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On April 12, 1991, this court placed respondent on probation for two years subject to the following conditions: (1) that his legal practice be supervised by a.member of the Wichita Bar Association’s Impaired Lawyers Assistance Committee; (2) that he remain drug and alcohol free; (3) that he continue to participate in a local Alcoholics Anonymous program; and (4) that he make formal restitution to those injured by his professional misconduct. In re Keil, 248 Kan. 629, 809 P.2d 531 (1991).
This court finds that the Disciplinary Administrator has filed a probation report verifying that respondent has fully complied with all conditions imposed upon him by this court and recommending that respondent be discharged from probation.
It Is Therefore Ordered that respondent is discharged from probation and from any further obligations in this matter and that this proceeding is closed.
It Is Further Ordered that this order shall be published in the Kansas Reports and that the costs herein be assessed to the respondent. | [
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The opinion of the court was delivered by
Prager, C.J.;
This is a direct appeal by the defendant, Mark R. Maas, from jury convictions of aggravated kidnapping (K.S.A. 21-3421); rape (K.S.A. 1986 Supp. 21-3502[1] [a]); aggravated assault (K.S.A. 21-3410); terroristic threat (K.S.A. 1986 Supp. 21-3419); and criminal trespass (K.S.A. 21-3721). The charges against defendant arose out of two different incidents where defendant sexually assaulted, threatened, and kidnapped Ms. S, his former girl friend. On October 8, 1985, defendant went to Lawrence High School and confronted Ms. S, stating that he wanted to talk with her. When she refused, defendant showed her a gun and told her if she did not go with him he would shoot them both. The couple got in her car and argued about their prior breakup. During this time, defendant continued threatening her with a pistol.
The second incident occurred on October 20,1985. Defendant entered Ms. S’s house uninvited, went to her bedroom, held a gun to her forehead, and forced her out to his car. He handcuffed her to the armrest of his car. Defendant then drove her to a rural area where he raped her. Early the next morning, the defendant removed the handcuffs and took his victim home.
These two incidents resulted in two criminal cases being filed against defendant, which were consolidated and tried together to a jury. There was not any real dispute as to what occurred, nor does defendant challenge the sufficiency of the evidence to support the verdicts. The only real factual issue in the case was whether defendant was insane at the time the offenses were committed and whether defendant’s mental condition was of such a nature as to prevent him from having the specific intent necessary to commit certain offenses. The jury resolved these issues in favor of the prosecution and defendant appealed.
The first issue raised on the appeal is whether the trial court erred in denying defendant’s pretrial motion for dismissal for failure to allow him a speedy trial pursuant to K.S.A. 22-3402. The record shows that the defendant was brought to trial 145 days after arraignment. Defendant contends that violated the 90-day limitation set forth in K.S.A. 22-3402. It was undisputed that the defendant was imprisoned during the entire period between arraignment and trial. The chronological schedule of events was as follows:
November 6, 1985 Defendant was arraigned in both cases consisting of a total of six counts. The cases were consolidated for trial by the court.
November 26, 1985 Defendant filed a motion for discovery. December 5, 1985 Defendant filed a notice of intent to rely on the insanity defense pursuant to K.S.A. 22-3219.
December 18, 1985 State filed motion for reciprocal discovery pursuant to K.S.A. 22-3212(3).
December 31, 1985 Defense counsel informed the court that experts had been employed by the defendant and that psychological evaluations had been commenced, but they were taking longer than anticipated to complete. The case had been set for trial by the court for January 13, 1986. The State moved for a continuance due to the insanity defense. Counsel for the defendant made no objections to the continuance but did not waive defendant’s right to a speedy trial. The trial court granted the State’s motion and continued the case for trial to February 10, 1986, because of the court’s congested docket.
January 30, 1986 State moved for an additional continuance because defendant’s experts had not yet provided their reports as to defendant’s insanity. The trial court granted the State’s motion to continue over defendant’s objection and continued the case to March 31, 1986 (145 days after arraignment).
February 7, 1986 The reports of defendant’s experts were furnished to the prosecutor and were filed.
February 24, 1986 It appears that defendant refused to submit to an examination by the State’s medical experts and, at an ex parte hearing, the trial court ordered defendant to submit to insanity examinations. Defendant objected to the order.
February 25, 1986 Defendant was examined by the State’s medical experts.
March 14, 1986 The report of one of the State’s experts was filed.
March 27, 1986 The report of a second state’s expert was filed.
March 28, 1986 Defendant’s motion to dismiss the case because of a claimed denial of a speedy trial under K.S.A. 22-3402 was denied by the trial court.
March 31, 1986 Trial commenced and the defendant was subsequently convicted.
Defendant contends that, on the basis of the record, the trial court violated his right to a speedy trial under K.S.A. 22-3402. K.S.A. 22-3401 and 22-3402 provide in part as follows:
“22-3401. Time of trial. All persons charged with crime shall be tried without unnecessary delay. Continuances may be granted to either party for good cause shown.”
“22-3402. Discharge of persons not brought promptly to trial. (1) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person’s arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).
“(3) The time for trial may be extended beyond the limitations of subsections (1) and (2) of this section for any of the following reasons:
“(a) The defendant is incompetent to stand trial;
“(b) A proceeding to determine the defendant’s competency to stand trial is pending and a determination thereof may not be completed within the time limitations fixed for trial by this section.
“(c) There is material evidence which is unavailable; that reasonable efforts have been made to procure such evidence; and that there are reasonable grounds to believe that such evidence can be obtained and trial commenced within the next succeeding ninety (90) days. Not more than one continuance may be granted the state on this ground, unless for good cause shown, where the original continuance was for less than ninety (90) days, and the trial is commenced within one hundred twenty (120) days from the. original trial date;
“(d) Because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial by this section. Not more than one continuance of not more than thirty (30) days may be ordered upon this ground.”
The defendant in his brief correctly states that the right to a speedy trial is guaranteed by that statute. State v. McQuillen, 236 Kan. 161, 165, 689 P.2d 822 (1984).
This case does not involve the issue of defendant’s compe tency to stand trial. The defendant correctly takes the position that the burden of bringing an accused to trial within the allotted time is entirely on the State, and defendant is not required to take any affirmative action to see that his right is observed. State v. Bean, 236 Kan. 389, 391, 691 P.2d 30 (1984).
Defendant concedes that the first continuance received by the State was permissible under K.S.A. 22-3402(3)(d) which allows one 30-day continuance because of a crowded docket. However, the defendant argues the second continuance obtained by the State on December 31, 1985, should be charged against the State rather than against the defendant. The defendant’s position is that the second continuance or delay was improperly charged against the defendant because the delay was not the result of defendant’s application or fault as required by K.S.A. 22-3402(1). Defendant maintains that the mere filing of his notice of intent to rely on the insanity defense under K.S.A. 22-3219 was not an “application” because defendant did not take any affirmative action to actually delay the trial. Defendant argues that a notice of intent to rely on the defense of insanity merely informs or notifies the State that defendant may rely on the insanity defense at the trial. Defendant argues that it is only when the defendant actually files a motion with the court for an insanity evaluation under K.S.A. 22-3219(2) that defendant has made application for delay in going to trial. In State v. Powell, 215 Kan. 624, 625, 527 P.2d 1063 (1974), it was held that a defendant’s motion for psychiatric evaluation was tantamount to a motion for continuance until the results of the examination were available to the State, and that a delay resulting from such a motion is the result of the defendant’s application. See also State v. Warren, 224 Kan. 454, 580 P.2d 1336 (1978), holding that the delay resulting from a court-ordered psychiatric evaluation is to be charged to the defendant. Defendant contends that he never sought a court order for a psychiatric examination in this case and that those cases are not applicable.
The defendant next contends that the delay was improperly charged to him because it was not the result of his “fault” within the meaning of K.S.A. 22-3402. The State takes the position that the defendant was responsible for any delay in trial resulting from his filing a notice of intent to rely on the insanity defense. In our judgment, the basic principle of law on this issue was determined in State v. Topham, 231 Kan. 167, 642 P.2d 986 (1982). In Topham, defendant appealed his conviction on two counts of first-degree murder. On September 18, 1980, the county attorney filed a motion to determine defendant’s competency. On December 30, defendant was found to be competent to stand trial. On that same date, defendant filed a notice of intent to rely on the insanity defense, and a mental evaluation was ordered for defendant. On April 8, 1981, defendant moved to be discharged because the 90-day time limit under the speedy trial statute had expired. This court analyzed the speedy trial statute in light of K.S.A. 22-3219 to determine the responsibility for delay in trial resulting from the filing of a notice to rely on the insanity defense. This court stated:
“Section (1) of the statute requires that such notice be filed before trial and within 30 days after entry of a not guilty plea. Section (2) provides that a defendant filing such notice ‘submits and consents to abide by such further orders’ as the court may make relative to mental examination. It is anticipated that the filing of the notice triggers at least one mental examination on the question of insanity. Such determination relates to sanity or legal insanity at the time of the commission of the offense and is wholly separate and apart from any mental examinations relative to competency to stand trial. In the usual case, at least one side is dissatisfied with the results of the first sanity examination and seeks another medical opinion. Hence, a foreseeable consequence of filing a notice of intent to rely on the insanity defense is delay in the commencement of trial.
“We conclude that the filing of notice of intent to rely on the insanity defense, pursuant to K.S.A. 22-3219, operates as a waiver by said defendant of the requirements of the speedy trial statute (K.S.A. 22-3402) insofar as any such trial delay was reasonably occasioned by and attributable to the assertion of the insanity defense. In the case before us, 134 days elapsed between arraignment and the commencement of trial. Of such period, defendant was physically at the State Security Hospital at Lamed for a court-ordered sanity examination for a period of 46 days. Subtraction of just this Lamed time from the 134-day total results in defendant having gone to triál within the statutory 90-day period. There is no need to compute the number of other delays equally chargeable to the insanity defense or occasioned by the direct request of defendant.” 231 Kan. at 169-70.
The defendant distinguishes Topham on the basis that, in the present case, defendant was voluntarily evaluated by his own psychiatrist with his own funds. We find this argument to be without merit. Because there is a presumption of sanity in a criminal proceeding, the State is not required to introduce evidence of sanity until defendant introduces his evidence that he is insane. State v. Lawton, 241 Kan. 140, 142, 734 P.2d 1138 (1987). The prosecution has no reason to evaluate defendant until defendant’s experts file their reports that defendant was insane at the time the offense occurred. In the present case, the State moved for reciprocal discovery on December 18, 1985. Trial was originally set for January 13, 1986. On December 31, 1985, defense counsel notified the court the defense experts had not completed their examinations. The prosecutor moved for a continuance because he had not yet received defendant’s evaluations. At the State’s request, the court continued the case for trial to February 10,1986. On January 30,1986, the State again moved for a continuance because the district attorney had not yet received defendant’s evaluations. The trial court ordered the defendant to provide the evaluation reports within ten days and continued the trial until March 31,1986, stating for the record as follows:
“THE COURT: I’m going to direct that all reports be furnished— Well, first of all, I’m going to grant the continuance. Obviously, the continuance is one which I don’t think anyone is particularly eager in seeking or granting. By the same token, there needs to be rules of fair play to all sides, just not the defendant. And to ask the State to present the case where the burden of proof is on them when they have no idea as to what the reports indicate and, further, when the statutes — and I’m sure if the statute didn’t address it, the case law would — that the State is entitled to review these reports in order for them to attempt to have their own experts review it to see if in fact they agree or disagree, that it would not be fair to the State to proceed without those reports.
“So, to that end, I’m going to grant the continuance. I’m going to direct that those reports and mental examinations be furnished to the State no later than two weeks from today’s date. Now, if that extension would be — or that deadline would be extended if good cause could be shown why that should occur. But I feel that without those types of deadlines this case could go on indefinitely, and the Court would be at the whim of someone else’s schedule, and that isn’t the way the criminal justice system is to work. Priorities need to be established. This is an important matter. Mr. Maas is in custody, and the matter should get to trial. He’s been in custody for a great length of time.
“To that end, I’m going to continue the matter and reset the trial — I said two weeks; I’m going to indicate 10 days — and I’m going to continue the trial to March the 31st, 1986.
“Again, the reason for the continuance is to allow the State sufficient time to review the reports by the defendant’s experts and to have experts of their own to review these particular reports and then to be ready for trial. And March the 31st seems to be that time period which would allow all this to happen and yet would not require the Court to continue several other matters which are pressing on the Court’s docket. So I’m going to continue this case to March the 31st, 1986. It will remain as the number one case.”
The defendant’s two psychiatric evaluations were filed on February 7, 1986. Thereafter, the prosecutor sought to have the defendant evaluated by the State’s medical experts. The record is not clear as to whether the defendant refused to be evaluated voluntarily. Nevertheless, on February 24, 1986, the State obtained an ex parte order requiring defendant to submit to an examination by the State’s expert witnesses. The reports of the State’s experts were filed by March 27, 1986. Based upon the undisputed evidence contained in the record, we have concluded that the delays occasioned by the psychiatric evaluations by both parties were reasonably attributable to the assertion of the insanity defense and properly chargeable against the defendant.
The trial court properly considered the factual circumstances, thus the period of delay from December 5, 1985, to March 27, 1986, was reasonably attributable to the assertion of the insanity defense in accordance with State v. Topham, 231 Kan. 167, Syl. ¶ 1. There was a period of 64 days from the time the notice of intent to rely on the insanity defense was filed until the defense evaluations were delivered to the prosecutor. When that period is deducted from the total delay period of 145 days, that alone was sufficient to satisfy the 90-day requirement of K.S.A. 22-3402. In considering the time period required by the State to have its experts complete their examinations as to the defendant’s sanity, we wish to emphasize that the prosecutor has the duty to have the State’s examinations accomplished with reasonable dispatch and without unreasonable delay. Any reasonable delay in obtaining such psychiatric examinations should be charged to the defendant. Under all the factual circumstances contained in the record, we have no hesitancy in holding that the trial court did not err in denying defendant’s motion to dismiss based upon a claimed denial of speedy trial under K.S.A. 22-3402.
The second issue raised on the appeal is that the trial court erred in failing to give the defendant’s requested instruction on diminished capacity. The defendant argues that four of the charges against him were specific intent crimes. The medical experts who testified on behalf of both the State and the defense disagreed as to whether the defendant was legally insane, but agreed that the defendant was severely depressed at the time the offenses were committed.
Although the trial court refused to give an instruction on diminished capacity, it permitted defense counsel to argue to the jury that defendant’s diminished capacity precluded the defendant from forming the specific intent required for certain crimes. The jury was fully instructed on the lesser included offenses.
This court’s position on diminished capacity was discussed in depth in State v. Jackson, 238 Kan. 793, 714 P.2d 1368 (1986). In Jackson, it was held that evidence of diminished capacity is admissible for the limited purpose of negating specific intent, but that the trial court is not required to give an instruction on diminished capacity. In the present case, the district court gave the insanity defense instruction, but rejected the defendant’s request for a diminished capacity instruction. It instructed the jury on all of the lesser included offenses involved in the specific intent crimes. We have concluded that the district court did not commit error in refusing to provide the jury with a diminished capacity instruction. Such a holding is entirely consistent with the rulings of this court in State v. Jackson and the other cases cited therein. However, a majority of the court is of the opinion that it would be better practice for the trial court to give an instruction on diminished capacity where such an instruction is reasonably necessary to inform the jury of the effect of a defendant’s diminished capacity on the specific intent required for the crime charged. Until the Pattern Instruction Committee of the Judicial Council has provided such an instruction, an instruction in the following form would be appropriate: “Diminished mental capacity of the defendant not amounting to insanity is not a complete defense to a criminal charge, but when a particular intent or other state of mind is a necessary element of the offense charged, diminished mental capacity may be taken into consideration in determining whether the accused was capable of forming the necessary specific intent or state of mind.”
The third issue raised on the appeal is whether the trial court erred in issuing an ex parte order for the defendant to be examined by the State’s medical experts pursuant to K.S.A. 22-3219 without giving the defendant notice of the motion and an opportunity to be heard. Defendant argues that the granting of such a motion without giving defendant an opportunity to be present and be heard violated Section 10 of the Kansas Bill of Rights which grants to an accused in a criminal prosecution the right to appear and defend in person or by counsel at each stage of the prosecution. Defendant maintains that the right to a hearing on the State’s motion for an examination for an insanity evaluation is a crucial step in the proceedings which requires the presence of either the defendant or his counsel.
K.S.A. 22-3219(2) provides:
“A defendant who files a notice of intention to rely on the defense of insanity thereby submits and consents to abide by such further orders as the court may make requiring the mental examination of the defendant and designating the place of examination and the physician or physicians by whom such examination shall be made. No order of the court respecting a mental examination shall preclude the defendant from procuring at such defendant’s own expense an examination by a physician of such defendant’s own choosing. A defendant requesting a mental examination pursuant to K.S.A. 22-4508 may request a physician of such defendant’s own choosing. The judge shall inquire as to the estimated cost for such examination and shall appoint the requested physician if such physician agrees to accept compensation in an amount in accordance with the compensation standards set by the board of supervisors of panels to aid indigent defendants. A report of each mental examination of the defendant shall be filed in the court and copies thereof shall be supplied to the defendant and the prosecuting attorney.”
K.S.A. 22-3219(2) provides, without equivocation, that a defendant who files a notice of intent to rely on the defense of insanity thereby submits and consents to abide by such further orders as the court may make requiring the mental examination of the defendant and designating the place of examination and the physician or physicians by which such examination shall be made. The statute is clear. Furthermore, in this case the defendant’s notice of intent to rely upon the defense of insanity contains the following language in the second paragraph, “The Defendant submits and consents to abide by such further orders as the Court may make requiring further mental examination of the Defendant and designating the place of examination, and the physician or physicians by whom such examinations shall be made.” Under the circumstances, the defendant cannot now be heard to complain regarding the court’s order that he be examined by the State’s experts.
For the reasons set forth above, the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Allegrucci, J.:
The defendant appeals from convictions on one count of involuntary manslaughter (K.S.A. 1986 Supp. 21-3404) and one count of driving under the influence of alcohol (K.S.A. 1986 Supp. 8-1567). He was sentenced to a term of three to ten years for involuntary manslaughter and a term of six months and fined $200.00 for driving while under the influence, the terms to run concurrently. The Court of Appeals affirmed the convictions in an unpublished opinion. State v. Adams, No. 59,297, decided April 9, 1987. We granted defendant’s petition for review.
The charges arise from a motor vehicle accident which occurred at approximately 2:15 p.m. on December 1, 1984, at the intersection of K-15 and Wassail in Sedgwick County, Kansas. The defendant was driving a green pickup truck and was first observed driving erratically on Hydraulic Avenue. The defendant drove across the median and hit the outside curb of the opposite lane of traffic, just missing another car. At the corner of Hydraulic and K-15, the defendant made an improper left turn onto K-15, and continued to weave back and forth across both southbound lanes of K-15. The defendant ran a red light at the intersection of K-15 and Pawnee, nearly striking a vehicle turning left onto Pawnee Street. Upon approaching the intersection of K-15 and Wassail, the defendant weaved through traffic and proceeded through the red light, striking broadside a Chevrolet Vega turning left onto Wassail from K-15. The driver of the Vega died at 3:05 p.m. on December 1, 1984, as a result of massive head and internal injuries received from the collision.
The eyewitnesses to the collision testified that no brake lights appeared on the defendant’s green pickup truck prior to impact; the defendant’s speed as he entered the intersection was estimated to be between 55 and 70 m.p.h. At the time of the accident, the defendant’s blood alcohol concentration was .232.
The defendant testified that, several days prior to the accident, his wife had filed for divorce. On the morning of the accident, he purchased a bottle of rum and went to his home. He was unable to recall anything that occurred thereafter and could not remember anything about the accident or writing the suicide note which was found at his home after the accident.
The defendant first contends that the driving while under the influence of alcohol charge is a lesser included offense of involuntary manslaughter and, therefore, multiplicious pursuant to K.S.A. 1986 Supp. 21-3107(2), which provides:
“Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
“(a) A lesser degree of the same crime;
“(b) an attempt to commit the crime charged;
“(c) an attempt to commit a lesser degree of the crime charged; or
“(d) a crime necessarily proved if the crime charged were proved.”
Defendant argues that subparagraph (2)(d) prevents the district court from convicting him of both involuntary manslaughter and driving while under the influence of alcohol. The Court of Appeals rejected defendant’s argument and found that the two charges were not multiplicious. The Court of Appeals noted:
“The Kansas Supreme Court in State v. Arnold, 223 Kan. 715, 716-17, 576 P.2d 651 (1978), rejected the ‘factually related offense’ nearly a decade ago, holding that under K.S.A. 21-3107(2)(d) the issue is one of ‘ “identity of elements.” . . . [A]ll elements necessary to prove the lesser offense must be present and be required to establish the elements of the greater offense charged.’
“The offense of involuntary manslaughter requires the State to prove (1) the defendant unintentionally killed the victim; (2) it was done in the commission of a misdemeanor in a wanton manner; and (3) the conduct occurred within the jurisdiction of the court. K.S.A. 1986 Supp. 21-3404. DUI requires the State to prove (1) the defendant operated the vehicle; (2) the defendant was under the influence of alcohol while operating the vehicle; and (3) the operation of the vehicle took place within the jurisdiction of the court. K.S.A. 1986 Supp. 8-1567.
“Only the third element is identical. The State could have proven any misdemeanor in order to secure a conviction for involuntary manslaughter. The elements necessary to prove DUI will not be ‘ “present and required to establish’ ” the elements of involuntary manslaughter in every case. State v. Galloway, 238 Kan. 415, 417, 710 P.2d 1320 (1985). Thus, we conclude that DUI is not a lesser included offense of involuntary manslaughter even though, in this case, it is the same misdemeanor giving rise to the charge of involuntary manslaughter.”
The Court of Appeals was correct in noting that, in State v. Arnold, 223 Kan. 715, 576 P.2d 651 (1978), this court rejected the “factually related offense” as a lesser included offense under K.S.A. 1986 Supp. 21-3107(2)(d). However, the Court of Appeals incorrectly interpreted Arnold to limit the application of sub-paragraph (2)(d) to only a comparison of the two statutes in determining the existence of “identity of elements.” Although the Court of Appeals correctly found, in comparing K.S.A. 1986 Supp. 21-3404 and K.S.A. 1986 Supp. 8-1567, that there was not an “identity of elements,” it incorrectly concluded that driving while under the influence of alcohol was a “factually related offense” and therefore not a lesser included offense of involuntary manslaughter.
In Arnold, we said:
“The third category is the offense which is necessarily committed by the defendant in perpetrating the crime charged or subparagraph (d) under die statute. Under this section it is impossible to commit the greater offense without first having committed the lesser offense. The offense must not require some additional element which is not needed to constitute the greater offense. In other words, there must be ‘identity of elements.’ . . .
“. . . The factually related offense is the fourth category recognized by some courts as a lesser included offense. The lesser offense is not always included in the greater; its inclusion depends on the allegations in the accusatory pleading. Two Kansas cases, State v. Gibler, 182 Kan. 578, 322 P.2d 829, and State v. Way, 76 Kan. 928, 93 Pac. 159, fall under this category and are followed by the Court of Appeals in its decision.” (Emphasis added.) 223 Kan. at 716-17.
In State v. Gibler, 182 Kan. 578, 322 P.2d 829 (1958), the defendant was charged with the crime of manslaughter in the fourth degree. He was convicted of driving under the influence. The only issue before the court was whether driving while under the influence of alcohol was a lesser included offense. In finding it was, this court said;
“Whenever a person is charged upon an information with the commission of an offense under one section of the statutes and the offense as thus charged includes another offense under another section of the statutes, the defendant may be found guilty of either offense. In State v. Way, 76 Kan. 928, 93 Pac. 159, a conviction for an offense less than that defined in the statute upon which a prosecution is primarily based may be sustained if the information alleges the existence of all the essential facts constituting such an offense.
“It is obvious that the information in the instant case alleged facts which constituted a misdemeanor under G.S. 1949, 8-530; that is, the driving of a vehicle within the state while under the influence of intoxicating liquor. Under the rule of State v. Way, supra, since the information properly alleged the essential elements of an offense under section 8-530 and since it is not questioned that the evidence introduced at the trial was sufficient to support each element, it is apparent that a conviction under this section was proper and must be sustained. The judgment is affirmed.” 182 Kan. at 580-81.
What we held in Arnold, and here reaffirm, is that the test to determine “identity of elements” under subparagraph (2)(d) is twofold. First, the statutes defining the lesser offense and the greater offense must be compared to determine if all the elements of the former are included in the latter. Second, if that comparison fails to disclose an “identity of elements,” then the court must examine the complaint/information to determine if the elements of the lesser offense are alleged, and if proof thereof is required to establish the greater offense. If it is, then it is a lesser included offense within the meaning of subparagraph (2)(d).
In the present case, it seems clear that, in order to prove the defendant guilty of the crime of involuntary manslaughter, the State was compelled to prove all the elements necessary to prove the crime of driving while under the influence of alcohol. Involuntary manslaughter is defined as
“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.” K.S.A. 1986 Supp. 21-3404(a).
The allegation that defendant Adams drove an automobile while under the influence of alcohol served as one of the elements of the charged crime of involuntary manslaughter. By proving all of the elements necessary to establish involuntary manslaughter, the State necessarily proved each element of the crime of driving while under the influence of alcohol, as defined by K.S.A. 1986 Supp. 8-1567. Thus, having necessarily proven the lesser offense by proving the greater offense of involuntary manslaughter, the provisions of K.S.A. 1986 Supp. 21-3107(2) prohibit finding the defendant guilty of both involuntary manslaughter and driving while under the influence of alcohol. The necessity of alleging and proving that the defendant was driving while under the influence of alcohol precluded driving while under the influence of alcohol from being a “factually related offense.”
The Court of Appeals reached the same conclusion in State v. Woodman, 12 Kan. App. 2d 110, 735 P.2d 1102 (1987), in which a different panel of the Court of Appeals than the Adams panel was presented with virtually the identical question. In Woodman, the defendant was charged and convicted of both aggravated vehicular homicide, K.S.A. 1986 Supp. 21-3405a, and driving while under the influence of alcohol, K.S.A. 1986 Supp. 8-1567. The Court of Appeals concluded that the two charges were multiplicious, and reversed the defendant’s conviction for driving while under the influence of alcohol. The defendant in the present case was charged under 21-3404, since the case arose from an incident which occurred prior to the effective date of the aggravated vehicular homicide statute, K.S.A. 1986 Supp. 21- 3405a. This statute expressly designates which unlawful acts may support a conviction: reckless driving (K.S.A. 1986 Supp. 8-1566); driving under the influence of alcohol or drugs (K.S.A. 1986 Supp. 8-1567); or fleeing or attempting to elude a police officer (K.S.A. 8-1568). K.S.A. 1986 Supp. 21-3404(a) does not so designate, but rather, provides that “an unlawful act not amounting to felony” may support a conviction. Whether the lesser offense is specifically or generally designated in the statute is a distinction without a difference where, as in the present case, the State alleges and must prove it in order to establish the greater offense.
In Woodman, the defendant was convicted of aggravated vehicular homicide, which was established by proof that he had driven a car while under the influence of alcohol. The Court of Appeals stated:
“Driving while under the influence of alcohol is a misdemeanor. K.S.A. 1986 Supp. 8-1567. The elements of the offense are (1) driving a vehicle (2) while under the influence of alcohol. Aggravated vehicular homicide, a class E felony, is the unintentional killing of a human being done while committing one of the three specified traffic offenses. K.S.A. 1986 Supp. 21-3405a. One of the specified offenses, and the offense used to charge the defendant with aggravated vehicular homicide, is driving while under the influence of alcohol. Therefore, for this case, the elements of aggravated vehicular homicide are (1) the unintentional killing of a human being, (2) by the operation of a motor vehicle, (3) while driving under the influence of alcohol, (4) as long as the death occurred as a proximate result of and within one year of the aforementioned operation of the motor vehicle. K.S.A. 1986 Supp. 21-3405a. Because all of the elements of driving while under the influence of alcohol are required to establish the greater offense of aggravated vehicular homicide, driving while under the influence of alcohol is a lesser included offense of aggravated vehicular homicide pursuant to K.S.A. 1986 Supp. 21-3107(2)(d). In this case, the crime of driving while under the influence of alcohol is a lesser included offense of aggravated vehicular homicide, and 21-3107(2) bars conviction of driving while under the influence of alcohol.” 12 Kan. App. 2d at 118-19.
The State, in its oral argument to this court, conceded that, if driving while under the influence of alcohol had been the only underlying misdemeanor alleged, then it would have been a lesser included offense under subparagraph (2)(d). The complaint/information alleged “driving under the influence of alcohol and running a red traffic light” as the underlying misdemeanors. in other words, the State argues that the jury could have based its verdict on the running of the red traffic light. This argument has no merit. The jury, based upon the wording of the complaint/information and the court’s instruction to the jury that it must find “[t]hat this was done in the wanton commission of driving under the influence of alcohol and running a red light,” had to find that the defendant committed both underlying offenses. Alleging the underlying misdemeanors in the alternative would not have helped, since it would have been impossible for this court to determine which one the jury relied upon in finding the defendant guilty of involuntary manslaughter. However, had the State alleged running of a red traffic light as the only underlying misdemeanor, then a conviction of driving while under the influence of alcohol and involuntary manslaughter would have been permissible. In that case, since the State would not be required to prove driving while under the influence of alcohol to establish involuntary manslaughter, driving while under the influence of alcohol would be a “factually related offense” and not a lesser included offense under K.S.A. 1986 Supp. 21-3107(2)(d).
In the present case, by proving the elements of involuntary manslaughter, the State necessarily had to prove the elements of driving while under the influence of alcohol. The defendant’s conviction for driving while under the influence of alcohol must, therefore, be reversed.
The defendant next contends that there was insufficient evidence of wantonness on his part to justify his conviction for involuntary manslaughter. The Court of Appeals correctly rejected the defendant’s contention.
This court addressed the issue of wantonness in State v. Makin, 223 Kan. 743, 746, 576 P.2d 666 (1978). In Makin, the court stated:
“Wanton conduct involves 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 issue of whether a defendant’s conduct is wanton is a question of fact for the jury. State v. Burrell, 237 Kan. 303, 308, 699 P.2d 499 (1985).
The record is replete with evidence to support the jury’s determination that defendant Adams’ conduct was wanton in nature. The defendant was seen by numerous witnesses to be driving erratically. One witness testified that, prior to this accident, the defendant had previously nearly struck two other cars. Three witnesses testified that no brake lights appeared on Adams’ truck as he entered the intersection where the fatal accident occurred. One witness testified that the Adams truck did not slow down as it entered the intersection; another witness testified that the truck actually accelerated as it approached the intersection. Traffic inspectors at the scene were unable to detect any skid marks left by defendant Adams’ vehicle. All of the witnesses present at the scene of the accident testified that the Adams truck entered the intersection against the red light and at a speed in excess of the posted maximum. A blood test later performed upon the defendant revealed that he possessed a blood alcohol percentage level twice the legally permissible level. The defendant, after leaving his house, had left a suicide note, and one witness testified at trial that, when defendant Adams was being taken to a hospital following the accident, Adams repeatedly stated that he wanted to die.
There is sufficient evidence in the record to support a finding that the defendant’s actions were wanton.
Finally, defendant contends the trial court abused its discretion in sentencing him. The defendant was sentenced to a term of imprisonment of three to ten years on the charge of involuntary manslaughter. Because the sentence imposed by the trial court was within the limits prescribed by law, appellate review of the sentence is limited to a determination of whether the sentence was an abuse of discretion, or whether it was the result of partiality, prejudice, or corrupt motive. State v. Jennings, 240 Kan. 377, 380, 729 P.2d 454 (1986).
The defendant, in support of this contention, has focused on a particular comment made by the district court. The district court stated during the course of the sentencing hearing:
“From some of the things that I’ve seen on TV or read in the paper a drunk driver on a binge kills a second or third victim and never spends more than a day or two in jail, overnight or something like that. But the legislature in their infinite wisdom saw fit to change those things and make penalties. I just heard on TV last night where a young man killed three people and got three life sentences consecutive for it.
“This man in this case is just as dead as those people up there were.”
This remark by the trial court does not establish prejudice on its part which resulted in an excessive punishment of defendant Adams. Of the sentencing criteria listed in K.S.A. 21-4606, the district court made express findings relevant to: “The extent of the harm caused by the defendant’s criminal conduct” (21-4606[2][b]), “[wjhether the defendant intended that his criminal conduct would cause or threaten serious harm” (21-4606[2][c]), “[wjhether there were substantial grounds tending to excuse or justify the defendant’s criminal conduct” (21-4606[2][e]), and “[wjhether the defendant has compensated or will compensate the victim” (21-4606[2][g]). The district court found that the defendant’s conduct had resulted in the unnecessary death of a human being, “a relatively young man who was cut off in the prime of his life.” The district court also stressed the wanton nature of the defendant’s actions. The district court stated that the defendant “knew [he had a drinking] problem and has known it for, from the evidence, way beyond ten years. He has on his own cut down his drinking, but he has of his own volition involved himself in drinking periodically. And the last period of drinking culminated in a death.”
Counsel for defendant stressed that his client, prior to the accident, was under severe emotional stress relating to his wife’s recent filing for divorce. The district court, however, found that there were no substantial grounds tending to excuse or justify the defendant’s criminal conduct, pointing out that the wife had filed for divorce several days prior to the date the accident occurred. The district court also noted that it was impossible to compensate either the victim or his wife and children. In view of the factual circumstances of the present case, the sentence which the defendant received does not appear to be either an abuse of discretion or the product of prejudice on the part of the district court.
The judgments of the district court and the Court of Appeals are affirmed in part and reversed in part. The case is remanded to the district court with directions to set aside the defendant’s conviction of driving while under the influence of alcohol. | [
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The opinion of the court was delivered by
Miller, J.:
Robert Hutchcraft, charged with various offenses involving six minor children, was convicted by jury trial in the District Court of Wyandotte County of five counts of indecent liberties with a child, two counts of aggravated criminal sodomy, and one count of rape, all committed between July 12, 1983, and July 12, 1985. He was acquitted of one additional count of indecent liberties with a child. He was sentenced as a habitual criminal to concurrent terms of 30 years to life for rape and the two counts of aggravated criminal sodomy, and concurrent terms of 5 to 20 years for the five counts of indecent liberties with a child, the latter to be consecutive to the 30 years to life sentences. He appeals, contending that the offenses of indecent liberties with a child contained in certain of the counts, rape, and aggravated criminal sodomy are identical to the offense of aggravated incest; that the trial, court erred in failing to instruct the jury as to the lesser included offense of aggravated sexual battery relating to Count V which charged him with committing indecent liberties; and that the court committed error in its application of K.S.A. 60-460(dd). Since the points raised are questions of law, we need not detail the facts.
We turn first to the defendant’s claim that the offense of indecent liberties with a child, as defined by K.S.A. 1983 Supp. 21-3503, is identical with the offense of aggravated incest, as defined by K.S.A. 1984 Supp. 21-3603. Both sections of the statute were originally enacted as a part of the comprehensive Kansas Criminal Code in 1969. See L. 1969, ch. 180. K.S.A. 21-3503, defining indecent liberties with a child, is a part of article 35, defining sex offenses; K.S.A. 21-3603, defining aggravated incest, is a part of article 36, defining crimes affecting family relationships and children.
K.S.A. 1983 Supp. 21-3503, which became effective on July 1, 1983, reads as follows:
“21-3503. Indecent liberties with a child. (1) Indecent liberties with a child is engaging in either of the following acts with a child who is not married to the offender and who is under 16 years of age:
“(a) Sexual intercourse; or
“(b) any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender or both.
“(2) Indecent liberties with a child is a class C felony.”
That statute was amended in 1984 to include sodomy as one of the prohibited acts; it was again amended in 1985 to delete sodomy. For the present discussion, the inclusion of sodomy as one of the prohibited acts for the one-year period is not important.
K.S.A., 1984 Supp. 21-3603 defines aggravated incest, as follows:
“21-3603. Aggravated incest. (1) Aggravated incest is marriage to or engaging in any prohibited act enumerated in subsection (2) with a person who is under 18 years of age and who is known to the offender to be related to the offender as any of the following biological, step or adoptive relatives: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece.
“(2) The following are prohibited acts under subsection (1);
“(a) Sexual intercourse, sodomy or any unlawful sex act, as defined by K.S.A. 21-3501 and amendments thereto; or
“(b) any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender or both.
“(3) Aggravated incest is a class D felony."
All of the alleged victims were step-grandchildren of the defendant. Thus, he contends that aggravated incest is an identical offense to that of indecent liberties with a child, under the particular circumstances of this case. We do not agree. Indecent liberties with a child requires the State to prove that the child is not married to the offender and that the child is under sixteen years of age. Aggravated incest requires the State to prove that the child is under eighteen years of age; that the child is related to the offender as a biological, step, or adoptive relative; and that the defendant, knowing of that relationship, either married the child or committed certain prohibited acts with the child. It is clear that the offense of indecent liberties with a child is not identical with the offense of aggravated incest. The identity of offenses which we found in State v. Clements, 241 Kan. 77, 734 P.2d 1096 (1987), and State v. Jackson, 239 Kan. 463, 721 P.2d 232 (1986), is lacking here. Nowhere in the indecent liberties with a child statutes do we find that the State must prove that the victim was, and was known to the offender to. be, a biological, step, or adoptive relative. Thus, the offenses charged in Counts I, VI, VII, and IX, indecent liberties with a child, were not identical with the offenses which might have been charged under the aggravated incest statute, and the trial court did not err in submitting to the jury instructions relating to indecent liberties with a child on those counts, and, upon defendant’s conviction by the jury, in sentencing him for Class C felonies.
Defendant was convicted of raping one of the victims under a charge contained within Count II of the information. Defendant contends on appeal that the offense of rape is identical to the offense of aggravated incest. We do not agree. Rape, as defined by K.S.A. 1984 Supp. 21-3502, is sexual intercourse with a person who does not consent to the intercourse, under any of certain circumstances. The State must prove either that the victim was overcome by force or fear, or was unconscious or physically powerless, or was incapable of giving consent because of mental deficiency or disease which condition was known by the offender or was reasonably apparent to the offender, or that the victim was incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug, or other substances under certain circumstances. To establish the offense of aggravated incest, as defined by K.S.A. 1984 Supp. 21-3603, the State was required to prove that the child victim was under eighteen years of age and was related to the offender in certain biological, step, or adoptive relationships and that the defendant, knowing of that relationship, either married the child or committed certain prohibited acts with the child. The prohibited acts include sexual intercourse, sodomy, certain other unlawful sexual acts, or any lewd fondling or touching under certain circumstances. The elements of the two offenses are not the same, and the trial court did not err in instructing the jury on the offense of rape, and in proceeding to sentence the defendant for a Class B felony upon his conviction thereof.
Finally, in this regard, the defendant contends that the offense of aggravated criminal sodomy, as defined by K.S.A. 1983 Supp. 21-3506, is an identical offense to that of aggravated incest, K.S.A. 1984 Supp. 21-3603. Aggravated criminal sodomy, as defined by K.S.A. 1983 Supp. 21-3506, requires the State to prove that the defendant engaged in sodomy with a child who is not married to the offender and who is under sixteen years of age. Aggravated incest, on the other hand, requires the State to establish that the defendant married or engaged in certain prohibited acts with a person who was under eighteen years of age and who was, and who was known to the offender to be, related to the offender as any of certain biological, step, or adoptive relatives. While sodomy with such a person is a prohibited act under the aggravated incest statute, the age of the children involved varies from one statute to the other. The aggravated incest statute requires proof of biological, step, or adoptive relationships between the accused and the victim, and knowledge by the accused of that relationship — elements not found in the aggravated criminal sodomy statute. We conclude that neither indecent liberties with a child, nor rape, nor aggravated criminal sodomy constitute identical offenses with that of aggravated incest, as defined in K.S.A. 1984 Supp. 21-3603.
Defendant next contends that the trial court committed reversible error in failing to instruct the jury as to the lesser included offense of aggravated sexual battery, as defined by K.S.A. 1983 Supp. 21-3518, relating to Count V, which charged the defendant with committing indecent liberties with one of the minor children between July 12, 1983, and June 9, 1984. We have discussed the offense of indecent liberties with a child, and have sufficiently set forth the elements above. Aggravated sexual battery is defined by K.S.A. 1983 Supp. 21-3518(b) as “sexual battery, as defined in K.S.A. 1983 Supp. 21-3517 and amendments thereto, against a person under 16 years of age.” K.S.A. 1983 Supp. 21-3517 defines sexual battery as “the unlawful, intentional touching of the pers.on of another who is not the spouse of the offender and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another.”
In State v. Ramos, 240 Kan. 485, 731 P.2d 837 (1987), we held that aggravated sexual battery is not a lesser included offense of aggravated indecent liberties with a child, K.S.A. 1983 Supp. 21-3504. The offense of aggravated indecent liberties with a child, as considered in the Ramos opinion, included the element that the person committing the offense be a parent, adoptive parent, stepparent, or grandparent of the child. We held that the trial court did not err in failing to give an instruction on aggravated sexual battery. We said:
“Although the elements of the two crimes were quite similar, the distinguishing factor was that aggravated indecent liberties with a child required a lewd fondling or touching by a parent, adoptive parent, stepparent, or grandparent of the child. This relationship was not required by the aggravated sexual battery statute. From a reading of these statutes, it is clear to us that the legislature intended to establish certain sex offenses applicable where family relationships were not involved. The legislature also intended that when lewd acts for sexual gratification were directed by a parent against his own child, it constituted a more serious offense than when the acts were perpetrated by a defendant against a child with whom he had no family relationship.” 240 Kan. at 488.
After the occurrence of the events in Ramos, a legislative amendment to KS.A. 1983 Supp. 21-3504 became effective. That statute, defining aggravated indecent liberties with a child, no longer includes the element that the offender be a parent, adoptive parent, stepparent, or grandparent. K.S.A. 1986 Supp. 21-3504 now prohibits acts by a guardian, proprietor, or employee of foster homes, orphanages, or other institutions for the care of children, but parents are no longer specifically included. Aggravated indecent liberties with a child remains a Class B felony. K.S.A. 21-3503, indecent liberties with a child, in all of its various forms since 1969, prohibits various sexual acts with children by anyone, including strangers and parents. Relationship is not an element, except that the offender is not married to the victim. Indecent liberties with a child is a Class C felony. K.S.A. 1984 Supp. 21-3603, aggravated incest, prohibits sexual intercourse or other sexual acts between natural, step, or adoptive parents and their children. Aggravated incest is a Class D felony. K.S.A. 1983 Supp. 21-3518 defines the offense of aggravated sexual battery. The elements of that offense are set forth above; relationship of the parties, except that they not be married to each other, is not an element of the offense. Aggravated sexual battery is a Class D felony.
The rationale upon which our opinion in Ramos was based is no longer valid; a sex crime by a parent against a child is no longer a more serious offense than a sex crime by a stranger against a child. A parent can be charged with indecent liberties with a child under 21-3503, as defendant was in this case, or the parent can be charged with aggravated incest under 21-3603 or with aggravated sexual battery under 21-3518, both less serious offenses.
The defendant in the case before us was charged with indecent liberties with a child under K.S.A. 1983 Supp. 21-3503, not with aggravated indecent liberties with a child under K.S.A. 1983 Supp. 21-3504. Relationship of the parties is not an element under K.S.A. 1983 Supp. 21-3503. Upon reviewing the elements of the statute under which the defendant was charged, and the aggravated sexual battery statute quoted above, we conclude that it was impossible for the State to prove the charge of indecent liberties with a child, as charged in Count V of the information herein, without proving the offense of aggravated sexual battery as defined in K.S.A. 1983 Supp. 21-3518(b). While it is true that the aggravated sexual battery statute requires the State to prove that the victim did not consent, the State was required to prove, under the indecent liberties statute, that the victim was not married to the offender and was under sixteen years of age. The age of consent is fixed by 21-3503 at sixteen years. Such being the case, the victim could not legally consent to the conduct of the defendant. Proof that the victim was not married to the defendant and was under sixteen years of age establishes lack of consent. Further, the aggravated sexual battery statute requires the State to prove that the accused intended to arouse or satisfy, the sexual desires of the offender or another, while the indecent liberties statute requires the State to prove that the accused had the intent to arouse or satisfy the sexual desires of either the child or the offender or both. No third person was involved, and under the charge and the evidence in this case, proof of the elements of indecent liberties with a child was proof of the elements of the offense of aggravated sexual battery. “Lewd fondling,” an alternate element required to be proved under the indecent liberties statute, would certainly include “unlawful, intentional touching,” as required under the aggravated sexual battery statute.
The duty of the trial court to instruct the jury on a lesser crime arises only where there is evidence upon which a defendant might reasonably be convicted of the lesser crime. State v. Keeler, 238 Kan. 356, Syl. ¶ 9, 710 P.2d 1279 (1985); State v. Royal, 234 Kan. 218, 221, 670 P.2d 1337 (1983); and see K.S.A. 1986 Supp. 21-3107(3). A lesser offense is considered a lesser included offense when all of the elements necessary to prove the lesser offense are present and required to establish the elements of the greater offense charged. State v. Galloway, 238 Kan. 415, Syl. ¶ 2, 710 P.2d 1320 (1985). Conversely, if the lesser offense requires proof of an element not necessary in the greater, it is not a lesser included offense and the trial court should not give an instruction on the lesser offense. State v. Daniels, 223 Kan. 266, Syl. ¶ 2, 573 P.2d 607 (1977). Under the facts and circumstances of this case, we hold that the trial court erred in failing to instruct the jury as to the lesser included offense of aggravated sexual battery relating to Count V of the information.
Prior to the commencement of the jury trial in this case, an evidentiary hearing was held by Judge R. David Lamar pursuant to K.S.A. 60-460(dd) to determine whether an alleged child victim was or was not disqualified as a witness, and to determine whether her statements were apparently reliable and whether she was induced to make the statements falsely by use of threats or promises. At the conclusion of that hearing, attended by counsel for both parties and the defendant, Judge Lamar found that the child was disqualified as a witness, and that her statements were apparently reliable and she was not improperly induced to make them. The jury trial in this case was later held before the Honorable Cordell D. Meeks, Jr. Defendant sought to have Judge Meeks hold an additional evidentiary hearing, not because of the existence of additional evidence developed since the hearing before Judge Lamar, but because K.S.A. 60-460(dd) refers to a finding by “the trial judge.” Appellant does not challenge the qualifications and ability of Judge Lamar. He simply argues that a “trial judge” is someone who presides over a trial, but not over prior hearings in a case. This definition is too limited. We conclude that any judge assigned to hear any portion of a pending case is, for that purpose, a “trial judge.” Judge Lamar heard all of the evidence, conducted a lengthy hearing, and made a careful determination based thereon. Judge Meeks, having the record before him, affirmed and adopted Judge Lamar’s findings.
The only similar case called to our attention is that of State v. Myatt, 237 Kan. 17, 697 P.2d 836 (1985). There, we held that the requirements of K.S.A. 60-460(dd) were not met by a district magistrate judge at a preliminary hearing. The magistrate judge, however, did not hold an evidentiary hearing as required by the statute, and did not make appropriate findings. In the present case, Judge Lamar fully complied with the statute. We find no error.
Finally, defendant contends that the statements of the child victim were improperly received under K.S.A. 60-460(dd) because her statements were not inherently reliable, and the evidence shows that she was coached by a sister. We have carefully reviewed the factors set forth in State v. Myatt, 237 Kan. at 25, the evidence in this case, and the rulings of the judges thereon. We conclude that there is nothing to show that the statements were not inherently reliable, and nothing to indicate that the witness was coached by a sister in any respect regarding her material statements.
The defendant’s conviction of indecent liberties with a child as charged in Count V of the information is reversed; otherwise the judgment is affirmed. | [
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The opinion of the court was delivered by
McFarland, J.:
The primary issue in this action is the construction of an automobile dealership’s insurance policy.
The facts may be summarized as follows. Western Motor Company, Inc., an automobile dealership situated in Garden City, permitted Perry Koehn to test drive a new Buick Riviera on April 23, 1983. Koehn agreed to return the vehicle in an undamaged condition. While driving the Buick, Koehn was involved in an accident in which he was at fault. There is no claim there was any bodily injury or property damage except to the Buick. Universal Underwriters Insurance Company was Western Motor’s insurer. Universal paid Western Motor $2,176.44 for damages to the Buick.
On May 1,1984, Western Motor filed this action against Koehn seeking a judgment for $2,975.00 for damages to the Buick. Koehn’s automobile liability insurance carrier, State Farm Mutual Automobile Insurance Company, denied coverage for the accident but defended Koehn under a reservation of rights. Koehn filed an answer and third-party petition which named Universal as a third-party defendant. Koehn claimed Universal’s policy provided coverage for any liability he may have to Western Motor. He reasoned that if he were to be found liable to Western Motor, then Universal was, in turn, liable to him. Koehn contended that because Universal had paid Western Motor for the damage to the Buick, Universal was the real party in interest and that the action filed by Western Motor was in reality an action by Universal against its own insured.
After considering the stipulated facts and arguments of the parties, the district court issued a letter opinion which concluded that Koehn was an insured under Universal’s policy. The court stated that no subrogation claim could be asserted by Universal and that Western Motor was entitled to receive from defendant only the amount of its loss which was not covered by insurance. However, the journal entry of judgment granted judgment to Koehn on the claims of both Western Motor and Universal. The plaintiff and its insurer appealed therefrom.
The Court of Appeals reversed the district court, holding that Universal could assert a subrogation claim against Koehn (12 Kan. App. 2d 215, 738 P.2d 466 [1987]). The matter is before us on Koehn’s petition for review.
Before proceeding, it is appropriate to explain what transpired in the Court of Appeals relative to the issue of concern to Western Motor — that is, the discrepancy between the district court’s letter decision and the journal entry of judgment relative to Western Motor’s entitlement to damages over and above the sum paid by Universal. In disposing of this issue, the Court of Appeals stated:
“Turning first to consider the appeal of Western Motor, we note the apparent discrepancy between the court’s opinion in its letter that Western Motor was limited in the recovery it could have against defendant and the judgment which denied any relief to plaintiff. However, since this case was submitted to the district court on stipulated facts and documentary evidence, we have the same opportunity to consider the evidence as did the district court and may determine what the facts establish de novo. H. Freeman & Son v. Henry’s, Inc., 239 Kan. 161, 162, 717P.2d 1049 (1986). Therefore, any inconsistency between the court’s letter opinion and the journal entry of judgment may be rectified on appeal without the necessity of remand.
“In joining Universal in this action, defendant contended that the insurer, not Western Motor, was the real party in interest. However, an insured property owner, who has been but partly reimbursed for his loss, is the proper party to bring suit against a third-party wrongdoer for the entire loss. In case of recovery, the insured is said to hold in trust for his insurer the part of the proceeds which has been paid him on his loss. Dondlinger & Sons’ Constr. Co. v. EMCCO, Inc., 227 Kan. 301, 306, 606 P.2d 1026 (1980). Although the parties did not stipulate to the total loss sustained as a result of the car accident, plaintiff alleged the damages exceeded the sum paid by Universal, since it alleged damages of $2,975 and Universal paid only $2,176.44. In addition, the declarations in Universal’s policy limit coverage to 100% of labor costs and 75% of parts with a $250 deductible. Therefore, the record indicates Western Motor was only partially reimbursed for its loss and was a real party in interest.
“The cause of action alleged by Western Motor was the negligent execution of a bailment. A bailment is the delivery of personal property by one person to another for a specific purpose, with an express or implied contract that when the purpose has been fulfilled the property will be returned or accounted for. M. Bruenger & Co. v. Dodge City Truck Stop, Inc., 234 Kan. 682, Syl. ¶ 1, 675 P.2d 864 (1984). The bailee in a bailment for mutual benefit must use ordinary care in safeguarding the property in order to prevent its damage or theft. M. Bruenger & Co., 234 Kan. 682, Syl. ¶ 3. The parties’ stipulated facts admitted the creation of a bailment for mutual benefit with acknowledgment of an agreement that defendant could test drive the car and would return it undamaged. Defendant also stipulated that he was at fault for the accident which resulted in the damages to the new Buick. Thus, defendant admitted the negligent execution of the bailment; Western Motor should have been granted judgment for the amount of its uninsured loss without regard to whether Western Motor or Universal could also recover the sum paid by Universal. The court erred in entering judgment without determining whether Western Motor did in fact sustain damage beyond that compensated by Universal.” 12 Kan. App. 2d at 216-18.
Although the Court of Appeals’ opinion reversed the district court on this issue, it did not specifically order the case remanded for the determination of what damage, if any, Western Motor suffered over and above compensation received from Universal. A remand would be necessary, obviously, to carry out the Court of Appeals’ decision. Review was not sought on this aspect of the Court of Appeals’ opinion, however, so we conclude that a remand for this determination is inherent in the Court of Appeals’ opinion.
We turn now to the issue before us. Did the district court err in denying recovery of that portion of Western Motor’s claim which represented Universal’s subrogated claim for damages paid under its policy, and in holding that Universal is barred from any recovery against Koehn? We believe, as did the Court of Appeals, that the district court did err in so holding.
