U.S. 936 (1964). The California Supreme Court in People v. Jackson, 53 Cal. 2d 89, 346 P.2d 389 (1959), found no error where an interpreter employed an irregular technique in answering in the third person, and in some instances editing, explaining or interpolating the questions and answers. 53 Cal. 2d at 95. No substantial deviation was observed between the interpreter’s answers and other testimony in the case. 53 Cal. 2d at 95.” Pham, 234 Kan. at 663.
The record on appeal reveals no suggestions that Shaha’s testimony was misrepresented to the court by the interpreter at the K.S.A. 60-1507 hearing. Therefore, the district court’s error in failing to consider the interpreters qualifications on the record constitutes harmless error. See K.S.A. 60-261; State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006) (applying a harmless error analysis to the failure to provide a hmiting instruction when K.S.A. 60-455 evidence is admitted at trial).
Denial of Ineffective Assistance of Counsel Claim
Shaha also challenges the district court’s denial of his ineffective assistance of counsel claim, contending that the district court’s factual findings were not supported by the record. At the hearing, Shaha raised several grounds for ineffective assistance of counsel other than those possibly connected with the interpreter issue. However, on appeal, Shaha challenges the district court’s ruling only with regard to attorney Henderson’s interaction with Shaha prior to trial. Consequently, as the State contends, the remaining allegations of ineffective assistance of counsel are deemed abandoned. State v. Walker, 283 Kan. 587, 594, 153 P.3d 1257 (2007) (“An issue not briefed by the appellant is deemed waived or abandoned.”).
When a person convicted of a crime seeks relief from his or her conviction based upon ineffective assistance of counsel, he or she must establish that counsel’s performance fell below an objective standard of reasonable representation and that the deficient representation prejudiced his or her ability to obtain a fair trial. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009).
“Judicial scrutiny of counsel’s performance must be highly deferential. There is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. In order to show prejudice, a defendant must show a reasonable probability that, except for counsel’s deficient performance, the result of the trial would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court considering a claim of ineffective assistance of counsel must consider all the evidence before the judge or jury. [Citation omitted.]” Harris, 288 Kan. at 416.
Shaha challenges the district court’s findings with respect to Henderson’s trial preparation with Shaha. The district court specifically found:
“The evidence presented here today demonstrates movant’s attorney met with him no fewer than twelve times prior to trial. He utilized the services of an interpreter during those visits which enabled him to conduct an appropriate preliminary interview and review the evidence with movant.”
Shaha takes issue with the district court’s finding that Henderson utilized the services of an interpreter during each of Henderson’s pretrial visits with Shaha. The State does not contend the trial court’s statement was correct, but instead points out that Shaha does not challenge the essence of the district court’s finding — i.e., that counsel conducted adequate pretrial preparation with Shaha. Indeed, the State concedes that the record does not support the trial court’s finding that an interpreter was present at each of counsel’s 12 pretrial meetings with Shaha. Rather, the State points out that the record reflects that trial counsel visited Shaha at the jail with the interpreter on at least six different occasions for an extended period of time. Additionally, the State notes that the record shows that trial counsel’s legal assistant also visited Shaha on one occasion and conducted pretrial preparation, along with the interpreter.
In addition to counsel’s and the interpreter’s testimony regarding pretrial visits and preparation, trial counsel also testified that Shaha was actively involved in his own case and worked with counsel by sending him approximately 20 “kites” to identify witnesses and discuss issues. Moreover, trial counsel testified that he and Shaha reviewed the details of the case together page by page. Finally, we find it significant that Shaha does not allege that he was prejudiced by trial counsel’s failure to have an interpreter present at each pretrial meeting with his client.
Thus, we conclude that although the district court erred in finding that trial counsel was accompanied by an interpreter at each visit with Shaha, substantial competent evidence supports the district court’s determination that trial counsel engaged in adequate pretrial preparation with Shaha. See Bellamy v. State, 285 Kan. 346, 354-55, 172 P.3d 10 (2007).
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Pierron, J.:
Michael Hall appeals his sentence for aggravated robbery and attempted second-degree murder. Hall claims the district court erred by holding the restitution hearing without his presence. He also argues the court lacked jurisdiction to award restitution after judgment was already pronounced at sentencing. Finally, Hall contends the court erred in sentencing him to an aggravated sentence without putting it before the juiy and in sentencing him to an increased sentence based on prior criminal history without putting it before the jury.
Hall was charged with aggravated robbery and two counts of attempted second-degree murder. He pled guilty to aggravated robbery and attempted second-degree murder. He received a sentence of 100 months in prison for aggravated robbery and 59 months in prison for attempted second-degree murder, to run concurrently. The district court ordered Hall to pay restitution, but left open the amount of restitution, which was to be determined within 30 days.
On March 10, 2009, the restitution hearing was held. Hall was not present at the hearing because he had been transported to the Department of Corrections, but his counsel was present. On appeal, Hall argues that the district court erred by holding the restitution hearing without his presence.
Issues not raised before the trial court cannot generally be raised on appeal. State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). Constitutional grounds for reversal asserted for the first time on appeal are generally not properly before the appellate court for review. State v. Gant, 288 Kan. 76, 82, 201 P.3d 673 (2009).
There are several exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal, including the following: (1) The newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the judgment of the trial court may be upheld on appeal despite its reliance on the wrong ground or assignment of a wrong reason for its decision. State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008).
We believe the facts of this case allow us to consider the issues raised even though they were not raised below.
Under the facts before us it appears that Hall did not give any kind of consent to waive his presence at the hearing. Defense counsel stated, “[A]t this point in time I do not have a waiver from him, a voluntary waiver from him, because I was not aware that he was not here and I can’t really waive his presence without him knowing about it.”
However, defense counsel asked the court to proceed anyway.
Usually a defendant must be present for all parts of his or her trial and sentencing. See K.S.A. 22-3405. Exceptions can be made if the defendant has specifically waived his or her right to be present either personally to the court or in such way a way that it is clear from the record the right has been waived by the defendant and not just by defense counsel.
In State v. Sandstrom, 225 Kan. 717, 721, 595 P.2d 324 (1979), the court had before it a situation where a defendant did not appear at two posttrial hearings. The court set out the facts and controlling law:
“However, there was nothing to prevent the court from proceeding as it did in the absence of the defendant, provided the defendant has voluntarily absented herself from those proceedings. On the record from the trial court, we have no hesitancy in holding that the defendant did voluntarily waive her right to be present at the two hearings in question. The record before the trial court shows clearly that her counsel, Robert D. Hecht, a competent and able member of the Kansas Bar, advised the court that she had waived her right to be present. The record discloses that, at the time of the hearings, the defendant had been released on bond and was not in custody. There is nothing to show that she was prevented from being present or that she could not have been present had she desired to do so. Furthermore, it is clear from the record that the defendant, at her own request, did not appear at most of the pretrial proceedings and that in each instance Mr. Hecht advised the court that she had waived her right to be present.”
Hall’s case presents different facts, however, because he was in custody at the time of the restitution hearing. Additionally, defense counsel was not entirely confident when informing the district court that Hall had waived his right to be present.
Regardless, under Sandstrom it appears that an attorney may waive the client’s right to be present if the client previously consented to that waiver. However, that is not the case here. We must, therefore, vacate the district court’s restitution order and require that another hearing be held.
Hall also claims the district court lacked jurisdiction to award restitution after the judgment was pronounced at sentencing. We disagree.
Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. State v. Denney, 283 Kan. 781, 787, 156 P.3d 1275 (2007).
Hall acknowledges that State v. Cooper, 267 Kan. 15, 17-19, 977 P.2d 960 (1999), appears to control this case. Cooper states that a district court can retain jurisdiction when the court awards resti-' tution at sentencing, but leaves the amount to be determined at a later date after sentencing. Hall merely argues that Cooper was wrongly decided and should be overturned. However, this court is duty bound to follow precedent of the Kansas Supreme Court. State v. Merrills, 37 Kan. App. 2d 81, 83, 149 P.3d 869, rev. denied 284 Kan. 949 (2007).
Hall also argues that his rights under the Sixth and Fourteenth Amendments to the United States Constitution were violated when the trial court sentenced him to an aggravated sentence without first putting the issue before a jury to determine beyond a reasonable doubt. Hall admits that State v. Johnson, 286 Kan. 824, Syl. ¶ 5, 190 P.3d 207 (2008), controls, under which we hold that no constitutional rights were violated in the present case. Hall acknowledges that he wishes to preserve this issue for a potential federal appeal. Because of the controlling authority of Johnson, no further discussion of this issue is necessaiy.
In a similar argument, Hall asserts that his Sixth and Fourteenth Amendment rights were violated when the trial court sentenced him to an increased sentence based on his prior criminal history without first putting the issue before a jury to determine beyond a reasonable doubt. Hall admits that State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), controls, under which we find no constitutional rights were violated in this case. Hall acknowledges that he wishes to preserve this issue for a potential federal appeal. Because of the controlling authority of Ivory, no further discussion of this issue is necessary.
Affirmed in part, restitution order vacated, and case remanded with directions. | [
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McAnany, J.:
This case arises out of a dispute between OHS Compcare (OHS) and Kansas Municipal Insurance Trust, Alternative Risk Services, and the Kansas Association of School Boards Risk Management Services (collectively, the insurers). OHS provided medical care to a number of workers compensation claimants whose medical bills were being paid by the insurers. The insurers disputed OHS’s fees under K.S.A. 44-510j. A hearing officer was appointed to conduct an informal medical dispute hearing pursuant to K.S.A. 44-5l0j(b). The informal hearings failed to resolve the dispute, so the parties requested a formal hearing.
The Kansas Department of Labor (Labor), the parent agency of the Kansas Division of Workers Compensation, entered into a contract with the Department of Administration, the parent agency of the Office of Administrative Hearings, to provide officers to conduct hearings for workers compensation medical fee disputes, among other issues. Pursuant to K.S.A. 44-510j(d)(2), the Director of the Kansas Division of Workers Compensation (director) referred the matter to the Office of Administrative Hearings to conduct the formal hearing requested by the parties. Hearing officer Sandra L. Sharon presided over the hearing to resolve the matter.
The hearing officer conducted formal hearings, after which she concluded that
“inflated claims were submitted for payment by [OHS] on all medical claims which are the subject of review in this matter.
“The modifications made by the third party payors on behalf of the Claimants on the medical claims, which are the subject of review in this matter, are appropriate under the Kansas Workers Compensation Act.”
She advised the parties that “[a]n appeal of this decision may be made to the Workers Compensation Board within ten days of the issuance of this decision. K.S.A. 44-510j(d)(2).”
OHS appealed to the Workers Compensation Board (Board). After hearing oral arguments, the Board issued its order dismissing the appeal. The Board stated:
“K.S.A. 44-510j(d)(2) provides for review by the Board of the decision of the Director.... While the statute authorizes the Director to appoint a hearing officer to conduct the formal hearing, it requires that the Director make the findings and conclusions.
“The appellees argue that the Initial Order of the [Presiding Officer] is the equivalent of an order from the Director. The Board does not find that intent expressed in the statute. If the Legislature had intended for the hearing officer or officers to malee the determination and for that decision to be appealable to the Board, then it would have said so. The plain language of the statute shows that such was not the Legislature’s intent.
“The Board has jurisdiction to review the decision of the Director, not of the [Presiding Officer.] Accordingly, in the absence of a decision by the Director, this appeal is premature.
“The Initial Order entered by the [Presiding Officer] is not a final order. The Board is without jurisdiction to review that Initial Order.”
Labor appeals, contending that the Board misinterpreted K.S.A. 44-510j(d)(2). The parties to the underlying dispute take no position on whether the Board’s interpretation of the statute is correct. OHS claims the hearing officer’s order on the medical expenses issue was in error, and that it simply wants a final agency determination which, if unfavorable, would entitle it to seek judicial review.
The issue before us is one of statutoiy interpretation, an issue of law over which our review is de novo. Double M Constr. v. Kansas Corporation Comm’n, 288 Kan. 268, 271, 202 P.3d 7 (2009). In interpreting the statute we look to the plain meaning of the words employed by the legislature. See State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009).
KS.A. 44-510j
K.S.A. 44-510j is the relevant statute. Because of the length of subsection (d)(2) of the statute, we have added a number in brackets for each sentence. The relevant portions of the statute provide:
“When an employer’s insurance carrier or a self-insured employer disputes all or a portion of a bill for services rendered for the care and treatment of an employee under this act, the following procedures apply:
“(c) The director or the director’s designee shall hold the informal hearing to hear and determine all disputes as to such bills and interest due thereon. ... If the parties are unable to reach a settlement regarding the dispute, the officer hearing the dispute shall enter an order so stating.
“(d) After the entry of the order indicating that the parties have not settled the dispute after the informal hearing, the director shall schedule a formal hearing.
“(2) [1] The formal hearing shall be conducted by hearing officers, the medical administrator or both as appointed by the director. ... [2] If the director finds that a provider or facility has made excessive charges or provided or ordered unjustified treatment, services, hospitalization or visits, the provider or facility may, subject to the director s order, receive payment pursuant to this section from the carrier, employer or employee for the excessive fees or unjustified treatment, services, hospitalization or visits and such provider may be ordered to repay any fees or charges collected therefor. [3] If it is determined after the formal hearing that a provider improperly utilized or otherwise rendered or ordered unjustified treatment or services or that the fees for such treatment or services were excessive, the director may provide a report to the licensing board of the service provider with full documentation of any such determination, except that no such report shall be provided until after judicial review if the order is appealed. [4] Any decision rendered under this section may be reviewed by the workers compensation board. [5] A party must file a notice of appeal within 10 days of the issuance of any decision under this section. [6] The record on appeal shall be limited only to the evidence presented to the hearing officer. [7] The decision of the director shall be affirmed unless the board determines that the decision was not supported by substantial competent evidence.” K.S.A. 44-510j.
The question before us is a straightforward one: Do the parties have to seek an intermediate review of the hearing officer s decision by the director before seeking review by the Board, or can they go directly to the Board for review? We conclude that the plain language of the statute permits the parties to go directly to the Board for review.
Subsection (c)
K.S.A. 44-510j(c) authorizes the director of the Division of Workers Compensation to delegate to a hearing officer the responsibility to conduct an initial informal hearing to attempt to resolve the dispute. If the matter is not settled at the informal hearing stage, K.S.A. 44-510j(d) mandates that the director schedule a formal hearing.
Subsection (d)(1)
The next subsection, K.S.A. 44-510j(d)(l), is not set out verbatim above. It provides that the director may seek an independent review of the disputed billing, including a peer review of the audit, before the formal hearing occurs. It does not contemplate that the director will accomplish the review herself. It provides in part: “The director may contract with one or more private foundations or organizations to provide utilization review of service providers pursuant to the workers compensation act.” K.S.A. 44-510j(d)(l).
Subsection (d)(2)
K.S.A. 44-510j(d)(2) provides details relating to the formal hearing.
Sentence [1] of this subsection directs that the hearing be held not by the director herself, but by a hearing officer with or without the assistance of a medical administrator. The director’s sole responsibility is to appoint a hearing officer and, if necessary, a medical administrator. The obvious point of the formal hearing in our case was to arrive at a decision on the issue of the reasonableness of the medical service provider’s charges, an issue which the parties were unable to resolve at the informal hearing stage. In the case now before us, it does not appear that a medical administrator was appointed to assist in resolving the issue. Thus, the decision to be made was the decision of the hearing officer alone.
Sentence [2] relates to an order by the director if a medical service provider has received an excessive fee payment that should be repaid. This provision does not apply here. The medical providers apparently were denied payment in the first instance because the charges were claimed to be excessive.
Sentence [3] gives the director the option of reporting the overcharging provider to the relevant licensing board. This provision only comes into play upon resolution of any judicial appeal, which, in the present case, has not happened yet. Interestingly, unlike in sentence [2], there is no reference to any fact finding by the director. Sentence [3] contemplates a decision by the hearing officer on the issue of overcharging following the formal hearing. The only opportunity for a decision by the director arises after judicial review (which occurs after Board review) when the director must decide whether to report the provider to the relevant licensing board. The director is not an intermediary in the Board’s review process.
Sentence [4] is clear and bears repeating: “Any decision rendered under this section may be reviewed by the workers compensation board.” (Emphasis added.) K.S.A. 44-510j(d)(2). “This section” includes sentence [1] above. By any fair reading, this necessarily includes the decision made by fhe hearing office following the formal hearing.
Sentences [5] and [6] relate to the time for an appeal and the record on appeal.
Sentence [7] requires the Board to affirm a decision by the director which is supported by substantial competent evidence. Sentence [4] makes it clear that a decision by the hearing officer following the formal hearing may be appealed to the Board. Clearly, the reference to “the director” in sentence [7] cannot be construed to exclude the hearing officer; that is, that only decisions by the director need be supported by substantial competent evidence.
Under sentence [1], the director is required to appoint a hearing officer to hear the dispute and to arrive at a decision on the merits. There is no provision in the statute for review by any entity other than the Board. The statute neither requires nor permits an intermediate review by the director. Hence, the decision of the hearing officer necessarily becomes the decision of the director.
In its analysis of the issue, the Board does not appear to take the position that the director does not have the authority to delegate to a hearing officer the authority to hear and decide the issue at the formal hearing. AJter all, that is expressed pretty clearly in sentence [1]. If the director is constrained by the substantial evidence standard in any decision she might make which finds its way to the Board, she certainly cannot delegate to a hearing officer decision-making authority that is not similarly constrained.
We need not address the other bases for reversing the Board advanced in this appeal. Based upon the plain reading of the statute, it is clear to us that the Board has the jurisdiction to review the decision of the hearing officer.
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Green, J.:
Donald Gamble appeals from his jury trial convictions of five counts of rape in violation of K.S.A. 21-3502(a)(2) and five counts of aggravated criminal sodomy in violation of K.S.A. 21-3506(a)(1). First, Gamble argues that the trial court erred in admitting his videotaped confession because his statements were ob tained in violation of his rights under the Fifth and Sixth Amendments to the United States Constitution. Nevertheless, because Gamble was in custody for a different offense and because no adversarial proceedings had been initiated against Gamble with regard to the offenses that are the subject of this case, the admission of Gamble’s videotaped confession did not violate his Sixth Amendment right to counsel. Moreover, where the appellate record in this case establishes that Gamble initiated the contact with law enforcement in order to give his confession to the offenses under investigation and that Gamble voluntarily waived his Miranda rights before giving his confession, there was no violation of Gamble’s Fifth Amendment right to counsel.
Finally, Gamble argues that the trial court erred in not granting his request for a prehminary hearing or a bill of particulars. We disagree. In light of the fact that Gamble had voluntarily waived his right to a preliminary hearing on the record 5 months before trial and that his retained counsel chose not to examine tire prosecutor’s file concerning the allegations against Gamble, we find no abuse of discretion in the trial court’s decision to deny Gamble’s request for a prehminary hearing or a bill of particulars, filed 2 days before the scheduled trial. Accordingly, we affirm.
In September 2007, A.F. (date of birth 01/07/1991) reported to the Anderson County Sheriff s Office that Gamble had repeatedly sexually assaulted her. A.F., who had been a friend of Gamble’s daughter for many years, testified that the sexual assault began in 2001 when she was 10 years old and occurred approximately every 2 weeks until she and Gamble’s daughter had an argument and no longer played together.
According to A.F., she and Gamble’s daughter mended their relationship in 2003 and, by December 2003, Gamble had convinced her “to go back to the old ways.” A.F. testified that around December 19 or 20, 2003, Gamble performed oral sex on her and penetrated her vagina with his fingers and his penis. A.F. further testified that Gamble sexually assaulted her again between January 4 and 7, 2004. According to A.F., Gamble continued to assault her every week or every other week when she stayed at his house.
When A.F. reported the sexual assaults to the Anderson County Sheriff s Office in September 2007, she told the interviewing officer that she and Gamble had smoked marijuana together and marijuana had been used in Gamble’s house in the last few days. Based on this information, Detective Vem Valentine applied for and obtained a search warrant for Gamble’s house. Officers found marijuana in Gamble’s house and car and also recovered evidence relating to the sex crimes in Gamble’s bedroom.
Gamble was arrested on a drug charge by Undersheriff Max Skelton and taken to jail on September 11, 2007. The Miranda form filled out by Skelton stated that Gamble requested to have a lawyer. Valentine testified, however, that after Gamble was arrested on the drug charge, Gamble told Skelton that he was unsure whether he needed an attorney, so Skelton wrote that Gamble had invoked his right to an attorney.
That same day, after Gamble had told Skelton that he was unsure whether he needed an attorney, Valentine went to talk with Gamble about A.F.’s sexual assault allegations. Valentine testified that he talked with Gamble for less than 10 minutes and did not want to talk about the drug charge. During their conversation, Gamble asked whether he needed an attorney. Valentine testified that he told Gamble, “If I [were] you, I’d probably have one.” According to Valentine, Gamble stated that he did not know if he wanted an attorney. Valentine then told Gamble that Gamble should consider whether he wanted an attorney and that Valentine could get back with him when he had his first appearance for his drug charge in the next couple of days.
Valentine testified that on September 13,2007, the day of Gamble’s first appearance on the drug charge, he received a phone call at home that Gamble had stated that he wanted to talk with Valentine. When he testified in this case, Valentine could not remember who called him, but he believed it was one of the jailers or a secretary. Valentine went to the courthouse to talk with Gamble. Valentine testified that he told Gamble that he was going to be appointed an attorney in the next few minutes but that Gamble stated, “[T]hat’s all right. I still want to talk to you whether I have an attorney or not. I need to get this taken care of.”
According to Valentine, he then went back to his office and set up recording equipment while Gamble had his first appearance on the drug case. At the hearing, Gamble was appointed an attorney to represent him on the drug case.
After Gamble’s first appearance on the drug case, the jailer brought Gamble to Valentine’s office. Valentine went over Gamble’s Miranda rights, and Gamble waived those rights. During the videotaped interview, Gamble confessed to repeatedly sexually assaulting A.F.
On September 25, 2007, the State charged Gamble with 128 separate counts of rape and aggravated criminal sodomy. In January 2008, Gamble’s appointed attorney requested a determination of Gamble’s competency under K.S.A. 22-3202. The trial court ordered Gamble to submit to an examination and evaluation to determine his competency to stand trial. The conclusion from the psychological evaluation was that Gamble was competent to stand trial in that he appeared to comprehend the charges against him and had the ability to aid his attorney in his own defense.
Gamble later moved to suppress his statements during the September 11,2007, interview with Valentine. Gamble argued that the interview was in violation of his rights because he had previously requested counsel after attempted interviews by law enforcement and an attorney had been appointed to represent him. Gamble further argued that he has a low I.Q. and did not understand the Miranda warnings or the impact of his statements. After holding an evidentiary hearing, the trial court denied Gamble’s motion to suppress.
The trial in this case was held over 3 days in September 2008. On the second day of trial, the State filed an amended complaint, which listed five counts of rape and five counts of aggravated criminal sodomy. The dates when the crimes allegedly occurred were amended to coincide with A.F.’s testimony. The remainder of the charges against Gamble were dismissed.
The jury found Gamble guilty of five counts of rape and five counts of aggravated criminal sodomy. The trial court sentenced Gamble to 778 months in prison.
Motion to Suppress
First, Gamble contends that the trial court erred in admitting his videotaped interview with a police detective because the statements were obtained in violation of his rights under the Fifth and Sixth Amendments to the United States Constitution.
Normally, in reviewing a trial court’s decision regarding the suppression of a confession, an appellate court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard. State v. Cofield, 288 Kan. 367, 369, 203 P.3d 1261 (2009).
Sixth Amendment Right to Counsel
The Sixth Amendment under the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall. . . have the Assistance of Counsel for his defence.” The Sixth Amendment right to counsel attaches on the filing of formal charges, indictment, or information; on arraignment; or on arrest on warrant and arraignment thereon. State v. Appleby, 289 Kan. 1017, 1044, 221 P.3d 525 (2009) (citing Brewer v. Williams, 430 U.S. 387, 398, 51 L. Ed. 2d 424, 97 S. Ct. 1232, reh. denied 431 U.S. 925 [1977].)
The Sixth Amendment right to counsel is offense specific, cannot be invoked once for all future prosecutions, and does not attach to offenses that have not been charged. Appleby, 289 Kan. at 1044; State v. Pennington, 276 Kan. 841, 845, 80 P.3d 44 (2003). Therefore, “ ‘ “[i]ncriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached are, of course, admissible at the trial of those offenses.” [Citation omitted.]’ ” Appleby, 289 Kan. at 1044 (citing McNeil v. Wisconsin, 501 U.S. 171, 115 L. Ed. 2d 158, 111 S. Ct. 2204 [1991]).
The United States Supreme Court in Texas v. Cobb, 532 U.S. 162, 168-69, 149 L. Ed. 2d 321, 121 S. Ct. 1335 (2001), has recognized that when the Sixth Amendment right to counsel attaches, it “encompass [es] offenses that, even if not formally charged, would be considered the same offense under the Blockberger [v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932)] test.” The Blockberger test requires a court to evaluate whether each offense requires proof of a fact that the other does not. Pre viously charged offenses do not encompass new or different offenses that are factually related to the previously charged offenses unless the newly charged offenses pass the Blockberger test. Pennington, 276 Kan. at 845-46.
Here, Gamble’s Sixth Amendment right to counsel had not attached as to the sexual offenses when he was interviewed by Valentine and gave his videotaped confession. Gamble had been charged only with the drug offense and not with the sexual offenses when he was interviewed by Valentine. No adversarial judicial proceedings had been initiated against Gamble with regard to the sex offenses. Further, the drug offense and the sexual offenses cannot be considered the same offense under the Blockberger test because they require proof of different facts. As a result, the admission of Gamble’s videotaped confession did not violate his Sixth Amendment right to counsel.
Fifth Amendment Right to Counsel
“The Fifth Amendment to the United States Constitution guarantees the right against self-incrimination, including the right to have a lawyer present during custodial interrogation and the right to remain silent. [Citation omitted.]” State v. Walker, 276 Kan. 939, 944, 80 P.3d 1132 (2003). In contrast to the Sixth Amendment right to counsel, the Fifth Amendment right to counsel, which is protected by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966), is not offense specific. Appleby, 289 Kan. at 1044. “Once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present. [Citation omitted.]” (Emphasis added.) McNeil, 501 U.S. at 177.
Quoting from the United States Supreme Court’s decision in McNeil, our Supreme Court in Appleby explained that a second layer of prophylaxis had been added for the Fifth Amendment right to counsel as follows:
“Edwards v. Arizona, 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 101 S. Ct. 1880, reh. denied 452 U.S. 973 [1981], ‘established a second layer of prophylaxis for the Miranda right to counsel: Once a suspect asserts the right, not only must the current interrogation cease, but he may not be approached for further interrogation “until counsel has been made available to him,” [Edwards,] 451 U.S. at 484-485, — which means, we have most recently held, that counsel must be present, [citation omitted]. If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect’s statements are presumed involuntaiy and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards. This is “designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights,” [citation omitted].’ McNeil, 501 U.S. at 176-77.” Appleby, 289 Kan. at 1044-45.
The McNeil Court explained that an accused’s assertion of the Sixth Amendment right to counsel does not invoke the Fifth Amendment right to counsel as a matter of fact. 501 U.S. at 178. “ ‘One might be quite willing to speak to the police without counsel present concerning many matters, but not the matter under prosecution.’ ” Appleby, 289 Kan. at 1046 (quoting McNeil, 501 U.S. at 178); see also Rhode Island v. Innis, 446 U.S. 291, 300, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980) (Miranda’s safeguards and procedural protection of Fifth Amendment rights “are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation.”).
The Fifth Amendment right to counsel applies only when the accused has expressed his or her wish for the particular sort of attorney assistance that is the subject of Miranda. Appleby, 289 Kan. at 1046. “ ‘It requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.’ ” 289 Kan. at 1046 (quoting McNeil, 501 U.S. at 178).
When a defendant argues that he or she asserted the assistance of an attorney, the timing and the content and context of a reference to counsel may help determine whether there has been an unambiguous assertion of the right to the assistance of an attorney in dealing with a custodial interrogation by law enforcement officers. Appleby, 289 Kan. 1017, Syl. ¶ 13.
Gamble maintains that he invoked his Fifth Amendment right to counsel when Deputy Skelton Mirandized him on September 11,2007. Gamble contends that once he invoked this Fifth Amendment right to counsel, Valentine lacked the authority to question him concerning any of the allegations contained in the probable cause affidavit submitted in support of the application for search warrant.
The trial court in this case found that Gamble requested to have a lawyer on September 11, 2007. The trial court looked to the Miranda form filled out by Deputy Skelton, which states that Gamble requested to have a lawyer. Although Valentine testified that Gamble had merely told Skelton that he was unsure whether he needed an attorney, the trial court determined that without Skelton s testimony, the notation on the Miranda form that Gamble requested an attorney would be the finding in the case. The State concedes that the Miranda form provides substantial competent evidence to support the trial court’s conclusion that Gamble requested an attorney on September 11, 2007.
Moreover, the record indicates that Gamble made his statement concerning a request for an attorney when he was read his Miranda warnings and asked to make a statement in the drug case. Thus, it appears that Gamble’s statement concerning an attorney was made in dealing with a custodial interrogation type of situation and that Miranda’s safeguards and procedural protections of Fifth Amendment rights were applicable.
In denying Gamble’s motion to suppress his videotaped confession, the trial court focused on the fact that Gamble had reinitiated contact with Valentine and waived his right to have counsel present:
“[Ljooking at the totality of all the different circumstances, the fact that Mr. Gamble initiated his contact with the officer even after the officer advised him in his opinion he ought to get himself an attorney, Mr. Gamble still took upon himself that he wanted to talk to the officer and the officer Mirandized him again and Mr. Gamble went ahead and waived his right to have counsel present and made his statement to the officer. So the Court would find the statement would be admissible for purposes of this [trial].”
The law is well established that once a suspect invokes his or her Fifth Amendment right to counsel, interrogation must cease. Nevertheless, questioning of the suspect can be resumed if a lawyer has been made available or the suspect reinitiates conversation. Edwards, 451 U.S. at 482, 484-85; State v. Mattox, 280 Kan. 473, 481, 124 P.3d 6 (2005).
In determining whether an accused has waived his or her previously asserted Fifth Amendment right to counsel, an appellate court must determine whether the accused (1) initiated further discussions with law enforcement and (2) knowingly and intelligently waived tire previously asserted right. The State has the burden to show that later events indicated a waiver of a previously asserted right and that the waiver was knowing, voluntary, and intelligent under the totality of the circumstances. Walker, 276 Kan. at 946-47. A valid waiver of a previously asserted Fifth Amendment right to counsel cannot be established by showing only that the suspect responded to further police-initiated custodial interrogation even if he or she has been advised of his or her rights. Edwards, 451 U.S. at 484. The accused’s statements must show a willingness and a desire for a generalized discussion about the investigation and not merely be a necessary inquiry arising out of the incidents of the custodial relationship. Oregon v. Bradshaw, 462 U.S. 1039, 1044-46, 77 L. Ed. 2d 405, 103 S. Ct. 2830 (1983); Walker, 276 Kan. at 946-47.
Here, as the trial court found, the record shows that Gamble initiated the discussions with Valentine on September 13, 2007, about the alleged sexual abuse. Although Valentine had previously told Gamble his opinion that Gamble should get an attorney, Gamble asked to talk with Valentine when Gamble returned to the courthouse for his first appearance on the drug charge. Upon arriving at the courthouse at Gamble’s request, Valentine told Gamble that he was going to be appointed an attorney in the next few minutes and asked if Gamble still wanted to talk with him. Gamble said that he did want to talk with Valentine. Thus, not only did Gamble initiate the conversation with Valentine, but Valentine also made sure that Gamble still wanted to talk with him even without Gamble’s appointed attorney.
When Gamble was later brought to Valentine’s office after his hearing on the drug charge, Valentine obtained a knowing and voluntary waiver of Gamble’s right to counsel. Gamble specifically told Valentine that he was willing to talk to Valentine without an attorney even though he had been appointed an attorney. Gamble stated that he had “thought about this a lot and if it’s going to help me and others, yes I want to talk about this.” Valentine read Gamble his Miranda rights, and Gamble signed a written waiver of those rights. Gamble then proceeded to talk freely and openly with Valentine about his repeated sexual abuse of A.F. Gamble’s initiation of the conversation with Valentine and his statements to Valentine, especially those before the videotaped confession, show Gamble’s willingness and desire for a discussion with law enforcement about his repeated sexual abuse of A.F.
Nevertheless, Gamble argues that his videotaped confession given on September 13, 2007, was tainted by Valentine’s contact with him on September 11, 2007, which was in violation of his Fifth Amendment rights.
As the State points out, however, Gamble’s taint argument was never properly presented to the trial court. Before the trial court, Gamble seemed to argue that his September 13, 2007, videotaped confession should be suppressed because his right to counsel, on that date, had been violated. Gamble emphasized that he had invoked his right to counsel and that counsel had been appointed when he was interviewed on September 13, 2007. While that may be a similar theoiy, Gamble never raised his current theory with the trial court that Valentine’s contact with Gamble on September 11, 2007, tainted any and all later contact with law enforcement about the sexual abuse allegations, even when Gamble initiated the contact with law enforcement. Because Gamble never gave the trial court an adequate opportunity to consider his current argument, we will not consider this issue. See State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008) (Issues not raised before the trial court cannot be raised on appeal.); State v. Gant, 288 Kan. 76, 82, 201 P.3d 673 (2009) (Constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review.).
Moreover, even if this court were to address Gamble’s “taint” argument, it would fail because Gamble cites no authority for his argument that Valentine’s brief encounter with him on September 11, 2007, after he had invoked his Fifth Amendment right to counsel rendered his September 13, 2007, videotaped confession inadmissible. In our research, we have found cases where our Supreme Court has applied a “taint” analysis when an accused has given a statement, which was coerced or obtained in violation of Miranda, to law enforcement officers and then later waives his or her Miranda rights and gives another statement. See State v. Swanigan, 279 Kan. 18, 106 P.3d 39 (2005); State v. Hebert, 277 Kan. 61, 82 P.3d 470 (2004).
Here, law enforcement officers never obtained any statements from Gamble concerning the alleged sexual abuse before he voluntarily contacted Valentine on September 13, 2007, and gave his videotaped confession. Even assuming that Valentine’s attempt to talk with Gamble on September 11, 2007, about the alleged sexual abuse was improper, Valentine ended the contact after Gamble questioned whether he needed an attorney and Valentine gave his opinion that Gamble should get an attorney. The contact between Valentine and Gamble on September 11, 2007, was brief, and Gamble never provided any information about the alleged sexual abuse. Valentine made no further contact with Gamble until 2 days later when Gamble sent his message that he wanted to talk with Valentine. Even though he was appointed counsel in the drug case, Gamble told Valentine that he wanted to talk with him about the alleged sexual abuse and executed a written waiver of his Miranda rights.
In light of the fact that Gamble voluntarily initiated the contact with Valentine on September 13, 2007, followed by the giving of proper Miranda warnings 2 days after any contact had been made with him about the alleged sexual abuse, we find that Valentine’s contact with Gamble on September 11, 2007, did not taint his videotaped confession on September 13, 2007. See Peterka v. State, 640 So. 2d 59 (Fla. 1994), cert. denied 513 U.S. 1129 (1995) (holding that even if an officer’s questioning violated the appellant’s right to remain silent, no taint carried over to the appellant’s later statements to law enforcement where the appellant initiated the contact). Our Supreme Court has held that where a suspect on his or her own initiative requests an opportunity to give a state ment, it cannot be said to be either a response to or a product of the police officer s words or action. State v. Dudley, 264 Kan. 640, 645, 957 P.2d 445 (1998). Gamble freely and voluntarily initiated the contact with Valentine on September 13, 2007, and decided to give his confession after he was advised of his Miranda warnings. As a result, the trial court properly denied Gamble’s motion to suppress his statements.
Motion for Preliminary Hearing or Bill of Particulars Standard of Remeto
Finally, Gamble argues that the trial court violated his right to a fair trial by refusing his request for a preliminary hearing or a bill of particulars.
The trial court’s refusal to grant a continuance so that a preliminary hearing can be held, after a defendant has voluntarily waived his right to a preliminary hearing, is reviewed for an abuse of discretion. State v. McCollum, 209 Kan. 498, 500-01, 496 P.2d 1381 (1972). Further, an appellate court reviews the trial court’s denial of a defendant’s request for a bill of particulars for an abuse of discretion. State v. Young, 26 Kan. App. 2d 680, 683, 11 P.3d 55 (1999). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Gant, 288 Kan. at 81-82.
Preliminary Hearing
The record in this case demonstrates that Gamble appeared before the trial court in April 2008 and voluntarily waived his right to a preliminary hearing. The trial court addressed Gamble personally and clearly informed him that he had a right to a preliminary hearing on the felony charges in this case. Nevertheless, Gamble chose to waive his right to a preliminary hearing. See K.S.A. 22-2902(4) (defendant may waive preliminary hearing); McCollum, 209 Kan. at 500. Gamble acknowledged that he was waiving his right to a preliminary hearing freely, knowingly, and voluntarily and upon advice of his counsel.
Nearly 5 months after he waived preliminary hearing and 2 days before Gamble’s scheduled trial, Gamble moved for a preliminary hearing. Gamble argued that his waiver of preliminary hearing was made on the advice of his previous court-appointed counsel and was not knowingly and intelligently made, that a preliminary hearing would be useful to all parties and would serve judicial economy, and that a preliminary hearing might lead to a plea agreement.
The day after Gamble moved for a preliminary hearing, the trial court held a hearing. Gamble’s attorney further argued that, in the complaint, the alleged incidents had not been narrowed down to a particular day and that he had not been able to access some of the evidence and discovery in the case turned over to him by Gamble’s previous defense counsel. The State argued, however, that there was substantial authority that the alleged sexual abuse did not have to be narrowed down to a single day.
In questioning defense counsel about the necessity for a preliminary hearing or for a bill of particulars, the trial court learned that defense counsel had not gone to the county attorney’s office to look at the file and determine whether he had everything that was needed in the case. The trial court found that there was a valid waiver of preliminary hearing by Gamble at the hearing in April and denied Gamble’s motion for a preliminary hearing.
Based on the appellate record in the present case, we find no abuse of discretion in the trial court’s denial of Gamble’s request for a preliminary hearing. The fact that Gamble retained counsel late in the case (retained counsel entered an appearance less than 1 month before trial) and that the retained counsel had not adequately prepared for trial did not make Gamble’s waiver of preliminary hearing invalid. Gamble had entered a knowing and voluntary waiver of his right to a preliminary hearing at the April hearing.
Moreover, Gamble’s decision to waive his right to a preliminary hearing could likely have been a strategic decision to enter into plea negotiations. If a prehminary hearing was held and the evidence warranted being bound over on additional or more serious charges, Gamble would have been in a less advantageous position during plea negotiations. See State v. Pioletti, 246 Kan. 49, Syl. ¶ 4, 785 P.2d 963 (1990) (“Under K.S.A. 22-2902, a magistrate may bind a defendant over on any felony he or she has probable cause to believe has been committed whether or not that particular felony has been charged in the information upon which the preHminary hearing was held.”).
Because Gamble voluntarily waived his right to a preHminary hearing, a preHminary hearing was not required, and there was no abuse of discretion in the trial court’s decision. See McCollum, 209 Kan. at 501 (holding that trial court’s failure to grant a continuance on the morning of trial so that a preHminary hearing could be held was not abuse of discretion; preHminary hearing was not required where defendant had voluntarily waived his right to preHminary hearing and continuance would serve no useful purpose).
Request for Bill of Particulars
K.S.A. 22-3201(f) gives the trial court discretion, on written motion of the defendant, to require the prosecuting attorney to provide the defendant with a bill of particulars:
“When a complaint, information or indictment charges a crime but fails to specify the particulars of the crime sufficiently to enable the defendant to prepare a defense the court may, on written motion of the defendant, require the prosecuting attorney to furnish the defendant with a bill of particulars. At the trial the state’s evidence shall be confined to the particulars of the bill.”
Here, in denying Gamble’s request for a bill of particulars, the trial court found that the complaint was sufficient. The trial court found that the complaint stated each crime in the language required by the statute for that particular offense. Further determining that defense counsel had the opportunity to review the State’s file to determine whether the evidence compfied with the complaint, the trial judge stated as follows:
“If for whatever reason defense counsel hasn’t chosen to go and view the county attorney’s file to make sure the evidence is there to match up on those particular dates, I’m not going to get involved in telling defense counsel how to do his job.
“Do not ask for a bill of particulars if you’re not going to look at the file and discover it. I think what you have to find out is whether or not it complies with the complaint. You’re asking in your motion for an amended complaint or bill of particular and time and place of the alleged crime, yet you’re telling the Court that you haven’t looked at the evidence. The Court’s going to deny the motion for bill of particulars.”
We find no abuse of discretion in the trial court’s denial of Gamble’s request for a bill of particulars. In Young, 26 Kan. App. 2d at 683, this court held that the trial court correctly concluded that a bill of particulars was unnecessary when the defendant had access to all of the State’s evidence. This court noted that the Johnson County District Attorney’s Office had an “open file” policy and that the defendant had requested a bill of particulars 6 months into the case and after full discovery. Here, the record demonstrates defense counsel had access to the Anderson County District Attorney’s file, but yet no request for a bill of particulars was made until 1 year after Gamble was charged and 2 days before trial was scheduled to begin. As the State points out, it became clear at the hearing on the motion to suppress that defense counsel simply had not made any effort to review the State’s file. As a result, Gamble’s argument on this issue fails.
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Marquardt, J.:
The State of Kansas appeals the district court’s order granting James Burns’ motion to dismiss. We affirm.
On May 11, 2006, the State filed a complaint charging Bums with two counts of forgeiy and one count of felony theft. When this complaint was filed, Bums was serving a 620-month sentence in the El Dorado Correctional Facility, On August 4, 2008, Bums filed a request under the Uniform Mandatory Disposition of Detainers Act (UMDDA), K.S.A. 22-4301 et seq., for a final disposition of these charges. The district court scheduled Bums’ first appearance hearing on August 28, 2008.
At the August 28 hearing, Bums was declared indigent and counsel was appointed for him. A status hearing was scheduled for September 11, 2008. At the September hearing, the district magistrate judge scheduled Burns’ preliminary hearing for October 28, 2008. At the October hearing, the State requested a continuance, stating:
“[I]n preparing for the prehminary hearing this afternoon, I discovered that, uh, the Abilene Sheriff s Department also has a videotape confession in this matter, and the person we had subpoenaed did not take the confession, an (unintelligible) Cosby, that took the statement, not the ones we had subpoenaed. And I did not realize that there was a videotaped confession, uh, and that discovery has not been given to defense counsel, nor a report from the Abilene Sheriffs Department/ Police Department.”
Over Bums’ objection, the district magistrate judge granted the continuance, stating there was good cause for the continuance and Bums would suffer no prejudice. The prehminary hearing was rescheduled for November 25, 2008.
On November 25, 2008, the State requested another continuance “due to a mix-up in our office (unintelligible), Mr. Graham had handled this case at the last hearing. . . and I. . . thought Mr. Graham was going to handle the preliminary hearing. But that turned out not to be the case.” Over Bums’ objection, the district magistrate judge granted the continuance and rescheduled the prehminaiy hearing for January 8, 2009.
On January 8, 2009, the State requested another continuance because it “just discovered this afternoon, as we were visiting with the witnesses, uh, Detective Cosby is no longer a detective and no longer in Abilene. And in fact, has moved to Kansas City.” The State considered her an essential witness because she was the officer who took Bums’ confession. Over Bums’ objection, the district magistrate judge granted another continuance and rescheduled the preliminary hearing for February 10, 2009.
At the conclusion of the February preliminary hearing, a district judge found that the State had established probable cause to bind Bums over for trial and scheduled his arraignment for February 20, 2009. At arraignment, Bums pled not guilty and requested a trial date. The district court scheduled April 2, 2009, to hear motions.
On March 26, 2009, Bums filed a motion to dismiss the charges, claiming that the State violated his statutory speedy trial rights by not bringing him to trial within 180 days after tire district court and county attorney received his UMDDA request. At the hearing on April 2, the State argued that the delays were caused by Bums’ refusal to waive his statutory right to a preliminary hearing, and therefore, the time from his first appearance to his arraignment should not be counted against the 180-day deadline. The district judge reviewed the continuances that were granted by the magistrate judge and found that Bums’ speedy trial rights were violated and granted Bums’ motion to dismiss. The State appeals.
The question of whether a defendant’s statutory speedy trial right has been violated is a question of law over which this court exercises unlimited review. State v. Adams, 283 Kan. 365, 368, 153 P.3d 512 (2007). Also, the interpretation of a statute is a question of law over which an appellate court has unlimited review. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).
Generally, in a criminal case, the granting of a request for a continuance is within the district court’s discretion. State v. Kirkpatrick, 286 Kan. 329, 345-47, 184 P.3d 247 (2008). However, when a constitutional or statutory right is involved, that discretion is limited and “there is a greater need for the trial judge to articulate the reasons for any discretionaiy decision.” State v. Gant, 288 Kan. 76, 82, 201 P.3d 673 (2009).
While every person accused of a crime has a constitutional and statutory right to a speedy trial under the Sixth Amendment to the United States Constitution and Section 10 of the Bill of Rights of the Kansas Constitution, the UMDDA governs an inmate’s speedy trial rights. State v. Dolack, 216 Kan. 622, 633-34, 533 P.2d 1282 (1975).
Under the UMDDA, “[a]ny person who is imprisoned in a penal or correctional institution of this state may request final disposition of any untried indictment, information or complaint pending against him in this state.” K.S.A. 22-4301(a). The UMDDA provides:
“Within one hundred eighty (180) days after the receipt of the request and certificate by the court and county attorney or loithin such additional time as the court for good cause shown in open court may grant, the prisoner or his counsel being present, the indictment, information or complaint shall be brought to trial; but the parties may stipulate for a continuance or a continuance may be granted on notice to the attorney of record and opportunity for him to be heard.” (Emphasis added.) K.S.A. 22-4303.
If the State fails to bring the prisoner to trial within the statutory limit, “no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment, information or complaint be of any further force or effect, and the court shall dismiss it with prejudice.” K.S.A. 22-4303.
Here, the parties do not dispute that Bums properly invoked his speedy trial rights under the UMDDA. Under the Kansas speedy trial statute, a defendant may waive his or her statutory speedy trial rights by requesting or acquiescing in the continuances. A continuance charged to the State is counted against the speedy trial dead line. K.S.A. 22-3402(2). Here, Bums did not waive his statutory speedy trial rights, nor did he acquiesce in the continuances.
In State v. Watson, 39 Kan. App. 2d 923, 186 P.3d 812, rev. denied 287 Kan. 769 (2008), the defendant requested two continuances, which were not counted against the speedy trial deadline. Thereafter, the district court granted the State a 35-day continuance without giving Watson or his attorney notice or an opportunity to be heard. Considering the language of the statute, a panel of this court ordered that the 35-day continuance did count against the 180-day time hmitation, and held:
“Under the plain language of the statute, any trial continuance granted by this court extends the 180-day deadline for commencing a trial under the UMDDA provided that the defendant’s attorney received notice of the continuance request and an opportunity to be heard.” (Emphasis added.) 39 Kan. App. 2d at 928.
Under Watson, any trial continuance granted by the court extends the 180-day deadline so long as the defendant’s attorney has notice and an opportunity to be heard. All of the motions for continuances in Bums’ case were made orally on the days of scheduled hearings. Here, Bums immediately voiced objections. First of all, we do not consider a motion in open court to qualify as the notice and an opportunity to be heard required in the statute. Under the holding in Watson, a defendant’s objection and the reasons for the continuance would be meaningless. The Watson holding would allow the State to continue a case indefinitely. We do not believe such an interpretation was intended by the legislature. The Watson case deals with time hmitations under the UMDDA, however, it did not consider a situation where there were valid repeated objections to the State’s requests for continuances. We believe the facts of each case dictate how a continuance should be charged under the UMDDA.
In granting the October 2008 continuance, the district court stated that it did not believe Bums would be prejudiced by the delay and used the magic words “it’s a good cause.” In November, the continuance was granted because the State was confused over who would handle the case. The district court granted this continuance without comment. In January, the State’s only reason for the continuance was that it was unable to subpoena the detective who took Bums’ confession because she had moved from Abilene to Kansas City. For the November and January continuances, there was no good cause shown, and the court made no good cause finding. Additionally, “[wjhen a party seeks a continuance due to the absence of a witness, the party must show due diligence to procure the witness’ testimony.” State v. McDonald, 250 Kan. 73, Syl. ¶ 2, 824 P.2d 941 (1992). The State did not articulate any effort it expended in trying to find the witness.
On appeal, the State cites State v. White, 234 Kan. 340, 673 P.2d 1106 (1983), to support its position that it brought Bums to trial on August 28,2008, within the 180-day limitation period. In White, our Supreme Court examined the meaning of “brought to trial” as used in Article III of the Agreement on Detainers Act, K.S.A. 22-4401 et seq., in determining whether the State timely brought an incarcerated defendant to trial. The White court noted, and the State reiterates: “The words ‘brought to trial’ contained in Article III mean only that a proceeding must be initiated, not that the case be finally disposed of.” 234 Kan. at 345.
However, the State takes this sentence out of context. The “proceeding” in White was not just any proceeding, it was the first day of the defendant’s trial. The White court held that the State satisfies the statute if the trial begins on the 180th day or the first weekday after the speedy-trial deadline under the time computation mies in K.S.A. 60-206(a). Contrary to the State’s suggestion, White does not stand for the proposition that the State satisfies its burden by bringing an inmate to trial under the UMDDA when the district court holds a status conference, holds a hearing to grant a continuance, or holds a preliminary hearing. White simply does not apply to the facts in Bums’ case.
In order for a continuance to toll the period within which an inmate must be brought to trial pursuant to K.S.A. 22-4303, either the parties must stipulate to the continuance, or the court may grant the continuance after good cause has been proven, and then only after the defendant has been given reasonable notice and the opportunity to be heard on the motion. Under K.S.A. 22-4303 and the facts of this case, we find that the delays caused by the State should be counted against the speedy trial deadline. Accordingly, the district court did not err by dismissing the complaint.
Affirmed.
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Pierron, J.:
Tharin Deist appeals the district court’s determination of his criminal history score following his conviction of failure to register as a sex offender in violation of K.S.A. 22-4903. Deist contends that his prior conviction for aggravated indecent liberties with a child must be excluded from his criminal histoiy because it was an element of his current conviction for failure to register as a sex offender. We affirm.
Deist pled no contest to one count of failure to register as a sex offender, a level 5 felony pursuant to K.S.A. 22-4903. The State originally charged Deist with three counts of failure to register as a sex offender, but dismissed the remaining two counts in exchange for Deist’s plea of no contest to Count 1 as alleged in the complaint. Count 1 in the complaint alleged that Deist was required to register as a sex or violent offender after being convicted of aggravated indecent liberties with a child in Reno County case No. 97CR596 and that he intentionally failed to give written notice of his change of residence.
The presentence investigation (PSI) report classified Deist’s criminal history score as B. The PSI report indicated that he had been convicted previously of two counts of aggravated indecent liberties with a child on October 6, 1997 in case No. 97CR596. Those two previous convictions/counts were listed as entries 1 and 2 on Deist’s criminal history worksheet. Entry 1 on the criminal history worksheet was unscored and not used in calculating Deist’s criminal histoiy score. Entry 2, however, was used in calculating Deist’s criminal history score.
At sentencing, Deist objected to entry 2 on the criminal histoiy worksheet. He contended that entry 1 was presumably not scored because it was an element of the current offense. He argued that entry 2 on the criminal history worksheet — -the second conviction of aggravated indecent liberties with a child — also could not be used in calculating his criminal history because it too was an element of the current offense. The district court overruled Deist’s objection, finding that entries 1 and 2 on the criminal histoiy worksheet were each counted separately and that only one of the counts was an element of the current offense.
The district court sentenced Deist to a prison term of 120 months. However, the court dispositionally departed from the presumptive prison sentence and sentenced Deist to community corrections for a period of 36 months.
Deist contends the district court erred in excluding only one of his aggravated indecent liberties convictions from his criminal history. He argues that because both convictions required him to register as a sex offender, both are necessarily elements of the current offense and should be excluded from his criminal history score.
Under the sentencing guidelines, “all convictions, whether sentenced consecutively or concurrently, shall be counted separately.” K.S.A. 21-4710(c). The sentencing guidelines also specifically provide that all prior convictions are to be considered in a defendant’s criminal history score unless otherwise excluded. One statutory exception prohibits including prior convictions of any crime if the prior convictions “enhance the severity level or applicable penalties, elevate the classification from misdemeanor to felony, or are elements of the present crime of conviction.” K.S.A. 21-4710(d)(ll). (Emphasis added.)
Here, the precise issue is whether both prior convictions of aggravated indecent liberties are elements of Deist’s current conviction of failing to register. Resolution of this issue calls for interpretation of the sentencing statutes and is subject to unlimited review. As a general rule, a criminal statute should be strictly construed in favor of the accused, meaning the court must construe any ambiguity in the statute’s language in favor of the accused. This rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Gracey, 288 Kan. 252, 257-58, 200 P.3d 1275 (2009). Under the fundamental rule of statutory construction, the intent of the legislature governs when that intent can be ascertained from the statute. When a statute is plain and unambiguous, we must give effect to the intention of the legislature, rather than determine what the law should or should not be. State v. Cox, 258 Kan. 557, Syl. ¶ 7, 908 P.2d 603 (1995).
Deist relies on State v. Pottoroff, 32 Kan. App. 2d 1161, 96 P.3d 280 (2004), in support of his argument that both convictions should be excluded from his criminal history. In Pottoroff, the defendant pled no contest to one count of failure to register. The PSI report indicated that the defendant had been convicted previously of one count of attempted aggravated indecent liberties with a child. The issue before the court was whether the conviction for aggravated indecent liberties was an element of failure to register. After a thorough analysis of the sentencing guidelines, this court held that the conviction that creates the need for registration as a sex offender under die statutory sentencing scheme is necessarily an element of the offense of failure to register cannot be counted in determining criminal history score. 32 Kan. App. 2d at 1164-65.
The Pottoroff court reasoned that under the statutory scheme a defendant is not an “offender” and has no duly to register unless he or she has been convicted of or has been adjudicated a juvenile offender for committing one of the offenses listed in K.S.A. 22-4902(a). Under 22-4902(b) and (c), an “offender” includes a person who is convicted of aggravated indecent liberties with a child. Because the defendant’s conviction of aggravated indecent liberties created the defendant’s duty to register, it was an element of the offense and could not be counted in his criminal history. 32 Kan. App. at 1166-67.
Deist argues that both convictions of aggravated indecent liberties created a duty to register and so he was guilty of failing to register as a result of each of those counts. He contends that, under Pottoroff, both should be excluded from his criminal history. Pottoroff offers little assistance on this particular issue. In Pottoroff, the defendant was required to register as a result of only one count of aggravated indecent liberties. Here, Deist had been convicted previously of two counts of aggravated indecent liberties in one case. Because the defendant in Pottoroff pled no contest to only one count of aggravated indecent liberties, Pottoroff does not answer the question of whether when two convictions each require a defendant to register, they are both elements of the failure to register offense.
The State suggests that because only one of the convictions was necessary to create Deist’s need to register, the remaining conviction can be used in Deist’s criminal history. We agree.
The State cites State v. Taylor, 262 Kan. 471, 939 P.2d 904 (1997), in support of its argument. In Taylor, our Supreme Court held that prior convictions used as an element of the present offense cannot be counted when calculating criminal history, but all other convictions can be used unless prohibited by statute. 262 Kan. at 479. Taylor also offers litde guidance. In Taylor, the State specifically alleged that the defendant escaped from custody while being held for his conviction in case No. 95CR1353. Only one count was charged in that case. 262 Kan. at 472-73. Here, as discussed above, Deist had been convicted previously of two counts of aggravated indecent liberties within the same complaint.
The State relies heavily on State v. Armstrong, 29 Kan. App. 2d 822, 33 P.3d 246, rev. denied 272 Kan. 1420 (2001). In Armstrong, the defendant entered pleas of no contest to two counts of attempted aggravated indecent liberties with a minor. The PSI report reflected that the defendant had seven prior convictions for statutory rape. The State argued that two of the defendant’s prior convictions could be used to classify the defendant as a persistent sex offender under K.S.A. 2000 Supp. 21-4704(j) and the remaining five convictions should be included in his criminal history. The defendant objected, arguing his prior convictions were being used to enhance his sentence as a persistent sex offender and therefore could not also be included in his criminal history score. The district court overruled the objection and used the remaining five convic tions in calculating the defendant’s criminal history score. 29 Kan. App. 2d at 822-23.
The issue on appeal was whether the district court was barred under K.S.A. 2000 Supp. 21-4704(j) and K.S.A. 21-4710(d)(ll) from including any of the defendant’s prior sex crimes in his criminal history because he was found to be a persistent sex offender. 29 Kan. App. 2d at 823-24. Applying the rationale from Taylor, the Armstrong court affirmed the district court’s determination to use the remaining five prior convictions in calculating the defendant’s criminal history. 29 Kan. App. 2d at 825.
Quoting K.S.A. 2000 Supp. 21-4704(j), the Armstrong court determined that a defendant may be sentenced as a persistent sex offender if he or she “ ‘has at least one conviction for a sexually violent crime.’ ” 29 Kan. App. 2d at 825. The court reasoned that “[b]y the plain terms of the statute, only one prior conviction of a sexually violent crime is necessary to support an enhanced sentence as a persistent sex offender.” 29 Kan. App. 2d at 825. Reading 2000 Supp. K.S.A. 21-4704(j) in conjunction with K.S.A. 21-4710(c) and (d)(ll), the court concluded that the district court is required to include in the criminal history any other convictions beyond that necessary to trigger the persistent sex offender enhancement. 29 Kan. App. 2d at 825.
The court held that where a defendant has multiple prior convictions for sexually motivated crimes, one conviction can be used to classify the defendant as a persistent sex offender and the other convictions can be applied to the defendant’s criminal history score. 29 Kan. App. 2d at 825. Therefore, the five remaining convictions were not used to enhance the severity level or applicable penalties and so were not excluded from the defendant’s criminal history score under K.S.A. 21-4710(d)(ll). 29 Kan. App. 2d at 825.
Under the Kansas Offender Registration Act (KORA), an offender is required to inform law enforcement of a change of address within 10 days. K.S.A. 22-4904(b). KORA defines “offender” as any person who is convicted of any sexually violent crime listed in subsection (c) of the statute. K.S.A. 2008 Supp. 22-4902(b). (Emphasis added.) Aggravated indecent liberties with a child is considered a “sexually violent crime” under the statute. K.S.A. 2008 Supp. 22-4902(c)(3). Under the plain language of the statute, only one prior conviction of a sexually violent crime is necessary to categorize a defendant as an offender under KORA and trigger the registration requirement. Both of Deist’s convictions of aggravated indecent liberties do not need to be counted together in order for Deist to be considered an offender. One of Deist’s convictions was sufficient to create his duty to register under KORA.
In State v. Carrell, No. 91,801, unpublished Court of Appeals opinion filed Feb. 18,2005, the defendant pled guilty to aggravated escape from custody. The complaint alleged that at the time of escape, the defendant had been placed in custody after being found guilty of two counts of unlawful sexual relations. The defendant argued that because the two prior felony cases were in a single case, both prior offenses became an element in the escape case. The Carrell court disagreed and determined, based on the aggravated escape from custody statute, that at least one crime for which an alleged escapee was convicted or charged must serve as an element of aggravated escape. The court concluded that because one prior conviction was used as an element of the current offense, the second prior conviction was available for calculating the defendant’s criminal history. Slip op. at 3.
In conclusion, KORA only requires one prior conviction of a sexually violent crime in order to classify a defendant as an offender and impose the registration requirement. K.S.A. 2008 Supp. 22-4902(b). Because KORA requires only one conviction of a sexually violent crime to create a duty to register, it follows that Deist can be guilty for failing to register based on only one prior conviction of a sexually violent crime. Accordingly, only one of Deist convictions of aggravated indecent liberties is an element of failing to register, and his other conviction is available for calculating criminal history. Therefore, the district court correctly determined Deist’s criminal history.
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Green, J.:
Iron Mound, LLC (Iron Mound) appeals from the trial court’s judgment granting summary judgment to Nueterra Healthcare Management, LLC (Nueterra) and denying summary judgment to Iron Mound on Iron Mound’s breach of contract claims. On appeal, Iron Mound argues that the trial court inappropriately granted summary judgment to Nueterra based on the trial court’s improper interpretation and application of an agreement between the parties as to the payment of management fees. We agree that the trial court improperly granted summary judgment to Nueterra. Based on the evidence presented at the summary judgment stage, a genuine issue of material fact exists as to the parties’ intent concerning the payment of management fees under the agreement. As a result, the question of whether Iron Mound was entitled to continued payment of management fees is one of fact, and the issue was prematurely decided as a matter of law at the summary judgment stage. Accordingly, we reverse and remand.
On March 26, 1999, Iron Mound entered into an Operating Agreement with ASC Group, LLC (ASC Group) for ASC Midwest, LLC (ASC Midwest). Under the terms of the Operating Agreement, Iron Mound held a 40% interest in ASC Midwest, and ASC Group held a 60% interest in ASC Midwest. The purpose and business of ASC Midwest was to develop, own, and operate ambulatory surgical facilities and other healthcare facilities.
Before the Operating Agreement was executed, the chairman and president of ASC Group, Dan Tasset, and the equal interest holders in Iron Mound, attorney A.J. Schwartz and Ward Schrae der, had been involved in business dealings to develop and manage surgical hospitals, ambulatory surgical centers, and other medical projects. Schwartz testified that before the Operating Agreement was executed, he and Schraeder, not ASC Group, had already made the contacts and done a lot of the “ground floor” work for surgical center projects in Manhattan, Salina, and Topeka and, therefore, Iron Mound was to receive a higher percentage of the management fees from those projects.
The agreement between ASC Group and Iron Mound as to the division of management fees from the surgical centers was outlined in Article X, Section 10.2 of the Operating Agreement as follows:
“10.2 Revenues Relating to Services Performed by ASC or Its Affiliates. Following the admission of ASC and Iron Mound as Members of the Company, ASC and Iron Mound agree that ASC or its Affiliates may contract with the Company or the Centers to perform the following specialized services (collectively the ‘Services’) with the percentage of revenues specified below to be received by the Company and allocated among the Members in accordance with their respective Percentage Interests. It is acknowledged by ASC and Iron Mound that neither the Company nor Iron Mound shall have any right to revenues from the Services which are not included within the percentages set for[th] below. The Company shall be entided to receive die following percentages of the revenues received by ASC or its affiliates for performing the Services on behalf of the Center:
“(a) Management Services: 25% of the gross management fee received.
“(b) Business Development and Set Up Services: 90% of the development fee received after payment of (i) expenses incurred by ASC and Iron Mount attributable to travel, meals and use of outside consultants to perform such Services, and (ii) payment to Iron Mound of a one time payment of $42,500 for each Center developed by the Company.
“(c) In the event that ASC or its Affiliates should obtain a Management Agreement for the Topeka, Salina or Manhattan Centers contemplated on the date of the execution of this Agreement, the percentages of the revenues from the Management Services to be received by the Company shall vary from that indicated in (b) above, in that the gross fees received from such Management Agreements shall be divided as follows: (i) Topeka Company 0% and Iron Mound 15%; (ii) Salina and/or Manhattan Company 0% and Iron Mound 20%!’ (Emphasis added.)
On April 24,1999, ASC Management, LLC (ASC Management), which was a wholly owned subsidiary of ASC Group, and Manhattan Surgical Center, LLC, (Manhattan Surgical Center) entered into a management agreement (Management Agreement I) for ASC Management “to provide its skills, supervision and certain personnel to operate the Center.” As compensation for its services, Manhattan Surgical Center was to pay ASC Management a business development fee of $100,000 and a management fee of 7% of the monthly collected net revenues derived from the operation of Manhattan Surgical Center. Management Agreement I was to remain in effect for 5 years and would automatically renew for successive 5-year terms unless either ASC Management or Manhattan Surgical Center gave notice of election of nonrenewal at least 90 days before the expiration of any such term.
On May 25, 2001, Schwartz sent a letter to Tasset stating that Iron Mound had elected to dissolve ASC Midwest and that he would be attending to the duties regarding the winding up of ASC Midwest. Under Article XV, Section 15.1(b) of the Operating Agreement, Iron Mound could elect to dissolve ASC Midwest: “The Company will be dissolved upon the happening of any of the following events:... The election to dissolve by a Member holding at least 40% of the Percentage Interests of the Company.” Schwartz filed a Certificate of Cancellation for ASC Midwest with the Kansas Secretary of State’s office on May 30, 2001. When ASC Midwest was dissolved, it had no liabilities, and its only significant asset was the interest in management fees with respect to the Manhattan Surgical Center as provided in Section 10.2 of the Operating Agreement. Both Schwartz and Schraeder testified that one of the things accomplished by the dissolution of ASC Midwest was to free Iron Mound from the restrictive covenants under Section 4.7 of the Operating Agreement.
Despite the fact that ASC Midwest was dissolved in May 2001, ASC Management, which later became Nueterra, continued making payments to Iron Mound in compliance with the Operating Agreement until February 2006.
On February 7, 2006, Nueterra entered into a new management agreement (Management Agreement II) with Manhattan Surgical Center for a period of 7 years. Under the terms of Management Agreement II, Manhattan Surgical Center agreed to pay Nueterra 4% of the monthly net revenue for the period during the term beginning February 7,2006, and ending on January 31,2007; 3.5% of the monthly net revenue for die period during the term beginning February 1, 2007 and ending on Januaiy 31, 2008; and 3% of die monthly net revenue for the period during the term beginning February 1, 2008, and ending February 6, 2013.
According to Tasset, Manhattan Surgical Center refused to continue paying at the rate specified in Management Agreement I and was going to attempt to find a new management company or to manage itself. As a result, Nueterra negotiated Management Agreement II with substantially lower management fees. Tasset outiined the differences between the two management agreements, including that Nueterra provided all the business office billing functions under Management Agreement I and now Manhattan Surgical Center provided those services under Management Agreement II. On the other hand, James McAtee, M.D., who apparently was on the Board of Managers for Manhattan Surgical Center, testified that Nueterra5s responsibilities before and after the execution of Management Agreement II were not significantiy different.
Schwartz testified that during August 2005 in the presence of David Ayres, the chief executive officer of Nueterra, Schwartz told the Board of Manhattan Surgical Center that Iron Mound was involved in sharing expected fees from Management Agreement II. Schwartz stated that Ayres did not disagree or contradict this assertion. Moreover, according to Schwartz, Ayres had previously made the statement that sharing fees with Iron Mound was just the cost of doing business.
Schraeder sat on the Board of Managers of Manhattan Surgical Center, and he recused himself from the discussions concerning Management Agreement II. McAtee testified that during the process of discussing Management Agreement II, Schraeder had mentioned a potential conflict of interest because of Iron Mound receiving payments under the contract. According to McAtee, there were meetings where Schraeder recused himself from voting because of a potential conflict of interest. McAtee testified that Scott Christ, Nueterra5s vice president, most likely would have been there during the discussions about Schraeder s conflict of interest.
After Management Agreement II was signed, Ayres told Christ that there would be no future payments to Iron Mound. When Iron Mound stopped receiving its portion of Nueterra’s gross management fees, Schwartz contacted Nueterra about the nonpayment. Nueterra’s attorney responded that the management agreement contemplated under the Operating Agreement had expired and that Nueterra had entered into an entirely new agreement with Manhattan Surgical Center.
In October 2006, Iron Mound sued Nueterra for breach of contract based on Nueterra’s failure to pay Iron Mound a percentage of the gross management fees under Section 10.2(c) of the Operating Agreement.
In June 2007, before discoveiy was complete, Nueterra moved for summary judgment against Iron Mound. Nueterra argued that it was entitled to summary judgment because the undisputed facts showed (1) that the old management agreement, which was contemplated when the operating agreement was executed, had expired; and (2) that the new management agreement was separate and distinct from the old agreement. Nueterra moved to stay discoveiy until the trial court ruled on its motion for summary judgment. After hearing arguments from both parties, the trial court determined that discovery should proceed and that Nueterra’s motion for summary judgment would be taken up for later disposition once the parties agreed that it was ripe or when discovery was completed.
In August 2008, Nueterra again moved for summary judgment against Iron Mound. Nueterra argued that it was entitled to summary judgment because the Operating Agreement did not contain a survival clause and because no right to share in the gross management fees paid under Management Agreement II had accrued or vested before dissolution of ASC Midwest.
Also in August 2008, Iron Mound moved for summaiy judgment against Nueterra. Iron Mound argued that it was entitled to summary judgment because Nueterra had breached its agreement under the Operating Agreement to pay Iron Mound 20% of the gross management fees earned while providing management services for Manhattan Surgical Center.
In a November 2008 written order, the trial court determined that Iron Mound had no contractual right to share in Nueterra’s management fees under Management Agreement II. The trial court noted that the parties had failed to reserve any rights upon termination of ASC Midwest’s operating agreement. The trial court determined that although Iron Mound “may have been vested as to the fee-sharing under the Management Agreement signed in 1999,” those rights terminated when Management Agreement I expired in 2006. The trial court further determined that when Management Agreement II was executed, ASC Midwest and its operating agreement no longer existed. As a result, the trial court granted Nueterra’s motion for summary judgment and denied Iron Mound’s motion for summaiy judgment.
On appeal, Iron Mound argues that the trial court erred in denying its motion for summaiy judgment and in granting Nueterra’s motion for summaiy judgment.
Standard of Review
When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entided to judgment as a matter of law, summary judgment is appropriate. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009).
Rules of Contract Interpretation
The parties’ arguments on this issue require interpretation of various provisions of the Operating Agreement. The primary rule for interpreting written contracts is to ascertain the intent of the parties. If the terms of the contract are clear, the intent of the parties is to be determined from the language of the contract without applying rules of construction. Anderson v. Dillard’s Inc., 283 Kan. 432, 436, 153 P.3d 550 (2007).
Further, the interpretation of a contractual provision should not be reached merely by isolating a particular sentence or provision, but by construing and considering the entire contract from its four comers. City of Arkansas City v. Bruton, 284 Kan. 815, 832-33, 166 P.3d 992 (2007). “ The law favors reasonable interpretations, and results which vitiate the purpose of the terms of the agreement to an absurdity should be avoided. [Citation omitted.]’ ” Wichita Clinic v. Louis, 39 Kan. App. 2d 848, 853, 185 P.3d 946 (2008).
Interpretation of Section 10.2 of Operating Agreement
In its appellate brief, Nueterra renews its argument from its first summary judgment motion that Iron Mound is not entitled to receive any gross management fees from Management Agreement II because Management Agreement II was not contemplated when the Operating Agreement was executed.
On the other hand, Iron Mound argues that the word “contemplated” under Section 10.2 of the Operating Agreement refers to a “Management Agreement for the Topeka, Salina and Manhattan Centers,” not just to the term “Management Agreement.” Therefore, under Iron Mound’s interpretation of Section 10.2, Iron Mound had a right to receive a portion of the management fees as long as Nueterra had a management contract with Manhattan Surgical Center.
The applicable portion of Section 10.2(c) of the Operating Agreement provides as follows:
“In the event that ASC or its Affiliates should obtain a Management Agreement for the Topeka, Salina or Manhattan Centers contemplated on the date of the execution of this Agreement, the percentages of the revenues from the Management Services to be received by the Company shall vary from that indicated in (b) above, in that the gross fees received from such Management Agreements shall be divided as follows: (i) Topeka Company 0% and Iron Mound 15%; (ii) Salina and/or Manhattan Company 0% and Iron Mound 20%.” (Emphasis added.)
There is support for Iron Mound’s interpretation that the word “contemplated” under Section 10.2 of the Operating Agreement refers to a “Management Agreement for the Topeka, Saline and Manhattan Centers.” For example, the placement of the adjective phrase “for the Topeka, Salina or Manhattan Centers” after the noun “Management Agreement” indicates that the parties intended for Iron Mound to receive a portion of the gross management fees for the Manhattan Surgical Center. If the parties had intended the verb “contemplated” to assert something about only the noun “Management Agreement,” they could have written the sentence to read as follows: “In the event that ASC or its affiliates should obtain a Management Agreement contemplated on the date of the execution of this Agreement . . . .” Nevertheless, it would have been necessary to omit the adjective phrase “for the Topeka, Salina or Manhattan Centers” from the dependent clause.
For example, if the dependent clause was rewritten so that the words in the adjective phrase were placed in front of the noun “Management Agreement,” the meaning would be the same: “In the event that ASC or its affiliates should obtain a Topeka, Salina, or Manhattan Center Management Agreement contemplated on the date of the execution of this Agreement. . . .” Even with this reorganization of the wording in the dependent clause, it would seem that the interpretation of the language would be that the parties had intended for Iron Mound to receive a portion of the gross management fees for the Manhattan Surgical Center. That is because the adjective phrase “for the Topeka, Salina, or Manhattan Center” is a limiting adjective phrase that tells which one or how many of the management centers are contemplated.
While Iron Mound’s interpretation seems to be the logical interpretation based on the plain language of Section 10.2 of the Operating Agreement, Nueterra points out that this interpretation would allow Iron Mound to receive gross management fees in perpetuity as long as Nueterra had a management agreement with Manhattan Surgical Center. Nueterra further points out that in Augusta Medical Complex, Inc. v. Blue Cross, 227 Kan. 469, 476, 608 P.2d 890 (1980), our Supreme Court referred to “a traditional distaste for contractual rights and duties between parties unbounded by definite limitations of time.”
On the other hand,
“[t]he law presumes that the parties understood their contract and that they had the intention which its terms import. [Citation omitted.] It is not the function of courts to make contracts, but to enforce them as made, [citation omitted], nor is it within the province of the court to reform an instrument by rejecting words of clear and definite meaning and substituting others therefor. [Citations omitted.]” Tri-State Hotel Co., Inc. v. Sphinx Inv. Co., Inc., 212 Kan. 234, 246, 510 P.2d 1223 (1973).
Nueterra further points out, however, that Iron Mound had originally asserted a theory of recovery that presupposed the word “contemplated” asserted something about only the noun “Management Agreement.” In other words, the word “contemplated” did not relate to the adjective phrase “for the Topeka, Salina and Manhattan Centers,” which identifies the particular management agreement centers contemplated. Specifically, Iron Mound originally alleged that Management Agreement I was contemplated by the Operating Agreement and that Management Agreement II was a continuation of Management Agreement I.
The contract in this case is ambiguous. The lack of a time limitation on the payment of the gross management fees under Section 10.2 of the Operating Agreement could indicate that the parties intended for Iron Mound to receive a portion of the fees for a management agreement contemplated on the date of the execution of the Operating Agreement. It could also indicate, however, that Nueterra considered Iron Mound’s contacts and ground level work on the Manhattan Surgical Center to be so valuable that it agreed to pay Iron Mound a portion of its gross management fees as long as it had a management contract with Manhattan Surgical Center.
For example, under Section 10.2(c) of the Operating Agreement, Iron Mound was to receive 20% of the gross management fees received by Nueterra from the Manhattan Surgical Center while ASC Midwest was to receive no percentage of the gross management fees from that Center. In fact, with the exception of the Topeka and Salina Centers, Iron Mound was to receive only 10% of the 25% gross management fees received under Section 10.2(a) of the Operating Agreement from the development of any other surgical centers. Moreover, ASC Midwest would receive the lion’s share (90%) of those fees. Section 10.2(b). Obviously, Iron Mound had done something to justify receiving a higher percentage of the gross management fees for the Manhattan Center than it was going to receive for its efforts in developing any other surgical centers, with the exception of the Topeka and Salina Centers.
Termination of Operating Agreement
Nevertheless, Nueterra contends that the trial court correctly determined that the dissolution of ASC Midwest terminated the Operating Agreement. Before the trial court, Nueterra argued that with Iron Mound’s election to dissolve ASC Midwest, Nueterra was no longer required “to pay the company a percentage of management fees for distribution to Iron Mound.”
Nueterra points out that Iron Mound elected to dissolve ASC Midwest under Section 15.1(b) of the Operating Agreement and filed a Certificate of Cancellation with the Kansas Secretary of State’s office. Schwartz sent a letter to Nueterra about Iron Mound’s election to dissolve the company and stated that he was winding up the affairs of ASC Midwest.
Although Nueterra maintains that Iron Mound’s dissolution of ASC Midwest effectively terminated the Operating Agreement, it has not provided this court with any case or statutory law that stands for this specific proposition.
While Kansas statutes outline the procedure for creating and dissolving a limited liability company, they do not provide for the termination of all the provisions of an operating agreement upon dissolution. Specifically, K.S.A. 17-7673 provides for the creation of a limited liability company as follows:
“(a) In order to form a limited liability company, articles of organization shall be filed with the secretary of state . . .
“(b) A limited liability company is formed at the time of the filing of the initial articles of organization with the secretary of state or at any later date or time specified in the articles of organization which is not later than 90 days after the date of filing, if, in either case, there has been substantial compliance with the requirements of this section. A limited liability company formed under this act shall be a separate legal entity, the existence of which as a separate legal entity shall continue until cancellation of the limited liability company’s articles of organization.
“(c) An operating agreement may be entered into either before, after or at the time of the filing of the articles of organization and, whether entered into before, after or at the time of such filing, may be made effective as of the formation of the limited liability company or at such other time or date as provided in the operating agreement.”
K.S.A. 17-7675 then provides for cancellation of a limited liability company’s articles of organization upon dissolution as follows:
“Articles of organization shall be canceled upon the dissolution and the completion of winding up of a limited liability company, or as provided in subsection (d) of K.S.A. 17-7666, and amendments thereto, or K.S.A. 17-76,139, and amendments thereto, or upon the filing of a certificate of merger or consolidation if the limited liability company is not the surviving or resulting entity in a merger or consolidation, or upon the conversion of a domestic limited liability company approved in accordance with K.S.A. 17-7685, and amendments thereto, by filing a certificate of cancellation with the secretary of state to accomplish the cancellation of articles of organization upon the dissolution and the completion of winding up of a limited liability company
Although K.S.A. 17-7673 specifically provides for the creation of an operating agreement for an LLC, there is no corresponding automatic termination provision in K.S.A. 17-7675. Because an operating agreement constitutes a contract between the parties, it is necessary to look at the plain language of the agreement to ascertain the parties’ intent as to whether certain provisions survive the dissolution of an LLC.
Here, the Operating Agreement is silent as to whether Section 10.2(c), the provision relating to the payment of the gross management fees, survived dissolution of ASC Midwest. Nueterra argues that because there is no express survival language relating to Section 10.2(c), that provision terminated, along with the rest of the Operating Agreement, with the dissolution of ASC Midwest. If this court were to accept Nueterra’s argument, all of the provisions in the Operating Agreement would automatically terminate upon ASC Midwest’s dissolution and there would be no need to include express termination language. Nevertheless, the Operating Agreement specifically terminated certain obligations under the agreement upon ASC Midwest’s dissolution. Specifically, Section 4.7(d), winch relates to the restrictive covenants under die agreement, states that “[t]he provisions of this Section 4.7 shall be null, void and unenforceable by the Company of any Member upon the occurrence of a dissolution event as contemplated under Section 15.1 below.” Because no such language exists in relation to the payment of the gross management fees under Section 10.2(c), there is at least an ambiguity as to whether the parties intended for their agreement as to the payment of management fees to survive dissolution.
Although Nueterra points out that Iron Mound’s own representatives, Schraeder and Schwartz, testified that they thought the Operating Agreement was terminated when ASC Midwest was dissolved, this assertion is not an accurate representation of Schwartz’ other testimony in the case and the parties’ actions in regard to the payment of the gross management fees. Schwartz testified in his deposition that under the parties’ agreement, Nueterra had a continuing obligation to pay Iron Mound 20% of the gross management fees received for management services provided to Manhattan Surgical Center. Moreover, Iron Mound presented additional evidence that Schraeder had recused himself from discussions about Management Agreement II because of Iron Mound’s right to receive payment under the contract. Further, Nueterra’s actions in continuing to pay the gross management fees evidence that the parties intended for their agreement under Section 10.2 of the Operating Agreement to survive the dissolution of ASC Midwest.
In arguing that the entire Operating Agreement automatically terminated upon the dissolution of ASC Midwest, Nueterra cites a general contract principle outlined in Saylor v. Brooks, 114 Kan. 493, 496, 220 Pac. 193 (1923). In Saylor, our Supreme Court applied the principle that performance under a contract is excused when the subject matter of the contract has ceased to exist through no fault of the parties to a landlord’s obligation under a lease agreement:
“We do not think the fact that a lease covering a part of a building contains the statement that the landlord agrees to keep it in repair has any fair tendency to indicate that the parties actually contemplated an obligation on his part to rebuild in case the whole house should be destroyed, and we see no sufficient grounds to interpret the language as imposing that duty upon him. The situation impresses us as one for the application of tire principle under which the performance of a contract is excused, where, through no fault of the parties, its subject-matter, without which it cannot be executed, has ceased to exist.” 114 Kan. at 496.
Thus, our Supreme Court held that the agreement to repair in the lease did not obligate the landlord to restore the building in case of its destruction by fire when the destruction was caused through no fault of the landlord. 114 Kan. at 496.
In attempting to apply the principle outlined in Saylor to this case, Nueterra contends that because the subject matter of the Operating Agreement (ASC Midwest) was gone, so too was the Operating Agreement and all its promises thereunder. Saylor, however, does not so easily lend itself to such an interpretation. First, an argument could be made that the subject matter of Section 10.2 of the Operating Agreement was Nueterra’s (formerly ASC Management’s) management agreement for the Manhattan Surgical Center and that it had not been destroyed.
More important, what separates this case from Saylor is that there is evidence here to show that the parties, by their conduct and course of dealing, did not intend for the payment agreement under the Operating Agreement to terminate with the dissolution of ASC Midwest.
Parties’ Conduct and Continued Course of Dealing
The parties’ conduct and continued course of dealing in relation to the payment of management fees under the Operating Agreement is highly relevant in ascertaining the existence and terms of the parties’ agreement. Under Kansas law, “a court may ascertain the existence and terms of an agreement from a combination of written instruments and the acts of the parties in connection therewith. [Citation omitted.]” Reznik v. McKee, Trustee, 216 Kan. 659, 673, 534 P.2d 243 (1975); see also Allen v. Bowling, 173 Kan. 485, 490, 249 P.2d 679 (1952) (“It is just as well established that an agreement and its terms may be ascertained by a combination of written communications and the acts of the parties.”).
Under Restatement (Second) of Contracts § 202 (1981), a party’s repeated course of performance is given great weight when interpreting an agreement:
“(4) Where an agreement involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection is given great weight in the interpretation of the agreement.
“(5) Wherever reasonable, the manifestations of intention of the parties to apromise or agreement are interpreted as consistent with each other and with any relevant course of performance, course of dealing, or usage of trade.”
Kansas has long emphasized the significance of the practical interpretation the parties have given a contract through their course of dealing. See Heckard v. Park, 164 Kan. 216, 188 P.2d 926 (1948) (“In case of actual ambiguity the operative construction by the parties is of controlling significance.”); Kirkpatrick v. Chrysler Sales Corp., 127 Kan. 724, 275 Pac. 155 (1929) (operative construction of contract given controlling significance [Citations omitted.]”).
More recent, our Supreme Court has stated that where ambiguity is involved in an agreement, courts consider “all language employed, the circumstances existing when the agreement was made, the object sought to be attained, and other circumstances, if any, which tend to clarify the real intention of the parties. [Citation omitted.]” Universal Motor Fuels, Inc. v. Johnston, 260 Kan. 58, 63, 917 P.2d 877 (1996). Our Supreme Court has further held that “[t]he parties to a contract know best what was meant by its terms, since they are the least liable to be mistaken as to what was intended, and where the contract is ambiguous as to a material point, parol evidence will be received to aid in its construction. [Citation omitted.]” Mobile Acres, Inc. v. Karata, 211 Kan. 833, Syl. ¶ 7, 508 P.2d 889 (1973).
The parties’ conduct and course of dealing in this case indicates that the parties intended for the payment of the gross management fees as set forth in Section 10.2(c) of the Operating Agreement to continue after the dissolution of ASC Midwest. Despite the fact that Iron Mound exercised its right to dissolve ASC Midwest and filed a Certificate of Cancellation with the Kansas Secretary of State’s office in May 2001, Nueterra continued to fulfill the payment obligation under the Operating Agreement for nearly 5 more years by paying Iron Mound its portion of the gross management fees. If there was no intention of the parties to continue the Operating Agreement once ASC Midwest was dissolved, why did Nueterra continue its payment obligation to Iron Mound? Moreover, Iron Mound points out that Nueterra’s course of conduct in continuing to make management fees payments to Iron Mound according to the Operating Agreement is inconsistent with Nueterra’s claim that the entire Operating Agreement automatically terminated upon the dissolution of ASC Midwest.
Nueterra s Explanation of Continued Payments to Iron Mound
Upon being questioned at oral argument as to why Nueterra continued making management fee payments to Iron Mound, Nueterra’s counsel explained that the payment of management fees under Management Agreement I had vested under the Operating Agreement and that Nueterra was still obligated to make the payments as long as Management Agreement I was in existence.
Nevertheless, Nueterra shifted its position at oral argument from the position it took before the trial court. Specifically, in responding to Iron Mound’s argument in its motion for summary judgment, Nueterra asserted that Iron Mound did not have a vested share right in the gross management fees:
“Iron Mound asserts that, even if the Operating Agreement terminated, Section 10.2(c) somehow survived because Iron Mound had a ‘vested right’ to a share of the Manhattan Surgical management fees. That is simply not the case. As the Operating Agreement itself makes clear, any right Iron Mound had to share in management fees flowed to it as a member of ASC Midwest, the ‘Company’ referenced in the Operating Agreement a ‘Company that no longer exists.” (Emphasis added.)
Further, pointing out that it was no longer bound by the management fees agreement once ASC Midwest was dissolved, Nueterra stated: “Once the company ceased to exist and Iron Mound ceased being a member, it was no longer bound by the restrictive covenant just as [Nueterra] was no longer required to pay the company a percentage of the management fees for distribution to Iron Mound.” (Emphasis added.)
Nueterra’s assertions before this court and the trial court are confusing and seemingly irreconcilable. On the one hand, Nueterra would like for the court to hold that the Operating Agreement terminated upon ASC Midwest’s dissolution and that it had no further obligation under the provisions of the Operating Agreement. This, however, does not explain why Nueterra continued making payments to Iron Mound for nearly 5 years after ASC Midwest’s dissolution. Thus, Nueterra has been forced to move to the other hand and urge this court to hold that there was still an obligation under the Operating Agreement for it to continue making payments to Iron Mound. Nevertheless, Nueterra cannot have it both ways. Either Nueterra’s obligations to pay management fees terminated with the dissolution of ASC Midwest or they continued after the dissolution.
At the very least, an issue of fact exists as to the effect of the continued payments to Iron Mound at the dissolution of ASC Midwest, and die trial court’s grant of summary judgment in favor of Nueterra was premature. See Mobile Acres, 211 Kan. 833, Syl. ¶ 9 (“Where there is ambiguity in a written contract and extrinsic or parol evidence is required to ascertain the parties’ intentions, summary judgment should not be entered in die face of contradictory or conflicting evidence.”).
Because the evidence presented at the summary judgment stage is conflicting on the issue of the parties’ intent concerning the payment of the gross management fees to Iron Mound for the Manhattan Surgical Center and permits more than one inference, the question of whether Iron Mound was entitled to any gross management fees under Management Agreement II is one of fact and should not have been decided as a matter of law at the summary judgment stage.
Based on the previous analysis, we reverse the trial court’s entry of summary judgment in favor of Nueterra, reject Iron Mound’s argument that summary judgment should have been granted in its favor, and remand the case to the trial court for further proceedings.
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Green, J.:
M West, Inc. (M West), appeals from the trial court’s judgments granting summary judgment to Cingular Wireless, L.L.C. (Cingular), and to Oak Park Mall, L.L.C. (Oak Park). M West and Cingular were both tenants of Oak Park. Cingular and M West entered into a proposed assignment agreement for M West to take over Cingular’s lease contingent upon Oak Park’s consent of the assignment and the execution of a formal binding written assignment agreement. As required by its lease, Cingular requested Oak Park’s approval of the assignment and outlined the consideration that would be paid to M West for the assignment. Despite Oak Park’s indications to M West that it liked the idea of Cingular assigning its lease and that it was considering the proposed assignment agreement, Oak Park entered into negotiations with Cingular for termination of its lease in exchange for a cash payment. Oak Park ultimately rejected Cingular’s proposed assignment of its lease to M West and allowed Cingular to terminate its lease in exchange for a $400,000 payment.
M West sued both Cingular and Oak Park and raised breach of contract claims. In addition, M West made a claim against Oak Park for tortious interference with a prospective business advantage ■ or relationship. In granting summaiy judgment to Cingular and Oak Park, the trial court determined that no binding contract existed between Cingular and M West, that the statute of frauds was not satisfied, and that the evidence failed to support M West’s tortious interference claim.
We determine that the trial court erred in its decisions. First, in regard to M West’s claims against Cingular, the appellate record establishes that the communications between the parties met the statute of frauds. Moreover, in looking at the record in the light most favorable to M West, we determine that there existed a genuine issue of material fact as to whether the communications between M West and Cingular evidenced the existence of a binding contract with conditions precedent to performance under the contract or only preliminary negotiations with conditions that had to be met before formation of the contract. Importantly, if a binding contract existed between Cingular and M West, Cingular could be held hable to M West if it is found that Cingular did not act in good faith with regard to the contract or hindered, delayed, or prevented the happening of the condition precedents for the purpose of avoiding performance of the contract. Because these are issues of fact, we determine that the trial court erred in granting summary judgment to Cingular.
Moreover, based upon the nature of the relationship between Cingular and M West, the viability of M West’s tortious interference claim against Oak Park is dependent upon whether there is a binding contract between Cingular and M West. If it is found that a binding contract existed between Cingular and M West, then there is evidence in the present appellate record to create a genuine issue of material fact as to whether Oak Park engaged in intentional misconduct which was unjustified and malicious. As a result, we determine that the trial court improperly granted summary judgment to Oak Park on M West’s tortious interference claim. Accordingly, we reverse and remand for further proceedings.
Cingular was a tenant in Oak Park under a 10-year lease agreement signed in April 2004. In early 2006, with approximately 8 years remaining on its lease agreement with Oak Park, Cingular began communicating with M West regarding an assignment of its lease agreement. M West owned Charlotte & Tipit, a fine jewelry store located at Oak Park, and was looking for a larger store space.
Under Cingular’s lease agreement with Oak Park, before Cingular could assign its lease to another entity, Cingular had to obtain Oak Parks’ consent to the assignment agreement:
“Section 16.01. Consent Required.
“(A) Tenant shall not voluntarily, involuntarily or by operation of law assign or encumber this Lease, in whole or in part, nor sublet all or any part of the Leased Premises without the prior consent of Owner in each instance.... As a condition to any assignment of this Lease by Tenant which is permitted under this Lease, the assignee thereof shall be required to execute and deliver to Owner an agreement, in recordable form, whereby such assignee assumes and agrees with Owner to discharge all obligations of Tenant under this Lease. . . .
“(B) If Tenant shall request Owner’s consent to any assignment of this Lease or to any subletting of all or any part of the Leased Premises, Tenant shall submit to owner with such request the name of the proposed assignee or subtenant, such information concerning its business, financial responsibility and standing as Owner may reasonably require, and the consideration (and dre terms and conditions thereof) to be paid for and the effective date of the proposed assignment or subletting.”
M West alleged that in January 2006, David Farmer, a representative of Cingular, contacted Homiri Moshiri, the president of M West, and asked if he was still interested in the Cingular space. According to M West, Farmer and Moshiri discussed the terms of an assignment of the lease to M West, which would include a substantial payment by Cingular to M West and Cingular remaining on the lease as a guarantor. M West further alleged that Farmer told Moshiri that in the Cingular lease there was a provision that if Oak Park did not approve of a proposed assignment, then Cingular would be released from the lease. As a result, Farmer told Moshiri that there would be no problem getting Oak Park to approve of tire assignment.
M West further alleged that Moshiri contacted an Oak Park representative and requested Oak Park’s approval of M West’s assumption of the lease. According to M West, Moshiri was assured that M West was approved to proceed and enter into such an assumption. M West asserted that the negotiations with Farmer continued by telephone through April 2006 when Farmer announced that Cingular and M West had a deal. According to M West, Moshiri then contacted Karla Rocker with Oak Park and told her about the agreement that M West and Cingular had reached. M West alleged that Rocker told Moshiri that was fine and M West could proceed with the agreement with Cingular.
On April 5, 2006, Moshiri emailed Jody House, an Oak Park representative, that M West and Cingular had reached a meeting of the minds, subject to Cingular’s real estate department’s approval, to assign Cingular’s lease to M. West. Moshiri stated that he needed to know whether Oak Park’s real estate department liked “this idea or not.” Houser responded, “I like the idea.” Communications Between Cingular and M West in April and May 2006
On April 7, 2006, Farmer, on behalf of Cingular, sent M West a proposed assignment of Cingular s lease at Oak Park. The document read as follows:
“I have been authorized to offer you an assignment of the above referenced property, in exchange for consideration in the amount of $330,000.00 effective June 30, 2006, whose lease has approximately 89 months remaining on the lease. This represents an assignment fee of $180,000.00 plus $150,000.00 (approximately 14 month’s rent and charges).
“This is not a binding proposal and is contingent upon Cingular’s Real Estate Committee’s final approval, consent of the Landlord’s mortgagee, if required, and the full execution of a formal binding written assignment agreement mutually acceptable to the parties. However, if this proposal meets with your satisfaction, please sign below and fax it back to me at 831.464.3961 so that I may get final approval from Cingular. Upon approval I will notify you immediately so we may commence producing the necessary documentation.
“I look forward to your fast and favorable reply, since time is of the essence. This proposal shall expire at the close of business on April 14,2006. Cingular asks that you please respond in writing.”
Moshiri “AGREED TO AND ACCEPTED” the proposed assignment by placing his electronic signature on the signature line below those words at the bottom of the document. Thereafter, Moshiri began lining up contractors, cabinet makers, and sign makers that would be ready to remodel Cingular s store space once the proposed assignment was accepted by Oak Park. On May 2, 2006, Moshiri sent an email to Cingular stating that his plan was to have the space remodeled and open by August 1, 2006. Otherwise, because Moshiri would be out of the country during August and September, he stated that the opening of the new store would “end up in October” which “cuts it close” to the holiday shopping season and the store’s fall jewelry events.
In an email dated May 8, 2006, Moshiri expressed frustration at Cingular’s delay in preparing the proper documents for Oak Park. Moshiri stated: “If this takes much longer, I will have to move on.” Cingular responded on May 10, 2006, by attaching a letter that it intended to forward to Oak Park. That same day, a series of emails was sent between Moshiri and Cingular about the terms of the assignment to be included in the letter to Oak Park. The parties’ emails reference the payment of $180,000 by Cingular to M West for assignment of the lease and also a $150,000 payment by Cingular to Oak Park to be credited towards M West’s rent and other charges in Cingular’s store space.
By letter dated May 11, 2006, Cingular requested Oak Park’s consent to the assignment of its lease to M West. Cingular’s letter outlined the consideration for the proposed assignment as follows:
“[T]he proposed consideration for the assignment is $150,000.00, which (i) shall be paid directly from Tenant to Owner, for the benefit of Assignee, and (ii) is to be held by Owner in a segregated interest-bearing account for the benefit of Assignee, and from which all future rent and other charges owed by Assignee shall be paid until such amounts are exhausted in full. Tenant shall also make a payment directly to Assignee in the amount of $180,000.00 in connection with this matter.”
On May 12, 2006, a Cingular representative sent an email to Moshiri telling him that “[t]he single greatest thing for you in this deal is that Cingular Wireless is the tenant under the lease and will remain primary (financially) under the lease as a de facto guarantor.”
On May 17,2006, Oak Park offered to terminate Cingular’s lease in exchange for a $465,000 payment. That same day, Moshiri emailed Oak Park and asked how long it would take to get approval for the proposed assignment of Cingular’s lease. Karla Rocker, with Oak Park, responded: “I should have more information for you by the end of the week. We are in the middle of our discussion.” On May 23, 2006, Rocker sent a letter to Cingular stating that Oak Park would not consent to the proposed lease assignment.
On June 2, 2006, Cingular sent a letter to Rocker confirming an agreement between Oak Park and Cingular for Oak Park to terminate Cingular’s lease on June 15, 2006, in exchange for a $400,000 payment.
In November 2006, M West sued Oak Park and Cingular. M West claimed that Cingular breached its assignment agreement with M West. In addition, M West made claims of breach of contract and tortious interference with a prospective business advantage or relationship against Oak Park.
In December 2007, Cingular moved for summary judgment against M West. Cingular argued that M West could not satisfy the statute of frauds for its breach of contract claim. The trial court determined that the communications between Cingular and M West showed only continuing negotiations and that a meeting of the minds as to the terms of a mutually acceptable lease assignment between Cingular and M West could not be established. The trial court found that because the writings between the parties did not evidence an existing and binding contract, the statute of frauds had not been satisfied. Accordingly, the trial court granted summary judgment to Cingular on M West’s breach of contract claim.
In July 2008, Oak Park moved for summary judgment against M West. Oak Park argued that there existed no genuine issues of material fact as to whether an enforceable contract existed between the parties, thereby precluding M West’s breach of contract and tortious interference claims against it. On M West’s breach of contract claim, the trial court determined that the undisputed facts did not support an inference that Oak Park and M West had entered into an agreement. On M West’s tortious interference claim, the trial court determined that Oak Park “had a contractual right to engage in the conduct complained of, and the available evidence, even when resolved in favor of the nonmoving party, is not strong enough to raise a non-speculative inference” that Oak Park “was not justified in acting to terminate its lease for consideration that Cingular agreed to pay.” Accordingly, the trial court granted summary judgment to Oak Park on M West’s breach of contract and tortious interference claims.
Summary Judgment
Standard of Review
When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When oppos ing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009).
M West’s Breach of Contract Claim Against Cingular Statute of Frauds
The trial court’s primary basis for granting summaiy judgment to Cingular was that the statute of frauds had not been satisfied in this case. M West argues, however, that the emails and letter exchanged by M West and Cingular constitute memoranda of an agreement that satisfy the statute of frauds.
Neither party disputes that the agreement between Cingular and M West must satisfy the statute of frauds in order to be a valid contract. Indeed, the statute of frauds applies to all contracts for the assignment of an interest in property for a term of more than 1 year. See K.S.A. 33-105 (providing that “[n]o leases, estates or interests of, in or out of lands, exceeding one year in duration, shall at any time hereafter be assigned or granted, unless it be by deed or note, in writing, signed by the party so assigning or granting the same”).
Quoting Walton v. Piqua State Bank, 204 Kan. 741, 747, 466 P.2d 316 (1970), this court in Kenby Oil Co. v. Lange, 30 Kan. App. 2d 439, 442, 42 P.3d 201 (2002), outlined the requirements to satisfy the statute of frauds as follows:
“ ‘ “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.” ’ [Citation omitted.]”
See Restatement (Second) of Contracts § 131 (1979).
Our Supreme Court has recently held that the statute of frauds requires that only the material terms of a contract are to be stated with reasonable certainty; see Botkin v. Security State Bank, 281 Kan. 243, 250, 130 P.3d 92 (2006); see also Federal Deposit Ins. Corp. v. Neitzel, 769 F. Supp. 346, 349 (D. Kan. 1991) (citing Barnhart v. McKinney, 235 Kan. 511, 524, 682 P.2d 112 [1984]) (material terms need only be stated with reasonable certainty). Furthermore, for the purpose of satisfying the statute of frauds, separate writings may be construed together in order to determine whether there is sufficient written agreement upon which to base an enforceable contract. Young v. Hefton, 38 Kan. App. 2d 846, 856, 173 P.3d 671 (2007).
Here, the April 2006 proposed assignment agreement and the communications between the parties in April and May 2006 met all the requirements to satisfy the statute of frauds. The proposed assignment agreement, the emails from Cingular, and the May 2006 letter to Oak Park requesting assignment of Cingular’s lease were all signed by a representative for Cingular, the party to be charged. Moreover, the April and May 2006 communications identify the parties to the proposed assignment and the subject matter to which the contract relates. Specifically, the proposed assignment was for M West to assume Cingular’s lease for its store space.
Finally, the material terms of the proposed assignment were stated with reasonable certainty within the April and May 2006 communications. Based on the proposed assignment agreement and the later communications between the parties, M West was to take over Cingular’s lease agreement with Oak Park. The proposed assignment agreement between M West and Cingular went so far as to set forth the effective date of June 30, 2006. In consideration for the assignment, Cingular would pay M West an assignment fee of $180,000 plus $150,000 to be used towards rent and charges for Cingular’s store space. Indeed, the May 11, 2006, letter from Cingular to Oak Park requesting Oak Park’s consent to the assignment set forth the proposed assignment of Cingular’s lease to M West and the agreed amount of the consideration to be paid by Cingular to M West. Further, Cingular made clear in its communications to M West that Cingular would remain a guarantor on the assigned lease.
Because the communications between the parties in April and May 2006 were sufficiently specific to satisfy the applicable requirements of the statute of frauds, the trial court erred in determining that the statute of frauds had not been met.
Existence of Binding Contract
In determining that Cingular and M West did not have an existing binding contract, the trial court also found that the letters and emails between M West and Cingular indicated that the parties were involved only in negotiations for an assignment of Cingular’s lease agreement. The trial court determined that the conditions of (1) a formal binding written assignment agreement and (2) approval of the assignment by Oak Park were conditions that had to be met before a contract could be formed between the parties.
M West contends, however, that it and Cingular had formed a binding contract and that Oak Park’s approval and execution of a formal assignment agreement was a condition precedent to performance of the contract.
Not surprisingly, Cingular agrees with the trial court’s determination and argues that the unsatisfied conditions precedent preclude M West’s breach of contract action against it. Cingular asserts that the conditions of Oak Park’s consent to the assignment and the execution of a mutually acceptable written agreement were conditions precedent to the formation of a contract between it and M West.
When the evidence pertaining to the existence of a contract or the content of the contract’s terms is conflicting or permits more than one inference, a question of fact is presented. Nevertheless, whether undisputed facts establish the existence and terms of a contract raise a question of law for the court’s determination. Nungesser v. Bryant, 283 Kan. 550, 566, 153 P.3d 1277 (2007).
Our Supreme Court in Wallerius v. Hare, 194 Kan. 408, 412, 399 P.2d 543 (1965), defined a “condition precedent” as follows:
“A condition precedent is something that it is agreed must happen or be performed before a right can accrue to enforce the main contract. It is one without the performance of which the contract, although in form executed and delivered by the parties, cannot be enforced. A condition precedent requires the performance of some act or the happening of some event after the terms of the contract, including the condition precedent, have been agreed on before the contract shall take effect. [Citation omitted.]”
Thus, a condition precedent is simply “something that is agreed must happen or be performed before a right can occur to enforce the main contract.” Weinzirl v. The Wells Group, Inc., 234 Kan. 1016, Syl. ¶ 3, 677 P.2d 1004 (1984). Under our Supreme Court’s definition, the presence of a condition precedent does not stymie the formation of a contract, but rather becomes part of the contract itself. “When all terms of a contract have been agreed upon and a condition precedent to requiring performance is accepted, the condition precedent becomes part of the main contract and the agreement is consummated.” Wallerius v. Hare, 200 Kan. 578, Syl. ¶ 1, 438 P.2d 65 (1968).
Courts have recognized two types of conditions precedent: conditions precedent to performance under an existing contract and conditions precedent to the formation of a contract. “In the law of contracts, conditions may relate to the existence of contracts or to the duty of immediate performance under them. Thus, there may be conditions to the formation of a contract, or conditions to performance of a contract.” 13 Williston on Contracts, § 38:4, p. 375 (4th ed. 2000). Conditions precedent to performance under an existing contract arise from the terms of a valid contract and define an event that must occur before a right or obligation matures under the contract. In contrast, conditions precedent to the formation of a contract involve issues of offer and acceptance which precede and determine the formation of a contract. City of Haverhill v. George Brox, Inc.; Gordon Construction Corporation, 47 Mass. App. Ct. 717, 719-20, 716 N.E.2d 138 (1999) (citing Corbin on Contracts § 628 [1960 & Supp. 1999]; 5 Williston on Contracts § 666A [3d ed. 1961 & Supp. 1999]; Restatement [Second] of Contracts § 224 [1979]).
Substantial authority exists, however, that most conditions precedent are conditions precedent to performance under an existing contract rather than conditions precedent to formation of a con tract. See Oppenheimer & Co. v. Oppenheim, 86 N.Y.2d 685, 690, 636 N.Y.S.2d 734, 660 N.E.2d 415 (1995) (citing Calamari & Perillo, Contracts § 11-5, p. 440 [3d ed. 1987]) (“Most conditions precedent describe acts or events which must occur before a party is obliged to perform a promise made pursuant to an existing contract, a situation to be distinguished conceptually from a condition precedent to the formation or existence of the contract itself.”); 13 Williston on Contracts, § 38:4, p. 381 (4th ed. 2000) (“The fact that no duty of performance on either side can arise until the happening of the condition does not . . . make the validity of the contract depend upon its happening.”); see also Wood v. Cunningham, 140 N.M. 699, 702, 147 P.3d 1132 (2006) (“Generally, a condition precedent is an event occurring after the formation of a valid contract, an event that must occur before there is a right to an immediate performance.”); 13 Williston on Contracts § 38:7, p. 394 (“A condition precedent in a contract is the typical kind. It must be performed or happen before a duty of immediate performance arises on the promise which the condition qualifies.”).
Whether conditions are considered prerequisites to formation of a contract or prerequisites to an obligation to perform under an existing agreement is controlled by the intent of the parties. Western Commerce Bank v. Gillespie, 108 N.M. 535, 537, 775 P.2d 737 (1989); Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1, 3 (Tex. 1976).
The issue here is whether the parties intended to form a binding contract with conditions precedent to the performance under the contract or whether they intended their communications to result in the formation of a contract only after the conditions precedent were met. In analyzing this issue, we bear in mind that “ ‘[a] court should be cautious in granting a motion for summary judgment when resolution of the dispositive issue necessitates a determination of the state of mind of one or both of the parties.’ [Citation omitted.]” Brennan v. Kunzle, 37 Kan. App. 2d 365, 378, 154 P.3d 1094, rev. denied 284 Kan. 945 (2007). If a genuine material issue of fact exists as to whether the April 2006 proposed assignment agreement, along with the parties’ communications in April and May 2006, evidenced the intent of the parties to create an existing binding contract, the performance of which would be required when the conditions precedent were satisfied, then summary judgment was improper on this issue.
In looking at the April 2006 assignment agreement and the April and May 2006 communications between the parties, we note that all the components of a valid contract are present: offer, acceptance, consideration, and the terms setting forth the rights and obligations of the parties. The terms were mutually agreed upon by M West and Cingular. The conditions of Oak Park’s approval of the proposed assignment and execution of a formal assignment agreement were the same conditions contained in the lease agreement between Cingular and Oak Park. Cingular and Oak Park’s lease agreement required that these two conditions must be satisfied before Oak Park would approve Cingular’s assignment of the lease to another party.
Consequently, if we were to accept Cingular’s argument that the two previously mentioned conditions had to be satisfied before a contract came into existence between M West and Cingular, there would be absolutely nothing left for either party to perform once those conditions precedent were satisfied. In other words, when those conditions precedent were satisfied, the contract between M West and Cingular would form. Nevertheless, no performance would be required of either party because the assignment of Cingular’s lease to M West would already have been completed.
Although Cingular successfully argued to the trial court that the communications between the parties showed that they were involved in preliminary negotiations and that the parties were not yet to the contract stage, there is contract language throughout the April 2006 proposed assignment agreement indicating that the parties intended to form a binding contract.
Specifically, the Cingular representative opened the April proposed assignment agreement with an offer, recitation of consideration, and the effective date of the agreement: “I have been authorized to offer you an assignment of the above referenced property, in exchange for consideration in the amount of $330,000 effective June 30, 2006, whose lease has approximately 89 months remaining on the lease.” (Emphasis added.) The Cingular repre sentative then broke down the $330,000 consideration as follows: “This represents an assignment fee of $180,000.00 plus $150,000.00 (approximately 14 month’s rent and charges).”
Then, at the close of the proposed assignment, Cingular’s representative stated that “time is of the essence,” which is a term peculiar to a contractual requirement, and set an expiration date for the “proposal”: “I look forward to your fast and favorable reply, since time is of the essence. This proposal shall expire at the close of business on April 14,2006. Cingular asks that you please respond in writing.” (Emphasis added.) Finally, the Cingular representative included a signature line for Moshiri at the bottom of the document immediately preceded by the words “AGREED TO AND ACCEPTED BY.”
The material terms of the proposed assignment were later referenced in emails between the parties and further details were hammered out about how the proposed consideration was to be kept in an interest-bearing account. The terms of the proposed assignment, along with the additional details, were included in the letter that Cingular ultimately sent to Oak Park requesting assignment of its lease to M West.
By setting forth the particular terms of the agreement, including consideration and the effective date of the assignment, and requiring M West to accept its offer, it seems that Cingular may have intended to create a binding agreement. Further, the communications between the parties in April and May 2006 and the letter that Cingular ultimately sent to Oak Park requesting approval of assignment of its lease to M West appears to indicate that the parties had reached an agreement on the material terms of the assignment and intended to be bound by those terms.
Moreover, although Cingular maintains that there was never the “full execution of a formal binding written assignment agreement” in this case as referenced in the proposed assignment agreement, a jury could infer that the proposed assignment was actually a contract to make a contract if Oak Park consented to the terms of the assignment. 1 Perrilo, Corbin on Contracts § 2.8, pp. 133-34 (1993) offers the following insight on agreements binding parties to make another agreement:
“It is quite possible for parties to make an enforceable contract binding them to prepare and execute a subsequent final agreement. In order that such may be the effect, it is necessary that agreement shall have been expressed on all essential terms that are to be incorporated in the document. That document is understood to be a mere memorial of the agreement already reached. If the document or contract that the parties agree to make is to contain any material term that is not already agreed on, no contract has yet been made; the so-called ‘contract to make a contract’ is not a contract at all.”
Here, the material terms of the assignment had been agreed upon when Cingular presented the proposed assignment to Oak Park. If Oak Park gave its consent to the assignment, Cingular and M West would have only had to memorialize the essential terms of the agreement that had already been reached. As a result, the juiy could infer that the parties had intended to be bound by the proposed assignment.
On the other hand, Cingular included the following language in the proposed assignment indicating that it did not intend to create a binding contract at that time with M West: “This is not a binding proposal and is contingent upon Cingular’s Real Estate Committee’s final approval, consent of the Landlord’s mortgagee, if required, and the full execution of a formal binding written assignment agreement mutually acceptable to the parties.” This was the language relied upon heavily by the trial court in granting Cingular’s motion for summary judgment.
Although the above-referenced language seems to indicate that Cingular did not intend to create a binding agreement, there are also facts that would compel a contrary conclusion. These are questions of fact for a jury, not for summary judgment. As discussed previously, the contract language within the proposed assignment, the fact that Cingular required M West’s acceptance to the terms in writing, the parties’ later communications, and the letter sent by Cingular to Oak Park requesting approval of the proposed assignment all appear to indicate that the parties did intend to create a binding agreement.
As explained in Corbin on Contracts § 2.9, p. 144, when parties have considered and settled the details of a proposed agreement, there is often a difficult question of fact whether the parties have the understanding drat neither party is to be bound until they execute a formal written document:
“One of the most common illustrations of preliminaiy negotiation that is totally inoperative is one where the parties consider the details of a proposed agreement, perhaps settling them one by one, with the understanding during this process that the agreement is to be embodied in a formal written document and that neither party is to be bound until they execute this document. At times they execute a letter of intent, with the understanding that they are not bound until a later definitive writing is drafted, approved and executed. Often it is a difficult question of fact whether the parties have this understanding. There are very many decisions holding both ways. These decisions should not necessarily be regarded as conflicting, even though it may be hard to reconcile some of them on the facts that are reported to us in the appellate reports. It is a question of fact that the courts are deciding, not a question of lato; and the facts of each case are numerous and not identical with those of any other case. In very many cases the question may properly he left to a jury.” (Emphasis added.)
As our Supreme Court stated in Sidwell Oil & Gas Co. v. Loyd, 230 Kan. 77, 83, 630 P.2d 1107 (1981), “[w]hen the evidence pertaining to the existence of a contract is conflicting a question is presented for the trier of facts. The controlling question as to whether a binding contract was entered into depends on the intention of the parties and is a question of fact.”
We cannot say as a matter of law whether the parties intended Oak Park’s consent to the lease assignment and the parties’ signature to a formal assignment agreement to be conditions precedent to the formation of a contract, as urged by Cingular, or merely conditions precedent to future events that the parties agreed should be fulfilled by the cooperative conduct of each party within a reasonable time. As a result, we determine that material fact issues exist as to the parties’ intent to be bound by the correspondence between them.
Implied Duty of Good Faith and Fair Dealing
M West also contends that a factual issue was presented as to whether Cingular acted in good faith with respect to the conditions precedent of gaining Oak Park’s approval of the proposed assignment and executing a formal written assignment agreement. Importantly, the success of M West’s good faith argument is depend ent upon a jury’s finding on the previous issue, that is, whether the parties intended to form a binding contract.
Kansas recognizes the duty of good faith and fair dealing in every contract, with the exception of employment-at-will contracts. Estate of Draper v. Bank of America, 288 Kan. 510, 525, 205 P.3d 698 (2009); see Restatement (Second) of Contracts § 205 (1979). Generally, good faith and reasonableness in contract matters are factual questions. Summary judgment is appropriate on those matters, however, when the facts are uncontroverted and establish that a defined standard has been met. Estate of Draper, 288 Kan. at 528.
The duty of good faith and fair dealing that is usually imposed on every contract requires at least that a party do nothing to prevent the occurrence of a condition of that party’s duty. A party, however, may be required to do more than refrain from action that will prevent the occurrence of the condition. Often, a party is expected to take affirmative steps to see that the condition occurs. Farnsworth, Contracts § 8.6 (3d ed. 1999), pp. 544-45.
Courts in other jurisdictions have held that when a contract contains a condition precedent to a party’s performance obligation and the occurrence of the condition is within the control of that party, the party must make a good-faith effort to bring about the condition. Johnson v. Lambros, 143 Idaho 468, 474, 147 P.3d 100 (2006); see Aquasource v. Wind Dance Farm, Inc., 833 N.E.2d 535, 539 (Ind. App. 2005) (“[A] party may not rely on the failure of a condition precedent to excuse performance where that party’s own action or inaction caused the failure. When a party retains control over when the condition will be fulfilled, it has an implied obligation to make a reasonable and good faith effort to satisfy the condition.”); Brown v. Alron, Inc., 223 Neb. 1, 4, 388 N.W.2d 67 (1986); Tacoma Northpark, L.L.C. v. NW, L.L.C., 123 Wash. App. 73, 82, 96 P.3d 454 (2004).
It is a principle in the law of contracts that a bilateral contract contains an implied condition on both parties to cooperate with each other in obtaining the goals of the contract. See Vanadium Corporation v. Fidelity & Deposit Co., 159 F.2d 105, 108 (2d Cir. 1947) (“ ‘[Wjherever the cooperation of the promisee is necessary for the performance of the promise, there is a condition implied in fact that the cooperation will be given.’ ”). Moreover, not only is there an implied condition for the parties to cooperate in such performance if cooperation is necessary in achieving the goals of the bilateral contract, but also there is an implied condition to not prevent performance or make it impossible for the other party to perform, which we will discuss next.
Nevertheless, the question of whether Cingular lived up to the basic requirement of cooperation to secure the assignment of the lease and whether Cingular negotiated in good faith when seeking Oak Park’s approval of the assignment must wait until a jury determines if a contract was formed between M West and Cingular.
Doctrine of Prevention
The prevention doctrine is substantially related to the implied covenant of good faith and fair dealing that is implicit in every contract. See Cauff, Lippman & Co. v. Apogee Finance Group, Inc., 807 F. Supp. 1007, 1022 (S.D.N.Y. 1992). 13 Williston on Contracts § 39:6, pp. 530-31, explains that the prevention doctrine is based on the duty of good faith as follows:
“[T]he principle of prevention is based on the implied agreement of tire parties to a contract to proceed in good faith and cooperate in performing the contract in accordance with its expressed intent and, therefore, to refrain from committing any willful act or omission that would interfere with the other party or prevent or make it impossible for the other party to perform.”
Our Supreme Court in Wallerius, 194 Kan. at 412, has explained the prevention doctrine as follows:
“While the condition precedent must have happened before the contract can be enforced or relief sought in the way of specific performance, the party who has demanded the condition precedent cannot hinder, delay or prevent its happening for tire purpose of avoiding performance of the contract. We believe the rule announced in Talbott v. Nibert, 167 Kan. 138, 206 P.2d 131, is applicable here. On page 146 of the opinion it is stated:
“ ‘The rule is clear and well settled, and founded in absolute justice, that a party to a contract cannot prevent performance by another and derive any benefit, or escape any liability, from his own failure to perform a necessary condition. [Citations omitted.] And this is the universal rule. 12 Am. Jur., Contracts, §§ 381, 386; 2 C.J., Agency, § 439, p. 772; 13 C.J., Contracts, §§ 721, 722, 723; Restatement, Contracts, § 315.’ ”
13 Williston on Contracts § 39:4, pp. 523-25, further explains the doctrine of prevention as follows:
“If a promisor prevents or hinders the occurrence or fulfillment of a condition to his or her duty of performance, the condition is excused; in other words, ‘the nonoccurrence or nonperformance of a condition is excused where the failure of the condition is caused by the party against whom the condition operates to impose a duty.’ Accordingly, the liability of the promisor is fixed regardless of the failure to fulfill the condition. The pertinent rule set forth in the Restatement (Second) of Contracts [§ 245 (19790], is that where a party’s breach by nonperformance contributes materially to the nonoccurrence of a condition of one of his duties, the nonoccurrence is excused, so that performance of the duty that was originally subject to its occurrence can become due in spite of its nonoccurrence.
“The prevention doctrine thus operates as an exception to the general rule that one has no duty to perform under a contract containing a condition precedent until the condition occurs. In effect, where one improperly prevents the performance or the happening of a condition of his or her own promissory duty, the offending party thereby eliminates it as a condition, or, viewed another way, the condition is considered as waived or fulfilled. The promisor who prevents the fulfillment of a condition precedent or its performance by the other party to contract cannot rely on the nonoccurrence of such condition to defeat his or her liability.”
In this case, the evidence showed that despite its pending proposed assignment with M West, Cingular engaged in negotiations with Oak Park to terminate its lease agreement for a lump sum payment. This undoubtedly resulted in a better deal for Cingular. Based on the limited evidence currently before this court, a factual issue is presented as to whether Cingular hindered or prevented the occurrence of the condition precedent of Oak Park’s approval of the proposed assignment.
Because these issues of fact require resolution by a jury, we determine that the trial court improperly granted Cingular’s motion for summary judgment based upon Cingular’s contention that the parties had not formed a binding contract.
M West’s Tortious Interference Claim Against Oak Park
Importantly, as to its claims against Oak Park, M West argues only that the trial court should not have granted summary judgment on its tortious interference with a prospective business advantage or relationship claim. Because M West makes no argument on its breach of contract claim against Oak Park, M West has waived any issue concerning the trial court’s grant of summary judgment in favor of Oak Park on the breach of contract claim. See Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009) (An issue not briefed by a party is deemed waived or abandoned.).
M West maintains that based upon the summary judgment standard of review, the trial court erroneously determined that M West’s tortious interference claim was not viable because there was no malice or lack of justification by Oak Park.
Tortious interference with a prospective business advantage or relationship seeks to protect future or potential contractual relations and is predicated on malicious conduct by a defendant. Turner v. Halliburton Co., 240 Kan. 1, 12, 722 P.2d 1106 (1986). The elements of tortious interference with a prospective business relationship are:
“(1) the existence of a business relationship or expectancy with the probability of future economic benefit to the plaintiff; (2) knowledge of the relationship or expectancy by the defendant; (3) that, except for the conduct of the defendant, plaintiff was reasonably certain to have continued the relationship or realized the expectancy; (4) intentional misconduct by defendant; and (5) damages suffered by plaintiff as a direct or proximate cause of defendant’s misconduct.” Turner, 240 Kan. at 12.
Our Supreme Court has held that a party may be privileged or justified to interfere with contractual relations in certain situations. Burcham v. Unison Bancorp, Inc., 276 Kan. 393, 425, 77 P.3d 130 (2003). “The issues of defendants’ motive and the presence or absence of malice are typically questions for the jury. [Citation omitted.]” 276 Kan. at 425.
“The term justification’ has been said not to be susceptible of any precise definition. It is employed to denote the presence of exceptional circumstances which show that no tort has been in fact committed and to connote lawful excuse which excludes actual or legal malice.” ’ [Citations omitted.]” 276 Kan. at 425. Our Supreme Court in Turner also stated that “ ‘[generally, a circumstance is effective as a justification if the defendant acts in the exercise of a right equal or superior to that of the plaintiff, or in the pursuit of some lawful interest or purpose, but only if the right is as broad as the act and covers not only the motive and purpose but also the means used.’ ” 240 Kan. at 13 (quoting 45 Am. Jur. 2d, Interference § 27, p. 305); see PIK Civ. 4th 124.93 (“Justification exists when the defendant interfered in the exercise of a right equal to or superior to that of the plaintiff and used fair means and good faith for some lawful interest or purpose.”).
Our Supreme Court in Turner, 240 Kan. at 14, noted that the Restatement (Second) of Torts § 767 (1977) does not speak in terms of privilege or justification; rather, the Restatement refers to tortious conduct as “improper.” Our Supreme Court noted that § 767 sets forth the following seven factors to be considered in determining whether a defendant’s conduct is improper:
“(a) the nature of the actor’s conduct,
“(b) the actor’s motive,
“(c) the interests of the other with which the actor’s conduct interferes,
“(d) the interests sought to be advanced by the actor,
"(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other,
“(f) the proximity or remoteness of the actor’s conduct to the interference, and
“(g) the relations between the parties.” 240 Kan. at 14.
See also PIK Civ. 4th 124.93 (In determining whether justification exists for a tortious interference, the above seven factors should be considered.).
Despite the previously mentioned rule that the issues of a defendant’s motive and the presence of absence or malice are typically a question for the jury, the trial court in this case determined the issues as a matter of law. In rejecting M West’s argument that there was a genuine issue of material fact as to whether Oak Park acted maliciously and without justification, the trial court focused on Oak Park’s contractual right under Cingular’s lease to not approve a proposed assignment. Specifically, the trial court stated:
“M West claims it was misled to believe a proposed assignment agreement would be approved when, in fact, Oak Park Mall never intended to consent to an assignment. M West offers no direct evidence that Oak Park never intended to consent other than the result that Oak Park and Cingular terminated the lease. Under the terms of the lease agreement, however, Oak Park Mall had a contractual right to terminate the lease agreement with Cingular. See Lease Agreement § 16.01(B). M West’s suggestion that Oak Park Mall was waiting for a proposed assignment agreement so that it could offer a better deal to Cingular carries very little weight. Under the terms of the lease agreement, Oak Park Mall always would have an opportunity to do this because Cingular was required to submit information about a potential assignment to Oak Park Mall for approval. The mall also always would have the opportunity to either terminate the lease or modify the tenant’s lease agreement. As such, emails and telephone conversations where Oak Park Mall representatives stated that an assignment would be ‘fine’ are not enough to show that the mall lacked good faith or used unfair means under these circumstances.
“M West offers no evidence as to the negotiations or discussions between Oak Park Mall and M West to suggest any improper motive other than two contractual parties reaching an agreement to end a lease. Oak Park Mall had a contractual right to engage in the conduct complained of, and the available evidence, even when resolved in favor of the nonmoving party, is not strong enough to raise a non-speculative inference that Oak Park Mall was not justified in acting to terminate its lease for consideration that Cingular agreed to pay.” (Emphasis added.)
Thus, the trial court essentially determined that the undisputed evidence showed that Oak Park was justified in its actions and that it did not act improperly in negotiating for termination of Cingular’s lease.
The trial court’s rationale, however, glosses over the fact that there was evidence presented by M West indicating that Oak Park had induced M West, over several months, to proceed with an assignment agreement with Cingular and then had used that agreement as a bargaining chip to terminate Cingular’s lease for a substantial cash payment. Moreover, the evidence establishes that despite Oak Park’s actions in engaging Cingular in negotiations to terminate its lease, Oak Park failed to disclose this fact to M West and even went so far as to indicate to M West that it was still considering the proposed assignment.
If we were to assume that M West and Cingular had a binding contract, the evidence brought forth at the summary judgment stage showed the following: (1) Oak Park knew of the existence of that business relationship; moreover, it was aware of the probability of the future economic benefit to M West; (2) Oak Park had knowledge of the relationship or expectancy by M West (Oak Park was aware of what monies M West would receive if Oak Park approved the assignment of the lease); (3) M West was reasonably certain to have continued the relationship, except for the conduct of Oak Park (M West and Cingular would have mutually cooperated with each other in satisfying the conditions precedent, which would have allowed Cingular to assign its lease to M West) or realized the expectancy (M West would be allowed to complete the remaining term of Cingular’s lease); (4) Oak Park engaged in intentional misconduct (Oak Park induced Cingular not to perform its contract with M West by entering into negotiations with Cingular to terminate Cingular’s lease — preventing M West from realizing its expectancy that it would be allowed to assume Cingular’s lease); and (5) damages were suffered by M West as a direct consequence or proximate result of Oak Park’s conduct (M West would have received $180,000 directly; $150,000 indirectly [future lease payments]; plus, a prime location to sell its jeweliy).
Based on the nature of the relationship between M West and Cingular, the viability of M West’s tortious interference claim is dependent on whether a binding contract is found to exist between M West and Cingular. Although the tort of tortious interference with a prospective business advantage or relationship does not require the existence of a binding contract and can be based upon future contractual relations, it is apparent that M West’s tortious interference claim against Oak Park would require a binding contract between M West and Cingular. If there was no binding contract between M West and Cingular, then M West could not have been reasonably certain to have continued the existing business relationship or to have realized the expectancy of assuming Cingular’s lease. On the other hand, if an existing binding contract did exist between M West and Cingular, the limited evidence in the appellate record is sufficient to establish a genuine issue of material fact as to whether Oak Park engaged in intentional misconduct which was unjustified and malicious.
Nevertheless, Oak Park asserts that no genuine issue of material fact could exist as to M West’s tortious interference claim against it because under Cingular’s lease, Oak Park did not have to accept an assignment of Cingular’s lease and could simply terminate the lease. Specifically, the applicable portion of Section 16.01(B) of Cingular’s lease agreement provides as follows:
“(B) If [Cingular] shall request [Oak Park]’s consent to any assignment of this Lease or to any subletting of all or any part of the Leased Premises, [Cingular] shall submit to [Oak Park] with such request the name of the proposed assignee or subtenant, such information concerning its business, financial responsibility and standing as [Oak Park] may reasonably require, and the consideration (and terms and conditions thereof) to be paid for and the effective date of the proposed assignment or subletting. Upon receipt of such request and all such information, [Oak Park] shall have the right (without limiting [Oak Park]’s right of consent in respect of such assignment or subletting), by giving notice to [Cingular] within 15 days thereafter, (i) to terminate this Lease if the request is for an assignment or a subletting of all the Leased Premises, or (ii) if such request is to sublet a portion of the Leased Premises only, to terminate this Lease with respect to such portion. If [Oak Park] exercises its right to terminate this Lease, the effective date of termination shall be set forth in [Oak Park]’s notice to [Cingular]
Thus, Oak Park points out that under Cingular’s lease it could make a business decision to terminate Cingular’s lease instead of accepting the proposed assignment to M West.
Oak Park’s argument, however, misses the point. While Oak Park did have the option under its lease agreement with Cingular to not accept the assignment of Cingular’s lease to M West and to terminate Cingular’s lease, Oak Park could still be found to have tortiously interfered with M West’s business advantage or relationship if Oak Park failed to use fair means and good faith in the exercise of that right. See PIK Civ. 4th 124.93 (“Justification exists when the defendant interfered in the exercise of a right equal to or superior to that of the plaintiff and used fair means and good faith for some lawful interest or purpose.”) In other words, Oak Park’s right to terminate Cingular’s lease would not justify any and all means used by Oak Park in exercising that termination right. See Turner, 240 Kan. at 13 (“ 'Generally, a circumstance is effective as a justification if the defendant acts in the exercise of a right equal or superior to that of the plaintiff, or in the pursuit of some lawful interest or purpose, but only if the right is as broad as the act and covers not only the motive and purpose but also the means used.’ ” [Emphasis added.]).
Here, before exercising its option not to accept the assignment of Cingular’s lease to M West, Oak Park induced M West to continue its performance under the contract with Cingular in the ex pectation of consummating its contractual obligation with Cingular to assume Cingular s lease. Nevertheless, unbeknownst to M West, Oak Park began negotiations with Cingular to terminate Cingular s lease. Moreover, Oak Park induced Cingular to renege on its promise to M West to cooperate with each other (Cingular and M West) in satisfying the conditions precedent to the assignment of Cingular s lease to M West. Thus, Oak Park invaded the contractual promises between M West and Cingular to the detriment of M West’s business advantage or relationship between M West and Cingular.
Although the dissent cites cases where summary judgment was properly granted in favor of the lessor or mortgage holder on an interference-with-contractual relations claim, the facts in those cases are far different from the facts in the present case. For example, unlike the cases cited by the dissent, C (Oak Park) induced A (M West) to form its contract with B (Cingular) while inducing B (Cingular) not to perform its contract with A (M West). Moreover, the record indicates that C (Oak Park) was inducing B (Cingular) not to perform its contract with A (M West) before C (Oak Park) exercised its option to reject the assignment of B’s (Cingular’s) lease to A (M West). As a result, the cases cited by the dissent are simply not analogous to the present case.
Indeed, under the circumstances present in this case, a jury could conclude that Oak Park’s conduct in inducing M West to proceed with an assignment agreement with Cingular and in leading M West to rely on its representations that it liked the idea of M West occupying Cingular’s store space and that it was seriously considering the assignment agreement, when in actuality Oak Park was negotiating with Cingular to terminate Cingular’s lease entirely, knowing that this would prevent M West from ever achieving its expectancy that it would be allowed to assume Cingular’s lease, did not use fair means and good faith in exercising its right to terminate Cingular’s lease.
Based on the previous reasoning, we reverse the trial court’s judgment granting summary judgment to Cingular and Oak Park and remand for further proceedings consistent with this opinion.
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Green, J.:
Ruben Calderon-Aparicio appeals from his jury trial convictions for possession of marijuana with intent to sell, distribute, or deliver and no tax stamp. First, Calderon-Aparicio argues that there was insufficient evidence to prove that the crimes occurred in Johnson County. Nevertheless, after looking at the evidence in the light most favorable to the State, we determine that there was sufficient evidence for a rational factfinder to find beyond a reasonable doubt that the crimes occurred in Johnson County. Next, Calderon-Aparicio maintains that the eyewitness show-up identification used in this case violated his due process rights. Nevertheless, because Calderon-Aparicio failed to object to the introduction of this evidence at trial, he did not preserve this issue for appellate review. Moreover, even if this issue had been adequately preserved for appellate review, it would still fail. Based on the circumstances present here, the eyewitness identification procedure utilized by the officers in this case was not impermissibly suggestive, and there was not a substantial likelihood of misidentification in the procedure.
Finally, Calderon-Aparicio contends that the trial court erred in allowing the State to amend the complaint 3 days before trial to change the charge of possession of marijuana with intent to sell to possession of marijuana with intent to sell, deliver, or distribute. We disagree. The State’s amendment of the complaint did not charge an additional or different crime but rather added alternative theories for the charged crime. Moreover, the amendment of the complaint did not prejudice Calderon-Aparicio’s substantial rights. As a result, Calderon-Aparicio’s argument on this issue fails. Accordingly, we affirm.
Around 7 p.m. on April 30, 2007, Timothy Edwards and his wife were traveling to the hospital to admit Edwards’ wife, who was 9 months pregnant. Edwards’ wife was driving their van, and Edwards was riding in the passenger seat of the van. As Edwards’ wife drove onto the southbound ramp to Interstate 435 at Midland Drive, Edwards saw a van with a trailer attached to it along the side of the road.
As Edwards and his wife passed the van, Edwards turned around and saw two men walking beside the van. According to Edwards, the men were acting nervous and were looking over at a police officer, who was behind another car across the street. Edwards testified that he watched one of the men walk towards a drainage ditch and stuff a luggage bag into a drainage pipe. According to Edwards, while the man stuffed the luggage bag into the drainage pipe, the other man stayed near the van. Edwards testified that after he saw the man stuff the bag into the drainage pipe, he immediately called 911 and reported the incident.
According to Edwards, he was able to see the two men for about 15 seconds, which was the time it took for his wife to accelerate onto Interstate 435. Moreover, Edwards testified that the man who stuffed the bag into the drainage pipe was facing Edwards while he was walking down the slope of the drainage ditch but then the man turned around to put the bag in the drainage pipe.
Officer Lewis Jones and Officer Stewart Bloomfield, who was a police officer with the City of Shawnee, were sent to the intersection of Interstate 435 and Midland Drive around 7 p.m. after a report was received that a van pulling a car was blocking traffic. When Bloomfield arrived in the area, Jones was filling out a green sticker for the car and told Bloomfield to check out the van, which was on the other side of the street. Bloomfield testified that he was told about Edwards’ 911 call right around the time that Bloomfield arrived at the scene.
Bloomfield testified that when he approached the van, there were two men with the van. The hood of the van was up, and smoke was coming from the van. The van had a Chihuahua, Mexico, license plate, and the two men, Calderon-Aparicio and Jose Saloman Barraza-Garcia, produced Chihuahua, Mexico, driver’s licenses. According to Bloomfield, Calderon-Aparicio told him that they had just bought a car at auction and were transporting it back to Mexico for resale when their van broke down.
Bloomfield testified that when he mentioned a bag, both men became extremely nervous and started looking around. According to Bloomfield, one of the men even glanced towards the ditch when Bloomfield motioned towards it. Bloomfield testified that Barraza Garcia tried to get into the van, but Bloomfield closed the door and made the two men stand in front of the van. Bloomfield testified that as he closed the door, he saw an electronic relay box with electrical tape on it that was hanging below the driver’s side dashboard. According to Bloomfield, an electronic relay box, which typically leads to a hidden compartment, is one of the big indicators of drug trafficking.
Bloomfield testified that after he ran a warrants check on the two men, Officer Stirling arrived at the scene and headed towards the drainage ditch. When Stirling stated that he had found something inside the ditch, Bloomfield went down to the ditch area. Bloomfield testified that Stirling pointed towards a concrete drainage pipe, and Bloomfield jumped down into the drainage ditch and pulled a black bag out of the drainage pipe. Upon discovering that the bag contained bundles of what appeared to be narcotics, the officers arrested Calderon-Aparicio and Barraza-Garcia.
A total of 21 bundles of vegetation were found inside the bag. No Kansas drug tax stamp was affixed to any of the bundles. Later testing revealed that all 21 bundles tested positive for marijuana and that their total weight was about 42 pounds. Each of the 21 bundles and the black bag that contained the bundles were analyzed for fingerprints, but there were no prints of value for comparison purposes found on the items.
After Calderon-Aparicio and Barraza-Garcia were arrested, police searched their van. According to Bloomfield, a bill of sale for the car, business cards, and hotel room key cards were found in the van. In addition, Bloomfield testified that multiple cell phones were found inside the van, and one cell phone was found on Calderon-Aparicio. Bloomfield further testified that based on his training, he knew that one of the indicators of drug activity is when the number of cell phones is greater than the number of people in a location. According to Bloomfield, when drugs are being taken across the country, the person who is giving the drugs to a second person will also give the second person a cell phone so that they can stay in contact.
Upon arresting Calderon-Aparicio and Barraza-Garcia, Bloomfield called Edwards and asked him to return to the area where the incident occurred to identify the men. According to Bloomfield, Edwards was asked over the telephone about which man had the bag, and Edwards described the man’s clothing and stated that the older man with the mustache was the one who had the bag. Calderon-Aparicio was approximately 4 years older than BarrazaGarcia and was the only one with a mustache.
Once Edwards arrived at the scene, Calderon-Aparicio and Barraza-Garcia were taken out of the patrol car and placed where Edwards could see them. According to Edwards, the police had him roll down his window, write out a statement, and then stick his head out the window to identify the men. Edwards testified that the men were approximately 10 feet away from him and were standing behind his van and off to the side. Bloomfield testified that Edwards pointed to Calderon-Aparicio as the one with the bag and also described Calderon-Aparicio’s clothing and the fact that he was the only one with a mustache. Edwards testified that he was able to recognize Calderon-Aparicio as the same man who stuffed the bag into the drainage pipe. At trial, although CalderonAparicio no longer had a mustache, Edwards identified him as the person he saw stuffing the bag into the drainage pipe.
After that, Calderon-Aparicio and Barraza-Garcia were taken to the police station, and the van and car were impounded and searched. Bloomfield testified that in the car, the screws holding up the quarter panels were stripped because they had been removed so many times, which was an indicator that drugs had been smuggled in those compartments. Moreover, Bloomfield testified that the car’s transmission was in the trunk and the car’s engine had numerous parts taken off, which also indicated that items had been smuggled in both the transmission and engine.
Calderon-Aparicio was charged with one count of possession of marijuana with the intent to sell in violation of K.S.A. 65-4163(a) and K.S.A. 65-4105(d)(16) (count one) and one count of no drug tax stamp in violation of K.S.A. 79-5208 (count two). Three days before trial, the State successfully moved to amend count one of the complaint to charge possession of marijuana with the intent to sell, distribute, or deliver.
At trial, Calderon-Aparicio testified that on April 30, 2007, he and Barraza-Garcia had picked up a car and were driving through Kansas City to take the car back to Mexico. Calderon-Aparicio testified that he worked for Barraza-Garcia as a mechanic and that part of his job was to look at the cars that Barraza-Garcia wanted to buy and to determine if they were good cars. According to Calderon-Aparicio, as they were driving through Kansas City, their van began to malfunction. When they pulled onto an exit ramp and were in an intersection, the van turned off and smelled like smoke. Calderon-Aparicio testified that after he and Barraza-Garcia worked to unhitch the car and trailer and move the van and car to the sides of the road, he took out his tools, lifted the hood of the van, and tried to fix what was wrong.
According to Calderon-Aparicio, he did not see Barraza-Garcia once he started working on the van. Calderon-Aparicio denied that he was the person whom Edwards saw stuff the bag into the drainage pipe. Moreover, Calderon-Aparicio testified that he had never possessed or held onto the black bag at any time, that he had never seen the marijuana, and that he had never even used drugs.
The jury found Calderon-Aparicio guilty of both charges of possession of marijuana with the intent to sell, distribute, or deliver and no drug tax stamp. The trial court sentenced Calderon-Aparicio to a controlling sentence of 23 months in prison.
I. Sufficiency of the Evidence
First, Calderon-Aparicio argues that the evidence was insufficient to show that the crimes were committed in Johnson County, which was a necessary element of the charged crimes.
When a defendant challenges the sufficiency of the evidence in a criminal case, an appellate court reviews all the evidence in the light most favorable to the State to determine whether the court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Trautloff, 289 Kan. 793, 800, 217 P.3d 15 (2009).
In order to prove both the charge of possession of marijuana with the intent to sell, distribute, or deliver and the charge of no drug tax stamp, the State needed to establish that the charged acts occurred in Johnson County, Kansas, on or about April 30, 2007.
Generally,
“venue is a question of fact for the jury to determine in the trial of the case in chief. Venue may be established by proof of facts and circumstances introduced in evidence from which the place or places of commission of the crime or crimes may be fairly and reasonably inferred. [Citations omitted.]” State v. Pencek, 224 Kan. 725, 729, 585 P.2d 1052 (1978).
In recognizing that other competent evidence may be sufficient to establish venue of an offense, our Supreme Court in State v. Griffin, 210 Kan. 729, 731, 504 P.2d 150 (1972), stated as follows:
“It is true that under the provisions of K.S.A. 1970 Supp. 22-2602 [now 1971 Supp.], prosecution must be had in the county where the crime was committed. This court has recognized on many occasions that the venue of an offense is jurisdictional, and it must be proved to establish the jurisdiction of the court. However, it is not necessary to prove the jurisdictional facts of venue by specific question and answer that the offense occurred in the particular county. It may be established by other competent evidence showing the offense was committed within the jurisdiction of the court.”
Our Supreme Court in Griffin cited to its earlier decision in State v. Jones, 204 Kan. 719, 466 P.2d 283 (1970), where the defendant argued that the Ford County District Court lacked jurisdiction over the alleged crime of statutory rape because the evidence failed to establish venue of the offense in Ford County. In rejecting the defendant’s argument, our Supreme Court stated that venue was a question of fact for the jury. Our Supreme Court noted that the jury had been given an instruction which required it to find beyond a reasonable doubt that the act occurred within Ford County. Our Supreme Court stated that the jury, by its guilty verdict, had found from the evidence that the offense occurred in Ford County.
In reviewing the evidence presented at trial, our Supreme Court in Jones looked at the fact that the defendant’s family lived in Bucklin which was located in Ford County, that the children were taken to the movies in Bucklin before the alleged statutory rape incident, and that there was no indication that the defendant drove an extended distance into the country when the alleged incident oc curred. Our Supreme Court concluded: “Considering the entire record presented in this case, we cannot say the evidence upon which the juiy based its finding was insufficient to sustain the finding that the offense was committed in Ford County.” 204 Kan. at 724. Thus, our Supreme Court determined that the Ford County District Court had jurisdiction over the crime. 204 Kan. at 723-24.
More recently, our Supreme Court in State v. Stevens, 285 Kan. 307, 325-26, 172 P.3d 570 (2007), held that there was sufficient evidence to establish that the alleged crime was committed in Crawford County, although there was no specific testimony to that effect. In that case, the arresting officer testified that he worked for the Pittsburg Police Department in Crawford County and was on patrol duty when he was dispatched to a residence for a criminal trespass complaint. The officer arrived within minutes, and after gathering evidence, he arrested the defendant and transported him to the Pittsburg Police Department for testing.
In upholding this court’s decision that the evidence was sufficient for the jury to conclude beyond a reasonable doubt that the crime occurred in Crawford County, our Supreme Court stated:
“The Court of Appeals concluded that, based upon this evidence, the jury could have reasonably inferred that the events occurred in Crawford County. Additionally, there was no evidence that Justice had been dispatched outside of his jurisdiction to respond to a call concerning criminal trespass, and generally he would not have the authority to make an arrest as a law enforcement officer outside of his jurisdiction. 36 Kan. App. 2d at 335 (citing State v. Miller, 257 Kan. 844, 849, 896 P.2d 1069 [1995]). We agree that when the evidence is viewed in the light most favorable to the prosecution, it was sufficient to establish that Stevens committed the crime in Crawford County.” 285 Kan. at 325-26.
Here, similar to Jones and Stevens, there was sufficient evidence from which the jury could find that the offense occurred in Johnson County. Bloomfield testified that he was a police officer for the City of Shawnee and was on duty on April 30, 2007, when he was dispatched to the intersection of Interstate 435 and Midland Drive for a motorist assist. Importantly, the Johnson County trial court and jury could take judicial notice that the city of Shawnee is located within Johnson County. See State v. Deutscher, 225 Kan. 265, 272, 589 P.2d 620 (1979) (finding sufficient evidence to es tablish venue where crime occurred in city of Ellis and trial court could take judicial notice that city of Ellis located in Ellis County; State v. Wilson & Wentworth, 221 Kan. 359, 361-62, 559 P.2d 374 (1977) (rejecting defendant’s argument that evidence insufficient to establish that crime occurred in Cherokee County where evidence showed that crime occurred in city of Columbus and where jury and trial court “no doubt” took judicial notice of fact that Columbus located in Cherokee County); see also State v. Lieurance, 14 Kan. App. 2d 87, 91, 782 P.2d 1246 (1989) (“A finding of venue by a Sedgwick County court when a Sedgwick County deputy testifies about an occurrence while he was on patrol, along with the mention of Kellogg, Armour, and Post Oak Streets, is based on substantial competent evidence.”).
Further, the evidence in this case established that once the suspected marijuana was discovered, Bloomfield and the other two officers placed Calderon-Aparicio and Barraza-Garcia under arrest. Generally, Bloomfield would not have had the authority to make an arrest as a law enforcement officer outside of his jurisdiction. See State v. Stevens, 36 Kan. App. 2d 323, 335, 138 P.3d 1262 (2006); State v. Miller, 257 Kan. 844, 849, 896 P.2d 1069 (1995) (“[Gjenerally a police officer acting within his official capacity cannot make an arrest outside the jurisdiction from which his authority is derived.”).
The evidence established that the suspected marijuana was taken to the Shawnee Police Department, where it was inspected. Each bundle was then tested for the presence of marijuana and analyzed for latent fingerprints at the Johnson County Criminalistics Laboratory. Indeed, the reports from the fingerprint analysis and the marijuana testing show that the analysis and testing was done in the Criminalistics Laboratory, Office of the Johnson County Sheriff.
Importantly, in determining the weight and credibility to give to the testimony in a case, a jury is allowed “to use common knowledge and experience in regard to the matter about which a witness has testified.” See PIK Crim. 3d 52.09. Here, based on all of the evidence presented at trial, a jury could fairly and reasonably infer that the place of the commission of the crime was in Johnson County.
At oral arguments, in contending that the evidence was insufficient to establish that the crime occurred in Johnson County, Calderon-Aparicio relied heavily on State v. Star, 27 Kan App. 2d 930, 10 P.3d 37 (2000). In Star, the defendant argued that there was insufficient evidence to convict him of the crime of sale of cocaine within 1,000 feet of a school when there was no evidence that the building referred to as Hickock School was used for school instruction, attendance, or extracurricular activities. In agreeing with the defendant’s argument, this court noted that the State was required to prove that the school was “a structure used by a unified school district or an accredited nonpublic school for student instruction or attendance or extracurricular activities of pupils enrolled in kindergarten or any of the grades one through 12” under K.S.A. 1999 Supp. 65-4161(d). This court held that where such evidence is lacking, “a jury cannot not be allowed to speculate or infer through its own observations that the structure complies with the statutory definition of a school.” 27 Kan. App. 2d at 936.
Star differs significantly from this case in that the State was required to introduce evidence to meet a specific statutory definition of school under K.S.A. 1999 Supp. 65-4161(d). There was no indication in Star that the State had presented evidence of facts and circumstances from which the jury could fairly and reasonably infer that the transaction occurred within 1,000 feet of a school, as specifically defined by K.S.A. 1999 Supp. 65-4161(d). In the present case, however, the State presented significant evidence from which a juiy could fairly and reasonably infer that the crimes occurred in Johnson County.
With all of ihe evidence presented to the jury in this case — a Shawnee Police Officer’s involvement in being dispatched to the scene of the incident and in arresting the defendant; the fact that the incident occurred at the intersection of Interstate 435 and Midland Drive; the fact that the evidence was taken to the Shawnee Police Department where it was inspected; and the Johnson County Sheriff Office’s heavy role in analyzing and testing the suspected marijuana, we are convinced that a rational factfinder could have found that Calderon-Aparicio committed the crimes of possession of marijuana with the intent to sell, deliver, or distribute and no drug tax stamp in Johnson County beyond a reasonable doubt.
II. Eyewitness Identification
Next, Calderon-Aparicio contends that his due process rights were violated when the police used an unnecessarily suggestive show-up identification. Whether an eyewitness identification was unnecessarily suggestive in violation of a defendant’s right to due process presents a mixed question of law and fact. An appellate court reviews the factual basis of the trial court’s decision using a substantial competent evidence standard and the legal conclusions drawn from those facts using a de novo standard. See State v. Shumway, 30 Kan. App. 2d 836, Syl. ¶ 4, 50 P.3d 89 (2002).
A. Failure to Preserve Issue for Appeal
Importantly, Calderon-Aparicio did not move to suppress evidence of this show-up identification before trial or object to introduction of this evidence at trial. As a general rule, defendants must object to an out-of-court identification during trial to preserve the issue for appeal. State v. Hunt, 275 Kan. 811, 813, 69 P.3d 571 (2003); State v. Edwards, 264 Kan. 177, 188-89, 955 P.2d 1276 (1998). This is consistent with the rule under K.S.A. 60-404 that “a party must lodge a timely and specific objection to the admission or exclusion of evidence in order to preserve the evidentiary question for review.” State v. King, 288 Kan. 333, 348, 204 P.3d 585 (2009).
The purpose of the contemporaneous objection rule is to avoid the use of tainted evidence and thereby avoid possible reversal and a new trial. 288 Kan. at 342. As our Supreme Court recently stated in State v. Richmond, 289 Kan. 419, 429, 212 P.3d 165 (2009), “the trial court must be provided the specific objection so it may consider as fully as possible whether the evidence should be admitted and therefore reduce the chances of reversible error.”
There are, however, several exceptions to the general rule that a new legal theoiy may not be asserted for the first time on appeal, including the following: (1) the newly asserted theoiy involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) the judgment of the trial court maybe upheld on appeal despite its reliance on the wrong ground or assignment of a wrong reason for its decision. State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010).
Calderon-Aparicio points out that our Supreme Court in Hunt, 275 Kan. at 813, applied the second exception (consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights) to address the issue of whether the eyewitness identification was unnecessarily suggestive when the defendant failed to object to the out-of-court identification at trial. Moreover, Calderon-Aparicio argues that because the instant issue is not merely an evidentiary issue but also involves his due process rights, this court should apply the exceptions to address his argument.
Nevertheless, in more recent years, our Supreme Court in State v. King, 288 Kan. 333, 348-49, 204 P.3d 585 (2009), held that evidentiary claims must be preserved by a contemporaneous objection at trial in order for those claims to be reviewed on appeal:
“[T]he legislature’s intent in enacting K.S.A. 60-404 is clear: a party must lodge a timely and specific objection to the admission or exclusion of evidence in order to preserve the evidentiary question for review.
“We stress today the importance of this legislative mandate. K.S.A. 60-404 dictates that evidentiary errors shall not be reviewed on appeal unless a party has lodged a timely and specific objection to the alleged error at trial. Although our past decisions may have relaxed the objection requirement in the evidentiary context, this practice not only has led to confusion as to the standards that should be applied on appeal, but also has de-emphasized the role of counsel at trial and has impaired the gate-keeping function of district courts in this state. See Baker, 204 Kan. at 611, 464 P.2d 212. More importantly, this practice of reviewing evidentiary questions when no objection has been lodged runs contrary to the legislature’s clearly stated intent in K.S.A. 60-404.
“. . . From today forward, in accordance with the plain language of K.S.A. 60-404, evidentiary claims-including questions posed by a prosecutor and responses to those questions during trial — must be preserved by way of a contemporaneous objection for those claims to be reviewed on appeal.”
Since King, our Supreme Court has consistently “been refusing to review an evidentiary issue without a timely and specific objection even if the issue involves a fundamental right.” State v. Dukes, 290 Kan. at 488; see State v. Richmond, 289 Kan. 419, 429-30, 212 P.3d 165 (2009) (where our Supreme Court expressed concern that the contemporaneous objection rule “case-law exceptions would soon swallow the general statutory rule”); Hollingsworth, 289 Kan. at 1256-57.
Based on our Supreme Court’s recent holdings in King and Dukes, we determine that Calderon-Aparicio, by failing to object to introduction of the eyewitness identification into evidence at trial, has failed to preserve this issue for appeal.
B. Defense Strategy
Moreover, even if Calderon-Aparicio had properly preserved this issue for our review, we would determine that his argument fails because the record demonstrates that the defense elected to cross-examine the eyewitness identification procedure as part of its defense strategy. Our Supreme Court has held that “the failure to object to an in-court identification may be considered to be a defense strategy where the defendant elects to explore the circumstances of the pretrial identification in the presence of the jury by cross-examination. [Citation omitted.]” Edwards, 264 Kan. at 189.
Here, during Edwards’ cross-examination at trial, defense counsel explored the circumstances of Edwards’ eyewitness identification through cross-examination. Specifically, defense counsel was able to elicit testimony that Edwards was going approximately 55 miles an hour when he saw the alleged incident occur, that Edwards had turned around in his car to watch the men, that he saw the two men for only about 15 seconds before his wife merged into traffic, and that he was about 40 yards away from the man when the man actually put the bag into the drainage pipe. Later, during Calderon-Aparicio’s direct examination, defense counsel elicited testimony that Calderon-Aparicio was busy working on the van after it broke down and that he did not know where Barraza-Garcia was during that time. This fine of testimony suggested that Barraza Garcia could have been the one to hide the bag in the drainage ditch.
During closing arguments, defense counsel focused on the facts surrounding Edwards’ eyewitness identification to argue that the identification was not rehable:
“If [Edwards] is the passenger going up onto the highway, he is in the far side from it. His wife is here. He is actually having to look past her, through her to see what is going on. He is having to look through things through the compartments and stuff, so he is not going to have a clear sight in any regard.
“And then you have the fact that he isn’t right up next to them. He is on the on ramp heading away at a rapid speed. He is making mistakes with regard to who he sees on here. You see that he cannot identify what the people were wearing. He cannot identify their hairstyle. He cannot identify the men by anything. Oh, he says there is a mustache. That is the only thing he remembers. But you know what? If you have got to — close proximity to one another, you have got confusion there. The thing is he can’t remember anything else, anything else about it, not even the most important things. This bag. This bag. That is where eyewitness accounts are very dangerous. He isn’t remembering the important facts of the case.”
Defense counsel then pointed out that Calderon-Aparicio was working on the van when Bloomfield arrived at the scene and that it was Barraza-Garcia, not Calderon-Aparicio, who tried to get back in the van.
Based on how the witnesses were cross-examined at trial and defense counsel’s closing argument, it is apparent that CalderonAparicio employed a trial strategy to challenge the weight to give to Edwards’ eyewitness identification rather than to challenge the legal admissibility of the identification.
C. Two-Step Test for Determining Exclusion of Eyewitness Identification
Finally, under the two-step process for analyzing whether an eyewitness identification should be excluded, the record in this case shows that the eyewitness identification procedure was not impermissibly suggestive and did not lead to a substantial likelihood of misidentification.
In analyzing whether an eyewitness identification should be excluded, a court first determines whether the procedure used for making the identification was impermissibly suggestive. If the pro cedure is impermissibly suggestive, then the court considers whether the procedure led to a substantial likelihood of misidentification. State v. Trammell, 278 Kan. 265, 270, 92 P.3d 1101 (2004).
Under the second step, a court must consider the totality of the circumstances surrounding the identification as outlined by the following factors from Hunt, 275 Kan. at 817-18: (1) the witness’ opportunity to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description; (4) the level of certainty demonstrated by the witness at the confrontation; (5) the length of time between the crime and the confrontation; (6) the witness’ capacity to observe the event, including his or her mental and physical acuity; (7) whether the witness’ identification was made spontaneously and remained consistent thereafter or whether it was the product of suggestion; and (8) the nature of the event being observed and the likelihood that the witness would perceive, remember, and relate it correctly. Trammell, 278 Kan. at 270-71.
In considering the first factor, that is, whether the eyewitness identification in this case was impermissibly suggestive, we note that the eyewitness identification was not a typical show-up identification. “A ‘show-up’ is essentially one person, almost always in custody, sometimes in handcuffs, being identified by an individual who usually was the victim of the crime a short time before the identification.” Hunt, 275 Kan. at 815. Here, however, Edwards was not the victim of a crime but instead was an independent caller who had observed two men walking beside a van and then had seen the suspicious activity of a man stuffing a bag into a drainage pipe near the side of an interstate. Moreover, Edwards was not shown one person but was instead shown both Calderon-Aparicio and Barraza-Garcia at the same time and asked to identify which one was the man he saw stuffing the bag into the drainage pipe.
Calderon-Aparicio points out that in State v. Lawson, 25 Kan. App. 2d 138, 959 P.2d 923 (1998), this court determined that the two-person show-up identification procedure used in that case was not sufficiently distinct from a one-person show-up identification to be permissible. There, a robbery victim was shown two men and asked to identify which one was the perpetrator. The men were handcuffed and pulled out of police cars, and the robbery victim was shown one man at a time when asked to make the identification. This court determined that there were no exigent circumstances to justify suggestive procedure used by police officers to obtain an identification of the defendant as the robber. As a result, this court determined that the identification procedure was unnecessarily suggestive.
Unlike Lawson, this case did not involve a scenario where the police were searching for or in hot pursuit of a person fleeing a crime scene and then presented the crime victim with the person they found. Under such circumstances, a one-person or two-person show-up identification could be impermissibly suggestive because it would carry the potential of identifying the wrong person as present at the scene of the crime. In this case, however, it was pretty well established that both Calderon-Aparicio and BarrazaGarcia were the two men with the van after it broke down. When Edwards’ call was received, the police were already at the location and close to where the two men were outside of their van. Calderon-Aparicio admitted that he and Barraza-Garcia were outside of the van after it broke down. There was no evidence about any other men being in the area during that time.
Thus, it is apparent that the only question for Edwards was which of the two men he saw stuff the bag into the drainage pipe. The evidence established that Edwards was shown both men when he returned to the scene and was asked to identify which man he saw stuffing the bag into the drainage pipe. There was no indication that the officers suggested one man over the other for Edwards’ identification. Under these circumstances, the eyewitness identification procedure was not impermissibly suggestive.
Further, when considering the Hunt factors that are used in determining whether the procedure led to a substantial likelihood of misidentification, we note that Edwards testified that he was in the passenger seat of his van when he saw the two men. Edwards further testified that he was then able to turn and watch one of the men stuff a bag into the drainage pipe. Although Edwards acknowledged that his wife was accelerating onto the interstate at a rate of approximately 55 miles per hour while Edwards was watching the incident, Edwards was still able to tell the police over the telephone that the man stuffing the bag into the drainage pipe had a mustache and was older than the other man.
Moreover, the evidence presented at trial showed that a short amount of time (only about 25 minutes passed) between the time that Edwards called 911 and when the police contacted him about returning to the scene. Once Edwards returned to the scene that same evening, he was able to point out Calderon-Aparicio as the man stuffing the bag into the drainage pipe. There was no indication from the testimony presented at trial that Edwards had any hesitancy in pointing out Calderon-Aparicio or that Edwards’ identification was the product of suggestion.
A review of the totality of the circumstances as presented by the evidence at trial leads to the conclusion that there was not a substantial likelihood of misidentification in the eyewitness identification procedure utilized in this case.
III. Amendment of Complaint
Finally, Calderon-Aparicio argues that the trial court erred in allowing the State to amend count one of the complaint, which charged possession of marijuana with intent to sell, to charge possession of marijuana with intent to sell, deliver, or distribute.
Under K.S.A. 22-3201(e), “[t]he court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.” See State v. Starr, 259 Kan. 713, 718, 915 P.2d 72 (1996). Thus, the following two inquiries must be made as to “whether an amendment prior to submission of the case to the jury may be permitted: (1) Does the amendment charge an additional or different crime? [and] (2) Are the substantial rights of the defendant prejudiced by the amendment? [Citations omitted.]” State v. Matson, 260 Kan. 366, 370, 921 P.2d 790 (1996).
In State v. Bischoff, 281 Kan. 195, Syl. ¶ 7, 131 P.3d 531 (2006), however, our Supreme Court stated: “[T]he charging of a different crime may be allowed via an amended complaint before trial, pro vided the substantial rights of the defendant are not prejudiced.” See State v. Woods, 250 Kan. 109, Syl. ¶ 1, 825 P.2d 514 (1992); State v. Niblock, 230 Kan. 156, 163, 631 P.2d 661 (1981). Whether to allow the amendment is subject to the trial court’s discretion. Our Supreme Court has consistently given considerable latitude to the State in amending a complaint before trial. Bischoff, 281 Kan. at 205.
Citing State v. Schoonover, 281 Kan. 453, 495, 133 P.3d 48 (2006), Calderon-Aparicio asserts that if two charges require different elements to be proven, then they are not the same crime. Calderon-Aparicio maintains that the elements necessary to prove possession with intent to sell are different than the elements required to prove possession with intent to deliver or distribute, and therefore, the amendment in this case charged a different crime.
Nevertheless, Schoonover dealt with whether charges in a complaint under different statutes are multiplicitous. Our Supreme Court held that “the test to determine whether charges in a complaint or information under different statutes are multiplicitous is whether each offense requires proof of an element not necessaiy to prove the other offense; if so, the charges stemming from a single act are not multiplicitous.” (Emphasis added.) 281 Kan. at 495. In addition, our Supreme Court held that “this same-elements test will determine whether there is a violation of § 10 of the Kansas Constitution Bill of Rights when a defendant is charged with violations of multiple statutes arising from the same course of conduct(Emphasis added.) 281 Kan. at 495. As a result, the language in Schoonover is not applicable to the present case.
Our Supreme Court has held that die State’s amendment of a complaint to charge an alternative theory for committing the same crime does not constitute the charging of an additional or different crime:
“Premeditated and felony murder are not separate and distinct offenses but are two separate theories under which die crime of first-degree murder may be committed. The amendment at the close of the State’s case charging the defendant under the alternative theory of first-degree premeditated murder when the defendant had been charged with felony murder did not charge an additional or different crime.” State v. Starr, 259 Kan. 713, 720, 915 P.2d 72 (1996).
Here, as in Starr, the State did not amend the complaint to charge an additional or different crime. The amended complaint did not permit the juiy to convict Calderon-Aparicio of an offense different from the offense charged in the complaint. The amended complaint allowed alternative ways of committing a single offense. Here, count I of the complaint charged possession of marijuana with the intent to sell, and count I of the amended complaint charged possession of marijuana with the intent to sell, to distribute, or to deliver. K.S.A. 65-4163(a), the statute under which Calderon-Aparicio was charged, merely enumerates one or more ways of committing a single offense. See PIK Crim. 3d 67.14. As a result, Calderon-Aparicio’s argument fails.
Moreover, in reviewing the record in this case, we determine that the amendment should be upheld because Calderon-Aparicio’s substantial rights were not prejudiced. Specifically, as the State points out, the evidence in this case was the same whether Calderon-Aparicio was charged with possession with the intent to sell or possession with the intent to sell, distribute, or deliver. Indeed, in objecting to the State’s amendment of the complaint 3 days before trial, defense counsel admitted drat the evidence remained the same.
Although Calderon-Aparicio asserts in his appellate brief that the amendment of the complaint 3 days before trial did not provide him with sufficient opportunity to prepare a proper defense against the new charge of delivery, he does not detail how his defense would have changed to meet the amendment. Calderon-Aparicio’s defense at trial was that he never possessed the black bag with the marijuana and never placed the bag in the drainage pipe. Based on the evidence in the case, it would be difficult to ascertain how Calderon-Aparicio would have changed or modified his defense. Importantly, upon being questioned by the trial court about whether there was any unfair surprise with the amendment, defense counsel admitted that the defense “anticipated the arguments.” As a result, the appellate record in this case fails to demonstrate any substantial prejudice to Calderon-Aparicio in the State’s amendment of ihe complaint.
We find no abuse of discretion in the trial court’s decision allowing the State to amend the complaint.
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Pierron, J.:
Jeffrey and Joanne Evans appeal the district court’s decision to uphold the City of Emporia’s (City) granting of a conditional use permit (CUP) to Westar Energy, Inc., (Westar) to upgrade an existing electrical substation in the Evans’ neighborhood. The Evans argue the court erred in finding the City was reasonable in granting the CUP with only limited restrictions; that the expansion of the substation should have required the entire station to be brought into code compliance; and the court erred in denying their petition to join additional plaintiffs. We affirm.
The facts in this case are fairly straightforward. The property owned by Westar has been used as an electric substation since 1937. Over time the property around the substation has developed and changed to mostly residential. The Evans’ house was built next to the substation in 1977. The Evans purchased their house in 2004. Upon the adoption of the 1986 zoning regulations, the area including Westar’s substation was zoned single family, low density residential. However, the substation was grandfathered in under the zoning regulations as a legal nonconforming use.
Westar made two relatively recent upgrades to the substation. In 1980, Westar added a transformer. In 2000, Westar brought in additional equipment. Early in 2008, Westar approached the City about adding equipment to the substation and extending the equipment coverage on the property an additional 100 feet. The City decided that Westar would be required to file for a CUP in order to complete the expansion.
On August 18, 2008, Westar filed an application for a CUP to expand the equipment coverage of its electric substation 100 feet and add a fourth transformer. Westar indicated that approval of the CUP would provide sufficient, rehable power for east Emporia and allow the existing substation to meet the community’s growing need for power. Westar’s CUP was discussed at two meetings before the Emporia Lyon County Metropolitan Planning Commission (September 23, 2008, and October 28, 2008) and three meetings before the Emporia City Commission (October 22, 2008, and November 5 and 19, 2008). Protest petitions were filed by the Evans, David and Lupe Villar, Stephen Gfeller, Juan Flores, Sara J. Kelly Trust, Bill Oswald, Erma Tucker, and Nathaniel Jones. The proceedings before the planning commission and the city commission involved lengthy and detailed discussion of the issues in this case. The protestors presented evidence and testimony in opposition to expanding the substation and focused their arguments on noise abatement, aesthetics, stray voltage, and electromagnetic fields (EMF’s).
On October 28, 2008, tire planning commission passed a motion to approve Westar’s CUP with two conditions: (1) Westar would construct a 9-foot decorative concrete wall on the north and south sides of the property and a 9-foot chain link fence on the east and west ends of the area, and (2) any future expansions of the substation would require an amendment of the CUP. On November 19, 2008, the city commission unanimously adopted the planning commission’s recommendation and granted Westar’s CUP with tire two suggested restrictions.
The Evans filed a petition for judicial review on December 16, 2008. They argued the city commission’s approval of Westar’s CUP was unreasonable. The district court conducted a full hearing on the matter allowing full argument by both sides. The court entered an extensive memorandum decision affirming the approval of Westar’s CUP. The court found the record demonstrated the planning commission and the city commission balanced the interest of Westar with the interest of the surrounding owners and the interest of the community and the Evans failed to prove the unreasonableness of the City’s decision.
The Evans appeal.
The Evans first argue it was unreasonable for the City to grant Westar’s CUP without mandating additional restrictions or modifications for noise abatement, aesthetic concerns, stray voltage, and EMF’s. The Evans also contend the district court “improperly deferred to the City’s shallow and flawed decision-making process and further failed to recognize errors in the zoning decision.”
Zoning decisions are judged by a reasonableness standard. See K.S.A. 12-760(a). The appellate court, like the trial court, reviews a zoning board’s decision by a reasonableness standard based on the facts. Rodrock Enterprises, L.P. v. City of Olathe, 28 Kan. App. 2d 860, 863, 21 P.3d 598, rev. denied 271 Kan. 1037 (2001). The Kansas Supreme Court discussed the standard of review of zoning issues in McPherson Landfill, Inc. v. Board of Shawnee County Comm'rs, 274 Kan. 303, 304-05, 49 P.3d 522 (2002):
“ ‘(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.’ ”
The McPherson case also quoted our Supreme Court in Golden v. City of Overland Park, 224 Kan. 591, 598, 584 P.2d 130 (1978), and Board of County Comm’rs v. City of Olathe, 263 Kan. 667, 677, 952 P.2d 1302 (1998), listing eight factors to assist courts in reviewing whether a zoning authority’s final decision was reasonable. The Golden factors to assist courts in reviewing whether a zoning authority’s final decision was reasonable are:
“ ‘(1) [t]he 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;
“ ‘(6) the gain to the public health, safety, and welfare by the possible diminution in value of the developer’s property as compared to the hardship imposed on the individual landowners.
“ ‘(7) [t]he recommendations of a permanent or professional planning staff; and
“ ‘(8) the conformance of the requested change to the city’s master or comprehensive plan.’ ” McPherson, 274 Kan. at 306.
Gump Rev. Trust v. City of Wichita, 35 Kan. App. 2d 501, 131 P.3d 1268 (2006), involved the denial of a conditional use permit for the erection of a telecommunications tower. Gump demonstrates the advisoiy nature of the Golden criteria. In Gump, the reasonableness of the denial of the permit application was based solely on aesthetic considerations, factors not even mentioned in Golden. As stated in Board of Johnson County Comm’rs, 263 Kan. at 677, the Golden criteria “are suggested factors only [they are advisory in nature]. Other factors may be important in an individual case.” See Gump, 35 Kan. App. 2d 501, Syl. ¶ 6.
In reviewing the commission’s decision, we are not free to make findings of fact independent of those explicitly or implicitly found by the commission. We are limited to determining whether the commission could have reasonably found the facts necessary to justify its decision. See M.S.W., Inc. v. Marion County Bd. of Zoning Appeals, 29 Kan. App. 2d 139, 145-46, 24 P.3d 175, rev. denied 272 Kan. 1419 (2001). There is a presumption that the planning commission acted reasonably, and the court may not substitute its judgment for that of the administrative body. Board of Johnson County Comm’rs., 263 Kan. at 683.
The Evans argue there were four areas of concern with the expansion of the substation that were not adequately addressed by the City. However, the City is not required to make formal findings concerning the granting of Westar’s CUP.
“Although strongly encouraged, a governing body is not required to make formal findings of fact concerning its decisions regulating land use. It is more important that there exists a record of what the governing body considered before making its decision so that the reviewing court is not left in a quandary as to why the decision was made.” Zimmerman v. Board of Wabaunsee County Comm’rs, 289 Kan. 926, Syl. ¶ 11, 218 P.3d 400 (2009).
Noise Abatement
The basis of the Evans’ noise complaints evolved from Westar hiring Coffeen Fricke & Associations, Inc. (Coffeen), an acoustics consultation firm in December 2007 to perform an evaluation on the substation and the Evans’ house. The Evans hired Veneklasen Associates (Veneklasen), another acoustics firm, to review the Coffeen report. Veneklasen concluded that the noise in the Evans’ home was severe and would only increase with expansion. Westar acknowledges there is a “pure tone” typical of transformers and it can be psychologically annoying. The Coffeen report recommended the following options: (1) a barrier wall 17-feet high made of a minimum 6-inch-thick normal weight concrete; and (2) replacing the windows in the Evans’ house with higher rated acoustical windows.
The evidence presented to the planning commission and the city commission was that a 17-foot barrier wall would be very expensive and cost over a million dollars to construct. It is undisputed that Westar offered to replace the windows in the Evans’ house, but the Evans have not accepted the offer stating they already have double pane windows in their house. It is apparent the planning commission and later the city commission had to balance the competing interests of all the parties in this case and setded on a 9-foot barrier wall. There is reasonable evidence in the record which supports the finding that a 9-foot decorative barrier wall would be sufficient.
Aesthetics
It is difficult to understand how the topic of aesthetics could be addressed on appeal. As the district court pointed out, at the October 28, 2008, planning commission meeting, counsel for the Evans argued, “No one is complaining about how the substation looks. Eveiyone is complaining about the noise levels coming from this substation.”
We recognize the industrial appearance of the substation and its location in a residential area. It is clear the city commission did as well and also considered this issue based on comments like that of Commissioner Johnson at the November 19, 2008, meeting, “it is always difficult to put things that might be considered as undesirable in areas of the community.” It is also clear the City considered the aesthetics in requiring Westar to construct a 9-foot decorative wall between the Evans’ property and the substation.
Stray Voltage
The Evans testified they had received high voltage electric shocks in their house and attributed them to the substation. Counsel for the Evans testified that she spoke with an electrical engineer and that any ground current could return back into the house through water pipes and anything else metal. The testimony from Westar indicated that stray voltage can come from two sources, static and electrical faults. Static starts at the 230 KV level and it is pretty common at the 345 KV level, but it does not occur at the 115 KV level. The substation is at the 115 KV level. As far as electrical faults, there is a grid of copper cable in the ground under the substation and that will take any fault from the substation directly into the ground. The commission evidently accepted this evidence.
Electromagnetic Forces
An electromagnetic field (EMF) is the invisible lines of force that surround any electrical device. The Evans argue the City failed to take any action to determine whether a public health and safety risk was present concerning EMFs. On the contrary, the commission heard evidence from Westar that in the late 1990’s, the gov emment sponsored a 6-year study by the Department of Energy and the National Institute of Health that concluded there was no connection between residential EMFs and cancer. Westar presented evidence that EMF readings in the Evans’ home were normal. The Evans did not present any evidence to the contrary.
Given our standard of review and the presumption in favor of the zoning authority, the City’s action was not so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large. The City appeared to be well aware of the residential characteristics in this area, but also the increasing electrical consumption in the community with the increased development. The City’s decision was reasonable on this point.
The City had substantial information before it involving noise, aesthetics, stray voltage, and EMFs. The district court provided a detailed look at how the City’s decision took into consideration many of the Golden factors:
“The record clearly shows both Commissions were well aware of the character of the neighborhood. Both the written staff report presented to the Planning Commission and Mr. Kevin Hanlin’s oral report to the City Commission pointed out the area was Rl, Low Density Residential. The neighbors to the substation addressed each Commission stating their concerns the expansion would have on their homes. Clearly both Commissions were aware of the zoning uses of nearby property all being single family residential thus showing consideration of Golden factors number 1 and 2.
“A large part of the discussion at both the Planning Commission level and the City Commission level centered around the extent to which the change would detrimentally affect nearby property. There was significant discussion regarding stray voltage, EMF’s, and noise emanating from the substation. The requirement that a wall be built was clearly in direct response to the noise concern. The Planning Commission determined they had no way to address the other issues of EMF’s and stray voltage. Golden factor number 4 was considered.
“The minutes from the City Commission meeting of November 19,2008 clearly reveal that four of the five Commissioners considered and recognized the gain to the public versus the hardship on the individual property holders. Each of the Commissioners who spoke referred to the need of more electricity to serve the community. The gain to public versus hardship to neighbors is Golden factor number 6.