An insurer’s right of subrogation is derived from the insurance contract. Farmers Ins. Co. v. Farm Bureau Mut. Ins. Co., 227 Kan. 533, 608 P.2d 923 (1980). An insurer claiming the right of subrogation stands in the shoes of its insured, and any defenses against the insured are likewise good against the insurer. Shelman v. Western Casualty Surety Co., 1 Kan. App. 2d 44, Syl. ¶ 5, 562 P.2d 453, rev. denied 221 Kan. 757 (1977). By definition, an insurer can have no right of subrogation against its own insured since its insured is not a third party but one to whom a duty to pay a loss is owed. In addition, it is generally stated that no right of subrogation arises against a person who is not a named insured but holds the status of an additional insured under the policy since it must have been the intention of the parties to protect this additional insured from the consequences of his negligence by including him in the insurance coverage. Transamerica Ins. Co. v. Gage Plumbing and Heating Co., 433 F.2d 1051 (10th Cir. 1970) (applying Kansas law); 16 Couch on Insurance 2d § 61:137 (rev. ed. 1983). Therefore, to determine whether an insurer is barred from claiming a right of subrogation against a particular person, the insurance contract must be examined to determine whether it was the intention of the parties to include the person within the scope of the policy’s coverage.
The exhibit, which the parties stipulated represented the insurance coverage provided by Universal, is a single document consisting of multiple types of coverage. According to the first page of the exhibit, the policy insures “only those coverages and property shown in the declarations” made a part of the policy. In addition, the preamble to the policy states that each coverage part is a separate contract of insurance. Since Universal’s right of subrogation arises out of the contract upon which it paid the loss caused by defendant, we must examine the three coverage parts claimed to be applicable to determine whether the parties intended to insulate persons like defendant from the consequences of their own negligence.
We shall first consider Coverage Part 900, designated as “Basic Auto Insurance.” Coverage under Part 900 includes coverage under insuring agreements A, B, and C contained therein. Insuring agreement B pertains only to medical payments and is obviously inapplicable herein. Under Coverage Part 900 an insured is described as the named insureds and “(b) any other person using an OWNED AUTO or TEMPORARY SUBSTITUTE AUTO within the scope of YOUR permission . . . (Emphasis in original.) At first blush, this would result in making Koehn an insured under insuring agreement A which provides:
“A. INJURY - all sums the INSURED legally must pay as damages (including punitive damages where insurable by law) because of INJURY to which this insurance applies, caused by an OCCURRENCE arising out of the ownership, maintenance, use, loading or unloading of an OWNED AUTO or TEMPORARY SUBSTITUTE AUTO.”
However, under exclusion (e) insuring agreement A does not apply to “INJURY to property owned by ... or in the care, custody or control of the INSURED.” Finally, coverage 900 contains this provision:
“NO BENEFIT TO BAILEE - This insurance will not benefit, directly or indirectly, any carrier or bailee.”
We believe the clear import of the provision applicable to insuring agreement A under Part 900 was that coverage was not intended for the benefit of bailees damaging vehicles owned by Western Motor.
Part C of 900 applies to:
“C. PHYSICAL DAMAGE - for LOSS to an OWNED AUTO from any cause, except as excluded or as stated otherwise in the declarations.”
Clearly, Koehn did not own the damaged Buick and there is no definition of insured applicable to this coverage which would make Koehn any additional insured. Also the “no benefit to bailee” clause applies to part C, as well as part A.
We turn now to Coverage Part 500 designated as Garage Insurance. This coverage includes product liability damages and assorted torts which might be committed by Western Motor’s employees, etc. The only portion that might apply to the facts herein is the “auto hazard” coverage which extends coverage to “Any other person . . . required by law to be an INSURED while using an AUTO covered by this Coverage Part within the scope of YOUR permission.” “AUTO HAZARD” is defined as the use of any auto Western owns “furnished for the use of any person . . . .”
Under “EXCLUSIONS,” however, the contract states, “This insurance does not apply to: . . . (i) INJURY to: (1) personal property, including AUTOS ... in the care, custody or control of . . . the INSURED.” Universal contends it thus protects Koehn under Western’s liability insurance, as required by K.S.A. 40-3107(b), but excludes damage to property owned by or in the charge of the insured as permitted by K.S.A. 40-3107(i)(2). This interpretation appears sound. Kansas law does not require the owner of a vehicle to insure against damage to that vehicle. It would be rather inconsistent to hold that the owner of the vehicle must provide insurance against damage to the vehicle if it is damaged while being operated by a permissive user when no such coverage is required when the insured vehicle is being driven by a named insured. This aspect is discussed in greater depth later in the opinion in reference to Koehn’s “public policy” argument.
This brings us to Coverage Part 300 designated as “Auto Physical Damage,” which provides insurance against any loss of or to a covered auto from any cause except as excluded. The coverage applies to new cars, such as the Buick damaged in this case, and covers any number of risks including fire, flood, theft, and collision. Coverage Part 300 includes a definition section but it does not define “Insured” or include a “Who is an Insured” provision. Payment for damage to a covered vehicle goes to the insured owner of the vehicle — Western Motor. The following exclusion is contained therein:
“NO BENEFIT TO BAILEE - This insurance will not benefit, directly or indirectly, any carrier or bailee.”
As the Court of Appeals stated in its decision in the cases herein:
“Looking solely at the language of Coverage Part 300, there is no reason to conclude the insurer and insured intended individuals in defendant’s position to receive the protection of the insurance. The coverage protects specific covered property rather than applying to the action of a particular individual who could be characterized as an ‘insured.’ In addition, the applicable contract of insurance expressly provides that persons in defendant’s position as a bailee are not intended to benefit from the coverage. Since the policy states that each coverage part is intended to be a separate contract, the inclusion of definitions of ‘insured’ in other coverage parts which could include defendant do not contradict the intention expressed in Coverage Part 300 that bailees not benefit from the physical damage protection.
“Our interpretation of the specific wording of Universal’s policy is also consistent with the general authority from other jurisdictions. 10A Couch on Insurance 2d § 42:223 (rev. ed. 1982). Although each case depends heavily on the particular contract language involved, those involving loss to insured property under collision coverage, as opposed to liability, have generally held the insurer could assert subrogation rights against a third-party tortfeasor. These cases tend to either construe the policy definition of ‘insured’ as not including or excluding the tortfeasor (see, e.g., Auto Driveaway Company v. Aetna Cas. & Sur. Co., 19 Ariz. App. 224, 506 P.2d 264 [1973]; Dairyland Ins. Co. v. Munson, 292 Minn. 141, 193 N.W.2d 476 [1972]), or they examine the type of coverage involved and determine it does not protect the interests of anyone but the owner of the insured property. See, e.g., Highlands Ins. Co. v. Fischer, 122 Ariz. 394, 595 P.2d 186 (Ct. App. 1979) . . . .” 12 Kan. App. 2d at 219-20.
In Aetna Cas. and Surety Co. v. Penn. Nat. Mut. Cas. Ins. Co., 316 N.C. 368, 341 S.E.2d 548 (N.C. 1986), an individual named Bell borrowed and wrecked an automobile owned by a car agency, Imports of High Point, Inc. In a subrogation action arising therefrom, the North Carolina Supreme Court held:
“The issues of who is an ‘insured’ and of permissive use are critical in the resolution of a dispute involving automobile liability insurance policies but not in cases involving automobile collision coverage; liability insurance covers whomever may be construed as an ‘insured’ under the terms of the policy and permission is relevant in determining whether the acts of the driver are insured by the policy. Collision insurance is basically a contract of indemnity which merely covers physical damage to a specific insured vehicle — here, the Mercedes itself — irrespective of who is driving. 10A Couch on Insurance 2d § 42:221 (rev. ed. 1983); 7 Am. Jur. 2d Automobile Insurance §§ 157, 172 (1980); Annot., Automobile Insurance — Accident—Collisions, 105 A.L.R. 1426, 1431 (1936). In fact, Penn does not dispute its obligation to pay Imports regardless of who was operating the vehicle or even that it would have to pay Imports for damage to the Mercedes if it had been standing still. The question we must decide, then, boils down to whether Imports has a valid cause of action against Bell and, if so, whether Penn has the right to be subrogated to that cause of action.
“Our resolution of the issue in this case is premised on the type of insurance policy concerned and is founded on general principles of subrogation. Since the coverage in controversy was for damage from collision, only the owner, Imports, had an insurable interest in the car. Imports of High Point, Inc. — the corporation itself — was indemnified by Penn pursuant to Penn’s obligation under the collision coverage clause for the property damage to the Mercedes. Because Bell does not hold legal title to the Mercedes and has no equitable or economic interest in the car, he has no insurable interest with respect to collision coverage. Thus, plaintiffs’ argument that permissive use exempts Bell from liability for compensation to Penn for the damage to the car is not relevant to the controversy arising on the facts before us. Imports could sue Bell for negligently damaging the Mercedes. . . . Because there is no impediment to Imports suing Bell as the tortfeasor legally responsible for the damage to its Mercedes, we hold that Penn has the right to be subrogated to Imports’ right of action against Bell. The decision of the Court of Appeals is therefore Reversed.” 316 N.C. at 370-72.
Koehn also raises a “public policy” argument which was adequately discussed and disposed of in the Court of Appeals’ opinion as follows:
“Defendant also argues that even if the particular provisions of Universal’s insurance contract do not protect him, public policy expressed in the automobile injury reparations act (K.S.A. 40-3102 et seq.) compels the extension of such protection. He contends that to permit Universal to assert its right of subrogation against him would violate the law which requires automobile insurance to protect any person who has express or implied consent to use the vehicle of the named insured. K.S.A. 40-3107(b). However, while our law requires liability insurance policies to contain provisions which include the permissive user as an insured, Universal’s subrogation right in this case arose out of its payment to the policy holder under its collision coverage. As already noted, this coverage applies regardless of who was driving the car or whether it was being driven at all. K.S.A. 40-3107 is intended to assure the compensation of accidental bodily injuries and specifically provides that an insurer may exclude coverage for any damages to property owned by the insured. K.S.A. 40-3107(i)(2). Therefore, the statutory mandate contained in K.S.A. 40-3107 simply has no bearing on this case. See Highlands Ins. Co., 122 Ariz. at 396 (under statute omnibus coverage is an implied term in liability policies, not collision policies).” 12 Kan. App. 2d at 221.
We conclude that Koehn was not an insured under the insurance contract and that the district court erred in concluding that Universal had no right of subrogation against Koehn for the money it paid Western Motor for the damage to the Ruick automobile and was barred from seeking recovery for the same against Koehn.
The judgment of the Court of Appeals is affirmed. 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
Miller, J.:
This is an interlocutory appeal by the plaintiff, Richard L. Chrisman, from an order of the Miami County District Court granting partial summary judgment in favor of the defendant, Philips Industries, Inc., in this wrongful discharge from employment case. Chief Judge Abbott of the Court of Appeals granted plaintiff s application to take an interlocutory appeal, K.S.A. 1987 Supp. 60-2102(b), and the matter was transferred to this court pursuant to K.S.A. 20-3018.
Chrisman was employed by Philips for approximately six and one-half years at its plant in Paola, Kansas. Plaintiff concedes that at all times he was an employee at will. On October 14, 1982, Philips Industries terminated plaintiffs employment. He brought this action for damages, claiming that his discharge was wrongful. He advanced ten alternative theories. The trial court, ruling on a motion for summary judgment, found that plaintiff s claim for breach of an employment contract would require a factual determination and denied the motion as to that claim. The court sustained the motion as to the remaining nine claims. Plaintiff challenges that ruling on appeal only as to three claims: retaliatory discharge for his considering filing a worker’s compensation claim; retaliatory discharge for his refusal to approve defective nuclear industrial products; and promissory estoppel.
When summary judgment is challenged on appeal, this court must read the record in the light most favorable to the party who defended against the motion for summary judgment. Richardson v. Northwest Central Pipeline Co., 241 Kan. 752, Syl. ¶ 2, 740 P.2d 1083 (1987). Therefore, and although there are facts in the record favorable to the defendant, we will state those facts most favorable to the plaintiff.
Chrisman claims that on September 21,1982, while at work, he slipped and twisted his back while he was walking over some sheet metal. The following morning his wife took him to the Miami County Hospital, where he was examined by Dr. Robert Banks. Dr. Banks put him in the hospital. On the following morning, Chrisman claims that he talked over the telephone with one of his superiors, Richard Yarges. He told Yarges that he slipped on some sheet metal. Yarges asked whether Chrisman was going to file a workers’ compensation claim, and urged Chrisman to use his personal insurance, telling him that it would be to his best interest not to file a workers’ compensation claim. Chrisman says that he responded: “[I]f that’s what it took to protect my job, fine.” Chrisman did as Yarges told him to do and submitted a claim to his insurance company for a nonworkrelated injury. On October 12, Chrisman was released by his doctor and returned to work. Two days later he was fired. On December 22, he filed a workers’ compensation claim. He now claims that he was fired for intending to file or thinking about filing a workers’ compensation claim.
The first issue is whether a cause of action for retaliatory discharge exists on public policy grounds when an employee,, who has been injured on the job and has expressed an intent to the employer to file a workers’ compensation claim, is persuaded by the employer to forego the filing of that claim and is then fired by the employer as a result of the intent to file. Both parties discuss the case of Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981). In Murphy, the Court of Appeals recognized that an employee at will is normally terminable at the will of either party. The court, however, carved out an exception to that rule, holding that the discharge of an employee in retaliation for filing a workers’ compensation claim is actionable at law and may support an award of both actual and punitive damages. The plaintiff, Murphy, following an on-the-job injury, filed a workers’ compensation claim. He was offered further employment on the condition that he withdraw his compensation claim. He claimed that his employment was terminated because of his refusal to withdraw the compensation claim. Murphy is distinguishable from the case at bar since Chrisman did not file a claim until approximately two months after he was terminated.
The reasoning in Murphy, however, is persuasive. The court said:
“We believe the public policy argument has merit. The Workmen’s Compensation Act provides efficient remedies and protection for employees, and is designed to promote the welfare of the people in this state. It is the exclusive remedy afforded the injured employee, regardless of the nature of the employer’s negligence. To allow an employer to coerce employees in the free exercise of their rights under the act would substantially subvert the purpose of the act.” 6 Kan. App. 2d at 495-96.
Chrisman contends that the exception carved out in Murphy should be extended to the situation here. We believe that argument has merit. To hold otherwise would permit an employer to discharge an employee shortly after an industrial accident and before the employee has filed a workers’ compensation claim. To fire an employee because he or she has been injured and intends to file a workers’ compensation claim is no less subversive of the purposes of the Workers’ Compensation Act, and no less opposed to public policy, than the firing of the employee in retaliation for the actual filing of a claim.
The cases from other jurisdictions cited by industrious counsel are not persuasive, primarily because they are based on the retaliatory discharge statutes of the various jurisdictions. We hold that the exception carved out in Murphy should be extended to cover situations such as are claimed in this case, where the employee claims he or she was injured on the job, the employer knew that the employee intended to file a workers’ compensation claim, and in retaliation therefor discharged the employee. As we indicated earlier, the facts surrounding this issue are highly controverted, and remain for determination at trial.
The second issue is whether a cause of action for retaliatory discharge exists on public policy grounds for an employee who claims he or she was discharged as a result of the employee’s refusal to approve allegedly defective nuclear industrial products. The employer, Philips Industries, produced products which were designed for use in the nuclear industry. Chrisman, as quality control inspector, frequently found deficiencies in products manufactured by the defendant which were being supplied to the nuclear industry. He claims he was discharged based upon his filing of internal deviation reports.
42 U.S.C. § 5851 (1982), a part of the Energy Reorganization Act, provides a remedy for certain employees in nuclear-related facilities who are discharged. The act reads in part:
“Employee protection
“(a) Discrimination against employee
“No employer, including a Commission licensee, an applicant for a Commission license, or a contractor or a subcontractor of a Commission licensee or applicant, may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee)—
“(1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or the Atomic Energy Act of 1954, as amended [42 U.S.C. § 2011 et seq.] or a proceeding for the administration or enforcement of any requirement imposed under this chapter or the Atomic Energy Act of 1954, as amended;
“(2) testified or is about to testify in any such proceeding or;
“(3) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other manner in such a proceeding or in any other action to carry out the purposes of this chapter or the Atomic Energy Act of 1954, as amended [42 U.S.C. § 2011 et seq.].
“(b) Complaint, filing and notification
“(1) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of subsection (a) of this section may, within thirty days after such violation occurs, file (or have any person file on his behalf) a complaint with the Secretary of Labor (hereinafter in this subsection referred to as the ‘Secretary’) alleging such discharge or discrimination. Upon receipt of such a complaint, the Secretary shall notify the person named in the complaint of the filing of the complaint and the Commission.”
Although the language of § 5851 does not appear to cover the specific actions of Chrisman in filing internal deviation reports, caselaw from the Tenth Circuit establishes that employees filing such reports are indeed covered by § 5851. In Kansas Gas & Electric Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985), cert. denied 478 U.S. 1011 (1986), the relevant issue was whether the plaintiff engaged in protected activity under 42 U.S.C. § 5851(a) when he filed internal safety reports. Plaintiff, as a quality assurance inspector, was required to submit reports of deficiencies in equipment and lines manufactured by a KG&E subcontractor before such equipment could be implemented into the Wolf Creek Generating Station. Plaintiff performed inspections and filed reports outlining possible problems, after filing one of his safety reports, plaintiff was discharged. He filed a complaint seeking a remedy under the Energy Reorganization Act. The Secretary of Labor determined that plaintiff was fired in retaliation for the filing of internal safety reports. The Tenth Circuit held that § 5851 did cover an employee discharged for the filing of internal reports, and it affirmed the district court order which upheld and enforced the Secretary of Labor’s remedial order directing KG&E to reinstate the employee, and to compensate him with back pay, attorney fees, and costs.
The Ninth Circuit agreed. Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984). The Fifth Circuit disagreed. Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984). In denying review of Kansas Gas & Electric Co. v. Brock, Justices White, Blackmun, and O’Connor dissented, noting the direct conflict of the circuits regarding this issue. 92 L. Ed. 2d 724, 725.
Since the Tenth Circuit and the Secretary of Labor have determined that internal complaints are covered by § 5851, we conclude that Chrisman had an administrative remedy under that section.
Is the federal law, which provides a remedy for the employee, exclusive? Does the federal act preempt state law? Chrisman contends that the federal act is not preemptive of state public policy. In support of his position he relies upon Stokes v. Bechtel North American Power Corp., 614 F. Supp. 732 (N.D. Cal. 1985), and Wheeler v. Caterpillar Tractor Co., 108 Ill. 2d 502, 485 N.E. 2d 372 (1985), cert. denied 475 U.S. 1122 (1986).
In Stokes, a nuclear engineer was terminated, allegedly in retaliation for refusing to suppress information relating to quality assurance problems and design miscalculations at a nuclear plant. The Stokes court recognized the United States Supreme Court decision in Pacific Gas & Elec. v. Energy Resources Commn., 461 U.S. 190, 75 L. Ed. 752, 103 S. Ct. 1713 (1983), holding the federal government preserves “complete control of the safety and ‘nuclear’ aspects of energy generation.” 461 U.S. at 212. However, the Stokes court held that the employee’s claim for retaliatory discharge was based upon California’s clearly announced policy of ensuring the continued employment and job security of its citizens and not based upon nuclear safety. 614 F. Supp. at 742. The court based its decision in part on the fact that a California statute was regulating the economic aspects of nuclear power, not nuclear safety, and the court also emphasized the permissive character of the language used in § 5851. It concluded that the federal act did not supplant, but was merely supplemental to, the state law which provided remedies for an aggrieved employee. It found no preemption and remanded the case to the state court.
While Stokes is persuasive, Chrisman failed to cite another California federal court decision which reaches the opposite conclusion. In Snow v. Bechtel Const. Inc., 647 F. Supp. 1514 (C.D. Cal. 1986), the court declined to follow the Stokes decision. The Snow court held that § 5851 of the Energy Reorganization Act preempted the employee’s state cause of action for retaliatory discharge. Snow was employed as a carpenter at a nuclear power plant and notified the Nuclear Regulatory Com mission that Bechtel was violating established emergency evacuation procedures in the event of a nuclear accident. Later, Snow was terminated with the cause of termination listed as a reduction in the work force. The plaintiff brought his action in a California state court; Bechtel Construction removed it to the federal courts. The United States District Court said in part:
“The ‘whistleblower’ provision of § 5851 was patterned after another federal statute, the Mine Safety and Health Act, 30 U.S.C. §§ 820 et seq., S. Rep. No. 95-848, 95th Cong., 2nd Sess, at 29, 1978 U.S. Code Cong. & Admin. News at 7303. The two Acts ‘share a broad, remedial purpose of protecting workers from retaliation based on their concerns for safety and quality.’ Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1163 (9th Cir. 1984). Subsequent to identifying this similarity between the two Acts, the Ninth Circuit held that the whistleblower provision in the Mine Safety and Health Act was an exclusive remedy that preempted any state action. Olguin v. Inspiration Consolidated Copper Co., 740 F.2d 1468, 1475 (9th Cir. 1984). The Ninth Circuit has not specifically addressed the exclusivity of the remedy contained in § 5851. Olguin, however, is persuasive authority for holding here that Snow’s action is preempted by § 5851.” 647 F. Supp. at 1517-18.
The court in Snow reasoned that the language utilized in the Mine Safety and Health Act was permissive and thus similar to the language of § 5851; yet the Ninth Circuit had determined such remedy to be exclusive and preemptive of state law. The Snow court concluded that the legislative history of § 5851 and the decision in Olguin v. Inspiration Consol. Copper Co., 740 F. 2d 1468 (9th Cir. 1984), indicate “that primarily safety concerns were being addressed by the provisions of § 5851. Preservation of a complaining employee’s position within the offending facility is a secondary, yet essential corollary of such a safety scheme.” (647 F. Supp. at 1518.) The District Court held that the action was properly removed to federal court, and dismissed the case for lack of subject matter jurisdiction since the matter was within the exclusive province of the Secretary of Labor.
As we noted earlier, Chrisman also relies upon Wheeler v. Caterpillar Tractor Co., 108 Ill. 2d 502, as authority that neither the Atomic Energy Act nor the Energy Reorganization Act preempt a state tort action for retaliatory discharge. In Wheeler, plaintiff was discharged for refusing to work under conditions allegedly exposing him to radioactive materials. He contended that he was being required to work under conditions which were violative of federal safety regulations. The issue of preemption was not briefed or argued by the parties. The Illinois Supreme Court, sua sponte, addressed the issue. The court did not thoroughly analyze the issue, but, relying primarily on Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 78 L. Ed. 2d 443, 104 S. Ct. 615 (1984), concluded that it was not Congress’ intent to preempt state action. Justice Moran, in a lengthy and persuasive dissent, joined by Justice Ryan, concluded that the federal act preempts state action for retaliatory discharge resulting from either internal company disputes over radiation safety or reports to the federal regulatory agency. Justice Moran concluded that the purpose of § 5851 is to encourage employees and union officials to help assure that employers do not violate requirements of the Atomic Energy Act. The section “represents just a part of the comprehensive and pervasive Federal regulatory scheme on nuclear energy. ... A more comprehensive statute could hardly be imagined.” 108 Ill. 2d at 515. Justice Moran would hold that plaintiff s state cause of action for retaliatory discharge is preempted by federal law.
The United States Supreme Court in Pacific Gas & Elec. v. Energy Resources Comm’n, 461 U.S. 190, discusses preemption. It states:
“Absent explicit pre-emptive language, Congress’ intent to supersede state law altogether may be found from a ‘ “scheme of federal regulation ... so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,” because “the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject,” or because “the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose.” ’ [461 U.S. 203-04.]
“[T]he Federal Government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the States. When the Federal Government completely occupies a given field or an identifiable portion of it, as it has done here, the test of pre-emption is whether ‘the matter on which the State asserts the right to act is in any way regulated by the Federal Act.’ ” 461 U.S. at 212-13.
As the Snow opinion and the dissenting opinion in Wheeler point out, there is massive federal legislation and regulation in the area of nuclear safety. Section 5851 not only provides a substantial and effective remedy for an employee who contends he has been discharged because of “whistle-blowing,” but it also provides the Federal Nuclear Regulatory Agency with invaluable information from those working in the field who are most likely to discern the problems relating to the public safety in the nuclear field. We hold that 42 U.S.C. § 5851 is primarily a safety regulation, and that Congress has preempted the field. We need not determine whether termination of an employee for “whistle-blowing” in nuclear and related industries violates state public policy or whether a further exception to the employment-at-will doctrine should be created. Congress has provided the exception by legislation, which we hold preempts the field. The trial court was correct in rejecting this claim.
Finally, Chrisman claims that the trial court erred in entering summary judgment on plaintiff s claim for discharge based on promissory estoppel. As factual background, he contends he transferred from one job to another with the same employer and at the same facility based upon the representation of a superior that if Chrisman did his job there should be no problems with job security. Within a year, he was terminated. The trial court summed up this issue as follows:
“Finally, Chrisman’s claim for wrongful discharge based on promissory estoppel should be denied for failure to state a cause of action. The case of Lorson v. Falcon Coach, Inc., 214 Kan. 670, 522 P.2d 449 (1974), [states] that under the doctrine of promissory estoppel, damages may be granted in Kansas even though and despite the theory of employment at will in certain circumstances. Chrisman alleges that he changed positions from one department to the next within the Philips corporate structure. The Court sees no evidence of detrimental reliance in that instance. After all, even in his prior position, Chrisman was terminable at will. In Lorson, the Supreme Court ruled that the Plaintiff could receive moving expenses based upon detrimental reliance. In the case at bar, Chrisman presents no damages based upon detrimental reliance. All of his allegations of damages arise from his termination.”
We agree. Relying upon the promise, Chrisman moved from one position within the corporate structure of Philips to another. He had precisely the same job security in that position that he had in his previous position. We can find no suggestion of detrimental reliance in the record in this case and no suggestion of any damages sustained by Chrisman, other than for his termination. That issue may properly be determined in the remaining implied contract claim. The trial court properly sustained Philips’ motion for summary judgment on plaintiff s claim for relief based upon promissory estoppel.
The judgment is affirmed in part, reversed in part, and remanded to the trial court for further proceedings in conformity with this opinion. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an appeal by the State from the district court’s dismissal of a complaint filed against defendant Robert Hagen alleging obstruction of official duty of a police officer pursuant to K.S.A. 21-3808.
A Lawrence police officer was directing traffic on Saturday, September 27, 1986, in connection with heightened traffic occasioned by the annual Rand Day of the University of Kansas. Robert Hagen allegedly stopped his automobile near to the officer and went over and argued with the officer, refused to obey the officer’s orders, and generally interfered with the officer’s ability to perform his direction of traffic. Hagen was charged with violation of K.S.A. 21-3808, which provides:
“Obstructing legal process or official duty is knowingly and willfully obstructing, resisting or opposing any person authorized by law to serve process in the service or execution or in the attempt to serve or execute any writ, warrant, process or order of a court, or in the discharge of any official duty.
“Obstructing legal process or official duty in a case of felony is a class E felony. Obstructing legal process or official duty in a case of misdemeanor or a civil case is a class A misdemeanor.’’
The district court dismissed the complaint on the ground that K.S.A. 21-3808 requires an underlying felony, misdemeanor, or civil case in order to classify the offense. Inasmuch as no such underlying civil or criminal case was alleged under the facts herein, the district court concluded the complaint must be dismissed.
The first portion of the statute which sets forth the offense would appear to be applicable to the facts alleged herein. However, the alleged facts do not permit classification of the charge into either of the two penalty classifications set forth in the statute as there is no underlying felony, misdemeanor, or civil case. Were defendant to be convicted under the statute, what penalty or classification would attach?
K.S.A. 21-4502 provides in part:
“(1) For the purpose of sentencing, the following classes of misdemeanors and punishment and the terms of confinement authorized for each class are established:
“(d) Unclassified misdemeanors, which shall include all crimes declared to be misdemeanors without specification as to class, the sentence for which shall be in accordance with the sentence specified in the statute that defines the crime; if no penalty is provided in such law, the sentence shall be the same penalty as provided herein for a class C misdemeanor.”
Nothing in K.S.A. 21-3808 states that violation thereof is ever anything but a class E felony or a class A misdemeanor. There is no crime in the statute which has been declared to be a misdemeanor for which no class has been specified. Hence, the district court could not use K.S.A. 21-4502(l)(d) to classify the alleged offense herein as a class C misdemeanor.
This conclusion is supported by the history of K.S.A. 21-3808 which was enacted in 1969 as a consolidation of two prior statutes, K.S.A. 21-717 (Corrick) and K.S.A. 21-718 (Corrick), which provided:
“21-717. ... If any person or persons shall knowingly and willfully obstruct, resist or oppose any sheriff or other ministerial officer in the service or execution or in the attempt to serve or execute any writ, warrant or process, or in the discharge of any official duty in any case of felony, every person so offending shall upon conviction be punished by confinement and hard labor for a term not exceeding five years, or by imprisonment in the county jail for a term not less than six months, or a fine not less than five hundred dollars.”
“21-718. . . . If any person or persons shall knowingly and willfully obstruct, resist or oppose any sheriff or any other ministerial officer in the service or execution or in the attempt to serve or execute any writ, warrant or process, or in the discharge of any other duty in any case, civil or criminal, other than felony, or in the service or attempt to serve any order or rule of court in any case, every person so offending shall on conviction be adjudged guilty of a misdemeanor, and punished by imprisonment in the county jail for a term not exceeding one year, or by fine not exceeding five hundred dollars, or by both such fine and imprisonment.”
Clearly, the alleged conduct herein does not fall within the purview of either of the prior statutes which were consolidated into K.S.A. 21-3808.
The legislature has provided a specific statute for the alleged conduct herein. It is K.S.A. 1987 Supp. 8-1503, which provides:
“No person shall willfully fail or refuse to comply with any lawful order or direction of any police officer or fireman invested by law with authority to direct, control or regulate traffic. Violation of this section is a misdemeanor.”
Pursuant to K.S.A. 21-4502(l)(d) violation of K.S.A. 1987 Supp. 8-1503 is a class C misdemeanor.
The State did not attempt to amend the complaint herein to allege a violation of K.S.A. 1987 Supp. 8-1503. We must conclude the district court did not err in dismissing the complaint.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Herd, J.:
This is a direct appeal of a criminal action. Billy Joe Anthony was convicted of class B felony possession of cocaine (K.S.A. 65-4127a). He was sentenced to fifteen years to life imprisonment, the sentence to run consecutive to his previous three-to-ten year sentence for possession of cocaine, pursuant to K.S.A. 1986 Supp. 21-4608(3).
Let us first acquaint ourselves with the facts from which these charges flow. On the afternoon of January 3, 1986, Billy Joe Anthony, on probation for possession of cocaine, was working at his newly opened mechanic’s shop. He was visited by his girlfriend, Lois Inks, whom he married before this case came to trial. Ms. Inks told Anthony she was going over to clean the trailer home in which Anthony lived alone. He gave his consent, stating he might work late.
Inks had earlier agreed to make up some packets of cocaine for a friend of hers. She therefore brought the cocaine and its attendant paraphernalia over to Anthony’s house with her cleaning supplies. Both she and Anthony declared Anthony knew nothing of this. They testified Anthony had had nothing to do with drugs since his prior arrest, and would have been angry had he known Inks had brought drugs into the house.
Inks arrived at Anthony’s house around 6:00 p.m. Her brother, Jeffrey Inks, came over soon after and asked if she could sell him some marijuana. They smoked some marijuana and used some cocaine. They were visited by two friends of Anthony’s who wanted to buy some cocaine, but wanted more than Inks could. supply.
Inks then started getting her paraphernalia together in the study to hide before Anthony got home. She was in this room when Anthony got home. Anthony was still in the front room in his coat and hat when the police arrived with a search warrant at 7:21 p.m. Inks and Anthony testified Anthony had been home only a few minutes before the police came and had not seen any of the drugs.
Shortly after the police arrived, Inks emerged from the study about fifteen feet away from Anthony, who was still standing at the front door. She carried two baggies of marijuana, six packets of cocaine, and a $20 bill in her hand. As the police took these items from her, she said, “This is all my stuff, he doesn’t know anything about it.” Inks later testified she had said “they didn’t know anything about it,” referring to her brother as well, although her previous testimony clearly showed her brother not only knew about the drugs, but was a user with her.
The officers found a bong that smelled of marijuana in a paper sack in a kitchen cabinet. Anthony admitted having seen the bong before. He said a friend had left it there because he was driving home drunk and didn’t want to chance its being found by the police if he was stopped. On the kitchen table the police found a $5 bill, a $10 bill, and a white paper partially folded in a pharmacy fold. The table was in clear view, about eight feet from the entrance door.
Other papers commonly used for packaging powdered drugs were on top of a desk in the study. Also on the desk were a mirror, a powder scales, a measuring spoon, “Snuff-It” inhalers, and white paper packets containing cocaine. Although neither Anthony nor Inks had children, there was a box of plastic disposable baby bottle inserts. These could be heat-sealed and used as containers for powdered drugs. A locked bank bag in one of the drawers contained syringes. The room also contained a safe, which Anthony unlocked on request. It contained $760.00 in cash. Anthony testified the cash was kept to buy tools at auctions for his new shop.
A ledger sheet was found on Anthony’s bedroom table with names, dollar amounts, and figures representing individual sales of one-quarter to one gram of cocaine. Anthony admitted the sheet was his account of drug transactions, but declared it was over nine months old and had been made in April of 1985, before his first drug arrest. (His home had never been searched before; his first arrest was for cocaine found on his person.) The three subtotals shown on the sheet, marked “PD,” totaled $760.00, the amount found in the safe.
Inks pled guilty to possession in a separate action. It was her first drug conviction, and she so testified to the jury in this case. Charges against Jeffrey Inks were dropped in return for his promise to testify against Anthony, but he died before trial, a victim of an alleged murder. The jury ultimately considered two charges against Anthony. The first was listed in count one of the complaint. It charged Anthony did “willfully, intentionally and feloniously possess or, in the alternative, possess with intent to sell, cocaine ... in violation of K.S.A. 65-4127a.” The second charge in the complaint was possession of marijuana, K.S.A. 1986 Supp. 65-4105(d). Anthony was convicted only of possession of cocaine.
The first issue to be considered is whether the trial court erred in not requiring the State to elect whether it relied on possession of cocaine or on possession with intent to sell. K.S.A. 65-4127a reads as follows:
“Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to manufacture, possess, have under his control, possess with intent to sell, sell, prescribe, administer, deliver, distribute, dispense or compound any opiates, opium or narcotic drugs. Any person who violates this section shall be guilty of a class C felony, except that, upon conviction for the second offense, such person shall be guilty of a class B felony, and upon conviction for a third or subsequent offense, such person shall be guilty of a class A felony, and the punishment shall be life imprisonment.”
Anthony contends the complaint was duplicitous and therefore defective and could only be remedied by the State’s election of either possession or possession with intent to sell. See State v. Hammond, 4 Kan. App. 2d 643, 609 P.2d 1171, rev. denied 228 Kan. 807 (1980).
Anthony asked for such an election several times before and during the trial. At the end of the testimony, the State offered to rely only on possession with intent to sell. But the trial court decided that, as the jury did not hear the actual complaint and would be instructed it could not convict on both charges, the State was not required to elect on which charge it would rely.
The court indicated the jury would not be confused because of the instruction it proposed to give, which provided as follows:
“The defendant is charged with a crime in violation of the Uniform Controlled Substances Act of the State of Kansas as it pertains to a narcotic drug known as cocaine. The defendant pleads not guilty.
“To establish the charge, each of the following claims must be proved:
“1. That the defendant possessed a narcotic drug known as cocaine;
“2. That the defendant did so with the intent to sell it; and
“3. That the defendant did so on or about the 3rd day of January, 1986, in Barton County, Kansas.
“The Offense of possession of cocaine with the intent to sell includes the offense of possession of cocaine in violation of the Uniform Controlled Substances Act of the State of Kansas. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant possessed a narcotic drug known as cocaine.
“2. That the defendant did so intentionally; and
“3. That the defendant did so on or about the 3rd day of January, 1986, in Barton County, Kansas.
“You may find the defendant guilty of possession of cocaine or guilty of possession with the intent to sell cocaine. You may not find him guilty of both of these charges.
“You may find the defendant not guilty of both possession and possession with the intent to sell.
“You may find the defendant guilty of possession and not guilty of possession with the intent to sell. You may not find the defendant guilty of possession with the intent to sell and not guilty of possession. If you find the defendant guilty of possession with the intent to sell then you should not execute Verdict 2.”
A complaint which charges two separate and distinct offenses in a single count is duplicitous. See Hammond, 4 Kan. App. 2d at 646-47. The question here is whether two offenses were charged in count one of the complaint, which stated:
“That on or about the 3rd day of January, 1986, the said BILLY JOE ANTHONY, within the above and within named County and State, then and there being, did then and there contrary to the statutes of the State of Kansas unlawfully, willfully, intentionally and feloniously possess or, in the alternative, possess with intent to sell, cocaine, a narcotic drug, after being previously convicted of possession of cocaine on September 9, 1985, in Barton County, Kansas, in violation of K.S.A. 65-4127a.”
Possession of cocaine is an included offense of possession of cocaine with intent to sell. See State v. Brown, 5 Kan. App. 2d 149, 150, 613 P.2d 387 (1980). It is necessary to prove all the elements of possession in order to prove possession with intent to sell. Simple possession is not a lesser included offense, however, because both offenses are found under the same statute, are of the same degree, and carry the same penalty. State v. Newell, 226 Kan. 295, 297, 597 P.2d 1104 (1979).
The State asserts the count was not duplicitous because it did not charge Anthony with two distinct and separate crimes. Instead, it charged him with violation of K.S.A. 65-4127a of the Uniform Controlled Substances Act, which can be violated by various means, all bearing the same penalty, including possession and possession with intent to sell. Obviously, the better practice is to charge the alternative charges in separate counts. See State v. Saylor, 228 Kan. 498, 503-04, 618 P.2d 1166 (1980). This prevents any possible confusion. But, it is clear Mr. Anthony was apprised of the offenses against which he would have to be prepared to defend. The jury could not have been confused by the complaint because it did not see it. It only saw the instructions, and it was specifically instructed it could not find the defendant guilty of both possession and possession with intent to sell.
Duplicitous charging is bad practice for two reasons: It confuses the defendant as to how he must prepare his defense and it confuses the jury. Two offenses charged in the alternative in one count contain the same defects as the charging of two separate offenses in one count. In this case, however, the practice was rendered harmless because it caused neither the defendant nor the jury confusion.
Also, the record shows beyond a reasonable doubt the verdict would not have been different had the court required the State to elect. See State v. Bell, 239 Kan. 229, 235, 718 P.2d 628 (1986). The State informed the court it was prepared to rely on possession with intent to sell. Had the trial court permitted the election, the State would have requested an instruction on possession with intent to sell. Pursuant to State v. Brown, 5 Kan. App. 2d at 150, the court would have instructed as requested and could have instructed also on possession as an included offense. Thus, we see that a jury may be instructed on simple possession as well as possession with intent to sell even though the defendant was only charged with intent to sell. The end result would have been an instruction exactly like that actually received by the jury in this case. We hold the charging of two offenses in the alternative in one count of the complaint was error, but in this case the error was harmless.
The second issue to be considered on appeal is whether the trial court erred in giving, over Anthony’s objection, an accomplice instruction to the jury. The trial court has discretion in giving instructions to the jury. We will approve the instructions' if, when considered in their entirety, they fairly state the law as it applies to the facts of the case. State v. Armstrong, 238 Kan. 559, 563-64, 712 P.2d 1258 (1986).
The instruction complained of reads in pertinent part:
“An accomplice witness is one who testifies that he was involved in the commission of the crime with which the defendant is charged. You should consider with caution the testimony of an accomplice.” See PIK Crim. 2d 52.18.
This instruction must be read in conjunction with the following portion of the court’s first instruction:
“It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified.”
PIK Crim. 2d 52.18 is normally requested by a defendant when accomplice testimony is being used against him. See, e.g., State v. Moody, 223 Kan. 699, 702-03, 576 P.2d 637, cert. denied 439 U.S. 894 (1978). Anthony contends such an instruction should not have been given over his objection, especially because the court did not add the limitation formerly contained in PIK Crim. 2d 52.18, that the testimony should be questioned if not supported by other evidence. Anthony corroborated Inks’ testimony. The police officers corroborated Inks’ testimony that she immediately claimed the drugs as hers.
In State v. Reidie, 142 Kan. 290, 291-92, 46 P.2d 601 (1935), a witness testified at trial, as did Inks here, that he was guilty of the crime with which the defendant was charged. But, rather than exonerating the defendant, the witness did the more usual thing and implicated him. This court approved the trial court’s instruction that whether or not a person is an accomplice is a question of fact to be determined by the jury. We held that “[u]nless the facts establishing complicity of a defendant with a witness in commission of a crime are admitted by defendant, or are otherwise beyond dispute, the question whether the witness was an accomplice is one of fact to be determined by the jury from the evidence.” 142 Kan. 290, Syl. ¶ 2.
The trial court in this case noted Reidie, but found the relevant phrase to be “or are otherwise beyond dispute.” It found it beyond dispute that Inks was “involved in the commission of the crime with which the defendant is charged.” This is clearly correct. But Reidie required the complicity of the defendant to be beyond dispute.
The question, then, is whether the definition of “accomplice” in the instruction can override the prejudice caused by the average juror’s belief that such a term, as it normally does, connotes two parties “equally concerned in the commission of crime.” Black’s Law Dictionary 16 (5th ed. 1979). If the jurors still retained this definition of accomplice in their minds, the court’s instruction, which in effect required that Inks be termed an accomplice, may have prejudiced Anthony before the jury. See State v. Begyn, 34 N.J. 35, 54-56, 167 A.2d 161 (1961). The jury knew Inks was guilty; it was instructed she was an accomplice; ergo, Anthony must also be an accomplice and must also be guilty.
The State argues, however, that the rationale for giving an accomplice instruction — that the testimony is considered to be inherently unreliable — makes it proper for a court to use its discretion to give the same instruction when requested by the State. In this case, Inks had already been convicted. She therefore had nothing to lose and much to gain in testifying her husband was innocent.
The question of whether it is improper for a trial court to give an accomplice instruction over the defendant’s objection when the accomplice’s testimony is favorable to a criminal defendant is one of first impression in this state.
In Cool v. United States, 409 U.S. 100, 103-04, 34 L. Ed. 2d 335, 93 S. Ct. 354 (1972), a witness pled guilty to the crime for which the defendant was charged, but exonerated the defendant. The United States Supreme Court held the trial court erred in instructing the jury it must ignore the testimony unless it believed it to be true beyond a reasonable doubt. But the Court indicated it would have been permissible for the trial court to have simply instructed the jury to view accomplice testimony with caution.
The Supreme Court cited United States v. Nolte, 440 F.2d 1124 (5th Cir.), cert. denied 404 U.S. 862 (1971), in which there was evidence a witness for the defense was involved in the same crime for which the defendant was charged. The Nolte court, in upholding the trial court’s instruction that the witness was “in the category of an accomplice,” held a witness is an accomplice if he could have been indicted for the offense with which the defendant is charged. The court upheld the instruction that an accomplice’s testimony “ought to be received as suspicious and with the greatest care and caution.” 440 F.2d at 1126.
Other federal courts have upheld instructions which cautioned the jury on the weight to be given accomplice testimony favorable to the defendant. United States v. Urdiales, 523 F.2d 1245, 1248 (5th Cir. 1975), cert. denied 426 U.S. 920 (1976); Booker v. Israel, 610 F. Supp. 1310, 1317-18 (E.D. Wis. 1985). In Booker, a witness for the defendant testified he had pled guilty to the crime for which the defendant was charged, but exonerated the defendant. The trial court instructed the jury that if the witness’ testimony was true, “he participated in the crime charged against the defendant and is an accomplice therein.” The federal court upheld the trial court’s instruction that accomplice testimony could be the basis of the jury’s decision if believed, but should be received with “the utmost care and caution.”
The majority rule is that an accomplice instruction is required only when the testimony is against the defendant. See United States v. Rosa, 560 F.2d 149, 156 (3d Cir.), cert. denied 434 U.S. 862 (1977). Most state courts which have considered the question have found cautionary instructions for accomplice testimony favorable to the defendant to be improper. See, e.g., State v. Gardner, 51 N.J. 444, 460-61, 242 A.2d 1 (1968); Com. v. Jones, 490 Pa. 599, 417 A.2d 201 (1980); Burns v. State, 123 Tex. Crim. 213, 221-22, 57 S.W.2d 836 (1933). They variously held that the instruction should be given only at defendant’s request, or that the term “accomplice” should be avoided. See generally 23A C.J.S., Criminal Law § 1227.
In People v. Howard, 130 Ill. App. 2d 496, 497, 263 N.E.2d 633 (1970), the defendant’s witnesses had pled guilty to the crime with which the defendant was charged, but exonerated him in their testimony. Over the objections of the defendant, the trial court instructed:
“An accomplice witness is one who testifies that he was involved in the commission of a crime with the defendant. The testimony of an accomplice witness is subject to suspicion, and should be considered by you with caution. It should be carefully examined in light of the other evidence in the case.” (Emphasis added.)
The appellate court held such an instruction was error, in part because of confusion caused when the witnesses testified they did not commit the crime “with the defendant,” but also because absent the traditional rationale for the instruction — that the witness may hope for favorable treatment by the prosecution in return for disfavorable testimony — the instruction unfairly discredited the defendant’s case. 130 Ill. App. 2d 498-99.
In State v. Anderson, 104 N.J. Super. 18, 248 A.2d 438, aff'd 53 N.J. 65, 248 A.2d 129 (1968), cert. denied 394 U.S. 966 (1969), witnesses who had already pled guilty and been sentenced for the crime with which the defendant was charged exonerated the defendant by their testimony. The appellate court upheld the trial court’s cautionary instruction, but only because the defendant had not objected to it, the court did not use the prejudicial term “accomplice,” and the evidence against the defendant was overwhelming. Despite the appellate court’s objection to the “close scrutiny” the trial court had required in the instruction, the appellate court did find the court had the discretion to remind the jury it “had the right to consider possible motives of loyalty and friendship” in weighing the witnesses’ testimony. 104 N.J. Super at 21.
We adopt the minority view that a cautionary instruction on accomplice testimony is proper in all circumstances where an accomplice testifies. Such testimony on behalf of defendants is becoming more prevalent all the time, particularly by spouses or convicted friends of the accused who have nothing to lose by taking the blame. Here, the defendant was not branded as one who committed a crime. The instruction states the accomplice witness is one who testifies he was involved in the commission of the crime “with which the defendant is charged.” That is not prejudicial, particularly where the witness testifies she committed the crime and the defendant is innocent.
In addition, we hold the failure to include the limitation formerly contained in PIK Crim. 2d 52.18, that the accomplice testimony should only be questioned if it is not supported by other evidence, was not error. This issue is without merit.
Anthony’s final issue is whether there was sufficient evidence to support the verdict. The scope of review for a sufficiency of the evidence challenge is whether the evidence, viewed in a light most favorable to the prosecution, would have persuaded a rational factfinder that the defendant was guilty beyond a reasonable doubt. We look only to the evidence in favor of the verdict to determine if the elements of the charge are sustained. State v. Willis, 240 Kan. 580, 587, 731 P.2d 287 (1987).
Anthony contends the State did not prove he had knowledge of and intent to control the cocaine, elements essential to possession. These elements may be proved by circumstantial evidence. See State v. McKibben, 239 Kan. 574, 585, 722 P.2d 518 (1986).
However, when the defendant is in nonexclusive possession of the premises on which illegal drugs are found, there must be other incriminating circumstances linking the defendant to the drugs. Whether such circumstances are sufficient to give rise to an inference of possession is a question for the jury. See State v. Faulkner, 220 Kan. 153, 160, 551 P.2d 1247 (1976).
A defendant’s proximity to the area where the drugs were found, the fact they were in plain view, the proximity of his belongings to the drugs, and his previous participation in the sale of drugs are factors which have, taken together, been held sufficient to support an inference of possession. See State v. Faulkner, 220 Kan. at 160, and State v. Bullocks, 2 Kan. App. 2d 48, 50, 574 P.2d 243, rev. denied 225 Kan. 846 (1978).
The jury was additionally entitled to consider that paraphernalia was found in several different locations of the house in which Anthony lived alone. It was entitled to consider that Anthony admitted the ledger sheet found on the nightstand of his bedroom was a record he had made of his drug sales. The jury could have disregarded Anthony’s testimony that the sheet was nine months old and instead believed it was a recent record of the $760.00 Anthony had locked in his safe.
We find sufficient competent evidence to sustain the verdict.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Allegrucci, J.:
This is a wrongful death and personal injury action against Reno County and James Melvin, the Public Works Director for Reno County. The plaintiff, Mary A. Taylor, brought the action as surviving parent of the deceased Vonya Taylor, and as mother and natural guardian of Eric Taylor, a minor. The district court dismissed the plaintiffs claim pursuant to K.S.A. 60-212(b), finding that K.S.A. 75-6104(k) granted the defendants immunity from liability and, therefore, plaintiff failed to state a claim upon which relief could be granted. The plaintiff appeals.
The facts are essentially undisputed. On the night of December 30, 1984, the plaintiff was involved in an automobile accident on the Yoder Road bridge. Rain started falling early in; the evening and, although it did not freeze on the roads or highways, icing and slippery conditiond did develop on the bridges and overpasses. The air temperature stayed above 25 degrees Fahrenheit all evening. At approximately 8:37 p.m., James Melvin was advised by the Reno County Sheriff s Detail Commander that bridges and overpasses were getting extremely slick from freezing rain and accidents were occurring. Melvin responded that sand and salt would be applied starting at 5:00 a.m. the next morning. At approximately 10:57 p.m., the plaintiff was proceeding north on Yoder Road. As she approached the Yoder Road bridge, it was raining but the road was not slick. The bridge, however, was a sheet of ice, and plaintiff s car skidded out of control and collided with an oncoming vehicle. Plaintiff s twelve-year-old daughter, Vonya, was killed and her three-month old son, Eric, suffered serious injuries.
There was in effect, on December 30,1984, a county Snow and Ice Control Implementation Plan. The plan was adopted by the Roard of County Commissioners of Reno County on December 15, 1982. This plan, in part, provided:
“C. When the precipitation causes icy and hazardous conditions, the following criteria will govern whether sand and salt spreading will commence:
(1) Units will not be dispatched after 8:00 p.m.
(2) Spreading will desist prior to 10:30 p.m.
(3) Units will not be dispatched when the temperature is below 20 Fahrenheit and is expected to fall.
(4) When the temperature is above 20 Fahrenheit units may be dispatched when approved by the Public Works Director.
“E. Treatment of most areas which are deemed hazardous will begin at 5:00 a.m. or at any other time as directed by the public works director.”
The plaintiff contended that the accident arose from the defendants’ failure to clear the bridge of ice. She contends that Reno County and its public works director, James Melvin, were aware of the ice on the Yoder Road bridge but had taken no action to alleviate the situation.
The sole question now before this court on appeal is whether K.S.A. 75-6104(k) provides immunity to the defendants from the claims contained in plaintiff s petition.
K.S.A. 75-6104 provides, in part:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
“(k) snow or ice conditions or other temporary or natural conditions on any public way or other public place due to weather conditions, unless the condition is affirmatively caused by the negligent act of the governmental entity.”
Plaintiff contends that the common-law duty of the county to maintain its roads in a reasonably safe condition remains under the general liability for negligence created by the Kansas Tort Claims Act, and thus her claim is not barred by K.S.A. 75-6104(k). She further contends that subparagraph (k) grants immunity only for negligent acts and not for gross and wanton acts. The plaintiff relies on Hopkins v. State, 237 Kan. 601, 702 P.2d 311 (1985), as authority for her contention.
In Hopkins, the trial court found that the defendant law enforcement officers were immune pursuant to K.S.A. 75-6104(c), (d), and/or (m), and granted summary judgment in favor of the defendants. We reversed and, in so doing, said:
“The exceptions to liability of a governmental entity or employee set out in 75-6104 are not without limitations. Only negligent or wrongful acts or omissions of employees are excepted from liability by 75-6104, while acts or omissions involving more than the lack of ordinary care and diligence are not.
“. . . Whether this particular set of facts falls within any of the exceptions to liability for negligence created by 75-6104 or if the officers’ conduct was more than negligent, i.e., malicious or wanton, and therefore outside the protection from liability, must be determined by considering the totality of the circumstances in this particular case. Plaintiffs are correct in contending that the trial court’s granting of summary judgment concerning liability for damages to the plaintiffs’ home was improper.” 237 Kan. at 611-12.
Our decision in Hopkins is not controlling in the present case. At issue in Hopkins was the conduct of the defendant law enforcement officers, which was alleged to be malicious and wanton. In Hopkins, we said that the “question is whether the officers’ actions exceeded either the common-law duty of an officer or the exception to liability provided by the act.” 237 Kan. at 610. We found that a common-law duty did exist, stating:
“Neither the courts nor our legislature, in passing the act, extended the mantle of immunity beyond the boundaries of protection previously recognized under the common law. Under the common law, personal liability was imposed on officers who maliciously or wantonly injured a person or his property even though the officers were engaged in a governmental function. Robertson [v. City of Topeka], 231 Kan. [358, 364, 644 P.2d 458 (1982)]. (Fromme, J., dissenting).
“A law enforcement officer is obligated to use reasonable and ordinary care and diligence in the exercise of his duties, to use his best judgment, and to exercise that reasonable degree of learning, skill and experience which is ordinarily possessed by other law enforcement officers in the same or similar locations. A law enforcement officer who acts maliciously or wantonly fails to exercise the reasonable and ordinary care and diligence required of a law enforcement officer and acts outside the protection afforded by the act.” 237 Kan. at 611.
In the present case, we are not dealing with affirmative acts but with a failure to act. In addition, counties did not have a common-law duty to keep their roads in a reasonably safe condition, nor were counties liable at common law for damages resulting from defective roads or bridges. Comm’rs of Marion Co. v. Riggs, 24 Kan. *255 (1880); Eikenberry v. Township of Bazaar, 22 Kan. *556 (1879). The legislature subsequently passed R.S. 1923, 68-419 (1931 Supp.), which provided that governmental entities could be subjected to liability for damages resulting from highway defects. However, in Gorges v. State Highway Comm., 135 Kan. 371, 373, 10 P.2d 834 (1932), this court held that the natural accumulations of ice upon roadways were not “road defects” within the meaning of the statute and, therefore, governmental entities were immune from liability for damages resulting from accumulations of ice upon a roadway. In so holding, we said:
“Here the cause of the injury was not in any fault of the structure itself, but was caused by the action of the elements over which the commission had no control. The danger was caused by a fall of rain and snow on city streets and county highways alike, and by a process of freezing and thawing was transformed into ice and the traffic over it caused roughness and ruts.
“Did the legislature when it enacted the statute intend to create a liability against the state for persons injured because of ice accumulated on the highway? It had already been determined that a city is not liable for damages to one injured from an icy and slippery condition of sidewalks and streets where the condition was an accumulation of ice thereon which arose from natural causes, upon the theory that the burden on the city of removing snow and ice on miles and miles of sidewalks and streets would be so great and so impracticable, if not impossible, it could not have been within the intention of the lawmakers.” Gorges v. State Highway Comm., 137 Kan. 340, 341-42, 20 P.2d 486 (1933).
The liability of the state, county, and township for highway defects was repealed by the Kansas Tort Claims Act. However, in Toumberlin v. Haas, 236 Kan. 138, 689 P.2d 808 (1984), we held that the duty to maintain the highways remains under the general liability for negligence created by the tort claims act, and the scope of that duty is to be determined on a case-by-case basis. In addition, whether an exception exists under K.S.A. 75-6104 must be determined by looking at the totality of the circumstances in each case. See Carpenter v. Johnson, 231 Kan. 783, 790, 649 P.2d 400 (1982).
Maintenance of the roadway and bridges is not an issue in the present case. This case is a classic example of the type of case which falls within K.S.A. 75-6104(k). There is no allegation that the icy condition of the Yoder Road bridge was caused by the affirmative negligent acts of either of the defendants. Rather, the sole basis for plaintiff s present cause of action is that the defendants failed to properly clear the bridge of ice after it had accumulated. The accident allegedly arose from ice accumulation on a public bridge due to weather conditions and, thus, the case falls squarely within the governmental immunity provisions of K.S.A. 75-6104(k). Moreover, the sole basis for plaintiffs allegations against the public works director, James Melvin, is that he failed to comply with the terms of Reno County’s “Ice and Snow Control Implementation Policy” by failing to clear the Yoder Road bridge of ice. Thus, the sole basis of the claims against Melvin relates to actions of a governmental employee within the scope of his employment; Melvin is thereby within the scope of K.S.A. 75-6104(k).
Plaintiff relies on several cases decided in another jurisdiction which held that a determination of whether an accident was caused by weather conditions is a jury question. See Paternoster v. N.J. Transp. Dept., 190 N.J. Super. 11, 461 A.2d 759 (1983); Meta v. Township of Cherry Hill, 152 N.J. Super. 228, 377 A.2d 934 (1977); McGowan v. Borough of Eatontown, 151 N.J. Super. 440, 376 A.2d 1327 (1977). However, the cases cited by plaintiff were decided under the New Jersey Tort Claims Act, which provides: “Neither a public entity nor a public employee is liable for an injury caused solely by the effect on the use of streets and highways of weather conditions.” (Emphasis added.) N.J. Stat. Ann. 59: 4-7 (West 1982). The New Jersey statute requires that, in order for governmental immunity to exist, the weather conditions must be the sole cause of the injury. K.S.A. 75-6104(k) contains no such requirement. Moreover, the cases are factually distinguishable. In each of the New Jersey cases, the plaintiffs relied upon additional nonexempt negligent actions by the governmental defendants as additional or alternative causes of their injuries. In Paternoster, the plaintiff additionally alleged that the state department of transportation had been affirmatively negligent in stacking snow on the sides of the road, reducing visibility at the intersection where the accident occurred. 190 N.J. Super, at 13-14. Similarly, in Meta and McGowan, the plaintiffs alleged that the injuries, in addition to being caused in part by weather conditions, were also caused in part by other negligent actions by the defendant governmental entities which were not exempt under the statute. Meta, 152 N.J. Super, at 232; McGowan, 151 N.J. Super, at 443-44.
Unlike the New Jersey cases cited by plaintiff, the sole basis for her allegations in the present case stems from the accumulation of ice upon the Yoder Road bridge due to natural weather conditions. There are no allegations of affirmative negligent acts by Reno County or its public works director, James Melvin, in causing ice to accumulate on the bridge. Instead, the petition alleges that the defendants were negligent in failing to remove the ice after it had accumulated and, therefore, the defendants are immune under the provisions of K.S.A. 75-6104(k).
Accordingly, we affirm the trial court’s finding that the plaintiff failed to state a claim upon which relief could be granted. | [
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The opinion of the court was delivered by
Prager, C.J.;
This is a direct appeal by the defendant, Tim Strayer, from a jury conviction of possession of marijuana with the intent to sell (K.S.A. 1987 Supp. 65-4127b [b]). This prosecution arose following the seizure of a Cessna aircraft by United States Customs officials at the Cimarron, Kansas, airport on May 10,1985. The State’s evidence to prove defendant’s possession of marijuana was overwhelming. The Cessna 310 twin-engine plane had been equipped with an electronic transponder installed by United States Customs officials by order of a United States District Magistrate.
During the evening of May 9, 1985, air traffic controllers near Midland, Texas, picked up the transponder code and notified Customs officials. A Customs plane took off from Albuquerque, New Mexico, to intercept the suspect aircraft. Another Customs crew flew out of El Paso equipped with Forward Looking In-fared Radar (FLIR). The suspect plane was tracked north through Oklahoma and Kansas. At 12:24 a.m., air traffic controllers in Kansas City lost radar contact with the suspect plane. The last radar siting placed the plane at a position approximately 20 miles east of Garden City.
The Customs planes began to check airports near Garden City, and at 12:30 a.m., the FLIR detected a “hot,” twin-engine plane on the ground at the Cimarron, Kansas, airstrip. The radar showed two people on the airstrip moving back and forth from the airplane to a nearby field.
One Customs plane landed and blocked the Cimarron runway and the Customs officials approached the aircraft. One of the agents observed defendant Strayer kneeling in the field with his hands in the air. Strayer was surrounded by shiny, plastic-wrapped bundles. Each of the bundles later proved to contain marijuana. Altogether, a total of 827 pounds of marijuana, with a street value of $660,000, was recovered. The pilot of the plane, David Keith Johnston, ran into the field and was not found for approximately one hour. Johnston later pled guilty and the case proceeded to trial against Strayer only.
In addition to the facts set forth above, the prosecution introduced evidence of statements made by Strayer at the scene in which he admitted unloading the marijuana with the expectation that it would be picked up by a truck. The only evidence offered by defendant Strayer was the testimony of the Gray County Sheriff, who testified that the aircraft involved was owned by David Keith Johnston and not defendant Strayer. In view of the strong case presented by the prosecution, it was not surprising that the jury convicted defendant Strayer of possession of marijuana with intent to sell. The defendant appeals.
Most of the issues raised by defendant on the appeal involve rulings by the trial court in which it denied defendant’s motion to suppress all of the physical evidence in the case and all statements made by defendant Strayer on the morning he was taken into custody. The defendant maintains, in substance, that the evidence which he sought to have suppressed was obtained as a result of an illegal search and seizure in violation of defendant’s rights under the Fourth and Fourteenth Amendments to the United States Constitution and Section 15 of the Kansas Bill of Rights. Defendant argues that the acts of the United States Customs officials and the arresting officers constituted an unreasonable governmental restaint and an intrusion which infringed upon his reasonable expectations of privacy.
Defendant claims that the installation and placement of the transponder on the Cessna aircraft violated his constitutional rights. The evidence in the case showed that in January of 1985, Judge James Allen, United States Magistrate for the Western District of Tennessee, authorized the placement of a transponder for 90 days in a Beech aircraft owned by David Keith Johnston. That order was extended for another 90 days on April 11, 1985. Another transponder was subsequently placed on a Cessna aircraft owned by Johnston and it was this plane which was tracked to Cimarron, Kansas. Defendant argues that the original order authorizing the installation of a transponder in the Beech aircraft was without probable cause. We find this contention to be without merit.
The evidence was undisputed that the defendant had no independent ownership in the aircraft. Clearly, defendant had no reasonable expectation of privacy with regard to that plane. Thus, defendant has no standing to attack the validity of the original order. However, a review of the affidavit provided to the United States Magistrate, in our judgment, established probable cause to justify the installation of the transponder.
Defendant contends that subsequent orders for the installation of a transponder were not based upon probable cause. The order authorizing the installation of the transponder on the Cessna aircraft which was seized at Cimarron was based upon information from a confidential informant which contained allegations showing that Johnston and a man known only as Larry flew an aircraft to the Savannah, Tennessee, airport in October of 1984. Less than two weeks later, Larry Jeter piloted that plane and was killed when it crashed near Las Vegas with 300 pounds of marijuana aboard. Johnston then bought a Cessna plane for $48,000 in cash and registered it in a fictitious name. Shortly thereafter, Johnston traded that plane for the Cessna which eventually landed in Cimarron. Evidence in the affidavit showed the Johnston had previous drug smuggling convictions and had associated with other drug dealers. In our judgment, there was probable cause to show that Johnston had engaged in drug smuggling through the use of small aircraft and that he would do so in the future. Two federal district magistrates concluded that the affidavit was sufficient to support probable cause. In our judgment, a review of the evidentiary affidavits supports that decision in light of the totality of the circumstances.
Although we have determined that there was probable cause for the installation of the transponder on the Cessna aircraft involved, we have concluded that the undisputed evidence shows that the defendant had no reasonable expectation of privacy sufficient for him to have standing to challenge the installation of the transponder. In United States v. Alonso, 790 F.2d 1489 (10th Cir. 1986), the court used a two-step analysis to decide whether the defendant had standing. Alonso was charged with possession and importation of marijuana after a DC-7 with 20,000 pounds of marijuana and a transponder aboard landed in the Utah desert. The court looked first to see if the defendant had an ownership interest and then if use of the transponder violated his Fourth Amendment rights. The court concluded that, absent proof of ownership, Alonso had no reasonable expectation of privacy with regard to the plane. The court also ruled that the use of a transponder to track aircraft was not an impermissible invasion of Alonso’s rights. The court stated:
“The mode of inquiry employed in United States v. Knotts, 460 U.S. 276, 103 S. Ct. 1081, 75 L. Ed. 2d 55 (1983), has given rise to a bifurcated analysis which is appropriate to Alonso’s transponder claim. The Knotts court treated the installation of the transponder as totally distinct from its use in tracking a suspect. See also, United States v. Erickson, 732 F.2d 788 (10th Cir. 1984). In Knotts the Supreme court held that ‘a person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.’ 103 S. Ct. at 185. The electronic beeper used in Knotts, enabling the government to track the defendant’s automobile, revealed no more than could have been discerned by visual surveillance. As such, ‘scientific enhancement’ of visual surveillance of a suspect on public thoroughfares ‘raises no constitutional issues which visual surveillance would not also raise.’ Knotts, 103 S. Ct. at 1087.
“The rationale behind Knotts has been extended to airplanes:
“ ‘Knotts teaches us here that monitoring signals from an electronic tracking device that tells officers no more than that a specific aircraft is flying in the public airspace does not violate any reasonable expectation of privacy. Because this is so, no Fourth Amendment violation results from such public detection. The movement of an airplane in the sky, like that of an automobile on a highway is not something in which a. person can claim a reasonable expectation of privacy.’ United States v. Butts, 729 F.2d 1514, 1517 (5th Cir. 1984); see also, United States v. Bruneau, 594 F.2d 1190 (8th Cir. 1979), cert. denied, 444 U.S. 847, 100 S. Ct. 94, 62 L. Ed. 2d 61 (1979); Erickson, 732 F.2d at 790.” 790 F.2d at 1494.
In the case now before us, the only evidence in the record shows that Strayer’s codefendant, Johnston, was the owner of the plane. Strayer offered no evidence whatsoever that he had any interest in the plane and thus had a reasonable expectation of privacy. The argument of the defendant that the question of standing was not raised in district court and, therefore, cannot be raised on appeal we find to be without merit. In United States v. Hansen, 652 F.2d 1374 (10th Cir. 1981), it was held that, although the standing argument was not raised in district court, it may be raised on appeal provided the prosecution did not raise contrary assertions in the lower court and where all of the facts available in the record are sufficient to show standing or lack thereof.
The ruling of Alonso is also important in this case because it holds that the monitoring of an electronic transponder in tracking an aircraft does not violate a reasonable expectation of privacy. In the present case, Strayer was an occupant in an airplane which was flying in public airspace followed by Customs officials. In United States v. Knotts, 460 U.S. 276, 75 L. Ed. 2d 55, 103 S. Ct. 1081 (1983), it was held that a person traveling in an automobile on a public thoroughfare has no reasonable expectation of privacy in his movements from one place to another. The Alonso court noted that the rationale had been extended to airplanes and that the monitoring of signals from an electronic tracking device that tells officers no more than that a specific aircraft is flying in the public airspace does not violate any reasonable expectation of privacy. Because this is so, no Fourth Amendment violation results from such public detection. Under the circumstances in this case, we hold that the installation of the electronic tran sponder on the Cessna and the monitoring of the transponder by Customs officials did not violate the defendant’s constitutional rights or any reasonable expectation of privacy. We hold that the trial court did not err in overruling defendant’s motion to suppress the evidence taken from the Cessna aircraft. In view of our holding on these issues, it is unnecessary to consider other issues raised by defendant involving his motion to suppress.
Defendant next maintains that his rights were violated when United States Customs agents landed at the Cimarron airport and blocked the runway. Defendant argues, in substance, that the Customs officials seized him without probable cause by blocking the exit of the Cessna aircraft. There is little doubt that the defendant was seized when the Customs plane blocked the runway and restrained his freedom. State v. Epperson, 237 Kan. 707, Syl. ¶ 3, 703 P.2d 761 (1985). The question is whether this seizure was a violation of defendant’s rights.
K.S.A. 22-2402 (1) provides:
“Without making an arrest, a law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a crime and may demand of him his name, address and an explanation of his actions.”
The record in this case supports a finding that the Customs agents had a reasonable suspicion that the defendant was involved in criminal activity. Air traffic controllers first picked up the transponder signal when the plane was near Midland, Texas. Customs agents scrambled to launch a plane, partly because the signal was received so close to the Mexican border. The controllers picked up the transponder as the plane flew towards and into Kansas. Information was radioed to the Customs agents who followed. When the plane went off radar 20 miles east of Garden City, Customs agents began searching nearby airports with radar. Within minutes, they observed two figures on the ground at the Cimarron airstrip running between the plane and a nearby field. Then the agents decided to block the runway. They did so based upon a reasonable suspicion that criminal activities were taking place. Under the circumstances, we find defendant’s position on this point to be without merit.
The next point raised by the defendant on the appeal is that various statements made by the defendant after the seizure of the plane should have been suppressed under the fruit of the poisonous tree doctrine. Because the seizure was legally made, this argument has little merit. However, defendant also claims that his statements were made in violation of his Miranda rights. The admissibility of the defendant’s statements was ruled on by the trial court after a suppression hearing prior to trial. Many statements were ruled admissible, yet a few were ruled inadmissible. In State v. Brown, 235 Kan. 688, 691, 681 P.2d 1071 (1984), it was held that when a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely, voluntarily, and knowingly given, and admits the statement into evidence at the trial, the appellate court should accept that determination if it is supported by substantial competent evidence.
The record shows that when the defendant was first stopped at the Cimarron airport, Customs Agent Ward Olson asked, “Where is the other guy?” The defendant replied, “He ran that way, over towards those lights.” Olson then saw a hat on the ground and asked the defendant “Is that yours?” Defendant told Olson, “No, it belongs to the other guy.” Olson then handcuffed the defendant. The trial court admitted these statements, finding that there was no interrogation and the statements were not incriminating/ The court also held that the questions were made to locate the second suspect. Both questions were asked to gather information about the immediate scene, not to compel defendant to explain his involvement. The statements did not incriminate the defendant and, at best, they implicated Johnston. Under Kansas law, a police officer may question a suspect for safety reasons. State v. Roadenbaugh, 234 Kan. 474, 673 P.2d 1166 (1983). Here, Olson knew a second person was involved based upon radar sightings of two figures moving back and forth between the plane and the field. Olson’s questions stemmed from a concern for his safety and were, therefore, in our judgment not a form of interrogation.
After defendant was placed under arrest but not yet read his Miranda rights, Olson asked him why he was sweating so much. Olson was concerned about defendant’s health. Defendant replied, “It’s hard work unloading all that stuff. ... You know, we got it all out of there in just a few minutes.” Olson immedi ately read the defendant his rights. The trial court admitted the statement holding that there was no interrogation and that Olson was clearly concerned about defendant, who was middle-aged and overweight. In our judgment, that ruling was not error.
Once the defendant was read his rights, he began questioning the officers. He asked, “How did you get on us? . . . Did someone snitch on us?” A review of the record has caused us to conclude that a waiver of his Miranda rights was shown from defendant’s own acts, words, and surrounding circumstances. Defendant stated that he understood his rights and could not discuss the specifics of his case with police, but that he wanted to ask some questions. He then engaged in a lengthy conversation with police, occasionally making incriminating statements. Under all of the circumstances, we hold that the trial court did not err in admitting the defendant’s statements at the scene.
The next point raised by defendant is that the trial court erred in failing to disqualify Judge Jay Don Reynolds as the presiding judge in the case. Defendant complained that the judge had a social relationship with the prosecuting attorney. Defendant also complained of various rulings of Judge Reynolds during the course of the suppression hearing and alleged that the judge repeatedly interrupted defense counsel and used a sarcastic tone of voice. Judge Reynolds denied the defendant’s first motion to disqualify, and the question of disqualification was transferred to Judge Don Smith, the administrative judge. Judge Smith then denied the motion on the basis of the insufficiency of the affidavits. Practically all of the objections made to Judge Smith had to do with previous rulings or decisions by Judge Reynolds during the course of the suppression hearing. Under K.S.A. 1987 Supp. 20-311d such allegations are not deemed legally sufficient for any belief that prejudice or bias exists.
Defendant argues that the proper standard for judicial disqualification is subjective, turning on whether the party reasonably believes that he cannot get a fair trial before the judge. The more recent cases on this issue hold that the standard to be applied in considering judicial disqualification is whether the charge of lack of impartiality is grounded on facts that would create reasonable doubt concerning the judge’s impartiality, not in the mind of the judge himself, or even, necessarily, in the mind of the litigant filing the motion, but rather in the mind of a reasonable person with knowledge of all the circumstances. State v. Griffen, 241 Kan. 68, 72, 734 P.2d 1089 (1987). The defendant’s argument that a subjective test should be applied is clearly without merit.
Using the Griffen analysis, we have concluded that Judge Smith correctly denied the motion to disqualify Judge Reynolds. A review of the record shows that Judge Reynolds was concerned about time delays, and occasionally urged counsel to complete their questioning. In our judgment, he acted fairly. As to Judge Reynolds’s social acquaintance with the prosecutor, we find no basis for disqualification. In a rural judicial district, it is to be expected that the district judges will be well acquainted with the members of the bar, including the prosecutors. There was no evidence whatsoever that Judge Reynolds was biased as a result of his acquaintance with the prosecutor. We hold that the affidavits were not legally sufficient to show bias or prejudice on the part of Judge Reynolds.
Defendant’s next point is that the trial court erred in permitting the State to introduce evidence of defendant’s prior conviction in the State of Texas. The State’s evidence showed that the defendant pled guilty to engaging in criminal activity in February 1982, in Hale County, Texas. In that case, it was shown that Strayer was the “kingpin” and “financier” behind an operation which brought 620 pounds of marijuana into Texas on board a small aircraft. The plane landed at night at a small municipal airport. By the time police discovered the operation, the marijuana had been loaded into a van. The defendant did not pilot the plane and was not present when the operation was discovered. However, the prosecution’s evidence showed that the defendant financed the operation. We hold that this evidence was properly admissible to show the defendant’s intent under our decision in State v. Faulkner, 220 Kan. 153, Syl. ¶ 10, 551 P.2d 1247 (1976). The possession of marijuana by the defendant was undisputed. Evidence of the prior conviction in a drug case was admissible to show defendant’s intent to possess and also his intent to sell marijuana for a profit. We find no error in the trial court’s ruling.
Defendant next contends that the trial court erred in failing to declare a mistrial after an attempt at jury tampering occurred. The record shows that Judge Reynolds’s secretary was offered a bribe and threatened during the trial. One of the jurors was offered a bribe and reported it to the court. The trial judge then spoke with each member of the jury individually, without revealing to them what had occurred. He specifically asked each juror if he was still able to deliberate fairly and come to an impartial verdict, and each said yes. The judge then sequestered the jury and ordered the defendant into custody until a verdict was reached. Defendant argues that the trial court erred in not immediately declaring a mistrial. The trial judge took positive steps to prevent the jury from being tainted and removed the juror. An alternate juror took the place of the removed juror. The jury was never advised that jury tampering had been attempted. After all of these steps were taken, counsel for the defendant did not ask for a mistrial and agreed the trial should continue. In his pro se brief, the defendant argues that the refusal of his defense attorney to move for a mistrial constituted incompetency of counsel. This point was never raised in the trial court and will not be considered on this appeal. Under all of the circumstances, we hold that the trial court handled the attempted jury tampering in a proper manner and there is no showing that the jury was in any way influenced by it. We find no error.
The final point raised by defendant is that the trial court erred in sentencing defendant without his counsel being present. The sentencing hearing was bifurcated. At the first hearing, defendant appeared with counsel and the court heard testimony about the defendant’s prior criminal record. The next day, defendant appeared but his counsel refused to appear apparently due to a dispute over attorney fees. Judge Reynolds asked defendant what he wished to do and the defendant apologized to the court and stated, in substance, that if the court wanted to continue with the sentencing it could do so. The court imposed sentence stating specifically that the defendant would be given an opportunity to secure a lawyer and file a motion for reconsideration. Defendant agreed. The court then allowed the defendant to explain his involvement in the prior crime. The law is clear that an accused has a constitutional right to counsel at the sentencing stage in a criminal proceedings. In re Habeas Corpus Application of Gilchrist, 238 Kan. 202, 210, 708 P.2d 977 (1985). The question presented here is essentially one of waiver to have counsel present for the sentencing. This is to be determined by the factual circumstances of each case. Effective waiver of counsel requires that the defendant be informed or have knowledge of his right to counsel. State v. Daniels, 2 Kan. App. 2d 603, 586 P.2d 50 (1978).
In the case now before us, the judge made no explicit statement to the defendant about his right to have an attorney present. However, the evidence is clear that the defendant knew his rights. He had secured several different attorneys during the course of the litigation. He had been involved in legal proceedings before, as evidenced by his prior record. This circumstance was noted in In re Habeas Corpus Application of Gilchrist, 238 Kan. 202. In the present case, defendant had previously had an extension of time granted so that defendant could have his out-of-state counsel present. Under all the facts and circumstances here, we have concluded that the defendant’s statements to the court that he had no objection to proceeding with sentencing was a knowing and intelligent waiver of his right to have counsel at sentencing. Defendant was afforded an opportunity to file a motion for reconsideration of sentencing if he chose to do so. He filed no such motion. The defendant has in no way been prejudiced by the absence of counsel.
For the reasons set forth above, the judgment of the district court is affirmed.
Lockett, J., not participating. | [
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The opinion of the court was delivered by
Miller, J.:
Michael L. McGlothlin pled guilty to charges of attempted possession of cocaine, a Class D felony, K.S.A. 1986 Supp. 21-3301 and K.S.A. 65-4127a, and possession of drug paraphernalia, a Class A misdemeanor, K.S.A. 65-4152. The trial court imposed sentences of two to seven years for the felony and six months for the misdemeanor, to run concurrently. The court also imposed a fine of $2,500 for the felony and $1,250 for the misdemeanor. McGlothlin appealed from the sentences and fines imposed. The Court of Appeals affirmed in an unpublished opinion filed August 20, 1987. We granted review.
Defendant first contends that the trial court abused its discretion in sentencing him to a term of incarceration in excess of the statutory minimum without properly considering his individual characteristics, circumstances, needs, and potentialities. The least possible sentence for the felony offense is one to five years; the most severe sentence possible is three to ten years. K.S.A. 1986 Supp. 21-4501(d)(2). The misdemeanor is punishable by confinement in the county jail for from one day to one year. K.S.A. 21-4502(l)(a). The sentences imposed by the trial court were halfway between the minimum and the maximum sentences possible. The court stated no reasons for imposing sentences above the minimum.
K.S.A. 1986 Supp. 21-4601 gives guidance to the sentencing courts in construing the sentencing statutes, and K.S.A. 21-4606 sets forth criteria, including some seven factors which, while not controlling, the court should consider in fixing the “lowest minimum term which, in the opinion of said court, is consistent with the public safety, the needs of the defendant, and the seriousness of the defendant’s crime.”
This court has held that it is the better practice, when the sentence exceeds the minimum, for the trial court, on the record, to make a detailed statement of the facts and factors considered by the court in imposing sentence. However, a trial court’s failure to make such a detailed statement does not necessarily demonstrate an abuse of discretion; each case must be considered on its facts. State v. Bennett, 240 Kan. 575, 578, 731 Kan. 284 (1987); State v. Harrold, 239 Kan. 645, 650, 722 P.2d 563 (1986); State v. Richard, 235 Kan. 355, 366, 681 P.2d 612 (1984). Also, it is a familiar rule that a sentence which is within the statutory limits will not be disturbed on appeal provided it is within the realm of discretion on the part of the trial court and not a result of partiality or prejudice. State v. Hamilton, 240 Kan. 539, 540, 731 P.2d 863 (1987) (citing State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 [1986]). There is no suggestion here of partiality or prejudice.
The record before the trial court at the time of sentencing included the presentence report, a report from the Sedgwick County Community Corrections Department, and reports from counselors. While there were many things in defendant’s favor, the reports indicated drug usage and minor offenses over a period of years, lack of motivation to quit drug use, failure to comply with the treatment requirements of his most recent drug offense probation, and failure to attend probation report meetings. After a thorough review of the record, we find no abuse of discretion in imposing sentence. The sentences could have been much more lenient, or could have been much harsher. We find no reason to disturb the sentences imposed.
We turn to the final issue, whether the trial court erred in imposing both imprisonment and monetary fines. The statutes involved read in applicable part:
K.S.A. 1986 Supp. 21-4503:
“Fines. (1) A person who has been convicted of a felony may, in addition to or instead of the imprisonment authorized by law, be sentenced to pay a fine which shall be fixed by the court as follows:
“(b) For a class D or E felony, a sum not exceeding $10,000.
“(2) A person who has been convicted of a misdemeanor may, in addition to or instead of the confinement authorized by law, be sentenced to pay a fine which shall be fixed by the court as follows:
“(a) For a class A misdemeanor, a sum not exceeding $2,500.
“(3) As an alternative to any of the above fines, the fine imposed may be fixed at any greater sum not exceeding double the pecuniary gain derived from the crime by the offender.”
K.S.A. 1986 Supp. 21-4603:
“Authorized dispositions. . . .
“(2) Whenever any person has been found guilty of a crime, the court may adjudge any of the following:
“(a) Commit the defendant to the custody of the secretary of corrections or, if confinement is for a term less than one year, to jail for the term provided by law;
“(b) impose the fine applicable to the offense; [or]
“(f) impose any appropriate combination of (a), (b), [or other subsections].”
K.S.A. 1986 Supp. 21-4607:
“Criteria for imposing fines. . . .
“(2) The court shall not sentence a defendant to pay a fine in addition to a sentence of imprisonment, probation or assignment to a community correctional services program unless:
“(a) The defendant has derived a pecuniary gain from the crime; or
“(b) the court is of the opinion that a fine is adapted to deterrence of the crime involved or to the correction of the offender.
“(3) In determining the amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose.”
The first two statutes, 21-4503 and 21-4603, authorize the trial judge to impose both a sentence and a fine upon one who has been convicted of either a felony or a misdemeanor. The third statute, 21-4607, however, limits the court’s authority to impose a fine in addition to imprisonment. The court cannot automatically impose both imprisonment and a fine; to do so, the court must find that the defendant profited from the crime, or that a fine is adapted to deterrence or to correction. The court must take into consideration the financial resources of the defendant and the nature of the burden that payment of the fine will impose.
The Court of Appeals analogized the duty of the trial court to state its findings under 21-4607(2) with the “better practice” for the sentencing court to state on the record the 21-4606 and other factors which it took into consideration before imposing sentence. The Court of Appeals said:
“The court in State v. Bennett, 240 Kan. at 578, held a sentencing court’s failure to detail the application of the factors set out in 21-4606 does not, in and of itself, indicate an abuse of discretion at sentencing. Similarly, although it is preferable to have the court’s considerations and rationale in imposing both a prison sentence and fine stated on the record, the court’s failure to do so does not, in and of itself, demonstrate an abuse of discretion.”
We think the court’s reliance upon the cases concerning 21-4606 is in error. That statute lists a number of factors which a court should take into consideration in sentencing, but expressly states that those factors are not exclusive. In comparison, 21-4607(2) lists two factors which are exclusive; the sentencing court must find one or the other of those factors before imposing a fine upon one who has been sentenced to imprisonment. In the usual sentencing record, many of the 21-4606 factors are ordinarily covered by the trial record, the statements of counsel at time of sentencing, and the presentence report. In regard to the 21-4607 factors, whether defendant has derived a pecuniary gain may be disclosed in the record, but the opinion of the court as to whether a fine is adapted to deterrence of the crime or to the correction of the offender is not reflected unless the court makes a statement on the record disclosing its thoughts on the matter. Also, the defendant’s financial resources and the nature of the burden that the payment of a fine will impose are ordinarily not shown. In the case before us, it is clear that the defendant did not derive a pecuniary gain from the crime. The record is silent as to whether the substantial fines imposed would deter commission of the crime involved or would be adapted to the correction of the defendant. As to defendant’s financial resources, the record shows that he was employed for some years at slightly more than minimum wage prior to his conviction. He was represented by the public defender in the trial court, and by a public appellate defender on appeal. Under the circumstances, we hold that the trial court erred in failing to state its findings, as required by K.S.A. 1986 Supp. 21-4607(2), before levying fines in addition to imposing imprisonment on this defendant.
The statute requires and we hold that where the defendant is convicted of a felony or a misdemeanor and is sentenced to imprisonment either in the county jail or in the custody of the secretary of corrections and a fine is to be imposed, the judge must make specific findings pursuant to 21-4607(2) before imposing a fine. The judge must also state on the record that he or she has taken into account the financial resources of the defendant and the nature of the burden that payment of the fine will impose, as required by 21-4607(3).
For the reasons stated, the fines imposed upon Michael L. McGlothlin are vacated and that portion of the judgment is reversed; otherwise, the judgment of the trial court, including the sentences imposed in this case, is affirmed. | [
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The opinion of the court was delivered by
Herd, J.:
This is a criminal action. Walter Cummings appeals his conviction of second-degree murder, K.S.A. 21-3402.
The relevant facts are as follows: On Christmas Eve, a friend of Walter Cummings’ returned a handgun borrowed from Cummings. Cummings put the gun in his belt. Later that evening, Cummings and his girlfriend, Wanda Sanders, stopped by the apartment of J. C. Watts to wish him Merry Christmas. On the first trip, no one was home, but on the second trip, they found the apartment full of revelers. The group consisted of J. C. Watts and his girlfriend and Larry and Sherman Hale and their girlfriends. That group, together with Cummings and Wanda, filled the small apartment. They had all been drinking beer and whiskey and were intoxicated. The Hale brothers were getting belligerent. They took their resentments out on Walter Cummings by questioning him about his personal life in a very unfriendly manner. One of them asked if he was a “loner.”
Wanda had gone to the bathroom. While there she heard loud, angry voices directed to Cummings. This irritated her. She returned from the bathroom and challenged Larry Hale’s right to ask Cummings such questions. Larry Hale responded by saying freedom of speech gave him the right. Wanda then expressed her desire to leave. Larry Hale asked her to take “this pussy” (Cummings) with her. At this juncture, Sherman Hale joined the fray. He ordered Wanda to sit down, to act like a lady and not like a man or a “butch,” and to stay out of the men’s conversation. Sherman further stated he could not tell if Wanda was a man or a woman. This bothered Wanda. She responded by walking toward Sherman and removed her hat and jacket to prove she was a woman. Sherman gave her a shove into the corner of the room. Cummings stepped between Sherman and Wanda and raised his arms above his head to prevent Sherman from hitting Wanda. While doing this, he was hit in the head with a beer can Sherman was holding. The blow knocked Cummings into the near bedroom. He blacked out for a few seconds. The bedroom was dark. When Cummings came to, he saw two men coming toward him out of the light. He felt liquid on his face. He thought it was blood. He pulled his gun from his belt and asked the approaching men to stop; he fired once, paused, then fired twice more. The Hale brothers both fell from the gunshots. Sherman was hit in the face and survived. Larry was shot in the side of the leg and in the back of the head. He was killed.
Wanda testified she picked herself up from the corner of the front room where Sherman had knocked her. She saw Sherman go in the bedroom and kick the feet and legs of the unconscious Cummings. Wanda told Sherman to stop. Larry Hale, who was following Sherman Hale into the bedroom, shoved her into the bathroom. She stated she heard gunshots as she fell.
J. C. Watts left to call the police. Cummings and Wanda, hysterical and shaky, left in their car, drove across the river on 7th Street, and threw the gun into the river as they crossed. They drove to the home of J. D. Bums, a friend of Cummings’. Cummings told J. D. what had happened, stating he had fired in self-defense. Also, he had J. D. examine his head for possible injury. No injury was found. After a discussion on Cummings’ course of action, he decided to go home and wait for the police.
Cummings was charged with aggravated battery, K.S.A. 21-3414, and second-degree murder, K.S.A. 21-3402. He was acquitted of aggravated battery and convicted of second-degree murder.
The first issue is whether the trial court denied Cummings’ due process and Sixth Amendment right to call witnesses on his behalf by refusing to allow J. D. Burns to testify.
At the pretrial conference, Cummings did not inform the State he intended to call Burns as a witness, though he had agreed to give such notice. We have held parties are generally bound by agreements made at pretrial conferences held pursuant to K.S.A. 22-3217. State v. Bright, 229 Kan. 185, 190, 623 P.2d 917 (1981). The decision whether to allow previously undisclosed witnesses to testify lies within the sound discretion of the trial court. 229 Kan. at 192.
Despite these general rules, Bright also held automatic exclusion to be error. 229 Kan. at 191. Bright gives rules to be followed by trial courts considering whether to allow a defendant to call a previously undisclosed witness. In order for a trial court’s discretion to be deemed sound, it must:
“(1) Inquire why the witness or witnesses were not disclosed;
“(2) determine when the witness first became known to defense counsel, and whether the nondisclosure was willful or inadvertent;
“(3) determine whether the proposed testimony is trivial or substantial, whether it goes to an important or minor issue;
“(4) determine the extent of prejudice to the State, and the importance of the witness to the defense;
“(5) determine any other relevant facts;
“(6) grant the State a recess if prejudice can be avoided or reduced by such action; and
“(7) avoid imposing the severe sanction of prohibiting the calling of the witness if at all possible. This should be viewed as a last resort.” 229 Kan. at 194.
Cummings’ attorney told the court Burns would corroborate Cummings’ testimony that he went to Burns’ house after the shooting and asked him to see if his head was cut. The defense attorney stated Burns was not an important witness, and the State could talk to him in the hallway before he testified. The State argued Burns was going to support Cummings’ claim of self-defense, which made him a very important witness.
An additional problem was that Burns had sat through the previous day’s trial. Cummings’ attorney argued this was not a problem because the testimony concerned the shooting, whereas Burns would only testify about what happened after the shooting. However, Burns’ testimony would be used to prove the truth of Cummings’ testimony that he believed his head had been injured before the shooting. This argument is irrelevant since there was no order segregating witnesses.
It appears both the State and defense knew of Burns’ existence because Cummings mentioned him in the statement he gave the day after the shooting. The defense attorney’s failure to list Burns as a witness was an inadvertent oversight.
Burns’ knowledge of Cummings’ statement to him shortly after the shooting is a highly relevant fact going to intent. The question is whether Cummings knowingly and intelligently waived his constitutional right to call witnesses in his behalf and if the trial judge abused his discretion in refusing to admit the testimony. See Bright, 229 Kan. at 194. Cummings now argues the testimony would have been important corroboration of his explanation for his flight from the scene as well as his belief he shot in self-defense. This was not argued to the trial court, however, neither during the trial nor in Cummings’ motion for a new trial.
We hold it was error for the trial court not to have questioned Cummings’ attorney more closely as to the circumstances of the nondisclosure and possible alternatives to total prohibition of Burns’ testimony. However, in light of the fact the same testimony Burns would have given was elicited from Wanda, thus making Burns’ evidence merely cumulative, we find the error harmless.
The next issue is whether Cummings’ right to a fair trial was denied because the prosecutor misstated a fact in closing argument.
During closing argument, the prosecutor argued that even if the jury believed Cummings when he said Sherman was an aggressor, his testimony did not show Larry to be an aggressor. He argued Larry simply stepped to the door to push his pregnant girlfriend out of the gunfire when he was “shot in the back of the leg and back middle of his head.” Dr. Van Thulenar had clearly stated the bullet to Larry’s leg both entered and exited the front of the thigh. The prosecutor then repeatedly emphasized the shot to the back of the head, but did not again mention a shot to the back of the leg.
Defense counsel did not object and seemed unaware of the misstatement as he gave his rebuttal. In Instruction No. 2, the court reminded the jury remarks made by counsel not supported by the evidence should be disregarded.
The stating of a fact contrary to the evidence is clearly improper. State v. Bradford, 219 Kan. 336, 339-40, 548 P.2d 812 (1976). Cummings cites State v. Wilson, 188 Kan. 67, 360 P.2d 1092 (1961), in support of his contention the prosecutor’s incorrect statement was so prejudicial to his claim of self-defense the trial court should have stopped the argument sua sponte. Wilson, however-, involved a prosecutor who tried to inflame the passions of a jury in a trial for the violent rape of a young girl by reading from an account of a controversial case where a similar young victim lost her mind. The defense attorney objected to the reading of the account but was overruled. 188 Kan. at 71.
State v. Gutekunst, 24 Kan. 252, 254 (1880), announced in dicta that a trial court should not wait for an objection when an attorney'indulges in “vituperation and abuse” based on facts not in evidence.
Defense counsel did not object during trial in State v. Netherton, 128 Kan. 564, 279 Pac. 19 (1929), to closing remarks about the defendant’s wealth and public knowledge of his guilt. Counsel did, however, object before the jury finished its deliberations. This court found because it was still possible at that point to instruct the jury the trial court should have admonished the jury to disregard the remarks. 128 Kan. at 572-75. In the case before us, defense counsel did not object even in his motion for new trial.
Cummings cites two cases, Berger v. United States, 295 U.S. 78, 79 L. Ed. 1314, 55 S. Ct. 629 (1935), and Mason v. United States, 719 F.2d 1485 (10th Cir. 1983), which hold statements made in closing argument can be plain error. Both of these cases involved prosecutors giving their personal opinions. In Mason, the Court found the remarks not grave enough to be reversible error.
None of the cases cited support a holding of reversible error. While the prosecutor’s statement was inaccurate and thus improper, the misstatement was not one of personal opinion; it was not repeated, did not reach the level of abuse, and was not contemporaneously objected to. State v. Bird, 238 Kan. 160, 179, 708 P.2d 946 (1985). This issue is without merit.
Appellant next raises three separate areas wherein he claims error was made in instructions to the jury. He made no objections to the instructions at trial or in his motion for a new trial. K.S.A. 22-3414(3) precludes a party from claiming instruction error when not objected to at trial, unless the instruction is clearly erroneous. See State v. Scott, 210 Kan. 426, 434, 502 P.2d 753 (1972). Let us examine the challenged instructions under this standard.
The court first instructed the jury on the elements of second-degree murder. The court instructed the jury it must decide each charge separately, uninfluenced by its decision on any other charge. The court stated it did not mean in any way to indicate a preferable verdict. The court stated the jury could find Cummings guilty of second-degree murder, voluntary manslaughter, or not guilty. In Instruction No. 9, it stated: “When there is a reasonable doubt as to which of two or more offenses the defendant is guilty, he may be convicted of the lesser offense only.”
The court continued on to the elements of voluntary manslaughter, in Instruction No. 10, by using the transition statement recommended by PIK Crim. 2d 56.05: “If you cannot agree that the defendant is guilty of murder in the second degree, you should then consider the lesser included offense of voluntary manslaughter.”
Cummings contends Instructions No. 9 and No. 10 contradict each other. He argues the transition statement in Instruction No. 10 might cause the jury to stop after considering second-degree murder without considering the lesser charge. Cummings’ reliance on State v. Trujillo, 225 Kan. 320, 590 P.2d 1027 (1979), as support for error is misplaced. In giving Instruction No. 9, the trial court did what Trujillo required.
The trial court’s instructions adhere to both Trujillo and the Pattern Instructions for Kansas. They are not clearly erroneous. Thus Cummings’ lack of objection precludes him from claiming error. K.S.A. 22-3414(3).
Cummings next argues Instruction No. 16 could have coerced an undecided juror into going along with the majority in order to be “fair and reasonable.” The instruction given by the trial court follows, in all material respects, PIK Civ. 2d 1.07 and the instruction discussed in State v. Hall, 220 Kan. 712, 556 P.2d 413 (1976). Hall held such an instruction not to be coercive, but rather “a fair statement concerning . . . the proper attitude which the jurors should maintain.” 220 Kan. at 718. In encouraging a unanimous verdict, the instruction does not favor the State over the defendant: the jurors might just as easily reach a unanimous verdict for the defendant.
The court also, in Instruction No. 16, told the jurors that each must vote “according to his honest judgment” and predicated the duty to try and reach a unanimous agreement upon the ability to “do so without violence to your individual judgment.”
This instruction also does not reach the clear error required by K.S.A. 22-3414(3) where a contemporaneous objection is not made.
Cummings’ final issue is that the trial court erred by not instructing the jury on involuntary manslaughter as a lesser included offense of second-degree murder. He argues the jury could have found his shooting to be manslaughter, as a lawful act (self-defense) done in an unlawful or wanton manner, without intent to kill. See K.S.A. 1986 Supp. 21-3404; State v. Gregory, 218 Kan. 180, 185-86, 542 P.2d 1051 (1975).
Appellant’s lack of objection at trial is not the obstacle it was to his previous arguments. Here, the trial court had an affirmative duty to instruct on all lesser included offenses supported by the evidence. K.S.A. 1986 Supp. 21-3107(3); State v. Marks, 226 Kan. 704, 713, 602 P.2d 1344 (1979); State v. Weyer, 210 Kan. 721, 725-27, 504 P.2d 178 (1972).
The question now to be considered is whether the evidence justified a manslaughter instruction. State v. Davis, 236 Kan. 538, 542, 694 P.2d 418 (1985). The evidence supporting such an instruction must be considered in the light most favorable to Cummings. State v. Royal, 234 Kan. 218, 221-22, 670 P.2d 1337 (1983).
It need not be strong evidence; indeed, it may be weak and based only on the testimony of the defendant. State v. Clark, 218 Kan. 18, 21, 542 P.2d 291 (1975). The test is whether the evidence might reasonably cause a jury to convict the defendant of the lesser charge. State v. Crispin, 234 Kan. 104, 109, 671 P.2d 502 (1983). See Note, The Doctrine of Lesser Included Offenses in Kansas, 15 Washburn L.J. 40, 51 (1976).
In State v. Childers, 217 Kan. 410, 417, 536 P.2d 1349 (1975), this court held it was error not to instruct on involuntary manslaughter where a defendant shot an unarmed man in the dark and repeatedly kept shooting at the victim as he ran away. 217 Kan. at 411-12, 417. The defendant testified he did not intend to kill the victim; only to scare him away. We held this evidence was sufficient to require the instruction. We noted the defendant in Childers had repeatedly testified to his lack of intent. Such repeated testimony differs from this case in which there is simply a lack of testimony that Cummings intended to kill Larry.
This court held in State v. Garcia, 233 Kan. 589, 608-09, 664 P.2d 1343 (1983), that a defendant is required to give positive testimony for the express purpose of proving a version of the shooting which differs from the version put forth by the State. In Garcia, however, the defendant relied on an insanity defense. 233 Kan. at 609-10. See also State v. Marks, 226 Kan. 704 (defendant’s theory was that he was not present during the felony murder).
This >s not one of those cases where the defendant’s evidence supports a clear case of either guilt or innocence, as would be required by an alibi or insanity defense. Rather, Cummings pled self-defense, and his testimony supports a possible finding he may have acted in self-defense, though in a wanton or unreasonable manner.
First, there is some evidence Cummings feared serious injury. Although neither Cummings, J. D. Burns, nor a police officer could find any injury to Cummings’ head, there was some testimony that he was struck by Sherman Hale’s full beer can. Cummings testified he thought Sherman hit him with the can. Wanda said she saw it. Both Larry’s girlfriend, and more reluctantly, Sherman, admitted there was a possibility the beer can hit Cummings when it “flew” out of Sherman’s hand as Wanda hit him. Although it was beer rather than blood Cummings felt on his head, there is justification for his stated fear his “skull was busted.”
But, there was some contradictory testimony. Sherman’s girlfriend said Larry was in the bedroom fighting with Sherman, Wanda, and Cummings. Later she changed her story completely, agreeing that only Sherman had been in the bedroom with Cummings and Wanda, while Larry stayed in the living room and only approached the doorway just before he was shot.
Wanda vai'iously testified Sherman was in the room kicking Cummings while Larry attempted to enter; Larry was in the room kicking Cummings while Sherman attempted to enter; or both were in the room kicking Cummings.
Dr. Van Thulenar testified Larry had an injury to his finger and bruises on his face which were not more than a couple of hours old when he died. There was no evidence Larry had these injuries before the fight. This is some evidence Larry participated in the altercation.
Cummings only remembers coming to, feeling the liquid running down his face, and seeing two male figures rushing toward him. He does not remember fighting Larry. He testified he yelled “stop” before the first shot and before the second shots. Cummings does not deny the shooting was intentional, but he argues on appeal that the killing was unintentional. Thus, his actions might be found to be involuntary manslaughter. State v. Staab, 230 Kan. 329, 340, 635 P.2d 257 (1981).
The State argues Cummings had no reason to fear Larry once he shot him in the leg. But Cummings testified both men kept coming after the first shot. The doctor was not able to tell which shots struck first, but did say they were fired in close succession.
We hold there is sufficient evidence of self-defense to require an instruction on involuntary manslaughter as a lesser included offense of second-degree murder. State v. Childers, 217 Kan. 410.
The judgment of the trial court is reversed and this case is remanded for a new trial.
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The opinion of the court was delivered by
Holmes, J.:
Rural Gas, Inc., (RGI) appeals from an order granting summary judgment to North Central Kansas Production Credit Association, Concordia, Kansas, (PCA) in a declaratory judgment action filed by RGI pursuant to K.S.A. 60-1701 et seq. PCA cross-appeals from a dismissal, pursuant to K.S.A. 60-212(b)(6), of its counterclaim for punitive damages.
This case involves a dispute between two creditors over cash payments paid on behalf of Hansen Farms, a Kansas farm partnership, by the United States Department of Agriculture through the Agricultural Stabilization and Conservation Service (ASCS). The sum of $42,721.75, for wheat and feed grain deficiency payments, was paid to RGI pursuant to ASCS assignments executed by the Hansen Farms partners. PCA contended it had a prior perfected security interest in the ASCS payments and that it should have received the payments. RGI initiated this declaratory judgment proceeding after PCA threatened to sue RGI for conversion. RGI sought, inter alia, a determination that it was entitled to the payments under the terms of the ASCS assignments and pursuant to federal law. PCA counterclaimed, alleging RGI had converted moneys in which PCA, under Kansas law, had a prior perfected security interest, and seeking actual and punitive damages. The district court granted PCA’s motion for summary judgment on the question of whether RGI was liable for actual damages for conversion, but held as a matter of law that PCA was not entitled to punitive damages under the circumstances of this case.
There is no significant dispute as to the material facts relevant to RGI’s appeal. PCA did not controvert alleged facts as submitted by RGI in its motion for summary judgment except as noted in number 4 below. The facts, as submitted, read:
“I. On or about December 1,1983, Hansen Farms, an apparent partnership of members of the Hansen family, made, executed and delivered to PCA their renewal promissory note in the face amount of $1,626,344.00, to mature on December 1, 1984.”
“2. On December 1, 1983, Hansen Farms was indebted to PCA in the principal sum of $553,685.44, together with accrued interest in the sum of $91,573.56 by reason of a promissory note dated May 19, 1983, which note matured on that date [December 1, 1983].”
“3. PCA made various cash advances to the Hansens after December 1, 1983 and up to December 27,1984, primarily for the purchase of livestock as shown on the PCA/Hansen Ledger Sheets 237-257.”
“4. Prior to December 1, 1983, Hansen Farms had not granted PCA a security interest in federal government farm program payments. However, concurrently with the renewal of their pre-existing indebtedness, Hansens granted PCA a security interest in:
‘Contract rights & receivables in all government farm program payments which would include but is not limited to: Pay-In-Kind (PIK) program, and Deficiency Payments, Government Storage Payments & Proceeds from CCC loans on commodities.’
This security interest was ‘. . . to secure payment and performance of all obligations, indebtedness and liabilities of any kind, whenever and however incurred, absolute or contingent, due or to become due, now existing or hereafter arising of the Debtor [Hansens] to the Secured Party [PCA], including the liabilities arising because of funds advanced at the option of Secured Party.’ ”
[PCA responded as follows: “4. Controverted. The loan of the Hansens was renewed on December 1, 1983. At this time, the quoted language was included in the Security Agreement. For some years prior to 1983, ASCS payments had not been a major income item to farmers and were not taken for collateral.”]
“5. PCA made its last cash advance to the Hansens pursuant to the terms and conditions of the December 1, 1983, promissory note and security agreement on December 27, 1984, in the amount of $5,150.00 to enable the Hansens to purchase feed for their livestock operation.”
“6. PCA made no further cash advances to the Hansens after December 27, 1984, and on or about January 14, 1985, informed agricultural suppliers and vendors that PCA would extend no further credit to the Hansens to finance their crop production or livestock operation during the year 1985 or thereafter.”
“7. After being denied further extensions of credit by PCA, and in an effort to produce 1984 and 1985 crops, the Hansens approached RGI to request that agricultural chemicals, fertilizers and propanes be sold to them. Billy Hansen, Dennis Hansen and Randy Hansen met with Max L. Ball, President of RGI, and David J. McMullen, County Executive Director of the Republic County ASCS Office, to discuss a method by which the Hansens could purchase agricultural inputs for the making of such crops from RGI using ASCS deficiency payments for the Hansens’ participation in wheat and feed grain programs.”
“8. On March 27, 1985, the Hansens executed three Form ASCS 36 assignments in which they assigned the rights to receive deficiency payments on 1984 and 1985 wheat and feed grain programs to Rural Gas, Inc. in payment of agricultural inputs to be provided to them by RGI.”
“9. Prior to executing these assignments, McMullen of ASCS explained to the Hansens and to Ball that no portion of the program payments could be used to pay or secure any of the Hansens’ pre-existing indebtedness to a creditor, but that such proceeds could be used, under ASCS regulations, only to pay for propane, agricultural chemicals and fertilizers necessary for the making of the crops to which the deficiency payments related.”
“10. After receiving the assignments, RGI supplied to the Hansens, propane, agricultural chemicals and fertilizers to make the 1984-85 wheat and feed grain crops to which the deficiency payments related.”
While the renewal note to PCA dated December 1, 1983, is in an amount of $1,626,344.00, referred to in the note as the “Original Commitment,” it further recites that the sum of $553,685.44 is “a renewal of an existing indebtedness.” In addition, answers to interrogatories reveal that on December 1, 1983, $91,573.56 was due PCA in interest on the past due indebtedness for a total amount of $645,259.00 owed by Hansen Farms to PCA on December 1, 1983.
RGI admitted during discovery that it made no investigation of public records to determine whether Hansen Farms had conveyed to PCA or anyone else a security interest in its government program payments. RGI also admitted it had actual knowledge that PCA claimed a security interest in the Hansen Farms government program payments no later than April 25, 1985, when PCA’s counsel communicated that information to RGI’s general manager by telephone and a followup letter. RGI nevertheless received and retained cash payments totaling approximately $43,000 pursuant to the ASCS assignments between mid-April 1985 and early 1986.
RGI raises three issues on appeal:
1) Whether a producer’s property interest in federal farm program payments, and specifically a producer’s right to assign or encumber such program payments as security, is to be determined by federal rather than state law;
2) whether 16 U.S.C. § 590h(g) (1982) and 7 C.F.R. § 709.3(a) (1988) limit a producer’s right to assign or encumber as security the producer’s right to receive federal farm program payments, and if so, to what extent; and
3) whether the district court erred in defining the term “preexisting indebtedness” as used in 16 U.S.C. § 590h(g) and 7 C.F.R. § 709.3(a), which prohibit the assignment of certain federal farm program payments to pay or secure preexisting indebtedness.
At oral argument before this court, and in the briefs, the parties agree that PCA has met the statutory filing requirements under the Kansas Uniform Commercial Code (UCC), K.S.A. 84-1-101 et seq., and that if the UCC controls, the appeal of RGI fails. The parties also agree that the ASCS assignments executed by the Hansen Farms partners were properly executed and filed, and that if the federal statutes and regulations control, then RGI should prevail on its appeal.