“Staff recommended granting the conditional use permit. This is Golden factor 7:
The City has the right to deny or accept a conditional use permit, and its decision carries the presumption of reasonableness. As was stated by the city commission, this substation has been a part of this area for a very long time. No one wants to have an electrical substation for a neighbor, but the city commission had to balance all the interests involved, including Westar’s, the Evans’ and other neighbors’, and the community as a whole. It is reasonable for the City to plan for the increasing electrical needs of the community and reasonable to make the restrictions it did in granting Westar’s CUP. The decision is not so wide of the mark that it lies outside the realm of fair debate.
Next, the Evans argue the expansion of the substation required Westar to bring the entire facility into compliance with the City’s zoning codes. Specifically, the Evans contend Westar’s expansion of the substation requires it to comply with Section 20-701a of the City’s zoning regulations regarding screening.
Portions of the City’s zoning regulations are included in the record on appeal. Section 21-101(c) defines nonconforming use as “an existing use of a structure or land which does not comply with the use regulations application to new uses in the zoning district in which it is located.” Section 21-401(d) provides: “Enlargement: No structure that is devoted in whole or in part to a nonconforming use shall be enlarged or added to in any manner unless such structure and the use thereof shall thereafter conform to the regulations of the district in which it is located.”
The City’s zoning regulations, Section 6-401, expressly permit electric substations within R1 residential districts upon issuance of a CUP. The district court characterized the substation as a “lawful conforming use” under Section 21-5a of the zoning regulations:
“Where a use exists at the time of the effective date of these regulations and is permitted by these regulations only as an exception in the zoning district in which it is located, such use shall be deemed to be nonconforming use, but shall, without further action, be deemed a lawful conforming use in such zoning district. However, such use shall not expand or enlarge until application is made to and approved by the board of zoning appeals as set out in Article 25.”
As a lawful conforming use, the district court held the substation was not subject to the nonconforming uses section of the zoning regulations.
In Crumbaker v. Hunt Midwest Mining, Inc., 275 Kan. 872, 881, 69 P.3d 601 (2003), the Kansas Supreme Court discussed the concept of nonconforming use. The court noted that the concept of nonconforming use developed as a means to avoid confrontation with landowners by permitting landowners to continue their properties’ preexisting uses. 275 Kan. at 881. The court also stated: “We have defined such an ‘existing’ or ‘nonconforming use’ as ‘a lawful use of land or buildings which existed prior to the enactment of a zoning ordinance and which is allowed to continue despite the fact it does not comply with the newly enacted use restrictions.’ ” 275 Kan. at 881
Under Kansas law, the right to a nonconforming use is to be strictly construed. See Goodwin v. City of Kansas City, 244 Kan. 28, 32, 766 P.2d 177 (1988). In addition, most courts place the burden of proving an alleged nonconforming use on the party claiming the nonconforming use. 244 Kan. at 33.
The Evans argue the district court’s finding of a legal conforming use is directly contrary to the City’s own position that the substation is a legal nonconforming use under Section 21-101(c). Even if we disagree with the district court and hold the substation is a legal nonconforming use as argued by the Evans, Section 20-701(b) is not applicable and the screening requirements are not applicable. As stated in the Evans’ reply brief, Section 20-701a states: “Commercial or industrial use adjacent to a residential zone. Whenever a commercial or industrial zoned tract adjacent to a residential zoning district is used, screening to protect the residential land from the affect of the commercial use shall be required.”
We can address the interpretation of Section 20-701a in a way similar to our standard for statutory review. See Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009) (interpretation of a statute is a question of law over which this court has unlimited review). Westar’s property is zoned R-1 Low Density Residential. Because Westar’s property is not a “commercial or industrial zoned tract” under Section 20-701a the screening requirements requested by the Evans do not apply. The Evans do not argue that Westar’s property is in violation of any other zoning regulations. Although the district court may not have been correct in its char acterization of Westar’s property, it properly rejected the Evans’ claims of a screening requirement. See Robbins v. City of Wichita, 285 Kan. 455, 472, 172 P.3d 1187 (2007) (If a district court reaches the correct result, its decision will be upheld even though it relied upon the wrong ground or assigned erroneous reasons for its decision.). Although it might be more consistent to also require such things as electrical substations to be screened, although possible under the regulation here, it is not required.
The Evans also argue the district court erred in denying their motion to join additional plaintiffs.
Interpretation of a statute is a question of law over which this court has unlimited review. Unruh, 289 Kan. at 1193. K.S.A. 12-760(a) provides: “Within 30 days of the final decision of the city or county, any person aggrieved thereby may maintain an action in the district court of the county to determine the reasonableness of such final decision.”
The city commission granted Westar’s CUP on November 19, 2008. The Evans filed their petition for judicial review on December 16, 2008. It was not until July 13, 2009, that Nathaniel Jones and David and Lupe Villar filed a motion to join as additional plantiffs in district court. As seen above, these proposed additional plaintiffs filed protest petitions and spoke at the planning commission meetings. In their motion, the proposed additional plaintiffs claimed their property would be adversely affected by the CUP, no new or additional issues were raised, and their motion was not intended to alter or delay the court proceedings. In denying the motion, the district court stated K.S.A. 12-760(a) was clear that this was not a criminal case with constitutional concerns, the parties stated they would not be raising any new issues, and there were possible jurisdiction issues if the Evans would settle their case and the other parties were not satisfied with the result.
The Evans argue that K.S.A. 12-760 is silent as to whether a participant in the municipal proceedings may join an appeal filed by another participant to the same proceedings if the former did not file a timely and separate appeal. We answer this question in the negative. The time limitations of K.S.A. 12-760 are apparent. Under K.S.A. 12-712 (repealed 1991), the predecessor to K.S.A. 12-760, the court strictly applied the time limitations. See Bonanza, Inc. v. McLean, 242 Kan. 209, 216, 747 P.2d 792 (1987) (“Clearly, more than 30 days had elapsed before the suit was filed. We hold that the trial court correctly ruled that defendant McLean was barred by K.S.A. 12-712 from attacking the validity of the zoning ordinance.”); St. John v. City of Salina, 9 Kan. App. 2d 636, 684 P.2d 464 (1984) (“The plaintiffs’ only remedy was to file for review under 12-712. They did not do so within the thirty-day time limit and now they are barred. The trial court did not err in dismissing plaintiffs’ action.”).
The additional parties are clearly outside the 30-day time limitation for filing an appeal of the City’s decision to grant Westar’s CUP. There is no dispute the additional parties are “aggrieved parties” within the context of K.S.A. 12-760(a). However, the statute is clear — there are 30 days in which to file a judicial appeal. Allowing the additional parties to circumvent the 30-day rule in K.S.A. 12-760(a) by bootstrapping onto a properly filed appeal of another aggrieved party cannot be within the legislature’s contemplation of the time constraints of the statute.
Affirmed. | [
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Leben, J.:
Prison inmates have some due-process rights when prison officials enter disciplinary sanctions against them that take away either liberty or property interests. So Keith Sauls filed a court action challenging the $20 fine and loss of good-time credits entered as a sanction against him for escaping from custody for a brief time. The district court threw out Sauls9 suit because it had not been physically served on the Secretary of Corrections within time limits applicable to most civil lawsuits. But we reverse because that time limit does not apply to prisoner habeas suits under K.S.A. 60-1501 and because Sams’ due-process rights were violated when prison officials refused without an adequate explanation to allow him to call witnesses in his defense.
The District Court Should Not Have Dismissed Sauls’ Lawsuit as Untimely.
An inmate challenging an action taken against the inmate by the Secretary of Corrections must file a petition for a writ of habeas corpus within 30 days of the Secretary’s action. K.S.A. 60-1501(b). In addition, under the prison mailbox rule, a habeas petition is considered filed when it is delivered to prison authorities for mailing — not on the date it is eventually filed with the court clerk— since those prison authorities control what happens after the paper is delivered to them. Wilson v. State, 40 Kan. App. 2d 170, 175, 192 P.3d 1121 (2008); Taylor v. McKune, 25 Kan. App. 2d 283, 286-88, 962 P.2d 566 (1998); see also Houston v. Lack, 487 U.S. 266, 101 L. Ed. 2d 245, 108 S. Ct. 2379 (1988).
Sauls alleged in his petition that he first received notice of the Secretaiy’s action affirming the disciplinary sanction against him on September 23, 2008, and that he gave his habeas petition to prison officials for filing on October 23, 2008. Those facts were accepted by the Secretary of Corrections when he filed a motion to dismiss — and under those facts, the time limit set out in K.S.A. 60-1501(b), and the prison mailbox rule, Sauls’ filing was timely.
The district court granted the Secretary’s motion to dismiss based on other statutes that apply generally to civil lawsuits but which have no application in habeas petitions under K.S.A. 60-1501. Several procedural steps not called for under K.S.A. 60-1501 may have helped to lead the district court down the wrong path.
Let’s start with what is supposed to happen. K.S.A. 60-1501(b) requires only that “an inmate in the custody of the Secretary of Corrections shall file a petition for writ [of habeas corpus] . . . within 30 days from the date the action was final.” (Emphasis added.) Filing of the petition triggers the district court’s duty to review the petition to determine whether it appears to set forth any claims that may entide the inmate to relief. K.S.A. 60-1503(a). If the district court determines that the inmate may be entitled to relief, the court “shall issue the writ and order the person to whom the writ is directed to file an answer... or to take such other action as the judge deems appropriate.” K.S.A. 60-1503(a). The statute provides for service of the writ upon the Secretary, K.S.A. 60-1503(c), but no provision requires serving the petition when it is initially filed. Nor does the statute provide for an answer by the Secretary to the petition; an answer is filed to the writ, not to the petition. K.S.A. 60-1504(a).
We turn next to what actually occurred in Sauls’ case. Even though service of the petition is not required, the district court sent Sauls a notice of deficient pleading requiring that he send $5 for the sheriff s service fee or the case would be dismissed. That notice was sent before the district court conducted the statutorily required review of the petition to determine whether a writ should be entered. For reasons that aren’t clear, the fee was apparently sent to the district court clerk but returned to the prison. The court then dismissed the case on tire basis that the $3 filing fee for indigent parties hadn’t been paid, but it granted reconsideration when it was shown that the $3 had been sent and that a check for the $5 service fee had been returned by the clerk. The court gave Sauls until May 1, 2009, to pay the $5 fee, and he did. The court then issued the writ of habeas corpus on May 6, 2009, directing that an answer be filed within 20 days of service.
But the Secretary did not file the answer called for by the writ and K.S.A. 60-1504; he instead filed a motion to dismiss, contending that the delay that took place between October 2008 (when Sauls gave the petition to prison officials) and May 2009 (when the Secretary received the writ) was so long that the habeas lawsuit should not be considered timely filed. As support for that argument, the Secretaiy cited K.S.A. 60-203(a), a general provision in the Kansas Rules of Civil Procedure governing when a lawsuit is “commenced.”
If this were a normal lawsuit, subject to a traditional statute of limitation determining when the suit must be brought, the Secretary would have a valid point. Most statutes of limitation provide that an action “shall be brought” within a specific time, e.g., K.S.A. 60-513, so the action must be “commenced” within that time. K.S.A. 60-203(a) provides that an action is commenced when it is filed, but with one significant exception: if service of process isn’t obtained within 90 days, then the action is commenced when service occurs. Thus, the Secretary argued that under K.S.A. 60-203(a), Sauls had not brought his action until the Secretary was served in May 2009, well outside the 30-day time limit in K.S.A. 60-1501(b).
The Secretaiy’s argument was accepted by the district court, but the argument ignores the clearly stated time limit in K.S.A. 60-1501(b), which requires not that the action “shall be brought” within a specific time but that the inmate “shall file a petition for writ” within a specific time. Sauls did that. K.S.A. 60-203(a)’s rule about the “commencement” of an action doesn’t apply here.
The words of the statute seem clear, but we confirm our reading of it by noting that the result we’ve reached here also makes sense. The 30-day time limit in K.S.A. 60-1501(b) applies only to inmates in the custody of the Secretary of Corrections. Inmates, because of their status, have limited control of the mailing of their legal papers, the transmittal of fifing or service fees, and the service of process. Moreover, the Secretary is not required to file an answer to the petition; an answer is required to the writ, if the district court issues one after deciding the petition shows that the inmate may be entitled to relief. We conclude that the district court erred in dismissing Sauls’ petition based on K.S.A. 60-203(a), which does not factor into the determination of whether an inmate’s petition has been timely filed under K.S.A. 60-1501(b).
We must address one additional point regarding this issue. The district court had two independent bases for dismissing Sauls’ petition: that the action wasn’t timely filed and that the disciplinaiy hearing provided sufficient due process. Surprisingly, even though represented by counsel on appeal, Sauls didn’t address the timeliness of his petition. Generally, failing to address an alternative basis for a district court’s ruling is a sufficient reason to deny the appeal. See McGinley v. Bank of America, N.A., 279 Kan. 426, 444, 109 P.3d 1146 (2005) (an issue not briefed by the appellant is deemed waived or abandoned); Greenwood v. Blackjack Cattle Co., 204 Kan. 625, 627, 464 P.2d 281 (1970) (when trial court’s decision is based upon alternative grounds, appellant’s failure to challenge both grounds “renders unnecessary” a decision on the issue that is raised).
We have chosen, however, to address the issue rather than to dismiss the appeal on this basis. The district court’s ruling on timeliness was akin to a jurisdictional ruling, see In re Estate of Tracy, 36 Kan. App. 2d 401, 404, 140 P.3d 1045 (2006), and we often review such issues on our own motion. We also find the error here to reflect a fundamental misunderstanding of the procedural framework set out for habeas petitions by inmates under K.S.A. 60-1501(b), an issue worthy of clarification.
The District Court Should Have Granted Relief to Sauls Because He Was Improperly Denied the Ability to Call Witnesses in His Defense.
We turn next to the second issue raised in our appeal — whether Sauls’ rights were violated when the hearing officer refused to allow him to call several witnesses. The hearing officer in a prison disciplinary case is authorized to call and question witnesses, K.A.R. 44-13-403(1)(1), and the officer in Sauls’ case called two witnesses: the corrections officer who filed the charge and Alaina Johnson, a civilian employee of Heatron, Inc., where Sauls was on work assignment. Both witnesses testified by phone.
The reporting officer said that three others — Johnson, Michael Mallotte, and Leanna Jones — had seen Sauls enter a black Honda driven by his daughter outside the Heatron building and then leave the premises. The reporting officer had been told this by another corrections officer. Johnson testified that after others had told her Sauls was missing from work, she saw a black car pull up and stop. She said the car went around the building toward a specific street, then turned around and came back. Johnson said she saw Sauls get out of the car, and she said that Mallotte saw him too.
Sauls asked to call several witnesses, including two other inmates and several Heatron employees, including Mallotte. Sauls proffered that several of the witnesses would testify that they had been outside during the lunchtime period when he was alleged to have left the premises without permission and that they had not seen Sauls in any car that drove by. Sauls said that Mallotte would testify that he had not seen Sauls in the black Honda that had driven by and that Mallotte had not searched the back side of the Heatron building (where Johnson said she had seen Sauls get out of the car). The hearing officer refused the request to call each of these witnesses, finding that Mallotte was “repetitive to Johnson” and the others were “irrelevant” or “immaterial.”
The disciplinary sanction deprived Sauls of property (through the $20 fine), so he was entitled to a minimal level of due process, which includes the opportunity to call witnesses. See Washington v. Roberts, 37 Kan. App. 2d 237, 240-41, 152 P.3d 660 (2007). In ruling on an inmate’s request to call witnesses, a hearing officer may balance the inmate’s need for a witness against prison interests, like keeping the prison safe or avoiding retribution. But prison officials bear a burden of persuasion to show that there is a reasonable basis for overriding the inmate’s right to call witnesses. 37 Kan. App. 2d at 243-45; see K.A.R. 44-13-405a.
The hearing officer in Sauls’ case did not cite any institutional concerns, like inmate safety, and we do not find persuasive the officer’s conclusion that the testimony of all of these witnesses was either duplicative or irrelevant. Only one witness — Johnson—testified that she had personally seen Sauls get out of the car. She also said that Mallotte had seen Sauls get out of the car, but Sauls’ proffer was that Mallotte never saw Sauls in the car. Although Sauls had other witnesses who he claimed would have reported not seeing him either generally or in the car while outside the building for lunch, we recognize that their information presents only a negative inference (i.e., that he wasn’t there because they didn’t see him), while Johnson testified that she positively saw Sauls get out of the car. But in a contested proceeding, we do not believe that the hearing officer should deny the opportunity to present opposing witnesses — solely on the grounds of relevance — only because a single witness has testified on the point.
Sauls apparently sought to defend the charge on the basis that he hadn’t gotten into the car and that his daughter had simply brought his lunch. Testimony that he wasn’t seen in the car by anyone other than Johnson would have supported his defense.
We find that Sauls’ due-process rights were violated by the denial of the ability to call witnesses who might have rebutted the evidence presented against him. Although this is the denial of a constitutional right, even such an error may be deemed harmless if we can declare beyond a reasonable doubt that the error had little, if any, likelihood of changing the outcome of his disciplinary hearing. State v. Laturner, 289 Kan. 727, 753, 218 P.3d 23 (2009). On the limited evidence presented in our record, we cannot do so.
On the record before us, there is no evidence as to where on the Heatron premises Sauls could go during lunchtime. He was charged with aggravated escape from custody under K.S.A. 21-3810; when the inmate is outside prison walls on an authorized basis, like the work-assignment situation involved here, there must at least be some evidence that he went somewhere he was not permitted to go. See State v. Garrett, 235 Kan. 768, Syl. ¶ 1, 684 P.2d 413 (1984). It appears from his proffer that other inmates on work assignment were allowed to be on the grounds outside the building during lunchtime. Moreover, Johnson’s testimony does not tell us whether the car in which she said Sauls was riding ever actually left the Heatron premises and went onto a city street. We have the hearing officer’s notes, not a transcript, and those notes merely cite Johnson saying that the car “went around the building to Wilson Ave.,” when it “stopped and . . . turned around” as another car was passing from the opposite direction. Nothing in our record tells us that the car ever even left Heatron’s parking lot.
In sum, we find that the hearing process violated Sauls’ due-process right to call witnesses, and the Secretary of Corrections has not provided any persuasive basis for the denial of this right. The district court had granted Sauls’ writ, which had placed the burden on the Secretary to make that justification in this habeas proceeding. Having failed to do so, we conclude that the disciplinary sanction entered against Sauls must be set aside based on the denial of his due-process rights.
The judgment of the district court is reversed, and the case is remanded with directions to enter judgment in favor of Sauls directing that the Secretary of Corrections set aside the disciplinary sanctions entered against Sauls arising out of this complaint. | [
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Green, J.:
In this juvenile case, we are presented with the question of whether two juvenile adjudications occurring in separate cases but at the same hearing before the same court can each be counted as a prior adjudication in categorizing the offender in the other adjudication, for the purposes of K.S.A. 2009 Supp. 38-2369 under the juvenile sentencing matrix. We determine that the answer to this question is no. As a result, the trial court’s decision in this case that J.L.B.’s juvenile adjudication in 09JV25 (formerly 09JV389) could be used as a prior adjudication in 09JV29 (formerly 09JV390) and likewise the juvenile adjudication in 09JV29 could be used as a prior adjudication in 09JV25, where the two juvenile adjudications occurred simultaneously before the same court, was in error. As a result, we reverse J.L.B.’s sentences for her juvenile adjudications and remand to the trial court for resentencing in accordance with this opinion.
On September 22, 2009, J.L.B. entered into a written tender of plea in case numbers 09JV389 and 09JV390. In case number 09JV390, J.L.B. pled guilty to felony theft in violation of K.S.A. 21-3701(a)(1), a severity level 9 nonperson felony if committed by an adult. The act giving rise to J.L.B.’s adjudication in case number 09JV390 occurred on or about July 15, 2009. In case number 09JV389, J.L.B. pled guilty to residential burglary in violation of K.S.A. 21-3715(a), a severity level 7 person felony if committed by an adult. The act giving rise to J.L.B.’s adjudication in case number 09JV389 occurred on or about June 25, 2009.
On September 23, 2009, the trial court entered a written order accepting J.L.B.’s plea in both 09JV389 and 09JV390. Upon accepting J.L.B.’s guilty pleas, the trial court transferred venue in both cases to Mitchell County for sentencing. Saline County case number 09JV390 became Mitchell County case number 09JV29, and Saline County case number 09JV389 became Mitchell County case number 09JV25.
When sentencing occurred, J.L.B.’s juvenile offender history included one previous juvenile adjudication, on August 15, 2008, for theft, a class A misdemeanor. The magistrate judge followed the recommendations of the State and the presentence investigation reports and found that J.L.B. was a chronic offender II, escalating felon in case number 09JV29 and a serious offender II in case number 09JV25. In doing so, the magistrate judge apparently treated J.L.B.’s adjudication in 09JV25 as a prior adjudication in 09JV29 and likewise treated J.L.B.’s adjudication in 09JV29 as a prior adjudication in 09JV25. Based on J.L.B.’s offender classifications on the placement matrix chart, the magistrate judge sen tenced J.L.B. to 18 months confinement in a juvenile correctional facility with an aftercare term of 12 months.
J.L.B. appealed her sentencing by the magistrate judge to the trial court. J.L.B. filed an appeal brief with the trial court in which she argued that her adjudications in case numbers 09JV25 and 09JV29 could not constitute prior adjudications and that the inclusion of each case as a prior adjudication in the other case resulted in erroneous classification for criminal history purposes. J.L.B. maintained that case numbers 09JV25 and 09JV29 were consolidated in Saline County before being transferred to Mitchell County for disposition and, therefore, did not constitute prior adjudications in her criminal history. Alternatively, J.L.B. argued that even without consolidation, it was erroneous to count each offense as a prior adjudication for sentencing purposes based on the procedural history of the cases and the plain language of the Revised Kansas Juvenile Justice Code (Juvenile Code). J.L.B. asserted that she had only one prior misdemeanor adjudication when she was sentenced in 09JV25 and 09JV29 and that the magistrate judge’s findings that she was a chronic offender II, escalating felon in 09JV29 and a serious offender II in 09JV25 was erroneous.
The trial court upheld the magistrate’s decision. Relying on language by our Supreme Court in In re D.M., 277 Kan. 881, 89 P.3d 639 (2004), and In re J.M., 273 Kan. 550, 44 P.3d 429 (2002), the trial court determined that because J.L.B.’s two offenses were committed on separate dates and were originally charged in separate complaints, the adjudication in 09JV25 could be scored as a prior adjudication for sentencing in 09JV29 and likewise the adjudication in 09JV29 could be scored as a prior adjudication for sentencing in 09JV25.
Standard of Review
On appeal, J.L.B. argues that the trial court erred in classifying her as a chronic offender II, escalating felon in case number 09JV29 and a serious offender II in case number 09JV25 when both cases were present offenses rather than prior adjudications under the Juvenile Code sentencing matrix provisions of K.S.A. 2009 Supp. 38-2369.
J.L.B.’s argument on this issue requires the interpretation of a statute, which presents a question of law subject to unlimited review. See State v. Jefferson, 287 Kan. 28, 33, 194 P.3d 557 (2008). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Hall v. Dillon Companies, Inc., 286 Kan. 777, 785, 189 P.3d 508 (2008). An appellate court’s first task is to “ ‘ascertain the legislature’s intent through the statutory language it employs, giving ordinaiy words their ordinary meaning.’ [Citation omitted.]” State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009).
Moreover, in interpreting sentencing statutes under the Juvenile Code, our Supreme Court has set forth the general rule that criminal statutes must be construed in favor of the accused. Any reasonable doubt about the statute’s meaning is decided in favor of anyone subjected to the criminal statute. Nevertheless, the rule of strict construction is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. See In re D.M., 277 Kan. at 883; In re J.M., 273 Kan. at 553.
With these standards firmly in mind, we turn now to interpreting K.S.A. 2009 Supp. 38-2369, the Juvenile Code statute at issue in the present case.
KS.A. 2009 Supp. 38-2369
In order for a juvenile offender to be sentenced as a serious offender II, K.S.A. 2009 Supp. 38-2369(a)(2)(B) requires the following:
“The serious offender II is defined as an offender adjudicated as a juvenile offender for an offense which, if committed by an adult, would constitute a non-drug severity level 7, 8, 9 or 10 person felony loith one prior felony adjudication. Offenders in this category may be committed to a juvenile correctional facility for a minimum term of nine months and up to a maximum term of 18 months. The aftercare term for this offender is set at a minimum term of six months and up to a maximum term of 24 months.” (Emphasis added.)
Under K.S.A. 2009 Supp. 38-2369(a)(2)(B), in order for J.L.B. to be sentenced as a serious offender II in case number 09JV25, which constituted a severity level 7 person felony if committed by an adult, J.L.B. needed to have one prior felony adjudication. Thus, based on J.L.B.’s criminal history, the only way that she could be sentenced as a serious offender II in case number 09JV25 was if her felony adjudication in 09JV29 could be considered a “prior felony adjudication” under K.S.A. 2009 Supp. 38-2369(a)(2)(B).
Similarly, in order for J.L.B. to be sentenced as a chronic offender II, escalating felon under K.S.A. 2009 Supp. 38-2369(a)(3)(B) in case number 09JV29, it was necessary that she have one prior felony adjudication. Specifically, K.S.A. 2009 Supp. 38-2369(a)(3)(B) provides as follows:
“The chronic offender II, escalating felon is defined as an offender adjudicated as a juvenile offender for an offense which, if committed by an adult, would constitute:
(i) One present felony adjudication and either two prior misdemeanor adjudications or one prior person or nonperson felony adjudication;
(ii) one present felony adjudication and two prior severity level 4 drug adjudications;
(iii) one present severity level 3 drug felony adjudication and either two prior misdemeanor adjudications or one prior person or nonperson felony adjudication; or
(iv) one present severity level 3 drug felony adjudication and two prior severity level 4 drug adjudications.
“Offenders in this category may be committed to a juvenile correctional facility for a minimum term of six months and up to a maximum term of 18 months. The aftercare term for this offender is set at a minimum term of six months and up to a maximum term of 12 months.”
Here, K.S.A. 2009 Supp. 38-2369(a)(3)(B)(ii) through (iv) were inapplicable to J.L.B. because her present adjudication in case number 09JV29, her adjudication in case number 09JV25, and her 2008 prior adjudication were not drug adjudications. Moreover, because J.L.B. did not have two prior misdemeanor adjudications, she could be sentenced as a chronic offender II under K.S.A. 2009 Supp. 38-2369(a)(3)(B)(i) only if she had one prior person or nonperson felony adjudication. Thus, based on J.L.B.’s criminal history, the only way she could be sentenced as a chronic offender II, escalating felon in case number 09JV29 was if the felony adjudication in 09JV25 could be considered as a prior felony adjudication under K.S.A. 2009 Supp. 38-2369(a)(3)(B)(i).
Prior Felony Adjudication
The question in this case appears to be one of first impression: Can juvenile adjudications that occur at the same hearing in two cases each be counted as a “prior adjudication” in the other case under K.S.A. 2009 Supp. 38-2369?
The legislature has not specifically defined “prior adjudication” within the Juvenile Code. Although the Kansas Sentencing Guidelines Act specifically defines “prior conviction” for adult criminal history purposes, that definition does not provide guidance in the instant matter as the Juvenile Code is separate and distinct from the adult criminal code.
K.S.A. 2009 Supp. 38-2304(a) states that “[ejxcept as provided in K.S.A. 2009 Supp. 38-2347, and amendments thereto, proceedings concerning a juvenile shall be governed by the provisions of this code.” In interpreting this statute, our Supreme Court in In re D.E.R, 290 Kan. 306, 310, 225 P.3d 1187 (2010), stated: “K.S.A. 2009 Supp. 38-2304(a) clearly provides that proceedings concerning a juvenile are to be governed by the provisions of the Juvenile Code, not the Code of Criminal Procedure, except where specifically applied by K.S.A. 2009 Supp. 38-2347 to adult prosecutions and extended jurisdiction juvenile prosecutions.”
Our legislature has provided, in painstaking detail, a comprehensive sentencing scheme under the Juvenile Code that is essentially complete as written. See In re W.H., 274 Kan. 813, 822, 57 P.3d 1 (2002). The Juvenile Code incorporates a detailed placement matrix based on the history of a juvenile’s prior offenses and his or her present offense, providing guidance and alternatives to the sentencing judge for confinement, as set forth in K.S.A. 2009 Supp. 38-2369. See In re W.H., 274 Kan. at 819 (discussing K.S.A. 38-16,129, the predecessor statute to K.S.A. 2009 Supp. 38-2369). If the legislature wished to include a definition for “prior adjudication” similar to that set forth for “prior conviction” under K.S.A. 21-4710, it could have easily done so under the Juvenile Code. In the absence of a specific definition for “prior adjudication” under the Juvenile Code, this court looks to the plain meaning of K.S.A. 2009 Supp. 38-2369 and how the term “prior adjudication” is used within that statute.
Our Supreme Court in In re D.M., 277 Kan. 881, was called upon to interpret the terms present adjudication and prior adjudication as contained in K.S.A. 38-16, 129(a)(3)(B)(i), the predecessor statute to K.S.A. 2009 Supp. 38-2369. Under K.S.A. 38-16,129(a)(3)(B)(i), a chronic offender II, escalating felon was defined as an offender adjudicated as a juvenile offender for an offense which, if committed by an adult, would constitute one present felony adjudication and two prior misdemeanor adjudications. Our Supreme Court held that the juvenile offender, who had a prior adjudication as a felon and three prior misdemeanor adjudications with a present misdemeanor adjudication, may not, upon revocation of his probation involving both prior and present adjudications, be placed in a juvenile correctional facility as a chronic offender II, escalating felon under K.S.A. 38-16,129(a)(3)(B)(i).
In so holding, our Supreme Court determined that the intent of the legislature, by including die terms prior and present in K.S.A. 38-16,129(a)(3)(B), was to categorize the offenses by the date of adjudication:
“Under K.S.A. 38-16,129(a)(3), four ways are listed in which a juvenile offender may be classified as a chronic offender II, escalating felon. All four definitions, including K.S.A. 38-16,129(a)(3)(B)(i), involve prior less serious adjudication(s) followed by a more serious present felony adjudication. This differentiation in the time that the offenses were committed is necessary to establish that the juvenile offender is indeed a chronic, escalating felon, i.e., that his offenses were frequently occurring and increasing in severity. If the legislature were simply concerned with the number and type of adjudications without reference to when they occurred, the juvenile offender in this case would have met those requirements in his first case, and the term ‘chronic offender II, escalating felon’ would have no meaning.
“Although both cases were technically open at the probation violation hearing, the intent of the legislature was to categorize the offenses by the date of adjudication by including the terms prior and present in the statute. Without using dates, it is difficult to categorize an adjudication as prior or present, and it could result in much confusion as to which cases were prior and which cases were present if all open cases were considered present. The legislature could have omitted the terms prior and present but that would defeat its intent to provide for more severe punishment options as the severity of a juvenile offender’s offenses increases. As this court has recognized, ‘[o]ur legislature has established in painstaking detail, a comprehensive sentencing scheme [in the KJJC], essentially complete as written.’ 274 Kan. at 822.
“In this case, the Januaiy 2001 (00JV332) case involving the felony adjudication, was clearly ‘earlier in time or order’ to the December 2001 (01JV265) case involving the misdemeanor adjudication. Thus, the district court’s conclusion that the defendant was not eligible for placement in a juvenile correctional facility under K.S.A. 38-16,129(a)(3)(B)(i) must be affirmed.” 277 Kan. at 886-87.
As explained in In re D.M., the legislature’s decision to include the terms “present” and “prior” in the statute addressing the sentencing of juvenile offenders is highly significant. Our Supreme Court in In re D.M. noted that “prior” is defined as “earlier in time or order” and that “present” may be defined as “now existing or in progress,” “existing in something mentioned or under consideration,” or “constituting the one actually involved, at hand, or being considered.” Webster’s New Collegiate Dictionary 910, 915 (1973). Thus, under the plain language of K.S.A. 2009 Supp. 38-2369(a)(2)(B) and (a)(3)(B)(i), the prior adjudication must have occurred “earlier in time or order” than the present adjudication.
Moreover, as interpreted by our Supreme Court, the legislature, by including the terms “prior” and “present” in K.S.A. 2009 Supp. 38-2369(a)(3)(B)(i), intended to categorize the offenses by the date of adjudication. The legislature used similar language in K.S.A. 2009 Supp. 38-2369(a)(2)(B). In the present case, the adjudications in 09JV389 (later 09JV25) and 09JV390 (later 09JV29) occurred before the same court on the same date under a single written Tender of Plea. Within the written Tender of Plea, J.L.B. stated as follows: “In 09JV3901 will plea[d] guilty to Felony Theft a level 9 Nonperson Felony. In 09JV389 I will plea[d] guilty to Count 1 Residential Burglaiy a Level 7 person felony.” The court entered an Order Accepting Plea in which it accepted the Tender of Plea in both 09JV389 (later 09JV25) and 09JV390 (later 09JV29) and included both case numbers in the caption. As a result, the record demonstrates that the adjudications in 09JV389 (later 09JV25) and 09JV390 (later 09JV29) occurred at the same time before the same court and, therefore, neither adjudication constituted a prior adjudication for purposes of the sentencing matrix under K.S.A. 2009 Supp. 38-2369(a)(2)(B) and (a)(3)(B)(i).
The State argues, however, that In re J.M., 273 Kan. 550, in which our Supreme Court upheld the decision of the sentencing court to score two separate adjudications in a previous juvenile case against the juvenile offender to classify him as a chronic offender II, escalating felon, provides support for the trial court’s decision in this case. Nevertheless, the State’s attempted comparison of the analysis in In re J.M. to the present case is strained. That is because unlike the present case, the juvenile offender in In re J.M. had two prior adjudications that had occurred nearly 2Vz years before his present adjudication. Thus, the juvenile offender’s previous adjudications were properly categorized as prior adjudications because they occurred on a date before the offender’s present offense. Here, however, J.L.B.’s adjudications in 09JV25 and 09JV29 should not be categorized as prior adjudications because they occurred simultaneously on the same date before the same court.
Based on the plain language of K.S.A. 2009 Supp. 38-2369 and our Supreme Court’s decision in In re D.M., this court should find that the trial court erroneously counted J.L.B.’s adjudication in 09JV25 (formerly 09JY389) as a prior adjudication in 09JV29 (formerly 09JV390) and likewise erroneously counted her adjudication in 09JV29 as a prior adjudication in 09JV25. As set forth previously from the In re D.M. opinion; our Supreme Court stated:
“[T]he intent of the legislature was to categorize the offenses by the date of adjudication by including the terms prior and present in the statute. Without using dates, it is difficult to categorize an adjudication as prior or present, and it could result in much confusion as to which cases were prior and which cases were present if all open cases were considered present.” 277 Kan. at 886.
Under the circumstances present here, where the record demonstrates that the adjudications in 09JV25 and 09JV29 occurred at the same time before the same court, neither adjudication was a prior adjudication for purposes of the sentencing matrix under K.S.A. 2009 Supp. 38-2369(a)(2)(B) and (a)(3)(B)(i). As a result, J.L.B.’s sentences for her juvenile adjudications are vacated and her case remanded for resentencing in accordance with this opinion.
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Standridge, J.:
HM of Topeka, LLC, appeals from the district court’s decision to dismiss its petition seeking specific performance of a contract to purchase a convenience store. For the reasons set forth below, we reverse the decision of the district court and remand for further proceedings.
Facts
Terry Hummer is the sole member of HM of Topeka, LLC, a Kansas limited liability company. Indian Country Mini Mart (Indian Country) is a convenience store organized as a Kansas general partnership and owned in equal shares by Roger Aldis and Carla Nissen.
Hummer had known Aldis for some time and first approached Aldis about purchasing Indian Country in July 2004. Hummer was unable to purchase Indian Country himself at the time, so he attempted to put together a transaction by which an unrelated entity, J & J Development, would purchase Indian Country and then lease the premises to Hummer Markets, another entity owned by Hummer. Although J & J Development signed a purchase agreement, the deal fell through prior to closing.
In March 2006, Hummer again approached Aldis about purchasing Indian Country. Aldis provided Hummer with a purchase agreement document, which still fisted J & J Development as the purchaser. On the first page of the agreement, Hummer whited out “J & J Development” and handwrote “HM OF KANSAS LLC” (as opposed to HM of Topeka) in the space designated for the purchaser. On the final page of the purchasing agreement, Hummer removed J & J Development’s signature block and representative’s signature and handwrote “HM of KANSAS, LLC” (as opposed to HM of Topeka) under his signature. The purchase agreement was executed on March 20, 2006, by Nissen, in both her individual capacity and on behalf of Indian County, and by Hummer on behalf of HM of Kansas.
Hummer later realized his apparent mistake in writing “HM of Kansas” (which is not a legal entity) rather than “HM of Topeka” on the purchase agreement. Accordingly, Hummer’s attorney prepared an amended purchase agreement that corrected the error. Although other closing documents prepared by Hummer and Hummer’s counsel correctly identified the purchaser as HM of Topeka rather than HM of Kansas, there is no evidence that Aldis or Nissen saw these other documents.
The purchase agreement provided that closing would take place within 45 days. That date, May 4, came and went. Believing that the purchaser was having trouble obtaining financing, Aldis testified that he considered the purchase agreement to have terminated on May 15, 2006. Hummer stated that the delay was due to title insurance issues and insisted that the deal should still close. A title insurance commitment was issued on May 22,2006. HM of Topeka was listed as the proposed insured on a title insurance commitment issued for Indian Country.
The transaction never closed. On June 15, 2006, HM of Topeka filed suit against Indian Country seeking specific performance on the purchase agreement and damages for breach of contract.
In July 2006, Indian Country filed a motion to dismiss the petition arguing (1) HM of Topeka was a nonparty that did not have standing to enforce the purchase agreement and (2) HM of Kansas was not a legal entity that could sue to enforce the purchase agreement. In response, HM of Topeka asserted HM of Kansas was merely a misnomer for HM of Topeka and should have no impact on the enforceability of the purchase agreement. The district court held a hearing on the motion to dismiss but did not rule on the motion. The hearing transcript is not in the record on appeal.
The case proceeded through discovery and in October 2007, Indian Country filed a motion for summary judgment based on the same arguments presented in its motion to dismiss filed 15 months earlier. In November 2007, the district court held a hearing, the transcript of which is not in the record on appeal. On February 6, 2008, the district court granted Indian Country’s motion to dismiss. More specifically, the court held that because HM of Kansas was not a legal entity, it could not enforce the purchase agreement and that no other entity, ostensibly HM of Topeka, could bring an action on its behalf.
Standard of Review
In granting Indian Country’s motion to dismiss, the district court expressly relied on an exhibit attached to the memorandum filed in support of such motion. This exhibit is a document signed by the Kansas Secretary of State certifying that, as of July 6, 2006, HM of Kansas, LLC, had not registered to do business in Kansas as a foreign limited liability company and that a limited liability company by that name had not been incorporated in Kansas. Since the district court considered matters outside the pleadings, we treat the district court’s decision as one granting summary judgment rather than a motion to dismiss. K.S.A. 60-212(b); see Odette Family Ltd. Partnership v. Agco Finance, 35 Kan. App. 2d 1, 5, 129 P.3d 95 (2005).
We review a district court’s decision to grant or deny a motion for summary judgment as follows:
“ ““ “Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” ’ ” [Citations omitted.]’ ” Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009).
Analysis
The district court dismissed the lawsuit here because (1) HM of Kansas was not a legal entity that could bring a lawsuit; and (2) HM of Topeka was not an entity that could sue for breach of the underlying contract on behalf of HM of Kansas. We agree with the district court’s finding that HM of Kansas was not a legal entity that could bring a lawsuit. For the reasons stated below, however, we disagree with the district court’s finding that HM of Topelca is not entitled to sue for breach of the underlying contract.
In order to demonstrate standing to sue, a plaintiff must allege “such a personal stake in the outcome of the controversy as to warrant his invocation of jurisdiction and to justify exercise of the court’s remedial powers on his behalf.” Harrison v. Long, 241 Kan. 174, 176, 734 P.2d 1155 (1987). In other words, HM of Topeka must show it suffered some injury and that there was some causal connection between the claimed injury and the challenged conduct.
To that end, HM of Topeka maintains that the mistake in identifying “HM of Topeka” as “HM of Kansas” in the purchase agreement is a misnomer that did not have any material effect on enforceability of the purchase agreement; thus, Indian Countiy breached a valid contractual agreement to sell the convenience store to HM of Topeka (challenged conduct). HM of Topeka then argues that as a direct result of Indian Country’s breach of contract, HM of Topeka was unjustly deprived from exercising its contractual right to purchase the convenience store (claimed injuiy).
The basic doctrine of misnomer and its supporting rationale are stated in 18A Am. Jur. 2d, Corporations § 238:
“The names of individuals and corporations differ in that the alteration of a letter or transposition of a word usually makes a person’s name entirely different, while the name of a corporation frequently consists of several descriptive words and the transposition of them or an interpolation, omission, or alteration of some of them may make no essential difference in their sense. It is the general rule that, where there is a misnomer of a corporation in a grant, obligation, written contract, notice, or the like, if there is enough expressed to show that there is such an artificial being, and to distinguish it from all others, the corporate body is well named, even though there is a variation of words and syllables.”
In his treatise on corporate law, William Meade Fletcher states that “the misnomer of a corporation generally will not be treated by the courts as material if the identity of the corporation is reasonably clear or can be ascertained by sufficient evidence.” 6 Fletcher Cyclopedia of the Law of Private Corporations § 2444 (2005). According to Fletcher, the intent of the parties controls. Misnomer has been applied in various contexts and the same rules appear to apply whether the misnomer occurred in a contract, court filing, or some other document.
There are no cases in Kansas directly addressing whether a mistake in identifying the name of a contracting party renders the underlying contract unenforceable. We do, however, find the case of King v. Wilson, 86 Kan. 227, 120 Pac. 342 (1912), instructive on the issue. The dispute in King involved a publication notice that identified the name of the party to be put on notice as “The Farmers’ Loan and Trust Co., a Corporation,” when the company’s true name was “The Farmers’ Loan and Trust Company of Kansas.” Farmers’ Loan argued that the notice of suit was insufficient to confer jurisdiction because it was not made in its true corporate name. 86 Kan. at 229.
Relying on Kansas cases dealing with incorrect designation of individuals (as opposed to corporations) in notice of process, as well as a treatise on corporations and persuasive authority from other jurisdictions regarding misidentification of a corporation’s legal name, the Kansas Supreme Court concluded as a matter of law that in those cases where the name assigned to a corporation in a legal notice fairly advises the intended corporation and others that a proceeding is pending, such notice is sufficient to withstand collateral attack. Applying the facts of the case to the rule of law, the court held any deviation in Farmers’ Loan’s name did not render notice of process insufficient because it did not appear that anyone was, or likely could have been, misled by the incorrect designation. 86 Kan. at 229-30.
Although the court’s decision to apply the misnomer doctrine in King was based on misidentification of a corporation’s legal name in a published notice of legal proceedings, we believe the rationale underlying that decision applies equally to the facts presented in this case. As a matter of law, then, and based on the rationale in King and the treatises and persuasive authority from other jurisdictions upon which the King case relied, we hold that misidentification of a contracting party’s legal name in a contract does not, in and of itself, prohibit any party to that contract from enforcing it as long as the entity’s true identity is reasonably clear or can be ascertained by sufficient evidence and the other parties to the contract were not, or were not likely to have been, misled by the misidentification.
Applying our holding to the facts presented in this case, we note that there is no dispute between the parties that Hummer’s attorney informed Aldis in March or April about the typographical mistake in identifying “HM of Topeka” as “HM of Kansas” in the purchase agreement. We further note that, notwithstanding knowledge of this typographical mistake, both Hummer and Indian Country continued to actively work towards closing the deal in April, May, and June 2006. To that end, the record reflects that during this time period Aldis did not have any reservations about the purchaser’s exact identity, but instead was completely focused on whether the corporate entity making the purchase could obtain financing and complete the deal.
Consistent with the facts in the record, Indian Country has never argued it did not know HM of Topeka was the true purchaser and that it could not have readily determined that HM of Topeka was the true purchaser. Nor does Indian Country argue that it was, or likely could have been, misled by the typographical mistake in identifying “HM of Topeka” as “HM of Kansas” in the purchase agreement.
Based on the analysis above, we conclude that the mistake in identifying “HM of Topeka” as “HM of Kansas” in the purchase agreement is a misnomer that did not have any material effect on enforceability of the purchase agreement. Although only persuasive authority, we find it significant that the conclusion we reach today is identical to a case decided by a Missouri appellate court under similar facts. In Blades v. Cinder Block Co., 10 S.W.2d 319 (Mo. App. 1928), an individual filed a personal injury suit naming the “Cinder Block Company of St. Louis” as defendant. 10 S.W.2d at 319. However, there was no “Cinder Block Company of St. Louis”; the actual name of the defendant was “Cinder Block Company of Kansas City, Mo.”
After losing at trial, the defendant appealed on grounds that the court lacked jurisdiction over Cinder Block Company of Kansas City, Mo., because the defendant had not been sued under its correct name. In affirming the verdict, the court first noted the general rules that a misnomer is immaterial when there is “no substantial mistake so as to indicate a different entity” and “if it appears that the corporation could not have been, or was not, misled [by]” the misnomer. 10 S.W.2d at 320. The court then noted that “the customary phrase, ‘of a location/ is not to be considered as a part of the corporate name, but rather as descriptive of the situs of the corporation itself, so that the omission or addition of such phrase is generally to be regarded as immaterial.” 10 S.W.2d at 320. The court then found that the mistake in naming the defendant was limited to the description of location and was therefore insubstantial in nature. The court also found that there was no risk of the defendant being misled because there was no other company that had the name to which the defendant was erroneously referred. 10 S.W.2d at 320.
Like Blades, the identification error in this case was limited to the geographical description of “HM” as HM of Topeka or HM of Kansas. Also like Blades, the mistake in naming the purchasing entity was limited to the description of the entity’s location and there was no other company that had the name to which the purchaser was erroneously referred. Although not explicit, the Blades court implicitly recognized that under the facts presented, it would be inequitable to allow the defendant to avoid contractual liability simply because of a slight variance between the defendant’s name on the contract and the defendant’s “actual” corporate name. Indeed, the United States Supreme Court has observed that “a contract is not avoided by misnaming the corporation with which it is made.” County of Moultrie v. Fairfield, 105 U.S. 370, 377, 26 L. Ed. 945 (1881).
As the court concluded in Blades based on the facts presented there, we conclude based on the facts presented here that the mistake in identifying “HM of Topeka” as “HM of Kansas” in the purchase agreement is a misnomer that did not have any material effect on enforceability of the purchase agreement. Given this conclusion and the fact that HM of Topeka has alleged in this lawsuit that Indian Country’s failure to close on the purchase agreement caused HM of Topeka to be unjustly deprived of its contractual right to purchase the convenience store, we find HM of Topeka is a legal entity with sufficient standing to sue Indian Country for specific performance of the underlying purchase agreement and damages for breach of the underlying contract.
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Greene, J.:
Robert Chatterton appeals the district court’s dismissal of his personal injury action against Keith Roberts and Patricia Lamar, arguing the court erred in construing and applying K.S.A. 60-518 in a manner that failed to save his action filed outside the applicable statute of limitations. We agree with Chatterton, reverse the district court, and remand for further proceedings.
Factual and Procedural Background
After being injured in vehicle collision in Johnson County in March 2006, Chatterton filed a petition in October 2007 against defendants Roberts and Lamar in Jackson County, Missouri, apparently on the mistaken belief that Roberts resided in Missouri. The Missouri court dismissed the action in August 2008 for lack of personal jurisdiction over the defendants. Within 10 days of the dismissal, Chatterton refiled his petition against both defendants in Johnson County District Court.
The defendants then moved the district court in Kansas to dismiss tire action based on the expiration of the applicable statute of limitations. The district court dismissed Chatterton’s action, reasoning in material part:
“Missouri Rule of Civil Procedure 53.01 provides that a civil action is commenced by filing a Petition with the Court. This Court accepts that a Missouri lawsuit commences upon filing. The Court does believe that there is a saving statute in Missouri just as there is in Kansas.
“The Court finds that the saving statute that is procedural in Missouri would not allow this case to be refiled in Missouri because it was dismissed for lack of jurisdiction.
“The Court finds that since the case could not have been saved in Missouri because it lacked jurisdiction, that the lawsuit was void from the beginning. Therefore, there was no lawsuit to save, nor could there ever be a lawsuit to save. As a result, no matter what savings statute is applied, it would make little or no difference because there is no lawsuit to save.”
Chatterton timely appeals.
Standard of Review
The sole question framed by this appeal presents an issue of statutory interpretation, specifically the construction and application of K.S.A. 60-518. This issue is a question of law over which this court has unlimited review. Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271, 202 P.3d 7 (2009).
Did the District Court Err in Dismissing the Action?
We begin by examining the statute at issue, K.S.A. 60-518, which provides:
“If any action be commenced within due time, and the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if the plaintiff die, and the cause of action survive, his or her representatives may commence a new action within six (6) months after such failure.”
A panel of our court recently held that, for our savings statute to apply, (1) the first suit must have been filed before the limitations expired or “commenced” within due time, (2) the first suit must have been dismissed for reasons other than the merits of the claim, (3) the second suit must have been filed within 6 months of dismissal of the first suit, and (4) but for the savings statute, the limitations period must have expired when the second suit was filed. Campbell v. Hubbard, 41 Kan. App. 2d 1, 2-3, 201 P.3d 702 (2008). The parties essentially agree and the record establishes that (2) through (4) of these requirements are met, but the defendants argue that the first suit was not “commenced” within the statute of limitations because it was dismissed for lack of personal jurisdiction and therefore a nullity under Missouri law.
Campbell squarely addressed the issue of which state’s law applies to determine whether the first suit was “commenced within due time” when the first suit is filed outside of Kansas. The Campbell panel rejected the imposition of the Kansas commencement statute in determining when the lawsuit was commenced in Arizona, finding that such a reading is not required by the Kansas savings statute, which only requires that the action be “commenced within due time,” not “commenced within due time under K.S.A. 60-203.” Therefore, when determining whether a suit was “commenced within due time” for the purposes of K.S.A. 60-518, the law of the state of the first filing is applied. Thus, Missouri law applies to determine if the suit was commenced before March 21, 2008.
Missouri Rule of Civil Procedure 53.01 provides that a civil action is commenced “by filing a petition with the court.” Although Rule 53.01 previously defined commencement of a civil action as “[t]he filing of a petition and suing out of process therein,” the Missouri Supreme Court amended Rule 53.01 in 1972 and removed the “suing out of process” language. Therefore, only the filing of a petition with the court is required to commence an action. The Missouri Supreme Court has held that pursuant to the plain language of Rule 53.01, the rule “requires only the filing of a petition with the court to commence an action.” Ostermueller v. Potter, 868 S.W.2d 110, 111 (1993). In rejecting an argument identical to that made by defendants here, the Missouri Supreme Court relied on the amendment to Rule 53.01 and stated:
“[The defendant’s] contention fails to recognize that this Court amended Rule 53.01 in 1972. The rule no longer includes ‘suing out of process’; it requires only the filing of a petition with the court to commence an action. Supreme Court rules govern over contradictory statutes in procedural matters unless the General Assembly specifically annuls or amends the rules in a bill limited to that purpose. [Citations omitted.] The [plaintiffs] filed their first petition within the limitations period; therefore, the action was commenced within the time prescribed. Because the first action was commenced within the time prescribed, the [plaintiffs] may invoke the benefit of the savings statute. [Citation omitted.]” 868 S.W.2d at 111.
The district court seems to have recognized that the action was “commenced” upon fifing, but the court then applied the Missouri savings statute to determine that the suit could not be saved in Missouri. This was erroneous; die statute to be construed and applied by Kansas courts to determine whether a refiled action should be saved in Kansas is the Kansas savings statute, K.S.A. 60-518. We look to the law of the state where the first action was filed for the limited purpose of determining “commencement,” but it is the Kansas savings statute that must be applied following that deter- initiation. Here, the Missouri Rule of Civil Procedure (which is essentially identical to Rule 3 of the Federal Rules of Civil Procedure) required only filing a petition for technical “commencement” of the action.
On appeal, defendants argue that despite the clear and unequivocal Missouri rule, case law has overlaid a requirement that valid service be obtained on the defendant(s) before the action should be considered “commenced.” Defendants rely principally on Mertens v. McMahon, 115 S.W.2d 180 (Mo. 1938), which they contend has never been overruled but rather followed in more recent cases. We disagree. The Mertens decision predated the most recent amendment to the applicable Missouri Rule of Civil Procedure by nearly 35 years and was superceded by that amendment in that the language “suing out of process” was deleted. More recent Missouri case law cited by defendants does not support any survival or resurrection of the old Mertens precept for purposes of determining when a suit is technically “commenced,” although we concede that at least one Missouri court has held that the Mertens concept had some vitality for purposes of the Missouri savings statute.
In Singen v. Int'l Ass’n. of Mach., Etc., 475 F. Supp. 663 (E.D. Mo. 1979), a federal district court applied the Missouri savings statute in the manner urged by defendants, relying on Mertens as quoted in another federal opinion predating the 1972 amendment to the Missouri rule governing “commencement,” Tanner v. Presidents-First Lady Spa, Inc., 345 F. Supp. 950 (E.D. Mo. 1972). The decision turned, however, on the lack of diligence of plaintiff to serve the proper defendant for over 6 years, and the court indicates that this situation “is clearly different from those cases where jurisdiction over the defendant was not obtained in the first suit due to an innocent mistake,” citing two cases where the opposite conclusion was reached in factual scenarios far more similar to that before us here. 475 F. Supp. at 664. This authority certainly does not convince us that the amended Missouri rule as to commencement should be read to require anything other than filing to establish “commencement.”
In Goff v. Schlegel, 748 S.W.2d 813 (Mo. App. 1988), the court applied the Missouri savings statute to save plaintiff s personal injury action after the filing and dismissal of at least three prior suits. The issue of commencement does not appear to be of concern to the court, but the defendant there argued that because venue was improper in the last of the three suits, “that court never obtained jurisdiction over [the defendant] and therefore failed to toll the five year statute of hmitations.” 748 S.W.2d at 817. The court said this argument was defective for several reasons, and even if venue was improper “there was personal jurisdiction over [the defendant] and the five year statute was tolled by the fifing of the suit.” We understand the court to be recognizing that the concept of jurisdiction is different from the concept of venue, and the key event for commencement was “the fifing of the suit.” 748 S.W.2d at 817. This authority does not convince us that the amended Missouri rule as to commencement should be read to require anything other than fifing to establish “commencement.”
In Cross v. General Motors Corp., 778 F.2d 468 (8th Cir. 1985), the court refused to save a suit in applying the Missouri savings statute because the first suit was dismissed for lack of jurisdiction, which the court held was not a “nonsuit” with respect to the defendants — who had never been served in the action. The court cited Mertens in refusing to save the plaintiff s second suit filed within 1 year of the disposition of the first suit. Whether this federal application of the Missouri savings statute would survive in fight of the Missouri Supreme Court’s holding in Ostermueller is questionable, but we are not convinced that this federal application of the Missouri savings statute somehow appends a service requirement on Rule 53.01 after the 1972 amendment.
We rely on sound Missouri authorities in holding that “commencement” in Missouri requires only the fifing of the plaintiff s petition. Missouri Rule of Civil Procedure 53.01; Ostermueller, 868 S.W.2d 110; Richardson v, Richardson, 892 S.W.2d 753 (Mo. App. 1994). The district court seems to have found that “commencement” was achieved by mere fifing, but it erred in applying the Missouri savings statute. For this reason, we reverse and remand for further proceedings.
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Hill, J.:
Charles and Dolores Palmer granted a 2-year oil and gas lease on their farm in 1996. The lessee drilled one gas well on the property, but it has never produced any oil or gas. The lease has a minimum-royalty clause calling for the Palmers to receive at least $1,000 every year, beginning with the second year of the lease. The lease called for this minimum royalty to come either from production earnings or, if there was inadequate production, by the lessee paying the Palmers the difference. Every year, from 1998 through 2005, the Palmers received $1,000 from the lessee. Kansas courts will not intervene to extend an oil and gas lease beyond the agreed terms of the parties. Here, because there was no production of oil and gas in paying quantities and no clause in the lease extending it, we hold this lease expired at the end of its 2-year primary term. Also, the $1,000 yearly payment did not extend the lease beyond its primary term because the money did not come from oil or gas production. Moreover, we cannot consider those annual payments a benefit to the Palmers (necessary to create an estoppel) because after the lease expired, the Palmers were entitled to all the oil and gas produced — less the costs of production. Therefore, we affirm the district court’s ruling on this point. Similarly, we affirm the district court’s holding that a claimed written “ratification” of the lease was ineffective for lack of consideration since the lessee tendered nothing of benefit to the Palmers to induce them to sign the document.
Despite our holding, we must vacate the amount of the attorney fees awarded to the Palmers. We do not question the grant of fees to the Palmers, but do question the amount awarded. The district court failed to analyze the question and offered no reasons for its ruling. Therefore, we remand the fee question for further analysis by the court, asking it to consider the eight factors set out in Supreme Court Rule 1.5(a) (2009 Kan. Ct. R. Annot. 460) when it addresses the matter.
The Palmers signed a lease; the lessee drilled a dry hole and then assigned the working interest to another company.
Charles F. and Delores Palmer granted an oil and gas lease to KanMap, Inc. for their farm in Wilson County in 1996. The primary term of the lease was 2 years. KanMap drilled a single gas well on the property in 1997. Since then, there has been no production of oil or gas from the leased land. After that, KanMap annually paid the Palmers $1,000 as minimum royalty from 1998 through 2003.
Then in April 2004, Bill Gallagher Enterprises, L.L.C., bought the working interest in the lease. After that, Gallagher paid the Palmers $1,000 in 2004 and 2005 near the anniversary of the lease. In May 2006, at Gallagher’s request, the Palmers signed a ratification of the lease. Gallagher did not make any payment to the Palmers at the time they signed the ratification or at any time after.
A few months later, in July 2006, the Palmers authorized their attorney to notify Gallagher the lease was forfeited because there was no production. In response, Gallagher contended the lease was still valid and continued to mail $1,000 checks to the Palmers from 2006 to 2008. But the Palmers returned those checks, uncashed, to Gallagher. After Gallagher filed an affidavit with the register of deeds asserting the lease was still in effect, the Palmers filed an action to cancel the lease.
Eventually, the court tried the case and the Palmers prevailed. After the district court decided that a shut-in royalty clause was stricken from the lease, and was therefore inapplicable, the court decided only production of oil or gas in paying quantities could extend the iease beyond its primary term. Thus, after the court found the well drilled on the leased land was not producing in paying quantities, it concluded the lease expired at the end of the 2-year primaiy term.
Next, the court concluded the $1,000 annual payment made according to the minimum-royalty clause of the lease did not extend the lease past the primaiy term because a minimum-royalty clause can only extend a lease if the royalties come from actual production. Moreover, the district court held the doctrine of estoppel could not extend a lease already expired by its own terms.
Finally, the district court ruled that the written ratification of the lease was unenforceable because it was made without consideration and was not knowingly and intelligently executed by the Palmers. The district court granted the Palmers reasonable attorney fees and costs.
Now, Gallagher contends the district court erred when it ignored the minimum-royalty payments made to the Palmers. In Gallagher’s view, either by the operation of the minimum-royalty clause or through the application of the doctrine of equitable estoppel, this lease survived beyond its primaiy 2-year term. Additionally, Gallagher contends the court erred when it ruled the ratification agreement failed for lack of consideration or that the Palmers did not make the agreement knowingly and intelligently. Finally, Gallagher asserts the court abused its discretion by awarding attorney fees to the Palmers.
In turn, in their cross-appeal, the Palmers argue the district court did not award enough attorney fees.
The $1,000 payments did not save this lease from expiration.
First, we examine the question of the effect of the minimum-royalty clause found in this lease. We conclude it does not revive this expired lease. Next, we look at the issue of equitable estoppel. Based on our assessment that the payments were not a benefit to the Palmers and were never made in a way that would indicate to the Palmers that the lessees asserted the Palmers’ acceptance would prolong the lease, the Palmers are not now equitably prevented from arguing the lease is terminated. We view this matter as an interpretation of a written contract along with a determination of its legal effect. Thus, we exercise an unlimited standard of review. See Conner v. Occidental Fire & Cas. Co., 281 Kan. 875, 881, 135 P.3d 1230 (2006).
The heart of every oil and gas lease is the habendum clause, sometimes called the “to have and to hold” clause. In it, the landowner allows the lessee “to have” access to the property to explore for oil and gas and develop the property if possible. This provision of an oil and gas lease defines how long the interest granted to the lessee will extend. Typically, oil and gas leases provide for a primary term — a fixed number of years during which the lessee has no obligation to develop the premises — and a secondary term lasting as long as oil and gas is produced in paying quantities, once development takes place. See Black’s Law Dictionary 778 (9th ed. 2009). In this lease the primary term was 2 years.
Sometimes oil and gas leases have a shut-in royalty clause. In such cases, a working interest owner that operates a nonproducing gas well may choose to “shut in” the well and cease production and wait for a more favorable gas market. But in order to prolong the life of the lease, since there is no production, the working interest owner must pay a royalty — fixed by the shut-in royalty clause— to the landowner. In those cases, the courts view the shut-in royalty clause as a part of the habendum clause. See Welsch v. Trivestco Energy Co., 43 Kan. App. 2d 16, 22, 221 P.3d 609 (2009).
But here, after examining the lease in question, the district court decided the shut-in royalty clause had been stricken from the lease when it was signed and therefore it could not save this lease. Gallagher takes no issue with this ruling in its brief, and we therefore deem the matter abandoned by Gallagher. See Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009).
Instead, Gallagher contends the minimum-royalty clause of this lease serves the same purpose as a shut-in royalty clause. That clause states: “Lessee shall receive a minimum royalty of $1,000.00 beginning at the end of the second year, either through actual production or by a [sic] paying the difference of actual royalty paid and the amount due by a payment within 30 days of the annual anniversary date of this lease.” We are not persuaded by this argument.
We must reject Gallagher s contention on this point for several reasons. First, the language of the clause itself does not say the payments will extend the lease into the secondary term. Also, this minimum-royalty clause does not indicate that the parties to the lease consider making those payments the same as if gas is being produced within the meaning of the habendum clause. With no such language, we cannot view this clause as part of the habendum clause. Therefore, we do not believe the payment of the minimum royalty extends the lease past the primary term. Furthermore, minimum-royalty payments have always been viewed as royalties and not as rentals. Cherokee Resources, Inc. v. Gold Energy Corp., 11 Kan. App. 2d 436, 438-39, 724 P.2d 695 (1986).
Although there are no Kansas cases on this issue, a panel of the Texas Court of Appeals determined that the satisfaction of a minimum-royalty clause does not extend the lease beyond the primary term. See Morris Exploration, Inc. v. Guerra, 751 S.W.2d 710,712-13 (Tex. App. 1988). The court stated: “It follows that there must be actual production and actual basic royalties due (paid or payable), before any minimum royalties are to be paid.” 751 S.W.2d at 713. In Texas, with no actual production, the clause was inoperable. Even though the minimum-royalty clause in this case and the minimum-royalty clause in Guerra are not identical, the concept is the same; neither clause modifies or becomes an integral part of the habendum clause in any way that extends the lease into the secondary term. The secondary term here only starts with production in paying quantities. Therefore, this clause cannot be used in the same way as a shut-in royalty clause to extend the lease beyond the primary term into the secondary term. Thus, this lease terminated according to its own terms in November 1998 because no oil or gas was produced from the leased land.
Equitable estoppel is not at play here.
The weight of oil and gas authority persuades us that the $1,000 payments the Palmers accepted do not prevent them from arguing their lease has expired by its own terms. A review of the law of equitable estoppel is helpful at this point:
“Equitable estoppel is the effect of the voluntary conduct of a party whereby it is precluded, both at law and in equity, from asserting rights against another person relying on such conduct. A party seeking to invoke equitable estoppel must show that the acts, representations, admissions, or silence of another party (when it had a duty to speak) induced the first party to believe certain facts existed. There must also be a showing the first party 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. There can be no equitable estoppel if any essential element thereof is lacking or is not satisfactorily proved. Estoppel will not be deemed to arise from facts which are ambiguous and subject to more than one construction. [Citation omitted.] A party may not properly base a claim of estoppel in its favor on its own wrongful act or dereliction of duty, or for acts or omissions induced by its own conduct. [Citation omitted.]” Gillespie v. Seymour, 250 Kan. 123, 129-30, 823 P.2d 782 (1991).
Neither KanMap nor Gallagher ever told the Palmers that if they accepted the $1,000 payments, their acceptance would serve to prolong this lease beyond the primary 2-year term. There is no language in the lease to that effect. How then can the lessee, Gallagher, validly argue their acceptance of the payments induced Gallagher to believe the lease was still valid? It seems more likely that both lessees, first KanMap and then Gallagher, treated the payments as some sort of rental payment, and no provision in the lease allows a delayed rental payment.
When applying equitable estoppel in the oil and gas arena, the authorities look at the nature of what the lessor receives. Generally, if the landowner, the lessor, receives a benefit from the payment of royalties, then the lessor is estopped from asserting that the lease terminated. But if the lessor did not receive a benefit from the payment of royalties, then the lessor should not be estopped from claiming the lease terminated. 3 Kuntz, Oil and Gas § 43.2, pp. 452-56 (1989). “[I]t is generally held that if a lessee should continue to make royalty payments to the lessor after the lease has terminated according to its own terms, the receipt of such payments will not work an estoppel against the lessor, and such lessor may nevertheless assert that the lease has terminated.” 3 Kuntz, Oil and Gas § 43.2, p. 455 (1989).
The reasoning behind this conclusion is straightforward. If the operator is still producing gas or oil under an expired lease, the lessor is entitled to all of the earnings from production, not just a fraction. When viewed this way, the acceptance of a part of the proceeds is not a benefit to the lessor since the lessor is due all of the value from the production of oil and gas from the leased land. Therefore, because the lessor is no longer receiving any benefit from the lessee under the lease, estoppel cannot apply to prevent the lessor from claiming the lease has terminated. 3 Kuntz, Oil and Gas § 43.2, p. 455-56 (1989). See 2 Kuntz, Oil and Gas § 26.14, pp. 430-31 (1989); 2 Summers, Oil and Gas § 302, p. 283 (Perm, ed. 1959); 3 Williams & Meyers, Oil and Gas Law § 604.7, pp. 88.18-19 (2009).
Accordingly, we hold the minimum royalty paid to the Palmers was not a benefit paid to them after the termination of the lease. After all, once the lease was terminated, the Palmers could have contracted with another operator to begin working on the leased land, and if the production of gas was substantial, the Palmers might have been able to receive more than the $1,000 they received annually. The Palmers are not estopped from claiming the lease terminated by its own terms. We affirm the district court’s ruling on these points.
Gallagher gave no consideration to the Palmers to sign the ratification of the lease.
Gallagher and the Palmers both stipulated that no money was paid to the Palmers when they signed the ratification agreement. Gallagher contends that because the Palmers did not raise this issue in their petition to cancel the lease, they have waived the issue of whether consideration existed. Next, Gallagher asserts that because both the Palmers and Gallagher received benefits and suffered inconveniences here, under the ruling in Cimarron Feeders v. Bolle, 28 Kan. App. 2d 439, 446, 17 P.3d 957 (2001), the benefits and inconvenience amount to adequate consideration for the rat ification agreement. To the contrary, the Palmers assert that no consideration was given for their agreement to ratify the oil and gas lease.
First, our search of the record on appeal reveals that the Palmers did assert in their reply to Gallagher’s counterclaim that the ratification was not supported by consideration. The claim is also made in the pretrial order approved by the court. Therefore, we do not believe the Palmers have waived the issue.
We note the district court used Gallagher’s own admission that no monetary consideration was given to the Palmers for ratifying the lease. In contrast, the court observed that Gallagher paid a neighboring landowner $10,000 for the ratification of his lease. In addition, the district court determined that the ratification fundamentally altered the original lease by “extending its term years beyond that which the parties had agreed to” and such alteration required consideration under the ruling in Bowersock Mills & Power Co. v. Leatherock, 170 Kan. 455, 457, 226 P.2d 854 (1951). We must agree.
This lease had expired by its own terms in 1998. The minimum-royalty payments did not revive it, nor did they extend its primary term, as attempted by the ratification agreement. There was no secondaiy term with this lease because there was no oil and gas production. We see no benefit flowing to the Palmers from the signing of the ratification agreement. The district court was correct; there was no consideration for this ratification agreement and it has no legal effect. But we do take issue with some subsequent holdings by the court.
No evidence supports the court’s finding that the Palmers did not knowingly and intelligently sign the ratification agreement.
Even though the district court, of its own volition, raised an issue about the capacity of the Palmers to agree to the lease ratification, we will address the matter according to the ruling in Huffmier v. Hamilton, 30 Kan. App. 2d 1163, 1167, 57 P.3d 819 (2002), rev. denied 275 Kan. 964 (2003). In Huffmier, the panel ruled that if the district court addresses an issue, an appellate court can review the issue even though the parties did not raise the matter. We must review a district court’s findings of fact to determine if those findings are supported by substantial competent evidence.
We also must decide if those findings are sufficient to support the district court’s conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion. Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009). Our examination of the record reveals that there was no evidence presented by either party that the Palmers lacked the capacity to ratify this lease.
What the district court said about their capacity to contract follows:
“Mr. Gallagher is by his own admission a successful financier that has invested in oil and gas leases for many years. Mr. and Mrs. Palmer are elderly, with only high school educations, and quite feeble in mind and body. When they were approached by Mr. Gallagher’s agent to sign a ratification in May, 2006, it is doubtful they had any idea of its implications. A ratification must be made knowingly and intelligently. Ciambotti v. Decatur-St. Louis, Lupin, 533 So.2d 1352 (La.App. 3d Cir. 1988); United Aircraft Corp. v. Inter. Assn. of Machinists, 161 Conn. 79, 285 A.2d 330 (1971). Here, there was no evidence to indicate that Mr. and Mrs. Palmer signed the ratification knowingly and intelligently.”
From this, we conclude the district court merely relied on the appearance of the Palmers in court at the time of the trial, over 2 years after the ratification was signed. Based on this, the district court did err in determining that the Palmers lacked the capacity to enter into the ratification, because the district court’s conclusions were not supported by substantial competent evidence. We move on to another problematic ruling of the court.
The evidence does not support the court’s conclusion that the ratification agreement was unconscionable.
The basic rule is that the burden of proving whether a contract is unconscionable is on the party attacking the validity of the contract. In the absence of fraud, mistake, or duress, a party is bound by a contract entered into fairly and voluntarily. This rule applies even if the attacking party fails to read the contract, or if terms disadvantageous to the attacking party are included in the contract. Adams v. John Deere Co., 13 Kan. App. 2d 489, 492, 774 P.2d 355 (1989). But if there is sufficient evidence to support a finding that a contract is unconscionable, the court may refuse to enforce it.
Here, no such evidence was given, nor did the district court rely on evidence to make its finding that the lease and its ratification were unconscionable. It appears that the court relied only on events occurring after the lease and ratification were both executed. Clearly, the district court did not focus on what took place at the time the lease and ratification were signed. The district court did not find that there was duress, fraud, or mistake by either the Palmers or Gallagher. The district court’s only focus was that the ratification would have revived an already terminated lease. This fact alone does not make the contract unconscionable. All the court stated on this point is:
“It is well settled that where an agreement is so one sided that no fair minded person would view it as just, it is deemed unconscionable. This is true in cases where a document is prepared by one party having the strongest economic position and presented to the party in a weaker position, and the document contains terms that are offensive or intolerable. [Citation omitted.] Here we have a situation where Mr. and Mrs. Palmer leased 238 acres of their lands for mineral production in 1996 believing in good faith that there would be production and payment of royalties. The only thing they received since the lease terminated in 1998 was an annual check for $1,000, a payment not recognized in the terms of the lease. Enforcement of the ratification would revive a lease that died by its own terms ten (10) years ago and cause forfeiture of Mr. and Mrs. Palmers right to lease the lands to another entity on current terms. The Court will not enforce such an arrangement.”
Therefore, the district court erred in finding that the lease and its ratification were unconscionable. We must reverse its ruling.
The court had authority to grant the Palmers attorney fees.
The law grants district courts discretion to award attorney fees in cases dealing with the release of oil and gas leases. K.S.A. 55-202 provides:
“Should the owner of such lease neglect or refuse to execute a release as provided by this act, then the owner of the leased premises may sue in any court of competent jurisdiction to obtain such release, and the owner may also recover in such action of the lessee, his or her successors or assigns, the sum of one hundred dollars as damages, and all costs, together with a reasonable attorney’s fee for preparing and prosecuting the suit, and he or she may also recover any additional damages that die evidence in the case will warrant.”
Here, the Palmers properly followed the procedures set out in K.S.A. 55-201 et seq. when they challenged the validity of the lease. This is necessary if they intend to rely on K.S.A. 55-202 to obtain an award of attorney fees. Gallagher refused to release the lease when notified by the Palmers that it had terminated. Subsequently, the district court decided the lease had expired and awarded the Palmers attorney fees and costs. Gallagher fails to show how the district court abused its discretion by awarding attorney fees and costs to the Palmers. Therefore, we must conclude the district court did not abuse its discretion in awarding attorney fees and costs to the Palmers. But the trouble we have with the ruling is the court failed to provide any reasons for determining the amount awarded was reasonable.
The Palmers requested $36,181.25 and expenses of $1,499.89. In a separate order, the district court awarded the Palmers $100 statutoiy damages, $1,499.89 for expenses, and $18,500 for attorney fees. The court gave no reasons for its ruling on the fee requests. Without any explanation, the court simply cut the fee request nearly in half.
In deciding the reasonableness of an attorney fee, courts must consider the eight factors set forth in Supreme Court Rule 1.5(a) (2009 Kan. Ct. R. Annot. 460) of the Kansas Rules of Professional Conduct. The district court itself is an expert in the area of attorney fees and can draw on and apply its own knowledge and expertise in determining their value. An appellate court is also an expert on the reasonableness of attorney fees. However, an appellate court does not substitute its judgment for that of the district court on the amount of the attorney fee award unless in the interest of justice the appellate court disagrees with the district court. Johnson v. Westhoff Sand Co., 281 Kan. 930, 940, 135 P.3d 1127 (2006). But in order for us to properly review the matter, we must have the reasoning of the court on the issue. We do not have that in this record; thus, we vacate the amount of the attorney fee award.
We do not address the cross-appeal since the district court must revisit the amount of attorney fees it finds reasonable. That award may be greater or less than what the court awarded before.
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Green, J.:
This case involves a wrongful death action. The plaintiff s decedent 8-year-old son, Zeus Graham, died on September 5, 2003, as a result of gunshot wounds inflicted by her estranged husband, Russell Graham. Graham, Zeus’ father, was a convicted felon and prohibited from purchasing a firearm. Russell shot Zeus with a 12-gauge New England shotgun and ammunition that his 77-year-old grandmother, Imogene Glass, had purchased that same day from the Baxter Springs Gun & Pawn Shop while accompanied by Russell, through an alleged straw-person sale. After shooting Zeus, Russell used the same firearm to fatally shoot himself.
In August 2005, the plaintiff, Elizabeth Shirley, as mother and next friend for Zeus, sued Glass, the alleged straw-person purchaser of the shotgun, and also Baxter Springs Gun & Pawn Shop and the pawn shop’s owners, Joe and Patsy George. Shirley alleged that Glass had been negligent in recklessly purchasing a firearm for a known felon, in fraudulently representing that the firearm was for herself, in circumventing firearm protection laws, and in failing to perform her fiduciary duty to Zeus. Shirley further alleged that the remaining defendants were negligent in selling a firearm to a party while knowing it was intended for another and in failing to perform a background check on the intended owner of the weapon. As the case proceeded through discovery, it was determined that Shirley’s claims against the defendants were based on theories of negligence, negligence per se, negligent entrustment, and civil conspiracy.
In January 2007, the defendants, Baxter Springs Gun & Pawn Shop and the Georges, moved for summary judgment on all of Shirley’s claims against them. The trial court granted the defendants’ motion for summary judgment on all of Shirley’s claims. Shirley later moved for and obtained a final order of dismissal with prejudice of her claims against Glass. Shirley now appeals from the trial court’s order granting summary judgment to the previously mentioned defendants.
On appeal, Shirley contends that the trial court erred in granting the appellees, Baxter Springs Gun & Pawn Shop and the Georges, summary judgment on her claims of negligent entrustment, negligence per se, simple negligence, and civil conspiracy. Of Shirley’s four claims, only one offers a potential avenue to estabhshing liability in this case: the negligent entrustment claim. As this case shows, Shirley’s negligent entrustment claim requires us to decide whether the appellees breached their duty, that is, if a reasonable person would have foreseen that Russell would hurt Zeus or others with the shotgun that was purchased from the appellees. Because there remain questions of fact about what the appellees should have reasonably foreseen as a result of the sale of the shotgun to Glass, in what seems to have been a straw-person purchase of the shotgun, we determine that the trial court erred in granting summary judgment to the appellees on Shirley’s negligent entrustment claim. In addition, we determine that the trial court properly granted summary judgment to the appellees on Shirley’s claims of negligence per se, simple negligence, and civil conspiracy. Accordingly, we affirm in part, reverse in part, and remand for trial.
Russell and Zeus’ mother, Shirley, had a tumultuous marriage and by September 5, 2003, Shirley lived separate from Russell and had filed for divorce. Shirley testified that the first time Russell hit her was in 1999 when he thought that she was cheating on him. According to Shirley, Russell punched her in the arm and hit her on her legs and arms with a baseball bat. Shirley further testified that in 2000, Russell punched her on the side of her head with his fist. Then, in 2001, Russell punched her on the side of her head and on her arm. According to Shirley, Russell also slapped her across the face in 2002. Shirley testified that she did not receive any medical treatment or call the police to report those incidents.
Shirley moved out of the home she had shared with Russell on June 16, 2003. Approximately 1 week later, she received a phone call at work around midnight from Russell telling her that Zeus had been in an accident and that she needed to come get him. When Shirley arrived at Russell’s home, Russell told her that he was leaving because Shirley had found someone else. Shirley testified that when she denied seeing anyone else, Russell punched her across the jaw with a closed fist, punched her five times on her left arm with a closed fist, and punched her twice in the center of her chest. Russell told Shirley that if she made any noise and woke up the boys, the last thing the boys would see would be Russell killing her. Zeus was asleep when this incident occurred. Russell also had another son, Alex, from a previous marriage, who was 2 years older than Zeus.
After Russell finished beating Shirley and walked out of his home, Shirley woke up Zeus and took him with her back to work and called the police. Shirley filed a protection from abuse request that day and was granted a protection from abuse order. According to Shiríey, Russell was arrested for domestic violence the following day.
Shirley testified that around the beginning of August, a custody hearing was held that resulted in her having residential custody of Zeus, with Russell having visitation with Zeus every other weekend. Shirley dropped Zeus off at Russell’s home on Friday, August 23, 2003, for a weekend visitation. According to Shirley, Russell whispered in her ear that if she did not move back in that Saturday, he was going to kill Zeus. Shirley testified that was the first time that Russell had threatened bodily harm to Zeus. After dropping off Zeus, Shirley drove to the police station and made a report about the incident. Shirley testified that it was her understanding that two officers went to Russell’s home, talked to Russell and Zeus, and concluded that they did not see any imminent danger. Shirley testified that she also contacted her lawyer, but he told her that Russell was probably just trying “to get a rise” out of her.
After the August 23, 2003, incident, arrangements were made for Zeus’ weekend visitation exchange between Shirley and Russell to take place at the courthouse. Shirley testified that when she met Russell at the courthouse on September 5, 2003, to give him Zeus for the weekend, he did not say anything to her. Shirley later received a phone call from Russell around 11:45 p.m. on September 5, 2003. Russell told Shirley that he had gotten a shotgun and was going to kill himself. Russell told Shirley that if she came over and talked to him, she and Zeus would leave alive. According to Shirley, Russell stated that he would be sitting with a gun pointed at Zeus and that if any other person knocked on the door or if anyone came with her, he would shoot Zeus. Russell told Shirley that he had attempted to suffocate Zeus during the previous weekend visitation but that he had “chickened out.”
When Russell called, Shirley was babysitting her boyfriend’s daughter. Shirley testified that as soon as she got off the phone with Russell, she called her boyfriend at work, told him about Russell’s phone call, and told him to come get his daughter. Shirley attempted to call Russell back, but she got the answering machine. When Shirley’s boyfriend arrived, he stated that he had called the police and that they had instructed Shirley to stay there. Around 2 a.m., the police notified Shirley that Zeus had been killed.
An investigation revealed that earlier in the day on September 5,2003, Russell had called his 77-year-old grandmother, Glass, and asked her to drive him to Baxter Springs Gun & Pawn Shop to buy a gun for Zeus and Alex. Russell told Glass that he had called the pawn shop that morning and that there was a gun there that he thought he could get for Zeus and Alex. Glass agreed to drive Russell to Baxter Springs to get the gun.
Glass testified that after she and Russell walked into the pawn shop, Russell told Joe George that he had called and wanted to see the gun. Joe took them back to a cage area, took down a gun, and handed it to Russell. After looking at the gun, Russell handed it to Glass, and Glass handed it back to either Russell or Joe. According to Glass, Russell told Joe that the gun was about the right size for his two boys. Glass testified that she told Russell that he would need to get ammunition and a cleaning kit for the gun.
According to Glass, after Russell indicated to Joe that he wanted to purchase the gun, Joe asked him, “Have you been a good boy?” Glass testified that Russell replied, “No. I have a felony.” Glass further testified that the next thing she knew Joe was handing her an ATF Form 4473, which is the federal form used to determine whether the buyer has a criminal or other record that prohibits him or her from buying a firearm.
Glass testified that she filled out part of Form 4473 and gave it back to Joe. According to the information on Form 4473, Glass purchased a 12-gauge New England Firearms single-shot shotgun, model SB1. Question 12(a) on Form 4473 asks: “Are you the actual buyer of the firearm(s) Usted on this form?” In the box following 12(a), the response “yes” is handwritten. Immediately after the question in 12(a) the following warning is given: “Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to you. (See Important Notice 1 for actual buyer definition and examples.)” It is apparent that Important Notice 1 was on the back of Form 4473.
According to Glass, she filled out items 1 through 11 on the front page of the form and signed the bottom of the form but did not recall answering any of the questions in items 12(a) through 12(1). Moreover, Glass testified that the handwriting in response to the questions in 12(a) through 12(1) was not hers. Glass further testified that she probably did not read the instructions on the back of the form because she was not purchasing anything. According to Glass, if Joe would have asked her if she was the actual buyer of the firearm, she would have told him no.
According to Glass, she never witnessed Russell acting violently towards anyone. Glass testified that she knew that Russell had a felony conviction for rape and had been in prison for approximately 6 years. Moreover, Glass testified that Russell had a hot temper but she never thought that Russell would be violent toward his sons.
Patsy George rang up the sale of the shotgun, ammunition, and cleaning kit. According to Glass, Russell stated that he was going to pay for it and took the money out of his pocket. Glass testified that Russell gave Patsy the money for the sale, and Patsy gave Russell some change. According to Glass, Russell carried the gun, ammunition, and cleaning kit out of the store. Glass further testified that when Russell got in the car, he had the sales receipt with him. Glass dropped Russell off at his home, and Russell took the gun with him. Glass testified that Russell had promised her that if she drove him to the pawn shop and if he purchased the gun, Russell would leave the gun at her house.
The Georges had a video monitoring and recording system at the pawn shop when the gun sale took place on September 5,2003. Nevertheless, Patsy George testified that after they were contacted by the sheriff s deputy about Zeus’ murder, they were unable to retrieve the surveillance videotape from September 5, 2003. The Georges stated that the recording system had malfunctioned and that the video recording system had “eaten” the tape.
Joe and Patsy George’s deposition testimony about the gun sale differed significantly from that given by Glass. Joe testified that Glass told him that she was purchasing a gun for her great-grandson. According to Joe, he went back to the cage area and picked up a single-barrel shotgun, opened up the chamber, and handed it to Glass.
Joe testified that Glass told him that she brought her grandson along to inspect the gun because she did not know anything about guns. Joe testified that Russell looked down the barrel of the gun, closed it, and tripped the lever. According to Joe, Russell then told Glass, “Looks like a nice gun, it should be all right.” Joe then reached out and took the gun from Russell. Joe testified that Glass then stated, “If that’s all right, we’ll take this one.”
Joe testified that he stated, “Well, we’ll see if grandma’s been a good girl.” According to Joe, this was a statement that he used to break the ice with his customers when he was getting ready to run a background check. Joe denied ever asking Russell whether he had been a good boy. Moreover, Joe denied that Russell ever told him that he was a felon. Joe testified that as Glass was filling out Form 4473, Russell was away from the counter and was looking through tools in a junk tool bin. Joe further testified that he saw Glass answer items 12(a) through 12(1).
According to Joe, after Russell murdered Zeus and then committed suicide, Joe was interviewed by federal Special Agent Tierney of the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Joe testified that Tierney indicated that when a person makes a phone call and then comes into the store and asks about ammunition and says that he wants to taire his son dove hunting, that person should be the one filling out Form 4473. Joe testified that Patsy had been the one to talk with Russell when Russell called on the morning of September 5, 2003. Joe further testified that Patsy told him only that someone had called and was coming to look at a single-shot shotgun. According to Joe, although Russell had told him that he would like to take his son dove hunting and had talked with him about which shells to use, he never thought that Russell would be the one possessing the gun.
Joe submitted an affidavit that stated the following:
“It was my understanding . . . based on all of the verbal and nonverbal communications between me, the buyer of the gun, Imogene Glass, and the inspector of the gun (whom I’ve since been told was Russell Graham), that the gun was being purchased by Ms. Glass as a gift for a youngster or youngsters whom I understand to be her great-grandchild or great-grandchildren, for die purpose of going dove hunting.”
Patsy testified that she received a phone call on the morning of September 5, 2003, from a man who said that he wanted to purchase a shotgun that he could use to take his child out dove hunting. According to Patsy, she told the man on the phone that she had two shotguns. Patsy testified that she stated that one of the guns had a bad trigger and that for his child’s safety, the other gun would be more suitable to use to take his son dove hunting.
When Patsy was interviewed by Tierney, she initially told him that she thought that Glass had paid for the gun sale with a check. Nevertheless, she was unable to find Glass’ check and eventually remembered that the gun had been paid for with cash. Patsy testified she remembered that while she was at the cash register ringing up the sale of the gun and facing Glass, she turned to the side and noticed that there was money on the counter to pay for the sale. According to Patsy, she gave the change to Glass, and Glass waited for a receipt. Patsy testified that Russell picked up the shotgun and Glass picked up the ammunition and cleaning kit and they walked out of the store.
Standard of Review
On appeal, Shirley argues that the trial court erred in granting summary judgment to the appellees because she had established genuine issues of material fact as to her claims against them. This court’s review over a trial court’s decision on a motion for summary judgment is well established. When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009).
Summary judgment should be granted with caution in negligence actions. Esquivel v. Watters, 286 Kan. 292, 296, 183 P.3d 847 (2008). Nevertheless, summary judgment is proper in a negligence action if the defendant shows there is no evidence indicating negligence. Edwards v. Anderson Engineering, Inc., 284 Kan. 892, 904, 166 P.3d 1047 (2007). Summary judgment is also proper in a negligence action if the only questions presented are questions of law. Smith v. Kansas Gas Service Co., 285 Kan. 33, 39, 169 P.3d 1052 (2007).
Negligent Entrustment
In granting summary judgment to the appellees on Shirley’s negligent entrustment claim, the trial court determined that under Kansas law, the doctrine of negligent entrustment does not apply to the sale of a chattel. Shirley contends, however, that there was sufficient evidence to show that the Georges, by furnishing a gun to a man they knew or should have known posed a foreseeable risk when armed, could be hable on a theory of negligent entrustment under Kansas law.
Kansas courts have recognized claims of negligent entrustment where a supplier of a chattel has a duty to not give control of the chattel to a known incompetent person. The cause of action has four elements: (1) an entrustment of a chattel, (2) to a person incompetent to use it, (3) with knowledge that the person is incompetent, and (4) that it is the cause in fact of injury or damage to another. See McCart v. Muir, 230 Kan. 618, 620-21, 641 P.2d 384 (1982). As Restatement (Second) of Torts § 390 (1965) states:
“One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.”
In Priestly v. Skourup, 142 Kan. 127, 130, 45 P.2d 852 (1935), our Supreme Court recognized Restatement (First) of Torts § 390 (1934). This section quoted in Priestly is virtually the same as in the current Restatement (Second) of Torts § 390 (1965).
The negligent entrustment rule under Restatement (Second) of Torts § 390, imposes a special duty upon a supplier of a chattel not to give control of the chattel to a person whom the supplier knows is incompetent or incapable of handling the chattel. Restatement (Second) of Torts § 390, comment b, explains that the supplier of a chattel may not assume that a person will conduct himself or herself properly if the facts which are known or should be known to the supplier should make the supplier realize that the person is unlikely to conduct himself or herself properly:
“[L]iability is based upon the rule stated in §§ 302, 302A, and 302B, and elaborated in Comment j under § 302, that the actor may not assume that human beings will conduct themselves properly if the facts which are known or should be known to him should make him realize that they are unlikely to do so. [Ojne who supplies a chattel for the use of another who knows its exact character and condition is not entitled to assume that the other will use it safely if the supplier knows or has reason to know that such other is likely to use it dangerously, as where the other belongs to a class which is notoriously incompetent to use the chattel safely, or lacks die training and experience necessary for such use, or the supplier knows that the other has on other occasions so acted that the supplier should realize that the chattel is likely to be dangerously used, or that the other, though otherwise capable of using the chattel safely, has a propensity or fixed purpose to misuse it. This is true even though the chattel is in perfect condition, or though defective, is capable of safe use for the purposes for which it is supplied by an ordinary person who knows of its defective condition.”
Restatement (Second) of Torts § 390, comment b, further explains a supplier s liability under a negligent entrustment theory as follows:
“[If] the person to whom the chattel is supplied is one of a class which is legally recognized as so incompetent as to prevent them from being responsible for dreir actions, the supplier may be hable for harm suffered by him, as when a loaded gun is entrusted to a child of tender years. So too, if the supplier knows that the condition of the person to whom the chattel is supplied is such as to make him incapable of exercising the care which it is reasonable to expect of a normal sober adult, the supplier may be hable for harm sustained by the incompetent although such person deals with it in a way which may render him hable to third persons who are also injured.”
Historically, Kansas courts have applied negligent entrustment principles to situations where an owner of a chattel has loaned or permitted access to die property by another. The majority of the cases involve an owner who has permitted a known reckless or incompetent person to use his or her vehicle. Estate of Pemberton v. John's Sports Center, Inc., 35 Kan. App. 2d 809, 135 P.3d 174, rev. denied 282 Kan. 788 (2006).
In Pemberton, 35 Kan. App. 2d at 830, this court recognized that Kansas has never applied the negligent entrustment doctrine in the context of the sales of chattels. In fact, in Kirk v. Miller, 7 Kan. App. 2d 504, 508, 644 P.2d 486, rev. denied 231 Kan. 800 (1982), this court held that once a vehicle is validly sold, the seller cannot be held to have negligently entrusted the vehicle to the buyer.
Nevertheless, the Restatement (Second) of Torts § 390, comment a, states that the negligent entrustment rule recited in that section “applies to sellers, lessors, donors or lenders, and to all kinds of bailers, irrespective of whether the bailment is gratuitous or for a consideration.”
Moreover, although negligent entrustment claims generally occur in the context of a bailment, there is now wide support for the legal principle that merchants may be considered to be suppliers of chattels. See Ireland v. Jefferson County Sheriffs Dept., 193 F. Supp. 2d 1201, 1229 (D. Colo. 2002); Brown v. Wal-Mart Stores, Inc., 976 F. Supp. 729, 734 (W.D. Tenn. 1997). As a result, both state and federal courts have recognized that negligent entrustment claims may be maintained against persons who sell firearms and ammunition. See Morin v. Moore, 309 F.3d 316, 324-25 (5th Cir. 2002) (assault rifle); Ireland, 193 F. Supp. 2d at 1227-29 (shotgun); Brown, 976 F. Supp. at 734 (ammunition); Knight v. Wal-Mart Stores, Inc., 889 F. Supp. 1532, 1539 (S.D. Ga. 1995) (firearms and ammunition); Hamilton v. Beretta Corp., 96 N.Y.2d 222, 236-37, 727 N.Y.S.2d 7, 750 N.E.2d 1055 (2001) (firearms); Wal-Mart Stores, Inc. v. Tamez, 960 S.W.2d 125, 130 (Tex. App. 1997) (ammunition). Thus, the special duty under Section 390, to not give control of firearms or ammunition to a person whom the firearms dealer knows is incompetent or incapable of handling a firearm or ammunition or of using those items carefully, has been extended to firearms dealers.
Here, in order to establish a claim for negligent entrustment of a firearm or ammunition, Shirley must show that the appellees sold a shotgun and ammunition, in a straw-person purchase, to a person they knew or had reason to know would likely, due to his previous felony conviction, use the shotgun or ammunition or both in a manner that would cause an unreasonable risk of harm to himself or to others.
Illegal Sale of Shotgun to Felon
The first question is whether there is evidence in the record to create a genuine issue of material fact that the appellees, through a straw-person purchase, sold the 12-gauge shotgun and ammunition to Russell and that Joe George knew Russell was a convicted felon who could not legally obtain a firearm.
The United States Congress has established federal firearms laws that prohibit certain persons from being sold firearms and ammunition. Thus, by virtue of the federal firearms laws, certain persons are incompetent or not legally qualified to purchase firearms and ammunition. The particular federal firearms law that prohibits a firearms dealer from selling firearms and ammunition to felons is 18 U.S.C. § 922 (2000), which provides in relevant part:
“(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person—
“(1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.”
Anyone who knowingly violates 18 U.S.C. § 922(d)(1) is subject to fines and imprisonment of not more than 10 years. 18 U.S.C. § 924(a)(2) (2000).
In the present case, the evidence presented at the summary judgment stage was conflicting as to who was the actual purchaser of the gun and how much information Joe knew when making the shotgun sale. Although Joe testified that he believed Glass to be the purchaser, Glass testified that she was not the purchaser of the gun and did not pay any money for the gun. According to Glass, Russell had called the pawn shop on the morning of September 5, 2003, to ask about the shotgun, had mentioned to Joe his earlier call when he came into the pawn shop with Glass, had examined the gun and indicated to Joe that he wanted to purchase the gun, had paid for the gun, had taken the change and sales receipt, and had walked out of the pawn shop with the shotgun, ammunition, and cleaning kit.
According to Glass, it was only after Russell disclosed to Joe that he was a convicted felon that she was told to fill out Form 4473. Joe testified that Agent Tierney indicated that when a person malees a phone call and then comes into the store and asks about ammunition and says that he wants to take his son dove hunting, that person should be the one filling out Form 4473.
Moreover, Shirley presented an affidavit from her expert witness, Scott Hattrup, who was a firearms instructor, a federal firearms licensee, and an attorney, which stated that he believed the firearm purchase in this case was a straw-person purchase and that the person who was actually purchasing the gun was Russell. Hattrup explained that a straw-person firearm purchase “is one where the purchaser and intended user or actual owner are different parties, usually because of some legal prohibition on the intended user or actual owner purchasing the firearm himself.” Hattrup stated that he had reviewed Agent Tierney s interviews with the Georges and that it was apparent from those interviews that Tierney thought that the shotgun sale in this case was a straw-person purchase, with Russell actually purchasing the firearm.
In reviewing the evidence in the light most favorable to Shirley, the nonmoving party, we find that there was a genuine issue of material fact created as to whether the appellees illegally sold the 12-gauge shotgun and ammunition to a known felon, through a straw-person purchase, in violation of 18 U.S.C. § 922(d)(1).
In addition, there is evidence in the record establishing a genuine dispute of material fact as to whether the appellees violated 18 U.S.C. § 924(a)(1)(A) and 18 U.S.C. § 2(a) (2000), which prohibit aiding and abetting the knowing making of false statements or representations with respect to the information required by the Federal Firearms Act to be kept in the records of a federal firearms licensee “or in applying for any license or exemption or relief from disability” under die Federal Firearms Act. Glass testified that she did not purchase the gun and she did not recall filling out items 12(a) through 12(1) on Form 4473. Glass further testified that the handwritten responses to the questions in items 12(a) through 12(1) were not in her handwriting. Based on Glass’ testimony, a reasonable inference could be drawn that the appellees knew that Russell was the actual purchaser of the shotgun and that either Joe or Patsy provided the answers to items 12(a) through 12(1).
Further, the fact that the appellees could not produce the videotape from the surveillance cameras that would have recorded the entire transaction on September 5, 2003, could lead to an adverse inference that the appellees had illegally filled out part of Form 4473 for Glass and that the transaction had occurred as Glass described it in her testimony. See Interstate Circuit v. United States, 306 U.S. 208, 226, 83 L. Ed. 610, 59 S. Ct. 467 (1939) (The production of weak evidence, when strong is available, can lead only to the conclusion that the strong would have been adverse.).
Although Shirley contends that the Federal Firearms Act created a private cause of action, we reject that contention. We address that contention in the next issue. Nevertheless, we determine that a jury may consider the Federal Firearms Act in relation to all of the other evidence in the case in determining the degree of care owed for the safety of the public and in measuring the appellees’ conduct in the sale of the shotgun. See Pullen v. West, 278 Kan. 183, 204-06, 92 P.3d 584 (2004) (Our Supreme Court held that the trial court properly determined that the doctrine of negligence per se was inapplicable to this case. Nevertheless, our Supreme Court held that the trial court had improperly excluded any mention of the requirements of the National Fire Protection Association’s standards to the jury.); see also Martin v. MAPCO Ammonia Pipeline, Inc., 866 F. Supp. 1304-08 (D. Kan. 1994) (holding that evidence of Pipeline Safety Act and its regulations is admissible as evidence to show the appropriate standard of care and defendant’s conformity with that standard, but cannot be considered conclusive proof of negligence or absence of negligence); Robertson v. Burlington Northern R. Co., 32 F.3d 408, 410-11 (9th Cir. 1994) (violation of OSHA noise-level regulation did not establish negligence per se, but evidence of OSHA standards may be admitted as some evidence of applicable standard of care, as long as such evidence is considered in relation to all other evidence in case).
In fact, our Supreme Court in Pullen stated that “the NFPA 1123 standards were important to [the plaintiff s] case so that the jury could evaluate the degree of care owed when sponsoring or participating in a class B fireworks display, and the district court should have so instructed.” 278 Kan. at 206. By the same token, an argument can be advanced that had the appellees not sold the shotgun to Glass in a straw-person purchase, a violation of the Federal Firearms Act, Russell would have had no other means of obtaining a shotgun that day, and Zeus would not have been murdered by the use of that shotgun.
In short, Shirley is entitled to have the jury consider whether the appellees’ sale of the shotgun and ammunition, through a straw-person purchase, to a person known to have been a convicted felon along with all of the other facts surrounding the gun transaction, was reasonable in light of Shirley’s negligent entrustment claim.
Foreseeability
The more difficult question is whether there was enough evidence to establish foreseeability. In other words, was there evidence to show that the Georges knew or had reason to know that Russell would likely use the shotgun or ammunition or both in a manner that would cause unreasonable risk of harm to himself or to others?
In determining whether the defendant owed a duty to control the conduct of a third person, our Supreme Court has indicated there is no duty absent a showing the risk of harm was foreseeable. See South v. McCarter, 280 Kan. 85, 102-06, 119 P.3d 1 (2005); Pemberton, 35 Kan. App. 2d at 831. In addition, to prove legal causation under the proximate cause element, “the plaintiff must show that it was foreseeable that the defendant’s conduct might create a risk of harm to the victim and that the result of that conduct and contributing causes were foreseeable. [Citation omitted.]” Puckett v. Mt. Carmel Regional Medical Center, 290 Kan. 406, 421, 228 P.3d 1048 (2010).
“ ‘ “Foreseeability, for the purpose of proving negligence, is defined as a commonsense perception of the risks involved in certain situations and includes whatever is likely enough to happen that a reasonably prudent person would take it into account. [Citation omitted.] An injury is foreseeable so as to give rise to a duty of care where a defendant knows or reasonably should know that an action or the failure to act will likely result in harm.” ’ [Citations omitted.]” South, 280 Kan. at 103-04 (quoting Gragg v. Wichita State Univ., 261 Kan. 1037, 1056, 934 P.2d 121 [1997]).
Generally, whether a duty exists in a negligence case is a question of law. 280 Kan. at 94. Nevertheless, “whether the risk of harm is reasonably foreseeable is a question for the trier of fact. Only when reasonable persons could arrive at but one conclusion may the court decide the question as a matter of law.” Long v. Turk, 265 Kan. 855, 865, 962 P.2d 1093 (1998).
In this case, the evidence presented at the summary judgment stage showed many red flags that would have alerted a reasonably careful gun dealer that the sale of a shotgun to Russell would likely result in harm. For example, there was evidence that Russell had called earlier in the day about the shotgun and had selected a 12-gauge shotgun to purchase when he and Glass came into the pawnshop. After Russell had selected the shotgun to be purchased, Joe George asked Russell if he had been “a good boy.” Russell stated, “I have a felony.” The Georges knew or should have known drat Russell was prohibited by federal law from purchasing a gun. Yet, Joe George then turned to Ms. Glass and said, “[Wje’Il see if grandma’s been a good girl.” Russell had already indicated to Joe George that he was the purchaser of the gun. A jury could infer that Glass was a straw-person purchaser, which is a violation of federal law. Moreover, Russell, not Glass, paid for the shotgun. There is also evidence that Russell received the change for the shotgun, took the sales receipt, and walked out the door with the ammunition and the shotgun in his hand.
As to Russell’s previous felony conviction, the Georges should have asked more questions of Russell and Glass and attempted to ascertain the type of felony for which Russell had been convicted. Based on the highly suspicious circumstances in this case, that is, a 77-year-old grandmother accompanying a convicted felon to look at a 12-gauge shotgun, a reasonably careful firearms dealer should have asked additional questions to ensure that the firearm was not going to wind up in the hands of a violent person who was likely to do harm to others. Glass’ testimony indicated that Russell’s prior conviction may have been for rape, which is an offense that involves a defendant’s physical conduct and can involve extreme violence against the victim in the commission of that crime. See K.S.A. 21-3502(a)(1)(A). If the Georges had found out that Russell had been convicted of rape, then that information should have put them on high alert that Russell was potentially an extremely violent person attempting to purchase a firearm through his 77-year-old grandmother. Moreover, upon further questioning of Russell, the Georges might have also been able to ascertain that Russell was subject to a protection from abuse order against his estranged wife and that Russell had been recently arrested for domestic battery.
Instead, the evidence presented by Shirley shows that the Georges chose not to ask any of the previously mentioned questions. By choosing to disregard all of the warning signs surrounding this gun transaction and not making any inquiries of Glass and Russell, the Georges allowed Russell, a convicted felon who also had a recent history of violent criminal acts towards a family member, to gain control of a firearm that was later used by Russell to murder his 8-year-old son. In short, foreseeability is fairly obvious when an unsatisfactory answer to any of the previously mentioned questions would have been sufficient to refuse the sale of the shotgun.
The appellees maintain, however, that Russell’s act of murdering Zeus was so far outside of the realm of foreseeability that liability cannot be imposed on them. With this argument, the appellees suggest that a defendant in a negligent entrustment case would have to be able to foresee the specific harm that ultimately occurred. Nevertheless, such a strict foreseeability standard is not and cannot logically be imposed in a case. In South, our Supreme Court stated that “ ‘[a]n injury is foreseeable so as to give rise to a duty of care where a defendant knows or reasonably should know that an action or the failure to act toill likely result in harm.’ ” (Emphasis added.) 280 Kan. at 103-04 (quoting Gragg, 261 Kan. at 1056). There is no requirement that the defendant’s actions or failure to act will likely result in the specific harm that actually occurred.
Other jurisdictions have held that in order to be legally negligent, the defendants need not have foreseen the exact events that later transpired. They need only have suspected that the actor would take the gun and commit an act with generally injurious consequences. See Knight, 889 F. Supp. at 1539-40; Edmunds v. Cowan, 192 Ga. App. 616, 618, 386 S.E.2d 39 (1989). Similarly, foreseea bilily does not require the actor to anticipate the precise manner in which injuiy will occur once he has created a dangerous situation through his or her negligence. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). “All that is required is ‘that the injuiy be of such a general character as might reasonably have been anticipated; and that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen.’ ” Nixon v. Mr. Property Management, 690 S.W.2d 546, 551 (Tex. 1985) (quoting Carey v. Pure Dist. Corp., 133 Tex. 31, 35, 124 S.W.2d 847 [1939]).
Here, although the precise criminal act (Zeus’ murder) committed by Russell may not have been foreseeable, there is evidence creating a genuine issue of material fact as to whether it was reasonably foreseeable that the appellees’ conduct in selling the 12-gauge shotgun and ammunition to Russell, through a straw-person purchase, would result in the intentional misuse of the shotgun and serious harm to another person.
As a result, the foreseeability of Russell’s improper use of the shotgun is a question of fact, and Russell’s intervening criminal act of murdering Zeus does not as a matter of law supersede the appellees’ liability. See Puckett, 290 Kan. 406, Syl. ¶ 10, (“If the intervening cause is foreseen or might reasonably have been foreseen by the first actor, his or her negligence may be considered the proximate cause, notwithstanding the intervening cause.”); Long, 265 Kan. at 867 (holding that son’s criminal act of killing an individual did not excuse father’s liability for negligent entrustment of the gun); see also Decker v. Gibson Products Co. of Albany, Inc., 679 F.2d 212, 216 (11th Cir. 1982) (holding that fact issue of whether gun dealer could have foreseen that ex-convict to whom he sold .38 caliber handgun would use gun to murder his former wife precluded summaiy judgment for gun dealer).
In summary, the disclosing by Russell of his felony conviction; the purchasing of the 12-gauge shotgun through a straw-person purchaser; the paying for the shotgun by Russell; the failing of the gun dealers to ask questions of Glass and Russell about the type of felony that Russell had committed; the lying of Glass (or Joe George) on the federal form; and the carrying of the shotgun by Russell as he left the pawn shop were all logically foreseeable steps to Russell’s goal of murdering or injuring Zeus or others or both.
Consequently, we determine that the previously mentioned facts support the existence of a special duty on the part of the Georges to protect Zeus or others from injury or harm. The appellees’ failure to comply with the federal statutes justify submitting this case against the appellees on the grounds of common-law negligent entrustment. Moreover, because genuine issues of material fact exist, the trier of fact should determine whether the appellees breached the common-law duty of care under Restatement (Second) of Torts § 390 to Shirley. Finally, whether Zeus’ death or injury to others was foreseeable and whether the appellees’ illegal sale of tire shotgun to Russell was the proximate cause of Zeus’ death requires resolution by the trier of fact. See Hale v. Brown, 287 Kan. 320, 324, 197 P.3d 438 (2008). As a result, we determine that the grant of summary judgment on Shirley’s claim of negligent entrustment was inappropriate.
Negligence Per Se
Shirley also argues that the trial court erred in granting summary judgment on her negligence per se theory when Zeus’ murder was exactly the type of harm that the federal firearm statutes, 18 U.S.C. § 922 and § 924, and K.S.A. 21-4203 were intended to prevent.
Our Supreme Court in Pullen, 278 Kan. at 194, set out the elements of negligence per se as follows:
“ ‘The elements of negligence per se are (1) a violation of a statute, ordinance, or regulation, and (2) the violation must be the cause of the damages resulting therefrom. In addition, the plaintiff must also establish that an individual right of action for injury arising out of the violation was intended by the legislature.’ [Citation omitted.]”
Was there a violation of 18 U.S.C. § 922P
Shirley alleges that the appellees violated 18 U.S.C. § 922(d)(1) when they illegally sold the shotgun to Russell, a felon who was subject to a domestic violence order. As discussed in the previous issue, the record in this case contains evidence creating a genuine issue of material fact as to whether the appellees violated 18 U.S.C. § 922(d)(1) by selling a firearm, in an alleged straw-person sale, to a known felon.
Shirley also alleges that the appellees violated 18 U.S.C. § 922(d)(8) by selling the shotgun to Russell when he was subject to a domestic violence protection order.
18 U.S.C. § 922(d)(8) provides in relevant part:
“(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person—
“(8) is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injuiy to the partner or child, except that this paragraph shall only apply to a court order that—
“(A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and
“(B)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
“(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injuiy.”
Nevertheless, the evidence in the record is insufficient to establish a genuine issue of material fact as to whether 18 U.S.C. § 922(d)(8) was violated. Although Shirley testified that she had requested and been granted a protection from abuse order, the actual order is not contained in the appellate record. Moreover, there is no other evidence to show that the requirements of 18 U.S.C. § 922(d)(8)(A) and (B) were met, which would have prohibited the appellees from selling a gun to Russell under that particular subsection.
Did the violation of 18 U.S.C. § 922(d)(1) create a private right of action?
Because there is a genuine issue of material fact as to whether the appellees violated 18 U.S.C. § 922(d)(1), the next question is whether the federal statute creates a private right of action. In order for a person claiming liability based on a statutory violation to recover damages, there must be an individual or a private right of action. A private right of action exists if the legislature intended to give such a right. Whether a private right of action exists under a statute presents a question of law. Pemberton, 35 Kan. App. 2d at 816.
Kansas courts generally use a two-part test to determine whether the legislature’s intention was to create a private right of action in a statute. First, the party must show that the statute was intended to protect a specific group of people instead of to protect the general public. Second, the court must review the legislative history of the statute to determine whether the legislature intended to create a private right of action. Pemberton, 35 Kan. App. 2d at 816.
Under the more recent federal decisions, federal courts, when determining whether Congress intended to create a private right of action, “must look for ‘ “rights-creating language” ’ which ‘ “explicitly confer[s] a right directly on a class of persons that include[s] the plaintiff’ ’ and language indentifying 'the class for whose especial benefit the statute was enacted.’ ” Pemberton, 35 Kan. App. 2d at 816 (quoting Boswell v. Skywest Airlines, Inc., 361 F.3d 1263, 1267 [10th Cir. 2004]).
It is important to point out that the doctrine of negligence per ■se in Kansas differs from the negligence per se recognized in other states. As explained by Professors William E. Westerbeke & Stephen R. McAllister in Survey of Kansas Tort Law: Part I, 49 U. Kan. L. Rev. 1037, 1053 (June 2001):
“In Kansas, the doctrine of negligence per se . . . recognizes the creation of an individual cause of action from a criminal statute or administrative regulation. An individual cause of action does not arise from every statute or regulation, but only from those which were enacted or promulgated with legislative intent to create an individual cause of action as opposed to a statute or regulation intended merely to protect the safety or welfare of the public at large. In every other state, the doctrine refers to the judicial process in negligence actions of taking a specific standard of care from a criminal statute or ordinance or from an administrative regulation that is in fact silent about issues of civil liability.”
Courts in other jurisdictions have developed the following three-part test to be used in determining when a specific standard of care should be taken from a statute, ordinance, or regulation: (1) Does the statute, ordinance, or regulation protect a particular class of persons, and the plaintiff in that class? (2) Does the statute, ordi nance, or regulation seek to prevent a particular type of harm, which is the type of harm suffered by the plaintiff? and (3) Is the violation of the statute, ordinance, or regulation a proximate cause of the harm suffered by the plaintiff? Westerbeke & McAllister, Survey of Kansas Tort Law: Part I, 49 U. Kan. L. Rev., at 1057.
Under both the three-part test set out above and the two-part test set out in Pemberton, a court must determine whether the statute was intended to protect a particular group or class of people. Thus, if the statute was not intended to protect a particular group or class of people, then the plaintiff does not have a cause of action for negligence per se. Based on the analysis below, Shirley s claim would fail under either test because 18 U.S.C. § 922 was not designed to protect a specific group or class of people but instead was aimed at protecting society in general.
This court in Pemberton explained that 18 U.S.C. § 922 was enacted as part of Title IV of the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. 90-351, 82 Stat. 228 and was amended that same year by Title I of the Gun Control Act of 1968, Pub. L. 90-618, 82 Stat. 1216. Title IV of the Omnibus Crime Control Act noted the number of murders and crimes committed with guns. 1968 U.S.C.C.A.N. 2163-64. Congress was concerned that the firearms traffic moving in interstate commerce prevented the states from adequately controlling the firearms traffic within their borders. Moreover, the availability of firearms to criminals, juveniles, drug addicts, mental defectives, and militant groups was a significant factor in the prevalence of unlawful conduct and violent crime in the United States. As a result, restrictions on transfers and sales of firearms were deemed necessary. 1968 U.S.C.C.A.N. 2197-98. The Gun Control Act of 1968 amended Title IV to impose the same restrictions on subject rifles and shotguns as had been imposed on other firearms. 1968 U.S.C.C.A.N. 2197, 4412-13, 35 Kan. App. 2d at 817.
In determining that there was no private right of action under 18 U.S.C. § 922 based on the federal private right of action analysis, this court in Pemberton stated:
"Under the federal standard for determining a private right of action, there is no legislative language in 18 U.S.C. § 922 or the accompanying provisions which can be classified as ‘ “rights-creatíng language” ’ which explicitly conferred a right directly to a class of persons that includes the plaintiffs or language identifying the class for whose especial benefit the statute was enacted. See Boswell, 361 F.3d at 1267. As discussed above, the legislative history of the two federal enactments focuses on protecting the public in general from crime and violence created by the ready availability of firearms. While the laws were focused at keeping firearms out of the hands of felons and irresponsible persons, the protection was aimed at society in general. See Huddleston v. United States, 415 U.S. 814, 824-25, 39 L. Ed. 2d 782, 94 S. Ct. 1262 (1974) (discussing legislative history of § 922 in context of appeal from a criminal prosecution for unlawful possession). Based upon the federal private right of action analysis set forth in Boswell, no private right of action would exist under 18 U.S.C. § 922.” 35 Kan. App. 2d at 817-18.
Further, in determining that no private right of action would exist under the Kansas analysis, this court stated:
“It is apparent that no private right of action would exist under Kansas’ two-part analysis. The legislative history of 18 U.S.C. § 922 contains no implication that Congress was attempting to create a private right of action if the federal criminal statute was violated. Moreover, nothing in § 922 reflects that it was designed to protect a specific group of people. Instead, it clearly was enacted to protect the general public. [Citation omitted.]” 35 Kan. App. 2d at 820.
Shirley argues, however, that our Supreme Court in Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 610 P.2d 1107 (1980), tacitly approved of a negligence per se action against a gun dealer involving violations of statutes virtually identical to those violated by the appellees. Nevertheless, Arredondo was an interlocutory appeal in which the issue was whether the Kansas comparative negligence statute applied in an action for personal injuries where liability was premised upon the violation of a statute prohibiting the sale of explosives to minors. 227 Kan. at 842. Arredondo did not involve the issue of whether the plaintiff could bring a negligence per se claim.
As pointed out in Pemberton, our Supreme Court in Pullen v. West, 278 Kan. 183, 199-201, 92 P.3d 584 (2004), held that violation of rules and regulations for the storage, use, and sales of fireworks and firecrackers did not create a private cause of action and could not be a basis for a negligence per se claim.
Based on this court’s analysis in Pemberton, we determine that no private right of action was created by 18 U.S.C. § 922. As a result, Shirley cannot pursue a negligence per se claim based on 18 U.S.C. § 922 against the appellees. See also Bland v. Scott, 279 Kan. 962, 972, 112 P.3d 941 (2005) (holding that plaintiff could not pursue negligence per se claim against defendant based on criminal statutes prohibiting furnishing liquor or cereal malt beverages to minor where legislature did not intend civil cause of action).
18 U.S.C. § 924(a)(1)(A) and 18 U.S.C. § 2(a)
Shirley alleges that the appellees also violated 18 U.S.C. § 924(a)(1)(A) and 18 U.S.C. § 2(a) by selling a firearm to a straw-person purchaser, whom they knew was not the actual buyer.
18 U.S.C. § 924 provides in relevant part:
“(a)(1) Except as otherwise provided in this subsection, subsection (b), (c), (f), or (p) of this section, or in section 929, whoever—
“(A) knowingly makes any false statement or representation with respect to the information required by this chapter to be kept in the records of a person licensed under this chapter or in applying for any license or exemption or relief from disability under the provisions of this chapter
shall be fined under this title, imprisoned not more than five years, or both.”
18 U.S.C. § 2(a), which is the aiding and abetting federal provision, states as follows: “Whoever commits an offense against the United States or aid, abets, counsels, commands, induces or procures its commission, is punishable as a principal.”
As in the previous analysis of 18 U.S.C. § 922(d)(1), there is no legislative language in 18 U.S.C. § 924(a)(1)(A) and 18 U.S.C. § 2(a) indicating that the legislature intended to create a private right of action. Moreover, as discussed in the previous analysis of 18 U.S.C. § 922(d)(1), the legislative history of the two federal gun control enactments focuses on protecting the public in general from crime and violence created by the ready availability of firearms, and there is nothing in 18 U.S.C. § 924(a)(1)(A) or 18 U.S.C. § 2(a) indicating that they were designed to protect a specific group of people. As a result, no private right of action exists under 18 U.S.C. § 924(a)(1)(A) or 18 U.S.C. § 2(a).
KS.A. 21-4203
Shirley also maintains that she has a viable negligence per se claim under K.S.A. 21-4203.
K.S.A. 21-4203 provides in relevant part:
“(a) Criminal disposal of firearms is knowingly:
“(3) selling, giving or otherwise transferring any firearm to any person who, within the preceding five years, has been convicted of a felony, other than tiróse specified in subsection (b), under the laws of this or any other jurisdiction or has been released from imprisonment for a felony and was found not to have been in possession of a firearm at the time of the commission of the offense;
“(4) selling, giving or otherwise transferring any firearm to any person who, within the preceding 10 years, has been convicted of a felony to which this subsection applies, but was not found to have been in the possession of a firearm at the time of the commission of the offense, or has been released from imprisonment for such a crime, and has not had the conviction of such crime expunged or been pardoned for such crime;
“(5) selling, giving or otherwise transferring any firearm to any person who has been convicted of a felony under the laws of this or any other jurisdiction and was found to have been in possession of a firearm at the time of the commission of the offense;
“(b) Subsection (a)(4) shall apply to a felony under K.S.A. 21-3401, 21-3402, 21-3403, 21-3404, 21-3410, 21-3411, 21-3414, 21-3415, 21-3419, 21-3420, 21-3421, 21-3427, 21-3442, 21-3502, 21-3506, 21-3518, 21-3716, 65-4127a or 65-4127b, or 65-4160 through 65-4164, and amendments thereto, or a crime under a law of another jurisdiction which is substantially the same as such felony.”
Nevertheless, there is nothing in the record to establish a violation of K.S.A. 21-4203. The record does not contain the particular facts of Russell’s prior felony conviction and does not show the statute under which Russell was convicted. Further, similar to the federal statutes, there is no language in K.S.A. 21-4203 indicating that the legislature intended to create a private right of action. In addition, Shirley cites to nothing in the legislative history indicating that the statute was designed to protect a specific group of people.
As a result, the trial court properly granted summary judgment in favor of the Georges on Shirley’s negligence per se claim.
Simple Negligence
Next, Shirley argues that the trial court erred in granting summary judgment to the appellees on her simple negligence claim. Shirley maintains that under our Supreme Court precedent in Long v. Turk, 265 Kan. 855, 962 P.2d 1093 (1998), and Wood v. Groh, 269 Kan. 420, 7 P.3d 1163 (2000), the appellees may be hable in negligence for the shooting that foreseeably resulted from their supplying a gun to a man whom they knew was a felon.
Quoting Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983), our Supreme Court in Gragg v. Wichita State Univ., 261 Kan. 1037, 1044, 934 P.2d 121 (1997), set out what a plaintiff must establish in order to prevail in a negligence action:
“ ‘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. [Citation omitted.] An accident which is not reasonable to be foreseen by the exercise of reasonable care and prudence is not sufficient grounds for a negligence action. ... Robertson v. City of Topeka, 231 Kan. 358[, 644 P.2d 458 (1982)], recognized a special relationship between certain persons could give rise to a duty. Whether a duty exists is a question of law. [Citations omitted.] Whether the duty has been breached is a question of fact.’ ” (Emphasis added.)
Highest Degree of Care
Relying on Long and Wood, Shirley contends that the appellees owed and breached their duty to use the “highest degree of care” to safeguard their gun. In Long, the defendant’s 17-year-old son took the defendant’s .357 Magnum handgun, shot through the window of a vehicle, and killed the vehicle’s passenger. The defendant owned many handguns, which were kept in a locked safe. The defendant’s son helped the defendant build the locked safe, and he knew where the keys were kept to the safe. The evidence was conflicting as to whether the defendant’s son took the gun without the defendant’s permission or whether his father gave him the gun for protection. There was some evidence suggesting that the defendant had given his son permission to carry the gun for protection on previous occasions. The decedent’s mother brought a negli gence action against the defendant for failing to keep the gun out of his son’s possession.
In reversing the trial court’s decision to grant summary judgment to the defendant, our Supreme Court held that a factual question existed as to whether the defendant had exercised the “highest degree of care” to keep a dangerous instrumentality out of a minor’s possession. 265 Kan. at 864. In so holding, our Supreme Court stated that a .357 Magnum handgun is a dangerous instrumentality and that the highest degree of care is required in safeguarding such a handgun. Moreover, “[t]he degree of care has to be commensurate with the dangerous character of the instrumentality, and a duty to exercise the highest degree of care never ceases.” 265 Kan. 855, Syl. ¶ 1.
Explaining that Long concerned an adult’s duty to keep certain handguns out of the possession of minors, Professors Westerbeke & McAllister stated in Survey of Kansas Tort Law: Part I, 49 U. Kan. L. Rev. 1037, 1064, as follows:
“The duty to keep certain handguns out of the possession of minors is not limited to the parent-child relationship, but is general. The defendant had a duty to keep the gun out of his son’s possession even if he believed his son was able to use the gun responsibly, and he had a duty to secure the gun so that it would not fall into the possession of any minor child, not just his son. In other words, the breach of duty was the defendant’s failure to secure the gun, not Ins failure to control his child. If the objective of the law is to keep such guns out of the possession of minor children, then the obligation should logically extend to all minor children, not just to those other than the owner’s own minor children.”
The next dangerous instrumentality case by our Supreme Court applying the “highest degree of care” standard was Wood. There, the defendant’s minor son used a screwdriver to pry open his father’s locked gun cabinet and to remove a .22 caliber handgun. The ammunition was stored in the cabinet along with the gun. The son took the gun with him to parties being held that night, drank alcoholic beverages at the parties, and practiced target shooting at one of the parties. At one of the parties, the gun accidentally discharged and wounded a friend.
Our Supreme Court held that the trial court erred in instructing the jury on reasonable care instead of the “highest degree of care” standard to govern the father s storage of the gun. In so holding, our Supreme Court stated:
“Those who deal with firearms are always required to use reasonable care. This standard never varies, but the care which it is reasonable to require of the actor varies with the danger involved in his or her act and is proportionate to it. The greater the danger, die greater the care which must be exercised. Firearms are inherendy dangerous instrumentalities and commensurate with the dangerous character of such instrumentalities, the reasonable care required is the highest degree of care.” Wood, 269 Kan. 420, Syl. ¶ 3.
Our Supreme Court concluded that the parents owed the highest duty to protect the public from the misuse of the gun, a dangerous instrumentality, stored in their home. In reversing and remanding the case, our Supreme Court noted that there was evidence from which the jury could find a failure to use the highest degree of care because the father stored the gun and the ammunition in the same cabinet, the cabinet could be easily opened with a screwdriver, and the father knew his son had taken the gun target shooting on other occasions. 269 Kan. at 422, 426-27.
In reviewing our Supreme Court’s decision in Wood, Professors Westerbeke and McAllister in Survey of Kansas Tort Law: Tart I, 49 U. Kan. L. Rev., at 1064, noted that our Supreme Court did not explain how the “highest degree of care” standard differed from reasonable care:
“The supreme court emphasized that an important difference exists between the reasonable care standard used by the trial court and the ‘highest degree of care’ standard defining the duty to control dangerous weapons. Yet the court never explained how the ‘highest degree of care’ differs from reasonable care. An examination of the ‘highest degree of care’ standard in the high power line cases in Kansas seems to suggest that “highest degree of care’ is simply another way to describe a reasonable care standard in which the heightened dangerousness of the instrumentality requires commensurately heightened precautions in order to satisfy reasonable care under all the circumstances.” (Emphasis added.)
Although Shirley urges this court to extend the “highest degree of care” standard to the present case, both Long and Wood are distinguishable because they involved an adult’s duty to safeguard handguns from minors. Based on the extreme dangerousness of the handgun stored in close proximity to a minor, the adult handgun owners (the parents) were required to exercise “the highest degree of care” to keep the gun out of the minor s possession. In the present case, however, we are dealing with a gun seller who in the course of business regularly sells different types of guns to various individuals. While the heightened dangerousness of the gun would require the gun seller to exercise commensurately heightened precautions in order to satisfy reasonable care under all the circumstances, it would not require the gun seller to exercise the “highest degree of care” to protect the general public from the misuse of the gun. See, e.g., Wood, 269 Kan. at 427 (concluding that parents owed highest duty to protect public from misuse of gun stored in their home); Long, 265 Kan. at 864 (father had duty to keep gun out of his son’s possession even if he believed his son was able to use gun responsibly).
If this court were to adopt the “highest degree of care” standard, it would make every licensed gun dealer negligent per se every time a statutorily ineligible gun purchaser, no matter how deceitful, bought a firearm. Moreover, this would impose a duty on a firearms dealer to investigate almost every firearms transaction because just requiring the purchaser to fill out, initial, and certify the federal form would be insufficient to meet the “highest degree of care” standard. For example, the “highest degree of care” standard might require a firearms dealer to investigate whether the firearms purchaser had other people living in the home, whether those people had any violent tendencies or prior felony convictions, whether there were any children in the home, whether the purchaser had a secure gun cabinet in which to lock away his gun, and whether the purchaser had received extensive gun safety education. Under the “highest degree of care” standard, it brings about a question whether a gun dealer may ever proceed at all with a gun transaction in the face of certain dangers. Edgar v. Brandvold, 9 Wash. App. 899, 901, 515 P.2d 991 (1973), rev. denied 83 Wash. 2d 1007 (1974).
Moreover, any limits placed on the duty to investigate would be difficult to define and federal legislation gives no indication that such a duty was intended. For example, what if the deceitful gun buyer is a straw-person purchaser or has in the past been adjudicated mentally defective or been committed? How could a firearms dealer thoroughly investigate whether a purchaser is making a straw-person purchase for the first time or whether a purchaser has a mental history? No resources exist for a firearms dealer to use to catch a deceitful gun buyer in these two examples. The “highest degree of care” standard would establish negligence in situations where a reasonable firearms dealer would have no idea that the gun buyer is a straw-person purchaser or has previously been institutionalized or adjudicated mentally incompetent.
We determine that neither Wood nor Long requires the imposition of the higher standard of care that Shirley seeks to impose. As a result, Shirley’s highest degree of care argument fails.
Special Relationship
Moreover, in granting summary judgment on Shirley’s simple negligence claim, the trial court found that there was no special relationship or special duty in this case:
“ ‘Our prevailing rule in Kansas is that in the absence of a “special relationship,” there is no duty of an actor ... to control the conduct of a third person.’ All such ‘special relationships’ involve situations in which the party owing the duty had the ability or right to control the person causing the harm. [D.W. v. Bliss, 279 Kan. 726, 735, 112 P.3d 232 (2005).] In this case, the only relationship between defendants and the person causing the harm, Graham, is that Graham was a customer — the purchaser of a firearm from defendants. Defendants had no ability or right to control Graham; defendants only had an obligation under federal and state laws not to sell Graham a firearm. However, Pemberton teaches that violation of the federal and state laws prohibiting the sale of a firearm to a convicted felon will not support a private right of action, i.e., such a violation does not constitute negligence. This court concludes that since violation of such statutes will not support a private cause of action, neither do they create a duty owed by defendants.”
In Kansas, the general rule is that in the absence of a special relationship, there is no duty on a person to control the conduct of a third person to prevent harm to others. Gragg, 261 Kan. at 1045. “A special relationship may exist between parent and child, master and servant, [and] the possessor of land and licensees.” C.J.W. v. State, 253 Kan. 1, 8, 853 P.2d 4 (1993).
Moreover, the existence of a special duty depends on the foreseeability of the harm or injury. Gragg, 261 Kan. at 1056-57; see also Nero v. Kansas State University, 253 Kan. 567, 571-72, 861 P.2d 768 (1993) (quoting Durflinger, 234 Kan. at 499). As a result, whether a special duty exists in this case depends, in large part, on the following: whether the appellees could have anticipated Russell’s propensity to use the shotgun in an improper or dangerous way.
The parties in this case are not a parent and child, a master and servant, or a possessor of land and licensee. As discussed previously, however, Restatement (Second) of Torts § 390 imposes a special duty on the appellees to not give control of firearms or ammunition to a person whom the firearms dealer knows is incompetent or incapable of handling or using those items carefully. In the absence of the special duty created by Section 390, Shirley has not shown to this court that there is any special relationship or special duty here that would support a viable simple negligence claim under the particular facts of this case. As a result, we find that the trial court properly granted summary judgment to the appellees on Shirley’s simple negligence claim.
Civil Conspiracy
Lastly, the trial court also granted summary judgment to the appellees on Shirley’s civil conspiracy claim. Shirley argues that the evidence was sufficient to support a civil conspiracy claim that the Georges, along with Glass and Russell, agreed to provide Russell with a gun, through an illegal straw-person purchase, that was ultimately used to kill Zeus.
Our Supreme Court has held that civil conspiracy is an actionable tort in Kansas. Stoldt v. City of Toronto, 234 Kan. 957, 967, 678 P.2d 153 (1984). The elements of a civil conspiracy are:
“ ‘(1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds in the object or course of action; (4) one or more unlawful overt acts; and (5) damages as the proximate result thereof.’ [Citation omitted.] Conspiracy is not actionable without commission of some wrong giving rise to a cause of action independent of the conspiracy.” 234 Kan. at 967.
Shirley asserts that the independent wrong giving rise to the cause of action is the appellees’ “negligent supply of the gun to [Russell], actionable under negligence, negligent entrustment, and negligence per se.” Nevertheless, as the appellees point out, Shir ley s allegation of conspiracy makes no sense because, as this court observed in Gillespie v. Seymour, 19 Kan. App. 2d 754, 767, 876 P.2d 193, rev. denied 255 Kan. 1001 (1994), “it would be illogical to find a ‘meeting of the minds’ (conspiracy) to act negligently.”
16 Am. Jur. 2d, Conspiracy § 51 recognizes that because negligence is not an intentional wrong, parties cannot engage in a civil conspiracy to be negligent:
“Since one cannot agree, expressly or tacitly, to commit a wrong about which he or she has no knowledge, in order for civil conspiracy to arise, the parties must be aware of the harm or wrongful conduct at the beginning of the combination or agreement. Thus, civil conspiracy is an intentional tort requiring a specific intent to accomplish the contemplated wrong and because negligence is, by definition, not an intentional wrong, the parties cannot engage in civil conspiracy to be negligent.”
Nevertheless, in her reply brief, Shirley appears to change her theory that negligence is the independent wrong underlying her conspiracy claim and argues that the appellees may be liable for their intentional wrongful conduct of illegally supplying a dangerous felon with a gun. The problem with this argument, however, is that the record does not contain evidence that there was ever an agreement or a meeting of the minds between Glass and the appellees to violate the federal firearms statute and illegally supply Russell with a gun. As a result, the trial court properly granted summary judgment to the appellees on Shirley’s civil conspiracy claim.
Affirmed in part, reversed in part, and remanded for further proceedings on Shirley’s negligent entrustment claim. | [
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McAnany, J.:
Wayne Michael Franklin robbed Rose Cooney of her purse in a parking lot while holding what Cooney perceived to be a black, possibly semi-automatic, handgun in his right hand and tucked against his body. A few hours later, Franklin attempted a similar robbery of Stephanie Hanna in a different parking lot by pointing a black gun at her and demanding her purse. Hanna refused to submit.
The police arrested Franklin later that day and found a BB pistol in Franklin’s pocket along with a debit card issued to Cooney. Franklin admitted using the BB pistol in the commission of these crimes.
The State charged Franklin with aggravated robbery in violation of K.S.A. 21-3427 for the Cooney incident and attempted aggravated robbery in violation of K.S.A. 21-3301 and K.S.A. 21-3427 for the Hanna incident. Both crimes are person felonies. Franklin pled guilty to both.
At sentencing, the State asked the court to find that the BB pistol Franklin used in the commission of these crimes was a deadly weapon for purposes of the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq. KORA provides that if the court makes a finding on the record that a deadly weapon was used in the commission of a person felony, the defendant is required to register as a violent offender. K.S.A. 2009 Supp. 22-4902(a)(7).
Franklin objected, arguing that there was no evidence to support a finding that the BB pistol was a deadly weapon. He further argued that an objective test should be applied in determining whether the BB pistol qualified as a deadly weapon for purposes of K.S.A. 2009 Supp. 22-4902(a)(7).
The district court determined that the BB pistol Franklin used was a deadly weapon pursuant to K.S.A. 2009 Supp. 22-4902(a)(7) and ordered Franklin to register as a violent offender. The court then sentenced Franklin to a controlling term of 61 months in prison.
Franklin appeals, claiming that the district court erred (1) in requiring him to register under the KORA and (2) in finding that the BB pistol was a deadly weapon without the requisite proof mandated by Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
KS.A. 2009 Supp. 22-4902(a)(7)
The first issue requires us to interpret and apply K.S.A. 2009 Supp. 22-4902(a)(7), which are matters of law subject to de novo review. State v. Jefferson, 287 Kan. 28, 33, 194 P.3d 557 (2008). Our task is to determine the legislature’s intent through its statutory language, giving ordinary words their ordinary meaning. State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009). When a statute is plain and unambiguous, an appellate court need not resort to statutory construction. Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271-72, 202 P.3d 7 (2009). However, when statutory construction is required, the most fundamental rule is that the legislature’s intent governs if it is ascertainable. Hall v. Dillon Companies, Inc., 286 Kan. 777, 785, 189 P.3d 508 (2008).
As stated in State v. Colbert, 244 Kan. 422, Syl. ¶ 2, 769 P.2d 1168 (1989): “The term ‘dangerous weapon’ used in the aggravated robbery statute is synonymous with the term ‘deadly weapon.’ ” Accordingly, we will treat these terms as interchangeable throughout this opinion.
The applicable provision of KORA, K.S.A. 2009 Supp. 22-4902(a)(7), defines an offender as “any person who, on or after July 1, 2006, is convicted of any person felony and the court makes a finding on the record that a deadly weapon was used in the commission of such person felony.” Our legislature has not defined the term “deadly weapon” as used in K.S.A. 2009 Supp. 22-4902(a)(7). Nor does the legislative history disclose what the legislature meant by the term “deadly weapon.”
Franklin argues that we should use the definition of “deadly weapon” applied to the aggravated battery statute; that is, “an instrument which, from the manner in which it is used, is calculated or likely to produce death or serious bodily injury.” State v. Hanks, 236 Kan. 524, 537, 694 P.2d 407 (1985); see Black’s Law Dictionary 1731 (9th ed. 2009). Determining whether an object is a deadly weapon for purposes of the aggravated battery statute requires an objective test. State v. Whittington, 260 Kan. 873, 878, 926 P.2d 237 (1996). Franklin argues that his BB pistol does not satisfy this standard.
On the other hand, the State argues that the subjective standard utilized for defining a “dangerous weapon” under the aggravated robbery statute should be used in this case. See State v. Childers, 16 Kan. App. 2d 605, Syl. ¶ 1, 830 P.2d 50 (1991), rev. denied 250 Kan. 806 (1992).
“The ‘subjective test’ to determine a ‘dangerous weapon’ within the meaning of the aggravated robbery statute depends upon the intent of the robber and the reasonable belief of the victim. If the robber intends for the victim to believe the item used in the robbery is a dangerous weapon and the victim reasonably believes such object to be a dangerous weapon, then the item is considered a dangerous weapon.” 16 Kan. App. 2d 605, Syl. ¶ 2.
Franklin pled guilty to aggravated robbery and attempted aggravated robbery. In doing so, he admitted each and every element necessary to convict him of these crimes.
A conviction of aggravated robbery requires proof that the defendant took property from the person or presence of another by force or by threat of bodily harm to a person and that the defendant either was armed with a dangerous weapon at the time or inflicted bodily harm upon a person in the course of the robbery. See K.S.A. 21-3426; K.S.A. 21-3427. A conviction of attempted aggravated robbery requires proof that the defendant committed an overt act toward the perpetration of the crime of aggravated robbery but faded in the perpetration thereof or was prevented or intercepted in executing the aggravated robbery. See K.S.A. 21-3301; K.S.A. 21-3427.
Neither victim sustained bodily harm, which is one of the alternative bases for these crimes. Thus, by pleading guilty Franklin admitted that he used a dangerous weapon in each incident; that is, notwithstanding the fact that he used a BB pistol, he intended that his victims believe that he held a dangerous weapon and they reasonably believed the gun he displayed was a dangerous weapon.
In determining whether Franklin used a deadly weapon in the commission of an aggravated robbery and an attempted aggravated robbery so as to require him to register as a violent offender pur suant to K.S.A. 2009 Supp. 22-4902(a)(7), Franklin would have us apply the standard for a weapon used in our aggravated battery statute when Franklin admitted guilt for a completely separate crime, aggravated robbery, which has its own standard for the weapon employed. This seems to us to be a tortured and illogical interpretation of the statutory scheme.
Further, Franklin would have us apply one standard for a deadly or dangerous weapon at the plea hearing and an entirely different standard for a deadly or dangerous weapon at the sentencing hearing. This seems to us to be an equally tortured and illogical protocol.
We construe statutes so as to give them a reasonable construction which avoids unreasonable or absurd results. See Todd v. Kelly, 251 Kan. 512, 520, 837 P.2d 381 (1992). We view Franklin’s interpretation of these statutes to be unreasonable and inconsistent with the legislature’s likely intent. K.S.A. 2009 Supp. 22-4902(a)(7) was enacted in order to protect public safety and provide the public with notice of violent offenders present in the community. House J. 2006, p. 1660; Minutes, House Fed. and State Affairs Comm., February 16, 2006. Allowing a defendant who is convicted of a dangerous person felony involving the use of dangerous weapon to avoid the registration requirements would not fulfill this express statutory purpose. We conclude that the district court did not err in requiring Franklin to register under KORA.
Apprendi
Franklin contends that requiring him to register as a violent offender pursuant to K.S.A. 2009 Supp. 22-4902(a)(7) violates his constitutional rights in the manner prohibited by Apprendi. Although Franklin did not object to registration on these grounds at the sentencing hearing, we will consider Franklin’s claim on appeal because it presents an issue pertaining to his fundamental rights. See State v. Conley, 270 Kan. 18, 30-31, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001).
Again, our review of this issue is de novo. McComb v. State, 32 Kan. App. 2d 1037, 1041, 94 P.3d 715, rev. denied 278 Kan. 846 (2004). Franklin concedes this issue was decided against him in State v. Chambers, 36 Kan. App. 2d 228, 238-39, 138 P.3d 405, rev. denied 282 Kan. 792 (2006). However, Franklin argues that Chambers was wrongfully decided.
In Chambers, a panel of our court held:
“We conclude that the punitive aspects inherent in the KORA do not implicate Apprendis essential focus — prohibiting a sentencing judge from imposing ‘a more severe sentence than the maximum sentence authorized by the facts found by the jury.’ Gould, 271 Kan. 394, Syl. ¶ ¶ 2, 4. This determination results because our Supreme Court consistently has applied Apprendis constitutional guarantees in cases involving increased sentences (Gould and Anthony[, 273 Kan. at 729]), while declining to apply those same guarantees where the court found that the subject matter did not relate to a sentencing judge’s imposition of a more severe sentence than the maximum sentence entitled by the jury’s verdict (Carr[, 274 Kan. at 452], Garcia[, 274 Kan. at 711-12], and Beasley[, 274 Kan. at 722-23]).
“We uphold the constitutionality of the KORA. Apprendi does not apply to a sentencing judge’s finding beyond a reasonable doubt that an offense was sexually motivated which results in imposition of the provisions of the KORA, K.S.A. 2005 Supp. 22-4901 et seq.
“We hold the sentencing judge’s finding of sexual motivation in the present case did not increase the terms of Chambers’ underlying prison sentences beyond the maximum sentence provided for burglary. The sentencing judge’s determination of sexual motivation did not, therefore, implicate Apprendis guarantee of rights under the Sixth and Fourteenth Amendments to the Constitution of the United States.” Chambers, 36 Kan. App. 2d at 239.
The facts now before us are more compelling than those in Chambers. In Chambers, the district court found that the defendant’s crimes were sexually motivated after the defendant pled guilty to multiple burglaries. The factual basis for the defendant’s plea was that he broke into houses and took ladies’ undergarments. The court found the crimes to have been sexually motivated based, in part, upon the nature of the items stolen.
Being sexually motivated to steal women’s undergarments is not a statutory element of the crime of burglary. However, the use of a dangerous weapon is a statutory element of the crimes to which Franklin pled guilty. In entering his guilty plea, Franklin admitted using a dangerous weapon in these aggravated robbery incidents.
At Franklin’s plea hearing the court made it abundantly clear to Franklin that by entering his guilty plea he was giving up his right to a trial in which the State would be obligated to prove his guilt beyond a reasonable doubt. In entering his guilty plea Franklin voluntarily abandoned the very right he now claims: the right to have the State prove beyond a reasonable doubt that he used a dangerous weapon to commit these crimes.
We conclude that requiring Franklin to register under KORA did not violate his constitutional rights in a manner prohibited by Apprendi.
Affirmed. | [
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Greene, J.:
Mother of K.P., a 5-year-old minor child at the time of the proceedings below, appeals the district court’s finding of her unfitness as a parent and the order to appoint a permanent custodian for the child, challenging the sufficiency of the evidence to support the finding of unfitness. The State cross-appeals the order to appoint a permanent custodian, arguing that mother s parental rights should have been terminated. We affirm the district court.
Factual and Procedural Background
Mother cared for K.P. as a single parent until October 2008, when K.P. was referred to foster care because mother was arrested for possession of marijuana and three misdemeanor counts including child endangerment. Upon mother s release from jail, K.P. was returned to her and the Kansas Department of Social and Rehabilitation Services (SRS) prepared a permanency plan for mother.
In mid-December 2008, however, a petition to have K.P. declared a child in need of care was filed by the State after mother was in a domestic dispute with her boyfriend, leading to domestic battery charges against mother. K.P. then went to live with her uncle and aunt, where she has resided at all times thereafter.
The State filed its petition to terminate mother s parental rights in the summer of 2009, after mother tested positive for alcohol and was taken into custody for a probation violation. She had previously been adjudicated as an unfit parent and had her parental rights terminated to an older son. At the hearing on this motion, mother testified to the mitigating circumstances surrounding the prior adjudication and then demonstrated that she had complied with some of her case plan objectives for reintegration with K.P., felt that she had gotten control of her life, and had been sober for 6 months. A family support worker testified that mother was doing a much better job of handling K.P. since her inpatient drug/alcohol treatment and that mother loves K.P. very much.
The district court made extensive findings of fact and then concluded that mother was unfit based on K.S.A. 2009 Supp. 38-2269(b)(1), (b)(3), (b)(5), (b)(7), (b)(8), (b)(9), and (c)(3). Considering the best interests of K.P., however, the court declined to terminate mother’s parental rights and instead concluded that appointment of a permanent custodian for K.P. was in her best interests.
Mother appeals the finding of unfitness, and the State cross-appeals the court’s refusal to terminate mother’s parental rights.
Standards of Review
Our standard of review of a finding of parental unfitness is to determine whether, after review of all the evidence, viewed in the light most favorable to the State, the court is convinced that a rational factfinder could have found the determination to be highly probable, that is, by clear and convincing evidence. See In re B.D.Y., 286 Kan. 686, Syl. ¶ 4, 187 P.3d 594 (2008); In re Adoption of Baby Boy M., 40 Kan. App. 2d 551, 559, 193 P.3d 520 (2008).
The district court is in the best position to malee findings on the best interests of the child, and its judgment will not be disturbed in the absence of an abuse of judicial discretion. See In re Marriage of Rayman, 273 Kan. 996, 999, 47 P.3d 413 (2002).
When an appeal frames an issue of construction and application of a statute, we have unlimited review. Double M Constr. v. Kansas Corporation Comm’n, 288 Kan. 268, 271, 202 P.3d 7 (2009).
Was the Evidence Sufficient to Support the District Court’s Finding that Mother Was an Unfit Parent?
Mother essentially argues on appeal that the district court relied on “outdated” evidence because, since her completion of inpatient drug and alcohol treatment, she had remained sober and had made significant progress on her case plan objectives.
The district court made extensive findings of fact to support its conclusion of unfitness. These include in material part:
“1. That [mother] is unfit to parent [K.P.] by reason of the conduct or conditions recited [in the court’s findings] and further explained below that renders her unable to care properly for [K.P.], and the conduct and conditions are unlikely to change in the foreseeable future.
“2. That [mother] suffers from emotional or mental illness of such duration or nature as to render her unable to meet the ongoing physical, mental and emotional needs of [K.P.] [noting long standing diagnosis of depression with guarded or poor prognosis]. K.S.A. 38-2269(b)(l);
“3. That [mother] has used alcohol, narcotics or other dangerous drugs since adolescence that have negatively affected her ability to parent. [Noting specific examples.] K.S.A. 38-2269(b)(3);
“4. That [mother] has been convicted of felony possession of marijuana, resulting in jail time due to probation violations. K.S.A. 38-2269(b)(5);
“5. That opportunities were given in the original permanency plan to reintegrate [K.P.] with her modrer at home, but [modrer’s] efforts at out-patient treatment were half-hearted and sporadic, despite the significance of possibly losing her child if she faded to give her best effort. [Noting specific facts convincing court of continued drug seeking behavior unlikely to resolve ‘any time soon.’]. K.S.A. 38-2269(b)(3), (7), and (8).
“4. [sic] [Mother] is so mired in her own problems that her personal needs surpass those of her child and interfere with her responsibilities as a parent. K.S.A. 38-2269(b)(8).
“6. . . .Without invoking the presumption [of unfitness due to a prior severance of her parental rights], the court finds that the severance in 1992 is relevant to the issue of whether her conduct is likely to change in the foreseeable future. [Noting that recent conduct ‘fits the pattern’ of past conduct reflecting unfitness.]
“7. . . . [S]ocial workers who assisted in family preservation services and the reintegration plan believe that [mother] has not made reasonable progress toward reintegration because of lack of effort, sporadic cooperation, failure to meet goals in a timely fashion, and finally, the probation violation that resulted in court ordered inpatient drug treatment. [Noting change in permanency plan from reintegration to adoption.] K.S.A. 38-2269(b)(8), (9) and (c)(3).”
Our review of the evidence reveals that within 12 to 15 months of the hearing, there were a host of incidents that proved influential to the court’s decision. Among these were (1) an allegation of emotional abuse by mother of her 13-year-old son due to mother’s medications and drinking; (2) K.P. was taken into protective custody due to mother’s arrest and incarceration; (3) mother was involved in a serious domestic dispute that led to domestic assault charges; (4) mother stipulated to facts alleging that K.P. was a child in need of care; (5) mother failed outpatient drug and alcohol treatment; (6) mother violated her probation by testing positive for alcohol; (7) mother’s change of doctors for her back pain and to seek prescription pain medications may have pointed to “drug seeking behavior”; (8) mother had long suffered from mental illness, specifically major depressive disorder; (9) mother’s work history was infrequent, and she had no driver’s license; (10) mother was in jail or inpatient treatment for almost 5 months of 2009; (11) mother maintained a troubled relationship with a boyfriend who is also drug and alcohol dependent; (12) mother had supported K.P. only with financial assistance from others; and (13) social workers assisting the family testified that mother had not made reasonable progress toward reintegration because of lack of effort, sporadic cooperation, failure to meet goals in a timely fashion, and a probation violation resulting in court-ordered inpatient drug treatment.
Despite some progress by mother in late 2009, we conclude that the evidence adequately supports the district court’s finding of parental unfitness. The court found that as many as eight statutory factors of parental unfitness had been met, and we believe the evidence clearly supports these conclusions. Viewing the evidence in the light most favorable to the State, we are convinced that a rational factfinder could have found it highly probable by clear and convincing evidence that mother was legally unfit to be a parent. Mother’s challenge to the sufficiency of the evidence is rejected.
Did the District Court Err in Refusing to Terminate Mother’s Parental Rights, Instead Finding It in K.P.’s Best Interests to Appoint a Permanent Custodian?
In its cross-appeal, the State argues that the district court erred in refusing to terminate mother’s parental rights because a statutory presumption of unfitness was applicable and K.S.A. 2009 Supp. 38-2271(b) states that when the parent fails to demonstrate that he or she is fit and able to care for the child or that the parent will be fit and able to care for the child in the foreseeable future, “the court shall terminate parental rights.” (Emphasis added.)
We disagree with the construction and application of this statute urged by the State. First, we note that the district court chose not to invoke the presumption that allegedly arose due to mother’s having her parental rights terminated in a prior case. Precisely what this means is unclear, but we must presume that the court either found that mother had successfully rebutted the presumption by her testimony of the mitigating circumstances surrounding the prior severance of her parental rights, or that the presumption should otherwise not be employed against mother for purposes of determining her unfitness.
We need not decide whether the presumption was applicable, however, because the court decided in any event that mother was unfit. The critical question in this appeal is whether a finding of unfitness dictates that the parent’s rights must be terminated or that the option of a permanent custodian remains as an alternative. This question is compounded by the language of K.S.A. 2009 Supp. 38-2271(b), which indicates that upon a failure to rebut any of the statutory presumptions, “the court shall terminate parental rights in proceedings pursuant to K.S.A. 2009 Supp. 38-2266 et seq., and amendments thereto.” (Emphasis added.) Does this leave the court no alternative?
Our answer is no. A finding of parental unfitness requires the court to proceed “pursuant to K.S.A. 2009 Supp. 38-2266 et seq.” This means that when a presumption of unfitness is not successfully rebutted by the parent, the court must then proceed under the entire statutory scheme. Obviously, critical aspects of this statutory scheme are (1) the need to ascertain whether termination of parental rights is in the best interests of the child pursuant to K.S.A. 2009 Supp. 38-2269(g)(l); and (2) that the court may authorize appointment of a permanent custodian pursuant to K.S.A. 2009 Supp. 38-2269(g)(3) and 38-2272.
Notwithstanding the language of K.S.A. 2009 Supp. 38-2271(b), when the court has determined that a parent is unfit, termination is not mandatory. The court must proceed under the entire statutory scheme. This construction and application is consistent with the tenet that in determining legislative intent, we consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into a workable harmony if possible. State v. Breedlove, 285 Kan. 1006, 1015, 179 P.3d 1115 (2008). In order to reconcile the entire statutory scheme, the language of K.S.A. 2009 Supp. 38-2271(b) employing the term “shall” must be construed as directory rather than mandatory. See State v. Johnson, 286 Kan. 824, 850, 190 P.3d 207 (2008). If we were to read this statute as urged by the State, we would render meaningless the statutory mandate that the best interests of the child must be considered in determining whether parental rights should be terminated. We generally construe statutes to avoid such results. See Board of Sumner County Comm’rs v. Bremby, 286 Kan. 745, 754, 189 P.3d 494 (2008). This construction and application is also clearly consistent with K.S.A. 2009 Supp. 38-2272(a)(2), which pro vides that a permanent custodian may be appointed after a finding of unfitness.
Here, the district court clearly found that termination was not in the child’s best interests. Among its material findings on this issue, the court found:
“There is no question that [K.P.] has bonded with [mother] and that [mother] loves her child. But she has also bonded with [foster parents], calling [mother] ‘Mommy Karen’ and [foster mother] ‘Mommy Tammy.’
“Because [K.P.] has lived with her mother from the date of her birth, except during the times stated above, a bond has been established. The evidence is that [mother] loves [K.P.] and that [K.P.] loves her. It would not be in [K.P.’s] best interests to terminate [mother’s] parental rights under those circumstances. Therefore, the Court finds that appointment of a permanent custodian pursuant to K.S.A. 38-2269(g)(3) and 38-2272(a)(2) is in her best interests, particularly if the permanent custodians are [foster parents], with whom [K.P.] has bonded.”
We conclude that these findings as to the best interests of the child are adequately supported in the record. Our Supreme Court has previously determined that the district court is in the best position to make findings on the best interests of the child, and its judgment will not be disturbed in the absence of an abuse of judicial discretion. See In re Marriage of Rayman, 273 Kan. 996, 999, 47 P.3d 413 (2002). We are unable to conclude that no reasonable person would agree with the district court’s findings as to the best interests of K.P.
The district court’s conclusion that a permanent custodian rather than termination of mother’s parental rights was most suitable for K.P., was within the statutory options under these circumstances and must be affirmed. The parties are reminded that a subsequent motion to terminate mother’s parental rights is not barred by reason of these proceedings.
In summary, we conclude that the evidence was sufficient to support the district court’s findings that mother was unfit, but we also conclude that termination was not required. The court was within the statutory options to find that a permanent custodian for the child, rather than termination of parental rights, was in the child’s best interests. Finding that a permanent custodian was in K.P.’s best interests was no abuse of discretion.
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Malone, J.:
Joseph Moralez appeals his conviction of possession or control of a hallucinogenic drug. Moralez claims the district court erred by denying his motion to suppress the evidence. Specifically, Moralez claims that he was unlawfully seized by law enforcement officers and that the discovery of an outstanding warrant did not purge the taint of the unlawful police conduct. We conclude that even if Moralez was unlawfully detained by the law enforcement officers, the subsequent good-faith discovery of the arrest warrant purged the taint of the unlawful conduct and justified the search incident to the arrest.
On August 25, 2007, at 2:48 a.m., Topeka Police Officer Damon Whisman was on routine patrol when he noticed a parked vehicle with its lights on and he stopped to investigate. Whisman discov ered that the vehicle had an expired 30-day tag. Officer Mark Hilt arrived at the scene shortly thereafter in a separate vehicle. While Whisman and Hilt were looking at the parked vehicle, Moralez came out onto a second-floor balcony of a nearby apartment and asked the officers what they were doing. Whisman asked Moralez if the vehicle belonged to him. Moralez tried to discuss the vehicle with Whisman from the balcony, but eventually Moralez came down to the parking lot because he and Whisman were having a hard time hearing.
In the parking lot, Whisman asked Moralez who owned the vehicle, and Moralez said the owner was Melody Legate, who was upstairs in the apartment. Moralez testified that he offered to get Legate, but the officers asked him not to go anywhere. Whisman denied that the officers asked Moralez to stay. In any event, Moralez testified that he felt free to leave, regardless of the officers’ request that he stay. Whisman also testified that he considered Moralez free to leave at that point, although he never conveyed this belief to Moralez.
Within a few minutes, Legate came down to the parking lot and discussed the expired tag with Whisman. Moralez was not part of this conversation but stayed close by. Whisman then asked Legate and Moralez to provide identification. Whisman testified that he asked Moralez for his identification just to document him as a witness. Whisman testified that if Moralez had denied his request for identification or had refused to give his name, there was nothing that he would have done. Moralez provided Whisman with a Kansas identification card, and Legate provided her Kansas driver’s license.
For no stated reason, Whisman checked both identifications for warrants, and the dispatcher informed him that Moralez possibly had a county warrant. When Whisman found out there was a possible warrant on Moralez, he told him to “stay right there” until the warrant could be confirmed. Whisman testified it is his responsibility as a law enforcement officer to arrest any person who is the subject of a confirmed warrant. The dispatcher confirmed the warrant, and Whisman arrested Moralez at 3:04 a.m. Upon being arrested, Moralez indicated to Whisman that he had a bag of marijuana in his right front pocket. Whisman searched Moralez incident to the arrest and seized the marijuana from his pocket.
The State charged Moralez with one count of possession or control of a hallucinogenic drug. Moralez filed a motion to suppress the marijuana and the statements he made in relation to the marijuana, claiming that the search violated his rights under the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights. After hearing testimony from Whisman and Moralez, the district court denied the motion to suppress. The district court found that the encounter between Moralez and the law enforcement officers was voluntary. The district court also found that even if Moralez was unlawfully detained, the subsequent discovery of the arrest warrant purged the taint of the unlawful detention because the officers’ conduct was not flagrant.
The case proceeded to a bench trial, and Moralez renewed his objection to the admission of the evidence. The district court overruled the objection and found Moralez guilty as charged. The district court sentenced Moralez to 13 months’ imprisonment, with probation and mandatory drug treatment. Moralez timely appealed his conviction.
On appeal, Moralez claims the district court erred by denying his motion to suppress the evidence. When reviewing the denial of a motion to suppress evidence, an appellate court reviews the factual findings underlying the district court’s decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those factual findings by a de novo standard. The appellate court does not reweigh the evidence. State v. Ransom, 289 Kan. 373, 380, 212 P.3d 203 (2009).
Moralez makes two contentions on appeal. First, Moralez claims that his encounter with the law enforcement officers was an unlawful detention rather than a voluntary encounter. Second, Moralez claims that the discovery of the outstanding warrant during his unlawful detention did not purge the taint of the unlawful police conduct. We will examine these contentions in turn because if we conclude the encounter between Moralez and the officers was voluntary, we do not need to address whether the discovery of the warrant purged the taint of unlawful police conduct.
Moralez’ Encounter with the Law Enforcement Officers
Moralez first claims that his encounter with the law enforcement officers was an unlawful detention rather than a voluntary encounter. Although Moralez testified that he felt free to leave, he argues that under the totality of the circumstances the conduct of the officers would not have conveyed to a reasonable person that he was free to end the encounter and leave.
We will begin by setting forth the applicable constitutional provisions. The Fourth Amendment to the United States Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Section 15 of Kansas Constitution Bill of Rights contains similar language and “provides protections identical to that provided under the Fourth Amendment to the United States Constitution.” State v. Morris, 276 Kan. 11, 17, 72 P.3d 570 (2003).
There are four types of police-citizen encounters. The first type is a voluntary encounter, which is not considered a seizure under the Fourth Amendment. State v. Lee, 283 Kan. 771, 774, 156 P.3d 1284 (2007). The second type is an investigatory detention or Terry stop, in which an officer may detain any person in a public place if the officer reasonably suspects that the person is committing, has committed, or is about to commit a crime. See K.S.A. 22-2402(1); Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The third type of encounter is a public safety stop, in which an officer may approach a person to check on his or her welfare when the officer can articulate specific facts indicating a concern for the public’s safety. See State v. Vistuba, 251 Kan. 821, 824, 840 P.2d 511 (1992). The fourth type of encounter between law enforcement officers and citizens is an arrest. See K.S.A. 22-2401.
Courts have struggled with the delineation between a voluntary encounter and an investigatory detention. In a voluntary encounter, the citizen is always free to leave or terminate the encounter. State v. McKeown, 249 Kan. 506, 509, 819 P.2d 644 (1991). “[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen.” Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983). In a voluntary encounter, the officer can ask the individual’s name and request identification but cannot force the individual to answer. McKeown, 249 Kan. at 509. A voluntary encounter is not considered a seizure and does not require the officer to have reasonable suspicion of criminal activity. State v. Young, 37 Kan. App. 2d 700, 704, 157 P.3d 644 (2007). Conversely, a person is seized when there is a show of authority which, in view of all the circumstances surrounding the incident, would communicate to a reasonable person that he or she is not free to leave and the person submits to the show of authority. Morris, 276 Kan. at 18-19. A seizure requires the officer to have reasonable suspicion of criminal activity. Young, 37 Kan. App. 2d at 704.
Law enforcement interaction with a citizen is consensual, not a seizure, if under the totality of the circumstances the officer’s conduct conveys to a reasonable person that he or she is free to refuse the officer’s requests or otherwise end the encounter. State v. McGinnis, 290 Kan. 547, Syl. ¶ 3,223 P.3d 246 (2010). In applying the totality of the circumstances test in a Fourth Amendment context, no one factor is legally determinative, dispositive, or paramount. The outcome does not turn on the presence or absence of a single controlling or infallible touchstone and requires careful scrutiny of all the surrounding circumstances. 290 Kan. 547, Syl. ¶ 5. Because the determination of whether a reasonable person would feel free to terminate an encounter or refuse to answer questions is fact-driven, no list of factors can be exhaustive or exclusive. 290 Kan. 547, Syl. ¶ 6.
Under the test for determining whether a reasonable person would feel free to refuse an officer’s requests or otherwise end a police-citizen encounter, an objective standard is applied. The citizen’s subjective state of mind is not a relevant factor. State v. Thompson, 284 Kan. 763, 809-10, 166 P.3d 1015 (2007). Likewise, the subjective intent of a law enforcement officer is relevant to an assessment of the officer s conduct only to the extent that such intent has been conveyed to the citizen. 284 Kan. at 807.
Returning to our facts, Moralez initiated his contact with the law enforcement officers. Whisman asked Moralez for his identification in order to document him as a witness. Whisman testified that if Moralez had denied his request for identification or had refused to give his name, there was nothing he would have done. These factors support a conclusion that the encounter was voluntary. On the other hand, Moralez points to the evidence that there were two officers involved, that they did not inform him of his right to end the encounter, and that they held his identification card while checking for outstanding warrants. These factors support a conclusion that under an objective standard, a reasonable person would not have felt free to refuse the officers’ requests or otherwise end the encounter. If Moralez was being objectively detained by the officers under a show of authority, then the seizure was unlawful because the State concedes the officers had no reasonable suspicion that Moralez was involved in criminal activity.
In finding that the encounter was voluntary, the district court focused on Moralez’ testimony that he felt free to leave, regardless of the officers’ request that he stay. Indeed, Moralez testified repeatedly that he felt free to end the encounter and leave. However, the test for determining whether a police-citizen encounter is voluntary is an objective one, and Moralez’ subjective state of mind is not a relevant factor. See Thompson, 284 Kan. at 809-10. Likewise, Whisman’s subjective belief that Moralez was free to leave is not a relevant factor because Whisman never conveyed this belief to Moralez. See 284 Kan. at 807.
In analyzing the nature of the encounter between Moralez and the officers, the district court failed to make specific findings of fact. In this regard, there was one key factual dispute between Moralez’ testimony and Whisman’s testimony that was never resolved by the district court. Moralez testified that the officers asked him not to go anywhere as soon as he came down to the parking lot. Whisman denied that the officers asked Moralez to stay until after Whisman learned there was a possible warrant. The resolution of this factual dispute may be critical in reaching the ultimate legal conclusion whether the encounter between Moralez and the officers was voluntary.
If the nature of the encounter between Moralez and the law enforcement officers was the only issue on appeal, we would remand the case to district court to make further findings of fact. However, the district court denied the motion to suppress on the alternative ground that even if Moralez was unlawfully detained, the subsequent discovery of the arrest warrant purged the taint of the unlawful detention. We will address that issue next.
Discovery of the Arrest Warrant
Moralez claims that the discovery of the outstanding warrant did not purge the taint of the unlawful police conduct. For the purposes of our analysis of this issue, we will assume that at some point the encounter between Moralez and the law enforcement officers became an unlawful detention. The question then becomes whether the discovery of the arrest warrant purged the taint of the unlawful detention and justified the search incident to the arrest.
As we previously discussed, a few minutes into the encounter between Moralez and law enforcement officers, Whisman asked Moralez for his identification. Whisman testified that if Moralez had denied his request for identification or had refused to give his name, there was nothing that he would have done. Whisman checked the identification for warrants, and the dispatcher informed him that Moralez possibly had a county warrant. Whisman testified it is his responsibility as a law enforcement officer to arrest any person who is the subject of a confirmed warrant. When the warrant was confirmed, Whisman arrested Moralez and discovered the marijuana in a search incident to the arrest.
Both parties agree this issue is controlled by State v. Martin, 285 Kan. 994, 179 P.3d 457, cert. denied 555 U.S. 880 (2008), so we will review that decision in some detail. In Martin, law enforcement officers stopped a man for urinating in public but released him after questioning. The officers then noticed the defendant standing about 20 feet away. The officers did not observe the defendant engaged in any suspicious activity. Nevertheless, the offi cers “stopped" the defendant and asked for his identification. The defendant was cooperative, identified himself, and provided his date of birth. When the officers ran the information through dispatch, they discovered an outstanding warrant for the defendant’s arrest. Upon the defendant’s arrest, the officers searched his person and discovered marijuana. In the ensuing prosecution for possessing the marijuana, the defendant filed a motion to suppress the evidence. The district court overruled the motion on the ground that even if the defendant was subjected to an unlawful detention, the discovery of the outstanding warrant mandated his arrest and subsequent search.
On appeal, the Kansas Supreme Court discussed at length the effect of the outstanding warrant on the propriety of the defendant’s search. In conducting its analysis, the court presumed that the encounter between the law enforcement officers and the defendant was an unlawful detention. 285 Kan. at 998. The court began its analysis by discussing State v. Jones, 270 Kan. 526, 17 P.3d 359 (2001), in which the court had previously held that once officers acting in good faith discovered an outstanding warrant for the defendant’s arrest, they had a right to take the defendant into custody pursuant to the warrant and search the defendant incident to the arrest, even though the defendant might have been unlawfully detained prior to the discovery of the warrant. 270 Kan. 526, Syl. Without engaging in extensive analysis, the court in Jones reasoned that once a law enforcement officer discovers an outstanding warrant, the officer has the right and duty to arrest the person subject to the warrant whether the person had been lawfully or unlawfully detained prior to discovering the warrant. 270 Kan. at 527-29.
In Martin, the court expanded the analysis in Jones by noting that “[ujnder the attenuation doctrine, courts have found that the poisonous taint of an unlawful search or seizure dissipates when the connection between the unlawful police conduct and the challenged evidence becomes attenuated. [Citation omitted.]” 285 Kan. at 1003. In order to determine whether there is sufficient attenuation of the causal chain so as to dissipate the taint, a court should analyze three factors: “(1) the time elapsed between the illegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.” 285 Kan. at 1003 (citing Brown v. Illinois, 422 U.S. 590, 603-04, 95 S. Ct. 2254, 45 L. Ed. 2d 416 [1975]).
In applying the three attenuation factors, the court in Martin determined that the first factor weighed heavily against the State because the law enforcement officers’ actions were continuous and there was no temporal break in the causal chain between the illegality and the acquisition of the evidence. 285 Kan. at 1003. The court determined that the second factor weighed in favor of the State because the discovery of the outstanding arrest warrant constituted the presence of an intervening circumstance between the unlawful detention and the search of the defendant’s person. Indeed, the court determined that the defendant’s arrest on the warrant “was a lawful, perhaps mandatory, act.” 285 Kan. at 1003-04.
The court focused on the third factor, i.e., the purpose and flagrancy of the official misconduct. In analyzing this factor, the court stated:
“While the circumstances might suggest that the officers’ purpose in requesting identification to run a warrant check was a fishing expedition, we do not perceive the conduct to be flagrant. The officers were drawn to the particular location because they observed a man who admitted to urinating or attempting to urinate in public. There is nothing to suggest that the officers’ ultimate goal in making contact with [the defendant], who was in the immediate vicinity of the urinator, was to search his person for drugs. . . . Further, the intrusion upon [the defendant’s] privacy involved a brief conversation in which [the defendant] cooperatively engaged. [Citation omitted.]” 285 Kan. at 1004.
After analyzing all three factors, the court determined that the officers’ discovery of the outstanding arrest warrant was an intervening circumstance which sufficiently attenuated the taint of the unlawful detention. Thus, the court unanimously concluded that despite the defendant’s unlawful detention, the evidence discovered in the search incident to his arrest was admissible. 285 Kan. at 1005.
Returning to our facts, the district court analyzed the effect of the discovery of Moralez’ outstanding warrant under the three factors set forth in Martin. As in Martin, the district court found that the first factor, i.e., the time elapsed between the illegality and the acquisition of the evidence, weighed against the State. The district court found that the second factor, i.e., the presence of intervening circumstances, weighed in favor of the State. The district court focused on the third factor, i.e., the purpose and flagrancy of the official misconduct, and found that the officers’ conduct in this case was not flagrant or egregious. In so finding, the district court noted that Moralez repeatedly testified that he felt free to leave. The district court reasoned that if the officers’ conduct had been so egregious, “I don’t believe [Moralez] would have felt that he was free to leave.” Thus, the district court concluded that even if Moralez was unlawfully detained, the subsequent discovery of the arrest warrant purged the taint of the unlawful detention.
On appeal, we will review the three attenuation factors considered by the district court and discussed in Martin. We must review the district court’s factual findings for substantial competent evidence, but we review the district court’s ultimate legal conclusion by a de novo standard. Ransom, 289 Kan. at 380.
As the district court found, the first factor, i.e., the time elapsed between the illegality and the acquisition of the evidence, weighs against the State. But it would seem that this is almost always the case. In routine police encounters that lead to warrant checks, there is almost always no temporal break between the initial detention and the subsequent discovery of the evidence. The second factor, i.e., the presence of intervening circumstances, weighs in favor of the State. Again, it would seem that this is almost always the case. The discovery of an outstanding warrant informs the law enforcement officer that a magistrate has found there is probable cause to believe that a crime has been committed and that the person subject to the warrant has committed the crime. At that point, it is the officers’ duty to execute the warrant by arresting the person named therein. See K.S.A. 22-2305.
As in Martin, we will focus on the third attenuation factor, i.e., the purpose and flagrancy of the official misconduct. In his brief, Moralez argues that “the officer’s goal in detaining Moralez, who was suspected of nothing illegal, was to check him for warrants, and, inevitably, if a warrant was found, to arrest and search him.” But this assertion is not supported by the evidence. Here, as in Martin, there is nothing to suggest that the officers’ ultimate goal in contacting Moralez was to search his person for drugs. The officers were initially drawn to the particular location to investigate the vehicle with an expired 30-day tag. Indeed, Whisman and Moralez both testified that Moralez initiated the contact with the law enforcement officers. Whisman asked Moralez to provide his identification in order to document him as a witness. Whisman testified that if Moralez had denied his request for identification or had refused to give his name, there was nothing he would have done.
Whisman did not express any particular reason for running a warrant check on Moralez. Perhaps it was a fishing expedition. But in Martin, although the circumstances suggested that the officers’ purpose in running the warrant check was a fishing expedition, the court nonetheless stated: “We do not perceive [such] conduct to be flagrant.” 285 Kan. at 1004. Finally, as in Martin, the intrusion upon Moralez’ privacy involved a brief conversation in which Moralez cooperatively engaged. From the time Whisman first observed the parked vehicle to the time Moralez was arrested was 16 minutes. Although the record is not precise on the timing, presumably the amount of time involved in checking Moralez’ identification for warrants was only a few minutes.
If anything, the law enforcement officers’ conduct in Martin appears to have been more flagrant than the officers’ conduct here. In Martin, the law enforcement officers stopped the defendant for no purpose and immediately asked for his identification in order to run a warrant check. The officers detained the defendant until the warrant check was completed. When an outstanding warrant was discovered, the officers arrested and searched the defendant. Here, the encounter began as an investigation of a vehicle with an expired 30-day tag. Moralez initiated his contact with the law enforcement officers, not the other way around. Whisman later asked Moralez to provide his identification in order to document him as a witness. Whisman testified that if Moralez had denied his request for identification or had refused to give his name, there was nothing he would have done. If the purpose and flagrancy of the official misconduct in Martin weighed in favor of attenuation, as our Supreme Court concluded, we must reach the same conclusion here.
In summaiy, we find the facts herein to be difficult to distinguish from the facts of Martin in any meaningful way. In both cases, the officers encountered a citizen with no suspicion of criminal activity. In both cases, the citizen was presumably unlawfully detained for a brief period of time. In both cases, there was nothing to suggest that the officers’ ultimate goal in contacting the citizen was to search the person for drugs. In both cases the officers requested the citizen’s identification and for no apparent reason decided to run a warrant check. In both cases, the officers detained the citizen until the warrant check was completed. In both cases, the officers discovered an outstanding arrest warrant and searched the citizen incident to the arrest which led to the seizure of evidence of a crime.
In Martin, the court held that the officers’ discoveiy of the outstanding arrest warrant was an intervening circumstance which sufficiently attenuated the taint of the unlawful detention so as to permit the admission of the evidence. 285 Kan. at 1005. The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Merrills, 37 Kan. App. 2d 81, 83, 149 P.3d 869, rev. denied 284 Kan. 949 (2007). We have no indication our Supreme Court is departing from the unanimous precedent in Jones and Martin. Based on Jones and Martin, we conclude the district court did not err by denying the motion to suppress the evidence.
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Greene, J.:
Morris County appeals a decision of the Court of Tax Appeals (COTA), which reduced the valuation of a mobile home and other improvements owned by Edward A. Lipson and located on land leased from the Ciiy of Council Grove. The County argues that COTA erred in finding that the reduction was necessary in order to exclude “the value of taxpayer’s intangible right to the lot lease.” Lipson has not appealed the resulting valuation of $71,000 for his improvements. Concluding that leasehold interests are not taxable in Kansas, we affirm COTA’s decision.
Factual and Procedural Background
Lipson entered into a “City Lake Lease” with the City of Council Grove in March 2007 for a “cabin site” on Council Grove City Lake referred to as R-6. The lease was recorded under an affidavit from the City Administrator/City Clerk, citing K.S.A. 79-412 and averring that the City of Council Grove owns the real estate but does not own any improvements on the lot. The leasehold interest was transferred to Lipson from a prior lessee, who contemporaneously conveyed to Lipson the improvements on the property including a mobile home, two docks, a stoop, and a storage shed. The transfer/conveyance agreement between Lipson and the prior lessee contained an apportionment of the $126,000 purchase price, allocating $100,000 to the lease rights, $20,000 to the mobile home, and $6,000 to the furnishings.
The disagreement between Lipson and the County began in 2008, when the County valued the subject property for tax purposes. The County did not utilize the Kansas Department of Revenue Property Valuation Division’s (PVD) guide for mobile homes after it determined that mobile homes located at the lake were selling for significantly more than the values indicated by the guide. The County chose instead to rely on its Computer Assisted Mass Appraisal (CAMA) system sales approach which relied on sales of comparable mobile homes located at the lake. Accordingly, the County valued the mobile home, docks, stoop, and storage shed on the property at $128,450. This assessment was later reduced to $107,800 after a hearing before the Small Claims Division of COTA.
Lipson appealed the small claims determination to COTA, arguing that the County’s valuation of the improvements improperly assigned the “intangible value” of his lakeside leasehold interest to him. Lipson pointed out that in the prior year, 2007, the property was assessed at only $71,080. Furthermore, Lipson cited numerous sales of comparable properties at the lake, wherein buyers pur chased 1970’s mobile homes and a transfer of lake lot leases for $88,000 to $99,000 and subsequently removed or destroyed the mobile homes. He also presented a sales listing for the rights to a lot lease containing no improvements for $120,000. Lipson contended that this evidence supported his contention that the majority of the subject property’s market value is in the intangible rights to the leasehold interest and not the subject improvements.
COTA agreed with Lipson and reduced the value of his property, as he requested. In reaching its conclusion, COTA reasoned that only real and tangible personal property are subject to ad valorem taxation in Kansas. It follows, COTA suggested, that intangible property of any kind is not subject to taxation in Kansas. COTA then determined that the County’s appraisal of $107,800 for Lipson’s property captured a nontaxable intangible interest in the leased property and was therefore inappropriately included in Lipson’s taxable value. COTA concluded that Lipson’s valuation opinion was more accurate and assigned the improvements a value of $71,000.
Morris County appeals COTA’s valuation determination.
Standards of Review
The Kansas Judicial Review Act (KJRA), see K.S.A. 77-601 et seq., governs appellate review of COTA rulings. K.S.A. 2009 Supp. 74-2426(c); K.S.A. 77-603(a). KJRA delineates specific circumstances under which this court may properly grant relief. Relevant here, relief shall be granted when (i) the agency has erroneously interpreted or applied the law; or (ii) the agency action is otherwise unreasonable, arbitrary, or capricious. K.S.A. 77-621(c)(3) and (8). Because the County is challenging COTA’s determination, it bears the burden of proving the invalidity of the agency’s action. K.S.A. 77-621(a)(l).
To the extent that resolution of this issue involves statutory interpretation, this court exercises unlimited review. In re Tax Appeal of Graceland College Center, 40 Kan. App. 2d 665, 668, 195 P.3d 245 (2008), rev. denied 289 Kan. 1278 (2009). We are guided, however, by the general rule in Kansas which instructs that when construing tax imposition statutes, provisions which impose the tax are to be construed strictly in favor of the taxpayer. In re Tax Exemption Application of Central Illinois Public Services Co., 276 Kan. 612, 616, 78 P.3d 419 (2003).
As is usually the case, determining whether an agency has erroneously interpreted or applied the law is a question of law over which an appellate court’s review is unlimited. In re Tax Appeal of Graceland, 40 Kan. App. 2d at 667.
Did COTA Err in Reducing Lipson’s 2008 Taxable Valuation of Improvements on the Leased Lot?
The County challenges COTA’s decision principally because it excluded from taxable value the “taxpayer’s intangible right to the lot lease in its appraisal of the subject property.” After noting that the County had the burden to initiate the production of evidence to demonstrate the validity and correctness of its valuation determination, COTA’s findings and conclusions included in material part:
“Kansas statutes and relevant Kansas caselaw indicate that only real and tangible personal property are subject to ad valorem, taxation in Kansas. K.S.A. 79-101 provides that, ‘[a]ll property in this state, real and personal, not expressly exempt therefrom, shall be subject to taxation in the manner prescribed by this act.’ Further, K.S.A. 79-102 defines ‘personal property’ as ‘eveiy tangible thing which is the subject of ownership, not forming part or parcel of real property.’ In In re Tax Protest of Strayer, 239 Kan. 136, 716 P.2d 588 (1986), the Kansas Supreme Court was asked to decide the issue of whether certain computer software was subject to tax under K.S.A. 79-101. The Supreme Court concluded that the definition of personal property as ‘every tangible thing’ indicated that intangible application software was not included in the term personal property and, as a result, was not taxable under K.S.A. 79-101. See In re Appeal of Western Resources, Inc., 22 Kan. App. 2d 593, 595, 919 P.2d 1048 (1996). Consequently, the Court finds that non-tangible property is not subject to ad valorem taxation in Kansas and should not be included in a real property appraised value.
“The Court finds that the County has improperly included the value of the Taxpayer’s intangible right to the lot lease in its appraisal of the subject property. The manufactured housing appraisal guide developed by PVD values the subject mobile home and improvements at $18,940, yet the subject property and the rights to the lot lease sold for $120,000 in April 2007. The April 2007 sale of the subject property, and the Taxpayer’s and County’s sales comparables clearly indicate that a considerable portion of the sales prices paid for lake properties is for the acquisition of the seller’s rights to the lot lease. The Court finds that the County has not adjusted these sales prices to account for the intangible value of the lot lease. Without proper adjustments, these sales prices are not accurate indicators of the fair market value of the subject improvements. Given the evidence presented, the Court finds the Taxpayer’s estimate of value to be the best indicator of value presented. Therefore, the Court concludes that the subject property’s 2008 appraised value is $71,000.”
The County and amicus curiae Mark S. Beck, Director of the PVD take issue with COTAs holding, arguing that a leasehold estate is real property in Kansas, is subject to ad valorem taxation, and should not be characterized as an intangible right, citing K.S.A. 77-201 Eighth; K.S.A. 79-102; and Board of Johnson County Comm'rs v. Greenhaw, 241 Kan. 119, 123, 734 P.2d 1125 (1987). These statutory provisions do not support the taxability of leasehold interests, and the County’s reliance on Greenhaw is misplaced.
K.S.A. 77-210 Eighth defines the terms “real property” and “real estate” to include land and all rights thereto “and interest therein” for purposes of statutory construction. This statute provides no guidance, however, on the question of which interests may be taxable under our ad valorem tax scheme, and the statute certainly provides no statutory authority to tax leasehold interests in land.
K.S.A. 79-102 defines the terms “real property” and “real estate” as including “not only the land itself’ but “all buildings, fixtures, improvements, mines, minerals, quarries mineral springs and wells,” and the “rights and privileges appertaining thereto.” This simply means that the terms broadly include any rights and privileges that are associated with ownership of any of the listed properties; it is quite a stretch to suggest that the statute defines these terms as including a leasehold interest in or to such real property. But most importantly, this statute has remained unchanged since 1923 and did not prove influential to our Supreme Court when it held in Greenhaw that leasehold interests are not taxable.
In Greenhaw, our Supreme Court held that a leasehold estate— except an oil and gas lease — is real estate, but amicus PVD cites this holding without including the more applicable portion of the opinion. The entire discussion reads:
“A leasehold estate, except an oil and gas lease, is real estate under Kansas law. A leasehold estate is not subject to real estate taxation. Instead, a unitary assess ment method is used in which one value is assigned to a lot or tract of real estate and one tax is assessed and levied thereon. The practical reasons for not assessing and levying real property taxes against leases are discussed in Zinn, The Real Estate Lease in Kansas: Some Problems of Characterization, 17 Kan. L. Rev. 707, 725 (1969):
‘The paramount reason appears to be that taxation of divided interests in real property is not within the scheme of the Kansas taxation statutes. Thus, in compiling the real estate assessment rolls, the county clerk is required only to consult the transfer record in his office, the records and plats in the office of the register of deeds, and reports from United States land offices, in obtaining information pertaining to ownership of real property. Moreover, the county assessor is to compute taxes to be levied only on tracts or lots of real property in the names of the owners thereof. Neither the county clerk nor the county assessor is required to search out divided ownerships created by leases, many of which are unrecorded. To impose this search on county clerks and assessors would perhaps prohibitively increase the administrative burdens placed on those county officials, and would ehminate the certainty now present in the unitary land and improvements thereon, and the values are to consider the earning capacity as indicated by lease price and reasonable rental value, it would appear that no loss in tax funds is occasioned by not separately assessing and levying a tax upon the leasehold interest of the lessee and the reversionary interest of the lessor.’ ” (Emphasis added.) Greenhaw, 241 Kan. at 123.
Greenhaw’s refusal to tax leasehold interests was consistent with prior caselaw also dechning to tax a leasehold interest, reasoning that “taxation of divided interests in real property is not within the scheme of the Kansas taxation statutes.” State ex rel. Tomasic v. City of Kansas City, 237 Kan. 572, 591, 701 P.2d 1314 (1985). In Tomasic, the court addressed a contention that the leasehold interest of the tenant of real estate financed by an industrial revenue bond issue was “personal property” under K.S.A. 79-102 and therefore taxable. The court rejected this contention, stating:
“We find this argument to be wholly without merit. It is not supported by Kansas law or any compelling policy considerations. In fact, taxation of divided interests in real property is not within die scheme of the Kansas taxation statutes. [Citation omitted.] Accordingly, this court does not hold the leasehold interest of a lessee should be separately assessed and taxed.” 237 Kan. at 591.
The County argues that the holdings of both Greenhaw and Tomasic are “no longer valid” because of a 1999 amendment to K.S.A. 79-412, as stated in its appellate brief, that “allow[s] assessment of improvements located on a leasehold interest.” In fact, it was an amendment in 1997 that permitted improvements on land owned by a city to be separately taxed to the owners of the improvements. See L. 1997, ch. 126, sec. 31; L. 1999, ch. 126, sec. 5. The statutory changes in both 1997 and 1999, however, stop far short of authorizing the assessment and taxation of leasehold interests in real estate. These changes merely authorized the assessment and taxation of improvements under specific circumstances. We reject the suggestion that neither Greenhaw nor Tomasic remain good law in Kansas.
This refusal to tax leasehold interests has been perpetuated not only by legislative silence since Tomasic and Greenhaw, but by a 2004 amendment to K.S.A. 79-412. See L. 2004, ch. 173, sec. 9. This statute governs the valuation of buildings and improvements on land and was clarified by the amendment, which specifies in the case of divided interests that “improvements owned by entities other than the owner of the land shall be assessed to the owners of such improvements, if the lease agreement has been recorded or filed in the office of the register of deeds.” (Emphasis added.) K.S.A. 2009 Supp. 79-412. Moreover, a failure to observe the statutory requirements for such treatment “may result in such improvements being assessed to the owner of the land.” K.S.A. 79-412. In all other cases, the value of the land and improvements must be entered on the assessment roll “in a single aggregate.” (Emphasis added.) K.S.A. 2009 Supp. 79-412.
This statutory scheme defies any suggestion that the improvement owner can also be assessed some value for his or her leasehold interest. Consider how it would confound this statutory scheme if PVD’s suggestion that the value of the leasehold interest could be assessed to the owner of the improvements; how could this possibly be squared with the precise language and limited options outlined in K.S.A. 2009 Supp. 79-412? PVD cites no authority — nor do we know of any — to essentially “double tax” realty under lease, valuing and assessing both an ownership and a leasehold interest. This would reflect a radical departure from our long-established Kansas ad valorem tax scheme. K.S.A. 2009 Supp. 79-412 contemplates that there are only two components of realty ownership subject to taxation in Kansas: the land and the improvements.
In a remarkable contrast to PVD’s position in this appeal, we note that PVD does not suggest that other residential or commercial tenants have ever been taxed on the value of their leasehold interests. Although the landowners of commercial properties often have their taxable values established by an income approach that capitalizes the income stream from existing leases on the properties (see K.S.A. 2009 Supp.79-503a), we are aware of no statutory provision for the tenants of such properties to be assessed for the values of their leasehold estates. These tenants are subject to taxation on the values of personal properties located on those premises, but PVD does not suggest, nor are we aware of, any authority stating that the values of such leasehold interests are separately subject to valuation and taxation to the tenants. In particular, we take judicial notice of PVD form PV-PP-1A (rev. 9/08), which is provided by the agency for listing and itemizing elements of value for “mobile homes used for residential housing,” and the form contains no mention of and apparently contemplates absolutely no valuation or taxation of the leasehold interest where the mobile home is situated.
In summary, we agree with COTA insofar as it held that leasehold estates are not subject to ad valorem taxation in Kansas.
Was COTA’s Valuation of Lipson’s Property Unreasonable, Arbitrary, or Capricious?
The County also argues that COTA’s valuation determination was not supported by substantial competent evidence. We disagree. Lipson testified that he asked the County to assess his property at $71,000, which was the final valuation subject to assessment in the prior year and was not challenged by either party. Lipson further testified that he believed the value of his property was “between $50,000 and . . . $70,000.” He explained that his opinion of value was based on the County’s documentation of sales of like mobile homes after deducting the value of the leasehold interest. Kansas law has long recognized that an owner of property may competently testify as to the value of his or her property. City of Wichita v. Sealpak Co., 279 Kan. 799, 802, 112 P.3d 125 (2005); City of Wichita v. Chapman, 214 Kan. 575, 580, 521 P.2d 589 (1974). We also note that Lipson has not appealed the value established by COTA’s order. There has been no showing that COTA’s value determination was unreasonable, arbitrary, or capricious. See In re Tax Appeal of ANR Pipeline Co., 276 Kan. 702, 710, 79 P.3d 751 (2003).
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Pierron, J.:
Kellam D. Jones appeals his sentences and the district court’s determination that he could be tried as an adult. We affirm in part and dismiss in part.
At the time of the alleged crime, Jones was 16 years and 11 months old. The State moved the district court for an order authorizing prosecution of Jones as an adult. In support of its motion, the State argued that Jones should be presumed to be an adult under K.S.A. 2007 Supp. 38-2347 because he was at least 14 years old at the time of the offense and the offense alleged in the complaint would have constituted a nondrug severity level 1 through 6 felony if committed by an adult. In response, Jones argued that to comply with Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), the determination of whether he should be prosecuted as an adult must be tried before and decided by a jury, and that K.S.A. 2007 Supp. 38-2347(a)(2) violated his due process rights by imposing a presumption that he should be tried as an adult.
The district court conducted the hearing without a jury and denied Jones’ motion to have his certification hearing decided by a jury. Jones claimed that K.S.A. 2007 Supp. 38-2347(a)(2) violated his due process rights. At the hearing, the court found the State had met its burden of proof under K.S.A. 2007 Supp. 38-2347 to show that Jones was over 14 years old at the time of the offense and that the charged offense, if committed by an adult, would constitute an off-grid felony. Accordingly, the court found that under K.S.A. 2007 Supp. 38-2347 a rebuttable presumption existed that Jones should be charged as an adult. After hearing arguments and the testimony of witnesses, the court considered the eight factors provided by K.S.A. 2007 Supp. 38-2347(e) and concluded that Jones had failed to rebut the presumption that he should be prosecuted as an adult. The court ruled against Jones’ argument that the waiver process was unconstitutional.
The State dismissed the original complaint and filed a new information charging Jones as an adult with one count of first-degree murder and one count of attempted aggravated robbery. On November 13, 2008, the district court accepted Jones’ guilty plea to an amended information charging him with one count of second-degree murder, one count of attempted aggravated robbery, and one count of attempted aggravated burglary. At sentencing, the court imposed the aggravated sentences of the relevant Kansas sentencing guidelines presumptive grid boxes on all three of Jones’ convictions: 123 months on his second-degree murder conviction; 34 months on his attempted aggravated robbery conviction; and 13 months on his attempted aggravated burglary conviction. The court ordered all three of Jones’ sentences to run consecutively, for a total of 170 months’ imprisonment.
Jones first argues that a jury, rather than the district court, should have made the determination that he could be prosecuted as an adult. He claims that under Apprendi, any fact other than a prior conviction that increases the penalty for a crime beyond the proscribed statutory maximum must be presented before a jury and proven beyond a reasonable doubt. Here, the court, not a jury, found the State could prosecute Jones as an adult under K.S.A. 2007 Supp. 38-2347. Jones contends that if he had been prosecuted as a juvenile, he would have faced approximately 6 years in a juvenile correctional facility, compared to the roughly 14-year sentence he received as the result of being tried as an adult. Because this factual finding increased the maximum punishment he faced, and the determination was not tried before and proven beyond a reasonable doubt, Jones claims his rights under the Sixth and Fourteenth Amendments to the United States Constitution and under Apprendi were violated.
Jones concedes that the Kansas Supreme Court rejected this same argument in both State v. Jones, 273 Kan. 756, 47 P.3d 783, cert. denied 537 U.S. 980 (2002), and State v. Tyler, 286 Kan. 1087, 1095-96, 191 P.3d 306 (2008). Jones argues, however, that that the Tyler court failed to consider its own decision in In re L.M., 286 Kan. 460, 186 P.3d 164 (2008), in which the Kansas Supreme Court held that juveniles have the right to a juiy trial.
Whether the district court violated Jones’ rights under Apprendi by making factual findings in support of its decision authorizing adult prosecution of Jones is a question of law over which appellate review is unlimited. See Tyler, 286 Kan. at 1095-96.
In Jones, the Kansas Supreme Court addressed and rejected an argument identical to that raised by the appellant in the present case. See 273 Kan. at 770-71. The Jones court held that Apprendi does not control the certification proceedings under the Kansas statutory scheme. 273 Kan. at 774. The court stated that Apprendi deals with the sentencing phase of criminal proceedings, while the certification hearing to determine a juvenile offender’s status as an adult or a juvenile is merely a “jurisdictional matter” meant to determine which court will resolve the case. 273 Kan. at 775.
The Kansas Supreme Court affirmed Jones in Tyler. Tyler argued that his Apprendi rights had been violated when the district court made the factual findings which allowed his prosecution as an adult rather than as a juvenile. The Tyler court rejected this argument. Apprendi only forbids the imposition of a sentence that exceeds the statutory maximum permitted by the facts required by the jury’s finding of guilt, and Apprendi still applies after the certification procedure sends a juvenile to adult court. But Apprendi does not apply to the determination of whether prosecution of a juvenile offender takes place in a juvenile or an adult court, and the states are not constitutionally obligated to provide preferential treatment to juveniles. The Tyler court accordingly affirmed its prior decision in Jones. 286 Kan. at 1096.
Jones argues that Tyler was wrongly decided because it failed to consider In re L.M., in which the court held that juveniles prosecuted under the Kansas juvenile justice system have the right to a jury trial. 286 Kan. at 470. Jones fails to specify why In re L.M. has any impact on the holding of Tyler. His argument consists of a recitation of the holding of In re L.M., followed by a jump to the unsupported conclusion that a “ jurisdictional determination’ is just another name for a factual finding by a district court that increases the maximum statutory penalty.”
Jones’ argument fails. It is true that had he been tried in juvenile court, he would have had the right to a jury trial. But this fact is irrelevant to the issue presently before us. Simply because a juvenile tried in juvenile court has the right to a jury trial does not change the fact that juveniles have no absolute constitutional right to be tried in juvenile court in the first place. Thus, this court is still controlled by the holding of Tyler that Apprendi does not control the determination of whether a juvenile should be tried as an adult. We are required to follow Kansas Supreme Court precedent unless there is some indication the court is departing from its previous decision. State v. Merrills, 37 Kan. App. 2d 81, 83, 149 P.3d 869, rev. denied 284 Kan. 949 (2007). Since there is no indication that the Kansas Supreme Court is departing from its decision in Tyler, the district court correctly denied Jones’ motion to have his certification hearing tried before a jury.
Jones next argues that his due process rights were violated by the presumption under K.S.A. 2009 Supp. 38-2347(a)(2) that he is an adult because of the severity of the charged offense. Jones argues that under In re J.L., 20 Kan. App. 2d 665, 891 P.2d 1125, rev. denied 257 Kan. 1092 (1995), the presumption that he is an adult mandated by K.S.A. 2009 Supp. 38-2347(a)(2) created a significant risk of erroneous action which violated his due process rights by shifting the burden to him, rather than to the State, to prove that he should be prosecuted as an adult. Jones admits that this argument has been addressed and rejected in Tyler, 286 Kan. at 1097, and asserts that he is only presenting this argument to preserve it for any subsequent federal appeal.
Tyler is controlling and should be applied in this case. As in the present case, the appellant in Tyler argued that under In re J.L., the presumption that he was an adult under K.S.A. 38-1636(a)(2) (repealed effective January 1, 2007, and recodified at K.S.A. 2009 Supp. 38-2347) violated his due process rights. The Tyler court disagreed, finding that juveniles have no constitutional right to be adjudicated under the Kansas Juvenile Justice Code. Consequently, the rebuttable presumption of adult prosecution mandated by K.S.A. 38-1636(a)(2) is constitutionally valid. 286 Kan. at 1097. Since we are required to follow Kansas Supreme Court precedent absent an indication the Kansas Supreme Court is departing from its previous decision, and there is no such indication here, the district court’s decision is affirmed. See Merrills, 37 Kan. App. 2d at 83.
Jones’ final argument is that the district court violated his Sixth and Fourteenth Amendment rights by imposing the high number in the appropriate gridbox for each of his convictions. Jones contends that under Apprendi, any fact other than a prior conviction that is used to increase a defendant’s sentence beyond the presumed statutory maximum must be presented before a jury and proven beyond a reasonable doubt. Jones argues that under K.S.A. 2007 Supp. 21-4704(e)(l), the presumed statutory maximum sentence he could receive was the middle number in the appropriate sentencing guidelines gridbox. Because the court sentenced Jones to the high number in the appropriate gridbox, he alleges that the court violated his rights by imposing a sentence in excess of the statutory maximum without submitting the facts before a jury to be proven beyond a reasonable doubt.
As Jones concedes, this argument has been addressed and rejected in State v. Johnson, 286 Kan. 824, 190 P.3d 207 (2008). When faced with an argument identical to that brought by Jones, the Johnson court thoroughly discussed the relevant case law and statutes before holding as follows:
“[W]e conclude K.S.A. 21-4704(e)(l) grants a judge discretion to sentence acrimina! defendant to any term within the presumptive grid block, as determined by the conviction and the defendant’s criminal history. The judge need not conduct any fact finding or state factors on the record. Consequently, the prescribed ‘ “statutory maximum” ’ sentence described by Apprendi, 530 U.S. at 490, is the upper term in the presumptive sentencing grid block. K.S.A. 21-4704(e)(l) is constitutional under the Sixth and Fourteenth Amendments to the United States Constitution and does not violate the holdings in Apprendi....” 286 Kan. at 851.
There is no indication the Kansas Supreme Court is departing from its decision in Johnson, so we are duty bound to follow its precedent. See Merrills, 37 Kan. App. 2d at 83. Jones’ sentences were not unconstitutional, and because his sentences fell within the presumptive range for his convictions, we cannot consider his challenge. Under K.S.A 21-4721(c)(l), this court has no jurisdiction to consider a challenge to a presumptive sentence even though the sentence is the longest term in the presumptive grid block for the convictions. Johnson, 286 Kan. at 851-52. Here, the district court imposed the highest sentences of the relevant presumptive grid boxes on all three of Jones’ convictions. Because the imposed sentences were within the guidelines, we have no jurisdiction, and this portion of Jones’ appeal is dismissed. See 286 Kan. at 851.
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Leben, J.:
For more than a decade, Dustin Merryfield has been confined at the Lamed State Hospital under the Kansas Sexually Violent Predator Act, K.S.A. 59-29a01 etseq. He has filed a habeascorpus petition under K.S.A. 60-1501 raising claims that go to the core of the Kansas treatment program for sexual predators: Merryfield claims that the program is run so poorly that it doesn’t offer a realistic opportunity to cure or improve the mental abnormality for which he has been involuntarily confined. We must reverse the district court summary dismissal of Merryfield’s petition because it raises constitutional claims of potential merit.
We also reverse the district court’s decision refusing to appoint counsel to represent Merryfield in this habeas action. While there is no general right to counsel in civil habeas cases, the constitutionality of the Kansas Sexually Violent Predator Act depends upon the procedural rights given to those who are involuntarily committed under its provisions. The Kansas Legislature has explicitly provided a right to counsel to such persons during annual review hearings and has explicitly provided a right to counsel in K.S.A. 60-1501 proceedings to those involuntarily committed under other similar statutes. We therefore conclude that in the case of habeas actions brought by persons confined pursuant to the Kansas Sexually Violent Predator Act, those persons have a constitutional right to counsel if the district court determines that their petitions cannot be summarily dismissed.
Factual Background
Since December 2000, Dustin Merryfield has been confined under the Kansas Sexual Predator Treatment Program at Lamed State Hospital. He was put in the program’s intensive-treatment unit after he hit a staff member, verbally threatened other staff members, and destroyed property during a routine room search. See Merryfield v. Turner, 2008 WL 4239118, at *1 (Kan. App. 2008) (unpublished opinion), rev. denied 288 Kan. 832 (2009). The intensive-treatment unit seeks to help patients with anger, stress tolerance, and decision-making so that they can be successful upon return to the regular treatment program.
Merryfield’s current K.S.A. 60-1501 petition claims the treatment program does not provide constitutionally adequate care and treatment for his mental and personality disorders. After serving the petition, Merryfield made several discovery requests of the Department of Social and Rehabilitation Services, seeking both documents and admissions. At the department’s request, the district court delayed discoveiy until it had determined whether Merryfield’s petition stated any potentially valid claims. The district court also deferred ruling on Meriyfield’s request for an attorney until the department responded to the petition.
The department filed a motion to dismiss, claiming that Meriyfield’s petition failed to meet the standards for a viable constitutional claim, i.e., that he hadn’t alleged either shocking or intolerable confinement conditions or continuing mistreatment of a constitutional nature. The district court agreed and summarily dismissed Merryfield’s petition because Meriyfield had not presented a substantial question of law or a factual dispute requiring trial. The district court then denied appointment of counsel because Meriyfield hadn’t presented a substantial question of law or factual dispute requiring trial. The district court determined that the request for discoveiy was moot because the petition was being dismissed. Merryfield has appealed all of these rulings to our court.
I. Because Merryfield Has Alleged Continuing Mistreatment of a Constitutional Nature, His Petition Cannot Be Summarily Dismissed.
Menyfield’s petition raises a litany of claims asserting that the Kansas Sexual Predator Treatment Program can’t give him the appropriate treatment that could lead to his release. He specifically claimed that: (1) the program’s therapists weren’t adequately trained; (2) the intensive-treatment unit forces treatment by withholding items of comfort if the patient refuses treatment; (3) it isn’t effective to show him obscene materials during therapy sessions to achieve the goal of teaching that possessing such materials is wrong; (4) individual therapy sessions are needed but not provided; and (5) effective treatment methods are hindered by overriding security measures and the lack of funds and resources.
A person involuntarily confined in the Kansas Sexual Predator Treatment Program may petition the court under K.S.A. 60-1501 for a declaration that the confinement is wrongful. Johnson v. State, 289 Kan. 642, 648, 215 P.3d 575 (2009). To avoid summary dismissal, the petition must allege either (1) shocking or intolerable conduct or (2) continuing mistreatment of a constitutional nature. 289 Kan. at 648. The petition may be summarily dismissed if it does not make such allegations or if it can be established from incontrovertible facts that no cause for granting rehef exists. 289 Kan. at 648-49. On appeal from a summary dismissal, we review the matter without any required deference to the district court because we have equal access to the petition and court files. See 289 Kan. at 649.
Merryfield’s allegations do not meet the standard for shocking conduct. To meet that test, the United States Supreme Court has said that the governmental actor’s behavior must be “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8, 140 L. Ed. 2d 1043, 118 S. Ct. 1708 (1998). That standard is a bit subjective, but the Johnson case provides some guidance. If the state hospital staff showed a complete indifference to their obligation to provide treatment to Merryfield, that could qualify as outrageous conduct. See Johnson, 289 Kan. at 653. But as was the case in Johnson, the allegations here are primarily that treatment is being provided, but it’s ineffective. That does not show conduct so outrageous as to shock the contemporary conscience. 289 Kan. at 652-53.
As to the alternative grounds for rehef — continuing mistreatment of a constitutional nature — the United States Supreme Court has not said what specific elements or characteristics comprise a constitutionally adequate civil-commitment program for sex offenders who are a continuing risk to society. See Johnson, 289 Kan. at 653-54. We must balance the individual’s liberty interest against the government’s reasons for restraining liberty. Youngberg v. Romeo, 457 U.S. 307, 320-21, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982). In balancing these interests in the context of treatment programs for civilly confined sex offenders, one federal appellate court has held that the treatment programs must provide a realistic opportunity for the offenders to be cured or improve the condition for which they were committed, see Sharp v. Weston, 233 F.3d 1166, 1172 (9th Cir. 2000), while another held that the conditions and duration of confinement must at least bear a reasonable relation ship to providing treatment rather than mere preventive detention. Cross v. Harris, 418 F.2d 1095, 1106-07 (D.C. Cir. 1969). Indeed, the United States Supreme Court’s decision upholding the constitutionality of the original Kansas law for civil commitment of sexual predators was based in part on the provision of appropriate treatment. See Kansas v. Hendricks, 521 U.S. 346, 368-69, 138 L. Ed. 2d 501, 117 S. Ct. 2072 (1997). Due process of a civilly committed sex offender requires that the conditions and duration of confinement bear some reasonable relation to the purpose for which the person has been committed. Seling v. Young, 531 U.S. 250, 265, 148 L. Ed. 2d 734, 121 S. Ct. 727 (2001). One important purpose of Merryfield’s commitment is for treatment of the mental abnormality that led to his confinement as a dangerous sex offender. See K.S.A. 59-29a01(establishing civil commitment process “for the potentially long-term control, care and treatment of sexually violent predators”); K.S.A. 59-29a07(a) (allowing commitment of dangerous sex offenders into state custody “for control, care and treatment until such time as the person’s mental abnormality or personality disorder has so changed that the person is safe to be at large”); K.S.A. 2009 Supp. 59-29a22(b)(3) (recognizing committed sex offender’s “right to receive prompt and adequate treatment, rehabilitation and educational services appropriate for such patient’s condition”).
Merryfield’s allegations, if true, establish that the treatment program does not provide a realistic opportunity for him to be cured or to substantially improve his condition. Those allegations are sufficient to withstand summary dismissal. We have summarized Merryfield’s allegations for the purposes of our opinion, but we note that he did provide more specific allegations than we have summarized here. For example, he made specific allegations about the lack of qualifications of individual therapists and about the ineffectiveness of some of the treatment methods, such as group sessions and the showing of obscene materials in treatment sessions. We recognize that courts should defer to the judgment of professionals in what conditions and treatment methods are needed. See Youngberg, 457 U.S. at 322-23; Allison v. Snyder, 332 F.3d 1076, 1079 (7th Cir. 2003). But such a judgment call would not be made at the summary-dismissal stage when the petition maybe dismissed only if incontrovertible facts establish that the petitioner is not entitled to relief.
In addition to his claim that the treatment actually provided to him has been constitutionally inadequate, Merryfield made one facial challenge to the overall validity of K.S.A. 2009 Supp. 59-29a22, the statute under which he has been confined. He argued that this statute wrongfully limited his right to receive treatment upon tire availability of state and federal funds to provide that treatment. But a facial challenge — in which a party does not have to show factually that the statute is being applied in an unconstitutional manner — must fail if “there is any reasonable way to construe the statute as constitutionally valid.” In re Tax Appeal of Weisgerber, 285 Kan. 98, 102, 169 P.3d 321 (2007). Merryfield correctly notes that the statutory recognition of his “right to receive prompt and adequate treatment, rehabilitation and educational services appropriate to [his] condition” is only granted “within the limits of available state and federal funds.” K.S.A. 2009 Supp. 59-29a22(b)(3). But we are to construe statutes to be constitutional if possible, State v. Laturner, 289 Kan. 727, 735, 218 P.3d 23 (2009), and a state may not withhold needed treatment from a civilly committed sex offender based on a claim that funds are lacking. Ohlinger v. Watson, 652 F.2d 775, 779 (9th Cir. 1980); Turay v. Seling, 108 F. Supp. 2d 1148,1151 (W.D. Wash. 2000). Moreover, K.S.A. 59-29a09 explicitly provides that the confinement “of persons under this act shall conform to constitutional requirements for care and treatment.” We therefore construe K.S.A. 2009 Supp. 59-29a22(b)(3) to grant the right to adequate treatment meeting constitutional standards but to condition any treatment beyond that constitutionally required minimum level upon the availability of funds. Thus, while the statute survives a facial constitutional challenge, Merryfield still will have the opportunity to prove at a hearing that a lack of funding has resulted in his treatment falling below constitutional standards.
Merryfield has also contended that the Kansas Sexually Violent Predator Act violates equal protection by treating sexual predators different than people civilly committed under the Care and Treat ment Act for Mentally Ill Persons, K.S.A. 59-2945 et seq., and the Care and Treatment Act for Persons with an Alcohol or Substance Abuse Problem, K.S.A. 59-29b45 et seq.
Status as a sex offender is not a suspect class, like race or national origin, for equal-protection analysis. See United States v. LeMay, 260 F.3d 1018, 1030 (9th Cir. 2001); Hines v. Addison, 117 Fed. Appx. 713, 715 (10th Cir. 2004) (unpublished opinion). Thus, the Act will be constitutional if the classification bears a rational relationship to a legitimate government objective. State v. Mueller, 271 Kan. 897, 903, 27 P.3d 884 (2001), cert. denied 535 U.S. 1001 (2002). But to violate equal protection, the disparity in treatment must be between persons with indistinguishable situations. 271 Kan. at 903. The legislature explicitly recognized that sexually violent predators have special treatment needs and present special risks to society:
“Because the existing civil commitment procedures under K.S.A. 59-2901 etseq. and amendments thereto are inadequate to address the special needs of sexually violent predators and the risks they present to society, ... a separate involuntary civil commitment process for the potentially long-term control, care and treatment of sexually violent predators is necessary.” K.S.A. 59-29a01.
Meriyfield argues that this intent shows that the legislature merely wanted to provide sexually violent predators with specialized treatment, not “a whole new level of confinement.” Contrary to his argument, the legislature further deemed it “necessary to house involuntarily committed sexually violent predators in an environment separate from persons involuntarily committed under” the statute for the commitment of the mentally ill. K.S.A. 59-29a01.
The legislature has declared that sexually violent predators are different from other civilly committed persons with respect to treatment and risk, and those legislative findings pass muster on this facial challenge to the statute’s constitutionality. Meriyfield had the threshold burden to establish that sexually violent predators are similarly situated to others confined for mental illness with respect to treatment needs and risks to society. See People v. Ranscht, 173 Cal. App. 4th 1369, 1372, 93 Cal. Rptr. 3d 800 (2009); Varnum v. Brien, 763 N.W.2d 862, 882 (Iowa 2009). He has not done so. Thus, the department can subject those found to be sex ually violent predators to treatment and confinement conditions different from those of other civilly committed persons without violating the Equal Protection Clause. See In re Detention of Samuelson, 189 Ill. 2d 548, 562-63, 244 Ill. Dec. 929, 727 N.E.2d 228 (2000); In re Detention of Williams, 628 N.W.2d 447, 451-53 (Iowa 2001); Pedersen v. Plummer, 120 Fed. Appx. 665, 666-67 (9th Cir. 2004) (unpublished opinion); Brull v. Kansas Dept. of SRS, 2010 WL 3984998, at *7 (Kan. App. 2010) (unpublished opinion); but see People v. McKee, 47 Cal. 4th 1172, 1203-04, 104 Cal. Rptr. 3d 427, 223 P.3d 566 (2010) (remanding equal-protection claim for evidentiary hearing under strict-scrutiny test).
II. Merryfield Is Entitled to the Appointment of Counsel.
Merryfield sought the appointment of counsel in the district court; that court denied that request based on its conclusion that Merryfield had not presented a viable issue for an evidentiary hearing. Because we have reversed that finding, we must consider whether Merryfield is entitled to counsel on remand. He argues a right to counsel on both a constitutional and statutory basis.
He bases the statutory argument on K.S.A. 22-4503(a), which provides a right to counsel in habeas proceedings brought by persons involuntarily committed on account of mental illness. Because he too is civilly committed, he argues that the statute should apply to him. If it doesn’t, then he argues that he has been denied equal protection because other similarly situated people have a statutory right to counsel and he doesn’t.
K.S.A. 22-4503(a) does not provide a right to counsel to Merryfield. By its terms, only “[a] person subject to an order or commitment pursuant to K.S.A. 22-3428 or K.S.A. 59-2965” is given a right to counsel in habeas proceedings. Merryfield is confined under K.S.A. 59-29a07, part of the Kansas Sexually Violent Predator Act, not under K.S.A. 22-3428 (applicable to persons acquitted in criminal cases on account of mental disease or defect) or K.S.A. 59-2965 (applicable to persons committed on account of mental illness).
Of course, our inquiry does not stop with the statute; Merryfield has also claimed a constitutional right to counsel. Before discussing that in detail, we must place his habeas petition under K.S.A. 60-1501 in context. The writ of habeas corpus allows a person held by the government to challenge the lawfulness of the confinement, a quintessential right in our nation. When used by a person already convicted of a crime, the habeas petition is usually a collateral attack on the fairness of the procedures used to obtain that conviction. In that context, in which a defendant has already had a right to counsel through the criminal case, including an appeal, there generally is no constitutional right to counsel in the postconviction habeas case, which is civil in nature, not criminal. See Pennsylvania v. Finley, 481 U.S. 551, 555, 95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987); Brown v. State, 278 Kan. 481, 483, 101 P.3d 1201 (2004) (citing Finley).
But the traditional habeas context at issue in Finley, in which a person is held in custody based on conviction for a crime, is not Merryfield’s case at all. He is detained not as punishment for a crime but for purposes of treatment and public safety. He has been involuntarily committed in a civil proceeding, not a criminal one. The United States Supreme Court has recognized a limited right to counsel under the Fourteenth Amendment’s Due Process Clause in some civil proceedings. See In re Gault, 387 U.S. 1, 41, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967) (holding that a juvenile has a constitutional right to counsel in delinquency proceedings despite designation of such proceedings as civil in nature). But Merryfield’s case also differs from Gault and most other cases in which a right to counsel has been recognized because the right to counsel usually has been recognized in the case resulting in the initial deprivation of liberty, not a later proceeding raising a collateral attack. E.g., Project Release v. Prevost, 722 F.2d 960, 976 (2d Cir. 1983) (“A right to counsel in civil commitment proceedings may be gleaned from the Supreme Court’s recognition that commitment involves a substantial curtailment of liberty and thus requires due process protection.”); Jenkins v. Director, Va. Ctr. for Behav. Rehab., 271 Va. 4, 15-16, 624 S.E.2d 453 (2006) (person subject to involuntary civil commitment, including sexually violent predator, has constitutional right to counsel at all significant stages of the proceeding).
We conclude that Merryfield’s situation differs substantially from the traditional habeas context at issue in Finley where no constitutional right to counsel exists and that a constitutional right to counsel must be recognized whenever a person in his position has presented a petition under K.S.A. 60-1501 that is not subject to summary dismissal. As our court emphasized in In re Care & Treatment of Miles, 42 Kan. App. 2d 471, 476, 213 P.3d 1077 (2009), the rights available to persons confined under the Kansas Sexually Violent Predator Act are critical to the constitutionality of the entire statutory scheme. Merryfield’s issues here go to the heart of the program’s constitutionality. His liberty interest is manifest, and he contends — with sufficient basis to warrant an evidentiary hearing — that the treatment provided to him is so ineffective that it could never give him the help he would need to regain his freedom. A person like Merryfield, who has been involuntarily committed in a civil proceeding that explicitly recognizes that the detention may be for a long-term period — more than a decade so far for Merryfield — must be entitled to the assistance of counsel in the resolution of such substantial claims.
This result is supported by both due-process and equal-protection analysis. Courts have recognized a constitutional due-process right to counsel at all significant stages of the proceedings in states where there wasn’t a statutory right to counsel in the initial commitment stage. E.g., United States v. Abregana, 574 F. Supp. 2d 1123, 1140-41 (D. Hawaii 2008); Jenkins, 271 Va. at 16; State ex rel. Seibert v. Macht, 244 Wisc. 2d 378, 387-89, 627 N.W.2d 881 (2001). A K.S.A. 60-1501 petition must present a claim of constitutional mistreatment, and the failure to provide appropriate procedural rights for the presentation of such claims in Meriyfield’s circumstance would violate due process. We therefore conclude that when the K.S.A. 60-1501 claims of a civilly committed sexual predator are not subject to summary dismissal, counsel must be appointed to represent the petitioner. Merryfield’s claim that the treatment program is so poor that he will never regain his liberty is certainly among the most significant that could be brought by a person confined under the Kansas program for treatment of sexually violent offenders.
With respect to equal protection, we have already noted that the right to counsel in habeas cases is provided to persons civilly committed after being found guilty of certain offenses based on a claim of mental defect and to those civilly committed for general mental illness. The right to counsel in habeas cases is also provided in Kansas to inmates who have been imprisoned after felony convictions when their habeas motions under K.S.A. 60-1507 cannot be summarily dismissed. See K.S.A. 22-4506(b). In this situation, we are looking not at the different treatment needs or risk profiles of these groups; rather, we are looking at their ability to access the courts with the assistance of counsel. The legislature has not explicitly noted any difference between these groups with respect to their need for counsel to assist in presenting claims of unconstitutional confinement or treatment in court. With respect to assistance of counsel in presenting such claims, the legislature treats these groups differently: those who have been committed to the treatment program for sexual predators, those civilly committed for mental illness, and inmates convicted of felonies.
We will assume for purposes of our analysis that the most deferential equal-protection analysis — the rational-basis test — applies. Even under that test, however, we can discern no rational purpose for denying counsel to those in the sexual-predator treatment program while providing it to all of the others we’ve mentioned. Civilly committed sexually violent predators are constitutionally guaranteed more considerate confinement conditions than prisoners. Hendricks, 521 U.S. at 363. There is no rational basis for making it fundamentally more difficult for those committed to the sexual predator treatment program to seek court redress for unconstitutional conduct — including conduct that suggests the constitutionality of the entire program may be questioned — than other civilly committed individuals or inmates. See Macht, 244 Wisc. 2d at 387-89 (basing right to counsel in part on equal-protection analysis).
One provision in the Kansas Sexually Violent Predator Act, K.S.A. 59-29a06(b), provides a right to counsel “[a]t all stages of the proceedings” under that Act. But it’s unclear whether the issues Menyfield has raised here can be raised in those proceedings, which are focused on the mental condition of the person confined or proposed for confinement, not upon the treatment provided while confined. Either way, the existence of that statute also supports our equal-protection analysis. If the claims that Merryfield has brought in this K.S.A. 60-1501 petition could be raised during the annual review hearings provided under the Kansas Sexually Violent Predator Act, it would be unreasonable that Meriyfield could receive the assistance of counsel for such claims in that annual review hearing but not at any other time. More likely, because the annual review hearings are focused on the mental status of the person confined, the issues Merryfield has raised in his K.S.A. 60-1501 petition would not properly be considered during an annual review hearing. Yet these issues are integral to the constitutionality of the program, and — if his allegations are proved true — the annual review hearings would become an empty exercise. Again, there is no rational basis to deny a right to counsel in the K.S.A. 60-1501 proceeding in this circumstance, yet grant counsel for the annual review hearings.
III. The District Court’s Discovery Ruling Is Subject to Reconsideration on Remand.
Meriyfield also claims on appeal that the district court should not have dismissed his claims without first allowing discovery. The department did not respond to this point, but we have already determined that the case must be remanded for an evidentiary hearing. The district court denied Merryfield’s discoveiy request solely on the basis that Merryfield had not submitted a claim that survived summary dismissal, so the district court will have further opportunity to consider whether discovery will be allowed on remand.
We have held that ordinaiy civil discoveiy methods do not apply in the context of a habeas proceeding under K.S.A. 60-1507 in which an inmate is confined and the habeas action challenges the former criminal proceeding that resulted in imprisonment. See LaPointe v. State, 42 Kan. App. 2d 522, 550-51, 214 P.3d 684 (2009), rev. denied 290 Kan. 1094 (2010); see also Bankes v. Simmons, 265 Kan. 341, Syl. ¶ 1, 963 P.2d 412, cert. denied 525 U.S. 1060 (1998). But part of the basis for that rule is that the relevant facts are primarily tied to a record that had already been developed in the underlying criminal case, 42 Kan. App. 2d at 551, yet Merryfield’s challenge to his civil confinement involves his current treatment, not the record of a past proceeding. We express no opinion regarding whether formal discovery mechanisms like requests for documents or admissions may — or should — be granted to Merryfield on remand. That issue has not been briefed by the parties to this appeal.
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Hill, J.:
Introduction
Westar Energy, Inc. promised in its Articles of Incorporation to advance attorney fees and expenses reasonably incurred by its officers and directors charged with a crime, sued, or the subject of a criminal or administrative investigation. If the company failed to make the advances within 30 days of the request and an officer or director was thereby forced to come to court to enforce this right of advancement, Westar promised to pay the expenses of that lawsuit as well. Westar breached this contract when it failed to advance fees reasonably incurred by David C. Wittig arising from his federal criminal prosecution. We affirm the district court’s discretionary ruling here that Wittig’s counsel was entitled to a higher rate of compensation than Westar advanced because the court carefully assessed each factor found in Kansas Rule of Professional Conduct 1.5(a) (2009 Kan. Ct. R. Annot. 460) when it made the fee determination. We reverse the court’s decision to dismiss Wittig’s breach of contract claim based on its conclusion that Westar was entitled to a second chance to comply with its contractual obligation because the company had paid some money to Wittig’s lawyers. The court’s conclusion rendered the contract meaningless and therefore was improper. Finally, we remand the matter to the district court for a determination of the costs of this action the court must assess against Westar because Wittig was successful in his action.
We give a brief review of the facts.
In December 2003, a federal grand jury indicted David C. Wittig for allegedly defrauding Westar Energy, Inc., a Kansas corporation. The United States began his prosecution in United States v. Wittig and Lake, 03-40142-JAR, a case that is awaiting a third trial. Wittig was the former Chief Executive Officer and Chairman of the Board of Directors of Westar when the grand jury handed down the indictment.
Based on the conditional grant of indemnity in Article XVIII(2)(a) of its Articles of Incorporation, Westar advanced legal fees and other costs incurred by Wittig in his defense. That article created a contract obligating Westar to advance legal fees and associated expenses reasonably incurred by its officers and directors in any criminal or civil action, or investigation or administrative proceeding arising from their role with the corporation. The corporation made these advances after Wittig signed a promise to repay any amounts advanced if it was later decided he was not entitled to indemnity from the corporation. Eventually, Westar disputed the fees it was paying and filed a lawsuit in the district court of Shawnee County, seeking declaratory judgment relief, setoff, and damages for breach of contract. In that lawsuit, the district court finally, by declaratory judgment, ruled that Westar could advance fees at a more reasonable hourly rate that was lower than that requested by Wittig’s Washington, D.C., law firm, Piper Rudnick. Also, the court dismissed Westar’s breach of contract claim and request for setoff. It ruled such requests were premature and held those claims must be litigated after the underlying legal action has ended and the parties have determined whether Wittig must repay any of the advances. The court’s ruling in that case is on appeal before this court in Westar Energy, Inc. v. Wittig, 44 Kan. App. 2d 182, 235 P.3d 515 (2010). But the court’s ruling did not end Wittig’s need for more advances.
Wittig retained Paula Junghans to represent him in his third criminal trial. She was formerly with the law firm of Piper Rudnick and is now in the Zuckerman Spaeder LLP firm in Washington, D.C. Between January 2007 and August 2008, Zuckerman Spaeder presented bills to Westar for work done on Wittig’s case. At the time, Junghans billed at a rate of $625-$675 per hour. Westar, however, only paid advances based on what the corporation thought was a reasonable hourly rate of $395 for Junghans. Because of Westar’s reluctance to pay the full rate, Wittig decided to sue.
Therefore, Wittig filed a petition in Shawnee County District Court in February 2008, claiming Westar breached its contract to pay his reasonably incurred legal fees and expenses when it failed to advance full payment for services rendered by Zuckerman Spaeder. Wittig requested an award of “the full amount of all unpaid attorneys’ fees and expenses.” Wittig also claimed Westar was liable for the fees and expenses he incurred to enforce his right to ad vancement, or “fees on fees.” Finally, Wittig asked the court for a declaratory judgment holding the contract required Westar to advance the fees he incurred in the third trial at the normal hourly rates charged by his nonlocal counsel. Wittig received partial relief.
First, the district court held it was not reasonable to require Westar to advance significantly higher hourly rates for nonlocal attorneys than those charged by white-collar criminal defense attorneys in the greater Kansas City area for similar services. The court did agree with Wittig, however, that under the circumstances, it was reasonable to advance a higher hourly rate than Westar was then paying for Junghans’ services. Then, after reviewing all the KRPC 1.5(a) factors, the court declared as reasonable $425 per hour for Junghans’ services in 2007; $450 per hour in 2008; $475 per hour for 2009; and $500 per hour for 2010. Alter making this ruling, the court moved on to Wittig’s breach of contract claim.
On the breach of contract claim, the court held the plain and unambiguous language in Westar’s Article of Incorporation XVIII(2)(a) only obligated Westar to advance reasonably incurred fees and expenses. Dismissing Wittig’s contract claim, the court reasoned the corporation was not ignoring its contractual obligation to advance fees and expenses, but Westar and Wittig had a legitimate dispute over what rate was reasonable. The court noted that Westar had made advancement at an hourly rate it believed to be reasonable. The court stated that although a dispute over the reasonableness of rates was proper for declaratory judgment, this did not mean Westar breached a contractual obligation by not paying at the rate charged by the law firm. The court also noted an advancement action offers but interim relief and any breach of contract claim could and should be resolved after the end of the underlying criminal case in federal court. Here, the district court was trying to make this ruling consistent with its ruling in the lawsuit brought by Westar. After that, the court addressed Wittig’s request for fees.
On Wittig’s request for “ fees on fees,’ ” the court cited the language of Article of Incorporation XVTII(2)(b):
“If a claim under paragraph (a) of this Section is not paid in full by the Corporation within thirty days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim.”
The court dismissed Wittig’s claim for “fees on fees.” It noted that Westar had advanced all the fees incurred by Wittig’s Kansas City, Missouri, law firm during the third trial and had indeed advanced Junghans’ fees at a rate of $395 per hour. Even though the court recognized the advances to Junghans represented only 93 percent and 88 percent of the amounts the court had declared as reasonable during 2007 and 2008, it ruled Westar had no contractual obligation to advance fees at a rate determined to be unreasonable. The court found the hourly rates charged by Junghans excessive and it would not enter a monetary judgment based on a declaratory judgment unless a petition for further relief was filed. The court concluded that under Article XVIII(2)(b), Wittig was required to make a written claim in order to give Westar the opportunity to advance additional sums to fulfill its obligation determined by the court in the declaratory judgment. The court said that if Westar failed to advance an amount consistent with its declaration, Wittig could then file a petition for further relief and then request “fees on fees.”
The court wrongly ruled Westar did not breach its contract with Wittig.
Wittig claims the district court erred in dismissing his breach of contract claim for two reasons. First, Wittig’s contract claim was not comparable to Westar’s claim for recoupment or setoff made in the prior case. Second, the district court’s own analysis showed Westar breached its contractual obligation by fading to advance the hourly rate judged reasonable by the court. We address this issue and hold that Wittig is correct and the court should not have dismissed his breach of contract claim. Therefore, we must reverse and remand the matter to the district court. But first, we note our standard of review and then review the parties’ contract.
We exercise unlimited review of this segment of the appeal. The interpretation and legal effect of a written contract are matters of law over which an appellate court has unlimited review. Conner v. Occidental Fire & Cas. Co., 281 Kan. 875, 881, 135 P.3d 1230 (2006). “Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect. [Citation omitted.]” Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 763, 27 P.3d 1 (2001).
Also, since the court here granted summary judgment, and there are no disputed material facts, deciding whether Westar breached the contract is a question of law and is a proper subject for summary judgment. See City of Topeka v. Watertower Place Dev. Group, 265 Kan. 148, 154, 959 P.2d 894 (1998). Additionally, where there are no disputed facts and an appellate court is required to interpret and give legal effect to a written contract, appellate review of a summary judgment order is de novo. Katzenmeier v. Oppenlander, 39 Kan. App. 2d 259, 263, 178 P.3d 66 (2008). Following these rulings, we exercise unlimited review of this aspect of the case. We move now to the contract.
Article XVIII(2)(a) of Westar’s Articles of Incorporation creates the contract between the parties and provides:
“Each person who was or is made a party ... to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative ... by reason of the fact that he or she ... is or was a director or officer ... of the Corporation . . . shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the Kansas General Corporation Law... against all expense, liability and loss (including attorneys’ fees . . .) reasonably incurred or suffered by such person in connection therewith .... The right to indemnification . . . shall be a contract right and shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition: provided, however, that, if the Kansas General Corporation Law requires, the payment of such expenses ... in advance of the final disposition of a proceeding . . . shall be made only upon delivery to the Corporation of an undertaking ... to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Section or otherwise.”
Wittig therefore executed and delivered an Undertaking to Westar stating:
“I, David C. Wittig, hereby agree that I will immediately repay Westar Energy, Inc. (“Westar”) any payment it has advanced to me to cover my reasonable attorney’s fees and other expenses in connection with cases brought against me ... in the event it is ultimately determined . . . that I am not entitled to be indemnified by Westar
In our view, there is no question that Westar breached its contract with Wittig. We base our view on the finding of the district court that Junghans is entitled to an hourly rate of compensation greater than that advanced by Westar for each year she has worked on the case. From a common-law perspective, we note Black’s Law Dictionary 213 (9th ed. 2009) defines “breach of contract” as a “[violation of a contractual obligation by failing to perform one’s own promise.” Here, Westar failed to keep its promise when it did not advance fees reasonably incurred. By not advancing those fees, the corporation was liable for breach of contract.
The district court mistakenly analyzed Wittig’s claim by focusing on his request for “full” payment of Zuckerman Spaeder’s bill. Even though Wittig sought “full” payment — language chosen as a matter of strategy — the district court did recognize in its findings that Westar failed to advance the full amount for which it was hable. Thus, Westar did not keep its promise of advancing fees and expenses reasonably incurred. Therefore, the district court was not justified in refusing to consider Wittig’s breach of contract claim.
Furthermore, the district court erred when it refused to consider the breach of contract claim based on the interim nature of an advancement proceeding. We agree that usually, in such an action, resolution of the advancement request does not require the court to examine the merits of the case or make a determination of the right to indemnification. But that does not mean that a party claiming the right to advancement cannot also request damages under a breach of contract theory. A quick review of some cases from Delaware is helpful here, because Delaware court rulings have historically been a source of instruction for our Supreme Court on matters of corporate law since our corporate code is modeled on the Delaware code. See Kansas Heart Hospital v. Idbeis, 286 Kan. 183, 197, 184 P.3d 866 (2008).
First, in Homestore, Inc. v. Tafeen, 888 A.2d 204 (Del. 2005), a former corporate officer, Tafeen, sued for advancement of expenses and attorney fees arising from several civil lawsuits and an investigation by the Securities and Exchange Commission and the Department of Justice. The Delaware Supreme Court explained, “[indemnification encourages corporate service by capable individuals by protecting their personal financial resources from depletion by the expenses they incur during an investigation or litigation that results by reason of that service.” 888 A.2d at 211. The court went on to point out that, “[t]he right to indemnification cannot be established, however, until after the defense to legal proceedings has been ‘successful on the merits or otherwise.’ [Citations omitted.]” 888 A.2d at 211. But the court carefully contrasted the right of advancement.
Advancement, according to the Delaware Supreme Court in Homestore, “is an especially important corollary to indemnification as an inducement for attracting capable individuals into corporate service. Advancement provides corporate officials with immediate interim relief from the personal out-of-pocket financial burden of paying the significant on-going expenses inevitably involved with investigations and legal proceedings.” 888 A.2d at 211. Even though advancement and indemnification are corollary, under Delaware law they involve separate and distinct legal actions. The right to advancement is not dependent on the right to indemnification. 888 A.2d at 212. In fact, “[t]he limited and narrow focus of an advancement proceeding precludes litigation of the merits of entitlement to indemnification for defending oneself in the underlying proceedings.” 888 A.2d at 214.
Next, in Citadel Holding Corp. v. Roven, 603 A.2d 818 (Del. 1992), the Delaware Supreme Court ruled, in a case involving an agreement similar to the contract found in Westar’s Articles of Incorporation, “the corporation’s obligation to pay expenses is subject to a reasonableness requirement.” 603 A.2d at 823. Citadel was not required to advance unreasonable expenses but was required to advance reasonable ones. 603 A.2d at 823-24. An advancement proceeding is not a corporate blank check. Fasciana v. Electronic Data Systems Corp., 829 A.2d 160,175 (Del. Ch. 2003). Nonetheless, in the breach of contract portion of the lawsuit, the Delaware Supreme Court held that Roven was entitled to prejudgment interest because Citadel had failed to advance reasonable attorney fees to him. The Delaware Supreme Court ruled that if it is later determined that Roven was not entitled to corporate indemnity, he would then have to repay all sums advanced to him in his defense, including any prejudgment interest paid by Citadel. 603 A.2d at 826.
Going further, the district court here failed to appreciate the fundamental difference between the breach of contract claim made by Westar in its lawsuit against Wittig and Wittig’s breach of contract claim against Westar in this action. In its case, Westar sought recoupment of money it had already advanced. In that case, the district court correctly ruled that such an action was premature and must come later when it is decided if Wittig is entitled to corporate indemnity. That determination can come only after the underlying criminal action against Wittig is final. One reason for ruling so in that case is because an advancement proceeding is to provide immediate interim relief to an officer or director seeking relief or the right to advancement is effectively denied. But that is not the only reason to rule in such a way. Simply put, Westar effectively contracted to bear the risk of nonpayment of expenses and legal fees if Wittig is not entitled to indemnity. See Fasciana, 829 A.2d at 175. In Westar’s case, if Wittig is not entitled to indemnity, then he will have to repay all sums advanced in his defense. That differs from the breach of contract claim Wittig raises here.
In contrast, Wittig’s breach of contract claim arises from a second provision of Westar’s Articles of Incorporation as well as the Article quoted above. Article XVIII(2)(b) gives force to the promise of Westar to advance defense expenses:
“If a claim under paragraph (a) of this Section is not paid in full by the Corporation within thirty days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim.”
Clearly, this Article is intended to discourage the corporation from refusing to pay the fees and expenses it is obligated to pay under Article XVIII(2)(a). In other words, Westar has promised to advance the defense expenses reasonably incurred and has promised to do so promptly. In our view, these promises do not depend on an initial determination of corporate indemnity to be enforced. Just as the claimants in Citadel and Fasciana, Wittig can pursue his breach of contract claim. Westar has contracted to assume this risk as well. We move on to the related question of “fees on fees.”
The district court should consider Wittig’s claim for “fees on fees. ”
The next issue is not complex. Wittig argues that since Westar did not pay Wittig’s advancement request in full and the district court later agreed that Westar had not fully paid Wittig’s defense fees and expenses reasonably incurred, then he was successful in part. This means, in his view, he is entitled to “fees on fees” for the expense of prosecuting this claim. With the district court’s finding that Junghans’ compensation should have been higher than what Westar was advancing, Wittig was, indeed, partially successful. Therefore, because of the plain language of the parties’ contract we must reverse and remand this matter.
This issue requires this court to interpret and enforce the language of Article XVIII(2)(b) of Westar’s Articles of Incorporation. Once again, contract interpretation is a question of law subject to our unlimited review. Wichita State Univ. Intercollegiate Athletic Ass’n v. Marrs, 29 Kan. App. 2d 282, 283, 28 P.3d 401 (2001). This court is not bound by the district court’s interpretation of a contract and may independently construe its meaning and determine the legal effect of the agreement. Furthermore, there is no dispute here about the facts.
It is clear under the plain language of Article XVIII(2)(b) that Wittig should have been awarded “fees on fees.” Zuckerman Spaeder (on Wittig’s behalf) presented a claim to Westar under Article XVIII(2)(a) for advancement. Westar did not advance the full claim. When Wittig brought this suit to recover what Westar failed to advance, he was successful in part, because the district court held Westar should have advanced an hourly rate for Junghans greater than that advanced by Westar. Thus, Westar was entitled to the “fees on fees” he incurred while prosecuting this claim.
The district court’s denial of this request simply ignores the plain meaning of the contract. The court essentially reasoned that because Westar had not completely ignored its contractual obligation and advanced some amount, then Westar deserved a second chance to advance the appropriate amount. That rationale ignores the purpose of Article XVIII(2)(b). Article XVIII(2)(b) is intended to discourage the corporation from refusing to pay the fees and expenses it has obligated itself to pay. That provision of the Articles promotes the underlying policy of encouraging people to enter corporate service. If Westar fails to make the allowances of fees and expenses reasonably incurred and Wittig has to go to court and is successful in whole or in part, then under the contract, he is entitled to recover his expenses for bringing that suit. No other interpretation of “if successful in whole or in part” makes sense. The allowance of “fees on fees” is simply the remedy provided in Westar’s Articles for any lack of diligence by Westar in making advances. If we fail to enforce that part of the contract, we render that provision meaningless.
Further, Westar’s arguments on this point are unconvincing. The corporation argues first that Wittig was not entitled to “fees on fees” because he was not awarded the full amount billed by Junghans. This argument overlooks the fact that a claimant is entitled to “fees on fees” if he or she is successful “in whole or in part.” Although the court dismissed Wittig’s contract claim, it nevertheless found in Wittig’s favor, in part, by finding Westar should have advanced an hourly rate greater than that advanced by Westar. Even though the district court may not have made a damage award but merely made a declaration, Wittig was nevertheless successful in part.
Next, Westar argues Wittig’s declaratory judgment claim does not trigger the “fees on fees” provision because his claim was not a “ ‘suit’ ” to recover an unpaid amount. Black’s Law Dictionary 1572 (9th ed. 2009) defines “suit” as “[a]ny proceeding by a party or parties against another in a court of law.” In our view, when a plaintiff files a petition in the district court asking the court to make a declaratoiy judgment and also decide a breach of contract claim between the plaintiff and the defendant, the plaintiff has filed suit. K.S.A. 60-1701 states that courts shall have the power to declare the rights, status, and other legal relations of a party whether or not further relief is or could be sought. The statute provides that such declarations shall have the force and effect of a final judgment. There is no question that Wittig filed suit in the district court to recover an unpaid advancement. The contract provision for “fees on fees” was activated here when the district court exercised its discretion and ruled larger fees should have been advanced by Westar to Junghans. We turn now to that ruling.
The district court properly exercised its discretion in deciding reasonableness.
The district court did not grant Wittig everything he wanted. Instead, the court ruled that Westar should have advanced fees at an hourly rate greater than it did but lower than what was billed. In this appeal, then, Wittig argues the district court failed to take into account the parties’ conduct, denied the parties the benefit of their bargain, and incorrectly focused its analysis on KRPC 1.5(a) (2009 Kan. Ct. R. Annot. 460). To the contrary, we hold there is no abuse of discretion here because our Supreme Court deems trial judges as experts on attorney fees, and the trial judge here, while making a reasonableness determination, meticulously examined all of the factors found in KRPC 1.5(a), a methodology approved by our Supreme Court. But first, we review the principles of law on awarding attorney fees in Kansas and then focus on the law of corporate indemnity and advancement. After that, we review the findings of the district court concerning the reasonableness of the fees requested for advancement here to see if they are supported by substantial competent evidence.
In Kansas, attorney fees cannot be granted by a court in the absence of statutory authority or an agreement by the parties calling for an award. See Rensenhouse v. Bauer, 33 Kan. App. 2d 148, 150, 98 P.3d 668 (2004). In this case, the interpretation of Article XVIII(2)(a) — specifically the interpretation of the phrase “reasonably incurred” — is at issue. The interpretation and legal effect of a written instrument is a matter of law over which this court exercises unlimited review. Unrau, 271 Kan. at 763. Regardless of the construction given a written contract by the district court, this court may construe a written contract and determine its legal effect.
Nevertheless, once it is determined that the district court had authority under an agreement to grant attorney fees, the district court’s decision is reviewed under an abuse of discretion standard. Tyler v. Employers Mut. Cas. Co., 274 Kan. 227, 242, 49 P.3d 511 (2002). The district court has wide discretion to determine the amount and recipient of attorney fees. In re Marriage of Burton, 29 Kan. App. 2d 449, 454, 28 P.3d 427, rev. denied 272 Kan. 1418 (2001). An award of attorney fees will not be set aside on appeal when supported by substantial competent evidence. The district court abuses its discretion when no reasonable person would take the view adopted by the district court. State v. Moses, 280 Kan. 939, 945, 127 P.3d 330 (2006). To be clear, in this case, this court has unlimited review over the district court’s interpretation of the phrase “reasonably incurred.” The court then evaluates the district court’s decision to reduce the hourly rate billed by Junghans for an abuse of discretion. We now briefly review the principles of corporate indemnity and advancement law. For a more extensive treatment of the subject we refer the reader to our opinion in Westar v. Wittig, 44 Kan. App. 2d 182.
The Kansas Legislature created a public policy to encourage worthy individuals to accept positions of responsibility with corporations as directors and officers by enacting K.S.A. 17-6305. That law permits corporations to provide those officers indemnity from the costs associated with civil, criminal, and administrative actions as well as investigations. Thus, such officers and directors are free to make good-faith decisions without fear of penalty. At the same time, the legislature created a permissive right to advance those fees before the underlying action or investigation is complete. What the legislature made permissive by law, Westar made mandatory by its Articles of Incorporation.
Such a mandatory right was created here by Westar in Article XVIII(2)(a) of its Articles of Incorporation. Therefore, Wittig is entitled to advancement of attorney fees and expenses reasonably incurred by him in his prosecution. Both parties admit the Articles of Incorporation create a contract binding on each. But Westar did not agree to a corporate blank check for any amounts requested by Wittig.
We apply to this appeal the general principles found in the Delaware cases previously cited, Homestore, Inc. v. Tafeen, 888 A.2d 204; Citadel Holding Corp. v. Roven, 603 A.2d 818; and Fasciana v. Electronic Data Systems Corp., 829 A.2d at 175. An advancement action determines both entitlement to and the reasonableness of the fees and expenses requested. Therefore, we conclude that the district court had the authority to determine the reasonableness of Wittig’s requests for advancement of Junghans’ fees. Accordingly, we move on to examine more closely the rulings of the district court on this point.
The district court held that the hourly rates charged by Junghans were unreasonable in light of KRPC 1.5(a). The court therefore declared a reasonable hourly rate less than that billed by Junghans for each year between 2007 and 2010.
KRPC 1.5(a) states:
“The factors to be considered in determining the reasonableness of a fee include the following:
“(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
“(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
“(3) the fee customarily charged in the locality for similar legal services;
“(4) the amount involved and the results obtained;
“(5) the time limitations imposed by the client or by the circumstances;
“(6) the nature and length of the professional relationship with the client;
“(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
“(8) whether the fee is fixed or contingent.”
Examining each factor, the court first found Wittig’s criminal case was clearly complex in nature and continued to require a significant amount of time and labor. The court found that although the case did not involve a federal tax charge, it still involved difficult questions and required a substantial amount of skill.
Second, the court found it reasonable to conclude that Junghans was precluded from working on other legal matters while working on Wittig’s case.
Third, the court defined “ ‘locality’ ” as the greater Kansas City metropolitan area. The court concluded — based on its knowledge and the evidence presented by the parties and the evidence presented in Westar’s lawsuit against Wittig — that local attorneys with expertise in white-collar criminal defense charge substantially lower hourly rates than those charged by attorneys with similar experience in Washington, D.C. The court noted that the hourly rate of James Eisenbrandt, a “very experienced and well-respected member of the white collar criminal defense bar in the greater Kansas City area,” was $400 in 2008. The court similarly noted that Jeff Morris (a Berkowitz Oliver attorney) billed at a rate of $350 per hour in 2008. The court contrasted these rates to the $675 hourly rate charged by Junghans, who had 8 years less experience than Eisenbrandt. The court noted that Eisenbrandt and Morris were providing similar services to the same client in the same case.
Fourth, the court found the criminal case against Wittig involved significant penalties-and the outcome was extremely important to Wittig. The court also recognized the importance of the outcome to the employees, shareholders, and ratepayers of Westar and the United States. The court noted that Wittig’s first trial ended in a mistrial and the admonishment of his attorneys, including Junghans. The court also noted that Wittig was convicted of all charges in his second trial but that these convictions were reversed and a third trial will be set. The court therefore concluded that the results obtained were mixed.
Fifth, the court found Wittig’s attorneys were required to meet deadlines set by the judge but did not appear to be limited in time or expense by Wittig. The court noted that it was unknown whether Wittig would have set such limits had Westar not contractually agreed to advance fees and expenses.
Sixth, the court noted that Junghans became involved in Wittig’s case while at Piper Rudnick. The court found that although Junghans was not able to personally attend the second trial, she continued to be active in Wittig’s defense since December 2002 and would serve as trial counsel in the third trial.
Seventh, the court commented on Junghans’ expertise in the defense of complex criminal tax cases and good professional rep utation. Nevertheless, the court recognized the behavior observed in the first criminal trial.
Finally, the court noted the case was neither a fixed nor contingency fee case.
Obviously, the district court determined that Junghans’ hourly rates were unreasonable in tight of KRPC 1.5(a). Our Supreme Court has urged consideration of the KRPC 1.5(a) factors to determine the reasonableness of attorney fees. See Davis v. Miller, 269 Kan. 732, 751, 7 P.3d 1223 (2000). The district court analyzed and discussed each factor at length. We note that Wittig does not dispute the district court’s analysis or the factual basis of any of these factors. We agree. There is no basis for concluding the district court abused its discretion in this regard. But instead of arguing an abuse of discretion, Wittig contends he was denied the benefit of his bargain by the district court and since the court used KRPC 1.5(a), it did in fact use extrinsic evidence to make its judgment and, therefore, it erred when it failed to take into account the conduct of the parties. We look at the conduct argument first.
In Wittig’s view, Westar’s conduct demonstrated the interpretation the parties placed upon this contract. He correctly points out that initially Westar paid the advances without question, in the amounts requested, and at the rates charged. He argues in this appeal that interpretation should be enforced by the court. Wittig sets forth numerous cases to support the idea that contracting parties’ acts and conduct must be considered in order to ascertain the intent of an agreement. These cases are unpersuasive because each involves the court’s interpretation of an ambiguous contract. See Universal Motor Fuels, Inc. v. Johnston, 260 Kan. 58, 63, 917 P.2d 877 (1996) (noting where ambiguity or uncertainty of contract is involved, intent of the parties is not ascertained by resort to literal interpretation); Akandas, Inc. v. Klippel, 250 Kan. 458, 464-65, 827 P.2d 37 (1992) (stating general principle that intent of the parties is primaiy, but that meaning should be ascertained by examining four corners of document); Heyen v. Hartnett, 235 Kan. 117, 123-24, 679 P.2d 1152 (1984) (court construed ambiguous deed); First Nat’l Bank of Olathe v. Clark, 226 Kan. 619, 624-25, 602 P.2d 1299 (1979) (where contract is ambiguous, trial court properly permitted introduction of parol evidence to explain ambiguities); Embree v. Koelsch, 154 Kan. 570, 573, 119 P.2d 533 (1941) (where contract was ambiguous in terms, mode adopted by parties was properly used as guide in construing contract); Fire Association v. Taylor, 76 Kan. 392, Syl. ¶ 2, 91 Pac. 1070 (1907) (stating where language is susceptible of two or more meanings — i.e., ambiguous — court must ascertain the intent of parties); and Sun-Times Media Group, Inc. v. Black, 954 A.2d 380, 398 (Del. Ch. 2008) (stating when terms of agreement are ambiguous ‘ “any course of performance accepted or acquiesced in without objection is given great weight in the interpretation of the agreement” ’). These cases do not persuade us because the contract here was not ambiguous. Because the district court found no ambiguity in the contract, it was not required to look to extrinsic evidence such as the parties’ course of conduct to determine the reasonableness of the fees and expenses requested. Moving on, we look at Wittig’s argument about the court’s use of KRPC 1.5(a).
In this appeal, Wittig argues that the court itself looked to an extrinsic source — the KRPC — because the Articles neither define nor provide guidance on the meaning of the phrase “reasonably incurred,” which he deems an indefinite, ambiguous phrase. The Rules of Professional Conduct are not extrinsic evidence. Simply put, the rules are a reference the court may consider to aid in its analysis of attorney fee requests. Their use is a methodology approved by our Supreme Court when assessing fees, even those arising from a contract. See Davis v. Miller, 269 Kan. at 751. The conduct of the parties is, however, evidence extrinsic to the Articles. We turn now to Wittig’s contention about the benefit of the bargain.
Wittig claims that the district court failed to consider the benefit of the bargain. As we pointed out in Westar’s lawsuit against Wittig, the district court did recognize the promises Wittig made to repay if he was not entitled to indemnity and the Westar Article of Incorporation promising indemnity and advancement made it clear that the bargain here was for Westar to advance reasonable attorney fees and expenses and not pay all fees. The parties’ bargain here did not create an unconditional right to advancement, or a corporate blank check. The district court did explain that the purpose of a contractual attorney fee agreement is to give the parties the benefit of the bargain and went on to acknowledge the courts’ responsibility to enforce that bargain. Also, the court acknowledged that an attorney and sophisticated client should have freedom to contract for higher fees than those customarily charged in Kansas. The district court did not ignore Wittig’s argument on this point, it simply rejected it, as do we.
The district court computed a reasonable hourly rate to use in determining the advance to Junghans. The court considered each KRPC 1.5(a) factor and clearly explained its rationale for an adjustment based on its findings. Substantial competent evidence supports its findings. We cannot say the district court abused its discretion in doing so.
Conclusion
A portion of the district court’s rulings in this case must be reversed and remanded while a second portion must be affirmed.
• The district court’s dismissal of Wittig’s breach of contract claim must be reversed based upon the plain language of the parties’ contract. When the district court decided that Westar had not advanced Wittig’s reasonably incurred expenses, it implicitly found Westar had breached its contract. Since this right of advancement is not conditioned upon the right of indemnity, Wittig can pursue the claim now. But any additional amounts he might obtain for the breach may have to be repaid to Westar if it is later determined that he is not entitled to indemnity.
• The “fees on fees” provision of Article XVIII(2)(b) was triggered here when Westar failed to advance Wittig’s reasonably incurred fees within 30 days and a lawsuit had to be filed to enforce his right to advancement. We must reverse the district court’s ruling on this point, as it renders this provision of the Articles meaningless.
We affirm the district court’s discretionary ruling determining the reasonableness of the fees requested for advancement. The court assessed all of the factors in KRPC 1.5(a). Its findings are supported by substantial competent evidence.
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Marquardt, J.:
Delarick Evans appeals the district court’s denial of his 2008 pro se motion for relief from his requirement to register as a sex offender. We affirm.
On May 9,1997, Evans was charged with lewd fondling or touching a child under 14 years of age with intent to arouse or satisfy his sexual desires. On November 23, 1998, Evans pled guilty to two counts of aggravated indecent liberties with a child, which were severity level 3 person felonies. See K.S.A. 21-3504(a)(3)(A) (Furse), The district court sentenced Evans on January 7,1999, to 49 months in prison with 36 months’ postrelease supervision. At sentencing, Evans was granted 261 days’ jail time credit; however, he was required to register as a sex offender for a period of 10 years after parole, discharge, or release. See K.S.A. 22-4906(a)(l) (Furse).
On December 16, 2008, Evans filed a pro se motion for relief from his requirement to register as a sex offender, claiming he fulfilled his obligation under K.S.A. 22-4912(a).
On February 20, 2009, the district court summarily denied Evans’ motion finding that under the version of the Kansas Offender Registration Act (KORA), in effect at the time of his crimes, K.S.A. 22-4901 et seq. (Furse), Evans was required to register as a sex offender for a period of 10 years after parole, discharge, or release. However, under the 2007 version of the KORA, Evans was required to register throughout his lifetime. See K.S.A. 22-4906(d)(3) and K.S.A. 1999 Supp. 22-4902(b) and (c)(3). After quoting K.S.A. 22-4912(a), the district court denied Evans’ motion, stating that the statute “provides relief from registration only if the offender would not have been required to register after the 1999 amendment” to the KORA. Evans timely appeals.
On appeal, Evans contends the district court failed to consider K.S.A. 22-4912(a) when it denied his motion for relief from registering as a sex offender without a hearing. Resolution of this issue requires interpretation of K.S.A. 22-4912(a). Interpretation of a statute raises a question of law over which this court has unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
An appellate court must attempt to ascertain the legislature’s intent by giving ordinary words their ordinary meaning. State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232, Syl. ¶ 2 (2007). When a statute is plain and unambiguous, an appellate court does not speculate about the legislature’s intent and will not read into the statute something not readily found in it. The court will resort to statutory construction, legislative history, or other considerations only if the language of the statute is unclear or ambiguous. State v. Trautloff, 289 Kan. 793, 796, 217 P.3d 15 (2009).
“ ‘It is also well established that the doctrine of liberal construction does not allow this court to delete vital provisions or supply vital omissions in a statute. No matter what the legislature may have really intended to do, if it did not in fact do it, under any reasonable interpretation of the language used, the defect is one which the legislature alone can correct.’ ” State v. Johnson, 289 Kan. 870, 879, 218 P.3d 46 (2009) (quoting Eveleigh v. Conness, 261 Kan. 970, 978, 933 P.2d 675 [1997]).
Evans claims the district court failed to comply with K.S.A. 22-4912(a) when it did not hold an evidentiary hearing so that he could present evidence verifying that he no longer satisfied the definition of “sex offender.” Research has revealed no Kansas case that has interpreted K.S.A. 22-4912.
The relevant portion of K.S.A. 22-4912(a) provides:
“Any offender who was required to be registered pursuant to the [KORA], prior to July 1,1999, and who would not have been required to be registered pursuant to the [KORA] on and after July 1,1999, as a result of enactment of this act, shall be entitled to be relieved of the requirement to be registered. Such offender may apply to the sentencing court for an order relieving the offender of the duty of registration. The court shall hold a hearing on the application at which the applicant shall present evidence verifying that such applicant no longer satisfies the definition of offender pursuant to K.S.A. 22-4902 and amendments thereto.” (Emphasis added.)
Evans claims that under K.S.A. 22-4912(a), he was entitled to a hearing on his motion. Evans, however, ignores the first two sentences of the statute. The plain and unambiguous language of the statute allows an offender who was required to register under the pre-July 1999 version of the KORA, but was not required to register under the July 1, 1999, version of the KORA, to apply for an order relieving that offender from the requirement of registering as a sex offender. See K.S.A. 22-4912(a).
Here, bodi the pre-July 1999 version and the July 1, 1999, version of K.S.A. 22-4912(a) required Evans to register as a sex offender. Because both versions of the KORA required Evans to register as a sex offender, Evans is not “[s]uch offender” that can apply to the sentencing court for an order relieving him of his duty to register under K.S.A. 22-4912(a). The district court did not err in refusing to grant Evans a hearing on his motion for relief from registering as a sex offender.
At oral argument, Evans’ counsel claimed for the first time that he believed Evans meant to argue his motion under K.S.A. 22-4906. This is not only a new issue on appeal, it was not briefed. Ordinarily this court will not entertain such an issue. State v. Martin, 285 Kan. 994, 998, 179 P.3d 457, cert. denied 555 U.S. 880 (2008).
Under the facts available in the record on appeal, Evans could have been released from prison at the earliest in 2002. The 10-year registration requirement would not expire until 2012. However, we note that Evans is serving a prison sentence currently for another conviction. It is unclear from the scant record on appeal when, or if, he would be released. At any rate, the law has changed since his conviction, and now the registration requirement for Evans is for his lifetime. See K.S.A. 22-4906(a), (d)(3).
In State v. Myers, 260 Kan. 669, 696, 923 P.2d 1024 (1996), cert. denied 521 U.S. 1118 (1997), our Supreme Court held the KORA “registration requirement does not impose punishment; thus, our ex post facto inquiry as to registration ends.” This language suggests that the KORA’s 2007 amendments are retroactive. Because the registration requirement is not punishment and does not violate the Ex Post Facto Clause of the Constitution, any person who has been convicted of any of the offenses listed in K.S.A. 22-4906(d) is now required to register for that person’s lifetime regardless of whether the crime occurred before the legislature amended the KORA. It follows then that any amendments not imposing punishment are also retroactive.
Under the current law, Evans will never be relieved from the requirement to register as a sex offender.
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Greene, J.:
Robert Thornburg, as special administrator of the estate of Rylcer J. Schweitzer, and Kristy Schweitzer, Ryker s mother and administrator of the estate (collectively referred to as the administrators), appeal the district court’s summary judgment against them on their attempt to garnish Bremen Farmers Mutual Insurance Company (Bremen) for the administrators’ default judgment against Ryker’s father, Brian Schweitzer, in an action for the wrongful death of 7-year-old Ryker, who was killed by a female mastiff that was part of the family’s English Mastiff business operated at their home in Morrill, Kansas. The district court determined that Bremen’s policy provided no coverage for the incident, but the court refused to award attorney fees and costs to Bremen under K.S.A. 60-211. Before us in this appeal are the coverage question and the propriety of the court’s denial of costs and fees under these circumstances. We affirm the summary judgment against the administrators, but we vacate the order denying costs and attorney fees and remand with directions.
Factual and Procedural Background
Kristy and Brian Schweitzer operated an English Mastiff dog business out of their home in Morrill, Kansas. On September 5, 1997, the Schweitzers adopted a son, Ryker, who was 7 years old at the time of the incident leading to his death. Ryker died on July 27, 2004, from a cervical fracture as a result of being mauled by a female mastiff at the Schweitzer home.
At the time of Ryker’s death, the Schweitzers were insured by a homeowners’ policy adapted for farms, issued by Bremen, and characterized as an “Agri-Pak” policy. Following Ryker’s death, Kristy’s attorney sent a demand letter to Bremen, alleging that Ryker had been fatally wounded by the family dog and that Brian was negligent in the maintenance of the dog and its kennel and making a demand of $2 million. Bremen assigned the claim to Heartland Adjustment, Inc., an independent adjusting company. Sam Vigare, an employee and independent adjuster for Heartland, investigated the claim. During his investigation, Vigare obtained a copy of a forensic odontology report which indicated that the wounds to Ryker were “ Very probably caused’ ” by the Schweitzers’ female mastiff. Vigare also took a recorded statement from Brian.
On May 6, 2005, Steve Meier, a vice-president and claims manager of Bremen, sent a letter to Brian and Kristy informing them that their policy contained no liability coverage for the negligence claim against Brian because under the terms of their policy, there was no coverage for bodily injury to a resident of their household. Meier advised that if, at some point in the future, they became aware of facts or circumstances that they believed would cause coverage to be provided under the policy, they should notify Bremen for additional review. Meier also noted that “there is a significant question under Kansas law whether Kristy could sue Brian under the facts and circumstances of this incident and/or because of what Brian did or allegedly failed to do.”
On June 16, 2006, the administrators filed their wrongful death action against Brian. They claimed that Brian owned the dog that was responsible for causing Ryker’s death and specifically alleged that Brian failed to provide a safe place for Ryker to five, failed to exercise control over tire dog and warn of the dog’s propensities, and was otherwise negligent in his care, housing, and control of the dog. After receiving a copy of the petition and summons, Bremen again notified Brian by letter on July 3, 2006, drat there was no coverage available for Ryker’s death under the terms of the policy, and Bremen therefore had no duty to defend Brian. Brian neglected to answer the petition, and a default judgment was granted against him in the amount of $1.5 million.
On February 29, 2008, the administrators filed a request for garnishment of Brian as the judgment debtor and Bremen as the garnishee. Bremen answered, stating that it was not indebted to Brian in any amount. In response, the administrators argued that their claim was covered by the Schweitzers’ insurance policy, which contained a business pursuits endorsement for the dog raising/selling business. They further alleged that Bremen had failed to address the business pursuits endorsement in its refusal to defend and had otherwise breached the contractual and fiduciary duties it owed to Brian by “wrongfully, negligently and in bad faith refusing coverage and failing and refusing” to defend, evaluate, and investigate the claim. Finally, the administrators further claimed that the policy was ambiguous and, therefore, should be construed in their favor.
Following a lengthy discovery process, the parties filed competing summary judgment motions. In its motion, Bremen argued that there was no coverage for the administrators’ claims under the policy or the business pursuits endorsement. Bremen further alleged that Kansas law does not permit a child to sue a parent for negligence under the present facts. The administrators conversely argued that the business pursuits endorsement to the policy established their right to recover for Ryker’s death, and that any ambiguity in the business pursuits endorsement should be construed in their favor. They also alleged that Bremen waived its coverage defenses and was otherwise prevented from denying coverage based on breach of contract, bad faith, and equitable estoppel. Finally, they argued that parental immunity was not applicable.
The district court granted summary judgment in favor of Bremen, finding there was no insurance coverage for the incident and that Ryker’s father was entitled to parental immunity. Following this ruling, Bremen sought attorney fees and costs under K.S.A. 60-211, but the district court denied this motion “at this stage.” The administrators appeal the summary judgment against them, and Bremen cross-appeals the denial of its motion for costs and fees.
Did the District Court Err in Granting Summary Judgment to Bremen?
The administrators argue that the district court erred in construing and applying Bremen’s insurance policy, contending that their claim was covered under the business pursuits endorsement to the policy and that Ryker’s father was not entitled to parental immunity under these circumstances. Because we have concluded there was no coverage for the incident under Bremen’s policy, we need not discuss the issue of parental immunity.
Our standard of review in a summary judgment case is well established. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The district court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009).
An issue of fact is not genuine, however, unless it has legal controlling force as to the controlling issue. A disputed question of fact which is immaterial to the issue does not preclude summary judgment. If a disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of material fact. Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000). Overview of Key Policy Provisions
At the outset of our analysis, we examine the policy provisions that are material to the issue of coverage. The relevant portion of the Bremen “Agri-Pak” policy at issue is Section 7, Coverage T Liability, which provides:
“We promise to pay on behalf of an insured for damages resulting from bodily injury or property damage caused by an occurrence, if the insured is legally obligated. We have the right and duty to defend any suit seeking such damages. We may at our discretion investigate any occurrence and settle any claim or suit seeking such damages.”
The policy further provides, however, in relevant part, that “Coverage T-Liability, does not apply to .. . bodily injury to you or residents of your household.” (Emphasis added.) The Definitions section of the policy defines the following terms:
“You, Your, Yourself means the person named on the declarations page of the policy and that person’s spouse if a resident of the same household. You, Your, Yourself also refers to a partnership, corporation, estate, or trust as stated on the declarations page.
“Bodily injury means physical injury to a person and caused by an occurrence. It includes required care, loss of services and death resulting from the personal injury.
"Insured means you and the following residents of your household:
“a. your relatives; and
"b. persons under 21 in the care of those named above.” (Emphasis added.)
The declarations page of the policy fists as the insureds only “Brian and Kristy Schweitzer” and does not state that any partnership was insured or otherwise involved.
The Schweitzers’ policy also included a separate endorsement entitled “Business Pursuits.” It provided: “For additional premium, we cover the business described on the declarations page conducted by an insured.” (Emphasis added.) The declarations page fists, inter alia, a dog raising/selfing operation involving “8 English Mastiff.” The business pursuits endorsement specifically amends certain language contained in the policy package, including Section 7, Coverage T and U, Exclusions 2 and 4. The endorsement also provides that liability coverage does not apply to bodily injury or property damage “ ‘arising from an insured’s business pursuits, unless the business pursuit is described on the declarations page.’ ”
Obviously, Bremen claims that the “Coverage T Liability” does not apply here because Ryker was an insured and a resident of the Schweitzer household. In contrast, the administrators claim that the business pursuits endorsement provides coverage because the dog that killed Ryker was a part of the family’s business specified on the declarations page.
The District Court’s Decision
The district court concluded that the policy was not ambiguous and that the policy provided no coverage, reasoning in part:
“19. The policy at issue states that Coverage T — Liability does not apply to bodily injury to ‘you’ or the ‘residents’ of ‘your’ household. Ryker Schweitzer was an insured under the clear and unambiguous terms of the policy at issue. There is not any coverage under the applicable policy for the Plaintiffs’ claims against Defendant. Due to the complete absence of coverage under the policy, Bremen is entitled to judgment as a matter of law, and the Court grants Bremen’s Motion for Summary Judgment.
“29. Plaintiffs allege that the Business Pursuits endorsement should not be considered an endorsement because the word ‘endorsement’ is not contained within its text. The Declarations page of the applicable policy lists the Business Pursuits endorsement by [its] form number (AP — 3 1-93) under the heading ‘Forms Applicable.’ Despite the absence of the word ‘endorsement,’ the Business Pursuits endorsement does indicate that its terms control over other terms in the policy proper. The Business Pursuits endorsement tells the insured that exclusionary language from the main policy is ‘amended to read’ in a different manner. A plain interpretation of such language necessitates that the language from the main policy be read in conjunction with the Business Pursuits endorsement, in order to ascertain what language is being amended and in what precise way such language is amended.
“30. Plaintiffs contend that the existence of the ‘Tara partnership’ is highly relevant, and ‘Defendant’s assertions are prima facie evidence of [Bremen’s] actual bad faith.’
“31. The Business Pursuits endorsement modifies portions of tire Agri-Pak policy, the exclusion which provides that Coverage T — Liability does not apply to ‘bodily injury’ to ‘you’ or residents of ‘your’ household is clearly unaffected and applies in all instances. While the purchase of the additional coverage afforded by the Business Pursuits endorsement did provide expanded coverage beyond that afforded by just the Agri-Pak policy alone for certain situations, the clear wording of the Bremen policy states — that Coverage T — Liability does not apply to bodily injuiy to you or residents of your household. The issue before the Court is whether there is coverage for the unfortunate death of Ryker Schweitzer. The existence of such partnership does not alter or affect the plain meaning of Bremen’s policy’s terms.
“32. Plaintiffs contend that ‘the terms of the policy are ambiguous if Bremen and the insured, Brian Schweitzer, did not believe the language had the same meaning to each party’. The test in determining whether an insurance contract is ambiguous is not what the insurer intends the language to mean, but what a reasonably prudent insured would understand the language to mean. First Financial, 265 Kan. at 694. Likewise, the fact that an insured claims to have a different subjective understanding of the policy terms does not mean an ambiguity exists, rather the test is what a ‘reasonably prudent insured’ would understand the language to mean.
“33. Ryker Schweitzer: (1) was the son of Brian and Kristy Schweitzer, (2) was under the age of 21; (3) was in the care of Brian and Kristy Schweitzer; and (4) was a resident of Brian and Kristy Schweitzer’s household. Therefore, Ryker Schweitzer was an insured under the Bremen policy. Bremen’s policy specifically states that Coverage T — Liability does not apply to the bodily injury to ‘you or the residents’ of ‘your’ household. This exclusion for Coverage T — Liability is unaffected by the Business Pursuits endorsement.”
Well-Established Principles Governing the Construction of Insurance Policies in Kansas
Our Supreme Court recently summarized many of the principles governing construction of insurance policies as follows:
“ ‘The language of an insurance policy, like any other contract, must, if possible, be construed in such way as to give effect to the intention of the parties. [Citations omitted.] In construing a policy of insurance, a court should consider the instrument as a whole and endeavor to ascertain the intention of the parties from the language used, taking into account the situation of the parties, the nature of the subject matter, and the purpose to be accomplished. [Citation omitted.]
“ ‘Because the insurer prepares its own contracts, it has a duty to make the meaning clear. If an insurer intends to restrict or limit coverage under the policy, it must use clear and unambiguous language; otherwise, the policy will be liberally construed in favor of the insured. [Citations omitted.] If an insurance policy’s language is clear and unambiguous, it must be taken in its plain, ordinary, and popular sense. [Citation omitted.] In such case, there is no need for judicial interpretation or the application of rules of liberal construction. [Citation omitted.] The court shall not make another contract for the parties and must enforce the contract as made. [Citations omitted.]
“ ‘However, where the terms of an insurance policy are ambiguous or uncertain, conflicting, or susceptible of more than one construction, the construction most favorable to the insured must prevail. [Citations omitted.]
“To be ambiguous, a contract must contain provisions or language of doubtful or conflicting meaning, as gleaned from a natural and reasonable interpretation of its language. Ambiguity in a written contract does not appear until the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning.” [Citation omitted.]
“ “Whether a written instrument is ambiguous is a question of law to be decided by the courts. [Citation omitted.] Courts should not strain to create an ambiguity where, in common sense, there is not one. [Citation omitted.] The test in determining whether an insurance contract is ambiguous is not what the insurer intends the language to mean, but what a reasonably prudent insured would understand the language to mean. [Citation omitted.]’ [Citation omitted.]” American Family Mut Ins. Co. v. Wilkins, 285 Kan. 1054, 1058-59, 179 P.3d 1104 (2008).
Additionally, we embrace the following tenets of insurance policy construction from a recognized authority:
“In construing an endorsement to an insurance policy, the endorsement and the policy must be read together. The policy remains in full force and effect except as altered by the words of the endorsement. Conversely, the endorsement modifies, to the extent of the endorsement, the terms and conditions of the original insurance contract. Reading all provisions together in an attempt to harmonize the terms is particularly appropriate where the preprinted policy form comes to the insured with the various endorsements attached. The attached endorsements only alter the package policy to the extent specifically called for in explicit provisions of the attachments.” 4 Holmes’ Appleman on Insurance 2d § 20.1, pp. 153-55 (1998).
We Construe the Material Policy Provisions in a Manner Identical to the District Court
Turning first to the “T Liability” exclusions, we agree with the district court’s conclusion that the exclusion for household residents was clear, unambiguous, and applicable. Our Supreme Court construed similar exclusion language against the insured in Patrons Mut. Ins. Assn v. Harmon, 240 Kan. 707, 732 P.2d 741 (1987). There, a husband fatally shot his wife and was thereafter sued by their son for wrongful death. The insurer under a homeowners’ policy refused to defend the husband and filed a declaratory judgment action denying coverage on three grounds, including a policy exclusion for bodily injury to insureds. 240 Kan. at 708. Specifically, the policy excluded from coverage “ ’bodily injury to you and any insured.’ ” 240 Kan. at 713-14. Our Supreme Court ultimately found that the policy was not ambiguous and clearly excluded coverage for the action brought by the son against his father for the wrongful death of his mother. 240 Kan. at 714.
The exclusion language in the present case, like Patrons, is not ambiguous. It is undisputed that Ryker was the Schweitzers’ son and was a person under the age of 21 in the Schweitzers’ care; therefore, pursuant to the clear policy terms, he was a resident of the Schweitzer household. Under these terms, there was clearly no coverage available to Brian under the policy and, thus, no duty for Bremen to provide Brian with a defense. However, our analysis does not end here.
Administrators suggest that the business pursuits endorsement should be read separately from the policy because there is no incorporation language between the policy and the business pursuits endorsement. Therefore, the administrators contend, Bremen cannot claim that the “resident of a household” exclusion applies to prevent coverage. We disagree. This court must consider the terms of the insurance policy as a whole, without fragmenting the various provisions and endorsements. First Financial Ins. Co. v. Bugg, 265 Kan. 690, 697, 962 P.2d 515 (1998). A policy endorsement alters only the policy package to the extent specifically called for in the explicit language of the endorsement. See 4 Holmes’ Appleman on Insurance 2d § 20.1, pp. 153-54 (1998).
Nothing in the business pursuits endorsement indicates that it replaces or supercedes the general provisions and exclusions set forth in the Agri-Pak policy. Rather, the language used in the business pursuits endorsement merely indicates that certain provisions of the policy package are amended by the business pursuits endorsement. The business pursuits endorsement refers to specific sections of the Agri-Pak policy and contains language which clearly provides that the exclusionary language from other portions of the policy is “amended to read” differently. Additionally, the Agri-Pak policy states: “Definitions for words that have special meaning are shown in ‘bold type,’ ” and the business pursuits endorsement similarly lists and incorporates terms in bold type which have been specifically defined in the Agri-Pak policy. Moreover, the declarations page of the Agri-Pak policy lists the business pursuits doc ument by its form number, AP-3 1-93, under the heading “Forms Applicable.” A plain reading of the endorsement language reflects that the business pursuits endorsement must be read in conjunction with language from the Agri-Pak policy in order to ascertain precisely what language is amended. Therefore, the original terms and exclusions of the Agri-Pak policy control, except for those provisions that are specifically amended by the business pursuits endorsement. We reject the administrators’ argument that the endorsement creates some ambiguity or should be read independently from the policy package. The unfortunate death of Rylcer was the result of bodily injury to a resident of the Schweitzer household and expressly excluded from Coverage T Liability.
We Examine and Reject Other Arguments of Administrators
1. Partnership liability inconsistent with household exclusions
The administrators also argue that coverage exists for their claim under the business pursuits endorsement because the dog breeding business was being conducted as a partnership. They contend that because partnerships cannot have residents of a household, the exclusion for bodily injuiy to residents of the household does not apply.
At the outset, we note that the administrators’ arguments based on the fact of partnership liability are self-defeating. First, the declarations page fails to list any such partnership as an additional insured, as required to encompass the partnership as an insured under the definitions governing the policy. Second, the wrongful death suit that gave rise to the garnishment action against Bremen did not name any such partnership as a defendant, and there is no judgment against the partnership. Third, there is no indication that any execution efforts were made against partnership assets, and the garnishment of Bremen did not include any reference to any amounts that may be owed by Bremen to such partnership. Finally, and consequently, the partnership arguments simply have no basis in fact or law. Despite this conclusion, we analyze and reject on their merits the administrators’ arguments based on this specious framework.
In support of their argument, the administrators cite Sears v. Wilson, 10 Kan. App. 2d 494, 704 P.2d 389 (1985). In that case, the court held that where an uninsured motorist policy issued to a corporation includes as an insured any family member, the language is a nullity. 10 Kan. App. 2d at 495,497. The administrators’ reliance on Sears is misplaced. In the present case, the named insureds on the policy were clearly and unambiguously listed as “Brian and Kristy Schweitzer.” Despite the language in the policy that “You, Your, Yourself also refers to a partnership, corporation, estate, or trust as stated on the declarations page,” nowhere in the policy is any partnership, corporation, estate, or trust named as an insured, nor is any partnership stated on the declarations page.
We reject the administrators’ argument that partnership liability negates applicability of the exclusion for bodily injury to household residents.
2. Negligent procurement
The administrators further claim that Bremen is estopped from denying coverage to Brian because it knew that the Schweitzers were in a dog raising/selling business partnership but did not ask them to list tire partnership on their application. We disagree. A duty to defend cannot be predicated on a claim that the insurance agent was negligent in procuring a proper policy. Jones v. Reliable Security, Inc., 29 Kan. App. 2d 617, 630-31, 28 P.3d 1051, rev. denied 272 Kan. 1418 (2001).
3. Breach of the duty to defend
Finally, although the administrators characterize some of their claims as a breach of the duty to defend, they do not suggest any facts that would give rise to a “potential of liability,” even if remote. See MGM, Inc. v. Liberty Mut. Ins. Co., 253 Kan. 198, 202, 855 P.2d 77 (1993). The duty to defend rests primarily on the possibility that coverage exists, and the possibility of coverage must be determined by a good-faith analysis of all information the insurer may know or could have reasonably ascertained. If ambiguities in coverage, including exclusionary clauses, are judicially determined against the insurer, the ultimate result controls the insurer’s duty to defend. Steinle v. Knowles, 265 Kan. 545, 554, 961 P.2d 1228 (1998). Granted, the insurer must look beyond the effect of the pleadings and consider any facts brought to its attention or any facts which it could reasonably discover in determining whether it has a duty to defend, but the administrators suggest no such additional facts or reasonably discoverable facts that would support coverage under the policy package. See Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009).
Here, Bremen launched an investigation of the claim and when it ultimately notified Brian and Kristy that there was no coverage available under the policy, Bremen advised that if they or their attorneys became aware of facts or circumstances that would cause coverage to be provided under the policy, they should notify Bremen for additional review. There is no indication in the record that any additional facts were ever alleged by Brian and Kristy. The administrators have failed to adequately support any factual predicate for their claim of breach of the duty to defend.
Did the District Court Err in Denying Bremen’s Motion for Costs and Fees?
Bremen argues in its cross-appeal that the district court erred in denying its motion for attorney fees and costs pursuant to K.S.A. 60-211. Specifically, Bremen claims that the administrators violated K.S.A. 60-211 by causing Bremen to incur substantial costs and attorney fees in defending claims that were not warranted by existing law and were presented for the improper purpose of harassing Bremen, and otherwise causing unnecessary delay and increasing the cost of litigation.
Prior to ruling on Bremen’s attorney fees motion, the court inquired of counsel whether it would lose jurisdiction if it took the motion under advisement while waiting for the appellate court’s decision on the summary judgment ruling. Counsel opined that by taking the motion under advisement, the court would essentially be denying the motion but urged the court to make a definitive ruling. In denying the motion, the court indicated that it would rather
“have an appellate review of what I’ve done be made before I ruled on the issue of attorney fees in this case, but I’m probably — I am in agreement with what the attorneys are probably telling me, and so I better malee a decision on this.
“So I think what I’m going to do at this time, I’m going to deny the motion for attorney fees and costs. I — The Court is of the opinion that based on the, its familiarity with this case, that the facts and stuff are — do not rise or are not egregious enough to warrant the assignment of attorney fees. So, therefore, the Court denies it at this particular point, or this particular stage.”
Imposition of sanctions pursuant to K.S.A. 60-211 is discretionary, and the court’s ruling on sanctions will not be disturbed on appeal absent an abuse of discretion. Wood v. Groh, 269 Kan. 420, 429, 7 P.3d 1163 (2000). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Schuck v. Rural Telephone Service Co., 286 Kan. 19, 24, 180 P.3d 571 (2008).
K.S.A. 60-211 mandates that every pleading, motion, and other paper signed by an attorney constitutes a certificate that, among other things: (1) the document is not being presented for an improper purpose; (2) the subject matter of the document is warranted by existing law or by a nonfrivolous argument for modification of current law; (3) there is, or there is likely to be, evidentiary support for the factual contentions; and (4) the denials of factual contentions are warranted by evidence or based on lack of information. K.S.A. 60-211(b)(l)-(4).
Here, Bremen argues that the administrators clearly and egregiously violated the mandates of K.S.A. 60-211. Summarizing these violations, Bremen alleges:
1. The administrators served excessive interrogatories in violation of Supreme Court Rule 135 (2009 Kan. Ct. R. Annot. 221).
2. The administrators served interrogatories on Bremen that were totally irrelevant to any possible issue in the case, including inquiries regarding Bremen’s place of birth, social security number, driver’s license number, total damages claimed, all medicine purchased or used, whether Bremen consumed alcoholic beverages, all doctors consulted, all expenses incurred in connection with the injuries suffered, all prior illnesses and disabilities, all prior claims for benefits under any policy of insurance, and details of all repairs made to the vehicle “in which you were riding.”
3. The administrators failed to respond to Bremen’s counsel’s letter requesting any and all legal authority that would serve as a basis for the claims made in the administrators’ lawsuit.
4. The administrators issued a notice of subpoena duces tecum to counsel for Bremen, even though there was little or no arguable basis for a deposition of counsel. The notice was quashed by the court, demonstrating that the notice was unwarranted.
5. The administrators filed a summary judgment motion of 95 pages with exhibits consisting of an additional 350 pages, much of which required Bremen to respond to “nonsensical,” “crazy,” and irrelevant arguments and statements, including “parallel universe” arguments.
6. The administrators prosecuted a claim that was clearly precluded by an unambiguous policy exclusion and that was not warranted by existing law or by a nonfrivolous argument for modification of current law.
Prior to its amendment in 2010, K.S.A. 60-211 provided that if a pleading is signed in violation of the statutory mandates, “the court . . . shall impose upon the person who signed it or a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading . . . including reasonable attorney fees.” (Emphasis added.) See L. 2010, ch. 135, sec. 78.
Although the district court ultimately denied the motion for fees, we are left to speculate as to the reasons for the denial. The record contains no indication that the district court analyzed Bremen’s claims to determine whether K.S.A. 60-211 had in fact been violated. In the event that one or more violations of the statutory mandate were established, the court failed to impose any sanction in apparent contravention of the statutory directive. The record is also silent on any basis for the denial, other than the peculiar statement that Bremen’s motion was “denied at this particular stage.” Finally, the record is silent on whether the district court truly considered the factors that our appellate courts have indicated should have a bearing on such a motion, including the “Groh factors.”
In Groh, our Supreme Court held that K.S.A. 60-211 does not require a district court to award monetary sanctions for every violation. 269 Kan. at 430. Kansas courts consider the following factors when deciding if a violation occurred and what sanction should be imposed: (1) whether the improper conduct was willful or negligent; (2) whether the conduct was part of a pattern or an isolated incident; (3) whether the entire pleading was infected; (4) whether the person has engaged in similar conduct in other litigation; (5) whether there was intent to injure; (6) what effect the conduct had on litigation time or expense; (7) whether the responsible person is an attorney; (8) what is needed to deter the litigant, given the litigant’s financial resources, from the same conduct in the future; and (9) what is necessary to deter future litigants from the same conduct. 269 Kan. at 431.
Because it appears that the district court has not made the necessary analysis, has provided no findings that would serve to support meaningful appellate review, has not stated any basis whatsoever for the denial of a sanction, has not considered the Groh factors, and seems to have believed that there would be some later “stage” for a more complete review and determination of Bremen’s K.S.A. 60-211 motion, we must vacate the denial and remand for further proceedings not inconsistent with this opinion.
Affirmed in part, vacated in part, and remanded with directions. | [
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Leben, J.:
Inmate Kenneth Frost appeals his prison disciplinary sanction for possession of tobacco. He contends he didn’t know that tobacco was in the sandwich being passed down by inmates from cell to cell; he says he thought that it was a sandwich and that he was just the unlucky one who was passing it along when a guard spotted the action. In this appeal, he claims that he was denied due process when he wasn’t allowed to call two witnesses and that the evidence wasn’t sufficient to convict him because no one showed he knew that tobacco was in the sandwich.
But the prison regulation at issue, K.A.R. 44-12-903(b), doesn’t require knowledge: it boldly states that “[n]o inmate shall possess . . . tobacco products . . . .” Simple enough — Frost possessed the tobacco when the guard came by. And the witnesses who weren’t called would merely have said that as far as they knew Frost didn’t know tobacco was in the sandwich, a matter irrelevant in determining whether Frost had violated the regulation at issue.
According to the evidence presented to a prison hearing officer, Frost was awakened from his sleep one night by another inmate, Thomas Green, who wanted Frost to “pass a sandwich down the run” of cells. At the time, Frost was under administrative segregation, limiting his contact with other inmates, but he told Green that he’d help in passing the sandwich along. Green tossed the sandwich toward Frost’s cell, but Frost couldn’t reach it. He threw his bedsheet out of the cell to try to drag the sandwich toward him, but a corrections officer spotted the movement. Frost successfully gained possession of the sandwich just before the corrections officer came on the scene. The officer saw Frost pull the sandwich into his cell and asked Frost for the sandwich; Frost gave it to him. The officer found tobacco inside. Frost testified that he was just helping to pass the sandwich along, like everyone else, and that he had no idea there was tobacco inside it. The corrections officer brought a disciplinary charge against Frost for possession of tobacco in violation of K.A.R. 44-12-903(b). Frost was found guilty and given a loss of good-time credits of 6 months (which was suspended unless he had further violations) and a fine of $20. Because the fine affects Frost’s properly, he was entitled to a minimum level of due process. See Washington v. Roberts, 37 Kan. App. 2d 237, 240, 152 P.3d 660 (2007).
Both of Frost’s claims that we’ve mentioned thus are premised on the theory that if he didn’t know tobacco was in the sandwich, then he didn’t do anything wrong. But actual knowledge of possession is not what is prohibited here — mere possession of tobacco in prison violates K.A.R. 44-12-903(b). Its language is clear, and a properly adopted regulation has the force of law. Frost has not claimed on appeal either that K.A.R. 44-12-903 was adopted in some procedurally defective manner or that it is unconstitutional. Accordingly, we apply it according to its terms.
We confirm our plain-language reading of K.A.R. 44-12-903(b) by noting that there is some obvious logic behind it. Prison officials need to control various types of contraband to maintain discipline and security, and proof that an inmate has knowingly possessed contraband can be difficult. So some states and prisons have chosen to outlaw mere possession of contraband, whether knowing possession can be proved or not. See, e.g., People v. Ramsdell, 230 Mich. App. 386, 391-99, 585 N.W.2d 1 (1998). The Kansas Secretary of Corrections obviously made that choice when K.A.R. 44-12-903(b) was adopted as written. If the Secretary had meant only to prohibit knowingly possessing contraband, the regulation could easily have said, “No person shall knowingly possess tobacco.” We decline to read words into this regulation that would so greatly change its meaning given the obvious difficulties inherent in controlling contraband in a prison setting.
We acknowledge that another panel of our court read “knowingly” into a similar prison regulation, K.A.R. 44-12-901(c), which by its own terms states that “[n]o inmate shall possess . . . any dangerous contraband.” See McCormick v. Werholtz, 2010 WL 2978148, at *4 (Kan. App. 2010) (unpublished opinion). The inmate in McCormick argued that the contraband regulation was unconstitutionally vague because it did not require knowing possession. We are unable to find anything vague in the language used in the Kansas prison regulations forbidding possession of contraband; the McCormick court concluded that the regulation wasn’t vague in the way the inmate suggested because there was an implied knowledge requirement. 2010 WL 2978148, at *4. The McCormick court relied by analogy on a criminal statute forbidding the possession of marijuana with intent to sell, where there must be proof that the defendant had control of the substance with the intent to possess it. See State v. Rose, 8 Kan. App. 2d 659, Syl. ¶ 4, 665 P.2d 1111, rev. denied 234 Kan. 1077 (1983). Whatever the rule may be when interpreting a criminal statute in a full criminal proceeding, we are unwilling to add the word “knowingly” to the clear language chosen by the Secretary of Corrections in K.A.R. 44-12-903(b). See State v. Horn, 291 Kan. 1, Syl. ¶ 1, 238 P.3d 238 (2010).
In sum, K.A.R. 44-12-903(b) clearly proscribes the possession of tobacco by any inmate. Frost admitted possessing the sandwich in which a corrections officer found tobacco. With this background, we will discuss Frost’s arguments.
First, he contends that he was wrongly denied the ability to call two witnesses. Frost said each of the witnesses would have testified that Frost was merely one of the inmates passing the sandwich along and that Frost had no reason to know that there was tobacco in the sandwich. The hearing officer did not call these two witnesses but did call two other inmates Frost had requested. Those witnesses testified that Frost was just one of several inmates passing the sandwich down the cell line and that Frost had no reason to know what was in the sandwich. The hearing officer said he didn’t call the additional witnesses because their testimony would have been cumulative, irrelevant, or both. Given the evidence presented and our reading of K.A.R. 44-12-903(b), we agree. The hearing officer’s explanation of why he didn’t call the additional witnesses met the burden of persuasion that prison officials must meet in satisfying due-process requirements. See Washington, 37 Kan. App. 2d at 243-45.
Second, he contends that the evidence wasn’t sufficient to find that he had violated K.A.R. 44-12-903(b). Given the need to maintain prison security, less evidence is needed to find that an inmate has violated a prison rule than is needed to find that a person has committed a crime. The prison hearing officer determines whether it is more likely than not that the prisoner has violated a prison regulation, K.A.R. 44-13-409, and we may reverse that decision only when there is not even “some evidence” supporting it. See Sammons v. Simmons 267 Kan. 155, 158-59, 976 P.2d 505 (1999). Under that standard, there is ample evidence here of Frost’s violation — the corrections officer saw Frost pull the sandwich into his cell, and Frost admitted he possessed it.
Frost makes one final argument that his due-process rights were violated. He contends that the two inmates he requested as witnesses who were called to testify did so outside of his presence. Aside from Frost’s claim on this point, our record does not disclose one way or another whether Frost was present when the witnesses testified. We assume, however, that Frost’s allegation is true. Even so, only a minimal level of due process is owed in prison disciplinary hearings, which generally means written notice of the charges, an opportunity to call witnesses and present documentary evidence, an impartial hearing, and a written statement of the hearing officer’s findings. Washington, 37 Kan. App. 2d 237, Syl. ¶ 3. While Kansas prison regulations do provide that testimony be taken in the inmate’s presence, K.A.R. 44-13-403(l)(l), violation of procedural regulations does not by itself mean that there has been a constitutional due-process violation. 37 Kan. App. 2d 237, Syl. ¶ 4. Frost was in administrative segregation at the time of his offense, and Frost contends that the hearing officer went from Frost’s cell to that of the other witnesses to take their testimony. We further note that their testimony was exactly what Frost said it would be and that it matched the defense he sought to make.
The failure to hear the witnesses’ testimony in Frost’s presence without an adequate explanation may have violated his due-process rights. An inmate has a right to be present for the hearing, but that right may be limited when institutional concerns for safety or other correctional goals are at stake. In such cases, though, prison officials generally have a burden of persuasion to explain why institutional concerns outweigh the inmate’s rights. See Hogue v. Bruce, 279 Kan. 848, 853-54, 113 P.3d 234 (2005). But even if we assume some violation of Frost’s due-process rights by hearing from two witnesses outside his presence, even an error that denies a constitutional right may be deemed harmless if we can declare beyond a reasonable doubt that the error had little, if any, likelihood of changing the outcome of his disciplinary hearing. See State v. Laturner, 289 Kan. 727, 753, 218 P.3d 23 (2009). This is certainly such a case. A corrections officer saw Frost take the sandwich into his cell, and Frost admitted possession, albeit while denying knowledge that tobacco was in the sandwich. The witnesses heard outside Frost’s presence all testified consistently with his defense of lack of guilty knowledge. Even if Frost had been present for all of the testimony, the outcome would have been the same.
The district court ruled against Frost’s claims in a thoughtful written opinion rendered after a nonevidentiary hearing; Frost’s attorney indicated that he did not wish to present any evidence beyond the documents already in the court’s file. Because no evidence was presented in the district court and we are therefore in an equal position to review the matter, we have done so independently, without any required deference to the district court. See Bellamy v. State, 285 Kan. 346, 353, 172 P.3d 10 (2007); Rice v. State, 278 Kan. 309, 320, 95 P.3d 994 (2004). We too have concluded that Frost’s claims have no merit. The judgment of the district court is therefore affirmed. | [
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Malone, J.;
Brian Miller appeals the district court’s revocation of his probation. The only issue on appeal is whether the district court committed reversible error when it failed to properly advise Miller of his right to an attorney at his probation violation hearing. Because the district court violated K.S.A. 2009 Supp. 22-3716(b) by failing to inform Miller that he had the right to be represented by counsel at the probation violation hearing and that an attorney would be appointed to represent him if he was financially unable to obtain counsel, we reverse and remand for a new hearing.
On March 6, 2007, Miller pled guilty to aggravated assault, a severity level 7 person felony; battery, a class B person misdemeanor; and forgery, a severity level 8 nonperson felony. On April 16, 2007, the district court imposed an underlying sentence of 27 months’ imprisonment on the felony convictions and a consecutive 6-month jail sentence on the misdemeanor conviction. The district court placed Miller on probation on the felony convictions for 24 months.
Through the sentencing hearing, Miller was represented by a public defender who was allowed to withdraw on July 19,2007. On August 16, 2007, a private attorney entered an appearance on behalf of Miller. On May 23, 2008, the State filed a motion to revoke Miller’s probation. Miller appeared with his retained counsel at a hearing on September 2, 2008, and the district court revoked and reinstated Miller’s probation.
On February 19, 2009, the State filed a second motion to revoke probation, alleging Miller had been arrested for domestic battery and had failed to report the arrest to his probation officer. Miller appeared twice without counsel and requested a continuance of the probation violation hearing in order to retain counsel. The district court continued the hearing but warned Miller after the second request that there would be no further continuances.
On May 4, 2009, Miller again appeared in district court without an attorney. Miller explained that he had attempted to contact an attorney but nevertheless had been unable to retain an attorney for the hearing. Miller acknowledged that the matter had been pending for a long time, and he informed the district court that he would represent himself at the hearing. The State called Kathy Ryan, Miller’s probation officer, to testily at the hearing. Ryan testified that Miller had been arrested for domestic battery in Saline County, and she did not hear about the arrest until 2 months later when she was informed by the Saline County supervising officer that Miller had been arrested. Miller did not cross-examine Ryan, and he did not testify or call any witnesses at the hearing. After hearing the evidence, the district court revoked Miller’s probation and ordered him to serve his original sentence. Miller timely appealed.
Miller claims the district court committed reversible error when it failed to properly advise him of his right to an appointed attorney at his probation violation hearing. Miller relies on K.S.A. 2009 Supp. 22-3716(b), which provides that a defendant shall have the right to be represented by counsel at a probation violation hearing, and the judge shall inform the defendant that an attorney will be appointed if the defendant is financially unable to obtain counsel.
Interpretation of a statute is a question of law over which an appellate court has unlimited review. State v. Jefferson, 287 Kan. 28, 33, 194 P.3d 557 (2008). Furthermore, the extent of a criminal defendant’s right to the assistance of counsel is a question of law over which an appellate court exercises unlimited review. State v. Jones, 290 Kan. 373, 376, 228 P.3d 394 (2010).
While a defendant at a probation violation hearing is not entitled to every constitutional protection provided in criminal proceedings, the defendant is entitled to some minimum due process protections including assistance of counsel. Black v. Romano, 471 U.S. 606, 612, 85 L. Ed. 2d 636, 105 S. Ct. 2254 (1985). Kansas law requires that at a probation violation hearing: “The defendant shall have the right to be represented by counsel and shall be informed by the judge that, if the defendant is financially unable to obtain counsel, an attorney will be appointed to represent the defendant.” K.S.A. 2009 Supp. 22-3716(b).
There is no question that the district judge failed to inform Miller that he had the right to be represented by counsel at the probation violation hearing and that an attorney would be appointed to represent him if he was financially unable to obtain counsel. However, Miller expressed a desire to represent himself at the hearing. A defendant who clearly and unequivocally expresses a desire to proceed pro se has the right to self-representation after a knowing and intelligent waiver of the right to counsel. Jones, 290 Kan. at 376; State v. Vann, 280 Kan. 782, Syl. ¶ 3, 127 P.3d 307 (2006).
Kansas courts have adopted a three-step framework to determine whether a defendant’s waiver of counsel is knowing and intelligent. First, a defendant should be advised of both the right to counsel and the right to appointment of counsel in cases of indigency. Second, the defendant must possess the intelligence and capacity to appreciate the consequences of the waiver. Third, the defendant must comprehend the nature of the charges and proceedings, the range of punishment, and all facts necessary to a broad understanding of the case. State v. Buckland, 245 Kan. 132, 138, 777 P.2d 745 (1989); State v. Mixon, 27 Kan. App. 2d 49, 51, 998 P.2d 519, rev. denied 269 Kan. 938 (2000).
Furthermore, a knowing and intelligent waiver of counsel requires that the defendant be informed of the dangers and disadvantages of self-representation. Jones, 290 Kan. at 376; Vann, 280 Kan. 782, Syl. ¶ 3.
Here, as we have previously discussed, the district judge failed to advise Miller of his right to counsel and that an attorney would be appointed to represent him at the hearing if he was indigent. The district judge also failed to make a record as to whether Miller understood the nature of the hearing and the punishment he was facing if the judge revoked his probation. The district judge also failed to inform Miller on the record of the dangers and disadvantages of self-representation. Based on the record for our review, we conclude that Miller did not knowingly and intelligently waive his right to counsel at the probation violation hearing.
The State points out that Miller was no stranger to the criminal justice system, as he had 16 prior convictions. Also, Miller had been through the probation violation process before, and he knew he was facing a prison sentence if his probation was revoked. On the other hand, the record does not reflect that Miller was aware he could ask the district court to serve a lesser sentence if his probation was revoked. See K.S.A. 2009 Supp. 22-3716(b); Abasolo v. State, 284 Kan. 299, 303, 160 P.3d 471 (2007). It is likely that Miller would have made this request had he been represented at the hearing by counsel. In any event, a district court may not measure a defendant’s competence to waive his or her right to counsel by evaluating the defendant’s technical legal knowledge. Jones, 290 Kan. at 382. More importantly, the Kansas Supreme Court has determined that a violation of the defendant’s right to counsel is structural error which is not amenable to harmless error analysis. Jones, 290 Kan. at 382; Vann, 280 Kan. at 793.
We hold the district court violated K.S.A. 2009 Supp. 22-3716(b) by fading to inform MiUer that he had the right to be represented by counsel at the probation violation hearing and that an attorney would be appointed to represent him if he was financiady unable to obtain counsel. Furthermore, we hold the record is insufficient to establish that Mdler knowingly and intelligently waived his right to counsel. Accordingly, we reverse the district court’s decision to revoke Miller’s probation and remand for a new hearing.
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Pierron, J.:
Jeanette Trostle appeals from her conviction of an improper U-turn in violation of K.S.A. 8-1546(a).
On February 10, 2009, Trostle was driving a tractor-trailer from Texas to Clinton, Missouri. While in Kansas, she was traveling east on Highway 50 and attempted to get on Interstate 35. She was misled by the exit signs and ended up on Road G headed north. She wanted to turn around and head back south to Highway 50. She attempted to turn left, but to do so, she had to turn wide by first going to the right because of the size of the vehicle and the steep embankments on either side of the road onto which she was turning. The road did not have much of a shoulder. Trostle miscalculated the turn, and the back tire of the trailer went off the road and sunk into the soft ground.
Trestle’s tractor-trailer was still facing north when it came to a stop. According to Trostle, she was not going to make a U-tum but was going to make a left-hand turn, with the ultimate goal of turning around to go back in the direction she came. A U-tum, which she equated with a semicircle turn, would not have been possible at that intersection with a 70-foot-long tractor-trailer.
Officer Corey Nicolet of the Lyon County Sheriff s Department was dispatched to Trestle’s location at Road 190 and Road G in response to a report of a tractor-trailer that was blocking both roads. Nicolet arrived at approximately 2:10 a.m. The tractor was blocking the eastbound lane of 190 and the trailer was in the ditch. Traffic was blocked, which was a hazard to oncoming motorists. Nicolet identified Trostle as the driver of the vehicle. Trostle told him she had been driving north, but had made a wrong turn and needed to turn around to drive south. She had swung wide to the right to try to make the comer, but the ground was too soft and the trailer sank in, causing it to become stuck. The tractor-trailer had not completed its turn and was still facing north when Nicolet arrived.
Nicolet stayed at the scene until Trestle’s tractor-trailer was removed from the ditch. Another deputy was also at the scene. A tow track came and got Trestle’s tractor-trailer unstuck. The officers blocked traffic while the tow company employees directed Trostle in safely turning the vehicle around to go south. According to Nicolet, a U-tum is “when you’re facing one direction and you malee a maneuver in which to face the other direction.” He did not view a U-tum as a semicircle turn in one turn.
Before he left the scene at approximately 3:45 a.m., Nicolet issued Trostle a citation for making an improper U-tum in violation of K.S.A. 8-1546.
Trostle pled not guilty to the infraction, waived counsel, and proceeded pro se at trial. After trial, the traffic court found her guilty of an improper U-tum under K.S.A. 8-1546(a). She was sentenced to a $60 fine, and $75 in court costs were imposed. Trostle appealed to the district court, which held a de novo bench trial and found Trostle guilty under K.S.A. 8-1546. The court found that Trostle had attempted to make a turn to go back in the other direction and in doing so she had impeded or interfered with other traffic. The court found that based on the language of the statute, it did not matter whether a U-turn was actually made. What mattered was that Trostle had attempted to turn the tractor-trailer with the ultimate goal of proceeding in the other direction, and she had interfered with other traffic by blocking the road for over an hour.
The district court sentenced Trostle to a $60 fine, and $86 in court costs were imposed. Trostle timely appealed to this court.
Trostle argues there was insufficient evidence to support the district court’s guilty verdict. She contends the court misinter preted what was required to find her guilty under K.S.A. 8-1546. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether after a review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Gant, 288 Kan. 76, 83, 201 P.3d 673 (2009). Interpretation of a statute is a question of law over which this court has unlimited review. State v. Jefferson, 287 Kan. 28, 33, 194 P.3d 557 (2008).
First, Trosde argues she did not make a U-tum. She states the evidence was that she was going to turn left, back up, and then proceed in a southerly direction, which was not prohibited by K.S.A. 8-1546. The applicable portion of K.S.A. 8-1546 states: “(a) The driver of any vehicle shall not turn such vehicle so as to proceed in the opposite direction unless such movement can be made in safety and without interfering with other traffic.”
When interpreting a statute, our first task is to ascertain the legislature’s intent through the statutory language it employed, giving ordinary words their ordinary meaning. When a statute is plain and unambiguous, we will not speculate as to the legislative intent behind it and will not read the statute to add something not found in it. Criminal statutes must be strictly constmed in favor of the accused, and any reasonable doubt as to the meaning of the statute must be decided in favor of the accused. Nevertheless, this rale of strict construction is subordinate to the mle that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Gracey, 288 Kan. 252, 257-58, 200 P.3d 1275 (2009).
K.S.A. 8-1546 does not define the term “U-tum.” It also does not make a U-tum illegal. Instead, it proscribes turning a vehicle “so as to proceed in the opposite direction” unless the move can be made safely and without impeding traffic. K.S.A. 8-1546(a). This effectively puts motorists on notice of what conduct is proscribed by the law. See State v. Busse, 252 Kan. 695, 699, 847 P.2d 1304 (1993).
The testimony at trial was that Trostle was heading north and was attempting to turn her vehicle in order to proceed south on the same road. Her vehicle became stuck before she was able to complete the maneuver. Whether she was going to be able to complete the maneuver in one move or would be required to malte several moves before proceeding in the opposite direction does not change the analysis in this case. The statute requires evidence that the defendant was turning a vehicle so as to proceed in the opposite direction. There was sufficient evidence to support a finding that Trostle was turning her vehicle so as to proceed in the opposite direction. In fact, that was what she said she was doing.
Trostle next argues there was no evidence that she caused a safety hazard or traffic interference as required by the statute. According to Trostle, there was no evidence of any traffic in either direction during the time period, which was 2:10 a.m. to 3:45 a.m. Trostle states that Nicolet did not testify there was a safety hazard or traffic interference. The record reveals otherwise. Nicolet testified that traffic was blocked by Trostle’s vehicle, which was a hazard to oncoming motorists. Nicolet also testified that he and the other officer blocked traffic so the tow company employees could get the tractor-trailer turned around safely. Nicolet stayed on the scene until the roadway was clear for all traffic to go by. This was sufficient evidence upon which the district court could rely to find Trostle’s movement was not made in safety and without interfering with other traffic. See K.S.A. 8-1546(a).
Viewing the evidence in the light most favorable to the State, a reasonable factfinder could have found Trostle guilty under K.S.A. 8-1546(a) beyond a reasonable doubt.
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PlERRON, J.;
Harold James Whittet, trustee of the Wanda J. Bennett-Rodgers Trust (Trust), appeals the summary judgment decision of the district court that Commerce Bank, N.A. (Commerce), could attach assets in the Trust to satisfy its judgment entered for a promissory note Wanda executed before her death. We affirm.
On February 19,1998, Wanda resided in Independence, Kansas, and executed the Trust. She was the beneficiary of the Trust during her lifetime and reserved the right to amend or revoke the Trust at any time. The purpose of the Trust was to provide for the educational expenses of her lineal descendants. Wanda’s son, Whittet, was named as first successor trustee. The initial Trust documents indicated that the Trust properly consisted of a Merrill Lynch individual retirement account (IRA) and also real estate in Montgomery County. However, the Trust was not funded with these assets upon its execution. At the time of Wanda’s death, no property was owned by the Trust.
On June 22, 2000, Wanda executed her last will and testament. The will provided for specific bequests of $2,000 to $8,000 to certain grandchildren and individuals, $10,000 to each of her three children, and assigned the residue to the Trust for educational purposes.
On May 25, 2002, Wanda executed a promissory note, payable to the order of Commerce in the principal amount of $93,314.48. The promissory note was secured by a security interest in real property and personal property. The promissory note indicated that Commerce had a right of setoff but “this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibited by law.”
Wanda remained in Kansas until December 2002, when she moved to Friendswood, Texas, and took all her personal belongings and effects. She contracted to sell her house in Independence. On December 6, 2002, Wanda voluntarily moved into lire Park Place Retirement Home in Friendswood. She received Medicaid from the State of Texas.
Wanda died in Houston, Texas, on January 17, 2003. Upon her death, a Texas death certificate was issued. Pursuant to Wanda’s will, Crystal Bolander was named as the executor of Wanda’s estate (Estate), and the will was admitted for probate in April 2003. The inventory and valuation filed in the estate case listed real estate valued at $246,000, personal property valued at $10,000, and stock valued at $40,113.83, for a total valuation of $296,113.85. The valuation also listed jointly owned property in the amount of $39,986.16, and for the Trust in question it listed $7,320.11 in a Merill Lynch IRA and $205,225.69 in a Solomon Smith Barney IRA for a total value of $212,545.80 in the Trust. The petition listed Whittet as residing at 3185 N. 24th, Independence, Kansas.
On June 2, 2003, Commerce filed a chapter 60 petition seeking a money judgment against the Estate for the unpaid balance of the promissory note, plus costs and fees, and for foreclosure of its security interests and mortgage. Commerce later amended its petition to add Whittet, as trustee, as an additional defendant, claiming that since the Trust was revocable at the time of Wanda’s death, the Trust property was subject to Commerce’s claim as well.
Whittet was personally served at 3185 N. 24th St., Independence, Kansas, with a summons and a copy of the petition on November 24, 2003. Whittet, as trustee, filed an answer and “counter petition” (counterclaim) in the chapter 60 action. He raised affirmative defenses, inter alia, that Commerce could not attach the Trust assets and that the Kansas court lacked personal jurisdiction over the Trust or any Trust property because the situs of the Trust and all property was in Oklahoma. In the counterclaim, Whittet challenged the validity of Commerce’s real estate collateral claim and the legality of the promissory note.
On July 30, 2004, the Estate advised the district court that Wanda had not filed income tax returns or paid taxes for the years 2000-2003 and combined with the other liabilities the Estate was insolvent, with $94,054.42 in assets and $206,928.33 in liabilities. Commerce filed for summary judgment against the Trust in August 2004. Commerce claimed the Estate was insolvent and that under the Kansas Uniform Trust Code, K.S.A. 58a-101 et seq., it was entitled to judgment against the Estate and the Trust, jointly and severally, for the full amount of the indebtedness regardless of any spendthrift clause.
The Trust filed a response to the summary judgment motion and a motion to dismiss. The Trust claimed Commerce’s claim against the Trust was uncertain and the district court lacked jurisdiction. The Trust requested a dismissal claiming the Trust was not a Kansas Trust, and the Kansas Uniform Trust Code did not grant a creditor of a deceased settlor a means to collect from a revocable trust in a foreclosure action.
On January 24, 2005, the district court granted summary judgment in favor of Commerce. The court found that under the terms of the Trust instrument and the laws of Kansas, the Trust was governed by the laws of Kansas, including the Kansas Uniform Trust Code. The court held that pursuant to K.S.A. 58a-505, the assets of the Trust were available to satisfy Commerce’s judgment claim. The court entered judgment against the Trust, reduced by the amount of proceeds from the sale of Commerce’s secured col lateral. The court also froze the assets of the Trust with a value not less than the unpaid balance of the judgment entered in favor of Commerce.
On February 3, 2005, the Trust filed a motion for reconsideration, arguing the district court improperly froze the assets of the Trust and that almost all of the assets of the Trust were funds in IRAs and the IRA funds were exempt from any judgment of a creditor of the Trust. The district court denied the Trust’s motion for reconsideration. The court also found the Trust assets exceeded $200,000 and Commerce’s claim as of that day was $76,199.82. The court held there were substantial assets in the Trust over and above the value of Commerce’s claim, which were unaffected by the freeze order. The court held the Trust had failed to offer any evidence to show that the Trust, trustee, or the beneficiaries of the Trust were in any way harmed by the freeze order.
On April 7, 2005, Commerce filed a request for garnishment for $83,956.88 from the Trust assets, specifically from Smith Barney Citigroup. In response, on April 27, 2005, the Trust filed a motion to determine Trust property subject to Commerce’s judgment. The Trust claimed there was no property in the Trust at the time of Wanda’s death but that after her death two of her IRA accounts became Trust assets, Smith Barney on May 31, 2003, and Merrill Lynch on September 27, 2003. The Trust claimed the relevant portions of the Kansas Uniform Trust Code only applied to Trust property in a trust at the time of the settlor’s death, and in this case, the Trust received the property after Wanda’s death. The district court rejected the Trust’s claims by ruling:
“5. K.S.A. 58a-505(a)(3), as interpreted by the court, does not shelter from the plaintiffs judgment the funds received by the Trust as beneficiary of the settlor’s IRAs. The phrase “at the settlor’s death,” refers to whether or not a trust is revocable at the time of the settlor’s death. The said phrase does not limit those assets of a trust which are subject to creditor’s claims.
“6. The funds received by the Trust, as beneficiary of the settlor’s IRA, are not exempt assets for the following reasons:
A. The exemption which applied to the IRAs during the settlor’s lifetime did not survive her death.
B. The Trust is not owner of an IRA but rather is the recipient of funds as the beneficiary of the settlor’s IRA.
C. The Trust is not a natural person and the statutory exemptions which apply to natural persons do not apply to the Trust.”
The Trust appeals.
The Trust first argues the district court did not have jurisdiction over the Trust when Wanda died testate in Texas and the trust assets consisted entirely of IRA amounts transferred after Wanda’s death to an Oklahoma trustee.
The question of jurisdiction is subject to review at any time in the proceedings. Whether jurisdiction exists is a question of law over which the court’s scope of review is unlimited. Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 369, 130 P.3d 560 (2006).
K.S.A. 58a-107 sets forth the standards under the Kansas Uniform Trust Code by which we measure this case:
“The meaning and effect of the terms of trust are determined by:
(1) The law of the jurisdiction designated in the terms unless the designation of that jurisdiction’s law is contrary to the law of the jurisdiction having the most significant relationship to the matter at issue; or
(2) in the absence of a controlling designation in the terms of the trust, the law of the jurisdiction having the most significant relationship to the matter at issue.”
Regarding administration of a trust under the Kansas Uniform Trust Code, K.S.A. 58a-108 provides the following guidelines:
“(a) Without precluding other means for establishing a sufficient connection with the designated jurisdiction, terms of a trust designating the principal place of administration are valid and controlling if:
(1) A trustee’s principal place of business is located in or a trustee is a resident of the designated jurisdiction; or
(2) all or part of the administration occurs in the designated jurisdiction.”
The Trust had a clear and unambiguous clause providing for the application of Kansas law. Article X(D) of the Trust provides: “The validity and construction of this agreement shall be determined and governed in all respects by tire laws of the State of Kansas. The Trust powers and provisions herein contained shall be administered, exercised, and carried into effect according to the laws of the such state.”
“If the language of a written instrument is clear and can be carried out as written, there is no room for rules of construction. [Citation omitted.] Where contract terms are plain and unambiguous, the intention of the parties and the meaning of the contract are determined from the contract itself. [Citation omitted.]” Zukel v. Great West Managers, LLC, 31 Kan. App. 2d 1098, 1101, 78 P.3d 480 (2003), rev. denied 277 Kan. 928 (2003).
Consequently, the only jurisdictional question remaining in this case, pursuant to K.S.A. 58a-107, is whether the designation of Kansas law is contrary to the law of the jurisdiction having the most significant relationship to the matter at issue. The theme of the Trust’s argument is that we live in a mobile society and that the beginning situs of a trust would normally be the domicile of the trust originator, but it is unreasonable to believe the situs of a trust involving personal property must remain the settlor’s original domicile. See In re Saddy, 129 N.Y.S.2d 163 (1954) (in motion for change of successor trustee, New York court declined jurisdiction where settlor was from New York but all other facts pointed to Pennsylvania, including the trustees and the corpus of die trust).
The Trust claims that at the time of her death, Wanda was a resident of Texas and Harold was a resident of Oklahoma. The Trust also claims the language in Article X(D), referring to the “law of the such state,” is ambiguous. The Trust cites several cases in support of its argument that courts have “gone outside” the trust designation of controlling law. See In re Estate of McMillian, 603 So. 2d 685 (Fla. Dist. App. 1992); Matter of Marcus, 191 Misc. 2d 497, 742 N.Y.S.2d 777 (2002). McMillian and Marcus are consistent with Kansas law in every respect. Under K.S.A. 58a-107, the court is free to go outside the choice of law designation in a trust in establishing the jurisdiction “having the most significant relationship to the matter at issue.”
We recognize the Trust’s arguments that both Texas and Oklahoma, similar to Kansas, have statutory provisions to allow for change of die place of administration to their state. However, we must first determine which state has the most significant relationship to the matter at issue before we determine which law to apply. See K.S.A. 58a-107. The Trust claims that even if Texas was not the original state of administration, Texas law allows for change of the place of administration. See Uniform Trust Code § 108; Tex. Property Code Ann. §§ 115.001-115.002 (2007). Compare K.S.A. 58a-108(c)-(f). The Trust seeks application of Texas law because it claims Commerce would not be able to reach the assets of the Trust after Wanda’s death and that IRA benefits are exempt from execution in Texas. See FCLT Loans, L.P. v. Estate of Bracher, 93 S.W.3d 469, 484-85 (Tex. Civ. App. 2002) (court stated that because the issue had not been fully briefed, the court had no opinion whether a creditor could satisfy claims from the trust after the settlor’s death); Lozano v. Lozano, 975 S.W.2d 63 (Tex. Civ. App. 1998) (exemption of IRA benefits, but not dealing with death of settlor); Tex. Property Code Ann. §§ 42.0021(a), 111.001-115.017 (2007).
The Trust also claims that Oklahoma law could also apply in this situation. See 60 Okla. Stat. Annot. Property-Uses & Trusts § 175.23(a) (2006 Supp.) (district court had original jurisdiction to construe the provisions of any trust instrument and determine the applicable law). The Trust contends Whittet was an Oklahoma resident, and the IRAs are administered in Oklahoma as well. The Trust claims that IRAs are exempt from garnishment in Oklahoma. See Greening Donald v. Okla. Wire Rope Prod., 766 P.2d 970, 972 (Okla. 1988) (IRAs are exempt from creditors, but the case does not address exemption after death of setdor); Matter of Estate of Patee, 664 P.2d 1035 (Okla. 1983) (named beneficiary of retirement account takes the interest free from any claims that might be filed against decedent’s estate in the probate proceedings; not a trust case).
Commerce argues that if the Trust’s argument is accepted that the Trust’s principal place of administration is determined by the residence of the trustee, then even though Wanda was a Texas resident at the time of her death, administration of the Trust moved back to Kansas upon her death where the trustee, Whittet, was served with process while still a resident of Kansas and serving as trustee. See K.S.A. 58a-108 (administration in jurisdiction where trustee a resident).
The resolution of the question of the state with the most significant relationship to the Trust under K.S.A. 58a-107 is both a question of fact and law. As one would expect this issue is very fact specific since each determination under K.S.A. 58a-107 presents a unique set of facts. The function of an appellate court is to deter mine whether the trial court’s findings of fact are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as sufficient to support a conclusion. U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003). An appellate court’s review of conclusions of law is unlimited. Nicholas v. Nicholas, 277 Kan. 171, 177, 83 P.2d 214 (2004).
The Trust’s argument regarding Texas is based on the isolated fact that Wanda had a connection to Texas because she spent the last 6 weeks of her life in a healthcare facility in Friendswood, Texas, likely to reside closer to her daughter, Georgia Hughs. The Trust’s argument regarding Oklahoma jurisdiction is Whittet’s claim that some time after assuming the duties of trustee, he moved to Oklahoma and that Wanda’s IRA representative had an office in Bartlesville, Oklahoma.
Contrary to Texas and Oklahoma, there are several facts in this case showing the significant relationships and connections of this case to the state of Kansas: (1) clear intent by Wanda in providing unambiguous language in the Trust document for administration pursuant to laws of Kansas; (2) the Trust originated in Kansas, was revocable by Wanda, and Wanda was the trustee while living in Kansas for nearly 5 years; (3) the Trust document gave the Trustee powers pursuant to the Kansas Uniform Trustees Powers Act (K.S.A. 58-1201 et seq.\ repealed L. 2002, ch. 133); (4) the Trust documents indicated the Trust assets included Kansas real estate; (5) the Trust was the residual beneficiary under Wanda’s will probated in Montgomery County, Kansas; (6) Wanda’s spouse at the time of her death was a Kansas resident; and (7) Whittet was still a Kansas resident when the petition for probate was filed and when he was personally served with process.
We also recognize that Whittet, as trustee, has submitted to the jurisdiction of the court by filing an answer and also a counterclaim. Whittet voluntarily submitted himself to the jurisdiction of the trial court by his appearance in this case and by the counter request to nullify the promissory note. Jurisdiction over a party can be ac quired only by issuance and service of process in die method prescribed by statute or by voluntary appearance. See Myers v. Board of Jackson County Comm’rs, 280 Kan. 869, 875-77, 127 P.3d 319 (2005).
“A party is not permitted to invoke the jurisdiction and power of a court for the purpose of securing important rights from an adversary through its judgment, and then, after obtaining the benefits sought, to repudiate or question the vahdiiy of that adjudication on the ground the court was without jurisdiction.” Aguilera v. Corkill, 201 Kan. 33, 38, 439 P.2d 93 (1968).
We find the district court did not err in holding that pursuant to the terms of the Trust and the Kansas Uniform Trust Code, Kansas had jurisdiction to resolve the issues in this case.
The Trust also contends that even if Kansas had jurisdiction over the Trust, Commerce has not provided any authority (1) for a direct action against the Trust in the foreclosure case and (2) for the claim of joint and several liability, allowing Commerce to immediately reach trust assets, regardless of other estate assets and claims. The Trust provides no argument in its appellate brief in support of its claims. These issues are incidentally raised at best. An issue which is incidentally raised on appeal need not be considered by an appellate court. See State v. Hunt, 275 Kan. 811, 821, 69 P.3d 571 (2003); State v. Seek, 274 Kan. 961, 965, 58 P.3d 730 (2002).
The substantive issue in this appeal is the Trust’s argument that the district court erred in allowing Commerce to attach and freeze the IRA assets in the Trust.
There is no dispute by any of the parties that the Trust was clearly a revocable trust. K.S.A. 58a-505(a)(l) provides that during the lifetime of the settlor, the property of a revocable trust is subject to the claims of the settlor’s creditors. The critical statute in this case is K.S.A. 58a-505(a)(3), which controls the limitations on assets held in trust:
“After the death of a settlor, and subject to the settlor’s right to direct the source from which liabilities will be paid, the property of a trust that was revocable at the settlor’s death is subject to claims of the settlor’s creditors, costs of administration of the settlor’s estate, the expenses of the settlor’s funeral and disposal of remains, the homestead, homestead allowance, the elective share rights of the surviving spouse pursuant to K.S.A. 59-6a209, and amendments thereto, and stat utoiy allowance to a surviving spouse and children to the extent the settlor’s probate estate is inadequate to satisfy those claims, costs, expenses, and allowances.”
The Trust claims that its accounts became irrevocable after Wanda’s death for benefit of the educational needs of her grandchildren and great grandchildren. The Trust claims case law supports its position, but the express language of K.S.A. 58a-505 dictates otherwise. As stated earlier, the court in FCLT Loans, 93 S.W.3d at 469, 484-85, specifically noted that it was not addressing the issue of satisfying claims from the trust after the settlor’s death; see also Greenwich Trust Co. v. Tyson, 129 Conn. 211, 27 A.2d 166 (1942) (application of Connecticut law). The Trust’s use of Taliaferro v. Taliaferro, 252 Kan. 192, 194, 843 P.2d 240 (1992), is inappropriate. Taliaferro involved the situation of a trust and a surviving spouse’s decision to file an election against the will. Taliaferro did not involve any creditors of the Trust. The spousal election issue is a layer of the onion that is unnecessaiy for us to peel back at this time. See also McCarty v. State Bank of Fredonia, 14 Kan. App. 2d 552, Syl. ¶¶ 1, 7, 795 P.2d 940 (1990) (held that an IRA is construed as a revocable inter vivos trust and the beneficiary designation of a revocable inter vivos trust created by a spouse who dies testate is subject to the rights of a nonconsenting survivor spouse); Spencer v. Spencer, 71 Conn. App. 475, 802 A.2d 215 (2002) (child support situation, whether trust assets, primarily IRA benefits, available in modification of child support order).
The Trust states there was no property in the Trust immediately prior to Wanda’s death. However, no party has challenged whether the IRAs are actually trust property or should have been included in the Estate. Consequently, we will not address that question. The Trust contends that K.S.A. 58a-505 should not permit Commerce to reach the property created due to Wanda’s death on the theory that at the instant of her death, the IRA assets were transferrable because at the same instant of Wanda’s death, the trust would then be an irrevocable trust outside the reach of K.S.A. 58a-505. Commerce claims that the Trust’s argument is disingenuous since the trustee considers the IRA funds to be trust property for all other purposes, which would include paying the trustee’s fee and expenses and making distributions to the trust beneficiaries.
The district court's decision is an application of the clear unambiguous intent of the legislature in K.S.A. 58a-505(a)(3) of making the assets of a revocable trust “subject to the claims of the settlor’s creditors.” A revocable living trust, such as the trust in this case, is a trust established during the settlor’s lifetime in which the settlor reserves the right to alter, amend, or revoke the trust and may retain the right during his or her lifetime to direct the disposition of principal and income. At the death of the settlor, the trust assets are disposed of in accordance with the terms of the trust document. When a trust is created for the settlor’s own benefit, the settlor’s creditors can reach any trust assets and, for purposes of the present case, those nonexempt assets available to the settlor. See In re Johannes Trust, 191 Mich. App. 514, 518, 479 N.W.2d 25 (1991); Vanderbilt Credit Corp. v. Chase Manhattan Bank, 100 App. Div. 2d 544, 546, 473 N.Y.S.2d 242 (1984); Restatement (Second) of Trusts 156, p. 326 (1959). This rule promotes a valid public policy that a person ought not to be able to shelter his or her assets from creditors in a discretionary trust of which he or she is the beneficiary and thus be able to enjoy all the benefits of ownership of the property without any of the burdens. See In re Johannes Trust, 199 Mich. App. at 518.
Wanda’s power to amend or revoke the trust, or to direct payment from it, obviously died with her, and the remainder beneficiaries’ interests in the Trust became vested. There is precedent in other jurisdictions holding that when the settlor of a revocable living trust dies, the property is no longer subject to the settlor’s debts. See Schofield v. Cleveland Trust Co., 135 Ohio St. 328, 333-34, 21 N.E.2d 119 (1939) (relying on interpretation of statute). We believe that under Kansas statutory law and persuasive authority from other states, the better argument is to the contrary. See ITT Commercial Finance Corp. v. Stockdale, 25 Mass. App. 986, 988, 521 N.E.2d 417 (1988) (In view of the settlor’s power to amend and revoke the trust and to substitute beneficiaries, a power retained until death, summary judgment could also rest on the creditor’s right to reach the trust property as if it had been the debtor’s own.); Johnson v. Commercial Bank, 284 Or. 675, 680-81, 588 P.2d 1096 (1978).
California law on this subject is similar to Kansas. California’s Probate Code § 19001 (2007), provides:
“(a) Upon the death of a settlor, the property of the deceased settlor that was subject to the power of revocation at the time of the settlor’s death is subject to the claims of creditors of the deceased settlor’s estate and to the expenses of administration of the estate to the extent that the deceased settlor’s estate is inadequate to satisfy those claims and expenses.”
In Dobler v. Arluk Medical Center Industrial Group, Inc., 89 Cal. App. 4th 530, 107 Cal. Rptr. 2d 478 (2001), the lower court had entered an order directing payment of the unsatisfied portion of a judgment entered against the decedent from assets of the decedent’s revocable inter vivos trust which consisted primarily of life insurance benefits. The court concluded that California Probate Code § 19001 authorized payment to the judgment creditor from trust assets without requiring the creditor to first sue the trustees.
The Dobler court affirmed, holding that a judgment against a decedent becomes a valid claim against both tire decedent’s estate and, where necessary, against assets placed in an inter vivos trust that were subject to revocation during the settlor’s lifetime. 89 Ca. App. 4th at 540. The Dobler court also commented on the proper adjudication of claims against the trust. To be entitled to invoke the payment procedure of Probate Code § 19001, a judgment creditor need only establish it has a money judgment against the decedent. Thereafter, the judgment is paid in the normal course of administration of the trust. Thus, it was unnecessary for the creditor to either amend the complaint to name the trust or trustees as parties defendant or, in the alternative, to file a separate action against the trustees. 89 Cal. App. 4th at 539-41.
Based on K.S.A. 58a-505, we find the district court did not err in concluding that the Trust was subject to the judgment obtained by Commerce.
Next, the Trust claims that if K.S.A. 58a-505(a)(3) allows Commerce to attach its assets, it does not allow the attachment of Wanda’s IRA accounts which were expressly excluded in the bank note, were exempt under K.S.A. 60-2308(b), and did not come into the Trust until after Wanda’s death.
There is no question in this case that IRA benefits are statutorily “exempt from any and all claims of creditors of the beneficiary or participant.” K.S.A. 60-2308(b); see Bartlett Cooperative Ass’n v. Patton, 239 Kan. 628, Syl. ¶¶ 2, 3, 722 P.2d 551 (1986) (IRAs are precluded from garnishment under Kansas law for proceedings filed on or after July 1, 1986). The promissory note complied with K.S.A. 60-2308(b), where it limited the right of setoff by expressly excluding any IRA or Keogh accounts or any trust accounts where setoff would be prohibited by law. Commerce could not reach the IRAs during Wanda’s life. The question in this case is whether Commerce can reach the IRA benefits after Wanda’s death where the beneficiary of the IRA benefits is the Trust.
Commerce argues, and the district court held, the exemptions that surround an IRA or its benefits to the settlor are personal to the settlor. We agree. The exemption is not transferable and disappears upon the death of the settlor, except for certain statutory exceptions such as the homestead rights and various real and personal property. See K.S.A. 59-401; K.S.A. 59-403. In In re Vary Estate, 401 Mich. 340, 350, 258 N.W.2d 11 (1977), cert. denied 434 U.S. 1087 (1978), the court applied this rationale in the context of Social Security benefits:
“We think the same reasoning applies here. If the Congress intended to exempt benefits such as paid to Mrs. Vary from legal process even when the recipient died, it would have said so or would have used different wording. Both Philpott [, 409 U.S. 413 (1973),] and Porter [, 370 U.S. 159 (1963),] indicate that such benefits are for support of living people with continuing needs. Exemption is a protection that does not survive the individual. It is a personal protection which dies with the beneficiary.”
Rlack letter law also supported the personal nature of an exemption. 31 Am. Jur. 2d, Exemptions § 238 (2002), provides:
“The right to an exemption exists solely by virtue of express constitutional or statutory provisions. Accordingly, any determination of persons or classes of persons who may claim exemptions in any particular state must be directed to that state’s constitution and statutes and, unless the debtor claiming an exemption is one of the persons or classes of persons therein named, his claim cannot prevail, because a debtor’s right to an exemption is a personal one which does not survive the death of the person in whose favor it exists.”
See also 31 Am. Jur 2d, Exemptions § 239 (which provides that the right of exemption is limited to a natural, rather than a legal, person).
'The majority of the cases cited by the Trust involve the exemption of IRAs during the lifetime of the settlor and do not address the exemption after the settlor s death. Central Bank v. Hickey, 238 Conn. 778, 680 A.2d 298 (1996); Dunn v. Doskocz, 590 So. 2d 521 (Fla. Dist. App. 1991); Jakubik v. Jakubik, 208 Ill. App. 3d 119, 566 N.E.2d 808 (1991); C.P. v. Piscataway Tp. Bd. of Educ., 293 N.J. Super. 421, 681 A.2d 105 (1966); Greening Donald v. Okla. Wire Rope Prod., 766 P.2d 970, 972 (Okla. 1988); Lozano v. Lozano, 975 S.W.2d 63 (Tex. Civ. App. 1998).
We recognized Matter of Gallet, 196 Misc. 2d 303, 765 N.Y.S.2d 157 (2003), where the New York court concluded that because of the decedent’s lack of access to retirement plans during his life and the presumed intent of the New York Legislature to continue the protection of exempt assets following death, the decedent’s federal thrift saving plan and IRA were not subject to creditor’s claims. 196 Misc. 2d at 310-11. Gallet is based on New York legislation that the rights of beneficiaries of exempt assets “shall not be impaired or defeated by any statute or rule of law governing the transfer of property by will, gift or intestacy.” See N.Y. Estates, Powers and Trusts Law § 13-3.2 (McKinney 2001). Gallet also relied on legislative histoiy providing:
“Hence there is an obvious relation between exemptions and provisions making administration unnecessary .... To the extent that death benefits under pension and retirement plans are exempt, there seems to be no harm in permitting their payment to others than the personal representative. [Citation omitted.]” 196 Misc. 2d at 308-09.
The Trust raises a hypothetical scenario concerning whether Commerce would be able to make the same argument concerning other federally exempt benefits that would come into a revocable trust after the death of the recipient simply because they pass to the trust. The Trust argues the answer is no. The problem with the Trust’s cited Kansas authority is that it again does not address the status of the exemption after death of the settlor. The cases do not involve a decedent’s property or trust. See Decker & Mattison Co. v. Wilson, 273 Kan. 402, 409, 44 P.3d 341 (2002) (depositing worker compensation benefits in a joint account does not, by itself, destroy the exemption for seizure or sale); E.W. v. Hall, 260 Kan. 99, Syl. ¶¶ 1, 2, 917 P.2d 854 (1966) (held that Social Security benefits were exempt from attachment or garnishment and that Social Security benefits did not lose their exempt status when they were invested in certificates of deposit); Younger v. Mitchell, 245 Kan. 204, 211-12, 777 P.2d 789 (1989) (concerned the exemption of monies in a bank account that consisted solely of the defendant’s Social Securiiy and veterans disability benefits).
The Trust argues there is no policy reason why property received by a revocable trust as a result of the death of the settlor, which is or was otherwise exempt from the claims of the settlor’s creditors, suddenly becomes subject to the claims of the settlor’s creditors. The Trust makes a comparison to payable on death accounts and joint tenancy accounts being accessible to creditors during the life of the settlor but not upon death. See In re Estate of Harrison, 25 Kan. App. 2d 661, 669, 967 P.2d 1091 (1998), rev. denied 267 Kan. 885 (1999) (property held by a decedent and another in joint tenancy passes to the survivor, and the property is not part of the decedent’s probate estate); Snodgrass v. Lyndon State Bank, 15 Kan. App. 2d 546, 811 P.2d 58, rev. denied 249 Kan. 776 (1991) (payment on death account). The Trust claims that if Wanda had named specific beneficiaries of the IRA, then the IRA proceeds would automatically pass at her death to the named beneficiaries. See Estate of Davis, 171 Cal. App. 3d 854, 217 Cal. Rptr. 734 (1985); In re Estate of McIntosh, 146 N.H. 474, 773 A.2d 649 (2001); compare K.S.A. 40-414 (life insurance benefits are protected for any “person or persons” having an insurance interest in the life of the insured); In re Douglas, 59 Bankr. 836 (Bankr. D. Kan. 1986). We do not challenge this specific argument by the Trust. We realize the benefit of naming specific individuals as beneficiaries of an IRA. However, that is not the estate planning devise selected by Wanda. Instead, Wanda named her revocable Trust as the beneficiary of her IRAs, and the legislature has determined that assets in a revocable trust are subject to the claims of creditors at the death of the settlor. K.S.A. 58a-505.
The Trust argues that protecting Commerce in this situation stands the law upside down by making assets which are exempt during Wanda’s lifetime available for creditors who have not exercised or attempted to exercise any rights during Wanda’s lifetime, but allows assets such as joint tenancy accounts or pay on death accounts to be exempt from creditors. The Trust claims this result is inconsistent with the United States Supreme Court’s recent opinion in Rousey v. Jacoway, 544 U.S. 320, 161 L. Ed. 2d 563, 125 S. Ct. 1561 (2005). We find the Trust’s argument unpersuasive. Again, Rousey involved whether a Chapter 7 bankruptcy petitioner could exempt assets in a IRA from the bankruptcy estate pursuant to 11 U.S.C. § 522(d)(10)(E) (2000 ed. and Supp. II). The Rousey Court held that IRAs can be so exempted. 544 U.S. at 322. However, Rousey provides no authority on exemption of the IRA after the settlor’s death or for assets held in trust.
The Trust argues IRAs remain IRAs in payout status. While this may be true in a inter vivos situation, the result is not the same upon the death of the settlor. In fact, the federal bankruptcy code makes a distinction between an IRA beneficiary and an inherited IRA beneficiary. The court in In Re Navarre, 332 Bankr. 24, 30-31 (Bankr. M. D. Ala. 2004), stated:
“The question becomes whether an inherited IRA is equivalent to an IRA for purposes of determining whether it is exempt from the bankrupt estate. Examination of the Internal Revenue Code would suggest that it is not because the tax code treats an inherited interest different than an IRA. See, 26 U.S.C. § 408(d)(3)(C) (which distinguishes ‘inherited individual retirement accounts’ from ‘individual retirement accounts’). For this reason an ‘inherited individual retirement account’ does not fit within the definitional scope of § 19-3-1 and therefore, it is not exempt from the bankrupt estate.
“The Court relies upon Sims [, 241 Bankr. 467 (Bankr. N.D. Okla. (1999)], recognizing that it is decided under an Oklahoma exemption statute. The Court in Sims found that an IRA is exempt from the bankrupt estate as a matter of Oklahoma law. Similarly, an IRA account owned by a debtor who files bankruptcy in Alabama is likewise exempt. The Court in Sims examined 26 U.S.C. § 408(d)(3)(C) and concluded that an inherited individual retirement account is different than an individual retirement account and for that reason is not exempt. This Court does not rely upon the examination of Oklahoma law undertaken by the Court in Sims but rather it does agree with its conclusion, which is based upon its examination of the Internal Revenue Code, that an inherited IRA is sufficiently different from an IRA. so as to preclude its exemption from the bankrupt estate. See also, In re Greenfield, 289 B.R. 146, 150 (Bankr. S.D. Cal. 2003) (inherited IRA account not exempt under California statute).”
The district court’s decision in this case does not stand the law upside down under the Kansas Uniform Trust Code. The assets in the Trust are subject to the claims of Wanda’s creditors pursuant to K.S.A. 58a-505. Although Wanda’s IRA benefits were not available to her creditors during her lifetime, they are available to her creditors upon her death because she placed them in an inter vivos revocable trust.
The Trust finally argues the district court erred in attaching and freezing trust assets prior to the completion of the foreclosure action and before the estate had been fully administered. Considering the lack of prejudice resulting from attachment of trust assets or the freeze order, the Trust’s argument is more a policy complaint for the effective administration of a probate estate. The Trust insists that to allow any creditor to join a trust in a lawsuit prior to the outcome of a foreclosure action and probate process threatens the orderly distribution of estates and jeopardizes all trust distributions in a companion estate situation.
Commerce made a proper demand against the Estate by filing its Chapter 60 action. See K.S.A. 59-1303; K.S.A. 59-2238(2). Commerce later amended its petition to include the Trust as a defendant in the Chapter 60 action. The district court entered judgment against the Estate on December 21, 2004, for the amount of its claim. It is undisputed that documents filed in Wanda’s probate case on December 2, 2004, clearly showed the insolvency of her Estate. Consequently, although the probate proceedings were not completed by January 24, 2005, there is no dispute the Estate would be insufficient to pay Commerce’s claim on the date when the district court entered judgment against the Trust making it jointly and severally liable with the probate Estate for Commerce’s claim.
The district court was within its authority to freeze those assets in the Trust sufficient to pay Commerce’s judgment in order to counter the risk that the trustee would deplete the assets and prevent Commerce from satisfying its judgment. See General Building Cont., L.L.C. v. Board of Shawnee County Comm'rs, 275 Kan. 525, 542, 66 P.3d 873 (2003) (the establishment of a bona fide risk to defendants’ ability to pay a judgment satisfies the -criteria of a “ ‘probable right’ ” to the injunctive relief sought and a “ ‘probable danger’ ” of irreparable injury if that injunctive relief is not granted).
The parties have differing interpretations of K.S.A. 58a-505(a)(3). Commerce argues diere is no language in K.S.A. 58a-505(a)(3) compelling a creditor to first exhaust all remedies against a decedent’s estate before the creditor can make a claim against a decedent’s trust. The Trust suggests that at most a revocable trust is hable under K.S.A. 58a-505 for the settlor’s debts only to the extent the probate estate is insufficient and not jointly and severally liable as an original party for any and all debts. The Trust cites a comment to the Uniform Trust Code § 505(a)(3) (2000):
“However, in accordance with traditional doctrine, the assets of the settlor’s probate estate must normally first be exhausted before the assets of the revocable trust can be reached. This section does not attempt to address the procedural issues raised by the need first to exhaust the decedent’s probate assets before reaching the assets of the revocable trust.”
The Trust also cites K.S.A. 59-1303 of the Kansas Probate Code concerning a creditor with a secured claim:
“When a claimant holds any security for his or her demand, it may be allowed, conditioned upon the claimant surrendering the security or upon the claimant exhausting the security; it shall be allowed for the full amount found to be due if the security has been surrendered, or for any remaining amount found to be due if the security has been exhausted.”
In conjunction with K.S.A. 59-1303, the Trust cites cases addressing the statute holding that a creditor can make a demand against the decedent’s estate and have the same allowed in full, provided the creditor surrenders the security, or the creditor can exhaust the security and make a claim for any deficiency remaining due, but not both. See In re Estate of Dahn, 204 Kan. 535, 464 P.2d 238 (1970); In re Estate of Klein, 166 Kan. 334, 201 P.2d 633 (1949). Commerce distinguishes Dahn and Klein as only providing that a secured claim may not be allowed without the claimant first surrendering or exhausting its security.
Commerce states that the Trust was the residuary beneficiary of the Estate which created a unchanged net result to the Trust even if claims were paid by the Trust. Further, Commerce states that the fees, expenses, and IRS claims against the Estate exceeded the assets of the Trust such that no part of Commerce’s claim was paid by the Estate. Consequently, had the district court waited until final settlement of the Estate, the result would have been the same.
Although we understand the necessity of efficient resolution of claims against a decedent’s estate, we find this case unique in that the district court had clear evidence that the Estate was insolvent and that no part of Commerce’s claim would be paid by the Estate before the district court ever entered judgment against the Trust or froze the Trust assets. Even if we were to find the district court erroneously froze assets in the Trust equal to Commerce’s claim, the error was harmless. Harmless error is error which does not prejudice the substantial rights of a party. It affords no basis for reversal of a judgment and must be disregarded. Smith v. Printup, 262 Kan. 587, 603, 938 P.2d 1261 (1997). The Trust does not present any evidence to counter the district court’s finding that neither the Trust, the Trustee, nor any of the beneficiaries were harmed by the freeze order. There is no evidence disputing the facts that the Estate was insolvent, the Trust had assets in excess of $200,000, and Commerce’s claims were approximately $80,000.
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Leben, J.:
Highway Patrol Trooper Mitch Clark found Richard Barriger’s truck parked partially blocking traffic on a state highway at night with Barriger relieving himself by the side of the truck. Clark stopped and found that Barriger had bloodshot, watery eyes, smelled of alcohol, admitted to drinking earlier that night, and had trouble locating his driver’s license in his wallet. Because this two-lane highway had no paved shoulders, was poorly lit, and the truck had stopped near an intersection and a curve, Clark took Barriger 1 mile down the road to a parking lot to conduct standard field-sobriety tests. Based on those tests, Clark determined that Barriger had been driving while intoxicated and arrested him. A test then showed Barriger’s blood-alcohol level as .15, over the legal limit of .08. Barriger was convicted of driving under the influence of alcohol; it was his third DUI offense.
Barriger appeals his conviction based on the claim that taking him away from the scene to do the field-sobriety tests converted his detention into an arrest, one that was not yet justified. We find nothing improper about taking him to a nearby parking lot when it would clearly have been unsafe to proceed at the original location.
Before we consider more of the facts of Barriger s encounter with Trooper Clark, let’s provide the legal context of why any of this might matter. All of us are protected by the Fourth Amendment from unreasonable searches and seizures, and court decisions about what’s reasonable in various situations guide what the police may do. Police may stop and detain us briefly on the roadways based on reasonable suspicion, meaning an objective and specific basis for believing that the person being detained is involved in criminal activity. See State v. Pollman, 286 Kan. 881, Syl. ¶¶ 3-5, 190 P.3d 234 (2008). But to arrest a person, the officer must meet a higher standard: probable cause, which exists when a person of reasonable caution could conclude from the known facts that an offense has been or is being committed. State v. Fewell, 286 Kan. 370, Syl. ¶ 4, 184 P.3d 903 (2008); see Pollman, 286 Kan. 881, Syl. ¶ 6.
No facts are disputed. Trooper Clark came across Barriger urinating on the roadway outside his pickup truck at about 11:20 p.m. the night after Christmas. The truck was parked partially on K-61 highway about where that highway intersects Northeast 20th Street in Pratt. According to Clark’s testimony, there are no paved shoulders, the pickup was near the intersection, it’s on a curve, and there’s a train track next to the highway. When Clark pulled his patrol car behind the pickup, Barriger went into the pickup and turned it off. Clark approached and was greeted by the smell of alcohol. He noticed that Barriger’s eyes were bloodshot and watery and that Barriger’s pants were unzipped and wet in the crotch area. When Clark asked Barriger for his license, Barriger fumbled in his wallet, initially passing over the driver’s license, before he located it and handed it to Clark.
From these observations, Clark suspected that Barriger had been driving under the influence of alcohol. Clark explained that because the pickup was on the roadway, Clark wanted permission to move it off the roadway. Clark also said he’d like to take Barriger to a nearby location to conduct field-sobriety tests to see whether Barriger could safely drive away. Barriger agreed to these requests. Clark parked the pickup off the roadway surface and took Barriger to the parking lot of Pratt Community College, about a mile away.
In Clark’s judgment, Barriger showed several indicators of impairment in the field-sobriety tests. Clark concluded them by administering a prekminaiy breath test with a portable breath-test unit; it too indicated impairment. Clark then arrested Barriger at 11:46 p.m. Clark then gave Barriger the required advisories about further testing. Barriger agreed to a blood test, which was drawn at the local hospital.
Because there are no disputed facts, we judge the reasonableness of the officer’s actions independently, without any required deference to the district court, which upheld the officer’s actions. See State v. Hill, 281 Kan. 136, Syl. ¶ 2, 130 P.3d 1 (2006). The entire encounter took 26 minutes from the trooper’s arrival until the officer formally arrested Barriger after the field-sobriety tests.
Barriger contends that the officer didn’t have probable cause to arrest him before the field-sobriety tests were conducted. He concedes that the officer could properly investigate and ask him questions at the scene where his truck had initially stopped, but he contends that the officer arrested him — without probable cause— when he took him 1 mile away to do further investigation. Because the arrest was illegal, Barriger argues, all evidence obtained after that, including his blood-test result, must be thrown out.
Courts elsewhere have faced this general question frequently enough that Professor Wayne LaFave has concluded that “it seems clear that some movement of the suspect in the general vicinity of the stop is permissible without converting what would otherwise be a temporary seizure into an arrest.” 4 LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 9.2(g), at 348 (4th ed. 2004). For example, the United States Court of Appeals for the Tenth Circuit upheld the movement of a person suspected of drug trafficking 8 or 9 miles down the road to facilitate having a drug dog sniff the exterior of the suspect’s rented car. United States v. White, 584 F.3d 935, 952-56 (10th Cir. 2009). In White, rather than holding the suspect at the scene, the officer had him follow the patrol car down the road to a parking lot next to a state transportation department field office where an officer with a drug dog coming from the other direction could meet them. The field office was in the same direction the suspect had been travelling, going there shortened the time needed to have a drug dog sniff the car, and other cases have held that a suspect may be detained for some time to await the arrival of a drug dog when there’s reasonable suspicion of drugs in the vehicle. Thus, the court held that the investigatory detention was not converted into an arrest, even though the suspect was moved 8 or 9 miles at the officer’s request. 584 F.3d at 954-56.
The White case differs from Barriger’s in that the suspect in White was moved to expedite the investigation, while Barriger was moved for safety reasons. But that’s a reason the United States Supreme Court has explicitly said is a valid one: “[T]here are undoubtedly reasons of safety and security that would justify moving a suspect from one location to another during an investigatory detention.” Florida v. Royer, 460 U.S. 491, 504, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983) (plurality opinion). In a case quite similar to Barriger’s, the United States Court of Appeals for the Sixth Circuit held that moving a suspect from alongside a freeway to a location under the freeway overpass during heavy rain did not convert an investigatory detention into an arrest. United States v. Pino, 855 F.2d 357, 361-63 (6th Cir. 1988). The trial court in Pino concluded that the move to the underpass was necessary to shield the officer and the suspect from the heavy rain and to promote the safety of vehicles passing by on the interstate. The Sixth Circuit agreed, concluding that the move was appropriate because it was no more intrusive than reasonably necessary, did not result in a more institutional setting that could have led the suspect to feel that he was under arrest, and did not so lengthen the detention as to become unnecessarily intrusive. 855 F.2d at 362.
Because the Fourth Amendment prohibits unreasonable searches and seizures, the central question in all Fourth Amendment cases is what is reasonable. Michigan v. Fisher, 558 U.S. 45, 47, 175 L. Ed. 2d 410, 130 S. Ct. 546 (2009); State v. Smith, 286 Kan. 402, 407, 184 P.3d 890 (2008). Courts consider an investigatory detention acceptable when based only on reasonable suspicion — rather than tire probable-cause standard needed for an arrest — largely because it is assumed that an investigatory detention will be relatively brief and no longer than reasonably necessary. Thus, an investigatory detention must be temporary and last no longer than is necessary under the circumstances. Royer, 460 U.S. at 500; White, 584 F.3d at 953-54; State v. Thompson, 284 Kan. 763, Syl. ¶ 7, 166 P.3d 1015 (2007). Normally the scope and duration must be reasonable in relation to the reason for the investigation. Smith, 286 Kan. at 407. But with reasonableness as the guide and safety concerns at hand, an officer should be allowed to act reasonably to protect the safety of both the officer and the suspect while still following all other rules applied to an investigatory detention. We conclude, therefore, that when required for fhe safety of the officer or suspect, a suspect may be moved a short distance during an investigatory detention if that is consistent with the purposes of the investigation, does not unduly prolong the duration of the detention, and does not otherwise turn the situation into the equivalent of a formal arrest.
Barriger cites two decisions from our court in support of his argument that the investigatory detention of him transformed into an arrest when he was moved to the parking lot for field-sobriety tests. In both cases, the suspect was taken a short distance to the local police station for field-sobriety testing. See City of Norton v. Wonderly, 38 Kan. App. 2d 797, 800-01, 172 P.3d 1205, rev. denied 286 Kan. 1176 (2008); City of Norton v. Schoenthaler, 2007 WL 2410122 (Kan. App. 2007) (unpublished opinion), rev. denied February 13, 2008. In our view, each of these cases is premised on the notion that the officer had turned the situation into the equivalent of a formal arrest by the combination of all other factors joined with taking the suspect to the police station and by the overall situation. In Wonderly, for example, the suspect was handcuffed for the two-block trip to fhe station. Professor LaFave has noted that moving the suspect from another location to a police station usually converts a detention into the equivalent of an arrest, 4 LaFave, Search & Seizure § 9.2(g), at 354-55, and the Pino court specifically noted that the move from the rainy interstate highway to a location in the underpass was acceptable in part because it did not result in a more institutional setting and thus was “no more intrusive than the original stop on the interstate.” 855 F.2d at 362. The same is true in Barriger’s case — a parking lot next to an edu cational institution was substituted for a state highway at an intersection. The substitute location was no more intrusive yet much safer, and it was only a short distance away.
Because the ultimate test in a Fourth Amendment case is reasonableness, there usually is no single factor that is determinative. Instead, the court must consider all of the facts in the case before it. See Thompson, 284 Kan. 763, Syl. ¶ 20. Barriger had stopped his truck on a highway near an intersection with another road, and there was no paved shoulder on which to do field-sobriety tests. The officer’s request to move to a nearby parking lot was reasonable, did not prolong the traffic stop more than was reasonably necessary, and did not otherwise turn the situation into the equivalent of a formal arrest. The trooper did not use handcuffs, draw a weapon, or force compliance in any physical way. The trooper neither searched Barriger’s truck nor asked permission to do so— he focused only on a single task of determining whether Barriger could safely drive.
While the trooper did have possession of Barriger’s keys and driver’s license, the trooper needed the keys to safely move the truck out of the roadway, and the retention of a license by itself does not turn an investigatory detention into an arrest. After all, the significance of the retention of a license is merely that it’s a factor in determining whether a person is free to leave. See Pollman, 286 Kan. at 889. But a person is seized (i.e., is not free to leave) whether the situation is an investigatoiy detention or an arrest. Thus, the retention of the keys and license have little role in determining whether Barriger was merely detained for a relatively brief investigation or had been arrested. See 4 LaFave, Search & Seizure § 9.2(g), at 354.
After hearing the evidence, the district judge in this case found that die officer hadn’t converted the investigatory detention into an illegal arrest, concluding that “the actions of the officer just seem to be appropriate to me.” He concluded with a hypothetical situation in which the officer had been new to the job and had called the judge at home at 11:30 p.m., saying, “What do I do? I’ve got this guy partially blocking 61 Highway and I don’t know what to do. It’s my first day on the job.” The judge said he would have replied, if he had retired and were permitted to answer, “Well, get his car off the highway and make sure he’s okay.” We think die judge called it right — getting Barriger’s truck off the highway and then conducting field-sobriety tests at a convenient, nearby parking lot was reasonable. The judgment of the district court is therefore affirmed. | [
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Larson, J.:
This is Clifford Baughman’s direct appeal from his conviction in a jury trial of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(l).
Baughman alleges on appeal that the district court erred (1) in giving the “deadlocked” jury instruction over his specific objection; (2) in failing to require an election or giving an instruction in a multiple acts situation; (3) by excluding evidence of the victim’s previous sexual history for the purpose of impeachment; and (4) by refusing to remove Baughman’s appointed counsel on the morning of the jury trial.