The wheat and feed grain deficiency payments involved in this action are authorized by 7 U.S.C. 1444d (1982) and 16 U.S.C. § 590h(g), which is specifically incorporated in the former statute by reference. The particular section of the statutes with which we are involved, 16 U.S.C. § 590h(g), provides:
“(g) Assignment of payment; procedure for assignment; rules and regulations.
“A payment which may be made to a farmer under this section, may be assigned, without discount, by him in writing as security for cash or advances to finance making a crop, handling or marketing an agricultural commodity, or performing a conservation practice. Such assignment shall be signed by the farmer and witnessed by a member of the county committee or by an employee of such committee, except that where the assignee is a bank whose deposits are insured by the Federal Deposit Insurance Corporation, the Farmers Home Administration, or a production credit association supervised by the Farm Credit Administration, such assignment may be witnessed by a bonded officer of the lending institution. Such assignment shall be filed with the county committee. Such assignment shall not be made to pay or secure any preexisting indebtedness. This provision shall not authorize any suit against or impose any liability upon the Secretary or any disbursing agent if payment to the farmer is made without regard to the existence of any such assignment. The Secretary shall prescribe such regulations as he determines necessary to carry out the provisions of this subsection.” (Emphasis added.)
Pursuant to the authority specifically granted in the statute, regulations have been adopted, including 7 C.F.R. § 709.3, which reads in part:
“Purposes for which a payment may be assigned.
“(a) A payment which may be made to a producer under any program to which this part is applicable may be assigned only as security for cash or advances to finance making a crop, handling or marketing an agricultural commodity, or performing a conservation practice, for the current crop year. No assignment may be made to secure or pay any preexisting indebtedness of any nature whatsoever.
“(b) To finance making a crop means (1) to finance the planting, cultivating, or harvesting of a crop, including the purchase of equipment required therefor and the payment of cash rent for land used therefor . . . .” (Emphasis added.)
The first issue is whether federal law or state law applies in determining the nature and extent of a producer’s property interest in farm program payments provided by the federal government. Appellant RGI asserts that federal law controls. It argues that the trial court’s decision violates the supremacy clause of Article VI of the United States Constitution by interfering with federal farm policy as articulated by Congress. In response, PCA argues that state law controls the filing of liens and the priorities thereof unless the federal government has provided for a national registry for filing such security interests, which is not the case here. PCA essentially argues that the federal statute and regulation asserted by RGI as the primary basis for this appeal are merely intended to protect federal agencies from liability for paying farm program payments to the wrong party, and that federal law has therefore not preempted state law on the question of priorities as between two creditors who both claim interests in a common debtor’s federal farm program payments.
RGI contends that the federal statutes and regulations preclude PCA from obtaining an interest in the ASCS payments except for indebtedness created to finance the making of the 1984-85 crop and that no part of such payment may be applied to any preexisting indebtedness. PCA takes the position that Hansen Farms had a property interest in the ASCS payments in which PCA properly took a security interest under the provisions of the UCC. It contends that the statutory and regulatory restrictions on the producer’s authority to assign the payments are applicable only as between the federal government and the producer, and do not apply to this dispute between competing creditors. It should be noted that we are not called upon, and do not here decide, the question of the validity of the PCA security interest as between PCA and the Hansens. We are faced only with the competing claims of third parties to the ASCS payments due from the federal government to Hansen Farms.
Federal courts have consistently held that property interests may be created by statute. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 261-62, 25 L. Ed. 2d 287, 90 S. Ct. 1011 (1970) (federal and state statutory right to public assistance so long as specified qualifications maintained); see also Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L.J. 1245, 1255 (1965) (listing “subsidies to farmers” as one example of property entitlement flowing from government). Implicit in this principle is that the nature and extent of the property interest so created is governed by the statute itself. See Goldberg, 397 U.S. at 262 (statutory entitlement to benefits only for those persons qualified to receive them); Mayo v. United States, 319 U.S. 441, 87 L. Ed. 1504, 63 S. Ct. 1137 (1943) (soil-building and soil-conserving practices, when carried out by a participating farmer, entitle him to grant or benefit payment); AycockLindsey Corporation v. United States, 171 F.2d 518, 521 (5th Cir. 1948) (subsidies under 16 U.S.C. §§ 590a et seq. are contractual compensation for compliance with program requirements, not gratuities); Baboquivari Cattle Co. v. Commissioner of Internal Rev., 135 F.2d 114, 116 (9th Cir. 1943) (farmer not entitled to payments under 16 U.S.C. § 590a et seq. unless he has complied with conservation-oriented program conditions as to proper use of his land); Pettersen v. United States, 10 Ct. Cl. 194, 199 (1986) (compliance with Feed Grain Program is condition precedent for payment of com and grain sorghum deficiency payments pursuant to 7 U.S.C. § 1444d).
It appears clear that the nature and extent of the Hansen Farms property interest in the ASCS payments are controlled by the federal statute that created them. It is equally clear that the Hansen Farms property interest in those payments is also subject to Kansas law to the extent it does not conflict with the federal statutes and regulations.
K.S.A. 84-9-104 deals with transactions excluded from the scope of article 9:
“This article does not apply
“(a) to a security interest subject to any statute of the United States such as the ship mortgage act, 1920, to the extent that such statute governs the rights of parties to and third parties affected by transactions in particular types of property . . . .” (Emphasis supplied.)
Under this provision of the UCC, certain federal statutes may partially preempt state law governing secured transactions. Thus, certain aspects of the producer’s property interest in ASCS payments may be controlled by § 590h(g) and its complementing regulations, while others may be controlled by the UCC and applicable Kansas statutes. See 68 Am. Jur. 2d, Secured Transactions § 30, p. 852; Kansas Comment 1983 to K.S.A. 84-9-104(a). The issue we must decide is the extent to which § 590h(g) and 7 C.F.R. § 709.3(a) impose restrictions on Hansen Farms’ assignments of the ASCS payments.
PCA relies upon the general proposition that restrictions upon assignment of claims against the government in general, and the restriction in § 590h(g) in particular, are solely for the protection of the government to preclude any action against the government in the event it makes payment to the wrong party. In doing so, PCA relies upon that portion of the statute which states:
“This provision shall not authorize any suit against or impose any liability upon the Secretary or any disbursing agent if payment to the farmer is made without regard to the existence of any such assignment,”
to the exclusion of the other prohibitions contained in the statute.
PCA’s argument relies heavily upon United States v. Crain, 151 F.2d 606 (8th Cir. 1945). In Crain, the assignee of a claim for soil conservation benefits for 1938 under 16 U.S.C. § 590a et seq., who had advanced to Broughton, the assignor, cash, supplies, and services with which he produced a crop in 1938, sued the United States for paying the benefits to the assignor despite its knowledge of the assignment at the time of the payment. The court, quoting 16 U.S.C. § 590h(g) as then worded, held that Congress intended the provision to preclude subjecting the United States government to double liability, and based upon the last sentence of the section (which is now the next to last sentence of the present statute) concluded that the assignee was barred from suing the United States. The court reasoned:
“The effect of Section 8(g) of the Act [16 U.S.C. § 590h(g)] in general, and of the last sentence thereof in particular, is readily ascertained when construed in the light of the general policy of the government regarding assignment of claims against it. That policy is disclosed by the statute voiding assignment of such claims unless freely made, executed in presence of at least two witnesses, after allowance of claim, ascertainment of amount due and issuance of warrant for payment thereof. 31 U.S.C.A. § 203 [now 31 U.S.C. § 3727]. The purpose of this statute governing assignment of claims against the government is to protect the government and prevent it from becoming embroiled in conflicting claims or subjected to multiple liability. Rosecrans v. William S. Lozier, Inc., 8 Cir., 142 F.2d 118; Martin v. National Surety Co., 300 U.S. 588, 57 S.Ct. 531, 81 L.Ed. 822.” 151 F.2d at 608.
Crain merely stands for the principle that under the penultimate sentence of § 590h(g), assignees may not sue the federal government for damages for paying the benefits to the assignor. Instead, an assignee must look to his assignor for payment if the federal government fails to pay the assignee directly. Crain does not hold that this is the only purpose of the statute and did not address the specific purpose of the portions of the statute RGI relies upon in the instant case. Other cases relied upon by PCA also fail to support the contention that the protection of the government against double liability is the only reason for any restrictions upon assignments.
While there are very few cases which address the application and interpretation of § 590h(g), those that have tend to support the contentions of RGI. The cases indicate that assignments of ASCS payments are subject to specific statutory restrictions and those restrictions are controlling as to the rights of third parties affected thereby, to the exclusion of UCC Article 9 state law requirements.
The earliest of these decisions is In re Bechtold, 54 Bankr. 318 (Bankr. D. Minn. 1985). That case resolved a dispute between the debtors and their lending bank over payments due the debtor under the federal milk diversion program. The debtor argued that the language of the security agreement with the bank did not cover the milk diversion payment since it did not include accounts or general intangibles, but even if the security agreement did cover the payments, the bank was prevented from obtaining a security interest therein based on 7 C.F.R. § 709.3(a). The court agreed with both contentions, concluding:
“Even if the security agreement by its terms did cover the milk diversion payment, I think that it would not attach to the payment as a matter of federal law. [Citing provisions of 7 C.F.R. § 709]. . . . Although I concede that there is some ambiguity in the language itself, I think that taken as a whole the regulations clearly indicate that the Secretary of Agriculture in adopting the regulations intended that milk diversion payments be free of claims by others and therefore provide cash for farmers to use to finance a new crop.”
“This regulation was apparently not raised in . . . any . . . reported case that I have been able to find.” 54 Bankr. at 321.
The Bechtold court cited nothing other than the regulations themselves in support of its interpretation of the apparent intent of the Secretary of Agriculture. Nor did it even cite, let alone analyze, the statute, 16 U.S.C. § 590h(g).
Two months after the Bechtold decision, the Court of Appeals for the Seventh Circuit decided J. Catton Farms v. First Nat. Bank of Chicago, 779 F.2d 1242 (7th Cir. 1985), a bankruptcy case in which a secured creditor sought the proceeds of the debtor’s payment in kind (PIK) contract not to grow crops. The bankruptcy judge ordered the farming operation to pay the proceeds of the PIK contract to the secured creditor, and both the district court and the court of appeals affirmed. However, buried in the Seventh Circuit panel’s lengthy opinion is the following dictum:
“Catton might conceivably have gotten some mileage out of 7 U.S.C. § 1444d(i), which applies to the ‘PIK’ program the payment provisions of the Soil Conservation and Domestic Allotment Act, including a provision which forbids assigning payment rights to ‘secure any preexisting indebtedness.’ 16 U.S.C. § 590h(g). The evident purpose is to make sure that the intended beneficiary of federal largesse retains the benefit. See Barlow v. Collins, 397 U.S. 159, 162-65, 90 S. Ct. 832, 835-36, 25 L. Ed. 2d 192 (1970). If there is no fresh consideration for the assignment, he does not. In this case, however, putting to one side the fact that Catton is a substantial corporation rather than a tenant farmer as in the Barlow case, the assignment — if that is what one should call the provision in the loan agreement giving the bank a security interest in any contract rights (implicitly including ‘PIK’ contract rights) that Catton might acquire — was made not to secure a preexisting indebtedness but as part of the inducement to the bank to make the loan; so the ‘farmer’ got value for the assignment. In any event Catton, not having cited either of the above statutory provisions to us, has waived any reliance it might have placed on them.” 779 F.2d at 1246.
A year later, a Florida bankruptcy court in Matter of Azalea Farms, Inc., 68 Bankr. 32 (Bankr. M.D. Fla. 1986), considered a case raising virtually the identical question presented in In re Bechtold. Citing the latter case as support, it reached the same conclusion: the security agreement as worded did not cover milk diversion payments, but even if it did, “the interest created would not attach to the milk diversion payment as a matter of federal law.” 68 Bankr. at 34. As in Bechtold, the court noted that the debtor’s milk diversion program contract with the responsible federal agency contained an “Assignment of Payment” provision permitting assignment of milk diversion payments in accordance with 7 C.F.R. § 709. After quoting § 709.3(a), the court concluded:
“The regulations, taken as a whole, clearly indicate that the Secretary of Agriculture in adopting the regulations intended that milk diversion payments be free of claims and therefore provide cash to fanners in order to finance farm operations.” 68 Bankr. at 34.
In a very recent case an Iowa bankruptcy court addressed the issue in Matter of Halls, 79 Bankr. 417 (Bankr. S.D. Iowa 1987). It is the first published decision we have found squarely holding that § 590h(g) precludes assignment of federal feed grain program payments as security for a loan unless the loan proceeds are used to finance a crop in a year for which the program payments were due. It is also the first case that analyzes the language of § 590h(g) and its implementing regulations in conjunction with one another.
In Halls, a lending bank’s successor in interest, the FDIC, challenged the debtors’ use of federal feed grain program payments in which it claimed a perfected security interest. The debtors received cash program payments for 1986 and 1987, but contended that FDIC’s predecessor was barred from encumbering 1987 payments because it had not provided financing for the debtor’s 1987 crop. The court initially stated:
“The purpose underlying [§ 590h(g)] is to ensure that the intended beneficiary of government payments receives the payments. J. Catton Farms v. First Nat. Bank of Chicago, 779 F.2d 1242, 1246 (7th Cir. 1985).” 79 Bankr. at 419.
The court then agreed with the debtors’ argument, specifically citing the language of 7 C.F.R. § 709.3(a).
“For program payments that relate to crops that the creditor had no part in making, such payments cannot be subjected to the creditor’s security interest. Section 709.3(a) does permit the FDIC to encumber the 1986 payments because the FDIC’s predecessor in interest advanced money for putting in the 1986 crop.” 79 Bankr. at 419.
The court went on to note that while state law on secured transactions does not limit a creditor’s ability to encumber gov ernment payments, citing the Iowa version of the UCC, “[t]his conflict between the federal scheme and state law must be resolved in favor of federal law.” 79 Bankr. at 419. In reaching its conclusion, the court stated:
“Application of these provisions [7 C.F.R. § 709] to the instant case means that the FDIC cannot encumber 1987 program payments made in cash since the FDIC did not finance the 1987 crop. The. language of 7 C.F.R. section 709.3(a) clearly shows that the only payments that may be encumbered are those directly related to the crop that a lender assisted in making by lending money. The provision states that program payments ‘[may] be only assigned as security for cash or advances to finance making a crop . . . for the current year.’ Id. (emphasis added).
Moreover, the regulations state that ‘no assignment may be made to secure or pay any pre-existing indebtedness of any nature whatsoever.’ Id. (emphasis added). For program payments that relate to crops that the creditor had no part in making, such payments cannot be subjected to the creditor’s security interest. . . .
“It is important to note that state law regarding secured transactions contains no such limitation on a creditor’s ability to encumber government payments. See generally Iowa Code sections 554.9101 et seq. This conflict between the federal scheme and state law must be resolved in favor of the federal law. It is a fundamental precept that to the extent a conflict exists between state and federal law, state law must yield. U.S. Const., art. VI, cl. 2; Maryland v. Louisiana, 451 U.S. 725, 747, 101 S. Ct. 2114, 2129, 68 L. Ed. 2d 576 (1981); Johnson v. First Nat. Bank of Montevideo, Minn., 719 F.2d 270 (8th Cir. 1983) cert. denied 465 U.S. 1012, 104 S. Ct. 1015, 79 L. Ed. 2d 245 (1984).” 79 Bankr. at 419-20.
The holding and reasoning in Halls is equally applicable to the statutory and regulatory restrictions on assigning the ASCS payments to pay a preexisting indebtedness.
Most recently, in In re George, 85 Bankr. 133 (Bankr. D. Kan. 1988), the court was faced with a dispute as to the validity of certain creditors’ security interests in PIK certificates issued to the bankrupt and held by the trustee. The case involved recent regulations promulgated by the Commodity Credit Corporation (CCC) which are not applicable to the case before us. In discussing the, issue of whether the federal CCC regulations preempt the state law of secured transactions, the court stated:
“It is a fundamental precept that to, the extent a conflict exists between state and federal law, state law must yield. U.S. Const., Art. VI, cl. 2; Maryland v. Louisiana, 451 U.S. 725, 747, 101 S. Ct. 2114, 2129, 68 L. Ed. 2d 576 (1981); Johnson v. First National Bank of Montevideo, Minn., 719 F.2d 270 (8th Cir. 1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1015, 79 L. Ed. 2d 245 (1984). Laws enacted pursuant to the powers conferred by the Constitution on Congress are the supreme law of the land and will prevail over state law. Testa v. Katt, 330 U.S. 386, 67 S. Ct. 810, 91 L. Ed. 967 (1947). The states may not interfere with the United States government in the exercise of its constitutional powers (e.g., foreign affairs, regulation of aliens, war powers, armed forces) and all matters touching the rights and obligations of the United States. Spector Motor Service v. O’Connor, 340 U.S. 602, 71 S. Ct. 508, 95 L. Ed. 573 (1951), and U.S. Const., Art. VI, cl. 2. State action must give way to federal legislation where a valid act of Congress is in actual conflict with the law of the state. Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S. Ct. 1210, 1217, 10 L. Ed. 2d 248 (1963); McDermott v. Wisconsin, 228 U.S. 115, 132, 33 S. Ct. 431, 435, 57 L. Ed. 754 (1913).
“State law may be preempted by an express statement, by federal occupation of the field, or by direct conflict with federal law. Louisiana Public Service Commission v. Federal Communications Commission, 476 U.S. 355, 106 S. Ct. 1890, 90 L. Ed. 2d 369 (1986).” 85 Bankr. at 138-39.
In finding that the creditors’ security interests under the UCC prevailed over the CCC regulations, the court stated:
“Were Congress so inclined, it could clearly manifest an intent to control the use of the proceeds from the benefit program. Indeed, in other situations it has expressly stated its intention of controlling the use of proceeds from other benefit programs. See e.g., 16 U.S.C. § 590h(g) (Supp. 1987) (assignments of cash payments made under the Soil Conservation Act for preexisting debt are expressly prohibited). See also 7 C.F.R. § 709.3(a) (1986).” 85 Bankr. at 140-41.
While the statements relative to § 590h(g) and 7 C.F.R. § 709.3(a) are clearly dicta, they are consistent with the few cases that have considered or commented upon the effect of the restrictions in the statute and regulations now before this court.
We are of the opinion that 16 U.S.C. § 590h(g) and 7 C.F.R. § 709, relied upon by RGI in its decision to finance the Hansen Farms’ crops, were intended by Congress to limit the circumstances under which an agricultural producer can assign government payments as collateral and to prevent creditors from making the production of the crop for which the payments were made impossible. To the extent that the federal statute and regulations are in conflict with the Kansas UCC, they are superior and controlling as to the rights of the parties herein.
We conclude that as to competing creditors to benefits under the statute, the language of the statute and the regulations impose restrictions on a participant against (1) assigning his contract rights to pay or secure a preexisting debt, and (2) assigning his contract rights “as security for cash or advances to finance making a crop” for any year other than the “current crop year.” 16 U.S.C. § 590h(g) and 7 C.F.R. § 709.3(a).
We now turn to the issue of whether the limitations upon assignment as set forth in the statute and regulations preclude PCA from asserting its prior security interest against RGI. The district court, in granting summary judgment in favor of PCA, concluded:
“1. A pre-existing debt is one without security, which is attempted to be brought into security status with a later debt instrument.
“2. PCA’s debt documents show they were made contemporaneously, therefore the debt in question is not a preexisting debt. Under 11 U.S.C. § 590h(g) an assignment or security agreement may include an after-acquired property clause. Such clause included the 1985 crop. PCA’s debt documents were properly filed and by law RGI had notice.
“3. The security interest of PCA takes priority over the interest of RGI.”
The court then sustained PCA’s motion for partial summary judgment and entered judgment against RGI for $42,721.75 plus prejudgment interest.
We conclude the district court was in error in finding there was no preexisting debt at the time Hansen Farms signed the PCA security agreement in December 1983. The security agreement itself specifically refers to the renewal of an existing indebtedness of at least $553,685.44. PCA asserts, and the trial court apparently agreed, that for an indebtedness to be preexisting it initially must have been wholly unsecured, and be unsecured when security is taken for it at some later date. This entire argument is based upon an unpublished decision of the United States Bankruptcy Court for the District of Kansas in In Re Holman, No. 86-40959 (Bankr. D. Kan. 1987). Holman is not precedent, and, in addition, we do not find it persuasive.
7 C.F.R. § 709.3(a) provides in part:
“No assignmént may be made to secure or pay any preexisting indebtedness of any nature whatsoever.”
The statute, 16 U.S.C. § 590h(g) is equally clear, stating, “Such assignment shall not be made to pay or secure any preexisting indebtedness.” Our research has disclosed no reported decisions which have considered the meaning of the term “preexisting indebtedness” in relation to the applicable statute and regula tions with the exception of the dictum in J. Catton Farms, 799 F.2d 1242.
The term “preexisting indebtedness” does not have any unusual or technical meaning when applied to the statute and regulations now before us. The fact that the amount of $553,685.44 plus interest, which was past due on December 1, 1983, was secured by other assets of Hansen Farms at the time of the renewal of the note and the addition of the ASCS payments as collateral does not alter the status of the past due amount as a preexisting debt. We hold that the security interest of PCA in the ASCS payments was taken as security for preexisting indebtedness and as such is unenforceable against RGI, which advanced funds or agricultural inputs for the making of the crops which were the basis for the ASCS payments at issue in this case.
Although not directly before us in this appeal, we also conclude that PCA would be precluded from recovering the ASCS payments from RGI as there is no showing PCA advanced funds for “making a crop ... for the current crop year.” 7 C.F.R. § 709.3. Under either restriction in the statute and regulations PCA is precluded from recovering the ASCS payments from RGI.
In view of the decision reached herein, the cross-appeal of PCA obviously is moot and the district court was correct in dismissing the claim of PCA for punitive damages.
The judgment is reversed on the appeal of RGI and affirmed on the cross-appeal of PCA and the case is remanded with directions to grant summary judgment for RGI.
Herd, J., dissenting. | [
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Per Curiam:
This is an original proceeding in discipline filed by the office of the disciplinary administrator against Dennis Dene Barritt, of Lawrence, an attorney admitted to the practice of law in Kansas.
At the hearing before a panel of the Kansas Board for Discipline of Attorneys, the disciplinary administrator presented his evidence and rested. Thereafter, respondent presented his evidence, through his own testimony, and admitted he had violated DR 1-102(A)(5) and (6) (1987 Kan. Ct. R. Annot. 123). No exceptions have been filed.
The panel’s findings of fact are as follows:
“findings of fact
“Due to the fact the parties are in agreement that Respondent has violated the disciplinary rules, by clear and convincing evidence, the panel must determine the measure of discipline to recommend. In reaching its decision, the panel has considered the following findings of fact:
“1. Respondent is an attorney at law. His Kansas Attorney Registration Number is 07321. His last registration address with the Clerk of the Appellate Courts of Kansas is 2908 West 23rd Street Terrace, Lawrence, Kansas, 66044.
“2. Respondent graduated from law school and was admitted to the bar in 1970. He has not engaged in the active practice of law during the last five years. In recent years he has been involved in the real estate and construction business. His real estate license was revoked recently by the Kansas Real Estate Commission.
“3. On July 22, 1986, Respondent was arrested and charged with the crimes of Aiding and Abetting Delivery of Cocaine, Possession of Cocaine, and Delivery of Cocaine, all felonies, in the case of State of Kansas v. Dennis Dene Barritt, No. CR 86-514, in the District Court of Douglas County, Kansas.
“4. On November 18, 1986, Respondent pled guilty to one count of aiding and abetting the delivery of cocaine, a felony, in violation of K.S.A. 65-4127a and 21-3205 in the District Court of Douglas County, Kansas.
“5. On December 18, 1986, Respondent was sentenced to a term of not less than three (3) years and not more than ten (10) years pursuant to K.S.A. 1986 Supp. 21-4501 and fined $5,000.00.
“6. On March 27, 1987, the Supreme Court of the State of Kansas filed its Order of Temporary Suspension pending final resolution of Respondent’s disciplinary proceedings.
“7. On May 12, 1987, Respondent was granted probation and voluntarily entered Keystone Drug and Alcohol Program at Memorial Hospital in Topeka, Kansas. He was discharged on June 12, 1987.
“8. Respondent was incarcerated a total of one hundred forty-seven (147) days in the Kansas penal system including six weeks at Kansas State Penitentiary in Lansing, Kansas.
“9. Respondent is presently under probation and involved in community service work and various rehabilitative programs as a part of his probation.”
The panel’s conclusions of law and recommendation are as follows:
“CONCLUSIONS of law
“Respondent acknowledges and the panel agrees that his actions do amount to a violation of DR 1-102(A)(5) and (6).
“RECOMMENDATION
“The panel is mindful that Respondent has begun the necessary steps toward rehabilitation in consideration of his problems. The panel concludes that Rule 203 [1987 Kan. Ct. R. Annot. 102-03] does not afford sufficient latitude to rely upon rehabilitative measures alone as a corrective measure. The panel believes discipline is warranted by Respondent’s actions in this case. In reaching its decision, the panel has taken into consideration the crime upon which Respondent stands convicted of aiding and abetting the delivery of cocaine and the impact of this offense on others. Accordingly, it is the unanimous recommendation of the panel that Respondent be disciplined by disbarment pursuant to Rule 203(a)(1).”
The only question before us is the appropriate discipline to be imposed. Respondent suggests that indefinite suspension from the practice of law in Kansas for a period concurrent with his term of probation would be appropriate. We do not agree. Respondent has been convicted of a class C felony — aiding and abetting the delivery of cocaine. This is an extremely serious matter. After careful consideration, we conclude that the respondent should be indefinitely suspended from the practice of law in Kansas.
It is Therefore Ordered that Dennis Dene Barritt be and he is hereby indefinitely suspended from the practice of law in the State of Kansas.
It is Further Ordered that the costs of this proceeding be assessed to the respondent.
It is Further Ordered that the respondent shall forthwith comply with Supreme Court Rule 218 (1987 Kan. Ct. R. Annot. 116) and that this order shall be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Prager, C.J.:
This is an appeal by the State from an order, made at the close of the preliminary hearing, dismissing complaints charging the defendants, Leland Dickens and Lois Roberts, with felony theft (K.S.A. 1987 Supp. 21-3701) and conspiracy to commit felony theft (K.S.A. 21-3302). The dismissal of the complaints was based upon the finding of the trial court that there was a lack of venue jurisdiction in Johnson County.
The evidence presented by the State showed that the defendant Lois Roberts, a resident of Leavenworth County, parked her 1983 Cadillac Seville in front of defendant Dickens’ automobile repair shop in Kansas City, Kansas (Wyandotte County), on May 28, 1987. Later that day, Roberts checked to see if the necessary repair work had been done. Dickens reported to her that he had not seen the car all day. It appeared that the missing automobile had been stolen. The vehicle was discovered in Minneapolis, Minnesota, in October of 1987.
After it was discovered that the car was missing, Roberts reported the theft to the police and to her insurance company, State Farm Mutual. Susan Swailes, a claims adjuster in the State Farm office in Mission, Kansas (Johnson County), contacted Roberts and offered her $8,500 in settlement. Roberts was upset, thinking the offer was too low. Swailes explained that the Cadillac had a diesel engine which reduced the value of the car. Roberts then advised the adjuster that she had had the engine converted from diesel to gasoline. Based on the new information, Swailes offered Roberts $14,500 in settlement for the car and asked Roberts to bring in a receipt or billing statement from the mechanic showing that the engine had been converted from diesel to gasoline.
On June 11, 1987, Roberts submitted a receipt or billing statement signed by defendant Dickens which stated that the conversion of the car from a diesel to a gasoline engine had in fact occurred. The bill was dated January 1987. As the result of the presentation of the billing statement, Swailes gave Roberts a draft from State Farm payable to Roberts in the sum of $15,376.
According to the State’s evidence, the billing statement indicated that the conversion was done at Dickens’ shop at 905 North 16th Street in Wyandotte County. Apparently, Dickens told a KBI agent that he had completed the conversion in January of 1987 at that address. However, Dickens’ landlord testified that he did not rent the building to Dickens until May or June of 1987. Dickens’ landlord also testified that, due to a fire in January of 1987, no one occupied the 905 North 16th Street location from January to March of 1987. Furthermore, the State presented testimony of Roberts’ part-time mechanic that he had worked on the car in March of 1987, and that the car had a diesel engine at that time.
As noted, the car was discovered in Minneapolis, Minnesota, in October of 1987. It had been stripped down and no longer had an engine, transmission, tires, or a rear bumper. An analysis of the gas tank revealed the presence of diesel fuel, which was additional evidence that no actual conversion of the car from diesel to gasoline had taken place. Roberts and Dickens were both charged in separate informations in the district court of Johnson County with conspiracy to commit felony theft and felony theft. The cases were consolidated prior to the preliminary hearing.
When the preliminary hearing was completed, Judge Pro Tem Robert L. Morse took the case under advisement and issued a memorandum decision on February 10,1988. He held that there was no venue in the criminal cases in Johnson County, because the criminal acts complained of did not occur in Johnson County. Judge Morse based his conclusion on the fact that the draft, while delivered to Roberts at the State-Farm office in Mission, was not legally delivered until a bank accepted it and paid Roberts the money.. Because there was no evidence showing where the draft was accepted, Judge Morse concluded that no criminal act occurred in Johnson County and therefore dismissed the cases. The State filed a timely appeal pursuant to K.S.A. 1987 Supp. 22-3602(b)(l).
The sole issue presented on the appeal is whether the district court erred in dismissing the complaints because venue was improper in Johnson County. The two Kansas statutes governing venue which are applicable in this case are K.S.A. 22-2602 and K.S.A. 22-2603, which provide as follows:
“22-2602. Place of trial. Except as otherwise provided by law, the prosecution shall be in the county where the crime was committed.”
“22-2603. Crime committed in more than one county. Where two or more acts are requisite to the commission of any crime and such acts occur in different counties the prosecution may be in any county in which any of such acts occur.”
As a general rule, venue is a question of fact for the jury to determine. It 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. State v. Pencek, 224 Kan. 725, 729, 585 P.2d 1052 (1978).
In order to determine proper venue, it is necessary to know where each element of the crime occurred. Conspiracy requires: (1) an agreement (2) with another person (3) to commit or to assist in the commission of a crime and (4) an overt act in furtherance of the conspiracy. K.S.A. 21-3302. Felony theft (as alleged by the State) requires: (1) an intent to permanently deprive, (2) obtaining control of property through deception and (3) an amount over $150. K.S.A. 1987 Supp. 21-3701.
On the conspiracy charges, there is insufficient evidence to conclude where any agreement to defraud State Farm may have been formed. Roberts and Dickens were apparently social acquaintances, and the agreement to defraud State Farm may have been made in Leavenworth County (where Roberts lived) or in Wyandotte County (where Dickens worked). It is clear, however, that the overt act of deception (the presentment of an allegedly phony receipt) occurred in Johnson County at the State Farm office. Under the guidelines of K.S.A. 22-2603, prosecution could be in any one of the three possible counties. Thus, Johnson County was a proper venue for the conspiracy charges.
The theft charges are not so easily disposed of. An intent to permanently deprive could have been formed in Leavenworth, Wyandotte, or Johnson Counties. Proof of venue based on the formation of intent presents practical problems and would be difficult to establish. The third element, the amount of $150, is easily proven by the amount of the draft and the difference in value between a diesel Cadillac and a gasoline Cadillac.
It is the second element, obtaining control of property through deception, that troubled the district court. Just as in the conspiracy charges, the obtaining of property occurred in Johnson County. Roberts presented a receipt or billing statement for the engine conversion to State Farm’s agent in the Mission office of State Farm. It is clear that Roberts intended to use the receipt in order to increase the amount of the settlement she would receive from State Farm. Through this alleged deception, Roberts obtained control over a draft for $15,376. The question then becomes whether this draft constituted “property.”
The trial court ruled, in effect, that the draft was not property until Roberts presented it for payment. In other words, Roberts did not have control over the money until she cashed the draft. The court reasoned that, because no evidence was presented as to where Roberts cashed the draft, there was no evidence as to where she obtained control of the money. Thus, the court decided, there was no evidence that the proper venue was in Johnson County.
The trial court relied on various provisions of the Uniform Commercial Code. The reliance is misplaced because “property” is clearly defined in K.S.A. 21-3110(16):
“(16) ‘Property’ means anything of value, tangible or intangible, real or personal.”
“Personal property” is defined in K.S.A. 21-3110(15):
“(15) ‘Personal property’ means goods, chattels, effects, evidences of rights in action and all written instruments by which any pecuniary obligation, or any right or title to property real or personal, shall be created, acknowledged, assigned, transferred, increased, defeated, discharged, or dismissed.” (Emphasis supplied.)
A draft, also known as a bill of exchange, is a negotiable instrument. K.S.A. 84-3-104. It is an order to pay a sum certain in money. Black’s Law Dictionary 443 (5th ed. 1979). It is thus a written instrument creating a pecuniary obligation. Under the Kansas statutes, a draft is “property.”
At common law, commercial paper could not be subject to larceny or theft, but the modern rule is different.
“Now, however, checks, bills of exchange, promissory notes, bonds, and other choses in action, securities, or written instruments of value, are, by statute, quite generally made subjects of larceny. Under such a statute, both an unindorsed check payable to order and one indorsed in blank are subjects of larceny, and the same is true of an undelivered check, for even an undelivered and unindorsed check, although of no value to the taker, is of value to the payee. It has been pointed out, however, that a check in a sense is property whose value is wholly relative, and unless there is money of the drawer in the bank named therein at the time of presentment for payment, the check but evidences an agreement to pay, and is subject to explanation, contradiction, or entire defeat of value, as are other similar instruments.” 50 Am. Jur. 2d, Larceny § 64, pp. 232-33.
While commercial paper can be the subject of a theft, the value to be placed pn it is not always clear.
“In the case of commercial paper, in many jurisdictions local statutes provide that the value of such paper of specified kinds shall be the amount due thereon or secured thereby which remains unsatisfied. Other statutes provide that the amount due shall be only prima facie evidence of the value of the instrument. In the absence of statute, some authorities regard the value of a check as its face value, while others appear to favor different criteria of value, or are inconclusive on the question, and there is authority for the view that the value of a check is purely a question for the determination of the jury. The cases likewise throw little light on how the value of a bill of exchange shall be determined.” 50 Am. Jur. 2d, Larceny § 46, p. 212.
For purposes of this case, it is clear that the draft had value and was therefore “property” under the statute. It is not necessary, however, to determine what value the draft actually had. That question should be remanded for determination by the trier of fact to decide which portion of the draft value was rightfully Roberts’ (as settlement for the theft of her car) and which portion (if any) was obtained as a result of deception.
Because a draft is “property” under Kansas law, receipt of the draft through the use of deception constituted “[o]btaining by deception control over property.” K.S.A. 1987 Supp. 21-3701. This control was obtained in Johnson County, and, therefore, venue for the felony theft charges existed in Johnson County.
We have thus concluded that the trial court erred in dismissing the complaints for lack of venue jurisdiction in Johnson County.
The trial court did not make a determination whether a crime was committed and thus the issue of probable cause presented at the preliminary hearing was not determined. Under the circumstances, we reverse and remand the case with instructions to the district court to reinstate the complaint and to hear and consider the State’s evidence against each defendant and to proceed with the preliminary hearing as required by law. | [
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The opinion of the court was delivered by
Prager, C.J.:
This is an action brought by the plaintiffs, L. Frank Dougan and his farm tenants, the Mohlers, to recover from defendant Rossville Drainage District for damage to cropland and loss of crops caused by flooding. Plaintiffs claim that the flooding was the result of acts of the defendant which caused a diversion of natural waters through the construction of dikes and embankments and the widening of a drainage ditch.
The defendant filed a motion to dismiss the petition on the basis that the Rossville Drainage District was immune from liability under the Kansas Tort Claims Act (K.S.A. 75-6101 et seq.) for any damages caused by the flooding of the Dougan property. The district court denied the motion, but found that the issue of immunity was controlling and certified the question for an interlocutory appeal. The case was then appealed and transferred to the Supreme Court.
The sole issue presented on the appeal is whether the discretionary function exception under K.S.A. 75-6104(d) provides immunity to the drainage district for damages caused by the flooding of the plaintiffs’ property.
The plaintiffs’ petition was as follows:
“1. Plaintiff, L. Frank Dougan, is the owner of certain real estate located in Shawnee County, Kansas, located just south of the city of Silver Lake, Kansas.
“2. Plaintiffs, Robert Mohler, Lawrence Mohler and Raymond Mohler, are the tenants for agricultural purposes on the property owned by Plaintiff, L. Frank Dougan.
“3. Defendant, Rossville Drainage District, is a duly organized Drainage District under the laws of the State of Kansas and is located in Shawnee County, Kansas. . . .
“4. Defendant, Rossville Drainage District, has the authority and control over and the legal responsibility and obligation of the Rossville Drainage District, including the drainage ditch and channel which runs in a generally southeasterly direction from Rossville, Kansas to Silver Lake, terminating at a point on the west side of the property owned and farmed by the Plaintiffs.
“5. The drainage ditch or channel owned and operated by Defendant, Ross-ville Drainage District, collects the surface water drainage of an area between Rossville and Silver Lake, Kansas, and discharges such surface water drainage into Silver Lake, which is a natural water course. The land owned and farmed by the Plaintiffs is located immediately adjacent to Silver Lake, and neither the land owned and farmed by the Plaintiffs nor Silver Lake, is part of the Defendants’ Drainage District.
“6. In the construction, operation and control of its drainage district, the Defendant has and does divert the natural flow of surface water drainage into its ditch or channel, thereby increasing the volume and flow of water that is deposited into the natural water course and, at times, exceeds the carrying capacity of the natural water course causing an overflow onto Plaintiffs’ property.
“7. In June of 1982, Plaintiffs’ property was inundated by water from the Defendants’ drainage ditch or channel, causing damages of serious and sensible nature to the interests of the Plaintiffs.
“8. The proximate cause of the damages of the Plaintiffs were the acts of the Defendant in gathering and diverting surface water from its natural water course, thereby exceeding the carrying capacity of the natural water course adjacent to the Plaintiffs’ property. Such excess volume of water overflowed the Plaintiffs’ property causing damage to the growing crops.
“WHEREFORE, Plaintiffs pray for judgment against the above named Defendant for an amount in excess of Ten Thousand Dollars ($10,000.00) . . . .”
Most of the facts in the case are undisputed, although there is a serious factual issue as to the cause of the flooding of plaintiffs’ property. Plaintiff Dougan owns a 640-acre plot of land just south of Silver Lake. A diagram of the Dougan property can be found as a part of the opinion in the case of Dougan v. Shawnee County Comm'rs, 141 Kan. 554, 557, 43 P.2d 223 (1935). The land was flooded in June 1982, following a period of heavy rain. A levee washed out at the northwest corner of the Dougan farm, inundating the land. Dougan’s crops were under water for three days. He lost his crops and incurred costs of replanting his land and repairing the dike. The Rossville Drainage District is responsible for collecting and draining surface water from approximately 7,000 acres of land between Rossville and Silver Lake. The water is carried east towards Silver Lake, where the district’s territory ends.
The levee which failed here was designed and constructed at a right angle by the district. While the levee can handle a normal flow of water, excess loads may cause the levee to fail. Failure occurred in 1967, 1973, and 1982. Both the district and Dougan have repaired the levee in the past but neither has changed the design. Following the 1973 flood, Dougan sued the district for the damage incurred. Dougan v. Rossville Drainage District, 2 Kan. App. 2d 125, 575 P.2d 1316, rev. denied 225 Kan. 843 (1978). In that opinion, the facts setting forth the location of the Dougan land with respect to the drainage ditch are stated in some detail.
In 1979, the Kansas Tort Claims Act was enacted. The district now claims immunity under the act for any damages incurred in 1982, and based its motion to dismiss on that theory. Due to the nature of this action, the evidentiary record in the case has not been fully developed. Each side submitted to the court a report from its own expert. The plaintiff s expert concluded that “97% of the June 1982 floodwater which accumulated in the lake and on adjacent lands was conveyed to the site by the Rossville Drain. More than three-quarters of this water came from the overflowing Cross Creek.”
The defendant’s expert concluded otherwise. His report stated: “Our review indicates that the construction and/or operation of the Rossville Drain has little impact on the flooding in the area of Silver Lake. . . . Although failure of the levee may affect flooding during smaller flows, when the water is 4 feet above the top of the levee, such details as alignment, design, construction and maintenance have no relationship to flooding.” Thus, causation is the important fact issue if the case goes to trial.
Because the matter is before this court on a motion to dismiss, it would be helpful at the outset to note the scope of review in such cases:
“ ‘The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in plaintiff s favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.’ ” Robertson v. City of Topeka, 231 Kan. 358, 359, 644 P.2d 458 (1982).”
The Kansas Tort Claims Act is considered an open-ended act, meaning that liability is the rule and immunity the exception. See K.S.A. 75-6103(a) and Jackson v. City of Kansas City, 235 Kan. 278, 286, 680 P.2d 877 (1984).
K.S.A. 75-6103(a) provides:
“(a) Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state.”
In K.S.A. 75-6102, the term “governmental entity” is defined to include a municipality, or any county, township, city, school district, or other political or taxing subdivision of the state or any agency, authority, institution, or other instrumentality thereof. The parties agree that the Rossville Drainage District is a governmental entity. It is a public corporation which was first organized in 1905. Traditionally, such districts have been considered governmental entities. State, ex rel., v. Kaw Valley Drainage District, 126 Kan. 43, 47, 267 Pac. 31 (1928), and Jefferson County v. Drainage District, 97 Kan. 302, 303, 155 Pac. 54 (1916).
The statutes governing drainage districts grant specific powers to tax, to issue bonds, and to contract. K.S.A. 24-108; K.S.A. 24-111; and K.S.A. 24-134. These powers, usually considered governmental in nature, support the finding that the district is a governmental entity for purposes of the Kansas Tort Claims Act.
It is clear that defendant Rossville Drainage District, if a private person, would be liable under the law of Kansas for damages caused by flooding of land of a lower riparian landowner. This was the holding in Dougan v. Rossville Drainage District, 2 Kan. App. 2d 125, Syl. ¶¶ 1, 2, and 3. Kansas has adopted the rule of law that an upper proprietor of land may not gather and divert surface water from its natural course of flowage and thereby exceed the carrying capacity of the natural watercourse in which the surface water is deposited if that action causes damages of a serious and significant nature to a lower landowner.
The holding in Dougan was based on a long line of Kansas cases which began in 1897. In Parker v. City of Atchison, 58 Kan. 29, Syl. ¶ 1, 48 Pac. 631 (1897), the court stated:
“The owner of property on the bank of a water course has a right to build barriers and confine the waters to the channel of the stream; but he cannot build and maintain a structure which will change the channel or project the waters against or upon the property of others in such a way as will result in substantial injury to such property.”
For other Kansas cases recognizing the same principle, see the following: Reeder v. Board of County Commissioners, 193 Kan. 182, 392 P.2d 888 (1964); Horn v. Seeger, 167 Kan. 532, 539, 207 P.2d 953 (1949); Goering v. Schrag, 167 Kan. 499, Syl., 207 P.2d 391 (1949); Clements v. Phoenix Utility Co., 119 Kan. 190, 237 Pac. 1062 (1925); Baldwin v. Ohio Township, 70 Kan. 102, 78 Pac. 424 (1904); DeWerff v. Schartz, 12 Kan. App. 2d 553, 751 P.2d 1047 (1988).
A separate line of Kansas cases hold that the damming or alteration of natural water flow may be a nuisance. For example, in State, ex rel., v. Riverside Drainage District, 123 Kan. 46, 254 P.2d 366 (1927), the court quoted the trial court’s conclusion of law:
“ ‘While the Riverside Drainage District would not be responsible for injuries occasioned by the natural flow of surface water from the land in its district upon adjacent land, yet when it caused surface water to be accumulated upon land and caused the same to be cast in a volume upon the land of others outside of the district, it then created a nuisance.’ ” p. 52.
It was further stated:
“ ‘While the drainage act permits and authorizes the changing of the course of natural watercourses and the building of dams, dikes, embankments and ditches, it does not authorize the commission of a nuisance.’ ” p. 52.
See also Union Trust Company v. Cuppy, 26 Kan. 754, Syl. (1882), where the court stated, “[T]he damming, or partial damming, of Little Creek was in the nature of a nuisance.” For more recent cases, see Henderson v. Talbott, 175 Kan. 615, 622, 266 P.2d 273 (1954), and Krantz v. City of Hutchinson, et al., 165 Kan. 449, 196 P.2d 277 (1948).
In addition to these Kansas cases, the duty of a landowner or a proprietor not to obstruct or collect and discharge surface water to the damage of adjacent owners or proprietors has been recognized by the legislature since 1911. K.S.A. 24-105 now provides in part:
“It shall be unlawful for a landowner or proprietor to construct or maintain a dam or levee which has the effect of obstructing or collecting and discharging with increased force and volume the flow of surface water to the damage of the adjacent owner or proprietor; but nothing herein shall be construed as preventing an owner of land from constructing a dike or levee along the bank of a natural watercourse to repel flood waters from such natural water course if plans therefore have been approved as required in K.S.A. 24-126, as amended: Provided, That the provisions of this section shall apply only to lands used for agricultural purposes and highways lying wholly outside the limits of any incorporated city . . . .”
Defendant, in its brief, relies upon Sester v. Belvue Drainage District, 162 Kán. 1, 173 P.2d 619 (1946), in support of its contention that a drainage district is historically immune from liability for damages caused by flooding or erosion. The reliance upon Sester is misplaced. In Prickett v. Belvue Drainage District, 159 Kan. 136, 152 P.2d 870 (1944), there was a claim of an unconstitutional taking of land by erosion. Plaintiff contended that the drainage district had allowed flood waters to flow into the channel at a greater capacity and, as a result, soil near the banks was washed away. The issue was whether the petition stated a cause of action based on the right of a property owner to recover for loss or damage to property due to enlargement of a drainage district. It was held that a demurrer to the plaintiff s petition was properly overruled. This court rejected the contention that a drainage district is not liable for loss or damage of adjoining property caused by flooding. In the first appeal in Sester v. Belvue Drainage District, 159 Kan. 143, 152 P.2d 875 (1944), the court followed the holding in Prickett and sustained the trial court’s overruling of a demurrer to Sester’s petition.
In the later appeal, Sester v. Belvue Drainage District, 162 Kan. 1, the case came again before this court after the case had been tried to a jury which found that the flooding was not caused by any action of the employees of the drainage district and that there had not been a showing that any erosion to plaintiff s land was caused by the action of any water running through the land. Thus, in Sester the property owner did not recover because he could not prove that there was loss or damage caused by any action on the part of the drainage district. Sester does not preclude a finding of liability in this case.
As noted heretofore, defendant drainage district claims immunity based upon the discretionary function exception under the Kansas Tort Claims Act. At the time this case arose, K.S.A. 75-6104(d) provided:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from: . . .
(d) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion be abused . . . .”
The discretionary function was based upon a similar provision in the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. (1982). While there is a good deal of case law on the discretionary function exception, no clear definition of “discretionary” is available. Black’s Law Dictionary 419 (5th ed. 1979) defines “discretionary acts” as those acts wherein there is no hard and fast rule as to course of conduct that one must or must not take and, if there is a clearly defined rule, such would eliminate discretion.
Kansas case law has discussed the discretionary function on several occasions. In Beck v. Kansas Adult Authority, 241 Kan. 13, 735 P.2d 222 (1987), this court stated:
“We have discussed the discretionary function exception several times. In Robertson v. City of Topeka, 231 Kan. 358, 644 P.2d 458 (1982), the issue was whether police officers were exercising a discretionary function when they refused to remove a drunken trespasser from the owner’s property. We rejected the ‘planning level-operational level test,’ and held that the determining factor was the nature and quality of the discretion exercised rather than the status of the employee. We held that the decision of the officers was an on-the-spot exercise of discretion, and thus plaintiffs’ claim fell within the discretionary function exception.
“In Carpenter v. Johnson, 231 Kan. 783, 649 P.2d 400 (1982), we again held that whether an act is discretionary depends upon the totality of the circumstances. We held in that case that a placement of warning signs on a roadway was an exercise of professional judgment within established guidelines, rather than the exercise of discretion, and thus the discretionary function exception was not applicable. In Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984), we considered the plaintiff s claim for injuries resulting from the escape of armed and dangerous prisoners from the penitentiary. No warning was given to law enforcement officers in neighboring communities. We held that the duties to confine and to warn were imposed by law and were ministerial, not discretionary. The plaintiff s claim was not based on how the State decided to confine or warn, but the State’s failure to do so. We held the claim was not barred by the discretionary function exception. In Jackson v. City of Kansas City, 235 Kan. 278, 680 P.2d 877 (1984), we considered an action arising upon a collision between two city fire trucks on an emergency run to the same fire. We found that the duty of the fire truck drivers is set forth in various statutes, regulations, and ordinances of the city. Disregard of those statutes, departmental policies, and regulations was not within the discretionary function exception. See Fudge v. City of Kansas City, 239 Kan. 369, 720 P.2d 1093 (1986); Finkbiner v. Clay County, 238 Kan. 856, 714 P.2d 1380 (1986); Hopkins v. State, 237 Kan. 601; Toumberlin v. Haas, 236 Kan. 138, 689 P.2d 808 (1984).” pp. 30-31.
Simply stated, our more recent cases hold that the discretionary function exception is not applicable in those situations where a legal duty exists, either by case law or by statute, which the governmental agency is required to follow. The governmental agency cannot properly claim that its challenged action falls within the discretionary function exception where the action taken violated a legal duty.
In Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984), Cansler was a police officer who sustained serious injuries when he was shot by prison escapees. Although not resting its decision on the discretionary function exception, the Cansler court stated that the Kansas Tort Claims Act provides no barrier to claims based upon acts or omissions which are ministerial and not discretionary. A ministerial act is the performance of some duty involving no discretion. Cook v. City of Topeka, 232 Kan. 334, 337, 654 P.2d 953 (1982).
In Hopkins v. State, 237 Kan. 601, 610, 702 P.2d 311 (1985), the court defined discretion as the power and the privilege to act unhampered by legal rule. It also defined discretion as the capacity to distinguish between what is right and wrong, lawful and unlawful, or wise or foolish sufficiently to render one amenable and responsible for his acts. The court stated:
“Discretion implies the exercise of discriminating judgment within the bounds of reason. [Citation omitted.] It involves the choice of exercising of the will, of determination made between competing and sometimes conflicting considerations. Discretion imparts that a choice of action is determined, and action should be taken with reason and good conscience in the interest of protecting the rights of all parties and serving the ends of justice.” p. 610.
The Hopkins court concluded, in substance, that the discretionary function exception is available only when no mandatory duty or guidelines existed. Absent guidelines, police officers are vested with the necessary discretionary authority to act in an appropriate manner to protect the public.
In the later Kansas cases, the court has relied upon the presence or absence of a legal duty in deciding whether the discretionary function exception was applicable. Beck v. Kansas Adult Authority, 241 Kan. at 30, 33-34; Allen v. Kansas Dept. of S.R.S., 240 Kan. 620, 731 P.2d 314 (1987); and Fudge v. City of Kansas City, 239 Kan. 369, 720 P.2d 1093 (1986). The language in Allen makes it clear that illegal acts are outside the scope of the discretionary function exception and that the negligent performance of a ministerial act is not within the exception.
Although the federal cases are not consistent and are hard to distinguish, the better reasoned cases make it clear that the discretionary function exception is applicable only if there is no clearly defined mandatory duty. In Barton v. United States, 609 F.2d 977, 979 (10th Cir. 1979), the court stated:
“Concisely stated, the rule is that if a government official in performing his statutory duties must act without reliance upon a fixed or readily ascertainable standard, the decision he makes is discretionary and within the exception of the Tort Claims Act. Conversely, if there is a standard by which his action is measured, it is not within the exception. The statute provides that if the act of the official is discretionary it is not actionable even though the discretion is abused.”
Barton was followed in Weiss v. United States, 787 F.2d 518, 523 (10th Cir. 1986), where the court concluded, “[I]t is clear that if a duty is not mandatory or not clearly specified then it is discretionary.”
It is the position of the defendant drainage district in this case that its actions fall within the discretionary function exception and it has no liability where it diverts additional water into a natural watercourse and floods the land of an adjacent landowner because that is its statutory function. It- maintains, in substance, that it owes a duty only to the landowners within the district, and it has no responsibility for flooding the land of adjoining landowners outside the district. This same argument was made back in 1927 in the case of State, ex rel., v. Riverside Drainage District, 123 Kan. 46. There, the district argued that when public officers act within the scope of the powers conferred upon them, there can be no judicial interference with their decision and judgment. The district argued that its officers had the statutory authority to change a natural waterflow with immunity from adjoining landowners, because they were acting within their discretion. This court rejected that argument. The court held that the officers of the drainage district were not acting within the scope of the power conferred on them when they put a dike across a natural watercourse, the result of which was to prevent the water which naturally flows along and through the watercourse from entering the drainage district, without making any provision, either by contract with landowners outside the drainage district or by condemnation, which would authorize them to prevent such waters from entering the drainage district. The drainage district had authority by statute to change a natural watercourse within the drainage district. But this court clearly held that the drainage district did not have the power to violate the rights of adjacent landowners and that such acts are not within the powers conferred upon them by statute. This court stated:
“[W]here one of the plans was authorized by law and the other was not, and the one not authorized was the one adopted, and that resulted in injury and damage both to public and to private rights and property, such action cannot be justified' by a claim of the exercise of discretion.” pp. 54-55.
Thus, the court held, in substance, that a drainage district cannot legally claim that it has a discretionary right to alter a natural flow of a watercourse so as to cause damage to an adjacent landowner outside the district.