We reverse and remand for further proceedings because the district court erred in giving, over Baughman’s specific objection, a deadlocked jury instruction which had been disapproved by our appellate court in State v. Salts, 288 Kan. 263, 200 P.3d 464 (2009), State v. Scott-Herring, 284 Kan. 172, 180-81, 159 P.3d 1028 (2007), State v. Turner, 34 Kan. App. 2d 131, 132-36, 115 P.3d 776 (2005), and other cases.
We will briefly set forth trial testimony in commenting on other issues, but such a discussion is not necessary to resolve the dispositive issue in this appeal.
The Allen v. United States, 164 U.S. 492, 41 L. Ed. 528, 17 S. Ct. 154 (1896), “deadlocked jury instruction” was given in this case, along with other jury instructions, and reads as follows:
“No. 14
“This is an important case. If you should fail to reach a decision, the case is left open and undecided. Like all cases, it must be decided sometime. Another trial would be a heavy burden on both sides.
“There is no reason to believe that the case can be tried again any better or more exhaustively than it has been. There is no reason to believe that more evidence or clearer evidence would be produced on behalf of either side.
“Also, there is no reason to believe that the case would ever be submitted to 12 people more intelligent or more impartial or more reasonable than you. Any future jury must be selected in the same manner that you were.
“This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision.
“This does mean that you should give respectful consideration to each other’s views and talk over any differences of opinion in a spirit of fairness and candor. If at all possible, you should resolve any differences and come to a common conclusion. You may be as leisurely in your deliberations as die occasion may require and take all the time you feel necessary.”
Because Baughman objected to instruction No. 14, the instructions are to be considered by an appellate court as a whole and not isolate any one instruction. Even if erroneous in some way, instructions are not reversible error if they properly and fairly state the law as applied to the facts of the case and could not have reasonably misled the jury. State v. McKissack, 283 Kan. 721, 732, 156 P.3d 1249 (2007).
Baughman, in a Supreme Court Rule 6.09 letter (2009 Kan. Ct. R. Annot. 47) following oral argument, suggests that this standard has been stated another way in a recent case, State v. Williams, 42 Kan. App. 2d 725, Syl. ¶ 1, 216 P.3d 707 (2009): “An appellate court examines jury instructions as a whole, without focusing on any single instruction, in order to determine whether they properly and fairly state the applicable law or whether it is reasonable to conclude that they could have misled the jury.” We will follow the standard of review most recently set forth in a Supreme Court opinion, State v. Appleby, 289 Kan. 1017, 1059, 221 P.3d 525 (2009), which states:
“When a party has objected to an instruction at trial, the instruction will be examined on appeal to determine if it properly and fairly states the law as applied to the facts of the case and could not have reasonably misled the jury. In making this determination an appellate court is required to consider the instructions as a whole and not isolate any one instruction. [Citations omitted.]”
In his appeal, Baughman argues the instruction is unduly coercive, misleading, confusing, and legally infirm because it allows the jury to consider matters outside the evidence produced at trial and improperly appeals to the financial interests of jurors. He further argues instruction No. 14 is in direct conflict with instruction No. 11. Specific language in instruction No. 14 has been disapproved in prior appellate opinions, and the instruction given follows exactly the pre-2005 version of PIK Crim. 3d 68.12, which our Supreme Court in State v. Scott-Herring, 284 Kan. at 181, specifically directed that trial judges should discontinue using.
The State recognizes the holdings of the several cases which Baughman cites but argues they do not require reversal in our case. The State points out that while “like all cases, it must be decided sometime” is an inaccurate statement of law, State v. Scott-Herring did not require reversal and under the standard of review proper and fair instructions were required rather than “technically perfect instructions.” The State further points to the fact there was no objection in the State v. Salts case, which required a clearly erroneous standard of review, and the court concluded there was no reversible error because there was no real possibility the juiy would have reached a different verdict absent the error. 288 Kan. at 266-67.
The State distinguishes the recent case of State v. Page, 41 Kan. App. 2d 584, 203 P.3d 1277 (2009), where giving the deadlocked juiy instruction was objected to and deemed to be reversible error because the jury had informed the court it was deadlocked on count II but continued deliberations the following day and eventually found Page guilty. The State argues Baughman’s case is different as there were no deadlock or hung juiy announcements and, in fact, the juiy came back with a split verdict, finding Baughman not guilty on count I and guilty on count II.
The problems with the language of PIK Crim. 3d 68.12 was first set forth in Judge Malone’s opinion in State v. Turner where the “Like all cases, it must be decided sometime” language was held to be an inaccurate statement of law because the case might not be retried and could be dismissed without prejudice and never decided. 34 Kan. App. 2d at 134. The Turner opinion stated there was nothing to support a pressured verdict and the juiy could not reasonably have been misled by the instructions. 34 Kan. App. 2d at 136.
This same language was objected to in State v. Scott-Herring but not found to be sufficiently erroneous to require reversal of a first-degree murder conviction. Justice Rosen pointed out in Scott-Herring that appellant’s argument had recently been rejected in State v. Anthony, 282 Kan. 201, 215-16, 145 P.3d 1 (2006), where a clearly erroneous standard was applied because the defendant had not objected to the instruction. The Scott-Herring opinion noted that much of the concern about the instruction had been remedied by the PIK Committee, and the court stated that the current version was a more accurate statement of a jury’s responsibilities. The Scott-Herring opinion quoted the modified instruction as it now reads:
“Like all cases, this is an important case. If you fail to reach a decision on some or all of the charges, that charge or charges are left undecided for the time being. It is then up to the state to decide whether to resubmit the undecided charge(s) to a different jury at a later time.
“This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision.
“This does not mean that you should give respectful consideration to each other’s views and talk over any differences of opinion in a spirit of fairness and candor. You should treat the matter seriously and keep an open mind. If at all possible, you should resolve any differences and come to a common conclusion.
“You may be as leisurely in your deliberations as the occasion may require and take all the time you feel necessary. PIK Crim. 3d 68.12 (2005 Supp.).” 284 Kan. at 181.
As we previously noted, the Scott-Herring opinion further directs trial judges to discontinue using the pre-2005 version of PIK Crim. 3d 68.12. It is factored in our decision to reverse the trial court that this direction was not followed in our case and the instruction given, over objection, was in the precise language of the pre-2005 version of PIK Crim. 3d 68.12.
State v. Salts was decided subsequent to the trial in our case. The unobjected-to Allen-type instruction there included the “another trial would be a burden on both sides” language. Also given in the Salts case and in ours was instruction No. 11, which states: “Your only concern in this case is determining if the defendant is guilty or not guilty. The disposition of the case thereafter is a matter for determination by the Court.”
In discussing the challenged language, Justice Beier said:
“Salts’ argument that the challenged language is misleading and inaccurate has merit. Contrary to this language, a second trial may be burdensome to some but not all on either side of a criminal case. Moreover, the language is confusing. It sends conflicting signals when read alongside Instruction 11 or a similar instruction that tells jurors not to concern themselves with what happens after they arrive at a verdict.
“We therefore hold that including the language ‘[ajnother trial would be a burden on both sides’ in PIK Crim. 3d 68.12 is error.” 288 Kan. at 266.
Using a clearly erroneous standard, the Salts court did not reverse, being “firmly convinced that there is no real possibility the jury would have rendered a different verdict if the error had not occurred.” 288 Kan. at 267.
State v. Page was decided by the Court of Appeals shortly after the Salts opinion was handed down. In the Page opinion by Chief Judge Rulon, the holding of Salts was discussed. It was recognized that the “deadlocked” jury instruction had been objected to by the defendant and the Page opinion concluded:
“According to our Supreme Court, telling a jury that ‘ “[ajnother trial would be a burden on both sides” ’ is misleading, inaccurate, and confusing. [288 Kan. at 265-66]. Moreover, in this case the jury actually informed the district court a hung jury was a real possibility. In fact, the jury indicated it was deadlocked as to count II. The district court responded by recessing for the evening. When the jury returned the next day, the jury requested the court read back certain testimony. The jury eventually convicted the defendant of two counts of rape. Given the fact our Supreme Court has held the deadlocked jury instruction misleading and the real possibility the jury in this case was at least influenced by the erroneous language in the jury instruction, this defendant’s convictions must be reversed.” 41 Kan. App. 2d at 586-87.
It appears in Page that our court did, in part, rely on the jury’s statement of possible deadlock in reaching its decision. However, Page does not say that signs of possible jury deadlock are necessary for reversal, only that it was a factor.
Our next Court of Appeals decision, State v. Pruitt, 42 Kan. App. 2d 166, 211 P.3d 166 (2009), reversed a conviction as the result of the giving of an improper Allen instruction without any discussion of whether the jury might have been deadlocked or evidence that it was. The Pruitt opinion noted that the Allen instruction conflicted with the instruction which stated: “Your only concern in this case is determining whether the defendant is guilty or not guilty. The disposition of the case thereafter is a matter for determination by the Court.” 42 Kan. App. 2d at 174. Pruitt discussed the Salts decision and concluded:
“Here, Pruitt, however, objected to the giving of the deadlocked jury instruction. As a result, the clearly erroneous standard applied in Salts is inapplicable to this case. We must consider whether the Allen instruction properly and fairly stated the law as applied to the facts of the case and whether die instruction could have misled tire jury. Because the Allen instruction was misleading and it contradicted another jury instruction, Pruitt’s conviction must be reversed. See State v. Page, 41 Kan. App. 2d 584, 586-87, 203 P.3d 1277 (2009). (‘Given the fact our Supreme Court has held the deadlocked jury instruction misleading and the real possibility the jury in this case was at least influenced by the erroneous language in the jury instruction, this defendant’s convictions must be reversed.’).” 42 Kan. App. 2d at 175.
It should also be noted that the Pruitt court reversed the conviction on an alternate ground of cumulative error, but Judge McAnany concurred in part and dissented in part, stating:
“I concur with the majority that this case must be reversed and remanded. Because Pruitt objected to the Allen instruction, State v. Salts, 288 Kan. 263, Syl. ¶ 2, 200 P.3d 464 (2009), requires that we do so. However, I would not reverse based upon the other claimed trial errors or based upon a cumulative error analysis.” 42 Kan. App. 2d at 178.
It is thus clear that Judge McAnany would have reversed solely as the result of the objected-to Allen instruction and further that the panel did not believe any confusion or thought of deadlock on the part of the jury was necessary for reversal to be required.
There are also two more recent Court of Appeals cases, both of which were not published, which turned on the Allen issue. In State v. Rivera, No. 100,848, unpublished opinion filed January 29,2010, a DUI conviction was reversed where the “deadlock” jury instruction was given prior to opening statements. As the trial court reached the “another trial would be a heavy burden language,” Rivera immediately objected, stating: “Judge, I would request that you not give them the [Alien-type] charge before they start deliberating because I don’t think that’s appropriate before, I mean, you’re basically giving them an [Allen-type] charge.” Slip op. at 11- 12. The trial court overruled the objection and read the instruction again.
After retiring for deliberations, the jury asked several questions and eventually advised the court, “We are at an impasse.” The judge asked the jury if they had additional time if they could reach a verdict, and when a juror responded affirmatively, the jury was directed to continue to deliberate and eventually returned a guilty verdict.
The Rivera opinion commented on Salts, Page, the conflicting language, and the effect on a deadlocked jury, and reversed the conviction and remanded for a new trial because the deadlocked jury instruction had been disapproved in Salts. Slip op. at 16-17.
The most recent decision on this issue is State v. Starbird, No. 101, 559, unpublished opinion filed February 26, 2010, where the deadlocked jury instruction was given prior to deliberations but was not objected to. The Starbird panel found this did not constitute reversible error under a clearly erroneous standard. After discussing Salts and Page, the Starbird court held there was never any indication the jury was deadlocked or impacted by the instruction and following Salts, Starbird was unable to establish the giving of the instruction was clearly erroneous.
In reaching our conclusion, we begin with the fact the instruction as given and objected to was in clear violation of the express direction by our Supreme Court in the 2007 opinion in Scott-Herring to discontinue using the pre-2005 version of PIK Crim. 3d 68.12. See 284 Kan. at 181. The instruction given was subject to all of the negatives that have been set forth in the cases we have cited. Scott-Herring does not set forth the consequences of failure to follow its direction but an obvious result would be reversal of the offending case.
However, the question which must be answered where there is a clear objection to an erroneous instruction is whether it “could not have reasonably misled the jury.” We hold it is not necessary to have a jury report that it is at an impasse in order to reach the decision that an admittedly erroneous instruction has misled a juiy. The fact there was a split verdict in our case does not show the lack of confusion as the State argues, it could just as easily be evidence of confusion.
The instruction given in our case was specifically determined by our Supreme Court in Salts to be misleading, inaccurate, and erroneous. See 288 Kan. at 266. The clear reasoning, language, and result in Truitt where a reversal was ordered without any discussion of the interaction of the jury with the court is persuasive.
We hold the instruction as given, considered in its entirety, could have reasonably misled the jury. Consequently, we reverse the defendant’s convictions and remand for further proceedings.
The future course of this case is not within our control. But, if it is tried again and the evidence presented is substantially the same as in the first trial, we offer limited comments as to the other issues raised on appeal.
The testimony as to the interaction between the defendant and victim on July 15, 2007, showed a brief sexual encounter which involved both digital and penile penetration of the victim. We do not believe this was a multiple acts situation as there appeared to be a limited lapse of time between the two penetrations, and so a unanimity instruction was not required.
We point the parties to State v. Voyles, 284 Kan. 239, 244-56, 160 P.3d 794 (2007), for a comprehensive discussion of this issue. We also note that Baughman’s claim of multiplicity could be addressed on retrial by the State, informing the jury of which act to rely on or having the trial court instruct the jury to agree on a specific criminal act.
We will not repeat the testimony but the trial court was correct in refusing to allow the defense to cross-examine the victim as to prior sexual conduct “as a matter of credibility” as such would have been in violation of the rape shield motion in Hmine that had been filed.
Finally, there is no way to know who will represent Baughman in the future and we malee no comment on the alleged error of failing to remove his appointed counsel on the morning of trial.
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Marquardt, J.:
Tasha Dakota Bums appeals the decision of the Appeals Board for the Kansas Division of Workers Compensation (Board) denying her claim for workers compensation death benefits. We affirm.
On August 22, 2007, Anthony Anguiano (Tony) was working on scaffolding configured on a movable lift for Larry McCall Electrical Contractors (McCall). As another worker repositioned the scaffolding, the Hit’s tire dipped into a drain and caused the scaffolding to tip over. Tony fell approximately 40 feet to his death.
On August 23, 2007, Tasha Bums (Tasha) filed an application for a hearing with the Kansas Division of Workers Compensation alleging she was entitled to Tony’s death benefits because she was his surviving common-law spouse. Tasha listed her children with Tony, 1-year-old Acario and unborn child Antonia, as well as Tony’s children from his previous marriage to Patty Anguiano, 14-year-old Angelica and 13-year-old Anthony, on the application.
During her deposition testimony, Tasha explained that she met Tony in 2003 while he was separated from Patty. They began living together at a trailer park shortly after they met. Tasha signed the lease agreement at the trailer park as Tasha Bums because she considered Tony her boyfriend at the time.
After Tony’s divorce from Patty in May 2004, Tony asked Tasha to marry him several times but she did not take him seriously because he had been drinking. Tony gave Tasha an engagement ring for Christmas in 2005. Tasha acknowledged that neither she nor Tony referred to the rings as wedding rings, but it was her intention to marry Tony. Tasha testified that Tony told his family he was going to marry her.
At the regular hearing, Tasha testified that she believed she and Tony were married sometime in 2005 because “he gave me a ring and I gave him a ring and he wasn’t going nowhere and I wasn’t going to go nowhere.” After the two exchanged rings, she said that Tony repeatedly stated, “I’m going to marry this girl or this is my baby and I’m going to many her.” However, Tasha clarified that Tony never stated that the two were actually married. She explained that Tony “didn’t want to get married through the church. He’d rather have just gone to the courthouse and got married, but he always told me it was just a piece of paper anyways.”
Tasha acknowledged there was little, if any, formal documentation prior to Tony’s death delineating a legal relationship between herself and Tony. Even though Tony and Tasha pooled their money to pay bills, they did not own a joint bank account or file joint income tax returns. Tony listed himself as “single” and listed Tasha as “Ms. Tasha Bums” on his car insurance. Further, Tasha listed herself as “single” on her income tax returns, employment information, and medical card. Moreover, Tony’s death certificate listed him as divorced with no surviving spouse and listed Tasha as his companion.
On May 8, 2009, the administrative law judge (ALJ) denied Tasha’s claim for death benefits under K.S.A. 44-510b because Tasha failed to satisfy the prerequisites for a common-law marriage. The ALJ reasoned that although they lived together, reared children, shared financial responsibilities, and had the intent to get married at sometime in the future, the ALJ stated: “there was no present agreement of marriage between Tony and Tasha.” The ALJ ordered payments of $10,000, less amounts previously paid, to each of Tony’s four children and apportioned weekly payments.
Both Tasha and her children appealed the ALJ’s award to the Board. Tasha argued that the ALJ ignored uncontroverted evidence indicating she and Tony had a present agreement to be married, which was supported by (1) the Social Security Administration’s determination that they were married; (2) the couple exchanged wedding rings; (3) Tasha believed they had a common-law marriage; (4) Tony publicly referred to Tasha as his wife; and (5) Victor Anguiano, Tony’s father, referred to Tasha as his daughter-in-law. Tasha’s children agreed with the ALJ’s determination that Tasha and Tony were not common-law married but argued the ALJ erred in ordering the weekly payments to end when the total amount of the payments reached the $250,000 statutory maximum.
The Board agreed with and adopted the ALJ’s factual findings and conclusions of law, stating: “Tasha obviously had a loving and stable relationship with [Tony], but there was never a present agreement between them to be husband and wife. As such, there was no common law marriage and Tasha is not entitled to receive any death benefits under the Workers Compensation Act.” The Board modified the ALJ’s award, however, and held that the under K.S.A. 44-510b(h), an employer’s liability does not terminate when weekly payments reach the $250,000 statutory maximum, but terminates when each minor child reaches 18 years of age.
Tasha filed a petition for judicial review on November 13, 2009, claiming the Board ignored uncontroverted evidence and unconstitutionally infringed on her fundamental right of marriage.
The Board issued its order in this case on October 16, 2009. K.S.A. 2009 Supp. 44-556(a) controls workers compensation appeals that were decided by the agency after the effective date of the amended Kansas Judicial Review Act (KJRA), K.S.A. 2009 Supp. 77-601 et seq. The KJRA limits the scope of judicial review to eight specific enumerated issues listed in K.S.A. 2009 Supp. 77-621(c). However, Tasha fails to identify which provision of K.S.A. 77-621(c) controls her request that the court declare her “a dependent or wife.”
To establish a common-law marriage in Kansas, a plaintiff must prove (1) capacity of the parties to marry; (2) a present marriage agreement between the parties; and (3) a holding out to the public as husband and wife. Fleming v. Fleming, 221 Kan. 290, 291, 559 P.2d 329 (1977). Each element must coexist to establish a common-law marriage. 221 Kan. at 291. “Although the marriage agreement need not be in any particular form, it is essential there be a present mutual consent to the marriage between the parties.” Driscoll v. Driscoll, 220 Kan. 225, 227, 552 P.2d 629 (1976). The burden to prove a common-law marriage rests upon the party asserting it. In re Adoption of X.J.A., 284 Kan. 853, 877, 166 P.3d 396 (2007).
Tasha claims in her brief that the Board’s “application of common-law marriage is unconstitutional.” Although she cites no authority that any person has a constitutional right to a common-law marriage, she claims this court must apply “strict scrutiny” when determining “whether the legislation is rational.” Additionally, citing no facts or authority, Tasha claims: “When ‘strict scrutiny is applied to the Court making it impossible to prove marriage, it is clear it is a violation of the requirement of equal protection. In fact, the governmental action cannot meet even a rational basis test.”
It is exceedingly unclear what Tasha is arguing in her brief. However, if she is arguing the Board infringed on her constitutional right to marry because it was “almost impossible to prove common-law marriage,” she did not raise this argument before the Board. Generally, constitutional issues cannot be raised for the first time on appeal. See K.S.A. 2009 Supp. 77-617; State v. Ortega-Cadelan, 287 Kan. 157, 159, 194 P.3d 1195 (2008). There are three exceptions to this general rule. See 287 Kan. at 159. None of these exceptions applies here. However, after an administrative proceeding, the Kansas Supreme Court has held that a constitutional issue may be raised for the first time when the case is on appeal before a court of law. Solis v. Brookover Ranch Feedyard, Inc., 268 Kan. 750, 757, 999 P.2d 921 (2000). Even though Tasha may raise a constitutional issue for the first time on appeal, we find there is no evidence to support her claim that the Board infringed on her constitutional right to many.
Next, Tasha claims the Board did not follow K.S.A. 2009 Supp. 77-621(d) because it ignored uncontroverted evidence. First, Tasha cites no authority to suggest the KJRA controls the Board’s scope of review. See K.S.A. 44-556(a). Second, Tasha’s own statements during her deposition contradict most, if not all, of the evidence she suggests is “uncontroverted,” or the “uncontroverted” evidence is irrelevant to whether a present marriage agreement existed between her and Tony.
Tasha claims it is uncontroverted that she “holds out to the public her married name, present intent to be married, at 200 Woodward, Topeka, Kansas a public place, with their children of Anthony Anguiano deceased, and a wedding ring on her finger.” However, Tasha testified that she introduces herself to others as “Tasha Bums,” her driver’s license lists her as “Tasha Bums,” she signed her 2005, 2006, and 2007 tax returns as “Tasha Bums,” and she never used the name “Tasha Anguiano” in any official capacity. Further, Tasha testified that she and Tony exchanged “engagement rings” in 2005, and that at no time did any person refer to the rings as “wedding rings.”
Tasha contends it is uncontroverted that Tony “publicly referred to Tasha as his wife.” Tasha cites the following questioning:
“Q. Have you ever called yourself Tasha Anguiano?
“A. All the time.
“Q. Where? To whom?
“A. In front of my mother, around Tony. Tony would call me Tasha Anguiano.”
The cited testimony does not indicate Tony referred to Tasha as his wife. To the contrary, Tasha testified that Tony never stated that the two were actually married but only that he was “going to marry her.” Tasha claimed she believed they were going to get married, but they “didn’t know Tony was going to pass away.”
Regardless, under the KJRA, this court examines all relevant evidence that detracts or supports a particular finding of fact when deciding if substantial competent evidence supports the Board’s ultimate determination that Tasha and Tony did not satisfy the three requirements for a common-law marriage. See K.S.A. 2009 Supp. 77-621(c)(7), (d).
Here, there is considerable evidence suggesting Tony and Tasha did not have a present marital agreement. However, there is some evidence that detracts from the Board’s factual findings. Although Tasha does not specifically cite this testimony, Tasha claimed Tony referred to her as his wife on several occasions to friends and family. Further, Tasha filed a “Statement of Marital Relationship” with the Social Security Administration in which Tony’s father claimed Tasha and Tony “lived together like husband [and] wife” and heard Tasha and Tony refer to each other as husband and wife. Additionally, in the “Statement of Marital Relationship,” Jessi Bums, Tasha’s brother, noted that he considered Tasha and Tony to be husband and wife because they “made bab[ies]” and Tony “[t]ook real good care of’ Tasha. Jessi also claimed that Tasha and Tony referred to each other as husband and wife on the “[fjront porch, [b]ack porch, in the house, eveiywhere, all the tim[e].”
We find that there is substantial evidence to support the Board’s finding that Tasha failed to establish a present marriage agreement with Tony. Therefore, the Board did not err in denying Tasha death benefits under K.S.A. 44-510b because she was not a surviving spouse.
Affirmed. | [
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Leben, J.:
Before her death, Elizabeth Jones brought several legal claims against Rick and Lisa Graham. After Jones’ death, the Grahams filed a notice in court that Jones had died, triggering a requirement that any successor to Jones’ claim ask within a reasonable time to be substituted for Jones in the suit. See K.S.A. 60-225(a)(1). When more than 9 months had gone by after Jones’ death, the Grahams filed to dismiss the lawsuit.
Angela Herring was appointed the administrator of Jones’ estate shortly after the Grahams filed their dismissal motion, and on the day she was appointed, Herring filed a motion to substitute her for Jones. But the district court instead dismissed Jones’ claims based on its finding that Herring had not sought to substitute herself for Jones within a reasonable time after her death.
A statute, K.S.A. 60-225, determines how and when a party may be substituted for someone who dies while a suit is pending. On appellate review, we review the interpretation of a statute independently, without any required deference to the district court’s reading of it. See Edwards v. Anderson Engineering, Inc., 284 Kan. 892, Syl. ¶ 6, 166 P.3d 1047 (2007). Determining whether an action has been taken within a reasonable time, however, asks for application of the district court’s judgment. Its call will not be disturbed absent an abuse of discretion, meaning that no reasonable person would have agreed with its decision. See Unruh v. Purina Mills, LLC, 289 Kan. 1185, 1202, 221 P.3d 1130 (2009) (discretionary decision of district court must be upheld if reasonable persons might agree with it); Livingston v. Estate of Bias, 9 Kan. App. 2d 146, 147, 673 P.2d 1197 (1984) (district court has discretion to determine what is a reasonable time under K.S.A. 60-225[a]). Even so, if the district court has misinterpreted the statute when making its judgment call, it necessarily abuses its discretion by applying an incorrect legal standard. In re Marriage of Wilson, 43 Kan. App. 2d 258, 259, 223 P.3d 815 (2010).
Our case hinges on an understanding of K.S.A. 60-225(a)(l). It provides for the substitution of parties after a death, but it also provides that a party’s claims shall be dismissed if the motion for substitution of parties isn’t made within a reasonable time:
“If a party dies and the claim is not extinguished, the court must on motion order substitution of the proper party. A motion for substitution may be made by any party or by the decedent’s successor or representative. If the motion is not made within a reasonable time after service of a statement noting the death, the action by or against the decedent must be dismissed.” K.S.A. 2010 Supp. 60-225(a)(1). See L. 2010, ch. 94, sec. 135.
(For convenience, we have quoted the statute in its present form. The 2010 Kansas Legislature made minor changes, such as changing “shall” to “must,” that do not affect any of the issues discussed in this opinion.) Under the statute, the motion to substitute parties must be made within a reasonable time after service of a statement by the other party noting the death. In our case, the Grahams filed such a statement on July 2, 2007. Herring did not file a motion to substitute herself, as the administrator of Jones’ estate, until May 6, 2008, more than 10 months later.
The Grahams note three cases (two unpublished) finding a shorter time period unreasonable. See Long v. Riggs, 5 Kan. App. 2d 416, 419, 617 P.2d 1270 (1980) (filing of motion to substitute 6 months after suggestion of party’s death not reasonable); Ellison v. Mano Industries, Inc., 2006 WL 1237270, at *5-6 (Kan. App. 2006) (unpublished opinion), rev. denied 282 Kan. 788 (2006) (same, 8 months); Johnson v. Kansas Farm Bureau Mut. Ins. Co., Inc., 2005 WL 697495, at *2 (Kan. App. 2005) (unpublished opinion) (same, 9 months). But we do not believe that any bright-line test can be applied when determining what’s a reasonable time period under K.S.A. 60-225. The parallel federal rule has a specific 90-day deadline, Fed. R. Civ. Proc. 25(a)(1), but the comparable Kansas statute does not provide similar specificity. In that circumstance, courts should not take on the legislative function of developing a bright-line time deadline when our legislature chose not to have one. See Needham v. Young, 205 Kan. 603, 606, 470 P.2d 762 (1970) (“A reasonable time is not a precise period . . . .”).
We must then determine how a district court should go about determining whether a substitution motion has been made within a reasonable time. Generally when a court considers whether an action has been taken within a reasonable time, the court considers all the circumstances that might be relevant. For example, in In re Marriage of Leedy, 279 Kan. 311, 109 P.3d 1130 (2005), the court considered whether a party had sought relief within a reasonable time, as required by K.S.A. 60-260(b) (now [c][l]). In that situation, the court considered whether the opposing party would be prejudiced by the delay and whether the moving party had shown good cause for fading to take action sooner. 279 Kan. at 324. In a simdar case, our court considered the interest in finality of the judgment, the reason for delay in bringing the motion, the practical ability of the litigant to have acted sooner, and prejudice to the opposing party. In re Marriage of Larson, 19 Kan. App. 2d 986, 996, 880 P.2d 1279 (1994) aff'd 257 Kan. 456, 894 P.2d 809 (1995). In other types of civd cases in which considerations of reasonableness were at issue, Kansas courts have considered all circumstances of the case, including a set of specified factors, Idbeis v. Wichita Surgical Specialists, P.A., 279 Kan. 755, Syl. ¶ 2, 112 P.3d 81 (2005) (determining whether a noncompetition clause was reasonable), or the purpose of the time limit at issue and the overall circumstances of the case, Newmaster v. Southeast Equipment, Inc., 231 Kan. 466, 471, 646 P.2d 488 (1982) (determiningwhether an attempt to repair defective product was made within a reasonable time).
There are very few published opinions on our specific issue— how a court should determine what is a reasonable time for filing a motion to substitute after a party dies — because the parallel federal rule has a specific time limit (though subject to extension under Fed. R. Civ. Proc. 6[b]) and most state rules are based upon the federal rule. But in New York, under a rule similar to K.S.A. 60-225(a) in requiring the fifing of a substitution motion within a reasonable time, the court must consider all the circumstances, “including the diligence of the party seeking substitution, prejudice to the other parties, and whether the party to be substituted has shown that the action or defense has merit.” McDonnell v. Draizin, 24 App. Div. 3d 628, 629, 808 N.Y.S.2d 398 (2005).
Considering these precedents, we conclude that a determination of whether an action has been taken within a reasonable time requires consideration of the circumstances of each case. When considering whether a motion to substitute has been filed within a reasonable time after a notice of death has been filed with the court, specific consideration should be given to the diligence of the party seeking substitution, whether any other party would be prejudiced by any delay, and whether the party to be substituted has shown that the action or defense has merit. The first two factors are clearly relevant in determining whether something has been done within a reasonable time under the circumstances; the third has increasing relevance as the delay becomes more significant. Cf. Landmark Nat’l Bank v. Kesler, 289 Kan. 528, 534, 216 P.3d 158 (2009) (noting that whether a party has a valid claim or defense is considered when deciding whether to set aside a default judgment and whether to add a contingently necessary party).
Two aspects of the district court’s ruling convince us that it did not apply these principles. First, the district court emphasized the delay between the filing of the substitution motion and when that motion was heard. K.S.A. 60-225(a) requires the filing of the motion be within a reasonable time, not the hearing of the motion. The district court can rule on a motion without a hearing if no party requests one. Supreme Court Rule 131(a) (2010 Kan. Ct. R. Annot. 218) and Rule 133(c) (2010 Kan. Ct. R. Annot. 219). In the absence of the moving party’s failure to serve the motion on opposing parties or some other suggestion of bad faith by the movant, delay between the filing of the motion and its hearing is not a relevant factor under K.S.A. 60-225(a). Second, the district court explicitly refused to consider whether other parties would be prejudiced by the delay in filing the substitution motion. We believe that is a factor that must be considered.
The district court’s refusal to consider prejudice had support from an unpublished decision of our court, Johnson v. Farm Bureau Mut. Ins. Co., Inc., 2005 WL 697495 (Kan. App. 2005), in which our court affirmed a district court’s determination that a motion to substitute hadn’t been filed within a reasonable time. In Johnson, a panel of our court concluded that because prejudice wasn’t referenced in K.S.A. 60-225(a), it shouldn’t be considered: “There is no language [in the statute] that even implies that prejudice should be a consideration for the trial court, and we are unwilling to read something into the statute when it was clearly not intended by the legislature.” 2005 WL 697495, at **2. We cannot agree with the Johnson panel’s conclusion that a failure to list prejudice in the statute as a factor to be considered means it is not relevant.
What is a reasonable time necessarily differs based on the circumstances at hand, and there’s no reason for a statutory provision limiting ability to take an action to a “reasonable time” should list all the circumstances that might be considered. As we’ve already noted, under K.S.A. 60-260(c), which requires that a motion for relief from a court’s final judgment be made within a reasonable time, our Supreme Court has expressly said that a district court should consider whether the opposing party would be prejudiced by any delay. In re Marriage of Leedy, 279 Kan. at 324. But K.S.A. 60-260(c), like K.S.A. 60-225(a), makes no explicit mention of prejudice. A rule similar to K.S.A. 60-225(a) is found in K.S.A. 60-217(a)(3) (L. 2010, ch. 94, sec. 84), which provides that an action may not be dismissed for failure of the inclusion of the real party in interest “until, after an objection, a reasonable time has been allowed for the real party in interest to ... be substituted into the action.” While there are no published Kansas decisions saying whether prejudice from delay in substituting the real party in interest is to be considered under our statute, federal caselaw under its parallel rule routinely considers prejudice as a factor even though the federal rule doesn’t mention prejudice. E.g., Esposito v. United States, 368 F.3d 1271, 1276-77 (10th Cir. 2004) (trial courts should focus on whether failure to name proper party was a tactical maneuver to gain advantage and whether substituting party at time of motion would prejudice opposing party). We would also note that because the Kansas civil-procedure rules are based upon the federal rules, our courts have generally found federal precedents persuasive. See Rebarcheck v. Farmers Co-Op Elevator & Mercantile Ass’n, 272 Kan. 546, 552, 35 P.3d 892 (2001). Whether prejudice would result from a late substitution of parties is a relevant consideration under either K.S.A. 60-225(a), which applies when a death has occurred, or K.S.A. 60-217(a), which applies when a party has simply named the wrong party, even though neither statute mentions prejudice.
In sum, the district court’s ruling on the substitution motion emphasized the delay in the court’s own consideration of that motion without any finding that this delay was due in any way to bad faith by Herring, and its ruling was made without considering whether the Grahams were prejudiced by the timing of the motion’s filing. In doing so, the district court applied an incorrect legal standard and therefore necessarily abused its discretion.
We recognize that there is much more to the procedural history of this case than we have set out in this opinion. The underlying lawsuit was initially filed by the Grahams under the Kansas Protection from Stalking Act, K.S.A. 60-31a01 et seq., and Jones’ claims were filed as counterclaims in the stalking suit. (Neither party has suggested any procedural bar to the assertion of Jones’ claims as counterclaims to a stalking petition.) Well after Jones’ death, the district court initially approved Herring as a substitute party and granted default judgment against the Grahams. The ruling we have discussed in this opinion — in which the court denied substitution and dismissed Jones’ claims — came on a motion to reconsider. We briefly note these additional procedural aspects of the case simply to explain that there are many facts that the district court may consider on remand when determining whether the request to substitute Herring as the successor to Jones was made within a reasonable time. It is the district court’s task, not ours, to make that determination under the standards we’ve set out in this opinion.
The judgment of the district court is reversed, and the case is remanded for further consideration consistent with this opinion. | [
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Bukaty, J.:
The State charged Kristina Bishop with a third driving under the influence (DUI) offense, a felony, based upon her having entered into two prior diversion agreements. Bishop moved to dismiss, claiming the State could not rely on a 2002 diversion agreement because she was a minor at that time. The district court denied the motion. Following a bench trial on stipulated facts, the court then convicted Bishop as charged. She appeals, claiming as she did in the district court that the current conviction is her second and not her third because her 2002 diversion agreement is voidable due to her minority status in 2002 and cannot be counted as a prior conviction. We conclude the district court correctly ruled against Bishop and affirm.
The parties do not dispute the relevant facts.
In 2002, the State charged Bishop, who was 16 at the time, with a misdemeanor DUI. Bishop entered into a diversion agreement with the State to avoid prosecution. In 2004, the City of Pratt (City) charged Bishop with another DUI and disobeying a stop sign. Again, Bishop entered into a diversion agreement with the City to avoid prosecution for the charges.
The events leading to the current charges occurred on October 7, 2007. Kansas Highway Patrol Trooper Mitch Clark saw Bishop make an improper right turn and initiated a traffic stop. He ultimately arrested Bishop on suspicion of DUI. Bishop later consented to a blood alcohol test which revealed a blood alcohol concentration of .24 grams per 100 milliliters, in excess of the legal limit.
The State charged Bishop in the alternative with driving under the influence of alcohol to a degree that rendered her incapable of safely driving a vehicle (third offense), and with driving under the influence of alcohol while having a blood alcohol content greater than .08 (third offense). The alternative charges are both nongrid, nonperson felonies in violation of K.S.A. 2007 Supp. 8-1567. The State also charged other traffic offenses which it ultimately dismissed.
As we stated, Bishop moved to dismiss the alternative charges, asserting the State could not rely on the 2002 diversion agreement as a prior conviction because Bishop was 16 when she entered into it and, therefore, it was not a legally binding contract due to her lack of capacity to contract. Bishop did not cite any legal authority to support this assertion in the written motion. The district court denied the motion, reasoning that because the State allows drivers to obtain a learner’s permit or license at age 14, a driver does not have to be 18 to enter into a valid diversion agreement.
The parties agreed to a bench trial on stipulated facts. In the stipulation, Bishop preserved her right to appeal the district court’s ruling on the motion to dismiss. The court found the stipulated facts were sufficient to support each of the alternate DUI charges and found Bishop guilty of her third DUI, a felony. The court then imposed an underlying 12-month jail sentence, granted probation for 12 months, and ordered Bishop to serve a mandatory 120 days in jail with eligibility for work release after 5 days. It also imposed various court costs, fees, and fines.
Bishop failed to timely file a notice of appeal, but we retained her appeal pursuant to State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982).
The sole issue on appeal is whether a prior diversion agreement entered into in lieu of prosecution for a DUI by a person who was a minor, constitutes a prior conviction that enhances the severity of a subsequent DUI charged against that person.
Bishop emphasizes the contract aspect of a diversion agreement (between the State and a defendant) and argues that contracts entered into by minors are generally voidable under Kansas contract law.
The State only briefly addresses Bishop’s contract law argument in asserting that she cannot void the 2002 diversion agreement because (1) she was advised by counsel before signing the agreement, (2) she received the benefit of the bargain by successfully completing her diversion and having the 2002 DUI charge dismissed with prejudice, and (3) she cannot “claim seven years later that it was not a valid contract.” The State then emphasizes the special nature of a diversion agreement, apart from the fact it is a contract, and argues it constitutes a prior conviction for purposes of sentencing for a subsequent DUI regardless of one’s age at the time he or she entered into the diversion agreement. Specifically, it argues that Kansas law (1) authorizes driving permits or licenses for drivers as young as 14, (2) subjects all drivers to the same penalties for traffic offenses regardless of age, (3) does not prohibit the State from entering into diversion agreements with minors, and (4) clearly defines the term “conviction” for purposes of 8-1567 to include diversion agreements.
Both parties agree the appellate court has unlimited review over the district court’s ruling on Bishop’s motion to dismiss because the underlying facts are undisputed. See State v. Garcia, 282 Kan. 252, 260, 144 P.3d 684 (2006) (appellate review of a trial court’s denial of a motion to dismiss on a strictly legal ground is unlimited). Additionally, to the extent resolution of this issue involves statutory interpretation, the appellate court’s review is also unlimited. State v. Jefferson, 287 Kan. 28, 33, 194 P.3d 557 (2008).
The Particular Nature of Diversion Agreements
A diversion agreement is “the specification of formal terms and conditions which a defendant must fulfill in order to have the charges against him or her dismissed.” K.S.A. 22-2906(4). The agreement is essentially a contract between the State (or city) and a defendant, and our courts have generally applied contract principles when interpreting the provisions or legal effect of a diversion agreement. See State v. Chamberlain, 280 Kan. 241, 245-46, 120 P.3d 319 (2005); Petty v. City of El Dorado, 270 Kan. 847, 853-54, 19 P.3d 167 (2001).
On the other hand, under the plain language of8-1567 and well-established case law, a diversion agreement entered into in lieu of further criminal proceedings on a DUI charge is considered a prior conviction for purposes of enhancing an offender’s sentence for a subsequent DUI conviction. See K.S.A. 2007 Supp. 8-1567(n)(l) (defining the term “conviction” for purposes of 8-1567 to include “entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging” a DUI violation); K.S.A. 2007 Supp. 8-1567(n)(3) (providing that “any convictions occurring during a person’s lifetime shall be taken into account when determining the sentence to be imposed for a first, second, third, fourth or subsequent offender”); State v. Booze, 238 Kan. 551, 558, 712 P.2d 1253 (1986); State v. Clevenger, 235 Kan. 864, 867-68, 683 P.2d 1272 (1984).
Clearly, a prior diversion agreement entered into to avoid prosecution for a DUI charge is considered a prior DUI conviction for sentencing purposes under K.S.A. 2007 Supp. 8-1567. The obvious wrinkle in this case arises from the fact that Bishop was 16 when she entered into the 2002 diversion agreement.
While there are no Kansas cases directly on point, the district court’s ruling makes sense from a commonsense perspective. Also, our Supreme Court dealt with a somewhat similar situation many years ago, and its reasoning is instructive. In State v. Weatherwax, 12 Kan. 463 (1874), a minor, criminal defendant claimed he could not be bound by a personal recognizance bond. The Weatherwax court noted that a recognizance was more than a contract because it was an obligation of record. It then reasoned the issue was
“governed substantially by the rule governing other contracts. There is no statute in this state prohibiting a minor from entering into a recognizance, and there is no reported decision of any state referred to, or that we have found, that holds any such doctrine. . . . Our statutes seem to recognize the power of minors to enter into recognizances. Minors as well as adults may commit crime. They may be arrested and imprisoned for safe-keeping, until their trials can be had. The statutes authorize recognizances to be taken and defendants to be discharged thereon, and no distinction whatever is made between minor defendants and any others, in any of these cases. In some cases the statutes expressly authorize defendant to enter personally into such recognizances. [Citations omitted.] In other cases the statutes are silent. But nowhere is any distinction made between minors and others. The language of the statutes is broad enough to include minors as well as adults, and we know of no good reason why we should limit operation of the statutes to adults only.” 12 Kan. at 465.
Similar to the holding in Weathenoax, the statutes relevant to driving privileges, diversion agreements, and DUI sentencing enhancements support the State’s position that minors can be bound by diversion agreements.
First, as the district court reasoned, certain minors are permitted to obtain instructional driving permits, farm permits, and driver’s licenses. See K.S.A. 8-235d; K.S.A. 2007 Supp. 8-237(a); K.S.A. 8-239; K.S.A. 8-296. As the State suggests, regardless of their status as minors, licensed drivers under die age of 18 are held to the same standards as adult drivers for purposes of following the rules of the road and are subject to the same punishments for traffic offenses. See K.S.A. 8-1447 (including minors when defining “person” as “eveiy natural person, firm, association, partnership or corporation”); K.S.A. 2007 Supp. 8-2117(a) (providing that “a court of competent jurisdiction may hear prosecutions of traffic offenses involving any child 14 or more years of age but less than 18 years of age. The court hearing the prosecution may impose any fine authorized by law for a traffic offense, including a violation of K.S.A. 8-1567 and amendments thereto”); K.S.A. 2007 Supp. 8-2117(d) (defining the term “traffic offense” to include, inter alia, a violation of 8-1567); K.S.A. 2007 Supp. 38-2302(n) (specifically excluding persons 14 years of age or more who commit traffic offenses as defined in K.S.A. 8-2117(d) from the definition of “juvenile offender”).
Second, as the State points out, the statutes governing diversion agreements for DUI offenders are silent as to the age of the offender. K.S.A. 22-2909(c) provides:
“If a diversion agreement is entered into in lieu of further criminal proceedings on a complaint alleging a violation of K.S.A. 8-1567, and amendments thereto, the diversion agreement shall include a stipulation, agreed to by the defendant, the defendant’s attorney if the defendant is represented by an attorney and the attorney general or county or district attorney, of the facts upon which the charge is based and a provision that if the defendant fails to fulfill the terms of the specific diversion agreement and the criminal proceedings on the complaint are resumed, the proceedings, including any proceedings on appeal, shall be conducted on the record of the stipulation of facts relating to the complaint.”
See also K.S.A. 22-2908(b)(l) (setting forth three situations when the State may not enter into a diversion agreement with a DUI offender, none of which relate to age).
Finally, eveiy person, regardless of age, is prohibited from driving or attempting to drive while under the influence of alcohol or drugs to a degree that renders that person incapable of safely driving, or while having a blood or breath alcohol concentration of .08 grams or more of alcohol per 100 milliliters of blood or per 210 liters of breath. K.S.A. 2007 Supp. 8-1567(a), (t). The penalties for violating K.S.A. 2007 Supp. 8-1567 vary depending on whether the defendant has any prior DUI convictions, but do not vary depending on the defendant’s age. K.S.A. 2007 Supp. 8-1567(d)-(g). Significantly, “any convictions occurring during a person’s lifetime shall be taken into account when determining the sentence to be imposed for a first, second, third, fourth or subsequent offender.” (Emphasis added.) K.S.A. 2007 Supp. 8-1567(n)(3). The language of this section clearly and strongly expresses legislative intent to include any and all of an offender’s prior convictions without regard to age.
In sum, minors with driving privileges are subject to the same punishments as adult drivers when they commit traffic offenses. Moreover, the statutes governing diversion agreements and DUI sentencing enhancements are silent as to any age requirements, and the DUI statutes contain emphatic language stating that any and all of an offender’s prior DUI convictions (which includes prior diversion agreements in lieu of DUI prosecutions) count for sentencing purposes under K.S.A. 2007 Supp. 8-1567. These factors all lead to die reasonable conclusion that a diversion agreement entered into by a minor to avoid prosecution on a DUI charge should count against that person as a prior offense in a criminal proceeding on a subsequent DUI charge the same as if the person had been an adult at the time of entering into the agreement.
Minors and Their Rights Under Standard Contract Law
Even without considering the particular nature of diversion agreements as stated above, Bishop would still lose this appeal based upon general contract law as applied to minors.
As noted earlier, we acknowledge that diversion agreements are generally recognized as contracts between defendants and the State. See Chamberlain, 280 Kan. at 245-46; Petty, 270 Kan. at 853-54. Under the common-law infancy doctrine, contracts entered into by minors were generally voidable unless the contracts were for necessities. See 5 Williston on Contracts §§ 9:2, 9:13 (4th ed. 2009). However, the common-law infancy doctrine was abrogated by statute when our legislature passed G.S. 1868, ch. 67, §§ 1-3. See Ehrsam v. Borgen, 185 Kan. 776, 778, 347 P.2d 260 (1959); Brown v. Staab, 103 Kan. 611, 614, 176 Pac. 113 (1918); Weatherwax, 12 Kan. at 464. These 1868 statutes regarding minors and contracts with minors are currently found in the three statutes cited by Bishop in support of her position—K.S.A. 38-101, K.S.A. 38-102, and K.S.A. 38-103.
These statutes provide generally, and with a few exceptions not applicable here, that contracts are enforceable against minors but voidable if the minor disaffirms the contract as provided by the statutes. As the Weatherwax court explained: “Under this statute a minor’s contract is never void, unless it is void for some other reason than for minority. For minority, merely, it can never be more than voidable, and even then it is valid unless disaffirmed within a reasonable time after majority.” 12 Kan. at 464.
What Bishop fails to acknowledge is the plain language of K.S.A. 38-102 that makes all contracts entered into by minors legally binding unless (1) the minor disaffirms the contract within a reasonable time after attaining the age of majority, and (2) restores to the other party all benefits received by the minor under the contract that remain in the minor s possession at any time after attaining majority. Instead, Bishop appears to rely on the common-law infancy doctrine to argue that her 2002 diversion agreement is simply voidable because it is not a contract for a necessity such as food or shelter.
Generally, whether a minor has disaffirmed a contract within a reasonable time after attaining the age of majority is determined based upon the particular circumstances of the case. Brown, 103 Kan. at 614-16; 5 Williston on Contracts § 9:13. In Brown, a minor signed a note and mortgage and then did not take the first positive action to disaffirm the contract until more than 5 years had passed after he reached majority and after the mortgagee had begun foreclosure proceedings. Our Supreme Court held that the minor had not attempted to disaffirm within a reasonable time after reaching majority. 103 Kan. at 616.
Here, Bishop signed the 2002 diversion agreement in March 2002 at the age of 16. The agreement reflects her date of birth as September 16, 1985. Accordingly, she attained majority status in September 2003 when she turned 18. See K.S.A. 38-101. Bishop concedes in her appellate brief that her first attempt to disaffirm the 2002 diversion agreement occurred at the preliminary hearing in the current case in February 2009. In sum, Bishop waited nearly 6 years after she attained majority status to attempt to disaffirm the 2002 diversion agreement and did so only after being charged with a third DUI. Bishop did not disaffirm the 2002 diversion agreement within a reasonable time after she attained the age of majority.
Conclusion
Diversion agreements are essentially contracts between an individual and the State. Minors may disaffirm their contracts in certain situations. However, for the reasons stated above, the district court correctly determined that the diversion agreement entered into by Bishop as a minor to avoid prosecution on a DUI charge counts against her as a prior offense in the current criminal pro ceeding on a subsequent DUI charge, and that prior agreement then enhances the level of that subsequent charge.
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Green, J.:
In this wrongful death action, the Estate of Jeffrey Mills, by and through its Special Administrator, Larry Mills; Carrie Lynn Tucker (formerly Mills), individually; and Elizabeth Mills, Sadie Mills, and Ross Mills, heirs at law, by and through Charles E. Worden, guardian ad litem (collectively appellants — the plaintiffs at trial), appeal from the jury’s defense verdict in favor of Edward L. Mangosing, M.D., Todd Riggs, D.O., and Dominador Pendo, M.D. (collectively appellees — the defendants at trial). The appellants raise three issues on appeal.
First, the appellants argue that the trial court erred in allowing a defense expert to testify about how he had treated Hantavirus patients in his personal practice, which was in violation of an order in Hmine. Nevertheless, because the appellants failed to contemporaneously object to the majority of the expert’s testimony concerning his personal treatment of Hantavirus patients, they failed to preserve for appeal the issue concerning that testimony. Moreover, in the instances when the appellants did object to the expert’s testimony and the trial court overruled the objections, the testimony was similar to that given by other experts in the case and did not violate the order in hmine.
Next, the appellants contend that the trial court abused its discretion in not ordering a new trial based on the testimony concerning Carrie’s medical treatment for Hantavirus, which was in violation of an order in hmine. Because the appellants did not contemporaneously object to most of the testimony concerning Carrie’s treatment for Hantavirus, they failed to preserve for appellate review any issue concerning that testimony. Moreover, the testimony was in hne with the trial court’s ruling concerning evidence pertaining to Carrie’s Hantavirus ihness, especially in hght of the fact that the appellants had previously made statements and introduced evidence concerning Carrie’s hospitalization for Hantavirus.
Finally, the appellants maintain that the defense verdict rendered by the jury was contrary to the evidence presented at trial. Nevertheless, in considering the evidence introduced at trial in the light most favorable to the appellees, we conclude that the evidence supported the verdict. Accordingly, we affirm.
Carnes Illness
Jeff and Carrie Mills were married and had three children together. In May 2003, while visiting her sister in Joplin, Missouri, over a weekend, Carrie complained of having a headache and being fatigued. When Carrie became sicker and began running a fever, Carrie’s sister, Dr. Diann Hunter, a pediatrician, took Carrie to the hospital and ordered a complete blood-count test. After ordering the test, Carrie’s condition worsened. As a result, she was taken in the middle of the night to the hospital emergency room in Joplin. The next day, Carrie was taken by air ambulance to the University of Kansas Medical Center (KU Med). Carrie’s condition improved, and she was later transferred on May 24, 2003, to a hospital in Garden City so that she could be closer to her home in Rolla, Kansas.
Hantavirus
It was later determined through testing that Carrie had contracted Hantavirus. Hantavirus is a relatively recent viral illness in humans in the United States. Rodents are the normal carriers of Hantavirus, and it is thought that the disease existed in rodents in the United States in the mid-1980’s. In 1993, the Hantavirus disease emerged in humans in the Four Comers: a region consisting of southwest Colorado, northwest New Mexico, northeast Arizona, and southeast Utah. This disease has spread to other states, including Kansas.
The fatality rate for Hantavirus is extremely high. When the first outbreak occurred in 1993, the fatality rate was about 80%. In 2003, however, the fatality rate had dropped to about 35%.
There are two distinct phases of Hantavirus: the prodrome phase and the cardiorespiratory phase. In the prodrome phase, the infected person will have flulike symptoms such as fever, chills, nausea, and vomiting. The cardiorespiratory phase is when Hantavirus transitions into a frightening and deadly form of the disease characterized by shock and pulmonary edema. The transition from the prodrome phase to the cardiorespiratoiy phase can happen within a matter of a few hours in an infected person.
Hantavirus is a viral illness, and there is no curative treatment for the disease, only symptomatic treatment or supportive care. Based on an infected patient’s symptoms, the supportive care of Hantavirus can require the giving of oxygen and the management of blood pressure initially through IV fluids and then later through the ventilator and pressor support. Cardiogenic shock is responsible for the majority of Hantavirus deaths.
Jeffs Illness
Jeff first complained of fatigue and a headache on Saturday, May 24, 2003, when he was following Carrie’s ambulance to Garden City. Throughout the weekend, Jeff continued experiencing fatigue and flulike symptoms. On Sunday, May 25, 2003, Jeff mowed part of their 1-acre yard with a push mower to attempt to “work [his illness] out.”
Monday, May 26, 2003
On Monday, May 26, 2003, which was Memorial Day, Jeff was still experiencing fatigue and was running a fever. Jeff was in a band and was supposed to play at an engagement in Hooker, Oklahoma, which was approximately 45 miles away from his home, that evening. Carrie testified that Jeff wanted to fulfill his obligation to play that evening, but she wanted to get him to a doctor in the hopes that the doctor would tell him not to play that evening.
Hunter testified that she talked with Carrie on May 26 about Carrie’s difficulty in getting Jeff to see a doctor. According to Hunter, Jeff did not want to go to the doctor, and Hunter had to encourage Jeff to seek medical care. Hunter testified that she had a conversation with Jeff about the seriousness of Hantavirus. Hunter told Jeff that just because Carrie was able to recover did not mean he could get better and that Hantavirus had what she believed was a 50% fatality rate. Carrie testified, however, that she did not remember talking to Hunter about how Jeff would not listen to her. Moreover, Carrie testified that she did not remember Hunter having such a conversation with Jeff.
Jeff went to the emergency room at Morton County Hospital on May 26, 2003. Dr. Todd Riggs was Jeffs treating emergency room physician. During the visit, Jeff complained of a low grade fever for the past 4 or 5 days; tiredness; achiness; and a dry, nonproductive cough. According to Jeff s medical chart, Jeff stated during the visit that his wife had been diagnosed with Hantavirus and that he was concerned about being exposed to the virus. While he was in the emergency room, Jeff s temperature was 99.9 (after taking Tylenol approximately 41 minutes before) and his pulse was tachycardiac at 112 beats per minute. A complete blood-count profile showed that Jeffs platelet count was 118,000. The normal platelet range is 130,000 to 400,000.
Riggs testified that by the end of Jeff s emergency room visit, he thought there was a good chance that Jeff was in the prodrome phase of Hantavirus. Riggs did not call in a consult or look at any texts, journal articles, or learned treatises about Hantavirus on May 26. Moreover, Riggs did not order a follow-up complete blood-count profile for Jeff or a Hantavirus test on May 26.
Riggs testified that during the May 26 visit he suggested that Jeff see the same pulmonologist that had treated Carrie and that Carrie follow up with the same facility that had treated her because Riggs did not have any experience with Hantavirus. Nevertheless, Carrie testified that she did not remember Riggs saying those things. Riggs discharged Mills from the emergency room with instructions to increase fluids; rest; watch for shortness of breath and cough; and return to the emergency room if the symptoms increased. Riggs diagnosed Mills with sinusitis, upper respiratory infection, and possible exposure to Hantavirus.
Later that day, Jeff drove to Oklahoma with his 8-year-old daughter to play in his band that evening. During the engagement, Jeff was not feeling well and did not help set up or tear down the band equipment. Carrie testified that when Jeff got home from the engagement, he was very tired and lay in the recliner covered up with a blanket for the rest of the evening.
Tuesday, May 27, 2003
On the morning of Tuesday, May 27,2003, Carrie called Morton County Hospital to find out the results of Jeff s Hantavirus test but learned that no Hantavirus test had been ordered. Carrie was told that a Hantavirus test could still be ordered on the blood that had been drawn from Jeff the previous day. Dr. Riggs ordered a Hantavirus test on May 27.
That same morning, Carrie attempted to get an appointment with the doctor who had recently treated her in Garden City. Because that doctor was not in that day, Carrie made an appointment for that afternoon with Dr. Edward Mangosing in Garden City. Carrie’s mother went with them to the appointment in Garden City, which was about 90 minutes from Rolla.
Mangosing testified that when he saw Jeff on May 27, Jeff was exhibiting all of the symptoms that would cause a doctor to suspect Hantavirus. Jeff complained of body aches, fever, cough, sleeplessness, and headache. Mangosing ordered a complete blood-count profile, which revealed that Jeff s platelets had dropped to 89,000. Mangosing testified that about half of the results from Jeff s complete blood-count profile were abnormal. Mangosing also ordered a chest X-ray, which showed increased pulmonary markings. Mangosing had never treated a patient with Hantavirus. Mangosing did not call in a consult or attempt to look at any of the texts in the hospital concerning Hantavirus.
Mangosing testified that during the May 27 visit, he recommended that Jeff be admitted to die hospital, but Jeff did not respond. Carrie testified, however, that she did not remember Mangosing mentioning going into the hospital. Mangosing further testified that Carrie told Jeff, “Do not tough it out.” According to Mangosing, he took Jeff s lack of response to mean that Jeff did not want to be admitted to the hospital. Mangosing told Jeff that he may go home and gave him a script for a repeat complete blood-count test to be done the following day. Mangosing’s discharge instructions were as follows: “Repeat CBC in a.m.; call if increased cough, shortness of breath.”
Mangosing testified that when he saw Jeff on May 27, no supportive measures were needed at that time because Jeffs vital signs were normal. Mangosing testified that Jeff had normal blood pressure, pulse, temperature, and respirations; that his oxygen saturation level of 94% was normal; that his chest and lungs were clear; and that Jeff did not appear to be in distress, other than an occasional nonproductive cough and slight flushing of the face, at the visit. Moreover, Mangosing testified that he had ordered a complete metabolic profile to check Jeffs blood sugar, kidneys and liver, and electrolytes, and the comprehensive results were normal. Mangosing further testified that Garden City had the capability of handling the supportive measures that would have been required for Jeff.
Mangosing testified that he did not tell Jeff that Hantavirus could progress and become life threatening. Mangosing further testified that he did not tell Jeff the different ways that Hantavirus could be treated when it progressed.
Carrie’s mother, Elizabeth Easterwood, testified that when Carrie and Jeff came out of Mangosing’s office, they had a discussion in the lobby that Mangosing would put Jeff in the hospital but that Jeff preferred to go to Elkhart. According to Easterwood, Jeff preferred to go to Elkhart because it was closer to home and they could give him the same treatment of IV fluids and oxygen. Nevertheless, Carrie testified that she did not believe that such a discussion occurred. According to Carrie, there was a discussion in the lobby about whether they needed to come back to Garden City for the complete blood-count test or whether they could go to Elkhart, which was only 15 minutes from Rolla, for the test.
Wednesday, May 28, 2003
On Wednesday, May 28, 2003, Carrie took Jeff to Elkhart to have blood drawn for the complete blood-count test ordered by Mangosing. Carrie later called Mangosing’s office and left a message that Jeff had a fever, a headache, and body aches. The complete blood-count profile showed that Jeff s platelets had further decreased to 45,000. Mangosing directed his nurse to advise Jeff that he needed to be admitted to the hospital.
Carrie later got a call from a nurse at Garden City and was told that Jeff s platelets were low and that he needed to be admitted to the hospital. Carrie testified that when she asked whether she should take him to Garden City or Elkhart, she was told, “Just get to a facility.” Carrie testified that she and Teff decided to go to Elkhart.
Dr. Dominador Perido saw Jeff in the emergency room in Elk-hart at about 12:39 p.m. on May 28th. Perido was Carrie’s parents’ family physician. Although Perido was not Carrie’s doctor growing up, Perido had known Carrie’s parents for at least 30 years. Moreover, Perido had been Hunter’s physician, and Hunter would stop by to see Perido when she visited Rolla. Hunter testified that Perido had always been accessible to her and to her family for medical issues.
Perido testified that when he saw Jeff on May 28, he asked Jeff and Carrie why they were coming to see him, a general surgeon who was a family practitioner in a small town. Nevertheless, Carrie testified that Perido did not say anything like that when he saw Jeff on May 28. Carrie testified she and Jeff wanted Jeff to be sent somewhere else and that she believed that they asked Perido for that. Carrie testified that she did not remember Perido’s response to their request. Perido testified that Jeff was still physically able to have been transferred to a tertiary care facility in the afternoon and that he talked with Jeff and Carrie about different treatment options and about being transferred to a tertiary care facility.
Perido admitted Jeff to the main floor of the hospital on the afternoon of May 28 in order to stabilize him and give him supportive treatment. The hospital in Elkhart is a 22-bed hospital with a one-room intensive care unit. On Wednesday afternoon, Jeff s platelets had dropped to 34,000, his lymphocytes were low, his heart was tachycardiac, his oxygen saturation level was below normal, and several other test results were abnormal. That afternoon, Perido received Jeff s Hantavirus test result, which was positive.
As the afternoon of May 28 progressed, oxygen had to be administered to Jeff because of his declining oxygen saturation rate. By 7:55 p.m., Jeff had to be put on 100% oxygen with a non-breather mask. A chest X-ray showed “interstitial changes in both mid and lower lung fields with bilateral pleural reaction.” Thursday, May 29, 2003
By 6:25 a.m. on May 29, 2003, Jeff s platelets had dropped to 19,000. In addition, Jeff had marked weakness and his pulse rate had gone up to 136 beats per minute when he got up to go to the bathroom that morning. At 7:45 a.m., Perido told Jeff that he needed to place him in intensive care to watch his blood pressure and give him further supportive care. Perido also called Dr. Belino Iway, an internal medicine doctor in Elkhart, to consult with him about Jeff s condition.
When Iway arrived at the hospital on the morning of May 29, Jeff was in the ICU and had been intubated and put on a ventilator to help with his breathing. Iway’s assessment was that Jeff was in acute respiratory distress and should be transferred to KU Med. According to Iway, the hospital in Elkhart could give immediate critical care, but it would be difficult to provide such care in the long term.
It took approximately 6 hours to find a bed for Jeff in a tertiary care facility. Arrangements were made for Jeff to go to KU Med, and the air ambulance crew flew from Liberal to Elkhart to take Jeff there. As Jeff was being rolled out of the intensive care unit, however, he crashed and was too unstable to make the transfer. Despite efforts to stabilize him, Jeff died in Elkhart.
Filing of Lawsuit
The appellants filed suit in May 2005, and a first amended petition in September 2005. Perido was not originally named in the suit. Apparently, Riggs and Mangosing alleged that Perido was negligent and caused or contributed to Jeffs death. As a result, a second amended petition was filed in November 2006 naming Perido as a party defendant. The trial was held in June 2008.
Appellants’ Expert Dr. Hjelle
Dr. Brian Hjelle, a clinical pathologist in Albuquerque, New Mexico, testified that Jeffs Hantavirus test came through the lab where he read Hantavirus test results. According to Hjelle, he called Riggs on May 28 after he knew that the Hantavirus test result was going to be positive and asked about Jeff s clinical information to determine if it was consistent with Hantavirus. Hjelle testified that upon learning that Jeff s condition was consistent with Hantavirus, he told Riggs that Jeff should be referred to a tertiary care center quickly because Hantavirus patients “go bad so quickly with this disease.” Hjelle testified, however, that he got the distinct impression that Riggs was not planning to actively transfer Jeff to a tertiary care center. At that time, Jeff was in the hospital at Elkhart under Perido’s care.
Hjelle testified that it is extremely well-accepted in the field that the appropriate step to improve the chance that a Hantavirus patient will survive is to transfer the patient to a tertiary care center. Hjelle explained that at a tertiary care center, there are usually experienced intensivists and physicians who are used to working with patients in shock. Moreover, some tertiary care facilities, like KU Med, have treated patients with Hantavirus.
Hjelle further explained that there are nuances in the management of Hantavirus that are not immediately apparent to those who do not have experience with the disease or who have not talked with physicians who have experience with the disease. Hjelle testified that a Hantavirus patient should not be at a location where the patient cannot be actively and aggressively managed and monitored when the transition from the prodrome phase to the cardiorespiratory phase occurs.
Hjelle testified that his opinion was that Riggs deviated from the standard of care on May 26 by failing to transfer Mills to a tertiary care center, by failing to get a consult, by not ordering a chest X-ray, and by not ordering a Hantavirus test. In addition, Hjelle testified that, in his opinion, Mangosing deviated from the standard of care on May 27 by failing to transfer Jeff to a tertiary care facility, by discharging Jeff home based upon Jeff s lack of response to Mangosing’s recommendation for admission to the hospital, and by not thoroughly explaining to Jeff the high potential of a lethal outcome if Jeff was discharged to home. Hjelle further testified that Perido deviated from the standard of care on May 28th when he admitted Jeff to the floor and did not transfer him to a tertiary care facility.
According to Hjelle, his opinion was that Jeff would more likely than not have survived if Riggs had complied with the standard of care on May 26. Hjelle’s opinion was based upon the “likely significantly better management of things like fluid and pressor administration and all those things that go with having an intensive care unit that’s well-qualified and very experienced with dealing with shocky patients.”
Hjelle further testified that Jeff would more likely than not have survived if Mangosing had complied with the standard of care on May 27. Hjelle opined that Jeff would have received state of the art shock, fluid, and pressor management in a modem and experienced tertiary care center that would be used to seeing patients with shock. Similarly, Hjelle testified that had Perido complied with the standard of care on May 28, Jeff would more likely than not have survived. According to Hjelle, if Jeff would have been at a tertiary care facility, he would have been “in the hands of people with a great deal more experience with gravely ill patients who are suffering conditions” such as Hantavirus.
Appellants’ Expert Frires
Dr. Richard Frires, the director of an emergency department at a hospital in Cleveland, indicated that both Mangosing and Riggs deviated from the standard of care by not obtaining a consult and by not transferring Jeff to a tertiaiy care center. Frires further opined that Perido deviated from the standard of care by not transferring Jeff to a tertiaiy care center on May 28.
Riggs’ Expert
Riggs presented testimony from Dr. Richard Dellinger, who was the director of a surgical cardiovascular intensive care unit at a greater Philadelphia, Pennsylvania, hospital. Dellinger testified that when he performed shift work in the intensive care unit, he was responsible for the care of 14 to 18 patients, the majority of which were on breathing machines and mechanical ventilators and could require medications to support their blood pressure and cardiovascular systems. Dellinger further testified that he had never treated a Hantavirus patient but had treated patients with similar pulmonary, respiratory, and cardiovascular issues.
Dellinger testified that his opinion was that, more likely than not, consultation with an infectious disease specialist on May 26; admission of Jeff to the hospital on May 26; and transfer to a tertiary care center on May 26, 27, or 28, or after he was admitted to the hospital would not have altered Jeff s outcome. According to Dellinger, even if Jeff would have been in the biggest intensive care unit in the biggest city, that, more likely than not, would have made no difference in Jeff s outcome. Dellinger testified that based upon Jeff s severe degree of pulmonary edema and cardiovascular issues, any additional things drat might have been done at a tertiary care center would not have made a difference in Jeff s outcome.
Dellinger testified, however, that his opinion was that Riggs’ failure to order a Hantavirus test on May 26, 2003, was a deviation from the standard of care. Nevertheless, according to Dellinger’s deposition testimony, the failure to order a Hantavirus test on May 26 did not make a difference in Jeff s outcome.
Perido’s Expert
Perido presented expert testimony from Dr. R.C. Trotter, a family physician in Dodge City, Kansas. Trotter had not treated any patients with Hantavirus. Trotter testified, however, that the treatment of Hantavirus with its cardiac and respiratory components fell within the realm of many other conditions that he had treated.
Trotter testified that, in his opinion, Perido met the standard of care in all regards in his treatment of Jeff, including admitting Jeff to the hospital on May 28, not transferring him to a tertiary care facility at that time, and not seeking consultation with an infectious disease specialist. According to Trotter, it is not within an infectious disease consultant’s scope of practice to assist in any meaningful way in the use and management of ventilators and pressors. Trotter testified that all of the treatments to care for a Hantavirus patient were available at the facility in Elkhart and that Perido had the necessaiy knowledge and expertise to administer those treatments.
Moreover, Trotter testified that Riggs met the standard of care in his treatment of Jeff on May 26. Trotter further testified that the standard of care did not require Riggs to get a Hantavirus test on May 26th. According to Trotter, the Hantavirus test would not change the treatment course or Jeff s outcome because the physicians would still treat Jeff in a supportive manner and symptomatically.
Mangosing’s Expert
Mangosing presented expert testimony from Dr. David Fitzgerald, a pulmonary critical care physician. Although Fitzgerald had recently moved to Greeley, Colorado, to practice medicine, he had previously worked for 10 years as a physician in Liberal, Kansas. In 1997 to 1999, Fitzgerald had worked in a medical clinic with Dr. Hunter. Carrie was the office manager at that clinic while Fitzgerald was there.
Fitzgerald testified that while he was working at the clinic in Liberal, he assisted with the treatment of a Hantavirus patient who was hospitalized in the intensive care unit. Moreover, Fitzgerald testified that he had two other patients in Liberal on an outpatient basis that had Hantavirus. According to Fitzgerald, the supportive treatment that can be given to patients with Hantavirus is Tylenol for the fever, cough suppressants, and anti-inflammatory medication for muscle aches in the early prodrome of the disease. Fitzgerald testified that the monitoring at that stage included instructing the patient to call if there was a change in symptoms and scheduling follow-up office visits. According to Fitzgerald, the worrisome symptom with Hantavirus was shortness of breath, which could signal that a patient was progressing to the cardiopulmonary phase of the disease. Fitzgerald testified that a Hantavirus patient in the prodromal phase could be treated either in the outpatient or hospital setting.
Fitzgerald testified that his opinion was that Mangosing’s care and assessment of Jeff on May 27 was within the standard of care.
Jury’s Verdict
At the conclusion of trial, the following claims that Riggs had deviated from the standard of care were submitted to the jury for deliberations: (1) failing to order a Hantavirus test on May 26, 2003; (2) failing to order a chest X-ray on May 26, 2003; (3) failing to admit Jeff to the hospital on May 26, 2003; (4) failing to order transfer of Mills to a tertiary care center on May 26,2003; (5) failing to order repeat complete blood counts; and (6) failing to arrange for immediate consultation with an infectious disease expert.
The following claims that Mangosing had deviated from the standard of care were submitted to the jury for deliberations: (1) failing to provide appropriate treatment on May 27 and May 28,2003; (2) failing to urge admission to the hospital on May 27,2003; (3) failing to transfer Jeff to a tertiary care center on May 27, 2003; and (4) failing to urge transfer of Jeff to a tertiary care center May 27 or May 28, 2003. Mangosing alleged that Jeff contributed to his death by (1) fading to be admitted for observation in Garden City and (2) failing to follow the recommendations of other health care providers recommending hospitalization.
Finally, the following claims that Perido had deviated from the standard of care were submitted to the jury for deliberations: (1) failing to transfer Jeff to a tertiary care center before his condition deteriorated and (2) failing to arrange for an immediate consultation with an infectious disease expert. Perido alleged that Jeff contributed to his death by failing to accept recommended or available medical care and services.
At the conclusion of deliberations, the jury, in a 11-1 verdict, found none of the parties to be at fault. As a result, a defense verdict was entered in favor of the appellees.
Fitzgerald’s Testimony Concerning Personal Care of Hantavirus Patients
On appeal, the appellants first argue that the trial court erred in allowing Fitzgerald, a defense expert, to testify concerning how he had treated other patients with Hantavirus in his personal practice. The appellants maintain that the admission of this evidence was in error because the trial court previously had denied them discovery on this same issue and because the trial court previously ruled that such evidence would be inadmissible at trial.
When a party alleges that an order in hmine has been violated, the trial court must determine (1) whether the order has been violated and, if so, (2) whether the party alleging the violation has established substantial prejudice resulting from that violation. City of Mission Hills v. Sexton, 284 Kan. 414, 436, 160 P.3d 812 (2007). Because the trial court is in the best position to determine whether a violation occurred and to determine the degree of prejudice any violation may have caused, the trial court’s determination on these matters will not be disturbed absent a clear abuse of discretion. Steinman v. Krisztal, 247 Kan. 324, 328, 799 P.2d 475 (1990).
Moreover, tire appellants raised this same issue in their motion for a new trial. It is within the discretion of the trial court to grant or deny a new trial under K.S.A. 60-259(a), and such decision will not be disturbed on appeal except upon a showing of abuse of that discretion. Sexton, 284 Kan. at 421.
Motion to Compel
During discovery, each of the appellees’ designated experts was deposed by the appellants. Before the deposition of Fitzgerald, a notice to take deposition duces tecum with an attached exhibit was sent that requested Fitzgerald to bring the following documents, inter alia, to his deposition: “The chart of any patient whom he has treated for [Hantavirus] with the name, social security number, and birth date of the patient redacted.” In response to the request for production of medical records, Mangosing’s attorney faxed a letter to the appellants’ attorney and stated that Fitzgerald would not be providing copies of the charts of patients he had treated for Hantavirus.
Following Fitzgerald’s deposition, the appellants moved for an order compelling Fitzgerald to produce the requested medical records. They argued that the requested medical records were relevant to the case and necessary to determine the expert’s background, knowledge, and experience with Hantavirus. After holding a hearing on November 5, 2007, the trial court issued a short journal entry in which it ruled as follows: “Upon hearing arguments of Plaintiffs’ counsel and counsel for Dr. Mangosing, the Court finds that the Plaintiffs’ Motion to Compel the production of the Hantavirus patient records is denied.”
The appellants maintain that at the hearing on November 5, 2007, the trial court also ordered that they were not entitled to conduct discovery into Fitzgerald’s personal practice in treating Hantavirus patients because the defense experts would not be allowed to testily at trial concerning their treatment of other patients. Nevertheless, the appellants have not provided this court with a copy of the transcript of the November 5, 2007, hearing or a copy of any order from that hearing prohibiting the defense experts to testify at trial concerning their treatment of other patients.
Pretrial Conference
On November 21, 2007, the trial court held a pretrial conference. The lengthy written pretrial order from that conference outlines the category “Expert or Cumulative Witness Limitations” under which is the following statement: “Plaintiffs: The court made no rulings at the time of the pretrial conference.” Later, in the pretrial order, the trial court entered orders that the testimony of retained experts was limited to the opinions disclosed in their expert reports and their deposition testimonies. Nevertheless, there is nothing in the pretrial order regarding any limitation on Fitzgerald’s testimony concerning his treatment of other patients.
Motion in Limine Hearing
On December 5, 2007, the trial court held a hearing on numerous motions, including a motion in limine filed by the appellants. The appellants fail to cite to their motion in hmine in the record, and it is absent from the appellate record. Apparently, within their motion in hmine, the appellants requested an order prohibiting evidence from “[a]ny defense expert concerning their personal care of Jeff Mills or how they personally care for patients, including [Hjantavirus patients.”
At the motion in hmine hearing, the trial judge and the parties engaged in a somewhat confusing discussion about what could and could not be introduced concerning a defense expert’s personal care of patients. During the discussion, the trial judge indicated that whether a defense expert had treated a Hantavirus patient could be admissible for the jury to consider the weight to give the testimony but that the expert witness could not be cross-examined about the way he treated the patient:
“THE COURT: If they’ve never treated a patient with [H]antavirus that’s probably admissible. It may go to tire weight of their opinion, but not the admissibility.
“[Mangosing’s counsel]: Wouldn’t there have to be a foundation? Is this based on what training?
“[Riggs’ counsel]: So if they haven’t treated one, that’s perhaps cross-examinable.
“THE COURT: Right.
“[Riggs’ counsel]: If they have, the way that they have done it is not cross-examinable.
“THE COURT: That’s right. Medical malpractice case
“[Mangosing’s counsel]: I’m sorry.
“THE COURT: Go ahead.
“[Mangosing’s counsel]: I didn’t quite follow what Brian is saying.
“THE COURT: As I understand the law, just asking a doctor how he treated this particular illness doesn’t establish the standard of care. And that’s supposedly the topic that that doctor will be testifying — that witness will be testifying about.
“[Mangosing’s counsel]: I agree that the expert has to testify ‘standard of care requires this.’
“THE COURT: Right.
“[Mangosing’s counsel]: He cannot say ‘this is the way I would do it.’
“THE COURT: That’s right.
“[Mangosing’s counsel]: Or ‘this is why we do it, even I read this.’ He has to say whether I did it or not, the standard of care requires this.
“THE COURT: That’s right.
“[Mangosing’s counsel]: But this foundation is because
“THE COURT: That’s the way I see it.
“[Mangosing’s counsel]: or he read about it, that’s a different issue. Is that right, Brian? Is that what you’re saying?
“[Riggs’ counsel]: Yeah.
“THE COURT: Yeah, that’s what I’m saying.
“[Mangosing’s counsel]: Yeah.
“THE COURT: A medical malpractice crisis: Granted.”
Although the appellants refer to a written order in limine that sets out the trial court’s rulings from the December 5, 2007, hearing, they provide no citation to the record, and such an order is not contained within the appellate record.
Fitzgerald’s Testimony Concerning Personal Care of Patients
Towards the beginning of Fitzgerald’s direct examination at trial, Mangosing’s counsel elicited testimony concerning the fact that Fitzgerald had previously been involved with the treatment of a Hantavirus patient as follows:
“Q. . . . During the time that you were in the specialty group clinic, did you have an occasion to follow a patient that had Hantavirus in the hospital?
“A. That’s where I had my first exposure to a patient with Hantavirus.
“Q. And he was already hospitalized, is that correct?
“A. Correct.
“Q. And did you assist in the management of that individual in the ICU?
“A. Yes.”
A couple of pages later in the trial transcript, Mangosing’s counsel elicited testimony from Fitzgerald that he had also treated two other Hantavirus patients on an outpatient basis:
“Q. Doctor, I want to talk to you about, you mentioned already at my request one of thethat you have one case of Hantavirus that you cared for, is that correct? We already mentioned one, is that correct, sir?
“A. The one in the hospital, yes.
“Q. Have you had experience in additional patients that were diagnosed with Hantavirus?
“A. I’ve had two other patients on an outpatient basis that had Hantavirus.
“Q. And these patients were all in Liberal?
“A. Yes.
“Q. And during the time that you were managing the patient in the hospital, do you remember whether or not Carrie Mills was still working as an office manager for the clinic?
“A. I believe she was.
“Q. Doctor, in terms of patients that you manage on an outpatient basis, that is, they were not hospitalized, can you tell the jury what type of symptoms that those particular patients have?”
At that point, the appellants objected based on the order in limine:
“[Mills’ counsel]: Your Honor, I’m going to object. Personal practice. There’s a motion in hmine.
“THE COURT: Pardon me?
“[Mills’ counsel]: Personal practice. There’s a motion [order] in hmine on this issue.
“THE COURT: I believe there is.
“[Mangosing]: I’m sorry?
“THE COURT: I beheve there is a motion [order] in hmine.
“[Mangosing’s counsel]: I’m not asking him for opinions based on personal opinion on the personal care. That’s the case of Nazarene versus Mt. Carmel Convent, Your Honor. I’m only asking for his experience as a physician.
“THE COURT: Experience and qualifications?
“[Mangosing’s counsel]: Yes.
“THE COURT: Overruled.”
Mangosing’s counsel continued questioning Fitzgerald about his experience with Hantavirus patients as follows:
“Q. . . . Doctor, in terms of the patients which you managed in the outpatient setting, were these patients that you saw in the hospital, in the office?
“A. Yes.
“Q. And what type of symptoms does a person, the patients you have, what type of symptoms does the patient present with that may have Hantavirus?
“A. Mild flu-like symptoms.
“Q. What does that mean to us?
“A. Fever, muscle aches, cough.
“Q. And how did you manage the patients on the outpatient basis?”
At that point, the appellants again objected, and their objection was sustained:
“[Mills’ counsel]: Personal practice, Your Honor.
“[Mangosing’s counsel]: Based on your experience, Doctor. I’m establishing experience, Your Honor.
“THE COURT: I think I’m going to sustain that objection.”
Mangosing’s counsel then continued with his questioning of Fitzgerald as follows:
“Q. Let me rephrase that.
“Q. Doctor, during the time that you managed these particular patients, did any of those two patients ever require hospitalization?
“A. No.
“Q. Was there serology or was there some testing done to determine whether or not the patient in fact had Hantavirus?
“A. Hantavirus antibodies were obtained and were positive.
“Q. Doctor, based on your training and experience, with this particular virus, what type of care can be given to patients that may have Hantavirus?
“A. There’s no specific treatment of Hantavirus. It’s supportive care and care of the symptoms.”
Several pages later in the trial transcript, Mangosing’s counsel asked Fitzgerald why he would caution a patient about shortness of breath when the appellants again objected to Fitzgerald’s testimony:
“Q. Dr. Fitzgerald, I was visiting with you about the symptoms that you would advise a patient about the shortness of breath, and I asked you why you would say — what was the reason you would mention shortness of breath, and I asked you why you would say — what was the reason you would mention shortness of breath or caution for the patient to look out for any shortness of breath?
“[Mills’ counsel]: Your Honor, again, personal practice. He’s talking about the standard of care.
“THE COURT: Overruled.
“[Mangosing’s counsel]: Go ahead, Doctor.
“A. [Fitzgerald:] Shortness of breath would be a symptom that I would be concerned about that may suspect that a patient is progressing to the cardiopulmonary phase of the disease.”
Later, when Fitzgerald injected a comment that he had treated Hantavirus patients in Liberal, Kansas, the trial court sustained the appellants’ objection and motion to strike the testimony:
“Q. In your opinion, Doctor, based on your training and experience, is tertiary care centers the only place that a patient who might have Hantavirus can be treated?
“A. No.
“Q. Or looked after, I should say?
“A. We did at Liberal.
“[Mills’ counsel]: Objection, move to strike. Personal practice.
“THE COURT: Sustained.”
The appellants again objected when Fitzgerald testified about his instructions to his Hantavirus outpatients:
“Q. [Mangosing’s counsel:] And if you do it outpatient, what is done in that regard?
“A. [Fitzgerald:] I have the patient call to instruct if there’s any change and I usually see them on a daily basis.
“[Mills’ counsel]: Your Honor, again, move to strike. Personal practice as to what he does.
“[Mangosing’s counsel]: I’ll withdraw that.
“THE COURT: Okay.”
Improper Standard of Care Testimony
In arguing that Mangosing’s questioning of Fitzgerald was improper, the appellants cite Karrigan v. Nazareth Convent & Academy, Inc., 212 Kan. 44, 510 P.2d 190 (1973), and Cox v. Lesko, 23 Kan. App. 2d 794, 935 P.2d 1986 (1997), aff'd in part and rev'd in part 263 Kan. 805, 953 P.2d 1033 (1998). Although the issue in Karrigan is different from the issue here, our Supreme Court set forth the rule that “ ‘[e]vidence is not admissible to show what another would have done under the circumstances, or that he would have treated the patient in some other way, or to show how defendant’s treatment of like cases differed from that of other physicians.’ ” 212 Kan. at 50 (quoting 70 C.J.S. Physicians & Surgeons § 62, p. 998). In Cox, this court cited the rule set forth in Karrigan. This court determined that allowing the plaintiff to cross-examine an expert witness on how he preferred to treat the type of injury that the plaintiff sustained would unduly emphasize one approach over another and was not relevant in determining whether die defendant deviated from the standard of care. 23 Kan. App. 2d at 798-99.
Trial Court’s Ruling on Motion for New Trial
The appellants raised the present issue in their motion for a new trial, but the trial court rejected their argument for the following reasons: (1) they failed to make a contemporaneous objection in many instances; (2) most of their objections were sustained; (3) the objections not sustained were because the evidence related to foundation or Fitzgerald’s experience; and (4) Fitzgerald’s testimony was substantially within the guidelines of the order in limine.
Failure to Make a Contemporaneous Objection
As the trial court correctly pointed out, the appellants failed to make a contemporaneous objection to the majority of Fitzgerald’s testimony that they now complain about on appeal. When the trial court grants an order in limine and the prohibited evidence is introduced at trial, the moving party must object at trial to the admission of the evidence to preserve the issue for appeal. Griffin v. Suzuki Motor Corp., 280 Kan. 447, 470, 124 P.3d 57 (2005); see also State v. King, 288 Kan. 333, 348, 204 P.3d 585 (2009) (“[A] party must lodge a timely and specific objection to the admission or exclusion of evidence in order to preserve the evidentiary question for review.”); K.S.A. 60-404 (“A verdict or finding shall not be set aside ... by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.”). As a result, in those instances where the appellants did not make a contemporaneous objection to the complained-of fine of questioning and testimony, they failed to preserve the issue for appeal.
Overruled Objections — Testimony Within Scope of Order in Limine
Out of the five objections made by the appellants, the trial court overruled only two of those objections. The first objection which the trial court overruled was to the question concerning the types of symptoms that Fitzgerald’s outpatients experienced. Nevertheless, Mangosing’s counsel rephrased his question to a more general question, “And what type of symptoms does a person, the patients you have, what type of symptoms does the patient present with that may have Hantavirus?” (Emphasis added.) This question was within the scope of the trial court’s order in limine from the December 2007 hearing because it did not ask Fitzgerald to provide information concerning how he personally cared for his Hantavirus patients. Rather, this question was similar to those asked of other experts at trial about the symptoms of Hantavirus. As Mangosing attempted to get into how Fitzgerald managed his patients on an outpatient basis, the trial court sustained the appellants’ objection. As a result, there was no violation of the order in limine.
The second question where the trial court overruled the appellants’ objection was when Mangosing’s counsel asked, “[W]hat was the reason you would mention shortness of breath or caution for the patient to look out for any shortness of breath?” After the objection was overruled, Fitzgerald responded, “Shortness of breath would be a symptom that I would be concerned about that may suspect that a patient is progressing to the cardio [respiratory] phase of the disease.” Although Fitzgerald’s testimony related to a symptom that he would look for in a Hantavirus patient, it did not relate to how he personally cared for and treated the Hantavirus patient. His testimony was similar to that given by the other experts in the case as to how the Hantavirus disease progressed from the prodrome phase to the cardiorespiratoiy phase. As a result, it is apparent that Mangosing’s counsel’s question and Fitzgerald’s testimony did not violate the trial court’s order in limine.
Refusal to Allow Discovery Concerning Dr. Fitzgerald’s Personal Practice
The appellants contend that the error in admitting Fitzgerald’s testimony concerning his personal practice was compounded by the trial court’s refusal to allow them to conduct discoveiy concerning Fitzgerald’s personal practice.
The problem with the appellants’ argument is that they have not provided this court with a transcript or a written order that explains the trial court’s reasoning to not allow discovery of Fitzgerald’s patients’ redacted medical records. As a result, this court cannot adequately review why the trial court would not allow discovery of this information. “An appellant has the duty to designate a record sufficient to establish the claimed error. Without an adequate record, the claim of alleged error fails. [Citations omitted.]” State ex rel Stovall v. Alivio, 275 Kan. 169, 172, 61 P.3d 687 (2003). Assertions made in an appellate brief are not sufficient to satisfy inadequacies in the record on appeal. State v. Bloom, 273 Kan. 291, 307, 44 P.3d 305 (2002).
Moreover, another glaring problem with the appellants’ argument is that they have not pointed to anywhere in the record where they told the judge presiding over the trial the reason that Fitzgerald should be prohibited from testifying about his experience in treating Hantavirus patients. The appellants should have explained to the trial judge that they were never allowed to obtain information about those patients to adequately cross-examine Fitzgerald.
A different judge presided over the motion to compel hearing than the judge who entered the pretrial order and presided over the trial. Although the appellants contend that there was an order entered at the motion to compel hearing that they were not entitled to conduct discovery into Fitzgerald’s personal practice in treating Hantavirus patients because the defense experts would not be allowed to testify at trial concerning their treatment of other patients, such a detailed order is not contained in the appellate record. Moreover, there is no evidence of such a ruling in the pretrial order.
At the motion in limine hearing, when the trial court considered whether to exclude the testimony of defense experts concerning their personal care of patients, the appellants did not argue to the trial court that they had been prohibited from discovery of Fitzgerald’s patients’ records. Further, and perhaps most important, die appellants never made such an argument to the trial judge when they objected to Fitzgerald’s testimony. In this massive case that extended for more than 3 years from the filing of the petition to the jury trial, the appellants had the responsibility to adequately argue to the trial court why the admission of Fitzgerald’s testimony would be so prejudicial to their case. In the absence of such an argument, the appellants have not made a sufficient record to establish their claim of error on this point. See Kelly v. VinZant, 287 Kan. 509, 526, 197 P.3d 803 (2008) (“An appellant has the burden to designate a record sufficient to establish the claimed error; without such a record, the claim of error fails.”).
Juror’s Affidavit
In arguing that the jury’s verdict was rendered in reliance on Fitzgerald’s testimony concerning his personal practice, the appellants cite to an affidavit that was filed in support of their motion to set aside the judgment and for a new trial. The affidavit was prepared by the juror who dissented from the 11-1 verdict in favor of the appellees and details how the jury used the evidence presented by Fitzgerald to reach its verdict.
Nevertheless, the appellees argue that the affidavit should not be considered by this court because it invades the province of the jury and violates K.S.A. 60-441. The appellants contend, however, that this court can properly consider the affidavit under K.S.A. 60-444.
Recently, our Supreme Court explained the dichotomy between K.S.A. 60-441 and K.S.A. 60-444 as follows:
“The law governing impeachment of jury verdicts is founded on two competing considerations. On one hand, is the requirement that the case be decided solely on the evidence presented and the instructions given to a fair and impartial jury. To this end, K.S.A. 60-444(a) provides that a juror is allowed to testify as a witness ‘to conditions or occurrences either within or outside of tire jury room having a material bearing on the validity of the verdict or the indictment, except as expressly limited in K.S.A. 60-441.’ On the other hand, there is a need for confidentiality of deliberation and verdict finality. Diehm, 65 St. John L. Rev. at 394; see Concannon, 52 J.K.B.A. 201. This need results in a conclusion that public policy forbids the questioning of a juror on the mental processes individual jurors used in reaching a verdict because ‘there is no possible way to test the truth or veracity of the answers.’ Kincaid v. Wade, 196 Kan. 174, 178, 410 P.2d 333 (1966). This policy is codified in K.S.A. 60-441, which prevents a court from considering any evidence that attempts to ‘show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict or indictment or concerning the mental processes by which it was determined.’
“In balancing these competing policies, this court normally does not allow testimony or affidavits of jurors to impeach a verdict where it is not obvious from the verdict that the jury failed to follow jury instructions. Jones v. Sigg, 261 Kan. 614, 621, 930 P.2d 1077 (1997). Exceptions are recognized, however, if a jury intentionally disregards a court’s instructions or violates one or more of the essential formalities of proper jury conduct. One such long-standing exception applies ‘where a juror alleges the juiy entered into a conscious conspiracy to circumvent the deliberation process by engaging in conduct which produces a quotient verdict.’ 261 Kan. at 621-22 (citing City of Ottawa v. Heathman, 236 Kan. 417, 425, 690 P.2d 1375 [1984] ).” Williams v. Lawton, 288 Kan. 768, 797-98, 207 P.3d 1027 (2009).
Thus, under K.S.A. 60-441, a court is prohibited from considering any evidence that relates to the mental processes of jurors in arriving at a verdict. This assures the finality of verdicts and protects against the corruption of jurors after discharge. A court, however, may consider evidence to impeach a verdict when the evidence will show actions of the jurors by which they have intentionally disregarded the trial court’s instructions or violated one or more of the essential formalities of proper jury conduct. Yerren v. City of Pittsburg, 227 Kan. 259, 261, 607 P.2d 36 (1980) (citing VIII Wigmore on Evidence, § 2348 [McNaughton rev. 1961]).
The juror’s affidavit filed in this case sets forth certain evidence that was admitted at trial and discusses how the jurors used that evidence during the deliberation process to arrive at the verdict. This information relates to the jurors’ mental processes and will not be considered by this court. Although the appellants argue that the affidavit can be considered under K.S.A. 60-444, there is nothing in the affidavit to even suggest that the jurors intentionally disregarded the trial court’s instructions or violated an essential formality of proper jury conduct. As a result, the appellants’ argument urging this court to consider the juror’s affidavit lacks merit.
Based on the circumstances present in this case, we find no abuse of discretion in the trial court’s decision to deny the appellants a new trial on the issue concerning the admission of Fitzgerald’s testimony.
Testimony Concerning Carrie’s Medical Treatment for Hantavirus
Next, the appellants argue that the trial court erred in not ordering a new trial based on the appellees’ violations of the trial court’s orders prohibiting the introduction of evidence concerning the medical treatment that was and was not provided to Carrie while she was hospitalized at KU Med for Hantavirus.
It is within the discretion of the trial court to grant or deny a new trial under K.S.A. 60-259(a), and such decision will not be disturbed on appeal except upon a showing of abuse of that discretion. City of Mission Hills v. Sexton, 284 Kan. 414, 421, 160 P.3d 812 (2007).
Before trial, the appellants moved to exclude any evidence regarding whether Carrie’s medical providers complied with or deviated from the standard of care. The trial court granted the appellants’ motion and stated that how Carrie was taken care of was irrelevant to this case. Nevertheless, the trial court noted that “what [Carrie] talks about on direct examination is fair game on cross-examination. But ... if she doesn’t talk about going to the KU Med Center or any of that stuff on direct examination, you can’t bring it up.”
During the middle of trial, Mangosing’s counsel argued that based upon the evidence that had come out concerning Carrie’s illness and her hospitalization for Hantavirus, the appellees should be able to ask Carrie and other witnesses about what Carrie knew. Moreover, Mangosing’s counsel argued that the appellees should be able to use Carrie’s medical records if something was said that was different from the medical records. Refusing to admit Carrie’s medical records, the trial court stated the case was not about what Carrie received in treatment, where she was treated, or how she was treated. The trial court stated, however, that the parties could ask Carrie about the knowledge she gained from the result of her illness and whether she conveyed that to Jeff.
On cross-examination at trial, Riggs’ counsel questioned Carrie about her concern for Jeff s condition based upon her own experience with Hantavirus as follows:
“Q. The reason you knew that you were concerned was because of what you had gone through, right?
“A. Yes.
“Q. One of the things that I noticed that you said was that you knew from your doctors that they didn’t like the oxygen to be below 92. Do you remember saying that?
“A. Yes.
“Q. And when you saw Jeffs oxygen go below 92, that concerned you, correct?
“A. Yes.
“Q. Okay. Now, I listened very carefully to your answers that you were giving to your lawyer’s questions, and I never heard him ask you whether or not you tested positive for Hantavirus. Did you?
“A. Did I test positive?
“Q. Yeah.
“A. Yes.
“Q. Okay. And so when you learned that you had Hantavirus, that made you concerned that Jeff might have it, right?
“A. Yes.
“Q. Okay. And you learned that you had Hantavirus after you’d come to Garden City, didn’t you?
“A. I don’t remember when I learned it.
“Q. Well, you know that your doctor had to order a test, right, out here at Garden City? Dr. Hansen?
“A. I do not remember that he ordered it.”
Although the appellants now argue that the line of questioning concerning Carrie’s test for Hantavirus was a direct violation of the trial court’s ruling, the appellants failed to make a contemporaneous objection to Riggs’ counsel’s questions concerning Carrie’s Hantavirus test. As a result, the appellants’ argument has not been preserved for appeal. See Griffin v. Suzuki Motor Corp., 280 Kan. 447, 470, 124 P.3d 57 (2005) (When the trial court grants an order in limine, and the prohibited evidence is introduced at trial, the moving parly must object at trial to the admission of the evidence to preserve the issue for appeal.); State v. King, 288 Kan. 333, 348, 204 P.3d 585 (2009) (“A parly must lodge a timely and specific objection to the admission or exclusion of evidence in order to preserve the evidentiary question for review.”); K.S.A. 60-404 (“A verdict or finding shall not be set aside ... by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.”).
The appellants also point to the following cross-examination of Carrie as violating the trial court’s order in limine:
“Q. [Riggs’ counsel:] You went to the hospital at Joplin, when you were there visiting your sister, on early Sunday morning, correct?
“A. [Carrie:] Yes.
“Q. You had gone for laboratory to be drawn on the day before, correct?
“A. Yes.
“Q. But you were not admitted on the first day that you presented for medical care with what ultimately came to be diagnosed as Hantavirus, correct?
“[Mills’ counsel]: Objection to relevance, Your Honor. This is in the Court’s order in limine.
“[Riggs’ counsel]: It’s in direct examination.
“THE COURT: Overruled.
“[Riggs’ counsel]: Go ahead.
“A. No, I was not admitted that day that I went to get lab drawn.
“Q. Okay. And you had concerns at that time about flu-like symptoms, right?
“A. I had a fever and I had a headache and I was achy. I was starting to cough.
“Q. You knew that, by the time Jeff was going to the hospital, you knew that one of the signs of some viral infections, including Hantavirus, was low platelets, correct?
“A. Yes.
“Q. And you know that your own platelets were very low when you were treated?
“A. Yes.
“Q. Lower than Jeff s ever were, right?
“A. I don’t remember what my platelets were. I remember they dropped.”
Nevertheless, during that entire fine of questioning, the appellants raised only one objection. In that instance, the trial court was correct to overrule the objection because Carrie had testified on direct examination that she had not been admitted to the hospital when she first went on Saturday for lab work. As demonstrated in the quoted material above, the appellants never objected to any of Riggs’ other questions relating to Carrie’s condition. As the party requesting the order in limine, the appellants had the burden to object at trial to the admission of any evidence prohibited by the order in limine. By not making a contemporaneous objection at trial to the admission of such evidence, the appellants failed to preserve their issue for appeal. See Griffin, 280 Kan. at 470.
Moreover, even if the appellants had properly preserved their issue for appeal, it is apparent that the complained-of testimony did not violate the trial court’s order in limine. During trial, the trial court modified its ruling to allow the parties to ask Carrie about the knowledge she gained from the result of her illness and whether she conveyed that to Jeff. In cross-examining Carrie about her condition, Riggs’ counsel related what Carrie knew about her illness and the information she gained during her hospitalization to the symptoms she became concerned about in Jeff. Such questioning was in line with the trial court’s modified ruling concerning Carrie’s illness.
In denying the appellants’ motion for a new trial, the trial court found that any questions asked by defense counsel regarding Carrie’s medical treatment were within the scope of direct examination. The trial court further determined that the questions were not in violation of the order in limine because the order in limine specifically stated that if appellants’ counsel opened the door regarding the treatment at KU Med, then follow-up questions would be appropriate.
Indeed, before Carrie testified at trial, the appellants had elicited testimony from Mangosing that when Carrie had Hantavirus, she had been sent to KU Med’s intensive care unit and had then been transferred to Garden City. Then, during Carrie’s direct examination at trial, the appellants’ attorney elicited testimony indicating that Carrie had initially gone to the hospital in Joplin on Saturday to do some lab work, had been admitted to the hospital in Joplin on Sunday, and had then been transferred to KU Med’s intensive care unit.
The appellants also elicited testimony from Iway that within minutes of seeing Jeff on May 29th, he suggested that Jeff needed to be transferred to KU Med. Moreover, Hjelle, the appellants’ expert witness, had testified that the standard of care would involve sending Jeff to a known high quality tertiaiy care center like in Wichita or at KU Med.
In civil cases, Kansas courts follow the rule that if one parly offers an inadmissible fact into evidence, the other party may introduce a similar inadmissible fact “ whenever it is needed for removing an unfair prejudice which might otherwise have ensued from the original evidence.’ [Citation omitted.]” McKissick v. Frye, 255 Kan. 566, 578-79, 876 P.2d 1371 (1994).
Here, before Carrie testified at trial, the appellants had focused in on the fact that Carrie had been transferred to KU Med for treatment of her illness and that the standard of care required transfer to such a facility. In opening statements, the appellants twice mentioned the fact that Carrie had been in the intensive care unit at KU Med. Despite the trial court’s initial determination that Carrie’s medical treatment was not relevant to the present case, the appellants had made statements and asked questions concerning Carrie’s hospitalization after she was infected with Hantavirus.
The appellees point out that the obvious strategy by the appellants in this case was to employ Carrie herself as a “defacto ‘Exhibit A,’ who survived under treatment at KU, in contrast to her husband who died during treatment in southwest Kansas, seeking to have the jury infer negligence from the mere fact of the different outcomes.” Throughout the case, the appellants implied that if Jeff would have been transferred to a tertiaiy care facility like KU Med, like Carrie had been, he would have recovered, like Carrie did, from Hantavirus.
The appellants’ implied argument in this case was as follows: When Carrie was ill with Hantavirus, she was admitted to KU Med. While at KU Med, her condition improved and she was released from there to recuperate closer to her home. Carrie’s recovery of her health from Hantavirus presents a marked contrast to Jeff s death caused by Hantavirus, and Jeff was not treated at KU Med or at any other tertiaiy medical center.
The appellants’ linking Carrie’s recovery to her treatment at KU Med to Jeff s death and not being treated at a tertiary medical center like KU Med seems post hoc. The mere fact that Carrie was treated at KU Med, and then her condition or health improved, is shaky ground for arguing that her recovery from Hantavirus was caused solely by the treatment she received at KU Med. Based on the statements and evidence that were presented by the appellants to the jury, the appellees properly elicited testimony that certain aspects of Carrie’s care were not much different than the care that had been provided to Jeff but resulted in different outcomes.
Because the appellants had previously introduced evidence concerning Carrie’s hospitalization for Hantavirus, there was no error in the appellees’ cross-examination of Carrie on this issue. As a result, we find no abuse of discretion in the trial court’s decision to deny the appellants a new trial on this issue.
Sufficiency of Evidence to Support the Verdict
Finally, the appellants argue that a new trial should have been granted to them because the verdict rendered by the jury was contrary to the great weight of the evidence.
When a verdict is challenged as being contrary to the evidence, an appellate court does not reweigh the evidence or pass on the credibility of the witnesses. If the evidence, when considered in the light most favorable to the prevailing party, supports the verdict, the appellate court should not intervene. Sexton, 284 Kan. at 422.
The appellees in this case presented testimony from multiple experts that Riggs, Mangosing, and Perido had not deviated from the standard of care. Specifically, Trotter testified that Riggs met the standard of care in his treatment of Jeff on May 26th. In addition, Fitzgerald testified that Mangosing’s care and assessment of Jeff on May 27th was within the standard of care. Trotter further testified that Perido met the standard of care in all regards in his treatment of Jeff, including admitting Jeff to the hospital on May 28th, in not transferring Jeff to a tertiary care facility at that time, and in not seeking consultation with an infectious disease specialist.
Trotter explained that all of the treatments to care for a Hantavirus patient were available at the facility in Elkhart and that Perido had the necessary expertise to administer the treatments. Iway, who worked with Perido on May 29th in trying to stabilize Jeff, testified that they could definitely take care of a patient who was in shock and cardiac arrest at the facility in Elkhart and they could also manage and stabilize the patient in critical care for a few hours until transfer could be made to a tertiary care facility. Moreover, Fitzgerald testified that all internal medicine doctors have intensive care unit training where they should be able to manage mechanical ventilators and the initial presentation of shock.
Dellinger supported both Fitzgerald’s and Trotter’s opinions with his testimony that even if Jeff would have been transferred to a tertiary care center, his outcome, more likely than not, would not have been altered. According to Fitzgerald, more likely than not, consultation with an infectious disease specialist on May 26, admission of Jeff to the hospital on May 26, and transfer to a tertiary care center on May 26, 27, or 28 would not have altered Jeff s outcome.
Iway testified that he had some experience previously with another Hantavirus patient where the patient was transferred to Wichita on the day she came into the emergency room. Nevertheless, the patient died the same day on a respirator in Wichita. According to Iway, the chance of survival with the illness that Jeff had was “very minimal wherever you are.”
In addition to the expert testimony that the appellees had not breached the standard of care in their treatment of Jeff, there was also testimony from Hunter, who was Carrie’s sister, and Easter-wood, who was Carrie’s mother, that Jeff had resisted getting treatment for his condition. According to Hunter, both she and Carrie had to stress to Jeff the severity of Hantavirus so that he would see a doctor for his illness. Easterwood testified that Carrie had to tell Jeff on May 26 that he could not play with the band that night if he did not get a blood test. According to Easterwood, Jeff did not want to be admitted to the hospital in Garden City on May 27 and instead wanted to be closer to home in Elkhart. Hunter testified that after Jeff died she explained to Jeff s family that Jeff had been resistant to being in the hospital because he had a family to take care of and things to do.
In arguing that the jury’s verdict was not supported by the evidence, the appellants choose bits and pieces of the experts’ testi mony to argue that the evidence showed that the appellees deviated from the standard of care. For example, the appellants point out that Dellinger s deposition testimony was that Riggs deviated from the standard of care by failing to order a Hantavirus test on May 26. Nevertheless, contrary to Dellinger’s deposition testimony, Trotter testified that the standard of care did not require Riggs to order a Hantavirus test on May 26. Moreover, according to Dellinger and Trotter, Riggs’ failure to order a Hantavirus test on May 26 did not change the treatment course or Jeff s outcome.
In addition, the appellants point to isolated bits of Fitzgerald’s deposition testimony where, in response to a question whether Mangosing’s failure to chart in the records his recommendation for Jeff to be hospitalized would constitute a violation of the standard of care, Fitzgerald stated that it would. Nevertheless, at trial, Fitzgerald testified that Mangosing did not deviate from the standard of care by discharging Jeff home on May 27.
Moreover, Mangosing testified that he had recommended hospitalization to Jeff on May 27 but that he believed that Jeff did not want to be admitted. Carrie’s mother corroborated Mangosing’s testimony when she testified that she remembered a conversation that occurred between herself, Carrie, and Jeff after Jeff s appointment on May 27 concerning Mangosing’s recommendation to admit Jeff to the hospital in Garden City. Nevertheless, according to Carrie’s mother, Jeff wanted to go to the hospital in Elkhart so that he would be closer to home.
The appellants further point to isolated testimony from Fitzgerald that patients with suspected Hantavirus are supposed to be given broad spectrum antibiotic therapy pending serologic confirmation of infection and that Mangosing had not ordered any antibiotics on May 27. Nevertheless, Fitzgerald testified that Mangosing’s failure to order antibiotics on May 27 was not a deviation from the standard of care. Fitzgerald explained his opinion as follows: “ ‘At the time [Jeff] saw Dr. Mangosing, there was fever, nonproductive cough, white count was low, x-rays showed some interstitial changes, all consistent with a viral prodrome, and antibiotics weren’t needed.’ ” According to Fitzgerald, antibiotics would help only if there was a bacterial infection, not a virus.
The appellants also point out that neither Dellinger nor Trotter had ever treated a Hantavirus patient but yet testified to the standard of care for treating Jeff, a Hantavirus patient. Nevertheless, this information was brought out during Dellinger’s and Trotter’s testimony. Both Dellinger and Trotter also testified that although they had never treated a Hantavirus patient, they had treated patients with cardiovascular and respiratory issues similar to what a Hantavirus patient in the cardiorespiratory phase would undergo. It was within the province of the jury to consider this information and to determine what weight to give to the experts’ opinions. See Johnson v. Westhoff Sand Co., 281 Kan. 930, 954, 135 P.3d 1127 (2006) (“It is not the function of the appellate court to reweigh the evidence.”).
Essentially, the appellants are urging this court to reweigh the testimony that was presented to the jury at trial. Nevertheless, “[t]he jury is charged with the responsibility of weighing the evidence and determining witness credibility. Appellate courts do not reweigh the evidence or decide which witnesses are credible.” State v. Corbett, 281 Kan. 294, 310, 130 P.3d 1179 (2006). When considering the evidence in this case, in the light most favorable to the appellees, this court should find that there was sufficient evidence to support the jury’s verdict.
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Marquardt J.:
Rodney P. Wrinkle filed a negligence action against his neighbors, Gene and Charlene Norman (the Normans), after he sustained injuries on their property. The district court granted summary judgment in favor of the Normans, finding that they did not breach a duty to Wrinkle. Wrinkle appeals. We affirm.
At the time of Wrinkle’s accident, Wrinkle lived across U.S. highway 59 from the Normans in Oskaloosa, Kansas. The Normans had 20 acres of pasture land along the west side of the highway on which they raised cattle. The pasture is fenced and has a 16-foot panel gate.
On March 10, 2006, while riding his lawn tractor, Wrinkle observed four or five cattle running loose in the ditch near the Normans’ property, approximately 10 to 12 feet from the highway. Wrinkle herded the cattle onto the Normans’ property toward a pen with an open gate. According to Wrinkle, the cattle were “returning from where they came from” and “knew where they was going.” Wrinkle was able to get all of the cattle into the pen except for one that became entangled in a clothesline wire. Wrinkle removed the wire from around the animal’s neck. As the animal ran toward the gate, the wire with a T-shaped clothesline pole attached to it flipped and hit the back of Wrinkle’s legs. Wrinkle fell and fractured his back on a concrete path.
Wrinkle filed suit against the Normans, alleging they had negligently and carelessly allowed the clothesline wire to run across the ground, thereby creating a dangerous condition that presented an unreasonable risk of harm. Wrinkle claimed that he was lawfully on the Normans’ property when he was injured.
The Normans moved for summary judgment, contending that Wrinkle entered their property without an invitation or permission and, as such, he was trespassing at the time of his injury. The Normans denied liability and argued that the only duty they owed Wrinkle was to refrain from willfully, wantonly, or recklessly causing him injury. The Normans further claimed that they had no notice or knowledge of cattle escaping from their fence on March 10, 2006, or of any defective condition relating to their fence or clothesline wire.
In response, Wrinkle asserted that summary judgment was not appropriate because he was a licensee on the Normans’ property, not a trespasser. He claimed the Normans “owed a duty of reasonable care, under all of the circumstances, to maintain their property and keep it safe.” Wrinkle relied upon the doctrine of private necessity in the Restatement of Torts (Second) § 197 (1965), alleging that he was privileged to enter the Normans’ property in order to prevent serious harm to highway, individuals, or the catde. Wrinkle also argued that summary judgment was inappropriate because the Normans were subject to liability under K.S.A. 47-123 for negligently confining their cattle.
After hearing arguments from counsel, the district court granted the Normans’ summary judgment motion, holding that Wrinkle was a trespasser on the Normans’ property; the Normans only owed Wrinkle a duty to refrain from willfully, wantonly, or recklessly causing him injury. The court found as a matter of law that the Normans did not breach a duty owed to Wrinkle. Wrinkle filed a motion to alter or amend tire judgment, which the district court denied. Wrinkle timely appeals.
Summary Judgment
When granting summaiy judgment, the district court must review the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, to determine whether there is a genuine issue of material fact which would entitle the moving party to judgment as a matter of law. The district court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summaiy judgment, a party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summaiy judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be reversed if reasonable minds could differ as to the conclusions drawn from the evidence. Shamberg, Johnson, & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009).
Where there is no factual dispute, appellate review of an order regarding summary judgment is de novo. Adams v. Board of Sedgwick County Comm’rs, 289 Kan. 577, 584, 214 P.3d 1173 (2009).
In reviewing the district court’s grant of summaiy judgment, it is important to remember that summaiy judgment should be granted with caution in negligence actions. Esquivel v. Watters, 286 Kan. 292, 296, 183 P.3d 847 (2008). However, summaiy judgment is appropriate in a negligence action if the defendant shows there is no evidence to support a negligence claim. Edwards v. Anderson Engineering, Inc., 284 Kan. 892, 904, 166 P.3d 1047 (2007). Summaiy judgment is also proper in a negligence action if the only questions presented are questions of law. Smith v. Kansas Gas Service Co., 285 Kan. 33, 39, 169 P.3d 1052 (2007).
Trespasser or Licensee
To establish a claim for negligence, Wrinkle had to prove the existence of a duty, a breach of the duty, an injury, and a causal connection between the duty breached and the injury. The existence of a duty is a question of law. Whether the duty has been breached is a question of fact. Reynolds v. Kansas Dept. of Trans portation, 273 Kan. 261, Syl. ¶ 1, 43 P.3d 799 (2002). The duty owed by defendants to Wrinkle is determined by Wrinkle’s status while he was on tire Normans’ property. The question is whether he was an invitee, a licensee, or a trespasser.
Wrinkle contends that he was a licensee on the Normans’ property and the district court erred in determining that he was a trespasser.
An invitee is “ ‘one who enters or remains on the premises of another at the express or implied invitation of the possessor of the premises for the benefit of the inviter, or for the mutual benefit and advantage of both inviter and invitee.’ ” Jones v. Hansen, 254 Kan. 499, 503, 867 P.2d 303 (1994). A licensee is “ ‘one who enters or remains on the premises of another by virtue of either the express or implied consent of the possessor of the premises, or by operation of law, so that he [or she] is not a trespasser thereon.’ ” 254 Kan. at 503. A trespasser is “ ‘one who enters on the premises of another without any right, lawful authority, or an express or implied invitation or license.’ ” 254 Kan. at 503.
Our Supreme Court has held that “[t]he duty owed by an occupier of land to invitees and licensees alike is one of reasonable care under all the circumstances.” 254 Kan. at 509. In contrast, the duty owed by an occupier of land to trespassers is “to refrain from willfully, wantonly, or recklessly injuring” the trespasser. 254 Kan. at 510.
Wrinkle admits that he did not have express permission or consent to enter the Normans’ property. Wrinkle was not an invitee. The question remains whether Wrinkle was a licensee or a trespasser. Wrinkle argues that he was a licensee, relying primarily on the Restatement (Second) of Torts § 197.
Section 197 provides, in relevant part: “One is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to . . . the other or a third person, or the land or chattels of either . . . .” Comment a to § 197 provides:
“The privilege [of private necessity] exists only where in an emergency the actor enters land for the purpose of protecting himself or the possessor of the land or a third person or the land or chattels of any such persons. Furthermore, the privilege must be exercised at a reasonable time and in a reasonable manner.”
The only Kansas case that mentions the Restatement (Second) of Torts § 197, State v. Baughman, 29 Kan. App. 2d 812, 32 P.3d 199 (2001), is not instructive for this case. Baughman is a Fourth Amendment search and seizure case that briefly mentions § 197 while discussing a California case that had relied on this section. 29 Kan. App. 2d at 816. The Baughman court did not follow or adopt § 197.
Wrinkle contends that he was privileged to enter the Normans’ property because it was, or reasonably appeared to be, necessary to prevent serious harm to individuals or the Normans’ cattle. Wrinkle acknowledges that Kansas courts have not expressly adopted or applied § 197 but urges this court to do so.
Wrinkle’s argument is incomplete. Even if Wrinkle were privileged to enter the Normans’ property, § 197 only reheves Wrinkle of liability for doing so and has nothing to do with the scope of the Normans’ duty to Wrinkle. In order for Wrinkle’s status to change pursuant to this section, this court would also have to adopt Restatement (Second) of Torts § 345 (1965), which states, in relevant part, that “the liability of a possessor of land to one who enters the land only in the exercise of a privilege, for either a public or a private purpose, and irrespective of the possessor’s consent, is the same as the liability to a licensee.” Wrinkle’s brief focuses on § 197 and only gives passing mention to § 345; however, both sections are essential to establish an exception to the usual trespasser rule which would provide that a would-be trespasser who enters onto the land of another based on private necessity is classified as a licensee.
Like § 197, § 345 has never been adopted by Kansas courts. An Illinois Appellate Court implicitly adopted § 345 in West v. Faurbo, 66 Id. App. 3d 815, 817-18, 384 N.E.2d 457 (1978), and more recently held that a landowner does not automatically owe a higher duty to every trespasser who enters land pursuant to a private necessity. Lange v. Fisher Real Estate Develop., 358 Ill. App. 3d 962, 969, 832 N.E.2d 274 (2005). In so holding, the Lange court relied upon the reasoning in Benamon v. Soo Line R.R. Co., 294 Ill. App. 3d 85, 91-92, 689 N.E.2d 366 (1997):
“ ‘One could argue, as the plaintiff does, that a trespasser who enters the property of another under private necessity, considered to be a licensee, is now entitled to the greater protection of reasonable care since there is no longer a distinction between licensees and invitees. We would disagree with such an argument. We believe that the abolishment of the licensee/invitee distinction in Illinois would not heighten the duties owed by a possessor of land to a person who enters his land under private necessity. There can be no logical reason to afford a greater protection of reasonable care to such a person, who, in actuality, is a trespasser and who enters the property without the possessor’s permission and without benefit to the possessor.’ ” 358 Ill. App. 3d at 970.
Kansas, like Illinois, has abolished the licensee/invitee distinction. Jones, 254 Kan. at 509. In the instant case, there was no evidence that the catde were owned by the Normans. Wrinkle apparendy assumed that the cattle belonged to the Normans because they were wandering near the Normans’ property and ran toward a gate on the Normans’ property. However, Gene Norman denied that his catde were on his property on March 10, 2006. Gene testified that prior to March 5, 2006, he had about 30 head of catde on his property. Gene also testified that he moves his catde off of his property the first week of March every year and brings some of them back around the first of May. Gene provided names of other individuals who pasture catde on either side of his property. Thus, Wrinkle not only entered the Normans’ property without permission, but also arguably without benefit to the Normans. Accordingly, Wrinkle is not entitied to protection as a licensee under § 345.
The duty owed by the Normans to Wrinkle, a trespasser, was to refrain from willfully, wantonly, or recklessly causing him injury. See Jones, 254 Kan. at 510. There is nothing in the record to suggest, nor does Wrinkle contend, that a genuine issue of material fact exists regarding whether the Normans breached this duty.
The district court properly determined that Wrinkle was a trespasser.
K.S.A. 47-123 Claim
Wrinkle also contends that summary judgment was improper because there are material fact issues regarding whether the Normans are liable for their cattle running at large under K.S.A. 47-123.
Wrinkle did not plead a claim under K.S.A. 47-123 as a separate and distinct theory of liability in his original petition for damages but did reference the statutory provision in his response to the Normans’ motion for summary judgment. Thereafter, Wrinkle requested leave to file a second amended petition which included a separate cause of action under K.S.A. 47-123. The district court denied the request, finding that the allegations in Wrinkle’s proposed second amended petition were included in his response to the Normans’ summary judgment motion and had been considered by the court. Although the district court did not explicitly rule on Wrinkle’s K.S.A. 47-123 argument, by granting the Normans’ summary judgment motion, the court implicitly rejected it.
K.S.A. 47-122 makes it “unlawful for any domestic animal, other than dogs and cats, to run at large.” Further, K.S.A. 47-123 provides that any hvestock owner in violation of K.S.A. 47-122 shall be “hable to the person injured for all damages resulting therefrom, and the person so damaged shall have a hen on said hvestock for the amount of such damages.”
The doctrines of strict liability and res ipsa loquitur do not apply in hvestock escape cases. In order to recover for damages, the injured party must prove neghgence, i.e., that the hvestock owner failed to exercise ordinary care to keep the hvestock fenced. Harmon v. Koch, 24 Kan. App. 2d 149, 153, 942 P.2d 669 (1997); Walborn v. Stockman, 10 Kan. App. 2d 597, 598-599, 706 P.2d 465 (1985). An owner of animals is required to use reasonable care to confine his or her animals, but absolute security is not required. Clark v. Carson, 188 Kan. 261, 264-65, 362 P.2d 71 (1961). Accordingly, Wrinkle, as the party opposing summary judgment, must come forward with evidence to establish a dispute as to a material fact regarding the Normans’ failure to exercise due care in keeping their cattle enclosed.
Wrinkle cannot meet this burden. First, ownership of the cattle involved in Wrinkle’s accident was never established. Although Wrinkle assumed that the cattle belonged to the Normans, Gene Norman denied that they were his and provided the names of other individuals who pasture cattle on either side of his property.
Further, there was no evidence to show that the Normans failed to exercise due care in containing their cattle.
Wrinkle argues that the present case is similar to Cooper v. Eberly, 211 Kan. 657, 508 P.2d 943 (1973). In Cooper, evidence of a horse owner s negligence in failing to take reasonable precautions to confine his horses included a failure to padlock a gate which was found open after an accident, and knowledge that horses had escaped on prior occasions. 211 Kan. at 660, 665-66, 669. Wrinkle contends that, as in Cooper, the Normans’ pasture gate was found unsecured and partially open prior to the accident and there were reports that the Normans’ cattle had been out of their pasture on at least three occasions prior to March 10,2006. Wrinkle claims that these facts provide a sufficient basis to find that the Normans are hable under K.S.A. 47-123.
Although Wrinkle alleges that the gate he herded the cattle towards did not have a secure lock, there is no evidence in the record on appeal that the cattle actually escaped from this gate. As for Wrinkle’s contentions that the Normans’ cattle had been seen running loose on several occasions prior to March 10, 2006, there is no indication that the Normans ever had notice of these alleged prior escapes. Both Gene and Charlene testified that they could only recall one time, when a single calf got out of a fence on their property. Moreover, Wrinkle testified that he never notified the Normans on the occasions when he allegedly observed their cattle outside of their pen and did not know if anyone else had ever notified them.
It is well established that “[a] party opposing summary judgment may not rest merely on allegations, but must set forth specific facts to support its position.” Lloyd v. Quorum Health Resources, LLC, 31 Kan. App. 2d 943, 954, 77 P.3d 993 (2003); see K.S.A. 2009 Supp. 60-256(e). Furthermore, “[t]he law is clear that "an inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.” 31 Kan. App. 2d at 954. The evidence in Wrinkle’s response to the Normans’ summary judgment motion merely created a conjecture or possibility that the Normans owned the cattle that he herded onto their property on March 10, 2006. Assuming that ownership of the cattle was established, the evidence brought forward by Wrinkle merely raised the possibility that the Normans had failed to exercise due care in containing their cattle. Therefore, Wrinkle’s claim under K.S.A. 47-123 presents no genuine issues of material fact.
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Leben, J.:
A jury convicted Terry Diaz of aggravated failure to appear after he didn’t attend the pretrial conference for his felony drug possession charge and didn’t turn himself in for over 8 months. Diaz insists on appeal that the evidence was insufficient to convict him because his failure to appear wasn’t willful — his attorney told him that he didn’t need to attend. He also argues that a mistake instruction should have been given.
Although a mistake of fact is a defense to a crime when it negates the crime’s required mental state, Diaz’ claimed mistake does not negate the required mental state for aggravated failure to appear. To be convicted, Diaz need only intend to do the conduct that the statute prohibits, i.e., not appear and not turn himself in. Here, Diaz intended to not attend; his attempt to justify that failure with reliance on his attorney’s advice does not negate the mental state required to commit this crime. Therefore, a rational fact-finder could find him guilty beyond a reasonable doubt. Moreover, because his claim of mistake would not negate the intent, the district court’s failure to give a mistake jury instruction was not in error. We therefore affirm Diaz’ conviction.
Factual Background
Terry Diaz was charged with felony drug possession. On October 6, 2006, Judge Davis set the case’s pretrial conference for December 8, 2006; Diaz and his retained attorney, Dave Gilman, were both present. Diaz and Gilman had known each other for over 25 years.
According to Judge Davis, his practice was to always tell defendants charged with a felony that they needed to appear at all hearings. But in this case, Judge Davis did not check the box on his bench notes indicating that he had told Diaz to appear and the written transcript of the hearing does not contain an order to appear either. Diaz also does not remember being ordered to appear. Diaz did sign an appearance bond that notified him of the hearing date and that he needed to appear; the hearing date was in bold font. Diaz said that he didn’t read the part about the court date when he signed the appearance bond; he merely skimmed the document because he was eager to get out of jail.
After he was bonded out, Diaz visited Gilman. According to Diaz, Gilman told him that he didn’t need to appear at the conference on December 8 since Gilman was going to ask for a continuance. Diaz explained that Gilman was going to ask for a continuance because Diaz wanted to go to trial and that Gilman would notify him of the new court date.
Then Gilman’s wife suddenly died in October, and Gilman became ill shortly thereafter. Gilman’s son, Frank, took over his father’s cases. Frank told the prosecutor and Judge Davis about his father’s illness, and he believes that he told Judge Davis that he would be unable to attend Diaz’ pretrial conference. But Frank did not request a continuance that would excuse Diaz’ presence, and presumably Gilman didn’t request a continuance either.
Diaz did not appear on December 8. The district court forfeited Diaz’ bond and issued a warrant for his arrest. Diaz testified that Frank called his girlfriend on December 9 but that he didn’t speak with Frank; Frank does not remember contacting Diaz. Still, Diaz admitted that he knew on December 10 that a warrant had been issued for his arrest, and Diaz did not turn himself in within 30 days of the bond forfeiture. He testified that during this time he was still in town working and that he eventually went to Texas and then to Mexico in April 2007. Gilman had died in March 2007.
In August 2007, Diaz ended up in the custody of the border authorities, was brought back to Kansas, and was charged with aggravated failure to appear. Diaz claims that he turned himself in so that he could resolve these issues; the information the sheriffs office received from the border authorities did not indicate whether Diaz turned himself in or whether he was apprehended. But Diaz waived extradition, meaning he didn’t fight being brought back to Kansas.
A jury found him guilty of the offense, and the district court sentenced him to an additional 7 months in prison. He appeals and argues that the evidence was insufficient to sustain the conviction and that the district court erred in not giving the jury a mistake instruction (PIK Crim. 3d 54.03).
Discussion
I. Sufficient Evidence Existed to Convict Diaz of Aggravated Failure to Appear.
In considering Diaz’ challenge to the evidence’s sufficiency after a conviction, this court reviews all the evidence in the prosecution’s favor and determines whether a rational fact-finder could have found Diaz guilty beyond a reasonable doubt. State v. Trautloff, 289 Kan. 793, 800, 217 P.3d 15 (2009).
A defendant commits aggravated failure to appear when, after being charged with a felony and released on an appearance bond to appear before a court, he or she willfully forfeits the appearance bond and fails to surrender within 30 days of the forfeiture. K.S.A. 21-3814(a). Forfeiture of an appearance bond occurs when the defendant fails to appear “as directed by the court and guaranteed by the appearance bond.” K.S.A. 22-2807(1), (2).
On appeal, Diaz contends that he did not have the required mental state for the offense — willfulness—because he was operating under a mistake of fact, the mistake being Gilman’s advice that Diaz didn’t need to attend the hearing because Gilman would request a continuance.
A mistake of fact is a defense if it negates the crime’s required mental state. K.S.A. 21-3203(1). Although termed a “defense,” the mistake-of-fact doctrine merely encapsulates the State’s burden to prove every element of the offense: the State cannot convict the defendant if it fails to show that the defendant had the required mental state when committing the crime. See United States v. Platte, 401 F.3d 1176, 1184 (10th Cir. 2005).
Like most other states today, Kansas defines its crimes by statute. State v. Stewart, 281 Kan. 594, 598, 133 P.3d 11 (2006); see Merrill, The Disposing Power of the Legislature, 110 Colum. L. Rev. 452,457-58 (March 2010). The Kansas criminal code contains a different definition of criminal intent than the one Diaz argues: that the defendant merely intended the conduct that constitutes the crime. K.S.A. 21-3201(a) (“Criminal intent may be established by proof that the conduct of the accused person was intentional.” [Emphasis added.]). In other words, the State doesn’t need to prove that the defendant intended the precise harm or the result that occurred. In re C.P.W., 289 Kan. 448, 454, 213 P.3d 413 (2009). Crimes requiring only intent to commit the conduct are often called general-intent crimes, and the general rule is that mistake of fact is not a defense to general-intent crimes. See, e.g., State v. Gillon, 25 Kan. App. 2d 809, 974 P.2d 1115, rev. denied Kan. 266 Kan. 1112 (1999) (defendant was not entitled to mistake-of- fact instruction in prosecution for possession of sawed-off shotgun because State was required only to prove possession of outlawed weapon not knowledge of specific length of barrel as compared to legal minimum). A defendant’s mistaken belief that the facts make his or her conduct innocent would not negate the mental state because the defendant still intended to do the conduct that constitutes the crime. In such a case, a mistaken belief that the conduct wasn’t against the law would not negate the required mental state.
Some crimes, however, require more than intent to do the conduct; these crimes require an additional intent to achieve a particular consequence or harm. 289 Kan. at 454-55; see, e.g., K.S.A. 21-3715(a) (burglary, defined as entering a building “with intent to commit a felony, theft or sexual battery therein”); K.S.A. 21-3503(a)(1) (indecent liberties with a child requires that the prohibited conduct be done with “intent to arouse or satisfy the sexual desires of either the child or the offender, or both”); K.S.A. 21-3419(a) (criminal threat is “any threat to . . . [cjommit violence communicated with intent to terrorize another”); K.S.A. 21-3701(a) (felony theft is defined as the taking of another’s property worth at least $1,000 “with intent to deprive the owner permanently of the possession, use or benefit” of the property); K.S.A. 21-3612(a)(4) (contributing to child’s misconduct or deprivation is defined as “sheltering or concealing a runaway with intent to aid the runaway in avoiding detection or apprehension by law enforcement officers”). These crimes have been called specific-intent crimes, and mistake of fact is traditionally recognized as a defense to them because the defendant could not have intended to, for example, commit felony theft if he thought he had the owner’s permission to take the property, even if that understanding was mistaken.
But the labels for general versus specific intent and their corresponding rules for whether mistake of fact can be a defense often tend to confuse courts and parties more than help them. See United States v. Iron Eyes, 367 F.3d 781, 784-85 (8th Cir. 2004); 1 LaFave, Substantive Criminal Law § 5.6 (2d ed. 2003). This is especially so when courts, in seeming disagreement with the general rule, declare that “[a] reasonable mistake of fact may be as serted as a defense to a general intent crime.” People v. Alvarez, 2010 WL 457524, *3 (Cal. App. 2010) (unpublished opinion). Nevertheless, this declaration is merely a revival of an old common-law rule that made mistake of fact a defense. It’s used when statutory crimes don’t have a mental state but require that certain circumstances exist to make the crime complete, and it excuses the defendant’s reasonable mistakes about the circumstances. See 2 LaFave, Substantive Criminal Law § 17.2. The most common example is rape — defined generally as unlawful sexual intercourse with another person without consent. Black’s Law Dictionary 1374 (9th ed. 2009). For example, in most states, if the defendant was reasonably mistaken that the victim had consented, the mistake of fact is a defense to the crime. 2 LaFave, Substantive Criminal Law § 17.2. Thus, to avoid confusion, the proper focus should be: (1) what culpability the defendant must have had to commit the crime; and (2) whether the mistake of fact negates that culpability.
Turning to the aggravated-failure-to-appear statute at issue in this case, if the statute required that Diaz willfully failed to appear with the intent to forfeit his appearance bond, his mistake of fact would prevent him from having the required mental state: Diaz would not have intended to forfeit his appearance bond because he believed that his absence from the hearing was excused and would not have led to the forfeiture. But the statute requires no such additional intent; it merely requires the State to show that the defendant intended to do the conduct that constitutes the crime, i.e., not appear for his hearing and not turn himself in. See K.S.A. 21-3814(a); see also State v. Ellis, 2004 WL 1245626, *3 (Kan. App. 2004) (unpublished opinion), rev. denied 278 Kan. 848 (2004) (aggravated failure to appear is a general-intent crime). Although whether a failure-to-appear offense is a general- or specific-intent crime will vary based on the wording of a specific state’s statutes, several other states similarly have concluded that it is a general-intent crime. See Annot., 63 A.L.R.4th 1064 § 13[a] (citing cases).
Diaz’ claimed mistake of fact would not negate this intent. Diaz knew the hearing was that day and read an appearance bond ordering him to attend on that day, and he intended to not appear at the hearing — he just didn’t think that his conduct was wrongful based on Gilman’s advice. See Barrera v. State, 978 S.W.2d 665, 671 (Tex. App. 1998) (“Even if appellant’s attorney had unequivocally informed him that he need not appear, incorrect legal advice is not sufficient to establish a defense of mistake of law or mistake of fact.”). Had Diaz claimed that he negligently failed to attend because he had written down the wrong date for the hearing, he would not have had the intent to miss the hearing. But that is not the case here.
Similarly, Diaz likewise intended to not turn himself in after the forfeiture. He again asserts that Gilman’s claims of getting a continuance excused his failure to turn himself in. But yet again, Diaz’ assertions merely allege that he didn’t know his conduct was wrongful. They do not negate tire intent to not turn himself in.
Given this understanding of the role of intent in Diaz’ case, the evidence is sufficient to support his conviction. The evidence shows that Diaz knew (or at least should have known) that he was in trouble for failing to appear and that he needed to turn himself in. First, Diaz testified that he knew on December 10 — 2 days after the hearing — that a warrant was out for his arrest. A reasonable person who believes that he was wrongfully penalized for not attending would have taken steps to investigate what happened and clear his name. The evidence does not show that Diaz took such steps in this case.
Second, before the hearing, Diaz was adamant about keeping constant contact with Gilman on the case’s progress. Yet Diaz’ testimony shows that he wasn’t concerned about not having heard from Gilman about the continuance date, and it further shows Diaz made no effort to contact Gilman after the hearing. With a warrant out for his arrest and no contact with his counsel about the alleged continuance, Diaz has difficulty showing that he didn’t know about the trouble he was in for failing to appear and turn himself in. Diaz allowed months to pass with the warrant out and no contact with Gilman and then left the state and the country, a month after his attorney and long-time acquaintance died. And he didn’t return until months later.
Diaz explained that he went down to Mexico to collect money on rental houses so that he could make additional bond and attor ney money. But as the district court pointed out, a continuance means that a new trial date is set. Diaz’ conduct is not conducive to one who expects to go to trial; it is consistent with someone who knew he was in trouble for not complying with a court’s order and who took advantage of his attorney’s failing health to skip town and avoid facing the consequences of his criminal actions.
Viewing the evidence in the State’s favor, as we must, a reasonable jury could have found beyond a reasonable doubt that Diaz willfully failed to appear as ordered by the court and the appearance bond and that he willfully failed to turn himself in within 30 days.
II. The District Court Did Not Err by Refusing to Instruct the Jury on the Defense of Mistake.
Diaz argues that the district court should have told the jury that he had a defense to the charge if Diaz was mistaken, based on the advice of his attorney, about whether he had to attend the court hearing. But because aggravated failure to appear is a general-intent crime, Diaz’ mistake defense does not work — he still willfully failed to appear and willfully failed to turn himself in.
Because Diaz is challenging the district court’s failure to include an instruction he did not request, he has to show clear error, meaning that not only did the district court err but that there also is a real possibility that the jury would have rendered a different verdict had the instruction been given. See K.S.A. 22-3414(3); State v. Martinez, 288 Kan. 443, 451-52, 204 P.3d 601 (2009). We conclude that the district court did not make an error here at all because Diaz’ defense of mistake does not negate this general-intent crime.
In sum, given that the offense is a general-intent crime, the evidence was sufficient to convict Diaz, and the district court made no error when it failed to give an instruction on the defense of mistake. We therefore affirm the judgment of the district court. | [
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Green, J.:
Patrick Hood appeals from his juiy trial convictions and sentences for one count of aggravated burglary in violation of K.S.A. 21-3716 and two counts of felony theft in violation of K.S.A. 21-3701(a)(l), (b)(3). Hood first argues that his two felony theft convictions were multiplicitous because the two counts arose from the same conduct and because the conduct constituted only one offense by statutory definition. Nevertheless, although the two counts of felony theft arose from the same conduct, the unit of prosecution under K.S.A. 21-3701(a)(l) allowed for two theft convictions in this case. Thus, under the analytical framework set forth in State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006), Hood’s two theft convictions were not multiplicitous.
Finally, citing Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435,120 S. Ct. 2348 (2000), Hood argues that his constitutional rights were violated when he received an increased sentence based upon his criminal history that was not proven to a jury beyond a reasonable doubt. Nevertheless, Hood’s argument fails under our Supreme Court’s decision in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). Accordingly, we affirm Hood’s convictions and sentences.
Hood’s convictions in this case are based on an incident that occurred one night at Yen Ching Restaurant (Yen Ching) in Wichita. At approximately 1 a.m. on June 14, 2007, Cathay Chang was finishing closing duties on the first floor of Yen Ching when she heard a door open upstairs in the restaurant. Yen Ching had closed at 11 p.m. that evening, and Chang thought she was alone in the restaurant.
After calling out her husband’s name and hearing no answer, Chang went out the back door of the restaurant to see if her husband’s car was in the parking lot. Chang noticed that there was another vehicle, which she did not recognize, parked behind her car in the parking lot. Chang then went back inside the restaurant and tried to call her husband. Chang was unable to reach her husband, and she went back out to the parking lot and wrote down the vehicle’s tag number.
When Chang came back inside the restaurant, Hood was walking towards the back door with the bank bag and Chang’s purse. Chang attempted to grab her purse from Hood, but Hood hit her on the right side of her head with his hand. When Chang ran inside the restaurant to call her husband and the police, she heard Hood drive away in his vehicle.
Chang testified that the bank bag contained the entire day’s sales receipts, over $1,000 in cash, and $10,000 of her jewelry. Chang had taken off her jewelry and placed it in the bank bag when she was cleaning up the restaurant for the night. Chang’s purse contained her wallet, medicine, and credit cards.
The following day, the police recovered Chang’s jewelry at a residence and returned it to her. The police found Hood sleeping in a running vehicle behind a shed and arrested him. The police found guest checks and credit card receipts from Yen Ching and $168 cash inside the vehicle.
At trial, Hood admitted to stealing the bank bag and purse. Hood testified that he had gone to Yen Ching just before closing, had ordered a drink, and had gone upstairs to the balcony. According to Hood, when he saw Chang take money out of the cash register and place it in the bank bag, he devised a plan to hide in the restaurant and then grab the bank bag when Chang was not look ing. Hood hid in an upstairs supply room and waited for everyone to leave. Later, after everyone had left, Hood saw Chang place the bank bag and her purse on top of the bar and then walk towards the back of the restaurant.
According to Hood, he came downstairs, grabbed the moneybag and purse, and left the restaurant. Hood testified that as he was attempting to get to his vehicle, he encountered Chang, who tried to grab at him. Hood admitted that he pushed Chang on the side of the head and that she fell to the ground. Hood then got into his truck and drove away from the restaurant. At trial, Hood was unable to explain what happened to all of the money in the bank bag and testified that it had “disappeared into thin air.”
A jury found Hood guilty of one count of aggravated burglary and two counts of theft. One of Hood’s theft convictions was based on the theft of $1,200 from Chang’s, Inc. — Yen Ching Restaurant. Hood’s other theft conviction was based on the theft of Chang’s purse, its contents, and her jewelry. The trial court sentenced Hood to a controlling sentence of 57 months in prison.
Multiplicity
First, Hood argues that his two theft convictions were multiplicitous and violated the Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights.
Issues involving multiplicity and statutory interpretation are questions of law over which an appellate court has unlimited review. State v. Thompson, 287 Kan. 238, 243, 200 P.3d 22 (2009).
When reviewing a statute, an appellate court’s first task is to “ ‘ascertain the legislature’s intent through the statutory language it employs, giving ordinary words their ordinaiy meaning.’ [Citation omitted.]” State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009). When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read die statute to add something not readily found in it. We need not resort to statutory construction when a statute is plain and unambiguous. It is only if the statute’s language or text is unclear or ambiguous that we move to the next analytical step, ap plying canons of construction or relying on legislative history construing the statute to effect the legislature’s intent. Double M Constr. v. Kansas Corporation Comm’n, 288 Kan. 268, 271-72, 202 P.3d 7 (2009).
Multiplicity is the charging of a single offense in several counts of a complaint or information. State v. Scott, 286 Kan. 54, Syl. ¶ 4, 183 P.3d 801 (2008). The principal danger of multiplicity is that it creates the potential for multiple punishments for a single offense, which is prohibited by the Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. State v. Fisher, 283 Kan. 272, 312, 154 P.3d 455 (2007).
Our Supreme Court in State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006), announced an analytical framework for determining whether multiple convictions subject a defendant to double jeopardy. The overarching inquiry in this analysis is whether the convictions are for the same offense. This inquiry is broken into two prongs, both of which must be met for there to be a double jeopardy violation. First, do the convictions arise from the same conduct, and second, if the convictions do arise from the same conduct, are there two offenses or only one by statutory definition? 281 Kan. at 496.
First Prong of Double Jeopardy Analysis — Do the convictions arise from the same conduct?
Here, the State argues that Hood’s two theft convictions did not arise from the same conduct. The State maintains that Hood committed two different acts because he picked up two different pieces of property belonging to two different property owners.
Our Supreme Court in Schoonover set forth some factors to consider in determining whether the conduct is the same or unitary under the first prong of the double jeopardy analysis:
“(1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct.” 281 Kan. 453, Syl. ¶ 16.
If the convictions do not arise from the same conduct, then the analysis ends. See 281 Kan. at 496-97.
An application of the Schoonover factors to the instant case leads to the conclusion that Hood’s conduct in taking Chang’s purse and the bank bag was unitary. Hood’s conduct in taking Chang’s purse and the bank bag occurred at the same time and at the same location. Moreover, no intervening event occurred between the taking of Chang’s purse and the bank bag. Although the State maintains that a “fresh impulse” motivated the taking of the purse, case law from this court and our Supreme Court indicates that the fresh impulse factor comes into play when at least some time passes between the first act and the second act. Quoting State v. Kesselring, 279 Kan. 671, 683, 112 P.3d 507 (2005), our Supreme Court in Schoonover stated that “ ‘ “[incidents are factually separate when independent criminal acts have occurred at different times or when a late[r] criminal act is motivated by a ‘fresh impulse.’ [Citation omitted.]” (Emphasis added.) 281 Kan. at 497; see also State v. Hawkins, 40 Kan. App. 2d 10, 18, 188 P.3d 965 (2008), rev. denied 287 Kan. 767 (2009) (defendant’s later decision to turn around while running and motion as though he was going to shoot the victim was fresh impulse from earlier event of frightening victim by shooting toward him as he stood in front of restaurant); State v. Gomez, 36 Kan. App. 2d 664, 674, 143 P.3d 92 (2006) (fresh impulse separated defendant’s criminal conduct where defendant pointed gun at one of the victims, who ran to his car, and then later fired upon the fleeing car with the two victims inside); State v. Fillman, 43 Kan. App 2d 244, 254, 223 P.3d 827 (2010) (fresh impulse motivated defendant’s second shot into wall where 10-minute period of time passed between victim’s attempts to reach for pistol). Here, where the taking of Chang’s purse and the bank bag occurred at exactly the same time, there was no fresh impulse that could separate Hood’s conduct.
Because the taking of Chang’s purse and the bank bag arose from the same conduct, we proceed to the second prong of the double jeopardy analysis.
Second Prong of Double Jeopardy Analysis — Are there two offenses or only one by statutory definitionP
In regard to the second prong of the double jeopardy analysis, that is, whether the statutory provisions provide for two offenses or only one, the test to be applied depends on whether the convictions arise from a single statute or from multiple statutes. Schoonover, 281 Kan. at 497-98. If the convictions arise from different statutes, the convictions are multiplicitous only when the statutes upon which the convictions arise contain an identity of elements. Thompson, 287 Kan. at 244.
When a double jeopardy issue is based on convictions for multiple violations of the same statute, a court applies the “unit of prosecution” test. Schoonover, 281 Kan. at 471-72. Under the unit of prosecution test, a court asks how the legislature has defined the scope of conduct comprising one violation of a statute. The statutory definition of the crime determines what the legislature intended as the allowable unit of prosecution. There can be only one conviction for each unit of prosecution. Thompson, 287 Kan. at 245; Schoonover, 281 Kan. at 497-98.
“The determination of the appropriate unit of prosecution is not necessarily dependent upon whether there is a single physical action or a single victim. Rather, the key is the nature of the conduct proscribed.” 281 Kan. at 472. The key to determining the unit of prosecution is legislative intent. 281 Kan. at 471. If the legislative intent is unclear, an appellate court applies the rule of lenity. State v. Pham, 281 Kan. 1227, 1248, 136 P.3d 919 (2006).
Here, Hood’s two theft convictions arose from the same statute, K.S.A. 21-3701(a)(l), (b)(3), which provides as follows:
“(a) Theft is any of the following acts done with the intent to deprive the owner permanently of the possession, use or benefit of the owner’s property:
(1) Obtaining or exerting unauthorized control over property;
“[(b)](3) Theft of property of the value of at least $1,000 but less than $25,000 is a severity level 9, nonperson felony.”
The focus of K.S.A. 21-3701(a)(l) is on the unlawful taking of an owner’s property. Under the plain language of K.S.A. 21-3701(a)(1), the crime of theft occurs by obtaining or exerting unauthorized control over property with the intent to deprive the owner permanently of the possession, use, or benefit of the owner’s property.
By including the singular term “the owner” within K.S.A. 21-3701(a)(1), the legislature defined the crime of theft as the unlawful taking of one owner’s property. K.S.A. 21-3110(13), which is part of the definitions section for the criminal code, defines “owner” as “a person who has any interest in properly.” This definition limits the term “owner” to a single person. See K.S.A. 21-3110(14) (defining “person” to include individuals, persons, and other entities). The inclusion of the singular term “the owner” within K.S.A. 21-3701(a)(l) indicates the legislature’s intention that the unit of prosecution for theft is the unlawful taking of property from a single owner, not from multiple owners.
State v. Thomas
Citing State v. Thomas, 24 Kan. App. 2d 734, 953 P.2d 1043 (1998), Hood argues that the unit of prosecution in a theft case involving property belonging to two different people depends upon whether the defendant had reasonable notice of the multiple owners.
Thomas was a pre-Schoonover case in which this court applied the single larceny doctrine to determine that the defendant’s two theft convictions were multiplicitous. There, the defendant, who stole property from a single apartment, argued that he had only one general intent to steal the property and was not aware that the property was owned by two different people. In addressing the defendant’s argument, this court looked to its previous decision in State v. Stoops, 4 Kan. App. 2d 130, 136-37, 603 P.2d 221 (1979), (quoting Annot., 37 A.L.R.3d 1407, 1409-10) and set forth the single larceny doctrine as follows:
“The overwhelming majority of jurisdictions follow generally the so-called ‘single larceny doctrine’; that is, that the taking of property belonging to different owners at the same time and place constitutes but one larceny. Various rationales have been propounded in support of this position, perhaps the most common one being that such taking is one offense because the act of taking is one continuous act or transaction, and since the gist of the offense is the felonious taking of property, the legal quality of the act is not affected by the fact that the property-stolen belonged to different persons.” ’ ” 24 Kan. App. 2d at 738.
Further quoting from Stoops, this court in Thomas recognized that offenses are not separate and distinct if they are committed with one intention, one impulse, or one plan:
“ Tf we were to adopt the single larceny doctrine, it seems to us the test to be applied to determine if there are separate offenses or only a single offense should be based on whether the evidence discloses one general intent to steal or distinct and separate intents. Each case necessarily would have to be decided on its own facts, and a defendant could be convicted of separate thefts only if the evidence showed the offenses to be separate and distinct and not committed pursuant to one intention, one impulse, or one plan.’ ” 24 Kan. App. 2d at 738 (quoting Stoops, 4 Kan. App. 2d at 139-40).
This court in Thomas then applied the single larceny doctrine and concluded that “when an individual commits a theft and takes property belonging to more than one individual, without a reasonable notice that the property belongs to separate individuals, as part of a single plan or scheme, then that taking constitutes a single theft. [Citation omitted.]” 24 Kan. App. 2d at 738.
Hood maintains that because he did not have reasonable notice that some of the contents of the bank bag and the purse belonged to separate people, his two theft convictions are multiplicitous.
Nevertheless, the plain language of K.S.A. 21-3701(a)(l) does not impose a reasonable notice requirement on the crime of theft. Moreover, the rationale for the single larceny doctrine quoted in Thomas does not comport with the later double jeopardy and multiplicity analysis from Schoonover that this court is required to follow. Quoting from Stoops and Annot., 37 A.L.R.3d at 1409-10, this court in Thomas stated that the most common rationale that the taking of property belonging to different owners at the same time and place constituted one offense was that the act of taking was one continuous act or transaction, and since the gist of the offense is the unlawful taking of property, the legal quality of the act is not affected by the fact that the property stolen belonged to different persons. 24 Kan. App. 2d at 738. Under Schoonover, however, the determination of whether the defendant’s act was a continuing act or transaction (unitary or same conduct) is only one of the prongs in the multiplicity analysis. Even if the conduct is unitary, a defendant can still be convicted of two offenses under the same statute if the unit of prosecution, as expressed in the plain language of the statute, allows for the two offenses.
As discussed previously, the unit of prosecution under K.S.A. 21-3701(a)(l) is the unlawful taking of a single owner’s property. Thus, if a defendant takes property from multiple owners, even in a single transaction, K.S.A. 21-3701(a)(l) allows for multiple prosecutions.
Importantly, K.S.A. 21-3701(a)(l) does have an intent element, which arguably could bring the analysis from Thomas into play. Specifically, the crime of theft under K.S.A. 21-3701(a)(l) requires the defendant have the intent to deprive the owner permanently of the possession, use or benefit of the owner's property. This intent element arguably affects the allowable prosecution under the statute. For example, if a defendant takes property from a single location at a single time and believes that the property belonged to only a single owner, then the defendant did not intend to deprive more than one owner of property. Under this scenario, there could be only one allowable theft prosecution under K.S.A. 21-3701(a)(1). On the other hand, if a defendant takes property from a single location at a single time and the defendant has reasonable notice that the property belonged to multiple owners, then the defendant intended to deprive the multiple owners of the property. Under this latter scenario, there could be multiple theft prosecutions under K.S.A. 21-3701(a)(l). As a result, the analysis from Thomas still seems to be relevant to a multiplicity analysis under K.S.A. 21-3701(a)(l).
Even under the analysis in Thomas, Hood’s conduct in taking the bank bag and Chang’s purse would constitute two separate offenses. As the State points out, Hood had reasonable notice that the property he took belonged to two different owners. Hood testified that he watched Chang empty the money from the restaurant’s register and place it in the bank bag. Hood also watched Chang place her purse on the bar after everyone had left the restaurant. Those observations, along with the character of the property stolen (a bank bag and a woman’s purse), were enough to give Hood reasonable notice that the items he took belonged to two separate entities — the restaurant and Chang. Under the facts of this case, where Hood took property belonging to Chang and the restaurant, with reasonable notice that the property belonged to two different owners, Hood’s two theft convictions were not mul tiplicitous. As a result, Hood’s further argument on this issue, based on Thomas, fails.
Criminal History
Finally, citing Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), Hood argues that his rights under the Sixth and Fourteenth Amendments to the United States Constitution were violated when he was sentenced to an increased sentence based upon his criminal history, which was not proven to a jury beyond a reasonable doubt.
Hood recognizes that this issue was decided adversely to his position in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). This court is duty bound to follow our Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Merrills, 37 Kan. App. 2d 81, 83, 149 P.3d 869, rev. denied 284 Kan. 949 (2007). Our Supreme Court has consistently cited Ivory to hold that the use of prior convictions for sentencing enhancement is constitutional. See State v. Fischer, 288 Kan. 470, 476, 203 P.3d 1269 (2009). Because Ivory controls, Hood’s argument is without merit.
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Green, J.:
On September 10,2010, our Supreme Court granted appellant’s petition for review and summarily remanded this appeal to the Court of Appeals for consideration of the United States Supreme Court’s recent decision in McDonald v. Chicago, 561 U.S. 742, 177 L. Ed. 2d 894, 130 S. Ct. 3020 (2010), which found that the Second Amendment right to keep and bear arms is fully applicable to the states by virtue of the Fourteenth Amendment to the United States Constitution.
In our original opinion State v. Knight, 42 Kan. App. 2d 893, 218 P.3d 1177 (2009), on page 894, Syl. ¶ 11, stated: “The Second Amendment to the United States Constitution is not incorporated to the Due Process Clause of the 14th Amendment to the United States Constitution and thereby enforceable against the states.”
The previously quoted syllabus is modified to read: “The Second Amendment to the United States Constitution is incorporated in the Due Process Clause of the 14th Amendment to the United States Constitution and thereby enforceable against the states.”
We delete the following paragraph on page 910 of our original opinion:
“Indeed, the Heller Court states that Presser and Miller ‘reaffirmed that the Second Amendment applies only to the Federal Government.’ 128 S. Ct. at 2813 n.23. As a result, until the Supreme Court overrules Presser and holds to the contrary, lower courts remain bound to follow the law that the Second Amendment has no application to the states. Because the Second Amendment is not incorporated in the Due Process Clause and thereby enforceable against the states, Knight cannot maintain that K.S.A. 2006 Supp. 21-4301(a)(4) infringes on any Second Amendment rights.”
We replace the previously deleted paragraph of our original opinion with the following paragraph:
“Nevertheless, the United States Supreme Court recently held that the right to ‘keep and bear arms’ embodied in the Second Amendment applies not only to the federal government, but also to the individual states. See McDonald v. Chicago, 561 U.S. 742, 177 L. Ed. 2d 894, 130 S. Ct. 3020 (2010). A four-justice plurality agreed that the Due Process Clause of the 14th Amendment to the United States Constitution ‘incorporates’ the Second Amendment’s right to keep and bear arms, which was recognized in District of Columbia v. Heller, 554 U.S. 570, 171 L. Ed. 2d 637, 128 S. Ct. 2783 (2008).”
We delete the following paragraph on page 910 of our original opinion:
“Nonetheless, Knight contends that even if the court finds that the Second Amendment does not apply to the states, § 4 of the Kansas Constitution Bill of Rights offers the same protection as the Second Amendment. Kansas case law, however, clearly proves that the regulations against carrying concealed weapons are not in violation of § 4 of the Kansas Constitution Bill of Rights. See Salina v. Blaksley, 72 Kan. 230, 83 Pac. 619 (1950) (ruling that § 4 of the Kansas Constitution does not confer an individual right to bear arms); State v. Doile, 7 Kan. App. 2d 722, 725, 648 P.2d 262, rev. denied 232 Kan. 876 (1982) (noting a ‘legislative interest in controlling concealed weapons’). As a result, Knight’s argument fails.”
We adhere to the original opinion in all other respects.
Michael Lorenzo Knight, Jr., appeals his convictions after a bench trial for criminal possession of a firearm and carrying a concealed firearm. On appeal, Knight contends that the trial court improperly denied his motion to suppress evidence arising from a car stop. We disagree and affirm. Knight also asserts that his conviction for criminal possession of a firearm is inappropriate, because the statute, K.S.A. 21-4204(a)(4)(A), under which he was convicted does not apply to his prior felony for an attempt crime. We agree. Accordingly, we reverse and remand with directions to dismiss this conviction. Knight further maintains that his conviction for carrying a concealed firearm violates his constitutional right to bear arms. We disagree and affirm. Finally, Knight contends that the trial court erred in ordering him to reimburse the Board of Indigents’ Defense Services for attorney fees without first considering his ability to pay the fees and determining the financial burden that payment of these fees would impose on him. We agree. Accordingly, we vacate the trial court’s imposition of attorney fees against Knight and remand for further consideration of this matter.
In October 2007, Knight was charged with misdemeanor carrying of a firearm in violation of K.S.A. 21-4201 and felony possession of a firearm in violation of K.S.A. 21-4204(a)(4). The felony possession of a firearm charge was based on Knight’s prior conviction of attempted possession of cocaine.
Before trial, Knight moved to suppress evidence seized from the traffic stop. During the hearing on the motion, Kansas Highway Patrol Trooper Davon Brame testified that at approximately 11:24 p.m. on a summer night, he saw Knight driving a maroon Chevy Monte Carlo southbound on 1-35 in Johnson County, Kansas. Brame noticed that Knight was unable to keep his car within its proper lane of travel. The car crossed approximately 3 feet over the line separating the left lane of the highway from the shoulder. While following him, Brame also witnessed Knight weave within his proper lane of travel two or three times. Additionally, Knight crossed approximately 1 foot over the dotted line on the right side of the lane. After following Knight for approximately Vz mile, Brame initiated a traffic stop based upon Knight’s inability to maintain a single lane of travel. Brame also testified that, as he walked up to the stopped car, he thought Knight was intoxicated.
At the conclusion of the hearing, the trial court denied Knight’s motion to suppress. The court found that, independent of Brame’s suspicion that Knight was driving while intoxicated, Knight had committed actual traffic infractions sufficient to justify Brame’s stop. After Knight’s motion to suppress was denied, he moved the trial court to reconsider its decision based on this court’s recent holding in State v. Ross, 37 Kan. App. 2d 126, 149 P.2d 876, rev. denied 284 Kan. 950 (2007).
At the hearing on the motion to reconsider, Brame was again called to testify. Brame’s testimony was substantially similar to the testimony he gave at the suppression hearing, with a few exceptions. Brame noted that there were no parked cars on the shoulder when Knight crossed onto it and that the shoulder was paved. Brame further stated that there were no cars in the lane to the right of Knight when he crossed over the dotted line on the right side of the left lane. He also characterized the traffic flow as “light” as he followed Knight. Brame again acknowledged, as he had in his prior suppression hearing testimony, that his justification for stopping Knight was because Knight had failed to maintain a single lane of travel.
When questioned about his in-car video camera, Brame stated that he had not activated it until after he initially noticed Knight was unable to maintain a single lane of travel. During the hearing, the video tape of Knight’s alleged infractions was shown. After viewing the tape, Brame acknowledged that Knight’s initial failure to maintain a single lane of travel, when he drove over the left solid line on to the shoulder from the left lane, was not recorded on the video tape. Brame stated that he had not turned on the video camera until after that alleged infraction had occurred.
After viewing the video tape in court, Brame changed his testimony slightly. Brame acknowledged that although Knight had not stayed in the left lane, Knight had used his turn signal and had moved into the center lane. After he entered the center lane, Knight crossed the left dotted line once. The tires of Knight’s car also touched the dotted line on the right side of the center lane. Brame considered this to be a failure to maintain a single lane of travel. Overall, Brame saw Knight drive over the left or right lane markers five times.
During this reconsideration hearing, Brame stated that he suspected Knight “was either intoxicated or a sleepy driver.”
At the conclusion of the hearing, the trial court denied the motion to reconsider. The court distinguished Ross from the facts in this case, concluding that Ross did not apply because Trooper Brame testified that he stopped Knight’s car to determine if Knight was intoxicated. This fact was absent in Ross.
At the bench trial, both parties agreed to a set of stipulated facts. Among the stipulated facts were the following:
“1. On August 12, 2006 Trooper Brame viewed a Maroon Chevy Monte Carlo driving on 1-35 at around 11:24 p.m. in Johnson County, Kansas.
“2. Trooper Brame testified that he saw the vehicle operated by the Defendant cross the solid line on the left side of 1-35 and weave within its own lane.
“3. Trooper Brame testified that he believed that the driver of the Monte Carlo may be under the influence of drugs and/or alcohol.
“4. Trooper Brame activated his emergency lights and pulled over the Monte Carlo in Johnson County, Kansas.”
Knight also stipulated to possessing the handgun discovered by Brame during the stop. At the conclusion of the bench trial, the court found Knight guilty of carrying of a concealed firearm, a misdemeanor, and possession of a firearm, a felony.
At the sentencing hearing, the court inquired about the public defenders’ fee. Knight’s counsel told the court that the fee was $625. The trial court then asked Knight when he could start paying the fee back and how much he could pay. Knight’s counsel told the court that Knight could pay “$50 a month starting March 1st.” The court replied that Knight would “obviously .. . have to double up on that probably somewhere along the way.” The court made no further inquiry into Knight’s ability to pay the fee or as to any burden it might place on him.
Did the Trial Court Err in Denying Knight’s Motion to Suppress Evidence Seized During The Car Stop?
On appeal, Knight contends that Trooper Brame acted unlawfully in stopping his car because Brame did not have sufficient reasonable suspicion to justify the stop of Knight’s car.
An appellate court reviews the trial court’s decision on a motion to suppress evidence using a bifurcated standard. Without reweighing the evidence, the trial court’s findings are reviewed to determine whether they are supported by substantial competent evidence. Then the ultimate legal conclusion regarding the suppression of evidence is reviewed using a de novo standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007).
Nevertheless, when the material facts to a trial court’s decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Fitzgerald, 286 Kan. 1124, 1126, 192 P.3d 171 (2008).
Under the Fourth Amendment to the United States Constitution, a traffic stop is considered a seizure. According to Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), and as codified in K.S.A. 22-2402(1), a police officer must have a reasonable suspicion based on articulable facts to stop a moving vehicle. Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 636, 176 P.3d 938 (2008).
Our Supreme Court explained in State v. Toothman, 267 Kan. 412, Syl. ¶ 4, 985 P.2d 701 (1999), the role of the appellate court in reviewing whether a stop is justified by reasonable suspicion:
“When evaluating reasonable suspicion, we judge an officer s conduct in light of common sense and ordinary human experience. Our task is not to pigeonhole each purported fact as either consistent with innocent travel or manifestly suspicious, but to determine whether the totality of the circumstances justify the de tenüon. We make our determination with deference to a trained law enforcement officer’s ability to distinguish between innocent and suspicious circumstances, remembering that reasonable suspicion represents a minimum level of objective justification which is considerably less than proof of wrongdoing by a preponderance of the evidence.”
The State bears the burden of proof for a suppression motion and must prove to the trial court the lawfulness of the search and seizure. State v. Ibarra, 282 Kan. 530, 533, 147 P.3d 842 (2006).
K.S.A. 8-1522 applies “[wjhenever any roadway has been divided into two (2) or more clearly marked lanes for traffic.” K.S.A. 8-1522(a) requires that “[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”
Knight argues that the State must prove his crossing of the highway fine was done at a time when it was unsafe to do so. Knight cites Ross in support of his position. In Ross, a motorist was driving on the highway when he briefly crossed over the fog fine. He was later stopped by a police officer for a violation of K.S.A. 8-1522(a). In ruling that the stop was illegal, the Ross court stated that “in articulating reasonable suspicion that a traffic offense has occurred in order to justify the traffic stop, the totality of the circumstances must make it appear to the officer that not only did the defendant’s vehicle move from its lane of travel, but it left its lane when it was not safe to do so.” 37 Kan. App. 2d at 130. The facts in Ross showed that the shoulder of the highway was paved, there were no objects or hazards on the shoulder posing a danger, the fog fine was only briefly crossed once, there was no other weaving by the car, and the officer did not testify that he was concerned that the driver was sleepy or intoxicated. Based on those facts, the Ross court found that fhe officer did not have reasonable suspicion to warrant a traffic stop. 37 Kan. App. 2d at 131.
The State, on the other hand, argues that the facts of Ross are distinguishable from the facts in this case. The State points out that the failure to maintain a single lane of travel was the officer’s only justification for a traffic stop in Ross. The State, however, notes that that situation is different from this case because Brame also suspected Knight of driving while intoxicated or sleepy. Furthermore, the State notes that the facts of Ross showed only one instance which could have been considered a single-lane violation. On the other hand, the State asserts that Knight failed to maintain his proper lane of travel several times and was also weaving within his lane of travel.
Most recently, in State v. Marx, 289 Kan. 657, 673,215 P.3d 601 (2009), our Supreme Court interpreted
“K.S.A. 8-1522(a) as establishing two separate rules of the road. The first requires a driver to keep entirely within a single lane while traveling on a roadway with two or more clearly marked lanes. That rule is temporarily suspended when it becomes impracticable to stay within the lane markers and when the driver is properly effecting a lane change. Proof that driving outside the lane markers created no safety hazard is not a defense to the single lane rule. The second rule provides that before a driver may change lanes or move from the current lane of travel to another location, he or she must ascertain that the movement can be made with safety. A traffic infraction occurs under K.S.A. 8-1522(a) when either rule of the road is violated.”
Moreover, the Marx court determined that K.S.A. 8-1522(a) “only requires compliance with the single lane rule as nearly as practicable, i.e., compliance that is close to that which is feasible. The statutory language tells us that a violation of K.S.A. 8-1522(a) requires more than an incidental and minimal lane breach.” 289 Kan. at 674. Most significantly, in Marx, our Supreme Court held that the State had failed to cany its burden of showing that the officer making the stop had a reasonable suspicion that the vehicle’s driver had violated K.S.A. 8-1522(a). Indeed, the court stated that the officer furnished “no testimony from which the court could even infer that it was practicable to maintain a single lane [of travel].” 289 Kan. at 676.
Like Marx, this case presents an example of negative proof. There were two possibilities: Knight violated the single-lane rule (K.S.A. 8-1522[a]) or he did not violate the single-lane rule. Negative proof requires the proponent, in this case the State, to show the absence of any other possibility other than the State’s claim that Knight had violated the single-lane rule. Here, the State failed to cariy its burden of proof to eliminate the other possibility: that Knight did not violate the single-lane rule. For example, the State failed to meet Marx’s second rule: the introduction of evidence showing that it was unsafe for Knight to leave his lane of travel. Most significantly, the trial court declared that Knight had not violated K.S.A. 8-1522(a) under the Ross holding: “I wholeheartedly agree that the movement of the vehicle itself pursuant to the Ross holding doesn’t show an infraction occurred.”
Moreover, based on Trooper Brame’s testimony and on the stipulation that the stop was based on Knight’s car “cross [ing] the solid line on the left side of 1-35 and weaving] within its own lane,” the State has failed to carry its burden to show that Knight did not maintain a single lane of travel despite the fact that it was practicable to do so. This was a failure of proof under Marx’s first rule. As a result, the State failed to carry its burden to show that Trooper Brame had a reasonable suspicion that Knight was violating the provisions of K.S.A. 8-1522(a) with his car.
Nonetheless, citing two cases from our Supreme Court, the State argues that Trooper Brame’s observation of Knight’s car weaving within its own lane of travel would furnish reasonable suspicion justifying a temporary investigative stop. First, in State v. Field, 252 Kan. 657, 658, 847 P.2d 1280 (1993), an officer pulled over a motorist who had been weaving within his lane of travel several times. The officer pointed out that it was approximately 2 o’clock in the morning when he noticed the motorist’s car weaving. Although the evidence showed that the motorist had not committed a traffic violation, our Supreme Court explained that a traffic violation was not required to justify a stop:
“There is no requirement that the officer actually observe a traffic violation being committed. As indicated by the other cases cited herein, the repeated weaving of a vehicle within its own lane may constitute reasonable suspicion for an officer to stop and investigate the driver of the vehicle.” 252 Kan. at 664.
As a result, the Field court concluded that the officer had “clearly shown articulable facts sufficient to constitute reasonable suspicion” of driving under the influence. 252 Kan. at 664.
Second, in State v. Hopper, 260 Kan. 66, 67, 917 P.2d 872 (1996), a motorist drove over a centerline multiple times and weaved within his lane during adverse weather conditions before he was stopped by an officer. The Hopper court found reasonable suspicion that a violation of K.S.A. 8-1514(a), failure to drive on the right half of the roadway, had occurred. 260 Kan. at 73. This case is distinguishable from the present case because the Hopper court determined that the traffic infraction furnished the necessary reasonable suspicion for the stop.
Trooper Brame’s decision to stop Knight’s car was arguably based on two factors: (1) the time of day — 11:24 p.m. and (2) the driver’s driving over the left or right lane markers several times. As stated earlier, these same factors have supported a finding of reasonable suspicion. As the State points out, the time (late night) combined with Knight weaving in and out of lanes without signaling and weaving within his proper lane of travel a number of times justified a temporary investigative stop.
Consequently, Trooper Brame, as the State maintains, had an independent basis for reasonable suspicion other than the alleged K.S.A. 8-1522(a) violation. Although Brame testified inconsistently regarding his justification for stopping Knight, twice stating it was for a failure to maintain a single lane and once stating it was for suspected driving while intoxicated, Brame did consistently state that he was concerned Knight was either intoxicated or sleepy.
Moreover, the trial court determined that Trooper Brame was justified in stopping Knight’s car to determine if Knight was intoxicated. As a result, Trooper Brame’s observation of Knight’s car weaving in and out of lanes without signaling and his car’s weaving within its proper lane of travel, standing alone, created sufficient reasonable suspicion for Trooper Brame to believe that Knight was driving while intoxicated or sleepy, which justified a temporary investigative stop. For this reason, Knight’s argument fails.
Does Criminal Possession of a Firearm Under K.S.A. 21-4204(a)(4)(A) Apply to Prior Convictions of Attempt Crimes?
Knight also contends that his conviction under K.S.A. 21-4204(a)(4)(A) for criminal possession of a firearm was inappropriate. Knight states that his prior felony conviction for attempted possession of cocaine is not specifically enumerated in K.S.A. 21-4204(a)(4)(A), and therefore, he was not prohibited from possessing a firearm.
Interpretation of a statute is a question of law over which this court has unlimited review. State v. Jefferson, 287 Kan. 28, 33, 194 P.3d 557 (2008).
The first task of an appellate court is to “ ‘ascertain the legislature’s intent through the statutory language it employs, giving ordinary words their ordinary meaning.’ [Citation omitted.]” State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009).
“ “When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. We need not resort to statutory construction. It is only if the statute’s language or text is unclear or ambiguous that we move to the next analytical step, applying canons of construction or relying on legslative history construing the statute to effect the legislature’s intent.’ [Citation omitted.]” Double M Constr. v. Kansas Corporation Comm’n, 288 Kan. 268, 271-72, 202 P.3d 7 (2009).
“ ‘Errors plainly clerical in character, mere inadvertences of terminology, and other similar inaccuracies or deficiencies will be disregarded or corrected where the intention of the legislature is plain and unmistakable. But the court cannot delete vital provisions or supply vital omissions in a statute. No matter what the legislature may have really intended to do, if it did not in fact do it, under any reasonable interpretation of the language used, the defect is one which the legislature alone can correct.’ [Citation omitted.]” Kenyon v. Kansas Power & Light Co., 254 Kan. 287, 292-93, 864 P.2d 1161 (1993).
“As a general rule, criminal statutes must be strictly construed in favor of the accused. Any reasonable doubt as to the meaning of the statute is decided in favor of the accused. This rule of strict construction is nevertheless subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. [Citation omitted.]” Gracey, 288 Kan. at 257-58.
K.S.A. 21-4204(a) states:
“Criminal possession of a firearm is:
(3) possession of any firearm by a person who, within the preceding five years has been convicted of a felony, other than those specified in subsection (a)(4)(A)
(4) possession of any firearm by a person who, within the preceding 10 years, has been convicted of: (A) A felony under K.S.A. 2008 Supp. 65-4160 . . . .”
Knight first argues that, although K.S.A. 21-4204(a)(4)(A) criminalizes possession of a firearm if a person has been convicted of K.S.A. 2008 Supp. 65-4160 for possession of cocaine, the statute is silent with regard to convictions of attempt crimes, including attempted possession of cocaine. K.S.A. 21-4204(a)(4)(A) does not include K.S.A. 21-3301 (the attempt statute) in the list of applicable felonies, nor does it state that attempts of the enumerated felonies qualify for inclusion. Knight points out that a different subsection, K.S.A. 21-4204(a)(3), serves as a “ ‘catch-all’ ” provision and applies to all crimes not specifically enumerated in K.S.A. 21-4204(a)(4). Knight argues that attempt crimes should fall under this “ ‘catchall’ ” provision.
On the other hand, the State maintains that K.S.A. 21-4204(a)(4)(A) “only requires a conviction under one of the enumerated offenses, not a conviction of the offense.” The State argues that Knight’s prior conviction for attempted possession of cocaine was a conviction under both the attempt statute, K.S.A. 21-3301, and tire possession of cocaine statute, K.S.A. 2008 Supp. 65-4160(a). The State contends that although Knight was not convicted of K.S.A. 2008 Supp. 65-4160(a), he was convicted of a crime under K.S.A. 2008 Supp. 65-4160(a). To support this contention, the State maintains that every attempt crime must have an underlying crime. Under this reasoning, Knight’s conviction for attempted possession of cocaine would have the underlying crime of possession of cocaine.
Additionally, the State relies on K.S.A. 21-3107(2)(c) for the statement that “an attempt to commit the crime charged is a lesser included crime.” Because attempt is a lesser included crime, the State reasons Knight’s conviction for attempted possession of cocaine “should therefore be a felony under K.S.A. [2008 Supp. 65-4160, possession of cocaine].” The State’s reliance upon K.S.A. 21-3107 is misplaced. K.S.A. 21-3107(2) only applies during the prosecution of a crime and allows a defendant to “be convicted of either the crime charged or a lesser included crime.” One definition for a lesser included crime in K.S.A. 21-3107(2)(c) is “an attempt to commit the crime charged.” Hypothetically, under K.S.A. 21-3107(2), a defendant who is charged with possession of cocaine could be convicted of the lesser included crime of attempted possession of cocaine instead. The sole purpose of K.S.A. 21-3107(2)(a) is to give the trier of fact the option to convict a defendant of the attempt crime if it finds that the elements of the charged crime have not been met. The State uses K.S.A. 21-3107(2) to characterize attempted possession of cocaine as the same crime as possession of cocaine, which is clearly not the purpose it was intended for and is an unreasonable interpretation of the statute.
Indeed, the State is urging the court to find a conviction under the principal crime even though Knight has been convicted only of an attempt of the principal crime. The State’s suggestion is improper, however, because Knight was not convicted of possession of cocaine; he was convicted of attempted possession of cocaine. Only if Knight had actually committed the crime of possession of cocaine, and thus fulfilled all the elements of the crime, should he be considered as having a conviction under K.S.A. 2008 Supp. 65-4160(a). Any effort to place Knight’s attempted possession of cocaine under K.S.A. 2008 Supp. 65-4160(a) would subvert the plain meaning of the statute.
Knight next contends that attempted possession of cocaine is a separate crime from possession of cocaine and relies on State v. Martens, 274 Kan. 459, 54 P.3d 960 (2002), to support his argument. In Martens, our Supreme Court determined that attempted manufacture of methamphetamine and manufacture of methamphetamine are separate offenses. 274 Kan. at 465. Attempted manufacture is controlled by the attempt statute, K.S.A. 21-3301, rather than the manufacture of controlled substances statute, K.S.A. 65-4159. 274 Kan. at 465. Knight contends that, under this reasoning, attempted possession of cocaine should likewise be a separate offense from possession of cocaine.
Nevertheless, the State does not dispute Knight’s assertion that K.S.A. 21-3301 and K.S.A. 2008 Supp. 65-4160(a) are separate offenses. The State does disagree with Knight’s use of Martens though and distinguishes it. The State points out that, unlike Knight, the defendant in Martens was only charged under K.S.A. 65-4159 for attempted manufacture of methamphetamine. The State maintains that Martens did not make any determinations regarding K.S.A. 21-3301.