Based upon the rationale set forth above, we have concluded that the trial court properly held in this case that the discretionary function exception provided for in K.S.A. 75-6104(d) does not apply to relieve the Rossville Drainage District from liability in this case. This is so because, under the Kansas Tort Claims Act, a governmental agency does not have a discretionary right to violate a legal duty and avoid liability. To so hold would completely nullify the purpose of the Kansas Tort Claims Act.
We hold that the trial court correctly denied defendant Ross-ville Drainage District’s motion to dismiss. The case is remanded to the district court for trial on the evidentiary issues presented in the case. The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Herd, J.:
This is a criminal action. Carl Howard appeals his jury convictions of one count of aggravated kidnapping, K.S.A. 21-3421; two counts of rape, K.S.A. 1987 Supp. 21-3502; and six counts of aggravated criminal sodomy, K.S.A. 1987 Supp. 21-3506.
Howard was sentenced under the Habitual Criminal Act to serve a term of life for aggravated kidnapping, 20 years to life for each rape conviction, and 15 years to life for each count of aggravated criminal sodomy. The sentences for the rape convictions run concurrent with each other, but consecutive to the sentence for aggravated kidnapping. The sentences for the aggravated sodomy convictions run concurrent with each other but consecutive to the sentences for the rape convictions.
The facts out of which this case arose are sordid but must be recited in some detail because they control the issues raised. On March 5,1987, Howard went to the home of his former girlfriend, M, who was nine months pregnant, and told her he was leaving town. He told her she could have his furniture if she would come and get it. She indicated she would not be able to do so because of her condition. M’s sister, R, overheard the conversation and offered to go get the furniture for her sister.
R went with Howard on the short walk to his apartment around 12:30. Upon entering the apartment, Howard made several telephone calls. He then told R to help him with the furniture in the bedroom. As R was packing up the stereo, she felt a sharp pain behind her right ear and fell onto the bed, where Howard beat her, bit her, and demanded she undress. When R was unclothed, Howard forced his penis into her vagina while she begged him to stop. Howard told her to shut up and rolled her on her stomach, beat her on the back of her head, and inserted his penis into her anus. He then forced his penis into her mouth. As R continued to struggle and try to escape, Howard tried unsuccessfully to tie her hands with cord and a shoestring from R’s shoe. He repeatedly threatened to kill her, broke a glass behind her head, and shoved her head toward the broken pieces.
R then tried to escape by telling Howard she needed to use the bathroom. Howard grabbed her arm and accompanied her. In the bathroom, he again forced his penis into her mouth. He then leaned her over the tub and again forced his penis into her anus. He then shoved her down the hallway and against the bedroom door, where he again forced his penis into her anus. R attempted to flee down the hall but was overcome by Howard and forced to reenter the bedroom.
Howard put her on the bed and again pushed his penis into her mouth. At this point R, who was having difficulty breathing, vomited on the bed. Howard removed his penis from R’s mouth and repeatedly inserted it in her vagina while attempting to insert it in.her anus.
Finally, Howard stopped his physical abuse and said he should kill R, as he had nothing to lose. He said he was possessed and could read her mind. R tried to stay calm and asked if he would like her to get some tarot cards she had seen in the living room and read his future. He refused, saying she would escape. She told him she would not be able to leave without her clothes. He thought this sounded reasonable and let her leave the bedroom. R seized the opportunity, ran wildly out of the house, and pounded on a stranger’s door. A woman answered and let her in. She gave R a robe and let her call her mother and the police, who clocked the call at 3:20 p.m.
R’s mother found R vomiting in the woman’s bathroom and saw semen on R’s neck. The police took R to the hospital, where she was found to have an abrasion to her right labia, two tears in the perirectal tissue, and swelling in the rectal area. There was a whitish liquid material in the vaginal bulb and around the rectum. R’s face was swollen, she had abrasions on her hip, abdomen, and buttocks, and a bite mark on her left arm.
When the police went to Howard’s apartment, he pretended he had been asleep and denied any knowledge of a rape. Pursuant to a search warrant, the police discovered R’s clothing in Howard’s bedroom and her tennis shoes with a shoestring removed. There was vomit on the pillowcase on the bed and broken glass on the floor. A chemical examination of the sheets revealed the presence of seminal material.
At trial, Howard testified R consented to oral sex but interrupted his attempt at vaginal intercourse to tell him she had gonorrhea. He said he became enraged at this news and beat her until she ran out the front door. He had no explanation for the vomit found on the pillow, the bite mark on R’s arm, or the tears in her rectal area.
The first issue on appeal is whether the trial court erred in overruling Howard’s motion to dismiss the count of aggravated kidnapping as it was merely incidental to the other charges and did not facilitate the commission of a crime.
K.S.A. 21-3421 defines aggravated kidnapping as kidnapping where bodily harm is inflicted. Kidnapping is defined by K.S.A. 21-3420 in relevant part as “the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person . . . (b) [t]o facilitate flight or the commission of any crime.”
This statute was analyzed in State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976), where we noted our legislature had rejected the rationale of courts which construe their statutes to require substantial movement of the victim. We held: “Under our present statute it is still the fact, not the distance, of a taking (or the fact, not the time or place, of confinement) that supplies a necessary element of kidnapping.” 219 Kan. at 214.
We then analyzed the specific intent requirement of K.S.A. 21-3421(b), holding:
“[T]o facilitate . . . means something more than just to make more convenient. . . .
“[T]he . . . movement or confinement:
“(a) Must not be slight, inconsequential and merely incidental to the other crime;
“(b) Must not be of the kind inherent in the nature of the other crime; and
“(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.” 219 Kan. at 215-16.
Under this rule, we upheld a kidnapping conviction where the appellant had accosted a woman outside her store “where they were subject to public view,” and forced her inside the store to rape and rob her. “That movement, slight though it was, substantially reduced the risk of detection . . . .” 219 Kan. at 216. As an example of when the rule would show movement not to be a kidnapping, the court stated: “The removal of a rape victim from room to room within a dwelling solely for the convenience and comfort of the rapist is not a kidnapping; the removal from a public place to a place of seclusion is.” 219 Kan. at 216.
In State v. Cabral, 228 Kan. 741, 619 P.2d 1163 (1980), we set aside the appellant’s conviction and sentence for kidnapping. The victim in Cabral had willingly gone with the appellant in his car, after which he drove to a park and raped her after locking the car doors. We held such confinement was “of a kind inherent in the nature of forcible rape and incidental to the commission of the rape.” 228 Kan. at 745.
Neither of the foregoing cases pertain to facts such as we have here. Howard restrained R’s activity for at least one and a half hours, possibly three hours. When R attempted to leave he restrained her. Specifically, when R attempted to flee down the hall, Howard overcame her and forced her to reenter the bedroom. Clearly Howard’s actions were not slight, inconsequential, or merely incidental to the sex crimes and were not inherent in the nature of the sex crimes. Howard’s conviction for aggravated kidnapping is supported by substantial competent evidence.
The second issue is whether the trial court erred in overruling Howard’s motion to dismiss counts five (oral sodomy), six (anal sodomy), seven (oral sodomy), eight (rape), and nine (anal sod omy), as multiplicitous of counts two (anal sodomy), three (oral sodomy), and four (rape). Multiplicity exists when the State uses “a single wrongful act as the basis for multiple charges.” State v. Garnes, 229 Kan. 368, 372, 624 P.2d 448 (1981). Charges are not multiplicitous if each charge requires proof of a fact not required in proving the other. Garnes, 229 Kan. at 373. Thus, charges of oral sodomy, anal sodomy, and rape are not multiplicitous with each other because a different element is required in each. Offenses are also not multiplicitous when they occur at different times and different places, because they cannot then be said to arise out of a single wrongful act. Garnes, 229 Kan. at 373.
The question presented in this case is how widely separated in time and place separate actions must be in order not to be considered part of a single wrongful act. In State v. Dorsey, 224 Kan. 152, 578 P.2d 261 (1978), the court raised a multiplicity issue sua sponte and vacated two convictions of attempted rape and one of oral sodomy. The appellant had been convicted of committing three separate acts of attempted rape and two acts of oral sodomy as well as kidnapping. The separate acts were carried out against one victim over the course of one hour. We held a lapse of only minutes between each act showed there was only one wrongful act for purposes of multiplicity analysis.
We distinguished Dorsey in State v. Wood, 235 Kan. 915, 920, 686 P.2d 128 (1984), holding the trial court did not err in refusing to merge two counts of rape. In Wood, the victim was disrobed and raped in her bedroom. Two or three hours later, the victim was again disrobed and raped, this time in the living room. We found the two incidents to be clearly separate.
This case is analogous to Wood and distinguishable from Dorsey. The acts took place over a time span of one and a half to three hours and were separate and distinct, occurring at different times in different locations in the house and separated from each other by other sexual acts. We find the acts committed by Howard clearly separate and thus not multiplicitous.
The third issue, whether there was sufficient evidence to support Howard’s convictions of rape and aggravated criminal sodomy, is without merit. A reading of the facts of this case make it clear a rational trier of fact could well have found proof beyond a reasonable doubt that Howard committed the crimes of which he was convicted. State v. Pham, 234 Kan. 649, 675 P.2d 848 (1984).
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The opinion of the court was delivered by
Prager, C.J.:
This is a declaratory judgment action brought by the Kansas Malpractice Victims Coalition (plaintiffs/appellees), a group of named and unnamed medical malpractice victims, against Insurance Commissioner Fletcher Bell (defendant/appellant) in his capacity as administrator of the Health Care Stabilization Fund (Fund). Plaintiffs seek to prevent enforcement of 1986 House Bill 2661, a bill containing a variety of tort reforms and limiting the recovery allowed in medical malpractice actions. (K.S.A. 40-3401 et seq. and K.S.A. 1987 Supp. 60-3401 et seq.) The trial court granted summary judgment for the plaintiffs, ruling that certain new laws violated several constitutional provisions.
At the district court level, the Kansas Medical Society, the Kansas Hospital Association, and Attorney General Robert T. Stephan intervened on behalf of the defendant. On appeal, the Association of Trial Lawyers of America, the Distressed Parents Together Foundation, and the Consumer Federation of America appear as amici curiae. John B. Runnels, M.D., appears pro se, also as amicus curiae.
FACTS
H.B. 2661 was enacted in 1986 following a lengthy interim study and protracted debate in both houses of the Kansas Legislature. The bill was designed to reduce the cost of medical malpractice insurance coverage for Kansas doctors. To achieve that end, the bill capped total recovery in medical malpractice actions at $1,000,000 and also limited recovery for noneconomic loss to $250,000. In addition, the bill required that any recovery for future loss be invested in an annuity with regular payments to the plaintiff over a number of years. The annuity is to be owned not by the injured person, but by the Fund.
Plaintiffs first filed suit in Johnson County, alleging in their petition that H.B. 2661 impaired their rights to full recovery for their injuries and that any action by defendant to implement the bill was unconstitutional. The defendant immediately moved for a change of venue, which was granted. The action was then transferred and argued in Shawiiee County pursuant to K.S.A. 60-602(2).
The parties entered the entire legislative history of H.B. 2661 into the court file. That history included hundreds of pages of testimony and stacks of statistics. Based on the information contained in the record, plaintiffs moved for summary judgment. Judge Franklin R. Theis reviewed the arguments and concluded that H.B. 2661 violated various sections of the Kansas Constitution. He granted summary judgment for plaintiffs, and defendant and intervenors appealed directly to this court under K.S.A. 1987 Supp. 60-2101(b).
ISSUES TO BE DETERMINED
I. Whether the cap and annuity provisions of H.B. 2661 violate Section 5 of the Bill of Rights of the Kansas Constitution.
II. Whether the cap and annuity provisions of H.B. 2661 violate Section 18 of the Bill of Rights of the Kansas Constitution.
III. Whether the cap and annuity provisions of H.B. 2661 violate Section 1 of the Bill of Rights of the Kansas Constitution.
IV. Whether the trial court erred in severing various provisions of H.B. 2661 and in refusing to sever other provisions.
HISTORY AND ANALYSIS OF LEGISLATION
The statutes presented here for review do not represent the legislature’s first attempt to regulate litigation in the medical malpractice area. In the early 1970s, insurers, who had previously underwritten medical malpractice insurance policies, abandoned the market in response to increasing claims and decreasing profits. Comment, Caps, “Crisis,” and Constitutionality — Evaluating the 1986 Kansas Medical Malpractice Legislation, 35 Kan. L. Rev. 763, 765 (1987). As a result, health care providers found it difficult to obtain insurance.
In 1976, the Kansas Legislature responded to this “availability crisis” by enacting the Health Care Provider Insurance Availability Act. K.S.A. 40-3401 et seq. This act required all health care providers to carry medical malpractice insurance as a condition precedent to practicing in Kansas. K.S.A. 40-3402. Under K.S.A. 1987 Supp. 40-3401, “health care providers” is defined to include not only physicians but also persons engaged in certain medical training programs, hospitals, medical care facilities, optometrists, podiatrists, pharmacists, nurse anesthetists, dentists, physical therapists, and others. If a provider could not procure malpractice insurance on the outside market, he could apply for and receive insurance from the state-created Joint Underwriting Association (JUA). Every provider would then have primary coverage of $100,000 per occurrence and $300,000 annual aggregate. (These amounts were raised in 1984 to $200,000 and $600,000, respectively. [K.S.A. 40-3402]) Doctors insured by the JUA pay 20% more for their coverage than doctors covered by market insurance groups. The JUA is funded through the Fund, a state-run insurance company designed to provide additional insurance coverage above the primary coverage limits to all health care providers.
The Fund and the JUA are closely related, and to understand the so-called 1985 “crisis” in medical malpractice insurance, it is vital to understand the interworkings of the two. The Fund is administered by the Kansas Insurance Commissioner and is funded through surcharges based on premiums paid by health care providers for their primary coverage. For example, if a physician pays $5,000 for his primary coverage and the Fund surcharge is 50%, he will pay $7,500 for total insurance coverage. ($5,000 + [.5 x $5,000] = $5,000 + $2,500 = $7,500.) The surcharge is determined on a yearly basis and is designed to maintain an adequate balance in the Fund. Enabling legislation required that a surcharge be levied until the Fund had a $10,000,000 balance. This limit was reached in four years, and no surcharge was then levied from 1981 to 1983. This meant that all doctors in Kansas had free, unlimited coverage above the primary coverage for three years. More than $27,000,000 in settlements and awards were incurred during this time period. By 1986, the Fund was insolvent and doctors were assessed a 110% surcharge, a third of which was designed to make up for losses incurred during the three “free” years. In 1984, liability of the Fund was capped at $3,000,000. L. 1984, ch. 178, § 1.
Fund losses were further aggravated by the JUA. Because the JUA insures doctors who cannot procure insurance in the free market, it, in effect, insures uninsurable risks. In 1985, 250 health care providers were insured by the JUA. The Fund pays out every dollar assessed in claims against these providers, while, for other doctors, the primary carrier pays out the first $200,000 of any award. According to the administrator of the JUA, a small number of JUA-insured doctors were responsible for a large percentage of the losses incurred by the Fund.
Apparently, the mere existence of the Fund created problems. Insurers refused to enter a market where the State was involved, because this reduced competition. The Fund also monopolized the highly profitable excess insurance market, thus reducing the incentive for insurance companies to enter Kansas.
Thus, while the Health Care Provider Insurance Availability Act guaranteed the availability of insurance to all Kansas doctors, it played a strong role in bringing about (or at least aggravating) the 1985-86 crisis of medical malpractice insurance affordability. The 1976 legislation did little to reduce the number of claims made or the severity of those claims. Both continued in a steady upward spiral. Medical malpractice insurance premiums became increasingly expensive, multiplying five times in five years for some Kansas doctors. Still, 42% of Kansas doctors paid $3,000 or less for total insurance coverage (including an 80% surcharge) in 1985.
In 1985, the Kansas Legislature directed an interim study on the “crisis.” The end result was H.B. 2661, a major package of tort reform provisions. The measure passed quickly and became law on July 1, 1986. L. 1986, ch. 229, § 53. Here is a sample of how the bill works:
Section 13, K.S.A. 1987 Supp. 60-3407, limits recovery to $250,000 for all “noneconomic loss.” Noneconomic loss is not defined in the act. Under K.S.A. 1987 Supp. 60-3406, “noneconomic loss” would include all damages other than costs of medical care and related benefits, lost wages, loss of earning capacity, and other “economic losses.” Noneconomic loss would thus include claims for pain and suffering, mental anguish, injury and disfigurement not affecting earning capacity, or losses which cannot be easily expressed in dollars and cents. The total amount of recovery (including both noneconomic and economic damages) is limited to $1,000,000. Any recovery for future economic loss must be reduced to present value and must be invested in an annuity contract. The method of computing all these damages is based on an itemized jury verdict form which requires the jury to specifically determine noneconomic damages, present economic damages including lost wages and medical expenses, future economic loss, and the period of time over which payment of future economic loss will be needed.
The successful plaintiff is first awarded the total amount of his noneconomic loss up to $250,000. He also receives the total amount of his present medical and related expenses and economic losses so long as the total of his noneconomic loss and present medical expenses does not exceed $1,000,000. For example, if a plaintiff is awarded $200,000 for noneconomic loss and $800,000 for current medical expenses, he will receive the total amount awarded. If, however, his current expenses are $900,000, he will receive only $800,000 ($1,000,000 - $200,000 = $800,000). Assuming that the total is less than $1,000,000, the plaintiff is then awarded the present value of his future medical expenses and related benefits. That award, added to the non-economic loss and current medical expenses, must also come under the $1,000,000 cap. For example, if plaintiffs noneconomic loss and current economic loss equal $750,000, he could receive up to a limit of $250,000 for all future benefits and his recovery will be cut off at that point.
Any award for future benefits must be used to purchase an annuity contract which will pay out benefits for the amount and number of years set by the jury. The Fund holds the annuity as owner and directs the payments to the plaintiff as they are paid out. The plaintiff has no rights to the annuity and cannot assign any benefits he is to receive. K.S.A. 1987 Supp. 60-3409.
If a plaintiff receives a judgment that exceeds the $1,000,000 cap and the amount awarded for future medical costs is insufficient, he may later petition the trial court for supplemental benefits to pay only future medical care and related benefits up to a total of $3,000,000. Those benefits also may be provided by an annuity. This section is known as the “pinhole” provision. K.S.A. 1987 Supp. 60-3411. If the plaintiff successfully petitions the court under the pinhole provision, the Fund can be held liable for up to the full amount of the jury’s award of damages, not exceeding $3,000,000. Should a plaintiff be awarded a $6,000,000 judgment, only $3,000,000 of it could possibly come from the Fund. Prior to 1984, the Fund would have covered the entire amount. It is important to point out that a limitation on liability of the Fund is not an issue here. Because the Fund is a state-run insurance company, the State is free to limit its liability in any amount it wishes. The issue presented here is one of limiting the liability of a tortfeasor, namely the negligent health care provider. It is this limitation which plaintiffs claim violates the Kansas Constitution.
While H.B. 2661 made sweeping changes in the amount injured patients could recover, it did not change the underlying obligation of a health care provider toward his patients. Every health care provider has the duty to use reasonable and ordinary care and to exercise that reasonable degree of learning, skill, and experience which is ordinarily possessed by other health care providers in the same location. Durflinger v. Artiles, 234 Kan. 484, 489-90, 673 P.2d 86 (1983) (quoting Malone v. University of Kansas Medical Center, 220 Kan. 371, 375, 552 P.2d 885 [1976]). See PIK Civ. 2d 15.01. The injured patient must prove a breach of that professional duty and a causal connection between the breach and the injury. The law also requires that plaintiff prove actual damages. Durflinger v. Artiles, 234 Kan. at 488.
These requirements mean that, in the absence of misconduct which an ordinary layman would obviously consider to be negligent, no plaintiff can be successful in an action against a health care provider without competent expert testimony that the defendant’s behavior fell below a reasonable standard of care. No liability arises merely from bad medical results. Voss v. Bridwell, 188 Kan. 643, 652, 364 P.2d 955 (1961) (quoting Goheen v. Graber, 181 Kan. 107, 112, 309 P.2d 636 [1957]). The difficulty of recovering damages in a medical malpractice case is extreme. It has been estimated that only 10% of all claims filed result in a plaintiff s verdict.
There are certain statistics which were apparently undisputed at the legislative hearings and which are included in the appendices of the briefs of defendant and the intervenors. They are as follows:
1. In fiscal year 1987, there were 21 medical malpractice cases in Kansas district courts that were decided by a jury. Of these, there were 13 defendant’s verdicts and 8 plaintiffs verdicts. Only one verdict exceeded $1,000,000.
2. Less than 15 persons over the last 10 years would fall into the category of being affected by the $1,000,000 cap.
3. From 1976 to July 1, 1985, the Fund settled and paid in 135 cases. In only 7 cases did the Fund pay more than $1,000,000. This is 5.9% of the total.
CONSTITUTIONAL PROVISIONS
The Kansas constitutional provisions which are involved in this case are as follows:
“BILL OF RIGHTS
Ҥ 1. Equal rights. All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.
Ҥ 5. Trial by jury. The right of trial by jury shall be inviolate.
“§ 18. Justice without delay. All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.”
Before considering the constitutional issues presented on this appeal, we must consider the obligation of this court to protect the Kansas Constitution from encroachment by legislative action. “This court is by the Constitution not made the critic of the legislature, but rather, the guardian of the Constitution.” TriState Hotel Co. v. Londerholm, 195 Kan. 748, 760, 408 P.2d 877 (1965). The constitutionality of a statute is presumed, and all doubts must be resolved in favor of its validity. Before a statute may be stricken down, it must clearly appear the statute violates the Constitution. Moreover, it is the court’s duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. Brown v. Wichita State University (Brown II), 219 Kan. 2, 9-10, 547 P.2d 1015 (1976) (citing Moore v. Shanahan, 207 Kan. 645, 651, 486 P.2d 506 [1971], and Tri-State Hotel Co. v. Londerholm, 195 Kan. 748).
This case involves the rights of a citizen to a jury trial, equal protection of the laws, and a remedy by due course of law, all of which are guaranteed by the Bill of Rights of the Kansas Constitution. Justice Brewer, over 100 years ago wrote that “The bill of rights is something more than á mere collection of glittering generalities.” Atchison Street Rly. Co. v. Mo. Pac. Rly. Co., 31 Kan. 660, Syl. ¶ 1, 3 Pac. 284 (1884). He noted that those rights were “binding on legislatures and courts, and no act of the legislature can be upheld which conflicts with their provisions, or trenches upon the political truths which they affirm.” 31 Kan. 660, Syl. ¶ 1. The Bill of Rights protects the basic liberties which inure to each person at birth.
In Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803), Chief Justice Marshall stated that “the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.”
In Harris v. Shanahan, 192 Kan. 183, 387 P.2d 771 (1963), Justice Fatzer described this court’s duty to protect the Kansas Constitution in the following language:
“So there could be no mistake about its object and purpose, the American Republic officially and with the first breath of its new life declared, ‘that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.’ (The Declaration of Independence.) This is the American proclamation of freedom and equality, and the individual worth of a single human being. . . .
“It is sometimes said that courts assume a power to overrule or control the action of the people’s elected representative in the legislature. This is a misconception. . . . The judiciary interprets, explains and applies the law to controversies concerning rights, wrongs, duties and obligations arising under the law and has imposed upon it the obligation of interpreting the Constitution and of safeguarding the basic rights reserved thereby to the people. In this sphere of responsibility courts have no power to overturn a law enacted by the legislature within constitutional limitations, even though the law may be unwise, impolitic or unjust. The remedy in such a case lies with the people. But when legislative action exceeds the boundaries of authority limited by our Constitution, and transgresses a sacred right guaranteed or reserved to a citizen, final decision as to invalidity of such action must rest exclusively with the courts. In the final analysis, this court is the sole arbiter of the question whether an act of the legislature is invalid under the Constitution of Kansas. (Quality Oil Co. v. du Pont & Co., 182 Kan. 488, 493, 322 P.2d 731.) However delicate that duty may be, we are not at liberty to surrender, or to ignore, or to waive it.” pp. 204, 206-07.
During the past year, our people have been celebrating the Bicentennial of the United States Constitution. From state and national programs, our people have learned the importance of protecting the individual from encroachment by the majority or those in positions of power, no matter how well-meaning. Without the concept of equal justice for all, our basic liberties would have disappeared from the scene years ago.
The Bill of Rights of the Kansas Constitution and the Bill of Rights of the United States Constitution are there to protect every citizen, including a person who has no clout, and the little guy on the block. They are there to protect the rights of a brain-damaged baby, a quadriplegic farmer or business executive, and a horribly disfigured housewife who is a victim of medical malpractice. They are not there to see that the will of the majority is carried out, but to protect the rights of the minority. It is the obligation of this court in each case to carry out its constitutional responsibility. With that obligation in mind, we now turn to the issues involved in the case now before us.
I. Whether the cap and annuity provisions of H.B. 2661 violate the right to trial by jury under Section 5 of the Bill of Rights of the Kansas Constitution.
Section 5 of the Bill of Rights of the Kansas Constitution provides that the right of trial by jury shall be inviolate. It guarantees the right of every citizen to trial by jury. “ 'The right of trial by jury is a substantial and valuable right. The law favors trial by jury and the right should be carefully guarded against infringement.’ ” Waggener v. Seever Systems, Inc., 233 Kan. 517, 520, 664 P.2d 813 (1983) (quoting Bourne v. Atchison, T & S. F. Rly. Co., 209 Kan. 511, 497 P.2d 110 [1972]). “Trial by jury is guaranteed only in those cases where the right existed at common law.” Kimball et al. v. Connor et al., 3 Kan. *414, *432 (1866). Common law allows for the recovery of damages for negligent injury (Tefft v. Wilcox, 6 Kan. *46 [1870]), and therefore the right to jury trial applies here.
Kansas cases hold that the right to a jury trial includes the right to have a jury determine damages. Plaintiffs contend that the cap provisions of H.B. 2661 impair the right to a jury trial “by truncating the jury’s ability to fix damages.”
The jury’s traditional role is to decide issues of fact. Hasty v. Pierpont, 146 Kan. 517, 520-21, 72 P.2d 69 (quoting Walker v. Southern Pacific Railroad, 165 U.S. 593, 596, 41 L. Ed. 837, 17 S. Ct. 421 [1897]). The determination of damages is an issue of fact. Therefore, it is the jury’s responsibility to determine damages. Yet H.B. 2661 sets a limit on the recovery of damages, thereby restricting before trial the amount of damages available to those most severely injured. It also restricts access to whatever recovery is received, through the requirement of annuities. In other words, for a plaintiff who sustains massive injuries and to whom a jury awards $4,000,000, H.B. 2661 makes the determination that $1,000,000 is all the plaintiff needs. For a plaintiff who suffers any extreme pain and disfigurement, a limit of $250,000 is imposed. When the trial judge enters judgment for less than the jury verdict (as H.B. 2661 directs him to do) and orders an annuity contract, he clearly invades the province of the jury. This is an infringement on the jury’s determination of the facts, and, thus, is an infringement on the right to a jury trial.
Further support for the conclusion that Section 5 includes the right to have a jury determine damages comes from the ancient distinction between legal and equitable actions. At common law and under the Kansas Constitution, a party in a suit in equity (such as an action for specific performance, foreclosure, or to quiet title) is not entitled to a trial by jury. Waggener v. Seever Systems, Inc., 233 Kan. 517. On the other hand, suits seeking monetary recovery or money damages have always been considered actions at law which must be considered by a jury unless waived. Windholz v. Willis, 1 Kan. App. 2d 683, 686, 573 P.2d 1100 (1977). See City of Osawatomie v. Slayman, 182 Kan. 770, 323 P.2d 910 (1958). The right to a jury trial, then, turns on the type of remedy sought. It would be illogical for this court to find that a jury, empaneled because monetary damages are sought, could not then fully determine the amount of damages suffered.
However, the legislature can modify the right to a jury trial through its power to change the common law. Manzanares v. Bell, 214 Kan. 589, 598, 616, 522 P.2d 1291 (1974). This power, however, is not absolute. Under Manzanares, any statutory modification of the common law must meet due process re quirements and be “reasonably necessary in the public interest to promote the general welfare of the people of the state.” 214 Kan. at 599. Due process requires that the legislative means selected have a real and substantial relation to the objective sought. Ernest v. Faler, 237 Kan. 125, 129, 697 P.2d 870 (1985). One way to meet due process requirements is through substitute remedies. “We have never held one to have a vested right in the common-law rules governing negligence actions so as to preclude substituting a viable statutory remedy.” Manzanares v. Bell, 214 Kan. at 599.
This concept of an adequate substitute remedy is known as quid pro quo (this for that). It finds its basis in a long line of Kansas due process cases. For example, the court in Shade v. Cement Co., 93 Kan. 257, 144 Pac. 249 (1914) upheld the validity of worker’s compensation legislation because coverage under the act was elective. The court ruled that the statutes did not deprive a worker of his right to a jury trial because the worker could chose to seek a remedy in the common law rather than under the statute, provided he made his election prior to injury. More recently, this court noted that, while the worker’s compensation laws are no longer elective, they do remove certain common-law remedies for injured employees but provide a statutory substitute therefor. Rajala v. Doresky, 233 Kan. 440, 441, 661 P.2d 1251 (1983). The Rajala court upheld the legislation because the legislature provided, as a substitute, a viable statutory remedy.
In Manzanares, the court upheld the Kansas Automobile Injury Reparations Act (K.S.A. 40-3101 et seq.), noting that it provided a prompt recovery for loss without the requirement of proving liability in return for limits on the right to recovery. 214 Kan. at 599. Under K.S.A. 40-3117, any person who was entitled to no-fault benefits and whose medical expenses were less than $500 or who suffered no permanent disfigurement, fracture, or permanent injury, could not recover in a tort action for any nonpecuniary loss such as pain and suffering. 214 Kan. at 597. The court found, in substance, that the injured person entitled to benefits under the statute received a sufficient quid pro quo for the limitation placed on his right to a jury trial. The provision obviously did not affect the rights of a seriously injured plaintiff.
The legislation involved here seriously limits a plaintiff s right to recover nonpecuniary losses and then goes even further. It cuts off total recovery, and then requires the plaintiff to accept his award for future economic loss in the form of an annuity. In return for this infringement of his rights, the injured patient does not receive prompt payment (as in no-fault insurance) or a reduced burden of proof (as in workers’ compensation). Rather, according to defendant, the plaintiff will receive regular payments, unattachable by creditors. He also will receive the benefits of lower-cost health care because doctors will save money on their insurance and obviously pass the savings on to their customers. Because of these savings, more doctors will also be able to continue their practices, thus assuring the plaintiff of available health care. Perhaps most importantly, defendant argues that the medical malpractice plaintiff will be guaranteed a recovery because of the doctor’s insurance coverage. Defendant points out that many tort victims receive no compensation for their injuries because the tortfeasor has no assets.
However, as the trial court noted, this argument begs the question. Since 1976, health care providers in Kansas have been required to carry liability insurance in order to practice. L. 1976, ch. 231, § 2; K.S.A. 40-3402. Medical malpractice plaintiffs thus already had a source of recovery for their injuries — H.B. 2661 adds nothing to it. Nor do the savings that H.B. 2661 promises outweigh the plaintiff s lost rights. Actuaries testified that H.B. 2661 would result in a 5% decrease in the Fund surcharge. Should a doctor decide to pass these savings on to his hundreds of patients, each person’s savings would be minuscule. In return, the terribly injured patient is denied all remedy for those injuries and losses which exceed the caps. This “substitute remedy” is truly inadequate and denies a seriously injured patient his right to trial by jury.
H.B. 2661 is, in effect, a statutory compulsory, preestablished remittitur. Its cap provisions force a successful plaintiff to forego part of his jury award without his consent, in clear contradiction of the general rule that damages for personal injury are to be reduced by remittitur only when they shock the conscience of the court and only by providing the injured plaintiff the option of accepting the remittitur or asking for a new trial. See Slocum v. Kansas Power & Light Co., 190 Kan. 747, 378 P.2d 51 (1963); U.P. Rly. Co. v. Mitchell, 56 Kan. 324, 43 Pac. 244 (1896); Mo. Pac. Rly. Co. v. Dwyer, 36 Kan. 58, 74-75, 12 Pac. 352 (1886).
Other Kansas cases have clearly stated that damages are an issue for the jury alone, and are not to be arbitrarily limited by the court. In Domann v. Pence, 183 Kan. 135, 141, 325 P.2d 321 (1958), we find the following language:
“As was said and held in Knoche v. Meyer Sanitary Milk Co., 177 Kan. 423, 280 P.2d 605, there is of course no uniformity in our decisions on the proposition of when damages allowed in a personal injury action are excessive for the simple reason determination of the question necessarily depends upon the facts and circumstances of each particular case as it is presented for review. To like effect is Smith v. Wichita Transportation Corp., 179 Kan. 8, 293 P.2d 242. No verdict is right which more than compensates — and none is right which fails to compensate. (Union Pac. Ry. Co. v. Milliken, 8 Kan. 647, 655.) Pain and suffering have no known dimensions, mathematical or financial. There is no exact relationship between money and physical or mental injury or suffering, and the various factors involved are not capable of proof in dollars and cents. For this very practical reason the only standard for evaluation is such amount as reasonable persons estimate to be fair compensation for the injuries suffered, and the law has entrusted the administration of this criterion to the impartial conscience and judgment of jurors, who may be expected to act reasonably, intelligently and in harmony with the evidence.”
For these reasons, the caps and annuity provisions of H.B. 2661 violate the right to jury trial guaranteed by Section 5 of the Bill of Rights of the Kansas Constitution. Therefore, those sections are unconstitutional.
II. Whether the cap and annuity provisions of H.B. 2661 violate Section 18 of the Bill of Rights of the Kansas Constitution.
Section 18 of the Kansas Bill of Rights provides that all persons shall have a remedy by due course of law. The term remedy was defined in Hanson v. Krehbiel, 68 Kan. 670, Syl. ¶ 2, 75 Pac. 1041 (1904), as follows:
“ ‘Remedy by due course of law,’ as used in section 18 of the bill of rights, means the reparation for injury, ordered by a tribunal having jurisdiction, in due course of procedure and after a fair hearing.”
Just as the rights secured by Section 5 are not absolute, neither are the rights secured by Section 18. Over the years, the court has allowed the legislature to modify remedies when required by public policy. See Manzanares v. Bell, 214 Kan. at 599. However, as with Section 5, the court looks to insure that due process requirements are met and, when a common-law remedy is modified or abolished, an adequate substitute remedy must be provided to replace it.
Hanson involved a statute that limited the right of a person libeled to recover damages for injuries to his reputation. The statute required a prospective plaintiff to give three days’ notice to the libeling newspaper prior to filing his suit. The newspaper could then run a full retraction and avoid liability for any damage to the plaintiff s reputation. The newspaper would remain liable only for any actual damages (expressed in dollars and cents). Plaintiff Hanson argued that the statute violated Section 18 and the court agreed. The court stated:
“It requires no argument to demonstrate that the act in question denies a remedy for some of these injuries. Unless the one libeled has suffered in the particular manner pointed out in the statute, he is without remedy. For that large class of persons and still larger class of injuries not falling within the provisions of this statute, no remedy is found. . . .
“It is not an easy matter to deduce, either from reason or the authorities, a satisfactory definition of ‘law of the land’ or ‘due course of law.’ However, from either standpoint, we feel safe in saying that these terms do not mean any act that the legislature may have passed, if such act does not give to one an opportunity to be heard before being deprived of property, liberty, or reputation, or, having been deprived of either, does not afford a like opportunity to show the extent of his injury and gives no adequate remedy to recover therefor. Whatever more than this these terms may mean, they do mean due and orderly procedure of courts in the ascertainment of damages for injury, to the end that the injured one ‘shall have remedy’; that is, proper and adequate remedy, thus to be ascertained. To refuse hearing and remedy for injury after its infliction is a principle little removed from that of the infliction of penalty before and without hearing.” 68 Kan. at 673-74.
The remedy provided by the statute was inadequate, according to the court, because it treated every injury identically, irrespective of a court’s findings.
“The right to a remedy by due course of law is not satisfied by the requirement contained in a statute to make specific reparation for the injury done, which reparation is the same in all cases, bears no relation to the injury suffered, and has not been decreed by a tribunal after ascertainment of the extent of such injury.” 68 Kan. 670, Syl. ¶ 3.
Intervenors the Kansas Hospital Association and the Kansas Medical Society contend that Hanson was overruled by Coleman v. MacLennan, 78 Kan. 711, 98 Pac. 281 (1908). There, the court held that a defendant newspaper’s right to freedom of the press exceeded the political candidate’s right to remedy for libel. 78 Kan. at 715-723. The real issue was the balancing of constitutional rights, freedom of speech for the media, and the political candidate’s right to a remedy for libel. No legislation was involved, so there could be no issue of quid pro quo. At no place in the opinion does the court mention the subject of damages or refer to Hanson. Coleman has no applicability to the issues raised in this case.
The next important case is Noel v. Menninger Foundation, 175 Kan. 751, 267 P.2d 934 (1954), where the court struck down the judicially created concept of charitable immunity. The court ruled that such immunity denied the right to a remedy by due course of law under Section 18. The court said:
“To exempt charitable and nonprofit corporations from liability for their torts is plainly contrary to our constitutional guaranties (Bill of Rights, § 18). It gives to certain favored ones, selected arbitrarily, immunity from that equal liability for civil wrongs which is a sign of equality between citizens. It undertakes to clothe charitable and nonprofit organizations with special privileges denied to other corporations, and society. It takes from individuals the right to assert in the courts claims against all who tortiously assail their person and property and to recover judgment for the injuries done. It prevents all persons from having recourse to law for vindication of rights or reparation for wrongs against the privileged charitable, nonprofit organization. It frees one set of corporations from obligations to which their competitors, and individuals, are subjected. In short, it destroys equality and creates special privilege, (In re Opinion of The Justices, 211 Mass. 618, 98 N.E. 337.)” 175 Kan. at 763.
The court reasoned that a denial of recovery from a charitable tortfeasor forces the victim to make an unreasonable contribution to charity against his will, “and a rule of law imposing such burdens cannot be regarded as socially desirable nor consistent with sound policy.” 175 Kan. at 762. The concept of charitable immunity was thus held to deny plaintiff his right to a remedy and did not provide any adequate substitute remedy.
After Noel was handed down, the Kansas Legislature passed legislation designed to curtail the liability of charitable institutions by immunizing their assets from garnishment. Neely v. St. Francis Hospital & School of Nursing, 192 Kan. 716, 391 P.2d 155 (1964), involved a medical malpractice action where the plaintiff had recovered part of her damages (up to the limits of the hospital’s insurance coverage), but was denied full recovery because the statute involved (G.S. 1949, 17-1725 [1959 Supp.]) prevented her from obtaining a garnishment on the hospital’s bank account. The court, relying heavily on Noel, refused to allow the legislature to do indirectly what could not be done directly. The court stated that the provisions in Section 18 of the Bill of Rights of the Kansas Constitution guaranteeing to persons a remedy by due course of law cannot be watered down by diluting the definition of remedy. The court used language which is equally apropos to the facts in the present case:
“The appellees contend a distinction must be made between ‘remedy’ and ‘recovery.’ They argue the statute in question in no way denies the appellant a remedy by due course of law. To support this contention they call our attention to the fact that the appellant has already been paid in excess of $58,000 on the judgment, and by reason thereof it is apparent she had a remedy. This argument overlooks the fact that if the appellee hospital had carried no insurance, the appellant would not have recovered one dime, assuming the validity of 17-1725, supra, is upheld. Furthermore, there would be no necessity for such hospitals to carry insurance in the future.
“The appellees further argue there is no section of the Constitution of this state or of the United States that guarantees full recovery to the prevailing party; that to provide a remedy is not to guarantee a right, or indemnify against wrong. Obviously, the extent of the assets of a judgment debtor are not guaranteed by any Constitution. This argument evades the issue.” 192 Kan. at 721.
The court, in the words of Justice Schroeder, emphatically stated that Section 18 provides the right to a remedy for all injuries, not just a few.
“We adhere to the construction of Section 18 of the Bill of Rights of the Kansas Constitution placed upon it in Noel v. Menninger Foundation, supra, where it was said: ‘. . . It is the primary duty of the courts to safeguard the declaration of right and remedy guaranteed by the constitutional provision insuring a remedy for all injuries. . . .’ (p. 763.) (Emphasis added.)” 192 Kan. at 722-23.
This court later upheld legislation under the quid pro quo analysis in Manzanares v. Bell, 214 Kan. 589, discussed earlier in this opinion. While recognizing that the no-fault insurance act limits the right to recover for losses due to pain, suffering, or mental anguish, the court upheld it because the act “assures all motor vehicle accident victims of prompt, efficient payment of certain economic losses. To the extent there is a limitation on a person’s ability to recover nonpecuniary damages, the rights received in exchange are no less adequate.” 214 Kan. at 599.
The most recent case reviewing Section 18 is Ernest v. Faler, 237 Kan. 125. There, the court struck down a “notice of claim” statute which effectively cut off the right to recover damages for negligent pesticide application. The court reviewed Hanson, Noel, and Neely, and restated that “the right of a person injured by the tortious act of another to a remedy for his injuries is one of the basic constitutional rights guaranteed protection by the Kansas courts.” 237 Kan. at 132. The court held the statute unconstitutional as a violation of due process because it was unfair, unreasonable, and did not have a real or substantial relation to the objective sought. 237 Kan. at 138.
Both plaintiffs and defendant agree that these cases result in one rule: The legislature can modify the common law so long as it provides an adequate substitute remedy for the right infringed or abolished. Intervenors Kansas Medical Society and Kansas Hospital Association stand alone in urging a different rule upon this court. They argue that Wright v. Pizel, 168 Kan. 493, 214 P.2d 328 (1950), overrules Hanson, supports Coleman, and stands for the rule that removal of a remedy can be justified any time by public need. However, the Wright court specifically noted that it did not reach the issues of whether the plaintiff had a common-law right to sue for injuries received while he was a guest in an automobile and whether the legislature had substituted some other remedy in return for denying that right. 168 Kan. at 505-06. Wright thus involved an entirely different analysis than we are concerned with here. It is also important to note that Hanson is cited and relied on in Ernest v. Faler, 237 Kan. at 131-32, as a basis for the decision.
Having considered established Kansas law, we now turn to the case at hand. There can be little doubt that H.B. 2661 infringes on the right to a remedy by limiting recovery for noneconomic loss, overall loss, and by forcing successful plaintiffs to accept their award over a number of years by means of an annuity contract. Neely is clearly controlling on this point. In Neely, the practical effect of the statute \Vas to limit a patient’s recovery to the extent of the hospital’s insurance coverage, an arbitrary limit. Here, H.B. 2661 by its caps cuts off recovery at $250,000 and $1,000,000, also arbitrary amounts. In Neely, the court found that the right to a remedy means the right to a full remedy, regardless of the likelihood of recovery. Neely v. St. Francis Hospital & School of Nursing, 192 Kan. at 722-23. This same flaw must also cut down the $3,000,000 “pinhole” provision, for it is simply another limit on recovery, albeit higher.
The forced remedy of recovery of future damages by annuity also violates the common-law right to a remedy. The annuity provided for in the statute is a contract, owned and controlled by someone else. Plaintiffs traditionally receive lump-sum judgments that they control. While a plaintiff may certainly agree to accept his judgment in the form of an annuity (or in whatever form he chooses), the concept of forcing him to accept an annuity limits his remedy. His payout may take years and, as Judge Theis noted, there is always the risk of default, however slight. Lump-sum payments do not carry such risks. Annuities, therefore, modify the common law with regard to remedies.
Assuming, then, that H.B. 2661 limits a plaintiffs right to a remedy under Section 18, we must then decide if the plaintiff has received a quid pro quo, or an adequate substitute remedy. Again, defendant and intervenors argue that the plaintiff receives a guaranteed recovery because doctors will have available, affordable insurance coverage. In a somewhat circular argument, they contend that H.B. 2661 lowers the cost of insurance, thereby encouraging doctors to continue their practices, increasing the number of doctors available, and guaranteeing the availability of quality health care to seriously injured malpractice victims. This is not a sound argument. If it were not for negligent health care providers, their victims would not need the continuing health care. The argument also ignores the fact that health care providers have been required to carry malpractice insurance since 1976. Thus a plaintiff s source of recovery is already provided by K.S.A. 40-3402 and K.S.A. 1987 Supp. 40-3404.
The language in Neely points out that access to a source of recovery is vastly different from the right to a remedy. “[T]o provide a remedy is not to guarantee a right, or indemnify against wrong. Obviously, the extent of the assets of a judgment debtor are not guaranteed by any Constitution. This argument evades the issue.” 192 Kan. at 721. The answer is the same today: no medical malpractice victim is guaranteed the right to recover for all of his injuries. Thus, it is legally valid for the legislature to abolish the Fund or cap liability of the Fund at $1,000,000 or any other amount. However, the legislature cannot abolish the right to a remedy by capping a plaintiffs recovery at $250,000, $1,000,000, or even $3,000,000 without providing an adequate substitute remedy. The “substitute” they propose here is nothing new in the law. H.B. 2661 removes-a substantial right of the plaintiff and gives him nothing in return.
H.B. 2661, without question, eradicates the right to a remedy by due course of law for certain injuries. Just as in Noel, it eliminates the right to a remedy for those injured by a certain favored group of tortfeasors. Just as in Neely, it restricts the right to a remedy by redefining “recovery.” The effect of H.B. 2661 is to force every plaintiff to make a contribution, against his will, to the medical malpractice insurance industry. Yet it provides no adequate substitute remedy, and thus falls short of the requirements of Manzanares.
The cap and annuity provisions of H.B. 2661 infringe upon a medical malpractice victim’s constitutional right to a remedy by due course of law and no quid pro quo is provided in return. The trial court was correct in holding the caps and the annuity provisions unconstitutional as a violation of Section 18.
III. Whether the cap and annuity provisions violate equal protection of the law under Section 1 of the Kansas Bill of Rights.
In view of the findings of this court that the cap and annuity provisions violate Sections 5 and 18 of the Kansas Bill of Rights, a consideration of the equal protection argument under Section 1 has become moot. We agree with the trial court that it makes no real sense to apply an equal protection argument analysis to the cap and annuity provisions when the result in the case is controlled by Sections 5 and 18 of the Kansas Bill of Rights.
Under the circumstances, we do not determine the equal protection issue in this case.
IV. Whether the trial court erred in severing various provisions of H.B. 2661 and in refusing to sever other provisions.
The trial court held unconstitutional the cap provisions of Section 13 (K.S.A. 1987 Supp. 60-3407), the annuity provisions of Section 15 (K.S.A. 1987 Supp. 60-3409), and the so-called “pinhole” provisions of Section 28 (K.S.A. 1987 Supp. 60-3411). We affirm the trial court’s judgment that those sections violate Sections 5 and 18 of the Kansas Bill of Rights and are therefore unconstitutional and unenforceable.
The trial court then held that all other sections of H.B. 2661 were severable and not affected by the unconstitutionality of Sections 13, 15, and 28, except for Sections 27(h) (K.S.A. 1987 Supp. 40-3403[h]), which immunized health care providers from vicarious liability, and Section 27(i) (40-3403[fJ), which limited the liability of the Fund to $1,000,000 per claim and $3,000,000 yearly aggregate per health care provider.
The limits on liability claims existing on July 1,1986, and prior thereto were $3,000,000 for an individual judgment or settlement and an aggregate limitation of $6,000,000.
We have considered the arguments of counsel and have concluded that the trial court erred in holding that the vicarious liability provision of Section 27(h) (40-3403[h]) is not severable from the sections found to be unconstitutional in this case. Neither the plaintiffs, the defendant, nor the intervenors addressed the validity of Section 27(h) in the trial court, nor is it clear that plaintiffs would have standing to do so. The trial court, without constitutional analysis, concluded that the vicarious liability provision was so closely tied to the cap and annuity provisions that it fell with those provisions. While the provision for abolition of vicarious liability may or may not be unconstitutional, that issue was not properly raised in this case. The trial court erred in striking down Section 27(h).
The question of whether Section 27(f) of H.B. 2661 (40-3403[f]) is voided because that section is not severable from the cap and annuity provisions presents a much more difficult issue. The problem is whether the invalidity of Sections 13, 15, and 28 of H.B. 2661 should restore the prior limitation on Fund liability in the amount of $3,000,000 per claim and an aggregate limitation of $6,000,000 as the statutes provided prior to the enactment of H.B. 2661. Would the legislature have reduced the limitations on the liability of the Fund in the absence of the cap and annuity provisions?
We have concluded that the legislature would not have done so. We are persuaded by the fact that the legislature enacted the “pinhole” provision of Section 28 (K.S.A. 1987 Supp. 60-3411), which shows a legislative intent to retain the $3,000,000 limit for each claim in cases where the “pinhole” provision was applicable. Furthermore, we believe finding Section 27(f) void would be unfair to health care providers who failed to obtain insurance coverage above $1,000,000, in reliance on the cap and annuity provisions.
We hold that, until the legislature enacts legislation to lower the liability of the Fund from $3,000,000 on an individual judgment or settlement and from an aggregate liability of $6,000,000, those limitations shall continue. All other sections of H.B. 2661 shall remain in effect except that references in any section to Sections 13, 15, or 28 shall be of no force and shall be disregarded.
For the reasons set forth in this opinion, the judgment of the district court is affirmed, but modified to hold that Section 27(h) of H.B. 2661 (K.S.A. 1987 Supp. 40-3403[h]) is severable and remains in full force and effect.
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The opinion of the court was delivered by
Herd, J.:
This is a criminal action in which Scott Chisholm was extradited to Kansas and convicted by a jury of two counts of aggravated incest with his eight-year-old stepdaughter (V) in violation of K.S.A. 1987 Supp. 21-3603. The execution of Chisholm’s sentence of consecutive three- to seven-year terms for each count was suspended, and Chisholm was placed on four years’ probation under intensive supervision in Sacramento County, California. Chisholm appeals.
The victim’s mother married Scott Chisholm on April Fools Day, 1985. V and her younger brother and sister were living with their grandmother in Clay Center at the time and did not move to Ogden to live with their mother and new stepfather until school was out in May.
After spending the summer with the children, Chisholm and the mother moved to California in October and the children were again left with the grandmother. Chisholm and the mother separated in March of 1986 and the mother returned to Kansas.
During the summer of 1986 V and her best friend were ex changing confidences. V suddenly told her friend she needed to tell her about a bad thing that had happened to her. She said Chisholm had secretly touched her in “private parts” the summer before. The friend told V shé should tell her mother, but V said she was afraid. A few days later she woke her mother early in the morning and told her.
V’s mother called the police and SRS and they arranged to videotape V’s story pursuant to K.S.A. 1987 Supp. 22-3434. V told of two incidents which had taken place during the summer of 1985. The first took place when her mother went shopping and her sister and brother were playing at the neighbors. Chisholm told V to come into his bedroom and made her slide her hand back and forth on his “private parts.” She showed the interviewer what she meant by “private parts” by the use of dolls. She said the defendant’s “private parts” looked like her brother’s, which she had seen once, except it was bigger, was standing up, and had hair around it.
The other incident occurred early one morning. V went into her mother’s and stepfather’s bedroom to ask if she could watch cartoons in the livingroom. Her mother said yes and went back to sleep. Chisholm went into the livingroom where V was sitting on the floor in a nightgown and told her to come sit on his lap. He then told her to go into the bathroom and take off her panties. She did this and came back and sat on the floor. He again told her to come sit on his lap and to turn around facing him with her legs over his. He lowered his shorts and put his fingers in her “private parts.” She said Chisholm told her “this is the way to have sex and when you meet a boy in your life that you really like, this is what you do.” She demonstrated what happened with dolls.
Chisholm was charged with two counts of aggravated incest in violation of K.S.A. 1987 Supp. 21-3603. The videotape was shown at the preliminary hearing and V was subjected to cross-examination as to her videotaped testimony, in the presence of Chisholm.
Before trial, the State moved that V’s testimony be taken by closed-circuit television or, in the alternative, by prerecorded videotape pursuant to K.S.A. 1987 Supp. 22-3434. The State noted V was less than 13 years old and had expressed fear of Chisholm. It argued closed-circuit television would best allow orderly presentation of evidence and noted Chisholm’s constitutional rights would be safeguarded by provisions for objections and cross-examination. The State preferred the use of closed-circuit television because it allowed contemporaneous objections.
K.S.A. 1987 Supp. 22-3434 makes the decision discretionary with the court whether to use its prescribed methods to obtain the testimony of child victims. The court noted that although the statute did not set forth criteria to be applied by the court in exercising its discretion, it felt the non-mandatory language put a burden on the State to show why its request should be granted.
The State replied one of the purposes of the statute was to spare a child victim from being forced to confront the defendant again and again. V had told her mother, the social worker, and the prosecutor she was afraid of Chisholm. V’s mother testified V had not told her of the abuse until after she had explained to the children she was divorcing Chisholm' and he would not be coming back to Kansas. The State observed V had been able to give coherent, detailed testimony when she was interviewed by the social worker, but when she was faced with Chisholm during cross-examination at the preliminary hearing she had seemed frightened by him and overawed by the courtroom. She had been unable to say much at all, and the State argued the chances of her being able to coherently testily again at trial if confronted with Chisholm were “dim.”
Defense counsel argued it was important the jury see V in person and not see her as being given special treatment. However, he was primarily concerned that the court not grant the State’s alternative request for prerecorded tape. Chisholm was not planning to be in Kansas until just before the trial, and it would be inconvenient for him to come earlier in order to exercise his right to observe, unseen, the videotaping. No constitutional objections were raised.
The court denied the State the opportunity to prerecord V’s testimony, but held, in view of the contrast between V’s demeanor when confronted with Chisholm at the preliminary hearing and her demeanor on videotape, it would be appropriate for V to give her testimony on closed-circuit television and avoid facing Chisholm.
At trial, V’s friend repeated her earlier testimony and spoke of V’s fear at telling the secret. V’s mother repeated her testimony and added that after that summer, V had become withdrawn and began having problems in school, which had never happened before.
V testified from a special room in which a camera booth had been installed so Chisholm and the cameraman remained unseen to V and the attorneys. After V was sworn in, she gave direct testimony, subject to contemporaneous objection by defense counsel who was also in the room with her. A cable was connected so the judge could communicate with the attorneys and give his rulings. V testified she was afraid all year to tell anyone what happened because she thought Chisholm would find out when he came back from California and be angry and hurt her. She said she was also embarrassed to talk about it, because she did not think things like this happened to other little girls.
After direct examination, the court granted a recess so Chisholm could privately confer with his counsel in a separate room before cross-examination began. After cross-examination, Chisholm testified in his own behalf, denying the incidents. The jury found Chisholm guilty of both counts of aggravated incest.
The constitutional issues raised on appeal were not presented at trial or in the motion for new trial. Although they are therefore not properly before us for review (State v. O’Neal, 238 Kan. 183, 187, 708 P.2d 206 [1985]), we will consider the issues as an exception to the rule and to serve the ends of justice. Pierce v. Board of County Commissioners, 200 Kan. 74, 434 P.2d 858 (1967).
The first issue is whether the use of closed-circuit television is unconstitutional. Chisholm contends K.S.A. 1987 Supp. 22-3434 violates a criminal defendant’s Sixth Amendment right to confront his accuser without requiring the State to show its use is necessary. He argues the procedure violated his right to a fair trial in that it prejudiced the jury and could not constitutionally be imposed without a specific showing it was necessary to serve an essential State interest. He also argues the physical separation from his attorney during the testimony of V resulted in a denial of effective assistance of counsel.
Most of Chisholm’s arguments were considered and rejected by this court in State v. Johnson, 240 Kan. 326, 729 P.2d 1169 (1986), cert. denied 481 U.S. 1071 (1987). In Johnson, we considered the constitutionality of K.S.A. 22-3434 in a case in which prerecorded videotaped testimony of a child victim was presented at trial. We held the statute did not violate the defendant’s right to confront the witnesses against him, and held its detailed requirements and protection of cross-examination rights precluded the need to find the witness “unavailable.” Chisholm, in arguing the State must show the procedure to be “necessary,” is making the same argument. He argues the State’s contention that V was frightened of him and “almost unable to give any testimony” in his presence at preliminary hearing was insufficient. He contends the State must show V was unable to give any testimony. This amounts to a requirement that the witness be unavailable, which we have held is not required under the statute.
Chisholm argues Johnson may be distinguished from the case at bar because it dealt with prerecorded videotape rather than closed-circuit television. There is no basis for distinction. The procedure for the use of closed-circuit television contains the same constitutional safeguards as videotape with the additional benefit that the court is able to rule on objections contemporaneously. Chisholm’s first issue is resolved by Johnson. K.S.A. 1987 Supp. 22-3434 grants a defendant the essential elements of his right to confrontation. He and the jury observe the witness’s testimony and demeanor. Most importantly, cross-examination, the main reason for the right of confrontation, is fully available. See State v. Cathey, 241 Kan. 715, 728, 741 P.2d 738 (1987).
The only missing element in using closed-circuit television rather than live courtroom testimony is the witness’s observation of the defendant and the court during her testimony. Arguments are made that this element encourages the truth in an adult witness. However, it is more likely to inspire terror, trauma, and speechlessness in a small child. The legislature, in searching for the best means by which the truth could be ascertained, wisely provided an alternative method of adducing testimony of children under 13 years of age which preserves the right of cross-examination but eliminates the potential intimidation of a face-to-face meeting between an accused and a child victim.
The second issue is whether K.S.A 1987 Supp. 22-3434 impinges upon a criminal defendant’s right to a fair trial guaranteed by the 14th Amendment without requiring the court to consider less prejudicial alternatives before finding the procedure serves an essential State interest. See Holbrook v. Flynn, 475 U.S. 560, 89 L. Ed. 2d 525, 106 S. Ct. 1340 (1986); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 73 L. Ed. 2d 248, 102 S. Ct. 2613 (1982).
Chisholm argues his separation from his accuser encroached upon his fundamental right to be presumed innocent by the jury, for it could conclude he must be guilty if the child was protected from facing him. He maintains the precautions implying the child had been traumatized might cause the jury to be more sympathetic to her testimony, and the unique mode by which it was conveyed might cause the jury to place greater emphasis on her testimony than his. He complains the court made no explanation to the jury to dispel possible prejudicial effects.
Chisholm requested no explanation at trial, and suggested no alternatives to the procedure outlined by the legislature. The jury was instructed at the close of testimony that Chisholm must be presumed innocent until proven guilty beyond a reasonable doubt. In the absence of either a contemporaneous objection or a request for an instruction by the defendant, we find no error.
The final issue is whether Chisholm’s brief separation from his counsel during V’s testimony constituted denial of effective counsel. Chisholm makes no attempt to meet his burden of showing the two prongs of deficiency and prejudice mandated by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 (1984), and instead relies on United States v. Cronic, 466 U.S. 648, 658-59, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984), which held circumstances in which counsel is prevented from assisting a criminal defendant during a critical stage of the proceeding may constitute constitutional error per se. Chisholm’s argument misses the point. He was vigorously represented by counsel during this critical stage in the trial. The court did not require Chisholm’s attorney to be with the witness during direct testimony, rather than with Chisholm behind the booth. It was obviously in Chisholm’s best interests that he not confer with his attorney at that point. The only right taken from Chisholm was the doubtful tactic of writing notes or whispering in his counsel’s ear during direct testimony. Chisholm was allowed to consult privately with his counsel before cross-examination of V. He could have had a telephone hookup with his attorney during both direct and cross-examination of V had he requested it. He made no such request. This issue is without merit.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Herd, J.:
This is a tax grievance case wherein U.S.D. No. 501 appeals from an order of the district court affirming a Board of Tax Appeals (BOTA) order correcting erroneous assignments of personal property of taxpayer Frito Lay for tax years 1982 through 1985.
In 1985 Gary Smith, Shawnee County appraiser, discovered personal property of Frito Lay had been assigned to taxing district 001, containing U.S.D. No. 501, rather than to the proper taxing district 014, which contained U.S.D. No. 437. Investigation disclosed the error had existed and been perpetuated by computer from 1977.
Frito Lay had been listing its personal property on a single rendition sheet even though the property was located in three different taxing districts. Mr. Smith requested Gary Welch, the tax representative for Frito Lay, to assist in making certain the situs of Frito Lay’s personal property was divided properly among the three districts.
Smith then reported the error to the county clerk, who, pursuant to K.S.A. 1987 Supp. 79-1701a, requested the county commission to issue a correction order. The county commission approved change orders for tax years 1983, 1984, and 1985, which removed property misassigned to U.S.D. No. 501’s district and reassigned it to U.S.D. No. 437’s district. Under the correction orders, the taxes paid to U.S.D. No. 501 were to be reduced by $631,053.08 and the taxes paid to U.S.D. No. 437 were to be increased by $568,941.08. This resulted in a net refund to Frito Lay of $62,112.00, due to a lower mill levy in U.S.D. No. 437’s district for two of the three years in question. It was estimated this amount would be a little over 1% of U.S.D. No. 501’s 1985 budget. U.S.D. No. 437 had refunded a similar percentage of its budget in a previous year in compliance with a refund order from the county because of a taxing error.
The county treasurer, pursuant to the procedures outlined in Cities Serv. Oil Co. v. Board of County Comm’rs, 224 Kan. 183, 578 P.2d 718 (1978), ordered the refund to be made from the current collections in back tax funds of U.S.D. No. 501 held by Shawnee County. The county clerk testified hundreds of clerical errors were corrected in this way by the county each year and the procedure followed in this case was the procedure followed in every instance.
U.S.D. No. 437 filed a grievance with BOTA, requesting that the personal property taxes from Frito Lay which should have been assigned to its district be corrected under the provisions of K.S.A. 1987 Supp. 79-1702 for all years in which the error occurred rather than only from 1983 through 1985. K.S.A. 1987 Supp. 79-1702 allows for only one additional year of relief, which year was granted by BOTA. A grievance filed by U.S.D. No. 501 was consolidated with U.S.D. No. 437’s grievance. U.S.D. No. 501’s grievance was denied, as was its motion for a rehearing. The district court affirmed.
U.S.D. No. 501 argues the past errors in assignment of personal property did not harm U.S.D. No. 437 because of the nature of ad valorem taxes. Under the ad valorem taxation scheme, taxing units submit their budgets to the county. The levy is then spread against the valuation in the taxing district at the mill rate to raise the budgeted amount. Thus, we see that mistakes made in assigning property to taxing units affect total assessed valuation, which in turn impacts the levy needed to fund the adopted budgets. When valuations go down, levies • go up. Absent a limitation of levy, total revenues received by the taxing units are not affected by valuation. Pursuant to K.S.A. 79-304 and K.S.A. 1987 Supp. 79-1412a, the county appraiser lists and assesses all personal property subject to ad valorem taxation in the taxing district in which the property is located on January 1 of the tax year. Assessment rolls are then submitted to the county clerk. On or before August 25 of each year, unified school districts certify to the county clerk their budgeted amounts of expenditures for determination of the ad valorem tax levy. K.S.A. 72-8204a; K.S.A. 79-2930; K.S.A. 79-1801. The county clerk then computes the tax levy rate required to fund such expenditures upon the basis of the final equalized assessed valuation of each district. The county clerk, on or before November 1, places the ad valorem taxes on the county tax rolls for collection by the treasurer. K.S.A. 79-1801; K.S.A. 79-1803. The treasurer then collects the taxes and makes distribution to the taxing units. K.S.A. 79-1801; K.S.A. 79-2934.
A lower or higher valuation will call for a lower or higher levy to raise the budgeted amount, but the school district receives the revenues to fund its adopted budget. Each school district received approximately its budgeted amount through current year tax revenues despite the misassignment of the Frito Lay property. The only effect of the misassignment was to slightly decrease the levy rate of U.S.D. No. 501 and slightly increase the levy rate of U.S.D. No. 437, which U.S.D. No. 501 claims is irrelevant to the issue here.
U.S.D. No. 501 points out that state funding of Kansas unified school districts is pursuant to the school district equalization act, K.S.A. 72-7030 et seq. Under the act, state aid to school districts is based in part upon the total assessed valuation in each district. The circumstances presented resulted in a decrease of state funding to U.S.D. No. 501 and an increase of state funding to U.S.D. No. 437. For school years 1978-79 through 1984-85, U.S.D. No. 501 estimates it received approximately $74,000 less in state aid as a result of the assignments of Frito Lay property to its taxing unit. U.S.D. No. 437 received approximately $71,000 more in state aid.
U.S.D. No. 501 contends it will be harmed by the correction order because it will receive less than the revenues needed to fund its budget for the tax year 1985, and U.S.D. No. 437 will receive current year tax revenues in excess of its adopted budget. This is because the levy of its taxing district was based upon a valuation which included Frito Lay’s personal property, but the proceeds from this levy were ordered refunded to Frito Lay. U.S.D. No. 501 contends if Frito Lay is now taxed for the benefit of U.S.D. No. 437, it creates a windfall for that district.
Let us now turn to the controlling issues, the first of which is whether the improper assignment of personal property was a clerical error. K.S.A. 1987 Supp. 79-1701 authorizes the county clerk to correct eight different types of errors for a current year, which are discovered prior to November 1, including “errors whereby the assessment of either real or personal property has been assigned to a taxing district in which the property did not have its taxable situs.” Appellant argues the county’s mistake cannot be deemed a clerical error, because once the error was discovered, the county had to use discretion to determine if the property was assigned to the correct taxing district.
Appellees argue the statute allows for corrections in just this situation. It argues a narrower reading would cause chaos, as an investigation would have to be made to discover how each error was made in the hundreds of cases of this type each year. Even if the investigation proved fruitful, a narrow reading would render many errors uncorrectable, resulting in taxpayers being unjustly taxed. Appellees also argue there is no discretion involved in assigning property to a particular taxing unit — it is merely a matter of matching the location of the property to the correct geographical district on the taxing map. We agree with the argument of appellees. K.S.A. 1987 Supp. 79-1701(g) clearly and unambiguously makes the assigning of property to the wrong taxing district a clerical error correctable by the county clerk.
The next issue is whether the county and BOTA had authority to issue the correction orders. K.S.A. 1987 Supp. 79-1701a grants the board of county commissioners the power to issue orders correcting the clerical errors enumerated in 79-1701. Appellant notes the statute states remédies which may be ordered as follows:
“[T]he county commissioners may direct a refund in the amount of the overpayment .... If all or any portion of the taxes on such property remain unpaid, the board oí county commissioners shall cancel that portion of such unpaid taxes which were assessed .... In lieu of taking such a refund the taxpayer may ... be allowed a credit on the current year’s taxes in the amount of the overpayment for the previous year. In the event the error results in an understatement of value or taxes as a result of a mistake on the part of the county, the board of county commissioners of the several counties are hereby authorized to correct such error . . . .” (Emphasis added.)
Appellant argues Frito Lay should receive a refund for the difference between what it actually paid in 1983 and 1984 and what it would have paid under the lower levy rates of U.S.D. No. 437, and that the taxes for 1985 should be cancelled because the order for correction was issued before Frito Lay made payment. Thus, according to appellant, it should have to refund only $24,007.14 for 1984 and $22,832.64 for 1983. This argument is without merit because it ignores the plight of the real injured parties, U.S.D. No. 437 taxpayers.
Appellant argues the statutes in question are available only for taxpayer relief under In re Order of Board of Tax Appeals, 236 Kan. 406, 691 P.2d 394 (1984), and because Frito Lay did not complain, the county does not have the authority to issue correction orders. In re Order of Board of Tax Appeals is inapplicable to the instant case in that it pertains to a situation where a taxing district made errors in property valuation in favor of taxpayer corporations. In the case at bar, the corporation property was assigned to the wrong taxing district, an error not in the corporation’s favor. The 1985 legislature responded to In re Order of Board of Tax Appeals, by adding language to 79-1701a and 79-1702 which clarifies legislative intent that, in the event of understatement of taxes as a result of clerical error, the commissioners have authority to order an additional tax bill. The legislature also overrode In re Order of Board of Tax Appeals’ definition of “escaped taxation” by enacting K.S.A. 1987 Supp. 79-1427a and K.S.A. 1987 Supp. 79-1475, which provide that whenever property is underreported for whatever reason, the property shall be deemed to have escaped taxation.
There is clear legislative intent that the county has a duty to correct such taxation errors within a reasonable time. In re Order of Board of Tax Appeals is overruled to the extent it conflicts with a county’s statutory duty to collect taxes on property which has escaped taxation as defined by K.S.A. 1987 Supp. 79-1427a and to correct those errors listed in K.S.A. 1987 Supp. 79-1701.
Appellant argues U.S.D. No. 437 has no standing under K.S.A. 1987 Supp. 79-1702. It argues that even though the statute specifically allows actions by taxing districts, which K.S.A. 79-1801 recognizes as including school districts, U.S.A. No. 437 does not have a “grievance” because the error did not change the actual revenues it received. This argument is not persuasive. The county’s failure to assign property to the appropriate taxing district operates to the detriment of U.S.D. No. 437 and provides the appellee with a grievance. U.S.D. No. 501 has no right to taxes from property which is located in another taxing district.
The purpose of the tax statutes is to create a uniform and equal plan of taxation; to that end each county’s use of discretion is quite limited. See Mobil Oil Corporation v. Medcalf 207 Kan. 100, 107, 483 P.2d 1111 (1971). The county had a positive duty to correct errors upon discovery.
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The opinion of the court was delivered by
Allegrucci, J.:
The defendant, Dwight Higgins, was con victed by jury trial of one count of aggravated robbery (K.S.A. 21-3427), one count of aggravated battery (K.S.A. 21-3414), and one count of aggravated burglary (K.S.A. 21-3716). Defendant was sentenced to a controlling térm of imprisonment of fifteen years to life. He appeals from his conviction.
Defendant first contends that the State’s attorney impermissibly commented upon his failure to protest his innocence after he was arrested. The subject of defendant’s silence initially arose during the defense cross-examination of Detective Jerry Fiskus, a witness for the State.
“Q. [MR. PLUMMER] Did you ever approach this defendant, Dwight Higgins, concerning this matter?
“A. I did, yes.
“Q. Did you have an interview with him?
“A. I attempted to.
“Q. All right. And what did he tell you, if anything?
“A. I couldn’t talk to Mr. Higgins in that he would not sign his waiver of rights. And because of that, and I was treating him as a suspect, I did not further the conversation past that.
“Q. Well, isn’t it true, Detective Fiskus, that Dwight Higgins here denied any knowledge of this robbery?
“A. He would not talk to me. He did not wish to sign his waiver of rights. After that, I’m not allowed to talk to him.
“Q. Well, did you ever try and contact his attorney to see if he’d come down and give a statement?
“A. Truthfully I can’t remember. I can’t.”
After the defense had completed its cross-examination of Fiskus, counsel for the State sought to explore the matter further. The following exchange took place at the bench between counsel and the court:
“MR. PLUMMER: Your Honor, I think we’re clearly getting into an impermissible area of cross-examination. This witness interjected the fact of Mr. Higgins here relying on the advice of rights. I did not ask him that. All I asked was did he obtain a statement. That was it, and he said no. He didn’t — he doesn’t know why Mr. Higgins didn’t give him a statement. I think we’re getting into—
“THE COURT: Well, I don’t know. Is that the state’s position?
“MR. GROSKO: Yes, judge. He opened the door.
“THE COURT: I think he did just about as clearly as it can be done. He got into the fact he didn’t give a statement, and why didn’t he take a statement. He said he wouldn’t sign his advice of rights form.
“MR. GROSKO: He asked him if he ever contacted his attorney about giving a statement. I think that does it even more.
“MR. PLUMMER: Well, yeah. But it’s got it in there. I mean, I don’t know how much farther he intends to go into that.
“THE COURT: He probably intends to go all the way into it. And I think at this point he’s waived his right to keep the prosecutor from going into that. I mean, I guess you’re going to go into the fact—
“MR. GROSKO: That he said nothing. That he didn’t even deny it. He was told what he was there for, did you want to say anything, that he refused to sign the waiver and he refused to make any type of statement whatsoever, even a denial that’s what happened.
“THE COURT: I just have to disagree with you. Your objection’s sure noted, though.”
The defendant’s objection being overruled, the State then proceeded to question Fiskus in detail about the defendant’s refusal to talk with Fiskus after the arrest.
The subject arose again during the State’s closing argument.
“And let’s look at Mr. Higgins. What evidence do we have about him from Detective Fiskus? Back in July, and you’ll see the date on there, I guess about July 24th, Detective Fiskus is trying to complete his investigation as all detectives do. They try and get suspects in, tell them what they’re looking at, give them an opportunity to give some explanation of what they did and what does this man do? He exercises his actual rights. There’s nothing wrong with that. We have those rights. But he didn’t even deny it. Picture yourself there. You’re picked up. You’re a suspect. They tell you what you’re picked up for. You know you didn’t have anything to do with it. So, why not tell the police at least that you didn’t have anything to do with it? Or that I want to talk to my lawyer and I’ll get back with you. You know, I might have an alibi. I want to check on what I was doing. Mr. Higgins had an opportunity to do all of those things back in July, but he refused to. And if he’s so innocent as he sits there now, why didn’t he avail himself of that opportunity? Again, use your common sense. Picture what you’d do in that situation.”
Although, as the State notes, the defendant did not make a contemporaneous objection to the prosecution’s comment during closing argument, the failure to object in the present case does not preclude review of the propriety of the prosecution’s remarks. The defendant had objected to the State’s original exploration of the subject during the redirect examination of Detective Fiskus. The defendant’s objection had been overruled by the trial court and there is nothing in the record to indicate that a second objection at the time of the closing argument would have been more successful.
The defendant, however, is incorrect in characterizing a portion of the prosecution’s closing argument as an impermissible comment upon defendant’s failure to testify at trial rather than his post-arrest silence. The defendant interprets the State’s comment, “And if he’s so innocent as he sits there now, why didn’t he avail himself of that opportunity?” as a comment upon defendant’s refusal to take the stand during the course of the trial. However, reading the remark in context, it appears clear that the comment is directed towards defendant’s post-arrest silence rather than his refusal to testify during the trial. Read in context, the rhetorical question, “[W]hy didn’t he avail himself of that opportunity?” refers to the time of defendant’s arrest. Thus, the rule announced in Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229, reh. denied 381 U.S. 957 (1965), and codified by K.S.A. 60-439, that a prosecutor in a criminal case may not comment upon the failure of the defendant to testify, was not violated in the present case.
The question, however, remains whether the State impermissibly commented upon the defendant’s right to remain silent after his arrest. We find that question must be answered in the affirmative. In Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), the United States Supreme Court held that a defendant’s silence after arrest and receiving Miranda warnings could not be used to impeach the defendant at trial, holding that such use constituted a violation of the due process clause of the Fourteenth Amendment. This court adopted the same rule in State v. Mims, 220 Kan. 726, 556 P.2d 387 (1976).
The State defends its comments upon the defendant’s post-arrest silence by asserting that the comments were invited error. It is a general rule that a litigant may not invite error and then complain of that error on appeal. State v. Gray, 235 Kan. 632, 681 P.2d 669 (1984).
The invited error rule cannot be used as a pretext for the violation of a defendant’s constitutional rights where there is no justification for so doing. In the present case, it is apparent that both the State and the trial court were aware that, ordinarily, no comment could be made regarding a defendant’s post-arrest silence. Nor was there any necessity for the full exploration of the nature of the defendant’s silence after his arrest and the State’s comments during its closing argument. The sole motivation for the State’s comments was the exploitation of the oppor tunity to utilize defendant’s exercise of his Fifth Amendment Miranda rights against him. The present case does not involve a defendant who has invited or misled the court into error or who acquiesced in errors of the trial court. Nor did the defendant indulge in any improper or erroneous activities which required the State, in order to achieve a fair trial, to respond in kind. The cross-examination by counsel for the defendant was not an invitation to the State to violate defendant’s right to due process. Rather, the State seized upon the opportunity to present evidence and arguments during closing which clearly violated the defendant’s constitutional rights and were improper. The State cites State v. Gray, 235 Kan. 632, and State v. Reynolds, 230 Kan. 532, 639 P.2d 461 (1982), in support of its contention. Both cases are distinguishable from the present case and are not persuasive.
In Reynolds, the defendant complained of the admission into evidence of a photo identification session. The State did not mention the photo identification session in its case in chief. The defendant first broached the subject of the photo session on cross-examination of a State witness, and then pursued the issue further on direct examination of a defense witness by introducing the photo array into evidence. We held that, if there was error, the defendant invited the error by introducing the photos into evidence. In Gray, the trial court did not give a limiting instruction because of the defendant’s objection. We held that the defendant invited the error by his objection and he could not complain on appeal of the court’s failure to so instruct.
Moreover, accepting for the sake of argument the State’s contention that the defendant had invited error, this rationale cannot be used to justify the extent of the State’s actions in the present case. The defendant’s attorney during the cross-examination of Detective Fiskus may have established the fact of defendant’s silence after his arrest. However, the State in its closing argument went beyond the mere fact of defendant’s post-arrest silence and entertained the jury with an extensive exploration of the motivations for defendant’s silence. The State repeatedly asked, if defendant was innocent why did he not protest his innocence at the time of his arrest? Invited error, where the State ignores the scope of the invitation, does not justify the violation of a defendant’s constitutional fights.
Finally, as to this issue, the State contends that, if there was error, it was harmless. The State argues that we should apply the standards set out in State v. Jagger, 11 Kan. App. 2d 350, 720 P.2d 673 (1986). In Jagger, the error was committed by the prosecutor in his closing comments upon the defendant’s failure to testify. The prosecutor commented:
" ‘That I think is the only point that is still in issue in this case, the defendant’s intention. We had no direct testimony about Mr. Jagger’s intention. Mr. Jagger is the only person who really knows of his own experience what his intention was.’” 11 Kan. App. 2d at 351.
The court rejected the State’s contention that the error was harmless, stating:
“Mere comment, however, is not a per se constitutional violation requiring reversal. Only error which fails to meet the federal standard of harmless error, defined as belief beyond a reasonable doubt that the error did not contribute to the verdict, requires reversal. State v. Knapp, 234 Kan. 170, Syl. ¶ 7, 671 P.2d 520 (1983). Thus, if there is a reasonable doubt as to whether the comment contributed to the verdict, the conviction should be reversed.
“Although the above-mentioned rules are well defined, their application is more difficult.
“To facilitate the determination of whether a prosecutor’s comments are harmless error, Kansas appellate courts consider the nature and extent of the comment in comparison with the strength of the evidence of the defendant’s guilt, and further consider whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the defendant to testify. Henderson, 226 Kan. at 736; accord State v. Ponds, 227 Kan. 627, Syl. ¶ 4, 608 P.2d 946 (1980).” 11 Kan. App. 2d at 351-52.
In the present case, the error does not consist of just one question. The error is substantial and the statements were “manifestly intended,” albeit based upon an incorrect belief it was justified as invited error.
State v. Mims, 220 Kan. 726, provides an excellent example of harmless error where the State comments about the defendant’s post-arrest silence. In Mims, the defendant, at the time of arrest, told the police that he was not present at the scene of the crime because he was at his mother’s upholstering a couch. At trial, he testified to that same alibi. The prosecutor on cross-examination asked Mims, ‘“[H]ow come you didn’t tell this to the police about where you were on this particular day?”’ 220 Kan. at 729. The question was pointless and contrary to the defendant’s testimony. The prosecutor admitted he may have misphrased the question. This court held the error was harmless, stating:
“We have concluded that it was improper for the prosecutor to ask the question and that he should not have done so. In asking the question the prosecutor entered a field of inquiry which he should have carefully avoided. We have concluded, however, that the single question asked by the prosecutor under all the circumstances does not justify a reversal of this case. As pointed out above it was undisputed in the evidence before the jury that the defendant did not remain silent at the time he was arrested but in fact gave a story of an alibi which he consistently asserted from the time of his arrest until the conclusion of the trial. The objection to the question was sustained although a mistrial was denied. In our judgment the single question propounded by the prosecutor which was never answered and to which an objection was sustained constituted harmless error beyond a reasonable doubt in view of the overwhelming evidence of the defendant’s guilt disclosed in the record.” 220 Kan. at 731.
In the present case, we have a reasonable doubt as to whether the comments contributed to the verdict and, therefore, conclude the error was not harmless.
The defendant next contends that the charges of aggravated battery under K.S.A. 21-3414, and aggravated robbery under K.S.A. 21-3427, are multiplicious and that he could not be convicted of both crimes, pursuant to K.S.A. 1987 Supp. 21-3107(2)(d). The defendant’s argument is without merit.
In State v. Games, 229 Kan. 368, 624 P.2d 448 (1981), we said:
“Multiplicity in criminal pleading is the charging of a single offense in several counts. State v. Dorsey, 224 Kan. 152, 154, 578 P.2d 261 (1978). In that case we discussed many of our earlier opinions on the subject. Multiplicity exists when the State attempts to use a single wrongful act as the basis for multiple charges. The general principles for determining whether charges are multiplicitous are these:
(1) A single offense may not be divided into separate parts; generally, a single wrongful act may not furnish the basis for more than one criminal prosecution.
Example: Where an aggravated assault or aggravated battery directly results in a homicide, the offenses become merged. See State v. Clark, 204 Kan. 38, 44, 460 P.2d 586 (1969).
(2) If each offense charged requires proof of a fact not required in proving the other, the offenses do not merge.
Example: The essence of aggravated robbery is to deprive a person of property, an element not found in homicide. Though a homicide is committed in the course of an aggravated robbery, the offenses do not merge. State v. Rueckert, 221 Kan. 727, 733, 561 P.2d 850 (1977). Similarly, federal bank robbery does not merge with State charges of aggravated robbery (of an individual), aggravated kidnapping, and kidnapping. See State v. Smith & Miller, 224 Kan. 662, 669-670, 585 P.2d 1006 (1978), modified on rehearing, 225 Kan. 199, 588 P.2d 953, cert. denied 441 U.S. 964 (1979).
(3) Where offenses are committed separately and severally, at different times ■ and at different places, they cannot be said to arise out of a single wrongful act.
Example: An assault and battery, following which the victim broke away, does not merge with and is distinct from forcible rape, which occurred at a later time and at a different place. See State v. James, 216 Kan. 235, 531 P.2d 70 (1975).” 229 Kan. at 372-73.
In the present case, the defendant and Cooper entered the filling station through a window. They looked around the back of the station to see what they could steal. Cooper testified that Mr. Beeley was sleeping in the front of the station, and they proceeded to the front to take the money in the cash register. Beeley evidently woke up, according to Cooper, and the defendant grabbed Beeley and Cooper hit Beeley over the head with a flashlight. Cooper proceeded to get the money while the defendant was standing on Beeley. Applying the principles enunciated in Games, it is apparent that the charges are not multiplicious. Neither crime is necessarily proved if the other crime is proved, since each crime contains unique elements not contained within the other crime. Aggravated battery requires the presence of an intent to injure the victim and requires the infliction of great bodily harm upon the victim. Aggravated robbery does not, requiring only the infliction of bodily harm. On the other hand, aggravated robbery requires the taking of property from another. Aggravated battery, of course, does not. The fact that the one application of force supplies the element of bodily harm for both offenses does not prevent the prosecution for both offenses. State v. Chears, 231 Kan. 161, 643 P.2d 154 (1982).
The defendant concedes that, in State v. Warwick, 232 Kan. 232, 654 P.2d 403 (1982), this court held that aggravated battery was not a lesser included offense of aggravated robbery. However, he argues that, pursuant to K.S.A. 1987 Supp. 21-3107(2)(d), he cannot be convicted of both offenses because, by proving aggravated robbery, the State necessarily proved aggravated battery. In State v. Adams, 242 Kan. 20, 744 P.2d 833 (1987), this court held that, under the facts of that case, DUI is a lesser included offense of involuntary manslaughter. In so doing, we said:
“What we held in [State v.] Arnold, [233 Kan. 715, 576 P.2d 651 (1978),] and here reaffirm, is that the test to determine ‘identity of elements’ under [21-3107](2)(d) is twofold. First, the statutes defining the lesser offense and the greater offense must be compared to determine if all the elements of the former are included in the latter. Second, if that comparison fails to disclose an ‘identity of elements,’ then the court must examine the complaint/information to determine if the elements of the lesser offense are alleged, and if proof thereof is required to establish the greater offense. If it is, then it is a lesser included offense within the meaning of the subparagraph (2)(d).
“. . . The allegation that defendant Adams drove an automobile while under the influence of alcohol served as one of the elements of the charged crime of involuntary manslaughter. By proving all of the elements necessary to establish involuntary manslaughter, the State necessarily proved each element of the crime of driving while under the influence of alcohol, as defined by K.S.A. 1986 Supp. 8-1567. Thus, having necessarily proven the lesser offense by proving the greater offense of involuntary manslaughter, the provisions of K.S.A. 1986 Supp. 21-3107(2) prohibit finding the defendant guilty of both involuntary manslaughter and driving while under the influence of alcohol. The necessity of alleging and proving that the defendant was driving while under the influence of alcohol precluded driving while under the influence of alcohol from being a ‘factually related offense.’ ” 242 Kan. at 23-24.
In the present case, aggravated battery was not alleged nor was proof thereof required to establish aggravated robbery. It was a “factually related offense” and therefore not within the preclusion of K.S.A. 1987 Supp. 21-3107(2)(d).
In view of our decision, it is not necessary to address the other issues raised by the defendant.
The judgment of the district court is reversed and the case is remanded for a new trial. | [
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The opinion of the court was delivered by
Miller, J.:
This is a direct appeal by the defendant, Franklin Patterson, from his conviction by jury trial in Sedgwick County of murder in the first degree, K.S.A. 21-3401; aggravated kidnapping, K.S.A. 21-3421; and aggravated robbery, K.S.A. 21-3427. The trial court found, from evidence introduced at the time of sentencing, that the defendant had been convicted of three prior felonies, and the trial court ordered that the sentences imposed be tripled under the habitual criminal act. Defendant was sentenced to imprisonment for a period of three life terms on the charge of first-degree murder, three life terms on the charge of aggravated kidnapping, and not less than 45 years to three life terms on the charge of aggravated robbery. 'The sentences for aggravated kidnapping and aggravated robbery were to run concurrently but consecutive to the sentence imposed for first-degree murder.
Four issues are raised. First, was the evidence sufficient to support the conviction for aggravated kidnapping? Second, did the court err by refusing a defense request to instruct the jury on theft as a lesser offense of aggravated robbery? Third, did the court’s refusal to permit the defendant to examine witnesses or introduce evidence concerning the victim’s physical condition deprive defendant of the right to present a defense? And fourth, did the court’s instruction on premeditation constitute plain error?
The first issue is the sufficiency of the evidence to establish the offense of aggravated kidnapping. Count II of the information charged that defendant Patterson and his nephew, John F. Copeland, “did then and there unlawfully, willfully, take or confine another, to-wit: Gloria J. Mitchell, by force, with the intent in them, the said FRANKLIN E. PATTERSON and JOHN F. COPELAND, to hold the said Gloria J. Mitchell, to inflict bodily injury, and did inflict bodily harm upon the person of the said Gloria J. Mitchell.”
K.S.A. 21-3420 defines kidnapping. It reads:
“Kidnapping is the taking or confining of any person, accomplished by force . . . , with the intent to hold such person:
“(c) To inflict bodily injury or to terrorize the victim or another.”
Under K.S.A. 21-3421, kidnapping becomes aggravated kidnapping when “bodily harm is inflicted upon the person kidnapped.” Thus, the elements to establish the offense of aggravated kidnapping, as charged, were that Patterson took and confined Gloria J. Mitchell by force; that it was done with the intent to hold her to inflict bodily harm upon her; that bodily harm was inflicted upon her; and that the acts occurred on about December 12, 1986, in Sedgwick County, Kansas.
When the evidence is challenged as insufficient, the familiar standard for review is that set forth in State v. Ramos, 240 Kan. 485, 486-87, 731 P.2d 837 (1987), as follows:
“In a criminal action, when the defendant challenges the sufficiency of the evidence to support a conviction, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of the charge are sustained.”
We therefore review the evidence in the light most favorable to the prosecution to determine whether it supports the aggravated kidnapping conviction.
Patterson and codefendant John Copeland met the victim, Gloria Mitchell, at the Stetson Bar in Sedgwick County during the afternoon of December 12, 1986. At some point they left that bar, and visited the Paradice Club and later the Cypress Club. After they left the Cypress Club, defendant drove Gloria Mitchell’s car, with Copeland and Gloria as passengers, to a gas station. Later they drove around for awhile and ultimately parked in an alley behind the trailer where Copeland and Patterson resided. According to the testimony of Copeland, Patterson and Gloria engaged in fondling and oral sex. Up to that point, the participation by all three in the activities of the evening was consensual. There is no suggestion of any kidnapping prior to the time the vehicle was parked in the alley.
The sexual activity was of short duration. Defendant became angry either over his inability or Gloria’s unwillingness to engage in further sexual conduct. He began hitting Gloria with his fist and open hand until she passed out. After she regained consciousness, he proceeded to beat her again. Defendant told Copeland to go to the trailer and get a knife. Copeland left the car and within two or three minutes returned with a steak knife. Defendant told Copeland to kill Gloria. Copeland said he was not going to do it and handed the knife to the defendant. Defendant said that Copeland was not a man if he did not do it and defendant gave the knife back to Copeland. Copeland tes tified that he leaned up over the back seat, Patterson pushed Gloria back against the car door, and Copeland stabbed her. Patterson was holding her at the moment Copeland stabbed her. She was more or less lying down, with her head back up against the passenger door, facing the driver’s door. After Copeland stabbed her, Gloria fell to the floorboard. Patterson checked and found Gloria had no pulse. Defendant started the car and drove to a remote area where the two men dumped Gloria’s body. Copeland threw the knife away on the return trip. The car was parked in the same alley and was abandoned after defendant opened the glove compartment to see if there was anything in it, and looked through Gloria’s purse. Defendant conceded that he looked through Gloria’s purse, removed it from the car, and destroyed the identification therein. The purse was later found in his trailer.
The main contention of the defendant is that the evidence fails to prove confinement, an essential element of aggravated kidnapping. We agree. There is no evidence that Gloria was held in the automobile against her will. The car was hers. She voluntarily joined the two men, permitted Patterson to drive, and voiced no objection to any movement of the vehicle. After the vehicle was parked, Gloria was savagely beaten and fatally stabbed. She was pushed against the car door and was held by the defendant at the moment of the stabbing. We find no evidence of any act of confinement of the victim as a separate act independent of the stabbing. The act of pushing her against the car door appears to be incidental to the stabbing and thus will not support a kidnapping charge. Evidence indicated that the victim was extremely intoxicated. There is no evidence that she asked to leave the vehicle, attempted to leave the vehicle, or was restrained in any way, or that she was held by Patterson except at the moment that she was killed. While the beating and stabbing were senseless, and the acts revolting, we find no evidence to support the kidnapping charge.
The next issue is whether the trial court erred in refusing to instruct the jury on the crime of theft as a lesser offense of aggravated robbery. Defendant does not contend that the evidence was insufficient to support a conviction of aggravated robbery; he contends that the evidence was also sufficient to support a conviction of theft, and the trial court should have so instructed the jury.
Robbery is defined by K.S.A. 21-3426 as the taking of property from the person or presence of another by threat of bodily harm to his person or the person of another or by force. Aggravated robbery is defined by K.S.A. 21-3427 as robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery. Theft is defined by K.S.A. 1987 Supp. 21-3701, insofar as is here material, as obtaining or exerting unauthorized control over property when the act is done with intent to deprive the owner permanently of the possession, use, or benefit of the owner’s property.
The doctrine of lesser included offenses has been codified in Kansas. K.S.A. 1987 Supp. 21-3107 provides, in part:
“(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
“(a) A lesser degree of the same crime;
“(b) an attempt to commit the crime charged;
“(c) an attempt to commit a lesser degree of the crime charged; or “(d) a crime necessarily proved if the crime charged were proved.
“(3). In cases where the crime charged may include some lesser crime, it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced. If the defendant objects to the giving of the instructions, the defendant shall be considered to have waived objection to any error in the failure to give them, and the failure shall not be a basis for reversal of the case on appeal.”
In State v. Long, 234 Kan. 580, Syl. ¶ 4, 675 P.2d 832 (1984), we held that:
“For purposes of K.S.A. 21-3107(2)(a) the crime of theft is an included crime of robbery as a ‘lesser degree of the same crime,’ and therefore the trial court is required to instruct the jury on the crime of theft in a prosecution for robbery where there is evidence to support a conviction of theft.”
We concluded, however, that no evidence was presented by the defendant, Long, upon his theory of defense which would reasonably have supported his conviction of the lesser crime of theft, and therefore the trial court did not err in failing to instruct the jury on the crime of theft.
It is a familiar rule, as codified in the statute, that a trial court has an affirmative duty to instruct the jury on lesser included offenses, including lesser degrees of the same crime; however, this duty does not arise unless there is evidence supporting the lesser offense. Further, we have held that in order for the evidence to be sufficient to require instructions on lesser included offenses, testimony supporting such instructions must be offered either by the State or the defense for the purpose of proving what events occurred. State v. Armstrong, 240 Kan. 446, 460, 731 P.2d 249 (1987).
Defendant argues that the jury might have found that he did not commit the acts of force that made the robbery possible, and that the jury should have been permitted to decide whether the act of taking the purse was sufficiently remote from the homicide to render the offense of taking the purse theft rather than robbery. The State’s evidence was that defendant sent his nephew for the knife, told him to kill the victim, handed him the knife, and held the victim while the homicide was committed. Defendant did not testify, and offered no evidence as to how the homicide occurred. The jury found the defendant guilty of murder in the first degree, and thus resolved the factual issues of the homicide adverse to his present position. As to remoteness, the jury was specifically instructed, in response to a jury question, that “[i]f you find beyond a reasonable doubt that the act of force and the taking of the property are so connected as to form a continuous chain of events so that the prior force made it possible for the defendant to take property from the victim without resistance, such act of force is sufficient” to support the taking by force element in the aggravated robbery instruction.
This instruction appears consistent with our opinion in State v. Myers, 230 Kan 697, 640 P.2d 1245 (1982). There, approximately three hours after the defendant murdered the victim, the defendant removed the victim’s wallet and money from his body. We said:
“[W]here the act of force and the taking of the property are so connected as to form a continuous chain of events so that the prior force makes it possible for the defendant to take property from the victim’s body without resistance, that is sufficient for a conviction of the crime of robbery.” Syl. ¶ 2.
Here, the issue of remoteness was resolved against the position now advanced by the defendant. Upon careful consideration of the evidence in this case, we conclude that the trial court did not err in failing to instruct the jury on the lesser offense of theft.
Defendant also contends that the trial court’s refusal to permit the defendant to examine witnesses or introduce evidence concerning the victim’s physical condition deprived him of the right to present a defense. Defendant attempted to show that the victim had been beaten and physically abused in the past by her husband or some third person, and thus, some of the bruises on her body might have been caused by someone other than the defendant. Defendant admitted that he struck the victim; the victim’s death, however, was caused by a stab wound, not by the beatings she sustained. Defendant was unable to convince the trial court that the proffered evidence was material. We agree. Evidence that the victim had been beaten by others sometime before the fatal events took place would not justify defendant’s actions and would not constitute a defense to the charges here. Prior beatings did not cause the victim’s death. The trial court did not abuse its discretion in rejecting the evidence.
For his final issue, defendant contends that the trial court’s instruction on premeditation constituted plain error, mandating reversal. There was no contemporaneous objection at the trial level and, thus, an appellate court may reverse only if the instruction was clearly erroneous. State v. Holley, 238 Kan. 501, 506, 712 P.2d 1214 (1986); State v. Peck, 237 Kan. 756, Syl. ¶ 4, 703 P.2d 781 (1985); State v. Korbel, 231 Kan. 657, Syl. ¶ 4, 647 P.2d 1301 (1982). “An instruction is clearly erroneous when a reviewing court reaches a firm conviction that if the trial error had not occurred, there was a real possibility the jury would have returned a different verdict.” State v. Houck, 240 Kan. 130, 139, 727 P.2d 460 (1986).
The trial court gave the substance of the standard premeditated murder instruction, PIK Crim. 2d 56.01, to which the court added the following: “There is no specific time element required to establish premeditation.” Also, the trial court gave the following definition from PIK Crim. 2d 56.04(b), which reads in part: “Deliberately and with premeditation means to have thought over the matter beforehand.”
Defendant relies on State v. Martinez, 223 Kan. 536, 537, 575 P.2d 30 (1978), where the trial court had instructed that “premeditation” means to have “thought of beforehand for any length of time sufficient to form an intent to act, however short.” While we did not approve the instruction, we found no prejudicial error under the facts of that case. The defendant was shown to have had ample time to deliberate and premeditate. In the case at hand, there were two instructions, not One as in Martinez. The instructions correctly state the law. The evidence indicates that Patterson had ample time for premeditation while his nephew walked to the trailer and returned with a knife. The instruction was not plain error.
The conviction of aggravated kidnapping is reversed; otherwise, the judgment is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
The City of Elkhart appeals from an order of the district court of Morton County dismissing this case because the defendant, Lanning Bollacker, was not brought to trial within 180 days from the date of certification and filing of the municipal court transcript in the district court. Two issues are raised: (1) Does K.S.A. 22-3402(2) apply to a defendant who is charged with a violation of a municipal ordinance and who has neither been in custody nor required to post an appearance bond; and (2) was the delay in this case partially the fault of the defendant?
The facts are not disputed. On January 2, 1987, the City of Elkhart filed a complaint in municipal court charging Lanning Bollacker with the unlawful discharge of a firearm within the City on New Year’s Day, 1987. Bollacker was served with the complaint and a notice to appear. He appeared, was tried, and was found guilty and fined $50. He filed a notice of appeal to the district court. The record was certified by the municipal court and was filed in the office of the clerk of the district court on February 24, 1987. A few days later, defendant’s attorney wrote to the judge of the municipal court inquiring whether an appearance bond was necessary; there was no response, and consequently no appearance bond was ever filed.
On March 6, 1987, defense counsel asked that the trial be set for March 30. The city prosecutor responded that his witnesses would not be available on that date, and trial was not set. In mid-August, defense counsel advised the prosecutor that he could not try the case for two weeks; within this time frame, however, he also notified the prosecutor that he would have to withdraw. On August 25, defense counsel wrote to the district judge, asking leave to withdraw. Also on August 25, 181 days after the record was certified and filed, the case was set for trial on September 3. New counsel for the defendant appeared and moved to dismiss pursuant to K.S.A. 22-3402(2). On September 17, the trial court dismissed for failure to bring defendant to trial within 180 days as required by statute. The City appeals.
Unless there is good reason to believe that the accused person will not appear in response to a notice to appear, a notice to appear is issued in municipal court proceedings. See K.S.A. 12-4203 and -4206. The form of notice to appear prescribed in our statutes contains a place for the accused to sign, agreeing that he or she will appear in court at the time and place specified. See K.S.A. 12-4204 and K.S.A. 1987 Supp. 12-4205. The record in this case does not contain the original complaint or the notice to appear, and thus we are not advised whether Bollacker agreed in writing to appear. However, there is nothing before us to suggest that he ever failed to appear as required.
We turn to the first issue. K.S.A. 22-3402(2) provides:
“If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred eighty (180) days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).”
Subsection 3 provides exceptions to the time limits where a defendant is incompetent; where a proceeding to determine his competency to stand trial is pending; where material evidence is unavailable; or where, because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed by the statute. None of these exceptions are applicable here.
Bollacker, as we noted above, was not required to post a bond; he was simply notified to appear. In the case of City of Overland Park v. Fricke, 226 Kan. 496, 601 P.2d 1130 (1979), we held that K.S.A. 22-3402(2) is applicable to criminal cases appealed to the district court from municipal court. We said:
“We hold that in district court cases involving appeals from municipal courts, the time limitations provided in K.S.A. 1977 Supp. 22-3402 shall commence to run from the date the appeal is docketed in district court or at the expiration of the time the appeal should have been docketed under the time schedule set forth in K.S.A. 1977 Supp. 22-3609(3), whichever occurs first. This holding places a duty on the city to see that the appeal is docketed in a timely fashion. The time limitations for trial in district court should commence to run when there is, or should be, a complaint against the defendant pending in the district court.” 226 Kan. at 502.
Fricke, unlike Bollacker, was required to post an appearance bond. We do not find the distinction important. As we noted in Fricke, the legislature intended that persons charged with crime should be granted a prompt and speedy trial. In State v. Brockelman, 173 Kan. 469, 249 P.2d 692 (1952), cited in Fricke, 226 Kan. at 501, we noted that the speedy trial statute was intended to prevent the oppression of a citizen by holding criminal prosecutions suspended over him for an indefinite time and to prevent delays in the administration of justice. K.S.A. 21-3813(2) provides in part that “[a]ny person who is released upon his or her own recognizance, without surety, or who fails to appear in response to a summons or traffic citation, shall be deemed a person released on bond.” This reinforces our holding in Brockelman and Fricke that the legislature intended to provide statutory speedy trials for all persons held to respond to criminal charges.
The City argues that the definitions of appearance bond, custody, and notice to appear support its reasoning that K.S.A. 22-3402 is inapplicable to the present situation. K.S.A. 1987 Supp. 22-2202 reads in pertinent part:
“(2) ‘Appearance bond’ means an agreement, with or without security, entered into by a person in custody by which the person is bound to comply with the conditions specified in the agreement.
“(9) ‘Custody’ means the restraint of a person pursuant to an arrest or the order of a court or magistrate.
“(15) ‘Notice to appear’ means a written request, issued by a law enforcement officer, that a person appear before a designated court at a stated time and place.”
The City argues that an appearance bond is used when a person is in custody, whereas use of a notice to appear (which was issued to the defendant) does not require the person to ever be placed in custody or to file an appearance bond. Thus, contends the City, this distinguishing factor supports its proposition that 22-3402(2) applies only to those subject to an appearance bond and is inapplicable when a notice to appear is issued and no appearance bond is required.
We have not overlooked this and other arguments of the City. One served with a notice to appear, however, is not free from restraint. While failure to respond to a notice issued by a municipal court is excepted from the statute which makes failure to appear a Class B misdemeanor (K.S.A. 21-3813), if one served with a notice to appear in municipal court fails to appear, then a warrant for that person’s arrest may be issued. K.S.A. 1987 Supp. 12-4209. Thus, the threat of arrest is present, so long as the criminal proceeding is pending.
For the reasons stated above, we adhere to our opinion in City of Overland Park v. Fricke, and hold that K.S.A. 22-3402(2) is applicable to criminal cases appealed to the district court from municipal court, whether bond is required or whether the accused is simply served with a notice to appear and is thus required to appear without posting bond.
The second issue requires little discussion. The accused did not request a continuance at any stage of the proceeding. He asked for a trial date shortly after the appeal was filed, but the prosecution could not proceed on the date proposed. The City took no steps to bring the matter to trial and, at the time the case was first set for trial in the district court, 181 days had expired. Trial was not delayed because of the withdrawal of defense counsel, nor because defendant’s attorney could not try the case on the date set, nor because the court did not have time to commence the trial of the case because of other cases pending. The accused is not required to take affirmative action to see that his right to a speedy trial is observed; to the contrary, the burden of bringing an accused to trial within the allotted time is entirely on the prosecution. State v. Maas, 242 Kan. 44, 48, 744 P.2d 1222 (1987); State v. Bean, 236 Kan. 389, Syl. ¶ 1, 691 P.2d 30 (1984). There were no delays in this case occasioned by the application or fault of the defendant. The City simply did not meet its burden of bringing the defendant to trial within the statutory period.
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The opinion of the court was delivered by
Prager, C.J.:
This is an action to recover for damage to an automobile caused by icy roadway conditions. The plaintiff car owner, Bertha Draskowich, sued the City of Kansas City and its Board of Public Utilities on the theory that city employees were negligent in failing to warn automobile drivers about the presence of ice on the city street. The City filed a counterclaim for damage to a light pole which was struck by the plaintiff s vehicle. The case was tried to the court sitting without a jury. The trial court entered judgment in favor of the plaintiff, and the defendants appealed.
The facts in the case were not greatly in dispute and essentially are as follows: On November 20, 1984, the Board of Public Utilities (BPU) responded to a water main break near 60th Street and State Avenue in Kansas City, Kansas. The first BPU official arrived at 7:55 p.m. He noticed that water was leaking onto the eastbound lanes of traffic and flowing downhill. The water was repeatedly splashed onto the westbound lanes of traffic by moving vehicles. BPU employees began work to repair the leak. Three BPU trucks stopped at the site and set up barricades, flashing lights, and traffic cones in the eastbound lanes. Police officers were also at the scene. The BPU employees turned off the water at 9:00 p.m. The employees then set up their equipment and turned the water back on to search for the leak. Once the leak was found, crews began tearing up the street. The weather was cool that evening; however, the temperature was above freezing. Because the temperature was dropping, the BPU employees called the City for a sand truck. The first request was made at 9:20 p.m., but no sand truck responded. A second call was made at 10 p.m., a third at 11 p.m., and a fourth at 11:45 p.m. A truck finally arrived at 12:15 a.m. Ice had formed in the westbound lanes by the time the accident occurred at 11:15 p.m.
The plaintiff, Bertha Draskowich, was driving home that evening westbound on State Avenue within the posted speed limit. She noticed two trucks in the eastbound lanes and slowed down. The plaintiff testified that she slowed to about 15 to 20 miles per hour. Other witnesses testified that plaintiff was traveling at a greater speed. There was no evidence that she was exceeding the speed limit.
According to plaintiff, when her car hit the ice, she lost control. Her car swerved in the road and then ran over the curb. She traveled across the eastbound lanes of traffic and down an embankment. Thereafter, her car struck a light pole, traveled through brush, hit a house, and came to rest against a tree. There was a legitimate question of fact as to whose negligence caused the accident.
There was evidence offered to support the plaintiffs theory that the proximate cause of the accident was the failure of the city employees to give an adequate warning of the presence of ice to traffic in the westbound lanes. These facts were undisputed:
(1) There was a water main break near the intersection of 60th Street and State Avenue.
(2) Board of Public Utilities employees arrived at the scene and turned the water off at 9:00 p.m.
(3) The employees of BPU turned the water back on to locate the leak at 9:30 p.m.
(4) Telephone calls were made for a sand truck at 9:30, 10:00, 11:00, and 11:45 p.m. A sand truck finally arrived at 12:15 a.m., about an hour after plaintiff s accident occurred.
(5) The water was turned off by the BPU employees at 10:35 p.m.
(6) Ice had formed on the road by 11:00 p.m., and the BPU employees present knew it.
(7) Although barricades with flashing lights were placed to warn travelers on the eastbound lanes, no warnings or barricades were placed to warn vehicles in the westbound lanes.
(8) At least one accident occurred before plaintiff s accident.
(9) Other accidents occurred after the plaintiffs accident.
(10) A police officer testified that he indicated in his report that there was not an adequate warning marker in place to warn the plaintiff of the icy condition prior to her hitting the ice. The officer testified, in substance, that the City should have had somebody in the westbound lanes advising travelers of the icy conditions.
The parties stipulated to the amount of damage to the plaintiff s car ($3,250), and the damage to the City’s light pole ($547.25). At the close of the evidence, the court entered judgment in favor of the plaintiff in the amount of $3,250. The defendants appealed.