Knight improperly relies on Martens to establish that the crime of possession of cocaine is a separate offense from attempted possession of cocaine. Under the statutory language of K.S.A. 2008 Supp. 65-4160, the crime of possession of cocaine occurs only when all elements of the crime are established. Thus, to be convicted of possession of cocaine, the offender must actually be in possession of cocaine. In Martens, however, the title of the statute in question implied that attempts of manufacturing methamphetamine were also covered by the statute. 274 Kan. at 464-65. The Martens court turned to the statutory language and determined that attempt crimes were not included in the statute. In addition, the court found that “attempted manufacture of a controlled substance is a separate offense controlled by K.S.A. 21-3301(a).” 274 Kan. at 465. The Martens ruling does not apply to this case though because the statutory language of K.S.A. 2008 Supp. 65-4160, possession of cocaine, does not state or imply that an attempt to possess is covered by the statute. Instead, tire general attempt statute, K.S.A. 22-3301, controls. As a result, even though Martens does not apply, attempted possession of cocaine is nonetheless a separate offense from possession of cocaine.
Knight also argues that when writing K.S.A. 21-4204(a)(4)(A), the legislature could have included attempt crimes. He points out another statute, K.S.A. 21-4643(a)(l), that mandates minimum terms of imprisonment for a variety of sex offenses. Along with the sex offenses enumerated in the statute is a clause that includes any attempt of the listed offenses. K.S.A. 21-4643(a)(l)(G). By omitting attempt crimes from K.S.A. 21-4204(a)(4)(A), Knight reasons that the legislature did not intend to include them in the firearms prohibition.
Indeed, a variety of examples similar to the one identified by Knight can be found in other Kansas criminal statutes. K.S.A. 21-4642 (habitual sex offender enhanced sentencing statute defines sexually violent crimes and includes attempts of those crimes); K.S.A. 21-3439(a)(4) (defines capital murder as the killing of the victim of several crimes and includes attempts of those crimes); K.S.A. 21-4708 (crime severity level for drug offenses also applies to attempts of drug crimes). Each of these examples uses explicit language to include attempt crimes within a list of other enumerated crimes of the statute. Similar explicit language is absent in K.S.A. 21-4204(a)(4)(A).
This absence of explicit language from K.S.A. 21-4204(a)(4)(A) combined with the rule of lenity leads this court to determine that the legislature did not intend to include the separate crime of attempted possession of cocaine within K.S.A. 21-4204(a)(4)(A). Under the rule of lenity, when there is ambiguity in a penal statute’s meaning, it should be narrowly construed in favor of the defendant. The rule of lenity encompasses laws establishing criminal liability. This is because citizens should have fair notice in the statute of conduct that is criminal. State v. Zeit, 39 Kan. App. 2d 364, 368, 180 P.3d 1068 (2008). When there is some reasonable doubt about the meaning of a criminal statute, a narrow interpretation ensures that the courts do not criminalize conduct that the legislature did not intend to make criminal, while leaving the legislature free to amend the statute to clarify its position and to provide notice to future actors that certain conduct is illegal. State v. Coman, 42 Kan. App. 2d 592, 610-11, 214 P.3d 1198 (2009) (Leben, J., dissenting) (citing Jellum, Mastering Statutory Interpretation 238 [2008]). Because the separate crime of attempted possession of cocaine is not explicitly included within K.S.A. 21-4204(a)(4)(A), we determine that such crime cannot be used to convict a defendant of criminal possession of a firearm under K.S.A. 21-4204(a)(4)(A). Accordingly, we reverse Knight’s conviction for criminal possession of a firearm under K.S.A. 21-4204(a)(4)(A).
Does Knight’s Conviction for Carrying a Concealed Weapon Violate His Constitutional Right to Bear Arms?
Knight next contends that K.S.A. 21-4201(a)(4), which criminalizes the possession of a concealed firearm, violates his right to bear arms under the Second Amendment to the United States Constitution and under § 4 of the Kansas Constitution Bill of Rights. Although Knight admits that this issue was not brought up at the trial court level, he argues that this court should hear it for the first time on appeal.
Issues not raised before the trial court cannot be raised on appeal. State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). Furthermore, constitutional grounds for reversal asserted for the first time on appeal are also not properly before the appellate court for review. State v. Gant, 288 Kan. 76, 82, 201 P.3d 673 (2009). Nevertheless, there are several exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal, including the following: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) the consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) the judgment of the trial court may be upheld on appeal despite its relying on the wrong ground or its assigning a wrong reason for its decision. State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008).
The constitutionality of a statute presents a question of law, which we review de novo. Tolen v. State, 285 Kan. 672, 673, 176 P.3d 170 (2008). The Second Amendment to the United States Constitution states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
In response to Knight’s claim, the State argues that the Second Amendment applies only to the federal government and not to the states. As a result, the State contends that Knight’s argument has no merit. The State also points out that the recent United States Supreme Court case, District of Columbia v. Heller, 554 U.S. 570, 171 L. Ed. 2d 637, 128 S. Ct. 2783 (2008), did not address “whether the Second Amendment applies to the states.” Nevertheless, the Supreme Court did not need to address Second Amendment application to the states, because Heller involved a gun regulation in the District of Columbia, not a state regulation. 554 U.S. at 621 (noting that the applicability of the Second Amendment to the states was not at issue in Heller).
Finally, the State cites Maloney v. Cuomo, 554 F.3d 56, 58 (2d Cir. 2009), for the proposition that the Second Amendment is only a limitation on the federal government. The Maloney decision relied upon a prior Supreme Court case, Presser v. Illinois, 116 U.S. 252, 265, 29 L. Ed. 615, 6 S. Ct. 580 (1886), which held that the Second Amendment does not limit the power of the states. Maloney, 554 F. 3d at 58.
Knight counters that the Second Amendment applies to the states under the United States Supreme Court’s modem 14th Amendment incorporation doctrine. Under the incorporation doctrine, certain substantive rights granted in the first eight amendments to the Constitution can be incorporated by the Due Process Clause of the 14th Amendment, and thus apply to the states. Twining v. New Jersey, 211 U.S. 78, 99, 53 L. Ed. 97, 29 S. Ct. 14 (1908), overruled on other grounds Malloy v. Hogan, 378 U.S. 1, 6, 12 L. Ed. 2d 653, 84 S. Ct. 1489 (1964). Knight maintains that the Presser decision cited by Maloney occurred before the Supreme Court’s adoption of the incorporation doctrine. Consequently, Knight argues that Presser is not binding on the issue. Knight further maintains that the Maloney court failed to “conduct a selective incorporation analysis of whether the right to bear arms should apply to the states.”
Under a selective incorporation analysis, only certain fundamental rights and liberty interests are protected. Washington v. Glucksberg, 521 U.S. 702, 720,138 L. Ed. 2d 772,117 S. Ct. 2258 (1997). These protected rights and interests are those “which are, objectively, ‘deeply rooted in this Nation’s history and tradition,’ [citations omitted] and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed’ [citation omitted].” 521 U.S. at 720-21. Examples of fundamental protected rights and interests recognized by the United States Supreme Court include “the rights to many [citation omitted]; to have children [citation omitted]; to direct the education and upbringing of one’s children [citations omitted]; to marital privacy [citation omitted]; to use contraception [citations omitted]; to bodily integrity [citation omitted], and to abortion [citation omitted].” 521 U.S. at 720. Nevertheless, the Supreme Court has never determined whether the right to bear arms is a fundamental protected right or interest.
In Heller, Knight contends that when the Supreme Court implied the right to bear arms, it acknowledged a fundamental right. Knight further points out that the Ninth Circuit Court of Appeals, in Nordyke v. King, 563 F.3d 439, 457 (9th Cir. 2009), vacated 611 F.3d 1015 (9th Cir. 2010) (en banc), concluded that the right to bear arms is incorporated by the 14th Amendment based on the Heller opinion under a selective incorporation approach.
In contrast, several courts have expressed disagreement with the Nordyke decision. See National Rifle Ass’n of Amer. v. City of Chicago, 567 F.3d 856 (7th Cir. 2009), revd 561 U.S. 742, 177 L. Ed 2d 894, 130 S. Ct. 3020 (2010); State v. Turnbull, 766 N.W.2d 78, 80 (Minn. App. 2009); Crespo v. Crespo, 408 N.J. Super. 25, 41-43, 972 A.2d 1169 (2009). In rejecting Nordyke’s selective incorporation approach, the NRA court determined that the Second Amendment, under current Supreme Court precedents, is not one of the parts of the Bill of Rights that has been incorporated by the 14th Amendment. As a result, the NRA court concluded that the Second Amendment does not apply to the states. In addition, the NRA court agreed with the Second Circuit Court of Appeals’ decision in Maloney. There, the Maloney court held that United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1876); Presser; and Miller v. Texas, 153 U.S. 535, 14 S. Ct. 874, 38 L. Ed. 812 (1894), still control. In those cases, the Supreme Court had specifically rejected attempts to apply the Second Amendment to the states.
Nevertheless, the United States Supreme Court recently held that the right to “keep and bear arms” embodied in the Second Amendment applies not only to the federal government, but also to the individual states. See McDonald v. Chicago, 561 U.S. 742, 177 L. Ed. 2d 894, 130 S. Ct. 3020 (2010). A four-justice plurality agreed that the Due Process Clause of the 14th Amendment to the United States Constitution “incorporates” the Second Amendment’s right to keep and bear arms, which was recognized in District of Columbia v. Heller, 554 U.S. 570, 171 L. Ed. 2d 637, 128 S. Ct. 2783 (2008).
In addition, in arguing that the concealed firearms ban is unconstitutional, Knight returns to Heller. He contends that the Hel ler opinion extends individuals a right to bear arms outside the home. Knight points out that Heller specifically contemplated individuals carrying a firearm on themselves or in their clothing. 554 U.S. at 584. He further argues that Heller conferred an individual right, not only to carry, but also to carry concealed firearms on oneself outside of the home. The State, on the other hand, urges that Heller be read narrowly, only applying to “absolute prohibitions of handguns held and used for self-defense in the home.”
In Heller, a police officer challenged a Washington, D.C., ban on handguns. Under the ban, despite a registration requirement, handguns could not be registered and a special license was necessary to carry a handgun. Even lawfully owned firearms were required to be “ ‘unloaded and dissembled or bound by a trigger lock or similar device.’ ” 554 U.S. at 575. The Supreme Court’s decision turned solely on the issue of handgun possession in the home. The Court explicidy stated that the “ban on handgun possession in the home” and the “prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense” were violations of the Second Amendment. 554 U.S. at 635. It is clear that the Court was drawing a narrow fine regarding the violations related solely to use of a handgun in the home for self-defense purposes. Knight’s argument, that Heller conferred on an individual the right to carry a concealed firearm, is unpersuasive.
Knight admits that Heller examined 19th-century case law and found that a majority of courts ruled that prohibitions on concealed firearms were constitutional. Nevertheless, Knight maintains that when the Heller Court listed various regulations that were presumptively lawful, it failed to mention prohibitions on concealed firearms. Knight contends that this omission by the Supreme Court meant that prohibitions on concealed firearms are not presumptively lawful.
The State counters by asserting that the Heller Court’s fist of presumptively lawful regulatory measures was not exhaustive. In its decision, the Heller Court specifically stated that its list was not exhaustive and only served to identify examples of presumptively constitutional laws under the Second Amendment. 554 U.S. at 627. Any failure by the Heller Court to include prohibitions on concealed firearms does not imply that such requirements are uncon stitutional. Additionally, the Heller Court specifically mentioned prohibitions on concealed firearms in the sentence before its list of presumptively lawful prohibitions. 554 U.S. at 626-27. The Heller Court began the paragraph stating that “the right secured by the Second Amendment is not unlimited” and, two sentences later, noted prohibitions on carrying concealed firearms as an example. 554 U.S. at 626. This clearly shows that the Heller Court considered concealed firearms prohibitions to be presumptively constitutional under the Second Amendment. As a result, Knight’s argument fails.
Did the Trial Court Err in Ordering Knight to Reimburse the Board of Indigents’ Defense Services for Attorney Fees?
Finally, Knight contends that the trial court incorrectly ordered him to reimburse the Board of Indigents’ Defense Services (BIDS) for attorney fees without first inquiring about his ability to pay or determining whether a financial burden would be placed on him if required to pay.
K.S.A. 22-4513 provides for the reimbursement of BIDS attorney fees by convicted criminal defendants. K.S.A. 22-4513(b) reads in part: “In determining the amount and method of payment of such sum, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose.”
Interpretation of a statute is a question of law over which this court has unlimited review. State v. Jefferson, 287 Kan. 28, 33, 194 P.3d 557 (2008).
In State v. Robinson, 281 Kan. 538, 546, 132 P.3d 934 (2006), our Supreme Court directed sentencing courts, at the time of the initial assessment of BIDS attorney fees under K.S.A. 22-4513, to “consider the financial resources of the defendant and the nature of the burden that payment will impose explicitly, stating on the record how those factors have been weighed in the court’s decision.” The remedy for a sentencing court’s failure to make such explicit findings is to remand to the sentencing court for such findings. 281 Kan. at 548.
Here, Knight made no objection to the trial court’s failure to inquire about his financial resources or the burden a reimbursement payment would place on him. Nevertheless, a failure to object to the imposition of BIDS fees has not disallowed parties from raising the issue for the first time on appeal. See Robinson, 281 Kan. at 541; State v. Hawkins, 37 Kan. App. 2d 195, 197, 152 P.3d 85 (2007), aff'd 285 Kan. 842, 176 P.3d 174 (2008).
The State argues that the court did consider Knight’s financial resources when it asked Knight how much he could pay toward the fees and when he could start paying the fees. Nevertheless, the facts in this case show that the sentencing court failed to make the necessary Robinson inquiries. The trial court merely asked Knight how much he could pay and when he could start paying it back; it did not inquire into Knight’s financial resources. The trial court also did not consider the nature of the burden a reimbursement payment would impose on Knight. Finally, the court did not state how those factors were weighed in coming to the decision to impose a reimbursement payment on Knight.
Consequently, the trial court erred in ordering Knight to pay BIDS fees without first making the proper Robinson inquiries on the record.
Affirmed in part, reversed in part, vacated in part, and remanded with directions. | [
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Leben, J.:
Richard Walder died after an accident involving a collapsed culvert on a rural road. His estate sued Jackson County, alleging that the county had been negligent in road inspection and maintenance and that this negligence caused Walder’s death. But the county moved for summary judgment, arguing in part that Walder s estate hadn’t shown in its expert-testimony summary the cause of the culvert collapse and how the county could have prevented the collapse through better inspections. Thus, the county argued, the estate hadn’t proved that the county had been negligent or that its negligence had caused Walder’s death.
The estate’s expert witness eventually said that he thought the culvert’s collapse was caused by a process called piping — essentially soil erosion- — -that had caused the soil around the culvert to fail and the road to wash out. But the district court struck that testimony because it hadn’t been disclosed by the estate in the required expert-witness disclosure. Without that testimony, the estate has no evidence of causation and can’t support its negligence claim.
The estate has appealed, arguing that the district court abused its discretion in striking the expert’s testimony. But the undisclosed opinion was critical to the estate’s case: no claim of negligence may be made without evidence that the negligent conduct caused the injury. The district court did not abuse its discretion by holding that a critical expert opinion must be disclosed as provided for by the applicable statute, K.S.A. 60-226.
That statute frames this appeal, specifically the provision on the timing of the estate’s expert-testimony disclosure. K.S.A. 60-226(b)(6)(B) and (C) require that parties disclose each expert opinion “and a summary of the grounds for each opinion” at least 90 days before trial unless otherwise ordered. The statute also provides that a party must supplement a disclosure “if the party learns that in some material respect the information disclosed is incomplete or incorrect,” with supplementation of any expert testimony to be made “at least 30 days before trial” unless otherwise ordered. K.S.A. 60-226(e)(l).
Both sections of the statute are in play here. The estate’s initial disclosure of its expert’s opinion was provided more than 90 days before the scheduled trial date. In it, the expert asserted that adequate inspection procedures would have allowed the county to identify problems with its culvert:
“It is my opinion that Jackson County lacked an adequate culvert inspection program .... It is also my opinion that an adequate culvert inspection program would have identified problems with the culvert near 198 Road and L Road, Jackson County. The identified problems determined through scheduled inspections would have notified the staff that repairs or replacement were [sic] needed, and the washout most likely would have been prevented.”
But the estate’s expert did not identify any specific problem that caused the washout and that could have been fixed by the couniy, so the county filed for summary judgment. The county presented an expert’s opinion that the culvert wasn’t defective and that the road above it simply washed away because of the heavy rain and flooding that had occurred the night before Walder’s accident.
The estate filed a supplemental response to the summary-judgment motion that said the county had failed “to keep its county roads safe for travel by any and/or all” of a number of things, but no additional expert-witness disclosure or attached evidence supported that response. The estate’s expert was then deposed, and he said for the first time that a process called “piping” had caused the soil around the culvert to fail and the road to wash out. But it was well within 90 days of the scheduled trial date, and the county filed a motion to strike the expert’s newly disclosed opinion about the cause of the washout.
The district court granted that motion. The court noted that the expert hadn’t included “any opinion ... as to a specific defect in his report” and that the estate hadn’t supplemented it before the deposition either. The court said that the county had “a right to rely upon the report as saying the only finding by plaintiffs expert was to the lack of adequate supervision and inspection of the culverts,” not about specific soil conditions that had caused the collapse. The court said that the county had been “ambushed” by this new testimony and noted that the trial date was set for shortly after the deposition.
The district court has broad discretion in supervising a lawsuit, including the course of discovery. Accordingly, we reverse its orders only for an abuse of discretion, which occurs when no reasonable person would agree with its ruling. In re Tax Appeal of City of Wichita, 277 Kan. 487, 513, 86 P.3d 513 (2004); Foster v. Klaumann, 42 Kan. App. 2d 634, 678-79, 216 P.3d 671 (2009). We cannot find an abuse of discretion in the district court’s ruling here.
Without an expert opinion about what caused the culvert’s collapse, the estate doesn’t have a case. Any negligence-based claim requires causation evidence, i.e., evidence that an act or omission by the defendant led to the plaintiff s injury. Deal v. Bowman, 286 Kan. 853, 859, 188 P.3d 941 (2008). In this case, given the heavy rain that might have caused a washout even without negligence by the county, it’s not sufficient for the estate to claim that some unknown factor existed that presumably the county could have found through better inspections and that then presumably could have been fixed had the county found it. Instead, the estate needed — as it eventually recognized — some evidence about what specifically had been missed when the county failed to regularly inspect its culverts. Thus, the expert’s opinion about piping as the cause of the washout was central to the estate’s legal claim.
An expert opinion central to a party’s claim must be disclosed at least 90 days before trial in the expert disclosures required under K.S.A. 60-226(b)(6). Supplementation may occur later and is intended for changes due to newly discovered evidence or material inadvertently left out, not for the initial disclosure of an opinion on the central issue of the lawsuit. As one treatise on a similar federal rule notes, “A party may not use a supplemental report to disclose information that should have been disclosed in the initial expert report, thereby circumventing the requirement for a timely and complete expert witness report.” 6 Moore’s Federal Practice § 26.131[2] (3d ed. 2010).
As a federal appellate court noted in Macaulay v. Anas, 321 F.3d 45, 51 (1st Cir. 2003), “trial judges must work a complicated equation, balancing fairness to the parties with the need to manage crowded dockets,” and trial judges are generally in a better position to assess the situation. Thus, “the question on appeal is not whether we would have imposed the same sanction. Rather, the question is whether the district court’s action was so wide of the mark as to constitute an abuse of discretion.” 321 F.3d at 51.
Many courts have refused to allow the late disclosure of an expert’s opinion when the initial time for such disclosures had passed, even though the time limit for supplementation had not yet expired or the trial had not yet begun. E.g., Macaulay, 321 F.3d at 50-53; Schweizer v. DEKALB Swine Breeders, Inc., 954 F. Supp. 1495, 1509-11 (D. Kan. 1997); McQuire v. Wesley Rehab. Hosp., 2009 WL 454941, at *2-4 (Kan. App.) (unpublished opinion), rev. denied 289 Kan. 1279 (2009); see also 6 Moore’s Federal Practice § 26.131[2] (citing cases). Accordingly, the estate faces a difficult task to convince us that no reasonable person would have agreed with the district court’s decision to strike the opinion testimony of the estate’s expert that had not been timely disclosed. We have examined the record in this case, and we find no abuse of discretion here. Based on the pretrial questionnaire’s references to “substantial deterioration of the culvert soil,” the district court concluded that the estate’s attorney apparently “knew of a different opinion held by his expert” that hadn’t been disclosed. The district court also noted that the expert testified that he had not placed an opinion about piping of the soil into his report because he had not been asked to state such an opinion there. Whether the lack of disclosure was due to inadvertence or intent, the district court concluded that the county was nonetheless unfairly surprised. The district court’s conclusions are supported by the record. In addition, the estate never offered any justification for the late disclosure. See Macaulay, 321 F.3d at 51-52.
The district court also concluded that the county was immune from suit under the discretionary-function exception to the Kansas Tort Claims Act, K.S.A. 2009 Supp. 75-6104(e). Because the lack of causation evidence is dispositive of the estate’s claim, we do not address the district court’s separate conclusion regarding the Kansas Tort Claims Act.
Without the excluded testimony from its expert, the estate failed to show that the culvert was defective, that inspections would have found the defect, or that the county could have fixed the defect and prevented the accident. A plaintiff must show more than a mere possibility of causation to prevail. Yount v. Deibert, 282 Kan. 619, 628, 147 P.3d 1065 (2006). The judgment of the district court is therefore affirmed. | [
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Larson, J.:
In this quiet title action, Earl R. DeLay and other heirs of Earl R. DeLay and Leah Griffith DeLay, his wife, appeal from the trial court’s entry of judgment after a trial on stipulated facts in favor of Donald R. Rucker and Barbara L. Rucker that a reservation in a 1924 deed was of a royalty interest which violated the rule against perpetuities.
The record and stipulation reflect that on May 17,1924, in consideration of $1,200, Earl R. DeLay and Leah Griffith DeLay, his wife, executed a general warranty deed in favor of Lurena Keener covering the NW/SW/4 of Section 4 and the NE/4SE/4 of Section 5, all in Township 32, Range 10, West of the 6th P.M. in Barber County, Kansas, which contained the following reservation: “The grantor herein reserves 60% of the land owner’s one-eighth interest to the oil, gas or other minerals that may hereafter be developed under any oil and gas lease made by the grantee or by his subsequent grantees.”
The DeLays are the successors in interest of the grantors in the above-described deed, and the Ruckers are the present owners of the described real property and, thus, the successors in interest of the grantee of the above-described deed.
In 2008, the Ruckers filed a quiet title action against the DeLays in which the Ruckers contended the reservation violated the rule against perpetuities in that it was an attempt to retain a royalty interest in the grantor in production, and not a mineral interest in place. Since it is violative of the rule against perpetuities, the purported reservation was alleged to be null and void.
The DeLays answered, contending they owned 60% interest in the minerals under the described land, arguing the reservation did not violate the rule against perpetuities and that it was a mineral interest under Kansas decisions, and requesting the court quiet their title in and to such interest.
The parties entered into stipulations of fact which included the description of the property, the wording of the reservation in the 1924 deed, that the deed was not filed until August 29, 1925, that there has never been oil and/or gas produced on the property, and that in 1946 and 1966 ratifications of oil and gas leases were executed by the DeLays but since 1966 no DeLay successor has executed an oil or gas lease or satisfied one. It was also stipulated the Barber County Clerk’s Severed Mineral Book lists the DeLays’ interest as six mineral acres (60% x Vs x 80), the mineral rights were not exhibited to the county clerk prior to August 29, 1925, and all taxes against the severed mineral interests assessed by Barber County have been paid by the DeLays.
The issues were well briefed and argued by counsel for the parties. The trial court in its memorandum decision noted that Drach v. Ely, 237 Kan. 654, 703 P.2d 746 (1985), stated that applying the rule against perpetuities is not favored, but Drach involved interpretation of the language of a will where unique rules of construction favor protecting the intent of the testator that do not apply here. The court concluded that “developed” has a similar meaning to “produced and marketed.” The memorandum decision stated:
“A different construction is possible almost everywhere but Kansas which treats oil or natural gas in place as realty but produced oil or natural gas as personalty. [Citations omitted.]
“Kansas has consistently held the rule against perpetuities will be applied (even with the harsh result of forfeiture of an intended property right) if the interest in question was a nonparticipating [no interest in the leasing aspects of ownership] royalty interest. Miller v. Sooy, 120 Kan. 81 (1926) and many following decisions.
“The question in this case is what was created by the language of the deed in question. The Court concludes it is a perpetual nonparticipating royalty interest subject to termination by the Kansas authorities cited above.
“The language here attempts to create an interest which has no leasing rights (nonparticipating) with no reservation of a right to enter and produce. The one-eighth is a traditional leasehold royalty a portion of which is attempted to be reserved forever but which may not ever come to fruition (if land is never leased or developed).”
The trial court stated that its ruling for the Ruckers was not what was intended by the parties to the transaction in 1924 but that the court was not permitted to ignore settled Kansas precedent. Be cause the court’s ruling on this issue was dispositive, it declined to rule on the delay in the recording of the deed issue.
From this decision, the DeLays have appealed. With the district court’s decision being based on the language of the deed and the stipulations of the parties, “the standard of appellate review is de novo for cases decided by the district court based on documents and stipulated facts.” Double M Constr. v. Kansas Corporation Comrrin, 288 Kan. 268, 271, 202 P.3d 7 (2009).
We are called upon in this appeal to construe a reservation in a deed executed in 1924 which requires us to consider the direction of K.S.A. 58-2202 which provides in part: “[E]very 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.”
In Corbin v. Moser, 195 Kan. 252, 258, 403 P.2d 800 (1965), a case with facts similar to ours, we find the following direction relative to the constructions of deeds.
“[Wjhere an ambiguity exists so that a deed is capable of two possible constructions the one most favorable to the grantee will be selected. We find the rule stated in 16 Am. Jur., Deeds, § 165, p. 530, as follows:
“ ‘The general rule is well settled that if there is any ambiguity in a deed so that it is capable of two possible constructions, one of which will be more favorable to the grantee, the other of which will be more favorable to the grantor, that method of construction which will be more favorable to the grantee will be selected and the deed will be construed against the grantor. All doubts, therefore, are to be resolved against the grantor. This rule is statutory in some jurisdictions. The rule is predicated upon the reasoning that since a grant is expressed in words of the grantor’s own selection, it is, prima facie, an expression of his intention, and he is therefore chargeable with the language used. If, therefore, the deed can inure in different ways, the grantee, it is said, may take it in such way as will be most to his advantage.’ ”
The contentions of the parties on appeal are predictable and consistent with those made in the trial court.
The DeLays argue the district court erred in determining that the interest reserved in the deed was a royalty interest. They contend the language in the reservation is similar to language in cases they cite, which the appellate court of Kansas have determined were reservations of mineral interests.
The Ruckers assert the district court was correct in its ruling that the reservation in the deed was of a royally interest. They assert there is no reserved right to lease or receive bonus or delay rentals, the reservation is of a share of production being the landowner s one-eighth interest under an oil and gas lease executed by grantees or subsequent grantees.
The difference between whether an interest is one of royalty or a mineral interest is important because in Kansas, a mineral interest is deemed to vest immediately upon the creation of the interest, Lathrop v. Eyestone, 170 Kan. 419, 423-24, 227 P.2d 136 (1951), while a royalty interest is an interest in personal property and not immediately vested.
When we are called upon to interpret whether a conveyance or a reservation is a royalty or mineral interest, we look to the summary set forth in 1 Pierce, Kansas Oil and Gas Handbook §§ 6.14 to 6.18 (1991), hereafter Pierce, where the following construction rules are set forth at § 6.14:
“ ‘The cardinal principle or test to be applied in the interpretation of such instruments ... is the intention of the parties.’ Lathrop, 170 Kan. at 424, 227 P.2d at 141. This goal of ascertaining the parties’ intention is guided, initially, by the following interpretive rules:
1. All language used anywhere in the instrument will be considered. Examine the entire instrument, within its ‘four comers,’ to ascertain the intent and purpose of the parties. Shepard, Executrix v. John Hancock Mutual Life Ins. Co., 189 Kan. 125, 129, 368 P.2d 19, 23 (1962).
2. The title given an instrument is not determinative. However, the contents of the instrument must make it clear it is something other than what its title indicates. Magnusson v. Colorado Oil & Gas Corp., 183 Kan. 568, 573, 331 P.2d 577, 582 (1958). See also Richards v. Shearer, 145 Kan. 88, 64 P.2d 56 (1937) (instalment titled ‘Sale of Oil and Gas Royally’ held to convey a mineral interest).
3. Although all parts of the instrument will be considered, the terms of the granting clause carry particular weight in ascertaining the interest conveyed. Lathrop, 170 Kan. at 424, 227 P.2d at 141. . . .
“Courts examining language within conveyance instruments have focused on specific factors which tend to represent the elements of either a royalty or mineral interest. Some factors are given more weight than others.
“The major factors noted in the decided cases are whether the instrument conveys:
1. An ownership interest in oil and gas prior to its actual production.
2. A right to enter the property to conduct development operations.
3. The right to lease the property and receive bonus, delay rental, and royalty.”
Commissioner Hatcher, writing for the Supreme Court in Cor-bin, described a court’s dilemma in cases such as we now face in this manner:
“We search previous decisions for aid in construction. However, we seldom find the same confusing language twice used and previous cases are of little assistance. This court has on many occasions defined both oil and gas royalties and mineral interests. However, the definitions are of little assistance when the scrivener commingles the words which are used in distinguishing the two interests.” 195 Kan. at 255-56.
The difference between a mineral interest and a royalty interest is similarly set forth in our appellate decisions. A mineral interest is an interest in the “[minerals, including oil and gas, in place or in and under the land.” Froelich v. United Royalty Co., 178 Kan. 503, 507, 290 P.2d 93 (1955), modified on reh. 179 Kan. 652, 297 P.2d 1106 (1956). A mineral interest is considered real property. When a mineral interest is transferred, there is a severance of the fee. A royalty interest is merely an interest in the “oil and gas severed and produced from the land under an oil and gas lease.” 178 Kan. at 507. A royalty interest is considered personal property, and it does not sever the fee when it is created.
After citing seven cases where “royalty interest” and “mineral interest” had been defined and distinguished by Kansas decisions, Stratmann v. Stratmann, 204 Kan. 658, 662, 465 P.2d 938 (1970), stated:
“The term ‘royalty interest’ generally refers to a right to share in the production of oil and gas at severance. It is personal property and concerns the proceeds from oil and gas leases if and when there is production.
“The term ‘mineral interest’ as commonly used refers to the oil and gas in place and constitutes a present ownership of an interest in real property. (Shepard, Executrix v. John Hancock Mutual Life Ins. Co., 189 Kan. 125, 368 P.2d 19.) A prime characteristic of a mineral interest is the right to enter the land to produce and carry on production activities. This right may be leased to others.”
Professor Pierce in his Kansas Oil and Gas Handbook § 6.14, p. 6-17 states: “ ‘Royalty’ is the right to share in oil and gas when it is produced . . . [u]nlike royalty, a mineral interest includes the right to oil and gas in place and the right to develop, or authorize development of, the resource.”
In discussing the ownership interest prior to production (which is significant in our appeal as it has been stipulated that no production of oil or gas has ever existed on the real property in issue), Professor Pierce states: “The first factor courts look for is whether the instrument conveys a right to oil and gas ‘in and under the land, which tends to indicate a mineral interest or a right to oil and gas ‘produced’ from the land, which tends to indicate a royalty interest.” Pierce § 6.14, p. 6-19.
With the language of the reservation in the 1924 deed in our case being “60% of the landowner’s one-eighth interest to the oil, gas or other minerals that may... be developed [produced] under any oil and gas lease made by the grantee, or by his subsequent grantees,” our Kansas decisions would seem to require that we conclude the reservation is of a royalty interest.
Our Supreme Court in Lathrop v. Eyestone, 170 Kan. 419, 227 P.2d 136 (1951), reviewed three separate instruments and found the first to be a grant of a mineral interest where language included the right of “a perpetual and irrevocable right, privilege and license to enter upon said land or any part thereof and prospect for and drill wells for oil and gas therein.” 170 Kan. at 421. The other two instruments conveyed “ ‘an undivided one-fourth (lA) in a certain oil and gas mining lease’ ” and also “ ‘one-fourth (ki) of the oil and gas royalties reserved to the lessors . . . which one-fourth of the royalties shall not be less than one-sixteenth (Vie) of the production of the lease.’ ” 170 Kan. at 422. It was held the grant of an interest in “production” and royalties (an interest in personal property) were major factors in its decision that the two assignments were conveyances of a royalty interest. 170 Kan. at 426-27.
The Lathrop opinion then distinguished its facts from Miller v. Sooy, 120 Kan. 81, 242 Pac. 140 (1926), where the instrument was binding only with respect to leases executed by the then landowners and not as running with the land, making it not subject to attack on the ground it violated the rule against perpetuities. In Lathrop, the royalty interests bind successors or assigns and future fee owners might never execute another lease and the fee title owner would not be precluded from doing his or her own developing. The opinion then held:
“It is, therefore, wholly problematical when, if ever, such an interest under future leases would vest. Such a grant violates the rule against too remote vesting. In 41 Am. Jur., Perpetuities and Restraints on Alienation, § 24, it is said:
“ ‘. . . A possibility, or even a probability, that the interest or estate may vest within that time is not enough, for it is said, the question of probabilities does not enter into the equation.’ ” 170 Kan. at 428.
When courts consider whether the instrument grants or reserves the right to enter the premises to conduct operations for oil and gas, a royalty interest was found to exist in Corbin despite wording in the instrument reserving “a one-sixteenth (Vie) royalty interest of all oil, gas, or minerals in place.” The court said: “The language creating the reservation makes no reference to the right to operate or develop, or any right of ingress or egress to and from the premises.” 195 Kan. at 257. The wording “minerals in place” was not deemed to change the result.
The DeLays’ reservation cannot be construed to include the right to enter the premises or to conduct oil and gas operations as the language is specific to rights under leases executed by grantees or successors to grantees which must be construed to reserve only a royally interest.
In Cosgrove v. Young, 230 Kan. 705, 712, 642 P.2d 75 (1982), the Supreme Court was asked to interpret a contract purported to convey a royalty interest. The language in the granting clause was as follows: “[T]he parties of the first part ‘sell, assign and agree to deliver . . . one-half (V2) of the royalty in Oü and Gas produced upon the . . . land.’ ” In addition, the court pointed out that no right of ingress or egress was granted; there was no reference to the oil, gas, or other minerals in and under the property; and no further reservations were made in the contract relating to transferability, leasing rights, or other factors previously considered significant by the court. See Froelich, 178 Kan. 503; Shepard, Executrix v. John Hancock Mutual Life Ins. Co., 189 Kan. 125, 368 P.2d 19 (1962). There was nothing in the instrument indicating that more than a bare royalty interest was intended to be conveyed. Cosgrove, 230 Kan. at 712-13.
The Cosgrove opinion relied on Lathrop as to the application of the rule against perpetuities to the royalty interest and reinforced our Kansas rule that production is the vesting event when it said:
“Even if an oil and gas lease were required to be executed within the time prescribed by law, there would still be no vesting of title until royalty becomes due and payable to the grantor or his successor. The execution and delivery of an oil and gas lease does not insure that there will ever be any production attributable to the lease. Additionally, as was the situation in Lathrop v. Eyestone, the instrument is not prohibitive of the grantor developing the minerals for himself, without any oil and gas lease being involved. Under such circumstances, there would never be any royalties paid to anyone.” 230 Kan. at 715.
Cosgrove concluded the trial court correctly held the instrument violated the rule against perpetuities and was therefore null and void. Perhaps in response to Justice Herd’s dissent, the opinion further stated: “We are not unmindful that some other jurisdiction might well reach a different result in applying their case law to the issue herein. However, the parties hereto seek no alteration to our existing case law and we see no compelling reason for change.” 230 Kan. at 715.
Justice Herd, in his dissent, said he would reverse Lathrop and make Kansas law conform to the better rule of an Arkansas case, Hanson v. Ware, 224 Ark. 430, 274 S.W.2d 359 (1955). He concluded that the Supreme Court need not go that far to reverse the trial court, stating such could be accomplished by distinguishing Lathrop and using Froelich as authority. 230 Kan. at 725.
Justice Herd had earlier in his dissent quoted from several treatises, Summers, Kuntz, and Williams & Meyers, which were all critical of our Kansas rule. As to Lathrop, he said:
“Lathrop v. Eyestone was written to apply narrowly to sales of a future interest dependent upon a condition precedent to vesting. The majority opinion extends the rule against perpetuities to all sales of oil and gas royalty in Kansas which extend beyond twenty-one years regardless of the wording of the instrument of conveyance. Until now this court has been unwilling to take such a step; for example, in Froelich v. United Royalty Co., 178 Kan. 503, 290 P.2d 93 (1955), modified on reh., 179 Kan. 652, 297 P.2d 1106 (1956), decided subsequent to Lathrop, we held a conveyance comparable to the one we are concerned with to be exempt from the rule against perpetuities because ‘the interest vested immediately.’ 178 Kan. at 509.” 230 Kan. at 722.
The dissent’s reasoning, however, did not cariy the day in Cos-grove, and this precise issue has not been before our Supreme Court in the last 29 years.
The DeLays have asked us to apply the Supreme Court’s reasoning in Drach v. Ely, 237 Kan. 654, 703 P.2d 746 (1985). But in Drach, a will was construed to follow the testator’s intent, and a mineral interest rather than a royalty interest was deemed to have been created. There was no mention in Justice, later Chief Justice Holmes’ opinion in Drach of either Lathrop or Cosgrove, but the following specific rules relating to the application of the rule against perpetuities were stated:
“Where one of two permissible constructions of an instrument renders it violative of the rule against perpetuities, and the other does not, the latter will be adopted. Singer Company v. Makad, Inc., 213 Kan. 725, Syl. ¶ 6, 518 P.2d 493 (1974); Klingman v. Gilbert, 90 Kan. 545, 549, 135 Pac. 682 (1913); 61 Am. Jur. 2d, Perpetuities § 8. The modem tendency is to temper the rule where its rigid application would do violence to an intended scheme for the disposition of property. Singer Company, 213 Kan. at 729. A provision of a will which is invalid as a violation of the rule may be stricken out by the court to allow the testamentary plan to be given effect. In re Estate of Freeman, 195 Kan. 190, 404 P.2d 222 (1965). Thus, it is clear that the rale against perpetuities is not a favorite of the courts.” 237 Kan. at 656-57.
The language in the will subject to construction in Drach was as follows:
“ T give, devise and bequeath the oil, gas and other minerals in and under and that may be produced from the hereinafter described farm lands, which I now own, to my six children
“ ‘It is my will and intention that the mineral rights herein devised shall be and include only the oil, gas and other minerals which may be produced from said premises, and shall not, in any manner, be interpreted or construed as including any of the oil, gas or mineral lease rentals, delay rentals or bonuses which may be payable under any leases upon said real estate-, it being my will and desire that all of the rentals, delay rentals and bonuses payable under any leases upon said real estate shall be payable to the person to whom the specific real estate upon which such rentals are paid is hereinafter given and devised.’ ” 237 Kan. at 655.
The court determined the phrase “in and under and that may be produced from” refers to a mineral interest and not a royalty interest and standing alone does not create any ambiguity. 237 Kan. at 658. Further, the court pointed out there would have been no reason to specify that each child would receive the bonuses and delay rentals on his or her property, if the testator had only meant to convey a royalty interest. 237 Kan. at 658. The court held the interests were mineral interests which vested at the death of the testator and were not void as violating the rule against perpetuities. 237 Kan. at 659.
The DeLays attempt to equate the phrase in the 1924 deed “to the oil, gas or other minerals that may ... be developed under” to the language in Drach stated above “in and under and that may be produced from.” This argument fails to recognize the entire wording of the DeLays’ reservation which reserves “60% of the land owner’s one-eighth interest” may not stop at the word “under,” but rather the entire phrase “to tire oil, gas or other minerals that may hereafter be developed under any oil and gas lease made by the grantee or by his subsequent grantees” must be recognized and this interest is clearly only one of the right to a share of the royalty under an oil and gas lease.
Further, the rules of construction in Drach are to ascertain the intent of the testator, while in our case, the language of the deed must be construed most favorable to the grantees or their successors (in this case, the Ruckers). See Corbin, 195 Kan. at 258.
The language concerning tire disfavor of the rule against perpetuities found in Drach is favorable to the DeLays, but the language of the interest in the oil, gas, and other minerals is not. When the reservation is read in its entirety, as we are directed to do, it is a reservation of a royalty interest which comes into being based on an oil and gas lease “made by the grantee or by his subsequent grantees.”
A third factor earlier stated that is to be considered is the right to lease and receive bonus, delay rental, and royalty which are all rights of a holder of a mineral interest. We are taught by Shepard, that a royalty interest does not carry the right to lease the property for oil and gas development, to join in the execution of leases, or to participate in bonuses or delay rentals. 189 Kan. at 133.
Although the DeLays did execute several ratifications of oil and gas leases, the history and record in this case show the reserved interest has never been equated with the right to lease and receive bonuses, delay rentals, or royalty which is clearly indicative that the reserved interest is that of a royalty interest.
There are, however, other factors which must be considered before we can finally resolve the issue of the validity of the reservation to the DeLays. A critical and possibly determinative fact is that it is a “reservation” and our Supreme Court clearly held in Nelson v. Kring, 225 Kan. 499, 502, 592 P.2d 438 (1979), that “[generally speaking, future interests reserved to or remaining in grantor or in the estate of the testator are not subject to the rule against perpetuities.” Nelson did not involve mineral or royalty interests but was rather an action to construe a charitable trust set up in a will. However, the clear statement above set forth, if applied directly to our situation, would require a ruling that the royalty interest reserved in the 1924 deed is not subject to the rule against perpetuities and, therefore, valid and continuing.
This problem has been recognized by Professor Pierce in the Kansas Oil and Gas Handbook where at § 4.14 dealing with future interests it is stated that in applying the rule against perpetuities the first task is to determine if you have a future interest subject to the rule. If the interest can be classified as the possibility of reverter, right of entry, reversion, and remainder are each deemed “vested” by the law and, therefore, not subject to the rule, relying on Nelson and Commercial National Bank of Kansas City v. Martin, 185 Kan. 116, 121, 340 P.2d 899 (1959). Pierce, at p. 4-20.
However, the bald statement that the rule against perpetuities does not apply to a reservation by a grantor is not without problems as Professor Pierce goes on to state:
“The rule against perpetuities does not apply to interests which the grantor ‘excepts’ from a conveyance, even though the conveyed interest may violate the rule. In Nelson v. King the court notes: ‘Generally speaking, future interests reserved to or remaining in the grantor or in the estate of the testator are not subject to the rule against perpetuities.’ Nelson, 225 Kan. at 502, 592 P.2d at 42. This is because the interest, prior to and after the partial conveyance, is ‘vested’ in grantor. Although enjoyment of the future interest excepted from the grant may be delayed, this is no different from the situation where the grantor retains a possibility of reverter, right of entry, reversion, or remainder. However, application of this exception to the Kansas treatment of royalty will be conceptually difficult. Since Kansas treats ‘production’ as the vesting event, how can a grantor who excepts a perpetual royalty from his grant, prior to production, be presently vested with anything? It is submitted the conceptual problem is not caused by the exception to the rule, but rather by the use of ‘production’ as the vesting event.” Pierce, at p. 4-20.
Our Kansas decisions have not been consistent as to how the rule against perpetuities has been treated when dealing with interests other than royalties.
In Howell v. Cooperative Refinery Ass’n, 176 Kan. 572, 271 P.2d 271 (1954), Howell had put together a block of leases and assigned them to CRA reserving a Vieth overriding royalty with the assignment stating it was also applicable to any extensions or renewal thereof. CRA did not drill on the assigned acreage and the initial lease expired. CRA later obtained a lease on the property and contended the second lease was not a renewal or extension of the first leases and the initial assignment violated the rule against perpetuities as to extensions or renewals.
Our Supreme Court did not rely on the apparent agreement between the parties as occurred some 30 years later in First Nat’l Bank & Trust Co. v. Sidwell Corp., 234 Kan. 867, 678 P.2d 118 (1984). Rather, it held the interest, under which no production had been obtained, vested upon the delivery of the first assignment, “and in such case the rule against perpetuities has no application.” Howell, 176 Kan. at 575.
If the rule of Lathrop that a royally does not vest until production is obtained would have been applied, it would seem that the override in Howell might not vest within 21 years because there was no certainty that production would occur. Lathrop was not discussed or distinguished in Howell.
We have several other cases that seem to limit the application of the Lathrop rule.
In Froelich v. United Royalty Co., 178 Kan. 503, 290 P.2d 93 (1955), modified on reh. 179 Kan. 652, 297 P.2d 1106 (1956), a conveyance of oil and gas royalty which did not share in bonus, rental, or executive right was designated a “mineral interest” and the perpetuities argument was summarily treated by the opinion, stating: “The rule against perpetuities does not apply in this case because United’s grantee interest vested immediately. (Kenoyer v. Magnolia Petroleum Co., 173 Kan. 183, 245 P.2d 176; 70 C.J.S. Perpetuities § 6, p. 580).” 178 Kan. at 509. The fact the interest might vest beyond the perpetuities period was not considered, and Lathrop was not cited.
However, the authority of Lathrop was not diminished and ultimately was reinforced in 1982 by Cosgrove.
We have previously set forth in its entirety the rules regarding the perpetuities problem which were stated in Drach as “not a favorite of the courts.” 237 Kan. at 657.
Similar statements regarding the rule against perpetuities is found in the Sidwell Corp. case which is really an “area of mutual interest” agreement case. The Sidwell Corp. opinion recognizes that “ ‘[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. [Citations omitted.]” 234 Kan. at 875.
The Sidwell Corp. opinion further stated:
“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 estate and did not constitute a restraint upon the alienation of that property.” 234 Kan. at 876.
The Singer Company v. Makad, Inc., 213 Kan. 725, 518 P.2d 493 (1974), decision refused to apply the rule against perpetuities to a shopping center lease, but the 1974 statement referred to above was also mentioned in both the Supreme Court opinion and Judge Rees’ Court of Appeals dissent in Drach v. Ely, 10 Kan. App. 2d 149, 694 P.2d 1310, rev'd 237 Kan. 654 (1985). Judge Rees opined:
“Left for consideration on another day in some similar case is the proposition found in Singer Company v. Makad, Inc., 213 Kan. 725, 729, 518 P.2d 493 (1974), where it is said:
‘[T]he recent trend among legal authorities is to relax the harsh and inflexible application of the [rule against perpetuities] and . . . courts are now disposed to follow one of several tenable theories which will avoid remorseless application of the rule and give effect to the intention of the parties. . . .
‘[Ojur own cases reflect the modern tendency to temper the rule where its rigid application would do violence to the disposition of property.’
See also Cosgrove v. Young, 230 Kan. at 721-725 (dissent).” 10 Kan. App. 2d at 164.
Perhaps Judge Rees was prophetic and our appeal is the case where the application of the rule against perpetuities to oil and gas interests should again be considered by our Supreme Court.
We need not discuss the decisions in this area from other states. It is sufficient to state that Kansas, with the exception of one California case, stands alone in its application of the rule against perpetuities to royalty interests. See 2 Williams and Meyers, Oil & Gas Law § 323, p. 21 (2009), where it is stated:
“It is submitted that the result and reasoning in Hanson v. Ware is sound, as applied to both royalty and to nonexecutive mineral interests, and upon analytical and policy grounds. It should be accepted in all states, and Lathrop v. Eyestone and Dallopi v. Campbell should be repudiated at home and rejected elsewhere.”
It also appears that a change in our Kansas law would not have any serious economic effect on our oil and gas industry. As Professor Pierce states:
“The rule, as applied to the royalty interest, does not attempt to remedy any of the evils for which the rule was created. In First National Bank & Trust Co. v. Sidwell Corp., the court notes the goal of the rule against perpetuities is to keep property freely alienable so as not to exclude it from commerce and development for long periods of time. Perpetual royalty interests, like overriding royalty interests, working interests, and mineral interests are freely alienable and or frequently marketed in all producing states which uphold their validity. The existence of a perpetual royalty interest merely affects the value to be paid for the mineral interest; it in no way restricts or inhibits the ability to sell, develop, or otherwise engage in commerce with, the mineral interest subject to a perpetual royalty interest.” Pierce, pp. 4-23 to 4-24.
Were we to write on a clean slate, our reasoning and result would be different. However, our obligations as members of the Kansas Court of Appeals is clear. We are duly bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. Buchanan v. Overley, 39 Kan. App. 2d 171, 175-76, 178 P.3d 53, rev. denied 286 Kan. 1176 (2008).
The statements in Sidwell, Drach, and Singer indicate our Supreme Court may be susceptible to arguments which would limit the scope and application of the rule against perpetuities to commercial transactions, including the reservation of a royalty interest. However, it is its right and obligation to make such a decision, not our Court of Appeals panel’s.
Because Miller v. Sooy, Lathrop v. Eyestone, and Cosgrove v. Young are existing and binding precedents, we are compelled to follow those decisions and hold the reservation to the DeLays in the 1924 deed was of a royalty interest which is in violation of the rule against perpetuities and, therefore, null and void. This requires us to affirm the district court.
We encourage the DeLays to seek review of our decision and our Supreme Court to accept, review, and determine whether the language found in Sidwell, Drach, and Singer indicates a change in the application of the rule against perpetuities to royalty interests. Such a review could also include an examination of the issue of whether production is to continue to be the vesting event if die rule against perpetuities is to continue to be applied to these transactions.
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Green, J.:
Daniel Hemphill, a beneficiary under The Shore Family Trust (Trust), appeals from a judgment dismissing claims against the surviving trustee, Jay F. Shore, for breach of trust, breach of fiduciary duty, conversion, constructive fraud, and constructive trust. The question in this appeal is whether Hemphill’s claims are barred by the applicable statutes of limitations, statutes of repose, or both. For the following reasons, we determine that Hemphill’s claims are barred by the applicable statutes of limitations and statutes of repose.
On December 28, 1984, the grantors, Lee Shore and Linna S. Shore, created the Shore Family Trust (Trust). The Trust designated the Shores’ two children, Jay F. Shore (Jay) and Susan Hemphill (bk/a Susan L. Shore), as trustees. The principal of the Trust consisted of farm land in Stanton County, Kansas.
Under the provisions of the Trust, income from the Trust was to be paid, in the trustees’ sole discretion, to Jay, Susan, or the issue of Jay or Susan, in such amounts as the trustees may deem necessary to provide for the beneficiaries’ health, education, support, and maintenance. Any income not distributed was to become part of the principal. The Trust provided that if, in the trustees’ sole discretion, the income of the Trust was insufficient to provide for the health, education, support, or maintenance of Jay and Susan, the trustees were allowed to invade the principal of the Trust to the extent the trustees deemed necessary to provide for the benefit of Jay and Susan.
The Trust agreement also relieved the trustees from any and all inventory and accounting duties under K.S.A. 59-1601 et seq. In addition, the Trust agreement expressly waived a “bond for the faithful performance of duties” of the trustees.
The Trust was to terminate upon the death of the survivor of Jay or Susan if not earlier terminated by distribution of all assets under the distribution provisions. Upon termination, the Trust assets were to be distributed as follows: one-half of the remaining assets to the children of Jay, in equal shares, per stirpes; and one-half of the remaining assets to the children of Susan, in equal shares, per stirpes.
Hemphill is Susan’s son. Susan died on January 20,1992, leaving Hemphill as her only child.
On April 8, 2009, Hemphill sued Jay, as the surviving trustee, alleging breach of trust, breach of fiduciary duty, and conversion. He further alleged that shortly after Susan’s death, Jay sold the farm land that made up the principal of the Trust and distributed all or a substantial portion of the proceeds to himself for his own personal use. In support of the breach of trust claim, Hemphill alleged that Jay’s actions were self-dealing and in violation of his obligations under K.S.A. 58a-802. Hemphill also complained that Jay breached the Trust by failing to furnish Hemphill with accountings and reports. In support of the breach of fiduciary duty claim, Hemphill alleged that Jay violated his fiduciary duty and duty of loyalty by converting the principal and income of the Trust to his own personal use.
Later, Hemphill amended his breach of trust claim to include the claims of breach of duty of loyalty and breach of good faith and fair dealing.
Jay moved to dismiss the action, arguing that the applicable statutes of limitations barred Hemphill’s claim. Jay attached to his motion a tax return and an affidavit signed by him. Jay stated that all assets of the Trust were distributed in 1995 and a final tax return for the Trust was filed in 1995. Jay further stated that the Trust was terminated in 1995.
In the motion, Jay argued that the statutes of limitations applicable to Hemphill’s claims were K.S.A. 60-513(a)(2) and (4). K.S.A. 60-513(a)(2) provides a 2-year statute of limitations period for “talcing, detaining, or injuring personal property, including actions for the specific recovery thereof.” K.S.A. 60-513(a)(4) imposes a 2-year statute of limitations for “injury to the rights of another, not arising on contract, and not herein enumerated.” Jay also argued that the statute of repose found in K.S.A. 60-513(b) applied. K.S.A. 60-513(b) provides that for certain causes of action, including those sounding in negligence: “[I]n no event shall such an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action.”
Jay stated in his motion that all Trust assets were distributed in 1995 and that the Trust was fully terminated in that year. He further argued that because the Trust was fully terminated in 1995, any of his actions which could form a basis for Hemphill’s claims occurred in 1995 at the latest. He further contended that the latest Hemphill could have brought his claim was in 2005 under the 10-year statute of repose.
Jay also argued that if the trial court determined that K.S.A. 60-513(a)(2) and (4) were not the applicable statutes of limitations, then the statute of limitations found in the Kansas Uniform Trust Code (KUTC) would apply. See K.S.A. 58a-1005. Jay maintained that because Hemphill was a minor when the Trust was terminated, K.S.A. 60-515(a) applied. Under K.S.A. 60-515(a), Hemphill had until 1 year after he turned 18 to bring his claim. Moreover, K.S.A. 60-515(a) provides a statute of repose: “[N]o such action shall be commenced by or on behalf of any person under the disability more than eight years after the time of the act giving rise to the cause of action.” Jay asserted that Hemphill would have had 8 years from the time the Trust was terminated to bring his cause of action. Jay argued that the latest Hemphill could have filed his claim was in 2003 under K.S.A. 60-515(a).
Hemphill responded to Jay s motion to dismiss, requesting that Jay s motion be treated as a motion for summary judgment because Jay furnished the trial court with matters outside the pleadings. He further contended that summary judgment was inappropriate because ■ discovery was not complete. Hemphill further maintained that the statutes of limitations did not bar his claims. He asserted that a breach of trust claim is governed by the statute of limitations concerning fraud and that he had 2 years from the time the fraud was discovered to file his claim. Hemphill also contended that Jay’s fraudulent and wrongful conduct prevented him from filing his claims within the period of the applicable statutes of limitations and that any statute of Hmitations should be legally and equitably tolled.
Hemphill also moved for leave of court to again amend his petition. Hemphill requested that he be allowed to add claims of constructive fraud and constructive trust. Hemphill alleged that Jay’s conduct was a breach of his legal and equitable duties. He further alleged that a confidential relationship existed between Jay and Hemphill and that Jay’s actions were a betrayal of that relationship. In the amended petition, he requested a constructive trust be imposed on the property of the Trust for the benefit of the beneficiaries.
After hearing arguments of the parties, the trial court granted both Hemphill’s motion to file a second amended petition and Jay’s motion to dismiss. The trial court first determined that the Trust was a discretionaiy trust and that it was in Jay’s sole discretion to determine when it was necessary to invade the principal. The trial court further found that Hemphill had failed to allege any specific acts of fraudulent conduct of misuse or theft of any trust assets. The trial court further determined that the applicable statute of limitations was not tolled and that Hemphiirs claims were filed outside the period prescribed by the statute of limitations.
I. Standards of Review
When a trial court has granted a motion to dismiss for failure to state a claim, an appellate court must assume as true all well-pleaded facts in plaintiff s petition, along with any inferences that can be reasonably drawn therefrom. Rector v. Tatham, 287 Kan. 230, 232, 196 P.3d 364 (2008). Nevertheless, the appellate court is not required to accept conclusoiy allegations as to the legal effects of the events if the allegations are not supported or are contradicted by the description of events. Halley v. Barnabe, 271 Kan. 652, 656, 24 P.3d 140 (2001). “The appellate court then decides whether those facts and inferences state a claim based on plaintiff s theory or any other possible theory. If so, the dismissal by the district court must be reversed. [Citation omitted.]” 287 Kan. at 232.
In addition, the issue before us requires interpretation of several statutes: “Interpretation of a statute is a question of law, and an appellate court’s review is unlimited. An appellate court is not bound by the district court’s interpretation of a statute. [Citation omitted.]” State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003). The trial court’s determination requires us to interpret the applicability of the statutes of limitations and repose.
II. Rreach of Fiduciary Duty and Conversion Claims
Hemphill argues that the trial court erred in dismissing his claims as being barred by the statutes of limitations. Nevertheless, Hemphill’s breach of fiduciary claim (count II) and the conversion claim (count III) under his second amended petition are barred by the applicable statutes of limitations. In his second amended petition, Hemphill states that Jay sold the farm land that made up the principal of the Trust and distributed all or a substantial portion of proceeds to himself shortly after the cotrustee’s death on January 20, 1992. Black’s Law Dictionary 1379 (6th ed. 1990) defines “shortly after” as follows: “In point of time, a relative term, meaning in a short or brief time or manner; soon; presently; quickly.” Based on Hemphill’s petition, this would mean that Jay breached his fiduciary duty and converted the assets in the Trust in 1992 or 1993, or both. During oral argument, Hemphill conceded that some of the farm land was sold during this period.
Hemphill’s claim for conversion is barred by the 2-year statute of limitations period contained in K.S.A. 60-513(a)(2) or by the 10-year statute of repose period under K.S.A. 60-513(b). Moreover, Hemphill’s claim for breach of fiduciary duty is barred by the 10-year statute of repose period contained in K.S.A. 60-513(b).
K.S.A. 60-513(b) states that certain causes of action, including those sounding in negligence, “shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury... but in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action.” Although Hemphill correctly points out that this 10-year statute of repose is not applicable to claims sounding in fraud under K.S.A. 60-513(a)(3), there is no such limitations with respect to its application to claims arising under K.S.A. 60-513(a)(2) and (a)(4), as in the present case. Based on Hemphill’s second amended petition that Jay breached his fiduciary duty and converted the assets of the Trust in 1992 or 1993, the 10-year statute of repose under K.S.A. 60-513(b) commenced to run, at the latest, by 1993, giving Hemphill until 2003 to present the previously mentioned claims against Jay. Because he failed to do so, these claims are also time barred by the statute of repose.
Moreover, although Hemphill did not turn 18 until September 9, 2005, K.S.A. 60-515(a) deals with the effect of a plaintiff s minority or disability on the running of a statute of limitations. That section states as follows:
“[I]f any person entitled to bring an action, other than for the recovery of real property or a penalty or a forfeiture, at the time the cause of action accrued or at any time during tihe period the statute of limitations is running, is less than 18 years of age, . . . such person shall be entitled to bring such action within one year after the person’s disability is removed, except that no such action shall be commenced by or on behalf of any person under the disability more than eight years after the time of the act giving rise to the cause of action.” K.S.A. 60-515(a).
The statute of repose under K.S.A. 60-515(a) limits the time during which a cause of action can arise to 8 years after the time of the act giving rise to the cause of action. Because the act occurred in 1993, at the latest, Hemphill's actions were time barred because his petition was filed beyond the 8-year period under K.S.A. 60-515(a).
III. Breach of Trust Claim
In addition, Hemphill’s breach of trust claim (count I) under his second amended petition is time barred by an applicable statute of limitations. In support of his breach of trust claim, Hemphill cites K.S.A. 58a-802 under the KUTC. The KUTC went into effect on January 1, 2003. See K.S.A. 58a-101 et seq. Hemphill asserts in his amended petition that Jay “continues to commit breaches of his trust by failing to provide Plaintiff with accountings and reports as required by the [KUTC] and applicable prior laws.” Nevertheless, the KUTC states that “an act done before the effective date of this act is not affected by this act.” K.S.A. 58a-1106(a)(5). As stated earlier, the Trust was created on December 28,1984, before the enactment of the KUTC. Moreover, the KUTC states: “If a right is acquired, extinguished, or barred upon the expiration date of a prescribed period that has commenced to run under any other statute before the effective date of the act, that statute continues to apply to the right even if it has been repealed or superseded.” K.S.A. 58a-l 105(b).
Because Jay’s alleged wrongdoing, fading to furnish Hemphill with accountings and reports, occurred before the effective date of the KUTC, the breach of trust claim is time barred by K.S.A. 60-511(1). Under Article VII, paragraph D, of the Trust agreement, the settlors relieved the trustee from any and all inventory and accounting duties under K.S.A. 59-1605 and K.S.A. 59-1606. See K.S.A. 59-1607 (gives a settlor of any trust the power, by provision in the instrument creating the trust, to reheve the trustee from any and all inventory and accounting duties). The Trust agreement, under Article VII, paragraph K, however, required, the trustee to “render periodic reports at least annually, to each beneficiary then eligible to receive the current income of the trust.” For the purpose of this opinion, we will assume that Hemphill was an eligible beneficiary entitled to receive such reports. As discussed ear lier, Hemphill’s second amended petition stated that Jay sold the farm land that made up the principal of the Trust and distributed all or a substantial portion of the proceeds to himself, at the latest, by 1993. As a result, Hemphill would have had until 1998 to bring a claim against Jay based on his failure to make reports to eligible beneficiaries as required by the Trust agreement. See K.S.A. 60-511(a) (An action shall be commenced within 5 years upon any agreement, contract, or promise in writing.).
Hemphill implicitly concedes that all of his claims against Jay are time barred by one or more of the applicable statutes of limitations or statutes of repose except for two claims. At the end of his brief, Hemphill mentions only two claims that may have tolled the statutes of limitations:
“For the reasons set forth above, the plaintiff urges the Court of Appeals to adopt the reasoning of the Kansas Supreme Court in Jennings and the other authorities cited above and to find that the statue of limitations has been tolled with respect to the plaintiff s breach of trust and constructive fraud claims.”
Moreover, Hemphill concedes in his brief that both his breach of trust and constructive fraud claims are governed by K.S.A. 60-513(a)(3). Based on his second amended petition, Hemphill treats his breach of trust claim under his constructive fraud claim (count IV).
IV. Constructive Fraud Claim
This brings us to Hemphill’s constructive fraud claim against Jay. Our Supreme Court in Nelson v. Nelson, 288 Kan. 570, 583, 205 P.3d 715 (2009), defined constructive fraud as
“ ‘ “ ‘a breach of a legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others or violate a confidence, and neither actual dishonesty [n]or purpose of intent to deceive is necessary.’ ” [Citation omitted.] Two additional elements must also be proven in order to establish constructive fraud: (1) a confidential relationship, and (2) a betrayal of this confidence or a breach of a duty imposed by the relationship. [Citation omitted.]’ Schuck v. Rural Telephone Service Co., 286 Kan. 19, 26,180 P.3d 571 (2008).”
Notwithstanding the general liberality of notice pleading, a claim of fraud is one of those matters that must be pleaded “with partic ularity.” K.S.A. 60-209(b). Our Supreme Court, however, has not determined “whether the heightened standard of pleading fraud with particularity applies when constructive fraud is being pled” in Kansas. Nelson, 288 Kan. at 583.
In acknowledging that there is a split of authority on whether the heightened standard of pleading fraud with particularity applies to a constructive fraud claim, our Supreme Court in Nelson stated the following:
“Although a federal district court applying Kansas law regarding constructive fraud and tire federal counterpart to K.S.A. 60-209(b) — Federal Rules of Civil Procedure (Rule) 9(b) — has stated that particularity is required when pleading constructive fraud {Geer, 242 F.Supp.2d at 1024), there is a split of authority on the question. Compare, e.g., 3D Global Solutions, Inc. v. MVM, Inc., 552 F4. Supp. 2d 1, 8 (D.D.C. 2008) (dismissing constructive fraud claim for failure to satisfy particularity requirements of Rule 9[b]); In re Merrill, 343 Bankr. 1, 9 (Bankr. D. Me. 2006); Town of Geraldine v. Montana Municipal Ins. Authority, 347 Mont. 267, 274, 198 P.3d 796, 801 (2008) (incorporating allegations of other counts and stating the ‘ “misleading behavior described above constitutes constructive fraud” ’ lacks particularity); Mortarino v. Consultant Eng. Services, 251 Va. 289, 295, 467 S.E.2d 778 (1996) (rejecting a claim for constructive fraud because the plaintiff ‘failed to plead, with the requisite degree of particularity, facts which support all the elements of [the] cause of action’) with, e.g., In re Allou Distributors, Inc., 387 Bankr. 365, 385 (Bankr. E.D.N.Y. 2008) (‘The particularity requirement of Rule 9[b] applies only if actual, as opposed to constructive, fraud is alleged.’); Cendant Corp. v. Shelton, 474 F. Supp. 2d 377, 380 (D. Conn. 2007) (‘Courts have not applied Rule 9[b] to claims of constructive, rather than actual, fraud.’); Rosales v. AT&T Information Systems, Inc., 702 F. Supp. 1489, 1498 (D. Colo. 1988) (adopting position that Rule 9[b] is inapplicable to constructive fraud claims); Terry v. Terry, 302 N.C. 77, 83, 273 S.E.2d 674 (1981) (‘claim of constructive fraud does not require the same rigorous adherence to elements as actual fraud’).” Nelson, 288 Kahn. At 583-84.
Upon concluding that the plaintiff in Nelson had not asserted a constructive fraud claim, our Supreme Court declined to decide the issue of whether the heightened standard of pleading fraud with particularity applies to a constructive fraud claim in Kansas. 288 Kan. at 584.
Like the parties in Nelson, the parties here do not acknowledge the lack of Kansas authority or the split of authority in other jurisdictions on this issue. See 288 Kan. at 584. Nevertheless, we are persuaded by the reasoning in the numerous court decisions that have held that the specificity in pleading requirement applies to a constructive fraud claim. For instance, in the federal district court case of Anderson v. Franklin, 2010 WL 742765, at *8 (E.D. Mich. 2010) (unpublished opinion), the court recognized that the specificity in pleading requirements for fraud are equally applicable to a constructive fraud claim:
“Although plaintiff need not plead or prove defendants’ intent to succeed on her constructive fraud claim, [Fed. R. Civ. Proc.] Rule 9(b) does not require specificity in pleading with respect to fraudulent intent. [Citation omitted.] Rather, Rule 9(b) requires specificity with respect to the acts, statements, or omissions alleged to have been fraudulent. These elements are equally present in a claim of constructive fraud, and thus the courts have applied Rule 9(b) to all species of constructive fraud claims. [Citations omitted.]”.
See Sonoma Foods, Inc. v. Sonoma Cheese Factory, LLC, 634 F. Supp. 2d 1009,1021 (N.D. Cal. 2009) (granting motion to dismiss counterclaim for constructive fraud where complaint did not meet heightened pleading standard required for fraud); Taylor v. Feinberg, 2009 WL 3156747, at °5 (N.D. Ill. 2009) (unpublished opinion) (Although constructive fraud does not require actual dishonesty or intent to deceive, it still amounts to positive fraud and must be pled with particularity.); Promotional Management Group, Inc. v. Hsieh, 2009 WL 2849630, at *7 (W.D. Tex. 2009) (unpublished opinion) (Common law fraud includes a claim for constructive fraud, and such a claim must meet the heightened pleading requirements under Fed. R. Civ. Proc. 9[b].).
We pause to point out that even where a court has held that a constructive fraud claim requires less particularity in pleading requirements than actual fraud, it declared that a plaintiff must still allege particular facts and circumstances sufficient to create a constructive fraud claim. Specifically, in Terry v. Terry, 302 N.C. 77, 83, 273 S.E.2d 674 (1981), the North Carolina Supreme Court, in recognizing that a claim of constructive fraud does not require the same rigorous adherence to elements as actual fraud, stated as follows:
“In stating his cause of action [for constructive fraud, which arises upon a breach of a confidential or fiduciary relationship], it is not sufficient for plaintiff to allege merely that defendant had won his trust and confidence and occupied a position of dominant influence over him. Nor does it suffice for him to allege that the deed in question was obtained by fraud and undue influence. ... It is necessary for plaintiff to allege facts and circumstances (1) which created the relation of trust and confidence, and (2) (which) led up to and surrounded the consummation of the transaction in which defendant is alleged to have taken advantage of his position of trust to the hurt of plaintiff.”
Thus, the court held that although constructive fraud requires less particularity than actual fraud based upon the nature of the claim, the plaintiff must still allege particular facts and circumstances to support a constructive fraud claim. 302 N.C. at 84-85.
Nevertheless, like the cases mentioned previously, we are persuaded by the analysis of courts that have applied the specificity in pleading requirement to a constructive fraud claim. In the Kansas federal district court decision of Geer v. Cox, 242 F. Supp. 2d 1009, 1024 (D. Kan. 2003), the court, in applying Kansas law and K.S.A. 60-209(b) and determining that the plaintiff did not plead actual fraud or constructive fraud, stated:
“Any claim of fraud must be pleaded with particularity. This means that to survive a motion to dismiss, an allegation of fraud must set forth the time, place, and contents of the false representation, the identity of the party making the false statements and the consequences thereof.”
Here, Hemphill attached to his second amended petition, as Exhibit A, a true and correct copy of the Shore Family Trust. See K.S.A. 60-209(h). Under Article IV, paragraph B.l, the provisions of the Trust dealing with the distribution of the income and principal of the Trust, stated as follows:
“During the lifetimes of Jay F. Shore and Susan L. Shore, the Trustee, in said Trustees sole discretion, shall pay the income of the Shore Family Trust to Jay F. Shore and Susan L. Shore and/or their issue, in such amounts as the Trustee may deem necessary to provide for said income beneficiaries’ health, education, support or maintenance. . . .
“In the event the income of The Shore Family Trust is Insufficient, in the Trustee’s sole discretion, to provide for the health, education, support or maintenance of Jay F. Shore and Susan L. Shore, the Trust may invade the principal of The Shore Family Trust to the extent said Trustee deems necessary to provide for the benefit of Jay F. Shore and Susan L. Shore.” (Emphasis added.)
Hemphill’s second amended petition alleges that “[s]hortly after Susan L. Shore’s death, the Trust’s remaining trustee, Defendant, sold the farm ground that previously comprised the principal of the Trust and distributed all or a substantial portion of the proceeds to himself, which proceeds were upon information and belief, used by Defendant for his own personal purposes.” This allegation does not identify the time, place, or content of the sale of the “farm ground.” Moreover, the allegation does not assert anything was improper or fraudulent about the sale of the farm land or about the distribution of the proceeds from the sale of the farm land.
As stated earlier, Hemphill filed suit in this matter on April 8, 2009. Even the latest period of the alleged wrongdoing — the selling of the farm land and the misappropriation of the proceeds from the sale of the farm land in 1993 — occurred over 15 years before the filing of the suit. Hemphill has failed to either plead or present any facts which indicate when the alleged fraud was discovered. In addition, the petition fails to allege that the fraud was not and could not have been discovered earlier than 2 years preceding the commencement of suit on April 8, 2009.
Our Supreme Court has held that the burden of pleading and proving the applicability of the affirmative defense of the statute of limitations rests on the defendant. Nevertheless, the plaintiff bears the burden of proving facts sufficient to toll the statute of limitations. Slayden v. Sixta, 250 Kan. 23, 26, 825 P.2d 119 (1992). Consequently, to avoid the bar of the statute of limitations in a cause of action for fraud, it was incumbent upon Hemphill to state, with particularity, facts, rather than conclusions, which excused his failure to learn of the fraud within the statutory period.
What is particularly troubling in the present case is that when Hemphill filed his second amended petition, he was aware of Jay’s argument that his claims were outside of the applicable statutes of limitations. Hemphill’s motion to file his second amended petition was made in direct response to Jay’s motion to dismiss, in which Jay alleged that Hemphill’s claims were barred by the applicable statutes of limitations and statutes of repose and that Hemphill had failed to allege fraud or fraudulent concealment to bring him within K.S.A. 60-513(a)(3). Despite being given multiple chances to adequately plead his cause of action and being notified by Jay that he had failed to assert a fraud claim that placed him outside of the applicable statutes of limitations, Hemphill still did not set forth sufficient facts and circumstances in his second amended petition that excused his failure to learn of the alleged fraud during tire Kmitations period.
Because Hemphill failed to allege that he discovered the fraud less than 2 years before the commencement of his suit, Hemphill’s amended petition fails to show that his suit toUed the statute of Kmitations under K.S.A. 60-513(a)(3). This is especially true when Hemphill’s amended petition alleged facts (shortly after Susan L. Shore’s death on January 20,1992, Jay sold the farm land that made up the principal of the Trust and distributed all or a substantial portion of the proceeds to himself) which would have reasonably put Hemphill upon notice of the alleged fraud and thus start the running of K.S.A. 60-513(a)(3) more than 2 years before the commencement of the suit. Indeed, the facts alleged in HemphiU’s amended petition showed that his fraud claim was barred by K.S.A. 60-513(a)(3). Moreover, no facts were alleged which would negate this defense.
In addition, the second amended petition alleges that the “[defendant continues to commit breaches of his trust by fading to provide Plaintiff with accounts and reports as required by the Kansas Uniform Trust Code and applicable prior laws.” This allegation fails to allege with specificity how Jay’s failure to furnish Hemphill with accountings and reports were acts of fraudulent concealment. Moreover, the alleged failure to furnish Hemphill with accounts and reports, in and of itself, could not damage HemphiK; only the underlying acts of Jay selKng the farm land and his alleged misappropriation of the proceeds from the sale of the farm land could arguably damage Hemphill.
Additionally, the Trust agreement, under Article VII, paragraph G, gave the trustees discretion as to whether to make an accounting to the beneficiaries: “The Trustee may render an accounting at any time to the beneficiaries of the trusts created herein.” (Emphasis added.) In particular, the Trust agreement states that an accounting may be furnished to only those beneficiaries who have had a trust created. Hemphill fails to assert in his second amended petition whether a trust had ever been created for him.
Further, the second amended petition alleges the following:
“22. Defendant’s conduct was a breach of a legal and equitable duty which, irrespective of his moral guilt, is fraudulent because of its tendency to deceive others and violate a confidence owed to the beneficiaries of the Trust.
“23. A confidential relationship existed between Defendant and Plaintiff when Defendant undertook the actions described herein, and Defendant’s actions were a betrayal of this relationship.”
These extremely conclusory allegations do not adequately plead fraud with the particularity necessary to satisfy K.S.A. 60-209(b). Moreover, under Article IV, paragraph B.l, the Trust agreement states as follows:
“In the event the income of the Shore Family Trust is insufficient, in the Trustee’s sole discretion, to provide for the health, education, support or maintenance of Jay F. Shore and Susan L. Shore, the Trustee may invade the principal of The Shore Family Trust to the extent said Trustee deems necessary to provide for the benefit of Jay F. Shore and Susan L. Shore.”
Here, the Trust agreement does not require the trustees to consider the beneficiaiy’s other assets in making a distribution. Thus, the trustees could not consider outside resources in making a distribution. When all is considered, Hemphill has failed to plead with specificity how Jay, as the surviving trustee, betrayed the confidence that Hemphill had placed in him or how Jay breached a duty imposed by the relationship.
Finally, based on the above analysis, Hemphill has failed to state a cause of action for constructive fraud that would avoid the 10-year statute of repose. As set out previously, K.S.A. 60-513(b) provides that “in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action.” While claims of fraud and fraudulent concealment make the statute of repose inapplicable, the facts of this case, as alleged in Hemphill’s second amended petition, fall short of establishing fraud or fraudulent concealment.
Specifically, nothing in Hemphill’s second amended petition explains why he waited for 15 years after the farm land was sold to file his lawsuit or why that delay should be attributed to Jay. Nowhere in Hemphill’s pleadings were there facts and circumstances about what prompted the discovery of the sale of the farmland and
why such discovery should not have occurred sooner. Moreover, as discussed previously, Hemphill has failed to adequately plead with specificity the facts and circumstances giving rise to the elements of a cause of action for constructive fraud. Based on the facts and circumstances contained in the pleadings in this case, we determine that Hemphill has failed to demonstrate that he has any cause of action for constructive fraud that withstands or avoids application of the statute of repose. See Stark v. Mercantile Bank, N.A., 29 Kan. App. 2d 717, 725, 33 P.3d 609 (2000) (holding that where plaintiff failed to demonstrate cause of action for fraud or fraudulent concealment that withstands or avoid statute of repose, the trial court properly granted defendant’s motion to dismiss under K.S.A. 60-212[b][6]).
In summary, because Hemphill’s second amended petition does not state a claim upon which relief can be granted, the trial court properly dismissed Hemphill’s claims against Jay under K.S.A. 60-212(b)(6).
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Pierron, J.:
Steve R. Baber pled no contest to aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(2)(A), a severity level 4 person felony, and aggravated indecent solicitation of a child in violation of K.S.A. 21-3511(a), a severity level 5 person felony.
Baber filed a motion for a dispositional departure and to enforce a plea agreement. He alleged that as part of a plea agreement the State originally agreed to recommend a postrelease supervision term of 36 months but subsequently insisted that lifetime post-release supervision was mandatory pursuant to K.S.A. 22-3717(d)(1)(G). Baber acknowledged the statute requires that individuals convicted of his offenses be subject to lifetime postrelease supervision, but he maintained that a 36-month postrelease supervision period was also specifically authorized under K.S.A. 22-3717(d)(1)(A). Finally, Baber argued that lifetime postrelease supervision constitutes cruel and unusual punishment under the United States and Kansas Constitutions.
During sentencing, Baber argued that K.S.A. 22-3717(d)(l) is unconstitutional because more serious crimes in Kansas carry less than a lifetime postrelease supervision term. The district court found it is a legislative function to determine the severity of a crime and concluded, “Based on what I have in front of me, counsel, I am going to find that the statutes are constitutional.”
Baber was sentenced to 41 months in prison for aggravated indecent liberties and 32 months for aggravated indecent solicitation, the sentences to run consecutive to one another. Finding it had no authority to deviate from K.S.A. 22-3717(d)(l)(G), the district court imposed lifetime postrelease supervision on both counts.
Baber appeals. We affirm.
Baber first contends that his lifetime postrelease supervision term violates the cruel and unusual punishment prohibitions in the Eighth Amendment to the United States Constitution and Section 9 of the Kansas Constitution because more serious offenses in Kansas carry a lesser postrelease supervision term. He does not divide his analysis between the two provisions, nor does he specifically challenge the statute. However, the sentence he is attacking is prescribed by K.S.A. 22-3717(d)(l)(G), and an attack on the sentence is necessarily an attack on the statute.
The constitutionality of a sentencing statute presents a question of law over which this court exercises unlimited review. State v. Allen, 283 Kan. 372, 374, 153 P.3d 488 (2007). “A statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so.” Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 629, 176 P.3d 928 (2008).
K.S.A. 22-3717(d)(l)(G) provides that an individual convicted of a sexually violent crime committed on or after July 1, 2006, who is released from prison “shall be released to a mandatoiy period of postrelease supervision for the duration of the person’s natural life.” Included in the definition of sexually violent crimes are aggravated indecent liberties with a child and aggravated indecent solicitation of a child. K.S.A. 22-3717(d)(l)(G)(2)(C), (G). It is this postrelease supervision term with which Baber takes issue.
“Punishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). In other words, imposing a postrelease supervision term in and of itself is not a cruel and unusual method of punishment, but it may be constitutionally impermissible if applied in a disproportionate fashion. In Baber s case, he claims the length of the supervision renders the sentence unconstitutional.
The Freeman court set out a three-part test to help in administering die principle set forth above:
“In determining whether the length of a sentence offends the constitutional prohibition against cruel punishment three techniques should be considered:
“(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;
“(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and
“(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.” 223 Kan. at 367.
It should be noted that use of these factors is in disfavor if analyzing any aspect of a criminal sentence other than its length. See State v. Kleypas, 272 Kan. 894, 1031-33, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002).
The Freeman factors include both legal and factual inquiries, and no single factor controls the outcome. State v. Mondragon, 289 Kan. 1158, 1163, 220 P.3d 369 (2009). “Ultimately, one consideration may weigh so heavy that it directs the final conclusion,” but “consideration should be given to each prong of the test.” State v. Ortega-Cadelan, 287 Kan. 157, 161, 194 P.3d 1195 (2008). Particularly where the focus of an argument is proportionality, “the factual aspects are a necessary part of the overall analysis.” 287 Kan. at 161.
Baber has failed to rebut the presumption that K.S.A. 22-3717(d)(1) is constitutionally valid. Relying exclusively, by his own admission, on the second Freeman factor, he argues that a lifetime postrelease supervision sentence is disproportionate to other sentences in Kansas. He provides the example of second-degree murder, which, with Baber’s criminal history score, would carry a presumptive sentence of 165-155-147 months in prison, significantly more than the presumptive sentence for the crimes of which he was convicted. However, he points, out, the postrelease supervision term would only have been 36 months. See K.S.A. 21-4704(a); K.S.A. 22-3717(d)(l)(A).
The fact that a murder conviction carries a shorter postrelease supervision term does not by itself affect the sentencing statute’s validity. Baber puts forth no argument as to why the legislature should not be permitted to require individuals convicted of sex crimes to remain under supervision longer than those convicted of murder. While the second prong of the Freeman analysis may render this arrangement suspect in isolation, it is not sufficient on its own to invalidate the statute. It might be argued that due to the nature of the crime here, lifetime supervision might well be advisable.
Baber presents no arguments or evidence regarding the other two Freeman factors. Although one consideration may weigh so heavily as to dictate the final result, consideration is to be given to each prong of the Freeman test. Here, the first prong is completely ignored. Baber briefly mentioned in his motion for a departure sentence that he was a 37-year-old male with no prior criminal history, but he abandoned that argument during sentencing and on appeal. It is impossible to determine anything about Baber’s character because no evidence was presented in the context of the constitutional challenge. The third Freeman prong was considered only to the extent that Baber informed the district court that his limited research uncovered laws in other jurisdictions that are both less harsh and more severe than Kansas, so he did not “think there was anything compelling that would be helpful to the court.”
Essentially, Baber seeks to have K.S.A. 22-3717(d)(l)(G) struck down on the basis of his one point involving murder sentences.
Baber seems to acknowledge the paucity of his evidence when he argues in the alternative that “if the Court determines that an analysis of only the second prong of the Freeman factors is inadequate to make a constitutional finding,” the case should be remanded for further findings regarding the other prongs. In so arguing, Baber relies on State v. Seward, 289 Kan. 715, 217 P.3d 443 (2009). There, the Supreme Court had to determine whether Seward had preserved his constitutional challenges to K.S.A. 21-4643 for appeal. The court found that the challenges were not a surprise to the State since they were mentioned and raised at one point in the district court and the judge merely failed to rule upon them. 289 Kan. at 718. The court also noted that counsel failed to move the district court pursuant to Supreme Court Rule 165 (2009 Kan. Ct. R. Annot. 239) for further findings, but considering various circumstances present in the case, the court was willing to remand for further findings. 289 Kan. at 718-19, 721. The court stated:
“We emphasize that we believe this case to be exceptional. In the future, a defendant who wishes to appeal on the basis of a constitutional challenge to a sentencing statute must ensure the findings and conclusions by the district judge are sufficient to support appellate argument, by filing of a motion invoking the judge's duty under Rule 165, if necessary.” 289 Kan. at 721.
Seward is not helpful to Baber. Rule 165 requires a judge, in all contested matters, to state the controlling facts and legal principles. 2009 Kan. Ct. R. Annot. 239. A litigant who fails to object to inadequate Rule 165 findings and conclusions may not make an argument on appeal that would depend upon what is missing. Seward, 289 Kan. at 720-21.
The present case does not involve inadequate findings and conclusions by the district court. Indeed, the court made findings regarding all the evidence offered by Baber. Rather, this is a case involving inadequate evidence. Baber offered the court very little on which to make any findings or to base a finding of unconstitutionality. What Baber really wants is another chance to prove his case to the district court. That is not the purpose of a remand. There is nothing exceptional in the manner of Seward that would require this court to remand this issue.
We also note we have no idea what evidence, if any, Baber might be able to present in support of his position.
Having a statute declared unconstitutional is not meant to be an easy task. The legislature is presumed to have acted constitutionally, and Baber has failed to come forward with any evidence that it did otherwise in this case. The district court is affirmed.
Baber next claims that the district court possessed the discretion to sentence him to a shorter postrelease supervision term under a different statute. This claim requires interpretation of a statute, which is a question of law over which this court exercises unlimited review. State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008).
Baber was convicted of violating K.S.A. 21-3504(a)(2)(A), a severity level 4 crime. K.S.A. 22-3717(d)(l)(A) provides that an individual sentenced for a nondrug severity level 1 through 4 crime must serve 36 months on postrelease supervision. This section does not exempt the offenses fisted in K.S.A. 22-3717(d)(l)(G). Baber asserts that the district court possessed the discretion to sentence him under either statute. In support, he argues that, where statutes authorize two different sentences for a given offense, a sentence imposed under either statute is legal.
Baber s claim is without merit. The law is clear that a specific provision within a statute controls over a more general provision within the statute. See In re K.M.H., 285 Kan. 53, 82, 169 P.3d 1025 (2007), cert. denied 555 U.S. 937 (2008). K.S.A. 22-3717(d)(1)(G) expressly addresses the postrelease supervision term to be imposed upon sexually violent offenders. The statute also expressly defines those offenses that require this supervision term, including those of which Baber was convicted. The district court did not have the discretion to ignore this statute and choose to sentence Baber under another statute.
This lack of discretion on the part of the district court was addressed in State v. Ballard, 289 Kan. 1000, 218 P.3d 432 (2009), which rejected the very point Baber now raises. Ballard pled no contest to aggravated indecent liberties with a child and received as part of his downward durational departure sentence a post-release supervision term of 36 months. The State argued that a lifetime postrelease supervision term is still required even when a defendant receives a departure sentence. The district court agreed and increased the postrelease supervision term to lifetime.
On appeal, Ballard argued that the original sentence was legal and the district court did not have jurisdiction to increase it later. Ballard argued that he could legally be sentenced under either K.S.A. 2006 Supp. 22-3717(d)(l)(A) or (d)(1)(G). The court disagreed and proclaimed his sentence illegal because it was not pursuant to K.S.A. 2006 Supp. 22-3717(d)(l)(G). 289 Kan. at 1012.
Ballard controls. Where a defendant is subject to K.S.A. 22-3717(d)(1)(G), he or she is to be sentenced under that subsection. Any other sentence imposed is illegal.
Finally, as the State correctly points out, there is a problem with the authority Baber cites to support his contention that if there are two different sentences for a given offense, a sentence imposed under either statute is legal. State v. McCoin, 278 Kan. 465, 101 P.3d 1204 (2004), involved a McAdarn issue, involving two different offenses, with identical elements in certain situations, that imposed two different sentences. The court held that the imposition of the sentence authorized by the charge did not make the sentence illegal. 278 Kan. at 468. McCoin is not factually analogous to the present case and does not help Baber.
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Pierron J.:
Valentina Hernandez appeals from her convictions for two counts of attempted first-degree murder, criminal discharge of a firearm at an occupied vehicle, and making a criminal threat. We affirm.
This appeal involves two cases that were tried separately and consolidated for appeal. In 07-CR.-356, Hernandez was charged with two counts of attempted first-degree murder, criminal discharge of a firearm at an occupied building or vehicle, and misdemeanor criminal damage to property. In 07-CR-392, she was charged with making a criminal threat.
07-CR-356
Daniel Lozano was sitting at a Taco Bell drive-through window with Ernesto Magallanes in Liberal, Kansas, when he noticed John Collins and a woman ordering food inside. The woman motioned for Lozano and Magallanes to wait where they were and she left the restaurant. Lozano next saw the woman when she drove around the corner of the building in a green, four-door vehicle and parked. Lozano noticed the car had a Texas license plate. The woman took a gun out of the trunk and placed it on top of the car. Lozano and Magallanes began to drive away, and the woman began shooting at them. Bullets struck the rear or side of the truck and one went through the back window. Lozano described the gun as “a long rifle.”
Lozano testified the woman was wearing Capri pants and a maroon shirt. He testified he got a good look at the woman at the time of the shooting but did not know her name or that she was Collins’ mother. He could not identify Hernandez as the shooter in a police photographic lineup. He actually identified another individual as someone who “land of looked like the shooter.” He did notice a tattoo on the woman’s neck. Magallanes was also unable to identify Hernandez in a photographic lineup right after the shooting.
Jessica Mendez was working at Taco Bell on the day of the shooting. She saw the woman firing at the truck. Mendez testified the woman was wearing a maroon shirt that looked like a Dillon’s uniform. Another Taco Bell employee told the police that a woman she had seen in the restaurant around the time of the shooting had a tattoo of “Juan” on her neck. Hernandez has a “Juan” tattoo on her neck.
Detective Lana Gudgel spoke with Hernandez the day of the shooting. She denied being the shooter. Hernandez told a detective investigating the case that one of the cars she owned was a green Daewoo registered in Texas.
An evidence and crime scene technician collected three bullet casings at the Taco Bell. Liberal Chief of Police Al Sill executed a search warrant on Hernandez’ home, where he found a .22 caliber shell casing on the property. A firearms tool marks examiner with the FBI concluded the casings from both scenes were consistent with being fired from the same gun.
Jamie Brock was an inmate at the Seward County jail with Hernandez. Brock testified that Hernandez told her that her son had been involved in a gang altercation with a couple of younger guys. Hernandez and her son went looking for the individuals and found them at Taco Bell where they had “a situation.” According to Brock, Hernandez made a shooting gesture when she said this and stated she had shot at the truck. Brock also testified she understood that the State would drop her drug charges if she testified against Hernandez.
07-CR-392
While in jail, Hernandez placed a telephone call to her father. A recording of the conversation revealed her yelling and screaming at her stepmother, Veronica Hernandez. Hernandez told Veronica that she was going to beat her up or kill her if she was not allowed to speak to her father.
Veronica testified Hernandez seemed to be upset during the telephone call and was not joking. Veronica was not scared or terrorized during the telephone call. She continued the conversation and allowed Hernandez to speak to her father. Veronica did not contact the police; they contacted her.
The jury found Hernandez guilty of both counts of attempted first-degree murder and criminal discharge of a firearm at an occupied building or occupied vehicle. A separate jury convicted Hernandez of making a criminal threat.
In 07-CR-356, Hernandez was sentenced to a controlling term of 445 months’ imprisonment. In 07-CR-392, she received a controlling prison term of 17 months. The sentences were ordered to run consecutively.
Hernandez appeals from both cases.
We first address the question of whether the district court erred in granting Hernandez’ request to not give a lesser included offense instruction on the attempted first-degree murder charges.
When asked during the instructions conference whether Hernandez wished to have the jury receive a lesser included offense instruction on the attempted first-degree murder charges, she declined. She now claims the court erred in acquiescing to her attorney’s request because the jury could have reasonably found her guilty of attempted second-degree murder or attempted voluntary manslaughter. Hernandez obviously did not object to the failure to give a lesser included instruction, so we review the instruction given to determine whether it was clearly erroneous. See K.S.A. 22-3414(3); State v. Cooperwood, 282 Kan. 572, 581, 147 P.3d 125 (2006). An instruction is clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the error had not occurred. State v. Carter, 284 Kan. 312, 324, 160 P.3d 457 (2007).
Hernandez acknowledges that our Supreme Court recently found in a similar scenario that the defendant was precluded by the doctrine of invited error from complaining about the lack of a lesser included offense instruction on appeal. See State v. Angelo, 287 Kan. 262, 280, 197 P.3d 337 (2008). However, she argues Angelo was wrongly decided because the statute, through the use of the word “shall,” requires that a lesser included instruction be given when supported by the evidence regardless of the actions of the parties.
In making her argument, Hernandez appears to overlook other sections of the statute. K.S.A. 22-3414(3) provides, in part: “No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto . . . .” (Emphasis added.) The statute expressly requires an objection as a prerequisite to raising the failure to give such an instruction on appeal. There is no requirement that it be given in every case. Therefore, there is nothing that would preclude lesser included offense instructions from being subject to the invited error doctrine. Hernandez has not shown that Angelo was wrongly decided. She invited the alleged error of which she now complains and is therefore precluded from raising the issue on appeal. See State v. Murray, 285 Kan. 503, 522, 174 P.3d 407 (2008).
We will next consider whether the instructions on intent and premeditation impermissibly lessened the State’s burden to prove attempted first-degree murder.
Hernandez asserts that a number of instructions that were given combined to impermissibly lessen the State’s burden to prove that she committed attempted, premeditated, intentional, first-degree murder. Unlike in other jury instruction issues raised in this appeal, neither party mentions whether Hernandez failed to object to the giving of any of these instructions. No objection is readily apparent in the record. However, giving Hernandez the benefit of the doubt that an objection was lodged, this court must consider the instructions as a whole and not isolate any one instruction. Even if erroneous in some way, instructions are not reversible error if they properly and fairly state the law as applied to the facts of the case and could not have reasonably misled the juiy. State v. McKissack, 283 Kan. 721, 732, 156 P.3d 1249 (2007) (citing State v. Edgar, 281 Kan. 47, 54, 127 P.3d 1016 [2006]).
The instructions of which Hernandez complains read as follows:
Instruction No. 2
“The defendant is charged in count 1 with the crime of Attempted First Degree Murder. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. That the defendant performed an overt act toward the commission of the crime of First Degree Murder of Daniel Lozano;
2. That the defendant did so with the intent to commit the crime of First Degree Murder;
3. That the defendant failed to complete commission of the crime of First Degree Murder; and
4. That this act occurred on or about the 28th day of August, 2007, in Seward County, Kansas.
“An overt act necessarily must extend beyond mere preparations made by the accused and must sufficiently approach consummation of the offense to stand either as the first or subsequent step in a direct movement toward the completed offense. Mere preparation is insufficient to constitute an overt act.
“The elements of the completed crime of First Degree Murder are, as follows:
“To establish this charge, each of the following claims must be proved:
1. That the defendant intentionally killed Daniel Lozano;
2. That such killing was done with premeditation; and
3. That this act occurred on or about the 28th day of August, 2007, in Seward County, Kansas.”
Instruction Ño. 3 is identical except Magallanes’ name is substituted for Lozano’s.
Instruction No. 5 defines premeditation:
“Premeditation means to have thought the matter over beforehand, in other words, to have formed the design or intent to kill before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous, intentional act of taking another’s fife.
“Intentional means conduct that is purposeful and willful and not accidental. Intentional includes the terms ‘knowing’, ‘willful’, ‘purposeful’, and ‘on purpose.’ ”
Hernandez refers to instruction No. 5 as the definitions instruction. Instruction No. 7 reads:
“Ordinarily, a person intends all of the usual consequences of his 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 its burden to prove the required criminal intent of the defendant. This burden never shifts to the defendant.”
Instruction No. 7 will be referred to as the intent instruction.
Hernandez complains that the definitions instruction and the attempted murder instruction correctly require the jury to find that she intended to kill Lozano and Magallanes willfully, purposefully, and not accidentally, but the intent instruction “tells the jury to infer that Ms. Hernandez intended to kill Mr. Lozano and Mr. Magallanes simply because she committed an act that could have led to their deaths.” Therefore, Hernandez concludes the intent instruction created an inference that destroyed the State’s burden to prove beyond a reasonable doubt that she intended to kill Lozano and Magallanes.
To prove first-degree murder, the State must prove that the defendant killed the victim intentionally and with premeditation. K.S.A. 21-3401(a). The legislature has defined intentional as purposeful, willful, and not accidental. K.S.A. 21-3201(b).
Contrary to Hernandez’ assertion, this issue has already been decided adversely to her in State v. Stone, 253 Kan. 105, 853 P.2d 662 (1993). There, the defendant argued that the intent instruction “created a presumption that relieved the State from proving the intent-to-kill element of second-degree murder, thereby violating his constitutional right to due process.” 253 Kan. at 106. The court noted that the instruction clearly stated that the State’s burden to prove the required criminal intent never shifted to the defendant. The court held that the instruction created a permissible inference of intent rather than an improper rebuttable presumption. 253 Kan. at 107.
Hernandez asserts that regardless of whether the instruction is unconstitutional, “the instruction has effectively changed the definition of intentional conduct set forth” in K.S.A. 21-3201(b). This argument is without merit. As Stone noted, the instruction itself references the State’s burden to prove the required criminal intent. In concert with the other instructions given regarding that burden, there can be no real danger that a jury would be misled as to what the State was required to prove. As given, the instructions referenced above properly and fairly stated the law.
Hernandez next claims the district court committed reversible error in giving an outdated eyewitness identification cautionary instruction. Again, she failed to object to the instruction, and it will be reviewed to determine whether the decision to give it was clearly erroneous. See K.S.A. 22-3414(3).
The district court instructed the jury pursuant to PIK Crim. 3d 52.20, which is based upon factors set out in Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972). The instruction lists seven factors the jury may consider when considering eyewitness testimony.
Our Supreme Court considered the instruction in State v. Hunt, 275 Kan. 811, 69 P.3d 571 (2003): “The Biggers approach has been the law in Kansas and in the majority of other states.” 275 Kan. at 816. The court then considered another method of analysis set forth in Utah in State v. Ramirez, 817 P.2d 774 (Utah 1991), which “differs from the Kansas model by using slightly different factors to evaluate the reliability of the identification.” 275 Kan. at 817.
The factors in Ramirez for evaluating the reliability of eyewitness identifications are: (1) the opportunity of the witness to view the actor during the event; (2) the witness’ degree of attention to the actor at the time of the event; (3) the witness’ capacity to observe the event, including his or her physical and mental acuity; (4) whether the witness’ identification was made spontaneously and remained consistent thereafter or whether it was the product of suggestion; and (5) the nature of the event being observed and the likelihood that the witness would perceive, remember, and relate the incident correctly. 817 P.2d at 781.
The Hunt court examined the five factors set forth in Ramirez and concluded:
“Though three of the four factors differ somewhat from the Biggers factors, they present an approach to the identification issue which heightens, in our view, the reliability of such information.
“We accept the Ramirez model; however, our acceptance should not be considered as a rejection of the Biggers model but, rather, as a refinement in the analysis.
“We conclude that the Ramirez factors should be adopted as the model for examining such issues and that when requested or where such identification is a central issue in a case, a cautionary instruction regarding eyewitness identification should be given.” 275 Kan. at 818.
In State v. Trammell, 278 Kan. 265, 92 P.3d 1101 (2004), the defendant argued that Hunt stood for the proposition that PIK Crim. 3d 52.20 now incorrectly stated the law in Kansas. He argued that Hunt discarded the Biggers factors. The court rejected the defendant’s argument and cited to the language in Hunt that the acceptance of the Ramirez model was not a rejection of the Biggers model, but rather a refinement in the analysis: “In Hunt, this court did not discard the prior analysis under Biggers. Instead, we enhanced the reliability analysis by adding the Ramirez factors to the Biggers factors.” 278 Kan. at 270. The court held that Hunt did not address the validity of PIK Crim. 3d 52.20 and did not support the defendant’s claim that the instruction is erroneous. Trammell, 278 Kan. at 270.
In State v. Reid, 286 Kan. 494, 186 P.3d 713 (2008), the court noted that Trammell left unanswered the continuing viability of PIK Crim. 3d 52.20 as written. Reid also left the question unanswered as the court concluded there was no real possibility a jury would have reached a different verdict had the instruction not been given. 286 Kan. at 517-18.
Hunt and Trammell certainly do not make it clear where the Kansas Supreme Court may be headed with PIK Crim. 3d 52.20 in the future. As it stands, the only word from the court is that there has been no explicit rejection of the Biggers factors. Until this changes, it is abundantly clear that giving the instruction cannot be considered clear error.
We believe there is no real possibility the jury would have reached a different verdict had the instruction not been given. The evidence against Hernandez was nearly overwhelming. Multiple witnesses saw a woman wearing clothes that matched Hernandez’ work uniform shooting at the victims. The perpetrator sported the same “Juan” tattoo on her neck as Hernandez. Bullet casings found at the scene matched those found at her residence. The shooter was driving a green car with a Texas tag; Hernandez owned such a car. A jailhouse informant testified that Hernandez admitted to the crime. Finally, Hernandez’ alibi for where she was at the time of the shooting was not corroborated by anyone.
We are also asked to determine if the district court committed reversible error by giving a portion of the Allen-type instruction. Hernandez failed to object to the instruction at issue and it will be reviewed to determine whether it is clearly erroneous. Hernandez takes exception with the instruction given pursuant to Allen v. United States, 164 U.S. 492, 41 L. Ed. 528, 17 S. Ct. 154 (1896). Specifically, he complains of the language: “Another trial would be a burden on both sides.”
The State concedes the inclusion of this specific language has been found to be error. See State v. Salts, 288 Kan. 263, 266, 200 P.3d 494 (2009). However, the State argues, as it did in Salts, the clearly erroneous standard denies Hernandez relief because there is no real possibility the jury would have rendered a different verdict had the instruction not been given.
The State is correct in its evaluation of the issue. Hernandez relies on some of the eyewitnesses’ inability to identify her in a photographic lineup. However, considering the summary of the evidence provided in the previous issue, there is virtually no chance the jury was persuaded by one line in a one-and-a-half-page instruction to render a different verdict.
Hernandez next claims there was insufficient evidence to support her conviction of making a criminal threat. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after a review of all the evidence, taken in the light most favorable to the State, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Gutierrez, 285 Kan. 332, 336, 172 P.3d 18 (2007).
K.S.A. 21-3419(a)(l) defines a criminal threat as any threat to “[cjommit violence communicated with intent to terrorize another.”
Hernandez contends her conviction cannot stand because the evidence at trial was that she was merely attempting to convince Veronica to put her father on the telephone; there was no evidence of an intent to terrorize from Hernandez’ perspective. Further, Hernandez argues, Veronica did not feel threatened or terrorized.
While some may view Hernandez’ behavior towards her stepmother as merely part of a heated family encounter, the jury apparently determined the words it heard and the manner in which those words were delivered constituted a threat to commit violence accompanied by an intent to terrorize Veronica. Hernandez did threaten to beat and/or kill Veronica. Hernandez’ reliance upon Veronica’s apparent lack of fear is misplaced. The victim’s state of mind is not an element of the crime, only the offender’s intent. Viewing the evidence in the light most favorable to the State, there is no doubt a rational factfinder could have found beyond a reasonable doubt that Hernandez intended to terrorize Veronica.
Finally, Hernandez claims the court used her criminal history score to increase her sentences in both cases without those convictions being proved to a jury beyond a reasonable doubt. Hernandez acknowledges this issue has been previously decided against her in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), and she is including the issue merely to preserve it for federal review.
We are duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Merrills, 37 Kan. App. 2d 81, 83, 149 P.3d 869, rev. denied 284 Kan. 949 (2007). Our Supreme Court has consistently cited Ivory for the proposition that the use of prior convictions for sentencing enhancement is constitutional. See State v. Fischer, 288 Kan. 470, 476, 203 P.3d 1269 (2009). Ivory controls, and Hernandez is entitled to no relief.
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McAnany, J.:
On July 13, 2005, Genevie Gold, Sharon Wright, and Rachel Kannaday were passengers in Stephanie Hoyt’s automobile when it collided with a truck on the Kansas Turnpike. Hoyt was killed, and her three passengers were severely injured.
Hoyt was insured by GEICO Indemnity Insurance Company with liability limits for bodily injury of $25,000 per person and $50,000 per accident. GEICO settled with Gold for $25,000. GEICO offered to settle with Wright and Kannaday for $12,500 each. Neither accepted the offer.
Eight months later, on March 17, 2006, Kannaday petitioned the court to appoint Charles Ball as special administrator of Hoyt’s estate (Estate). That same day Kannaday filed suit against Ball as special administrator of the Estate for her personal injuries, claiming the accident and Kannaday’s injuries were the result of Hoyt’s negligence.
On about April 21, 2006, Ball answered the petition, asserting that while Hoyt’s negligence contributed to the accident, the negligence of others contributed and must be compared pursuant to K.S.A. 60-258a.
On March 23, 2006, GEICO, Hoyt’s insurer, commenced an interpleader action in the federal district court in Kansas against Wright, Kannaday, and others, seeking a disposition of the remaining $25,000 proceeds from Hoyt’s policy.
On August 30, 2006, Kannaday’s attorney sent a proposed settlement agreement to the Estate’s attorney. The agreement provided in part:
"1. Kannaday may present, ex parte, Kannaday s evidence to the District Court of Wyandotte County, Kansas for the Court’s consideration on the judgment to be entered in favor of Kannaday and against the representative of the estate of Hoyt.”
In exchange, Kannaday agreed not to execute on the judgment against any Estate assets but to seek to recover on the judgment only from GEICO. To that end, Ball would assign to Kannaday any claim he or the Estate had against GEICO for bad faith. Ball signed the agreement on September 20, 2006.
On October 16, 2006, the Estate moved for partial summary judgment in the personal injury action, seeking to limit Kannaday s recovery against Hoyt to the $25,000 on deposit in the federal court because of Kannaday s failure to present a timely claim against the Estate as required by the Kansas nonclaim statute, K.S.A. 59-2239(1).
Before the district court could rule on the Estate’s partial summary judgment motion, the federal court, on November 7, 2006, enjoined Kannaday from initiating or prosecuting any other actions to recover the $25,000 which was the subject of the interpleader action. The court also disbursed the $25,000 GEICO deposited in court to Wesley Medical Center for medical services it provided to Kannaday. See GEICO Indem. Ins. Co. v. Kannaday, 2008 WL 576202 (D. Kan. 2008) (unpublished opinion).
On November 27, 2006, the Estate again moved for summary judgment, this time claiming that because the federal court had disbursed all the interpleader proceeds and Kannaday failed to comply with the Kansas nonclaim statute, K.S.A. 59-2239(1), there remained no possible claim against the Estate.
On December 21, 2006, the court ruled on both of the Estate’s summary judgment motions. The court granted partial summary judgment with respect to the first $25,000 of Kannaday’s claim, which was the subject of the federal court interpleader action and the federal court’s injunction. The court denied summary judgment to the Estate with respect to the balance of Kannaday’s claim over $25,000. The court determined that Kannaday had the right to proceed to trial to determine her damages (though the comparative fault issue was still unresolved). However, the court ruled that Kannaday cannot attempt to satisfy any judgment obtained with assets of the Estate because of her failure to comply with K.S.A. 59-2239(1).
On December 27, 2007, Ball executed a second copy of the August 2006 settlement agreement, and on March 17, 2009, Kannaday signed the agreement.
On March 18, 2009, the court held the ex parte hearing described in the settlement agreement. Kannaday, the only witness, testified to her extensive and catastrophic injuries and damages. She testified that she was a passenger in the Hoyt vehicle at the time of the accident. However, Kannaday was asleep in the back seat at the time of the accident so she could offer nothing on the issue of liability. Nevertheless, the court found Hoyt to be at fault, did not consider the possible comparative fault of others, determined Kannaday’s damages to be $7,219,064.37, and entered judgment against the Estate in that amount.
The Estate appeals, claiming (1) the district court erred in denying summary judgment in favor of the Estate on its November 27, 2006, motion and (2) the ex parte judgment against the Estate is void because it is based on an invalid agreement.
The Summary Judgment Proceedings
Our review of summary judgment proceedings is de novo. See Cooke v. Gillespie, 285 Kan. 748, 754, 176 P.3d 144 (2008); Smith v. Kansas Gas Service Co., 285 Kan. 33, 39, 169 P.3d 1052 (2007). We apply the same summary judgment standards applicable in the district court. The parties are well familiar with those standards, which can be found in Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009).
Here, there is no genuine issue of material fact. The question is whether the undisputed facts entitle the Estate to judgment as a matter of law. The Estate argues as follows: Kannaday filed a claim against the Estate beyond the period set forth in K.S.A. 59-2239, the nonclaim statute. K.S.A. 59-2239 is an absolute bar to pursuit of an untimely action. Hoyt had insurance coverage with limits of $25,000 per person and $50,000 per accident. $25,000 was paid to claimant Gold, and the balance was paid into court at the time GEICO filed the federal interpleader action. The federal court has issued a permanent injunction pursuant to 28 U.S.C. § 2361 (2006) enjoining Kannaday from prosecuting any proceeding in any state or federal court affecting the property involved in the interpleader action. The Estate concludes that it is entitled to judgment as a matter of law because: “Plaintiff s claim against the insurance proceeds available to defendant is barred by the federal court’s injunction. Her claim against any amount in excess of the insurance proceeds is barred by her failure to comply with the non-claim statute.”
Kannaday points out certain deficiencies, with which we agree, with respect to the Estate’s arguments. First, K.S.A. 59-2239 on its face is not an absolute bar to this action. Subsection (1) of the statute provides in relevant part: “All demands . . . against a decedent’s estate . . . shall be forever barred from payment unless the demand is presented within . . . four months from the date of first publication of notice ....” K.S.A. 59-2239(1). Kannaday failed to present her demand within the requisite time, and she cannot now demand that the Estate’s personal representative pay her claim from the assets of the Estate. However, subsection (2) provides in relevant part:
“Nothing in this section shall affect or prevent the enforcement of a claim arising out of tort against the personal representative of a decedent within the period of the statute of limitations provided for an action on such claim. . . . Any recovery by the claimant in such action shall not affect the distribution of the assets of the estate of the decedent unless a claim was filed in the district court within the time allowed for filing claims against the estate under subsection (1).” K.S.A. 59-2239(2).
The Estate seems to concede this point by citing in its brief the Kansas Estate Administration Handbook § 4.7, p. 4-3 (6th ed. 1999 Supp.), which states:
“K.S.A. 59-2239(2) does not affect or prevent the enforcement of a tort claim against the personal representative of a decedent within the period of the statute of hmitation for an action on such claim, but only insurance proceeds can be reached if the claim was not filed within the nonclaim period.”
The issue before us is whether GEICO’s policy, which provided liability coverage to Hoyt, is an asset of Hoyt’s estate. The answer is found in Nichols v. Marshall, 491 F.2d 177 (10th Cir. 1974). Nichols involved a similar fatal automobile accident on the Kansas Turnpike. Raymond Nichols was killed in the accident. So was Frank Frombaugh, the negligent driver. After opening a probate estate in Shawnee County for Frombaugh and having Herbert Marshall appointed administrator, Nichols’ widow brought a wrongful death action against Marshall as administrator of the Frombaugh estate in the federal district court in Kansas. Frombaugh was insured by Allstate Insurance Company. Plaintiff obtained a judgment against the defendant at trial and thereafter brought garnishment proceedings against Allstate. Allstate contended that the federal district court lacked jurisdiction to proceed in the garnishment proceeding. It contended that plaintiff needed to present her claim in what was then the probate court of Shawnee County and obtain an allowance of claim from the probate court. The Tenth Circuit Court of Appeals disagreed, stating:
“Such would apparently be the approved procedure if the policy of automobile liability insurance issued Frombaugh by Allstate be truly an asset of Frombaugh’s estate. However, . . . Nichols contends that the automobile liability insurance policy with which we are here concerned is not truly an asset of Frombaugh’s estate. . . . We agree.” 491 F.2d at 181.
The court looked to Schloegl v. Nardi, 92 Ill. App. 2d 302, 234 N.E.2d 558 (1968), which it found to be consistent with Kansas law. The Illinois appellate court observed:
"The Probate Act. . . requires the administrator or executor to inventory the real or personal estate of the decedent. This policy was neither. It provided no funds for distribution to heirs or legatees. It provided no funds for the payment of claims of general creditors of the estate. It was, in the language of the plaintiffs, a ‘unique’ asset. Insofar as it provided for indemnification from harm for judgments obtained, it protected die assets of the decedent. Within its limits and insuring clause it provided a potential fund for the satisfaction of any judgment obtained by a claimant asserting a timely claim under the general statute of hmitations. It was, at best, an inchoate asset of the estate of no intrinsic value which would make it subject to administration or distribution as an ‘asset’ by the decedent’s personal representative.” 92 Ill. App. 2d at 306-07.
Thus, the nonclaim statute does not bar a cause of action against a decedent’s estate commenced within the applicable statute of limitations when the ultimate object of the suit is not estate assets, which would otherwise be available for distribution to heirs or legatees, but rather the assets of the decedent’s liability insurance carrier.
But what about the injunction issued by the federal district court? The Estate argues that the federal court’s order bars Kannaday from prosecuting any proceeding in any state or federal court affecting the property involved in the interpleader action.
The memorandum and order of the federal district court makes clear the extent of the injunction’s reach. The court noted Kannaday’s objection to the granting of an injunction because of the prospect of the injunction interfering with her claim of bad faith against GEICO. The federal district court stated:
“Kannaday appears to misinterpret the scope of the relief sought and that contemplated by die interpleader statutes. Notiling in the relief sought would create some sort of blanket immunity to a separate action against the plaintiff [GEICO] for alleged bad faith. Instead, plaintiff s motion explicitly seeks only to resolve the competing claims against specific property in question, here the proceeds of the policy itself.
“. . . The court's order does not prevent Kannaday from bringing a separate claim which is not tied to these specific funds.”
Thus, the federal court’s injunction reaches only those policy proceeds on deposit with the court, not any possible future claim against GEICO for bad faith failure to settle Kannaday’s claim.
To recap, the Estate claimed it was entitled to judgment as a matter of law because Kannaday’s claim was against the insurance proceeds that were the subject of the interpleader action and the federal district court’s injunction in that action bars her claim. Further, the Estate argues that Kannaday’s claim is barred by her failure to comply with the nonclaim statute. As demonstrated above, neither of these claims withstands scrutiny. The district court did not err in refusing to grant the Estate summary judgment on Kannaday’s claim.
The Ex Parte Trial on Damages
The Estate argues that the judgment entered following the ex parte trial on damages should be reversed because it was the prod uct of an invalid settlement agreement, and the case should be remanded for a new trial.
The Estate makes several arguments to support its claim of invalidity. Because we find the first of these arguments persuasive, we need not address the remaining claims.
The Estate argues that the agreement is invalid because it was not supported by consideration. Specifically, the Estate argues that Kannaday’s promise not to collect any judgment against the Estate was worthless because she was already barred from proceeding against the Estate’s assets by the nonclaim statute.
Kannaday argues that the Estate failed to present this contention to the district court, so it has not been properly preserved for appeal. It is true that the Estate failed to present this argument to the district court. However, this is because the trial proceedings pursuant to the settlement agreement were ex parte and without notice to the Estate. Thus, it had no opportunity to object. Further, it is well established that “[a] void judgment may be attacked at any time by any person affected by it.” Medina v. American Family Mut. Ins. Co., 29 Kan. App. 2d 805, 809, 32 P.3d 205 (2001), rev. denied 273 Kan. 1036 (2002); see Waterview Resolution Corp. v. Allen, 274 Kan. 1016, 1024, 58 P.3d 1284 (2002). Finally, because the Estate’s argument presents a purely legal question, we are in as good a position as the district court would have been to review the Estate’s challenge. See Conner v. Occidental Fire & Cas. Co., 281 Kan. 875, 881, 135 P.3d 1230 (2006); Smith v. Yell Bell Taxi, Inc., 276 Kan. 305, 311, 75 P.3d 1222 (2003). For these reasons we will consider the Estate’s argument regarding the lack of consideration.
It is worth noting that the transaction here was not a unilateral assignment of Hoyt’s rights under the policy. Here we are dealing with a bilateral contract with purported undertakings on each side. All contracts must be supported by adequate consideration. See Mitchell v. Miller, 27 Kan. App. 2d 666, 672, 8 P.3d 26 (2000). Consideration may be any legal benefit or detriment. However, forbearing to prosecute an unenforceable claim is no consideration at all. State ex rel. Ludwick v. Bryant, 237 Kan. 47, 52, 697 P.2d 858 (1985); see In re Estate of Shirk, 186 Kan. 311, 321, 350 P.2d 1 (1960).
Pursuant to the settlement agreement Kannaday received benefits from the Estate, including the ex parte consent judgment and the assignment of potential claims against GEICO. However, Kannaday’s only undertaking in return was that the consent judgment would not be a lien on the Estate’s assets and that she would not seek to execute on her anticipated judgment against the Estate’s assets. Further, the agreement provided that the judgment would not be a personal judgment against Ball, the special administrator, and Kannaday would file a satisfaction of the judgment once the bad faith claim against GEICO was concluded.
In support of the district court denying summary judgment to the Estate, discussed earlier, Kannaday argued: “The plaintiff, admittedly, cannot collect plaintiff s judgment from ‘estate assets.’ ” That correct statement of Kannaday’s rights leads to the conclusion that in this settlement agreement, Kannaday gave up nothing she had with respect to the Estate and the Estate gained nothing in return. Notwithstanding the settlement agreement, Kannaday could not execute on Estate assets because of the bar of the non-claim statute, K.S.A. 59-2239. Further, special administrator Ball was not personally liable for any of Hoyt’s debts in any event. See Stratton v. McCandless, 27 Kan. 296, 301 (1882). Finally, the Estate gained nothing (and Kannaday gave up nothing) by permitting Kannaday to prosecute her bad faith claim against GEICO after entiy of the proposed consent judgment.
Kannaday argues that the consideration for the contract was the avoidance of “a protracted, arduous, and highly contentious trial.” The party that would undergo such a trial would be the Estate. Hoyt is now deceased. We fail to see how a trial would create a hardship for the Estate. Finally, foregoing a trial was certainly no disadvantage to Kannady: she obtained a judgment of over $7 million without subjecting her testimony to the rigors of trial and without the court’s consideration of the possible fault of others besides Hoyt.
The district court proceeded with its ex parte trial based upon the parties having entered into a valid settlement agreement. We conclude that the settlement agreement was invalid because it was not supported by consideration of any kind. Thus, we must set aside the district court’s March 18, 2009, judgment and remand the case for a new trial.
Affirmed in part, reversed in part, and remanded for a new trial. | [
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Leben, J.:
More than 10 years ago, William Dillon was convicted of attempted aggravated indecent solicitation of a child. Beginning in 2003, he was required to register as a sex offender under the Kansas Offender Registration Act. That law requires offenders to periodically report to the sheriff in their county of residence. It originally required the offender to report once during his birth month and then eveiy 6 months thereafter; the legislature amended the law in 2006 to require more frequent reporting—in the offender s birth month and every 4 months thereafter—starting July 1, 2007. K.S.A. 2006 Supp. 22-4904(d); K.S.A. 2006 Supp. 22-4904(c). Failing to report as directed is a felony. K.S.A. 22-4903(a).
Dillon ran afoul of the enhanced reporting requirements in 2008. He reported in Shawnee County in February 2008, his birth
month. Under the new statute, he was therefore required to report again by June 30, 2008. He did not meet this requirement.
Dillon ultimately pled no contest to the failure to report charge. He requested a downward durational departure (i.e., a shorter prison sentence) or a downward dispositional departure (i.e., probation instead of prison) and argued that the presumptive sentence — a minimum of 114 months — was disproportionate to the crime’s severity. Dillon claimed that he didn’t know about the new, more frequent reporting obligations. He explained that he left Shawnee County and moved to Lawrence, which is in Douglas County. Dillon said that he forwarded his Shawnee County mail to his new Lawrence address but that he didn’t receive any letters from the Shawnee County Sheriff s Office. He also insisted that he tried to register in Douglas County twice, but that the Douglas County Sheriff s Office found his paperwork unacceptable and refused to accept it.
The State argued that Dillon signed a form in February 2008 acknowledging the new reporting timeline and that it also mailed a notice of the new requirements to him at his last given Topeka address. The notice came back as undeliverable because Dillon no longer lived at the address; a sheriff visited the house and confirmed that Dillon did not live there anymore. The State also maintained that his probation officer and various Shawnee County sheriff s deputies also told him of the new requirements.
The district court denied Dillon’s request for a shorter sentence, ordering that he be imprisoned for 114 months, the minimum presumptive guideline sentence. Dillon appealed.
I. We Have Jurisdiction to Consider this Appeal of a Presumptive Sentence Because the District Court Explicitly Refused to Consider the Proffered Basis of a Motion for a Departure Sentence Where that Proffered Basis Was Legally Relevant.
We first must determine whether we have jurisdiction to consider Dillon’s appeal. Normally, a presumptive sentence is not subject to appeal, and the State suggests we are without jurisdiction. See K.S.A. 21-4721(c)(1); State v. Graham, 27 Kan. App. 2d 603, 609, 6 P.3d 928, rev. denied 269 Kan. 936 (2000). A presumptive sentence is one of those provided in the grid block in our sentencing guidelines as classified by the defendant’s criminal history score and the severity level of the offense. K.S.A. 21-4703(q). The district court here gave Dillon a presumptive sentence.
To consider whether there may be any exception to this rule precluding the appeal of a presumptive sentence, we first must set out Dillon’s basic argument. He contended in the district court that he should receive a sentence that was substantially shorter than the guideline sentence — known as a downward durational departure sentence — or a dispositional departure to probation because the guideline sentence was disproportionately severe given the facts of his offense and his criminal history.
Dillon contends on appeal that the district court explicitly refused to consider the proportionality of his individual sentence. Accordingly, we face three questions in determining whether we have jurisdiction to consider the appeal. First, did the district court consider the individual proportionality argument Dillon made in his departure motion? Second, if not, did the district court’s failure to consider Dillon’s individual proportionality argument deny him due process at sentencing? Third, if we answer yes to the first two questions, does the district court’s violation of Dillon’s due-process rights at sentencing provide an exception to the general rule that we have no jurisdiction to consider the appeal of a presumptive sentence? Because we find that the answer to all three questions is yes, we conclude that we have jurisdiction to consider the merits of Dillon’s appeal.
The District Court Did Not Consider Proportionality Based on the Facts of Dillons Case
Let’s start with the primary basis for Dillon’s departure motion. The defendant argued that the court should grant a departure because the guideline sentence was “disproportionate to the offense charged” against him. The defendant asked the court “to consider the disproportionate sentence and use that disproportionality as a substantial and compelling reason to depart.” (Emphasis added.) At sentencing, the defendant’s lawyer argued that “the most important factor [favoring a departure sentence] ... is the dispro portionate time for the type of crime . . . he’s committed.” Both the attorney and the defendant emphasized at the sentencing hearing that Dillon had complied with the registration requirements until the requirements changed in July 2007.
The defendant did not make a different proportionality claim that is sometimes made — that the presumptive sentence was unconstitutionally disproportionate and therefore a violation of the Eighth Amendment’s ban on cruel and unusual punishment. That claim was not made in Dillon’s departure motion or in oral argument at sentencing. That’s not surprising because other than a finding that a life sentence without parole eligibility for a recidivist worthless-check writer violated the Eighth Amendment, Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983), “it has been difficult for the challenger to establish a lack of proportionality.” Graham v. Florida, 560 U.S. 48, 59, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); see Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (upholding life without parole sentence for possession of large quantity of cocaine).
But the district court apparently thought that the defendant was making the constitutional proportionality argument rather than using proportionality as the basis for his departure motion. The district court limited its consideration of proportionality to that constitutional argument, rather than considering it as a challenge to the proportionality of the sentence in Dillon’s circumstances-.
“Now, the defendant has also argued his sentence is disproportionate to the conduct of the underlying offense. The Court considers that to be a question solely of law in these circumstances. I don’t find any factual matters before the Court that attach to that argument [so] that the Court must find and will consider it as an issue of law.”
The court then proceeded to say that it was “not a court of equity,” so its consideration was limited to whether the presumptive sentence was unconstitutionally disproportionate:
“A Court must determine whether the law is disproportionate in its sentencing punishment, and that has constitutional dimensions. I cannot make that finding. I do not find that the law is disproportionate. There’s no constitutional defect.”
From our review of the record, the court never considered the proportionality argument that was actually made by the defendant in support of his departure motion. Both the attorney and the defendant then emphasized that Dillon had complied with the registration requirements until the requirements changed in July 2007. The prosecutor, in response, noted his understanding that the defendant was arguing that “the degree of harm ... to the community or the seriousness of the offense does not merit the length of die sentence.” But by treating the defendant’s argument as a constitutional one — rather than a basis for finding a substantial and compelling reason to depart, as argued by the defendant — the district court made no consideration of whether the facts of Dillon’s case made the sentence disproportionate.
The District Court Violated Dillons Due-Process Rights by Refusing to Consider Individual Proportionality Where It Was the Basis of a Departure Motion and Legally Relevant.
Dillon’s departure motion was based on his claim for individual proportionality, i.e., that the presumptive sentence was disproportionate given the circumstances of his case. Where individual proportionality is the basis of the departure motion and is a relevant sentencing consideration, the refusal even to consider it would violate Dillon’s due-process rights.
To place Dillon’s motion in context, we consider it in light of the sentencing guidelines adopted in Kansas. The legislature has provided sentencing guidelines to ensure that similarly situated defendants receive similar sentences. Presumptive sentences are the primary means used to achieve that goal. See State v. Haney, 34 Kan. App. 2d 232, 238, 116 P.3d 747, rev. denied 280 Kan. 987 (2005). The presumptive sentence is the legislature’s determination of what sentence is proportionate to a crime’s severity level and the offender’s criminal-history score. K.S.A. 2009 Supp. 21-4704(d); Haney, 34 Kan. App. 2d at 238. But the legislature also recognized that individual circumstances may cause the presumptive sentence to be too harsh or too lenient in a given case, so sentencing judges may depart from the presumptive sentence. K.S.A. 21-4716(a). Departures are permitted when the sentencing judge finds substantial and compelling reasons to do so. K.S.A. 21-4716(a); State v. Blackmon, 285 Kan. 719, 724, 176 P.3d 160 (2008) (substantial means real and compelling means that the facts of the case force the court to abandon tire status quo and venture beyond the ordinary sentence).
In determining whether there are substantial and compelling reasons for a departure sentence, the legislature has provided a nonexclusive list of factors that may call for a greater or lesser sentence. K.S.A. 21-4716(c). The listed factors do not explicitly mention proportionality, but the legislature made it a nonexclusive list. The listed factors include facts like the victim’s age or infirmity; whether the victim was the initial aggressor; whether the offender played an active or passive role in the crime; and the defendant’s mental capacity during the crime’s commission. K.S.A. 21-4716(c). The list of factors notably compares the harm that the defendant caused in the case to the harm typically caused by the offense. If the harm is less than normal, it’s a factor in favor of a lesser sentence; if the harm is greater than normal, it’s a factor in favor of a greater sentence. K.S.A. 21-4716(c)(l)(E), (c)(2)(B).
A sentencing judge’s analysis of whether substantial and compelling reasons exist to depart inherently involves some analysis of whether the presumptive sentence is still a proportional one given the potential reasons for departure. If substantial and compelling reasons to depart do not exist, then the sentencing judge has found that the legislature’s declaration of what sentence is proportional— the presumptive sentence — is still valid for the specific facts of the individual defendant and his or her case. Indeed, when a sentencing judge gives a departure sentence, the law still provides that the judge must consider the purposes of the guidelines and requires that the judge “impose a sentence which is proportionate to the [crime’s] severity . . . and the offender’s criminal histoiy.” K.S.A. 21-4719(b)(l).
In Dillon’s case, the proportionality argument was the primary basis for his departure motion. We conclude, then, that the sentencing judge in Dillon’s case was required to consider the proportionality of the sentence to the severity of the crime and Dillon’s criminal history.
So what is the effect when, as here, the judge explicitly refuses to do so? A convicted defendant has a constitutional right to at least a minimum level of due process at sentencing. State v. Easterling, 289 Kan. 470, Syl. ¶¶ 1-2, 213 P.3d 418 (2009). Surely due process at least requires that a district judge not exclude from consideration something that the law requires the judge to consider when it has been raised by the defendant as the basis for a departure sentence. We therefore have jurisdiction to consider Dillon’s claim that the district court erred by refusing to consider individual proportionality at sentencing.
An Appellate Court Has Jurisdiction to Determine Whether a Sentencing Court Has Violated the Defendant’s Due-Process Rights.
When the district court’s sentencing procedures violate the constitution, the sentence is not considered a presumptive sentence. See State v. Johnson, 286 Kan. 824, 841-42, 190 P.3d 207 (2008). We have located no case in which a defendant was denied due process at sentencing, yet our appellate courts have dismissed an appeal for lack of jurisdiction on the ground that it was a presumptive sentence. As our Supreme Court noted in Johnson, it has given careful consideration to constitutionality attacks on presumptive sentences in several cases. The court has considered the constitutional issue in the context of determining whether it had jurisdiction to hear the appeal, and in each case where the court determined that there was no constitutional violation, it found it lacked jurisdiction to hear the appeal of a presumptive sentence. Dillon presents a viable claim that the sentencing court did not provide him due process when it excluded from consideration his proportionality argument. We therefore have jurisdiction to consider it.
We note that the situations in which we will be able to consider an appeal like Dillon’s will be infrequent; the rule we apply here is no loophole that would open the floodgates for the appeal of presumptive sentences. The district court is not required to make explicit findings when it denies a departure motion. State v. Koehn, 266 Kan. 10, 15, 966 P.2d 63 (1998). Thus, in most cases, the district court will not have said it excluded consideration of individual proportionality, and we generally presume (in the absence of a clear showing otherwise) that a district court made the findings necessary for its ruling. But when the district court explicitly excludes consideration of a required sentencing factor or explicitly applies an incorrect legal standard in sentencing, we will have jurisdiction to consider that type of appeal. Otherwise, the defendant’s right to due process at sentencing would be meaningless.
As an alternative basis for our jurisdictional ruling, we note that our court has previously recognized that a presumptive sentence may be appealed when the district judge has expressly misstated the applicable law. Thus, in State v. Cisneros, 42 Kan. App. 2d 376, 380-81, 212 P.3d 246 (2009), where the district court wrongly stated that it lacked authority to grant a reduced sentence when revoking the defendant’s probation, we reversed and remanded to reconsider the matter under the correct legal standard. Essentially the same thing has occurred here. By treating the disproportionality claim solely as a constitutional challenge, the district court incorrectly concluded that it lacked authority to consider disproportionality on the facts of this case. We can consider a defendant’s appellate claim that a presumptive sentence has been issued under an incorrect understanding of the legal standards that guide a judge’s discretion in sentencing.
II. The District Court Erred by Excluding Relevant Factors from, Its Consideration of the Motion for a Departure Sentence.
We turn then to the merits of Dillon’s claim that the district court wrongly excluded from its consideration the proportionality of the sentence in Dillon’s own case.
We acknowledge that the district court did address some factual aspects of Dillon’s departure motion. The court concluded that Dillon had presented two separate arguments: (1) “some factual matters which the defendant argues constitute substantial and compelling reasons for departure” and (2) that “his sentence is disproportionate to the conduct of the underlying offense,” which the court said was a pure issue of law with no “factual matters before the Court.” The court did conclude that the “factual matters” that were before it were not by themselves sufficient to grant a downward departure, but the court considered these factors in isolation from his proportionality argument. But by cabining the factual matters on one side and proportionality on the other, the court failed to give any individualized consideration to the defendant’s argument that the disproportionality of his sentence — on the specific facts of his case — was a substantial and compelling reason to depart. By doing so, the court denied Dillon due process by refusing to consider individualized proportionality, a matter squarely before the court on Dillon’s departure motion.
III. No Other Issues on Appeal Require Reversal.
Dillon makes two additional arguments on appeal that he did not raise before the district court. First, he argues that the sentence violated the Eighth Amendment’s prohibition on cruel and unusual punishment. The State rightly notes that he did not raise that issue below. With limited exceptions, this argument may not be raised for the first time on appeal. See State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010). That rule might not apply here since the district court did address the issue, even though Dillon had not raised it. But we are remanding the case for resentencing, and an appellate court generally avoids making unnecessary constitutional decisions. See Wilson v. Sebelius, 276 Kan. 87, 72 P.3d 553 (2003). We therefore decline to address the Eighth Amendment question at this time. Second, Dillon argues he was not actually required to register based on an argument that the statutory provisions relied upon to trigger his reporting requirement violate a rule against the stacking of inchoate offenses. The State again correctly notes that Dillon did not raise this issue below. Once again, with limited exceptions, this argument may not be raised for the first time on appeal. See State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007). Dillon has not argued that any of the exceptions apply, and we decline to consider this issue because Dillon has waived it by failing to argue for any of the exceptions. See State v. Mitchell, 284 Kan. 374, 377, 162 P.3d 18 (2007).
Conclusion
In sum, whether to grant a departure motion is a discretionary call for the district court, see State v. Robison, 290 Kan. 51, 55, 222 P.3d 500 (2010), but due process requires that the district court not exclude relevant factors from its consideration. Because the district court appears to have done so in Dillon’s case, we vacate the sentence and remand for resentencing. Because resentencing is required, we note that it appears that Dillon’s criminal history score was mistakenly calculated for sentencing purposes. See State v. Pottoroff, 32 Kan. App. 2d 1161, Syl. ¶ 4, 96 P.3d 280 (2004) (conviction that created need for registration cannot be counted in determining criminal-history score when sentencing a defendant for failure to register).
Marquardt, J., concurring and dissenting: I concur with the majority’s decision to decline to address Dillon’s Eighth Amendment issue as well as his argument that his reporting requirement violated a rule against stacking of inchoate offenses. I respectfully dissent from the majority holding that Dillon’s sentence should be vacated and the case remanded for resentencing.
William Dillon’s notice of direct appeal on May 22, 2009, states that he “appeals from all judgments and the sentence imposed.”
On April 4, 2000, William Dillon was convicted of attempted aggravated indecent solicitation of a child which required him to register as a sex offender pursuant to the Kansas Offender Registration Act (KORA). K.S.A. 22-4901.
In July 2003, Dillon filed his first offender registration form with the Shawnee County Sheriff s Office indicating his primary residence was 1001 NE Highway 24 #7, Topeka, KS 66608. When he reported in Februaiy 2008, Dillon signed an acknowledgment form indicating he understood that as of July 1, 2007, any person who is required to register shall report in person to the sheriff s office in the county which the person resides three times each year, once during the month of the person’s birthday and every 4 months thereafter. K.S.A. 22-4904(c). He still had the same Topeka address on that date.
In June 2008, Dillon failed to report to the Shawnee County Sheriff s Office. The State charged Dillon with one count of failing to register as an offender as required by K.S.A. 22-4904(c), or in the alternative, one count of failing to report his change of address to the sheriff s department and the Kansas Bureau of Investigation within 10 days of his move under K.S.A. 22-4904(b). The sheriff s office sent Dillon a certified letter at his Topeka address advising him to complete the required update. The letter was returned with the notation “Not at this address.”
An arrest warrant for Dillon was filed November 24, 2008, for failure to register and failure to inform the Kansas Bureau of Investigation of his new address as required under the Kansas Offender Registration Act.
From June 2008, until his arrest for violation of registration requirement in November 2008, Dillon claims that various probation officers, attorneys, and judges knew his whereabouts. He was in Saline County jail during that time. At Dillon’s pretrial hearing on February 6,2009, Dillon was also on probation in Shawnee County case 07-CR-832 for violating a protective order and endangering a child.
On March 9, 2009, Dillon pled no contest to the first level 5 felony charge of failing to register as an offender. The State dismissed the second level 5 felony of fading to report a change of address. The district court informed Dillon of all the rights he was giving up by entering his plea, and Dillon said he understood. The court also advised Dillon that the court would use the Kansas Sentencing Guidelines to determine an appropriate sentence and that because he was pleading to a level 5 felony “the sentencing range would be a minimum of 31 months to a high of 136 months, depending upon your criminal history.” Dillon was also advised that the court “would use the accurate criminal history” for his sentencing. Dillon acknowledged that he understood.
Prior to sentencing, Dillon filed a motion for a downward dis-positional and durational departure claiming that his sentence under the Kansas Sentencing Guidelines Act (KSGA) was disproportionate to the offense charged. In support of his motion, his counsel claimed at the sentencing hearing that “a lot of these offenses and crimes that he has been convicted of are over ten years old.”
At Dillon’s sentencing hearing on May 22,2009, his presentence investigation report showed that he had a criminal history score of B with a severity level 5 felony offense. Dillon voiced no objection to the presentence investigation report. Dillon’s sentence under the KSGA mandated a presumptive prison term of 128/120/114 months. The district court stated:
“The defendant has filed a motion for departure. The Court has considered that motion, make arguments in two respects. First, there’s some factual matters which die defendant argues constitute substantial and compelling reason for departure. The defendant has the burden on this to persuade the Court that he has met the standard of a substantial and compelling reason for departure. He has argued that he was somewhat unaware of the requirements and made some failures in that regard. I don’t find any substantial and compelling reasons factually for the departure and deny it on that ground.
“Now, the defendant has also argued his sentence is disproportionate to the conduct of the underlying offense. The Court considers that to be a question solely of law in these circumstances. I don’t find any factual matters before the Court that attach to that argument that the Court must find and will consider it as an issue of law.
“The legislature has determined the severity level of this crime, set a presumptive range of penalty. The Court understands the argument. . . has some facial validity and I think a frank discussion among all of the law-trained people present would indicate there might be views that there are more serious crimes that are less seriously punished, less serious crimes that are more seriously punished, and the defendant may have an argument that’s sound in equity.
“This Court, however, is not a court of equity. A Court must determine whether the law is disproportionate in its sentencing punishment, and that has constitutional dimensions. I cannot make that finding. I do not find that the law is disproportionate. There’s no constitutional defect. Accordingly, the motion for departure on that ground is denied as well. The defendant will be required to serve his time in the custody of the Kansas Secretary of Corrections.”
Accordingly, Dillon’s departure was denied and he was sentenced to 114 months in prison with 24 months of postrelease supervision.
The question of whether this court has jurisdiction over this appeal is a question of law over which this court’s scope of review is unlimited. Harsch v. Miller, 288 Kan. 280, 286, 200 P.3d 467 (2009).
Dillon contends the district court erred when it determined it must first consider whether his sentence was disproportionate to the crime in violation of the Eighth Amendment to the United States Constitution and Section 9 of the Kansas Constitution Bill of Rights before it could consider the length of his sentence in relation to the harm caused by his offense.
K.S.A. 21-4721(c) provides that an appellate court shall not review a sentence for a felony conviction that (1) is within the presumptive guidelines sentence for the crime, or (2) is the result of a plea agreement between the State and the defendant which the district court approved on the record. K.S.A. 21-4721(c). See State v. Graham,, 27 Kan. App. 2d 603, 609, 6 P.3d 928, rev. denied 269 Kan. 936 (2000).
A presumptive sentence is “the sentence provided in a grid block for an offender classified in that grid block by the combined effect of the crime severity ranking of the current crime of conviction and the offenders criminal history.” K.S.A. 21-4703(q). Moreover, “[t]he sentencing court has discretion to sentence at any place within the sentencing range. The sentencing judge shall select the center of the range in the usual case and reserve the upper and lower limits for aggravating and mitigating factors insufficient to warrant a departure.” K.S.A. 21-4704(e)(l). The three numbers within each grid box constitute the range for a presumptive sentence. See K.S.A. 21-4704(f).
Here, Dillon pled no contest to a severity level 5 person felony. See K.S.A. 22-4903(a). The district court sentenced Dillon to 114 months in prison, which was within the presumptive sentence of 128 to 114 months for the severity level of the crime and Dillon’s criminal history of B. See K.S.A. 21-4704(a).
The majority states that the district court did not consider whether there was a basis for a substantial and compelling reason to depart. On the contrary, the court specifically found that Dillon had presented no substantial and compelling reason for a departure.
The majority cites State v. Cisneros, 42 Kan. App. 2d 376, 380-81, 212 P.3d 246 (2009), to support their conclusion that “the district court incorrectly concluded that it lacked authority to consider disproportionality on the facts of this case.” The Cisneros case was a probation revocation and has nothing to do with proportionality of a sentence. It is clearly not applicable to the facts of this case.
Regardless of the district court’s reasons for denying Dillon’s dispositional or durational departure motion, this court lacks jurisdiction to consider the denial because it sentenced Dillon to the presumptive sentence for his offense.
Dillon’s appeal should be dismissed. | [
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Green, J.:
This is a second appeal by Donald G. Attebeny. In this appeal, Atteberry seeks review of the trial court’s judgment denying Atteberry’s pro se motion to withdraw his plea filed under K.S.A. 22-3210(d). Atteberry entered a plea of no contest to 34 counts of violations of the Kansas Securities Act (the Act) and 2 counts of the theft by deception. Atteberry moved to withdraw his plea after sentencing and while his first direct appeal was pending. His first appeal was dismissed for lack of jurisdiction under State v. Johnson, 286 Kan. 824, 190 P.3d 207 (2008). Atteberry based his motion to withdraw his plea primarily on his trial counsel’s ineffective assistance. He maintained that his trial counsel faded to raise the affirmative defense that the promissory notes involved in the transactions at issue were exempt from the Act under K.S.A. 17-1261(i) (Furse 1995).
On appeal, Atteberry contends that the trial court wrongly denied his motion to withdraw his plea under K.S.A. 22-3210(d). We disagree. Accordingly, we affirm.
On October 11, 2001, the Kansas Securities Commissioner issued an emergency cease and desist order to Atteberry for allegedly violating the Act in connection with an investment opportunity he was offering to Kansas residents. The investment involved the exportation of cattle embryos to Europe. In May 2005, the securities commissioner issued another emergency cease and desist order to Atteberry for his alleged continuing violations of the Act. Atteberry requested a hearing to contest the cease and desist order, but he was arrested before the scheduled hearing.
The State filed its complaint against Atteberry on August 19, 2005, and initially charged him with six counts of violating the Act, K.S.A. 17-1252 et seq. On October 14, 2005, the State filed an amended complaint in which it alleged 36 counts against Atteberry. Of those 36 counts, 34 counts were for alleged violations of the Act, Chapter 17, Article 12, and the remaining 2 counts were al legations of theft by deception in violation of K.S.A. 21-3701. More specifically, Atteberry was charged with 7 counts of securities fraud in violation of K.S.A. 17-1253; 9 counts of offer or sale of unregistered securities in violation of K.S.A. 17-1255; 8 counts of failure to register as broker-dealer or agent in violation of K.S.A. 17-1254; and 10 counts of violating the emergency cease and desist order in violation of K.S.A. 17-1267(a). According to the amended complaint, the alleged unlawful acts took place on various dates between January 2003 and June 2005.
Initially, Atteberry was represented by retained counsel, Thomas D. Haney, who entered his appearance on August 24, 2005. As of July 17, 2006, Atteberry, through counsel, had not told the trial court or the State “of any defenses he [intended] to present at trial.” At a pretrial conference and motion hearing on September 28, 2006, the court confirmed with Haney that Atteberry had “not disclosed the nature of the defense other than a general denial.”
The day following that hearing, Haney moved to withdraw as Atteberiy’s attorney, citing “an irreconcilable conflict” between himself and Atteberry. In his motion to withdraw, Haney also stated he could not “provide the defendant constitutionally effective assistance of counsel due to the conflict.” On October 6,2006, Haney moved a second time to be allowed to withdraw as Atteberiy’s attorney and told the trial court that he had been discharged by Atteberiy. At the time of this motion, the jury trial in this case had been scheduled to begin on October 16, 2006. The trial court permitted Haney to withdraw, and Carl E. Cornwell entered his appearance as new retained counsel on October 10, 2006.
Because Atteberry’s new counsel needed time to review discoveiy documents and otherwise prepare Atteberiy’s defense, Corn-well requested a continuance. To meet the requirements for a speedy trial, Atteberry’s trial needed to commence on or about October 20, 2006. In order to accommodate defense counsel’s need to prepare and his existing trial schedule, Atteberry agreed to waive his right to a speedy trial. The trial was rescheduled for April 2, 2007.
Shortly before the new trial date, Atteberry changed his plea from not guilty to no contest on all 36 counts of the first amended complaint. At the beginning of the plea hearing, the trial court questioned the parties on whether a plea agreement or any agreements on sentencing had been reached. The parties told the court that there were no plea or sentencing agreements.
The State presented facts relating to each count, and Atteberry admitted that those facts could be presented at trial. After hearing the State’s factual basis for all counts, Atteberry changed his plea to no contest. The trial court accepted Atteberry’s offer to change his plea and accepted his plea of no contest to each of the 36 counts. The court found Atteberry guilty as charged for each of the 36 counts.
Nearly a year before sentencing and 9 months before Atteberry changed his plea to no contest, the State filed a notice of intent to request an upward durational departure under K.S.A. 21-4718(b). The State contended that “a fiduciary relationship . . . existed between the defendant and the victims” and that several counts “involved victims that were particularly vulnerable due to age” or other infirmity. At the conclusion of the plea hearing, Cornwell told the trial court that a motion for both dispositional and durational departure would be filed on behalf of Atteberry. Although the appearance docket for this case does not fist a defense departure motion, one was apparently filed with the trial court.
For the primary or base count, unlawful sale of securitiesa level 4 nonperson felony, the trial court imposed a presumptive sentence of 43 months. The sentence of 43 months was the upper level sentence within the grid block for an offender with a criminal history score of I. The court then pronounced the sentences for counts 2 through 36.
A special rule that is part of the Act found at K.S.A. 17-1254(a) required a presumptive sentence of imprisonment regardless of its location on the sentencing grid. The court ordered the remaining counts to be served consecutive to Count 1, the base count of 43 months. The trial court noted that this would result in a sentence of 792 months. Due to the Kansas Sentencing Guidelines requirement that the controlling sentence cannot be more than twice the base count (K.S.A. 21-4720[b][4]), the court reduced the sentence to 86 months of confinement and 36 months of post-release su pervision. The court also ordered Atteberry to pay restitution in the amount of $940,250. The court noted that Atteberry had requested a dispositional and durational departure and had asked for probation. The court, however, found that Atteberiy had not met his burden of showing a substantial and compelling reason for granting him a departure sentence. As a result, the trial court denied the motion.
Atteberry filed a timely notice of appeal. Nevertheless, his first appeal was dismissed for lack of jurisdiction under State v. Johnson, 286 Kan. 824, 190 P.3d 207 (2008).
While his first appeal was pending, Atteberiy moved pro se to withdraw his plea under K.S.A. 22-3210(d). In his motion, Atteberiy argued that the promissoiy notes used in his transactions were exempt from the Act under K.S.A. 17-1261(i). Atteberry also argued that he was denied due process because he did not receive notice of the exemption under K.S.A. 17-1261(i) before entering his plea. Later, Atteberiy filed a pro se first amended motion to withdraw his plea. In his amended motion, Atteberry asserted two additional issues.
On January 29, 2009, the trial court received the mandate in Atteberry’s first appeal from this court. This court granted the State’s request to dismiss the appeal for lack of jurisdiction. Later, our Supreme Court denied Atteberiy’s petition for review.
The State did not file a response to Atteberry’s motion to withdraw his plea. On February 9,2009, the trial court entered a memorandum decision and order denying Atteberiy’s motions to withdraw his plea. The court addressed Atteberry’s motions as if they were filed under K.S.A. 22-3210(d), as cited in the motions, and under K.S.A. 60-1507. The trial court did not conduct an evidentiary hearing due to its finding that Atteberry was not entitled to relief. The court further determined Atteberry was not entitled to appointed counsel because the motions did not present “substantial questions of law or triable issues of fact.”
Plea Withdrawal — KS.A. 2009 Supp. 22-3210(d)
K.S.A. 2009 Supp. 22-3210(d) governs a motion to withdraw plea, providing:
“(1) A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged.
“(2) To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.”
Thus, the level of proof for a defendant seeking to withdraw a plea depends on whether the motion is filed before or after sentencing: if prior, the trial court has discretion to permit withdrawal of pleas if a defendant shows “good cause”; if after, the trial court may permit a defendant to withdraw a plea only upon a showing of “manifest injustice.”
Atteberry moved to withdraw his plea after sentencing. This court has defined the “manifest injustice” standard of proof to require a defendant to show that it would be “obviously unfair or shocking to the conscience” if the defendant is not allowed to withdraw his or her plea. See State v. Barahona, 35 Kan. App. 2d 605, 608-09, 132 P.3d 959, rev. denied 282 Kan. 791 (2006).
Our courts have generally considered three factors in evaluating both pre- and post-sentencing motions to withdraw pleas: (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made; see State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). Atteberry argues his plea was not fairly and understandingly made because his counsel was ineffective, invoking both the first and third factors.
In State v. Aguilar, 290 Kan. 505, 231 P.3d 563 (2010), our Supreme Court held that it is improper to mechanically apply these “ ‘Edgar factors’ ” to demand that a defendant demonstrate ineffective assistance of counsel rising to the level of a violation of the Sixth Amendment in a presentence motion to withdraw plea. 290 Kan. at 512-13.
With regard to post-sentence motion to withdraw a plea, Aguilar held that “it may be logical and fair to equate the K.S.A. 22-3210(d) manifest injustice standard governing a post-sentence plea withdrawal to the high burden imposed on a constitutional claim of ineffective assistance.” (Emphasis added.) 290 Kan. at 513 (citing and comparing cases applying standard of deficient performance plus prejudice in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 [1984], with cases applying the “softened Strickland standard” employed in Mickens v. Taylor, 535 U.S. 162, 168, 152 L. Ed. 2d 291, 122 S. Ct. 1237 [2002], when reviewing ineffective assistance claim based on conflict of interest, which requires proof of existence of conflict with actual effect on representation).
Atteberry’s claim that he should be allowed to withdraw his plea due to ineffective assistance of counsel is not based on a conflict of interest, so the heightened Strickland burden applies here. Accordingly, Atteberry has to prove manifest injustice will result if he is not allowed to withdraw his plea because (1) his counsel’s performance fell below the standard of reasonableness; and (2) a reasonable probability exists that, but for counsel’s errors, he would not have pled no contest and would have insisted on going to trial. See State v. Adams, 284 Kan. 109, 118, 158 P.3d 977 (2007) (applying this two-step test to defendant’s claim that plea resulted from ineffective assistance of counsel).
Standard of Review
The parties agree that this court’s review is limited to determining whether the trial court abused its discretion in denying Atteberry’s pro se motions to withdraw his plea; see State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009) (“We have repeatedly said that the denial of a post-sentencing motion to withdraw a plea lies within the trial court’s discretion, and an appellate court should not disturb that ruling absent an abuse of discretion.”). “Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. [Citation omitted.]” State v. Gant, 288 Kan. 76, 81-82, 201 P.3d 673 (2009). Atteberry has the burden of establishing that the trial court abused its discretion; see Woodward, 288 Kan. at 299.
On the other hand, this court has suggested that where a defendant’s post-sentencing motion can be construed as both a motion to withdraw a plea and a K.S.A. 60-1507 motion, appellate review of the summary denial of the motion is de novo; see Wilkinson v. State, 40 Kan. App. 2d 741, 743-44, 746, 195 P.3d 278 (2008), rev. denied 289 Kan. 1286 (2009) (construing defendant’s pro se K.S.A. 60-1507 motion as post-sentencing motion to withdraw plea based on ineffective assistance of counsel and conducting unlimited review of trial court’s summary denial of motion without evidentiary hearing); Barahona, 35 Kan. App. 2d at 615 (noting State v. Jackson, 255 Kan. 455, 458, 874 P.2d 1138 [1994], applied procedure for K.S.A. 60-1507 motions while addressing motion to withdraw plea under K.S.A. 22-3210[d] to hold that because defendant failed to present colorable claim for ineffective assistance of counsel, trial court properly dismissed claims without evidentiaiy hearing); accord Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009) (when trial court summarily denies K.S.A. 60-1507 motion, appellate court conducts de novo review to determine whether motion, files, and records of the case conclusively establish movant not entitled to any relief).
Here, the trial court held that Atteberry “has not established entitlement to relief under K.S.A. 22-3210(d) or under K.S.A. 60-1507.” Citing K.S.A. 60-1507, K.S.A. 22-4506(b), and Supreme Court Rule 183(h) (2009 Kan. Ct. R. Annot. 251), the trial court further held that the motions and files of Atteberry’s case conclusively established no basis upon which relief could be granted. Thus, the court concluded it could summarily deny Atteberiy’s motions without appointing counsel, providing for Atteberry’s presence, or conducting an evidentiary hearing. Accordingly, this court has de novo review.
Was Counsel Ineffective for Not Advising Atteberry He Had an Affirmative Defense Based on the Commercial Paper Exemption?
The Act in effect when Atteberry allegedly violated its provisions made it unlawful for any person to solicit, offer, or sell any security in Kansas unless it was registered under the provisions of the Act or it was exempt from registration under K.S.A. 2002 Supp. 17-1261 (categorical exemptions) or K.S.A. 2002 Supp. 17-1262 (transactional exemptions); see K.S.A. 2002 Supp. 17-1252 et seq. These statutory exemptions are affirmative defenses that a defend ant bears the burden of estabhshing. K.S.A. 2002 Supp. 17-1272; cf. State v. Kershner, 15 Kan. App. 2d 17, 801 P.2d 68 (1990) (holding K.S.A. 17-1262 exemption is an affirmative defense, and K.S.A. 17-1272’s requirement that defendant claiming benefit of exemption prove its applicability does not unconstitutionally shift burden of proof to defendant).
In his first issue on appeal, Atteberry argues that he should have been allowed to withdraw his plea because his counsel was ineffective for failing to tell him that he had an affirmative defense to the charges against him; that is, that the promissoiy notes he issued to his investors were exempt from the Act under K.S.A. 2002 Supp. 17-1261(i). That statute exempts from the Act a security that meets the following criteria:
“Any commercial paper which arises out of a current transaction or the proceeds of which have been or are to be used for current transactions, and which evidences an obligation to pay cash within nine months of the date of issuance, exclusive of days of grace, or any renewal of such paper which is likewise limited, or any guarantee of such paper or of any such renewal.” K.S.A. 2002 Supp. 17-1261(i) (hereafter “the commercial paper exemption”).
The trial court rejected Atteberry’s contention, summarily holding that “[a]s a matter of law, the transactions resulting in the conviction were not subject to exemptions under the Securities Act.”
The availability of the commercial paper exemption as an affirmative defense is a question of law involving statutory interpretation, over which this court exercises unlimited review; see State v. Jefferson, 287 Kan. 28, 33, 194 P.3d 557 (2008) (interpretation of statute is question of law subject to unlimited appellate review).
Atteberry argues that the commercial paper exemption applies because the maturity periods of the promissory notes he issued were all less than 9 months. His argument impliedly concedes that the notes are “securities,” covered by the Act. Consequently, we need not address whether Atteberry’s promissoiy notes are securities; see K.S.A. 2002 Supp. 17-1252(j) (defining “security” under the Act).
In support, Atteberry relies solely on State v. Hodge, 204 Kan. 98, 460 P.2d 596 (1969), which seems to be the only published Kansas decision to have considered this commercial paper exemp tion. In Hodge, our Supreme Court rejected the defendant’s claim that the securities underlying his convictions were exempt under the commercial paper exemption, finding the defendant had “conveniently overlooked] the plain fact the documents in question call[ed] for final payment one year after the date of issuance.” 204 Kan. at 106. Thus, the court held: “Assuming [the] documents to be promissory notes, as the [defendant] contended], they [did] not fall within the [commercial paper] exemption asserted” because the maturity period was greater than 9 months. 204 Kan. at 106.
There is no dispute here that the promissory notes issued by Atteberry were for a maturity period of less than 9 months. Instead, the primary issue underlying Atteberry’s argument on appeal is the following: Were the promissory notes issued by Atteberry “commercial paper” as that term is used in the exemption?
Whether the securities at issue qualified as commercial paper under the exemption was apparently not in dispute in Hodge. The State argues our Supreme Court acknowledged in dicta that the exemption was intended only to apply to prime quality commercial paper eligible for discount at the Federal Reserve Banks. Nevertheless, it seems that the State is referring to Hodge’s quote from a treatise discussing the reasons for the 9-month maturity date limit. Hodge did not quote the treatise for the purposes of deciding which securities do or do not qualify as commercial paper under the exemption; see 204 Kan. at 106 (quoting “ ‘Draftsmen’s Commentary to § 402 [a] [10]’ of the Uniform Securities Act [Blue Sky Law, Loss and Cowett [1958], p. 361”).
Apparently, neither party recognized that Hodge did explicitly consider the issue of whether the promissoiy notes in that case were commercial paper. Specifically, before addressing the maturity date issue on which the issue was decided, our Supreme Court summarily stated: “It must be conceded promissory notes by the law-merchant fall under the designation of commercial paper.” 204 Kan. at 105. The law merchant is the “[b]ody of law governing commercial transactions which had its origin in common law of England regulating merchants.” Black’s Law Dictionaiy 886 (6th ed. 1990). It is apparently the common-law predecessor of the Uni form Commercial Code (UCC). Cf. K.S.A. 2009 Supp. 84-l-103(b) (noting that “[u]nless displaced by the particular provisions of the [UCC], the principles of law and equity, including the law merchant . . . supplement its provisions”).
The Hodge court’s apparent equating of commercial paper in the exemption from the Act with commercial paper under the UCC’s common-law predecessor is contrary to the rationale of other authorities that have since construed the commercial paper exemption found in other states’ and federal securities acts. As thoroughly briefed by the State, those authorities recognize that the commercial paper exempted from regulation by federal and other states’ securities acts is commonly understood to not encompass everything considered commercial paper under the UCC. Rather, those authorities uniformly hold that the commercial paper exemption applies only to the specialized commercial paper market used by large banks and corporations to handle their large and recurrent short-term borrowing and investment needs. See Long, Blue Sky Law § 6:46 (Vol. 12, Securities Law Series) (2010) (citing various authorities in recognizing that because “[t]he sophistication of the investors and the need for speed in the completion of the transaction provide adequate policy reasons for creating an exemption from the registration provisions of the securities act,” the commercial paper exemption “is not generally available for paper or transactions which do not come within the policy reasons for its creation”).
Thus, securities act commercial paper exemptions do not broadly encompass all negotiable instruments as defined in UCC or other commercial statute. 1 Hazen, Treatise on the Law of Securities Regulation § 4.4 (6th ed. 2009) (citing various cases and releases from Securities Exchange Commission that recognize type of short-term commercial paper eligible for exemption in Securities Act of 1933,15 U.S.C.A. § 77[3][a][3], must be “ ‘[1] prime quality negotiable commercial paper [2] of a type not ordinarily purchased by the general public, that is [3] paper issued to facilitate well recognized types of current operational business requirements and [4] of a type eligible for discounting by Federal Reserve banks[.]’ ”); Comment, The Commercial Paper Market and the Securities Acts, 39 U. Chi. L. Rev. 362, 363-64 (1972) (explaining, “[(Commercial paper consists of unsecured, short-term promissory notes issued by sales and personal finance companies; by manufacturing, transportation, trade, and utilities companies; and by the affiliates and subsidiaries of commercial banks” and discussing additional attributes thereof).
Importantly, in 1994, after our Supreme Court’s decision in Hodge and well in advance of the charges filed against Atteberry for violations of the Act, Kansas’ Securities Commissioner promulgated K.A.R. 81-5-11(2006). That regulation provided that “[a] security shall be exempt under K.S.A. [2002 Supp.] 17-1261(i) if it is prime quality negotiable commercial paper of a type not ordinarily purchased by the general public, that is, paper issued to facilitate well recognized types of current operational business requirements.” K.A.R. 81-5-11(2006); see K.S.A. 2002 Supp. 17-1270(e) (granting commissioner authority to adopt, amend, and revoke rules and regulations, orders, and forms “as may be necessary to carry out the provisions of [the] act” and allowing commissioner, in carrying out these duties, to “cooperate with the securities administrators of the other states and the securities and exchange commission with a view to effectuating the policy of this statute to achieve maximum uniformity in the form and content of registration statements, applications, and reports wherever practicable”); cf. Kershner, 15 Kan. App. 2d at 18 (noting Kansas Securities Act is patterned on Uniform Securities Act, which, in turn, is patterned on Federal Securities Act of 1933, so “Kansas Act should be applied by giving particular attention to federal decisions and decisions of sister states adopting the Uniform Act”).
Although K.A.R. 81-5-11 was repealed in 2007, it was in effect at all times pertinent to this appeal; see K.A.R. 81-5-11 (2009). Assuming our Supreme Court’s seemingly contrary interpretation of commercial paper in Hodge is not dicta, we determine that if our Supreme Court would revisit this issue now, it would conclude that the more narrow definition previously cited of commercial paper in K.A.R. 81-5-11 (2006) supersedes Hodge’s more broad definition.
Because the promissory notes issued by Attebeny were not commercial paper under the narrow definition of commercial paper, the trial court was correct in concluding that the commercial paper exemption does not apply. As a result, Attebeny cannot establish the first prong of his ineffective assistance of counsel claim because his counsel could not have been ineffective for fading to tell Attebeny of an inapplicable affirmative defense.
Even if the Affirmative Defense Was Inapplicable, Can This Court Find Counsel Was Ineffective for Failing to Argue that the Commercial Paper Exemption Is Unconstitutionally Vague?
Attebeny acknowledges in his reply brief that the commercial paper exemption was arguably not available to him in light of the more narrow definition of “commercial paper” discussed in the previous issue. Nonetheless, he briefly argues that this court should find his counsel was ineffective for failing to argue that his due process rights were violated because the commercial paper exemption was not sufficiently definite to warn him that his conduct was prohibited under the Act.
In support, Attebeny relies on People v. Dempster, 396 Mich. 700, 242 N.W.2d 381 (1976), which interpreted a similar commercial paper exemption under Michigan’s Uniform Securities Act. The Michigan Supreme Court rejected the defendants’ attempts to equate commercial paper as used in the exemption with commercial paper under the UCC. Instead, that court held as a matter of first impression that Michigan’s commercial paper exemption applied to only those securities that were “virtually riskless, such as government bonds, nationally listed securities, etc. . . . [or] are ‘so inherently gilt-edge, or so unlikely to be utilized in a deceptive scheme, that the Michigan Blue Sky Law exempts them from tire prior registration requirement.’ [Citation omitted.]” 396 Mich, at 710-11; see also State v. Crooks, 84 Or. App. 440, 443-45, 734 P.2d 374 (1987) (citing Dempster in rejecting defendant’s argument that Oregon Securities Act’s commercial paper exemption broadly encompasses all negotiable instruments as defined in Article 3 of the UCC and instead more narrowly defining commercial paper under the exemption to “include[ ] only unsecured short term negotiable debt instruments issued by commercial entities”); accord Securities Industry Assn. v. Board of Governors, 468 U.S. 137, 140 n.1, 82 L. Ed. 2d 107, 104 S. Ct. 2979 (1984) (defining “ commercial paper ” in a generic sense as referring to “unsecured, short-term promissory notes issued by commercial entities”).
After placing this “ ‘clarifying gloss’ ” upon Michigan’s commercial paper exemption, the Michigan Supreme Court reversed the defendants’ convictions, concluding “the term ‘commercial paper’ standing by itself was not sufficiently definite to allow [the defendants’] convictionfs] [for violations of Michigan’s Uniform Securities Act] to stand.” Dempster, 396 Mich, at 716-17. In so holding, the Michigan Supreme Court agreed with the defendants that the instruments in that case fit within an acceptable definition of commercial paper upon which the defendants could rightfully rely to conclude their securities were exempt because the statutory language of Michigan’s commercial paper exemption did not clearly indicate otherwise. Dempster, 396 Mich. at 714-18 (citing United States v. Harriss, 347 U.S. 612, 617, 98 L. Ed. 989, 74 S. Ct. 808 [1954] [constitutional requirement of definiteness violated if criminal statute fails to give person of ordinary intelligence fair notice that contemplated activity prohibited by statute]; Cline v. Frink Dairy Co., 274 U.S. 445, 71 L. Ed. 1146, 47 S. Ct. 681 [1927] [exemptions and provisos within criminal statute must be defined with same specificity]).
Atteberry argues that Kansas’ commercial paper exemption is likewise unconstitutionally vague, so his counsel’s failure to argue “that [Atteberry] could claim the exemption because the statute was not sufficiently definite” fell below the standard of reasonableness.
We point out several reasons why we should reject this contention. First, Atteberry has failed to sufficiently brief the issue by not citing any supporting authority addressing how Kansas courts analyze the void-for-vagueness issue; see State v. Holmes, 278 Kan. 603, 622, 102 P.3d 406 (2006) (appellant abandons issue on appeal by not adequately briefing issue or by failing to cite legal authority or argument to support contention). Second, Atteberry cannot raise grounds for counsel’s ineffectiveness not raised below; see State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008) (issues not raised before trial court cannot be raised on appeal). Third, Atteberiy cannot raise constitutional grounds for reversal for the first time on appeal; see State v. Gant, 288 Kan. 76, 82, 201 P.3d 673 (2009) (constitutional grounds for reversal asserted for first time on appeal not properly before appellate court).
Granted, there are exceptions to these preservation rules and this court has considered a new legal theoiy raised for the first time on appeal (1) when the issue involved only a question of law arising on proved or admitted facts and was finally determinative of the case; (2) when consideration of the theoiy was necessaiy to serve the ends of justice or to prevent the denial of fundamental rights; and (3) when the judgment of the trial court can be upheld on appeal if the trial court was right for the wrong reason; see State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008).
Whether a statute is unconstitutionally vague is a question of law; see State v. Rucker, 267 Kan. 816, 830, 987 P.2d 1080 (1999) (whether statute is unconstitutionally vague is question of law over which appellate review is de novo). Moreover, “[t]he constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution.” 267 Kan. at 830. We will consider Atteberry’s contention based on exceptions 1 and 2 previously mentioned.
Kansas courts apply a void-for-vagueness analysis similar to that applied in Dempster. That is, this court will find a statute unconstitutionally vague and indefinite, in violation of due process, when its language fails to convey a sufficiently definite warning of the conduct that is criminally proscribed, as measured by common understanding and practice. See Rucker, 267 Kan. at 830-831; see also State v. Watson, 273 Kan. 426, 434, 44 P.3d 357 (2002) (“due process requires nondeceptive notice such that every person is able to know with certainty when he or she is committing a crime”).
In Dempster, the defendants produced evidence that persons in charge of enforcing Michigan’s securities law believed that if the instruments at issue fit within the UCC concept of commercial paper, they would be exempt from registration. Because the in struments involved arguably fit within that definition, the defendants contended that they could freely rely on such a definition unless the statutory language clearly indicated otherwise. The Michigan Supreme Court agreed, concluding that because the statutory commercial paper exemption was ambiguous, the defendants lacked the “ ‘fair warning’ ” demanded by the Constitution that their conduct would render them hable to criminal penalties. 396 Mich, at 715-16.
Atteberry’s due process argument in his reply brief overlooks two important facts that distinguish his case from the holding in Dempster.
First, Michigan apparently did not have an administrative regulation, which further defined the commercial paper exemption like that found in K.A.R. 81-5-11 (2006). Kansas’ regulation provides the fair warning lacking in Dempster. In other words, for purposes of due process, K.A.R. 81-5-11 (2006) clearly indicates that the promissory notes issued by Atteberry were not commercial paper exempted from the Act.
Second, and perhaps more importantly, unlike the defendants in Dempster, Atteberry had prior actual notice that his actions were considered criminal. On October 11, 2001, under K.S.A. 17-1266a (Furse 1995), the Kansas Securities Commissioner issued an emergency cease and desist order that was served upon Atteberry. That order required Atteberry to do the following:
" ‘Immediately CEASE and DESIST in the State of Kansas from soliciting offers to buy or making offers to sell, or effecting or transacting sales of the securities, i.e. promissory note [sic], or the securities of any other person or issuer, or directly or indirectly aiding and assisting in the same or attempting to do the same, (1) unless and until such securities have been registered for the offer and sale pursuant to the provisions of the Kansas Securities Act, or unless and until such securities are specifically exempt from the registration requirements of the Kansas Securities Act; and (2) unless and until respondents Dr. Don Atteberry and all other affiliates, employees, or contractors of the respondents who are to be engaged in such solicitations, offers, and sales first become registered as broker-dealers or agents pursuant to the provisions of the Kansas Securities Act, or unless and until such persons are specifically exempt from such registration requirements of the Kansas Securities Act; and (3) unless and until the respondents refrain from all acts and practices which constitute violations or are about to constitute violations of the Kansas Securities Act.’ ”
There seems to be no dispute, nor does Atteberiy contest, that he continued to offer the same cattle embryo investment opportunities even after he was served with this cease and desist order. He likewise continued his behavior after yet another cease and desist order was served upon him on May 14, 2005, which activity apparently led to the filing of the charges to which Atteberry ultimately pled no contest. Moreover, unlike the defendants in Dempster, Atteberry never produced evidence that State officials responsible for enforcing compliance with the Act ever indicated the promissory notes Atteberry issued may fit within Kansas’ commercial paper exemption.
Thus, we conclude that Atteberry had notice that his conduct was criminal under the Act, which was sufficient to satisfy his constitutional due process rights. Cf. Dempster, 396 Mich, at 717 n.11 (noting without deciding that the issuance of cease and desist orders and injunctions under Michigan’s Uniform Securities Act could satisfy due process notice requirements in a particular securities law case where the activity continued thereafter).
Do Atteberry’s Additional Contentions About Why He Should Be Allowed to Withdraw His Plea, Which Were Raised For the First Time on Appeal, Have MeritP
In his second issue, Atteberry contends that he should have been allowed to withdraw his plea to the securities fraud charges (Counts 1, 5, 10, 14,19, 23, 28, and 33) because his counsel was ineffective in failing to argue that those crimes should be specific intent crimes. In his third issue, Atteberiy also briefly argues that his counsel was ineffective for telling him to enter a plea to all of the charges against him when there was no plea agreement and the State had requested an upward departure sentence.
As set forth earlier, this court generally does not consider issues raised for the first time on appeal; see Warledo, 286 Kan. at 938. Nevertheless, Atteberry requests that this court consider the issues under either the first or second exception previously cited to this preservation rule.
We will assume for argument sake that one of the previously mentioned exceptions applies. With regard to his argument that counsel should have argued that the securities fraud charges were specific intent crimes, Attebeny acknowledges that our courts have held crimes under the Act are general intent crimes; see Hodge, 204 Kan. at 107 (“No specific intent is necessary to constitute the offense where one violates the securities act except the intent to do the act denounced by the statute.”); State v. Mehling, 34 Kan. App. 2d 122, 126-27, 115 P.3d 771, rev. denied 280 Kan. 988 (2005) (noting Hodge’s ruling on intent element is binding upon this court and consistent with United States Supreme Court precedent considering § 17 of the Securities Act of 1933, which K.S.A. 2002 Supp. 17-1253 closely follows).
Moreover, the assistance of Atteberry’s counsel could not be deemed constitutionally ineffective when there has been no indication from our Supreme Court that it intended to depart from its previous decisions on this issue. As a result, Atteberry s specific intent argument fails.
Second, the record reveals that Atteberry’s decision to enter a plea despite the fact that there was no plea agreement was not the result of ineffective assistance of counsel.
Importantly, the United States Supreme Court has held that a constitutional infirmity that occurs in the proceedings before a prisoner’s guilty plea does not, in and of itself, automatically establish the right to federal habeas relief based on a claim of ineffective assistance of the counsel who advised the prisoner to enter a plea. Tollett v. Henderson, 411 U.S. 258, 266-67, 36 L. Ed. 2d 235, 93 S. Ct. 1602 (1973). Rather,
“a guilty plea represents a bréale in the chain of events which has preceded it in the criminal process!, after which], . . [the defendant] may only attack the voluntaiy and intelligent character of the guilty plea by showing that the advice he received from counsel was not [‘within the range of competence demanded of attorneys in criminal cases’ — the standard for ineffectiveness of counsel] set forth in McMann [v. Richardson, 397 U.S. 759, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970)].” Tollett, 411 U.S. at 267.
See generally State v. Muriithi, 273 Kan. 952, 956, 46 P.3d 1145 (2002) (recognizing that “ ‘[i]n the context of guilty pleas, the first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence already set forth in Tollett. . . and McMann.’
The Supreme Court further explained:
“A guilty plea, voluntarily and intelligently entered, may not be vacated because the defendant was not advised of every conceivable constitutional plea in abatement he might have to the charge, no matter how peripheral such a plea might be to the normal focus of counsel’s inquiry. And just as it is not sufficient for the criminal defendant seeking to set aside such a plea to show that his counsel in retrospect may not have correctly appraised the constitutional significance of certain historical facts, [citation omitted], it is likewise not sufficient that he show that if counsel had pursued a certain factual inquiry such a pursuit would have uncovered a possible constitutional infirmity in the proceedings.
“The principal value of counsel to the accused in a criminal prosecution often does not he in counsel’s ability to recite a list of possible defenses in the abstract, nor in his ability, if time permitted, to amass a large quantum of factual data and inform the defendant of it. Counsel’s concern is the faithful representation of the interest of his client, and such representation frequently involves highly practical considerations as well as specialized knowledge of the law. Often the interests of the accused are not advanced by challenges that would only delay the inevitable date of prosecution, see Brady v. United States, [397 U.S. 742] at 751-752[, 25 L. Ed. 2d 747, 90 S. Ct. 1463 (1970)], or by contesting all guilt, see Santobello v. New York, 404 U.S. 257, [30 L. Ed. 2d 427, 92 S. Ct. 495] (1971). A prospect of plea bargaining, the expectation or hope of a lesser sentence, or the convincing nature of the evidence against die accused are considerations that might well suggest the advisability of a guilty plea without elaborate consideration of whether pleas in abatement, such as unconstitutional grand jury selection procedures, might be factually supported.” Tollett, 411 U.S. at 267-68.
Atteberry’s sentencing strategy was to accept blame for his actions but to furnish a substantial and compelling reason necessary to obtain probation. Atteberry and his attorney, Cornwell, decided that because Atteberiy was a veterinarian with specialized knowledge in cattle embryo transfer that he would urge the trial court to accept his departure motion based upon his ability to repay the large sum of restitution that would be ordered in the case.