The first issue raised on the appeal is whether the trial court erred in excluding certain evidence pertaining to defendants’ defense of waiver. Prior to the trial, plaintiff s insurance carrier entered into negotiations with the defendants. Apparently, after much discussion, a representative of plaintiff s insurance carrier left a telephone message for an assistant city attorney. According to the proffered testimony of the assistant city attorney, she wrote on a message slip an indication that she and the representative of plaintiff s insurance company agreed to just forget their claims and call it quits, which indicated some type of understanding between her and the plaintiff s insurance adjuster. The trial court rejected the proffered testimony on the basis it was simply evidence of negotiations which was not sufficient to establish an actual settlement of the case. The law in this state is that offers of settlement and pretrial settlement negotiations are generally inadmissible. Ettus v. Orkin Exterminating Co., 233 Kan. 555, Syl. ¶ 9, 665 P.2d 730 (1983). An exception exists if the offer contains admissions of fact. Ettus v. Orkin Exterminating Co., 233 Kan. 555, Syl. ¶ 10. The rule is codified in K.S.A. 60-453, which provides:
“Evidence that a person has accepted or offered or promised to accept a sum of money or any other thing, act or service in satisfaction of a claim, is inadmissible to prove the invalidity of the claim or any part of it.”
Defendants presented this evidence to show that the plaintiff had waived her claim. We hold that the trial court did not commit error in rejecting this testimony. The defendants did not plead either an accord and satisfaction or a compromise and settlement as a defense. It is apparent from the plaintiffs actions that she did not intend to give up her claim. The defendants’ proffer showed no signed agreement by plaintiff. The documentation was a phone message slip. Absent express final agreement by the parties, any negotiations must be considered preliminary and as such they are inadmissible. There was no evidence proffered to show that the plaintiff, Bertha Draskowich, or her attorney entered into a final compromise or settlement of the claim. We hold that the trial court did not err in excluding this testimony.
Defendants next maintain that the trial court erred in limiting certain testimony of Donald Kerns, the BPU superintendent of water operations. Plaintiff placed Mr. Kerns on the stand where he testified that he arrived at the scene about 7:55 p.m. He testified that the police were already there and there was some discussion with the police about closing down State Avenue. According to Kerns, he informed the police officers that he could have a crew there shortly and that if they could keep the traffic off of the north side of the eastbound lanes it could be corrected. The water was leaking at that time. The majority of the water was in the eastbound lanes but there was some getting into the westbound lanes. He did not personally call the sand truck. He only knew about calling the sand truck from information received from the crew. Mr. Kerns stated that it had been predicted that the temperature was going to drop below freezing and that sand would be put down to help the traffic. He testified that four telephone calls were made for a sand truck prior to the accident. The accident occurred at about 11:15 p.m. and there were several other accidents at about that time. The street was not closed down. The sand truck was called again after the accident. The truck finally arrived at 12:15 a.m. It took about three hours for the sand truck to arrive from the first time it was requested.
On cross-examination, counsel for the defendants asked Mr. Kerns what the usual City response was following a BPU request for a sand truck. He responded that the City will not dispatch a sand truck or highway trucks to the area until the water is completely shut off. The plaintiff objected and the trial court sustained the objection. Counsel for the defendants informed the court if Mr. Kerns were allowed to continue to testify, he would have testified from his experience that a telephone call for a sand truck is not heeded until the water is shut off because if not, the water would simply wash away the sand, making the sand entirely ineffective. The other evidence proffered was that the water turned to ice shortly before the accident happened.
Defendants maintain that the proffered testimony was admissible as proof of habit or custom under K.S.A. 60-449, which states:
“Evidence of habit or custom is relevant to an issue of behavior on a specified occasion, but is admissible on that issue only as tending to prove that the behavior on such occasion conformed to the habit or custom.”
Defendants sought to introduce Kerns’ testimony to show that the City’s behavior on the night of the accident was customary and, therefore, not negligent. Counsel neither proffered nor elicited testimony concerning the number of times Kerns had called for a sand truck. We hold that it was not prejudicial error to exclude Kerns’ testimony. There was no dispute in the evidence as to what the City employees present actually did or did not do on the evening of the accident. The only fact issue was whether the employees of the City and BPU were negligent in what they actually did. We hold that the ruling of the trial court did not constitute prejudicial error.
The third point raised on the appeal is that the trial court erred in failing to apply the provisions of the Kansas Tort Claims Act (K.S.A. 75-6101 et seq.) so as to bar plaintiffs recovery. K.S.A. 75-6104 sets forth the exception from liability of a governmental entity and provides in part as follows:
“75-6104. Same; exceptions from liability. A governmental entity or an employer acting within the scope of the employee’s employment shall not be liable for damages resulting from:
“(d) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion be abused;
“(g) the malfunction, destruction or unauthorized removal of any traffic or road sign, signal or warning device unless it is not corrected by the governmental entity responsible within a reasonable time after actual or constructive notice of such malfunction, destruction or removal. Nothing herein shall give rise to liability arising from the act or omission of any governmental entity in placing or moving any of the above signs, signals or warning devices when such placement or removal is the result of a discretionary act of the governmental entity;
“(k) snow or ice conditions or other temporary or natural conditions on any public way or other public place due to weather conditions, unless the condition is affirmatively caused by the negligent act of the governmental entity; . . .
“The enumeration of exceptions to liability in this section shall not be construed to be exclusive nor as legislative intent to waive immunity from liability in the performance or failure to perform any other act or function of a discretionary nature.”
The defendants argue, in substance, that the placing of flashing signs to warn traffic in the westbound lanes at the time of the accident was a discretionary function or duty on the part of the employees of the City and BPU and, therefore, the City and BPU are exempt from liability. The defendants also argue that the decision whether to isolate the street to traffic upon locating the leak or to permit the traffic to operate was a discretionary function and that the decision whether additional warning devices were to be placed to warn westbound traffic was a discretionary function. The defendants also argue that the City and BPU are immune under K.S.A. 75-6104(k) because the icy condition was not affirmatively caused by the negligent act of the governmental entity. We agree with the plaintiff that the trial court did not err in holding that these exceptions under K.S.A. 75-6104 were not applicable under the factual circumstances in this case.
This issue is controlled by a series of cases handed down by this court which recognize that a city has an obligation to keep its streets in a reasonably safe condition, which duty is mandatory. In Schmeck v. City of Shawnee, 232 Kan. 11,651 P.2d 585 (1982), the court stated in Syllabus ¶ 2:
“A city’s common-law duty to keep its streets reasonably safe is mandatory, and the city has no right or discretion to avoid this duty.”
Syllabus ¶ 3 states:
“In a suit alleging a city breached its common law duty to keep its streets reasonably safe the question of whether a street defect existed is ordinarily a question of fact for the jury.”
More recently, in Toumberlin v. Haas, 236 Kan. 138, 689 P.2d 808 (1984), this court held that, although the statutory liability of the state, counties, and townships for defects in highways was repealed by the Tort Claims Act, a duty to maintain the highways remains under the general liability for negligence created by the Act. The scope of that duty is to be determined on a case-by-case basis.
In Trout v. Koss Constr. Co., 240 Kan. 86, 92, 727 P.2d 450 (1986), the opinion discusses whether there would be liability on the part of KDOT where a motorist encounters glare ice on an exit ramp on an interstate highway. The court indicated that, under certain circumstances, the Kansas Department of Transportation could be held responsible for resulting damages. Syllabus ¶ 6 states, without equivocation, that the responsibility for the duty of a govermental entity to maintain its highways in a reasonably safe condition may not be delegated to another.
In Taylor v. Reno County, 242 Kan. 307, 747 P.2d 100 (1987), an action was brought for wrongful death and personal injuries resulting from an automobile accident caused by the accumulation of ice on a county bridge. The county claimed it was immune from liability under K.S.A. 75-6104(k), which states, in substance, that a governmental agency shall not be liable for damages resulting from snow or icy conditions resulting from accumulation of ice due to natural weather conditions unless the condition is affirmatively caused by the governmental agency. The accident occurred on a county bridge. Rain had started falling earlier in the evening and, although it did not freeze on the roads or highways, icing and slippery conditions did develop on bridges and overpasses. The air temperature stayed about 25 degrees Fahrenheit all evening. At 8:37 p.m., the county was advised that the bridge and overpasses were getting extremely slick. The county responded that sand and salt would be applied starting at 5:00 the next morning. At 10:57 p.m., although the road was not slick, the bridge was a sheet of ice and plaintiff s vehicle slid out of control and collided with an oncoming vehicle. The court in Taylor held that K.S.A. 75-6401(k) provided immunity to the county from the claims asserted by the plaintiff. The court held that this case was a classic example of the type of cases which falls within the snow and ice exception. Because the accumulation of ice upon the bridge was not due to affirmative negligent acts of the county, the county was immune. There were no negligent acts of the county which caused ice to form on the bridge.
The factual situation in the present case is quite different. The ice on the street where the accident occurred was not the product of natural weather conditions but was due to a break in the water line. It was undisputed that BPU employees turned the water off at 9:00 p.m. The ice formed after the employees turned the water back on in order to locate and repair the leak. The employees of BPU and the City knew there was ice in the road and knew that it was dangerous for vehicles to travel on it. Barricades and flashing lights were placed in the eastbound lanes, but no warnings of any kind were placed in the westbound lanes. As noted heretofore, an accident occurred prior to the plaintiff s accident and other accidents occurred afterward. Under these factual circumstances, we hold that affirmative acts of the City caused the accident. The ice on the highway was not the result of natural weather conditions, but developed only after the BPU employees turned the water back on and allowed the street to be flooded. We hold that the exceptions contained in K.S.A. 75-6104 do not apply in this case. The City simply failed to take acts reasonably necessary for the protection of the travelers in the westbound lanes. The question of negligence was an issue of fact to be determined by the trier of fact.
The final point raised by the defendants on the appeal is that the trial court erred in finding that the sole proximate cause of the accident was the negligence of the defendants. We hold this issue to be without merit. The question of causal negligence was a fact issue which the trial court had the obligation to determine. An appellate court has no right to substitute its judgment on issues of fact for that of the trial court. The City’s own witness, a police officer, testified that there should have been markers and warnings in the westbound lanes to warn travelers. The City had plenty of time to respond to the requests to send a sand truck. The plaintiff was travelling through the area in a normal fashion and she lost control when her car started to spin on the ice. There was substantial competent evidence to support the finding of the trial court. We hold that the trial court did not err in finding that the sole proximate cause of the accident was the negligence of the defendants.
The judgment of the district court is affirmed. | [
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Per Curiam:
This original action in discipline was filed by the office of the Disciplinary Administrator against Lyle Britt, of Wichita, an attorney admitted to the practice of law in Kansas. No exceptions were filed to the report of the hearing panel of the Board for Discipline of Attorneys and, therefore, the facts as found by the panel are not in dispute.
On February 26, 1986, respondent, Lyle Britt, was retained and paid $350.00 by complainant, Regina G. Stevens, and her husband, Tommy G. Stevens, to file an adoption proceeding so that Mr. Stevens could adopt Mrs. Stevens’s minor daughter. The clients advised Britt that the adoption had to be completed as soon as possible because the child had no medical insurance coverage.
Britt did not enter into a written contract of employment with the Stevenses. Because Britt failed to make clear to his clients that the $350.00 paid as fees for services did not include the filing fee and publication costs, the Stevenses assumed that the $350.00 represented the entire cost of the adoption.
Approximately 5 weeks later, on March 31, 1986, Mr. Stevens visited Britt’s office to obtain a receipt for the $350.00. Mr. Stevens was informed that the petition for the adoption had not yet been filed.
On April 11, Britt paid the filing fee and filed the petition for the adoption in the district court of Sedgwick County, Kansas. The notice of the adoption proceeding was published on April 18, 1986; April 25, 1986; and May 2, 1986. The costs of publication were $56.70 and have not yet been paid.
On May 12, 1986, the adoption of the child by Mr. Stevens was approved and the journal entry and decree of adoption were filed that same day. The Sedgwick County District Court did not forward the Report of Adoption to the State Department of Health and Environment, Division of Vital Statistics, because the publication costs had not been paid. Because the publication costs have not yet been paid, the state registrar of vital statistics has not been notified of the adoption as required by K.S.A. 59-2104.
The panel found that there was clear and convincing evidence that respondent had neglected a legal matter entrusted to him in violation of DR 6-101(A)(3) (1987 Kan. Ct. R. Annot. 143) and recommended discipline by public censure.
Neglect involves indifference and a consistent failure to carry out the obligations which the lawyer has assumed to his client or a conscious disregard for the responsibility owed to the client. The concept of ordinary negligence is different. Neglect cannot be found if the acts or omissions complained of were inadvertent or the result of an error in judgment made in good faith. An attorney must insure that his clients have a full understanding as to who will bear the impact of the expenses of litigation. Once the attorney has entered into an employment contract with a client, the attorney has a duty to give reasonably prompt attention to the case until the matter is completed or the relationship of attorney-client is terminated.
It is clear that the problem between respondent and his clients arose from a failure to communicate when Britt originally undertook representation in this adoption. Respondent failed to adequately explain to the clients who was responsible for the payment of the costs to file the adoption and for publication. Because of this miscommunication, the publication costs have not been paid and the district court has not notified the state registrar of vital statistics of the adoption as required by K.S.A. 59-2104.
Having carefully reviewed the record, the members of this court concur with the recommendations of the panel.
It Is Therefore Ordered That Lyle Britt be and he is hereby disciplined by public censure for violation of DR 6-101(A)(3).
It Is Further Ordered that a copy of this order be published in the the official Kansas Reports and that the respondent pay the costs of this proceeding.
Effective this 19th day of February, 1988. | [
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The opinion of the court was delivered by
Herd, J.:
This is a personal injury action. Jacob Anderson appeals the granting of summary judgment by the Wyandotte District Court in favor of Randy Scheffler and Industrial Bearing and Transmission Company, Inc.
The relevant facts are: On February 2, 1984, Jacob Anderson, 19, was helping his brother James deliver a load of ground poultry meal to a plant owned and operated by Badger By-Prod ucts Company in Wyandotte County, Kansas. Jacob backed his 18-wheel truck to the entrance of an enclosed unloading area so the bottom of the hopper trailer was above the plant’s pit in which an auger was located. After insuring that the poultry meal was flowing through the bottom of the trailer into the auger pit, Jacob climbed out of the hopper trailer and walked toward a low wall to hang his jacket. The only way to get across was to walk across the grate over the auger pit. While attempting to do so, Jacob stepped through an opening between the parallel bars and his left foot and leg plunged downward into the auger. His leg was severed above the knee. James heard Jacob’s screams and ran over to find Jacob bleeding profusely at the point where his leg had been amputated.
Jacob, a Missouri resident, filed suit against Badger By-Products Company in the district court of Wyandotte County, Kansas, on March 5, 1984. Badger By-Products, as a division of Beatrice Companies, Inc., (Beatrice) a Delaware corporation with its principal place of business in Illinois, successfully petitioned for removal of the case to the United States District Court for the District of Kansas on March 29, 1984. Jacob moved the United States District Court on December 17, 1984, to remand the case to state court, which motion was denied on March 12, 1985.
On May 1,1985, Jacob moved to amend his petition to join four additional defendants: Beatrice, because it was inherently liable; Conveyors, Inc., a Texas corporation which manufactured the auger; Arthur J. Gallagher & Co., a Delaware corporation which supervised attempts to eliminate hazardous conditions on the premises of Badger By-Products; and finally, Industrial Bearing and Transmission Company, Inc., (IBT) a Missouri corporation which sold and delivered the auger to Badger By-Products. No attempt was made to add IBT employee Randy Scheffler to the federal court action.
On that same date, James, also a Missouri resident, intervened in the federal action to assert claims for infliction of emotional distress. James’ claims were subsequently dismissed by summary judgment on May 14, 1986.
On June 13, 1985, Jacob again moved that the case be remanded to state court for the reason that the addition of IBT as a party defendant would destroy diversity jurisdiction. On June 20, 1985, the court granted Jacob’s previous motion to add additional defendants, but did not include IBT because the addition of another Missouri corporation would destroy diversity jurisdiction. On July 11,1985, the court denied Jacob’s motion to remand, stating that because it had denied the addition of IBT, diversity jurisdiction was not destroyed and there was thus no reason for a remand to state court.
Jacob made no further effort to remand the case to state court. Instead, he filed a second action in the district court of Wyandotte County on January 31, 1986, naming IBT and Randy Scheffler as defendants. Scheffler had accepted the order from Badger By-Products for the auger involved in the accident; IBT had ordered the auger from Conveyors, Inc. Jacob was joined in his petition by his brother James, who asserted a claim for negligent infliction of emotional distress.
A pretrial order was issued pursuant to a pretrial conference by the United States District Court on April 16, 1986. The order stated it was stipulated that “there is no objection to venue, jurisdiction, or propriety of parties.” Neither Jacob nor the named defendants made any allegation of fault on the part of IBT or Scheffler.
On December 11, 1986, Jacob and James entered into a settlement agreement with Conveyors, Inc., for the amount of $24,000. The agreement stated it was “expressly understood and agreed that the undersigned preserve all rights and remedies they may have against all other parties, specifically Randy Scheffler and International Bearing and Transmission Company, Inc., to the Occurrence and do not release said parties by the execution of this Release and Settlement Agreement.”
The Wyandotte District Court granted a motion for summary judgment filed by IBT and Scheffler on James’ claim for emotional distress on December 29, 1986. James did not file a notice of appeal.
On February 2, 1987, three years to the day from the accident, Jacob entered into a settlement agreement with Beatrice under which he released all parties except IBT and Scheffler. The agreement further stated, “Contemporaneously with the execution of this Settlement agreement, the parties stipulate and agree to dismiss with prejudice case number 84-2142-S entitled Jacob Anderson v. Beatrice Companies, Inc., pending in the United States District Court for the District of Kansas, said dismissal to be at defendant Beatrice’s cost.” Defendants Scheffler and IBT state in their brief that the case was subsequently dismissed by the court. We find no such order in the record.
The Wyandotte District Court granted the motions of IBT and Scheffler for summary judgment on the claims of Jacob. Jacob filed a notice of appeal on May 13, 1987.
The two preliminary issues on appeal are whether the Wyandotte District Court erred in entering summary judgment for IBT and Scheffler on the issue of negligent infliction of emotional distress and whether we have jurisdiction to consider any appeal from the grant of summary judgment against James Anderson.
James Anderson did not witness the accident which took his brother’s leg but was immediately on the scene and saw the gruesome consequences. He suffered shock, emotional pain, and feelings of guilt because of the accident, but no actual physical injury. He had recurring nightmares and visited a doctor for depression. The court correctly granted summary judgment under Kansas’ limited recovery rules for negligent infliction of emotional distress. There may be no recovery in Kansas for emotional distress unless that distress results in “physical impact”: an actual physical injury to the plaintiff. Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, 662 P.2d 1214 (1983). Generalized physical symptoms of emotional distress such as headaches and insomnia are insufficient to state a cause of action. Hopkins v. State, 237 Kan. 601, 612-13, 702 P.2d 311 (1985). We pursue this issue no further and go directly to the jurisdictional question, which controls.
The notice of appeal from the Wyandotte County District Court was filed May 13, 1987. The heading of the notice reads, “Jacob Anderson, Plaintiff, vs. Randy Scheffler, et al., Defendants.” The appeal goes on to state:
“Notice is hereby given that plaintiff Jacob Anderson appeals from the memorandum decision filed April 21, 1987, in this cause, wherein defendant’s motion for summary judgment was sustained and plaintiff s case was dismissed on all issues therein . . . .”
The appeal neither names nor refers to James, nor does the April 21, 1987, memorandum decision appealed from affect or refer to James. Jacob Anderson obviously has no standing to assert his brother’s appeal.
K.S.A. 60-2103(b) states: “The notice of appeal shall specify the parties taking the appeal.” This court is without jurisdiction to hear the arguments of a party who was not named either directly or by inference in the notice of appeal. See Sloan v. Sheridan, 161 Kan. 425, 426-27, 168 P.2d 545 (1946). In Brueck v. Krings, 6 Kan. App. 2d 622, 631 P.2d 1233 (1981), the Court of Appeals dismissed an appeal taken on behalf of a class which was not certified. We reversed the Court of Appeals in Brueck v. Krings, 230 Kan. 466, 467, 638 P.2d 904 (1982), and permitted the appeal to proceed, but only as to those persons in the class who were actually named.
We lack jurisdiction here because the dismissal of the emotional distress claim was not appealed within thirty days from the entry of judgment as provided by K.S.A. 60-2103(a). James Anderson’s suit was dismissed by motion for summary judgment in the district court of Wyandotte County on December 29, 1986. No appeal followed. Even if we were to consider Jacob Anderson’s appeal of May 13, 1987, to include James Anderson’s claim, such an appeal is over four months late. The filing of a timely notice of appeal is jurisdictional, requiring dismissal except where excusable neglect or unique circumstances are found. Schroeder v. Urban, 242 Kan. 710, 750 P.2d 405 (1988); Szoboszlay v. Glessner, 233 Kan. 475,476, 664 P.2d 1327 (1983).'The exceptions are not present in this case.
This court also lacks jurisdiction because the notice of appeal does not specify that James is appealing his December 29, 1986, summary judgment. K.S.A. 60-2103(b) states: “The notice of appeal shall . . . designate the judgment or part thereof appealed from.” Appellate review is limited to those rulings which are specified in the notice of appeal. Carrick v. McFadden, 216 Kan. 683, 690, 533 P.2d 1249 (1975). Because no appeal was filed by James, we are without jurisdiction to entertain any appeal from the summary judgment granted against him. This issue is without merit.
The primary issue in this appeal is whether, under the principles of comparative fault, a plaintiff may settle and dismiss with prejudice a negligence action in federal district court and then pursue a second action in state court against additional parties for damages arising out of a single occurrence.
The Wyandotte District Court, in its memorandum opinion, respected this court’s consistent rulings that all comparative negligence must be determined in one action. The court rejected appellant’s argument that comparative negligence rules do not apply when there has been no trial on the merits. The court noted that were this argument to prevail, a plaintiff could settle one case, file a new case against an additional defendant, settle that case, file a new case against an additional defendant, etc., in violation of the intent of the Kansas Comparative Negligence Act, which seeks to avoid prejudice to the defendants and have comparative fault determined in one just, economical, and final action. The court noted appellant was not forced to settle the federal litigation in lieu of trial on the merits.
In Teepak, Inc. v. Learned, 237 Kan. 320, 699 P.2d 35 (1985), the plaintiff filed suit against two corporations, but not against his doctor. One of the corporations, Teepak, filed a third-party complaint against the doctor. After the corporations settled with the plaintiff and the case was dismissed, Teepak sought post-settlement contribution from the doctor in a separate action. This court held, because Teepak under K.S.A. 60-258a could have forced the determination of the doctor’s proportionate liability and chose not to do so, the principle that all liability be settled in one claim kept Teepak from asserting its claim in a later action. As in the present case, there was no determination of comparative fault by judge or jury; only a settlement and dismissal, which we found enough to bar future suits.
Appellant distinguishes the present case from Teepak, noting there is no indication in Teepak that the settling parties attempted to reserve the right of suit against additional parties.
On the issue of reserving the right to sue, the district court cited our language in Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, 374, 634 P.2d 1127 (1981), that “those not joined as parties or for determination of fault escape liability” in holding that appellant’s nonassertion of any negligence against IRT or Scheffler in the federal action, despite his failure or inability to join them, precluded him from attempting to recover from them in state litigation. The court noted there is nothing in the federal rules which would have precluded appellant from asserting IBT and Scheffler’s negligence despite his failure and inability to join them as named party defendants. The court cited Hefley v. Textron, Inc., 713 F.2d 1487 (10th Cir. 1983), which ruled that under K.S .A. 60-258a a defendant has the right to have the fault of all participants in an accident determined in one action, whether or not they are all joined as parties. The court found a plaintiff must be required to name all parties for comparison purposes even if they cannot be joined if he is to retain the right to claim damages from the non-joined parties in the future. A plaintiff would often otherwise be reluctant to allege fault against several defendants for fear of ultimately reducing the amount of damages he might recover from one “deep pocket” defendant.
The court then held, because a pretrial order controls the future course of litigation, and the pretrial order contained no allegations of negligence against IBT or Scheffler, appellant was estopped from alleging negligence against IBT and Scheffler in a state court action. The court did not accept appellant’s argument that, had the federal litigation gone to trial, he would have moved the court to modify the pretrial order to allow the comparison of fault of IBT and Scheffler, reasoning that the case had been pending for almost three years before settlement without amendment of pleadings or a motion being filed asking for comparison of IBT and Scheffler.
Appellant insists on appeal it was his intention to ask for a modification of the pretrial order in order to compare the fault of IBT and Scheffler. He attaches an affidavit, sworn on February 2, 1987, the date of the settlement agreement, from an attorney for Beatrice which states the parties were in agreement that the pretrial order should be modified so that the fault of IBT (Scheffler is not mentioned) could be compared.
IBT and Scheffler argue it does not matter whether their fault was compared, or meant to be compared, in the federal action. Since they are not named defendants, they argue, such action could have only decreased appellant’s recovery, as appellant could not recover a proportionate share of his damages from them.
In Greenwood v. McDonough Power Equipment Inc., 437 F. Supp. 707 (D. Kan. 1977), a plaintiff brought suit in federal court against the manufacturer of a lawn mower. The manufacturer moved to join, as additional defendants to the action, the owner and the operator of the lawn mower which had injured plaintiff. The motion was denied because the addition of these parties would destroy federal diversity jurisdiction. The court found the nonparties’ comparative negligence could still be determined in the action, however. It held the plaintiff, by choosing to file in federal court, bore the risk that nonparties from which he could collect would be found to have caused a large percentage of the total damage.
Appellant, in the case at bar, however, did not voluntarily accept the risk of nonjoinder by selecting the federal forum. We stated in Eurich v. Alkire, 224 Kan. 236, 238, 579 P.2d 1207 (1978):
“[A]ll persons who are named as parties and who are properly served with summonses are bound by the percentage determination of causal negligence. Because the statute contemplates that each party has a right to cross-claim against any or all other parties to a lawsuit, we hold that any party who fails to assert a claim against any other party in a comparative negligence action is forever barred. A corollary rule naturally follows that a person who has not been made a party to a comparative negligence case should not be bound by a judgment therein, even though his causal negligence may have been determined.” (Emphasis supplied.)
The Eurich holding is based on the feasibility, under Kansas law, of joining all parties. It is inapplicable in circumstances where that foundation is absent.
We reach in the present case the problem anticipated in Albertson, wherein we noted federal diversity rules prohibit claims against nondiverse parties, but do not prohibit a second suit in state court against the nondiverse parties. 230 Kan. at 373-74. We refused to rule on this issue in Albertson because it was outside the question certified in the case. In Albertson, the plaintiff attempted to sue a party in federal court which he could have joined in a previous action in state court. Under those circumstances, we held all parties to an injury must have their fault determined in one action, and those not joined in the action may not be sued in a second action. In Albertson, the plaintiff chose not to join Volkswagen in the state court action for strategic reasons. In the instant case it was the defendants who removed the action to federal court for strategic reasons. Appellant tried to remand the case to state court. This case squarely presents the diversity issue which we refused to decide in Albertson. We hold that where a plaintiff is prevented from joining a necessary party in federal court because of loss of diversity, as in this case, the action against that party survives in state court as an exception to the rule in Albertson.
This case must also be controlled by Mathis v. TG&Y, 242 Kan. 789, 751 P.2d 136 (1988). In Mathis, the plaintiff sued TG&Y, the tenant, for personal injuries caused by a defective door. While that action was pending, the plaintiff filed another suit for the same injuries from the same accident against Vernon Jacobs, the landlord, and Cheney Door Co., the maintainer of the door, in the same jurisdiction. TG&Y was afforded no notice of the second action. The action against Vernon Jacobs and Cheney Door Co. was dismissed by the court with prejudice. The trial court then dismissed the action against TG&Y following Albert-son, 230 Kan. 368, and Teepak, 237 Kan. 320. In each of the foregoing cases we held all parties to an action must be joined in the same action and that resolution of the issues binds all the parties. In spite of the precedent, we held in Mathis by a divided court that a dismissal with prejudice binds only the parties dismissed in the absence of a determination of comparative fault.
The arguments and authorities in the case at bar concerning the question of whether res judicata, collateral estoppel, or comparative fault rules apply when a case has been dismissed without a determination of comparative fault are identical to those set out in Mathis. There are, however, two differences between the cases on this question. In the present case, the settlement agreements specifically attempted to retain the right to bring suit against IBT and Scheffler. A more important difference is that the plaintiff in Mathis was in entire control of his suit and made the decision to sue different defendants in different actions. Here, appellant did everything he could to preserve his lawsuit against IBT and Scheffler. He moved to amend his petition to include IBT. He moved to remand the case to state court. In each instance his motions were overruled. Finally, appellant attempted to preserve his action against IBT and Scheffler by specifically excepting them from his releases.
Despite the differences between the two cases, however, the instant case, although decided as an exception to the Albertson rule, also falls under the broader rule expressed in Mathis. There has not yet been a comparison of fault at trial.
The judgment of the trial court is reversed on the issue of the dismissal of Jacob Anderson’s action against IBT and Randy Scheffler and the case is remanded for further proceedings. | [
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The opinion of the court was delivered by
McFarland, J.:
Robert Lynn Lucas appeals his jury trial convictions of two counts of child abuse, K.S.A. 1987 Supp. 21-3609, (one count as to victim Shannon Woodside and one count as to victim Shaina Woodside) and one count of felony murder, K.S.A. 21-3401, as to victim Shaina Woodside. Lucas was sentenced to three to eight years’ imprisonment on each count of child abuse and to life imprisonment for felony murder.
At the times of the crimes of which defendant was convicted, he was living in Olathe with Jean Woodside and her two daughters, Shaina (age 18 months at the time of her death) and Shannon (age 3 years). Mrs. Woodside worked three evenings a week and attended school the other four evenings. Defendant had the children in his care every evening and frequently in the daytime. At approximately 10:30 p.m. on July 6, 1986, defendant called 911, the emergency number, to request medical assistance for Shaina. First on the scene was Officer James Stover. He found the defendant in an upstairs bathroom standing over the unconscious body of Shaina. Shannon was in the bathtub. Officer Stover carried Shaina downstairs and observed she was not breathing and had no pulse. He commenced CPR. A Med-Act unit arrived and Shaina was taken to a local hospital. Officer Stover asked defendant what had happened and defendant gave a lengthy detailed account of how he had placed the two little girls in the tub for their evening bath, shut the glass shower doors, and gone downstairs to watch television. Sometime later he had returned upstairs to check on the children and had found Shaina floating face down in the tub. His efforts at CPR were unsuccessful, but the child vomited up her dinner along with a toothpaste tube cap. Thereafter he went downstairs and telephoned the child’s mother, requesting that she return home. Defendant then called 911.
After the child had been taken to the hospital, Officer Stover stayed at the residence with the defendant. Upon Mrs. Wood-side’s arrival, the three went to the hospital. The child was pronounced dead at the hospital. A number of suspicious injuries were observed on her body at the hospital, including patterned burns on her buttocks, three burns resembling cigarette burns on other parts of her body, severe fresh lacerations to her nipples, and numerous bruised areas on many different parts of her body. At this point Detective Joseph Pruett, an experienced investigator of homicide and child abuse cases, was sent to the hospital where he viewed Shaina’s body. As per his prior instructions from his Chief of Detectives, Captain John Bunker, Detective Pruett escorted defendant to the Olathe Police Station for an interview. This interview will be discussed in greater detail in one of the issues raised herein. Immediately thereafter, defendant was arrested on a charge of child abuse as to Shaina. The cause of death had not been determined at this time.
The following afternoon an autopsy was performed which showed Shaina had suffered severe multiple blows to the head, one of which had hemorrhaged % inch past the arachnoid, the thin covering of the brain. The coroner testified the sub-arachnoid hemorrhage could have caused Shaina to lose consciousness. The head injuries appeared to have been inflicted near the time of death. The coroner testified Shaina’s body showed injuries which were the “characteristic stigmata that one sees in child abuse.” He found it probable Shaina had met her death by losing consciousness in a body of water and drowning. The head injuries were first disclosed during the autopsy.
Further investigation and trial evidence revealed a real-life horror story of abuse inflicted by the defendant on both little girls over a period of time, directed particularly at Shaina. The evidence relative to the abuse of Shannon will be discussed in a separate issue. There was evidence that defendant had, prior to July 6, 1986, beaten Shaina severely with a heavy leather belt, poured Tabasco sauce down her throat, set her down on a hot stove burner, and repeatedly pinched and bitten the child. While in his care Shaina’s arm had been broken. A few days before Shaina’s death, Mrs. Woodside had observed Shaina in a dazed condition while in the bathroom with defendant. Defendant told her that he had “tranked” the child. He explained this consisted of holding his hand over the child’s face until she passed out from lack of oxygen. He further stated he had used this form of “discipline” on his child of a previous marriage. He generally explained Shaina’s injuries, when observed by others, as arising from accidents or efforts at discipline.
Defendant was charged with and convicted of child abuse as to Shannon and child abuse and felony murder as to Shaina. The matter before us is defendant’s direct appeal from these convictions.
For his first issue, defendant contends the district court erred in failing to dismiss the charge of felony murder as the child abuse charge merged into the felony murder and could not constitute the requisite collateral felony to support the felony-murder charge.
The Kansas felony-murder statute is K.S.A. 21-3401, which provides:
“Murder in the first degree is the killing of a human being committed maliciously, willfully, deliberately and with premeditation or committed in the perpetration or attempt to perpetrate any felony.” (Emphasis supplied.)
As we stated in State v. Lashley, 233 Kan. 620, 664 P.2d 1358 (1983):
“A literal reading of this statute would find any felony to be sufficient to support a charge of felony murder if a causal relation exists. The purpose of the statute is to deter those engaged in felonies from killing negligently or accidentally, and that doctrine should not be extended beyond its rational function which it was designed to serve.” 233 Kan. at 631.
In Kansas, as in many other states, the application of felony murder has been limited by judicial decision to situations where: (1) the underlying felony is inherently dangerous to human life; and (2) the elements of the underlying felony are so distinct from the homicide as not to be an ingredient of the homicide. See State v. Lashley, 233 Kan. 620, and Annot., 40 A.L.R.3d 1341.
In determining whether a particular felony is inherently dangerous to human life so as to justify a charge of felony murder, the elements of the underlying felony should be viewed in the abstract, and the circumstances of the commission of the felony should not be considered in making the determination. State v. Underwood, 228 Kan. 294, 306, 615 P.2d 153 (1980).
K.S.A. 21-3110(8) states:
“ ‘Forcible felony’ includes any treason, murder, voluntary manslaughter, rape, robbery, burglary, arson, kidnapping, aggravated battery, aggravated sodomy and any other felony which involves the use or threat of physical force or violence against any person.”
Clearly, all of the crimes specifically designated therein would supply the requisite underlying felony for a felony-murder conviction unless the doctrine of merger applies (discussed later herein).
In State v. Lashley, 233 Kan. at 633, we held that while some of the offenses defined with the theft statute (K.S.A. 21-3701) were not inherently dangerous to human life, two of the designated offenses were.
K.S.A. 1987 Supp. 21-3609 provides:
“Abuse of a child is willfully torturing, cruelly beating or inflicting cruel and inhuman corporal punishment upon any child under the age of 18 years.”
Clearly, abuse of a child as defined by K.S.A. 1987 Supp. 21-3609 is a felony inherently dangerous to human life and no contrary assertion is made herein. Rather, the issue herein is whether the underlying or collateral felony is so distinct from the homicide as not to be an ingredient of the homicide. If the underlying felony does not meet this test it is said to merge with the homicide and preclude the application of felony murder. Thus, a crime such as second-degree murder may not serve as the underlying felony supporting first-degree felony murder because second-degree murder is one of the lesser included offenses of first-degree murder. Otherwise, all degrees of homicide would constitute murder in the first degree, regardless of the defendant’s intention or premeditation. First-degree premeditated murder (or any lesser degree of homicide) could, of course, constitute the requisite underlying felony where, for instance, a defendant kills victim B during his or her commission of a homicide on victim A. The homicide of victim A could be the underlying felony for a felony-murder charge for the death of victim B.
In State v. Fisher, 120 Kan. 226, 230-31, 243 Pac. 291 (1926), we held a farmer’s son who killed a four-year-old child while shooting at a trespasser could not be charged with felony murder on the basis of an underlying felony of assault with a deadly weapon. We held the elements of the underlying felony must be so distinct from the homicide as not to be an ingredient of the homicide. The son could therefore be charged with first-degree murder, or some lesser degree of murder, but not with felony murder because the underlying felony merged with the homicide so there were not two separate felonies. There was but a single criminal act involved.
State v. Clark, 204 Kan. 38, 460 P.2d 586 (1969), is a case in which the defendant had been convicted of felony murder based upon the underlying felony of felonious assault. Defendant had stabbed his wife, who died as a result thereof. We held that the felonious assault was an integral part of the homicide and reversed the conviction. To hold otherwise, we said, would preclude the jury from considering premeditation in the great majority of homicide cases.
We turn now to abuse of a child as the underlying felony to support felony murder. The State relies heavily on State v. Brown, 236 Kan. 800, 696 P.2d 954 (1985). The Brown opinion is short and of special significance herein. Accordingly, the opinion as it relates to the issue before us is reproduced as follows:
“These consolidated appeals arise from defendant’s conviction of involuntary manslaughter (K.S.A. 1984 Supp. 21-3404) and child abuse (K.S.A. 21-3609). The State appeals in Case No. 56,525 on a question reserved pursuant to K.S.A. 22-3602(b)(3) and the defendant appeals in Case No. 56,997 from alleged erroneous trial court rulings.
“The facts giving rise to the charges are not seriously disputed. Defendant Eileen Brown gave birth to a son, Randell Brown, on March 10, 1983. He was released from the hospital into his mother’s care five days later, weighing five pounds and in good health. On April 21, 1983, defendant brought Randell Brown to the hospital where he was pronounced dead. The child was emaciated and had bruises on his head, abdomen and buttocks. Randell weighed only four pounds and three ounces on April 21, although according to expert testimony he should have weighed around seven pounds, five ounces. The pathologist who performed an autopsy on the child concluded Randell exhibited:
T. Neglect with weight loss and fat atrophy.
‘2. Evidence of abuse with healing fracture of left clavicle shoulder, abdominal bruise and right parietal skull fracture with scalp hematoma.
‘3. Cerebral hematomas . . . .’
“On the day Randell died Eileen Brown gave a written statement to the police in which she admitted jerking the child by the neck because he wouldn’t stop crying, shaking him, and hitting him on his face and chest; she also spoke of being under tremendous pressure living alone and trying to raise two children. Four days later she gave the police another written statement in which she admitted feeling a great deal of anger and stress, hitting Randell on the right side of his head with her fist, and later hitting him in the chest. Following a preliminary hearing, defendant was bound over on charges of first-degree murder, abuse of a child, and aggravated battery. Prior to trial the State dismissed the charge of aggravated battery. We will consider each appeal separately.
Case No. 56,997
“Defendant Eileen M. Brown was tried on one count of first-degree felony murder and one count of abuse of a child. The court gave the full range of instructions on lesser included offenses of murder and the jury found defendant guilty of involuntary manslaughter and abuse of a child. For her first point on appeal defendant contends that the trial court erred in denying her motion to dismiss on grounds there was no independent collateral felony to support the felony murder charge. It is defendant’s contention that the child abuse charge merged in the charge of felony murder and, having done so, no collateral felony remained to support the felony murder charge. We agree with the trial court’s ruling.
“K.S.A. 21-3609, abuse of a child, was amended in 1984 but the amendment only changed the classification of the crime from a class E felony to a class D felony. The elements of the offense, which were not affected by the 1984 amendment, read:
‘Abuse of a child is willfully torturing, cruelly beating or inflicting cruel and inhuman corporal punishment upon any child under the age of eighteen (18) years.’
K.S.A. 21-3401, first-degree murder, reads:
‘Murder in the first degree is the killing of a human being committed maliciously, willfully, deliberately and with premeditation or committed in the perpetration or attempt to perpetrate any felony.’
“To invoke the felony murder rule there must be proof a homicide was committed in the perpetration of or an attempt to perpetrate a felony and that the collateral felony was one inherently dangerous to human life. State v. Lashley, 233 Kan. 620, 631, 664 P.2d 1358 (1983). However, the felony murder doctrine is not applicable when the other felony is an integral part of the homicide. State v. Clark, 204 Kan. 38, Syl. ¶ 1, 460 P.2d 586 (1969). In such a case the collateral felony is said to have merged with the homicide and results in only one offense. In order to make this determination, we have held:
‘The proper test for determining whether an underlying felony merges into a homicide is whether all the elements of the felony are present in the homicide and whether the felony is a lesser included offense of the homicide.’ State v. Rueckert, 221 Kan. 727, Syl. ¶ 6, 561 P.2d 850 (1977).
It is obvious from even a cursory reading of the statutes that a charge of abuse of a child does not meet the Rueckert test for merger into a charge of felony first-degree murder.
“We are not called upon, and do not here decide, whether a single instance of assaultive conduct, as opposed to a series of incidents evidencing extensive and continuing abuse or neglect, would support a charge of felony murder. See People v. Smith, 35 Cal. 3d 798, 201 Cal. Rptr. 311 (1984), and Massie v. State, 553 P.2d 186 (Okla. Crim. 1976). Cases supporting the doctrine that child abuse constitutes a collateral felony that will support a charge of felony murder include People v. Northrup, 132 Cal. App. 3d 1027, 182 Cal. Rptr. 197 (1982); People v. Roark, 643 P.2d 756 (Colo. 1982); Holt v. State, 247 Ga. 648, 278 S.E.2d 390 (1981); Miller v. State, 379 So. 2d 421 (Fla. Dist. App. 1980); State v. O’Blasney, 297 N.W.2d 797 (S.D. 1980).
“We hold that the charge of abuse of a child did not merge into the homicide and the trial court did not err in denying defendant’s motions for dismissal.” 236 Kan. at 801-04.
In Brown, we relied on State v. Rueckert, 221 Kan. 727, Syl. ¶ 6, 561 P.2d 850 (1977), for the test in determining merger, iterated as follows:
“The proper test for determining whether an underlying felony merges into a homicide is whether all the elements of the felony are present in the homicide and whether the felony is a lesser included offense of the homicide.”
This is a rather misleading statement as a lesser crime necessarily proved in establishing the charged crime is a lesser included offense of the charged crime. See K.S.A. 1987 Supp. 21-3107(2)(d). As we stated in State v. Moore, 242 Kan. 1, Syl. ¶ 1, 748 P.2d 833 (1987):
“An offense is a lesser included offense under K.S.A. [1987 Supp.] 21-3107(2)(d) when all of the elements necessary to prove the lesser offense are present and required to establish the elements of the greater offense.”
In considering merger, the test is more correctly stated as being whether the elements of the underlying felony are so distinct from the homicide so as not to be an ingredient of the homicide. See State v. Lashley, 233 Kan. 620, as previously cited. In this context, “collateral felony” is perhaps a more meaningful term than “underlying felony” although the two terms are used synonymously and interchangeably in our opinions discussing the felony-murder doctrine.
In the case before us the abuse of a child charge, like that in Brown, encompassed multiple acts of abuse. Specifically, Instruction No. 11 stated:
“The defendant is charged in Count I with the crime of abuse of a child (Shaina Woodside). The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. That the defendant willfully tortured or cruelly beat or inflicted cruel and inhuman corporal punishment upon a child under the age of eighteen years; and
2. That this act occurred on or about the month of November, 1985, through July 6, 1986, in Johnson County, Kansas.”
Instruction No. 16 provided:
“The defendant is charged in Count III with the crime of felony murder. The defendant pleads not guilty.
“To establish this charge each of the following claims must be proved:
1. That the defendant killed Shaina Woodside;
2. That such killing was done while in the commission of abuse of a child, a felony; and
3. That this act occurred on or about the 6th day of July, 1986, in Johnson County, Kansas.
The elements of abuse of a child are set forth in Instruction No. 11.”
It was the State’s theory that Shaina died as a result of a severe beating to her head administered by the defendant from which she lost consciousness and drowned in the bathtub. There was no claim that any of the other acts of abuse caused or contributed to her death. The defendant could have been found guilty of abuse of a child based solely on the fatal beating and convicted of felony murder solely on the fatal beating. If one and the same act can constitute both felony murder and the underlying felony, it would seem superfluous to determine if the underlying felony was inherently dangerous to human life or to consider the time, distance, and causal relationship of the underlying felony to the killing.
Had an adult been beaten on the head, lost consciousness as a result thereof, and drowned in a pool of water or been asphyxiated by his blood or vomit, we would have no hesitancy in holding that the aggravated battery (the beating) was an integral part of the homicide and that it merged therewith and could not serve as the underlying felony. Can a different result logically be reached by designating the beating as abuse of a child rather than aggravated battery? We believe not.
The facts herein are shocking, appalling, heinous, and whatever other synonym one wishes to apply. The jury could have easily concluded defendant was a vicious and sadistic person. It can be argued that special protection needs to be afforded to children and felony murder should apply where a child dies as the result of the offense of child abuse. But to so hold actually gives less protection to children. Abuse of a child is a Class D felony. Aggravated battery is a Class C felony. If abuse of a child is the highest offense for severely beating, shooting, or stabbing a child who survives the attack, the penalty would be less than for the same act committed against an adult.
Simple battery is defined by K.S.A. 21-3412 as follows:
“Battery is the unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angry manner.”
Aggravated battery is defined by K.S.A. 21-3414 as follows:
“Aggravated battery is the unlawful touching or application of force to the person of another with intent to in jure that person or another and which either:
(a) Inflicts great bodily harm upon him; or
(b) Causes any disfigurement or dismemberment to or of his person; or
(c) Is done with a deadly weapon, or in any manner whereby great bodily harm, disfigurement, dismemberment or death can be inflicted.”
There is nothing in the aggravated battery statute limiting its application to cases where the victim is 18 years of age or older. Abuse of a child does not contain the great bodily harm requirement. Aggravated battery obviously can be committed against a child under 18 years of age.
Faced with the horror of the killing of small children by those responsible for their care, some courts have taken rather illogical positions. Particularly noteworthy in this group is People v. Jackson, 218 Cal. Rptr. 637 (1985). Defendant Jackson became angry with his 33-month-old son because the child, in dressing, put his pants on backwards. Defendant then beat the child with a 36" long, 2" thick wooden dowel rod. He then strangled the child until the boy passed out, and then resumed beating the child’s head with the dowel rod. The child died from his head injuries. Defendant was convicted of felony murder with the underlying felony being child abuse. The California Court of Appeals affirmed. It recognized the merger doctrine but held it inapplicable, reasoning:
“In the instant case, we find discernible in appellant’s conduct an independent, collateral purpose separate from the intent to inflict bodily harm. That purpose was to punish; to chastise; to bend the child’s actions into conformity with his father’s idea of propriety, and to impress upon him the virtue of obedience.
“While such an intent (i.e., chastisement) is not in itself a felonious one, the intent to chastise in a ‘cruel or inhuman (inherently dangerous) manner is felonious. Moreover, in our opinion a murder conviction predicated upon a violation of Penal Code section 273d under the circumstances here presented is entirely consistent with and well serves the public policy underlying the felony-murder rule, which is ‘to deter those engaged in felonies from killing negligently or accidentally.’ (People v. Satchell (1971) 6 Cal. 3d 28, 34, 98 Cal. Rptr. 33, 489 P.2d 1361.) Thus, conduct violative of Penal Code section 273d is always inherently dangerous, but it need not, of course, be in every instance fatal. Here the independent purpose of the underlying felony was to coerce the child into obeying his father’s will. There is, of course, nothing criminal in such purpose, and had appellant administered light corporal punishment or some other rational discipline appropriate to the circumstances, Vic, Jr., would still be alive. Only the inherently dangerous and entirely disproportionate means chosen to effectuate appellant’s punitive purpose rendered his conduct felonious. Strangulation and the first blow to the head with a truncheon constituted felony child abuse as defined in Penal Code section 273d. Subsequent, lethal blows in our opinion rendered appellant culpable of murder by operation of the felony-murder rule; for it was precisely these subsequent blows that the rule was designed to deter.” 218 Cal. Rptr. at 641-42.
Another California Court of Appeals case, People v. Benway, 164 Cal. App. 3d 505, 210 Cal. Rptr. 530 (1985), also decided in 1985, held merger did apply. The Benway court held:
“We see no reason why the felony-murder rule should apply to some — but not all — violations of section 273a, subdivision (1). For example in Smith [35 Cal. 3d 798, 201 Cal. Rptr. 311, 678 P.2d 886 (1984),] and Shockley, [79 Cal. App. 3d 669, 145 Cal. Rptr. 200 (1978),] both defendants were guilty of creating a life threatening environment for their children despite the affirmative duty imposed upon them by section 273a, subdivision (1). The only difference is that the defendant in Smith accomplished this result by direct physical abuse while in Shockley the defendant employed an indirect method. The distinction between the form of abuse does not justify disparate treatment among defendants who severely abuse children. It would make little sense to treat those who directly batter their children more leniently than those who inflict no injuries themselves but merely allow others the opportunity to do so. Therefore, we conclude all forms of felony child abuse, whether ‘assaultive,’ ‘nonassaultive,’ ‘active,’ or ‘passive,’ constitute a ‘single course of conduct with a single purpose.’ (People v. Burton (1971) 6 Cal. 3d 375, 387.) The conduct is ‘an “integral part of’ and “included in fact” in the homicide within the meaning of Ireland [70 Cal. 2d 522, 75 Cal. Rptr. 188, 450 P.2d 580 (1969)].’ (People v. Smith, supra, 35 Cal. 3d at p. 806, fn. omitted.) Thus, when death occurs, the act or omission to act merges into the homicide.
“This result is also supported by the purpose of the felony-murder rule itself. The Supreme Court in Smith reiterated that ‘the ostensible purpose of the felony-murder rule is not to deter the underlying felony, but instead to deter negligent or accidental killings that may occur in the course of committing that felony.’ (People v. Smith, supra, 35 Cal. 3d at p. 807.) As in Smith, when a person willfully causes or permits the infliction of unjustifiable pain or willfully causes or permits a child to be placed in a dangerous situation under circumstances likely to produce death, ‘it is difficult to see how the assailant would be further deterred from killing negligently or accidentally in the course of that felony by application of the felony-murder rule.’ (Ibid.) Furthermore, by further restricting the application of the felony-murder rule, we comply with the Supreme Court’s directive that the felony-murder rule “ ‘should not be extended beyond any rational function that it is designed to serve” [and should] be given the narrowest possible application consistent with its ostensible purpose . . . .’ (People v. Smith, supra, 35 Cal. 3d at p. 803.)
“Applying the felony-murder rule in the narrowest possible way, as we must, we are compelled to conclude there is no independent felonious design when any form of felony child abuse is willfully committed under circumstances likely to produce great bodily harm or death. Therefore, Benway’s act of placing Raelynn in a dangerous situation must merge into the homicide. Consequently, it was error to convict Benway of second degree felony murder.” 164 Cal. App. 3d at 512-13.
A number of other jurisdictions have wrestled with the same type of issue as is before us. Faced with the large variation in factual situations, felony-murder statutes, and child abuse statutes involved, these cases are not particularly helpful.
In State v. Brown, 236 Kan. 800, we declined to decide whether “a single instance of assaultive conduct, as opposed to a series of incidents evidencing extensive and continuing abuse or neglect, would support a charge of murder.” We now conclude that a single instance of assaultive conduct will not support the use of abuse of a child as the collateral felony for felony murder when that act is an integral part of the homicide. Should this result change if the prosecution can present evidence that on one or more prior occasions the defendant directed assaultive conduct toward the same victim regardless of whether or not such other conduct was a contributing factor in the child’s death? What deterrent effect would be accomplished? If an individual beats a child to death in July, what logical or legal basis is there to escalate the charge from manslaughter to first-degree felony murder based on the fact he had beaten the child several months previously? A wife-beater who ultimately batters his wife to death faces no first-degree felony murder charge simply because he may have injured his wife on previous occasions.
We conclude that, when a child dies from an act of assaultive conduct, evidence of prior acts of abuse cannot be used to escalate the charge into felony murder. Such acts could be used as additional counts of abuse of a child but the prosecutorial device of charging multiple acts of abuse of a child in one count cannot bootstrap a felony-murder charge. Any language to the contrary in State v. Brown, 236 Kan. 800, is disapproved.
If additional protection for children is desired, the Kansas Legislature might well consider legislation which would make the death of a child occurring during the commission of the crime of abuse of a child, or aggravated battery against a child, first- or second-degree felony murder.
For his second issue, defendant contends the trial court erred in admitting into evidence a videotape interview of himself taken by a police officer some three hours after he had reported Shaina’s death. A Miranda warning was given to the defendant only at the conclusion of the admitted interview, at which time defendant declined to answer any further questions. The crucial determination here is whether or not the interrogation was investigative or custodial. See Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). The determination of whether interrogation was custodial must be made on a case-by-case basis. State v. Edwards, 224 Kan. 266, 268, 579 P.2d 1209 (1978). The issue needs to be determined herein, as it will arise on any subsequent retrial of defendant.
We found no violation of the defendant’s constitutional rights in State v. Taylor, 234 Kan. 401, 405-06, 673 P.2d 1140 (1983), where a husband who had reported his wife missing was asked to come to the police station at 12:10 p.m. and questioned without being restrained until suspicions developed that his wife was a homicide victim, at which time he was given a Miranda warning. This case has similarity to the case at bar. Here, Lucas called the police and reported the death. He was in charge of the victim. Ostensibly the child had drowned, as he had reported. It was natural that the police would interview him to help determine how Shaina had drowned. To this extent, an interview would be clearly investigatory, as it had not yet been determined a crime had been committed.