At the June 21, 2007, sentencing, Cornwell gave the trial court insight into his reasoning of not entering into a plea agreement with the State:
“MR. CORNWELL: I met Mr. Atteberry, Dr. Atteberry, back in October of last year. Approximately that time I was in this courtroom and we set this case for trial. Dr. Atteberry, Don, and I worked and worked and talked and strategized and looked at this thing. How did you get into it? What did you do? What was going on? And we came to the conclusion that we shouldn’t, couldn’t, wouldn’t go to trial. I called and talked with Mr. Schultz, who has been very helpful, very professional, to try to work something out. Obviously, there is now a big contention about whether he is behind bars for a number years or whether or not he’s going to be on probation. Right now, he is presumptive prison. My argument at the time, when I talked with Mr. Schultz, was, ‘Let’s pay these people back. That’s the most important thing.’ ‘I’ve heard that story before, Mr. Cornwell, Carl.’ So we became loggerheads. Because you always offer something, you always enter negotiations, you want to have options for your client. You want to try to figure out what’s the best thing. The offer was level 4’s, 43 months concurrent, go do your time.
“I talked with Dr. Atteberry about that because the potentiahty was, if we didn’t do that and we didn’t go to trial, then we had to come in here and do what we did when we pled guilty, which was no contest to everything, because on his behalf I wanted to act like a lawyer, I wanted to defend him and I wanted to advocate for him.”
Generally, a sentencing judge is guided by the following criteria in fashioning an appropriate sentence: (1) the disciplining of the offender, (2) the protection of society, (3) the potential for rehabilitation of the offender, and (4) the deterring of others from committing similar offenses. Obviously, one of the factors which the sentencing court may consider in determining the rehabilitative potential of a defendant is whether the defendant is willing to make restitution to the person or persons who have been injured or victimized by the offense.
As the State points out, if Atteberry chose to go to trial and the State’s departure motions were granted, he could have easily received up to twice the sentence he received or 172 months. K.S.A. 21-4720(c)(2). The offer by the State to plead to level 4 securities fraud counts with a 43-month prison recommendation to the trial court was rejected by Atteberry. If going to trial was not an option, the only way to attempt to control whether Atteberry was placed on probation was to plead as charged and use a departure motion at sentencing to accomplish his goal of probation.
Viewing the representation of Atteberry’s counsel as a whole, Atteberry has failed to overcome the presumption that his trial counsel’s performance was effective. As a result, his argument fails.
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Knudson, J.:
John Sybrant appeals his convictions of driving under the influence (DUI) of alcohol and failing to maintain a single lane of traffic, arguing that he was convicted of an offense for which he had not been properly charged, that the district court erred in instructing the jury on DUI, that the State presented insufficient evidence of Sybrant’s identity as the perpetrator of the charged crimes, and that the district court erred in refusing to honor Sybrant’s request for self-representation. We affirm in part, reverse in part, and remand with directions to vacate Sybrant’s convictions and grant a new trial.
Underlying Circumstances
On August 29, 2005, Lieutenant Mark McCaslin of the Arkansas City Police Department arrested Sybrant for DUI. A blood test revealed that the alcohol concentration in Sybrant’s blood exceeded the legal limit of .08 at the time he had been driving.
The City charged Sybrant with DUI and failing to maintain a single traffic lane. Sybrant entered a nolo contendere plea to both counts. He was sentenced by the municipal court to 180 days in jail but required to serve only 5 days, followed by a 12-month term of supervised probation. The court imposed a fine of $1,000 for the DUI conviction and a $60 fine for the failure to maintain a single traffic lane conviction.
Sybrant filed a timely appeal to the district court, requesting a de novo jury trial. Following trial, the jury convicted Sybrant of DUI and failure to maintain a single traffic lane. The district court denied Sybrant’s motion to set aside the verdicts and his motion for new trial and affirmed the sentences imposed by the municipal court. Sybrant then filed this appeal.
Was Sybrant convicted of a crime for which he was not properly charged?
Sybrant contends his conviction for DUI must be reversed and vacated because, in granting Sybrant’s motion for judgment of acquittal on the State’s theoiy of DUI based upon the alcohol concentration in Sybrant’s breath or blood, the district court dismissed the only DUI count charged in the City’s amended complaint.
The complaint or information is the jurisdictional instrument upon which a defendant is brought to trial; it must allege the essential elements of the charged offenses. Carmichael v. State, 255 Kan. 10, 12, 872 P.2d 240 (1994). “ ‘An information is the only vehicle by which a court obtains its jurisdiction, and is a limit upon that jurisdiction. Therefore, where the information charges no crime, the court lacks jurisdiction to try the accused.’ ” 255 Kan. at 13 (quoting 22 C.J.S., Criminal Law § 157, p. 188). Furthermore, if a crime is not specifically stated in the complaint or information or is not a lesser included offense of the crime charged, the district court lacks jurisdiction to convict a criminal defendant of the crime. State v. Gonzales, 289 Kan. 351, 367, 212 P.3d 215 (2009).
In this case, the City relied upon the municipal court complaint in Sybrant’s appeal to the district court. See City of Wichita v. Maddox, 271 Kan. 445, 454, 24 P.3d 71 (2001) (“[A] district court hearing an appeal from a municipal court does not have to rearraign the accused person on any of the charges and may properly hold the trial on the basis of the municipal court complaint [if it is not required to be amended as allowed by K.S.A. 22-3610(a)].”). The City’s amended municipal court complaint, with respect to the DUI charge, provided:
“1. That on or about the 29th day of August, 2005, the Accused Person John Sybrant, did, within the City Limits of the City of Arkansas City, Cowley County, Kansas, then and there unlawfully commit the offenses of:
“(Count 1) Driving Under the Influence of Intoxicating Liquor or Drugs— Second Offense, in violation of Arkansas City Municipal Code Standard Traffic Ordinance Article 6, Section 30, when the Accused Person operated a motor vehicle in ibis city while the alcohol concentration in the person’s blood or breath was in excess of the legal limit.”
Clearly, the complaint alleged the commission of DUI by operation of a motor vehicle while the alcohol concentration in Sybrant’s blood was in excess of .08, but the complaint omits the language of the city ordinance that mirrors state law and permits an alternative charge of DUI to be based on a driver s inability to operate a motor vehicle safely. Therefore, although not precisely framed, Sybrant’s appellate argument essentially challenges his conviction on the basis of a defective complaint. Appellate review of an allegedly deficient complaint is unlimited. State v. Reyna, 290 Kan. 666, 675, 234 P.3d 761 (2010).
In response, the City contends that any specificity with respect to the particular subsection of DUI in the complaint is irrelevant because such specificity in pleading is not required in municipal court complaints. Citing State v. Boyle, 21 Kan. App. 2d 944, 947, 913 P.2d 617 (1996), the City contends that the amended complaint was adequate because it alleged the offense of conviction.
Boyle involved a municipal court conviction based upon a written citation for DUI that complied with the requirements of K.S.A. 8-2106(b). Noting that K.S.A. 12-4205a specifically allows prosecution of certain misdemeanor traffic offenses upon a citation that complies with K.S.A. 8-2106(b), the Boyle court rejected the defendant’s argument that additional specificity was required. 21 Kan. App. 2d at 947.
Contrary to the City’s position, the complaint issued in the present case did not contain all of the information required by K.S.A. 8-2106(b). There is no information regarding the type of vehicle, the registration number of the vehicle, or any other information that is less relevant to the facts of this particular case. It is unnecessary to decide in this case whether information within the traffic citation may supplement a municipal court complaint because a traffic citation was not included in the record on appeal and, therefore, this court must presume that the facts do not support a finding that the traffic citation, if it exists, would supplement the complaint. See Porter v. State, 37 Kan. App. 2d 220, 222, 152 P.3d 89, rev. denied 284 Kan. 946 (2007) (citing Kansas Supreme Court Rule 6.02[d] [2006 Kan. Ct. R. Annot. 36]).
In Boyle, this court acknowledged that municipal court complaints issued for nontraffic offenses must comply with K.S.A. 22-3201. 21 Kan. App. 2d at 947 (citing State v. Shofler, 9 Kan. App. 2d 696, 697-98, 687 P.2d 29 [1984]). Similarly, there is no apparent reason that a municipal court complaint that does not reflect the requirements of a traffic citation and/or incorporate by reference a valid traffic citation should avoid the requirements of K.S.A. 22-3201.
K.S.A. 22-3201 provides in pertinent part:
“(b) The complaint, information or indictment shall be a plain and concise written statement of the essential facts constituting the crime charged, which complaint, information or indictment, drawn in the language of the statute, shall be deemed sufficient. . . . The complaint, information or indictment shall state for each count the official or customary citation of the statute, rule and regulation or other provision of law which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the complaint, information or indictment or for reversal of a conviction if the error or omission did not prejudice the defendant.
“(c) When relevant, the complaint, information or indictment shall also allege facts sufficient to constitute a crime or specific crime subcategoiy in the crime seriousness scale.”
The amended municipal court complaint at issue in this case substantially complies with the requirements of K.S.A. 22-3201(b) and (c) and validly charges DUI based upon Sybrant’s alcohol-concentration level. The district court clearly possessed jurisdiction to try Sybrant for this offense. The question presented by Sybrant in this appeal is whether the district court also possessed jurisdiction to try and convict Sybrant for DUI based upon his inability to operate a motor vehicle safely.
The proper avenue for challenging a defective complaint is a motion for arrest of judgment pursuant to K.S.A. 22-3502, which provides:
“The court on motion of a defendant shall arrest judgment if the complaint, information or indictment does not charge a crime or if the court was without jurisdiction of the crime charged. The motion for arrest of judgment shall be made within 10 days after the verdict or finding of guilty, or after a plea of guilty or nolo contendere, or within such further time as the court may fix during the 10-day period.” (Emphasis added.)
Sybrant did not file a motion for arrest of judgment but raises his challenge to the defective complaint for the first time on appeal. Accordingly, this court applies the standard of review set forth in State v. Hall, 246 Kan. 728, 765, 793 P.2d 737 (1990), overruled in part on other grounds Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003); see Reyna, 290 Kan. at 677. The Hall standard requires the aggrieved criminal defendant to establish prejudice in one of three ways: (1) The defective complaint has impaired the defendant’s ability to prepare a defense; (2) the complaint would prevent the defendant from raising a double jeopardy defense in a subsequent prosecution; or (3) the complaint limited, in any manner, the defendant’s constitutional right to a fair trial. Reyna, 290 Kan. at 678.
Sybrant fails to allege any specific prejudice arising from the defective complaint, and an independent review of the record reveals no prejudice sufficient to mandate reversal of Sybrant’s conviction for DUI. Throughout the district court proceedings, the City maintained that Sybrant was incapable of operating his vehicle safely due to the influence of alcohol. The City forwarded this theory in its proposed jury instructions and in its opening statements. When the district court introduced the case to the potential jurors, the court noted that the City was proceeding under alternate theories of DUI. Sybrant never objected to the City’s theory that he was influenced by alcohol to a point that rendered him incapable of operating a motor vehicle safely, and the record provides no indication that Sybrant was surprised or confused by this theory of DUI.
Sybrant’s defense consisted of denying Lieutenant McCaslin’s allegations regarding Sybrant’s conduct on the date in question and providing a rational, legal explanation for his slow speed and weaving within his lane of traffic. In view of the defense presented, it is difficult to perceive how Sybrant’s defense was impaired by the complaint’s failure to include the operational alternative of DUI or how the defect in the complaint affected Sybrant’s ability to obtain a fair trial in any respect.
Additionally, Sybrant’s conviction of DUI for the alternate theory of DUI provides no real possibility that the City or State could subject Sybrant to further prosecution for the same crime arising out of the same facts. Therefore, Sybrant’s double jeopardy defense remains intact.
Because Sybrant cannot establish any prejudice under the Hall standard, the defects in the City’s amended municipal court complaint do not demand reversal of Sybrant’s conviction for DUI.
Was the jury instruction on DUI clearly erroneousP
Sybrant contends the district court erred in its DUI elements instruction to the juiy. Sybrant acknowledges that he did not object to the instruction at trial.
When a criminal defendant challenges a jury instruction on appeal without objecting to the instruction at trial, an appellate court will reverse a conviction and order a new trial only where the instruction is clearly erroneous, meaning that the court is firmly convinced of a real possibility that the jury would have rendered a different verdict if the erroneous instruction had not been given. State v. Trautloff, 289 Kan. 793, 802, 217 P.3d 15 (2009); see K.S.A. 22-3414(3).
The jury instruction on DUI validly presented the elements of the offense under a theory that Sybrant was incapable of safely operating his vehicle on the date in question. Sybrant’s only objection to the instruction is that it does not reflect the charged alternative of the offense, which is essentially a repetition of his first argument in this appeal.
In Trautlojf, the Kansas Supreme Court found clearly erroneous a jury instruction that expanded the narrow scope of sexual exploitation of a child charged in the information. The court noted that a jury instruction on the elements of a crime that is broader than the complaint is erroneous and excusable only where the substantial rights of the defendant have not been prejudiced by the error. Finding that the broader scope of the jury instruction permitted the jury to find conduct that was not charged in the complaint to support a conviction, the Trautloff court concluded that the defendant’s substantial rights had been prejudiced by the instruction. 289 Kan. at 802-03.
Similarly in State v. Wade, 284 Kan. 527, 161 P.3d 704 (2007), the State had charged the defendant with aggravated burglary without alleging the intended felony upon which the charge was predicated, but the State had cured this defect by advising the court and defense that it intended to rely upon first-degree premeditated murder as the underlying felony. At trial, however, the jury was instructed that the underlying felony could be premeditated murder or aggravated assault based upon the defendant’s testimony.
On appeal, the Kansas Supreme Court concluded that the broader jury instruction prejudiced the defendant because the State had proceeded on the theory that Wade intended to commit premeditated murder throughout its case-in-chief and only presented the alternate theory after Wade testified and essentially admitted to aggravated assault. Wade, 284 Kan. at 537.
The present case is distinguishable from both Trautloff and Wade. Although Trautloff did not explicitly state the reason that the defendant was prejudiced by the jury’s ability to rely on conduct other than that charged in the information, it is clear that the prejudice lay in Trautloff s lack of notice of the conduct against which he was expected to defend himself. This prejudice was specifically articulated in Wade. See 284 Kan. at 536 (‘Where the State falters is in its assessment of the surprise and misdirection created by its erroneous instruction.”).
In contrast, as related in the previous discussion, the State presented its alternative theories of DUI throughout the district court proceedings. Sybrant’s presentation of his defense or decision to testily could not have been influenced by the City’s complaint that omitted the operational theory of the offense. Sybrant can demonstrate no surprise or confusion caused by the jury instruction on DUI provided in this case. Consequently, the jury instruction does not mandate reversal of Sybrant’s DUI conviction.
Does the record contain sufficient evidence of Sybrant’s identity to support the convictions?
Sybrant next challenges the sufficiency of the City’s evidence regarding the identity of Sybrant as the person who committed the charged DUI. When the sufficiency of the evidence is challenged in a criminal case, the appellate court must review the record in a light most favorable to the State and determine whether a rational factfinder could have concluded beyond a reasonable doubt that the accused had committed the crime that is being challenged. Trautloff, 289 Kan. at 800.
Circumstantial evidence may support a conviction if the evidence provides a sufficient basis from which a reasonable factfinder could infer the existence of the fact in issue, even if the evidence does not exclude other reasonable inferences. State v. Scaife, 286 Kan. 614, 618, 186 P.3d 755 (2008). Am in-court identification of the defendant is not necessary if the evidence permits an inference that the person on trial is the person who committed the charged offense or offenses. In re B.A.M., 24 Kan. App. 2d 402, Syl. ¶ 1, 945 P.2d 420, rev. denied 263 Kan. 886 (1997).
In presenting the case to the juiy, the district court identified the defendant as Sybrant. During the City’s direct examination, it asked Lieutenant McCaslin whether he had contacted Sybrant on August 26, 2005, and McCaslin affirmed that he had contacted Sybrant. McCaslin then proceeded to relate the events leading to the traffic stop and citations for DUI and failure to maintain a single traffic lane. When asked whether he was able to identify the driver of the vehicle, McCaslin stated that the driver was Sybrant. Based upon this testimony alone, the State presented sufficient evidence from which a jury could conclude beyond a reasonable doubt that the person on trial was the person who had committed the charged offenses.
In addition, however, Sybrant confirmed his identity as the driver of the vehicle stopped by McCaslin when he testified. Sybrant admitted that he was pulled over by McCaslin and that he told McCaslin that he had been drinking. With this additional evidence, there is no question regarding Sybrant’s identity as the perpetrator of the charged offenses.
Did the district court err in refusing to honor Sybrant’s request to represent himself at trial?
Sybrant also challenges the district court’s refusal to allow Sybrant to represent himself at trial. The Sixth Amendment to the United States Constitution provides a personal right of defense to a criminal defendant and, accordingly, protects a criminal defendant’s ability to represent himself or herself to the extent that the waiver of the competing right to counsel is found to be knowing and intelligent. See Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). However, the Faretta Court noted that the right of self-representation is not a license to disrupt the administration of justice. 422 U.S. at 835 n.46.
In the appeal before us, the defendant contends our standard of review of the district court’s decision is de novo. Conversely, the State argues our standard of review is abuse of discretion. We submit, based on the issue before us, that to label the standard of review merely produces a distinction without a legal difference. In State v. Moore, 287 Kan. 121, 194 P.3d 18 (2008), the Kansas Supreme Court explained that sometimes, abuse of discretion standards are more accurately characterized as questions of law requiring de novo review. An abuse of discretion standard does not mean that a mistake of law cannot be corrected by an appellate court. Rather, a district court necessarily abuses its discretion when it makes an error of law. Under the abuse of discretion standard, an appellate court reviews whether the district court’s discretion was guided by erroneous legal conclusions. 287 Kan. at 135. Consequently, we turn to the issue of whether the district court made an error of law when it denied Sybrant’s request for self-representation made on the morning of trial.
Sybrant did not file a written motion requesting self-representation but raised the request through his court-appointed attorney on the day of trial, with the jury pool summoned and jury selection to begin momentarily. Upon hearing Sybrant’s request, the district court appropriately warned Sybrant of the dangers attending self-representation, including Sybrant’s lack of familiarity with the rules of criminal procedure, his lack of understanding about witness ex- animation, and doubt about Sybrant’s legal sophistication to enable Sybrant to adequately prepare and object to jury instructions. Acknowledging his legal ignorance, Sybrant steadfastly insisted that he wished to represent himself, at least to the extent that he could cross-examine the City’s witnesses.
Sybrant provided two reasons for wanting to represent himself: (1) He did not want to pay an attorney, and (2) he did not believe that his attorney could adequately prepare for trial. The district court addressed these concerns by noting that Sybrant would have an attorney even if he proceeded pro se because the court would require his court-appointed attorney to assist Sybrant in his defense and by rejecting Sybrant’s claim that his attorney was not prepared for trial and assuring Sybrant that he could request time to confer with his attorney throughout the case as necessary. The court then denied Sybrant’s request to represent himself.
Following the trial, Sybrant filed a motion for new trial, premised in part upon the district court’s refusal to permit Sybrant to represent himself. In denying the motion, the district court emphasized the untimely nature of Sybrant’s request for self-representation and noted that Sybrant’s concerns with appointed counsel were adequately allayed by the district court.
In response to the timeliness aspect of the district court’s ruling, Sybrant relies on State v. Vann, 280 Kan. 782, 786-89, 127 P.3d 307 (2006), and State v. Lowe, 18 Kan. App. 2d 72, 74-75, 847 P.2d 1334 (1993), for the proposition that a request for self-representation on the day of trial does not constitute a basis for denying the request. However, as the State notes, neither Vann nor Lowe address the timeliness of the request for self-representation.
In State v. Cuddy, 22 Kan. App. 2d 605, 609-10, 921 P.2d 219 (1996), this court did directly consider the timeliness issue. In doing so Judge Rulon (now Chief Judge) distinguished Lowe and reviewed opinions from other jurisdictions on the question of the timeliness of a request for self-representation, ultimately adopting a balancing test.
“When considering a criminal defendant’s motion for self-representation, atrial court may consider the reasons for the motion for self-representation; the quality of counsel’s representation; the length and the stage of the proceedings; and the potential disruption and delay which could be expected from granting the motion.” 22 Kan. App. 2d at 610 (citing People v. Hall, 87 Cal. App. 3d 125, 132, 150 Cal. Rptr. 628 [1978]).
While factually distinguishable, State v. Cromwell, 253 Kan. 495, 505, 856 P.2d 1299 (1993), has articulated a similar balancing test, emphasizing that the district court’s discretion in denying a late request for self-representation involves a balancing of the alleged prejudice to the defendant arising from the denial of his or her request with the disruption of the proceedings, inconvenience and delay in the proceedings, and juror confusion potentially arising if the request is granted.
The district court in the present case clearly considered Sybrant’s reasons for requesting self-representation, i.e., the financial repercussions of legally trained representation, the preparedness of Sybrant’s appointed counsel, and Sybrant’s desire to conduct cross-examination of the City’s witnesses. However, the court did not specifically address the remaining considerations articulated by Cromwell or Cuddy. Consequently, the record does not reflect that granting Sybrant’s request for self-representation on the day of trial would have delayed the trial proceedings or caused any greater disruption to the proceedings than normally attends pro se litigation. Moreover, there is no reason to believe that the jury would have been confused by the change in representation since a jury had not yet been empanelled.
Contraiy to the apparent reasoning of the district court, a criminal defendant’s lack of legal sophistication is not a valid ground for denying the right to self-representation, even if the denial would be in the defendant’s best interests. See State v. Jones, 290 Kan. 373, 378, 228 P.3d 394 (2010) (citing Godinez v. Moran, 509 U.S. 389, 399-400,125 L. Ed. 2d 321, 113 S. Ct. 2680 [1993]). The critical inquiry is whether the criminal defendant’s decision to proceed pro se and waive the right to counsel is knowing and intelligent. See Jones, 290 Kan. at 378. The district court did not conduct an appropriate inquiry into Sybrant’s decision or appropriately balance the applicable considerations regarding the timeliness of Sybrant’s request. Consequently, the record does not support the district court’s refusal to allow Sybrant to proceed pro se, and the case should be reversed and remanded for a new trial. See Jones, 290 Kan. at 382-83 (finding structural error in the district court’s erroneous refusal to permit the defendant to represent himself).
Conclusion
Although we have affirmed several of the issues raised, because there was structural error in the district court’s refusal to permit the defendant to represent himself, we reverse and remand with directions that the convictions are to be vacated and a new trial granted. | [
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Green, J.:
Randy Dean Hart appeals from his jury trial convictions and sentences for two counts of indecent liberties with a child in violation of K.S.A. 21-3503(a)(l). Hart raises eight arguments on appeal. Hart first argues that the evidence was insufficient to convict him of indecent liberties with a child in regard to the victim, C.H., because the evidence failed to show that C.H. was 14 years of age or older but less than 16 years of age when the alleged crime occurred. We disagree. Based on the testimony in this case, the legislature’s intent as expressed through tire statutory scheme of punishing sexual offenders for their crimes against children, and defense counsel’s role in making sure the complaint was amended to be consistent with C.H.’s testimony that the crime occurred when C.H. would have been 14 years old, we determine that the evidence was sufficient to convict Hart of indecent liberties with a child.
Next, Hart maintains that the prosecutor committed misconduct during closing argument when she gave her personal opinion that the victims were credible. We again disagree. In reviewing Hart’s argument, we find only one of the prosecutor’s comments that was outside of the wide latitude afforded the prosecutor during closing arguments. Nevertheless, because this isolated comment was not gross and flagrant and did not demonstrate ill will on the prosecutor’s part, we find that it was not so egregious as to warrant a new trial. Next, Hart argues that the trial court erred in providing a jury instruction for indecent liberties with a child that was broader than the charging document. Nevertheless, because the record demonstrates that Hart’s substantial rights have not been prejudiced by the giving of the instruction, his argument on this issue fails.
Next, Hart contends that the trial court erred in admitting prior bad acts evidence involving the victims to prove motive, intent, plan, and absence of mistake or accident under K.S.A. 60-455. Although Hart objected to the admission of the prior bad acts evidence in a motion in limine and during trial, we determine that his objection to this evidence at trial was untimely. As a result, we determine that Hart failed to adequately preserve the issue of the admissibility of the K.S.A. 60-455 evidence for appeal. Nevertheless, to get to the legal issue involved in this appeal, the State, during oral argument, stipulated that Hart’s objection to the admission of the K.S.A. 60-455 evidence at trial was sufficiently timely to preserve the issue for appeal. Assuming arguendo that Hart’s objection to this evidence was sufficiently timely, we would find no reversible error concerning this issue. Under K.S.A. 2009 Supp. 60-455(d), which would apply retroactively to Hart’s case, the prior bad acts evidence in this case is admissible to show the relationship of the parties.
Hart also raises the following arguments in the present appeal: (1) that the trial court erred in giving a limiting instruction on the admitted K.S.A. 60-455 evidence; (2) that cumulative error denied him his constitutional right to a fair trial; (3) that his constitutional rights were violated when the trial court sentenced him to an aggravated sentence in the sentencing grid block; and (4) that his constitutional rights were violated when the trial court sentenced him to an increased sentenced based upon his criminal history. Nevertheless, we find no merit to any of these remaining arguments. Accordingly, we affirm.
Facts
In May 2008, Hart was charged with two counts of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(2)(A), a severity level 3 felony. The first count was based on an incident in which Hart allegedly fondled or touched the breasts of his daughter, C.H. (date of birth 09/15/90), while C.H. was in the shower when she was 15 years old. The second count was based on an incident in which Hart allegedly fondled or touched the breasts of his former wife’s cousin, N.B. (date of birth 03/18/91), when she was 14 years old.
Before trial, the State moved to admit prior crimes evidence under K.S.A. 2009 Supp. 60-455. The State asserted that Stacy Hart, who was Randy Hart’s former wife and C.H.’s stepmother, had contacted the police to report concerns about the behavior of her 4-year-old daughter, K.H. According to the State, Stacy reported that when she contacted C.H. to ask whether she was aware of any improper contact between Hart and K.H., C.H. revealed improper contact between C.H. and Hart on many occasions. In addition, the State alleged that when N.B. became aware of Stacy’s concerns regarding K.H., N.B. revealed to the police that Hart had improperly touched her on many occasions.
The State asserted that both C.H. and N.B. had reported prior incidents from the ages of approximately 7 years old to 14 or 15 years old. According to the victims’ allegations, the contact would start out with Hart showing C.H. and N.B. pictures in Playboy magazines and then requiring C.H. and N.B. to emulate the poses used in the pictures while he watched. In addition, C.H. and N.B. alleged that Hart also attempted to get them to touch him, but they would not touch him.
The State argued that evidence of Hart’s uncharged prior crimes against C.H. and N.B. was admissible under K.S.A. 2009 Supp. 60-455 to prove motive, plan, preparation, lack of mistake or accident, and the relationship of the parties. In addition, the State argued that the evidence regarding Stacy’s concerns about K.H.’s behavior was admissible to explain how the allegations involving C.H. and N.B. came to the attention of law enforcement.
In responding to the State’s motion to admit the prior crimes evidence under K.S.A. 2009 Supp. 60-455, Hart argued that the prior crimes evidence would potentially prejudice his right to a fair trial and that the probative value of the evidence would be outweighed by its prejudice. Alternatively, Hart argued that if the prior crimes evidence was allowed, the testimony should be restricted to similar incidents, that is, fondling of the breasts.
The trial court determined that the evidence involving Hart’s prior uncharged acts against C.H. and N.B. was admissible under K.S.A. 2009 Supp. 60-455 and our Supreme Court’s decision in State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006). Regarding Stacy’s suspicions concerning K.H.’s behavior, however, the trial court determined that such evidence would be too inflammatory, that the prejudicial effect would outweigh any probative value, and that the evidence was not relevant to show any of the factors under K.S.A. 60-455.
I. C.H.’s Testimony
At trial, C.H. testified about an incident that occurred while she was in the shower when Randy opened the shower curtain and touched her breast. C.H. testified that she thought she was 13 years old when the incident occurred but admitted that she might have been 14 years old when the incident occurred. C.H. testified that the shower incident was not the first time that Randy had touched her and that touching incidents had been occurring for a couple of years. According to C.H., she had told Belinda Brown, Stacy’s mother, about Randy’s improper touching. C.H. testified that Brown told her that “as long ago as it happened,” she would not say anything about Randy’s improper behavior.
According to C.H., the police in Caney, Kansas, had contacted her in 2007 and had asked her and her younger sister, D.M., about any improper touching by Randy. C.H. testified that both she and D.M. had told the police that nothing had happened. Nevertheless, C.H. testified that when Stacy later contacted her about Stacy’s suspicions that Randy was improperly touching a younger sibling, C.H. agreed to go to the police about Randy’s improper conduct towards her. When Stacy contacted C.H. about going to the police, Stacy and Randy were divorced, and Stacy was living with Brown. Stacy and Randy had four children together, and Stacy had residential custody of the children.
During cross-examination, C.H. admitted that she had gotten into an argument with Randy in May 2008, less than a week before charges were filed in this case, and had moved out of Randy’s house. According to C.H.’s testimony, Randy had forbidden C.H. from going to see her boyfriend because there were allegations that the boyfriend’s father had gotten a high school girl pregnant. C.H. testified that Randy told her that if she went over to her boyfriend’s house, she could move out of the house. According to C.H., she went over to her boyfriend’s house and stayed there that night and then went to stay with her mother.
II. N.B.’s Testimony
N.B. testified that the earliest age she could remember Randy improperly touching her was when she was approximately 7 years old. N.B. testified that she lived with Stacy and Randy from the time she was 4 years old until she was approximately 10 years old. When she stopped living with Stacy and Randy, N.B. moved in with Brown, who was N.B.’s aunt and legal guardian. According to N.B., when she was approximately 11 years old, she lived intermittently with Stacy and Randy, depending on where they were living.
According to N.B., when she was staying with Stacy and Randy, Randy would come into her room at night and touch her vaginal area. N.B. testified that she and C.H. shared a bed while they lived together and that they would both be there when Randy would come into the room at night. N.B. further testified that Randy would improperly touch C.H. and that it just “depended on who he chose to touch that night.”
When questioned about the charged offense, N.B. testified that Randy had grabbed her breasts when she was approximately 14 years old. According to N.B., she suffered from muscular dystrophy and had to have help walking. N.B. testified that when she asked Randy to help her walk, he stood behind her and “grabbed her boobs.” N.B. further testified that Brown walked by the room when this incident occurred. Brown testified that as she walked in the room, she saw Randy helping N.B. up from behind with both of his hands touching N.B.’s breasts.
N.B. testified that she had not reported the incidents earlier because Randy was her father figure, because she and C.H. were afraid of Randy, because they thought they had done something wrong, and because they thought they would make Stacy mad if they told her about the incidents.
N.B. testified, however, that she decided to report Randy’s conduct because she did not want the younger girls in the family to be molested by Randy. N.B. testified that Stacy took her to the police station to talk with law enforcement officers about the sexual abuse. Later, Stacy drove N.B. to the Sunlight Child Advocacy Center in El Dorado to be interviewed about the sexual abuse allegations. Finally, Stacy took N.B. to the hospital for a sexual assault examination.
Nicole Stump, coordinator of the Sunlight Child Advocacy Center, interviewed C.H. and N.B. in May 2008 about the alleged sexual abuse by Randy. According to Stump, both N.B. and C.H. revealed that they had been fondled by Randy. During her testimony at trial, Stump explained a variety of reasons why children are often very reluctant to disclose sexual abuse. Stump testified that children often do not want to hurt a family member or their family unit and they learn how to accommodate the abuser just to make it easier and not cause a problem.
III. Defense Evidence
During his testimony at trial, Randy denied that he committed the charged offenses. Moreover, Randy presented testimony from his sister-in-law, Cathleen Hart, who had driven C.H. to the 2007 interview with the Caney police. Cathleen testified that while she was driving C.H. home from the 2007 interview, C.H. told her that Randy had never touched her inappropriately.
Randy testified that before he was arrested for the sexual offenses, he had become concerned with the discipline at Brown’s house after hearing his oldest son cursing at Stacy and hearing that his son’s temper was becoming out of control at school. Randy further testified that several days after he told Stacy he was going to attempt to obtain residential custody of the children, the Kansas Department of Social and Rehabilitation Services contacted him about reports of physical abuse. Nevertheless, the allegations of abuse were later determined to be unsubstantiated.
Randy testified that after the reports of physical abuse were determined to be unsubstantiated, he was supposed to have the children for several weeks. Nevertheless, the children did not come to visit, and Randy was later arrested on the sexual abuse charges.
IV. Amendment of Complaint
At the close of the State’s evidence, the trial court allowed the prosecutor to amend the complaint to allege that the charged incident with C.H. occurred between January 1, 2005, and July 1, 2005, when C.H. was 14 years old. Additionally, before jury instructions were given, the trial court allowed the prosecutor to amend both counts of the complaint to allege indecent liberties with a child in violation of K.S.A. 21-3503(a)(l), a level 5 person felony (instead of two counts of aggravated indecent liberties with a child in violation of K.S.A. 21-3504[a][2][A], a severity level 3 felony).
V. Verdict and Sentencing
The jury found Hart guilty of both counts of indecent liberties with a child. The trial court sentenced Hart to a controlling term of 80 months in prison.
Analysis
I. Sufficiency of the Evidence
First, Hart contends that there was insufficient evidence to convict him of the indecent liberties charge under K.S.A. 21-3503(a)(1) involving C.H. when the evidence showed that C.H. was 13 (not between the ages of 14 and 16) when the alleged incident occurred.
When a defendant challenges the sufficiency of the evidence in a criminal case, an appellate court reviews all the evidence in the light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Trautloff, 289 Kan. 793, 800, 217 P.3d 15 (2009).
K.S.A. 21-3503(a) defines the crime of indecent liberties with a child in felevant part as follows:
“Indecent liberties with a child is engaging in any of the following acts with a child who is 14 or more years of age but less than 16 years of age:
(1) 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.”
Based on the amended charges in this case, in order for Hart to be convicted of indecent liberties with C.H. under K.S.A. 21-3503(a), the State was required to prove the following elements: (1) that Hart fondled or touched C.H. in a lewd manner, with the intent to arouse or to satisfy the sexual desires of either C.H. or Hart or both; (2) that C.H. was then a child 14 or more years of age but less than 16 years of age; and (3) that this act occurred on or about an unknown date between January 1, 2005, and July 1, 2005, in Elk County, Kansas. See PIK Crim. 3d 57.05.
The charge in the amended complaint, which was submitted to the jury, alleged that Randy had committed the crime of indecent liberties with C.H. between January 1, 2005, and July 1, 2005. Because C.H.’s date of birth was September 15, 1990, she would have been 14 years old between the dates of January 1, 2005, and July 1, 2005.
In arguing that the evidence clearly showed that C.H. was 13 years old (and not 14 or more years old but less than 16 years old) when the charged incident occurred, Hart points to the following testimony by C.H. elicited on direct examination:
“[Prosecutor:] That happened in Longton. Okay. Do you remember when it happened?.. .
“[C.H.:] Age. It would be like 6th or 7th grade.
“[Prosecutor:] But do you remember how old you were at the time. Yeah. Add her up.
“[C.H.:] Thirteen — thirteen, I think.
“[Prosecutor:] Okay. Would it be possible that you might have been 14?
“[C.H.:] Possibly. I was 13 at the beginning of the year and 14 at the end, so.
“[Prosecutor:] Okay. All right. Do you remember what time of year?
“[C.H.:] To guess, I would say like spring.
“[Prosecutor:] And so you could have not been in the 7th grade in the spring. What year were you bom, [C.H.]?
“[C.H.:] Nineteen ninety.
“[Prosecutor:] Okay. So if you were 14, would that have been like 2004 or something like that?
“[C.H.:] Yeah.
“[Prosecutor:] Spring perhaps? You are not real sure about that?
“[C.H.:] I would have to sit and figure it out.”
Contrary to Hart’s argument, this testimony did not clearly establish that C.H. was 13 years old when the alleged incident occurred. Rather, C.H.’s testimony demonstrates that she was uncertain as to her exact age and the date when the alleged incident occurred. According to C.H., she was “thirteen, I think” when the alleged incident occurred but she could have “possibly” been 14 years old. Later, on redirect examination, C.H. admitted that she had previously testified she was 14 years old but testified that she could not remember the year the alleged incident occurred:
“[Prosecutor:] Now, when you testified just a little bit ago while this incident occurred, I believe, when you were about 14, correct?
“[C.H.:] Yeah.
“[Prosecutor:] So actually this happened probably a little bit longer ago than 2006, because were you 14 in 2006?
“[C.H.:] No. I don’t remember years at all. Even if it was in El Dorado, they were asking and I couldn’t remember at all.”
As evidenced by C.H.’s testimony, this case does not fall within the line of cases where the State failed to put on direct evidence at trial to establish the victim’s age when the alleged crime occurred. See State v. Perez-Rivera, 41 Kan. App. 2d 579, 203 P.3d 735 (2009) (holding that evidence was insufficient to show that victim was 18 years of age or older when alleged battery occurred where State presented no direct evidence of victim’s age and jury should not have been permitted to make an inference about victim’s age based on its own observations of victim’s physical appearance and demeanor at trial); State v. Sanders, No. 100, 595, unpublished opinion filed April 2, 2010 (holding that although State presented no direct evidence of victim’s age when alleged crime occurred, jury reasonably inferred from proven evidence that victim was 16 years of age or older when alleged incident occurred). Rather, the prosecutor directly elicited testimony from C.H. regarding her age when the alleged crime occurred.
In reading C.H.’s testimony and her uncertainty as to whether she was 13 or 14 years old when the alleged incident occurred, one can see the difficulty that the prosecutor would be faced with in charging Hart and in submitting the proper charge to the jury. Under the statutes in effect when Hart committed the alleged acts, if C.H. was younger than 14 years old when the alleged crime occurred, then the prosecutor should have charged aggravated indecent liberties with a child under K.S.A. 21-3504(a)(3)(A) (Furse 1995). If C.H. was 14 or more years of age but less than 16 years of age when the alleged incident occurred, then the prosecutor should have charged indecent liberties with a child under K.S.A. 21-3503(a)(l).
The parties have not pointed to any decision by this court or our Supreme Court involving a similar issue where the victim is unable to recall at what precise age the alleged incident occurred. In Barger v. State, 587 N.E.2d 1304 (Ind. 1992), however, the Indiana Supreme Court has addressed a similar issue. In that case, the alleged child molestation occurred around the victim’s 12th birthday, and the State could not prove definitively whether the victim was 11 years old or 12 years old when the child molestation occurred. Under the Indiana statutory scheme, molesting a child who was 12 through 15 years old was a class D felony, while molesting a child less than 12 years old was a class C felony. The defendant was charged with and found guilty of the class D felony. On appeal, the defendant argued that because the State could not prove that the victim was over 12 years of age, the evidence was insufficient to prove beyond a reasonable doubt all of the elements of child molestation as a class D felony. The Indiana Court of Appeals agreed with the defendant’s argument and reversed his conviction.
The Indiana Supreme Court determined, however, that the evidence was sufficient to sustain the defendant’s conviction for a class D felony and reversed the Indiana Court of Appeals’ decision. After analyzing the history and design of the child molestation statutes to prescribe harsher penalties for sexual offenses committed against younger children, the Indiana Supreme Court recognized the difficulty faced by a prosecutor in charging a molestation crime when the victim’s age was near the dividing line between felony classes when the alleged crime occurred:
“It is difficult for children to remember specific dates, particularly when the incident is not immediately reported as is often the situation in child molesting cases. The exact date becomes important only in limited circumstances, including the case where the victim’s age at the time of the offense falls at or near the dividing line between classes of felonies.
“While one might always wish for statutes drafted so as to make the job of interpretation easier, we think it is inconceivable that the legislature intended through Ind. Code § 35-42-4-3 to absolve defendants who molest children around their twelfth birthdays such that it is impossible to tell whether the victim was eleven or twelve at the time of the offense. In effect, the prosecutor stricdy construed the statute against the State by charging Barger with the class D felony rather than the class C felony. It is beyond question that Barger’s victim was under sixteen years of age, as required for the class D felony. To read Ind. Code § 35-42-4-3 as providing no protection to a victim who was molested around her twelfth birthday would render the statute absurd given the legislature’s long and constant history of providing more severe penalties for crimes against victims under the age of twelve.” 587 N.E.2d at 1307.
As a result, the Indiana Supreme Court held that when it is difficult to tell whether a child molestation victim was 11 or 12 years old when the alleged crime occurred, it is sufficient to charge and convict the defendant of the lesser felony because the child was clearly under the age of 16 years old, as required for the lesser felony. The court noted that its conclusion was based upon the legislative intent to punish offenders more harshly when they commit crimes against younger children and upon the notion of strict construction of criminal statutes. 587 N.E.2d at 1307-08.
Here, similar to what was outlined in Barger, the statutory scheme in Kansas is aimed at punishing offenders more harshly when the offenders commit crimes against younger children. Under K.S.A. 21-3503(a)(l), engaging in lewd fondling or touching with a child who is 14 or more years of age but less than 16 years of age is a severity level 5 person felony. When the same crime is committed with a child who is less than 14 years of age, the offense is a severity level 3 person felony. See K.S.A. 21-3504(a)(3)(A) (Furse 1995).
As a general rule, criminal statutes must be strictly construed in favor of the accused. Trautloff, 289 Kan. at 796-97. Moreover, courts should construe statutes to avoid unreasonable results and should presume that the legislature does not intend to enact useless or meaningless legislation. 289 Kan. at 797.
If this court were to read K.S.A. 21-3503(a)(l) and K.S.A. 21-3504(a)(3)(A) (Furse 1995) together as providing no protection to a victim who was sexually abused through fondling or touching when she was around 13 or 14 years old, this would be an unreasonable result. The legislature’s intent, as expressed through the plain language of the statutes, was to provide a more severe punishment for the sexual offense of lewd fondling or touching against victims less than 14 years old. When the victim of such a sexual offense has not immediately reported the offense and is unable to definitively remember whether he or she was 13 or 14 years of age when the incident occurred, the prosecutor should strictly construe the statutes against the State and charge the lower severity level.
In the present case, there was evidence showing that C.H. was around 14 years of age when the alleged incident occurred. In reviewing the sufficiency of the evidence issue in this case, we bear in mind that we must look at the evidence in the fight most favorable to the State. See Trautloff, 289 Kan. at 800. Moreover, as an appellate court, we do not reweigh the evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. State v. Swanigan, 279 Kan. 18, 23, 106 P.3d 39 (2005); State v. Curls, 36 Kan. App. 2d 547, 548-49, 145 P.3d 73 (2006).
As discussed previously, C.H. testified that she thought she was 13 years old when the alleged incident occurred but stated that she “possibly” was 14 years old. C.H. later agreed with the prosecutor that she had testified that she was 14 years old. Indeed, when the prosecutor later asked the trial court to allow her to amend the complaint to conform to C.H.’s testimony that she was 14 years old when the alleged incident occurred, defense counsel did not object but instead stated, “I understand why she’s doing that and I think it makes no difference in what my client is charged with, except just changes the time frame.”
In its appellate brief, the State points out that defense counsel actively worked to forestall the amending of the complaint to allege the incident occurred when C.H. would have been 13 years old. It is understandable why defense counsel would not want the charge to reflect C.H.’s age as 13 years old since that would move the crime into aggravated indecent liberties with a child under the statutoiy scheme. When the State amended the complaint following C.H’s testimony, defense counsel questioned the amendment and pointed out how the amendment would put the incident as occurring in 2004 when C.H. was 13 years old. Defense counsel asserted that the year in the amended complaint should be changed to either 2005 (when C.H. would have been 14 years old) or 2006 to conform to C.H.’s testimony. The complaint was then amended to place the time frame of the incident in 2005. Thus, to some extent, the alleged error was invited by the defense and should not be complained of on appeal. See State v. Bello, 289 Kan. 191, 193, 211 P.3d 139 (2009) (A defendant may not invite error and then complain of the error on appeal.).
In considering the testimony that is before this court, the legislature’s intent as expressed through the statutory scheme of punishing sex offenders for their crimes against children, and defense counsel’s role in having the complaint amended to charge that the alleged crime occurred on dates when C.H. would have been 14 years old, we reject Hart’s argument and determine that there was sufficient evidence to convict Hart of indecent liberties with a child under K.S.A. 21-3503(a)(l).
II. Prosecutorial Misconduct
Next, Hart maintains that the prosecutor committed misconduct during closing arguments when she gave her personal opinion that C.H. and N.B. were credible.
A. Standards of Review
A claim of prosecutorial misconduct based on comments made during voir dire, opening statements, or closing argument which are not evidence will be reviewed on appeal even when a contemporaneous objection was not made at die trial level. State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009).
Appellate review of an allegation of prosecutorial misconduct involving improper comments to the juiy requires a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discuss ing the evidence. Second, if misconduct is found, the appellate court must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. McReynolds, 288 Kan. 318, 323, 202 P.3d 658 (2009).
In the second step of the two-step analysis, the appellate court considers the following three factors:
“ ‘(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor’s part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling. Moreover, the third factor may not override the first two factors unless the harmless error tests of both K.S.A. 60-261 [refusal to grant new trial is inconsistent with substantial justice] and Chapman v. California, 386 U.S. 18, [22,] 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) [conclusion beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial], have been met. [Citations omitted.]’ [Citation omitted.]” McReynolds, 288 Kan. at 323.
B. Offering Personal Opinion
Hart first maintains that during closing arguments, the prosecutor improperly vouched for the credibility of C.H., when she stated as follows: “The difficulty of this regardless of what the parent did or didn’t do, or might have done or should have done, is not really what’s relevant in this matter. What is relevant in this matter is whether or not you believe C.H. I think you should.” (Emphasis added.)
In general, a prosecutor may not offer juries his or her personal opinion as to the credibility of witnesses. Nevertheless, a prosecutor has wide latitude to craft arguments that include reasonable inferences to be drawn from the evidence. That includes explaining to the jury what it should look for in assessing witness credibility, especially when the defense has attacked the credibility of the State’s witnesses. State v. Stone, 291 Kan. 13, 19, 237 P.3d 1229 (2010).
A prosecutor should not comment on a witness’ credibility because “expressions of personal opinion by the prosecutor are a form of unsworn, unchecked testimony, not commentary on the evidence of the case.” State v. Pabst, 268 Kan. 501, 510, 996 P.2d 321 (2000). “When a case develops that turns on which of two conflicting stories is trae, it may be reasonable to argue, based on evidence, that certain testimony is not believable. However, the ultimate conclusion as to any witness’ veracity rests solely with the jury.” Pabst, 268 Kan. at 510.
The State concedes that the prosecutor’s statement, “What is relevant in this matter is whether or not you believe [C.H.]. I think you should,” was in error. The State admits that “[a]lthough the prosecutor was attempting to discuss the importance of weighing the evidence and not being distracted by unrelated issues, she clearly slipped and added a comment of personal belief.” Indeed, the record demonstrates that the prosecutor, by injecting her personal opinion that the jury should believe C.H., was improperly vouching for C.H.’s credibility.
Hart also argues that the prosecutor injected her personal opinion in closing argument when, after explaining to the jury that C.H. came forward because there were concerns about younger children in the family, the prosecutor stated, “To me a legitimate reason for a child to come forward [is to] try to protect somebody else.” The prosecutor’s comment that protecting another child from harm was a legitimate reason to come forward about sexual abuse was not a direct comment on the credibility of a witness. Rather, it was a comment about a reasonable inference to be drawn from the evidence.
In fact, several sentences before the prosecutor made the comment, she told the jury, “You can weigh that. You can determine that. You can decide whether or not she is believable. Do that also in the weight of Nicole Stump’s testimony regarding how these children process this.” The prosecutor then discussed Stump’s testimony and the evidence concerning why C.H. and N.B. reported the alleged incidents. Placed in context, the prosecutor’s comment appeared to be “her attempt to summarize the conclusion to which an assessment of the evidence would lead the jury, rather than unqualified assertions that the jury should simply believe the prosecutor’s own assessment of the witness.” Stone, 291 Kan. at 20 (determining that prosecutor’s statement to “[u]se this law and you will find-talk about how credible [the victim] is compared to him” was within wide latitude allowed in discussing evidence in closing argument). The prosecutor’s comment did not constitute improper vouching for the credibility of a witness.
Finally, Hart maintains that the prosecutor again injected her opinion in closing argument when she stated as follows:
“If you think about [the reasons C.H. and N.B. did not report the prior incidents] and you think about that the reason that he [sic] came forward, I think and I believe that you should and there is evidence sufficient to show that these crimes were committed beyond a reasonable doubt.”
Nevertheless, Hart takes the prosecutor’s comment out of context. Just before the above comment, the prosecutor told the jury that it should be weighing the credibility of the witnesses and thinking about the witnesses’ reasons and Hart’s defense:
“When I was going through the questioning of the jury I brought up an example to that and one of the jurors . . . kind of went off on that, saying where is the victim to the crime that nobody else saw? Would that mean that the crime didn’t occur? And wouldn’t you want to have a jury at least weigh your credibility, even against somebody else’s? That’s what we are talking about here. You weighing the credibility of these witnesses. Thinking about their reasons. Thinking about the defense that Mr. Hart has put on.
“If you think about those and you think about the reason that he [sic] came forward, I think and I believe that you should and there is evidence sufficient to show that these crimes were committed beyond a reasonable doubt. The girls’ story makes sense. The reason they delayed in telling makes sense. You heard part of the reason why from Nicole Stump. Kids just don’t disclose. They just don’t, until they see maybe it may be happening to someone they feel they have to protect. Therefore, I’m going to ask you to go back and find him guilty on both counts.”
The context surrounding the prosecutor’s comment demonstrates that the prosecutor was telling the jury that she thought and believed that the juiy should think about the evidence, weigh the credibility of the witnesses, and think about the reasons that the victims came forward. This comment was a proper comment on the evidence and how the jury should consider the evidence and was not outside the wide latitude afforded the prosecutor during closing argument.
Thus, based on the previous analysis, the only comment that was outside of the wide latitude allowed the prosecutor during closing argument was the prosecutor’s statement: “What is relevant in this matter is whether or not you believe [C.H.]. I think you should.” Nevertheless, this comment was not gross and flagrant, nor did it demonstrate ill will on the prosecutor’s part. The prosecutor’s comment was isolated, and the prosecutor referred the jury several times to its duty to weigh the evidence. Further, at the beginning of her closing argument, the prosecutor told the jury that her statements did not constitute evidence in the case:
“So what I’m going [to] do here is try to summarize what I think I want you to consider when you go back into the jury room and make your deliberations. And I would also point out, of course, anything that I say, if you don’t particularly agree with what I say, is not evidence. Judge already read that instruction. It’s a little funny that you guys get sworn, the witnesses get sworn, lawyers, we never get sworn in. There is a reason for that. Okay.”
With this statement, it is clear that the prosecutor was not attempting to engage in gross and flagrant conduct to divert the jury from its role in reweighing the evidence. Although the evidence was not overwhelming in this case, the prosecutor’s comments in closing argument were not so egregious as to warrant a new trial. See Stone, 291 Kan. at 20.
III. Jury Instruction on Indecent Liberties With a Child
Next, Hart argues that the trial court erred in providing a jury instruction for indecent liberties with a child that was broader than the charging document.
Hart concedes that he did not object to the instruction for indecent liberties with a child. “An appellate court reviewing a district court’s giving or failure to give a particular instruction applies a clearly erroneous standard where a party neither suggested an instruction nor objected to its omission.” State v. Martinez, 288 Kan. 443, 451, 204 P.3d 601 (2009); see K.S.A. 22-3414(3). “An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” Martinez, 288 Kan. at 451-52.
The complaint in this case alleged that the charged crimes were committed with the intent to satisfy the sexual desires of Hart. The trial court, however, broadened the complaint by instructing the jury that the State needed to establish that the crimes were committed with the intent to arouse or satisfy the sexual desires of the victim or Hart, or both.
“A jury instruction on the elements of a crime which is broader than the information charging the crime is erroneous. Such an error may be excused only where the substantial rights of the defendant have not been prejudiced.” State v. Wade, 284 Kan. 527, Syl. ¶ 3, 161 P.3d 704 (2007).
“If a defendant’s ability to prepare and present a defense has been compromised by an erroneously broadened jury instruction, the substantial rights of the defendant have been prejudiced. Likewise, the defendant’s substantial rights are prejudiced if the defendant would not have testified if he or she had known that the erroneously broadened instruction would be given.” Wade, 284 Kan. 527, Syl. ¶4.
Hart essentially raises no argument as to how his substantial rights were prejudiced other than making conclusory statements that the jury “could have come to the conclusion that Mr. Hart intended to arouse the sexual desires of [N.B.] or [C.H.]” and that “[i]t is more likely that the jury would have found that his intent was to satisfy the sexual desires of both of them.”
Hart does not explain how the broadened jury instruction compromised his ability to prepare and present his defense in the case. Moreover, Hart has not even indicated that the broadened jury instruction would have affected his decision to testify or the testimony that he gave in the case. Further, a review of the appellate record fails to reveal any substantial prejudice to Hart based upon his general denial of the allegations. As the State points out, Hart’s defense would have been the same regardless of the methods of intent charged in the complaint.
Under these circumstances, we determine that the giving of the broadened juiy instruction did not constitute reversible error.
IV. Admission of K S.A. 60-455 Evidence
Next, Hart contends that the trial court erred in admitting the prior bad acts evidence involving C.H. and N.B. to prove motive, intent, plan, and absence of mistake or accident under K.S.A. 60-455.
A. Standards of Review
When reviewing a district court’s decision concerning the admission of evidence, an appellate court first determines whether tire evidence is relevant. All relevant evidence is admissible unless statutorily prohibited. State v. Riojas, 288 Kan. 379, 382, 204 P.3d 578 (2009). Evidence is relevant if it has “any tendency in reason to prove any material fact.” K.S.A. 60-401(b).
There are two elements of relevant evidence: a materiality element and a probative element. State v. Houston, 289 Kan. 252, 261-62, 213 P.3d 728 (2009). Evidence is probative if it has “ ‘any tendency in reason to prove’ ” a fact. State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008) (citing K.S.A. 60-401[b]). Whether evidence has probative value is reviewed for abuse of discretion. In determining whether the evidence is “material,” analysis focuses on whether the fact to be proved is “ ‘ “significant under the substantive law of the case and properly at issue. [Citation omitted.]”
Reid, 286 Kan. at 505. Appellate review for materiality is de novo. State v. Wells, 289 Kan. 1219, 1226, 221 P.3d 561 (2009). Nevertheless, even if evidence is both probative and material, the trial court must still determine whether the probative value of the evidence outweighs its potential for producing undue prejudice. Appellate courts review this determination for abuse of discretion. 289 Kan. at 1227; see also State v. Dixon, 289 Kan. 46, 69-70, 209 P.3d 675 (2009) (applying the above standards of review to an evidentiary issue involving non K.S.A. 60-455 evidence).
Once relevance is established, the trial court must then apply the statutory rules controlling the admission and exclusion of evidence. These statutory rules are treated either as a matter of law or as an exercise of the trial court’s discretion, depending upon the rule in question. Therefore, the standard of review that is applicable on appeal will depend upon which rule the court applied to determine the admissibility of the evidence at issue. Riojas, 288 Kan. at 383.
B. KS.A. 60-455
The version of K.S.A. 60-455 in effect in October 2008, when Hart went to trial, provided as follows:
“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.”
The determination of whether evidence was properly admitted under K.S.A. 60-455 involves several steps. A court must determine that the evidence is relevant to prove a material fact, for example, motive, knowledge, and identity. The court must also determine that the material fact is disputed. In addition, the court must determine that the probative value of the evidence outweighs its potential for producing undue prejudice. Finally, the court must give a limiting instruction telhng the jury of the specific purpose for admission. State v. Prine, 287 Kan. 713, 724, 200 P.3d 1 (2009).
Error in the admission of or instruction upon K.S.A. 60-455 evidence is not automatically reversible. Rather, it is to be evaluated on appeal under either K.S.A. 22-3414 or K.S.A. 60-261. State v. Gunby, 282 Kan. 39, Syl. ¶ 4, 144 P.3d 647 (2006).
C. Trial Court’s Ruling on State’s Motion to Admit KS.A. 60-455 Evidence
On the day of trial, before voir dire, the trial court heard arguments on the State’s motion to admit K.S.A. 2009 Supp. 60-455 evidence. In determining that the prior bad acts involving C.H. and N.B. were admissible under K.S.A. 2009 Supp. 60-455, the trial court stated as follows:
“[T]he Court finds that the evidence involving... alleged prior acts with [C.H.] and [N.B.], including touching each other or viewing pornographic materials, that’s been indicated here by die State, that that evidence should be allowed to come in under 60-455. Also under Gunby.
“And specifically the Court finds that that testimony of these prior acts is relevant and that the probative value of allowing that evidence is not outweighed by any prejudicial effect that it might have on the defendant. Specifically the Court finds that 60-455 that it would be admissible under motive and plan. And in regard to the wheelchair reaching around situation, that evidence could certainly be considered lack of mistake or accident. And also the Court finds that this evidence would show an inclination or a method of or a system of operation.”
Just before jury deliberations, the trial court instructed the jury that the K.S.A. 60-455 evidence was being offered to show motive, intent, plan, lack of mistake or accident, and inclination or method.
D. No Contemporaneous Objection
In his appellate brief, Hart asserts that he objected to the introduction of the K.S.A. 60-455 evidence. The only objection that Hart points to at trial is one that was made during C.H/s testimony in which C.H. was asked about whether Hart had ever improperly touched her before the alleged incident.
Before C.H/s testimony, however, the State had already introduced testimony from N.B. about Hart’s prior bad acts towards both N.B. and C.H. In particular, N.B. had already testified about how Hart came into the room that N.B. and C.H. shared at night and touched them inappropriately. N.B. testified that Hart would touch her vaginal area and would also improperly touch C.H. while both girls were present in the room. Hart has failed to point to anywhere in the record where he objected to N.B.’s testimony about his prior bad acts or where he made a continuing objection to this evidence. Moreover, in our review of the record, we have been unable to find where Hart made a specific and contemporaneous objection as to the admissibility of the K.S.A. 60-455 evidence during N.B.’s testimony. See State v. Yarrington, 238 Kan. 141, 145, 708 P.2d 524 (1985) (Failure to make contemporaneous objection when the evidence is offered will not resurrect an opportunity to object to the same evidence later.).
Indeed, to preserve an issue relating to the admissibility of evidence for appeal, a party must make a timely and specific objection. K.S.A. 60-404. Even if there is an in limine ruling that the evidence is admissible, where an objection to the evidence is not made when it is introduced at trial, the defendant is generally precluded from challenging its admissibility on appeal. State v. Carapezza, 286 Kan. 992, Syl. ¶ 7, 191 P.3d 256 (2008) (where defendant objected to evidence only on hearsay grounds, she failed to preserve for appeal the issue of the inadmissibility of the evidence under K.S.A. 60-455); State v. Francis, 282 Kan. 120, 138, 145 P.3d 48 (2006) (where defendant failed to object at trial to the admission of evidence under K.S.A. 60-455, he was precluded from raising the issue on appeal); State v. Young, 14 Kan. App. 2d 21, 37, 784 P.2d 366, rev. denied 245 Kan. 788 (1989) (To preserve a K.S.A. 60-455 issue for appeal, a defendant must object on that ground at trial.).
More recently, our Supreme Court in State v. King, 288 Kan. 333, 348-49, 204 P.3d 585 (2009), held that evidentiary claims must be preserved by a contemporaneous objection at trial in order for those claims to be reviewed on appeal:
“[T]he legislature’s intent in enacting K.S.A. 60-404 is clear: a party must lodge a timely and specific objection to the admission or exclusion of evidence in order to preserve the evidentiary question for review.
“We stress today the importance of this legislative mandate. K.S.A. 60-404 dictates that evidentiary errors shall not be reviewed on appeal unless a party has lodged a timely and specific objection to the alleged error at trial. Although our past decisions may have relaxed the objection requirement in the evidentiary context, this practice not only has led to confusion as to the standards that should be applied on appeal, but also has de-emphasized the role of counsel at trial and has impaired the gate-keeping function of district courts in this state. See Baker, 204 Kan. at 611. More importantly, this practice of reviewing evidentiary questions when no objection has been lodged runs contrary to the legislature’s clearly stated intent in K.S.A. 60-404.
“. • . From today forward, in accordance with the plain language of K.S.A. 60-404, evidentiary claims — including questions posed by a prosecutor and responses to those questions during trial — must be preserved by way of a contemporaneous objection for those claims to be reviewed on appeal.”
Since King, our Supreme Court has consistently “been refusing to review an evidentiary issue without a timely and specific objection even if the issue involves a fundamental right.” State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010); see State v. Richmond, 289 Kan. 419, 429-30, 212 P.3d 165 (2009) (where our Supreme Court expressed concern that the contemporaneous objection rule “case-law exceptions would soon swallow the general statutory rule”); Hollingsworth, 289 Kan. at 1256-57.
In the present case, when Hart objected to C.Ii.’s testimony, the evidence about Hart’s prior improper touching of C.H. and N.B. had already been admitted into evidence through N.B.’s testimony. The contemporaneous rule requires a party to make a timely objection. See K.S.A. 60-404; State v. Sims, 265 Kan. 166, Syl. ¶ 6, 960 P.2d 1271 (1998) (A timely and specific objection to the admission of evidence at trial must be made in order to preserve the issue on appeal.); Barbara, Kansas Law and Practice, Lawyer s Guide to Kansas Evidence § 1.4, p. 9 (5th ed. 2009) (An objection should be made as soon as it is apparent as to the admissibility of the evidence.); State v. Clements, 252 Kan. 86, 88-89, 843 P.2d 679 (1992) (holding that failure to make timely objection to testimony will not be salvaged by later motion to strike the testimony). Hart’s late objection to the prior bad acts evidence, which had already been admitted through N.B.’s testimony, does not satisfy the contemporaneous objection rule under K.S.A. 60-404.
As Hart acknowledges in his appellate brief, C.H.’s testimony about Hart’s prior bad acts was brief and general. C.H. testified that the shower incident was not the first time that Hart had touched her and that the touching incidents had gone on for a couple of years. Unlike N.B.’s testimony, there were no specific facts given. C.H. did not testify about the location where the touching incidents occurred or the manner in which they occurred. C.H. did not even testify about where he touched her. In short, C.H. did not add any additional facts to what N.B. had already testified. By the time that C.H. testified, the jury had already heard about Hart’s prior bad acts and in more specific detail than C.H.’s testimony.
Because Hart failed to make a timely objection when the prior bad acts evidence was first introduced at trial, he failed to adequately preserve the issue of the admissibility of the K.S.A. 60-455 evidence for appeal. See State v. Jones, 267 Kan. 627, 637, 984 P.2d 132 (1999) (Nothing short of an objection at the time evidence is offered satisfies the requirement of a contemporaneous objection.); State v. Trotter, 245 Kan. 657, 659, 783 P.2d 1271 (1989) (Failing to contemporaneously object to the admission of the evidence waives any claimed error.).
Nevertheless, to get to the legal issue involved in this appeal, the State, during oral argument, stipulated that Hart’s objection to the admission of the K.S.A. 60-455 evidence at trial was sufficiently timely to preserve the issue for appeal. “A stipulation has... been defined as an agreement, admission, or concession made injudicial proceedings by the parties thereto or their attorneys.” Bodle v. Balch, 185 Kan. 711, 714, 347 P.2d 378 (1959). Assuming arguendo that Hart’s objection to the K.S.A. 60-455 evidence was sufficiently timely, we would reject his argument under K.S.A. 2009 Supp. 60-455(d).
E. States Argument Concerning the 2009 Amendments to KS.A. 60-455
In its appellate brief, the State contends that the 2009 amendment to K.S.A. 60-455 is applicable to the present case and that the admission of the prior bad acts evidence was admissible under the 2009 amendment.
The State’s argument involves interpretation of a statute. Interpretation of a statute presents a question of law over which an appellate court’s review is unlimited. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. 290 Kan. at 47. An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. State v. Raschke, 289 Kan. 911, 914, 219 P.3d 481 (2009).
When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute’s language or text is unclear or ambiguous does the court use canons of construction or legislative history to construe the legislature’s intent. State v. Trautloff, 289 Kan. 793, 796, 217 P.3d 15 (2009).
As the State points out, in April 2009, the legislature amended K.S.A. 60-455 to change the procedure for admitting evidence of prior sexual misconduct in criminal prosecutions for sex offenses. K.S.A. 2009 Supp. K.S.A. 60-455(d) provides in relevant part as follows:
“(d) Except as provided in K.S.A. 60-445, and amendments thereto, in a criminal action in which the defendant is accused of a sex offense under articles 34, 35 or 36 of chapter 21 of the Kansas Statutes Annotated, and amendments thereto, evidence of the defendant’s commission of another act or offense of sexual misconduct is admissible, and may be considered for its bearing on any matter to which it is relevant and probative.”
Thus, under K.S.A. 2009 Supp. 60-455(d), when a defendant is charged with a sex offense under the applicable statutes, evidence of the defendant’s other sexual misconduct is admissible and may be considered for its bearing on any matter to which it is relevant and probative.
The State maintains that the 2009 amendments to K.S.A. GO-455 were a direct response to our Supreme Court’s decision in Prine, 287 Kan. at 737. Our Supreme Court in Prine, after determining that the defendant’s prior bad acts were inadmissible to prove intent, plan, and absence of mistake or accident under K.S.A. 60-455(b), stated the following regarding evidence of prior sexual abuse in sexual offense cases:
“We are compelled to make one final set of brief comments on the K.S.A. 60-455 issues raised by this case.
“Extrapolating from the ever-expanding universe of cases that have come before us and our Court of Appeals, it appears that evidence of prior sexual abuse of children is peculiarly susceptible to characterization as propensity evidence forbidden under K.S.A. 60-455 and, thus, that convictions of such crimes are especially vulnerable to successful attack on appeal. This is disturbing because the modem psychology of pedophilia tells us that propensity evidence may actually possess probative value for juries faced with deciding the guilt or innocence of a person accused of sexually abusing a child. In short, sexual attraction to children and a propensity to act upon it are defining symptoms of this recognized mental illness. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, pp. 527-28 (4th ed.1994) (302.2-Pedophilia). And our legislature and our United States Supreme Court have decided that a diagnosis of pedophilia can be among the justifications for indefinite restriction of an offender’s liberty to ensure the provision of treatment to him or her and the protection of others who could become victims. See K.S.A. 59-29a01 et seq.; Kansas v. Crane, 534 U.S. 407, 409-10, 151 L. Ed. 2d 856, 122 S. Ct. 867 (2002); Kansas v. Hendricks, 521 U.S. 346, 356-60, 371, 138 L. Ed. 2d 501, 117 S. Ct. 2072 (1997) (Kansas’ Sexually Violent Predator Act narrows the class of persons eligible for confinement to those who find it difficult, if not impossible, to control their dangerousness.). It is at least ironic that propensity evidence can be part of the support for an indefinite civil commitment, but cannot be part of the support for an initial criminal conviction in a child sex crime prosecution.
“Of course, the legislature, rather than this court, is the body charged with study, consideration, and adoption of any statutory change that might make K.S.A. 60-455 more workable in such cases, without doing unconstitutional violence to the rights of criminal defendants. It may be time for the legislature to examine the advisability of amendment to K.S.A. 60-455 or some other appropriate adjustment to the statutory scheme.”
Thus, our Supreme Court recognized that evidence of prior sexual abuse in sexual abuse cases might have a bearing different from evidence of other prior bad acts and suggested that the legislature examine the advisability of amending K.S.A. 60-455. Within less than 4 months after Prine was filed, the legislature enacted the amended version of K.S.A. 60-455 to add subsection (d).
F. Applicability ofKS.A. 2009 Supp. 60-4S5(d)
Although K.S.A. 2009 Supp. 60-455(d) was not in effect when Hart’s trial occurred in this case, the State argues that the statutory change, which was procedural in nature, is applicable to Hart’s pending appeal. The State points out that our Supreme Court has stated that “[w]hen an applicable statute is amended while an appeal is pending, and counsel for both sides have had an opportunity to brief and argue the amended statute, the appellate court will consider and construe the amended version of the statute.” State ex rel. Secretary of SRS v. Bohrer, 286 Kan. 898, 904, 189 P.3d 1157 (2008).
In its appellate brief, the State has thoroughly briefed and argued the applicability of the 2009 amendment to K.S.A. 60-455. As required by Supreme Court Rule 6.01 (2009 Kan. Ct. R. Annot. 37), the State’s brief would have been served on Hart’s appellate attorney. Then, under Rule 6.01(e), Hart’s attorney would have had the opportunity to file a reply brief and address the State’s argument concerning the application of K.S.A. 2009 Supp. 60-455(d) within 15 days after service of the State’s brief. Moreover, under Supreme Court Rule 5.02 (2009 Kan. Ct. R. Annot. 34), Hart’s attorney could have requested an extension of time to file the reply brief, if necessary to adequately address the applicability of K.S.A. 2009 Supp. 60-455(d). Instead, Hart’s attorney chose to file nothing. ,
Normally, when a statute is amended, the change is applied prospectively. Nevertheless, if the amendment is procedural or remedial in nature and does not prejudice the substantive rights of the parties, then the amended statute is to be applied retroactively to cases pending on appeal. Tonge v. Werholtz, 279 Kan. 481, 486, 109 P.3d 1140 (2005); State v. Stegman, 41 Kan. App. 2d 568, 572, 203 P.3d 52 (2009). As related to criminal law and procedure, substantive laws define criminal acts and prescribe punishments. Procedural laws provide or regulate the steps by which a defendant is tried and punished. Tonge, 279 Kan. at 487.
“When no legislative mandate is controlling, whether a statute is to be given retroactive effect will depend on whether it proscribes certain conduct or assigns a punishment for that conduct or whether it merely establishes the method by which the conduct is to be evaluated.” State v. Brooker, 27 Kan. App. 2d 396, 399, 4 P.3d 1180, rev. denied 269 Kan. 935 (2000).
The 2009 amendment to K.S.A. 60-455 neither changed the definition of a criminal act nor prescribed a new punishment. Instead, K.S.A. 2009 Supp. 60-455(d) changed the manner in which prior bad acts evidence, specifically, other sexual abuse evidence, can be admitted into evidence when a defendant is on trial for a sexual offense. As a result, the 2009 amendment to K.S.A. 60-455 applies retroactively to the present case.
Importandy, this result is consistent with that reached in State v. Boggs, 287 Kan. 298, 305-06, 197 P.3d 441 (2008), where our Supreme Court held that its decision in Gunby, which was filed after the conclusion of Boggs’ trial, would be applied retroactively to govern the admission of K.S.A. 60-455 evidence in Boggs’ case. In so holding, our Supreme Court cited Griffith v. Kentucky, 479 U.S. 314, 328, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987), where the Court explained that “ ‘ “a new rule for the conduct of criminal prosecutions is to be applied ... to all cases, state or federal, fending on direct review or not yet final.” ’ ” 287 Kan. at 306. Similarly, it appears that the 2009 amendment to K.S.A. 60-455, which prescribes a new rule for the conduct of criminal prosecu tions, should be applied to the present decision, which was pending on direct review when the amendment was passed.
G. Ex Post Facto Law
The State further argues that there is no constitutional ex post facto bar to applying K.S.A. 2009 Supp. 60-455(d) to the present case.
Our Supreme Court in State v. Chamberlain, 280 Kan. 241, Syl. ¶ 4, 120 P.3d 319 (2005), set forth the following regarding ex post facto violations:
“The United States Supreme Court has set forth four categories of ex post facto violations: (1) Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action; (2) every law that aggravates a crime, or makes it greater than it was, when committed; (3) every law that changes the punishment and inflicts a greater punishment than the law annexed to the crime, when committed; and (4) every law that alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the offender.” (Emphasis added.)
The best argument that Hart could make concerning an ex post facto violation would be under the fourth category, that is, that the 2009 amendment to K.S.A. 60-455 altered a legal rule of evidence in a manner that permitted less or different testimony to convict him.
Nevertheless, the United States Supreme Court has stated that “no ex post facto violation occurs if the change in the law is merely procedural and does ‘not increase the punishment, nor change the ingredients of the offence or the ultimate facts necessary to establish guilt.’ [Citation omitted.]” (Emphasis added.) Miller v. Florida, 482 U.S. 423, 433, 96 L. Ed. 2d 351, 107 S. Ct. 2446 (1987). Similarly, our Supreme Court in Chamberlain stated that “[i]n order for a law to be considered ex post facto, two elements must be present: (1) The law must be retrospective, applying to events occurring before its enactment and (2) it must alter the definition of criminal conduct or increase the penalty by which a crime is punishable.” 280 Kan. 241, Syl. ¶ 5.
Courts in other jurisdictions have determined that there is no ex post facto violation when a rule of evidence has relaxed or changed the standard for admission of other acts of child sexual abuse when the defendant was charged with a child sexual abuse crime. For example, in McLean v. State, 854 So. 2d 796, 802-03 (Fla. App. 2003), the court, in rejecting the appellant’s argument that a rule of evidence relaxing the manner in which evidence concerning prior child sexual abuse was admissible at trial for child sexual abuse charge constituted an ex post facto violation, stated:
“In this case, [the appellant] can argue only that the law altered the rules of evidence in a manner that permitted a conviction with less or different testimony. We reject this argument because a prima facie case of lewd molestation could be established by the testimony of the victim both before and after this amendment to the rule of evidence. This rule permits additional testimony that may cause a jury to be more likely to believe tire victim, but this is a qualitative change in the law that does not alter substantial personal rights.”
See Ortiz v. State, 869 So. 2d 1278 (Fla. Dist. App. 2004).
In that same vein, the court in James v. State, 204 P.3d 793 (Okla. Crim. 2009), stated that the issue in determining whether an ex post facto violation occurred under the fourth category, which we mentioned previously, is whether the change affected the quantum of evidence necessary to support a conviction. The court further stated that the defendant’s conviction for child sexual abuse did not, at least as a matter of law, stand or fall on whether the other-crimes testimony was admissible. The court determined that legislative enactments, like the one applicable in that case, that merely permit the jury to consider certain kinds of evidence for certain purposes and are applied to conduct committed before enactment, do not raise ex post facto concerns. 204 P.3d at 795.
See also Thompson v. Missouri, 171 U.S. 380, 387, 43 L. Ed. 204, 18 S. Ct. 922 (1898) (“[W]e cannot perceive any ground upon which to hold a statute to be ex post facto which does nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced by judicial decisions at the time the offense was committed.”); Carmell v. Texas, 529 U.S. 513, 538, 146 L. Ed. 2d 577, 120 S. Ct. 1620 (2000) (citing Collins v. Youngblood, 497 U.S. 37, 43 n.3, 111 L. Ed. 2d 30, 110 S. Ct. 2715 [1990]) (recognizing that Court’s earlier definition of ex post facto law was “ not in tended to prohibit the application of new evidentiaiy rules in trials for crimes committed before the changes’ ”).
Here, while the introduction of evidence under the 2009 amendment to K.S.A. 60-455 might cause a jury to find the victim more credible, it did not change the “ingredients” of the charged offenses or the ultimate facts necessary to establish a defendant’s guilt. The 2009 amendment does not change the quantum of evidence necessary to convict a defendant. The same evidence could establish the charged offenses both before and after the 2009 amendment. Moreover, the 2009 amendment to K.S.A. 60-455 did not increase the punishment against Hart or change the definition of the criminal conduct charged against him. As a result, we find no ex post facto violation in applying K.S.A. 2009 Supp. 60-455(d) to the present case.
H. Admission of the Prior Bad Acts Evidence under K S.A. 2009 Supp. 60-45S(d)
The State asserts that the 2009 amendment to K.S.A. 60-455 removed the requirement that evidence of prior sexual misconduct be related to a material and disputed fact before it can be admitted in a sex crime prosecution. The State argues that under K.S.A. 2009 Supp. 60-455(d), the evidence of prior sexual misconduct need only be relevant and its probative value not outweighed by its potential unfair prejudice.
Thus, the State maintains that the trial court’s decision to admit the prior sexual evidence can be upheld under K.S.A. 2009 Supp. 60-455 because the trial court (1) found that the evidence was relevant to prove that Hart had a motive and plan to molest C.H. and N.B., that Hart did not touch C.H. and N.B. by accident, and that the charged conduct was part of a method of operation used by Hart; and (2) balanced the probative value of the evidence against its prejudicial value.
The problem with the State’s argument is that the legislature did not remove subsection (b), which relates to the admissibility of prior crimes evidence “to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident,” from K.S.A. 60-455 or exempt that subsection in sex crime prosecutions. Moreover, there is no language in K.S.A. 2009 Supp. 60-455(d) excepting it from the application of subsection (b) of 60-455. Therefore, it would seem that in order to admit evidence to prove one of the material facts under K.S.A. 2009 Supp. 60-455(b), the analysis set forth in State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006), and consistently followed by this court and our Supreme Court would still need to be applied.
More important, when none of the material facts under K.S.A. 2009 Supp. 60-455(b) is in dispute, it is difficult to see the probative value of the prior sexual misconduct evidence. In order for evidence to be admitted under K.S.A. 2009 Supp. 60-455(d), one of the requirements is that the evidence must be “probative” to the matter on which it is being admitted. In the Notes on Use, Section 11(C)(9) to PIK Crim. 3d 52.06 (the limiting instruction for evidence admitted under K.S.A. 2009 Supp. 60-455[b]), the PIK Committee noted that the requirement under K.S.A. 2009 Supp. 60-455(d) that the evidence be “probative” arguably restricts admissibility of evidence under that subsection “somewhat.” The PIK Committee then refers the reader to its discussion of “probative value” in Section 11(B)(2)(b), which states as follows:
“Probative Value. Probative value consists of more than logical relevancy. Evidence of other crimes has no real probative value if the fact it is supposed to prove is not substantially at issue. In other words, the factor or factors being considered (e.g. intent, motive, knowledge, identity, etc.) must be substantially at issue before a trial court should admit evidence of other crimes to prove such factors. State v. Bly, 215 Kan. [168,] 176[, 523 P.2d 397 (1974)].” (Emphasis added.)
If Hart had made a timely and specific objection to the evidence of prior bad acts, we would have determined that none of the material facts for which the evidence was offered under K.S.A. 2009 Supp. 60-455(b) was in dispute or substantially at issue and that the prior bad acts evidence was not probative for those facts. Because Hart never offered an innocent explanation for the alleged acts, intent and absence of mistake or accident were never placed in dispute. See Prine, 287 Kan. at 728; State v. Davidson, 31 Kan. App. 2d 372, Syl. ¶¶ 2-3, 65 P.3d 1078 (2003). Moreover, the evidence fails to demonstrate that Hart had a particular modus operandi, method, motive, or plan for committing the alleged acts. Further, Hart’s prior bad acts were not similar enough to the crimes charged in the present case to be probative to plan. See Prine, 287 Kan. at 729-36. Thus, while the evidence might still have been relevant, the prior bad acts evidence had no real probative value.
Moreover, any minimal probative value of the evidence to establish one of the material facts under K.S.A. 2009 Supp. 60-455(b) was significantly outweighed by its prejudicial value. The prior bad acts evidence involved numerous instances of sexual abuse committed against the victims, beginning when one of the victims was 7 years old. When comparing the probative value of the prior sexual misconduct evidence to the facts under K.S.A. 2009 Supp. 60-455(b) with its prejudicial value, the scales would easily be weighted towards prejudice.
I. Relationship of the Parties
In its motion to admit the prior bad acts evidence, the State also argued that the evidence was admissible to prove the relationship of the parties.
Before its decision in Gunby, our Supreme Court in State v. Crossman, 229 Kan. 384, 387, 624 P.2d 461 (1981), held that in cases involving illicit sexual relations between an adult defendant and a child victim, evidence of prior acts of a similar nature between the defendant and the same victim was admissible, without the safeguards required by K.S.A. 60-455, when the evidence was not offered for the purpose of proving distinct offenses, but rather to establish the relationship of the parties, the existence of a continuing course of conduct between the parties, or to corroborate the complaining witness’ testimony as to the act charged. The Gunby court, however, later disapproved of the Crossman decision and held that the admissibility of any and all other crimes and civil wrongs evidence would be governed by K.S.A. 60-455 and its attendant safeguards. 282 Kan. at 56-57.
Nevertheless, with the enactment of K.S.A. 2009 Supp. 60-455(d), which has relaxed the admissibility requirements of prior sexual abuse evidence in child sexual abuse cases, and our Supreme Court’s recognition in Prine that evidence of prior sexual abuse has a different bearing in child sexual abuse cases, it is apparent that the analysis in Crossman has gained new life.
Before Gunby, the Crossman reasoning was followed in State v. McHenry, 276 Kan. 513, 78 P.3d 403 (2003), where our Supreme Court held that evidence of prior similar conduct with the complaining witness was admissible independent of K.S.A. 60-455:
“Like Crossman, McHenry’s defense was to attack the veracity of his daughter and the other family members. McHenry’s theory was that the rest of his family concocted allegations of sexual abuse in order to remove him from the home. He called a defense witness who testified that the daughter had stated she could get whatever she wanted from McHenry by claiming he had sexually abused her. Given McHenry’s attack on his family’s credibility, the evidence of his prior sexual abuse of his daughter falls squarely within the Crossman rule. The evidence showed that the relationship between McHenry and his daughter had involved a continuing course of conduct (ongoing sexual abuse) with McHenry gaining control through the extension or withholding of privileges. The evidence provided information for the juiy to consider in assessing the defense: the timing of the past complaint in the context of other family dynamics at the time; the fact that past complaints had not resulted in action by those in authority; and a long standing system of rewards which might explain the daughter’s failure to come forward.” 276 Kan. at 520-21.
Importantly, when prior sexual abuse is committed against the same victim, the prior sexual abuse is connected to the charged crimes based on the relationship between the defendant and the victim. This connection does not occur when die prior sexual abuse is committed against a different victim. See People v. Jones, 417 Mich. 285, 287-88, 335 N.W.2d 465 (1983). Here, because the prior sexual abuse occurred against the same victims, the evidence is relevant and probative based on the relationship between the defendant and victims. See State v. Reyes, 744 N.W.2d 95, 102-03 (2008) (Prior bad acts evidence involving the same victim “has relevance on the underlying criminal charge because it shows the nature of the relationship between the alleged perpetrator and the victim.” . . . “The evidence was thus not offered to show a general propensity to be attracted sexually to young girls, but instead to demonstrate the nature of the defendant’s relationship and feelings toward a specific individual.”).
In the present case, the evidence of Hart’s prior sexual abuse of C.H. and N.B. was highly relevant to show the relationship of the parties and to corroborate the testimonies of N.B. and C.H. as to the sexual acts charged. Hart’s defense in this case was to portray C.H. as an angry teenager who had made up the allegations after she had recently gotten into an argument with Hart and moved out of Hart’s house because Hart would not allow her to spend time at her boyfriend’s house. Moreover, Hart attempted to portray Stacy as an angry ex-wife who would go to the extreme of soliciting her cousin, N.B., along with her aunt Brown, and her former stepdaughter, C.H., to allege child sexual abuse so that Stacy would not have to go through a child custody battle with Hart.
With this case turning on the credibility of C.H., N.B., and Brown, evidence of Hart’s prior sexual abuse of C.H. and N.B. was relevant to show Hart’s relationship with C.H. and N.B. and probative to show the victims’ actions before, during, and after the acts giving rise to the charged sexual offenses. By being presented with evidence that the sexual abuse had taken place over a number of years, beginning at an early age and in the secret manner described by N.B., the jury could more adequately assess Hart’s defense, the victims’ credibility, the previous denial by C.H. of any sexual abuse by Hart, the lengthy time period between the alleged incidents and the victims’ reports to the police, and the difficulty that C.H. had in relating the alleged incident at trial.
Moreover, based on the facts of this case, the probative value of such evidence on the issue of the relationship of the parties would outweigh its prejudicial value. Although the prior sexual abuse evidence was prejudicial in that there were incidents occurring over a period of several years, with at least one of the victims being only 7 years old when the incidents began, the evidence was highly probative: The evidence would help the jury to understand why the victims failed to immediately report the incidents and to understand the surrounding circumstances leading up to their reports of sexual abuse.
Although the trial court did not rely on the material fact of relationship of the parties in admitting the other crimes evidence under K.S.A. 60-455, we could affirm the trial court’s decision on that ground. See State v. Blaurock, 41 Kan. App. 2d 178, 197, 201 P.3d 728 (2009). “[I]f a trial court reaches the right result, its decision will be upheld even if it provided an incorrect reason or engaged in an improper legal analysis.” State v. Murray, 285 Kan. 503, 533, 174 P.3d 407 (2008). In State v. Reid, 286 Kan. 494, Syl. ¶ 7, 186 P.3d 713 (2008), our Supreme Court recognized that a trial court’s decision to admit evidence under K.S.A. 60-455 will not be reversed if it was right, but for the wrong reason. Based on the circumstances present in this case, we find no reversible error in the admissibility of the prior bad acts evidence.
J. Propensity
In its appellate brief, the State also asserts that under K.S.A. 2009 Supp. 60-455(d), the evidence of prior sexual abuse was admissible as relevant to establish Hart’s propensity to commit sexual misconduct. To support its argument on this issue, the State cites several federal cases that have interpreted Federal Rule of Evidence 413(a) to specifically allow admission of prior sexual misconduct in sex crimes cases for the purpose of showing the defendant’s propensity to commit such crimes! See United States v. Dillon, 532 F.3d 379, 387 (5th Cir. 2008) (“Rule 413(a) . . . allows the admission of evidence of prior sexual assaults for any relevant purpose, including to show propensity, in sexual assault cases.”); United States v. Benally, 500 F.3d 1085, 1089-90 (10th Cir. 2007) (“These rules provide an exception to the general rule . . . which prohibits the admission of evidence for the purpose of showing a defendant’s propensity to commit bad acts.”). Although we have already determined that the prior sexual abuse evidence is admissible under K.S.A. 2009 Supp. 60-455(d) to establish relationship of the parties, we will briefly address the State’s argument.
Under the plain language of K.S.A. 2009 Supp. 60-455, it is very apparent that the legislature did not intend for 60-455(d) evidence to be admitted just to show propensity. K.S.A. 60-455(a) provides that evidence of other crimes or civil wrongs is not admissible to prove a defendant’s propensity to commit the crime in question:
“Subject to K.S.A. 60-447, and amendments thereto, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove such person’s 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.”
As a result, such prior crimes or civil wrongs evidence is not admissible to show tire defendant has a criminal disposition and was thus more likely to have committed the crime in question. The public policy for this rule is that prior crimes evidence should not be considered to prove the defendant’s mere propensity to commit the charged crime. See Reid, 286 Kan. 494 (K.S.A. 60-455 designed to ehminate danger evidence will be considered to prove the defendant’s mere propensity to commit charged crime); State v. Garcia, 285 Kan. 1, 169 P.3d 1069 (2007) (under plain, unambiguous language of K.S.A. 60-455, evidence of prior crimes, civil wrongs cannot be admitted to prove defendant’s propensity to commit charged crime); Gunby, 282 Kan. at 48.
Importantly, the legislature did not exempt sex crimes from the prohibition of K.S.A. 60-455(a) in its 2009 amendments to the statute. When we construe the plain language of subsections (a) and (d) of K.S.A. 2009 Supp. 60-455 in harmony with each other, it would seem that K.S.A. 2009 Supp. 60-455(d) would still be subject to the prohibition under K.S.A. 2009 Supp. 60-455(a). But see PIK Crim. 3d 52.06, Notes on Use, Section 11(C)(9) (recognizing that K.S.A. 2009 Supp. 60-455[d] “clearly represents legislative approval in cases like Prine of the admission for the propensity inference of other acts of sexual molestation of a child, even without striking similarities”).
More important, however, is the fact that the legislature chose to include the “relevant” and “probative” requirements in K.S.A. 2009 Supp. 60-455(d). In discussing the differences between Federal Rules of Evidence 413(a) and 414(a) and K.S.A. 2009 Supp. 60-455(d), the PIK Committee in PIK Crim. 3d 52.06, Notes on Use, Section 11(C)(9), stated as follows:
“Subsections (d)-(g) axe patterned after Federal Rules of Evidence 413(a) and 414(a). However, there are changes that may affect how subsection (d) is applied. For example, the language ‘Except as provided in K.S.A. 60-445/ was added by the House Judiciary Committee to make it clear that other offense evidence still may be excluded when the value of the evidence is substantially outweighed by the risk of prejudice, an issue that had to be litigated under Federal Rule 413. The Senate Judiciary Committee added the requirement that the evidence be probative’ in addition to ‘relevant.’ This addition arguably restricts admissibility somewhat. See the discussion of ‘probative value’ in Section 11(B)(2)(b), supra. Thus, although a prosecutor could invoke subsection (d) when defendant is charged with fondling his six-year-old niece on the couch at his home to argue that testimony that defendant raped an elderly stranger in the woods twenty years earlier ‘is admissible’ because it is relevant to show a propensity for sexual misconduct, the trial judge still may exclude it as lacking probative value or because of the risk of prejudice. The extent to which subsection (d) changes Kansas law will not be clear until appellate decisions interpret it.”
In this case, the prior crimes evidence met the requirements of K.S.A. 2009 Supp. 60-455(d) because the evidence involved the same victims as the charged offenses and it was very relevant and highly probative as to the relationship of the parties. The situation would be different, however, if the prior sexual abuse occurred with persons other than the alleged victims. Absent any legitimate issues for which prior bad acts are relevant and probative, including those listed in K.S.A. 2009 Supp. 60-455(b), the admission of prior bad acts evidence involving a different victim would allow the admission of general propensity evidence. This would violate the general rule prohibiting propensity evidence. See 2009 Supp. K.S.A. 60-455(a); Gunby, 282 Kan. at 48.
Our Supreme Court has recognized at least three types of prejudice that can follow from the admission of other crimes and civil wrongs evidence:
“ ‘ “First a jury might well exaggerate the value of other crimes as evidence proving that, because tire defendant has committed a similar crime before, it might properly be inferred that he committed this one. Secondly, the jury might conclude that the defendant deserves punishment because he is a general wrongdoer even if the prosecution has not established guilt beyond a reasonable doubt in the prosecution at hand. Thirdly, the jury might conclude that because the defendant is a criminal, the evidence put in on his behalf should not be believed.” ’ ” Gunby, 282 Kan. at 48-49 (quoting State v. Davis, 213 Kan. 54, 58, 515 P.2d 802 [1973]).
Thus, if prior sexual abuse evidence is admitted without tying it to a legitimate issue other than general propensity, it would be very difficult to envision a circumstance where the probative value of the prior sexual abuse evidence involving a different victim could ever exceed the prejudice that the evidence would invite: The defendant committed a previous crime, so the defendant must have committed the charged crime. The admission of such evidence could carry with it the potential to violate a criminal defendant’s fundamental right to a fair trial. See Gunby, 282 Kan. at 49 (recognizing that practice of admitting evidence independent of K.S.A. 60-455 carried potential to violate criminal defendant’s fundamental right to fair trial).
Finally, the Reyes court warned that “[i]n settings involving prior sexual abuse with persons other than the alleged victim, there is a substantial risk that ‘ “a jury will convict for crimes other than those charged — or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment.” ’ ” 744 N.W.2d at 102 n.1 (quoting Old Chief v. United States, 519 U.S. 172, 181, 136 L. Ed. 2d 574, 117 S. Ct. 644 [1997]).
K. Jury Instruction on K S.A. 60-455 Evidence
Next, Hart argues that the trial court erred in giving a limiting instruction on the admitted K.S.A. 60-455 evidence where the trial court did not properly explain the relationship between the prior bad acts, the K.S.A. 60-455 exceptions, and the facts.
Although Hart objected to the expansion of the jury instruction concerning the K.S.A. 60-455 evidence to include additional exceptions, he did not raise the specific argument that he now asserts on appeal. As a result, Hart concedes that this court should apply the clearly erroneous standard of review.
“An appellate court reviewing a district court’s giving or failure to give a particular instruction applies a clearly erroneous standard where a party neither suggested an instruction nor objected to its omission.” State v. Martinez, 288 Kan. 443, 451, 204 P.3d 601 (2009); see K.S.A. 22-3414(3). “An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” Martinez, 288 Kan. at 451-52.
The trial court in this case gave the jury instruction regarding K.S.A. 2009 Supp. 60-455 evidence that is outlined in PIK Crim. 3d 52.06. Our Supreme Court has stated the following regarding the use of PIK instructions:
‘The use of PIK instructions is not mandatory, but is strongly recommended. The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions. If the particular facts in a given case require modification of the applicable pattern instruction or the addition of some instruction not included in PIK, the trial court should not hesitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed.’ ” [Citation omitted.]’ [Citation omitted.]” State v. Dixon, 289 Kan. 46, 67, 209 P.3d 675 (2009).
As the State points out, there was no need for the trial court to define the specific terms of motive, intent, plan, lack of mistake or accident, or method that were included in the instruction. See State v. Patton, 33 Kan. App. 2d 391, 396, 102 P.3d 1195 (2004), rev. denied 279 Kan. 1009 (2005) (“ ‘[t]he trial court need not define every word or phrase in the instructions. It is only when the instructions as a whole would mislead the jury or cause it to speculate, that additional terms should be defined.’ ”). The jury should not have been confused or misled by the terms that were part of the PIK instruction.
Further, based on the above analysis, it was unnecessary to give this hmiting instruction because the evidence was admissible independent of any of the factors under K.S.A. 2009 Supp. 60-455(b). As a result, the relationship of the parties evidence would not require a hmiting instruction. See Crossman, 229 Kan. 384, Syl. ¶ 1 (failure to give hmiting instruction not error when evidence admitted to show relationship of parties independent of factors under K.S.A. 60-455); State v. Bly, 215 Kan. 168, 175-76, 523 P. 2d 397 (1974) (evidence disclosing another criminal offense with direct bearing and relation to commission of offense itself is not governed by K.S.A. 60-455 and is admissible without hmiting instruction).
L. Cumulative Error
Next, Hart contends that the combination of errors in this case denied him his constitutional right to a fair trial.
“Cumulative error, considered collectively, may be so great as to require reversal of a defendant’s conviction. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial error may be found under the cumulative error doctrine if the evidence against the defendant is overwhelming. [Citation omitted.]” Dixon, 289 Kan. at 71.
Our Supreme Court has stated that “[cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant. [Citations omitted.] One error is insufficient to support reversal under the cumulative effect rule. [Citation omitted.]” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009).
Based on the previous analysis, the only error in this case was the prosecutor’s lone statement in which she vouched for C.H.’s credibility. Hart failed to make a timely and specific objection to the admission of the prior bad acts evidence to show motive, intent, plan, lack of mistake or accident, or method. Moreover, the prior bad acts evidence is admissible under K.S.A. 2009 Supp. 60-455(d) to show relationship of the parties. As a result, there was no error in the admission of the prior bad acts evidence. As to the prosecutor’s lone statement, she did not exhibit any ill will or gross and flagrant misconduct. Consequently, there was no prejudicial error in this case to warrant the granting of a new trial.
M. Aggravated Sentence in Sentencing Grid Block
Next, Hart maintains that his rights under the Sixth and Fourteenth Amendments to the United States Constitution were violated when the trial court sentenced him to the aggravated sentence in the sentencing grid block, without having those facts proven to a jury beyond a reasonable doubt, in violation of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
It is puzzling why Hart is making this argument when the record discloses that the trial court sentenced Hart to the standard sentence (49 months) in the sentencing grid block for his conviction under count 1 of the amended complaint and to the mitigated sentence (31 months) for his conviction under count 2 of the amended complaint. Because the trial court did not sentence Hart to the aggravated sentence in the applicable sentencing grid block, Hart’s argument on this issue fails.
Moreover, even if Hart had been sentenced to an aggravated sentence in the applicable sentencing grid block, Hart concedes that our Supreme Court has decided this issue adversely to his position in State v. Johnson, 286 Kan. 824, 190 P.3d 207 (2008). This court is duty bound to follow our Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Merrills, 37 Kan. App. 2d 81, 83, 149 P.3d 869, rev. denied 284 Kan. 949 (2007). As a result, Hart’s argument would fail.
N. Use of Criminal History
Finally, Hart argues that his rights under the Sixth and Fourteenth Amendments to the United States Constitution were violated when the trial court sentenced him to an increased sentence, based upon his criminal history, without requiring that his criminal history be included in the complaint and proven to the jury beyond a reasonable doubt.
Hart concedes that our Supreme Court has decided this issue adversely to his position in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). This court is duty bound to follow our Supreme Court precedent, absent some indication the court is departing from its previous position. Merrills, 37 Kan. App. 2d at 83. As a result, Hart’s argument on this issue fails.
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The opinion of the court was delivered by
Beier, J.:
Defendant Mardoqueo Gutierrez challenges his criminal convictions arising out of a violent encounter with his estranged wife. We granted his petition for review on two issues: the sufficiency of the evidence against him on aggravated burglary and the legal viability of the crime of attempted voluntary manslaughter.
Factual and Procedural Background
Luz Gutierrez had obtained a protection from abuse order against defendant, her estranged husband, because of a May 23, 2004, incident in which he grabbed her by the neck and choked her until she nearly lost consciousness. Defendant also was arrested and charged with domestic battery in municipal court in Emporia.
On the afternoon of July 20, 2004, defendant appeared in the municipal court and entered into a diversion agreement in the domestic battery case. Although the agreement prohibited him from having contact with Luz, he left the municipal court and drove to her new apartment—the address of which he had obtained from a mutual friend. He parked his truck a block away so that Luz would not see him.
Luz had just arrived home from picking up her daughters when she heard a knock at her door. She was expecting a representative of a shelter to stop by, but when she answered the door, she saw defendant. He told Luz that they had to talk; the testimony is conflicting on whether he then pushed his way into the apartment or was permitted to enter when Luz stepped back from the door.
Luz told defendant she had nothing to say to him and asked him to leave. Defendant demanded that Luz drop all the charges against him. When she responded that she would not, the two argued; Luz called defendant names. In addition, defendant saw marks on Luz that he believed were evidence of her physical re lationship with another person. Defendant eventually told Luz that, if she was not going to withdraw the domestic battery charge, he “might as well kill her.”
Defendant grabbed Luz by the throat, threw her to the floor, and squeezed hard for 15 to 20 seconds. His testimony indicated he stopped choking Luz either because he saw her eyes flutter or because he looked up and saw their children watching. In any event, Luz lost consciousness. When she awoke, her children were crying and shaking her.
Defendant, who had fled on foot, flagged down a friend a few blocks away, and got into the friend’s car. Defendant said he had killed Luz and asked the friend to call 911. The friend drove defendant back to Luz’ house, where police and an ambulance had already arrived. Defendant turned himself in to police. Defendant denied any intent to kill Luz. He also eventually testified at trial that he had seen a knife sitting out on a counter in Luz’ apartment, but there was no suggestion that Luz threatened him with it or otherwise made a move toward it. Luz ultimately testified that there was no knife and that she did not and could not defend herself. Police found no weapons at the scene other than a butter knife under a pile of dishes in a sink.
Defendant was charged with attempted first-degree murder; aggravated burglary based on the underlying felony of attempted first-degree murder; and violation of a restraining order. Near the close of the State’s case at trial, the district judge permitted the State to amend its aggravated burglary charge to rely on an underlying intent to commit first-degree murder rather than attempted first-degree murder. Defense counsel objected but did not articulate any specific prejudice that would result from the amendment.
The defense moved for judgment of acquittal at the close of the State’s case, arguing the evidence of premeditation and intent to kill was insufficient. The district judge denied.this motion.
The jury was instructed on the elements of attempted first-degree premeditated murder and lesser included offenses, including Instruction No. 6 on attempted voluntary manslaughter in accord with PIK Crim. 3d 55.01 and PIK Crim. 3d 56.05. The instructions defined heat of passion in accord with PIK Crim. 3d 56.04(e).
The first part of Instruction No. 8 on the crime of aggravated burglary was based on PIK Crim. 3d 59.18 and told the jury the State must prove:
“1. That the defendant knowingly entered or remained in a budding, to-wit: [Luz’ apartment];
“2. That the defendant did so without authority;
“3. That the defendant did so with the intent to commit murder in the first (degree, a felony therein;
“4. That there was a human being, to-wit: Luz Gutierrez, at the residence . . . ; and
“5. That this act occurred on or about the 20th day of July, 2004, in Emporia, Lyon County, Kansas.” (Emphasis added.)
It then set out the elements of premeditated first-degree murder.
After the members of the jury began deliberations, they submitted several questions to the district judge. The first asked:
“Clarification: If we find the defendant guilty of a charge lesser than attempted murder in the first degree, does that lesser charge replace ‘commit murder in the first degree’ in claim # 3 of Instr. Number 8.”
Over a defense objection, the district court responded: “Yes. See attached sheet.” The attached sheet stated that aggravated burglary was defined as “knowingly and without authority entering into any building in which there is a human being to commit a felony therein. Attempted second-degree murder and attempted voluntary manslaughter are classified as felonies.”
The jury later asked whether claim 3 on Instruction No. 8 would change if it found defendant guilty of attempted voluntary manslaughter. The district judge heard suggestions from counsel for both sides. Again, over a defense objection, the judge answered in the affirmative, further instructing the jury that intent to commit voluntary manslaughter would replace intent to commit first-degree murder as the underlying crime. The judge then set out the elements of voluntary manslaughter.
Defense counsel argued that this modified instruction undercut his closing argument, which had focused on lack of proof of premeditation and intent. If the jury accepted the defense argument, it should acquit on the aggravated burglary charge even if it convicted on a lesser included offense of attempted first-degree murder. The district judge granted each side 5 additional minutes of closing argument about the changes to the instructions.
Less than an hour later, the jury returned its guilfy verdicts on attempted voluntary manslaughter and aggravated burglary. The district judge later rejected defendant’s motions for judgment of acquittal and new trial.
The Court of Appeals affirmed defendant’s convictions. On the first issue of sufficiency of the evidence to support aggravated burglaiy, the panel reasoned that defendant had never had authority to be in Luz’ apartment. Thus absence of authority necessarily concurred with his entiy into the apartment, and with his time inside it; the evidence was sufficient for a rational factfinder to decide that defendant formed an intent to kill Luz at the relevant time and that his attempt to Mil arose out of a sudden quarrel or heat of passion. State v. Gutierrez, No. 94,317, unpublished opinion filed August 11, 2006, slip op. at 5-6.
The panel also quicMy disposed of defendant’s second issue challenging the legal viability of attempted voluntary manslaughter. It distinguished the case relied upon by defendant, State v. Collins, 257 Kan. 408, 893 P.2d 217 (1995), which dealt with attempted involuntary manslaughter rather than attempted voluntary manslaughter. Gutierrez, slip op. at 6-7.
Sufficiency of the Evidence on Aggravated Burglary
When the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Morton, 283 Kan. 464, 474, 153 P.3d 532 (2007) (quoting State v. Kesselring, 279 Kan. 671, 679, 112 P.3d 175 [2005]; State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 [2003]).
Aggravated burglary is defined in K.S.A. 21-3716 as “knowingly and without authority entering into or remaining within any building ... in which there is a human being, with intent to commit a felony . . . therein.” Defendant insists that any intent to commit the felony of attempted voluntary manslaughter was not concurrent with either unauthorized entry into Luz’ apartment or unauthorized refusal to leave it. Rather, the heat of passion or sudden quarrel motivating defendant’s throttling of Luz arose later in time.
This argument requires three logical components. Defendant first asserts that the phrases “entering into” and “remaining within” refer to legally distinct factual situations. He is at least partially correct on this specific point. See State v. Mogenson, 10 Kan. App. 2d 470, 701 P.2d 1339, rev. denied 238 Kan. 878 (1985); State v. Brown, 6 Kan. App. 2d 556, Syl. ¶ 4, 630 P.2d 731 (1981). The entering into element of a burglary or aggravated burglary is satisfied when the evidence shows that a defendant crossed the plane of a building’s exterior wall. Remaining within refers to a defendant’s presence in the building’s interior after any entering into, authorized or unauthorized, has been accomplished.
Defendant is incorrect, however, on the two other components of his argument.
First, he also asserts that “entering into” and “remaining within” are inevitably mutually exclusive, i.e., that both cannot be present in a single case, because remaining within requires initial entry to be authorized. This is not so. The paradigmatic example of remaining within may occur when (a) a defendant’s initial entry into a building was authorized; (b) authority is later withdrawn; and (c) defendant nevertheless stays inside the building. But such a fact pattern is not essential. A defendant who is unauthorized to enter into a building may continue to be unauthorized while he or she remains within, unless the person or entity empowered to grant permission has decided upon a change in defendant’s status. It also is conceivable that a defendant who is unauthorized to enter into a building may be granted permission to remain within and then be subject to later revocation of that permission.
Defendant also is incorrect in insisting that either entering into or remaining within must necessarily be instantaneous. In fact, both entering into and remaining within may take longer than a mere moment. Certainly, remaining within connotes at least briefly continuous behavior.
The facts of this case are very similar to those that faced the Court of Appeals in Mogenson, 10 Kan. App. 2d at 470. Paul Mogenson was charged with, inter alia, aggravated burglary based on an aggravated battery of the victim. There was a dispute about whether Mogenson’s initial entry was authorized. The victim testified that she did not give him permission to come in. Mogenson and the victim’s son said the son had unlocked the door for Mogenson, and then the victim had demanded that Mogenson leave. Instead, an argument and the battery ensued. On appeal, Mogenson challenged the district judge’s decision to instruct the jury on both entering into and remaining within.
The Court of Appeals affirmed, stating that an instruction in the alternative, was proper on this evidence. 10 Kan. App. 2d at 473. It also discussed the timing of intent formation, approving the district judge’s statement to the jury that “intent must exist at the time the defendant entered the house or at the time he remained in the house in the course of the argument.” 10 Kan. App. 2d at 475-76.
The panel stated: “[T]he [defendant’s] formation of intent to commit aggravated battery [on his wife] must have existed at the time his authority to be in the house was terminated or after he remained in the house without authorization.” Because the “evidentiary record conclusively established] that the argument ensued after defendant was ordered out of the house . . . the requisite intent was present during the course of argument, a time when defendant’s authority had terminated.” 10 Kan. App. 2d at 476.
We have previously favorably discussed and consistently applied the holding of Mogenson. See, e.g., State v. Bowen, 262 Kan. 705, 709, 942 P.2d 7 (1997) (analogizing to Mogenson to hold intent, absence of authority must be concurrent); State v. Skelton, 247 Kan. 34, 49, 795 P.2d 349 (1990) (“[t]he intent to commit a felony therein may be formulated after a defendant is within a structure, but the unlawful act of remaining without authority must concur with the criminal intent to commit a felony or theft to satisfy the statute’s elements”). To support a conviction for aggravated bur glary, the intent to commit a felony and the unauthorized entering into or remaining within must at some point in time coexist. Bowen, 262 Kan. at 709 (citing Mogenson, 10 Kan. App. 2d at 472-76). It is not necessary, however, to prove “remaining within” burglary or aggravated burglary to show that the intent to commit a felony was precisely contemporaneous with any withdrawal of a defendant’s authority to be inside the building.
Here, viewing all the evidence in the light most favorable to the prosecution, although a rational factfinder may not have been able to conclude defendant was guilty beyond a reasonable doubt of aggravated burglary based on evidence of unauthorized entry contemporaneous with the heat of passion or sudden quarrel necessary for voluntary manslaughter, the evidence was adequate to support defendant’s formation of the necessary intent while he remained in Luz’ apartment without authority. Once she told him to leave, an expression of sentiment defendant admits occurred, his presence was unauthorized even if previously permitted. Evidence of development of defendant’s intent to commit a felony at any point between Luz’ expression that he was unwelcome and his departure from the' apartment was legally sufficient to support the aggravated burglary conviction.
Attempted Voluntary Manslaughter
Defendant’s second argument is that the crime of attempted voluntary manslaughter based on sudden quarrel or heat of passion is an impermissible legal fiction. In his view, one cannot intend to do an act that is defined by impulse and lack of reflection. This argument raises a question of law subject to unlimited appellate review. See State v. Sexton, 232 Kan. 539, 542, 657 P.2d 43 (1983) (function of court to determine whether statute, combination of statutes proscribes certain conduct as criminal).
K.S.A. 21-3403(a) defines voluntary manslaughter as “the intentional killing of a human being- committed . . . [u]pon a sudden quarrel or in the heat of passion.” K.S.A. 21-3301(a) provides that an attempt is “any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.”
Defendant concedes that many Kansas cases recognize the crime of attempted voluntary manslaughter, but correctly notes that no Kansas court has squarely addressed the issue he raises. See, e.g., State v. Flores, 283 Kan. 380, 153 P.3d 506 (2007) (defendant, a minor, pleaded guilty to felony murder, attempted voluntary manslaughter; issue whether case should have remained in adult, juvenile court); State v. Gayden, 281 Kan. 290, 130 P.3d 108 (2006) (defendant convicted of six felonies, including attempted voluntary manslaughter; issue whether double jeopardy properly raised through illegal sentence motion); State v. Dixon, 252 Kan. 39, 41-49, 843 P.2d 172 (1993) (defendant appealed attempted first-degree murder conviction; issue whether evidence warranted instruction on attempted voluntary manslaughter as lesser included offense). At least one of our sister jurisdictions appears to be in a similar position. See Stice v. State, 799 P.2d 1204 (Wy. 1990) (defendant pleaded guilty to attempted voluntary manslaughter; untimely appeal permitted where district court had failed to inform defendant of maximum penalty for that crime; issue whether error harmless).
Here, defendant relies on an Illinois Court of Appeals case, People v. Stevenson, 198 Ill. App. 3d 376, 555 N.E.2d 1074 (1990). In that case, defendant Stephen Stevenson had telephoned the home of his ex-paramour and her husband and had threatened to kill the husband. In the early hours of the next day, Stevenson came to the house, ready to fight. When the husband refused to come outside, Stevenson threw a brick through a window, kicked in a door, and stabbed the husband in the chest. Although seriously injured, the husband recovered; Stevenson was convicted of, inter alia, attempted murder.
On appeal Stevenson noted that, in a prosecution for murder, a mitigating state of mind such as intense passion or an unreasonable belief that one’s actions were justified is an affirmative defense that, once raised by the evidence, must be disproved by the State. See 198 Ill. App. 3d at 383 (citing People v. Reddick, 123 Ill. 2d 184, 526 N.E.2d 141 [1988]). Therefore, he asserted, in cases of at tempted murder, the State should have a similar duty to disprove the existence of a sudden and intense passion such as that arising from his jealousy of his ex-paramour s husband; and a mitigating state of mind that would reduce murder to voluntary manslaughter should reduce attempted murder to attempted voluntary manslaughter.
The Illinois court ultimately determined Stevenson’s failure to raise the issue at trial resulted in waiver. 198 111. App. 3d at 383. Nevertheless, it added that Stevenson’s argument was unpersuasive because, under Illinois’ statutory definitions, no such thing as attempted voluntary manslaughter could exist:
“[T]here can be no [attempted voluntary manslaughter] in cases where the alleged mitigating state of mind is a sudden and intense passion. The intent to commit an offense contemplates deliberation. Voluntary manslaughter resulting from a sudden and intense passion, however, precludes any deliberation, but can be found only where the passion engendered is sufficient to deprive a defendant of his self-control. One cannot intend such passion.” Stevenson, 198 Ill. App. 3d at 384 (citing People v. Weeks, 86 Ill. App. 2d 480, 230 N.E.2d 12 [1967]).
We note that New York has reached the same conclusion under its statutes. See People v. Brown, 21 A.D.2d 738, 249 N.Y.S.2d 922 (1964), overruled on other grounds People v. Jackson, 49 A.D.2d 680, 370 N.Y.S.2d 739 (1975); see also People v. Martinez, 81 N.Y.2d 810, 811-12, 595 N.Y.S.2d 376, 611 N.E.2d 277 (1993) (settled law that attempted manslaughter in the first degree is nonexistent crime); but see People v. Foster, 19 N.Y.2d 150, 278 N.Y.S.2d 603, 225 N.E.2d 200 (1967) (no reversal required where defendant pleaded guilty to attempted manslaughter in compromise with prosecution). Alabama, Massachusetts, Maine, Nevada, and Wisconsin have done likewise. See Westbrook v. State, 722 So. 2d 788, 792 (Ala. Crim. App. 1998) (person cannot attempt to kill as result of heat of passion; “If he attempts to kill that person, then he intends to cause that person’s death. If he intends to cause that person’s death, then he is guilty of attempted murder, not attempted manslaughter”; specific intent to take life not essential element of manslaughter); Commonwealth v. Hebert, 373 Mass. 535, 537-38, 368 N.E.2d 1204 (1977) (attempted voluntary manslaughter logically impossible, factually indistinguishable from as sault with intent to kill); State v. Howard, 405 A.2d 206, 212 (Me. 1979) (“Because of the discrepancy in culpable mental states between criminal attempt on the one hand and manslaughter on the other, the proffered crime of ‘attempted manslaughter’ is a logical impossibility”; voluntary manslaughter defined as “recklessly” or with “criminal negligence” causing death of another.); Curry v. State, 106 Nev. 317, 319-20, 792 P.2d 396 (1990) (“One cannot logically specifically intend to act pursuant to a spontaneous, unanticipated, and therefore, truly irresistible passion”; voluntary manslaughter general intent crime; thus attempted voluntary manslaughter cannot exist.); State v. Carter, 44 Wis. 2d 151, 155-56, 170 N.W.2d 681 (1969) (because intent not an element of manslaughter, attempted manslaughter does not exist).
However, a majority of the jurisdictions weighing in on this question have specifically rejected the argument defendant makes. See State v. Barnes, 162 Ariz. 92, 93, 781 P.2d 69 (Ct. App. 1989) (conviction for attempted heat-of-passion or sudden quarrel manslaughter based on intentional, knowing action to cause death not prohibited); People v. Van Ronk, 171 Cal. App. 3d 818, 824-25, 217 Cal. Rptr. 581 (1985) (“There is nothing illogical or absurd in a finding that a person who unsuccessfully attempted to kill another did so with the intent to kill which was formed in the heat of passion or which arose out of an honest but unreasonable belief in the necessity of self-defense.”); Taylor v. State, 444 So. 2d 931, 934 (Fla. 1983) (“it is not a logical impossibility for the crime of attempted manslaughter to exist in situations where, if death had resulted, the defendant could have been found guilty of voluntary manslaughter,” i.e., where sufficient evidence present of intent to ldll); Anthony v. State, 274 Ind. 206, 212, 409 N.E.2d 632 (1980) (while there can be no crime of attempted reckless homicide, “since both murder and manslaughter can be proved by evidence of the Mowing or intentional killing of another human being, . . . the crime of attempted manslaughter does exist under our present statutes”; culpability requirement satisfied); State v. Harper, 205 La. 228, 229-31, 17 So. 2d 260 (1944) (attempted voluntary manslaughter recognized as offense, given specific intent requirement); Cox v. State, 311 Md. 326, 331-34, 534 A.2d 1333 (1988) (specific intent required for both attempt, voluntary manslaughter); People v. Genes, 58 Mich. App. 108, 110, 227 N.W.2d 241 (1975) (because offense of voluntary manslaughter requires proof of intent to take life, voluntary manslaughter can be attempted); State v. Jernigan, 139 N.M. 1, 7-8, 127 P.3d 537 (2005) (by statute, voluntary manslaughter requires proof of general intent; however, if conduct qualifies as second-degree murder committed with sufficient provocation, specific intent crime defined; under limited circumstances, involving provocation, voluntary manslaughter also may be specific intent crime); State v. Rainey, 154 N.C. App. 282, 286-88, 574 S.E.2d 25, rev. denied 356 N.C. 621, 575 S.E.2d 520, 521 (2002) (because essential element of voluntary manslaughter intent to kill, attempted voluntary manslaughter cognizable offense); Com. v. Garner, 314 Pa. Super. 566, 569, 461 A.2d 302 (1983) (attempted voluntary manslaughter exists under Pennsylvania law); State v. Ruane, 912 S.W.2d 766, 783 (Tenn. Crim. App. 1995), disapproved on other grounds State v. Williams, 977 S.W.2d 101 (Tenn. 1998) (recognizing attempted voluntary manslaughter as lesser included offense of attempted murder; offense requires intent to kill); Ex parte Ruggs, 644 S.W.2d 748, 750 (Tex. Crim. App. 1983) (element of intent essential to prove voluntary manslaughter; attempted voluntary manslaughter classified as lesser include offense of attempted murder); State v. Norman, 580 P.2d 237, 239-40 (Utah 1978), overruled on other grounds State v. Standiford, 769 P.2d 254 (Utah 1988) (no offense of attempted “reckless” manslaughter exists; however attempted manslaughter under “extreme mental or emotional disturbance” recognized as specific intent crime); see also State v. Holbron, 80 Hawaii 27, 45, 904 P.2d 912 (1995) (attempted manslaughter recognized by statute; see Hawaii Rev. Stat. § 707-702[2] [1993 & 2006 Supp.]).
In Kansas, as in Illinois and New York, an attempt requires specific intent. Kansas does not recognize attempted felony murder, State v. Robinson, 256 Kan. 133, Syl. ¶ 1, 883 P.2d 764 (1994); attempted involuntary manslaughter, State v. Gayden, 259 Kan. 69, Syl. ¶ 2, 910 P.2d 826 (1996); State v. Shannon, 258 Kan. 425, Syl. ¶ 3, 905 P.2d 649 (1995); State v. Collins, 257 Kan. 408, Syl. ¶ 4, 893 P.2d 217 (1995); or unintentional but reckless second-degree murder under K.S.A. 21-3402(b); State v. Clark, 261 Kan. 460, 466-67, 931 P.2d 664 (1997); Shannon, 258 Kan. at 429. In other words, we have recognized in other circumstances that it is logically impossible to attempt to commit an unintentional act.
Yet, in Kansas, unlike in Illinois and New York, voluntary manslaughter is a specific intent offense. See K.S.A. 21-3403(a) (defining voluntaiy manslaughter); State v. Burrow, 221 Kan. 745, 749, 561 P.2d 864 (1977) (involuntary manslaughter distinguished from voluntary manslaughter by the lack of intent to kill); State v. Conley, 6 Kan. App. 2d 280, 286, 627 P.2d 1174, rev. denied 229 Kan. 671 (1981) (voluntary manslaughter is specific intent crime; requires intent to kill); compare Stevenson, 198 Ill. App. 3d at 383 (citing 38 Ill. Rev. Stat. § 9-2[a] [1985] [defining voluntary manslaughter as: “A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation”]); N.Y. Penal Law §§ 125.115, 125.20 (McKinney 2004) (neither first- nor second-degree manslaughter require an intent to kill).
A defendant can form an intent to kill without premeditation, without reflection, on impulse, while enraged or provoked, but, in order to support a conviction of voluntary manslaughter, that essential element of intent must be present. Moreover, if a defendant has formed the necessary intent, it is not logically impossible for him or her to attempt and fail to carry it out, that is, to engage in an overt act toward the accomplishment of an intentional crime. See State v. Graham, 275 Kan. 831, 836-40, 69 P.3d 563 (2003); State v. Hedges, 269 Kan. 895, 905-06, 8 P.3d 1259 (2000). For these reasons, we reject defendant’s argument on this issue. Attempted voluntary manslaughter is a valid crime in Kansas.
We malee one additional parting observation. The Stevenson decision from Illinois also is less than persuasive because it focuses on the inability of a defendant to intend the passion inherent in voluntaiy manslaughter. The appropriate inquiry is not whether a defendant intends passion, but whether he or she intends to kill. In both Kansas and Illinois, the conduct proscribed by the volun tary manslaughter statute, as a homicide, is not the passion. It is the killing. The existence of heat of passion or sudden quarrel, arising from severe provocation, reduces what would otherwise be murder to voluntary manslaughter. See State v. Guebara, 236 Kan. 791, 796, 696 P.2d 381 (1985).
Affirmed.
Davis and Johnson, JJ., not participating.
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The opinion of the court was delivered by
Rosen, J.:
This case presents four certified questions from the United States District Court for the District of Kansas regarding the liability limits of an automobile insurance policy. The four certified questions are as follows:
1. When “occurrence” is not defined in an automobile LIABILITY POLICY, WHAT TEST SHOULD BE APPLIED UNDER Kansas law in determining whether there are MULTIPLE “OCCURRENCES” AND, IF SO, THE NUMBER OF “OCCURRENCES”?
2. When multiple collisions involving several VEHICLES AND INJURED PERSONS RESULT FROM THE ACTIONS OF THE INSURED DRIVER, IS EACH COLLISION AN “OCCURRENCE”?
3. If the answer to question number is “yes,” how many OCCURRENCES WERE THERE UNDER THE FACTS? AND
4. What is the maximum amount of American Family’s LIABILITY UNDER THE POLICY?
UNDISPUTED FACTS
The undisputed facts as set forth by the federal district court are as follows:
“Plaintiff American Family Mutual Insurance Company (‘American Family’) issued an automobile policy to Láveme Roy, effective February 23, 2005 to April 11,2005. The policy contained a per person limit of $100,000 and aper occurrence limit of $300,000. The policy contained the following section:
“LIMITS OF LIABILITY
“The limits of liability shown in the declarations apply, subject to the following:
“1. The bodily injury liability limit for ‘each person’ is the maximum for all damages sustained by all persons as a result of bodily injury to one person in any one occurrence.
“2. Subject to the bodily injury liability limit for ‘each person,’ the bodily injury liability limit for ‘each occurrence’ is the maximum for bodily injury sustained by two or more persons in any one occurrence.
“3. The property damage liability limit for ‘each occurrence’ is the maximum for all damages to all property in any one occurrence.
“We will pay no more than these máximums no matter how many vehicles are described in the declarations, or insured persons, claims, claimants, policies or vehicles are involved.
“The policy does not contain a definition of the word ‘occurrence.’
“On April 4, 2005, Láveme A. Roy was driving a 2003 Ford F350 in a southbound direction in the northbound lanes of Interstate 35, near the south Wichita Turnpike Interchange in Sedgwick County, Kansas. Rebecca A. Jones was driving a 2005 Honda Civic in a northbound direction in the northbound lanes of Interstate 35 near the south Wichita Turnpike Interchange in Sedgwick County. At milepost 38.3, at 1:38 p.m., Jones swerved to avoid Roy’s vehicle and overturned her Honda. Jones claims she was injured as a result and is entitled to damages in excess of $75,000. Defendant State Farm Automobile Insurance Company provided automobile liability insurance to Jones and asserts a subrogation claim of $5,000 for personal injury protection benefits paid on behalf of Jones.
“Carlton W. Wolf, Jr., driving a 1985 Mercedes, was also traveling in a northbound direction in the northbound lanes of Interstate 35 near the south Wichita Turnpike Interchange in Sedgwick County, Kansas. At milepost 37.8, at 1:39 p.m., Wolf swerved to avoid Roy’s vehicle and rolled his Mercedes. Wolf claims he was injured as a result and is entitled to damages in excess of $75,000. Defendant Allstate Indemnity Company provided automobile liability insurance to Wolf and asserts a subrogation claim of $4,500 for personal injury protection benefits paid on behalf of Wolf.
“Craig Wilkins was also driving in a northbound direction in the northbound lanes of Interstate 35 near the south Wichita Turnpike Interchange in Sedgwick County, Kansas, in a 2002 Dodge truck. At milepost 37.8, at 1:39 p.m., Wilkins’ truck struck Roy’s vehicle in a head-on collision. Roy, Wilkins, and a passenger in Wilkins’ vehicle, Chase Wilkins, were killed. Wilkins’ two other passengers, Stacy Wilkins and Dakota Wilkins were injured. Stacy Wilkins, Dakota Wilkins, and additional defendants Taylor, Mike, and Janet Wilkins seek unspecified damages. Defendant Farm Bureau Mutual Insurance Company provided automobile liability insurance to Wilkins and asserts a subrogation claim of $30,900 for personal injury protection benefits paid on behalf of the Wilkins defendants. Defendant Wesley Medical Hospital asserts a hospital lien for emergency services provided to Stacy Wilkins (hen amount $33,804.15), Dakota Wilkins (hen amount $20,346.01), and Chase Wilkins (lien amount $13,215.22).
“James L. Brooks, driving a 1995 Ford truck, was also traveling in a northbound direction in the northbound lanes of Interstate 35 near the south Wichita Turnpike Interchange in Sedgwick County, Kansas. At milepost 37.8, at 1:39 p.m., Brooks swerved to avoid the collision between Wilkins and Roy and hit a barrier wall. Brooks and his passenger, Steven Early, were served but have not appeared to assert claims.
“Proceedings in U.S. District Court
“On November 3, 2005, American Family filed an interpleader complaint with regard to the above detailed events and paid $300,000 into court. The initial complaint has been modified and the parties are now proceeding on a third amended interpleader complaint. Count 1 of the third amended inter-pleader complaint seeks: 1) that each of the defendants be ordered to inter-plead and settle among themselves their rights and claims to the ‘sum of $300,000 due and payable under the Policy;’ 2) a temporary and permanent order from this court ‘enjoining and restraining’ the defendants from ‘instituting or prosecuting further any proceedings in any state or United States court on account of the accident or the Policy’; 3) that American Family be ‘fully and finally discharged from all further liability and further obligation to defend by reason of payment of proceeds of the Policy into this Court’; and 4) ‘rea sonable and proper attorneys’ fees and costs.’ Count 2 of the third amended interpleader complaint seeks that American Family be ‘fully and finally discharged from all further obligation to defend David Roy and Maiy Austin, co-executors of the Estate of Láveme Roy.’
“Defendants answered this third amended interpleader complaint and asserted the following counterclaims and cross-claims: 1) Wolf asserts a counterclaim against American Family, a counterclaim against Roy’s estate, and a cross-claim against Roy’s estate; 2) the Wilkins defendants assert a counterclaim against American Family, a cross-claim against Roy’s estate, and a cross-claim against defendant Farm Bureau Mutual Insurance Company (their insurer) for under-insured motorist benefits; and 3) Jones asserts a cross-claim against Roy’s estate, and a cross-claim against defendant State Farm Mutual Automobile Insurance Company (her insurer) for under-insured motorist benefits.”
ANALYSIS
K.S.A. 60-3201 authorizes this court to answer certified questions of law from a United States District Court when the questions may be determinative of the cause then pending in the certifying court and there appears to be no controlling precedent in this State. Certified questions, by definition, turn on legal issues. Therefore, we review such questions using an unlimited standard. Our answer to a certified question must be based on Kansas precedent rather than federal rulings interpreting Kansas law. Burnett v. Southwestern Bell Telephone, 283 Kan. 134, 136, 151 P.3d 837 (2007).
1. When “occurrence” is not defined in an automobile LIABILITY POLICY, WHAT TEST SHOULD BE APPLIED UNDER Kansas law in determining whether there are MULTIPLE “OCCURRENCES” AND, IF SO, THE NUMBER OF “OCCURRENCES”?
We interpret the terms of an insurance policy by applying the following rules of construction:
“The language of an insurance policy, like any other contract, must, if possible, be construed in such way as to give effect to the intention of the parties. [Citations omitted.] In construing a policy of insurance, a court should consider the instrument as a whole and endeavor to ascertain the intention of the parties from the language used, taking into account the situation of the parties, the nature of the subject matter, and the purpose to be accomplished. [Citation omitted.]
“Because tire insurer prepares its own contracts, it has a duty to make the meaning clear. If the insurer intends to restrict or limit coverage under the policy, it must use clear and unambiguous language; otherwise, the policy will be liberally construed in favor of the insured. [Citations omitted.] If an insurance policy s language is clear and unambiguous, it must be taken in its plain, ordinary, and popular sense. [Citation omitted.] In such case, there is no need for judicial interpretation or the application of rules of liberal construction. [Citation omitted.] The court shall not make another contract for the parties and must enforce the contract as made. [Citations omitted.]
“However, where the terms of an insurance policy are ambiguous or uncertain, conflicting, or susceptible of more than one construction, the construction most favorable to the insured must prevail. [Citations omitted.]
“ ‘To be ambiguous, a contract must contain provisions or language of doubtful or conflicting meaning, as gleaned from a natural and reasonable interpretation of its language. Ambiguity in a written contract does not appear until die application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning.’ [Citation omitted.]
“Whether a written instrument is ambiguous is a question of law to be decided by the courts. [Citation omitted.] Courts should not strain to create an ambiguity where, in common sense, there is not one. [Citation omitted.] The test in determining whether an insurance contract is ambiguous is not what the insurer intends the language to mean, but what a reasonably prudent insured would understand the language to mean [Citation omitted.]” O’Bryan v. Columbia Ins. Group, 274 Kan. 572, 575-76, 56 P.3d 789 (2002).
American Family argues that the term “occurrence” is not ambiguous even though it is not defined in the policy. The defendants, on the other hand, assert that the term is ambiguous because it is subject to conflicting meanings in the various cases that have addressed its definition. Courts have applied three tests for defining the term “occurrence.” In determining whether there is a single or' multiple occurrences under the policy limits, most courts consider the cause of the injury. A minority of courts consider the term “occurrence” to refer to the effects. A third category of courts consider the event that triggered liability to determine whether there are single or multiple occurrences under the policy limits. Annot., 64 A.L.R.4th 668, 673-74. Because the policy at issue in this case does not define the term “occurrence” and the cases from various courts demonstrate that the term “occurrence” is susceptible to conflicting meanings, we find the term to be ambiguous. See Natron v. Cincinnati Ins. Co., 278 Kan. 365, 371, 97 P.3d 1042 (2004).
Kansas courts appear to have applied two of the three tests for defining the term “occurrence” as it relates to the limits of an insurer’s liability. In Mid-Century Ins. Co. v. Shutt, 17 Kan. App. 2d 846, 845 P.2d 86 (1993), the Court of Appeals considered the event that triggered liability to determine the number of occurrences and establish the insurer’s maximum liability. In Shutt, a 3-year-old child was struck by a car. The child sued the owner of the car, claiming two separate íegal theories—negligence by the driver and negligent entrustment by the driver’s parents, who were the owners of the car. The child argued that the insurer was liable for two occurrences because the accident was caused by both the driver’s negligence and the parents’ negligent entrustment. The Shutt court rejected the plaintiff s cause test and held that there was only one occurrence because there was only one event that triggered liability under the insurance policy—striking the child with the car. 17 Kan. App. 2d at 851.
In Hodgson v. Bremen Farmers’ Mut. Ins. Co., 27 Kan. App. 2d 231, 3 P.3d 1281, rev. denied 268 Kan. 886 (1999), the Court of Appeals relied on its decision in Shutt and applied the liability-triggering event test. In Hodgson, a dog attacked a boy. As the boy’s father was running to rescue the boy, he slipped, fell, and tore his rotator cuff. The father was eventually able to free the boy from the dog, but both the father and the boy suffered injuries. The boy and his father sued the dog’s owner, claiming negligent failure to contain the dog. The parties settled before trial and stipulated to $50,000 in damages. The dog owner’s insurance policy capped liability coverage at $25,000 per occurrence. The Hodgson court concluded that the policy language was ambiguous and construed it in favor of the insured, holding that there were two events triggering contractual liability under the insurance policy—-the dog attack and the father’s fall. 27 Kan. App. 2d at 236. The Hodgson court distinguished the events triggering liability from the causative negligent acts, stating:
“[The insurer] argues [the father] would not have been running but for the dog attack. While this fact would be significant for tort analysis, it does not resolve [the insurer’s] liability under the insurance contract. [The insurer’s] liability under tort is not in question here.” 27 Kan. App. 2d at 234.
Without addressing Shutt and Hodgson, this court applied a causation test to determine the number of occurrences in Wilson v. Ramirez, 269 Kan. 371, 2 P.3d 778 (2000). Wilson involved a medical malpractice action for failure to diagnose and loss of chance of survival. Wilson sought treatment from Dr. Ramirez for a recurring lesion on his lower lip. Dr. Ramirez removed the lesion and sent it to pathology to determine if it was cancerous. The pathology report was negative. Thereafter, Wilson sought treatment from Dr. Ramirez on four other occasions over the next year and a half for the same recurring lesion. Relying on the negative pathology report from Wilson s first visit, Dr. Ramirez failed to diagnose the lesion as cancer on each visit. Wilson sued Dr. Ramirez, claiming five separate acts of medical malpractice that caused five separate and distinct injuries. Noting that Dr. Ramirez continued to rely on the negative pathology report throughout his treatment, the Wilson court held that there was one “proximate, uninterrupted, and continuing cause” that resulted in all of Wilson’s injuries and damages—Dr. Ramirez’s failure to diagnose. 269 Kan. at 380. As a result, there was only one occurrence for purposes of determining the maximum liability for Dr. Ramirez’s insurance policy. 269 Kan. at 380-81.
In AT&SF Ry. Co. v. Stonewall Ins. Co., 275 Kan. 698, 738-39, 71 P.3d 1097 (2003), this court applied a causation test in concluding that 3,800 hearing loss claims constituted one occurrence for determining the amount of Santa Fe’s self-insured retention. The single occurrence was Santa Fe’s failure to institute a hearing conservation program to protect its employees from the high-level noise inherent in the operation of its business. The parties had agreed to apply a causation test but disagreed as to whether the test should be broadly or narrowly construed. In deciding to apply a broad causation test, the ATéSF court recognized general similarities with Wilson. The ATéSF court noted that Santa Fe could not control the cause of its employees’ hearing loss just like Dr. Ramirez could not control the cause of Wilson’s lesion. Santa Fe’s failure to protect its employees with a hearing conservation program was analogous to Dr. Ramirez’s failure to diagnose Wilson’s cancer. 275 Kan. at 736-37.
In Shutt and Hodgson, the Court of Appeals focused on the event triggering liability under the insurance contract to determine the number of occurrences. In Wilson and ATé-SF, this court looked at the cause of liability to determine the number of occurrences. While, on the surface, it may appear that there is a conflict between the Court of Appeals’ analysis in Shutt and Hodgson and this court’s analysis in Wilson and ATé-SF, a more detailed review reveals that both courts applied the same basic principle.
Legal commentators have divided the tests for determining the number of occurrences into three categories: cause, effect, and event-triggering liability. Annot., 64 A.L.R.4th 668, 673-74. The parties in this case assume that these categories are mutually exclusive. This assumption is correct in regards to tire cause and effect categories. Under the cause test, a court must determine whether there was one proximate, uninterrupted, continuing cause that resulted in all the injuries. Wilson, 269 Kan. at 380-81; Hyer v. Inter-Insurance Exchange, 77 Cal. App. 343, 350, 246 Pac. 1055 (1926) (holding that there was one occurrence when a vehicle struck two other vehicles). If one cause is interrupted and replaced by another intervening cause, then the chain of causation is broken, resulting in two or more occurrences depending on the number of intervening causes. Home Indem. Co. v. City of Mobile, 749 F.2d 659, 662 (11th Cir. 1984) (holding that there was one occurrence under tire insurance policy for each negligently maintained storm drain or sewer that flooded and caused damage to property regardless of the number of properties each drain or sewer damaged). However, under the effect test, the policy coverage limits are based on the effect of the accident, extending the insured’s policy limits to each injured party. See, e.g., Anchor Casualty Co. v. McCaleb, 178 F.2d 322, 324-25 (5th Cir. 1949) (concluding that each property owner damaged by a series of oil rig explosions was entitled to the $5,000 per accident limit).
The insurance policy at issue in this case states that American Family will “pay no more than these máximums no matter how many vehicles are described in the declarations or insured persons, claims, claimants, policies or vehicles are involved.” This language clearly indicates that American Family did not intend to use the effects test to determine the number of occurrences.
Although the cause and effects tests are mutually exclusive, the cause and.habihty-triggering event tests are not. In defining the term “accident” and equating it to an “occurrence,” the Hiyer court noted that in some classes of cases the term could refer to the cause of the injury or loss; in other cases, the term accident or occurrence could refer to the event, i.e., “the unintended and unexpected loss or hurt apart from its cause”; and in still other cases, it could refer to both the event and the cause. 77 Cal. App. at 348. Thus, the liabihty-triggering event test, in certain circumstances, is a narrow class that can overlap with the cause test. Consequently, the Court of Appeals and this court have essentially applied the same underlying principle in analyzing the term “occurrence” as it relates to liability limits for an insurance policy. Based on prior Kansas precedent, we conclude that the number of occurrences is determined by the cause of the injuiy. Our answer to the first certified question regarding the test to be applied is causation.
2. When multiple collisions involving several VEHICLES AND INJURED PERSONS RESULT FROM THE ACTIONS OF THE INSURED DRIVER, IS EACH COLLISION AN “OCCURRENCE”?
American Family argues that there was only one proximate cause for all of the injuries received by all of the injured persons. According to American Family, the single proximate cause for all of the injuries was Roy s neghgent driving on the wrong side of the highway. The defendants, however, argue that there were three occurrences related to Roys separate encounters with the Jones vehicle, the Wolf vehicle, and the Wilkins vehicle.
We do not agree with American Family’s argument that the cause was Roy’s neghgent driving on the wrong side of the road. If Roy had not encountered another vehicle on the wrong side of the road, there would not have been a collision. Thus, the cause of the collisions at issue in this case is the encounter between Roy’s vehicle and an oncoming vehicle. Driving the wrong way on the highway is an antecedent cause, but the most immediate cause of the collisions was Roy s negligence in driving in the path of an oncoming vehicle. In reaching this conclusion, we are not shifting the liability to the driver of the oncoming vehicle. Rather, we are limiting the causation to Roy’s negligence as he encountered another vehicle.
However, our rejection of American Family’s argument regarding the cause does not imply that we agree with the defendants’ argument that there were three separate occurrences. Determining the number of occurrences requires further analysis. Because there are no similar Kansas cases involving multiple automobile collisions, we turn to cases from other jurisdictions for help in analyzing this question.
In Hyer, the insured’s chauffeur lost control of the car, crossed the centerline and struck an oncoming vehicle. The force of the impact broke the steering gear in the insured’s vehicle, causing it to become unmanageable, and the insured’s vehicle careened into another oncoming vehicle. Recognizing that the broken steering gear was a causal connection between the collision with the first car and the collision with the second car, the Hyer court described the second collision as the “incident to the accident” and concluded that there was only one accident. 77 Cal. App. at 351, 355.
In Truck Ins. Exch. v. Rohde, 49 Wash. 2d 465, 303 P.2d 659 (1956), the insured motorist veered onto the wrong side of the highway and struck three oncoming motorcycles that were traveling about 75 feet apart in an echelon formation. The motorist struck the first motorcycle at the left front fender, causing his vehicle to turn counterclockwise. The vehicle then struck the second motorcycle with the right front fender, causing it to turn further in a counterclockwise direction. The vehicle then collided with the third motorcycle on the right side near the rear of the vehicle. The Rohde court concluded that there was one occurrence under the motorist’s insurance policy, noting that the motorist’s “vehicle went out of control, either before or simultaneously with the first collision, and that it remained out of control until it came to rest after the third collision.” 49 Wash. 2d at 471.
In Olsen v. Moore, 56 Wis. 2d 340, 202 N.W.2d 236 (1972), the insured motorist lost control of his vehicle, crossed the median strip and collided with an oncoming vehicle, forcing it into the ditch. The insured motorist’s vehicle was deflected into the other lane where it collided with a second oncoming car. Noting that there was virtually no time or space interval between the collisions and the motorist never regained control of his vehicle, the Olsen court concluded that there was one occurrence under the motorist’s insurance policy. 56 Wis.2d at 350.
In Hartford Acc. & Ind. v. Wesolowski, 33 N.Y.2d 169, 350 N.Y.S.2d 895, 305 N.E.2d 907 (1973), an insured’s vehicle struck an oncoming vehicle, ricocheted off it, and struck a second oncoming vehicle approximately 100 feet away. Relying on the extremely short time period between the first collision and the second, the Wesolowski court stated that the “continuum between the two impacts was unbroken, with no intervening agent or operative factor.” 33 N.Y.2d at 174. The Wesolowski court applied the liability-triggering event test to conclude that there was only one “three-car” accident under the insured’s policy. 33 N.Y.2d at 174.
In Liberty Mut. Ins. Co. v. Rawls, 404 F.2d 880 (5th Cir. 1969), the insured was fleeing from two deputy sheriffs at a high rate of speed. The insured struck the left rear of a vehicle in front of him on the highway, knocking the vehicle off the highway to the right. The insured remained in control of his vehicle and continued his flight. A few seconds later, the insured veered across the centerline and collided with an oncoming car. The Rawls court concluded that there were two accidents under the insured’s liability policy because the impacts were separated by 2 to 5 seconds in time and 30 to 300 feet in distance and there was no evidence that the insured lost control of his vehicle after striking the first vehicle. 404 F.2d at 880-81.
In Illinois Nat’l Ins. Co. v. Szczepkowicz, 185 Ill. App. 3d 1091, 542 N.E.2d 90 (1989), a semi-trailer truck turned northward onto a four-lane, divided highway from a private driveway. Wanting to go southbound on the highway, tire truck turned left onto a crossover that connected the northbound and southbound lanes. Because traffic in tire southbound lanes prevented the truck from completing its turn, the back end of the truck was blocking both northbound lanes. Due to foggy conditions and an inoperative side clearance light on the truck, a northbound vehicle in the right lane struck the side of the semi-trailer. The truck driver pulled forward about 12 feet almost immediately after the collision and then stopped again. Five minutes later, a second vehicle traveling in the left northbound lane struck side of the semi-trailer again. The Szczepkowicz court concluded that there were two accidents under the insured’s liability policy. The Szczepkowicz court reasoned that the collisions were separated in time, that the truck driver remained in control of his truck after the first collision, and that the conditions for each accident were different because the truck driver moved the truck enough to clear one of the northbound lanes after the first collision. 185 Ill. App. 3d at 1096.
Voigt v. Riesterer, 187 Wis. 2d 459, 523 N.W.2d 122 (1994), involved a multi-vehicle collision on a two-lane highway. The Voigt court described it as follows:
“Traveling east, plaintiff Jeffrey Voigt was operating a pickup truck owned by Jeff Mavis, who was in the passenger seat. Brockman, with Kevin Baumgartner as a passenger, was operating a car in a westerly direction. Brockman’s automobile crossed the centerline of Highway S and collided head-on with the pickup truck driven by Voigt. Within a few minutes, a vehicle driven by Dion Haase was traveling in a westerly direction and came upon the Voigt-Brockman accident. Haase parked his vehicle on the north shoulder of the highway across from the two vehicles. Three to five minutes after the first collision, a second collision occurred when Robert Riesterer, also traveling in a westerly direction, struck the back end of Brockman’s automobile, which propelled Brockman into Voigt again. Riesterer then bounced off the back of Brockman’s automobile and struck the parked Haase vehicle.” 187 Wis. 2d at 462.
Noting that the collisions were separated in time, the Voigt court concluded that there were two occurrences within the meaning of the insured’s liability policy. 187 Wis. 2d at 467.
We agree with the reasoning from these cases, which distinguishes the number of occurrences based on the time-space continuum between tire collisions and the insured driver’s level of control over the vehicle. Collisions with multiple vehicles constitute one occurrence when the collisions are nearly simultaneous or separated by a very short period of time and the insured does not maintain or regain control over his or her vehicle between collisions. When collisions between multiple vehicles are separated by a period of time or the insured maintains or regains control of the vehicle before a subsequent collision, there are multiple occurrences.
Although the federal district court presumes that the answer to the second certified question is yes or no, we cannot provide such a definite response. Rather, the answer is dependent on the factual circumstances, so our answer to the question is maybe. When multiple collisions involving several vehicles and injured persons occur, each collision may be an occurrence under an automobile liability insurance policy.
3. If the answer to question number is “yes,” how many OCCURRENCES WERE THERE UNDER THE FACTS?
Although we have not answered question 2 with a definitive “yes” as the district court presumed, our answer requires us to consider the facts of this case to determine the number of occurrences involved. Under our analysis of the space-time continuum and Roy’s control of the vehicle, we conclude that there were two occurrences in this case.
The first occurrence took place when Roy encountered Jones’ vehicle, forcing Jones to swerve to miss Roy’s truck and resulting in injuries and damages to Jones and her vehicle. If Jones had successfully maneuvered around Roy’s truck without injury, there would have been no occurrence.
The second occurrence took place when Wolf swerved to avoid Roy’s truck and rolled his car. Roy’s encounter with Wolf was separated by approximately 1 minute in time and Vz mile in space from Roy’s encounter with Jones. Roy continued to have control over his vehicle after his encounter with Jones, and Roy’s encounter with Wolf was not related to his encounter with Jones. However, Roy’s head-on collision with the Wilkins’ van was in such rapid instantaneous succession and occurred so close to the same location as Roy’s encounter with Wolf as to make it a nearly simultaneous event. Because the encounter with Wolf s car and his collision with the Wilkins’ van were not separated by time and space, they cannot be considered separate occurrences.
Under the facts of this case, there were two occurrences.
4. What is the maximum amount of American Family’s LIABILITY UNDER THE POLICY?
The American Family policy provided a per person limit of $100,000 and a per occurrence limit of $300,000. The federal district court did not specify whether these limits applied to both bodily injury and properly damage, but it set forth the following policy language:
“1. The bodily injury liability limit for ‘each person’ is the maximum for all damages sustained by all persons as a result of bodily injury to one person in any one occurrence.
“2. Subject to the bodily injury liability limit for ‘each person,’ the bodily injury liability limit for ‘each occurrence’ is the maximum for bodily injury sustained by two or more persons in any one occurrence
“3. The property damage liability limit for ‘each occurrence’ is the maximum for all damages to all property in any one occurrence.”
Because the federal district court did not provide the policy language related to the limits on property damage, we decline to fully answer the question presented by the federal district court. However, we will answer the question in relation to the limits for bodily injury.
When the insurance policy unambiguously provides that its per occurrence limit is subject to its per person limit, the maximum bodily injury damages claimed by any one person are subject to the per person limit even if more than one person is injured. Farm, Bureau Mut. Ins. Co. v. Winters, 248 Kan. 295, 300-01, 806 P.2d 993 (1991); Farmers Ins. Co. v. Rosen, 17 Kan. App. 2d 468, 473, 839 P.2d 71, rev. denied 252 Kan. 1091 (1992). The American Family language clearly subjects the per occurrence limit to the per person limit. Thus, the per person limit applies in this case regardless of whether more than one person was injured by the occurrence.
For the first occurrence with Jones, one person suffered bodily injury. American Family is subject to a maximum liability of $100,000 for bodily injury for this occurrence.
For the second occurrence with the Wolf and the Wilkins vehicles, the facts as presented by the federal district court indicate that one person was injured in the Wolf vehicle and four persons were injured or killed in the Wilkins vehicle. Applying only the $100,000 per person limit would result in $500,000 as the maximum. However, the American Family policy limits the coverage to $300,000 per occurrence. Because all five individuals were injured in the same occurrence, the $300,000 per occurrence limit would appiy.
Adding together the liability for personal injury for both occurrences, the maximum amount of American Family’s liability for bodily injury only under its policy with Roy is $400,000.
Davis, J., not participating.
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The opinion of- the court was delivered by
Beier, J.:
This is an original quo warranto action filed by the Attorney General’s office on behalf of the State to enjoin what is alleged to be unauthorized practice of law by Respondents David Martin Price, Janice Lynn King, Rosemary Denise Price, and Pro Se Advocates, an association in whose name they do business. None of the individual Respondents is licensed as a Kansas lawyer.
The petition was filed on April 27, 2006. It attached two digital video disc recordings of sworn statements given by Theron and Jennifer Frost, two of the individuals alleged to be victims of Respondents’ unauthorized practice of law. In the statements, the Frosts describe what they understood to be legal research and advocacy performed on their behalf by certain of the Respondents in exchange for fees. The services provided included preparation of pleadings to be filed in court and preparation of a demand letter to be sent to a former employer of Jennifer Frost. At the direction of Respondents, tire Frosts signed the documents prepared for them.
Respondents pursued dismissal of this quo warranto action, which this court denied on June 29, 2006. The same date, we appointed Senior Judge Jack Lively as Commissioner to “conduct evidentiary proceedings and to make findings of fact and conclusions of law necessary for this Court’s final determination and judgment in this case.” We also stated:
“Commissioner Lively is hereby authorized and empowered to fix the time and place for hearings; to administer oaths and affirmations; to decide motions with or without a hearing; to cause the depositions of witnesses to be taken as he deems necessary; to receive evidence and take testimony; to issue subpoenas to witnesses and to compel their attendance and testimony at any hearing; to require the production of any papers, books, documents and records, whether in written or electronic form, he deems necessary; to do any and all other things required so that a complete hearing may be had on all pertinent and relevant matters raised or which may hereafter be raised by the parties involved in this original proceeding; and to rule upon all legal questions presented in connection with any and all such matters.”
The Respondents filed a Notice of Removal to federal court on July 26, 2006. Two months later, Judge Julie A. Robinson of the United States District Court for the District of Kansas remanded the proceeding on motion of the State. She included the following language in her Memorandum Order and Opinion:
“The Notice of Removal ostensibly asserts a federal [counterclaim] against petitioner and its counsel under 42 U.S.C. §§ 1983 and 1985, alleging petitioner has brought a willful, malicious and frivolous action. The Notice also appears to base removal on [Respondents’ contention that the underlying action to enjoin the unauthorized practice of law is an infringement upon their First Amendment rights.
“The Court agrees with [the State] that removal was improper. The Petition in Quo Warranto consists of an action exclusively under the laws of the State of Kansas to enjoin respondents from engaging in the unauthorized practice of law within the State of Kansas. ‘The regulation of the practice of law is a state matter,’ and the Tenth Circuit recently held that an action to enjoin the unauthorized practice of law did not fall within the federal district court’s federal question jurisdiction. Moreover, [Respondents’] purported federal law [counterclaim] does not create federal question jurisdiction justifying removal, nor can jurisdiction be conferred by counterclaim. Likewise, it is well-established that a case may not be removed to federal court on the basis of a federal defense, including a constitutional defense based on First Amendment considerations. Finally, [Respondents failed to timely comply with 28 U.S.C. § 1446(b), which requires a notice of removal of a civil action or proceeding within thirty days of service. Respondents were served on May 1, 2006, but did not file their notice of removal until July 26, 2006, just under three months after service. . . .
“Having no jurisdiction over this case, the Court will not address any other pending matters or arguments, except the matter of attorney’s fees and costs. . . .
“For the reasons set forth in its determination that remand of the case is required, the Court concludes that [Respondents lacked an objectively reasonable basis for seeking removal. Although [Respondents proceed pro se, they are familiar with die procedures and limitations on removal jurisdiction, having previously removed actions from state court to federal court that were remanded. [The State] was required to devote time and resources responding to a facially meritless motion, as well as multiple orders to show cause filed by [Respondents. As such, the Court will require [Respondents to pay [the State’s] attorney’s fees and costs expended in defending this frivolous removal litigation. [The State] is hereby ordered to submit an accounting of its attorney’s fees and costs association with the improper removal of this action.”
After the remand, Commissioner Lively ordered Respondents to answer written discovery and to appear for depositions scheduled for October 24,2006. Respondents attempted to appeal Judge Robinson’s remand order to the United States Tenth Circuit Court of Appeals. Also, the day before the depositions ordered by Commissioner Lively were to take place, Respondent King filed a second Notice of Removal for this action. Again, the State moved to remand.
Judge Robinson had not acted on the State’s second remand motion when Commissioner Lively went forward with a December 5, 2006, hearing on the State’s “Motion for Sanctions Based Upon [Respondents’] Failure to Comply with Order of the Supreme Court Regarding Discovery” and the State’s “Motion Renewing Its Previous Stipulation to [Respondents’] Motion for Judgment o[n] the Pleading.” Respondents did not appear at the December 5 hearing.
Judge Robinson signed a second remand order 2 days later; the order reflects a filing date of December 11, 2006. It recited:
“Respondent asserts that this matter ‘became removable when the Petitioners failed to apply the 30 day mandatory stay on the proceedings of the state court actions pending the provision of the removal statutes upon the remand of an action back to state court jurisdiction.’ In all other material respects, the basis for the relief sought remains the same as in the first Notice of Removal.
“. . . [T]he Court concludes that respondent lacked an objectively reasonable basis for seeking removal. . . . Moreover, the Court stresses that this is the second attempt to remove these quo warranto proceedings, the first attempt resulting in remand as well as an award of attorney’s fees .... [The State] was once again required to devote time and resources responding to a facially meritless motion. As such, the Court will require respondent to pay [the State’s] attorney’s fees and costs expended in defending this frivolous removal litigation.”
Commissioner Lively issued his Report the same day that Judge Robinson’s second remand order was filed. The Report took judicial notice of Judge Robinson’s first remand order and made a finding that “Respondents have repeatedly enjoyed notice of the Court’s orders pertinent to discovery. With that knowledge, Respondents have willfully and knowingly refused to take part in the discovery process or appear before the Commissioner.”
The Commissioner granted the State’s motion for sanctions— adopting the State’s allegations regarding the work performed for Theron and Jennifer Frost as findings of fact, and concluding as a matter of law that each of the Respondents had engaged in the unauthorized practice of law in the State of Kansas. Commissioner Lively therefore entered orders permanently enjoining the Respondents from:
“1. Appearing in any representative capacity for another, or;
“2. Taking any action intended to assist nonmembers of the state bar of Kansas in the presentation of any legal matter, or;
“3. Preparing or aiding in the filing of any pleading or legal document, or;
“4. Counseling or advising any nonmember of the state bar on any legal matter whatsoever.”
Commissioner Lively also concluded that Respondent David Martin Price and Respondent Pro Se Advocates had committed an unconscionable act in violation of the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq., in their work for Theron Frost and had committed a deceptive act in violation of the KCPA in their work for Jennifer Frost. For these violations, Commissioner Lively ordered Respondent David Martin Price and Respondent Pro Se Advocates to pay Theron Frost and Jennifer Frost restitution. He also permanently enjoined them from taking fees for, among other things, preparing any legal document; preparing or expressing legal opinions; or preparing any claims, demands, or pleadings for filing in any court, administrative agency or other tribunal. He also ordered the two Respondents to pay $1,000 for Petitioner’s expenses and investigative fees and $5,000 in civil penalties.
Finally, Commissioner Lively ordered the Clerk of the Appellate Courts and the clerks of the state district courts to refuse to file any pleadings signed or prepared by Respondents “except when [a] Respondent is a named party and the pleading or document is submitted solely on Respondent’s own behalf’ and to instead deliver a copy of any such pleading to the chief judge of the district and to the proper state authorities charged with investigating the unauthorized practice of law.
Respondent King attempted to appeal Judge Robinson’s second remand order to the Tenth Circuit; this appeal was consolidated with the first appeal attempted by all Respondents. On August 2, 2007, the Tenth Circuit dismissed the consolidated appeals, holding it had no jurisdiction over district court remand orders such as those entered by Judge Robinson. Although Respondent David Martin Price asserted at oral argument before this court that some sort of motion was still pending before the Tenth Circuit, that is not true.
Discussion
In an original proceeding in this court, the findings and conclusions of the Commissioner are advisory only and it is this court’s duty to examine die record, find the facts, and make its own conclusions of law. State, ex rel., v. Schmitt, 174 Kan. 581, 585, 258 P.2d 228 (1953) (citing State, ex rel., v. Harvey, 148 Kan. 166,167, 80 P.2d 1095 [1938]); State, ex rel., v. Buchanan, 142 Kan. 515, Syl. ¶ 1, 51 P.2d 5 [1935],
Before we can reach the merits, we must address whether Commissioner Lively was authorized to conduct the December 5,2006, hearing before Judge Robinson’s second remand order had been filed.
28 U.S.C. § 1446 (2000), concerning the procedure for removal of a case from state to federal court, reads in pertinent part:
“(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal ....
“(b) The notice of removal of a civil action or proceeding shall be filed within thirty days after tire receipt by the defendant, through service or otherwise, of a copy of tile initial pleading setting forth the claim for relief upon which such action or proceeding is based ....
“If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable ....
“(d) Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of tire notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.” (Emphasis added.)
Respondents argue that the December 5 hearing before Commissioner Lively—at which they did not appear and which led to what is, in essence, a default judgment against them—should not have proceeded because the state action was required to be stayed while their second removal was still in effect.
Respondents are correct on this point. The italicized portion of the statute set forth above is clear: “[T]he State court shall proceed no further unless and until the case is remanded.” Although the second removal notice filed by Respondent King, as described by Judge Robinson, turned out to be as “frivolous” as the first filed by all Respondents, it was permitted under the statute. With no contraiy federal order preventing it, Respondents were free to file the second notice of removal, even if their motives in doing so are open to serious question. The second notice automatically stayed this action, pending Judge Robinson’s ruling. The December 5 hearing before Commissioner Lively should not have gone forward. Any action taken by him as a result is a nullity. See 28 U.S.C. § 1446(d); Burlington Northern Railroad Co. v. Bell, 482 U.S. 919, 919-20, 96 L. Ed. 2d 684, 107 S. Ct. 3197 (1987) (White, J„ dissenting); United States v. State of Ohio, 487 F. 2d 936, 943, aff'd on other grounds Fry v. United States, 421 U.S. 542, 44 L. Ed. 2d 363, 95 S. Ct. 1792 (1975) (once notice of removal filed, clear and unambiguous language of 28 U.S.C. § 1446 prevents state court from proceeding unless, until remand); State of South Carolina v. Moore, 447 F.2d 1067, 1072-74 (4th Cir. 1971) (explicit language of the statute and its uniform construction requires proceedings in the state court after removal to be void); Mississippi Power Company v. Luter, 336 So. 2d 753, 755 (Miss. 1976) (state court had no jurisdiction to impanel jury after case removed to federal district court despite later remand; jury’s verdict a nullity); 14C Wright, Miller & Cooper, Federal Practice and Procedure, Jurisdiction and Related Matters § 3737 (3d ed. 1998). We have only unearthed two cases from one state court that have not held strictly to this rule. They represent a departure from the view of the majority of jurisdictions and from the unambiguous language of the removal statute. See Farm Credit Bank of St. Paul v. Ziebarth, 485 N.W.2d 788, 791 (N.D.), cert, denied 506 U.S. 988 (1992) (state court retains jurisdiction to act when federal court subsequently denies removal notice based on same ground as previously remanded removal); Farm Credit Bank of St. Paul v. Rub, 481 N.W.2d 451, 457 (N.D. 1992) (state court had jurisdiction to decide foreclosure action even though, on day of trial, defendant notified plaintiff, state court of notice of removal; notice was second based on same ground as first; federal court ultimately remanded second time); cf. State ex rel. Nixon v. Moore, 159 S.W.3d 488, 490-91 (Mo. App. 2005) (distinguishing two North Dakota cases).
We also note that, even if the timing of the December 5 hearing had been appropriate, Commissioner Lively’s findings and conclusions regarding violation of the KCPA are hot supported by the record before us. During oral argument in this court, the Petitioner disavowed any knowledge of their genesis. No allegation of a violation of the KCPA was pled in the Petition for Quo Warranto, and the record contains no subsequent pleading or argument from either side on the KCPA.
Because of the December 5 hearing alone, we are required to refuse to adopt Commissioner Lively’s orders and to remand for further proceedings before him on the allegations regarding Respondents Rosemary Denise Price, Janice Lynn King, and Pro Se Advocates. However, as to Respondent David Martin Price, we refuse to adopt only those orders entered by Commissioner Lively as a response to the perceived violations of the KCPA. David Martin Price engaged in the unauthorized practice of law before us in our courtroom during his oral argument on behalf of his fellow Respondents. We therefore conclude that a permanent injunction must be issued against David Martin Price. He is now and, unless duly licensed as a member of the state bar, ever after prohibited from appearing in any Kansas legal proceeding in a representative capacity for another; from taking any action intended to assist nonmembers of the state bar of Kansas in the presentation of any legal matter; from preparing or aiding in the filing of any pleading or legal document in a Kansas controversy or legal proceeding, except when doing so solely on his own behalf; and/or from counseling or advising any nonmember of the state bar on any legal matter whatsoever. We also direct the Clerk of the Appellate Courts and the clerks of our state district courts to refuse to file any pleading or document signed or prepared by Respondent David Martin Price, except when he is a named party to the action in which the pleading or document is to be filed and the pleading or document is being filed solely on his own behalf.
Only one further point bears mention at this juncture. Since oral argument before this court, the individual Respondents have filed a second Motion to Dismiss and a request for a hearing. This motion is without merit and it and the request for hearing are therefore denied.
Case remanded to Commissioner Jack Lively for further proceedings consistent with this opinion as to Respondents Janice Lynn King, Rosemary Denise Price, and Pro Se Advocates. A permanent injunction as set forth above is hereby entered against Respondent David Martin Price. The Motion to Dismiss filed by individual Respondents on October 11,2007, and request for hearing are denied.
Davis, Nuss, and Luckert, JJ., not participating.
Hill, McAnany, and Buser, JJ., assigned, | [
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Per Curiam:
This is an uncontested, original proceeding in discipline filed by the office of the Disciplinary Administrator against David R. Alig, an attorney licensed to practice law in the state of Kansas since April 1996. Previously, in 1979, Respondent was admitted to the practice of law in the state of Missouri. Alig’s last registration address with the Clerk of the Appellate Courts of Kansas is Overland Park, Kansas.
The formal complaint as originally filed alleged Alig violated KRPC 1.1, 1.5, and 8.4. In his answer to the formal complaint, Respondent stipulated to violating these three rules. Near the conclusion of the panel hearing on this matter, the Disciplinary Administrator moved to amend the formal complaint to include a violation of KRPC 5.5. Respondent had no objection. The Disciplinary Administrator recommended published censure, and the Respondent concurred.
Based on its findings of fact and the stipulations of Respondent, the hearing panel concluded as a matter of law that Respondent violated four rules of professional conduct: KRPC 1.1 (2006 Kan. Ct. R. Annot. 358) (competent representation), KRPC 1.5(a) (2006 Kan. Ct. R. Annot. 401) (reasonable lawyer fees), KRPC 8.4(d) (2006 Kan. Ct. R. Annot. 510) (engaging in conduct prejudicial to the administration of justice), and KRPC 5.5(a) (2006 Kan. Ct. R. Annot. 494) (unauthorized practice of law). The panel recommended that Respondent be censured and that the censure be published in the Kansas Reports. Respondent filed no exceptions to the panel’s final hearing report.
The hearing panel made 20 separately numbered findings of fact which are reproduced in narrative form, as follows:
In October 2001, B.C. (decedent) died without a will. He was survived by his wife and his two adult daughters.
Respondent was retained to act as legal counsel for the estate in October 2001. At that time, Respondent met with the widow, two adult daughters, and the proposed administrators. The court appointed Joseph Schumacher to serve as the administrator of the estate.
At the time of his death, decedent owned property valued at approximately $4,000,000. The property included real estate, corporate stocks, partnership interests, and promissory notes. The property was located in Kansas and Missouri.
A number of decedent’s assets passed on death to named beneficiaries. Other assets were held in joint tenancy with the right of survivorship. Additionally, decedent had established a special probate avoidance trust for his wife. Some of decedent’s property, however, had to be distributed via probate.
Respondent informed the heirs and administrators that he would charge $175 per hour for his services. Additionally, Respondent informed the heirs and administrators that he would charge $85 per hour for his legal assistant’s services. He told the heirs and the administrators that he expected to be paid monthly. Respondent did not reduce the agreement to writing either in the form of a written engagement letter or in a written fee agreement.
On November 27, 2001, Respondent filed the probate case in the District Court of Johnson County, Kansas.
On October 7, 2002, the Kansas Supreme Court suspended Respondent’s license to practice law for failing to meet the continuing legal education annual requirements and for failing to pay the continuing legal education annual fee. Eventually, in December 2003, the court reinstated Respondent’s license to practice law. Throughout the period of suspension, Respondent engaged in the practice of law by actively representing the estate.
John Michaels, attorney, assisted Respondent in his representation of the estate. Respondent and Mr. Michaels charged the estate a total of $168,896.52. Of that, nearly $100,000 was paid to Respondent. The fees were paid out over the course of the administration of the estate from late 2001 until early 2005. The attorney fees paid to Respondent and to Mr. Michaels were not presented to nor approved by the probate court.
Decedent and his wife had entered into a prenuptial agreement regarding her inheritance. Following decedent’s death, his widow challenged the enforceability of the prenuptial agreement. The attorney fees charged by Respondent and Mr. Michaels included many charges for defending the prenuptial agreement.
In 2005, one of decedent’s daughters retained an attorney to represent her. After she retained counsel, counsel informed the district judge, the Honorable Lawrence E. Sheppard, that Respondent had received attorney fees without court review or approval.
On June 21,2005, Respondent and Mr. Michaels withdrew from their representation of the estate.
On August 2,2005, the court considered the attorney fee matter. The court found that the administrator failed to obtain court approval for payment of attorney fees to Respondent and Mr. Michaels. The court terminated the administrator’s appointment and replaced him with attorney Barry Martin.
On September 8, 2005, Judge Sheppard wrote to the Disciplinary Administrator’s office and reported his concerns that the attorney fees paid to Respondent and Mr. Michaels were paid in violation of K.S.A. 59-1717.
On October 13, 2005, Mr. Martin wrote to Respondent and Mr. Michaels and requested that Respondent and Mr. Michaels repay the estate the amounts previously paid out to them as attorney fees. Mr. Martin requested that they return the fees previously paid to them so that the fees could be addressed as K.S.A. 59-1717 requires.
On October 21, 2005, Respondent provided a written response to Judge Sheppard’s complaint. In his written response, Respondent stated that when he initially met with the heirs and the pro posed administrators, they agreed to pay Respondent from non-probate assets as statements were received. Respondent asserted that he researched whether he could be paid from non-probate assets during the administration of the estate and was unable to find a prohibition to such a fee agreement.
On October 26, 2005, Mr. Michaels complied with Mr. Martin’s request by repaying the estate the attorney fees that were previously paid to him from the estate.
On January 9, 2006, Mr. Michaels entered into a settlement agreement with Mr. Martin regarding the attorney fees owed to Mr. Michaels. The attorneys for the other parties to the probate proceedings consented to the settlement agreement. Generally, Mr. Martin determined that Mr. Michaels was entitled to tire attorney fees previously paid to him. On January 19, 2006, the court entered an order approving the terms and conditions of the settlement agreement regarding Mr. Michaels’ attorney fees.
To date, Respondent has not repaid the attorney fees to the estate as requested by Mr. Martin.
At the hearing on this matter, Respondent testified that he has entered into a settlement agreement and has agreed to return $30,000 in attorney fees to the estate. Additionally, Mr. Schumacher has also agreed to return $30,000 to the estate.
Despite Respondent’s statement that he was to be paid from assets outside the probate estate, all the fees that Respondent received were paid with probate assets, or non-probate assets that were contributed to the estate by the heirs, such that all of Respondent’s fees were paid by the administrator through the estate account.
Based upon the Respondent’s stipulations and its findings of fact, the hearing panel concluded as a matter of law that Respondent violated KRPC 1.1, KRPC 1.5(a), KRPC 8.4(d), and KRPC 5.5(a). The panel’s conclusions are summarized, as follows:
KRPC 1.1 requires attorneys to provide competent representation to their clients. The rule states that competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Respondent demonstrated that he was not competent to represent the estate of Billy Cobb when he failed to provide sufficient direction to the administrator or oversight of the administrator s actions as administrator and when he failed to seek review and approval of the attorney fees paid from the estate account. Respondent’s prior experience did not include significant experience in probate matters to take on this complicated, contested case. Respondent should have realized that he was not competent to handle a probate case of this complexity shortly after he undertook representing the administrator. Accordingly, the hearing panel concluded that Respondent violated KRPC 1.1.
KRPC 1.5(a) requires an attorney fee to be reasonable. In probate cases, the court must review and approve the fees. In this case, Respondent never sought the court’s review or approval for the attorney fees as required by statute. Additionally, Respondent has agreed to repay $30,000 in attorney fees to the estate. The panel noted that although the evidence of the unreasonableness of Respondent’s fees did not rise to the level of the clear and convincing standard that must be met, Respondent stipulated that his fees were unreasonable and, based on his stipulation, the hearing panel concluded Respondent’s fee was unreasonable, in violation of KRPC 1.5(a).
KRPC 8.4(d) states that it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice. In this case, Respondent engaged in conduct that is prejudicial to the administration of justice when he sought and obtained payment for attorney fees from the administrator of the estate without the court’s review and approval. Because of Respondent’s actions, the court had to conduct a hearing on this matter. To date, Respondent has not sought court approval for the attorney fees paid to him. As such, the hearing panel concluded that Respondent violated KRPC 8.4(d).
KRPC 5.5(a) states that a lawyer shall not practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction. At the hearing on this matter the Disciplinary Administrator acknowledged having overlooked the fact that Respondent was suspended from the practice of law between October 7, 2002, and December 2003, for failing to meet the con tinuing legal education annual requirements and for failing to pay the continuing legal education annual fee. The panel concluded that since Respondent was actively engaged in representing the administrator of the estate during this same period, a violation of KRPC 5.5 was established as a matter of law.
Regarding its recommended discipline, the panel considered the following factors based on the American Bar Association Standards for Imposing Lawyer Sanctions, stating:
“Duty Violated. Respondent violated his duty to the legal system to comply with the existing statutes.
“Mental State. Respondent negligently violated his duty.
“Injury. As a result of the Respondent’s misconduct, Respondent caused actual injury to the estate.”
The panel found the following aggravating factors:
“Prior Disciplinary Offenses. Respondent has been previously disciplined on one occasion. On January 6, 2005, the Disciplinary Administrator informally admonished Respondent for having violated KRPC 5.5 and KRPC 8.4. In that case, Respondent practiced law for a period of 14 months while his license to do so was suspended.
“A Pattern of Misconduct. The Respondent’s conduct in this case extended over the course of nearly four years. As such, the hearing panel concluded that Respondent engaged in a pattern of misconduct.”
The hearing panel found the following mitigating factors:
“Absence of a Dishonest or Selfish Motive. Dishonesty and selfishness were not motivating factors in this case.
“The Present and Past Attitude of the Attorney as Shown by the Respondent’s Cooperation During the Hearing and the Respondent’s Acknowledgment of the Transgressions. Respondent fully cooperated in the disciplinary process as exhibited by his complete acknowledgment of the misconduct.
“Previous Good Character and Reputation in the Community Including any Letters from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the Attorney. Respondent is an active and productive member of the bar in Johnson County, Kansas. He enjoys the respect of his peers and clients and generally possesses a good character and reputation as evidenced by several letters received by the hearing panel.
“Remorse. At the hearing on the Formal Complaint, Respondent expressed genuine remorse.”
The panel also considered the following Standards:
Standard 4.53
“Reprimand is generally appropriate when a lawyer:
(a) demonstrates failure to understand relevant legal doctrines or procedures and causes injury or potential injury to a client; or
(b) is negligent in determining whether he or she is competent to handle a legal matter and causes injury or potential injury to a client.”
The panel unanimously recommended published censure. Before this court, Respondent acknowledged he was not qualified to handle estate administration, particularly one of this magnitude.
We adopt the hearing panel’s findings of fact and its conclusions of law. Further, we agree with the panel’s recommended discipline of published censure.
It Is Therefore Ordered that David R. Alig be and he is hereby censured in accordance with Supreme Court Rule 203(a)(3) (2006 Kan. Ct. R. Annot 243) for violations of KRPC 1.1, KRPC 1.5(a), KRPC 8.4(d), and KRPC 5.5(a).
It Is Further Ordered that the costs of these proceedings be assessed to the Respondent and that this order shall be published in the official Kansas Reports.
Davis, J., not participating.
Greene, J., assigned. | [
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The opinion of the court was delivered by
Johnson, J.;
A class of business owners (business class) in Reno County, Kansas, sought damages against ONEOK, Inc. (ONEOK), Mid Continent Market Center, Inc. (MCMC), and Western Resources, Inc. (Westar) for profits lost as a consequence of the defendants’ negligence which permitted natural gas to escape from the Yaggy Field gas storage facility in the vicinity of Hutchinson, Kansas. The jury found ONEOK and MCMC at fault but deter mined that the business class had suffered no damages. The business class appeals the jury’s verdict on damages, claiming that the trial court erred in giving a limiting instruction to the jury regarding the testimony of a lay damages witness. Finding no error in the instruction, we affirm.
The business class brief sets forth, in considerable detail, the events leading up to and following the escape of natural gas from defendants’ underground storage facility. Much of that recitation is unnecessary for our opinion, and we will refrain from such a chronicle here. See Hayes Sight & Sound, Inc. v. ONEOK, Inc., 281 Kan. 1287, 136 P.3d 428 (2006) (setting forth a detailed factual recitation).
An explosion in downtown Hutchinson on January 17,2001, and a subsequent explosion the following day in the Big Chief Mobile Home Park, caused property damage and two fatalities, and led to the evacuation of a number of residences and businesses in the vicinity of the explosions. The problem was traced to the escape of natural gas from the Yaggy underground natural gas storage facility located northwest of Hutchinson. The gas migrated underground through a porous geologic formation and rose to the surface in Hutchinson through abandoned brine wells which were not properly plugged. In this lawsuit, the jury found the defendants, ONEOK and MCMC, caused the explosions by being negligent in the ownership, operation, and maintenance of Yaggy facility. Westar, which had been involved in the ownership and control of the Yaggy facility prior to 1997, was found not to be at fault for the natural gas escape.
This lawsuit was filed as a class action, and the district court certified the class, defined as follows:
“All owners of businesses within Reno County as of January 17, 2001, to the present. Excluded from the class are governmental entities, officers, directors, employees, subsidiaries and affiliates of any of the defendants and any judges and justices who preside over this case or any portion thereof.”
However, many of the business owners who suffered damages from the incident individually settled or litigated their respective claims and were not part of this class action. See, e.g., Hayes Sight & Sound, Inc., 281 Kan. 1287.
A class of Reno County real property owners was included in the initial petition, and the two class actions were tried together. However, the district court maintained separate case numbers for the two class actions, and we have been presented with separate appeals. See Smith v. Kansas Gas Service Co., 285 Kan. 33, 169 P.3d 1052 (2007). This opinion only deals with the business owners’ class action.
The business class claimed that the gas incident caused an interruption in business in Reno County and that the class of business owners suffered a loss of revenue due to defendants’ negligence. To establish class-wide damages, the business class presented the testimony of John Korschot, an investment banker who specialized in valuing middle market businesses.
Initially, Korschot prepared a report based upon his study of documentation which had been voluntarily provided by business owners. Korschot received information from approximately 50 business owners, but he testified that the information on all but 14 businesses was insufficient for him to calculate the lost revenue resulting from the escaped gas incident. Korschot calculated the total lost sales for those 14 businesses to be $947,499.
Subsequently, Korschot obtained from the State of Kansas a sales tax breakout for the years 2000 and 2001 in the cities of Hutchinson and South Hutchinson. He used that data to compare the total sales for January through August in both years. He selected August as a cut-off date to avoid the adverse impact of the terrorist attack of September 11, 2001. Both the total local sales tax revenues and the total state sales tax revenues were actually higher in the post-incident period of 2001 than for the comparable period in 2000, prior to the explosions. However, Korschot determined that of the approximately 1,706 businesses on the sales tax reports, 826 had experienced decreased sales in the 2001 period. He then calculated the reduction in gross sales for the 826 adversely affected businesses, applied an assumed universal profit percentage to arrive at a lost profits figure, made certain adjustments to that figure, e.g. for gross domestic product trend, and arrived at a total lost profit calculation of $7,698,683.
At the consolidated trial, Kent Brown, the chief financial officer for T&E Oil Company (T&E) testified about his company’s experiences with the Hutchinson explosions. ONEOK and MCMC objected to Brown’s testimony because he was not a class representative or a class member. The defense requested a hunting instruction if the court were going to overrule the objection, and the following exchange occurred:
“MR. CRABTREE [defense counsel for Western Resources]: I join the objection. And if the Court were to overrule it, we would ask for those limiting instructions previously given in the same situation.
“MR. JOHN M. EDGAR [plaintiffs’ counsel]: That’s the way the Court’s handled it in the past.”
The previous limiting instructions were given prior to the testimony of real property owners who were testifying about their experiences with respect to the other class action where the claim was for a diminution in property values resulting from marketplace fear or stigma. As here, those real property witnesses were not class representatives. The trial judge had advised the jury that the witnesses would testify about their own respective experience with their own property and such testimony was not to be considered “as either common or typical of Reno County residential landowners.”
With respect to the business owners’ lay witness, the district court advised the jury:
“THE COURT: Mr. Brown—ladies and gentlemen of the jury, he’s not a member of the class, and so his testimony is limited to—just like we did the other witnesses, lay witnesses who testified last week.
“MR. FRICKLETON [plaintiffs’ counsel]: Your Honor, he’s not a class representative. He is a member of the class.
“THE COURT: He’s a member of the class but not a class representative.”
Brown testified that T&E was a petroleum marketer and also owned 19 convenience stores in Reno County at the time of the explosions. One of the convenience stores, Pantry Plus No. 6, was near the Big Chief Mobile Home Park, site of the fatal explosion. That particular store was closed for 9 days. After the explosions, the sales at Pantry Plus No. 6 were down, initially by 60-70%, and sales never recovered to the level the store experienced prior to explosions. Brown attributed a 25% reduction in sales to the Yaggy gas incident, albeit he did not assign a dollar value to that estimate. Approximately 2 years after the explosions, T&E sold all but three of its Reno County stores to the company that operates Kwik Shop convenience stores. Pantiy Plus No. 6 was one of the unsold stores, albeit the inventory of Pantry Plus No. 6 was included in the sale to Kwik Shop. In conjunction with the sale, T&E closed the unsold stores, including Pantry Plus No. 6, in February 2003. Thereafter, T&E was unsuccessful in its efforts to sell or lease the real estate where the Pantry Plus No. 6 had been located.
Brown testified that T&E had suffered a loss of $283,656.40, which was Brown’s opinion of the value of Pantry Plus No. 6 as a going concern. In other words, Brown was not claiming lost profits but rather was claiming the complete loss of the entire store.
The business class asserts that the trial court erred in giving the limiting instructions, although in this appeal only one lay witness testified. In its separate appeal, the real property class raised the issue of the limiting instructions for the lay witnesses in that case and we will not revisit that complaint here. We are concerned only with the instruction in regard to Brown’s testimony.
STANDARD OF REVIEW
The business class intimates that the case is governed by an interpretation of K.S.A. 60-406, which would trigger an unlimited standard of review. See Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 374, 130 P.3d 560 (2006). On the other hand, the business class acknowledges that evidentiary questions involve the exercise of trial court discretion.
What neither party addresses is the apparent lack of an objection by the business class to the giving of a limiting instruction prior to Brown’s testimony. The failure to object to a jury instruction invokes a clearly erroneous review standard, whereby we must be able to declare a real possibility existed that the jury would have returned a different verdict if the trial error had not occurred. See Secretary of Kansas Dept. of Transportation v. Underwood Equipment, Inc., 273 Kan. 453, 455-56, 44 P.3d 439 (2002). Nevertheless, we do not perceive that our decision will hinge upon the applicable standard of review.
APPLICABILITY OF LIMITING INSTRUCTION
The business class contends the matter is controlled by K.S.A. 60-406, which provides:
“When relevant evidence is admissible as to one party or for one purpose and is inadmissible as to other parties or for another purpose, the judge upon request shall restrict the evidence to its proper scope and instruct tire jury accordingly.”
The business class asserts that Brown’s testimony was “logically and legally relevant to the damages sustained by T&E Oil Company, a class member, but also was illustrative of the kinds of damages that many class members sustained during and immediately after the explosion.” Therefore, the argument continues, the trial court’s limiting instruction in this case was improper as a matter of law, because there was no improper use or purpose for which the evidence was proffered. We disagree.
This lawsuit was filed as a class action. As such, the named representatives of the plaintiff class assumed the burden of proving the total, class-wide damages, rather than the individual damages of each member of the class. In apparent recognition of this obligation, the business class offered the testimony of Korschot, who opined on the total gross profit lost by some 826 businesses in the cities of Hutchinson and South Hutchinson.
While Brown’s testimony as to the experience of one such business may have been “illustrative,” as the business class contends, it cannot form the basis for a calculation of the class-wide damages. In other words, the business class could not ask tire jury to take the damages alleged by Brown and multiply that individual loss by the number of class members to arrive at the appropriate amount of judgment to award the class. Thus, Brown’s lay witness testimony as to the damages suffered by one putative class member was improper if being offered on the issue of the amount of class-wide damages. Therefore, a limiting instruction to the jury on the proper purpose of Brown’s testimony was within the purview of K.S.A. 60-406 and within the trial court’s sound discretion.
The business class also suggests that the limiting instruction was not supported by the facts of this case because the “[defendants never made a showing that the testimony of Mr. Brown about the losses to T&E Oil Co. was not common or typical of losses suffered by other business class members.” That assertion is contradicted by the plaintiffs’ own witnesses.
Korschot testified about the individual losses suffered by the 14 businesses he analyzed to prepare his initial report. The common and typical loss he described was a reduction in gross sales for the first 8 months of 2001, as compared to the same period in the previous year. Likewise, in extrapolating class-wide damages from sales tax data, Korschot was operating upon the premise that the common and typical damage suffered by the business owners was a reduction in sales in the months following the gas explosions, through August 2001.
In contrast, Brown testified that T&E was claiming that it lost the entire market value of Pantxy Plus No. 6, because the convenience store had closed. The store closing occurred in February 2003, 2 years after the explosions, and was done in conjunction with T&E’s sale of all of its Reno County convenience stores. Brown did not provide a comparison of the 2000 and 2001 sales figures for Pantry Plus No. 6, and, pointedly, he did not offer testimony as to the post-explosion sales experience of T&E’s other 18 convenience stores in Reno County. He did, however, confirm that T&E’s total sales for fiscal year 2001 were $41 million, up from total sales of $28 million in fiscal year 2000.
T&E’s damage claim was fundamentally different from the lost revenues claim of the other class members; Brown admitted as much on cross-examination. The February 2003 closure of Pantry Plus No. 6, as part of a transaction in which T&E got out of the convenience store business in Reno County, was unique and in no way common or typical of any other Reno County business. The limiting instruction was supported by the facts. Moreover, the fact that T&E’s experience and claimed loss following the explosions was not common and typical of the other class members would have been patently obvious to the jury, even without a limiting instruction. We find no error in the giving of the limiting instruction.
PREJUDICIAL EFFECT
The business class argues that the giving of the hmiting instruction had a severely prejudicial effect and resulted in a verdict which was inconsistent with that rendered in the real property owners’ class action. A review of the testimony transcripts renders those arguments unpersuasive.
The district court certified the class as being “[a]ll owners of businesses within Reno County as of January 17, 2001, to the present” except for governmental entities and businesses with which the principals of the lawsuit were associated. The class certification definition did not restrict class membership to those businesses which had suffered reduced sales, notwithstanding that the plaintiffs’ damage expert restricted his testimony to the subset of revenue losing businesses.
Plaintiffs’ own evidence established that some Reno County businesses enjoyed an increase in sales after the gas explosions, and, at least as reflected in the sales tax data for the cities of Hutchinson and South Hutchinson, the net result for all businesses was an overall increase in sales. Indeed, the lay witness, Brown, confirmed that T&E had not suffered a company-wide loss of revenue following the explosions, despite the claimed losses at its one store, Pantry Plus No. 6. Likewise, in testifying about the individual businesses claiming a reduction in revenue, the plaintiffs’ damage expert, Korschot, acknowledged that some of those businesses claiming reduced revenues in 2001 had also suffered reduced revenues in the preceding year, before the explosions.
Accordingly, the evidence presented to the jury warranted a verdict that, class-wide, business winners equaled or exceeded business losers, such that the business class as a whole had not sustained a net recoverable loss. Thus, if we were to find that the hmiting instruction for the lay damage witness was in some manner erroneous, we would declare that it had no reasonable possibility of impacting the jury’s verdict.
CROSS-APPEAL
Prior to being dismissed from the appeal, Westar filed a brief in which it asserted a cross-appeal. ONEOK and MCMC noted in their brief that they “respectfully adopt here the arguments of Westar Energy, Inc., made in support of its cross-appeal in this case, as well as the arguments to be made by Westar Energy, Inc., in its cross-appellant brief in Smith v. Kansas Gas Service Company (No. 05-94602-AS).” We need not consider whether the “adopted cross-appeal” of ONEOK and MCMC survived the dismissal of Westar, as our foregoing decision renders any cross-appeal moot.
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The opinion of the court was delivered by
Nuss, J.:
Timothy C. Biyant directly appeals his jury convictions of felony murder and aggravated robbery. Our jurisdiction is under K.S.A. 22-3601(b)(l), conviction of an off-grid crime. The issues on appeal, and this court’s accompanying holdings, are as follows:
1. Did the prosecutor engage in misconduct during closing argument? No.
2. Did the district court err in admitting evidence of Bryant’s purported prior crimes? No.
3. Did the district court err in admitting autopsy photographs? No.
4. Did the district court err in instructing the jury? No.
5. Did the district court err in its read-back of testimony to the jury? No.
6. Did the district court err in denying Bryant’s motion to change counsel? No.
Accordingly, we affirm the district court and convictions.
FACTS
On January 14, 2005, a Hispanic male, Gustavo Ramirez-Mendez (Gus), was severely beaten and robbed of $23 in Kansas City. Six days later Gus died of blunt force trauma to the head. The defendant, Timothy Bryant, and Walter L. Anderson, both black males, were arrested and charged with aggravated robbery. Within a week the complaint was amended to add one count of felony murder.
Evidence at trial revealed the following events surrounding Gus’ robbery and murder. In the evening of January 14, 2005, several friends and family members gathered at the apartment of Bryant’s mother, Rosie, in Kansas City, Kansas. Bryant, Anderson, and Gus were three of the individuals present. Gus worked as the maintenance man for Rosie’s apartment complex.
Rosie’s grandson, Kevin, gave Gus a ride to cash his check that evening. With some of the proceeds Gus then bought alcohol for Rosie and some of the other guests.
Shortly after 10 p.m., Rosie told everyone to leave because she was tired. She was additionally sick of Anderson pestering Gus for money; Anderson was also encouraging Gus to go to a bar with him. Rosie told Anderson to leave Gus alone and go home.
A short time after the party ended, Miguel Rodriguez and his mother-in-law, Otilia Dominguez, called police and reported that they had seen a disturbance in the complex near Rosie’s apartment. Responding police found Gus bleeding and in and out of consciousness. His shoes and socks had been pulled off, his pockets had been pulled out, and the contents of his wallet were strewn over the area.
Bryant testified that on the night of the robbery, Kevin had taken Gus to cash his check around 8 p.m. Gus had told people at the party about his check because he was upset that more than half of its amount had been garnished. Sometime that evening Anderson asked Bryant whether Gus had any money.
According to Bryant, he heard his mother tell Anderson to leave her apartment because Anderson was pestering Gus and Rosie for money. Bryant then left Rosie’s apartment and headed home. He stopped at a party along the way, and Anderson followed him there.
Bryant testified that he did not want Gus to go to a bar or for Anderson to take Gus’ money so he decided to walk Gus home. He, Anderson, and Gus all walked to Gus’ apartment. When Bryant left Gus’ apartment, Anderson told him to “just go ahead and leave and let me do what I got to do.” Bryant understood that Anderson was going to take Gus’ money, so Bryant left.
Bryant further testified that as he was walking home, he heard Anderson call his name. He headed back toward Gus’ apartment and saw Anderson removing Gus’ socks. Bryant also saw Otilia nearby watching Anderson. Bryant then ran because he knew that Otilia would call the police.
According to Bryant, he ran and hid because he had just been released from prison a few days before. He believed he would be arrested when the police asked him for identification because warrants were still outstanding against him. Bryant repeatedly referred to his recent incarceration.
Bryant testified that after he ran, Anderson told him that he had stolen $23 from Gus. Anderson told him that if he bought drugs with the money, Anderson knew someone who would let them spend the night at her house. After Anderson bought some crack, Bryant “[took] a hit of the crack.”
Otilia testified that she had been visiting from out of town that night. She heard knocking on the door around midnight. Otilia did not open the door but looked out the peephole and saw an arm break out the porch light. She notified Miguel, and they called the police.
Otilia first told police, however, that two black men had attacked Gus. At the preliminary hearing, she became more vague, and by trial, she claimed that she could not see much out of the peephole and had just originally thought there were two black men. Otilia also changed her story about the color of the sleeve on the arm breaking the light. Eventually, at trial Otilia could not tell how many individuals were involved, the color of their skin, what color clothes they were wearing, or whether they were male or female.
Officer Amy Sillings testified that on the night of the incident, Otilia told her that a Hispanic man had been followed up the stairs by two black men, and one of the black men broke out the porch light. According to Sillings, Gus told officers on the scene, through Miguel’s interpreting, that two men attacked him and took his money.
Officer Mark Bundy also testified that Otilia told him that she had looked through the peephole because someone was banging on the door. She then saw Gus. Otilia said she saw a black man push Gus out of the doorway and break the light. She said she also saw another black man at the bottom of the staircase. According to Bundy, Gus told the officers, again through Miguel, that Gus was walking through the complex when two black men hit him in the face and head and took his money.
Officer Kelly Herron testified that Otilia told him that she heard a knock at the door, so she looked out the peephole. She saw two black men and a Hispanic man outside the door. Then one of the black men'punched out the light.
Officer Richard Glenn Nepote testified that Miguel told him that Gus said he was beaten by two black men; Gus thought it was because he had been paid that day.
Miguel basically testified that Gus did not speak but held up two fingers to him, which he interpreted to mean there were two assailants. However, at the preliminary hearing Miguel testified that Gus told him that two people had attacked Gus, and Gus asked Miguel to “help me, help me.”
The jury was given 14 instructions, including instructions on aggravated robbery, felony murder, and aiding and abetting.' During deliberations, it sent multiple requests to the judge. The juiy requested police reports which the judge could not provide because they had not been admitted into evidence. It also requested the testimony of certain law enforcement officers and to review the 911 tape, Bryant’s statement to police, and a diagram of the scene. The judge could not provide the diagram or Bryant’s statement as neither had been entered into evidence. Finally, the juiy wanted a read-back of O tilia1 s testimony about the broken light.
After Biyant was convicted of aggravated robbery and felony murder, he was sentenced to a hard 20 sentence plus 233 months for the aggravated robbery.
ANALYSIS
Issue 1: The prosecutor did not engage in misconduct.
Bryant argues that the prosecutor engaged in misconduct during closing arguments. First, he claims that the prosecutor’s argument that “there was evidence that [Biyant] had gone through the pockets of the victim” was unsupported by the record. Second, Bryant alleges that the prosecutor “called the veracity of the witnesses into question.” He argues that because the jurors were not present at the preliminaiy hearing, they could not have known that some witnesses made inconsistent statements there and at trial. Third, Biyant claims that “[t]he prosecutor encouraged the jury to disregard the evidence which supported the defense and to improperly draw inferences from the evidence.”
The State responds that Biyant misstates the record; the prosecutor “truthfully argued that the two defendants were together during the pillaging through Gus’ pockets.’ ” It also argues that Biyant fails to specify which prosecutorial statements purportedly called the veracity of the witnesses into question and which ones allegedly encouraged the juiy to improperly draw inferences from the evidence.
This court’s decision in State v. White, 284 Kan. 333, 337-38, 161 P.3d 208 (2007), reiterated the governing two-step analysis for allegations of prosecutorial misconduct:
“First, the appellate court must determine whether the comments were outside the wide latitude allowed in discussing the evidence. Second, the appellate court must decide whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial, thereby requiring reversal. State v. Elnicki, 279 Kan. 47, 58, 105 P.3d 1222 (2005) (quoting State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 [2004]). We have applied the test to prosecutorial action in contexts beyond mere comment on the evidence. See State v. Swinney, 280 Kan. 768, 779, 127 P.3d 261 (2006) (citing cases).
“In the second step of the two-step analysis, the appellate court considers three factors to determine whether a new trial should be granted:
‘(1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor’s part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. None of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60-261 [inconsistent with substantial justice] and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824, (1967) [conclusion beyond reasonable doubt that the error had little, if any, likelihood of having changed the results of the trial], have been met.’ Tosh, 278 Kan. 83, Syl. ¶ 2, 91 P.3d 1204.”
For his first assertion, Bryant alleges that the following prosecutorial statement is outside the wide latitude given to prosecutors in closing arguments:
“Somebody’s holding him down keeping him down so that his pockets and his clothes can be taken off and gone through, pillaged through. Two perpetrators could have easily done that. It might have been a little bit difficult for one, but certainly two could have done it with no problem at all.”
Instead of venturing outside her wide latitude, we hold that the prosecutor was simply arguing that this crime was likely committed by two individuals instead of one, a suggestion supported by considerable trial evidence. Officers Sillings, Bundy, Herron, and Nepote all testified that witnesses on the scene saw two perpetrators. Biyant himself testified he was present at least part of the time that Anderson was beating Gus and looking for money.
As for Bryant’s second allegation, we agree with the State that he fails to specify which prosecutorial statements purportedly called the veracity of the witnesses into question. We will not independently search the record and guess which specific facts Bryant believes support his general allegations. More tiran 100 years ago in Powers v. Kindt, 13 Kan. 74 (1874), this court observed that the appellant claimed “that the conclusions of fact are not sustained by the evidence, without specifying which particular finding he objects to, or wherein the testimony fails to support it.” 13 Kan. at 76. This court refused to further address tire matter, holding “[wjith the increasing pressure of business in this court we have not time to notice any but such objections as are specifically and clearly pointed out.” 13 Kan. at 74; see Enlow v. Sears, Roebuck & Co., 249 Kan. 732, 744, 822 P.2d 617 (1991) (court did not address appellant’s argument because appellant failed to specify the error in the jury instructions).
Faced with the same uncertainty, the State nevertheless guesses that Bryant is referring to an allegation made in another portion of his brief, in which he claims that “the prosecutor accused witnesses, including [Otilia] Dominguez and [Miguel] Rodriguez, of tainting the evidence and slanting their testimony.” In closing, the prosecutor actually argued:
“Over the course of the last couple of days, you’ve got to hear from witnesses who may have been influenced by their sense of loyalty to their son or their brother. We know that Rosie [defendant’s mother] and Angelia [defendant’s sister] don’t want to see their loved one in trouble or held responsible for this crime and so perhaps their testimony was tainted a little bit because of that. You also got to hear the testimony of Miguel and Otilia, our two witnesses from the scene that night. And perhaps their testimony has been tainted a little bit, too, influenced by fear, maybe not wanting to get involved, maybe not wanting to tell us everything that they knew about the things that happened that night.” (Emphasis added.)
The prosecutor further argued, “And so maybe some of their testimony was interesting. Some of it’s been inconsistent. Some of it maybe may have been influenced by different factors.” (Emphasis added.)
This court has held that “ ‘[w]hen a case develops that turns on which of two conflicting stories is true, it may be reasonable to argue, based on evidence, that certain testimony is not believable. However, the ultimate conclusion as to any witness’ veracity rests solely with the jury.’ ” State v. Douglas, 274 Kan. 96, 107, 49 P.3d 446 (2002) (quoting State v. Pabst, 268 Kan. 501, 507, 996 P.2d 321 [2000]).
Here, the prosecutor suggested that some testimony was inconsistent, which prosecutors are permitted to do. Cf. State v. Finley, 273 Kan. 237, 246, 42 P.3d 723 (2002) (“The prosecutor based her argument on an inference drawn from the nature of the defendant’s conflicting stories, not on the prosecutor’s knowledge of the defendant’s veracity.”); State v. Elnicki, 279 Kan. 47, 63, 105 P.3d 1222 (2005).
However, the prosecutor’s argument that Otilia and Miguel may have been “tainted a little bit, influenced by fear, maybe not wanting to get involved, maybe not wanting to tell us everything that they knew” or “maybe . . . influenced by different factors” presents a tougher question. On the one hand, this argument could be seen as simply an explanation for the inconsistencies in their testimony. On the other hand, it could be seen as a prosecutor’s forbidden “comment on the credibility of his or her own witnesses.” Elnicki, 279 Kan. 47, Syl. ¶ 6.
We need not answer this particular question, however, because even if the prosecutor’s suggestions fall outside the wide latitude authorized in closing arguments, Bryant’s claim fails. He has not shown plain error, i.e., he has not shown how the prosecutor’s statements prejudiced him. While Otilia and Miguel’s testimony was important, four officers testified about what these same witnesses told them when the events were fresher in the witnesses’ minds. Under these circumstances, the prosecutor’s statements did not prejudice Bryant and deprive him of a fair trial.
As for Bryant’s third allegation, we agree with the State that he fails to specify which prosecutorial statements allegedly encouraged the jury to disregard evidence which supported the defense and allegedly encouraged the jury to improperly draw inferences from the evidence. We will not search the record and guess which specific facts he believes support his general allegations. Powers v. Kindt, 13 Kan. 74.
Issue 2: The district court did not err in admitting evidence of Bryant’s prior incarceration and in failing to give a limiting instruction.
Bryant next argues that he was prejudiced by evidence that he had been “out” for 4 days before the crime. He claims that because the State’s first witness, his mother Rosie, raised this issue in her testimony, he was then forced to testify about his release from prison. He did so repeatedly. Bryant argues we should apply the standards for admission and exclusion of other crimes and civil wrongs evidence under K.S.A. 60-455 as articulated in State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006).
Among other things, the State replies that Rosie’s testimony was nonresponsive to the State’s question and totally unexpected:
“Q: Now, did he [the defendant] ever live with you at [Rosie’s home address]?
“A: Yes, when he came out, he was out four days. He lived with me those four days.”
Rosie made three additional general references to Bryant’s absence, and return, throughout her testimony, saying “[w]hen Tim came home,” “[h]e had just been home for four days,” and “[h]e had been out only four days . . . .”
Bryant further argues that the district court had previously ruled that the reason for his incarceration was inadmissible. We observe that the only motion in limine in the record is one filed by Bxyant pro se. He does not direct us to anything in the record on appeal, however, to indicate that the court ever ruled on this motion or otherwise issued a ruling that he now claims was violated. It is Bryant’s obligation to provide an adequate record on appeal and to direct us with specific references within such a record. See State v. Holmes, 278 Kan. 603, 612, 102 P.3d 406 (2004) (appellant’s burden to furnish a record which affirmatively shows that prejudicial error occurred, without which the appellate court presumes the district court’s action was proper); State v. Drach, 268 Kan. 636, 638, 1 P.3d 864 (2000) (“By rule, we are allowed to assume there is no evidence in the record to support that part of the case that is not properly keyed to the record.”); Supreme Court Rule 6.02(d), (e) (2007 Kan. Ct. R. Annot. 37).
Although Bryant raises a number of other points to support his main argument, we need not address them or the State’s numerous counter-arguments. We simply note that Bryant failed to object to his mother’s testimony. “As a general rule, a party must make a timely and specific objection to the admission of evidence in order to preserve the issue for appeal.” State v. Stevens, 285 Kan. 307, 326, 172 P.3d 570 (2007); see K.S.A. 60-404. Bryant has not argued that any exceptions to our general rule apply, nor do we observe any sua sponte. These particular evidentiary issues are therefore not preserved for appeal.
Bryant also generally claims that “statements to police were made while he was incarcerated and this evidence was admitted freely with no attempt to restrict the evidence of prior convictions or evidence of other crimes.” It is unclear what Bryant is arguing here. He also makes generalized references to other purported inadmissible testimony, e.g., concerning his drug use. He has not specifically identified these references or cited to the record, however. Accordingly, we do not consider these claims. See Holmes, 278 Kan. at 612; Drach, 268 Kan. at 638; Powers v. Kindt, 13 Kan. 74; Supreme Court Rule 6.02(d), (e) (2007 Kan. Ct. R. Annot. 37).
Issue 3: The district court did not err in admitting the autopsy photographs.
Bryant next claims that the district court erred when it admitted eight photographs from Gus’ autopsy into evidence because they were “duplicative and gruesome.” He argues that it was unnecessary to use photographs to explain the cause of death in this case.
The State responds that the photographs were relevant and helped establish the nature and extent of Gus’ injuries. It also claims that the photographs were relevant to show the violent nature of the attack and to corroborate witness testimony.
Our standard of review is well known: The admission of photographs in a homicide case is a matter within the trial court’s discretion. State v. Torres, 280 Kan. 309, 327, 121 P.3d 429 (2005).
Unfortunately, the photographs are not in the record on appeal. Accordingly, this court is unable to determine whether they are duplicative and gruesome. The consequences of this failure fall upon Biyant. See Holmes, 278 Kan. at 612.
We acknowledge drat Bryant’s counsel appended to his brief a document mailed to the clerk of the appellate courts and the Wyandotte County District Attorney requesting that certain documents, including the autopsy photographs, be added to the record on appeal. However, an appendix is limited to extracts from the record on appeal; it cannot serve as a substitute for the record itself. Edwards v. Anderson Engineering, Inc., 284 Kan. 892, 895, 166 P.3d 1047 (2007); Supreme Court Rule 6.02(f) (2007 Kan. Ct. R. Annot. 37); Supreme Court Rule 6.03(e) (2007 Kan. Ct. R. Annot. 40). This court does not consider appended items which are not contained in the record. Edwards, 284 Kan. at 895. Even if this court did consider appended items, our review would be of little value here: Bryant’s appendix merely lists the photographs by exhibit number; it does not contain them.
In response to questions at oral arguments before this court, Bryant’s counsel stated she thought her motion to add to the record on appeal had been granted, suggested that the requested items were contained in the record on appeal, and indicated that she would investigate and subsequently inform the court. This court has heard nothing further.
Issue 4: The district court did not err in instructing thejwy.
Bryant next argues that the district court made juiy instruction errors. First, he is clear in claiming that the court erred in altering the pattern instruction on aggravated robbery, PIK Crim. 3d 56.31, to include the name of the victim. He contends that the instruction was somehow in error “because it required the jurors to determine that the defendant inflicted bodily harm on the victim in the course of intentional taking of property from the victim.” The State responds that simply adding the name of the victim to the pattern instruction is not error.
Our standard of review is well known for when, as here, an objection has been made to instructions.
“ ‘ “When reviewing challenges to jury instructions we are required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous.” State v. Horn, 278 Kan. 24, 42, 91 P.3d 517 (2004).
We readily conclude that the addition of the victim’s name does not change the meaning of the pattern instruction and that the modified instruction is not erroneous.
Bryant is substantially less clear regarding a possible second argument, but seems to claim that if the aggravated robbery instruction needed the district court’s clarifying alteration, then the aiding and abetting instruction needed clarification as well. He suggests that the aggravated robbery instruction was given in conjunction with the aiding and abetting instruction and that, “[gjiven in tandem, the jury could have determined that [Bryant] was guilty of this crime because he aided another who committed any crime.” The State responds that the instruction was an unmodified one contained in PIK Crim. 3d 54.05.
Biyant apparently did not object to the district court’s giving of the aiding and abetting instruction. Accordingly, we must determine whether the instruction was “clearly .erroneous.” See K.S.A. 22-3414(3). “Instructions are clearly erroneous if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” State v. Cooperwood, 282 Kan. 572, Syl. ¶ 6, 147 P.3d 125 (2006).
The State correctly observes that the instruction given was an unmodified PIK Crim. 3d 54.05 instruction. Under the straightforward facts of this case, we fail to see that this constitutes error, our threshold consideration. See State v. Hebert, 277 Kan. 61, 87, 82 P.3d 470 (2004) (modifications or additions to PIK instructions should only be made if the particular facts of a case require it). Without error, it follows that the instruction cannot be clearly erroneous. See State v. Sappington, 285 Kan. 158, 165, 169 P.3d 1096 (2007).
Bryant additionally claims error because, “[t]he juiy was instructed in such a manner that any evidence of a crime by co-defendant [Anderson] would establish [Biyant’s] guilt as to the robbery and subsequent death of the victim.” Biyant seems to believe that the State must prove that he personally took money from Gus to convict him of felony murder. This, of course, is incorrect.
Our aiding and abetting statute, K.S.A. 21-3205, clearly states at subsection (1) that “[a] person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsel or procures the other to commit the crime.” The instruction that was given in this case, PIK Crim. 3d 54.05, is patterned after this statute. It states:
“A person who, either before or during its commission intentionally (aids) (abets) (advises) (hires) (counsels) (procures) another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant’s participation, if any, in the actual commission of the crime.”
As the Comment observes, this instruction was specifically approved 27 years ago in State v. Minor, 229 Kan. 86, 89, 622 P.2d 998 (1981).
We find no error in die jury instructions.
Issue 5: The district court did not err in its read-hack to the jury.
Bryant next argues that the district court erred in not including the defense’s cross-examination when it presented a read-back of certain testimony to the jury during deliberations. He claims that without the cross-examination, the jurors were allowed to place undue emphasis on certain portions of the testimony.
The State responds that the court read back all of die testimony requested by the jury, including parts of the cross-examination.
The jury’s authority to request a read-back, and the trial court’s obligation to comply with the request, is contained in K.S.A. 22-3420(3); see State v. Myers, 255 Kan. 3, 6, 872 P.2d 236 (1994). That statute states:
“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 the 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.)
While we have held that a trial court is required under the statute to accede to a jury’s request to read back testimony, we have also held that the statute does not foreclose “all trial court discretion as to the manner of acceding to the request.” Myers, 255 Kan. at 8. The trial court has the discretion to control the read-back. 255 Kan. at 8.
According to the jury’s note contained in the record on appeal, it asked: “Can we hear the testimony of Det. Nepote and Huron [sic] (response unit detectives) regarding their interview with Otilia and Miguel?” The record reveals that transcript pages, identified by page number, were then read back. Defense counsel asked the court—to “make a record”-—if her cross-examination of Nepote had been read back. The court explained that defense counsel’s questions on cross-examination dealt with what Otilia and Miguel had not said to the detective, rather than what they had said. The record is not clear on whether counsel was objecting or merely seeking clarification. In addition, the page references of the read-back in the transcript actually correspond with the testimony of not only Nepote and Herron, but also officers Sillings, Bundy, and Barajas.
The case of State v. Juiliano, 268 Kan. 89, 991 P.2d 408 (1999), provides guidance. There, the jury requested a read-back of “ ‘the testimony on the ballistics expert’s finding on the three spent .357 Magnum shells found in the plastic bag’ ” in the defendant’s home. 268 Kan. at 95. The defendant requested that the read-back include the cross-examination, as well as the direct examination, on the same subject. The trial court allowed only the direct testimony to be read back, concluding that the cross-examination had nothing to do with the examiner’s testimony regarding the shell casings -and that the jury’s specific question would not be answered by any testimony contained within the cross-examination.
This court found no abuse of trial court discretion under those circumstances. We recognized that the jury made a specific read-back request; it did not request any additional testimony:
“The focus of the firearms examiner’s testimony concerning his ballistic findings occurred only in the direct testimony. The cross-examination merely concerned the firearms examiner’s ability to determine the identity of the person who fired the three bullets and the time they were fired. The judge took a narrow and focused question and provided the jury with exactly what they had asked for. There was no need to include cross-examination of the firearms examiner in the requested read-back.” Juiliano, 268 Kan. at 95.
While the trial judge’s decision in the instant case provides us with a closer call than the one that same judge made in Juiliano, we conclude on this unclear record that the court did not abuse its discretion in limiting the read-back.
Issue 6: The district court did not err in denying Bryant’s motion for new counsel.
For Bryant’s last claim, his brief alleges that the district court erred in denying his requests for new counsel. He complains that the court made little inquiiy into his requests. The State’s brief primarily responds that the court made substantial inquiries and accordingly did not abuse its discretion in denying the requests.
At oral arguments, Bryant’s appellate counsel recast Biyant’s argument as essentially one of ineffective assistance of his trial counsel, KiAnn McBratney. She recited such purported McBratney deficiencies as failures to object to certain testimony; to offer a police report for admission into evidence; and to request a limiting instruction on alleged bad acts. Appellate counsel acknowledged our general rule that such claims cannot be brought for the first time on appeal where the district court has not had the opportunity to conduct the factual inquiry. See State v. Gleason, 277 Kan. 624, Syl. ¶ 5, 88 P.3d 218 (2004). She nevertheless invited us to conduct a de novo review of the record, citing State v. Jenkins, 257 Kan. 1074, 1080, 898 P.2d 1121 (1995).
We decline this invitation, especially because previously discussed deficiencies in the record on appeal cast considerable doubt on the reliability of the results of such a review. We instead review the issue as presented in Bryant’s brief: error in denying his requests for new appointed counsel.
A district court’s refusal to appoint new counsel is reviewed under an abuse of discretion standard, which asks whether any reasonable person would take tire view adopted by the district court. Sappington, 285 Kan. 158, Syl. ¶ 4. The burden is on the party alleging the abuse. State v. White, 284 Kan. 333, 342, 161 P.3d 208 (2007).
Furthermore, to warrant substitute counsel, a defendant must show “justifiable dissatisfaction” with appointed counsel. Justifiable dissatisfaction includes a showing of a conflict of interest, an irreconcilable conflict, or a complete breakdown in communications between counsel and the defendant. State v. McGee, 280 Kan. 890, 894, 126 P.3d 1110 (2006). But ultimately, “ ‘[a]s long as the trial court has a reasonable basis for believing the attorney-client relation has not deteriorated to a point where appointed counsel can no longer give effective aid in the fair presentation of a defense, the court is justified in refusing to appoint new counsel. [Citation omitted.]' " State v. Ferguson, 254 Kan. 62, 70, 864 P.2d 693 (1993) (quoting State v. Banks, 216 Kan. 390, 394, 532 P.2d 1058 [1975]).
Bryant’s complaints were primarily based upon a lack of communication with McBratney and her failure to abide by his decisions for his defense. His appellate counsel also focuses on Mc-Bratney’s purported conflict of interest due to Bryant’s filing complaints against McBratney with the Disciplinary Administrator for the State of Kansas. In any event, a chronology of events on this issue is helpful.
On March 11, 2005, Bryant filed, pro se, his only written motion to change counsel. He alleged that he had not spoken with his attorney regarding witnesses to be interviewed and subpoenaed for preliminary hearing and trial; that she had not “consulted with him as to the means to pursue the issues and concerns regarding his defense”; that she “has failed to consult with [him] to abide by his decisions concerning the lawful objectives of her representation”; and that her decision to accept the appointment of his case violated “Rule 226, Model Rules of Professional Conduct ... [a] lawyer shall not accept appointment of client or cause if it is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the ability to represent the client.”
On March 18,2005, at the outset of the preliminary hearing, the State brought up Bryant’s motion to change counsel. Neither the district court nor McBratney had seen a copy of it. McBratney denied Bryant’s allegations, specifically referring to the jail visitation records to evidence her meetings with him. The district court, Judge Serra, denied Bryant’s motion. Among other things, die court noted the problems caused by its late notice, the competence of McBratney, and the need for major case decisions to be made by those with legal training and understanding:
“Number one, I wasn’t furnished a copy of this motion. The first I heard about it is right now when we’ve got all these witnesses here, two sets of attorneys, defendants. I will say this, that I have known Ms. McBratney for a number of years. She’s tried many cases before me. She is extremely competent. And while certainly defendants are entitled to some input, major decisions in how to conduct cases need to be made by someone who had legal—a legal education and understands the process. I am not at this late date going to continue this case and inconvenience all of these people.”
The court further noted that the issue, if Bryant desired to pursue it, could be taken up at a later time after proper notice:
“If you wish to re—after we have the preliminary hearing, if you still feel the same way where we can have a hearing with proper notice to all parties, either I or I assume it will be another judge can malee that determination. But insofar as the preliminary hearing is concerned, that motion, while I did not receive it, nor did Ms. McBratney, I am going to overrule that motion, and we’re going to try this preliminary hearing today, unless the State has other feelings.”
After conclusion of the preliminary hearing, Bryant was then bound over for trial. According to McBratney s later statements to the court, she and Biyant met and resolved their differences.
Approximately 2 months after Bryant and McBratney resolved their differences, on May 18, 2005, the district court, Judge Burdette, held a hearing on several motions. These included Bryant’s original pro se motion to change counsel and McBratney’s recent motion to withdraw. The court stated that it had read Bryant’s motion and asked if there was anything else Biyant wanted to tell the court about it. Bryant complained that he did not feel like he was getting a “fair deal,” that McBratney was not responding to his letters, and that he and McBratney could not come to an agreement on how to handle his case.
McBratney responded that because of three formal complaints Bryant had filed against her, her motion to withdraw because of attorney-client conflict should be granted. To the best of her understanding, these complaints consisted of Biyant’s March 2005 pro se motion, his complaint filed against her after the preliminary hearing with the Disciplinary Administrator’s office, and his complaint filed against her with an unknown agency, all indicating she was not doing her job.
McBratney also informed the court that after a meeting with Biyant, he had indicated he was willing to withdraw his disciplinary complaint and pro se motion. She specifically advised that after the preliminary hearing, Biyant told her he was satisfied with her representation based upon the performance that he had observed. McBratney advised that Bryant essentially was dissatisfied because he did not get to make all the case decisions. She further indicated that the Disciplinary Administrator had written to her stating there was nothing to investigate on Bryant’s formal complaint. Bryant then complained that “I should be more informed on what she’s planning on doing.”
In response to questions from the court, McBratney stated that she had a conflict, but suggested that her ability to represent Biyant could be affected only “[i]f he continues to complain about me, which he’s continuing to do.” The following discussion then occurred:
‘THE COURT: I feel unless you tell me specifically that you can’t do your best to represent this individual, I don’t see any conflict. I see an individual who’s unhappy because, in effect, well, I’ll just use a broad term, you haven’t been as con •—
“McBRATNEY: I haven’t conceded to every wish of his.
“THE COURT: Okay. That sounds good. And I don’t know Mr. Biyant’s experience with the criminal justice system, but even retained counsel doesn’t jump through the hoops of every defendant. I mean, you get who you get, Mr. Biyant. And, frankly, you have an experienced criminal defense attorney before you who has been through these types of cases before. I don’t know how many murder cases you’ve been up for, don’t know anything about your background, anything like that, but I would hazard a guess that she has a better understanding of the law and the procedure than you do. .. .
Legally the threshold I suspect is not—hasn't been met unless—let me ask you this question, Mr. Bryant. I mean, are you gonna—if I malee Ms. McBratney, and I can order her to stay in this case, are you gonna cooperate with her to the best of your ability for your defense?
“DEFENDANT: Well, Your Honor, you just—you yourself you was the district attorney on my case before—on one of my cases before, so you know, you and I have had, you know, met across the table, you know. My thing about Ms. McBratney is I feel that I should be more informed on what she’s planning on doing.
“THE COURT: . . . I—I think and I suspect that you two need to do a little bit more communicating. But I have no doubts that Ms. McBratney has done her best to represent you thus far in this case. I don’t know that any attorney could have done anything differently up to this point.” (Emphasis added.)
The court then concluded with its holdings on Biyant’s basic complaints arising out of lack of communication as well as Mc-Bratney’s conflict of interest:
“THE COURT: Well, I suggest that you folks put in the time to do the talking and the communicating about the case, about your defense and there’s plenty of time left to do that. But I haven’t heard anything yet that rises to the level that I have to remove her for a conflict in this case.” (Emphasis added.)
The court then denied both Biyant’s motion to change counsel and McBratney’s motion to withdraw “because she has indicated to me that she is still willing to do her best to represent you in this case despite the fact that you may still be complaining, you know, all the way up to an acquittal or a conviction.” According to the hearing transcript, juiy trial was set for Monday, May 23, 5 days later. Although the record is unclear, apparently the district court then rescheduled, presumably to give McBratney and Biyant more time-to meet and confer.
On August 22,24,25, and 26,2005, the juiy trial was conducted. Bryant made no further complaint about McBratney, e.g., made no effort to request new counsel.
On November 18, 2005, the parties appeared for Bryant’s sentencing. McBratney volunteered that Biyant’s complaint against her with the Disciplinaiy Administrator had been dismissed as having no basis but that he had filed a second disciplinaiy complaint. She requested that the court determine if she would be allowed to continue to represent him through sentencing. When the court asked Bryant about McBratney proceeding with his sentencing, Bryant requested another attorney.
“DEFENDANT: [I]f it’s at all possible, I’d like to have another attorney.
“THE COURT: I don’t believe it’s going to be possible for you here today. This is a sentencing in this matter. She knows the case. You’ve been in custody for—since, I believe, January of this year—
“DEFENDANT: Yes.
“THE COURT: — about tire middle of it. We’ve had—gone through a trial. You filed one complaint. It has not been substantiated. If you feel that she has fallen down in her representation of you regarding the trial or the motion for new trial, then once you are sentenced, you will be free to raise those issues with the Appellate Defender and he will be assigned—-he or she will be assigned to handle your appeal of everything in this case. And if you’re alleging ineffective assistance of counsel, certainly that’ll be considered by the Appellate Court. But as far as sentencing here today, there really isn’t a lot that can be said or done regardless. So uúless you can give me something specific as to why she should not continue, she will.
“DEFENDANT: Well, I don’t have no choice in tire matter.
“THE COURT: Well, unless you can give me something specific as to why she’s not qualified to represent you in this sentencing, then she will proceed with the sentencing.” (Emphasis added.)
When pressed, Bryant could not identify any specific reason. Judge Burdette made no specific inquiry into the nature of the first disciplinary complaint or of the nature and status of the remaining complaint. But he did find that Bryant had “told me absolutely nothing that rises to the level of a factual or legal basis to change counsel” and proceeded with the sentencing.
To begin our analysis, we note that in order to determine whether to appoint new counsel, the district court must conduct some type of investigation. See Sappington, 285 Kan. at 169. Here, the court satisfied this requirement at both the May 18 motions hearing and the November 18 sentencing hearing for Bryant’s claims based upon poor communication by asking open-ended questions of Bryant to learn everything that was bothering him. It also fulfilled this requirement by fully hearing Bryant’s complaints, e.g., “I should be more informed,” and by fully hearing Mc-Bratney’s responses. The court observed that many decisions are necessarily left to defense counsel and McBratney was experienced. It suggested that they communicate more. Moreover, there is nothing in the record to indicate that Bryant complained about McBratney during the next 6 months—through a 4-day jury trial— until the day of his sentencing, indicating that he was satisfied with her during that period.
As for the conflict of interest claim based upon Bryant’s filing complaints with entities outside the court, his appellate counsel admitted at oral arguments that the mere filing of disciplinary complaints is not enough to establish a conflict. The district court must still inquire. We agree. See Vann, 280 Kan. at 789 (“ Where a trial court becomes aware of a possible conflict of interest between an attorney and a defendant charged with a felony, the court has a duty to inquire further.’ ”).
Our Court of Appeals addressed this issue and similar facts in State v. Robertson, 30 Kan. App. 2d 639, 44 P.3d 1283 (2002). There, as in the instant case, several months before trial the defendant filed a disciplinary complaint against his attorney who, shortly thereafter, moved to withdraw. Additionally, counsel told the district court there had been a “total breakdown in communication.” The motion was denied.
On appeal, the defendant argued that the district court should have granted the withdrawal motion because his pending disciplinary complaint against his counsel created a per se conflict of interest. After reviewing case law from Kansas and other jurisdictions, the Court of Appeals rejected this argument. It held that the conflict must be actual. 30 Kan. App. 2d at 641-42.
The Robertson court held that whether a disciplinary complaint creates an actual conflict of interest depends upon the nature of the complaint:
“We recognize that an attorney’s best defense to a disciplinary complaint is to provide the defendant with the best possible defense and, as such, a pending disciplinary complaint does not necessarily create a conflict of interest. However, we also recognize that under certain circumstances, a disciplinary complaint could create an actual conflict of interest, depending on the nature of the complaint.” Robertson, 30 Kan. App. 2d at 644.
The Court of Appeals held that “the trial court failed to inquire into the basis of die disciplinary complaint.” 30 Kan. App. 2d at 645. The court then observed that because of this failure, the question became whether an actual conflict of interest existed. 30 Kan. App. 2d at 649. The court determined from the facts in the record that the conflict was actual. These facts included a total breakdown in communication as well as evidence that counsel’s actual answer to the disciplinary complaint would be contrary to her client’s position in the present case. The court concluded the trial court abused its discretion in denying the motion to withdraw.
Here, unlike Robertson, the district court did inquire. During the May 18 inquiry, although discussion was sparse on the nature of the disciplinary complaint itself, the court learned that the Disciplinary Administrator had said there was nothing to investigate. Moreover, after discussion with Bryant and McBratney on the na ture of Bryant’s overall concerns, the court stated that it did not see any conflict requiring her removal. During the November 18 inquiry, although similarly limited on the nature of the second disciplinary complaint itself, the record reveals that the court gave Bryant opportunities to be heard. Several times Judge Burdette asked Bryant to “give me something specific.” And, certainly unlike Robertson, there is nothing in the record indicating what Mc-Bratney’s responses to the complaints were, much less any indication that they “would be contrary” to any position she needed for defending Bryant.
The record on appeal contains none of the written complaints or responses. We acknowledge that Bryant’s briefs appendix references several of his letters, allegedly addressed to the court clerk and McBratney. However, like the autopsy photographs mentioned in issue 3, no such letters are contained in the record on appeal. For the reasons given there, we are unable to consider them.
In light of the foregoing, the court had a reasonable basis for believing that the attorney-client relationship had not deteriorated to a point where McBratney could no longer effectively aid Bryant in the fair presentation of his defense. Biyant failed to show “justifiable dissatisfaction” with his counsel, e.g., a complete breakdown in communications or an actual conflict of interest. Accordingly, while the better practice would have been for the court to make specific queries of McBratney and Bryant about the nature of the disciplinary complaints, instead of simply asking Biyant to specify why McBratney should not continue as his counsel, we cannot hold that no reasonable person would have agreed with the district court. It did not abuse its discretion in denying Bryant’s motions.
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The opinion of the court was delivered by
Nuss, J.:
Genesis Health Club, Inc., et al, (Genesis), sued the Ciiy of Wichita (City) for failure to issue Industrial Revenue Bonds (IRBs) and for failure to grant ad valorem property tax abatements pursuant to an alleged contract between these parties. Its causes of action were for breach of contract and promissory estoppel. The district court granted the City’s motion for summary judgment, essentially holding that the City lacked the power to enter into such a contract. Genesis appeals, and the City cross-appeals. We transferred the case from the Court of Appeals pursuant to K.S.A. 20-3017.
The parties present a number of issues on appeal, which we reduce as follows:
1. Was the July 23, 2004, letter of intent a binding contract between the parties? No.
2. Even though no binding contract exists, does promissory estoppel nevertheless prevent the City from refusing to issue the IRBs and to grant ad valorem property tax abatements? No.
Accordingly, the judgment of the district court is affirmed, albeit for slightly different reasons.
FACTS
The parties take no real exceptions to the district court’s “uncontroverted facts” contained in its Journal Entry of Judgment:
“1. Genesis Health Club, Inc., Genesis Health Club Management, LLC, and Steven Enterprises, L.L.C. are Kansas legal entities all doing business, in Kansas, as ‘Genesis Health Clubs.’
“2. The City of Wichita, Kansas (‘City’) is a municipal corporation, a city of the First Class.
“3. On or about June 18, 2004, Genesis Health Club Management, LLC requested approval by the governing body of the City of a ‘Letter of Intent’ to issue Taxable Industrial Revenue Bonds (IRBs) in an amount not to exceed $11,850,000, to finance the cost of acquiring, constructing and equipping three health club facilities to be leased to Genesis Health Club Management, LLC. The location of three health club facilities were identified as (1) ‘the core area of Wichita at either 3725 W. 13th or Riverside Tennis Center’, (2) ‘one in west Wichita at the northwest corner of 29th and Maize Road’, and (3) ‘its existing health club at 854 N. Socora.’
“4. On July 2, 2004, the Center for Economic Development and Business Research, W. Frank Barton School of Business, Wichita State University, faxed to Lisa Jones, of the City’s staff, a ‘state-required cost-benefit analysis’ of the Initial Genesis Proposal. That analysis did not consider the impact on the Maize School District, USD 266. The language ‘state required cost benefit analysis’ is a statement by a lay person.
“5. Correspondence dated July 2, 2004 was mailed to the Sedgwick County Clerk and the Clerk of the Board of Education of Unified School District 259 [Wichita] by the City’s staff, stating:
‘This is to notify you pursuant to K.S.A. 12-1749c and K.S.A. 12-1749d, that at its regular meeting at 9:00 a.m. on July 13, 2004, at City Hall, 455 N. Main, Wichita, Kansas, the governing body of the City wiE consider for pubhc discussion the issuance of [1] not to exceed $11,850,000 principal amount of Taxable Industrial Revenue Bonds under K.S.A. 12-1740 et seq., [2] as weE as an accompanying ad valorem property tax exemption for the property purchased with the proceeds of said Bonds. The property to be purchased with the proceeds of said Bonds wiE be leased to Genesis Health Clubs Management, LLC, and wül be located within the territorial boundaries of Sedgwick County, Kansas, and Unified School District No. 259, Wichita, Kansas.’
“6. The City caused to be pubhshed on July 6, 2004, in the Wichita Eagle, the following ‘Notice of Pubhc Hearing for Issuance of Taxable Industrial Revenue Bonds and Granting an Ad Valorem Tax Abatement’:
‘Public notice is hereby given that the governing body of the City of Wichita, Kansas, (the ‘City’), wiE conduct a pubhc hearing in connection with the proposed issuance by the City of Wichita, Kansas, of its Taxable Industrial Revenue Bonds, in an aggregate principal amount not to exceed $11,850,000 on Tuesday, July 13, 2004, or at such later time as shaE be estabhshed by the governing body during said meeting, at City HaE, 455 N. Main, Wichita, Kansas 62702. Said Taxable Industrial Revenue Bonds are proposed to be issued by the City for the purpose of providing funds to acquire, construct, and equip three health club facilities, variously located at 3725 W. 13th, the comer of 29th and Maize Road, and 854 N. Socora, in the City of Wichita, Kansas (the ‘Project’).
‘Said Taxable Industrial Revenue Bonds, which include an accompanying ad valorem property tax exemption, are proposed to be issued under authority of K.S.A. 12-1740 to 12-1749d, as amended.
‘The City further intends to lease the Project to Genesis Health Clubs Management, a Limited Liability Corporation.
‘A copy of this Notice, along with a copy of the letter of intent and the proposed ordinance authorizing the governing body of the City to issue such Taxable Industrial Revenue Bonds, is on file in the office of the City Clerk and is available for pubhc inspection during normal business hours. In the event said taxable industrial revenue bonds are not ultimately issued for any reason, the City of Wichita, Kansas, shaE not be deemed to have assumed or incurred any liability or obligation to Genesis Health Clubs or any other party by virtue of any proceedings or actions taken in connection therewith.
‘AE persons having an interest in this matter wiE be given an opportunity to be heard at the time and place specified.
‘The governing body of the City wiE not adopt an Ordinance authorizing the issuance of such Taxable Industrial Revenue Bonds and thereby approving the accompanying tax abatement until the passage of seven (7) days from the date this Notice is pubhshed in the official city newspaper of the City of Wichita, Kansas and until said pubhc hearing is conducted.’
“7. On or about July 12, 2004, Genesis Health Club Management, LLC revised its requested approval by the governing body of the City of a ‘Letter of Intent’ to issue Taxable Industrial Revenue Bonds (IRBs) in an amount not to exceed $11,850,000, to finance the cost of acquiring, constructing and equipping three health club facilities to be leased to Genesis Health Club Management, LLC. The three health club facilities were identified in the correspondence as (1) ‘the core area of Wichita at 3725 W. 13th,’ [deleting the former alternative of “Riversidfe Tennis Center”] (2) ‘one in west Wichita at the northwest comer of 29th and Maize Road’, and (3) ‘its existing health club at 854 N. Socora.’
“8. On July 13, 2004, at the regularly scheduled governing body meeting, five members of the City Council of the City voted to: ‘approve a one-year Letter of Intent to Genesis Health Clubs for Industrial Revenue Bonds in an amount not-to-exceed $11,850,000, subject to the Standard Letter of Intent Conditions, authorize staff to select a bond counsel based on competitive fee quotes; determine the amount of tax abatement to be 50% for five-years and Council wishes to approve bond-financed property for the initial five-year period plus a renewal and that there will be a payment in lieu of taxes on the difference on the 2003 payment on the taxes on the properly [sic] at West 13th Street and that the necessary signatures be authorized.’
“9. The City did not send die governing body of the Unified School District No. 266, Maize, Kansas written notice of either the Initial Genesis Proposal or the Revised Genesis Proposal [dated June 18 and July 12 respectively] until after the July 13 meeting described in the previous paragraph. However, on July 13, 2004, the health club facility that was to be located under both projects ‘at the northwest comer of 29th and Maize Road’ was within the territorial boundaries of Unified School District No. 266.
“10. The site for the health club facility to be located at the northwest comer of 29th and Maize Road was not within the territorial boundaries of the City, although it was located in Sedgwick County. However, the only written notice, which the City provided to Sedgwick County concerning either the Initial Genesis Proposal or the Revised Genesis Proposal before July 13, 2004, is that described in paragraph 5 above. Then, in May of2005, the property in question was annexed by the City.
“11. A Letter of Intent with attached ‘City of Wichita, Kansas Standard Letter of Intent Conditions’, dated July 13, 2004, was provided by the City to Genesis [hereafter ‘Letter of Intent.’]. The letter provided, in part:
‘In accordance with the action taken at its regular meeting held on July 13, 2004, the City Council of the City of Wichita, Kansas, hereby tenders its written intent to issue Industrial Revenue Bonds in an amount not-to-exceed $11,850,000. This intent to issue bonds will remain in effect for a one-year term, ending July 13, 2005.
‘Pursuant to your application dated June 18, 2004, proceeds will be used to construct and equip two health club facilities, one in the core of Wichita at 3725 W. 13th, one in the northwest comer of 29th and Maize Road, and expand its existing health club at 854 N. Socora.
‘In addition, the City Council approved a 50 % abatement on all bond-financed property for a term of five years, plus an additional five years subject to City Council review. The company will also make payment in lieu of taxes based on the 2003 value of the Genesis property located on West 13th Street.
" ‘Please sign and return one original letter to the Department of Finance. You may retain the second original for your records. . . .’
“12. On or about July 26, 2004, Genesis’ representative signed the Letter of Intent.
“13. On June 21,2005, a motion at the City Council’s regular meeting to extend the July 13, 2004 Letter of Intent’s one year deadline failed. The Motion was requested by City Staff.
“14. Thereafter, Genesis requested the City to ‘draft bond documents and put it on the City Council Agenda before July 13, 2005 (the expiration date of the Letter of Intent), [but] this did not occur and the City Council never even voted on whether to issue IRBs before the expiration of the Letter of Intent.’
“15. The City never passed an ordinance authorizing the issuance of revenue bonds.
“16. The notices sent out prior to the City entering into the Letter of Intent were incomplete as notice was not provided to Maize School District, within which one of the three tracts of land involved was located.
“17. K.S.A. §12-1749c provides, in part, that‘the city clerk . . . shall notify in writing the governing board of the unified school district within which the property proposed for exemption is located.’
“18. K.S.A. §12-1749d provides, in part, that ‘Prior to issuing any revenue bonds . . . the governing body of the city . . . shall be required to: (a) Prepare an analysis of the costs and benefits of each exemption which shall include the effect of the exemption on state revenues . . . .’
“19. The 29th and Maize Street property was annexed by the City of Wichita in May 2005.
“20. That annexation eliminated the [original] need for approval of the bond issue by Sedgwick County.
“21. The City’s website, on the economic development portion maintained by Alan Bell, states that a letter of intent regarding IRBs is a ‘commitment to issue the IRBs subject to negotiated conditions.’
“22. The City’s Policy Resolution on IRBs in effect in July 2004 states that bonds ‘will be issued following proof of satisfaction of all conditions . . . and following approval of the bond documents ... by the City Attorney’s Office and approval by the City Council (through approval and publication of the bond ordinance).’
“23. All the conditions to die Letter of Intent were eidier met by plaintiffs, were inapplicable, or were not met because the City stopped drafting the documents and odierwise prevented performance.
“24. The City of Wichita completed a ‘Request for Project [sales tax] Exemption Certificate’ that lists a ‘contract date’ of July 13, 2004.
“25. The July 13, 2004 date shown as the ‘contract date’ on the Request comes directly from the Letter of Intent the City issued to Genesis.
“26. That Request was prepared by the City of Wichita and signed by Plaintiffs and the City.
“27. That Request states that ‘This agreement shall be binding upon all parties hereto and any and all their successors.’
“28. That Request signed by plaintiffs and the City was then sent by die City to the State of Kansas.
“29. The State of Kansas issued the sales tax exemption certificate.
“30. The City Council addressed the matter during its regular meeting on December 7, 2004 and determined to ‘reaffirm’ the Letter of Intent by a 5 to 1 vote.
“31. Plaintiffs requested that die bond issuance be placed on the agenda in June 2005.
“32. The City Council was never provided with an analysis by tiieir law department or staff regarding whetiier or not Genesis had complied with the conditions attached to the Letter of Intent.
“33. The City Council never held a meeting to determine whetiier Genesis had met conditions attached to the Letter of Intent.
“34. The City of Wichita has recognized in its Policy Resolution on IRBs that ‘The City of Wichita is authorized by K.S.A. 12-1740 to 12-1749d inclusive, as amended, to issue industrial revenue bonds.”
Following the district court’s determination of uncontroverted facts, it set forth its conclusions of law as follows:
“There are no material facts that are controverted.
“The legal issue is did the City contractually bind itself to the issuance of approximately $11.8 million of industrial revenue bonds by approving, by resolution of the city council, the letter of intent dated July 13, 2004?
“No city can issue IRBs except through the auspices of the Economic Development Revenue Bonds Act, EDRBA. Under EDRBA, a city is required to do certain things before IRBs can be issued. Those requirements include, in part: notice of public hearings; the holding of the public hearings themselves; communication with other governmental entities; cost-benefit studies; and, ultimately, approval of a bond ordinance which must include all the details of the bond issuance. Those statutory requirements are in place for the benefit and protection of the public. The Kansas Supreme Court upheld the constitutionality of the EDRBA, at least in part, because of the protections that these requirements provide to the citizenry.
“But here it is being argued by Genesis that the City bound itself to the issuance of IRBs through the letter of intent that was approved before some of the requirements of EDRBA had been complied with. As the City points out, what Genesis is arguing is that the City’s power to contract is unfettered by EDRBA’s statutory requirements of notices, hearings, input from the public and other governmental entities, cost benefit studies, and factual findings, all of which must eventually culminate in passage of a bond ordinance.
“If the legislature intended that the City could become contractually bound to issue IRBs before those requirements are met, then why are those requirements part of the law? One rule of statutory construction is that it is presumed that the legislature does not enact provisions which have no purpose or meaning. By its language EDRBA does contemplate that certain of its requirements can be complied with after the approval of the letter of intent. But why would the legislature permit the cost-benefit analysis and approval by the county to take place after a letter of intent has been agreed to, if the letter of intent is meant to be the final word? Under such circumstances, such analyses and approvals would be superfluous.
“One aspect of this case that has troubled the Court from the outset is the question of reliance by Genesis. It is uncontroverted that Genesis has expended funds in the expectation of this IRB issuance. In reviewing the case law, it appears that the appellate courts have been confronted with such realities in the past, but the higher courts’ rulings indicate to this Court that the making of expenditures in situations like this cannot breathe life into a nonexistent or illegal contract or ordinance. [Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, 479 P.2d 875 (1971); Ford v. City of Hutchinson, 140 Kan. 307, 37 P.2d 39 (1934).] The appellate courts have ruled diis way because of what is at stake as a matter of public policy. Genesis’ position, sincerely held, if accepted, would create a mechanism by which meaningful review by the public and other governmental entities on IRB proposals could be circumvented.
“Genesis views itself in this case as making the government more accountable for its actions and die Court empathizes with Genesis in that regard. But if Genesis prevails and the precedent is set that the City can enter into a binding contract to issue IRBs before the requirements of EDRBA have been complied with, the great irony of this case will be diat by attempting to increase the City’s accountability to Genesis, we will be gready lessening that city’s accountability to the public. Because if the City discovers that the requirements of EDRBA can be evaded by simply entering into a letter of intent, the City will do that every time it feels the urge. And in so doing the City will be skirting the very procedural safeguards that made it possible for the Kansas Supreme Court to find EDRBA constitutional in the first place.”
The district court essentially concluded that the City lacked the power to enter into such a contract:
“The bottom line is that a city lacks the power to issue IRBs without complying with EDRBA. And if a city lacks the power to issue those IRBs widiout complying with EDRBA, it certainly lacks the power to enter into a contract to do so.
“Therefore, the Court rules that, as a matter of law, with EDRBA’s requirements not having been complied with in this instance, the letter of intent approved in July of 2004 is a nullity. Accordingly, summary judgment is granted to the City of Wichita against plaintiffs’ claims.”
Genesis then appealed on a number of bases. The City cross-appealed, alleging that only for purposes of summary judgment had it failed to dispute Uncontroverted Fact No. 23. The City argued that if the case were remanded, it reserved the right to dispute the fact at that time.
ANALYSIS
Issue 1: The July 13, 2004, letter of intent was not a binding contract.
The parties’ legal arguments
The parties make numerous arguments to support their conflicting positions. Genesis generally argues that it entered into an agreement with the City “in the form of a binding letter of intent” dated July 13, 2004. It contends the City then breached this contract by not issuing the IRBs and granting ad valorem property tax abatements even though Genesis had “spent more than $1 million in reliance on the promise and in fulfilling the conditions of the agreement.” Under Genesis’ interpretation of the district court opinion, the court assumed the existence of a contract for which Genesis had met all conditions but nevertheless refused to enforce the contract because the City was without the power and authority to enter into it.
Genesis also argues that some of the requirements of the Act were eventually met so their absence cannot excuse the City’s failure to perform. It points out, for example, that the district court found that the need for county approval of the action under K.S.A. 12-1741a was eliminated when the county’s property at 29th and Maize Road was annexed by the City in May 2005. Uncontroverted Facts Nos. 10, 19, 20. Without a similar express finding by the district court, it nevertheless argues that the failure to notify the Maize School District was later corrected when the City’s agent performed a corrected cost-benefit analysis. See, e.g., Uncontroverted Fact Nos. 4, 9, 16, 17. It also suggests that the requirement of notice to the school district is not of great importance: “Tellingly, the Act does not give a school district any ability to disapprove a letter of intent or bond issuance.”
Genesis further argues that the purported statutory requirements are not restrictions on a city’s ability to enter into contracts, and that the Act does not require the passage of an ordinance for a city to enter into a contract to issue IRBs or grant tax abatements. It contends that City passage of an ordinance is simply the “final administrative step.” Genesis therefore asks this court to reverse the district court’s ruling and remand for a trial on damages “for the City’s admitted breach of the valid and enforceable contract.”
The City responds that the July 13, 2004, letter of intent was never a contract between the parties. It argues that the district court simply “pretended” the parties entered into a contract for the City to issue IRBs and grant tax abatements for the purpose of making a decision on the City’s motion for summary judgment, and that the true issue on appeal is whether the contract is enforceable.
The City further responds that it is not bound unless and until the council passes an ordinance authorizing issuance of the IRBs and granting of the tax abatements. It also argues that the failure to comply with other statutory requirements, e.g., failure to notify the Maize School District — which “deficiencies were never corrected” — nullifies the purported contract.
We need not analyze every one of these, and other detailed arguments, made by the parties. As explained below, the City’s failure to fulfill a statutory requirement of timely notifying the Maize school district of potential tax abatements of property within the district’s boundaries voids all subsequent City actions.
Discussion
The appellate standards for reviewing a district court’s grant of summary judgment are well-known and are detailed in Warner v. Stover, 283 Kan. 453, 153 P.3d 1245 (2007). Highly summarized, the standards provide that genuine issues of material fact generally preclude summary judgment. Genesis initially claims that the district court erroneously granted summary judgment “despite the presence of disputed factual issues,” but it has not controverted any of the facts determined by the district court. Moreover, while Genesis has included many additional “facts” in its brief, it has not established that these facts are material.
Here, because the material facts are undisputed, this court’s review is unlimited. See Botkin v. Security State Bank, 281 Kan. 243, 130 P.3d 92 (2006) (when facts are undisputed, appellate review of the district court’s grant of summaiy judgment is de novo). Additionally, as this court will be reviewing several statutes, the interpretation of a statute is a question of law over which we exercise unlimited review. See Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 819, 104 P.3d 378 (2005).
We begin our analysis with a brief overview of the relevant statutes out of which this controversy arises. Genesis requested that the City issue the IRBs and grant the tax abatements under the Economic Development Revenue Bonds Act, K.S.A. 12-1740 through 12-1749d (“EDRBA” or “the Act”). The parties are correct that the City’s power to issue IRBs and grant accompanying tax abatements is contingent upon compliance with the Act, as we have recognized that:
“The industrial revenue bond act, K.S.A. 12-1740, et seq., and amendments thereto, is complete and comprehensive and sets forth the legislative policy of the state, together with the procedure to be followed by cities in the issuance of industrial revenue bonds.” (Emphasis added.) Rauh v. City of Hutchinson, 223 Kan. 514, Syl. ¶ 4, 575 P.2d 517 (1978).
Our analysis focuses on one of the Act’s statutes, K.S.A. 12-1749c, which specifically establishes part of “the procedure to be followed by cities in the issuance of’ IRBs and granting of ad valorem tax abatements:
“Prior to the approval of an inducement resolution or letter of intent which includes an agreement for ad valorem tax abatement for property to be financed by issuance of any industrial revenue bonds under K.S.A. 12-1740 through 12-1749a, and amendments thereto, the county or city clerk, as the case requires, shall notify in writing the governing board of the unified school district within which the property proposed for exemption is located.” (Emphasis added.) K.S.A. 12-1749c.
The district court acknowledged K.S.A. 12-1749c. It found, without controversion by Genesis, that “[t]he City did not send the governing body of the Unified School District No. 266, Maize, Kansas written notice of either the Initial Genesis Proposal [dated June 18] or the Revised Genesis Proposal [dated July 12] until after the July 13 meeting” where “five members of the City Council of the City voted to: ‘approve the one-year Letter of Intent to Genesis Health Clubs for Industrial Revenue Bonds.’ ” See Uncontroverted Fact Nos. 8-9.
The district court further found, without controversion by Genesis, that “[o]n July 13, 2004, the health club facility that was to be located under both projects [proposals dated June 18 and July 12] ‘at the northwest comer of 29th and Maize Road’ was within the territorial boundaries of Unified School District No. 266.” Uncontroverted Fact No. 9. Without controversion by Genesis, the court reiterated that “[t]he notices sent out prior to the City entering into the Letter of Intent [on July 13] were incomplete as notice was not provided to Maize School District, within which one of the three tracts of land involved was located.” Uncontroverted Fact No. 16.
The language of K.S.A. 12-1749c is clear: “Prior to the approval of [a] letter of intent . . . the city clerk . . . shall notify in writing.” (Emphasis added.) Moreover, it is the only statute within the Act that requires any City action be taken prior to this particular event; all other required acts can be later. Contrast K.S.A. 12-1744a (at least 7 days prior to the issuance of any IRBs); K.S.A. 12-1744e (at least 7 days prior to adopting an ordinance authorizing the issuance of the IRBs); K.S.A. 12-1749d (“[p]rior to issuing any revenue bonds”).
This particular notice requirement is likely imposed because school districts’ financial well-being will be harmed by tax abatements of property within their boundaries. For years ad valorem property taxes have been a financing source for the districts. See K.S.A. 72-6431. In analogous areas of the law, local governmental failures to follow statutory procedures void their intended actions.
Just as the Rauh court held that the Act was complete and comprehensive for cities desiring to issue IRBs and grant ad valorem tax abatements, “the planning and zoning power of a municipality is derived solely from the grant contained in K.S.A. 12-741 et seq. ” Crumbaker v. Hunt Midwest Mining, Inc., 275 Kan. 872, 884, 69 P.3d 601 (2003). Just as the Rauh court held that the Act sets forth “the procedure to be followed by the cities in the issuance of industrial revenue bonds,” in zoning “we have long held that the power of a city government to change the zoning of property . . . can only be exercised in conformity with the statute which authorizes the zoning.” Crumbaker, 275 Kan. at 886. As a result, a city’s failure to follow the zoning procedures in state law renders its action invalid. 275 Kan. at 887.
The law of annexation is similar to the Act and zoning laws. As we held in Crumbaker, “[t]he power of a municipality to alter its boundaries by annexation is vested absolutely and exclusively in the legislature, and this power is therefore completely controlled by statute, i.e., K.S.A. 12-519 et seq.” 275 Kan. at 884. Accordingly, like zoning and the Act, “[f]or a city to alter its boundaries by annexation, it must follow Kansas statutes.” Dillon Real Estate Co., Inc. v. City of Topeka, 284 Kan. 662, 665, 163 P.3d 298 (2007) (citing Crumbaker, 275 Kan. at 884). If not, the “ ‘failure of a city to comply with requirements of the legislative enactment which gave it power and authority to annex territory nullifies the attempted annexation ordinance.’ ” Dillon Real Estate, 284 Kan. at 666.
In the specific instances of governmental failure to provide proper statutory notice, in both the fields of zoning and annexation this court has held the intended subsequent governmental actions are void. In Crumbaker, we held that the “City only sent notices to those owning property within 200 feet of the annexed land, not 1,000 feet. Proper notice is mandatory and must be complied with to give the planning commission authority to recommend action, and the city commission jurisdiction to act.” 275 Kan. at 886. Similarly, in Carson v. McDowell, 203 Kan. 40, 44, 452 P.2d 828 (1969), despite a statutory requirement of publication notice of at least 20 days, only 19 days’ notice was provided. This court held: “The provision for notice not having been complied with the city commission was without jurisdiction to pass the zoning ordinance and it is therefore void.” Citing Annot., 96 A.L.R.2d 469, the court stated: “[U]nder the rule that proper notice is mandatory and ju risdictional, a zoning ordinance enacted on defective notice is generally held invalid.”
Similarly, in Ford v. City of Hutchinson, 140 Kan. 307, 311, 37 P.2d 39 (1934), we held: “Without the statutory notice for thirty days of a hearing before the planning board, it has no power to give its official recommendation of a proposed change in zoning, and the city government is without power to pass an ordinance making such change.” Because the “methodical steps prerequisite and precedent to changes in zoning districts . . . prescribed by law . . . were disregarded, the rezoning ordinance was a nullity.” 140 Kan. at 312. In the same vein is State ex rel. Hawks v. City of Topeka, 173 Kan. 387, 246 P.2d 250 (1952). There, the city’s notice to county officials of its anticipated annexation of county property failed to meet the statutory requirement. Among other things, the proposed annexation ordinance was not yet in existence. This court held that the “[fjailure of tire city to comply with requirements of the legislative enactment which gave it the power and authority to annex territory nullifies the attempted annexation ordinance. It therefore follows that city ordinance No. 8243 is inoperative, void and of no effect.” 173 Kan. at 391.
In the related area of general obligation bonds and their accompanying special elections, we have announced our “long standing rule that municipalities cannot issue bonds unless the power to do so is conferred by legislative authority.” Byer v. Rural High School Dist. No. 4, 169 Kan. 351, 358, 219 P.2d 382 (1950). As in zoning and annexation, we have also specifically held that a governmental failure to provide proper statutory notice voids its intended issuance of bonds. As this court stated in Chanute v. Davis, 85 Kan. 188, Syl., 116 Pac. 367 (1911), “[a]s a general rule, unless the statutory notice be given, a special city election authorizing a bond issue is invalid.” There, instead of notice being published in a newspaper for 3 consecutive weeks, notice was published for 10 consecutive days. Because of this defect, the election was held invalid. See also Heller v. Rounkles, 171 Kan. 323, Syl. ¶ 2, 232 P.2d 225 (1951) (election on question of issuance of school bonds was invalid because the election notices and the ballots failed to state the proposition submitted so as to clearly inform the voters); Byer, 169 Kan. at 359 (issuance of bonds enjoined after election because the notices and ballots failed to state the proposition submitted so as to clearly inform the voters).
The same fatal conclusion has been reached in other, although less closely related, areas as well. In State ex rel. Griffith v. Drainage District, 116 Kan. 291, 226 Pac. 478 (1924), this court held that the county commission’s purported creation of a drainage district was void because the notice of hearing failed to sufficiently describe the property to be included in the district. We held: “It necessarily follows that all subsequent proceedings, including the attempted election of directors, and the attempted voting of bonds, are void and without effect.” 116 Kan. at 296.
A synthesis of these authorities addressing related fields of law leads us to conclude that when the legislature finds important interests are at stake, they are statutorily protected by mandatory procedures, i.e., proper notice and a meaningful opportunity to be heard are critical. Here, the important interest is taxes on property within a school district upon which it relies for financing some of its needs. Any reduction of the tax base, here 50% for at least 5 years with an option for 5 more, means that the district will likely reduce, if not eliminate, certain services and programs or else seek substitute funding through other sources, e.g., user fees. According to Genesis’ 2005 petition, approximately $1.7 million was its loss of the benefits of tax abatements on tire three tracts for which it sought recoveiy.
Tax interests, whether a decrease in revenues to a governmental entity or an increase in burden on taxpayers, specifically have been recognized as important considerations for requiring compliance with statutory notices. This court acknowledged their protected status in State ex rel. Fatzer v. Kansas City, 169 Kan. 702, 222 P.2d 714 (1950). There, it was held that the city’s statutory written notice to the county clerk and superintendent at least 10 days prior to approval of an annexation ordinance
“was intended to give the county clerk and the county superintendent an opportunity to present to the governing body of the city any information they thought proper and any objections they desired to make because of the effect the ordinance would have upon local taxing districts. These are matters which go to the prudence and advisability of the approval of the ordinance of the governing body of the city.” (Emphasis added.) 169 Kan. at 720.
A similar acknowledgment was made by this court in State ex rel. Griffith, 116 Kan. at 295. With the creation of a drainage district,
“its boundaries is an important matter. Whether property owners are to be taxed for its support is important to them as well as to others in the district; the county commissioners must have jurisdiction before a valid order creating the district can be made, and this can be had only upon notice to the property owners. ” (Emphasis added.)
And in Chanute, 85 Kan. at 190, this court questioned whether it should recognize a “publicity notice” which “has no legislative basis whatever upon which to rest in order to support a special election resulting in bonding the city, and thereby adding to the burdens of every taxpayer within it limits.” (Emphasis added.)
A synthesis of all these authorities not only leads us to conclude that important interests are protected by mandatory statutory procedures, but also that governmental failure to comply with these procedures to protect important interests makes governmental action void. Indeed, according to the City, without refutation by Genesis, lack of written notice to the Maize school district was a deficiency that was never corrected.
We fully acknowledge that the property described as “the comer of 29th and Maize Road” contained within the U.S.D. No. 266 boundaries was identified in the July 6 newspaper publication. Thus the school district, like the general public, would have received general notice. However, the Act twice gives the school district extra notice protection. First, the specific written notice of anticipated tax abatement is required to be given to the district under K.S.A. 12-1749c before approval of the letter of intent. Second, written notice of the hearing of the anticipated tax abatement is also required to be given under K.S.A. 12-1749d before issuance of the bonds. That statute states in relevant part:
“Prior to issuing any revenue bonds . . . for any business the property of which will be eligible for an exemption from ad valorem taxation . . . , the governing body of any city, as the case requires, shall be required to:
“(b) conduct a public hearing on the granting of such exemption. Notice of the public hearing shall be published at least once seven days prior to the hearing in the official city or county newspaper, as the case requires, and shall indicate the purpose, time and place thereof. In addition to such publication notice, the city . . . clerk . . . shall notify in writing the governing body of any . . . unified school district within which the property proposed for exemption is located.” (Emphasis added.)
In short, these requirements specifically are in addition to any notice given the general public through mere publication in the newspaper. Clearly, the legislature has decided that school districts are required to be well, and repeatedly, informed of a potential loss of revenue due to abatement of taxes on property within their boundaries. We are not in a position to doubt the legislature’s wisdom on this issue, for as was reiterated when this court upheld the constitutionality of the Act in 1961:
“ ‘An examination of the statute under which the challenged proceedings are being undertaken will reveal a number of restrictions which the legislature must have deemed sufficient to prevent the defendant city from abusing the corporate powers vested in it, and the legislative wisdom on this subject is not open to judicial review/ ” State ex rel. Ferguson v. City of Pittsburg, 188 Kan. 612, 623, 364 P.2d 71 (1961) (citing State ex rel. Beck v. Kansas City, 149 Kan. 252, 255, 86 P.2d 476 [1939]).
We further note the presumption that the legislature does not intend to enact useless or meaningless legislation. Hawley v. Kansas Dep’t of Agriculture, 281 Kan. 603, 631, 132 P. 3d 870 (2006). The particular notice required under 12-1749c to be given to the affected school districts is the only action specifically required under the Act to be given before approval of the letter of intent. Accordingly, we conclude that this statute must have some utility and meaning.
The Act specifies conditions that must be met for IRBs to be issued and tax abatements to be granted. Because the separate written notice required by K.S.A. 12-1749c was not sent to the Maize school district before the July 14 approval of the letter of intent, and even assuming without deciding that a letter of intent could otherwise be a contract, we must reject Genesis’ argument that this document constituted a contract with the City which the City then breached. The City’s approval, and its subsequent ac tions, are void. Cf. Crumbaker, 275 Kan. 872 (City’s failure to follow the zoning procedures in state law renders its action invalid. Among other things, some landowners did not receive proper notice of the proposed action as required by K.S.A. 12-757[b]. The City only sent notices to those owning property within 200 feet of the annexed land, not 1,000 feet.).
Among Genesis’ numerous remaining arguments are two closely related ones that warrant our attention. For the first argument, Genesis asserts that the legislature anticipated the very situation where an IRB-issuing municipality fails to send “the various notices” and provided the exclusive remedy: removal from office of any council member who approved the bond issuance. The statute upon which Genesis relies, K.S.A. 12-1744d, states:
“Failure to comply with the notice filing requirements of this act shall subject all members of the governing body of the issuing city or county who participated in the issuance of the revenue bonds to ouster from office upon complaint filed by the board of tax appeals in the office of the attorney general.”
According to Genesis, through the statutory language tire legislature made clear its intention that any “notice errors” by municipalities, including notice to the school districts under 12-1749c, do not affect the validity of the bonds. It asserts that “[i]f the Kansas legislature had intended for a defective notice to void the issuance of bonds, it would have chosen to provide for that instead of sanctions for the governing body.”
For Genesis’ second, and related argument, it relies upon K.S.A. 12-1741, 12-1744a, and 12-1744b to seemingly contend that they contain the only possible restrictions on a city’s IRB issuance and tax abatement granting. K.S.A. 12-1741 states in relevant part: “Subject to the provisions of K.S.A. 12-1744a and 12-1744b, and amendments thereto, any city shall have power to issue revenue bonds . . . .”
Genesis reasons that the statute which authorizes the City to issue IRBs, K.S.A. 12-1741, is by its very language subject only to K.S.A. 12-1744a and 12-1744b. It argues that the latter two statutes “deal solely with certain reports that must be filed” with the Board of Tax Appeals at least 7 days prior to bond issuance. According to Genesis, it follows that “[n]o provision of [the Act] makes the City’s power and authority under K.S.A. 12-1741 subject to additional limitations.” (Emphasis added.)
The first referenced statute, K.S.A. 12-1744a, states in relevant part that “(a) [a]t least seven days prior to the issuance of any revenue bonds, the city or county shall file a statement with the board of tax appeals of such proposed issuance containing the following information . . . .” (Emphasis added.)
The second referenced statute, K.S.A. 12-1744b, states in relevant part:
“Revenue bonds for which notice is required to be filed pursuant to K.S.A. 12-1744a and amendments thereto shall not be issued unless the chairperson of the board of tax appeals finds all information and documents required to be contained in such notice are complete and timely filed. The board of tax appeals shall establish, by rules and regulations, procedures for the filing of the required information and documents in the event that the information and documents originally filed are not found to be complete and timely filed, and such bonds may be issued upon compliance therewith.” (Emphasis added.)
The City basically addresses Genesis’ two related arguments as one. It responds that the ouster penalty in K.S.A. 12-1744d only relates to failure to comply with “notice filing requirements” with the Board of Tax Appeals. (Emphasis added.) See K.S.A. 12-1744a and -1744b. The City argues that by contrast, K.S.A. 12-1744d’s penalty does not apply to the requirement of simple “notice” to school boards found in K.S.A. 12-1749c and 12-1749d. Based upon the plain language of these statutes, we agree with the City and reject Genesis’ expansive definition of “all notices.” The Act clearly distinguishes between “notice” and “notice filing with board of tax appeals” requirements. (Emphasis added.) Our conclusion is further strengthened when we observe that 12-1744d not only specifies “notice filing requirements,” but also expressly provides that failure to meet those requirements may result in ouster only “upon complaint filed by the board of tax appeals.” (Emphasis added.) In short, a failure to file with the Board of Tax Appeals allows that board to complain to the attorney general.
This statutory language also indicates that ouster is not meant to be the sole remedy. We agree with the City that the provision protects the IRB applicant who seeks tax abatements against a municipality’s failure to malee proper application with the Board of Tax Appeals for approval; the applicant may always refile its request, albeit belatedly, with the new city council. By contrast, the tax revenue interests of an affected school district are not protected in any fashion or degree by a post-decision ouster of government officials; the revenue is simply lost for as long as the original abatement is in existence. We independently observe that Genesis’ “ouster as exclusive remedy” argument is inconsistent with the triple notice protection the Act affords school districts in danger of losing part of their revenue through tax abatements.
This same rationale applies to reject Genesis’ related argument that based upon the language of K.S.A. 12-1741, the only Act restrictions on “contracting” to issue IRBs are in the provisions of K.S.A. 12-1744a (notice to the Board of Tax Appeals) and K.S.A. 12-1744b (approval of paperwork by the Board of Tax Appeals). Not only is Genesis’ argument inconsistent with the triple notice protection afforded school districts, but we also agree with the City that Genesis’ position is inconsistent with numerous other Act provisions, e.g., 12-1741a and 12-1741b (circumstances under which a city’s and county’s issuance of IRBs must be approved by another city or county). Like the district court, we conclude that these provisions must have some utility and meaning.
We independently observe inconsistencies within Genesis’ own arguments. For its “ouster is exclusive remedy” argument, it adopts an expansive interpretation of “notice filing requirements” in 12-1744d as including “all notices,” e.g., to the school district under 12-1749c. According to Genesis, because notice was not provided to the district here, the district’s sole remedy is to attempt ouster of the city council members. By contrast, Genesis adopts a restrictive interpretation of those same requirements under 12-1744a and 12-1744b as it asserts that those two statutes “deal solely with certain reports that must be filed with the board of tax appeals.” According to Genesis, because the City’s power to issue IRBs and to grant tax abatements is only limited by fading to comply with these particular filing requirements with the Board of Tax Appeals, fail ure to comply with the requirement of notifying the school district is not a limitation.
We specifically hold that the notice to the school district before approval of the letter of intent is paramount.
Issue 2: Promissory estoppel does not prevent the City from refusing to issue the IRBs and grant ad valorem tax abatements.
Genesis next argues that it detrimentally relied on the purported contract with the City and spent more than $1 million believing that the IRBs would be issued and tax abatements granted. Accordingly, it claims recovery under promissory estoppel. The City disagrees, relying upon, inter alia, Blevins v. Board of Douglas County Comm'rs, 251 Kan. 374, 834 P.2d 1344 (1992).
Like the instant case, Blevins dealt both with promissory estoppel and a governmental entity’s inability to contract without following statutory procedures. There, plaintiffs argued that the county’s 1986 issuance of bonds on a county trafficway project was illegal because the county was not authorized to do so under its home rule powers. 251 Kan. at 376. This court agreed, ruling that a public vote should have been taken approving the bond issue under K.S.A. 68-580 et seq. We entered judgment for plaintiffs who had sought an injunction preventing the county from spending the money raised by the bonds without the approval of the voters.
This court’s opinion was filed December 8, 1989. Later that month, the county commissioners decided to hold an advisory election on the trafficway financing. According to an affidavit by its chairperson, “ ‘[t]he Board of County Commissioners has agreed publicly, however, to be bound by the results of the election.’ ” 251 Kan. at 377. Several individual county commissioners also stated publicly that although the election was technically advisory, the county would be bound by its results. That same month tire county’s attorney sent a letter to plaintiffs’ counsel reiterating the county’s position that “the County has irrevocably committed itself to holding an election as a precondition to spending bond proceeds on the trafficway project” and “Douglas County is fully committed to the election process.” 251 Kan. at 377.
On January 31, this court granted the county’s motion for rehearing and withdrew its opinion. In July 1990, the court issued a second opinion, reaffirming that the county had illegally issued the bonds because it failed to follow K.S.A. 68-580 et seq. which requires a public vote. However, because of past confusion from this court’s prior decisions, it validated the bonds, holding that its decision would apply only to future bond authorizations and issuances. Plaintiffs had previously informed this court that they had no objection to a prospective application of the court’s decision “ ‘conditioned upon the Trafficway being submitted for voter approval in a binding election, as promised by both governing bodies.’ ” 251 Kan. at 378.
In November 1990 an advisory election was held, and the county voters approved the spending of the bond proceeds. Plaintiffs again filed suit, claiming the ballot question was biased and misleading. Among other things, plaintiffs argued to the Supreme Court that county statements as to the binding effect of the proposed election in requesting reconsideration of the initial opinion estopped or precluded the county from denying the election was binding. After the district court dismissed plaintiffs’ petition and the Court of Appeals reversed and remanded, this court was then faced with a question similar to the one in the instant case — “whether the County was required to conduct a binding election regarding the spending or retirement of these bonds, as a matter of law.” 251 Kan. at 382.
Similar to the instant case, this court noted that counties may only hold binding elections in accordance with the statutory authority set out by the legislature. 251 Kan. at 382. Because this court had previously validated the-county’s earlier bonds, despite the county’s failure to follow statutory procedures for their issuance, it held that the county was not now “required to hold an election pursuant to K.S.A. 68-584 and furthermore had no statutory authority to hold a binding election.” 251 Kan. at 382.
The court then turned to plaintiffs’ argument that the county was estopped from claiming it did not have the statutory authority to hold a binding election and that the county’s statements about holding such an election created an implied contract to follow through with that promise. In rejecting these positions, the court held:
“If a municipal corporation enters into a contract it has no power to malee, it is ultra vires and unenforceable and no further inquiry into the contract’s validity is necessary. 10 McQuillin, Municipal Corporations § 29.02 (3d ed. rev. 1990).
“Contracts which a municipal corporation is not permitted legally to enter into are not subject to ratification, and a city may not be estopped to deny the invalidity of a contract that is ultra vires in the sense that it is not within the power of the municipality to make. In other words, no ratification or estoppel can make lawful a municipal contract which is beyond the scope of the corporate powers, or which is not executed in compliance with mandatory conditions prescribed in the charter or statutes, or which is contrary to a declared policy adopted to protect the public. The notice imputed to all persons dealing with a municipal corporation of the limits of its powers, is in some cases advanced as the reason upon which these rules are based.
“The fact that the other party to the contract has fully performed its part of the agreement, or has expended money in reliance of its validity, does not estop the city from asserting ultra vires, nor is a municipality estopped to aver its incapacity to make a contract because it received benefits under it. That is, it cannot be made liable either on the theory of estoppel or implied contract, where it had no capacity to make the contract or where it was made in express violation of law. 10A McQuillin, Municipal Corporations § 29.104.30 (3d ed. rev. 1990).” (Emphasis added.) Blevins, 251 Kan. at 384.
Based upon Blevins’ holding and rationale, because the City had no authority to approve a letter of intent without prior notice to the Maize school district as required by statute, neither can promissory estoppel afford Genesis relief.
Lastly, Genesis argues that
“[i]f this court were to adopt the lower court’s ruling that the City could not enter into a binding contract to issue IRBs despite the fact that the City has the power and authority to perform that contract, it would preclude all municipalities and counties in Kansas who may wish to enter into such binding agreements from doing so. Such a decision violated Kansas public policy and contradicts the statement of purpose the Kansas legislature wrote into the EDRBA.”
Our holding that failure to meet the statutory notice requirement makes any alleged contract void effectively disposes of Genesis’ final argument. Simply put, we acknowledge that K.S.A. 12-1740 does state the purpose of the Act, e.g., “to promote, simulate and develop the general welfare and economic prosperity of the state of Kansas ... by authorizing all cities and counties of the state to issue revenue bonds.” However, the track to fulfilling that purpose contains procedural, protective hurdles placed by the legislature that must be cleared. See Rauh, 223 Kan. at 521 (noting the Act contains “strong and binding safeguards to protect the public”); see also State ex rel. Ferguson, 188 Kan. at 619 (in declaring original Act constitutional, court acknowledged “ 'a number of restrictions which the legislature must have deemed sufficient to prevent the defendant city from abusing the corporate powers vested in it’ ”).
Finally, as mentioned, the City cross-appeals the district court’s Uncontroverted Fact No. 23 contained in its summary judgment order. We need not reach this issue given our conclusion that summary judgment was properly entered.
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Per Curiam-.
This is an uncontested, original proceeding in discipline filed by the office of the Disciplinary Administrator against Stephen D. Harris, an attorney licensed to practice law in the state of Kansas since April 1993. Harris’ last registration address with the Clerk of the Appellate Courts of Kansas is Topeka, Kansas.
The formal complaint as originally filed alleged Harris violated KRPC 1.1, 1.3, 1.4, 3.4(d), 8.1(b) and 8.4(c).
On June 12, 2007, a hearing on the formal complaint was held before a hearing panel of the Kansas Board for Discipline of Attorneys. Respondent appeared pro se. There were no other appearances. At the outset of the hearing, Respondent stipulated to the facts and rule violations alleged in the formal complaint.
Based upon its findings of fact, the hearing panel concluded as a matter of law that Respondent violated six rules of professional conduct:
KRPC 1.1 (2007 Kan. Ct. R. Annot. 384) (competent representation);
KRPC 1.3 (2007 Kan. Ct. R. Annot. 398) (diligence and promptness);
KRPC 1.4(b) (2007 Kan. Ct. R. Annot. 413) (explain matters to permit client to make informed decisions);
KRPC 3.4(d) (2007 Kan. Ct. R. Annot. 514) (comply with proper discovery request);
KRPC 8.1(b) (2007 Kan. Ct. R. Annot. 553) (cooperate in disciplinaiy investigations); and
KRPC 8.4(c) (2007 Kan. Ct. R. Annot. 559) (conduct involving dishonesty, fraud, deceit or misrepresentation);
and Kansas Supreme Court Rule 207(b) relating to discipline of attorneys (2007 Kan. Ct. R. Annot. 288) (assist the Disciplinary Administrator in investigations). The panel recommended that Respondent be suspended for a period of 3 months from the practice of law in the state of Kansas. Respondent filed no exceptions to the panel’s final hearing report.
The hearing panel made 22 separately numbered findings of fact, by clear and convincing evidence, which are reproduced in narrative form as follows:
DA9672—Complaint of C.G.
Beginning September 1, 2004, pursuant to a rule change, the United States Bankruptcy Court required that all pleadings be filed electronically. In order to file electronic pleadings with the bankruptcy court, an attorney must have a login name and password.
In January 2005, Respondent attempted to file a bankruptcy case, in behalf of a client, using paper pleadings rather than electronic pleadings. The bankruptcy court sent Respondent an order and in the order advised Respondent that petitions and other pleadings must be filed electronically. The court ordered Respondent to attend the required training, pass the examination, and obtain a login name and password within 30 days. Respondent failed to obtain a login name and password within 30 days.
On March 31, 2005, Respondent attempted to file a bankruptcy case in behalf of another client. On April 11, 2005, a bankruptcy judge advised Respondent in writing that he was not permitted to file a bankruptcy case using paper pleadings and that all pleadings must be filed electronically.
In July 2005, C.G. retained Respondent to prepare and file a bankruptcy case in his behalf prior to the change in bankruptcy laws scheduled for October 2005. Respondent informed C.G. that it would take 6 to 8 weeks to file the bankruptcy. C.G. paid Respondent an advanced fee of $800. Despite the fact that Respon dent knew that he did not have a login name and password to enable him to file bankruptcy cases, Respondent agreed to represent C.G.
On September 12, 2005, Respondent spoke with C.G. by telephone. At that time, C.G. informed Respondent that he needed the bankruptcy case to be filed immediately because his two vehicles had been repossessed. During the conversation, C.G. asked Respondent whether Respondent had a login name and password to enable him to file bankruptcy pleadings. Respondent informed C.G. that he had a login name and password. Later, in the same telephone conversation, Respondent informed C.G. that he did not have a login name and password but that he would get one by the end of the week. Still later in the telephone conversation, Respondent assured C.G. that he would obtain a login name and password with sufficient time to file the bankruptcy before the laws changed.
Because Respondent had not filed his bankruptcy, because Respondent did not have a login name and password, and because C.G. believed that Respondent misrepresented his ability to file the bankruptcy case, C.G. terminated Respondent’s representation. C.G. requested that Respondent refund the $800 advanced fee paid to Respondent. Respondent never refunded any of the advanced fee. (Subsequently, C.G. retained new counsel, who was able to prepare and file the bankruptcy case prior to the change in the bankruptcy laws.)
On September 18, 2005, C.G. filed a complaint with the Disciplinary Administrator’s office. Ardith R. Smith-Woertz was appointed to investigate C.G.’s complaint. On October 6, 2005, Ms. Smith-Woertz wrote to Respondent and requested that he call to schedule a meeting. Additionally, Ms. Smith-Woertz directed Respondent to bring his complete file with him at the time of the meeting. Thereafter, Ms. Smith-Woertz met with Respondent, but Respondent failed to bring the complete file with him. In an electronic mail message, Respondent promised to provide Ms. SmithWoertz with a complete copy of the file.
Because Respondent failed to provide a complete copy of the file, on February 9, 2006, Ms. Smith-Woertz again wrote to Respondent. Again, thereafter, Respondent promised to provide the requested file. However, Respondent never provided Ms. SmithWoertz with his file regarding C.G.
DA9892—Complaint of J. S. and K S.
On October 11,2005, Raynor Manufacturing Company filed suit against J.S., K.S., and their company, seeking damages in the amount of $224,000. In November, J.S., K.S., and their company entered into separate fee agreements with Respondent.
On November 4, 2005, J.S. and K.S. retained Respondent to defend them in the suit. Respondent filed a timely answer to the petition.
Thereafter, on November 17, 2005, counsel for plaintiff filed requests for discovery. Despite receiving the requests for discovery on November 18, 2005, Respondent did not file a response to the discovery requests, nor did he request additional time to comply with discoveiy.
Also on November 17, 2005, the court directed the parties to prepare and submit an agreed case management order by December 16, 2005. Counsel for plaintiff attempted to reach Respondent to prepare the case management order. However, counsel for plaintiff was unable to reach Respondent.
On December 13, 2005, just 1 week before the responses were due, Respondent forwarded the requests for discoveiy to J.S. and K.S. In the letter, Respondent did not provide J.S. and K.S. with a time frame within which to provide the documentation, other than stating that he needed the documents “promptly.”
On January 9, 2006, counsel for plaintiff again called Respondent. At that time, counsel for plaintiff told Respondent if he did not hear from Respondent regarding the case management order, counsel for plaintiff would be filing the order without the assistance of Respondent.
Additionally, counsel for plaintiff informed Respondent that Respondent needed to comply with the discovery requests and if he did not provide the responses by a date certain, that counsel for plaintiff would file a motion for summary judgment. Respondent responded, “Do what you have to do.”
On January 17, 2006, counsel for plaintiff filed a motion for summary judgment. Respondent failed to file a response to the motion for summary judgment. On March 14, 2006, the court granted the motion for summary judgment and entered judgment against J.S. and K.S. and their company in the amount of $224,000.
After the court entered judgment against J.S. and K.S. and their company, Respondent failed to inform J.S. or K.S. or their company of the existence of the judgment. On April 24, 2006, J.S. learned of the entry of the judgment by reading a notice that had been posted on the door of her home.
On April 25, 2006, J.S. contacted Respondent, who told J.S. that he knew of the judgment for about 3 weeks and had not informed her because he hoped to file a motion to set aside the judgment. Respondent worked on the motion and a memorandum in support of the motion. However, Respondent had not completed the motion prior to J.S. and K.S. learning of the existence of the judgment.
J.S. and K.S. and their company terminated Respondent’s representation. J.S. and K.S. retained new counsel to seek to have the judgment set aside and determine whether action against Respondent would be warranted.
On April 27, 2006, Respondent filed a motion to set aside the judgment and a memorandum in support of the motion. The court granted the motion and set aside the judgment on November 20, 2006.
Also on April 27, 2006, J.S. and K.S. and their company filed a complaint against Respondent.
Based upon the findings of fact, the hearing panel concluded as a matter of law that Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4(b), KRPC 3.4(d), KRPC 8.1(b), KRPC.8.4(c), and Kansas Supreme Court Rule 207(b). The panel’s conclusions are summarized, as follows:
KRPC 1.1 requires attorneys to provide competent representation to their clients. The rule states that competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Respondent failed to competently represent C.G. when he failed to prepare and electronically file the bankruptcy petition. Additionally, Respondent failed to competently represent J.S. and K.S. and their company when he failed to answer discovery and respond to the motion for summary judgment. Accordingly, the hearing panel concluded that Respondent violated KRPC 1.1.
KRPC 1.3 requires attorneys to act with reasonable diligence and promptness in representing their clients. In this case, Respondent failed to provide diligent representation to C.G. when he failed to prepare and electronically file the bankruptcy petition. Respondent failed to diligently represent J.S. and K.S. and their company when he failed to respond to discovery, when he failed to assist in preparing the case management order, and when he failed to respond to the motion for summary judgment. Because Respondent failed to act with reasonable diligence and promptness in representing C.G. and J.S. and K.S. and their company, the hearing panel concluded that Respondent violated KRPC 1.3.
KRPC 1.4(b) requires attorneys to explain matters to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. In this case, Respondent violated KRPC 1.4(b) when he failed to inform J.S. and K.S. that he had failed to respond to a motion for summary judgment and that the court had entered a judgment in the amount of $224,000 against them. Accordingly, the hearing panel concluded that Respondent violated KRPC 1.4(b).
KRPC 3.4(d) requires attorneys to be fair to the opposing party and counsel. Specifically, “[a] lawyer shall not . . . in pretrial procedure, . . . fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party.” In the case of J.S. and K.S., Respondent failed to provide responses to discovery as requested by counsel for plaintiff. As such, the hearing panel concluded that Respondent violated KRPC 3.4(d).
KRPC 8.1(b) requires attorneys to cooperate in disciplinary investigations and specifically provides that “a lawyer in connection with a . . . disciplinary matter, shall not . . . knowingly fail to respond to a lawful demand for information from [a] disciplinary authority.” Respondent failed to provide his complete file to Ms. Smith-Woertz as he had been repeatedly directed to do. Therefore, the hearing panel concluded that Respondent failed to cooperate in this investigation in violation of KRPC 8.1(b).
KRPC 8.4(c) states: “It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Respondent engaged in conduct that involved dishonesty when he falsely told C.G. that he had a login name and password. Additionally, Respondent engaged in conduct that involved a misrepresentation when he failed to inform J.S. and K.S. that a judgment in the amount of $224,000 had been entered against them and their company. As a result, the hearing panel concluded that Respondent violated KRPC 8.4(c).
The hearing panel also concluded that Respondent violated Kansas Supreme Court Rule 207(b), which requires “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.” Respondent had failed to provide his complete file on C.G. to Ms. Smith-Woertz as he had been repeatedly directed to do.
In making its recommendation for discipline, the hearing panel considered the following factors based on the American Bar Association Standards for Imposing Lawyer Sanctions, stating:
“Duty Violated. The Respondent violated his duty to his clients to provide competent and diligent representation and adequate communication. Additionally, the Respondent violated his duty to the legal profession to cooperate in disciplinary investigations. Finally, the Respondent violated his duty to the legal system to comply with court rules and orders.
“Mental State. The Respondent knowingly violated his duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to [J.S.] and [K.S.] and their company. [J.S.] testified that she believed that her credit rating had been substantially affected negatively by the entry of the judgment which resulted from the Respondent’s misconduct. Additionally, the Respondent caused potential injuiy to [C.G.]”
The hearing panel found the following aggravating factors present:
“Prior Disciplinary Offenses. On April 11,1995, the Disciplinaiy Administrator informally admonished the Respondent for violating KRPC 1.15 [1995 Kan. Ct. R. Annot. 294] and KRPC 7.1 [1995 Kan. Ct. R. Annot. 332],
“Dishonest or Selfish Motive. The Respondent’s misconduct regarding [C.G.] included dishonest conduct—he told [C.G.] that he had a login name and password when he did not. During the disciplinaiy investigation of [C.G.’s] complaint, the Respondent engaged in additional dishonest conduct. The Respondent informed the investigator that he had his login name and password at a time when he did not.
“The Respondent’s misconduct regarding [K.S.] and [J.S.] and their company included dishonest and selfish conduct—he attempted to prepare and file a motion to set aside the judgment before informing [them] of the $224,000 judgment entered against them and their company.
“Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4(b), KRPC 3.4(d), KRPC 8.1(b), and KRPC 8.4(c). As such, the Respondent committed multiple offenses involving multiple persons.
“Submission of False Evidence, False Statements, or Other Deceptive Practices During the Disciplinary Process. In his written response to [C.G.’s] complaint, the Respondent provided false information. Specifically, the following statements were false:
‘Factually, I did have my P.I.N., and I had it since the fall of 2004.1 received my P.I.N. after I . . . attended Court prepared and sponsored training, at the Court, for Electronic case filing (ECF).’
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1993. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for a period of 11 years. Accordingly, the hearing panel concluded that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct.
“Indifference to Making Restitution. To date, the Respondent has made no effort to make restitution to [C.G.] for the unearned advanced fee.”
The hearing panel found the following mitigating factors present:
“Timely Good Faith Effort to Make Restitution or to Rectify the Consequences of the Misconduct. While the Respondent failed to malee any effort to make restitution to [C.G.], he did make a good faith effort to set aside the judgment entered against [J.S.] and [K.S.] and their company. However, the Respondent’s effort to rectify the consequences of his misconduct was not timely.
“The Present and Past Attitude of the Attorney as Shown by the Respondent’s Cooperation During the Hearing and the Respondent’s Acknowledgment of the Transgressions. With the exception of fading to provide Ms. Smith-Woertz a copy of the complete file regarding [C.G.], the Respondent did cooperate in the investigation and during the hearing.
“Previous Good Character and Reputation in the Community Including any Letters from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent is an active and productive member of the bar in Topeka, Kansas. He enjoys the respect of his peers and clients and generally possesses a good character and reputation.
“Physical Disability. During January and February 2006, tíre Respondent and his family suffered a respiratory illness which interfered with his ability to represent his clients.
“Remorse. At the hearing on the Formal Complaint, the Respondent expressed genuine remorse.
“Remoteness of Prior Offenses. The discipline imposed in 1995 is remote in time and in character to the misconduct in this case.”
The hearing panel considered the following Standards:
Standard 4.42:
“Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.”
Standard 4.62:
“Suspension is generally appropriate when a lawyer knowingly deceives a client, and causes injury or potential injury to the client.”
The panel unanimously recommended that Respondent be suspended for a period of 3 months from the practice of law in the state of Kansas. The hearing panel further recommended that Respondent, prior to appearing before this court, pay $800 to C.G.’s bankruptcy trustee. We do note that just prior to appearing before this court, Respondent did provide proof of his having paid $800 to C.G.’s bankruptcy trustee.
We adopt the hearing panel’s findings of fact and its conclusions of law. Further, we agree with the panel’s recommended discipline of suspension for a period of 3 months from the practice of law in the state of Kansas, although a minority of the court would impose a longer suspension.
It Is Therefore Ordered that Stephen D. Harris be and he is hereby suspended from the practice of law in the state of Kansas for a period of 3 months from the date of this opinion, in accordance with Supreme Court Rule 203(b) (2007 Kan. Ct. R. Amnot. 261) for violations of KRPC 1.1, KRPC 1.3, KRPC 1.4(b), KRPC 3.4(d), KRPC 8.1(b), KRPC 8.4(c), and Kansas Supreme Court Rule 207(b).
It Is Further Ordered that the costs of these proceedings be assessed to Respondent and that this order be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Davis, J.:
Jesus E. Ruiz-Reyes, Jr., was convicted of one count of possession of cocaine with fhe intent to distribute under K.S.A. 65-4161(a). At sentencing, the court determined that the defendant’s conviction should be enhanced to a severity level 2 drug felony under K.S.A. 65-4161 (b) based upon a prior drug conviction that did not become final until after the defendant committed the conduct that led to the conviction that underlies this appeal. The Court of Appeals reversed and remanded for resentencing, holding that the severity level of the defendant’s current offense could not be enhanced under K.S.A. 65-4161(b) based on a prior conviction not finalized until after the current offense was committed. State v. Ruiz-Reyes, 37 Kan. App. 2d 75, 80, 149 P.3d 521 (2007). We granted the State’s petition for review in order to resolve this question and now affirm the decision of the Court of Appeals.
Facts
On December 5,2000, Ruiz-Reyes was arrested in Reno County and charged with possession of methamphetamine with the intent to sell; possession of cocaine with the intent to sell; possession of methamphetamine without tax stamps affixed; possession of cocaine without tax stamps affixed; and obstructing official duty. The charge of possession of methamphetamine with intent to sell was reduced to possession of methamphetamine at preliminaiy hear ing, and the defendant was bound over for trial on the reduced charge as well as all other charges.
On April 8, 2004, the Reno County District Court granted Ruiz-Reyes an indefinite continuance in this case to await the resolution of other drug charges pending against the defendant in Butler County, Ellis County, and Ford County. On April 15, 2004, based upon his plea of guilty, the defendant was convicted in Ford County of possession of methamphetamine with the intent to sell and was sentenced for this conviction on June 11, 2004.
The State subsequently amended the Reno County complaint to designate the charge against Ruiz-Reyes for possession of cocaine with the intent to sell as a severity level 2 drug felony, based upon the April 15, 2004, Ford County conviction. The defendant pled guilty to and was convicted of this charge on June 10, 2005, but objected to the enhancement of his crime of conviction to a severity level 2 drug felony. The defendant argued that his Reno County conviction for possession of cocaine with the intent to sell, ordinarily a severity level 3 drug crime, could not be enhanced to a severity level 2 crime based on a Ford County conviction that did not exist at the time that he committed the current offense in December 2000.
The district court rejected the defendant’s argument and sentenced him for a severity level 2 drug offense in accordance with K.S.A. 65-4161(b), with a drug criminal history of category F based on his other drug felony convictions in Ellis County and Ford County.
The Court of Appeals, however, agreed with the defendant that K.S.A. 65-4161(b) only authorizes a severity level enhancement for convictions that exist at the time that an offense is committed. The court therefore reversed his sentence for the severity level 2 conviction of possession of cocaine with the intent to sell and remanded for resentencing. Ruiz-Reyes, 37 Kan. App. 2d at 80.
In its petition for review and argument before us, the State claims that the decision of the Court of Appeals interpreting K.S.A. 65-4161(b) is improper because it “ignores the statutory definition of prior conviction as defined in K.S.A. 21-4710(a), and requires multiple definitions for the same statutory sentencing phrase.” The State also asserts that the Court of Appeals’ ruling effectively adopts the analysis of habitual criminal statutes that was employed under the Kansas Habitual Criminal Act (HCA), K.S.A. 21-4504, and the reasoning of State v. Wilson, 6 Kan. App. 2d 302, 627 P.2d 1185, affd 230 Kan. 287, 634 P.2d 1078 (1981).
We granted the State’s petition for review in order to clarify the interpretation of severity level enhancements contained in K.S.A. 65-4161(b).
Standard of Review
Resolution of this case turns on this court’s interpretation of K.S.A. 65-4161. Our standard of review is unlimited in a case involving the interpretation of a statute. State o. Snow, 282 Kan. 323, 340, 144 P.3d 729 (2006).
“When we are called upon to interpret a statute, we first attempt to give effect to tire intent of the legislature as expressed through the language enacted. When a statute is plain and unambiguous, [as it is in this case,] we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it [or to exclude language that is found in it].” In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007).
In such cases we do not resort to statutory construction, but rather we resolve the question raised by application of the plain language of the statute.
For this reason, this court has emphasized that when interpreting statutes, “[ordinary words are given their ordinary meanings. A statute should not be read to add language that is not found in it or to exclude language that is found in it.” State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). “It is only if the statute’s language or text is unclear or ambiguous that we move to the next analytical step, applying canons of construction or relying on legislative history construing the statute to effect the legislature’s intent.” In re K.M.H., 285 Kan. at 79.
K.S.A. 65-4161
K.S.A. 65-4161 provides in relevant part:
“(a) Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to sell, offer for sale or have in such person’s possession with intent to sell, deliver or distribute; prescribe; administer; deliver; distribute; or dispense any opiates, opium or narcotic drugs, or any stimulant designated in subsection (d)(1), (d)(3) or (f)(1) of K.S.A. 65-4107 and amendments thereto. Except as provided in subsections (b), (c) and (d), any person who violates this subsection shall be guilty of a drug severity level 3 felony.
“(b) If any person who violates this section has one prior conviction under this section or a conviction for a substantially similar offense from another jurisdiction, then that person shall be guilty of a drug severity level 2 felony.
“(c) If any person who violates this section has two or more prior convictions under this section or substantially similar offenses under the laws of another jurisdiction, then such person shall be guilty of a drug severity level 1 felony.” (Emphasis added.)
See K.S.A. 2006 Supp. 65-4161(a), (b), and (c) (language is same).
Application of the plain language of K.S.A. 65-4161(a) and (b) to the facts of this case yields the following results: Ruiz-Reyes is a person who violated K.S.A. 65-4161(a) by reason of his June 10, 2005, Reno County conviction for possession of cocaine with intent to distribute. However, at the time the defendant committed the offense that led to the Reno County conviction in 2000, he did not have “one prior conviction under this section,” as he was not convicted in Ford County of possession of methamphetamine with intent to sell until 2004. See K.S.A. 65-4161(b). The inescapable conclusion is that Ruiz-Reyes did not “ha[ve]” his 2004 conviction when he “violate[d]” K.S.A. 65-4161 in Reno County in 2000. Therefore, the defendant’s conduct does not comport with the plain language of K.S.A. 65-4161(b), and he could not be “guilty of a drug severity level 2 felony” under the statute.
On this same date, we file our opinion in State v. Paul, 285 Kan. 658, 175 P.3d 840 (2008), where we similarly consider the enhancement provisions of K.S.A. 2006 Supp. 65-4161(c) (language same as in K.S.A. 65-4161[c]). In both Paul and the current case, we base our decisions on the plain language of the applicable statute. In doing so, we emphasize that contrary to the State’s assertion in its petition for review in this case, our decisions in Paul and in the current case are not influenced by the sequential conviction requirements described in Wilson, 6 Kan. App. 2d 302. This previous sequential requirement was based on this court’s interpretation of the Habitual Criminal Act, K.S.A. 21-4504, which has no bearing on the plain language of K.S.A. 65-4161. Furthermore, as we note in Paul, when the Kansas Legislature adopted the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., in 1992, it explicitly superseded the previous sentencing scheme, stating that the HCA “shall not be applicable to . . . any felony committed on or after July 1,1993.” K.S.A. 21-4504(e)(3); see L. 1992, ch. 239, sec. 235; Paul, 285 Kan. at 665.
We note in Paul and reiterate here that there were sound reasons for the Kansas courts’ interpretation of the HCA prior to the adoption of the KSGA, not the least of which involved a recognition of judicial expressions of the purpose, objective, and philosophy of our habitual criminal statute. However, the purposes, objectives, and philosophy of criminal sentencing in Kansas have been radically altered with the enactment of the KSGA. We now look to those guidelines for resolution of sentencing questions, not to judicial expressions of historical sentencing philosophy. Paul, 285 Kan. at 665. The interpretations of the HCA have no place in our interpretation of the KSGA or the provisions of K.S.A. 65-4161.
In Paul, we find that the KSGÁ does include a definition of “prior conviction” in K.S.A. 21-4710(a). 285 Kan. at 666. Although that statute concerns a defendant’s criminal history, the general definition of “prior conviction” contained in that section makes no reference to criminal history. Prior conviction is defined as
“any conviction, other than another count in the current case which was brought in the same information or complaint or which was joined for trial with other counts in the current case pursuant to K.S.A. 22-3203 and amendments thereto, which occurred prior to sentencing in the current case regardless of whether the offense that led to the prior conviction occurred before or after the current offense or the conviction in the current case.” (Emphasis added.) K.S.A. 21-4710(a).
We concluded in Paul that for offenses committed on or after July 1, 1993—and thus subject to the KSGA and not the HCA— the definition of “prior conviction” included in the KSGA in the context of criminal history also applies to determination of an offense’s criminal severity level unless the legislature specifically indicates a contrary intent. Under this reasoning, we held that Paul’s two 1999 drug convictions could be used to enhance his current conviction (based on conduct committed in 2004) to a severity level 1 drug felony under K.S.A. 2006 Supp. 65-4161(c), even though such enhancement would not have been permitted under the HCA, because nothing in the plain language of K.S.A. 2006 Supp. 65-4161(c) indicated a legislative intention to the contrary. Paul, 285 Kan. at 670-71.
In this case, however, the legislature has specifically indicated a contrary intent. While it is true that Ruiz-Reyes’ conviction in Ford County on April 15, 2004, is a prior conviction as that term is defined in K.S.A. 21-4710(a), the resolution of this case is governed by the plain language of K.S.A. 65-4161(b). That statute specifically provides that “[i]f any person who violates this section has one prior conviction under this section . . . then that person shall be guilty of a drug severity level 2 felony.” (Emphasis added.) K.S.A. 65-4161(b). At the time in 2000 when Ruiz-Reyes violated K.S.A. 65-4161(a) by possessing cocaine with intent to distribute, he did not have one prior conviction under this section. His Ford County conviction did not take place until 2004, some 3% years later. Thus, according to the plain language of K.S.A. 65-4161(b), Ruiz-Reyes’ conviction for sale of cocaine with intent to distribute could not be a severity level 2 drug offense under the statute. The Court of Appeals correctly reversed the district court’s contrary determination and remanded for resentencing.
The State argues that because this interpretation of K.S.A. 65-4161, which was also the interpretation applied by the Court of Appeals, results in a different definition of prior conviction than that contained in K.S.A. 21-4710(a), it does not provide workable harmony among the statutes subject to the KSGA. While it is true that courts generally seek to interpret statutes in such a way that related provisions are “reconcil[ed] and [brought] into workable harmony,” see Petty v. City of El Dorado, 270 Kan. 847, 852, 19 P.3d 167 (2001), it is important to note that the specific distinction in this case between the definitions of prior conviction in K.S.A. 65-4161 and K.S.A. 21-4710(a) was drawn by the legislature, not the courts. No resort to canons of construction is necessary to determine the meaning of the language used. See In re K.M.H., 285 Kan. at 79. As the above discussion illustrates, the plain language of K.S.A. 65-4161(b) provides that convictions obtained after a de fend ant’s violation of that section are not used to enhance the defendant’s current crime of conviction.
Conclusion
K.S.A. 65-4161, a self-contained habitual criminal statute, sets forth the conditions under which the criminal severity level of a conviction obtained under that section will be enhanced at sentencing. The plain language of K.S.A. 65-4161(a) and (b) “contemplates a violation committed by an individual who ‘has’ at least one prior conviction at the time the individual ‘violates’ the law.” Ruiz-Reyes, 37 Kan. App. 2d at 79. Because the defendant did not have a prior drug conviction at the time he violated K.S.A. 65-4161(a), his subsequent drug conviction could not enhance the criminal severity level of his current conviction under the provisions of K.S.A. 65-4161(b).
Based upon die plain language of the statute, we affirm the decision of the Court of Appeals reversing the district court. We need not address the other arguments advanced by the State, for those arguments have been fully answered in our decision in Paul.
The judgment of the Court of Appeals reversing the district court is affirmed; the district court is reversed, and the case is remanded for resentencing.
Johnson, J., not participating.
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The opinion of the court was delivered by
Luckert, J.:
When sentencing Alexis E. Blackmon for unintentional second-degree murder, the sentencing court imposed a downward durational departure sentence equivalent to the presumptive sentence for involuntary manslaughter. The sentencing court justified the departure on a finding that the facts of the case do not “rise to the level of the manifest indifference to the value of human life required by the second-degree murder statute,” K.S.A. 21-3402(b). The State appealed, presenting the issue of whether a sentencing judge’s disagreement with the jury verdict is a substantial and compelling reason for departure. The Court of Appeals determined it was not and reversed and remanded for resentencing. State v. Blackmon, No. 95,696, unpublished decision filed February 9, 2007.
Blackmon seeks a reversal of the Court of Appeals’ holding and alternatively suggests that if the articulated reason is not sufficient to support departure we should affirm the departure sentence because at least three statutory departure factors “can be gleaned from the departure motion and arguments at sentencing” and these reasons can be inferred from the sentencing court’s reference to “one stab wound to the body of the victim in this case under circumstances described” by Blackmon.
We affirm the Court of Appeals’ holding that the sentencing court’s disagreement with the jury’s verdict is not a substantial and compelling reason for departure; the purpose of the departure procedure is not to substitute the court’s judgment for the jury’s verdict. Additionally, because the sentencing court is required to state the reasons for departure on the record and the sentencing court referenced no other basis for departure, we decline Blackmon’s invitation to glean other departure factors from the evidence or the sentencing court’s vague reference to the circumstances described by Blackmon.
These conclusions lead to the question of whether Blackmon’s departure motion is doomed or upon remand can the sentencing court elucidate its vague statement regarding the circumstances of the case and, if it deems appropriate, adopt one or more of the departure factors argued? We conclude the departure motion can still be considered upon remand. With regard to two other issues raised, we reject Blackmon’s arguments that the State failed to meet its burden of establishing a sufficient record for appeal and determine that the issue of whether the length of departure was excessive is not before us.
Facts
The record before us presents limited facts about the underlying crime. The record on appeal consists of a transcript of the hearing on Blackmon’s motion for new trial; a transcript of the sentencing proceeding; and the court file, which includes the written jury instructions, the motion for new trial, and the motion for departure sentence. Neither the State nor Blackmon provided a trial transcript in the record on appeal.
From this limited record, we can discern that Blackmon was charged with committing the intentional second-degree murder of Corey Smith on May 14, 2005. According to Blackmon’s motion for a new trial, Blackmon did not deny involvement in the stabbing death of Smith. Apparently, she testified at her trial that she was being beaten by Smith immediately before she stabbed him. Blackmon went into the kitchen to get a knife to scare Smith, and Smith followed her, trapping Blackmon against a wall by the refrigerator. During the encounter, according to Blackmon’s account, Smith ran into the knife held by Blackmon and later died from his wound. The motion for new trial also suggests that Blackmon did not know Smith had been stabbed until Blackmon saw blood on the blade of the knife, which she had dropped.
In addition to offering these facts in her motion for a new trial, Blackmon argued that even though the jury found her guilty of the lesser included offense of unintentional second-degree murder that verdict was not supported by the evidence because her actions did not show extreme indifference to human life as required by the elements of unintentional second-degree murder. She asserted that the jury must have been confused by the differing degrees of recklessness required for unintentional second-degree murder versus some of the other lesser included offenses on which the jury had been instructed, including voluntary manslaughter and reckless involuntary manslaughter. To further support her argument, she pointed to questions asked by the jury during deliberations. According to comments made by the prosecutor at the sentencing hearing, the jury had requested clarification regarding the difference between unintentional second-degree murder and involuntary manslaughter. Although we do not have a record of the instruction given in response to the question, the trial court apparently advised that unintentional second-degree murder required a higher degree of recklessness—that which rose to the level of showing extreme indifference to the value of human life.
The trial court denied Blackmon’s motion for a new trial. The judge stated that while a verdict of unintentional second-degree murder was not the verdict “this Court would have reached if I had been the trier of fact,” there was sufficient evidence to support the jury’s verdict. Noting that it was required to view the verdict in the light most favorable to the State, the trial court found a reasonable jury could have reached a verdict of unintentional second-degree murder based on the evidence presented. The court suggested, however, that Blackmon repeat the same arguments at sentencing because such arguments would likely be more helpful there.
Blackmon subsequently filed a motion for a downward durational departure sentence. In her motion, she argued that the State failed to show evidence of anything but self-defense and pointed out that she has no prior felony record. Also, Blackmon asserted that she was soon expecting a baby fathered by Smith. She further reiterated her arguments about jury confusion relating to the degree of recklessness shown and again argued that involuntaiy manslaughter or even voluntary manslaughter more closely fit this case in that the crime involved a sudden quarrel or arose in the heat of passion.
Over the State’s objection, the sentencing court granted Blackmon’s motion, departing from a presumptive sentence of 131 months’ imprisonment to a sentence of 38 months—the presumptive sentence for involuntary manslaughter. In so ruling, the court made limited findings, stating:
“[I]t’s this Court’s opinion that the level of recklessness required for a sentence under the second degree unintentional statute was not met in this particular case. We have . . . one stab wound to the body of the victim in this case under circumstances described by the only other witness to the assault that, in this Court’s opinion, factually does not rise to the level of the manifest indifference to the value of human life required by the second-degree murder statute.”
The sentencing court found “that’s a substantial and compelling mitigating factor in this case” and sentenced Blackmon to the maximum she would have received for an involuntary manslaughter conviction.
The State appealed to the Court of Appeals, arguing that the sentencing court’s reasons for imposing a downward durational departure were not supported in die record. The State specifically focused on the court’s prior rulings on jury instructions and on Blackmon’s motion for a new trial, contending those were inconsistent with the court’s decision at sentencing.
Considering these arguments, the Court of Appeals concluded that disagreement with a jury’s verdict is not a substantial and compelling reason for imposing a departure sentence; only the actual statements by the court on the record at sentencing can be con sidered on appeal; and, therefore, despite several arguably valid reasons for departure that could be inferred from the limited record, the sentence should be reversed and the case remanded for resentencing.
In light of its holding, the Court of Appeals did not reach the issue of whether the extent of the downward durational departure was an abuse of discretion.
This court granted Blackmon’s petition for review. See K.S.A. 20-30I8(b); K.S.A. 60-2101(b).
Analysis
Issue 1: A Substantial and Compelling ReasonP
First, Blackmon argues that the Court of Appeals erred in determining that the sentencing court failed to state substantial and compelling reasons for granting her motion for a downward durational departure sentence.
A. Standard of Review
Upon a challenge to a departure sentence, an appellate court applies a mixed standard of review. Generally, a reviewing court first examines the record to see whether there is substantial competent evidence in support of the sentencing court’s articulated reasons for granting a departure. The appellate court then determines, as a matter of law, whether the sentencing court’s reasons for departure are substantial and compelling reasons justifying a deviation from the presumptive sentence defined by the legislature. See K.S.A. 2006 Supp. 21-4716(a); K.S.A. 21-4721(d); State v. Martin, 279 Kan. 623, 625-26, 112 P.3d 192 (2005); State v. Murphy, 270 Kan. 804, 806, 19 P.3d 80 (2001). To be substantial the reason must be real, not imagined, and of substance, not ephemeral. To be compelling the reason must be one which forces the court, by the facts of the case, to abandon the status quo and to venture beyond the sentence that it would ordinarily impose. State v. McKay, 271 Kan. 725, 728, 26 P.3d 58 (2001).
B. General Rules of Law
K.S.A. 2006 Supp. 21-4716(c) contains a nonexclusive list of substantial and compelling departure factors, such as the victim was an aggressor or a participant in the crime, the offender played a passive or minor role or participated under duress, the defendant suffered a pattern of physical abuse by the victim and the offense was a response, and the degree of harm attributed to the crime of conviction was significantly less than typical for that offense. Sentencing courts may consider other, nonstatutory factors when imposing a departure sentence as long as there is evidence in the record to support such factors and the use of the factors would be consistent with the intent and purposes of the sentencing guidelines. State v. Tiffany, 267 Kan. 495, 506, 986 P.2d 1064 (1999); see State v. Favela, 259 Kan. 215, 233-34, 911 P.2d 792 (1996) (discussing objectives of the Kansas Sentencing Guidelines Act and concluding those goals provide guidance in determining whether reasons justifying departure are substantial and compelling).
As long as one factor relied upon by the sentencing court is substantial and compelling, the departure sentence should be upheld. State v. Rodriguez, 269 Kan. 633, 646, 8 P.3d 712 (2000). Each factor standing alone, however, need not be sufficient to justify the departure if the reasons taken collectively constitute a substantial and compelling basis for departure. State v. Ussery, 34 Kan. App. 2d 250, 253, 116 P.3d 735, rev. denied 280 Kan. 991 (2005) (citing State v. Minor, 268 Kan. 292, 311, 997 P.2d 648 [2000]).
C. State v. Favela
In reversing the sentencing court’s decision to issue a departure sentence, the Court of Appeals relied on Favela, 259 Kan. 215. There, the defendant had witnessed his brother being stabbed by Willard LaGrange. After taking his brother to the hospital, the defendant returned to the scene of the stabbing and brandished a gun, threatening to kill LaGrange but not pointing his gun at any person. Eventually, he surrendered to the police without firing a shot. He pled no contest to attempted second-degree murder, which with a criminal history of H carried a presumptive prison sentence of 51 to 59 months, with postrelease supervision of 24 months.
The defendant filed a motion for departure from the presumptive sentence, listing six mitigating circumstances which he con tended justified departure. The sentencing court, finding that the crime committed was more like an aggravated assault, granted both a durational and dispositional departure. The defendant was sentenced to a reduced prison term of 14 months, the term of imprisonment was suspended, and the defendant was placed on probation for a term of 36 months during which the defendant was to be supervised by community corrections.
In Favela, the Court of Appeals concluded that “the sentencing court’s reasoning that the defendant was over-charged is not a substantial and compelling reason to depart.” State v. Favela, 21 Kan. App. 2d 202, 212, 898 P.2d 1165 (1995), rev’d 259 Kan. 215, 911 P.2d 792 (1996). On petition for review, this court reversed the Court of Appeals’ decision to vacate and remand for resentencing. The Favela court noted that the sentencing court specifically based the departure on other factors—the degree of harm associated with the crime was less than typical and the victim was an aggressor or participant in the underlying altercation. Also, the sentencing court adopted the mitigating factors set out in the defendant’s motion for departure as justifications, such as age, immaturity, and lack of a serious prior record. See 259 Kan. at 222-26, 234-39.
The Favela court further rejected the State’s contention that this type of sentence departure violated separation of powers by negating the prosecutor’s decision to prosecute the defendant for attempted second-degree murder:
“[T]he [sentencing] court here accepted the defendant’s plea of no contest for attempted second-degree murder, thereby acknowledging that the county attorney has the right to determine what crime a defendant is charged with. The court did not attempt to dismiss or amend the defendant’s charge as the court in [State v.] Williamson[, 253 Kan. 163, 853 P.2d 56 (1993),] did. The sentencing court merely exercised its power of sentencing under K.S.A. 1994 Supp. 21-4716, which grants the sentencing judge the right to depart from a presumptive sentence.” 259 Kan. at 222.
The Favela court found that, after determining there were substantial and compelling reasons to depart, the sentencing court viewed the penalty for aggravated assault and determined that a similar sentence would be appropriate. Although the sentencing court “might have chosen different words that would have made its intention more clear,” the Favela court’s examination of the record showed that the judge was merely explaining why he chose the particular sentence and was not usurping the prosecutor’s power. 259 Kan. at 224.
Under the circumstances and after considering the mitigating factors in favor of departing from the presumptive sentence, the Favela court upheld the defendant’s departure sentence. 259 Kan. at 244.
D. Lack of Recklessness
In the present case, the Court of Appeals panel distinguished Favela. Unlike the situation in Favela where the sentencing court enunciated factors in addition to a belief that the defendant had been overcharged, here the Court of Appeals panel concluded the “only basis for the sentencing court’s downward departure was the court’s personal opinion the jury should have convicted the defendant of involuntary manslaughter and not second-degree unintentional murder.” Blackmon, slip op. at 8. The Court of Appeals panel concluded this “personal disagreement” was not a substantial and compelling reason for the downward durational departure sentence and stated that “[i]f the evidence here was insufficient to support the factfinders’ verdict of guilty of second-degree unintentional murder, the district court should have instructed the jury otherwise or entered a directed verdict.” Slip op. at 8.
We disagree with the Court of Appeals panel’s characterization of the sentencing court’s comments as a finding of insufficient evidence. At the hearing on a motion for a new trial, the trial court specifically gave deference to the jury as finder of fact. The trial judge, who was also the sentencing judge, found there was sufficient evidence to support the verdict, stating: “I can’t fault [the jury] . . . because I think circumstantially the evidence existed.” As in Favela, the sentencing court attempted to neither dismiss nor amend Blackmon’s charge.
This conclusion does not resolve the question of whether a sentencing court can rely on a form of recklessness with less culpability than the recklessness required for the crime of conviction as a factor to justify imposing a downward departure sentence, an issue which requires our de novo review. Blackmon argues that as a matter of public policy this should be recognized as a nonstatutory departure factor.
Reason defies Blackmon s contention because the presumptive sentence is based on the crime of conviction—unintentional second-degree murder—and the level of intent or recklessness distinguishes the various lesser included offenses. The mere fact that a sentencing judge weighs the evidence regarding an element of the crime of conviction differently than did the jury is not a substantial and compelling reason for departure. To hold otherwise would allow the judge to become a “super juror,” replacing the collective judgment of the jury with the judge’s personal evaluation of the evidence. This substitution of judgment would erode the function of a jury in the trial, which is to determine whether the State has proven the elements of the crime beyond a reasonable doubt. Further, Favela did not suggest that a judge could reduce a sentence because of the judge’s disagreement with either the charging decision or the jury verdict. Rather, the rationale of Favela was that the sentencing court could and did make findings based upon substantial and compelling departure factors other than the judge’s conclusion that a different offense more appropriately fit the facts than did the crime of conviction.
E. Other Factors
Seizing upon this distinction, Blackmon argues the findings are not so much in disagreement with the jury verdict as they are overgeneralized statements that imply several statutory and nonstatutory factors for departure. According to Blackmon, the sentencing court’s stated departure factor—that the victim had but one stab wound inflicted “under the circumstances described by the only other witness to the assault, that factually does not rise to the level of manifest indifference to the value of human life” required by the second-degree murder statute—indirectly incorporates at least three statutory factors: (1) Blackmon played a minor or passive role in the crime and was under duress at the time; (2) Blackmon suffered a pattern of physical abuse and the offense was a response to that abuse; and (3) Smith, the victim, was the aggressor.
This argument fails, however, because the possibility that a sentencing court could have relied on departure factors other than those stated on the record at the time of sentencing does not provide an appellate court the basis to uphold the sentence even if the record establishes there were substantial and compelling reasons for departure that were not noted by the sentencing court. Rather, “[i]f the sentencing judge departs from the presumptive sentence, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure.” (Emphasis added.) K.S.A. 2006 Supp. 21-4716(a). In addition to stating the basis for departure, “the court shall make findings of fact as to the reasons for departure . . . .” K.S.A. 2006 Supp. 21-4718(a)(4). Under the mandate of these provisions, the court’s findings at the time of sentencing govern as to the reasons for departure. Murphy, 270 Kan. at 806; State v. Whitesell, 270 Kan. 259, 294, 13 P.3d 887 (2000); State v. Gideon, 257 Kan. 591, Syl. ¶ 21, 894 P.2d 850 (1995). “ ‘An appellate court reviewing a sentencing court’s reasons for departure will not conduct a broader search of the record to examine all facts available to the sentencing court to determine whether there were substantial and compelling reasons for departure.’ [Citation omitted.]” State v. Salcido-Corral, 262 Kan. 392, 415, 940 P.2d 11 (1997).
This court has stated that extensive factual findings are not required where there is sufficient evidence to support the finding of instigation and participation by the victim as a substantial and compelling reason for departure. See Minor, 268 Kan. at 311 (rape case). In this case, however, the victim as aggressor is at most implied by the sentencing court’s conclusion, it is not specifically stated. A similar situation was addressed in State v. Sampsel, 268 Kan. 264, 997 P.2d 664 (2000). The 14-year-old victim participated with the 19-year-old defendant in committing the aggravated indecent liberties with a child crime through sexual intercourse. The sentencing court had heard all the testimony at trial. At the sentencing hearing, the court granted the defendant’s motion for a downward departure sentence without stating specific reasons for doing so. But the journal entiy of judgment entered on the day of sentencing gave the following reasons for the departure: “Duration departure, because of victim behavior, her consent to participate, other activity along this line. Victim was a participant in this matter.” 268 Kan. at 275.
One of the arguments asserted by the State on appeal in Sampsel was that the sentencing court failed to state facts that supported substantial and compelling reasons for departure. The defendant countered that evidence of victim participation was clearly shown. Referencing Favela, the Sampsel court stated the factors upon which the departure was based in Sampsel’s case were those enumerated in K.S.A. 1998 Supp. 21-4716(b)(l)(A) (victim participation) and K.S.A. 1998 Supp. 21-4716(b)(l)(E) (degree of harm or loss attributed to crime was significantly less than typical). 268 Kan. at 280.
The Sampsel court found evidence in the record, based on one witness’ testimony and the defendant’s self-serving statements, to affirm with regard to the substantial and compelling factor of victim participation. 268 Kan. at 281. With regard to the defendant’s other claimed reason for departure, significantly less degree of harm, this court found the evidence was clearly mixed. The court stated there was “no wording in the trial court’s findings or written reasons that can be relied upon to uphold application of this statutory provision.” 268 Kan. at 281.
In the present case, the journal entry states: “Defendant’s motion for downward durational departure is argued and granted for the reasons set out on the record herein.” Thus, we have no more clarification from the journal entry and no stated reasons for departure other than the trial court’s disagreement with the jury verdict.
F. Remand to Cite Reasons for Departure
This analysis raises the question of whether upon remand it is appropriate for the sentencing court to clarify the reasons for departure or whether the initial failure dooms Blackmon’s departure motion. Kansas precedent shows that remand for clarification of departure reasons has been allowed with respect to upward departures.
In State v. Peterson, 25 Kan. App. 2d 354, Syl. ¶ 2, 964 P.2d 695, rev. denied 266 Kan. 1114 (1998), the Court of Appeals held, as matter of first impression, when the sentencing court fails to meet the requirements for the imposition of a departure sentence, on remand the sentencing court may cite appropriate reasons justifying the imposition of a departure sentence and impose such a sentence subject to the usual review process. In reaching this holding, the Court of Appeals panel rejected Peterson’s argument that the sentencing court’s failure to give substantial and compelling reasons to depart at the original sentencing hearing should mean that on remand the sentencing court was allowed to sentence him only within the presumptive sentencing range. The panel noted: “Peterson cites no statutory or case law authority to support his contentions. We believe there is none.” 25 Kan. App. 2d at 357.
The panel observed that the evidence indicated tire sentencing court had reasons for departure but simply did not state these reasons on the record at the initial sentencing hearing. The panel found no reason to deny the sentencing court the opportunity to state reasons for departure on remand, noting that “many cases have appeared before us where the trial court has remedied an earlier failure to comply with the appropriate procedure. We see no difficulty with this process.” 25 Kan. App. 2d at 358; see also State v. French, 26 Kan. App. 2d 24, 27, 977 P.2d 281 (1999) (rejecting stated reason for departure but concluding that upon remand the sentencing court would not be precluded from considering additional, appropriate reasons that would justify the imposition of a departure sentence).
In a similar situation, in State v. Garcia, 274 Kan. 708, 56 P.3d 797 (2002), this court agreed with the defendant’s contention that the sentencing court failed to make adequate findings on the record to support imposition of a prison term based on the fact that the defendant’s crimes were gang related. The sentencing court neither mentioned the applicable statute in effect, K.S.A. 2001 Supp. 21-4704a(k) (gang-related felonies; presumed imprisonment), nor made a specific finding that the defendant’s crimes were committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further or assist in any criminal conduct by gang members.” 274 Kan. at 713.
The Garcia court pointed to the statutory requirement that the judge “shall state on the record at the time of sentencing” the substantial and compelling reasons for departure. See K.S.A. 2006 Supp. 21-4716(a). The State argued that the facts needed to determine whether the provisions of K.S.A. 2001 Supp. 21-4704a(k) applied were “obvious” from the record. The Garcia court was not impressed: “This suggestion is of little comfort to a reviewing court.” 274 Kan. at 717. Since the sentencing court failed to make the required findings on the record, the court vacated the sentences and concluded that upon remand “the district court is given the opportunity to malee the proper findings and reimpose the same sentences if appropriate.” 274 Kan. at 717.
These and similar cases relate to upward departures. We can discern no reason why the same policy would not apply to downward departures. Consequently, when a sentencing court fails to state substantial and compelling reasons for a downward departure from a presumptive sentence on the record at an initial sentencing hearing and as a result the sentence is vacated on appeal, upon remand the sentencing court may cite appropriate reasons justifying the imposition of a downward departure sentence and may impose such a sentence subject to the usual review process.
In the case at hand, the limited record available on appeal indicates the sentencing court may have had additional reasons for departure but did not clearly state these reasons on the record at the sentencing hearing. Consequently, rather than reverse tire sentence as did the Court of Appeals panel, tire appropriate remedy is to vacate the sentence. On remand, if the sentencing court determines there are reasons for departure other than the court’s disagreement with the jury’s determination that the State established an element of the crime of conviction, the sentencing court may impose a departure sentence, which then would be subject to appeal under K.S.A. 21-4721.
Issue 2: State’s Appellate Burden
Next, Blackmon argues that the State failed to show on appeal that the sentencing court’s reasons justifying the downward durational departure were not supported by the record.
Essentially, Blackmon repeats her position in Issue 1, that the facts and the record support reasons for the downward departure, regardless of whether specifically articulated by the sentencing court at the sentencing hearing. Blackmon points out that, because the State brought the initial appeal, it was the State’s burden to provide an adequate record on appeal. Presumably, she means to complain about the lack of a trial transcript and evidentiary motions in the record. See State v. Holmes, 278 Kan. 603, 612, 102 P.3d 406 (2004) (appellant has burden to designate a record that affirmatively shows prejudicial error; without such a record, appellate court presumes action of trial court was proper).
Thus, Blackmon argues that a meaningful review of the sentencing court’s reasons for issuing a departure sentence is precluded by the limited record on appeal. If we were reviewing a question of whether the facts supported a sentencing court’s departure finding, Blackmon’s argument might have merit. Here, however, we have been presented with an issue of law and the record, although limited, is sufficient for that review.
Issue 3: Length of Departure
Finally, Blackmon contends that the extent of the downward durational departure sentence was not disproportionate and the sentencing court did not abuse its discretion. This issue is not yet ripe for review.
The problem with Blackmon bringing this issue before this court is twofold. First, there must exist at least one substantial and compelling reason, stated by the sentencing court, justifying a downward durational departure. Then, the extent of the departure can be analyzed. Because the sentencing court’s comments need more clarity in order to examine whether the departure was based on substantial and compelling reasons, an analysis of the extent of the departure is premature. Second, the Court of Appeals panel never addressed the issue of whether the extent of the downward durational departure was an abuse of the sentencing court’s discretion.
The judgment of the Court of Appeals is affirmed in part and reversed in part. The sentence is vacated, and the case is remanded to the district court with directions for resentencing. | [
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The opinion of the court was delivered by
Six, J.:
The primary issue in this criminal case concerns the relationship between possession of cocaine and possession of cocaine with intent to sell: What is the appropriate remedy when a defendant is convicted of possession with intent to sell, but an appellate court determines that the evidence supports only possession? The question is one of first impression.
The Court of Appeals, in an unpublished opinion filed October 2, 1992, reversed Roger Tucker’s conviction of possession of cocaine with intent to sell (K.S.A. 65-4127a). The case was remanded to enter a new judgment of conviction for possession of cocaine and to resentence for possession.
We also address secondary issues concerning Tucker’s claims of: (1) sufficiency of the evidence, (2) admissibility of police officer testimony, and (3) ineffective assistance of counsel. Our jurisdiction arises from granting Tucker’s petition for review.
We find no error and affirm.
Facts
Tucker’s claim of insufficient evidence signals a recitation of the events leading to his arrest.
Police Lieutenant Marceau testified that around 1:00 a.m. on May 20, 1991, he noticed a car protruding into the street from a Wichita motel driveway. According to Marceau, three persons were near the car. As Marceau pulled behind the car, the three left. Marceau noticed that the driver of the car (Tucker), a black male, was wearing sunglasses, a black hat, and a dark shirt. Shortly before, Marceau had received reports that there had been one or two robberies in which a black male had worn dark sunglasses and dark clothing. Marceau suspected that Tucker had been involved in those robberies.
Both Marceau and Tucker got out of their cars. Tucker stood between his car and the car door with his left hand hidden by the door. Marceau drew his revolver and ordered Tucker to slowly raise his left hand. Tucker did not comply with Marceau’s demands for several seconds and then raised his left hand quickly. Marceau immediately heard what sounded like a cup dropping onto the pavement on the passenger side of Tucker’s car. Marceau did not observe anything in Tucker’s hand or see Tucker throw anything.
Marceau began to search for what he believed Tucker had thrown. Marceau found a plastic tube used for holding cough suppressants on the ground near the passenger side of Tucker’s car. Officer Peckenschneider, who had arrived at the scene, noticed an orange cap with two rocks of cocaine lying on the hood of the car. There were also eight rocks of cocaine along the windshield wiper. The cap fit the empty tube of cough suppressants found by Marceau. Peckenschneider searched Tucker’s car for weapons. A crack pipe was found in the center console ash tray. A billfold with Tucker’s identification and a large roll of money, totaling $784, were in a jacket found under the passenger seat.
Tucker was arrested and searched, but no contraband was found on his person. The officer who conducted the search testified that Tucker appeared to be very nervous and that his legs kept shaking. At the time of his arrest, Tucker told the police he did not know why there were crack rocks on the hood of the car and did not know there was a crack pipe inside the car. He indicated that he did not own the car and that the money was for meals.
At trial, Tucker testified that he was unaware of the presence of the pipe in the center console ash tray. He also claimed that at the time of his arrest he had “no cocaine on me at any time.” Tucker stated that he had nothing in his hands when he exited the car or at all other times that evening. He testified that he was carrying the cash because he did not have a bank account. According to Tucker, the money also belonged to his girlfriend and they were saving the cash for an apartment. The girlfriend testified that she had given Tucker approximately $500 toward the apartment rental.
Tucker also testified that prior to his arrest, 5 to 10 people rushed his car and offered him crack cocaine, which they held in their hands. Tucker denied having seen the cough suppressant tube prior at the time when the police showed it to him. According to Tucker, when Marceau arrived, “[ejveryone started yelling cops and stuff like that and started throwing the stuff down and running.”
William Webb, who was standing outside the car and speaking with Tucker before Marceau’s arrival, testified that four or five individuals were congregated around the car trying to sell Tucker drugs. Webb further explained that when the police arrived the group of people panicked, ran away, and tossed cocaine rocks on the ground. On cross-examination, he indicated that he did not see anyone throw cocaine rocks at the car. Webb testified that he observed Tucker’s contact with the police and had not seen Tucker in possession of the cough drop bottle at any time. Webb also stated that he had not witnessed Tucker throwing any objects.
At trial, Marceau explained that in his four years as a narcotics detective he had been involved in several hundred undercover narcotics buys. Marceau also had three years’ experience as a supervisor in narcotics, vice, and the Special Community Action Team (SCAT).
The State asked Marceau:
“Q. . . . [H]ave you had any experience with crack cocaine dealers carrying cash?
“A. Yes.
“Q. What is that experience?
“MR. LEWIS [defense counsel]: Objection, Your Honor, irrelevant.
“THE COURT: I will overrule that objection.
“A. As the result of making undercover buys, supervising officers in making undercover buys, it’s common for crack dealers to have extensive amounts of currency.”
New counsel was appointed to assist Tucker during the post-conviction motion arguments and to represent him on the ineffective assistance of counsel claim. The trial court, in denying Tucker’s motion for a new trial, heard lengthy testimony on the ineffective assistance of counsel claim.
The Court of Appeals: (1) determined that there was sufficient evidence to support the finding that Tucker possessed cocaine but insufficient evidence that he possessed cocaine with intent to sell; (2) found that Tucker had not overcome the presumption that his counsel’s assistance was reasonable; and (3) did not address Tucker’s complaint concerning the testimony indicating crack dealers commonly carry extensive amounts of currency.
Reversal of Tucker’s Conviction of Possession of Cocaine With Intent to Sell
The Court of Appeals reasoned:
“Although Tucker was not charged with possession, possession is an included crime of possession with intent to sell. It is a crime necessarily proved if the crime charged were proved. K.S.A. 21-3107(2)(d); State v. Hagan, 3 Kan. App. 2d 558, 560, 598 P.2d 550 (1979), rev. denied, 227 Kan. 928 (1980). . .
“In State v. Smith, 4 Kan. App. 2d 149, the defendant was charged with and. convicted of possession with intent to sell marijuana. This court determined that there was insufficient evidence of intent to sell and held that the appropriate remedy was to sentence the defendant for the possession. 4 Kan. App. 2d at 153. We recognize that possession of marijuana is a lesser included offense, whereas possession of cocaine is an included (not lesser included) offense. But, for the. purpose of resolution of this, appeal, it is a distinction without a difference.”
The Court of Appeals concluded:
“Possession and intent to sell are separate elements of the crimes of possession with intent to sell either cocaine or marijuana. A finding of guilty of possession with intent to sell requires proof of'possession. Conversely, proof of possession without proof of intent to sell is still sufficient proof of a crime,, whether it is an included crime or a lesser included crime (assuming proof of date and county).”
We agree with the Court of Appeals’ analysis.
Tucker objects to the remand ruling; emphasizing that at no time had a jury or trial court been asked to make a determination of Tucker’s guilt of possession of cocaine. According to Tucker, the crime with which he was charged (possession with intent to sell) was never proved because the Court of Appeals set aside the conviction: Tucker argues that the State should be bound by its decision to charge him with possession with intent to sell. Additionally, Tucker explains that in State v. Smith, 4 Kan. App. 2d 149, 603 P.2d 638 (1979), relied on by the Court of Appeals as controlling, the defendant’s guilt of simple possession of marijuana was unchallenged.
The verdict form completed by the jury did not provide the option of finding Tucker guilty of possession. The jury was instructed that Tucker was charged with possession of cocaine with intent to sell and that the State had to prove that Tucker intentionally: (1) possessed cocaine (2) with intent to sell. Additionally, the jury was instructed that the term possession means “having control over the substance with knowledge of, and intent to have such control.” The pattern instruction for possession provides that, in the context of Tucker’s case, the State would have needed to prove (1) that Tucker possessed cocaine and (2) that he did so intentionally. PIK Crim. 2d 67.16. The Court of Appeals was correct in its statement that the crime of possession is necessarily proved if the possession with intent to sell charge is proved.
Possession of cocaine is not a lesser degree of possession with intent to sell because both are class C felonies. K.S.A. 65-4127a. It is, however, an included crime as defined in 21-3107(2)(d). The appropriate remedy has been applied in the case at bar. None of Tucker’s fundamental rights have been violated. Tucker was convicted of possession with intent to sell, but the evidence supports only the included offense, i.e., possession. Tucker is to be sentenced for possession.
Possession of Cocaine
Tucker contends that the evidence did not prove that he possessed cocaine.
Our standard of review when the sufficiency of the evidence is challenged on appeal is whether, after review of all the evidence, viewed 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. Evans, 251 Kan. 132, Syl. ¶ 1, 834 P.2d 335 (1992).
The State observed that possession and intent may be proved by circumstantial evidence. See State v. Bullocks, 2 Kan. App. 2d 48, 49, 574 P.2d 243, rev. denied 225 Kan. 846 (1978). “Possession may be immediate and exclusive, jointly held with another, or constructive as where the drug is kept by the accused in a place to which he has some measure of access and right of control.” 2 Kan. App. 2d at 49-50.
The determination that the evidence supported possession in the case at bar is based on circumstantial evidence. The circumstantial evidence, viewed in the light most favorable to the prosecution, must support the finding that Tucker knowingly and intentionally possessed cocaine.
We have reasoned that “[i]n addition to requiring mere knowledge of the presence of the controlled substance or mere physical control, a conviction for possession requires the jury to find the accused had an intent to exercise control over the substance. [Citations omitted.]” State v. Graham, 244 Kan, 194, 205, 768 P.2d 259 (1989). Tucker does not dispute that cocaine rocks were found on the hood of his car. He contends the rocks were thrown at the car by individuals who quickly left the scene at the sight of the patrol car. However, Webb, Tucker’s witness, stated he did not see anyone throw cocaine rocks in the direction of Tucker’s vehicle.
Marceau heard a sound like a cup hitting the pavement immediately after Tucker quickly raised his left hand. Tucker’s hand was hidden from Marceau’s view. Marceau searched for what he believed to be “the only thing that would have made that sound” and found an empty cough suppressant tube. The cap to the plastic tube was found on the hood of Tucker’s car. The cap had two cocaine rocks in it and eight cocaine rocks near it. A review of the evidence in the light most favorable to the prosecution reflects sufficient evidence to support the finding that Tucker possessed cocaine.
Additional Issues
Marceau testified that his experience indicated that crack dealers commonly carry extensive amounts of currency. Because Tucker’s conviction of possession with intent to sell was reversed, the Court of Appeals declined to consider the alleged error of admitting Marceau’s testimony. The testimony relates to possession with intent to sell. We agree with the Court of Appeals’ conclusion.
In his petition, Tucker requests us to review the Court of Appeals’ ruling that his trial counsel was not ineffective. Tucker does not identify particular errors in the reasoning of the Court of Appeals.
The Court of Appeals stated that Tucker’s six ineffective assistance of counsel claims could be boiled down into two claims: “those errors occurring in preparation of the trial and those errors occurring at the trial.” Tucker’s trial counsel was called as a witness and questioned at the post-trial motion hearings.
To prevail on a claim of ineffective assistance of counsel, Tucker must show that his counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability the result would have been different had Tucker received effective assistance. See Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985). Tucker must “overcome a presumption counsel’s assistance was reasonable.” 236 Kan. at 654.
The Court of Appeals examined the facts and found:
“While counsel did not spend a great deal of time with Tucker, a review of the record shows that he spent an appropriate amount of time with Tucker in person and on the phone to prepare for the trial. Counsel stated he thought he had learned all he could from Tucker concerning the case. He also stated Tucker was not receptive to his suggestions about Tucker’s testimony. As for questions not asked by counsel and witnesses not called by him, those decisions lie with counsel. Winter v. State, 210 Kan. 597, Syl. ¶ 2, 502 P.2d 733 (1972).
“Tucker did not overcome the presumption that counsel’s assistance was reasonable. Therefore, analysis of the second prong under Chamberlain is unnecessary.”
We agree.
Tucker claims: (1) his court-appointed attorney from the public defender’s office failed to spend sufficient time with him to properly counsel him and advise him as to the preparation and trial of his case; and (2) the attorney failed to investigate, interview, and have crucial witnesses testify in his case.
Tucker asserted that a variety of facts testified to in the post-trial hearing are relevant to the objective standard used to evaluate the ineffective assistance of counsel claim. Tucker contended that, in combination, the facts proved that his attorney’s representation fell below a reasonable standard. He reasoned that his pretrial incarceration rendered him entirely dependent upon his attorney’s investigation of witnesses. Consequently, Tucker believed that his attorney had a duty to follow up all leads he had provided.
Concerning the second prong of the Strickland/Chamberlain test, Tucker argued there is a reasonable probability that the testimony of Bell and Williams would have altered the outcome of the trial. According to Tucker, both Bell and Williams testified at the post-trial hearing that no one from the public defender’s office made any attempt to contact them. Both witnesses also stated that they had a clear view of the incident, did not see Tucker possess cocaine, and did not see him throw any objects. Tucker noted that Bell and Williams both testified they had seen several people who were trying to sell cocaine throw the rocks into the air when the police arrived. Bell also testified that there was an individual in the lot holding a red bottle.
Tucker maintained that the testimony of these witnesses w,as particularly important, given the fact that the jury had to evaluate two conflicting stories. He believed that, with the addition of the corroborating testimony of Bell and Williams, “one could hardly say that this would not give a sufficient probability of undermining confidence in the outcome of the guilty verdict.”
.“The Sixth Amendment right to counsel is the right to the effective assistance of counsel, and the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Chamberlain v. State, 236 Kan. 650, Syl. ¶ 2, 694 P.2d 468 (1985).
The State’s position is that our review should be deferential to the trial court’s judgment that Tucker’s counsel was not ineffective. We agree. See State v. Humphrey, 252 Kan. 6, 25, 845 P.2d 592 (1992).
The absent witnesses, the State contended, reinforced the fact that the parking lot was a drug dealer’s paradise and were of questionable credibility. The State emphasized that neither Bell nor Williams could actually dispute the events Marceau observed.
Concerning Tucker’s trial counsel’s alleged errors in preparing for trial, the Court of Appeals correctly determined that counsel had spent an appropriate amount of preparation time. Trial counsel is entitled to make strategic choices.
Tucker asserts that Bell should have been contacted by counsel and subpoenaed to testify. Counsel admitted that this failure was due to error in reading his notes. Bell’s testimony at the hearing indicates that his statement would have corroborated Tucker’s story. Assuming, for discussion, that counsel’s error regarding Bell falls below the objective standard of reasonableness, the second prong of the Strickland/Chamberlain test should be considered. Under this prong, the assumed deficient performance concerning Bell must have prejudiced Tucker so as to have deprived him of a fair trial. See State v. Dunn, 243 Kan. 414, 440, 758 P.2d 718 (1988).
The record indicates that the trial court gave careful consideration to the issue of Bell’s testimony. The trial judge was in a position to evaluate Bell’s credibility, as well as the credibility of the other witnesses. We find no error.
The case is remanded with directions that the trial court enter a new judgment convicting Tucker of possession of cocaine and impose a new sentence for that offense;
The judgment of the Court of Appeals is affirmed; the judgment of the district court is reversed, and the case is remanded with directions.
Davis, J., not participating.
Terry L. Bullock, District Judge, assigned. | [
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The opinion of the court was delivered by
McFarland, J.:
Richard Stone appeals his jury trial convictions of second-degree murder (K.S.A. 21-3402) and misdemeanor theft (K.S.A. 21-3701). No issues relative to the theft conviction are asserted.
INSTRUCTION ON INTENT
For his first issue on appeal, the defendant contends that the intent instruction given by the court (PIK Crim. 2d 54.01 [1992 Supp.]) violated his constitutional right to due process. The instruction provides:
“Ordinarily a person intends all of the usual consequences of his voluntary acts. This inference may be considered by you along with all the other évidence in the case. You may accept or reject it in determining whether the State has met its burden to prove the required criminal intent of the defendant. This burden never shifts to the defendant.”
The defendant argues that this instruction created a presumption that relieved the State from proving the intent-to-kill element of second-degree murder, thereby violating his constitutional right to due process. In support thereof, he cites Francis v. Franklin, 471 U.S. 307, 85 L. Ed.. 2d 344, 105 S. Ct. 1965 (1985), and Wiley v. Rayl, 767 F.2d 679 (10th Cir. 1985).
In this issue, the defendant plows no new ground. The intent instructions at issue in both Francis- and Wiley were radically different than the one given herein. In State v. Mason, 238 Kan. 129, 708 P.2d 963 (1985), we discussed the holdings in said cases as follows:
“After the briefs were filed in this case, the United States Supreme Court announced its opinion in Francis v. Franklin [citation omitted], and diligent counsel for the appellant have called that case to our attention as well as á mofe recent case of the United States Court of Appeals for the Tenth Circuit, which we will discuss later in this opinion. In Francis, the court stated the issue before it as follows:
‘This case requires that we decide whether certain jury instructions in a criminal prosecution in which intent is an element of the crime charged and the only contested issue at trial satisfy the principles of Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979). Specifically, we must evaluate jury instructions stating that: (1) “[t]he acts of a person of sound mind and discretion are presumed to be the product of a person’s will, but the presumption may be rebutted” and (2) “[a] person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but the presumption may be rebutted.” App. 8a-9a. The question is whether these instructions, when read in the context of the jury charge as a whole, violate the Fourteenth Amendment’s requirement that the State prove every element of a' criminal offense beyond a reasonable doubt.’ 471 U.S. at 309. (85 L. Ed. 2d at 350.)
“It is interesting to note that intent was not only an element of the crime charged but ‘the only contested issue at trial.’ The court noted that the instruction concerning the presumption was cast in mandatory language, followed by a statement that the presumption ‘may be rebutted.’ The court concluded:
‘When combined with the immediately preceding mandatory language, the instruction that the presumptions “may be rebutted” could reasonably be read as telling the jury that it was required to infer intent to kill as the natural and probable consequence of the act of firing the gun unless the defendant persuaded the jury that such an inference was unwarranted. The very statement that the presumption “may be rebutted” could have indicated to a reasonable juror that the defendant bore an affirmative burden of persuasion once the State proved the underlying act giving rise to the presumption. Standing alone, the challenged language undeniably created an unconstitutional burden-shifting presumption with respect to the element of intent.’ 471 U.S. at 318. (85 L. Ed. 2d at 356.)
“The court then went on to hold that the trial court’s general instructions did not cure the defect and that, under the facts of the case, intent being the primary issue at trial, the giving of the instruction was not harmless error.
“Following the publication of the Supreme Court’s opinion in Francis, the United States Court of Appeals for the Tenth Circuit announced its decision in Wiley v. Rayl [citation omitted]. Wiley was convicted in the District Court of Butler County of rape and aggravated kidnapping. Upon exhaustion of his state remedies, he sought habeas corpus in the federal courts under 28 U.S.C. § 2254 (1982), contending among other things that his due process rights were violated by the trial court when it instructed the jury:
‘ “There is the presumption that a person intends all of the natural and probable consequences of his voluntary acts. This presumption is overcome if you are persuaded by the evidence that the contrary is true.” ’ 767 F.2d at 681.
Wiley objected to the instruction at trial. . . . The Tenth Circuit, noting that intent was an issue and the challenged instruction was specifically argued to the jury in the prosecution’s closing argument, vacated Wiley’s kidnapping conviction. It found that the trial court’s instruction violated the rule of Francis v. Franklin, and ‘effectively removed from the state the task of proving, and from the jury the duty of determining, that the defendant had the requisite intent to kidnap.’ 767 F.2d at 683.” 238 Kan. at 136-37.
Unlike the instructions given in Francis and Wiley, the instruction given herein (PIK Crim. 2d 54.01 [1992 Supp.]) clearly states the burden of proof of intent never shifts to the defendant. In State v. Ransom, 239 Kan. 594, 605-06, 722 P.2d 540 (1986), we quoted the Mason discussion of Francis and Wiley and held that PIK Crim. 2d 54.01 (1992 Supp.) corrected the constitutional defect by creating a permissible inference of intent rather than an improper rebuttable presumption. To the same effect see State v. Ramos, 240 Kan. 485, 490, 731 P.2d 837 (1987), and State v. Bird, 240 Kan. 288, 300-01, 729 P.2d 1136 (1986), cert, denied 481 U.S. 1055 (1987).
Defendant attempts to distinguish Ransom on the ground that in Ransom intent was stated to be “not a big issue at trial,” whereas in the case before us the intent-to-kill element was the primary issue in the second-degree murder charge. We find this to be a distinction without a difference. PIK Crim. 2d 54.01 (1992 Supp.) is not constitutionally defective on the asserted grounds, and this determination does not vary with the “importance” of the intent element in a particular trial.
SUFFICIENCY OF THE EVIDENCE
For his second issue, the defendant challenges the sufficiency of the evidence supporting his second-degree murder conviction. Specifically, he contends the evidence relative to intent is deficient.
We have often stated the appellate standard of review concerning sufficiency of evidence. If the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Grissom, 251 Kan. 851, Syl. ¶ 4, 840 P.2d 1142 (1992); State v. Blackburn, 251 Kan. 787, Syl. ¶ 1, 840 P.2d 497 (1992); State v. Tyler, 251 Kan. 616, Syl. ¶ 9, 840 P.2d 413 (1992).
Second-degree murder is defined in K.S.A. 21-3402, which provides: “Murder in the second degree is the malicious killing of a human being, committed without deliberation or premeditation and not in the perpetration or attempt to perpetrate a felony.” In State v. Hill, 242 Kan. 68, 82-83, 744 P.2d 1228 (1987), we held that second-degree murder required proof of an intent to kill, stating:
“The term ‘malicious’ is a specific designation of the intent which a defendant must possess in killing a human being to be found guilty of murder in the second degree. The term ‘malicious’ has been defined as ‘willfully doing a wrongful act without just cause or excuse.’ State v. Egbert, 227 Kan. at 267; State v. Wilson, 215 Kan. 437, Syl. ¶ 2, 524 P.2d 224 (1974); State v. Jensen, 197 Kan. 427, 417 P.2d 273 (1966); PIK Crim. 2d 56.04(a), Homicide Definitions. See K.S.A. 21-3201(1). ‘Willful’ conduct is defined as ‘conduct that is purposeful and intentional and not accidental.’ K.S.A. 21-3201(2); State v. Osburn, 211 Kan. 248, 254, 505 P.2d 742 (1973); PIK Crim. 2d 56.04(c). . . . The requirement of an intent to kill is contained within the express requirement of second-degree murder that the defendant had acted ‘maliciously’ in killing a human being.”
The appalling facts involved herein must, of necessity, be set forth in considerable detail.
At approximately 9:00 a.m. on November 23, 1991, defendant and a female companion entered an Albertson’s grocery store in Wichita. A store employee, Donna Pauls, observed the two ostensible customers behind a counter where cigarettes were stored and mentioned this to another store employee, Kathleen Smith. Later, defendant and his companion left the store carrying store courtesy shopping baskets containing cartons of cigarettes without purchasing the merchandise.
Ms. Pauls ran after the pair, followed by Ms. Smith and another employee, Larry Raalman. The fleeing thieves ran to a van, and defendant entered on the driver’s side. Ms. Pauls, yelling, “Stop. Stop.” waved her arms and struck the driver’s side of the van. Still yelling, striking the van, and waving her arms, Ms. Pauls ran to the front of the van. The van, with the defendant at the controls, then ran over Ms. Pauls and she was dragged 480 feet 6 inches until her body became dislodged from the vehicle’s undercarriage. The van accelerated rapidly while Ms. Pauls was being dragged.
The van proceeded at a high rate of speed until it struck a curb and blew a tire. Defendant jumped out and ran away. The female passenger was detained by concerned citizens. Defendant was arrested about 30 minutes later. Upon being arrested, defendant stated:
“He’s not the one you’re looking for, it’s me. ... I did it. It’s not him. My brother didn’t have anything to do with it. ... I killed a lady, man, I know I did. I killed a lady. . . . Don’t do anything to my brother. I’m the one who killed her. . . . My brother is just here to take care of my kids. ... I called them to take care of my kids, because I know I am going to jail. . . . I’m a stupid son of a bitch, man, I killed her.”
Ms. Pauls died as a result of the massive trauma received.
Defendant argues there was insufficient evidence presented from which the jury could conclude that he intended to kill Ms. Pauls. We do not agree.
Defendant was fleeing from the scene of the theft when he started the van. A store employee had chased him, with two other employees in hot pursuit. There was abundant evidence defendant was aware of Ms. Pauls’ close proximity to the van. When Ms. Pauls moved in front of the van, the vehicle was either stopped or moving very slowly and struck Ms. Pauls while she was standing in the approximate middle of the van’s path. An individual named Charles Millsap ran along beside the driver’s side of the van beating on the door. Defendant accelerated rapidly, mangling Ms. Pauls as she was dragged almost 500 feet. After the body became dislodged, the defendant continued his flight until forced to stop, when he fled the scene on foot. There was abundant evidence that defendant ran over Ms. Pauls intentionally and accelerated, knowing she was trapped under and being dragged by the van. He had committed a crime in the grocery store and was concerned only with flight from the scene.
We have no hesitancy in concluding that a rational factfinder could have found the defendant guilty of second-degree murder beyond a reasonable doubt.
GRUESOME PHOTOGRAPHS
For his third issue, defendant contends the trial court abused its discretion in the admission of certain autopsy photographs of the victim. Defendant argues that the photographs in question have no probative value and served to shock and revolt the viewer.
Of the 12 autopsy photographs admitted into evidence, defendant complains only of the admission of 3. Two photographs are views of the victim’s left hand and part of her left arm, which were ripped from her body while she was being dragged under the van. The other objected-to photograph shows part of her bloodied torso and the stub of her left arm.
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 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. State v. Spears, 246 Kan. 283, Syl. ¶ 2, 788 P.2d 261 (1990).
The admission of photographs as evidence in a homicide case rests, within the trial court’s discretion, and that court’s ruling will not be disturbed on appeal absent a showing of abuse of discretion. State v. Mayberry, 248 Kan. 369, 383, 807 P.2d 86 (1991); State v. Prouse, 244 Kan. 292, 294, 767 P.2d 1308 (1989); State v. Lucas, 243 Kan. 462, 476-77, 759 P.2d 90 (1988). Photographs which are unduly repetitious, gruesome, and without probative value should not be admitted into evidence. State, v. Boyd, 216 Kan. 373, 377, 532 P.2d 1064 (1975). Nevertheless, demonstrative photographs are not inadmissible merely because they are gruesome and shocking where they are true reproductions of relevant physical facts and material conditions at issue. State v. Mayberry, 248 Kan. at 383.
Here, the photographs were used to corroborate witness testimony and were relevant to the pathologist’s testimony as to cause of death. Stevén Payrie testified as to the condition of Ms. Pauls’ body, including the severed hand, when he went to her assistance at the scene. Charles Millsap similarly testified.
Dr. William Eckert, a noted forensics pathologist, testified that he directed the taking of the photographs in order to document the injuries to the victim. He testified that the only injuries sustained were from being dragged. Dr. Eckert’s testimony concerning the objected-to photographs was as follows:
“Q. [By State’s attorney] Specifically as to State’s Exhibit Numbers 49 and 50, what were the reasons for those two separate pictures?
“A. Well, these basically show the—show her left hand and the lower arm, which had been tom away from the upper arm above the elbow.
“Q. How can you tell that it’s a tearing, doctor?
“A. Well, the ends are such—not in any way orderly. If an arm was cut off by a surgeon or a saw or something like that, it would be identifiable. This is shredded; and, therefore, in my opinion it was that there was a tearing off of the portion of the arm and hand as a result of her being under the van.
“Q. All right. The tears of tissue in these 2 exhibits, is it consistent with the torn tissue in State’s Exhibit number 48?
“A. Yes. It looks like there was an area in this shot, photograph, where the tissue still remained on a portion of the arin; but the large portion was torn off the top of the arm.”
The injuries to the body of Ms. Pauls depicted in the complained-of photographs served to illustrate the cause of death and the force involved therein. Invasive autopsy procedures are not involved. We find no abuse of discretion in the admission of the photographs.
VEHICULAR HOMICIDE
The trial court instructed the jury on involuntary manslaughter (K.S.A. 21-3404) as a lesser included offense of second-degree murder. For his final issue, the defendant contends the trial court erred in failing to instruct the jury on vehicular homicide (K.S.A. 21-3405) as a lesser included offense of involuntary manslaughter.
The rules relative to a trial court’s duty to instruct on lesser included offenses were recently repeated in State v. McBroom, 252 Kan. 376, 845 P.2d 654 (1993), as follows:
“K.S.A. 21-3107(3) establishes the trial court’s duty concerning instructions for lesser crimes. The trial court has a duty to instruct on all lesser offenses established by substantial evidence, however weak, unsatisfactory, or inconclusive the evidence may appear to the court. To refuse to so instruct the jury invades the jury’s province in the trial of a case. The question is not whether, in the mind of the court, the evidence as a whole excludes the idea that the defendant is guilty of a lesser degree of the offense charged, but whether there is any substantial evidence tending to prove a lesser degree of the offense. If there is, then the question should be submitted to the jury. The unsupported testimony of the defendant alone, if tending to establish such lesser degree, is sufficient to require the court to so instruct. The duty to instruct exists even though the instructions have not been requested.” Syl. ¶ 1.
“Where there is no substantial evidence applicable to the lesser degrees of the offense charged, and all of the evidence taken together shows that the offense, if committed, was clearly of the higher degree, instructions relating to the lesser degrees of the offense are not necessary. The trial judge is under no duty to instruct on a lesser included offense if the evidence makes proof of the lesser offense an impossibility.” Syl. ¶ 3.
As previously stated, the primary issue at trial was the defendant’s intent relative to the second-degree murder charge. The defendant testified he did not intend to kill Ms. Paul. Presumably, it is this testimony which, to a substantial degree, prompted the trial court to instruct the jury on involuntary manslaughter as a lesser included offense. K.S.A. 21-3404 provides:
“(a) 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.
“(b) 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.
“(c) Involuntary manslaughter is a class D felony.”
K.S.A. 21-3201(3) defines wanton conduct as follows:
“(3) Wanton conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a reckless disregard or complete indifference and unconcern for the probable consequences of such conduct. The terms ‘gross negligence,’ ‘culpable negligence,’ ‘wanton negligence’ and ‘recklessness’ are included within the term ‘wantonness’ as used in this code.”
Vehicular homicide is defined in K.S.A; 21-3405 as follows:
“(I) Vehicular homicide is the killing of a human being by the operation of an automobile, airplane, motor boat or other motor vehicle in a manner which creates an unreasonable risk of injury to the person or property of another and which constitutes a material deviation from the standard of care which a reasonable person would observe under the same circumstances.
“(2) This section shall be applicable only when the death of the injured person ensues within one (1) year as the proximate result of the operation of a vehicle in the manner described in subsection (1) of this section.
“(3) Vehicular homicide is a class A misdemeanor.”
In State v. Makin, 223 Kan. 743, 576 P.2d 666 (1978), the defendant was convicted of involuntary manslaughter for having unintentionally killed Jamie Reeves while operating a vehicle while under the influence of intoxicating liquor and driving a vehicle on the left side of the road. On appeal, he argued that involuntary manslaughter was a general statute which had been superseded by a more specific statute, vehicular homicide. After discussing the evolving statutory scheme relative to charges based upon unintentional homicide arising from the operation of a motor vehicle, we concluded:
“We hold that, in the field of unintentional homicide by operation of a motor vehicle, the specific statute, vehicular homicide (K.S.A. 21-3405), is concurrent with and controls the general statute on involuntary manslaughter (K.S.A. 21-3404) except where the acts of the accused constitute wanton conduct (gross negligence). Accordingly, the issue in all such cases where the charge is involuntary manslaughter becomes whether, or not the conduct of the defendant was grossly negligent. In virtually all cases, then, vehicular homicide would be a lesser included offense of involuntary manslaughter and the jury should be instructed thereon.” 223 Kan. at 748.
The defendant argues that under the above-quoted holding in Makin the jury should have been instructed on vehicular homicide as there was evidence from which a jury could have reasonably concluded the homicide was neither intentional nor the result of wanton conduct. We do not agree.
It is undisputed herein that the homicide occurred as the defendant was fleeing the scene of a crime he had committed— theft. Three store employees were in pursuit. The victim, Ms. Pauls, had been endeavoring to stop or delay defendant’s flight. She was standing in front of the defendant’s vehicle, approximately in the center of the hood area, some two feet in front of the vehicle. There is no evidence defendant was unaware of her presence. Defendant’s vehicle was either stopped or moving very slowly when Ms. Pauls moved in front of it. Defendant ran over Ms. Pauls and then accelerated rapidly with the woman trapped under the vehicle. By his own testimony, defendant put the gas pedal to the floor. The victim was dragged almost 500 feet before becoming dislodged. Her injuries and death resulted from the dragging rather than the initial impact. Under the evidence, the killing, at most, was intentional and, at least, occurred under circumstances constituting wanton conduct (gross negligence). There was no substantial evidence from which a jury could have reasonably concluded that the killing was the result of simple or ordinary negligence, which is the gravamen of vehicular homicide.
In Makin, the issue was whether the general statute (involuntary manslaughter) had been superseded by the specific statute (vehicular homicide). We held that it had, except where gross negligence was involved. Thus, we stated, where the charge is involuntary manslaughter, “in virtually all cases” the jury should be instructed on vehicular homicide as a lesser included offense. There was no charge in Makin, as in the case herein, that the killing was intentional. We recognized in Makin that there were factual situations wherein it would not be necessary to instruct on vehicular homicide as a lesser included offense of involuntary manslaughter. The evidence herein clearly establishes this to be one of those cases. We find no error in the trial court’s failure to instruct the jury on vehicular homicide as a lesser included offense of involuntary manslaughter.
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The opinion of the court was delivered by
Abbott, J.:
This is an appeal by the City of Overland Park. The issue is whether the trial judge erred by refusing to admit into evidence the breath alcohol concentration (BAC) test results in two separate DUI trials.
In separate cases, Mitchell Cunningham and Gary Dahn were convicted in the Overland Park municipal court of operating a motor vehicle while under the influence of alcohol and of speeding. Cunningham and Dahn appealed their convictions to the district court. The cases were tried de novo to the bench and, in both cases, different pro tern trial judges sustained the defendants’ insufficient foundation objection to admission of the BAC test results. Both Cunningham and Dahn were acquitted of operating a motor vehicle while under the influence of alcohol.
The City of Overland Park appealed in both cases, alleging it reserved questions for appeal pursuant to K.S.A. 22-3602(b)(3). The question it seeks to present on appeal is whether an objection for “lack of foundation” is sufficient when a request for a more specific objection is made. In addition, the City argues it introduced evidence meeting the foundation elements required for admissibility of the BAC test results and the trial court improperly enlarged the scope of the foundation required for the admission of the BAC test results. .
In State v. Crozier, 225 Kan. 120, 123-24, 587 P.2d 331 (1978), we summarized a long line of cases dealing with questions reserved, stating:
"The third situation where the prosecution is afforded an appeal after final judgment in a criminal case is upon a question reserved by the prosecution provided for in K.S.A. 1977 Supp. 22-3602(b)(3). It has been held that a question reserved must be one which calls for an answer which will aid in the correct and uniform administration of the criminal law. State v. Glaze, 200 Kan. 324, 436 P.2d 377 (1968). A question reserved by the state will not be entertained on appeal merely to demonstrate errors of a trial court in rulings adverse to the state. State v. V.F.W. Post No. 3722, 215 Kan. 693, 695, 527 P.2d 1020 (1974); State v. Chittenden, 212 Kan. 178, 510 P.2d 152 (1973). No formal procedural steps are required by K.S.A. 1977 Supp. 22-3602(b) to appeal on a question reserved. All that is necessary for the state to do to reserve a question for presentation on appeal to the supreme court is to make proper objections or exceptions at the time the order complained of is made or the action objected to is taken. State v. Marek, 129 Kan. 830, 834, 284 Pac. 424 (1930).”
All the State must do to reserve a question for appeal, then, is lay the same foundation for appeal that a defendant is' required to lay.
In the Dahn trial in the district court, counsel for the City voluntarily told the trial court she would not inquire further and made no effort to present the evidence the trial judge stated was necessary to lay a proper foundation for admission of the BAC test. Counsel failed to properly reserve the question for appeal.
Based on the record before us, we dismiss the Dahn appeal. That is of no significance because the exact issues are raised in the Cunningham appeal.
We do comment that both appeals involve acquittals. An acquittal is final and not appealable; however, the State may appeal a question reserved in those special circumstances when the question reserved calls for an answer which is both of statewide interest and vital to a correct and uniform administration of the criminal law. State v. Crozier, 225 Kan. at 122-23. At first glance, it would appear that ample case law exists concerning laying a proper foundation for the admission of BAC test results. However, we have never written on the main issue reserved in this case, and it would be difficult, if not impossible, for the issue concerning a request for a more specific objection to foundation evidence to come before this court other than by a question reserved. We therefore accept the question reserved.
The City contends a general objection to foundation is insufficient if a request for a more specific objection has been made, as the City maintains happened in the Cunningham case. The City attempted to admit evidence of the defendant’s BAC test results through testimony, exhibit, or both. The defendant objected on the ground of insufficient foundation, and the objection was sustained. Because it believed the foundation requisites had been satisfied, the City asked the trial judge to require the defendant to state with specificity the alleged defect in the City’s foundation for admitting BAC test results. The trial judge refused to do so.
The trial judge did have defense counsel “write out such specific objections” and hand them to the trial judge. The trial judge stated, “I’ll make my ruling based on his written objections.” The trial judge did view the written objections when they were submitted and advised there were four objections submitted and stated: “They’re actually in excess of what I was considering and I think they’re valid objections. They’re still sustained at this time.” The City was not given a copy of the written objections and was not told what the written objections were until both sides had rested.
The propriety of receiving written objections and considering them in court rulings is not before us, but we feel compelled to comment on the use of such a procedure. Except as authorized by law, a judge is forbidden to initiate or consider ex parte or other communications concerning a pending or impending proceeding. Rule 601, Canon 3A(4) (1992 Kan. Ct. R. Annot. 348). A judge clearly violates the ex parte communication prohibition if he considers an ex parte communication from a party or lawyer in a pending proceeding or initiates such communication.
In the case of In re Dekle, 308 So. 2d 5 (Fla. 1975), a Florida Supreme Court Justice received a legal memorandum from the attorney for one party. The legal memorandum had not been filed with the court, and other counsel in the case were not aware the memorandum had been furnished to the justice. The justice used the memorandum in preparing his opinion. The court said that even if there is no actual harm to the other party, a judge who intentionally commits an act which the judge knows or should have known is prohibited is guilty of misconduct. The court reprimanded Justice Dekle and added that removal from office would be proper if there was a clear showing of corrupt motive or a deliberate wrong. As noted above, this issue is not before us at this time, but we include it for the purpose of instructing trial judges that such a procedure is not to be used.
The City maintains “[i]t is settled law that general foundation objections are not favored in law and should not be allowed.” Much of the authority the City cites does not discuss foundation objections specifically, but addresses general versus specific objections. The City errs in equating an objection alleging insufficient foundation with a general objection. See 1 McCormick on Evidence § 52, p. 206 (4th ed. 1992) (“Examples of general objections are 1 object,’ or objections on the ground that the evidence is ‘inadmissible,’ ‘illegal,’ ‘incompetent,’ or is not proper testimony for the jury; or an objection ‘on all the grounds ever known or heard of.’ One of the most overworked forms is an objection on the ground that the evidence is ‘incompetent, irrelevant and immaterial.’ ”); see also Osborn v. Woodford Bros., 31 Kan. 290, 296, 1 Pac. 548 (1884) (unless the objecting party states a reason, a trial court should not sustain an objection to all of a particular witness’ testimony); Johnston v. Clements, 25 Kan. 376, Syl. ¶ 4 (1881) (a trial court will not entertain an objection based upon “ ‘all the grounds ever known or heard of’ ”). An objection for lack of sufficient foundation is considered a specific objection.
“The general rule is, that objections to evidence must state specifically the grounds of the objection.” Stout v. Baker, Sheriff, 32 Kan. 113, Syl. ¶ 1, 4 Pac. 141 (1884). What remains of the City’s contention is how specific must a specific objection be.
“Endless cases discuss the need for specific objections and the inapplicability of a wrong objection which has been urged. However, the cases are scarce which attempt to define how specific and detailed an objection must be when the objection is directed to the right ground but is ambiguous as to its precise application. . . .
“There is a good deal of latitude in determining which words make clear, and which expressions leave obscure, the reason for which an objection is made. In the brief time that is available for a timely objection the objecting process is frustrating in many situations. A counsel may sense that a question is objectionable but what is wrong and how to name it creates a double confusion. There is no answer to the problem except to realize that the thing that is wrong must be something very specific and that if it is discovered, any words which describe the objectionable element will meet the requirement of an objection. The use of all rules of exclusion requires a knowledge of the reason for the mies and this understanding is about the only source of discovery of an objection and how to make it.” Ladd, Objections, Motions and Foundation Testimony, 43 Cornell L. Q. 543, 554-55 (1958).
With regard to specificity, this court has held: “The objections to testimony offered should be distinctly pointed out in order that the court may rule intelligently upon them, and unless this is done they are not entitled to consideration upon a review.” Howard v. Howard, 52 Kan. 469, Syl. ¶ 4, 34 Pac. 1114 (1893). “An objection to the introduction of evidence must be so specific that the court may know from the objection what the question is which it is called upon to decide.” Humphrey v. Collins, 23 Kan. 549, Syl. (1880).
The City maintains that an objection based upon insufficient foundation is not specific enough. Our attention is directed to a reference manual for trial judges published under the auspices of the National Judicial College, which is affiliated with the American Bar Association. See Richter, Evidentiary Trial Objections with Case Illustrations (1984). Kansas has a long history of sending its trial judges to the National Judicial College for training and over the years has had a number of our trial judges serve on the faculty. Relying upon Public Finance Co. v. Van Blaricome, 324 N.W.2d 716 (Iowa 1982), Judge Richter, now retired, suggests the objection “ ‘No Proper Foundation,’ ” alone, is insufficient. Richter, at § 6.5. In Public Finance Co., the plaintiff filed suit, alleging the defendants had defaulted on their financial obligation. In the defendants’ answer, they claimed they had never received service of the default notice, which Iowa statutes require before a lawsuit can be filed. When the plaintiff sought to introduce copies of the default notice into evidence during the trial, the defendants objected, asserting the plaintiff had failed to establish a proper foundation. The trial court overruled the objection, and the defendants subsequently were found liable. On appeal,- the Iowa Supreme Court stated:
“When a party seeks to exclude evidence, the specific grounds of objection must be indicated to the trial court. This is to alert the court to the question raised and to enable opposing counsel to take proper corrective measures to remedy the alleged defect. [Citation omitted.] This court has held that where the objection to evidence is based on a claim of ‘no proper foundation’ but does not state in what respect the foundation is lacking, the objection is insufficient to provide a basis for review on appeal. [Citations omitted.]” 324 N.W.2d at 719.
The City also relies upon Central Steel & Wire Co. v. Coating Research, 53 Ill. App. 3d 943, 369 N.E.2d 140 (1977), in which the trial court overruled a lack of foundation objection. On appeal, the Illinois appellate court stated:
“[W]here the ground of an objection is of a character that may be obviated or remedied, the party objecting must point out the objection specifically, so as to afford the opportunity to correct it. [Citations omitted.] Since foundation is required where the impeachment is by prior inconsistent statement [citation omitted], and because lack of foundation is a ground of objection which is of a character that might be obviated or remedied, it should have been specifically stated [citation omitted].” 53 Ill. App. 3d at 945-46.
Both Public Finance Co. and Central Steel & Wire Co. can be distinguished from the instant case. In the former cases the lack of sufficient foundation objection was overruled; whereas here the insufficient foundation objection was sustained. At least one other court has distinguished between an insufficient foundation objection sustained and overruled. In State v. Means, 211 N.W.2d 283, 287 (Iowa 1973), the Iowa Supreme Court commented:
“In considering the sufficiency of an objection [based on lack of foundation] there is a considerable difference when the objection is sustained rather than overruled. If sustained the trial court will be affirmed if the general objection is proper even though the objection is put in a form that is not or would not be sufficiently specific to preserve error for reversal. [Citation omitted.]”
Cf. Rush v. French, 1 Ariz. 99, 121, 25 Pac. 816 (1874) (“rulings on the admission of evidence may be reduced to two classes: 1. When the party objecting was overruled and he appeals. 2. When the party objecting was sustained and the other side appeals.”); 1 McCormick on Evidence § 52, pp. 207-08 (“If an untenable specific objection is sustained, there is authority that the appellate court will uphold the ruling if there is any other ground for doing so, even though not urged below.”).
Furthermore, Wigmore disagrees with the rationale that an objection should be specific enough to allow the nonobjecting party the opportunity to cure the alleged defect. Wigmore comments:
“It is often also said the purpose of a specific objection is to supply the opposing party with such information that he may intelligently argue the matter and cure any defect. This theory, however, is mere pretense and is not to be taken seriously since the objector is under no obligation to furnish any explanation whatever if he is fortunate to have a general objection sustained.” 1 Wigmore on Evidence § 18, p. 824 (Tillers rev. 1983).
The Cunningham trial judge’s rationale follows Wigmore. In refusing to require the defendant to specify why the foundation was insufficient, the judge reasoned:
“In the State of Kansas, all you have to do is state the proper grounds for an objection. And I believe that at this time that has been done. . . .
“Problem in this particular case, is I think that [defense counsel is] employed to represent Mr. Cunningham and not the City of Overland Park and [the city prosecutor] is representing the City of Overland Park and not Mr. Cunningham. [Defense counsel] is obviously trying quite hard to keep [the BAC test results] out, and I have a suspicion that that particular bit of evidence is one that he wants to keep out. But the City, conversely, is trying very hard to get it in. If [defense counsel] were to lay the foundation for the City, he would not be representing his client.”
A trial judge has considerable discretion in evidentiary rulings concerning foundation evidence. Judicial discretion cases are not reversed unless judicial discretion is abused. See, e.g., Falls v. Scott, 249 Kan. 54, 815 P.2d 1104 (1991); State v. Woolridge, 2 Kan. App. 2d 449, 450, 581 P.2d 403, rev. denied 225 Kan. 846 (1978). It is impossible to draw a bright line rule concerning a trial court’s discretion as to whether an objection to foundation is specific enough. The trial court has considerable, latitude, but that latitude is not, and should not be, limitless.
Trial counsel owes an obligation to counsel’s client, the court, and the public to be prepared, including being familiar with basic law concerning the case. A trial judge need not reward an ill-prepared lawyer by forcing the opposing attorney to educate an attorney who is not properly prepared on basic evidentiary law. On the other hand, the trial should not be a game, where counsel is forced to guess what the objection is and what the trial court considers is lacking. A balance should be struck. The general rule in' Kansas is that a contemporaneous objection must be made and it should be specific enough that the trial judge can rule intelligently upon the objection, and the specific contemporaneous objection must be made known to the opposing counsel when the objection is lodged.
Here, counsel for the City of Overland Park in the Cunningham case introduced evidence that the officer administering the test had been trained in the use and operation of the Intoxilyzer 5000 machine used to test Cunningham’s BAC level, that he was certified to operate the machine at the time of administering the test and at the time of trial, and that he followed the prescribed procedure for operating the machine at the time of administering the test to Cunningham. The trial judge expressly acknowledged that the machine was certified properly and that the officer was certified to operate the machine. The only remaining foundation requirement is whether the test was conducted in accordance with the operational procedure for the intoxilyzer. There was no evidence to refute the officer’s testimony that he followed the prescribed procedure.
“Whether an adequate evidentiary foundation was laid is a question of fact for the trial court and largely rests in its discretion. [Citation omitted.] So long as there is substantial competent evidence to support the finding, it will not be disturbed on appeal.” State v. Lieurance, 14 Kan. App. 2d 87, 91, 782 P.2d 1246 (1989), rev. denied 246 Kan. 769 (1990).
“Testimony which establishes that a breathalyzer test machine has been approved and certified by the State as of the date of the test in question is sufficient foundation testimony to establish validity of test results from the machine.”
“Testimony which establishes that the operator of a breathalyzer machine has been certified by the State of Kansas and is presently certified as an operator, and that the test he conducted is in accordance with the operational procedure of said breathalyzer machine is sufficient foundation for the operator’s testimony relative to the results of the test.” City of Shawnee v. Gruss, 2 Kan. App. 2d 131, Syl. ¶¶ 2, 3, 576 P.2d 239, rev. denied 225 Kan. 843 (1978).
See State v. Almond, 15 Kan. App. 2d 585, 588-89, 811 P.2d 529 (1991); Lieurance, 14 Kan. App. 2d 87, Syl. ¶ 5. In State v. McNaught, 238 Kan. 567, 581, 713 P.2d 457 (1986), this court adopted the Court of Appeals’ holding in Gruss.
The City satisfied the foundation requirements, and the officer should have been allowed to testify concerning Cunningham’s BAC test result.
Appeal dismissed as to Dahn. Appeal sustained as to Cunningham. | [
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The opinion of the court was delivered by
Lockett, J.:
Defendant was charged by the City of Overland Park with driving: (1) when his breath alcohol concentration (BAC) was .10 or more; or (2) while he was under the influence of alcohol. The municipal court judge found defendant not guilty of driving when his BAC was .10 or more but guilty of driving while under the influence of alcohol. Defendant appealed his conviction for driving while under the influence of alcohol to the district court. See K.S.A. 1992 Supp. 22-3609. Prior to trial in the district court, the City requested to offer proof on the BAC alternative charged in the original complaint. The district judge found that the municipal judge’s finding of not guilty barred the City from proceeding as to the BAC alternative. The City appeals as questions reserved, pursuant to K.S.A. 22-3602(b)(3), the municipal judge’s finding the defendant was not guilty of driving when his BAC was .10 or more and the district judge’s denial of the City’s request to offer proof on the BAC alternative charged in the original complaint.
Defendant Mark A. Travis was charged by the City with (1) operating a vehicle while under the influence of alcohol, or at a time when the alcohol concentration in his breath was .10 or more as measured from samples taken within two hours after he operated the vehicle; (2) transporting, in a vehicle, upon a city street, an open container of intoxicating liquor; (3) operating a vehicle with a suspended driver’s license; and (4) failure to signal for a turn.
Overland Park Municipal Code § 12.04.030 (1991) states:
“(a) No person shall operate or attempt to operate any vehicle within this City while:
(2) the alcohol concentration in the person’s blood or breath, as measured within two hours of the time of operating or attempting to operate a vehicle, is .10 or more; or
(3) under the influence of alcohol.”
After a trial in the municipal court, the judge found Travis not guilty of operating a vehicle with an alcohol concentration in his breath of .10 or more and operating a vehicle with a suspended driver’s license and guilty of driving under the influence of alcohol, transporting an open container of alcohol, and failing to signal for a turn. Neither party was satisfied with the judge’s decision. The defendant believed he was not guilty of any of the charges, and the City claimed that the judge improperly found the defendant not guilty of one part of the DUI charge. Each party had the right to appeal that portion of the municipal judge’s decision it claimed was wrong to the district court of the county in which the municipal court is located. K.S.A. 12-4601.
A defendant has the right to appeal from any judgment of a municipal court which adjudges the defendant guilty of a violation of the ordinances of any municipality of Kansas.. K.S.A. 1992 Supp. 22-3609(1). The procedure and jurisdiction to appeal to the district court are set out in 22-3609. K.S.A. 12-4602. The defendant in his or her notice of appeal is required to designate the judgment or part of the judgment appealed from. K.S.A. 1992 Supp. 22-3609(3). When a case is appealed to the district court, the case is tried de novo in the district court on the original complaint. K.S.A. 22-3610. Pursuant to the statutes, Travis appealed to the district court only his convictions of guilty of driving while under the influence of alcohol, transporting an open container of alcohol, and failing to signal a turn, and he requested a trial by jury.
K.S.A. 12-4601(b) provides for an appeal to the district court by the City upon questions of law. Rather than appealing as a question of law the municipal judge’s finding Travis not guilty of driving with a BAC of .10 or more and staying the defendant’s jury trial, prior to the jury trial before the district judge, the City moved to be allowed to offer proof on the breath alcohol concentration alternative of its DUI charge. The district judge found that because Travis had been acquitted of driving with a BAC of .10 or more by the municipal court judge, the district court had no jurisdiction over that part of the' DUI charge and denied the motion. The jury could not reach a verdict on the charge of driving while under the influence. At the retrial, the City again requested that it be allowed to include the BAC alternative in its proof. The judge again denied the motion. Travis Was convicted of operating a vehicle while under the influence of alcohol. As a question reserved pursuant to K.S.A. 22-3602(b)(3), the City then appealed (1) the municipal judge’s finding that the defendant was not guilty of operating a vehicle with a BAC of .10 or more and (2) thé district judge’s denial of-its motion to offer proof on the BAC alternative of operating á vehicle when the alcohol concentration of his breath was .10 or more.
Appeals by the prosecution to the Supreme Court as a matter of right in cases before a district judge are limited by K.S.A. 22- 3602(b) to appeals (1) from an order dismissing a complaint, information, or indictment; (2) an order arresting judgment; (3) upon a question reserved by the prosecution; or (4) from an order granting a new trial in any case involving a class A or B felony. A judgment of acquittal is not one of the orders or matters designated as appealable by the prosecution in this statute. State v. Rodgers, 225 Kan. 242, Syl. ¶¶ 1, 2, 589 P.2d 981 (1979). If the prosecution appeals upon a question reserved, the question must be one which calls for an answer which will aid in the correct and uniform administration of the criminal law, and the question will not be entertained on appeal merely to demonstrate errors of a trial court. State v. Rodgers, 225 Kan. at 244.
The City claims that its DUI ordinance is one offense that must be tried at one time; therefore, the municipal judge did not have authority to acquit the defendant of less than the entire offense of DUI, and the City should have been allowed to offer proof on the BAC theory of the ordinance. The City asserts that the district judge’s denial of its request to offer proof was arbitrary and capricious. The City argues that because Travis was granted a trial de novo when he appealed his convictions to the district court under K.S.A. 12-4601 and 22-3609, both parties were placed in the same position in the district court as if the previous trial in the municipal court had not occurred. The City argues under these facts both the municipal court judge and the district court judge erred and the proper procedure for it to appeal the question of law is pursuant to K.S.A. 22-3602(b)(3).
Questions reserved by a city in a criminal prosecution in a district court, under K.S.A. 22-3602(b)(3), will not be entertained on appeal merely to demonstrate whether error has been committed by the district court in its rulings adverse to the prosecution. This court can accept appeals upon questions reserved by a city where the appeals involve questions of statewide interest important to the correct and uniform administration of the criminal law, and where the question of law is reserved in the correct forum.
Even though the question reserved by the City may be of statewide interest, do we have jurisdiction to hear this appeal under K.S.A. 22-3602? Jurisdiction to entertain an appeal is conferred by statute pursuant to article 3, § 3 of the Kansas Cón stitution. An appellate court has only such appellate jurisdiction as is provided by law, and the filing of a timely and proper notice of appeal is jurisdictional. State v. Moses, 227 Kan. 400, Syl. ¶¶ 7, 8, 607 P.2d 477 (1980). When the record discloses á lack of jurisdiction, it is the duty of this court to dismiss the appeal. State v. Ortiz, 230 Kan. 733, 735, 640 P.2d 1255 (1982).
K.S.A. 12-4601(b) provides the procedure for the City to appeal to the district court the question of law whether the municipal judge had authority to acquit the defendant of what the City alleges is less than the entire offense of DUI. An appeal by the City upon that question of law would have stayed all further proceedings in the defendant’s appeal to the district court. Because the City appealed the district judge’s refusal to allow it to present evidence of defendant’s BAC of .10 or more as a question of law pursuant to K.S.A. 22-3602(b)(3) rather than appealing the municipal judge’s finding the defendant not guilty of driving with a BAC of .10 or more pursuant to K.S.A. 12-4601(b), we are without jurisdiction to determine the question of law.
Appeal dismissed. | [
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The opinion of the court was delivered by
Abbott, J.:
The City of Wichita appeals on a question reserved following the acquittal of the defendant, Bryan J. Brown. Brown was tried on a charge of violating a city ordinance prohibiting loitering in a public place.
We first consider a jurisdictional issue raised by this court during the pendency of this appeal.
Trial to the bench was held on January 6 and January 10, 1992. The trial court allowed the parties to submit briefs and closing argument in writing. On February 18, 1992, the trial court filed a memorandum opinion and caused a copy of the opinion to be hand delivered to counsel for the City of Wichita and mailed a copy to the defendant. The 11-page opinion of the trial judge concludes; “Under the facts and law of this particular case, defendant is discharged.”
On the same day, February 18, 1992, the trial court filed its “Record of Trial or Plea” with the clerk of the district court for Sedgwick County showing it had found the defendant “Not Guilty.”
On March 9, 1992, the City of Wichita caused a “Journal Entry” to be executed by the trial judge and filed with the clerk of the court finding the defendant “not guilty and . . . discharged.”
The City of Wichita filed its notice of appeal on a question reserved pursuant to K.S.A. 22-3602(b)(3) on April 3, 1992. For what it is worth, the docketing statement filed by the plaintiff contains the jurisdictional statement that the City of Wichita is appealing from the February 18, 1992, “journal entry.”
The prosecution is required to file its notice of appeal on a question reserved within 30 days after the entry of judgment. State v. Freeman, 236 Kan. 274, 277, 689 P.2d 885 (1984); see K.S.A. 22-3606; K.S.A. 60-2103(a).
When was an appealable order entered in this case? Was it on February 18, 1992, or was it on March 9, 1992? If the judgment was appealable on February 18, 1992, the notice- of appeal filed on April 3, 1992, comes too late and this court has no jurisdiction.
Had the defendant been convicted in this case, an appeal could not have been taken until sentence was imposed or the imposition of sentence was suspended. See State v. Freeman, 236 Kan. at 277. However, a journal entry setting forth the sentence is not necessary to commence the appeal period for a defendant who wishes to appeal. Concerning sentencing in criminal cases, this court said:
“[T]he judgment is effective upon its pronouncement from the bench; the filing of a formal journal entry is but a record, evidence of what has been done. The court’s order does not derive its effectiveness from the journal entiy, or from any act of the clerk; it is effective when announced.” State v. Moses, 227 Kan. 400, 402, 607 P.2d 477 (1980).
In Moses, 227 Kan. at 403, this court held that K.S.A. 60-258 (no judgment is effective unless and until a journal entry or judgment form is signed and filed) does not apply to criminal cases and that K.S.A. 1992 Supp. 22-3424 governs the rendering and imposition of judgment.
K.S.A. 1992 Supp. 22-3424 provides in pertinent part: “(2) If the verdict or finding is not guilty, judgment shall be rendered immediately and the defendant shall be discharged from custody and the obligation of the defendant’s appearance bond.” Although the trial judge here did not render judgment in open court, he did file a judgment form finding the defendant not guilty and discharged on February 18, 1992. The defendant could no longer be held in jail or on bond on that charge (loitering) and, having been acquitted, he could not again be charged with that criminal offense.
We see no rational basis for holding the prosecution to a less strict time standard within which to appeal than that to which the defendant is held under Moses, 227 Kan. 400. K.S.A. 1992 Supp. 22-3424 clearly requires that when a defendant is found not guilty, judgment is to be rendered immediately and the defendant is discharged from custody and bond. No journal entry is required to give effect to the defendant’s discharge.
We hold that when an accused is found not guilty and discharged from custody and bond with the knowledge of the prosecution, the appeal time commences. In this case, the appeal time commenced on February 18, 1992. Thus, we are without jurisdiction to hear this appeal.
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The opinion of the court was delivered by
Davis, J.:
Harvey County appeals the trial court’s summary judgment ruling that “rent-to-own” personal property of J. Enterprises, Inc., d/b/a Colortyme (Colortyme), is exempt from Kansas ad valorem tax as inventory under K.S.A. 1992 Supp. 79-201m.
In 1991 the Harvey County appraiser performed a compliance review on Colortyme’s 1990 and 1991 ad valorem personal property tax renditions. The review revealed that Colortyme did not include its “rent-to-own” property on its 1990 and 1991 renditions. Colortyme excluded its “rent-to-own” property as exempt inventory under K.S.A. 1992 Supp. 79-201m.
In January 1992 the Board of County Commissioners (the County) assessed additional 1990 and 1991 property taxes against Colortyme’s rent-to-own property. The additional taxes totaled $24,441.86. The County also assessed a 100% penalty pursuant to K.S.A. 1992 Supp. 79-1427a.
Colortyme filed an action for declaratory and injunctive relief pursuant to K.S.A. 60-907(a). Colortyme alleged that its rent-to-own property was exempt “merchant’s inventory” and sought a determination that the tax assessments and penalties were illegal, void, and unenforceable. Colortyme asked the court to enjoin the county from collecting the taxes and penalty. Colortyme also sought a declaratory judgment that the contract under which the tax compliance audits were conducted was illegal, void, and unenforceable, but that issue is not before us.
The County claimed that (1) Colortyme did not purchase its rent-to-own property “primarily for resale in the ordinary course of business” (as required by K.S.A. 1992 Supp. 79-201m); (2) Colortyme purchased the property primarily for rental, which constitutes an intervening, not incidental, use under K.S.A. 1992 Supp. 79-201m(a)(l); and (3) Colortyme depreciates its rent-to-own property on its federal income tax return, which precludes its claim that the property is exempt as inventory. The district court rejected the County’s claim, found that the property was exempt as inventory, and issued a permanent injunction enjoining the County from collecting ad valorem taxes and penalties on Colortyme’s rent-to-own property. The County originally appealed to the Court of Appeals, but the matter was transferred to this court pursuant to K.S.A. 20-3018(c).
Neither the district court nor the parties questioned the jurisdiction of the district court. In light of our recent decision in Dean v. State, 250 Kan. 417, 826 P.2d 1372 (1992), and the following statement from that case, we raised the question of our jurisdiction during oral argument:.
“In the realm of taxes, matters of assessment, exemption, equalization, and valuation are administrative in character. See Symns v. Graves, 65 Kan. 628, 636, 70 Pac. 591 (1902). Under Kansas law, it would be unwarranted for a court to entertain a tax suit on any of these matters of administrative expertise where administrative remedies had not been pursued." (Emphasis added.) 250 Kan. at 421.
We are duty-bound to raise the question of jurisdiction on our own motion as we have done in this case. If it is determined that the district court had no jurisdiction, we do not. acquire jurisdiction over the subject matter upon appeal. In re Lakeview Gardens, Inc., 227 Kan. 161, Syl. ¶. 8, 605 P.2d 576 (1980). See Tri-County Public Airport Authority v. Board of Morris County Comm’rs, 233 Kan. 960, 967, 666 P.2d 698 (1983).
We granted the parties additional time after oral argument to address die question of jurisdiction.. Both parties responded by letter briefs. We have considered the additional authorities submitted by the parties and conclude that the district court did not have jurisdiction to consider the merits of the appeal because Colortyme did not exhaust its administrative remedies before applying to the court for relief. We therefore remand to the district court with directions to set aside the. judgment and to dismiss the case. •
JURISDICTION
The argument that the district court had no jurisdiction is as follows. The question of whether property is exempt as inventory is primarily a tax question which, according to the present Kansas statutory and regulatory scheme, ought to be decided in the first instance by tire paramount taxing authority in this state, the Board of Táx Appeals (BOTA); Once administrative remedies are exhausted, an aggrieved party may have resort to the courts.
The question of whether Colortyme’s rent-to-own property is exempt is, according to Dean, “administrative in character.” As such, the doctrine of exhaustion of administrative remedies applies. In Jenkins v. Newman Memorial County Hospital, 212 Kan. 92, 95, 510 P.2d 132 (1973), we said:
“The doctrine of exhaustion of administrative remedies is directed toward promoting proper relationships between the courts and administrative agencies charged with particular administrative and regulatory duties. It promotes orderly procedure and requires a party to exhaust the administrative sifting process with respect to matters peculiarly within the competence of the agency.”
It is important, we believe, that the question on appeal involves the interpretation of a'tax exemption statute, K.S.A. 1992 Supp. 79-201m. Neither the district court nor the parties question the Validity of the statute. All parties accept that this is the law in Kansas. The question is whether the County erroneously interpreted the statute and has little to do with the legality of the County’s actions.
Colortyme contends that the district court had jurisdiction because Colortyme sought to enjoin the County from illegally levying and collecting ad valorem taxes and penalties on its rent-to-own inventory. Based upon its allegations of illegality, Colortyme claimed that the trial court had jurisdiction to hear and determine this case under the provisions of K.S.A. 60-907(a), which provides as follows:
“Injunctive relief may be granted to enjoin the illegal levy of any tax, charge or assessment, the collection thereof, or any proceeding to enforce the same.”.
The answer to the jurisdiction question depends not so much upon what a party claims as relief before the district court as it does on the nature of the actual relief sought. Colortyme contends that it does not seek “tax relief” but only injunctive relief because the tax assessments are illegal. While it claims the assessments are illegal, its ultimate success in the district court was directly dependent upon convincing the court that the County’s application of the statute under the facts was erroneous, not that the acts of the County were illegal. Colortyme sought to be free of the assessments.
If a party may confer jurisdiction upon the courts under 60-907(a) by claiming that the actions of a taxing authority are illegal, concurrent jurisdiction would exist in nearly every case with the district court and with BOTA. In all cases where a taxpayer claimed an exemption, the taxpayer would only need to claim that the tax assessed was illegal in order to confer jurisdiction upon the district court and bypass BOTA completely. The present remedy for a taxpayer claiming exemption from ad valorem taxes is exclusive, conferring no original jurisdiction on the district court, but requiring the taxpayer to exhaust remedies before BOTA prior to applying to the district court for relief.
Past decisions of this court provide some guidance in clarifying the jurisdictional question of whether plaintiff must first exhaust its administrative remedies. These decisions1 make it clear that neither semantics nor how one couches his or her request for relief keys the result.
As early as 1902, this court in Symns v. Graves, 65 Kan. 628, 70 Pac. 591 (1902), discussed the difference between administrative and judicial concerns. Symns involved an administrative action by the board of equalization involving the valuation of real estate for purposes of taxation. The court delineated administrative and judicial functions as follows:
“Matters of assessment and taxation are administrative in their character and not judicial, and an interference by. judges who are not elected for that purpose with the discharge of their duties by those officers who are invested with the sole authority to make and estimate value is unwarranted by the law. The district court could not substitute its judgment for that of the board of equalization, and this court cannot impose its notion of value on either. These are fundamental principles in the law of taxation and cannot be waved aside to meet the exigencies of any particular case. [Citations omitted.]
“But fraud, corruption and conduct so oppressive, arbitrary or capricious as to amount to fraud, will vitiate any official act, and courts have power to relieve against all consequential injuries. In every case, however, the departure from duty must be shown by the party seeking redress to fall within the well-defined limits of the powers of a court of equity.” Symns, 65 Kan. at 636.
Symns then asks the queston: “Are the acts of the board of equalization in this case so arbitrary, then, as to amount to official misconduct or fraud?” 65 Kan. at 637.
We have applied Symns as the test for determining whether jurisdiction exists in the courts in the first instance, or whether a party is required to first exhaust administrative remedies. See Shields Oil Producers, Inc. v. County of Russell, 229 Kan. 579, 583, 629 P.2d 152 (1981).
Mobil Oil Corporation v. McHenry, 200 Kan. 212, 234, 436 P.2d 982 (1968), admittedly involved an assessment rather than an exemption, but nevertheless involved a question of delineating judicial and administrative functions. In McHenry, the court said:
“Cases thoughout the history of Kansas disclose that the expression ‘the illegal levy of any tax, charge or assessment,’ contained in 60-907, supra, and its predecessors, has reference to action of an administrative official or board taken without authority, or action of an administrative official or board which is permeated with fraud, corruption or conduct so oppressive, arbitrary or capricious as to amount to fraud in connection with the levy of any tax, charge or assessment.” (Emphasis added.)
In that same year, we decided Harshberger v. Board of County Commissioners, 201 Kan. 592, 594-95, 442 P.2d 5 (1968). Although Harshberger also involved assessment, the court’s analysis of the judicial and administrative functions applies equally to cases involving exemptions:
“The courts have no difficulty with their power and authority where taxing bodies are attempting to proceed without statutory authority or contrary to statute [citation omitted] or where taxing authorities are proceeding against property outside their jurisdiction [citation omitted]. These are matters rightly within the province of the judiciary. However, when courts are confronted with purely administrative acts relating to taxation their jurisdiction becomes quite limited.
“. . . Matters of taxation, especially assessments, are administrative in their character and should remain free of judicial interference in the absence of fraud, corruption and conduct so oppressive, arbitrary or capricious as to amount to fraud.”
The Harshberger court noted that
“[a]ll of our decisions indicate that the correction of alleged errors in the valuation of real estate for the determination of the proper assessment is an administrative function and not judicial, and unless the assessment is fraudulent or void or the action is one for an interpretation of law.” 201 Kan. at 596.
In its letter brief to this court, Colortyme relies upon the case of Misco Industries, Inc. v. Board of Sedgwick County Comm’rs, 235 Kan. 958, 685 P.2d 886 (1984), for authority that the district court had jurisdiction under the provisions of K.S.A. 60-907(a) to entertain this action. However, upon a careful reading of Misco Industries and authorities cited therein, Misco Industries does not support Colortyme’s position. Colortyme relies upon the following language from Misco Industries to support its position:
“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).” 235 Kan. at 966-67.
At first blush, it would appear that the above statement provides some support for Colortyme in regard to its contention that jurisidiction in the district court existed. Misco Industries relied upon the case of Mobil Oil Corporation v. Medcalf, 207 Kan. 100, 104, 483 P.2d 1111 (1971), in which that same statement was supported by the following citation of authority Garvey Grain, Inc. v. MacDonald, 203 Kan. 1, 453 P.2d 59 (1969); Mobil Oil Corporation v. Reynolds, 202 Kan. 179, 446 P.2d 715 (1968); Harshberger v. Board of County Commissioners, 201 Kan. 592; Mobil Oil Corporation v. McHenry, 200 Kan. 211; Board of County Commissioners v. Brookover, 198 Kan. 70, 422 P.2d 906 (1967); Schulenberg v. City of Reading, 196 Kan. 43, 410 P.2d 324 (1966).
In Garvey Grain the court said:
“It is the settled law in this jurisdiction that the assessment of property for tax purposes may not be set aside on account of mere errors of judgment on the part of the assessing officials. . . . Before courts will interfere [in assessment matters], the conduct of the assessing officer must be without authority or so arbitrary or unreasonable as to amount to constructive fraud. The rule is merely the specific application of the rule of law that the assessment of property, when done in accordance with law, is an administrative function in which courts do not interfere or substitute their judgment for that of the administrative authority.’’ 203 Kan. at 13.
In Mobil Oil Corporation v. Reynolds, the court clearly delineates jurisdiction of the district court:
“The expression ‘illegal levy of any tax, charge or assessment’ as contained in K.S.A. 60-907(a) has reference to action of an administrative official or board taken without statutory authority or contrary to statutory authority or to action taken by an administrative official or board which is permeated with fraud, corruption or conduct so oppressive, arbitrary or capricious as to amount to fraud in connection with the levy of a tax, charge or assessment.” 202 Kan. 1791 Syl.. ¶ 1.
Similar language appears in McHenry, 200 Kan. 211, Syl. ¶ 10, and in Harshberger, 201 Kan. 592, Syl. ¶ 3.
In both Schulenberg and Brookover, the court required a finding that the official action must amount to “fraud, corruption [or] conduct so oppressivé, arbitrary or capricious as to amount to fraud” in order to give rise to jurisdiction in the district court. Schulenberg, 196 Kan. at 53; see Brookover, 198 Kan. at 73. In Schulenberg, plaintiffs challenged a special assessment. This court found that the plaintiffs’ allegations “if not expressly alleging fraud, allege conduct so oppressive, arbitrary, unlawful and capricious as amounting to fraud.” 196 Kan. at 54. The court found that the assessments were palpably unjust, unreasonable, and discriminatory and that the plaintiffs were entitled to equitable relief. 196 Kan. at 55. In Brookover this court affirmed the trial court’s finding that the defendants’ acts were “free from any capricious, arbitrary, oppressive or unreasonable conduct.” 198 Kan. at 72.
The court’s comment in Misco Industries, Inc. that “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” must be viewed in light of its supporting authorities, which help to define “without statutory authority” and “contrary to the statutes.” See Mobil Oil Corporation v. Medcalf, 207 Kan. at 104 and authorities cited therein. In those cases where the county taxing authority acts in good faith and its action is taken in accordance with law but may involve an erroneous application of the law, administrative relief is provided for by statute.
Colortyme argues that the court must resolve this dispute because it involves an interpretation of the law regarding inventory. Yet, the interpretation of a statute is not a uniquely judicial function, particularly in the area of taxation. In many (if not all) instances, the question of whether an exemption applies requires statutory interpretation. See Board of Johnson County Comm’rs v. St. Joseph Hosp., 241 Kan. 613, 615, 738 P.2d 454 (1987). The board charged with the responsibility of deciding tax matters in Kansas is suited for resolving tax exemption claims even though such claims involve statutory interpretation.
Dean v. State, 250 Kan. 417, 826 P.2d 1372 (1992), tells us that the question of exemption is administrative in character and clearly a question of taxation. It would be difficult to claim with any conviction that the County’s assessment of tax in this case was fraudulent, without statutory authority, or the result of corruption or was action that amounted to official misconduct in office. The concurring and dissenting opinion in Northern Natural Gas Co. v. Williams, 208 Kan. 407, 493 P.2d 568, cert, denied 406 U.S. 967 (1972), summarized the definitions of the key terms at issue here:
“This court has defined arbitrary to mean ‘without adequate determining principles . . . not done dr acting according to reason or judgment’; oppressive, as ‘harsh, rigorous, or severe’; capricious, as ‘changing apparently without regard to any laws.’ (Eureka B. & L. Ass'n v. Myer, 147 Kan. 609, 78 P.2d 68.) In City of Clay Center v. Meyers, 52 Kan. 363, 365, 35 Pac. 25, we defined constructive fraud to mean ‘any act of omission or commission contrary to legal or equitable duty, trust or confidence justly reposed, which is contrary to good conscience, and operates to the injury of another.’ ” 208 Kan. at 430 (Fatzer, C.J., concurring and dissenting).
Under the above definitions, it is clear that the actions of the County in assessing taxation in this case were not arbitrary, oppressive, or capricious. Nor did the County’s assessment amount to constructive fraud. Without deciding the issue, the action of the County in making the assessment may have been erroneous, but certainly its action was not illegal. There simply was no jurisdiction in the district court under 60-907(a) to entertain the case before Colortyme exhausted its administrative remedies before BOTA. ... , ,.
ADEQUACY OF REMEDY
In the case of State ex rel. Smith v. Miller, 239 Kan. 187, Syl. ¶ 1, 718 P.2d 1298 (1986), we said:
“The well-recognized rule in this state is that where a full and adequate administrative remedy is provided in tax matters by statute, such remedy must ordinarily be exhausted before a litigant may resort to the courts.”
In Syl. ¶ 2, we said:
“A party aggrieved by an administrative ruling is not free to pick and choose a procedure in an action in the district court in order to avoid the necessity of pursuing his remedy through administrative channels.”
Miller relied upon an earlier case of Tri-County Public Airport Authority v. Board of Morris County Comm’rs, 233 Kan. 960, 666 P.2d 698 (1983). While Tri-County involved an action in mandamus brought against the Board of County Commissioners to determine the tax-exempt status of certain real property owned by Tri-County, the holding of the court deals with the question of whether a taxpayer may go directly into the district court seeking such extraordinary remedies as mandamus and injunction without first exhausting administrative remedies. Writing for the majority, Justice Prager traces the historical development of the remedies granted to a taxpayer seeking an exemption from ad valorem taxes. The court concludes that a full and complete administrative remedy is provided to the taxpayer, which remedy must first be exhausted before the taxpayer may seek relief before a district court. It serves our purpose here to quote at length from the court’s opinion:
“The 1941 legislature enacted G.S. 1935, 79-2005 (1941 Supp.) which is the forerunner of what is now K.S.A. 1982 Supp. 79-2005. The new statute for the first time gave a taxpayer protesting the payment of taxes the right to bring an action, within thirty days after the filing of his tax protest, in a court of competent jurisdiction or, in the alternative, the right to file an application with the state commission of revenue and taxation (now the state board of tax appeals). 79-2005 thus provided an alternative judicial remedy to an aggrieved taxpayer after paying his taxes under protest. The thirty-day limitation for filing the action in the district court was strictly enforced by the courts. Failure of the taxpayer to commence an action in district court to recover taxes paid under protest within thirty days after filing his protest deprived the district court of jurisdiction. Williams v. Board of County Commissioners, 192 Kan. 548, 389 P.2d 795 (1964).
“The cases following the adoption of 79-2005 have consistently held that the remedies provided in that statute were cumulative, so that a taxpayer could pay his taxes under protest and either present his tax grievance to the administrative board provided for in the statute or file an action in district court within the time period allowed after protest. Addington v. Board of County Commissioners, 191 Kan. 528, 533, 382 P.2d 315 (1963); Board of Park Commissioners v. Board of County Commissioners, 206 Kan. 438, 480 P.2d 81 (1971).
“Unfortunately, the various Kansas statutes pertaining to procedure in the area of taxation, including appeals, were not organized into a complete, rational scheme. K.S.A. 74-2426 permitted an appeal from the state board of tax appeals in most cases, but there were limitations on the right of a taxpayer to appeal to district court under that statute. In the case of In re Lakeview Gardens, Inc., 227 Kan. 161, 605 P.2d 576 (1980), it was held that the tax grievance statutes, Article 17 of.Chapter 79 of the Kansas Statutes Annotated, contained no provision for a right of appeal to the courts from orders of BOTA correcting or refusing to correct irregularities. The court held specifically that K.S.A. 1979 Supp. 74-2426, governing appeals from orders of BOTA was inapplicable to original applications for relief from tax grievances before BOTA under K.S.A. 79-1702. That case followed a prior decision, City of Kansas City v. Jones & Laughlin Steel Corp., 187 Kan. 701, 704, 360 P.2d 29 (1961), which limited appeals to the courts under 74-2426 to such cases as are appealed from the directors of revenue and property valuation as distinguished from original applications. It held that, there being no statutory provision for appellate review, relief could be found in such equitable remedies as quo warranto, mandamus, or injunction.
“In the 1980 legislative session, the House Committee on Assessment and Taxation considered the confusion in the procedural aspects of the Kansas taxing laws. It introduced comprehensive legislation which sought to achieve a number of specific objectives: (1) The elimination of direct actions filed in the district court in tax grievance cases and the requirement in all tax protest cases of a hearing before the board of tax appeals, with right of appeal to the district court; (2) a codification of the tax exemption procedure in Chapter 79, Article 2, with provision for judicial review of tax exemption matters under an omnibus appeals procedure statute, covering every type of order of the board of tax appeals. Such omnibus procedure statute was to include protests, exemptions, and equalization appeals along with appeals involving all taxing departments.
“These basic objectives for tax procedural reform are clearly set forth in the minutes of the House Committee on Assessment and Taxation meeting held on March 3, 1980. Following hearings before the committee, the legislature enacted several bills which incorporated the proposed statutory changes and developed a legislative scheme involving procedure in all types of tax cases, including a method of appeal to the district courts in all cases where a taxpayer deems himself aggrieved by orders of BOTA. All of these bills were enacted and approved by the Governor in April 1980, and became effective either during that month or on July 1, 1980, after the effective date of all the new statutory provisions. The new statutory provisions made significant changes in the remedies provided to aggrieved taxpayers in all areas of ad valorem taxation, including cases where a taxpayer claimed an exemption from taxation.
“The 1980 reforms in tax procedure are contained primarily in three statutes. The first is K.S.A. 1980 Supp. 79-2005 which was effective July 1, 1980. The former language in that section, which permitted an aggrieved taxpayer to pay his taxes under protest and then file an action within thirty days in a court of competent jurisdiction, was eliminated. His sole remedy is now to file an application for refund within the thirty-day period with BOTA. This statutory change achieved the legislative objective of eliminating direct action in the district court, thus channeling all tax matters through BOTA, the paramount taxing authority in the state. Northern Natural Gas Co. v. Dwyer, 208 Kan. 337, 492 P.2d 147 (1971), cert, denied 406 U.S. 967 (1972).
“The second important 1980 statutory change was in K.S.A. • 74-2426, which provides in part:
‘(a) Whenever the board of tax appeals shall enter its final order on any appeal or in any proceeding under the tax protest, tax grievance, tax exemption statutes or any original proceeding before the board other than the above cases said board shall make written findings of fact forming the basis of such determination and final order and such findings shall be made a part of such final order. The board shall mail a copy of its final order to all parties to the proceeding within ten days following the certification of the order. The appellant or applicant and the county appraiser shall be served by restricted mail.
‘(b)(1) No appeal shall be taken from a final order of the board unless the aggrieved party shall have first filed a motion for rehearing of that order with the board and the board shall have granted or denied the motion for rehearing, or thirty days shall have lapsed from the filing of that motion with the board, from which it shall be presumed that the board has denied the motion. Any order issued by the board following a rehearing shall become the final order of the board.
‘(2) Within thirty days following the certification of any final order of the board, on such motion for rehearing, any aggrieved party in such appeal or proceeding may appeal to the district court of the proper county.
‘(3) No appeal shall be taken from any order of the board in a no-fund warrant proceeding issued pursuant to K.S.A. 12-110a, 12-1662 et seq., 19-2752, 75-4361, 79-2938, 79-2939, 79-2951 and statutes of a similar character.
‘(4) This statute shall be exclusive in determining appeals taken from all decisions of the board of tax appeals after the' effective date of this act and shall, exclusively govern the procedure to be followed in taking any appeal from the board of tax appeals from and after such date.’
This statutory change was effective April 16, 1980, and permits an appeal from any order of BOTA including original proceedings before BOTA. It achieved the legislative objective by providing for judicial review of all tax exemptions and the other mentioned tax matters under an omnibus tax appeals procedure.
“The third statutory change was the enactment of a new statute, K.S.A. 1982 Supp. 79-213, effective July 1, 1980, which provides:
‘(a) Any property oivner requesting an exemption from the payment of ad valorem property taxes assessed, or to be assessed, against their property shall be required to file an initial request for exemption, on forms approved by the board of tax appeals and provided by the county appraiser.
‘(b) The initial exemption request shall identify the subject property and state, in detail, the legal and factual basis for the exemption claimed.
‘(c) The request for exemption shall be filed with the county appraiser of the county where the subject property is principally located.
‘(d) After a review of the exemption request, and after a preliminary examination of the facts as alleged, the county appraiser shall recommend that the exemption request either be granted or denied, and, if necessary, that a hearing be held. If a denial is recommended, a statement of the controlling facts and law relied upon shall be included on the form.
‘(e) The county appraiser, after making such written recommendation, shall then file the request for exemption and the recommendations of the county appraiser with the board of tax appeals.
‘(f) Upon receipt of the request for exemption, the board shall docket the same and notify the applicant and the county appraiser of such fact.
‘(g) After examination of the request for exemption, and the county appraiser’s recommendation related thereto, the board may fix a time and place for hearing, and shall notify the applicant and the county appraiser of the time and place so fixed. In any case where a party to Such request for exemption requests a hearing thereon, the same shall be granted. In all instances where the board sets a request for exemption for hearing, the county shall be represented by its county attorney or county counselor.
‘(h) In the event of a hearing, the same shall be originally set not later than ninety (90) days after the filing of the request for exemption with the board.
‘(i) When a determination is made as to the merits of the request for exemption, the board shall enter its order thereon and give notice of the same to the applicant, the county attorney and the county appraiser by sending to each a certified copy of its order.
‘(j) The date of the order, for purposes of filing an appeal to the district court, shall be the date that a certified copy of the order is mailed to the party seeking to appeal.
‘(k) During the pendency of a request for exemption, and in the event that taxes have been assessed against the subject property, no interest shall accrue on any unpaid tax for the year or years in question from the date the request is filed with the county appraiser until the expiration of thirty (30) days after the board issued its order thereon.
‘(1) In the event the board grants the initial request for exemption, the same shall be effective for the period beginning with the date of first exempt use and ending on December 31 of the tax year in question. Thereafter, the tax exemption shall be renewed by the filing of an annual claim for exemption pursuant to K.S.A. 1982 Supp. 79-210 with the county appraiser of the county in which the subject property is principally located.
‘(m) In conjunction with its authority to grant exemptions, the board shall have the authority to abate all unpaid taxes that have accrued from and since the date of first exempt use. In the event that taxes have been paid during the period where the subject property has been determined to be exempt, the board shall have the authority to order a refund of said taxes for a period not to exceed three (3) years.’ (Emphasis supplied).” 233 Kan. at 962-66.
Finally, the Tri-County Public Airport Authority court concluded:
“The obvious legislative intent in enacting these statutes was to provide an exclusive statutory remedy before BOTA in all cases involving a claim of tax exemption by any property owner, including political subdivisions of the state. These statutory changes achieve the legislative objective of codifying tax exemption procedures.” (Emphasis supplied.) 233 Kan. at 966.
We conclude in a like manner by holding that Colortyme was provided with a full and adequate administrative remedy under the provisions of K.S.A. 1992 Supp. 79-2005, .K.S.A. 74-2426, and K.S.A. 1992 Supp. 79-213 for the determination of whether its rent-to-own property was tax-exempt under the provisions of K.S.A. 1992 Supp. 79-201m. Like the taxpayer in Tri-County Public Airport Authority,
“[Colortyme] made no attempt to avail.itself of the administrative remedy; it had no right to resort to the courts in an independent action. It follows that the district court had no jurisdiction to determine this case and this court does not acquire jurisdiction over the subject matter upon appeal.” 233 Kan. at 967.
As a practical matter, exhaustion of administrative remedies promotes harmony and serves .the best interest of the public. The question presented is a difficult one, the resolution of which will affect not only the taxpayer involved but other enterprises of a similar nature in our state. In the area of taxation, this question should be resolved by the paramount taxing authority in this state absent questions involving essentially nontax questions such as whether the taxing authority took the action without valid legislative authority; whether the taxing authority acted lawfully; or whether the action taken under the statute was so arbitrary, capricious, unreasonable, and subversive of private rights as to indicate a clear abuse rather than a bona fide exercise of power.
Exhaustion of administrative remedies does not forfeit the right to have the matter finally resolved by the courts. Once administrative remedies are exhausted, an aggrieved party has the right to have the matters reviewed by the court. See K.S.A. 74-2426. The remedy provided in K.S.A. 1992 Supp. 79-2005 and K.S.A. 74-2426 is available even to a delinquent taxpayer. Board of Osage County Comm’rs v. Schmidt, 12 Kan. App. 2d 812, 814, 758 P.2d 254, rev. denied 243 Kan. 777 (1988). See In re Tax Protest of Rice, 228 Kan. 600, 620 P.2d 312 (1980).
The exhaustion of administrative remedies promotes the proper relationship between the courts and the administrative agency involved. BOTA is charged with particular administrative and regulatory duties with respect to the question of exemptions. Matters of tax exemptions are administrative in character and peculiarly within the competency of BOTA. See Dean v. State, 250 Kan. 417, 421, 826 P.2d 1372 (1992); Jenkins v. Newman Memorial County Hospital, 212 Kan. 92, 95, 510 P.2d 132 (1973).
Because we find that Colortyme did not exhaust its administrative remedies, the district court did not have jurisdiction herein. This case is remanded to the district court with directions to set aside its judgment and to dismiss the case.
Abbott, J., not participating.
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The opinion of the court was delivered by
Holmes, C.J.:
Plaintiff, Dwight E. McMillen, appeals from a district court order denying his petition for mandamus. The petition requested that the court order the defendant, Board of Education of U.S.D. No. 380, to continue payment of McMillen’s salary pending the outcome of a due process hearing and any post-hearing appeals. This appeal is related to our recent decision in U.S.D. No. 380 v. McMillen, 252 Kan. 451, 845 P.2d 676 (1993), hereafter McMillen I.
The facts underlying this appeal are not in dispute and were set forth in McMillen 1 as follows:
“Dwight E. McMillen was a certified, tenured, public schoolteacher employed by U.S.D. No. 380. On April 1, 1991, the school board of the district adopted a resolution stating its intent to nonrenew McMillen’s contract. On April 10, 1991, the board notified McMillen in writing of its intent not to renew his contract for the 1991-92 academic year. McMillen timely requested a due process hearing pursuant to K.S.A. 72-5436 et seq. The hearing was conducted in August 1991, and on October 30, 1991, the hearing committee issued its written opinion in which it found, in a two-to-one decision, that the school board failed to show good cause to nonrenew McMillen’s employment contract. The hearing committee concluded that the resolution of intent to nonrenew the contract should be rescinded and that McMillen should be reinstated to his teaching position with back pay. On November 4, 1991, the school board adopted the opinion of the hearing committee as its decision, as required by K.S.A. 1991 Supp. 72-5443.” 252 Kan. at 452.
U.S.D. No. 380 subsequently filed a notice of appeal and petition in district court, pursuant to K.S.A. 1991 Supp. 60-2101(d) and K.S.A. 1991 Supp. 72-5443, alleging, among other things, that K.S.A. 1991 Supp. 72-5443 violated §§ 2 and 5 of Article 6 of the Kansas Constitution. The district court determined that the statute was unconstitutional and McMillen appealed from that order. This court on review held that K.S.A. 1991 Supp. 72-5443 did not violate the provisions of either § 2 or § 5 of Article 6 of the Kansas Constitution. This court also held that while the school board was required to adopt the opinion of the due process committee as the board’s decision, it had the right to appeal such opinion and decision. We reversed the trial court’s determination that the statute was unconstitutional and remanded the case to the district court for review on the merits. That case is still pending in district court.
On February 5, 1992, McMillen filed a petition for mandamus in district court, seeking an order compelling the Board of Education “to continue payment of his salary until such time as Mr. McMillen’s continuing contract with the Plaintiff is terminated as a result of Defendant’s appeal in Unified School District No. 380, Marshall County, Kansas v. Dwight E. McMillen, Case No. 91-CV-52.” The trial court denied the petition for mandamus, reasoning that the Board of Education had followed the applicable law for teacher termination. The district court also reasoned that the teacher was fully protected, and in the event that the teacher prevailed, he would be fully compensated. McMillen timely filed a notice of appeal to the Kansas Court of Appeals. The appeal was transferred to this court pursuant to K.S.A. 20-3018(c).
McMillen has designated two issues on appeal:
“I. Does the District have a legal duty to continue Mr. McMillen’s salary payments when he has not been properly terminated by the Board of Education?
“II. Is mandamus the appropriate remedy for enforcing Mr. McMillen’s legal rights?”
The first issue is stated differently by U.S.D. No. 380. It characterizes the issues as follows:
“I. Does the School District have the legal duty to pay Mr. McMillen’s salary following the expiration of his contract of employment for the 1990-91 school year and pending action by a due process hearing committee and pending any appeals from the action of said committee or pending appeals by Mr. McMillen or the School District?
“II. Is mandamus the appropriate remedy for the relief sought by Mr. McMillen?”
We will first direct our attention to the jurisdictional issue of whether mandamus is appropriate for resolution of the issues asserted in the district court and on appeal.
K.S.A. 60-801 provides:
“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.”
Although U.S.D. No. 380 concedes that mandamus is the appropriate avenue for relief, this court when determining jurisdiction, is not bound by the admissions or concessions of the parties. Mandamus, being an extraordinary remedy, may only be used in certain specific instances and is generally recognized as appropriate for the purpose of compelling a public officer to perform a clearly defined duty imposed by law and not involving the exercise of discretion. Manhattan Buildings, Inc. v. Hurley, 231 Kan. 20, 26, 643 P.2d 87 (1982); Mobil Oil Corporation v. McHenry, 200 Kan. 211, Syl. ¶ 14, 436 P.2d 982 (1968). Even in cases where an adequate remedy exists at law, mandamus may be appropriate under limited circumstances. In State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, Syl. ¶ 1, 687 P.2d 622 (1984), we held:
“Mandamus is a proper remedy where the essential purpose of the proceeding is to obtain an authoritative interpretation of the law for the guidance of public officials in their administration of the public business, notwithstanding the fact that there also exists an adequate remedy at law.”
In the instant case we are faced with an issue of first impression, vital to all school boards and teachers, which is not clearly covered by our statutes. Under these circumstances we have no hesitancy in finding that mandamus is an appropriate proceeding in which to resolve the issue now before the court.
We now turn to the principal issue before the court. The parties do not dispute the fact that the school board gave McMillen a notice of intent to nonrenew his teaching contract for the 1991-92 school year as required by K.S.A. 72-5437 (Ensley 1985). Nor is it disputed that McMillen timely requested a hearing as provided by statute. The hearing committee, selected pursuant to the applicable statutes, conducted a full hearing in August 1991 and issued its written opinion October 30, 1991. Subsequently, the school board adopted the opinion as its decision as it was required to do by K.S.A. 1991 Supp. 72-5443(b). On November 20, 1991, the school board filed a notice of appeal to the district court.
The issue squarely before us is whether the school board was obligated to continue paying McMillen’s salary past the end of the 1990-91 contract year and, if so, for how long thereafter.
McMillen divides the issue into three sub-parts or arguments, asserting (1) he has a constitutional right to continue to receive his salary until his employment has been terminated; (2) Kansas statutes require that he continue to receive his salary pending final determination of the due process proceedings, including any appeals; and (3) equity requires granting the requested relief.
McMillen argues that a tenured teacher’s right to continued employment is a property interest protected by the Fourteenth Amendment, and that the State may not deprive an individual of the right to practice his chosen profession without providing due process. He contends that his termination violated due process requirements of the United States Constitution.
To be entitled to due process, McMillen must have a property interest in his continued employment with U.S.D. No. 380. State law rather than the United States Constitution must provide the source of this property interest. Kosik v. Cloud County Community College, 250 Kan. 507, 512, 827 P.2d 59 (citing Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538, 84 L. Ed. 2d 494, 105 S. Ct. 1487 [1985]), cert, denied_U.S. _, 121 L. Ed. 2d 138 (1992). Kosik observes “[o]nce the State has conferred a property interest, the property interest cannot be taken without constitutional, procedural due process. 470 U.S. at 541. In Kansas, a public employee who may be discharged only ‘for cause’ has a property interest in continued employment.” 250 Kan. at 512. We agree with McMillen that a tenured teacher’s right to continued employment is a property right subject to the protections of due process.
The real issue before us is the extent of the due process required prior to termination of the tenured teacher’s right to continue to receive his or her salary. McMillen relies heavily on Loudermill for his contentions that he has a constitutional right to a due process proceeding prior to termination of his salary and a right to continuation of his salary thereafter until all appeals have been finally resolved. We agree with his first contention.
In Loudermill, the Board of Education hired Loudermill as a security guard. Under Ohio law, Loudermill was designated as a “classified civil servant” and by statute could be terminated only “for cause.” On his job application, Loudermill stated he had never been convicted of a felony. Upon discovering that he had in fact been convicted of grand larceny, the Board dismissed him for dishonesty. He was not afforded an opportunity to respond to the dishonesty charge or to challenge the dismissal. Loudermill filed suit in federal district court, alleging that the Ohio statute providing for administrative review was unconstitutional on its face because it provided no opportunity for a discharged employee to respond to charges against him prior to removal, thus depriving him of liberty and property without due process. The district court dismissed the suit for failure to state a claim on which relief could be granted. The Court of Appeals for the Sixth Circuit reversed in part and ordered a remand, holding that Loudermill had been deprived of due process and that the compelling private interest in retaining employment, combined with the value of presenting evidence prior to dismissal, outweighed the added administrative burden of a pretermination hearing. Cleveland Board of Education v. Loudermill, 721 F.2d 550, 562 (6th Cir. 1983). The United States Supreme Court granted certiorari. The Supreme Court determined that the Ohio statute plainly supported the conclusion that Loudermill possessed property rights in continued employment. The Court then explained the extent of due process required by the United States Constitution:
“We have described ‘the root requirement’ of the Due Process Clause as being ‘that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.’ Boddie v. Connecticut, 401 U.S. 371, 379 (1971) (emphasis in original); see Bell v. Burson, 402 U.S. 535, 542 (1971). This principle requires ‘some kind of a hearing’ prior to the discharge of an employee who has a constitutionally protected property interest in his employment. Board of Regents v. Roth, 408 U.S., at 569-570; Perry v. Sindermann, 408 U.S. 593, 599 (1972). As we pointed out last Term, this rule has been settled for some time now. . . .
“The need for some form of pretermination hearing, recognized in these cases, is evident from a balancing of the competing interests at stake. These are the private interest in retaining employment, the governmental interest in the expeditious removal of unsatisfactory employees and the avoidance of administrative burdens, and the risk of an erroneous termination. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976).” 470 U.S. at 542-43.
The Court went on to describe in more detail the due process requisites of the pretermination hearing:
“The foregoing considerations indicate that the pretermination “hearing,’ though necessary, need not be elaborate. We have pointed out that ‘[t]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings.’ Boddie v. Connecticut, 401 U.S., at 378. See Cafeteria Workers v. McElroy, 367 U.S. 886, 894-895 (1961). In general, ‘something less’ than a full evidentiary hearing is sufficient prior to adverse administrative action. Mathews v. Eldridge, 424 U.S., at 343. Under state law, respondents were later entitled to a full administrative hearing and judicial review. The only question is what steps were required before the termination took effect.
“In only one case, Goldberg v. Kelly, 397 U.S. 254 (1970), has the Court required a full adversarial evidentiary hearing prior to adverse governmental action. However, as the Goldberg Court itself pointed out, see id., at 264, that case presented significantly different considerations than are present in the context of public employment. Here, the pretermination hearing need not definitively resolve the propriety of the discharge. It should be an initial check against mistaken decisions—essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action. See Bell v. Burson, 402 U.S., at 540.
“. . . The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story. [Citations omitted.] To require more than this prior to termination would intrude to an unwarranted extent on the government’s interest in quickly removing an unsatisfactory employee.
“We conclude that all the process that is due is provided by a pretermination opportunity to respond, coupled with post-termination adminis trative procedures as provided by the Ohio statute.” 470 U.S. at 545-48. (Emphasis added.)
• It appears clear from Loudermill that although a minimal due process hearing is required prior to termination of a protected employment right, once such a pretermination hearing has been provided the employee may be terminated so long as state statutes provide for a- full administrative hearing thereafter. Loudermill does not support McMillen’s argument that he is entitled to a continuation of his salary throughout the statutory appeals process.
Indeed, Justice Marshall, although concurring in the judgment, wrote separately to register his concern with what the majority of the Court did not hold:
“I write separately, however, to reaffirm my belief that public employees who may be discharged only for .cause are entitled, under the Due Process Clause of the .Fourteenth Amendment, to more than respondents sought in this case. I continue to believe that before the decision is made to terminate an employee’s wages, the employee is entitled to an opportunity to test the strength of the evidence "by confronting and cross-examining adverse witnesses and by presenting witnesses on his own behalf, whenever there are substantial disputes in testimonial evidence,’ Arnett v. Kennedy, 416 U.S. 134, 214 (1974) (Marshall, J., dissenting). Because the Court suggests that even in this situation due process requires no more than notice and an opportunity to be heard before wages are cut off, I am not able to join the Court’s opinion in its entirety. ” (Emphasis added.) 470 U.S. at 548 (Marshall, J., concurring).
K.S.A. 72-5436 et seq. establish a comprehensive due process procedure which may be invoked by a tenured teacher who disagrees with a school board’s notice of intent to nonrenew the teaching contract. K.S.A. 1991 Supp. 72-5439 sets forth in detail the procedural and other requirements of the statutory due process hearing. However, nothing in our statutes requires that a nonrenewed teacher’s, salary must be continued until the statutory due process proceeding and any appeals therefrom are finally completed. As in Loudermill, Kansas statutes provide for a full adversarial due process hearing following termination of the teacher’s contract. Based upon the decision in Loudermill and the failure of our statutes to address the issue, we conclude that McMillen had a constitutional right to continue to receive his salary until given a pretermination hearing.
As recognized in Loudermill, the pretermination hearing does not require the formalities and procedural requisites to the extent provided by our statutory due process procedure. The pretermination hearing need be nothing more than a hearing at which the teacher is advised of the charges and given an explanation of the nature of the evidence upon which the school board relies, along with an opportunity for the teacher to present his or her side of the story and any explanation the teacher may care to make in denying the charges. Such a hearing could be provided by an appropriate administrative officer of the school district. If such a hearing is provided, then the constitutional due process recognized in Loudermill has been satisfied. Until such time, the teacher is entitled to continue to receive the salary provided by the contract between the parties.
In the instant case, as no pretermination hearing was provided before or after the end of the 1990-91 contract year, McMillen had a constitutional right to continue to receive his salary until such time as the statutory due process hearing was concluded. The comprehensive due process hearing provided by K.S.A. 1991 Supp. 72-5439, absent any pretermination hearing, adequately fulfills constitutional due process and supplants the need for a pretermination hearing of the type described in Loudermill. The due process requirements of the Fourteenth Amendment do not require the payment of salary after that time. See 470 U.S. at 546.
McMillen’s next argument in support of his contention that his salary should continue to be paid throughout the completion of the due process procedure and through all appeals taken therefrom is that “The Provisions of the Kansas Continuing Contract Law, K.S.A. 72-5411 et seq., and the Kansas Teacher Due Process Law, K.S.A. 72-5436 et seq., Combine to Require Mr. McMillen’s Salary Payments Pending Resolution of Due Process Proceedings.”
Unfortunately, the statutes do not specifically address the issue and therefore are subject to construction and application by the court. The applicable statutes provide in pertinent part:
K.S.A. 72-5411 (Ensley 1985):
“All contracts of employment of teachers in the public schools in the state shall continue in full force and effect during good behavior and efficient and competent service rendered by the teacher, and all contracts of employment shall be deemed to continue for the next succeeding school year unless written notice of intention to terminate the contract is served by the board of education upon any teacher on or before April 10.”
K.S.A. 1991 Supp. 72-5412:
“All contracts shall be binding on both the teacher and board of education of the school district until the teacher has been legally discharged from such teacher’s teaching position or until released by the board of education from such contract. Until such teacher has been discharged or released, such teacher shall not have authority to enter into a contract with the board of education of any school district for any period of time covered in the original contract.”
K.S.A. 72-5437 (Ensley 1985):
“All contracts of employment of teachers, as defined in K.S.A. 72-5436, and amendments thereto, except contracts entered into under the provisions of K.S.A. 72-5412a, and amendments thereto, shall be deemed to continue for the next succeeding school year unless written notice of termination or nonrenewal is served as provided in this section. Written notice to terminate a contract may be served by a board upon any teacher prior to the time the contract has been completed, and written notice of intention to nonrenew a contract shall be served by a board upon any teacher on or before April 10.”
K.S.A. 1990 Supp. 72-5438:
“Whenever a teacher is given written notice of intention by a board to not renew or to terminate the contract of the teacher as provided in K.S.A. 72-5437, and amendments thereto, the written notice of the proposed non-renewal or termination shall include (1) a statement of the reasons for the proposed nonrenewal or termination, and (2) a statement that the teacher may have the matter heard by a hearing committee upon written request filed with the clerk of the board of education . . . .”
A careful reading of the statutes discloses that the legislature has not specifically stated when a contract terminates if the teacher invokes due process procedures to contest nonrenewal. Likewise, the statutes are silent on the issue of salary continuation during the due process proceedings.
In construing several statutes on the same subject matter, they must be read in pari materia. As stated in State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987):
“In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.”
When the provisions of two or more acts affect the same issue and subject matter, the same rule applies. Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 6, 829 P.2d 561 (1992).
McMillen argues that he has not been “legally discharged” from his teaching position, that his contract is therefore still binding on the district, and consequently he is entitled to continue to receive his salary. He relies upon one sentence from K.S.A. 1991 Supp. 72-5412, which provides: “All contracts shall be binding on both the teacher and board of education of the school district until the teacher has been legally discharged from such teacher’s teaching position or until released by the board of education from such contract.”
In advancing this argument, McMillen ignores the plain language of K.S.A. 72-5411 (Ensley 1985) and K.S.A. 72-5437 (Ensley 1985). Both statutes explicitly state that all contracts of employment shall be deemed to continue for the next succeeding school year unless written notice of intent to terminate or intent to nonrenew a contract of employment is served by a board of education upon a teacher on or before April 10. Both parties agree that the appropriate notice of intent to nonrenew was timely served upon McMillen and that he timely invoked the due process proceedings. Once a school board has given written notice of intent to nonrenew a teacher’s contract, the statutes require nothing further of the board, and we conclude the contract ordinarily expires at the end of the contract year. When all of the applicable statutes are read together in their entirety, it appears clear the legislature intended the contract to terminate at the end of the contract year if appropriate notice of intent to nonrenew was given. Termination of the contract also terminates the teacher’s right to receive any further salary, subject only to the constitutional right, as recognized in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985), to a minimal pretermination hearing.
We do not agree with McMillen that loudermill and our statutes require continuation of his salary throughout the entire court proceedings which may ensue if one or both parties appeal from the opinion rendered by the due process committee. Certainly there is no such constitutional requirement in Loudermill. That case stands for the proposition that a person who has a property interest in his or her employment is entitled to continue to receive a salary until granted a pretermination hearing. Nothing in our statutes provides for payment of salary after termination of a teacher’s contract. As we have pointed out, the employment contract terminates at the end of the contract year if the teacher was given the appropriate notice of intent to nonrenew the contract subject only to a pretermination hearing. There is no requirement that salary be continued past the date of the expiration of the existing contract year or the date of a pretermination hearing, whichever occurs last.
For his third argument, McMillen urges that “Equitable Considerations Require Granting Mandamus Relief.” He again asserts that U.S.D. No. 380 has not “legally discharged” him from employment. He claims that K.S.A. 1991 Supp. 72-5412 prevents him from seeking employment in another school district and claims that because U.S.D. No. 380 refuses to pay his salary, he could be “forced onto the welfare rolls.”
This argument is not persuasive. McMillen has failed to consider K.S.A. 1991 Supp. 72-5412 in its entirety and in conjunction with the explicit language of K.S.A. 72-5411 (Ensley 1985). K.S.A. 1991 Supp. 72-5412 provides in relevant part:
“All contracts shall be binding on both the teacher and board of education of the school district until the teacher has been legally discharged from such teacher’s teaching position or until released by the board of education from such contract. Until such teacher has been discharged or released, such teacher shall not have authority to enter into a contract with the board of education of any school district for any period of time covered in the original contract.” (Emphasis added.)
Pursuant to 72-5411 and 72-5437, McMillen’s statutory right to continuation of his original contract expired at the end of the 1990-91 contract year. McMillen was free to seek employment in another school district for the 1991-92 contract year. Indeed, this court has stated that “[t]he purpose of notice of nonrenewal is to advise the teacher of Board action early enough in the year to afford the teacher a reasonable opportunity to find other employment.” U.S.D. No. 461 v. Dice, 228 Kan. 40, 42, 612 P.2d 1203 (1980).
In considering the equitable argument, we must weigh the equities as they affect both parties. This case started in the summer of 1991, has been the subject matter of two’ appeals to the Supreme Court, and still has not been heard on the merits in the district court. If past performance is any indication, there will be at least one more appeal before this matter is finally resolved. If a school board were required to continue to pay the saláry of a teacher who has been terminated until the matter is finally resolved through the judicial process, and if that resolution proved to be favorable to the school board, the chances of the school board ever recovering its money would be questionable, at best. On the other hand, the terminated teacher is free to seek employment elsewhere and, if successful in the litigation, is subject to reinstatement with back pay and salary, subject to any collateral issues which might be relevant, with the assurance that such payment is backed by a governmental entity and that recovery will.be obtained.
• U.S.D. No. 380 correctly observes that no reported appellate decision in Kansas has required a school board to pay wages to a teacher pending conclusion of due process proceedings on appeal. U.S.D. No. 380 notes that the remedy consistently awarded by this court has been back pay with interest and reinstatement. U.S.D. No. 380 reasons that if teachers had been “technically employed” by the school district following timely written notice of a school board’s intention to terminate their contracts of employment, then there would have been no need for the appellate courts to order reinstatement. We find that McMillen’s equitable argument lacks merit.
One final matter must be resolved. As we have determined that the statutes provide for termination of McMillen’s right to a continuing contract at the end of the 1990-91 contract year, and as he was constitutionally entitled to a pretermination due process hearing under Loudermill, when were the constitutional requirements satisfied? We conclude that if a pretermination hearing consistent with Loudermill had been provided, McMillen’s right to continue to receive his salary would have terminated along with his contract at the end of the contract year or when given the pretermination hearing, whichever occurred last. As no pretermination hearing was provided, McMillen was entitled to continue to receive his salary until the statutory due process hearing was completed. We further conclude that the appropriate time for termination of the contract and salary, in a case such as this, is when the school board rejects the opinion of the hearing committee and files an appeal to the district court. While K.S.A. 1991 Supp. 72-5443(b) requires the school board to adopt the opinion of the committee as its decision, the board does not necessarily accept or concur with such opinion when it complies with the statute. We held in McMillen I that a school board has the right to appeal even though it has followed the requirement of the statute and adopted the hearing committee opinion. If the school board does not accept the opinion and determines to appeal to the courts, then the teacher’s contract and right to continue to receive a salary terminate as of the date of the filing the notice of appeal. If the school board accepts as final an opinion which Supports the teacher’s objection to nonrenewal and foregoes the right to appeal, the contract is not terminated and the teacher would continue to receive his or her salary. Likewise, in a case where the opinion is adverse to the teacher, the teacher’s salary would terminate when the teacher determines to accept the opinion of the committee and the decision of the board or at the time the teacher files an appeal to the district court. We conclude that such a procedure complies with the applicable statutes, the constitutional requirements of houdermill, and the best interests of all parties concerned. Anything more is a matter for the legislature and not this court.
The procedure which we adopt here should work to the benefit of all parties. If the statutory due process hearing cannot be completed before the end of the contract period, the board should seek to comply with the pretermination hearing requirements of Loudermill at the earliest possible moment. If it fails to do so, the teacher’s salary continues until a pretermination hearing or the statutory hearing is completed as hereinbefore set forth. Both parties will have incentives to seek a speedy resolution of the controversy without the unwarranted delays that have plagued this case. It should be obvious that in the event the teacher does not object to the nonrenewal no hearing of any kind is required.
In conclusion, we hold that McMillen was entitled to continue to receive his salary until November 20, 1991, the date the school board filed its notice of appeal with the district court. The judgment of the district court is reversed and the case is remanded for further proceedings consistent with this opinion. | [
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The opinion of the court was delivered by
McFarland, J.:
This is a premises liability action brought by a woman who was shot in the parking lot of a shopping center in an armed robbery by an unknown assailant. Liability is sought to be imposed upon the owner of the shopping center on the basis of negligence in not providing security for the area. The district court, utilizing the “prior similar incidents” rule of foreseeability, entered summary judgment in favor of the defendant. The plaintiff appeals therefrom.
Preliminarily, some rules relating to the granting of summary judgment in a negligence action need to be set forth. In Gooch v. Bethel A.M.E. Church, 246 Kan. 663, 668, 792 P.2d 993 (1990), we stated:
“ ‘The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Lessley v. Hardage, 240 Kan. 72, 73-74, 727 P.2d 440 (1986).] The party opposing summary judgment, however, has the affirmative duty to come forward with facts to support its claim, although it is not required to prove its case. [Willard v. City of Kansas City, 235 Kan. 655, Syl. ¶ 2, 681 P.2d 1067 (1984); Mays v. Ciba-Geigy Corp., 233 Kan. 38, Syl. ¶ 5, 661 P.2d 348 (1983).] If factual issues do exist, they must be material to the case to preclude summary judgment.’ Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306-07, 756 P.2d 416 (1988).”
There are controverted facts relative to whether plaintiff Betsy Seibert had the legal status of a licensee or business invitee at the time she was injured. For purposes of ruling on the defendant’s summary judgment motion, the district court, appropriately, held Ms. Seibert to be a business invitee. We shall do the same.
On April 2, 1989, Ms. Seibert was a passenger in an automobile owned and driven by her friend Michelle Brandes. At about 3:00 p.m., they drove to the Ranch Mart Shopping Center and parked in the subterranean parking garage. They got out of the automobile and reached into the back to retrieve their purses from the “cubby” area of the Corvette. Suddenly, each had an assailant. Where the two robbers had been prior to assaulting the women is unknown. Ms. Seibert had her handbag and a cola can in her hands. When confronted, Ms. Seibert screamed and either dropped or threw the can of cola at her assailant, who then shot her in the head. The robbei'S fled.
Ms. Seibert brought this action against Vic Regnier Builders, Inc., the owner of Ranch Mart, Inc., alleging it was negligent in not providing security for its patrons when the assault upon her was foreseeable. Specifically, she alleged that by virtue of past criminal activity in the shopping center’s parking areas plus the nature of tire underground parking area, including dim lighting by virtue of numerous burned-out fluorescent tubes, the defendant owed a duty to her as a business invitee to provide security. The shopping center had no security for its patrons— no warning signs, video surveillance, or security guards. The plaintiff offered expert testimony that the security, including the lighting, was inadequate and had appropriate security measures been in place, the attack upon her would probably not have occurred.
No evidence of prior crimes in the underground parking area was offered or suggested. There was sketchy evidence of crimes occurring in above-ground areas of the parking lot, as follows: (1) Prior to 1986, a car window was broken and personal property taken from the vehicle; (2) in 1986, an armed robbery occurred (details unknown); (3) in 1988, a strong-armed robbery attempt was interrupted when witnesses intervened, and a second armed robbery was thwarted when the victim resisted.
In granting summary judgment to the defendant premises owner, the district court stated:
“Maybe you can get the guys up in the appellate courts to tell me I’m wrong, but in this case, factually, there are a total of four crimes in the preceding two years upon which to base a conclusion that there would be a criminal act taking place in the future, and I think the rest of the facts are in a good posture for the appellate courts to deal with this case.
“This is an underground garage and, frankly, the plaintiff has facts which are as favorable as they could probably be in the absence of a lot of criminal activity. Like, I would assume, Indian Springs, for example, over in Wyandotte County would be one where there wouldn’t be an issue as to the requirement to provide security. But you have a lot of other things going here, including the lighting issue, the underground garage which takes the public out of view of other members of the public; it’s secluded. Those are facts that are, frankly, favorable to the plaintiff, but I just don’t know where to draw the line here.
“So, I’m going to find in this case that the criminal act was not foreseeable.
“Let me go back and briefly make some other rulings in the case so that if it does go up, the appellate courts have the ability to rule on whatever issues they want to rule on.
“I’m going to find that there’s a question of fact as to whether or not the plaintiff is a business visitor or a licensee, and that would be an issue which would ultimately be decided by a jury if the case is heard by a jury. So for purposes of deciding this motion, I’m making the assumption that the plaintiff is a business invitee. Under that situation, the defendant then is under a duty to maintain the premises in a reasonably safe condition.
“In this case there is no factual basis for either of the following: One, a requirement that the defendant provide security on the premises; or, two, there is no factual basis to find that the defendant would have reason to anticipate a criminal act would occur. In other words, the criminal act which resulted in plaintiff’s injuries in this case was not foreseeable.
“I’ll just simply adopt those portions of the facts which are really not controverted, and I think the only ones that are significant in this case are the ones that deal with lighting. There is a question of fact as to the condition of the lighting. For purposes of this motion, I’m assuming that there were lights that were not working in the garage. In other words—
“MR. HAUBER [defense counsel]: As opposed to the sidewalk or—
“THE COURT: In the area. The effect of my ruling is, basically, even if there was no lighting, the criminal act was still not foreseeable. So, see, the lighting, factually, doesn’t become a factual issue in the case.”
The plaintiff contends that under the “prior similar incidents” rule utilized by the district court, the court erred in holding that such prior incidents were insufficient to establish a duty owed. Alternatively, plaintiff contends the court erred in not applying the broader “totality of the circumstances” rule. The two rules are different methods for determining the foreseeability requirement of whether or not there is a duty owed by the premises owner to the customer injured by the criminal conduct of a third party.
In 62A Am. Jur. 2d, Pi'emises Liability § 513, p. 69, it is stated:
“In accordance with the general rule (subject to some major exceptions) that an owner of premises has no duty to protect another from criminal attack, a storekeeper or proprietor of other commercial premises will not generally be held responsible for the willful criminal act of a third person which could not be foreseen or anticipated.”
The difference between the two methods of determining foreseeability is stated in 62A Am. Jur. 2d, Premises Liability § 520, p. 77, as follows:
“Where the courts apply the ‘prior similar incidents’ test of foreseeability, the occurrence of prior offenses on the premises is a key element of proof, and the proffered offenses apparently must be not only of the same type and nature as the offense complained of, but also must have occurred with some frequency. What constitutes sufficient frequency is difficult to predict. For example, in a case involving the abduction and rape of a parking lot patron, the court held that the plaintiff’s evidence showing 10 larcenies and robberies at the defendant’s ramp garage in the 10 years preceding the attack was insufficient to alert the parking lot proprietor to the possibility that the particular crime complained of might occur. Some courts have abrogated the ‘prior similar incidents’ test in favor of the ‘totality of circumstances' test on the ground that application of such test contravened the policy of preventing future harm by forestalling a duty to safeguard until someone was injured; invaded the province of the jury to determine foreseeability from all of the facts and circumstances, and erroneously equated foreseeability of a particular act with previous occurrences of similar acts. Under such a rule, patrons are not limited to past experience in establishing that a new business owes them a duty of protection from criminal conduct by third persons; foreseeability of criminal conduct may be established by the place and character of the business.
“Comment: This is in accord with the comment to the Restatement that a possessor of land has a duty to take precautions against criminal conduct on the part of third persons if ‘the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons.’ ”
The above reference to the Restatement is to Restatement (Second) of Torts § 344 (1965), which states:
“A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it."
Comment f to § 344 explains that although the owner of the property is not an insurer of the land, there are certain circumstances in which liabilitv is warranted:
“Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.”
The plaintiff acknowledges there are no Kansas cases precisely on point. She likens the situation herein to those in Gould v. Taco Bell, 239 Kan. 564, 722 P.2d 511 (1986), and the earlier Kimple v. Foster, 205 Kan. 415, 469 P.2d 281 (1970). There are some significant distinctions between the Gould/Kimple cases and the factual situation before us. In both Gould and Kimple the criminal assaults occurred among fellow patrons of a restaurant and tavern, respectively. Explosive confrontational situations developed inside the business premises. The proprietors neither intervened nor called the police.
In Gould, we stated:
“Appellant first argues a premises owner cannot be held liable for injuries sustained in a sudden attack upon one patron by another.
“The duty of care owed by a premises owner to an entrant upon the land is dependent upon the status of the person entering the premises. A restaurant patron is an ‘invitee.’ We defined that term and discussed the duty of care owed to an invitee in Gerchberg v. Loney, 223 Kan. 446, 449, 576 P.2d 593 (1978):
‘An invitee is one who enters or remains on the premises of another at the express or implied invitation of the possessor of the premises for the benefit of the inviter, or for the mutual benefit and advantage of both inviter and invitee. The possessor of premises on which an invitee enters owes a higher degree of care, that of reasonable or ordinary care for the invitee’s safety. This duty is active and positive. It includes a duty to protect and warn an invitee against any danger that may be reasonably anticipated.’
“Thus, Taco Bell owed Rosie Gould an affirmative duty to exercise reasonable or ordinary care for her safety. This duty included an obligation to warn her against any danger that might reasonably have been anticipated.
“In Kimple v. Foster, 205 Kan. 415, 469 P.2d 281 (1970), we discussed the liability of a business owner for an intentional, harmful assault upon a patron by another patron and set forth the general rule as follows:
‘A proprietor of an inn, tavern, restaurant or like business is liable for an assault upon a guest or patron by another guest or third party where the proprietor has reason to anticipate such an assault and fails to exercise reasonable care to forestall or prevent the same.’ Syl. ¶ 2.
‘The duty of a proprietor of a tavern or inn to protect his patrons from injury does not arise until the impending danger becomes apparent to him, or the circumstances are such that a careful and prudent person would be put on notice of the potential danger.’ Syl. ¶ 3.
“This rule is consistent with that set forth in Restatement (Second) of Torts § 344 (1963):
‘A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
‘(a) discover that such acts are being done or are likely to be done, or
‘(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.’
“For an excellent annotation on the liability of an innkeeper, restaurateur, or tavern keeper for injury occurring on the premises to a guest or patron by a third person, see Annot., 70 A.L.R.2d 628, §§ 13, 14. See also 40 Am. Jur. 2d, Hotels, Motels, Etc. § 112, p. 987.
“Appellant compares the facts of the present case to those in Kimple v. Foster, 205 Kan. 415, and argues our holding in Kimple is inapplicable to the facts of this case.
“In Kimple, the plaintiffs were injured while guests at a bar owned by the defendant. The plaintiffs were the victims of an unprovoked attack by another group of patrons who had been drinking, harassing patrons, and brawling in the bar for several hours. A jury found the tavern owner liable for injuries sustained by the plaintiffs. On appeal, the tavern owner argued that a proprietor’s duty to protect his patrons does not arise until the impending danger becomes apparent to the tavern keeper, or the circumstances are such that an alert and prudent person would be placed on notice of the probability of danger. 205 Kan. at 417.
“The Kimple court concluded the facts present were clearly sufficient to warrant the jury in concluding that the defendant had knowledge of facts which should reasonably have placed him on notice that trouble might be expected which would endanger the safety of the pati-ons. 205 Kan. at 418. Specifically, the court noted there was evidence to the effect that, before the physical attack commenced, the plaintiffs and other patrons repeatedly told tavern employees to call the police but to no avail. Further, the court cited evidence that the battle had ‘raged’ for a full ten minutes before the police were called. 205 Kan. at 419.
“Appellant argues our reasoning in Kimple is inapplicable to the present case because the facts of this case ‘contrast strongly’ with those in Kimple. Appellant claims the assault on Rosie Gould lasted only about five minutes while the assault on the plaintiffs in Kimple consisted of a ‘five-hour sequence of events.’ Appellant misstates the facts in Kimple. As in the present case, the actual assault upon the plaintiffs in Kimple lasted only a few minutes. It is true, however, that in Kimple the assailants had been in the bar for several hours prior to the incident, while in the present case, Karen Brown and her friends had been at Taco Bell only a few minutes. But in this case, there is evidence Brown had been involved in a similar altercation at Taco Bell approximately two weeks before she attacked Rosie Gould. Also, there was evidence Taco Bell management had considered hiring security personnel because of a history of rowdyism on the premises.
“In Kimple, we made the following statement regarding notice to the proprietor:
“ ‘It is not required that notice to the proprietor of such an establishment be long and continued in order that he be subject to liability; it is enough that there be a sequence of conduct sufficient to enable him to act on behalf of his patron’s safety.’ 205 Kan. 415, Syl. ¶ 4.
“The evidence in this case was sufficient to establish such a ‘sequence of conduct.’ Thus, we hold the jury’s verdict against Taco Bell for Gould’s injuries is supported by the evidence.” 239 Kan. at 567-69.
In the case before us, the attack upon the plaintiff did not occur inside the business premises under the noses, so to speak, of the proprietors. The attack occurred in a parking lot. Neither the premises owner nor any of its employees were aware of the presence of the plaintiff or her attackers or that an attack was occurring. Neither failure to intervene nor to summon police is the basis of liability asserted herein, as was true in the Gould and Kimple cases. Rather, the liability sought to be imposed herein is predicated upon the frequency and severity of prior attacks against different patrons by presumably different attackers at different times and in different areas of the parking lot, plus the totality of the circumstances making the attack upon the plaintiff or some other business invitee foreseeable to the defendant, who then had a duty to take appropriate security action to prevent or make less likely the same from occurring.
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. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983).
In determining whether there is a duty owed, we start with two general rules. The owner of a business is not the insurer of the safety of its patrons or customers. The owner ordinarily has no liability for injuries inflicted upon patrons or customers by the criminal acts of third parties in the business’ parking lot, as the owner has no duty to provide security. Such a duty may arise, however, where circumstances exist from which the owner could reasonably foresee that its customers have a risk of peril above and beyond the ordinary and that appropriate security measures should be taken. In determining foreseeability, should the rule be limited to prior similar acts or include the totality of the circumstances? An annotation on the liability of a for-pay parking lot for injuries to its customers which were the result of criminal attacks upon its customers appears in 49 A.L.R.4th 1257. The annotation discusses both methods of determining foreseeability.
An annotation on a shopping mall owner’s liability for criminal attack in a mail’s free parking areas appears at 93 A.L.R.3d 999.
Our sister state of Missouri has had occasion to consider the issue. Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59 (Mo. 1988), consisted of two cases consolidated for appeal— Madden and Decker v. Gramex Corporation. Plaintiff Madden was kidnapped in the defendant’s parking lot in St. Louis and driven to another location where she was sexually assaulted. In Decker, Mr. and Mrs. Decker were kidnapped from the defendants’ St. Louis County parking lot. Thereafter Mrs. Decker was sexually assaulted and both were murdered. Liability was claimed in both cases under the prior similar incidents standard of foreseeability. Summary judgment was entered on behalf of the defendant in Decker, and Madden was dismissed for failure to state a claim. The Missouri Supreme Court reversed the district court decisions in both cases. In so doing, Missouri recognized a cause of action wherein owners of businesses could be held liable for crimes in their parking lots where the same are foreseeable by virtue of numerous instances of prior criminal conduct occurring therein.
Perhaps the most commonly cited case accepting the totality of circumstances rule of foreseeability is Isaacs v. Huntington Memorial Hospital, 38 Cal. 3d 112, 211 Cal. Rptr. 356, 695 P.2d 653 (1985). The scene of the crime was the physicians’ parking lot at a major hospital located in what was stated to be a high crime area. At the nearby emergency room parking area, numerous crimes had occurred, and security guards were employed therein. The emergency department was open 24 hours a day and attracted large numbers of drunks, drug addicts, and assorted violent criminal types. Dr. Isaacs was an anesthesiologist who was shot by an assailant near his car in the physicians’ parking lot. There had been no prior criminal incidents in this parking lot. The California Supreme Court rejected the prior similar incidents rule and embraced the totality of the circumstances test for foreseeability. In essence, the California court held that this particular parking lot could not be isolated and foreseeability based just upon events therein. The lot was in a high crime area and adjacent to the emergency room parking lot where violent behavior was known to be a common occurrence requiring security. 38 Cal. 3d at 130-31.
We believe that totality of the circumstances is the better reasoned basis for determining foreseeability. The circumstances to be considered must, however, have a direct relationship to the harm incurred in regard to foreseeability. Prior incidents remain perhaps the most significant factor, but the precise area of the parking lot is not the only area which must be considered. If the parking lot is located in a known high crime area, that factor should be considered. For instance, one should not be able to open an all-night, poorly lit parking lot in a dangerous high crime area of an inner city with no security and have no legal foreseeability until after a substantial number of one’s own patrons have fallen victim to violent crimes. Criminal activity in such circumstances is not only foreseeable but virtually inevitable.
It is a sad commentary on our times that there is probably no shopping center parking lot that is likely to be crime free. Thefts of vehicles and from vehicles do occur, as well as purse snatches, etc. It is only where the frequency and severity of criminal conduct substantially exceed the norm or where the totality of the cii'cumstances indicates the risk is foreseeably high that a duty should- .be < placed upon the owner of the-premises to provide security. The duty to provide security is determined under the reasonable person standard. Thus, the duty to provide security and the level of such security must be reasonable—that includes the economic feasibility of the level of security. In some instances, the installation of better lighting or a fence or cutting down shrubbery might be cost effective and yet greatly reduce the risk to customers. We note with concern the plaintiff’s expert’s references to the security not being adequate or being inadequate. This is a poor choice of terms. Presumably, the fact that the attack on the plaintiff occurred shows that the security was “inadequate.” Had it been “adequate” the attack would not have occurred. The shopping center owner is not under a duty to provide such security as will prevent attacks on the patrons— such a duty would make the owner the insurer of his patrons’ safety. Rather, if because of the totality of the circumstances the owner has a duty to take security precautions by virtue of the foreseeability of criminal conduct, such security measures must also be reasonable under the totality of the circumstances. Such an approach is consistent with the Restatement (Second) of Torts § 344 (1965).
The district court limited its consideration to specific similar incidents. The court expressly did not consider the claims as to the lighting deficiencies and other characteristics of the parking area in question. Further, the court did not make any findings as to whether the premises were or were not in a high crime area, although inferentially, by its comment relative to the Indian Springs Shopping Center, the question was answered in the negative. We must reverse and remand the case for reconsideration under the totality of the circumstances test for foreseeability. The circumstances to be considered must relate specifically to the foreseeability of the attack on the plaintiff. We note that under the facts presented, it is unknown where plaintiff’s and her friend’s assailants were immediately prior to the attack. Thus, the district court will have to consider the claims of deficient lighting in the context of whether this factor played any role in increasing the risk of this attack upon the plaintiff.
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The opinion of the court was delivered by
Allegrucci, J.:
The Woman’s Club of Topeka (Club) appeals from the district court’s decision which affirmed a Board of Tax Appeals (BOTA) order. BOTA denied the Club’s application for exemption from ad valorem taxes pursuant to Art. 11, § 1(b) of the Kansas Constitution and K.S.A. 1992 Supp. 79-201 Second. The appeal was transferred to this court from the Court of Appeals pursuant to K.S.A. 20-3018(c).
At various times in the past, the Club has been exempted from ad valorem taxes. The most recent order of exemption dates from April 9, 1974. At that time, BOTA ordered that Lots 278, 280, 282, 284, 286, 288, Topeka Ave., Topeka, “be not entered on the tax rolls of Shawnee County, Kansas, for 1974 and be exempt from taxation so long as it is owned by the applicánt herein and used exclusively for charitable and/or benevolent purposes.”
When the Club moved to a new building in 1982, exemption for the new building and real property was not sought. The Club asserts that it was “through inadvertence” that exemption was not sought. The Club added that “its volunteer board merely failed to realize the necessity for annually requesting exemption.” There are no record references in the appellant’s brief for these assertions. In the affidavit which appears to comprise the principal evidence submitted to BOTA, there is no explanation why exemption was not sought. In it the following explanation was offered for why the Club renewed its request: “Taxes in recent years have increased significantly such that they are a threat to the existence of the club. Thus, the Woman’s Club of Topeka is again seeking to claim exemption for its real property from ad valorem taxation.”
The Club now is located at 5221 S.W. West Drive, Topeka. In 1991, the Club'filed an application for exemption from ad valorem taxes with BOTA. The statute which was identified as authorizing the requested exemption is 79-201 Second.
The statement of facts provided to BOTA by the Club included a joint affidavit of Gerald Goodell, attorney for the Club, and Mary Hafenstine, president of the Club, photocopies of the Club’s annual brochures from the years 1987 through 1991 (referred to in the joint affidavit as 1988-1991 annual reports), and an affidavit of Adeline Towle, 1990-91 treasurer of the Club.
The following pertinent statements appear in the affidavit of Goodell and Hafenstine:
“15. As indicated by the 1988-1991 annual reports of the club (Exhibit D to Attachment A), the activities engaged in by the Woman’s Club of Topeka are benevolent,' charitable, literary or educational. The club makes significant monetary donations to scholarships as well as to the community in general. For example, the club donated $1,599.28 to Stormont-Vail School of Nursing, $1,242.54 to Washburn University, and $489.50 to other charitable and benevolent functions in 1989 through 1990.
“16. As indicated .by the annual reports, the building has been used to promote music, literature, religion, benevolent and educational purposes programs. (Exhibit D to Attachment A.)
“17. For example, on May 2, 1991, Pastor Susan Candea-Kromm spoke to the club on ‘Spiritual Growth.’ On February 21, 1991, the Topeka High School madrigals performed at the club. In 1989 and 1990 and in 1991, the club made visits to hospitals and nursing homes. . . .
“19. The club also uses and has used the property for bridge clubs, flea markets, and receptions. These activities do not prevent. the club from obtaining an exemption because as shown by Exhibit D to Attachment A, these uses are minimal in scope and insubstantial in nature and are incidental to the exempt purposes of the club. K.S.Á. [79-201]Second.
“20. The club allows the World Wide Church of God to use the club’s building on Saturday and allows the Church of Jesus Christ of Latter Day Saints to use the building on Sundays. The churches use the property for religious purposes.
“21. That the club allows the churches to use space at the club’s building does not render it ineligible for the exemption. The club does not allow such use as an investment; the club is merely being reimbursed for the actual expense incurred by the club in allowing the church to use the space for religious purposes. As indicated by the Affidavit of Adeline Towle, Treasurer, (Exhibit E to Attachment A), the churches use the building one-third of the time. The total annual cost for maintaining the building is $50,094.63. (Affidavit of Adeline Towle). One-third of $50,094.63 is $16,698.21. The churches pay only $15,055.00 of the expenses. The use of the property by the churches fits under K.S.A. 79-201 Second. The club is being reimbursed for the actual expense of using the property for tax exempt purposes.”
Included in the Club’s annual brochures are treasurers’ reports. In the 1989-90 treasurer’s report, for example, the disbursements totaled $65,415, with $179 for Gifts and Bequests, $3,331 for Scholarship Expense, and $409 for Charity and Benevolence.
Also included in the annual brochures are listings of “Special Days” and calendars of Club Programs. In the 1990-91 listing of “Special Days,” for example, there are a number of card parties and duplicate bridge benefits, a style show, flea market, new and used sale, quilt show, hobby day, fine arts and open house memorial service, member recognition day, scholarship day, and Christmas charities day. The regular Club Programs for 1990-91 occurred on Thursdays, October through June. The calendar lists presentations by many musicians, scholars, and gardeners and by literary, religious, and political figures. The meetings begin at approximately mid-morning, sandwich a luncheon, and continue into the afternoon.
When the Club appealed BOTA’s order to the district court, it added to the record a separate affidavit of Mary Hafenstine which lists “examples of educational, religious, and literary programs” which had been presented to members from 1985 through June 1992. The affidavit contains several affirmative statements of public participation in evening events. It does not appear from the record that public attendance is expected or encouraged for the Thursday programs.
Hafenstine’s supplemental affidavit also contains the following information about charitable activities: ;
“2. The Woman’s Club uses its property to make yearly donations to: Hospice, the Topeka Rescue Mission, the Kansas Children’s Service League, the Salvation Army, Let’s Help, the Capper Foundation, the Topeka State Hospital, TARC, Kansas Neurological Center, the Marian Clinic, the Better Business Bureau of Northeast Kansas, the Ronald McDonald House, Community Eye Care, KTWU Channel 11, Kansas State Historical Society, and YWCA. Club members volunteer for the Christmas Angel Tree and other volunteer activities.
“3. The Club started the Daisy Chain at Topeka High School and furnished clothes and shoes for students in the chain who could not afford clothing. The Club instigated traveling libraries and art galleries and donated monies to purchase pictures for school rooms. The Club donated funds to help purchase the Lincoln [statue] on the State grounds. The Club provided the seats for the State Capitol grounds. The Club helped' refurbish Holbrook Hall, at Washburn College in Topeka.
“4. The Topeka Woman’s Club has contributed $41,427.72 to the Woman’s Club 1000 Scholarship Fund at Washburn University, $28,987.11 to the Woman’s Club Scholarship Fund at Stormont-Vail School of Nursing, and $24,000 in direct scholarships to Stormont-Vail School of Nursing.”
The affidavit of the Club’s 1991-92 treasurer, Delores Mueller, also was added to the record in the district court. Th¿ information in it is the same as the information in ¶ 21 of the affidavit of Goodell and Hafenstine and in the affidavit of Towle.
The decision of BOTA states in pertinent part:
"The Board finds that here, the applicant’s primary purpose is to serve its members by providing a setting for social gatherings. The income derived from leasing the property to churches and club dues is used partially for the social enjoyment and benefit of members of the club. Under the principles set forth by the Kansas Supreme Court, the applicant’s use of the property to promote the well being of its members fails to satisfy the exclusive use requirement of K.S.A. 79-201 Second. Furthermore, the literary, educational, benevolent and charitable uses are only incidental uses of the property. Again, the actual use of the property is for the benefit of the members. The Board, therefore, concludes that the request for exemption should be denied.”
In the district court, the Club pursued two theories. First, the Club argued that its activities have not changed substantially and relocation should not have affected its exempt status. The district court rejected this argument on the ground that the taxable status of real property may be determined anew at any time and an exemption should be based on the taxpayer’s current situation. Second, the Club argued that it is tax-exempt by reason of its engaging in literary, charitable, and benevolent activities. The district court rejected this argument, too.
The district court’s reasoning and ruling were stated as follows:
“The Court regards the utilization of the property on weekends as a rental space for churches as a substantial non-tax exempt purpose. Granted the money realized is not a large percentage of the support used to fund the activities of the Woman’s Club, nonetheless it does rise to the level of a substantial rather than insubstantial use of the property which is, of course, the key in determining whether an exemption should be maintained. Additionally, the Court finds that the Board was correct in its determination that the principal use of the real estate upon which the Petitioner’s facilities are located is for social purposes and for activities which substantially benefit the members of the Woman’s Club.
“Therefore the Court is of the opinion that the Board of Tax Appeals decision was correct, was not arbitrary or capricious, and therefore should not be overturned.”
The sole issue is whether the Woman’s Club of Topeka is exempt from ad valorem taxes under Art. 11, § 1(b) of the Kansas Constitution and K.S.A. 1992 Supp. 79-201 Second on the ground that its property is used exclusively for literary, educational, benevolent, and charitable purposes.
K.S.A. 74-2426(c) provides that an order of BOTA “is subject to review in accordance with the act for judicial review and civil enforcement of agency actions,” K.S.A. 77-601 et seq. K.S.A. 77-621 sets out the scope of review for judicial review of agency actions. It appears that the Club has invoked 77-621(c)(4), (7), and (8). Those subsections provide:
“(c) The court shall grant relief only if it determines any one or more of the following:
(4) the agency has erroneously interpreted or applied the law;
(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
(8) the agency action is otherwise unreasonable, arbitrary or capricious.”
This court has declared that under K.S.A. 77-601 et seq. the scope of review is somewhat broader than the traditional scope of review. In re Tax Appeal of A.M. Castle & Co., 245 Kan. 739, 741, 783 P.2d 1296 (1989).
K.S.A. 1992 Supp. 79-201 provides:
“The following described property, to the extent herein specified, shall be and is hereby exempt from all property or ad valorem taxes levied under the laws of the state of Kansas.
“Second. All real property, and all tangible personal property, actually and regularly used exclusively for literary, educational, scientific, religious, benevolent or charitable purposes, including property used exclusively for such purposes by more than one agency or organization for one or more of such exempt purposes. This exemption shall not apply to such property, not actually used or occupied for the purposes set forth herein, nor to such property held or used as an investment even though the income or rentals received therefrom is used wholly for such literary, educational, scientific, religious, benevolent or charitable purposes. This exemption shall not be deemed inapplicable to property which would otherwise be exempt pursuant to this paragraph because an agency or organization: (a) Is reimbursed for the provision of services accomplishing the puiposes enumerated in this paragraph based upon the ability to pay by the recipient of such services; or (b) is reimbursed for the actual expense of using such property for purposes enumerated in this paragraph; or (c) uses such property for a nonexempt purpose which is minimal in scope and insubstantial in nature if such use is incidental to the exempt purposes of this paragraph; or (d) charges a reasonable fee for admission to cultural or educational activities or permits the use of its property for such activities by a related agency or organization, if any such activity is in furtherance of the puiposes of this paragraph.”
In considering a claim for exemption from ad valorem taxation, the following rules of construction apply:
“ ‘(1) Taxation is the rule; exemption is the exception. All doubts are to be resolved against exemption and in favor of taxation. Manhattan Masonic Temple Ass'n v. Rhodes, 132 Kan. 646, 649, 296 Pac. 734 (1931);
‘(2) Constitutional and statutory provisions exempting property from taxation are to be strictly construed. Lutheran Home, Inc., v. Board of County Commissioners, 211 Kan. 270, 275, 505 P.2d 1118 (1973); In re Board of Johnson County Commissioners, 225 Kan. 517, 519, 592 P.2d 857 (1979);
‘(3) The burden of establishing exemption from taxation is on the one claiming it. Seventh Day Adventist v. Board of County Commissioners, 211 Kan. 683, 690, 508 P.2d 911 (1973);
‘(4) The question is not whether or not the property is used partly or even largely for the purpose stated in the exemption provisions, but whether it is used exclusively for those purposes. Clements v. Ljungdahl, 161 Kan. 274, 167 P.2d 603 (1946); In re Board of Johnson County Comm’rs, 225 Kan. at 519;
‘(5) The phrase “used exclusively” in the constitution and statutes means that the use made of the property sought to be exempted from taxation must be only, solely, and purely for the purposes stated, and without participation in any other use. Seventh Day Adventist v. Board of County Commissioners, 211 Kan. 683.’ ” Board of Wyandotte County Comm’rs v. Kansas Ave. Properties, 246 Kan. 161, 166, 786 P.2d 1141 (1990) (quoting T-Bone Feeders, Inc. v. Martin, 236 Kan. 641, 645-46, 693 P.2d 1187 [1985]).
The Club previously enjoyed exemption from ad valorem taxation. It argues that there have been no material changes in the law or in the Club’s circumstances since then and that the exemption lapsed through inadvertence. Thus, the argument continues, BOTA’s order denying exemption is inconsistent with its previous rulings. The Club cites Southwest Kan. Royalty Owners Ass'n v. Kansas Corporation Comm’n, 244 Kan. 157, 769 P.2d 1 (1989), and Coggins v. Public Employee Relations Board, 2 Kan. App. 2d 416, 581 P.2d 817, rev. denied 225 Kan. 843 (1978), for the proposition that the inconsistency must be explained by BOTA and may constitute arbitrariness.
Shawnee County (County) contends that BOTA’s orders respecting the Club have been consistent. It cites changed circumstances. The County also disagrees with the legal propositions that inconsistent decisions require explanation and that inconsistency is a ground for reversal. It relies on In re Appeal of K-Mart Corp., 238 Kan. 393, 710 P.2d 1304 (1985), and Warburton v. Warkentin, 185 Kan. 468, 345 P.2d 992 (1959).
In its reply brief, the Club concedes that BOTA “is not bound by the doctrine of stare decisis.” The Club continues to contend that BOTA’s decision was arbitrary, but emphasizes the argument that it lacked a factual basis rather than inconsistency with past decisions.
In In re Appeal of K-Mart Corp., 238 Kan. 393, Syl. ¶ 3, the court stated that the “doctrine of stare decisis is not generally applicable to decisions of administrative tribunals.” The context was the Department of Revenue’s appeal from an order of BOTA involving use tax. The Department argued that BOTA’S action was arbitrary because it failed to follow an earlier ruling, and the court rejected the argument on the following grounds:
“The rule in Kansas ... is that the doctrine of stare decisis is inapplicable to decisions of administrative tribunals. Warburton v. Warkentin, 185 Kan. 468, 345 P.2d 992 (1959); Ryan, Kansas Administrative Law with Federal References p. 18-3 (2d ed. 1985). There is no rule in Kansas that an administrative agency must explain its actions in refusing to follow a ruling of a predecessor board in a different case or that it must articulate in detail why the earlier ruling is not being, followed.” 238 Kan. at 396.
The opinion in Warburton, which involved a question of liability for employer contributions under the Kansas Employment Security Law, contains the following statement and explanation of the rule:
“The doctrine of stare decisis is a strong factor in building up internal administrative law, and in influencing the judiciary in its reviews of the administrative determinations. But an administrative agency may refuse to follow its prior ruling when its action is not oppressive or it does not act arbitrarily, unreasonably, or capriciously. [Citations omitted.] . . .
“Certainly an administrative agency, charged with the protection of the public interest, is not precluded from taking appropriate action to that end because of mistaken action on its part in the past. (National Labor Relations Board v. Baltimore T. Co., [C.C.A. 4], 140 F.2d 51, 55. Certiorari denied Baltimore Transit Co. et al. v. National Labor Relations Board, 321 U.S. 795, 64 S. Ct. 848, 88 L. Ed. 1084.)” 185 Kan. at 476-77.
The court decided, however, that retroactive application of the changed administrative determination was arbitrary. 185 Kan. at 477.
The present case is not a case where inconsistency between decisions may be said to constitute arbitrariness. The Club asserts that there have been no changes in the law or circumstances which would justify changed treatment. There is nothing obvious in the record to indicate otherwise, but the Club has not furnished either a factual or legal record which would support the legal conclusion advocated by the Club.
In this regard, the County contends that there is one previous order which bears a significant similarity to the present one. According to the affidavit of Goodell and Hafenstine; BOTA denied the Club an exemption in 1973 because it rented space to a dance club, a nonexempt use. It is this order which the County compares to the present one. In 1974, when it no longer rented the space, the Club reapplied and was granted an exemption.
The Club also contends that its property is used exclusively for literary, educational, benevolent, and charitable purposes. In support of this contention, it offers evidence of literary, educational, benevolent, and charitable activities of the Club. The record does not appear to contain, however, any evidence which directly supports the contention that these uses of the Club’s property are pursued to the exclusion of all others. The record does contain extensive evidence of card parties, weekday programs, and luncheons at the Club which appear to be for the benefit and enjoyment of members.
BOTA concluded that the actual and regular use of the Club’s property was in the service of its members as a setting for social gatherings and enjoyment. BOTA cited Irire Application of Int’l Bhd. of Boilermakers, 242 Kan. 302, 747 P.2d 781 (1987), and Kansas State Teachers Ass’n v. Cushman, 186 Kan. 489, 351 P.2d 19 (1960), for the rule that property used for the purpose of promoting the well-being of the organization’s members does not serve an exclusively benevolent, charitable, or educational purpose. BOTA also concluded that the literary, educational, benevolent, and charitable uses of the property were incidental to use of the property to promote the well-being of the Club’s members. BOTA mentioned that the .“income derived from leasing the property to churches ... is used partially for the social enjoyment and benefit of members of the club.”
In its motion for rehearing, the Club relied on Topeka Presbyterian Manor v. Board of County Commissioners, 195 Kan. 90, 402 P.2d 802 (1965). In its order denying rehearing, BOTA noted that Topeka Presbyterian Manor had been overruled by this court in favor of a narrower construction of “charitable.” See Lutheran Home, Inc. v. Board of County Commissioners, 211 Kan. 270, 278, 505 P.2d 1118 (1973).
The district court agreed that the principal use of the property “is for social purposes and for activities which substantially benefit the members of the Woman’s Club.” The district court also regarded the
“utilization of the property on weekends as a rental space for churches as a substantial non-tax exempt purpose. Granted the money realized is not a large percentage of the support used to fund the activities of the Woman’s Club, nonetheless it does rise to the level of a substantial rather than insubstantial use of the property . . . ."
On appeal, the Club abandons its reliance on Topeka Presbyterian Manor and cites Lutheran Home for its definition of “charitable.” There the court stated:
“ ‘[C]harity’ is a gift to promote the welfare of others in need, and ‘charitable,’ as used in the constitutional and statutory provisions, means intended for charity. In this sense charity involves the doing of something generous for other human beings who are unable to provide for themselves. To have charity there must be a gift from one who has to one who has not. Unless there is a gift, there can be no charity.” 211 Kan. at 277.
Using this definition, BOTA concluded as follows:
“[T]here is no evidence showing that the use of the property is for the purpose of promoting the welfare of others in need. There is no evidence indicating that the applicant is giving a gift to one who has not. The use of the property is not for charitable purposes; rather, the property is used to promote the well being of the members.”
Citing its Articles of Incorporation and donations to scholarship funds and service organizations, the Club argues that BOTA’s conclusion was without foundation and, therefore, arbitrary and capricious. The Articles of Incorporation contain a general statement of the Club’s purpose of “civic betterment.” We do not accept that the Club seriously contends that a tax exemption may be based on this general statement. The documentation of donations (other than any which may appear scattered throughout the annual reports and were not specified by the Club) which the Club presented to BOTA in the first instance consisted of the following examples from the affidavit of Goodell and Hafenstine: “[T]he club donated $1,599.28 to Stormont-Vail School of Nursing, $1,242.54 to Washburn University, and $489.50 to other charitable and benevolent functions in 1989 through 1990.” In its motion for rehearing, the Club asserted that it “makes significant monetary donations to scholarships and to the community.”
In the district court, thé Club introduced the affidavit of Mary Hafenstine, in which scholarship fund donations of $41,427.72 to Washburn and $28,987.11 to Stormont-Vail were cited along with $24,000 in direct scholarships to Stormont-Vail. There is no indication over what period of time these donations were made. It is the affidavit added in the district court which the Club cites to this court.
BOTA’s finding that there is no evidence that the property is used for charitable purposes overstates the deficiency of the record. There is some evidence of the Club’s charitable purpose and deeds. That evidence, however, is thin and does not support the conclusion that the Club qualifies for exemption based upon charitable use of the property;
The Club also takes issue with BOTA’s reliancé on Boilermakers and Kansas State Teachers Ass'n. BOTA cited the former for the proposition that even a significant charitable function, where incidental to the purpose of promoting the well-being of members, would not qualify an organization for ari exemption. The Club would distinguish Boilermakers from the present case on the ground that the obvious purpose of a trade union is to promote the well-being of its members, and the purpose of the Club is benevolent. Whatever the differences between a trade union and a fraternal organization, each is required to show for property tax exemption that the principal use of its property is exempt. Boilermakers, as well as Sigma Alpha Epsilon Fraternal Ass’n v. Board of County Commr’s, 207 Kan. 514, 485 P.2d 1297 (1971), teaches that an organization’s promotion of members’ well-being is not an exempt use of property. This rule has general applicability to trade unions and fraternal organizations alike.
The Club suggests that the individual enjoyment members may experience stems from “working for the common good.” It cites Kansas Wesleyan Univ. v. Saline County Commr’s, 120 Kan. 496, 243 Pac. 1055 (1926), for the proposition that an incidental nonexempt use which “dovetails” with exempt uses should not cause forfeiture of exempt status. There, the college president’s resi dence was where meetings of the faculty and other officials were held, and it was held to be exempt as used for educational purposes. This case has been distinguished repeatedly. In Alpha Tau Omega v. Douglas County Comm’rs, 136 Kan. 675, 681, 18 P.2d 753 (1933), the court rejected the comparison of a fraternity chapter house with the residence of the president on the ground that the latter is for the benefit of the whole school but only a small proportion of students belongs to fraternities. In Kansas State Teacher's Ass’n, the court stated that “the holding of the official meetings and school gatherings in the [president’s residence] characterized it as a part of the machinery by which the affairs of the college were administered, and that such use was purely educational.” 186 Kan. at 501. The court concluded that the same could not be said of the property of the Teachers Association. When the claimants relied on Kansas Wesleyan in Sigma Alpha Epsilon, the court simply referred to its being distinguished and thoroughly discussed in Alpha Tau Omega and Kansas State Teachers Ass’n. 207 Kan. at 520.
Although the Club pursues its claim for an exemption under Art. 11, § 1(b) of the Kansas Constitution, it did not set out the text of the constitutional provision in its brief, nor did it make any independent arguments with regard to the applicability of the constitutional provision. For example, at the outset of its argument the Club quoted from 79-201 Second and then stated that “Article 11, § 1(b)(2) of the Kansas Constitution provides for a similar exemption.”
This court has held that under both constitutional and statutory provisions, property must be “used exclusively” for exempt purposes. “The phrase ‘used exclusively’ in the constitution and statute means that the use made of the property sought to be exempted from taxation must be only, solely, and purely for the purposes stated, and without participation in any other use.” Seventh Day Adventist v. Board of County Commissioners, 211 Kan. 683, Syl. ¶ 2, 508 P.2d 911 (1973). In Boilermakers, we said: “[T]he question is not whether the property is used partly for exempt purposes but whether it is used exclusively for those purposes. Lutheran Home, Inc. v. Board of County Commissioners, 211 Kan. 270, 275, 505 P.2d 1118 (1973).” 242 Kan. at 305.
The constitutional provision was changed as of November 3, 1992, but that change did not create any exceptions to the exclusive use criterion. Art. 11, § 1(b)(2) of the Kansas Constitution, which was in effect at the time of BOTA’s consideration of the Club’s request for exemption, provided: ■
“All property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes, farm machinery and equipment, merchant’s and manufacturer’s inventories, and livestock and all household goods and personal effects not used for the production of income, shall be exempted from property taxation.”
Since then, the phrase “manufacturers’ inventories” has been qualified as “other than public utility inventories included in subclass (3) of class 2.” There have been no other substantive changes in the provision.
The record will not support the conclusion that the Club uses its property “only, solely, and purely” for literary, educational, benevolent, and charitable purposes. The constitutional provision will not allow an exemption unless the specified purposes, are unqualified. We therefore conclude that the Club’s property is not exempt under Art. 11, § 1(b) of the Kansas Constitution.
. The Club would distinguish Boilermakers, Alpha Tau Omega, and Kansas Teachers Ass’n on the ground that the statutory exemption has been , broadened by the 1986 amendment to 79-201 so that exclusive use no longer means exclusive use. This court has long recognized that the legislature is not limited by the constitutional exemption:
“A statutory exemption may be broader than the constitutional one. In Wheeler v. Weightman, 96 Kan. 50, 149 Pac. 977, this court said:
‘Yet the constitution itself provides that some real estate and some personal property shall be exempt, and contemplates that further exemptions may be made. Such exemptions must rest on the definite basis of promoting the public welfare in some peculiar and substantial way, and even then' they cannot be tolerated to the extent of building up large accumulations of favored property which would disturb general equality and uniformity.’ (p. 68.)
“In Gunkle v. Killingsworth, 118 Kan. 154, 233 Pac. 803, the court said:
‘While the constitution provides that certain property shall be exempt from taxation, it does not declare that other exemptions may not be made, but does provide that property subject to taxation shall be taxed at a uniform and equal rate. So it has been held that the enumerated exemptions must be made, but that more exemptions may be made by the legislature. (Comm’rs of Ottawa Co. v. Nelson, 19 Kan. 234; Francis, Treas., v. A. T. & S.F. Rid. Co., 19 Kan. 303; Comm’rs of Sumner County v. Wellington, 66 Kan. 590, 72 Pac. 216; Wheeler v. Weightman, 96 Kan. 50, 149 Pac. 977.)’ (p. 156.)” Alpha Tau Omega, 136 Kan. at 684-85.
In Midwest Presbytery v. Jefferson County Appraiser, 17 Kan. App. 2d 676, 843 P.2d 277 (1992), the Court of Appeals considered the 1986 addition of subsection (c) to 79-201 Second:
“ ‘This exemption shall not be deemed inapplicable to property which would otherwise be exempt pursuant to this paragraph because an agency or organization; . . . (c) uses such property for a nonexempt purpose which is minimal in scope and insubstantial in nature if such use is incidental to the exempt purposes of this paragraph.’ ” 17 Kan. App. 2d at 677 (quoting L. 1986, ch. 369, § 1).
The Midwest Presbytery court noted that in Kansas City Dist. Advisory Bd. v. Board of Johnson County Comm’rs, 5 Kan. App. 2d 538, 542, 620 P.2d 344 (1980), the Court of Appeals held that a “religious camp lost its tax-exempt status when it allowed nonreligious groups to use the camp facilities for a nominal fee” because it was “no longer being used exclusively for religious purposes.” 17 Kan. App. 2d at 678. According to the Court of Appeals,
“[I]n response to our interpretation, the legislature amended 79-201 Second in 1986 to provide that the use of exempt property for nonexempt purposes which were minimal in scope and incidental to the exempt purposes did not destroy the property’s tax exemption. Therefore, the amendment did broaden the definition of ‘exclusive use’ to include minor secular activities incidental to religious purposes.” 17 Kan. App. 2d at 678.
The issue in Midwest Presbytery was whether the caretaker’s residence at a church camp, which was built so that someone would be on the property to maintain it and provide security, forfeited the tax-exempt status of the property. The Court of Appeals remanded for determination of the factual question whether the “use of the exempt property for a nonexempt purpose is minimal in scope, insubstantial in nature, and incidental to exempt purposes.” 17 Kan. App. 2d at 679.
The County compares the Club to a fraternal organization and suggests that the question whether a combination of good deeds and social benefit to members warrants tax exemption has been answered directly and repeatedly by this court. The most recent case cited by the County is Sigma Alpha Epsilon, 207 Kan. 514. In that case, the court found:
“[I]n addition to the educational use stressed by the plaintiffs, the property is used for fraternal purposes including initiations, for alumni reunions, homecoming activities, parties, rest, recreation, entertainment of guests, rush activities, and other social activities, and that the members of the active chapter of each fraternity participate in those activities as a fraternal group.” 207 Kan. at 519.
The problem with the fraternal activities for the organizations seeking tax exemptions is spelled out in this paragraph:
“Under the many decisions of this court, including Washburn College v. County of Shawnee, 8 Kan. *334; St. Mary’s College v. Crowl, 10 Kan. *44; Sunday School Board of the Southern Baptist Convention v. McCue, 179 Kan. 1-5, 293 P.2d 234, and Kansas State Teachers Ass’n v. Cushman, 186 Kan. 489, 500, 501, 351 P.2d 19, the plaintiffs’ claim that whether the property in question is ‘used exclusively’ for educational purposes, means whether the property is ‘used primarily’ for that purpose, cannot be sustained. The two terms are not synonymous, and our decisions so hold. . . . Kansas Teachers Ass’n v. Cushman . . . held the total use of the property must be measured, and that since the headquarters building owned by the association was used in part for the individual benefit of the teacher members, the property was not used directly, immediately, solely and exclusively for educational purposes as those terms are defined by the decisions of this court. And so here.” 207 Kan. at 520.
The County and BOTA rely on cases decided on the principle that exclusive use meant exclusive use. The 1986 amendment of the statute to permit minimal, insubstantial, and incidental nonexempt uses would not affect the decision in this case. Consideration of the amendment does not lead to the conclusion that the decision of BOTA is incorrect or that the result in the present case should differ from the results in the earlier fraternal organization cases. BOTA found that the primary purpose of the Club is for the social benefit and enjoyment of its members. This finding is mutually exclusive with a finding that the social benefit and enjoyment of its members, a nonexempt purpose in the language of subsection (c), was incidental to the exempt purposes of the organization. Hence, accepting BOTA’s view of the evidence, subsection (c) would have no application.
We do not find from the record that BOTA erroneously weighed or interpreted the evidence of the Club’s activities. “ ‘The burden of establishing exemption from taxation is on the one claiming it. [Citation omitted.]’ ” Board of Wyandotte County Comm’rs v. Kansas Ave. Properties, 246 Kan. 161, 166, 786 P.2d 1141 (1990) (quoting T-Bone Feeders, Inc. v. Martin, 236 Kan. 641, 646, 693 P.2d 1187 [1985]). We conclude that the Club has not carried its burden.
The Club also contends that its renting to church groups on weekends does not render the statutory exemption inapplicable to its property. It argues that the churches’ religious use is exempt and that the income it derives only covers the actual expense of using the property. Thus, the argument continues, under K.S.A. 1992 Supp. 79-201 Second (b) and (d), renting to the church groups does not affect the Club’s exemption status. We do not agree.
The affidavit of Goodell and Hafenstine does not state facts to support their conclusion that “the churches use the property for religious purposes.” Neither the “use” nor “religious purpose” is stated. The affidavits of Mueller and Towle simply state that the churches use the building. The extent and nature of the use is not stated. We cannot determine from the record if the church’s use of the property on weekends is for religious purposes and therefore an exempt use.
The Club’s evidence of income and expenses is in ¶ 21 of the affidavit of Goodell and Hafenstine, which was duplicated in the affidavit of Mueller in the district court. The total annual cost of maintaining the property, including depreciation, is $50,095. Total annual rental income is $15,055. The Club’s contention is that the churches rent the property for one-third of the year, the rental income approximates one-third of the annual maintenance expense ($16,698), and, therefore, the rental income is reimbursement for the actual expense of using the property.
In fact, the churches rent the property for two-sevenths of the year. Two-sevenths of the annual maintenance expense is $14,313, and the income derived from renting to the churches is $15,055; it slightly exceeds the proportionate maintenance figure. We also note that renting to the churches generates income sufficient for the Club to “recapture about seventy percent (70%) of the actual out-of-pocket expenses.” Renting the property is a nonexempt use of the property. However, reimbursement of actual expenses for an exempt use of the property does not affect property which is otherwise exempt. In any event, the Club has failed to show that it is being “reimbursed for the actual expense of using such property” or that the churches’ use of the property is exempt.
As a final matter, it may be noted that the Club urges the court to consider its 501(c)(4) nonprofit federal tax status. The Club asserts that the federal nonprofit organization status is based on its showing “that its organization will operate primarily to further the common good and general welfare of the people of the community (such as by bringing about civic betterment and social improvements).” The Club also asserts that a social club would be classified as 501(c)(7). There is no development of either facts or law in support of these assertions or their applicability to the issue before this court. Indeed, the Club prefaces the assertions with the disclaimer “although not determinative.” In Lutheran Home, Inc., this court, in rejecting a similar contention, noted that “[u]nder the Federal Internal Revenue Code, income tax exemption does not depend so much upon how the applicant makes its money or how it uses its property as upon how it is currently spending the money it makes.” 211 Kan. at 279.
We conclude that the district court did not err in finding BOTA’s order denying the Club’s application for an exemption from ad valorem taxes under Art. 11, § 1(b) of the Kansas Constitution and K.S.A. 1992 Supp. 79-201 Second to be correct, supported by substantial evidence, and not arbitrary or capricious.
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The opinion of the court was delivered by
Lockett, J.:
Defendant appeals from his jury convictions of kidnapping and áiding a felon, claiming that the trial court erred in: (1) failing to suppress his statements; (2) finding there was sufficient evidence to support his convictions; (3) admitting testimony about a travel voucher and certain statements; (4) admitting a psychological report disclosed to the defendant during the trial; and (5) refusing to change venue.
Nine-year-old Nancy Shoemaker disappeared on July 30, 1990, while she was walking home from a neighborhood convenience store in Wichita. On February 18, 1991, the girl’s skeletal remains were discovered in a hedgerow in a rural area near Belle Plaine. Analysis of the remains indicated death possibly occurred by strangulation or asphyxiation.
Doil Lane was the prime suspect in the murder. Police discovered a connection between Lane and defendant Donald E. Wacker when Lane told them Wacker’s mother could provide him an alibi. Police learned from Wacker’s mother that her son, Donald, was a friend of Doil Lane. During four different interviews, police questioned defendant in an effort to obtain information about Lane. During police interviews on July 17 and 18, 1991, Wacker gave the police information indicating he was also involved in the crime. Wacker was charged and convicted of kidnapping and aiding a felon in the death of Shoemaker. Murder and other charges were filed against Lane. Apparently, those charges were dropped so he could be extradited to Texas to stand trial for the murder of another girl.
Suppression of Evidence
During questioning on July 17 and 18, 1991, Wacker informed the police that he was driving down Seneca Street and at the Pawnee intersection, Lane, a passenger in the car, pointed to a girl on the south side of Pawnee. Lane told Wacker to stop the car so he could get the girl. Lane left the car and forced the girl into the car. Wacker said when he told Lane that he did not want any part of “this,” Lane told him to be quiet and drive. Wacker stated he thought that Lane would kill him if he stopped. Wacker drove through Derby and stopped outside the city limits of. Belle'Plaine near some trees.
Lane pulled the girl out of the automobile, ripped off her clothes, and raped her. Wacker stated at one point he tried to pull Lane off of the' girl, but Lane kept knocking him down. Wacker said he was unable to prevent the assault. After raping the young girl, Lane strangled her with his hands and a belt. After killing the girl, Lane put her clothes in the back of Wacker’s car, and said, “Let’s go.” Lane later put the girl’s clothing in a trash bin, arid Wacker then dropped Lane off at Lane’s home.
Wacker had been given the Miranda warnings the fifth and sixth time law enforcement officers questioned him. Before trial commenced, Wacker moved to suppress all statements, whether inculpatory or exculpatory, made prior to, at the time of, or subsequent to his arrest. The motion asserted that his statements were obtained because of his diminished educational, emotional, and mental capacities; through compulsion during secret extended periods of questioning; arid by fear through the interrogators’ use of threats.
In the landmark case of Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), the United States Supreme Court held the prosecution cannot use statements, whether inculpatory or exculpatory, stemming from custodial interrogation, unless it proves that procedural safeguards were used to secure defendant’s privilege against self-incrimination. These safeguards include informing the person in custody, prior to interrogation, of his Fifth Amendment rights to remain silent, to consult with an attorney, and to have an attorney present during interrogation. Further, if the person in custody states that he or she wants an attorney, all questioning must cease until the attorney is present. 384 U.S. at 445; see State v. Leroy, 15 Kan. App. 2d 68, 70, 803 P.2d 577 (1990).
At the hearing to suppress, the trial court found (1) during the first four interviews Wacker was neither a suspect nor in custody, therefore Miranda did not apply and (2) the defendant “voluntarily, freely, [and] knowingly waived his constitutional rights before talking to the police on July 17, 1991 and July 18, 1991,” and it then denied the motion to suppress. On appeal, Wacker argues the trial court erred in failing to suppress his incriminating statements, claiming because his expert witness testified that Wacker was unable to appreciate the full meaning of his rights under Miranda, there was not substantial competent evidence to support the trial'court’s findings that Wacker’s waiver of his Miranda rights was free and voluntary.
In determining whether a confession is voluntary, a court is to look at the totality of the circumstances. The burden of proving that a confession or admission is admissible shall be on the pros,ecution, and the required proof is by a preponderance of the evidence. When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely and voluntarily given, and admits the statement into evidence at the trial, this court accepts that determination if it is supported by substantial competent evidence. State v. Perkins, 248 Kan. 760, 764, 811 P.2d 1142 (1991).
Substantial evidence is evidence which possesses both relevance and substance and which furnishes a. substantial basis of fact from which the issues can reasonably be resolved. Stated in another way, “substantial evidence” is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. State v. Garcia, 250 Kan. 310, 318, 827 P.2d 727 (1992).
Wacker’s expert was Dr. William S. Logan, a psychiatrist. At the suppression hearing Logan testified that Wacker could not have knowingly waived his Miranda rights because he had low intellectual functioning, i.e., an I.Q. of 72. Dr. Logan found Wacker had difficulty utilizing information to make judgments; did not understand words such as “advise”, “appoint”, and “court”; and could not explain the function of an attorney. Dr. Logan concluded that in the manner in which the Miranda rights were presented by the police to Wacker, an understanding of those rights was beyond Wacker’s intellectual capacity.
The State points to other testimony of Dr. Logan which indicates that Wacker understood his Miranda rights. Dr. Logan testified that when Wacker was asked about the phrase “[a]nything you say can be used against you in court,” Wacker responded that meant, “They could put me in jail for the stuff I .said.” As to the defendant’s right to have a lawyer present, Wacker said that meant, “I should have asked but I didn’t.” In addition, when the State had Dr. Logan read a particular portion of his notes of the interview with Wacker to the jury, Dr. Logan testified:
“I think I asked him if he could tell me what his rights were and he said a lawyer; and he said, If you couldn’t afford a lawyer, the court will appoint. And I think he said, Should’ve said can’t answer any more questions without a lawyer present. And he said, They’re supposed to leave me alone. I might also add that he apparently had learned a significant amount during his period of incarceration about this as well.”
The State’s expert at the suppression hearing, Dr. Neil Roach, a psychiatrist, testified that in his opinion defendant knowingly and intelligently waived his rights on July 17 and 18, 1991. In support of his opinion, Dr. Roach testified Wacker understood warnings similar to the Miranda warnings when he informed Wacker that the interview would not be confidential. During the interview Wacker told Dr. Roach that he understood the Miranda rights when they were given to him by the law officers. When questioned about his constitutional rights by Dr. Roach, Wacker said “he didn’t have to talk to the policeman and that he could have an attorney and if he couldn’t afford one, then someone else would pay for one.” Dr. Roach testified defendant “expressed the concept that he thought it would have been a good idea for him to not talk to the policeman, consult an attorney before proceeding. In retrospect, he [Wacker] feels it would have been in his best interest to do that.” Roach stated that his review of the transcripts of the police interviews with Wacker revealed no evidence that Wacker was confused.
The State also points out that: (1) Detective Leonard Moore, who spoke with the defendant on April 25 and July 12, stated, upon inquiry by the court, that the defendant “seemed to function very well in our society. . . . [H]e seemed fairly normal to me;” (2) Detective Jan McCloud did not get any indication the defendant failed to understand her when she spoke to him on April 23, 1991; (3) FBI Special Agent Daniel Jablonski testified that on July 17, 1991, he went over each statement on the Miranda rights form with the defendant line by line and the defendant indicated he understood each right. Defendant did not ask for clarification of any of the rights but appeared to understand the rights as stated; (4) Detective Clint Snyder, on July 18, 1991, went over the Miranda rights with the defendant in serial fashion and defendant indicated he understood each right and Snyder believed Wacker understood; and (5) Steven Davis, a clinical psychologist with the Sedgwick County Department of Mental Health, who interviewed and tested the defendant in connection with a competency evaluation, testified defendant appeared to understand the purpose of the competency evaluation and the concepts of court and attorney.
After reviewing the record we find there is substantial competent evidence to support the trial court’s conclusion that Wacker voluntarily, freely, and knowingly waived his Miranda. rights.
Sufficiency of the Evidence
Defendant next contends there was insufficient evidence upon which a rational factfinder could find him guilty of kidnapping or aiding a felon beyond a reasonable doubt. When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Evans, 251 Kan. 132, Syl. ¶ 1, 834 P.2d 335 (1992).
Defendant fails to brief this issue insofar as it relates to the conviction for aiding a felon. An issue which is not briefed is deemed abandoned. State v. Gardner, 10 Kan. App. 2d 408, 413, 701 P.2d 703, rev. denied 237 Kan. 888 (1985). The only issue we will consider is the sufficiency of the evidence as to the kidnapping conviction.
Wacker was found guilty of kidnapping, a violation of K.S.A. 21-3420(b), by unlawfully and willfully taking or confining Nancy L. Shoemaker, by force or threat, with the intent to hold her to facilitate the commission of the crimes of battery, indecent liberties with a child, or rape. Defendant contends that his conviction of kidnapping rests solely upon his “unreliable confession” that he and Doil Lane picked up Nancy Shoemaker and drove her to a remote area where Lane killed her. Wacker acknowledges that when applying the appropriate standard of appellate review, even though his confession was unreliable, standing alone, that is not sufficient to overturn his conviction. To overturn his conviction, defendant argues that his employment time card proves that he was at work during the time the murder took place; therefore, even though he confessed, he could not be guilty of the kidnapping because it was factually impossible for him to have participated in the crime.
Wacker presented evidence that it took one and one-half hours to drive to the crime scene and back to Wichita. Wacker’s time card shows that he had clocked in at work at 7:32 a.m., out at 2:14 p.m., in at 2:45 p.m., and out at 7:32 p.m. Although the entries on defendant’s time card indicate he was working during the time the murder took place, the time card does not show he was always present on the employer’s premises during that time.
Defendant told law enforcement officials he picked Doil Lane up around 8:00 a.m. and that they were going to Haysville to pick up inserts for Pennypower, his employer, when Nancy Shoemaker was abducted. A second indication that Wacker left his employer’s premises is an expense voucher turned in-by Wacker stating he was away from his work place “getting propane and running Pennypower shortages” on July 30, 1990. This evidence was consistent with information authorities received from Wack er’s employer that Wacker would leave work to run errands. Contrary to defendant’s arguments, the time card does not exonerate him.
Hearsay
Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible unless it falls within one of the recognized exceptions to the rule against admission. K.S.A. 1992 Supp. 60-460. A statement includes oral and written expressions and nonverbal conduct of a person intended as a substitute for words expressing the matter stated. K.S.A. 60-459(a).
The Travel Voucher. Over Wacker’s objection, on redirect the State contradicted Wacker’s claim that he was at work by the testimony of Detective Clint Snyder:
“Q: [By Ms. Barnett] Did you have an opportunity to learn anything about the defendant’s whereabouts on July 30, 1990, with regard to his work?
“A: Yes.
“Q: What did you learn?
“A: We learned that he had turned in a—or his expense voucher for that week indicated that he had turned in for 45 miles, and that he had indicated that he was getting propane and running Pennypower shortages sometime during that day.”
Wacker argues that even though his attorney had previously opened this area by questions asked during cross-examination, the issue on appeal is whether the evidence is inadmissible as hearsay. Defendant argues the statement was inadmissible because it was made by someone from Pennypower to Detective Moore, who told Detective Snyder, who testified about the statement at trial. Defendant points out that although Detective Moore was available at trial, the person from Pennypower who made the statement was not present. Defendant asserts there is no exception to the hearsay rule, K.S.A. 1992 Supp. 60-460, which allows the statement into evidence.
The State responds that when evidence is introduced by defense counsel on cross-examination, the defendant cannot subsequently claim the trial court improperly admitted hearsay evidence. We agree. In State v. Chatmon, 234 Kan. 197, Syl. ¶ 4, 671 P.2d 531 (1983), this court recognized that when the defendant opens a subject on direct or cross-examination of a witness, the State may develop and explore various phases of that subject even though the witness’ testimony could have been excluded as hearsay prior to the defendant’s opening the subject. A party who introduces hearsay evidence into the trial cannot later claim on appeal that the hearsay evidence should have been excluded.
Statements attributed to Doil Lane. Detective Snyder testified that during the first four interviews Wacker informed officers that Lane had told him that (1) Lane had Nancy Shoemaker and that he was headed somewhere down south with her; (2) Lane had sex with children and wore children’s underwear; and (3) Lane had sexual intercourse with Nancy Shoemaker. On appeal, defendant asserts these statements made by Doil Lane, who was never a witness, prove that Doil Lane had kidnapped and raped Nancy Shoemaker. Defendant argues that although the statements he made to the officer were admissible, Wacker’s statements of what Doil Lane told him were hearsay and, therefore, not admissible. We disagree with Wacker’s conclusion that certain portions of his statements to the officers were inadmissible under K.S.A. 1992 Supp. 60-460.
In addition, the record shows that in arguing the admissibility of this evidence, the prosecutor pointed out that the defendant’s statements changed over time and stated, “We are not offering the statements of Doil Lane. In fact, we do not necessarily contend that Doil Lane made these phone calls to the defendant. We are merely offering the statements of the defendant to show the course of the investigation, conversations he had with the detective and how his statements changed over a very short period of time. . . . [I]t just isn’t hearsay in the sense of hearsay. It is not a statement of Doil Lane being offered for the truth of the matter asserted.”
The statutory definition of hearsay is an out of court statement offered to prove the truth of the matter asserted. K.S.A. 1992 Supp. 60-460. Lane’s statements to the defendant were not being offered for the truth of the matter asserted. The jury was informed that the statements were being offered by the State to show how Wacker had changed his story to law enforcement officials. There was no error in the admission of this evidence. See State v. Hall, 220 Kan. 712, Syl. ¶ 5, 556 P.2d 413 (1976).
Finally, Wacker claims that the trial court improperly admitted hearsay testimony during cross-examination of Detective Snyder. When defendant’s attorney asked the officer why he believed Wacker’s statement was reliable, the officer answered that it was consistent with Lane’s statement. Defendant complains that Detective Snyder improperly bolstered Wacker’s unreliable confession with hearsay statements of Lane by telling the jury he believed that the statements made by Wacker were reliable because they were consistent with previous statements made by Doil Lane.
When the defendant elicits unfavorable testimony during cross-examination, the defendant may not complain that the testimony was inadmissible under the statutory prohibition against the introduction of hearsay into evidence. Chatmon, 234 Kan. at 203.
The Psychological Report
Wacker notes that although he had been granted discovery, it was not until the sixth day of trial that his attorney received the report of Dr. Tamara Pryor which had been used by the State’s expert witness, Dr. Roach, to form his opinion that Wacker was not retarded and understood statements he made to the officers could be used against him. Wacker asserts that his counsel, after being told by the prosecutor to go to Charter Hospital to obtain reports, made numerous trips to the hospital and had been informed he had everything, but had not received Dr. Pryor’s report. Defendant states that his counsel was “apparently allowed to read the report shortly before Dr. Roach’s testimony.”
When defense counsel objected to the use of the report by the State and its witness, the trial court noted:
“Well, this report is clearly of a nature that is subject to discovery. I will find that the report was prepared on March the 18th, 1992. We began the trial of this case on March the 30th, 1992. Counsel for the State has indicated to the Court that on the first or second day of trial arrangements were made for defense counsel or someone working under his supervision to go to Charter Hospital where all of these records were maintained and kept; and under these circumstances, I find that there has been no violation by the State of a continuing discovery request; and in fact, the State has endeavored to make . . . all of the required documents available to [defense counsel], so—I guess if it’s an objection to Dr. Roach’s testimony that you’re asking me to consider because of the failure to provide a copy of the Pryor report . . . that objection is overruled. . . . Let me just say that I think what I understood [the prosecutor] to say is that while it’s- true she has not personally handed this report of Tamara Pryor to you, in lieu of that she has proffered access to Charter Hospital to defense counsel or his assistant.”
Defendant points out that during cross-examination, Dr. Roach admitted that he relied upon results from Pryor’s report to form his expert opinion that Wacker understood his rights when he confessed to the police officer. Defendant claims that the report contains valuable impeachment and substantive evidence. Defendant argues his defense was prejudiced because his attorney did not have the report prior to trial. Wacker concludes that the hospital’s failure to turn over the report is imputed to the prosecutor, and defendant must be given a new trial.
In response the State notes that trial commenced on March 30, 1992. On April 6, 1992, when she received it, the prosecutor gave defense counsel a copy of Tamara Pryor’s report. The State asserts that there is no evidence that the prosecutor intentionally failed to reveal Pryor’s report to defense counsel. The State notes that defense counsel obtained Pryor’s report the same day the prosecutor did. The State points out that although defense counsel had not received Pryor’s report, counsel had been given the results of three tests performed by Pryor on March 31, 1991. Before Dr. Roach testified at trial, defénse counsel was givén an hour and one-half to review the report to prepare for’ cross-examination. Defense counsel gave the report to Dr. Logan, defendant’s expert, for his review prior to Dr. Logan’s testimony, which was subsequent to Dr. Roach’s testimony:
In State v. Burnison, 247 Kan. 19, 795 P.2d 32 (1990), we noted that in a criminal case, evidence not disclosed to the defendant before trial is not suppressed or withheld by the State if the defendant has personal knowledge thereof or if the facts become available to him during trial and he is not prejudiced in defending against them. 247 Kan. 19, Syl. ¶ 1. Actual prejudice to the defendant’s ability to defend against the charges must be shown in order to reverse the trial court. Prejudice is not presumed. 247 Kan. at 27. Here, the defendant has not shown actual prejudice and this issue is without merit.
Change of Venue
On February 7, 1992, approximately seven weeks prior to commencement of his trial, Wacker filed a motion for change of venue. The motion alleged that (1) extensive media coverage in Sedgwick County had focused on defendant’s case; (2) repetition of the allegations against Wacker could be anticipated both prior to jury selection and during the trial; and (3) due to the media coverage, “there exists in this county a great prejudice against the defendant that he cannot obtain a fair and impartial trial in this county.” In support of the allegations, two newspaper articles were appended to the motion; one article was dated July 24, 1991 (more than 6 months prior to the filing of the motion to change venue) and the other appeared in the newspaper on October 17, 1991 (more, than 3 months before the filing of the motion).
The hearing on the motion for change of venue was held prior to the selection of the jury. In addition to the information contained in his motion, Wacker called one witness. The. witness testified that she knew the defendant was involved in the kidnapping and murder of Nancy Shoemaker from the news, newspaper, flyers, and discussions with other people. The witness stated in her opinion the defendant was guilty. She knew five to seven other individuals in the community who shared her views. The witness admitted she was not able to speak for the community at large.
In denying the motion to change venue, the judge noted “that what is important is whether or not in the jury selection process twelve fair and impartial jurors can be selected.” The court noted the two articles and pointed out the lack of recent articles concerning the crime. The court denied the motion “without prejudice to renewing during the jury selection process.” The defendant did not renew the motion after the jury had been selected.
Because of the pretrial publicity of the murder, Wacker contends the trial court erred in failing to grant his motion for change of venue. He argues that news media treatment and coverage of the crime was and would be so extensive that justice required the trial be moved to a different area of Kansas.
The determination of whether to change venue lies within the sound discretion of the trial court and that determination will not be disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant, with the burden upon the defendant to show prejudice in the community, not as a matter of speculation, but as a demonstrable reality. To show prejudice to the substantial rights of the defendant, there must be more than speculation that the defendant did not receive a fair trial. The State is not required to produce evidence refuting that of the defendant. State v. Lumbrera, 252 Kan. 54, Syl. ¶¶ 2, 3, 845 P.2d 609 (1992).
Obviously, there was an enormous amount of publicity concerning the murder in the area. Unfortunately, there was no place in this state that the facts of the murder and the arrest of the defendant were not known. Modern communication and network methods for distribution of news allow the news media to distribute information by newspaper, radio, and television to the public statewide: News of the murder and the investigation was not, nor could it be, limited to the Wichita area. Because of the disappearance and tragic murder of the young girl, the news of that happening was immediately spread throughout Kansas as each fact surrounding her disappearance and death was uncovered.
Indicative of whether the atmosphere is such that a defendant’s right to a fair and impartial trial would be jeopardized, courts have looked at such factors as: the particular degree to which the publicity circulated throughout the community; the degree to which the publicity or that of a like nature circulated in other areas to which venue could be changed; the length of time which elapsed from the dissemination of the publicity to the date of trial; the care exercised and the ease encountered in the selection of the jury; the familiarity with the publicity complained of and its resultant effect, if any, upon the prospective jurors or the trial jurors; the challenges exercised by the defendant in the selection of a jury, both those peremptory and those for cause; the connection of government officials with the release of the publicity; the severity of the offense charged; and the particular size of the area from which the venire is drawn. Annot., 33 A.L.R.3d 17, § 2(a). See State v. Ruebke, 240 Kan. 493, 499-500, 731 P.2d 842, cert, denied 483 U.S. 1024 (1987).
Media publicity alone has never established prejudice per se. The defendant had the opportunity to renew his motion after the jury was selected and did not do so. The trial court had no difficulty in finding jurors who stated that they could render a fair and impartial verdict. A reading of the transcript of the hearing on the motion for change of venue shows the defendant did not meet his burden to show that the substantial rights of the defendant to a fair trial were substantially prejudiced by pretrial publicity. Wacker’s contention that he did not receive a fair trial because of pretrial publicity is based on speculation. The trial court did not abuse its discretion in denying the motion for change of venue.
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The opinion of the court was delivered by
Six, J.:
This is a municipal law case. The landowners in the remaining unincorporated portion of Wyandotte County (the Piper area) petitioned for incorporation. The City of Kansas City, Kansas, (City) later petitioned for annexation of the same area. The two petitions moved forward together on an administrative track before the three-person Board of County Commissioners (BOCC). The BOCC denied incorporation and granted annexation. (The Piper area is a 17-square-mile tract adjacent to the western boundary of the City.)
The landowners appealed the BOCC’s decisions to the district court. The district court affirmed the BOCC by granting summary judgment to the City which had intervened. The landowners appeal. Our jurisdiction is under K.S.A. 20-3018(c) (transfer from the Court of Appeals on our motion).
The landowners frame two issues of district court error: (1) The BOCC was arbitrary and capricious when it failed to consider the status quo of the Piper area as an alternative to either incorporation or annexation. (2) The municipal law doctrine of prior jurisdiction applies, i.e., the BOCC and the district court could only consider the landowners’ first-filed incorporation petition to the exclusion of the City’s later-filed annexation petition.
We reject both issue propositions, find no district court error, and affirm.
The Standard of Review
The standard for judicial review of annexation proceedings requires us to first determine whether the district court observed the requirements placed upon it and then conduct a similar review of the action taken by the BOCC. City of Topeka v. Board of Shawnee County Comm'rs, 252 Kan. 432, 434, 845 P.2d 663 (1993). In considering the quasi-judicial decision making, we must determine whether, as a matter of law, the BOCC: (1) acted fraudulently, arbitrarily, or capriciously; (2) issued an order supported by substantial evidence; and (3) acted within the scope of its authority. 252 Kan. 432, Syl. ¶ 1. We should not substitute our judgment for that of the members of the BOCC “who act as elected representatives and are able to observe and hear those who testify.” Our role in annexation decisions is limited. 252 Kan. at 439.
Our standard of review for the BOCC’s denial of incorporation is restricted to judicial matters such as the construction of statutes and the application of the statutes to the facts of the case. To determine whether the district court properly discharged its function, we make the same review of the BOCC decision in the first instance as does the district court. The advisability of incorporation is not our concern. In re Application for Incorporation as City, 241 Kan. 396, 402, 736 P.2d 875 (1987). See K.S.A. 15-126.
Facts
Litigation involving the Piper area makes a third visit to this court. See In re Reincorporation of Piper City, 220 Kan. 6, 551 P.2d 909 (1976); City of Kansas City v. Board of County Commissioners, 213 Kan. 777, 518 P.2d 403 (1974).
In November 1990, a newspaper reported that a newly elected Wyandotte County Commissioner had proposed the elimination of the unincorporated Piper area to accomplish the goal of consolidation of governmental services.
A member of the BOCC, in March 1991, circulated a memo to the other county commissioners which is characterized by the landowners as “calling for the end of the status quo for the Piper area.” The memo discussed the financial constraints that the county was facing due to the implementation of the state-mandated reappraisal and classification system. The memo also commented on the ratio between taxes paid and the cost of services provided by the county to the unincorporated Piper area. Additionally, the memo stated that “self determination of the citizens in this area” was important. An advisory mail ballot to determine the preferences of the Piper landowners was proposed. The opinion poll was mailed to registered voters who resided in the Piper area. The poll provided three options: (1) incorporation into a new municipality; (2) annexation by the City; and (3) annexation by Bonner Springs, Kansas.
The Piper area landowners filed a petition under K.S.A. 15-115 et seq. in May 1991 to incorporate as a third-class city. The City filed its annexation petition a week later. The BOCC set the two petitions for public hearing—the incorporation petition on July 30, 1991, and the annexation petition the next day, July 31, 1991.
With the exception of a brief statement and presentation of the City’s annexation petition, all of the comments presented at the incorporation hearing favored incorporation. At the annexation hearing, comments were presented which supported and opposed both annexation and incorporation.
Written comments were received by the BOCC. At the regular meeting of the BOCC held on August 6, a motion was made to approve incorporation of the Piper area. The vote was two in favor and one opposed. The applicable statute, K.S.A. 15-123, requires a unanimous vote if the territory proposed for incorporation is wholly within one county and is within five miles of an existing city. The motion failed. A motion was then made to approve annexation by the City. The annexation motion passed on a vote of two in favor and one abstention. K.S.A. 12-521, the applicable annexation statute, does not require a unanimous vote. The BOCC resolutions denied incorporation and approved annexation. The findings of fact and conclusions of law included consideration of manifest injury and the advisability of annexation.
The City’s memorandum in support of its summary judgment motion contained statements of fact concerning procedural history. The landowners did not controvert the City’s statement of procedural facts. The memorandum opposing the City’s summary judgment motion included a statement of additional uncontroverted facts concerning the wisdom of annexation. According to the landowners, the evidence showed that the Piper area lacked the requisite population density for annexation. The area was primarily used for agricultural purposes, with the exception of a golf course/residential area. The City refutes this density conclusion, contending it is contrary to what the BOCC determined.
The landowners filed a motion to dismiss the City’s annexation petition on the basis that the district court had exclusive jurisdiction to hear only matters relating to incorporation. The motion was denied.
Summary Judgment
We acknowledge the applicable rules of summary judgment. The district court was required to resolve all facts and inferences which might reasonably have been drawn from the evidence, in favor of the landowners. Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306-07, 756 P.2d 416 (1988). On appeal, we must read the record in the light most favorable to the landowners. Bright v. Cargill, Inc., 251 Kan. 387, 392, 837 P.2d 348 (1992). Summary judgment is proper where the only question or questions presented are questions of law. Bank IV Wichita v. Arn, Mullins, Unruh, Kuhn & Wilson, 250 Kan. 490, 498, 827 P.2d 758 (1992). The landowners must come forward with something of evidentiary value to establish a material dispute of fact, although they are not required to prove their case. See Glenn v. Fleming, 247 Kan. 296, 305 799 P.2d 79 (1990); K.S.A. 1992 Supp. 60-256(e).
The District Court’s Ruling
In its memorandum opinion, the district court found:
“Although the Appellants’ [landowners’] Statement of Additional Uncontroverted Facts suggests there is evidence in the record that would support a decision for incorporation, the advisability of incorporation is not subject to review by the district court and the court cannot reweigh the evidence and substitute its judgment for that of the board. [In re Application for Incorporation as City, 241 Kan. 396, 402, 736 P.2d 875 (1987)]. Appellants do not present a genuine issue of material fact for trial.
“Based on the above I find that the Board’s decision denying incorporation is substantially supported by evidence contained in the record and is, therefore, not arbitrary, capricious or unlawful.”
Additionally, the district court considered the annexation petition and found:
“The Board’s findings as to advisability of annexation and manifest injury . . . are detailed and complete with specific references to the record. Appellants do not deny Appellees’ contentions with regard to the evidence before the Board which supported annexation. That evidence is substantial.
“Appellants also suggest that the Board decided prior to receipt of the petitions for incorporation and annexation that maintenance of the status quo as an alternative was eliminated. There was substantial evidence in the record to support the Board’s position. . . .
“Appellants’ contentions as set forth in their Statement of Additional Uncontroverted Facts, to the extent they would be admissible, do not indi vidually or in total present an issue of material fact. Those contentions consist entirely of citations to the record which weigh against annexation. I cannot reweigh the evidence and substitute my judgment for that of the Board. Having determined that there is substantial evidence in the record to support the Board’s actions, Appellants’ contentions become immaterial. In re [Appeal off City of Lenexa, 232 Kan. 568 [, 584, 657 P.2d 47 (1983)].!’
The Piper Area Status Quo
The landowners object to thé method the district court used in applying the rules of summary judgment to their claims. They assert that the case at bar represents the first in which a board of county commissioners: (1) has acted at the same time on competing incorporation and annexation petitions and (2) solicited the petitions acted upon.
The landowners contend that the BOCC decided prior to the receipt of the incorporation and annexation petitions to eliminate the unincorporated area as a means of consolidating county government. Consequently, this prior decision caused evidence in support of maintenance of the status quo to be excluded from consideration by the BOCC. The landowners argue that the prepetition decision of the BOCC was arbitrary,, capricious, and unreasonable and, as such, constituted reversible error. They reason that when the district court granted the City’s motion for summary judgment it “deprived landowners of their opportunity to prove through a true judicial proceeding with right of cross-examination the validity of their position.”
The landowners suggest that the district court improperly searched the record for evidence in support of the City’s position. They characterize the district court’s approach as the inverse application of the rules of summary judgment which “effectively stilled that broader voice the statutes sought to provide landowners.” The landowners contend the “broader voice” arises from their reading of Cedar Creek Properties, Inc. v. Board of Johnson County Comm’rs, 249 Kan. 149, 158, 815 P.2d 492 (1991). Cedar Creek, contrary to the case at bar, involved “island annexation” under K.S.A. 12-520c. A limestone quarry was the intended use for the area to be annexed. The board of county commissioners refused to consider the proposed, use. We held such a refusal to be contrary to the legislative intent of K.S.A. 12-520c. 249 Kan. at 160. The landowners’ “broader voice” reliance on Cedar Creek is misplaced.
The Ciiy contends that the landowners’ argument concerning the preordained nature of the BOCC decision is flawed. The City advances the view that politicians should not be held to a judicial standard concerning the prejudgment of issues. It observes that in City of Topeka, 252 Kan. at 442, we reasoned thát the legislature did not intend to impose formal judicial procedural requirements on annexation proceedings.
We stressed in City of Topeka, an annexation case, that the determination of whether a board acted arbitrarily or capriciously depends “entirely on whether the Board’s conclusion on manifest injury was based upon substaritial evidence.” 252 Kan. at 442. It is not our duty to reweigh the evidence or to substitute our judgment for that of the BOCC. 252 Kan. at 446. There was evidence in the record that the decision to change the status quo would be beneficial to the City, the county, and the community as a whole.
The parties correctly observe that the district court thoroughly examined the law concerning the approach it should take in reviewing the ROCC’s decision. The district court followed the appropriate, standard for reviewing incorporation and annexation, the latter being quasi-judicial in nature. K.S.A. 12-521(c).-
The landowners have failed to demonstrate that the BOCC’s decision was arbitrary or capricious or that the BOCC failed to consider the statutory factors that are to be examined in reaching annexation or incorporation decisions. K.S.A. 12-521(c), K.S.A. 15-121. The BOCC has broad discretion as to how it evaluates evidence. The record indicates that the BOCC followed proper procedures when it set forth findings concerning admissibility' arid manifest injury.
The economic and political nature of the alleged prehearing judgment views of the BOCC concerning the Piper area status quo are not proper subjects for our review. See Clarke v. City of Wichita, 218 Kan. 334, 350, 543 P.2d 973 (1975).
The Doctrine of Prior Jurisdiction
The landowners emphasize that they, initiated the first claim to the Piper area when their incorporation petition was filed. They contend that the prior jurisdiction rule dictates that an annexation proceeding is ineffectual when commenced after a proceeding for incorporation of the same territory as a city. The landowners rely on In re Appeal of City of Lenexa, 232 Kan. 568, 657 P.2d 47 (1983), and Town of Clive v. Colby, 255 Iowa 483, 123 N.W.2d 331 (1963) (referenced in City of Lenexa, 232 Kan. at 579).
The landowners assert that they have the exclusive right to be heard before the BOCC as the reviewing forum under the prior jurisdiction rule. According to the landowners, the rule of priority has been almost uniformly applied: (1) “as between competing annexations of the same territory”; (2) “as between annexation and incorporation of the same or parts of the same territory”; and (3) “as between attempts to incorporate land that is subject to annexation.” The landowners cite a variety of cases to support these contentions.
The landowners object to the manner in which the district court handled their jurisdictional motion to dismiss the annexation petition. The district court disposed of the motion by first concluding that the cases cited in support of the motion were distinguishable. We have reviewed the authorities cited by the landowners and agree with the district court’s analysis. The district court next found that City of Lenexa only applied “where two or more bodies or tribunals have concurrent jurisdiction,” which it determined was not the situation in the case at bar. Finally, the district court found that the controlling annexation and incorporation statutes provide for simultaneous consideration of competing petitions.
The landowners reason that the district court’s viewpoint was premised on: (1) K.S.A. 12-521(c)(12), which directs the BOCC, when considering annexation, to take into consideration “existing petitions for incorporation,” and (2) K.S.A. 15-121, which requires the BOCC, when reviewing incorporation, to consider the “willingness” of a city within five miles to annex. According to the landowners, the terms “existing” and “willingness” do not have the legal significance of the terms “file” and “pending.” The landowners’ suggested interpretation is strained.
The landowners conclude that simultaneous consideration of the City’s petition to annex followed by an order approving an nexation was beyond the scope of the BOCC’s authority as long as the landowners’ petition was pending. According to the landowners, the petition to incorporate, under the authority of City of Lenexa, continues to pend until the BOCC order is affirmed or denied by a court of last resort. The landowners reason that the BOCC order approving annexation must be reversed and the matter of incorporation remanded for consideration consistent with the doctrine of prior jurisdiction. We do not agree.
The landowners misread City of Lenexa. Prior jurisdiction was not rejected or accepted as a doctrine dispositive of any issue. We stated that “the doctrine is inapplicable here.” (Emphasis added.) 232 Kan. at 580. We observed in City of Lenexa that “[i]n another portion of its brief, the City of Lenexa quite candidly states: ‘The priority issue will ripen only if Lenexa’s annexation is in whole or in pertinent part approved either by this Court or upon remand.’ We agree.” 232 Kan. at 580. Lenexa’s annexation was not 'approved. The “priority issue” never ripened.
• We are guided by the application of the appropriate Kansas statutes on annexation and incorporation. The legislative guidance extended to us was, of course, not present in Town of Clive. The BOCC has jurisdiction of both the landowners’ petition to incorporate and the City’s petition to annex. The decision rests with the BOCC. No competing decision maker is involved.
The doctrine of prior jurisdiction does not apply to the case at bar. We note the observation of 2 McQuillin, Municipal Corporations § 7.22a, p. 511 (3d ed. rev. 1988): “Thus, where two or more -bodies or tribunals have concurrent jurisdiction over a subject matter, the one first acquiring jurisdiction may proceed, and subsequent purported assumptions of jurisdiction in the premises are a nullity.” We leave the application of the prior jurisdiction rule for another day when a proper factual scenario may call for us to revisit the doctrine.
The legislature contemplated the joint review undertaken by the BOCC. In its evaluation of manifest injury, the BOCC must consider under K.S.A. 12-521(c)(12) “existing petitions for incorporation of the area as a new city or for the creation of a special district.” Similarly, K.S.A. 15-121 requires the analysis of a petition for incorporation to include “[t]he willingness of the city to- annex the territory and its ability to provide city services in case of annexation.” K.S.A. 12-521(c) requires the BOCC to consider the impact of approving or disapproving annexation on the entire community. Similarly, in reviewing an incorporation petition K.S.A. 15-121 requires the BOCC to consider:
“The general effect upon the entire community, should there be additional cities in the area; all of these and other considerations having to do with the overall orderly and economic development of the area and to prevent an unreasonable multiplicity of independent municipal governments.”
K.S.A. 15-123 states:
“The petition for incorporation shall be denied if it is determined that present or future annexation to an adjacent city, or the creation of an authorized .special service district, or districts, would better serve the interest of the area or that the proposed incorporation would be otherwise contrary to the public interest.”
The purpose of the prior jurisdiction rule is to obviate “unacceptable conflicts between public bodies processing competing annexations.” State ex inf. Nesslage v. Vil. of Flint Hill, 718 S.W.2d 210, 214 (Mo. App. 1986). The Ohio Supreme Court in State, ex rel. Hannan v. DeCourcy, 18 Ohio St. 2d 73, 81, 247 N.E.2d 465 (1969), the case relied on by the district court in the case at bar, declined to apply the prior jurisdiction rule because there was no risk of conflicting judgments. As in the instant case, the same board had jurisdiction over the annexation and incorporation petitions which were filed concerning the same territory.
The legislature did not intend the prior jurisdiction rule to mandate “a hold” on the City’s annexation petition until the Piper area incorporation petition had reached a final resolution.
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The opinion of the court was delivered by
Holmes, C.J.:
This is an appeal, in a fraudulent conveyance action, by the plaintiff Turón State Bank (Turón) from the trial court’s order granting a partial directed verdict and the jury verdict in favor of the defendants, the Estate of Walter G. Frampton, deceased, and his daughter, Donna R. Downs. The Court of Appeals affirmed the trial court in a published opinion, 17 Kan. App. 2d 829, 845 P.2d 79 (1993). This court granted the plaintiff’s petition for review, and we now affirm the decisions of the trial court and the Court of Appeals. However, we disapprove certain overly broad language in the Court of Appeals opinion.
Turón, in its appeal to the Court of Appeals and in its petition for. review to this court, asserts three issues of error on the part of the trial court. Turón contends the trial court erred (1) in failing and refusing to give an instruction on the badges of fraud recognized in Koch Engineering Co. v. Faulconer, 239 Kan. 101, 716 P.2d 180 (1986), and other cases; (2) in failing and refusing to give its requested instruction on the adequacy of consideration; and (3) in granting a partial directed verdict in favor of the defendants as to 50 acres of property determined to be homestead property.
We have carefully reviewed the entire record and conclude the Court of Appeals opinion adequately addressed the three asserted issues of error and that the Court of Appeals, based upon the facts of this case, reached the correct conclusion on each issue. Therefore, we see no need to rehash the issues here, and we merely adopt the opinion, conclusions, and decision of the Court of Appeals, except as hereinafter modified.
In reaching its opinion relative to the request for an instruction on the six badges of fraud recognized in Koch Engineering, the Court of Appeals concluded its discussion by stating: “We therefore hold that in Kansas, the badges or indicia of fraud should not be given as jury instructions, and the trial court did not err in refusing to do so.” 17 Kan. App. 2d at 835.
The broad statement from the opinion was adopted in the syllabus as follows: “In a fraudulent conveyance action, a trial court should not give an instruction on the ‘badges’ or ‘indicia’ of fraud.” 17 Kan. App. 2d 829, Syl. ¶ 1.
The Court of Appeals has apparently adopted a bright line rule to the effect that an instruction on the badges of fraud should never be given and has, at least by implication, given the impression that it would always be error to give such an instruction. We think any such rule is overly broad and decline to forever close the door on such an instx'uction. We are not so clairvoyant as to be able to perceive the circumstances of all the fraud cases which may arise in the future, and there may very well be cases where such an instruction might be appropriate.
We have never held that the giving of a badges of fraud instruction is error per se. To the contrary, our cases indicate otherwise. In Chapman v. Farrell, 96 Kan. 659, 153 Pac. 511 (1915), the plaintiff sought to recover possession of personal property which was seized on execution by the defendant sheriff to satisfy a judgment against plaintiff’s husband. The property had been transferred to the plaintiff by her husband just a few days prior to the execution. The plaintiff claimed there was no fraud in the transfer to her from her husband and even if it was fraudulent on his part, she had no knowledge of the fraud and did not participate in it. The trial court in instructing the jury gave an instruction which incorporated some of the badges of fraud recognized in more recent decisions of this court. On appeal, the court found no error in the giving of the following instruction:
“ ‘It is rare, indeed, that fraud can be proved by direct and positive testimony of reliable witnesses. It is an almost invariable rule that it can only be deduced from a consideration of many facts and circumstances; from the conduct, statements, dealings and surroundings of the parties, from their relationship to each other, and from the many little doings of the parties which indicate their secret motives, which as a rule are studiously concealed from those it is intended to wrong. Any unusual or extraordinary methods, if any, which they adopted in conducting business; any secrecy or concealment in business and any unusual methods or acts connected with the transactions in question in the case are proper to be considered in determining whether fraud in fact exists in connection with the transaction.’ ” 96 Kan. 659, Syl. ¶ 3.
In Morse v. Ryland, 58 Kan. 250, 48 Pac. 957 (1897), the plaintiff’s brother transferred personal property to the plaintiff, ostensibly to settle an indebtedness owed the plaintiff. The transfer was alleged to be fraudulent and an attempt to avoid attachment and execution to satisfy other creditors. In that case this Court held it was error not to give an instruction that would advise the jury about the circumstances of the case. The court stated:
“It is rare indeed that fraud can be proved by the direct and positive testimony of reliable witnesses. It is an almost invariable rule that it can only be deduced from a consideration of many facts and circumstances; from the conduct, statements, dealings, and surroundings of the parties, from their relationship to each other, and from the many little doings of the parties which indicate their secret motives, which as a rule are studiously concealed from those it is intended to wrong. The third instruction asked by the defendant is a fair statement of the law on this proposition, and the substance of it should have been given.” 58 Kan. at 259.
Although these early cases do not refer to the badges of fraud as such, our more recent cases do recognize the connection between the badges of fraud and the proof necessary to support a finding of fraud. See Mohr v. State Bank of Stanley, 244 Kan. 555, 770 P.2d 466 (1989); City of Arkansas City v. Anderson, 243 Kan. 627, 762 P.2d 183 (1988), cert, denied 490 U.S. 1098 (1989); Koch Engineering Co. v. Faulconer, 239 Kan. 101; Credit Union of Amer. v. Myers, 234 Kan. 773, 676 P.2d 99 (1984); Polk v. Polk, 210 Kan. 107, 499 P.2d 1142 (1972). In Koch Engineering, we outlined the legal relationship which exists between the badges of fraud and the elements of a fraudulent conveyance. In doing so, we relied upon a number of cases and authorities, stating:
“ ‘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 consid-' eration; and (6) consummation of the transaction contrary to normal business procedures.’
“ ‘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 ... .
“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.
“. . . 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. . . . On the other hand, the concurrence of several badges of fraud are said to make out a strong case.” 239 Kan. at 105-07.
While the Court of Appeals’ adoption of a bright line rule is appealing and certainly sends a clear signal to our trial judges, we are not prepared to say that in an appropriate case the giving of a badges of fraud instruction would be error. There may very well be cases in which the giving of such an instruction would not only be appropriate but preferable.
Without going into detail or reviewing the Court of Appeals opinion at length, we agree that the giving of such an instruction in the present case would not only have been inappropriate but probably erroneous. The only badge of fraud which might have been considered under the evidence in this case was the one relating to the relationship between the grantor and grantee. That was never an issue and was made clear in the instructions that were given.
In conclusion, we hold that the quoted language from the Court of Appeals opinion and syllabus is overly broad. Syllabus ¶ 1 of the Court of Appeals opinion and the corresponding statement in the opinion are hereby disapproved. While we do not endorse or recommend the giving of an instruction on the badges or indicia of fraud, we think the determination of whether one should be given should be left to the sound discretion of the trial court based upon the facts and circumstances of the particular case. We anticipate that ordinarily a trial court will not need to give such an instruction, but if the court is of the opinion, based upon the evidence and circumstances of the case, that such an instruction is necessary for the guidance of the jury in arriving at a proper verdict, the trial court should not be precluded from giving an instruction on the badges or indicia of fraud.
The decision of the Court of Appeals is affirmed, and the opinion is modified as hereinbefore set forth. The judgment of the district court is affirmed.
Davis, J., not participating.
Miller, C.J., Retired, assigned. | [
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Per Curiam:
On May 22, 1992, this court indefinitely suspended respondent, Robert E. Jenkins, from the practice of law and immediately suspended that discipline and placed respondent on supervised probation for a period of two years. Rodney Turner was designated as the supervising attorney and was required to report to the Disciplinary Administrator. Respondent was authorized to continue the practice of law under the terms and conditions imposed by the hearing panel, which were made a part of the court’s order. The Disciplinary Administrator was ordered to report promptly to this court any report of misconduct or noncompliance by respondent. In re Jenkins, 251 Kan. 264, 833 P.2d 1013 (1992).
The Disciplinary Administrator filed reports with this court on June 23, 1992, and December 1, 1992. The June 23, 1992, report indicated there were two complaints against respondent pending with the Board for Discipline of Attorneys. One count in one of the complaints alleged that respondent had failed to cooperate with the Disciplinary Administrator in the investigation of that complaint. The December 1, 1992, report indicated that three additional complaints against respondent had been filed with the Board. One count of one of these complaints also alleged a failure to cooperate in the investigation. Thereafter, additional complaints against respondent were filed with the Board for Discipline of Attorneys. Additional letters of complaint have been docketed and are in the investigative stage.
On January 12, 1993, the supervising attorney, in response to a request from the Disciplinary Administrator’s office for a status report, indicated that he no longer wished to serve as supervising attorney due to respondent’s delay in providing, him with information, respondent’s failure to deliver new files, and respondent’s failure to provide requested information. Thereafter, the supervising attorney filed a motion with this, court requesting that he be relieved of his duties as supervisor. His motion was granted on January 22, 1993.
On February 26, 1993, the Disciplinary Administrator filed with this court an accusation in contempt against respondent requesting issuance of an order to respondent to appear and show cause why the order of probation should not be vacated and appropriate discipline be imposed.
Thereafter, on March 1, 1993, this court issued an order directing respondent to appear before the court to show cause why the order of probation should not be revoked and appropriate discipline imposed. On April 16, 1993, the matter was heard by the court.
After consideration of the arguments of the parties, the reports of the supervising attorney, the pending disciplinary matters involving respondent, and respondent’s failure to comply with the orders of this court, the court finds that respondent should be suspended from the practice of law in the State of Kansas for an indefinite period commencing May 22, 1992, the date of the court’s grant of probation in this matter.
It Is Therefore Ordered that respondent be and he is hereby suspended from the practice of law in Kansas for an indefinite period commencing May 22, 1992.
It Is Also Ordered that this order be published in the Kansas Reports and that respondent pay the costs of this proceeding.
It Is Further Ordered that respondent shall comply with the provisions of Supreme Court Rule 218 (1992 Kan. Ct. R. Annot. 176). | [
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