In State v. Carson, 216 Kan. 711, 715, 533 P.2d 1342 (1975), we listed five factors helpful in considering whether questioning constitutes custodial interrogation. Let us consider each factor in light of the facts of the case.
(1) The nature of the investigator: Lucas was questioned by a single plainclothes detective. The detective had been requested by his captain to go to the hospital, view Shaina’s body, and accompany Lucas back to the police station to question him. Lucas and Woodside were not allowed to see Shaina’s body. The detective drove Lucas to the station in an unmarked car. The focus was clearly on child abuse at this time. The detective had had extensive experience in homicides and child abuse and had conducted seminars on child abuse.
(2) The nature of the suspect: Lucas was an articulate adult of apparently normal intelligence. He had been described to the detective as the person who was in charge of Shaina’s care at the time of her death.
(3) The time and place of the interrogation: The interrogation took place at the police station at 12:45 a.m., soon after Shaina was pronounced dead. Lucas was left alone while the detective activated a hidden camera in a small interview room in a restricted area of the police station. Lucas was not told the interview would be recorded. The fact the interview was videotaped is not of much significance. It appears to be routine procedure for the Olathe police to videotape statements in such circumstances. The interview with Woodside was under similar conditions.
(4) The nature of the interrogation: The first 25 minutes of the interview consisted mainly of gathering detailed biographical information about Lucas, his past history, and his relationship with Woodside. The questioning then turned to the events of that night. Lucas asked to be allowed to use the restroom, but the detective told him to wait and “get through this basic story because I think the Captain will be down in just a minute and he may have a few questions for you and I want to continue with this.” When Lucas asked if it would be a long wait, the detective said, “Well, as long as it takes.” About 15 minutes later, after hearing Lucas’ explanations for some of Shaina’s injuries, the detective left to consult with his captain about arresting Lucas and Lucas was allowed a to use the restroom. He had to be accompanied by an officer because the interview room was in a restricted area in which a citizen could not walk unaccompanied.
In his testimony, the detective stated there were three distinct parts to the interview. These may be categorized as: (1) Tell me about yourself (biographical); (2) tell me how the little girl died; and (3) I saw the little girl’s body and I don’t believe your version of the events. Defendant was then asked about particular injuries the detective had previously observed on the dead child’s body.
(5) The progress of the invetigation at the time of interrogation: The cause of death had not yet been determined, but child abuse was certainly suspected. Lucas was known to be the only adult with Shaina in the hours before her death. The focus of the investigation was on Lucas from the beginning of this interrogation.
We hold the video tape of the interrogation was admitted in error in violation of Miranda, but in this case the error was harmless. The first part of the interrogation was purely biographical. It is neither exculpatory or inculpatory. It consists of neutral facts. The second part of the interview — how the child died — was essentially a repetition of what defendant had told Officer Stover at the house in a purely investigatory situation. The third part is a closer question, but again defendant admitted to no fault. He explained some of her injuries as accidental or done for a proper disciplinary purpose. Some injuries were not explained. Those that were explained were done so by versions he had previously told Mrs. Woodside, the child’s mother. Essentially nothing material that could not have been learned from other sources was involved. The detective did not know of any child abuse aimed at Shannon and no inquiry was made as to defendant’s treatment of the older child.
We conclude that it was error to admit the videotaped interview in this case, but that it was harmless error as we are satisfied that its exclusion would not have altered any of the three jury verdicts herein. State v. Abu-Isba, 235 Kan. 851, 859, 685 P.2d 856 (1984); State v. Arney, 218 Kan. 369, Syl. ¶ 2, 544 P.2d 334 (1975).
The third issue is whether the trial court erred in admitting two photographs of Shaina’s skull taken during the autopsy. We accept the admission of photographs into evidence as within the discretion of the trial court unless it is shown such discretion has been abused. State v. Kendig, 233 Kan. 890, 893, 666 P.2d 684 (1983).
The trial court carefully inquired of the pathologist whether the injuries could be illustrated without showing the photographs with the skull cap pulled back. The pathologist replied they could not, as the bruising was not visible externally. This is borne out by the other photographs of Shaina’s head. The two photos show the extent and location of Shaina’s internal head injuries as the other photographs do not. These injuries are of particular importance because the pathologist testified they were inflicted around the time of death and it was probable that the deepest blow caused Shaina to lose consciousness in the bathtub. The number, severity, and location of the bruises show it was extremely unlikely Shaina could have sustained those injuries by falling down the stairs, or by falling once in the bathtub. The court explained to the jury, following the presentation of the two photographs, that they were necessarily introduced in order to show the nature and extent of Shaina’s injuries.
Although special care must be taken in admitting photographs taken after the pathologist has intervened, lest the evidence be made more grisly than necessary, those photographs which are relevant and material in assisting the jury’s understanding of medical testimony are admissible. See State v. Yarrington, 238 Kan. 141, 144, 708 P.2d 524 (1985). The photographs in question were unquestionably helpful in showing the actual extent of Shaina’s head injuries, which was not evident otherwise. The pictures were structured only to serve their proper purpose and were not introduced for shock purposes. We find no showing of abuse of discretion in the trial court’s admission of the photographs into evidence.
The final issue is a challenge to the sufficiency of the evidence supporting the defendant’s conviction of child abuse as to the surviving child, Shannon. When the sufficiency of the evidence is challenged, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Grubbs, 242 Kan. 224, Syl. ¶ 1, 747 P.2d 140 (1987); State v. Dressel, 241 Kan. 426, Syl. ¶ 1, 738 P.2d 830 (1987); State v. Bird, 240 Kan. 288, 298, 729 P.2d 1136 (1986).
There was evidence showing that defendant had pinched Shannon’s nipples so fiercely she cried and could not be consoled; that he whipped her so severely that she had purple bruises from her lower back to her upper legs which remained visible for over a week; and that he placed her in an unheated room in the wintertime without clothing, food, or drink for over five hours. We have no hesitancy in concluding that defendant’s challenge to the sufficiency of the evidence as to his conviction of the child abuse of Shannon is wholly without merit.
Defendant’s conviction of abuse of a child, Shannon Wood-side, (Count II) is affirmed; defendant’s convictions of felony murder (Count III), and abuse of a child, Shaina Woodside, (Count I) are reversed and the case is remanded for further proceedings. | [
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The opinion of the court was delivered by
Lockett, J.:
Plaintiff, who was injured when an unidentified vehicle forced the vehicle she was driving off the road, made a claim under her automobile insurance policy’s uninsured motorist coverage. Her insurance company denied coverage under the terms of the policy. Plaintiff filed suit against her insurance carrier, claiming that she was covered under the policy or, if not covered, that K.S.A. 40-284(e)(3), which allows insurance companies to exclude coverage for hit and run accidents when there is no physical contact with the uninsured motor vehicle and no competent proof offered from a disinterested witness, is unconstitutional and a violation of the equal protection and due process clauses of the United States and Kansas Constitutions. The district court granted the insurance carrier’s motion for summary judgment and the plaintiff appealed. We affirm, finding that K.S.A. 40-284 does not limit the maximum uninsured motorist coverage allowed, but rather it states the minimum uninsured motorist coverage required to be offered by insurance providers. Therefore, the statutory exclusion in the uninsured motorist law does not violate a fundamental right implicitly or explicitly guaranteed by the United States Constitution or the Kansas Constitution.
In August of 1984, plaintiff Imogene Clements suffered personal injuries when the car she was driving hit a utility pole. Plaintiff stated she was forced to swerve off the road when an unidentified vehicle cut in front of her car. Immediately after the accident, Clements reported it to the police. There was no physical contact with the “phantom” vehicle nor were there any other witnesses to the accident.
Clements was insured by United States Fidelity and Guaranty Company, Inc. (USF&G). Her policy included coverage for bodily injury caused by uninsured motorists. The uninsured motorist provision of the policy contained the following exclusion:
“We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle because of bodily injury:
1. Sustained by a covered person; and
2. Caused by an accident.”
“Uninsured motor vehicle” is a defined phrase in the United States Fidelity & Guaranty policy:
“ ‘Uninsured motor vehicle’ means a land motor vehicle or trailer of any type:
* * *
2. A hit and run vehicle whose operator or owner cannot be identified and which hit or which causes an accident resulting in bodily injury without hitting:
a. you or any family member; . . .
If there is no physical contact with the hit and run vehicle the facts of the accident must be proved. We will only accept competent evidence other than the testimony of a person making claim under this or any similar coverage.”
USF&G denied Clements’ claim under the policy exclusion. After Clements filed suit, the district court granted USF&G’s motion for summary judgment, holding that plaintiff s claim was not covered under the policy, that the exclusion in the policy conformed with K.S.A. 40-284(e)(3), and that this statute was constitutional. Plaintiff appeals.
K.S.A. 40-284, which mandated uninsured motorist coverage, was originally enacted in 1968 “to fill the gap inherent in motor vehicle financial responsibility and compulsory insurance legislation and this coverage is intended to provide recompense to innocent persons who are damaged through the wrongful conduct of motorists who, because they are uninsured and not financially responsible, cannot be made to respond in damages.” Winner v. Ratzlaff, 211 Kan. 59, 64, 505 P.2d 606 (1973). The original statute did not contain any authorization for exclusion or limitation of coverage for cases in which the uninsured vehicle was unidentified: so-called “phantom vehicle” cases.
Nonetheless, some insurance companies wrote uninsured motorist policy provisions that required a physical contact between the insured vehicle and any phantom vehicle before the insured vehicle would be covered under the policy. In Simpson v. Farmers Ins. Co., 225 Kan. 508, 592 P.2d 445 (1979), this court held that such clauses were attempts by insurance companies to condition, dilute, or limit the broad statutory mandate of uninsured motorist coverage. The Simpson court found that such conditions were contrary to the public policy and legislative intent of the Kansas Uninsured Motorist Statute, K.S.A. 40-284, and therefore, void and unenforceable.
In 1981, in response to the decision in Simpson, the Kansas legislature amended K.S.A. 40-284 to allow insurance companies to contract for certain exclusions in uninsured motorist coverage by enacting K.S.A. 40-284(e)(3), which provided;
(e) “Any insurer may provide for the exclusion or limitation of coverage when:
(3) there is no evidence of physical contact with the uninsured motor vehicle.” (L. 1981, ch. 191, § 1.)
In 1984, the statute was further amended to require either physical contact or corroborating evidence from disinterested witnesses, as follows:
“(e) “Any insurer may provide for the exclusion or limitation of coverage:
“(3) when there is no evidence of physical contact with the uninsured motor vehicle and when there is no reliable competent evidence to prove the facts of the accident from a disinterested witness not making claim under the policy.” (L. 1984, ch. 167, § 1.)
The recognized purpose of uninsured motorist statutes allowing insurance companies to write exclusions for accidents where no physical contact occurs is the prevention of fraudulent claims. In recognition of this possibility, many of the states which mandate uninsured motorist coverage have enacted statutes requiring physical contact when the uninsured vehicle is also unidentified, as did Kansas in 1981. Clements admits that the exclusion in the insurance contract which denies her coverage is in accord with the public policy stated by the legislature in K.S.A. 40-284 (e) (3). In spite of the well-established rule that a statute comes before the court cloaked in a presumption of constitutionality and that it is her duty by attacking the statute to sustain the burden of proof, Henry v. Bauder, 213 Kan. 751, 753, 518 P.2d 362 (1974), Clements asks this court to declare the statutory exclusions unconstitutional as (1) a violation of due process and equal protection under the Kansas and United States Constitutions and (2) a violation of Section 18 of the Kansas Bill of Rights.
The difference between the constitutional concepts of due process and equal protection is that due process emphasizes fairness, between the state and the individual dealing with the state, regardless of how other individuals in the same situation are treated, while equal protection emphasizes disparity in treatment by a state between classes of individuals whose situations are arguably indistinguishable. Ross v. Moffitt, 417 U.S. 600, 41 L. Ed. 2d 341, 94 S. Ct. 2437 (1974). The test in determining the constitutionality of a statute under due process or equal protection weighs almost identical factors.
When a statute is attacked as violative of due process, the test is whether the legislative means selected has a real and substantial relation to the objective sought. This rule has been restated in terms of whether the regulation is reasonable in relation to its subject and is adopted in the interest of the community. State ex rel. Schneider v. Liggett, 223 Kan. 610, 614, 576 P.2d 221 (1978). When a statute is attacked as violative of equal protection, the initial inquiry becomes which standard of scrutiny to apply. Traditionally, this court has applied the ratio nal basis test in cases involving the constitutionality of insurance statutes. Burriss v. Northern Assurance Co. of America, 236 Kan. 326, 691 P.2d 10 (1984); Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1291 (1974). If a legislative classification has some rational basis, it does not violate constitutional principles if the classification results in some inequality.
Statutes similar to K.S.A. 40-284(e)(3) have rarely been attacked on constitutional grounds; however, those jurisdictions which have considered the issue have generally decided that the physical contact requirement violates neither due process nor equal protection. See Orpustan v. State Farm Mut. Auto. Ins. Co., 7 Cal. 3d 988, 103 Cal. Rptr. 9l9, 500 P.2d 1119 (1972); Sapp v. State Farm Automobile Ins. Co., 272 S.C. 301, 251 S.E.2d 745 (1979). The California Supreme Court stated in Orpustan:
“[T]he recognized purpose of the physical contact requirement is reduction of the possibility that a motorist who loses control of his vehicle through his own negligence will be able to recover under the uninsured motorist coverage by alleging that an unknown vehicle caused the injuries complained of. Such premise for the requirement furnishes a reasonable ground of classification; the requirement bears a reasonable relationship to the objective it seeks to promote. When that is true, the constitutional demand for equal protection of the laws is satisfied.” 7 Cal. 3d at 994.
In addition to violating due process and equal protection, plaintiff also contends that the statutory exclusion violates Section 18 of the Kansas Rill of Rights, which provides that all persons, for injuries suffered in person, reputation, or property, shall have a remedy by due course of law, and justice administered without delay. Plaintiff implies that this court is thereby required to apply a stricter standard of scrutiny to this claim, since a right guaranteed by Section 18 is a fundamental right. Ernest v. Faler, 237 Kan. 125, 697 P.2d 870 (1985). However, we have held that Section 18 does not create rights of action; it only requires that Kansas courts be open and afford a remedy for such wrongs that are recognized by law. Schmeck v. City of Shawnee, 231 Kan. 588, 594, 647 P.2d 1263 (1982). If Clements has no right of action, there is no standard of scrutiny to be applied to her claim.
The statutory exclusion in the uninsured motorist statute does not deny a right implicitly or explicitly guaranteed by the United States Constitution or Kansas Constitution or Section 18 of the Kansas Bill of Rights. K.S.A. 40-284 does not limit the maximum uninsured motorist coverage allowed, but rather it states the minimum uninsured motorist coverage required to be offered by insurance providers.
The legislature’s concern with fraud when claims are made under uninsured motorist clauses for accidents with phantom vehicles is a rational concern and a proper consideration for setting the minimum uninsured motorist coverage required. Clements voluntarily purchased her insurance contract from USF&G. The legislative act neither prohibits nor denies Clements the right to purchase additional insurance coverage for accidents caused by an unknown vehicle which result in injury and where there is no physical contact with the hit and run vehicle or testimony from a disinterested witness. Therefore, K.S.A. 40-284(e)(3) does not violate the equal protection or due process clauses of either the United States or Kansas Constitutions or Section 18 of the Kansas Bill of Rights.
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Per Curiam:
This is a disciplinary proceeding against Harry D. Smith, of Wichita, Kansas. It involves two complaints, No. W3880, commenced on February 11, 1987, and No. B4065, commenced on April 7, 1987. The complaints were consolidated for hearing before a panel of the Kansas Board for Discipline of Attorneys. The panel, upon hearing the evidence, found that all of the charges contained in the complaints were true, and unanimously recommended that respondent be disbarred.
Smith did not appear before the disciplinary panel, and he makes no appearance in this court, although notices have been provided to him in each instance at the address registered by him with the clerk of this court.
Exhibits received in evidence before the panel included the following:
A journal entry in the case of State of Kansas v. Harry D. Smith, in the District Court of Butler County, Kansas, being case No. 85-CR-329, reciting the conviction of Harry D. Smith of the misdemeanor offense of worthless checks on May 5, 1986, which journal entry recites the dismissal of additional counts and the requirement that the defendant make restitution in the amount of $6,787.
A journal entry in the case of State of Kansas v. Harry D. Smith, in the District Court of Cowley County, Kansas, being case No. 85-CR-17-W, showing that on the 7th day of February 1986, Harry D. Smith was convicted of sodomy, a Class B misdemeanor, and was fined, directed to seek mental counseling within six months, and ordered to pay court costs.
A journal entry of judgment In the Matter of the Conservatorship of Donald Herbert Truex, in the District Court of Sedgwick County, Kansas, being case No. 83-P-611, in which that court found that Harry D. Smith, formerly a conservator in that proceeding, had failed to file any accountings while con servator, and contemptuously failed to comply with a court order requiring him to file a final accounting, and that he had converted to his own use the sum of $5,250 from the assets of the conservatee’s estate. Judgment was entered against Harry D. Smith in the sum of $10,500.
A journal entry In the Matter of the Estate of Bertha Marie Orndoff Deceased, being case No. 83-P-1222, in the District Court of Sedgwick County, dated January 22, 1987, in which the court found that $8,800 of estate funds had been received by Harry D. Smith, as attorney for the executor, which funds were retained by him, and were neither deposited in the estate account nor deposited in any trust account maintained by Smith. Smith was relieved of his duties as attorney for the executor, and both he and the executor were found to be in contempt of court. The executor paid the $8,800 into the estate from his own personal funds, and thus purged himself of the contempt.
Based upon these documents, and other evidence, the panel found that the conduct of Harry D. Smith was in violation of DR 1-102(A)(4) (1987 Kan. Ct. R. Annot. 123) in that he engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation; DR 6-101(A)(3) (1987 Kan. Ct. R. Annot. 143) in that he neglected legal matters entrusted to him; DR 9-102(A) (1987 Kan. Ct. R. Annot. 157) in that he did not deposit all funds of clients in one or more identifiable bank or savings and loan association accounts maintained in this state and properly insured; and DR 9-102(B)(4) (1987 Kan. Ct. R. Annot. 157) in that he did not promptly pay or deliver to the client, as requested, the funds in his possession which the client was entitled to receive. Additionally, the panel found that Harry D. Smith failed to cooperate or communicate with the disciplinary administrator in violation of Supreme Court Rule 207 (1987 Kan. Ct. R. Annot. 105).
The standard of proof to warrant a finding of attorney misconduct requires that the charge be established by substantial, clear, convincing, and satisfactory evidence. In re Lake, 241 Kan. 351, 353, 737 P.2d 40 (1987); State v. Hohman, 235 Kan. 883, 686 P.2d 122 (1984); see Supreme Court Rule 211(f) (1987 Kan. Ct. R. Annot. 110-11). The panel found that the misconduct was so established, and we agree. The evidence is undisputed that respondent converted over $5,000 of conservatorship funds to his own use in the Truex matter, and $8,800 from the assets of the estate of Orndoff. In January 1987, Smith was directed by this court to show cause why he should not be suspended forthwith from the practice of law. He failed to respond to our order, and on March 12, 1987, we entered an order temporarily suspending him from the practice of law until the final resolution of the pending disciplinary proceedings against him, or until further order of the court. We also ordered Smith to comply with Rule 218 (1987 Kan. Ct. R. Annot. 116) at that time.
The evidence fully establishes the misdemeanor convictions recited earlier, and also establishes that respondent failed to appear before the disciplinary panel, failed to cooperate with the disciplinary administrator or respond to requests of the administrator or the investigating attorneys, and failed to appear in this court. After carefully reviewing the record, we agree with the findings of the panel as to respondent’s misconduct. Respondent has twice converted substantial amounts of clients’ funds to his own use, has furnished no explanation, and has made no restitution. This conduct, together with the other serious conduct discussed above, fully justifies the discipline recommended.
It is therefore ordered that Harry D. Smith be, and he is hereby disbarred from the practice of law in the State of Kansas. The Clerk of the Supreme Court is directed to strike the name of Harry D. Smith from the roll of attorneys admitted to the practice of law in this state. Costs are assessed to the respondent. | [
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The opinion of the court was delivered by
Six, J.:
This is a criminal case involving the question of a trial court’s discretion in imposing sentence. Defendant-appellant Nordell Glover appeals the sentence imposed following his guilty pleas to one count of rape (K.S.A. 1987 Supp. 21-3502) and to one count of aggravated kidnapping (K.S.A. 21-3421). We find no error and affirm.
The question for our review is: Did the trial court abuse its discretion in sentencing Glover to consecutive terms because of the trial judge’s initial misunderstanding of the administrative regulations concerning the computation of good time credits and eligibility for parole?
Although the facts of Glover’s crimes do not directly impact the question for review, they are highly summarized as background information.
Glover forced two women into the back of his camper-shelled pickup truck, drove to a remote area, and raped them both. He used a shotgun to facilitate the crimes. He repeatedly threatened to kill the women. Eventually the two women were released.
Glover was charged with seven felony counts. He pled guilty to the counts of aggravated kidnapping and rape. At sentencing on March 4, 1987, the trial judge noted that Glover would be eligible for parole in fifteen years regardless of whether he received consecutive or .concurrent sentences. The trial judge sentenced Glover to consecutive terms of life for aggravated kidnapping and fifteen years to life for rape.
The trial judge reviewed his conclusion regarding parole eligibility later that day, determined it was incorrect, contacted counsel, and scheduled a hearing for the next afternoon. Defense counsel filed a notice of appeal at 10:30 a.m. on March 5. At the March 5 hearing, the trial judge pointed out that the law he had relied on the day before had been amended. He specifically stated, however, that this misunderstanding of the law did not affect his decision to impose consecutive sentences.
Apparently, the trial judge relied on K.S.A. 22-3717 in erroneously determining that Glover would be eligible for parole in fifteen years regardless of whether his sentences were concurrent or consecutive. The trial judge apparently also relied on K.S.A. 22-3717a to arrive at his conclusion regarding parole eligibility, although that statute had been repealed in 1982.
Under K.S.A. 22-3717a(f)(3), a defendant would be subject to a maximum term of fifteen years prior to parole eligibility. However, the trial judge, upon review, realized that K.S.A. 22-3717, beginning with its 1984 amendment, no longer referred to K.S.A. 22-3717a. The maximum time period of fifteen years was no longer applicable.
K.S.A. 1986 Supp. 22-3717 was in effect at the time of sentencing.
Under K.S.A. 1986 Supp. 22-3717, Glover would not be eligible for parole until he served fifteen years for the aggravated kidnapping conviction plus the minimum sentence (less good time credits) for the rape conviction. Glover received a sentence of fifteen years to life for rape. Less good time credits, he must serve ten years, seven months, and fifteen days of this sentence prior to parole. K.A.R. 44-6-117. The rape sentence time, added to the fifteen-year requirement for the aggravated kidnapping, equals twenty-five years, seven months, and fifteen days. The trial judge’s misunderstanding understated Glover’s sentence by more than ten years.
At the March 5 hearing, the trial judge, in a comprehensive manner, explained the rationale of his sentencing decision.
Glover filed a motion to modify sentence in the trial court and a “Motion for Temporary Remand Order and Suspension of Time to File Brief’ with this court. We granted the motion. As a result of the remand, jurisdiction was vested in the trial court to hear the motion Glover had filed to review and modify his sentence.
At the hearing for 120-day review of sentence, the trial judge, in denying the motion to modify, adopted his previous clarification of Glover’s sentence by reference and restated his commitment to consecutive sentences.
Glover contends that the court’s misunderstanding of parole eligibility resulted in an erroneous sentence constituting abuse of discretion. “An abuse of discretion exists only when no reasonable man would take the view adopted by the trial court.” State v. Carmichael, 240 Kan. 149, 157, 727 P.2d 918 (1986) (citing Wilson v. American Fidelity Ins. Co., 229 Kan. 416, 422, 625 P.2d 1117 [1981]). “The familiar rule in Kansas is that a sentence imposed which is within the statutory limits will not be disturbed on appeal, provided it is within the realm of discretion on the part of the trial court and not a result of partiality or prejudice.” State v. Hamilton, 240 Kan. 539, 540, 731 P.2d 863 (1987) (citing State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 [1986]).
Glover concedes that the sentences were within the limits set by law. Glover, although conceding a careful review by the trial judge of the sentencing criteria set out in K.S.A. 21-4606, (as suggested in State v. Buckner, 223 Kan. 138, 151, 574 P.2d 918 [1977]), asserts error at the 120-day review of sentence hearing because the trial judge mentioned several charges that were dismissed as a result of the plea bargain. This issue was addressed in State v. McQueen, 12 Kan. App. 2d 147, 149, 736 P.2d 947 (1987). McQueen held that under K.S.A. 21-4606 it is not improper to consider criminal activity not resulting in conviction. We agree and find no abuse of discretion.
The case of State v. Slansky, 239 Kan. 450, 453, 720 P.2d 1054 (1986), controls Glover’s case. A trial judge’s misunderstanding at sentencing of a criminal defendant’s parole eligibility does not indicate the sentence imposed was an abuse of discretion if the sentence is within the Slansky guidelines. In Slansky this court noted that a sentence based on incorrect information is not an abuse of discretion so long as the sentence is: (1) within the limits prescribed by law; (2) within the realm of discretion; and (3) is not the result of partiality, prejudice, oppression, or corrupt motive.
The trial judge carefully reviewed all the statutory sentencing factors, selected a sentence within the statutory limits, and explicitly stated that the erroneous statements regarding parole eligibility did not affect the decision on sentencing. The record is replete with references to Glover’s danger to society and the improbability of his rehabilitation. There is no abuse of discretion.
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The opinion of the court was delivered by
McFarland,
J.: This is an action seeking recovery for injuries sustained by plaintiff Susan Stang in an automobile accident. Following a jury trial, the district court sustained a motion for a directed verdict limiting plaintiff s recovery to 90 percent of her pecuniary losses on the basis of the jury’s determination of comparative fault and its answer to a special question. The district court held that plaintiff had failed to meet the threshold requirements of K.S.A. 40-3117. Plaintiff appeals from this determination.
Plaintiff was a passenger in an automobile driven by Cynthia Banks on March 23,1984, when it collided with a vehicle driven by defendant Paul Caragianis at a Wichita intersection. The balance of the relevant facts are involved in particular issues and will be set forth as necessary for the discussion thereof.
K.S.A. 40-3117 provides:
“In any action for tort brought against the owner, operator or occupant of a motor vehicle or against any person legally responsible for the acts or omissions of such owner, operator or occupant, a plaintiff may recover damages in tort for pain, suffering, mental anguish, inconvenience and other non-pecuniary loss because of injury only in the event the injury requires medical treatment of a kind described in this act as medical benefits, having a reasonable value of five hundred dollars ($500) or more, or the injury consists in whole or in part of permanent disfigurement, a fracture to a weight-bearing bone, a compound, comminuted, displaced or compressed fracture, loss of a body member, permanent injury within reasonable medical probability, permanent loss of a bodily function or death. Any person who is entitled to receive free medical and surgical benefits shall be deemed in compliance with the requirements of this section upon a showing that the medical treatment received has an equivalent value of at least five hundred dollars ($500). Any person receiving ordinary and necessary services, normally performed by a nurse, from a relative or a member of his household shall be entitled to include the reasonable value of such services in meeting the requirements of this section. For the purpose of this section, the charges actually made for medical treatment expenses shall not be conclusive as to their reasonable value. Evidence that the reasonable value thereof was an amount different than the amount actually charged shall be admissible in all actions to which this subsection applies.” (Emphasis supplied.)
In 1987, the monetary threshold required was raised to $2,000, but said amendment is inapplicable herein.
For her first issue, plaintiff contends that the threshold requirements of K.S.A. 40-3117 are affirmative defenses pursuant to K.S.A. 60-208(c) which were waived by defendant for failure to raise them before trial. K.S.A. 60-208(c) provides:
“Affirmative defenses. In pleading to a preceding pleading a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.”
At issue herein are the threshold requirements of $500 in medical treatment costs or permanent disfigurement.
Plaintiff argues the threshold requirements should fall within the 60-208(c) language “any other matter constituting an avoidance or affirmative defense” but cites no cases in support of this contention.
The threshold requirements are conditions precedent that must be met by plaintiff before nonpecuniary damages may be recovered. Cansler v. Harrington, 231 Kan. 66, 67-68, 643 P.2d 110 (1982). Plaintiff has the burden of proving she is entitled to recover nonpecuniary damages. Key v. Clegg, 4 Kan. App. 2d 267, 274-75, 604 P.2d 1212 (1980). The monetary threshold requirement must be met by the date of trial or the date the cause of action is barred by the statute of limitations, whichever occurs first. Cansler v. Harrington, 231 Kan. at 67-68; Key v. Clegg, 4 Kan. App. 2d 267, Syl. ¶ 5.
One difficulty with the argument that the threshold requirements of K.S.A. 40-3117 are affirmative defenses is that the pleading of an affirmative defense puts the burden on the defendant to prove the existence and validity of the defense, see Tabor v. Lederer, 205 Kan. 746, 748, 472 P.2d 209 (1970), a matter for which defendant would, at the time of his answer, have little, if any, factual basis. The defendant would not have access to the necessary medical records and reports until discovery and would not know whether plaintiff would seek additional medical treatment before trial.
In Fitzgerald v. Wright, 155 N.J. Super. 494, 382 A.2d 1162 (1978), the court discussed the relative burdens of plaintiff and defendant in meeting threshold requirements, as follows:
“Obviously, it is plaintiff-claimant who is privy to the knowledge and information required to determine whether the threshold has been met. Defendant is in no position to undertake affirmative proof of plaintiff s nonqualification except as he may ferret out the requisite data through discovery. Whether or not compliance with the threshold is technically considered as an essential element of a cause of action in tort since the adoption of the no fault law, nevertheless it is a precondition to recovery. Fairness and efficiency dictate that plaintiff should have the burden of proving compliance with that threshold in order to establish a prima facie case. Since he has the requisite information he should be obligated to come forward with the same as part of his case. [Citations omitted.]
“To shift this burden to defendant in the guise of categorizing the exemption as an affirmative defense does not accord with the realities inherent in the litigation process. And as a corollary, since plaintiff cannot recover in the absence of evidence of compliance with the threshold requirement, he should have the burden of proof on this issue — a burden which is not onerous or unreasonable.” 155 N.J. Super, at 499-500.
In Parker v. Nakaoka, 68 Hawaii_, 722 P.2d 1028 (1986), a pedestrian brought a tort suit against the driver of a car which had struck the pedestrian. The jury verdict found defendant at fault. Defendant appealed. On appeal, plaintiff argued the statutory threshold requirement to maintain the cause of action was an affirmative defense which should have been pleaded and proven by the defendant. The Hawaii Supreme Court disagreed, stating:
“Although the no-fault law is silent on this point, the scheme and objectives of the law suggest that meeting the threshold requirement is an essential condition and element of Appellee’s cause of action. Murray v. Walter, 269 N.W.2d 47 (Minn. 1978); Fitzgerald v. Wright, 155 N.J. Super. 494, 382 A.2d 1162 (1978). Appellee is the one who has personal knowledge and information as to whether the threshold condition is met. Therefore, it stands to reason that in order to achieve fairness and efficiency in implementing the objectives of the law, Appellee should have the burden of proving that ‘the claim is one that has escaped the general abolition of tort liability decreed by HRS § 294-6.’ McAulton v. Goldstrin, 66 Haw. 14, 18, 656 P.2d 96, 98 (1982) (Nakamura, J., dissenting). See also Fitzgerald v. Wright, 155 N.J. Super, at 499, 382 A.2d at 1165.
“Appellee argues that the trial judge made a finding that the threshold requirement had been met by Appellee by pointing to the trial judge’s statement: ‘Well, I’m going to find that allegations of permanent damages make this case one appropriate for a jury to decide.’
“We disagree. Allegations alone are not sufficient to meet the threshold requirements. Appellee must carry the burden of proving that her injury meets or exceeds the threshold requirement in question.” 68 Hawaii at__
One of plaintiff s arguments on this issue is that a defendant should be required to alert a plaintiff if medical expenses have not reached the threshold so, presumably, the plaintiff could run up additional medical costs before trial. To state this argument points up the fallacy therein, and it will not be discussed further.
We conclude the district court did not err in holding the threshold requirements: of K.S.A. 40-3117 are not affirmative defenses under K.S.A. 60-208(c). Moreover, in this case, in his answer and at the time of pretrial, defendant claimed plaintiff s “damages and injuries are not of the nature or to the extent alleged.”
For her second issue, plaintiff asks us to reconsider our decision in Smith v. Marshall, 225 Kan. 70, 587 P.2d 320 (1978).
The district court granted defendant’s motion for partial directed verdict based on our holding in Smith v. Marshall. Since plaintiff now challenges the holding in that case, a review of Smith v. Marshall is appropriate. In Smith, the plaintiff s right leg was injured when it was caught between defendant’s vehicle and a parked car. The resultant injury was a discoloration of an area approximately one and one-quarter of an inch by one-half inch in dimension. Plaintiff had not received medical treatment sufficient to meet the statutory monetary threshold of K.S.A. 40-3117. He claimed, however, the discolored area constituted a permanent disfigurement, thus satisfying one of the non-monetary threshold criteria. 225 Kan. at 71-72. Defendant’s motion for summary judgment was sustained. The trial court ruled, as a matter of law, that plaintiff s discoloration/scar was not a permanent disfigurement within the meaning of K.S.A. 40-3117. The Court of Appeals, in a split decision, vacated the summary judgment holding that whether it was a permanent disfigurement was a matter of fact to be decided by the trier of fact. Smith v. Marshall, 2 Kan. App. 2d 213, 214, 577 P.2d 362 (1978). The appellate court reasoned that once the existence of a scar was established, whether or not it was a permanent disfigurement was a matter of fact for the trier of fact to decide. 2 Kan. App. 2d at 216. Chief Judge Foth dissented, reasoning that, as a matter of law, the injury was neither a “serious” nor “significant” disfigurement, conditions he believed reflected the legislature’s intent. We granted review and in Smith v. Marshall, 225 Kan. 70, adopted Chief Judge Foth’s dissenting opinion as follows:
“ ‘Where my colleagues and I part company in this case is in our interpretation of K.S.A. (now 1977 Supp.) 40-3117, the threshold provision of our so-called “no-fault” insurance law. The majority finds no requirement in our statute that a permanent disfigurement be “significant” or “serious”; I believe those terms are implied by the statute read as a whole. The majority thinks that to read such qualifying adjectives into the statute would be to rewrite the statute; I believe such a reading is required by the manifest legislative intent.
“ ‘The nature of the claimed disfigurement is not seriously in dispute. Plain tiff s treating chiropractor, when asked to point out the injury to the court below, responded:
“A. That is a scar right here. If you hold it just right you can pull it and see a scar.”
“ ‘The trial judge made a personal inspection of plaintiff s leg and described his observations for the record:
“. . . The record should show that the Court did observe the right leg of Mr. Smith. The parties should also note the Court’s observations, the Court did run his finger on the leg in the area that Dr. Counselman described. And the Court’s observation, from just a visual and from a touch indication, was that there was no scarring as we would understand broken skin with a lesion over the scarring. In other words, it was a smooth feeling. That the area that the Court did observe was ascertainable, discernible, it being more of a, at least to the visual view of the Court, it was more of a discoloration of Mr. Smith’s leg. The record should show that Mr. Smith is black. The area in question was darker. It was more of a dark brown area. It was about an inch and a quarter in length and in the middle point running North and South on the leg toward the center, as Dr. Counselman indicated, and toward the center of the area. It extended to, perhaps, about a half an inch. But I would say it would be East and West across the leg and about an inch and a quarter long. Now that is what the visual observation indicates. . . .”
“ ‘In granting summary judgment for defendant the court wrote:
“It is true that the extent of injury or whether scarring is permanent or not is usually a jury question. But here, it is a matter of law that plaintiff must qualify as to one or more of the threshold criterion to be able to maintain this action under the no-fault doctrine.
“The Court finds that the area of injury to plaintiff is neither unsightly, misshapen or in any manner a deformity nor does it in any way impair the beauty, symmetry or appearance of plaintiff s leg. It is merely an innocuous discoloration of the right leg extending approximately one and one-fourth inches long and approximately one-half inch in width at its widest point. The Court finds as a matter of law plaintiff does not suffer from permanent disfigurement.”
“ ‘To me the trial court’s findings are persuasive. While courts should not rewrite a statute where its language and meaning are clear, I find other principles of statutory construction applicable here. First, remedial legislation should be “liberally construed to effectuate the purpose for which it was enacted.” State, ex rel., v. Anderson, 195 Kan. 649, Syl. ¶ 3, 408 P.2d 864 (1965). See also, Young v. Barker, 185 Kan. 246, 342 P.2d 150 (1959); Wheeler v. Wheeler, 196 Kan. 697, 414 P.2d 1 (1966). Second, where a literal construction would defeat the legislative purpose, a statute should be construed according to its reason and spirit. State v. Dumler, 221 Kan. 386, Syl. ¶ 2, 559 P.2d 798 (1977); Kansas Commission on Civil Rights v. Howard, 218 Kan. 248, Syl. ¶ 2, 544 P.2d 791 (1975). Such a construction may include the supplying of omitted terms when necessary. Parker v. Continental Casualty Co., 191 Kan. 674, Syl. ¶ 4, 383 P.2d 937 (1963); Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 702, 366 P.2d 219 (1961).
“ ‘Applying those principles to K.S.A. 40-3117, we find thatthe legislature has prohibited tort actions for pain, suffering and other nonpecuniary damages arising out of an automobile accident unless the plaintiff s injury meets one of eight criteria: it must (1) require at least $500 in medical expenses; (2) result in permanent disfigurement; (3) be a fracture of a weight-bearing bone; (4) be a fracture which is compound, comminuted, displaced or compressed; (5) involve loss of a body member; (6) be permanent; (7) result in permanent loss of a bodily function; or (8) result in death.
“ ‘While some of these characteristics (death, in particular) obviously have more grave connotations than others, to my mind they all require an injury of some severity. To say that no matter how trivial the “disfigurement” it deserves to be ranked with the other seven threshold criteria seems to me to run contrary to the implicit but clear intent of the drafters of this legislation. Under the maximum noscitur a sociis (it is known from its associates), the term “permanent disfigurement” should be read as having the same general qualities and characteristics as its fellow terms. (Cf., Farm. Bureau Mutual Ins. Co. v. Carr, 215 Kan. 591, 596, 528 P.2d 134 [1974].) In each of the other terms those qualities include an injury of substance; a disfigurement, to rank with them, should also be of substance.
“ ‘In determining the legislature’s purpose in enacting this statute we are not without guidance. In Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1291 (1974), our Supreme Court spoke to the issue directly and forcefully:
“. . . One of the obvious purposes of the Legislature in limiting recovery under the threshold provision was clearly to eliminate minor claims for pain and suffering. The Legislature could reasonably have thought that the number of such cases (see DOT study) was largely connected with exaggerated claims for pain and suffering in instances of relatively minor injury. Our prior decisions are to the effect that subjective complaints of pain and suffering defy accurate monetary appraisal. (Domann v. Pence, 183 Kan. 135, 325 P.2d 321; Henderson v. Kansas Power & Light Co., 188 Kan. 283, 362 P.2d 60.) In addition, minor ‘nuisance’ claims were often overpaid, and as stated in Pinnick v. Cleary, [360 Mass. 1, 271 N.E.2d 592, 610], ‘ . . . It was clearly proper for the Legislature to conclude that the benefits of compensating an injured person for relatively minor pain and suffering, which as such entails no monetary loss did not warrant continuation of the practice when balanced against the evils it had spawned.’ ” (pp. 610-11. Emphasis added.)
“ ‘In this case we have the residual effect of a bruised shin, consisting of an “innocuous discoloration” an inch-and-one-quarter long by one-half inch at its widest. Assuming it to be permanent, I cannot believe it is the type of “disfigurement” intended by the legislature to support this plaintiffs claim for $100,000.00 in damages. It seems to me this is a prime example of those “exaggerated claims for pain and suffering in instances of relatively minor injury” the Court recognized in Manzanares, and just the type of “minor nuisance” claim the legislature intended to eliminate.’ ” 225 Kan. at 74-76.
Plaintiff herein argues that this court in Smith improperly construed the permanent disfigurement language of K.S.A. 40-3117 to require the same to be “serious or significant.”
The majority of the courts which have been called upon to determine whether a particular disfiguring injury is sufficient to achieve the threshold of tort liability have held that the disfigurement must be significant as well as permanent. See Annot., 33 A.L.R.4th 767, §§ 2, 5, and cases cited therein. Our decision in Smith was equally clear in echoing the legislative intent behind the threshold requirements of K.S.A. 40-3117, that is, “ ‘to eliminate minor claims for pain and suffering.’ ” Smith v. Marshall, 225 Kan. at 76 (quoting Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1291 [1974]). In Manzanares, we stated the Kansas Automobile Injury Reparations Act “is a legislative response to a growing public demand for a change in the manner society deals with the enormous legal, social and economic problems resulting from motor vehicle accidents.” 214 Kan. at 601.
Further, the Kansas Legislature has not changed the statute in the wake of the Smith decision, a fact which is implicative of approval of the statutory construction contained therein. Smith was decided in 1978. In 1987, the legislature amended K.S.A. 40-3117 to provide that a plaintiff must incur $2,000 or more in medical treatment to recover nonpecuniary damages, thus quadrupling the monetary threshold requirement. See L. 1987, ch. 173, § 7. This amendment reinforces Judge Foth’s reasoning that the legislature intended all the threshold requirements of K.S.A. 40-3117 to “ ‘require an injury of some severity.’ ” Smith v. Marshall, 225 Kan. at 76.
After carefully considering this issue, we conclude that the rationale of the Smith decision is sound and we adhere thereto.
For her third issue, plaintiff contends the district court improperly applied Smith v. Marshall.
In the case before us, plaintiff received a soft tissue injury to her cheek. No stitches were required. At the hospital emergency room, she was advised to apply an ice pack to her cheek upon her return home. Later, a dermatologist observed a small nodule on her cheek from which plaintiff advised a small piece of glass had been removed. An antibiotic was prescribed. The nodule healed well. Later, plaintiff saw a plastic surgeon who advised against surgery. The surgeon diagnosed her cheek injury as “a subcutaneous scar” caused by a subcutaneous split of fatty tissue underneath the skin at the time of the accident, and subsequent healing. The subcutaneous scar was firm to the touch. It was located along the right naso-labial fold, along the crease between the nose and cheek, on the right side. The scar was approximately five centimeters in length and one centimeter in width.
At trial, plaintiff presented evidence of a recurrent rash on her cheek. Plaintiff s plastic surgeon testified the rash was unrelated to the cheek injury except to the extent that plaintiff s rubbing of the area may have irritated the skin. The surgeon further testified as follows:
“Q. [By attorney for defendant.] Okay. The last time you examined her was three months ago, on December the 12th of 1986. Had her subcutaneous injury from the accident gotten better between April 19th, 1985, and December the 12th of 1986?
“A. Yes.
“Q. And when you last examined her three months ago, there still was no visible defect from a conversational distance, from about three feet, was there, doctor?
“A. No.
“Q. Okay, and there still, as of December 12th, 1986, there is no visible scar or injury on the surface of her skin, resulting from this accident?
“A. That is correct.”
And:
“Q. [By attorney for defendant.] You saw the patient on December 12, 1986. Right?
“A. That is correct.
“Q. At the time — that was the last time you saw [her]. Correct?
“A. Until today.
“Q. Until today, and at that time on December 12, 1986, would you fairly characterize her subcutaneous scar as a permanent disfigurement?
“A. No, I would not.”
The record amply supports the finding that the claimed disfigurement was neither serious nor significant within the meaning of K.S.A. 40-3117. Additionally, of course, the finder of fact had the opportunity to observe the plaintiff. The claimed error in having the jury determine this issue is discussed in the next issue.
For her fourth issue, the plaintiff claims it was error for the district court to submit a special question to the jury relative to the claimed disfigurement.
The following special question was submitted to the jury:
“Do you find the permanent disfigurement that Susan Stang complains of to be significant or serious?”
The jury answered in the negative.
In Smith v. Marshall, 225 Kan. 70, we approved the district court’s determination, as a matter of law, that a particular permanent disfigurement did not meet the threshold requirement of K.S.A. 40-3117. That does not mean that all such determinations must be determined as a matter of law. The trial court obviously had reservations about whether or not the threshold requirement had been met and gave the benefit of the doubt to the plaintiff in submitting the question to the jury. We find no error in this regard.
For her fifth issue, plaintiff contends she met the $500 medical expense threshold of K.S.A. 40-3117 as a matter of law.
Plaintiff had $419.94 in medical expenses. The court allowed other non-medical pecuniary damages in the amount of $113.40 for a total pecuniary loss of $533.34. The jury found defendant to be 90 percent at fault — so the trial court awarded $480.01 (based on 90 percent of $533.34).
K.S.A. 40-3117 provides, in pertinent part, as follows:
“Any person receiving ordinary and necessary services, normally performed by a nurse, from a relative or a member of his household shall be entitled to include the reasonable value of such services in meeting the requirements of this section.” (Emphasis supplied.)
Plaintiff argues she met the $500 threshold based on services performed by her husband. She relies upon Key v. Clegg, 4 Kan. App. 2d 267, 604 P.2d 1212, rev. denied 227 Kan. 927 (1980). In Key v. Clegg, Brian Key received a head injury in an auto accident and sued to recover nonpecuniary damages. Key, however, failed to meet the $500 statutory threshold requirement. He proved $491.08 in medical expenses, falling $8.92 short of the threshold. 4 Kan. App. 2d at 268-71. The Court of Appeals found Key’s mother, who spent a day and a night, on the doctor’s orders, administering to her son by waking him every hour and giving him medicine, and who followed up with massage treatment for a year, had performed ordinary and necessary services normally performed by a nurse. 4 Kan. App. 2d at 273-74. The major issue, however, was the value of the mother’s services, since no evidence as to value had been received by the court. The Court of Appeals concluded the evidence of the mother’s services, which were substantial, were “such that a judge or jury, or anyone else considering them, would necessarily conclude from common knowledge that they had a value far in excess of $8.92 necessary to meet the monetary threshold requirements.” 4 Kan. App. 2d at 274-75. Key v. Clegg, then, turned, not on the issue of ordinary and necessary services normally performed by a nurse, but on the value of those services.
In the case before us, plaintiff left the emergency room holding an ice pack to her cheek. Temporary use of the ice pack was the only medical instruction plaintiff received. Plaintiff presented no evidence that her husband performed any services for her of a type ordinarily performed by a nurse. Yet she claims, on the basis of Key, that, as a matter of law, the court should have found the husband performed medical services for her which supplied her the $80.06 shortfall on the $500 medical threshold. Plaintiffs counsel admitted to the trial court that no evidence relative to services performed by the husband had been presented. We find no error in the trial court’s refusal to add any sums to plaintiffs medical expenses for medical services performed by her husband.
For her sixth issue, plaintiff contends that the trial court’s judgment deprived her of compensation for certain pecuniary damages.
Instruction No. 15 to the jury stated:
“You shall determine the amount of the damages sustained by the plaintiff. You should allow her such amount of money as will reasonably compensate her for her injuries and losses resulting from the occurrence in question, including any of the following shown by the evidence:
a. Pain, suffering, disabilities, loss of earning capacity, and any accompanying mental anguish suffered by plaintiff to date, and those she is reasonably certain to experience in the future;
b. The reasonable expenses of necessary medical care, hospitalization, ambulance expenses, prescriptions and treatment received, and medical expenses reasonably certain in the future.
“In arriving at the amount of your verdict you should consider plaintiff s age, condition of health before and after, and the nature, extent and duration of the injuries. For items such as pain, suffering and mental anguish, there is no unit value and no mathematical formula the Court can give. You should award her such sum as will fairly and adequately compensate her. The amount to be awarded rests within your sound discretion.
“The total amount of your verdict may not exceed $75,000.00, the amount of plaintiffs claim.” (Emphasis supplied.)
The jury found plaintiff s damages to be $17,500. Loss of earning capacity is an element of pecuniary damage. Plaintiff argues that under the evidence a part of the $17,500 had to be for loss of this aspect of pecuniary damage, and the district court deprived her of this element of damageby its entry of judgment.
Plaintiff s claim for loss of earning capacity relates wholly to damage to her future modeling career. Defendant argues on his cross-appeal, as he did at trial, that this claim should never have been submitted to the jury as the whole matter of plaintiffs future as a model was too speculative. Clearly, plaintiff s testimony was that she aspired to be a professional model. There was no expert testimony that: (1) such an aspiration was ever realistic for the plaintiff; (2) plaintiff s claimed disfigurement impaired her realization of that dream; or (3) what financial impact the claimed disfigurement might have on any income from modeling. At the time of the accident, plaintiff was employed as a retail sales clerk. She is a married, attractive, 25-year-old mother of two children. Plaintiff apparently believes the accident has impaired her dream of being a model and has not actively pursued a career in modeling after the accident.
Damages are not recoverable where they are too conjectural or speculative to form a basis for measurement. Morris v. Francisco, 238 Kan. 71, 77, 708 P.2d 498 (1985); Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, 277, 662 P.2d 1214 (1983); Buck v. Miller Amusement Co., 166 Kan. 205, 209, 200 P.2d 286 (1948); Johnson v. Baker, 11 Kan. App. 2d 274, 276, 719 P.2d 752 (1986). In Morris v. Francisco, 238 Kan. 71, we discussed this rule as follows:
“Awards for objective elements of damage, such as loss of past and future income, ... are grounded in mathematical calculation. As noted in 18 A.L.R.3d 88, Evidence — Impaired Earning Capacity § 2[a], p. 97:
'[Djamages for impairment of earning capacity cannot be recovered in a personal injury action where there is no evidence of such impairment or no evidence from which damages therefor can be calculated. Although the evidence need not show conclusively or with absolute certainty that earning capacity has been impaired, mere conjecture or speculation does not warrant an award of damages therefor in personal injury actions. All damages, however, are subject to some uncertainties and contingencies, especially those that seek to compensate for future injuries. Accordingly, most courts hold that in order to warrant a recovery for impairment of earning capacity in personal injury actions, the impairment of earning capacity must be shown with reasonable certainty or reasonable probability, and there must be evidence which will permit the jury to arrive at a pecuniary value of the loss.’
“Thus, we see the extent of the diminution or impairment of earning capacity is a relevant consideration and is arrived at by comparing what the injured party was capable of earning at or before the time of the injury with what the party is capable of earning after the injury. This is recovery for injury to the capacity to earn and is relevant in calculating a party’s loss of earnings.” 238 Kan. at 78-79.
We conclude that it was error to submit any claim to the jury based upon any loss of earning capacity as a model. This claim was speculative. No evidence was introduced upon which an award for damages could be based. Under the circumstances herein, however, its submission is not reversible error as the jury’s finding as to damages suffered was not viable due to plaintiffs failure to meet the threshold requirements of K.S.A. 40-3117 and the trial court’s entry of a directed verdict.
For her final issue, plaintiff contends she is entitled to recover the costs of this appeal.
She relies upon Rule 7.07(b) (1987 Kan. Ct. R. Annot. 35), which provides:
“If the court finds that an appeal has been taken frivolously, or only for purposes of harassment or delay, it may assess against an appellant or his counsel, or both, the cost of reproduction of the appellee’s brief and a reasonable attorney’s fee for the appellee’s counsel. The mandate shall then include a statement of any such assessment, and execution may issue thereon as for any other judgment, or in an original case the clerk of the appellate courts may cause an execution to issue.” (Emphasis supplied.)
Plaintiff is the appellant and the rule is wholly inapplicable to her. This issue is without merit.
Having carefully considered all issues raised including those not specifically referred to in this opinion, we find no reversible error herein.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Holmes, J.:
This case is before the Kansas Supreme Court on a certified question from the United States Court of Appeals for the Tenth Circuit pursuant to the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq. The question as presented by the certifying court is:
“When a term mineral interest in several tracts has been conveyed by a single instrument and one of those tracts has been unitized under the Kansas Compulsory Unitization Act, Kan. Stat. Ann. 55-1301 et seq., is the entire mineral interest extended by the unitized production or only the interest in the tract included within the unit?”
As pointed out by the Court of Appeals, the facts are stated in the United States District Court opinion. Edmonston v. Home Stake Oil & Gas Corp., 629 F. Supp. 620 (D. Kan. 1986). For convenience, a plat or map of the area involved is attached as an appendix to this opinion. The Hon. Patrick F. Kelly, speaking for the United States District Court for the District of Kansas, stated the facts which are pertinent to the question before this court as follows:
“This is a quiet title action concerning three-quarters of a section of land, the North Half (N/2) and Southeast Quarter (SE/4) of Section 31, [Township 29 South, Range 18 West] in Kiowa County, Kansas. Defendants own a defeasible term mineral interest, an undivided % interest in and to all oil, gas and other minerals in the entire three-quarters tract. Plaintiff Edmonston purchased title to the tract in 1979, succeeding to the original grantors’ reversionary rights against the defendants. The dispositive issue is whether defendants’ defeasible term mineral interests in the entire tract were extended by a Kansas Corporation Commission compulsory unitization order, which included only a portion of the tract, followed by off-tract production on the unitized acreage. . . .
“. . . Defendants’ interest originated in a written instrument designated ‘Sale of Oil and Gas Royalty’, dated June 12, 1956, which provided the interest was to continue ‘for a period of the next ten years from June 11, 1956 and as long thereafter as oil and/or gas is produced from these premises or the property is being developed or operated.’ Notwithstanding its designation as a ‘Royalty’, that instrument was a mineral deed granting a base or determinable fee in the oil, gas and other minerals in place. Baker v. Hugoton Production Co., 182 Kan. 210, 212, 320 P.2d 772 (1958). The parties agree defendants’ interest arising from that instrument is a defeasible term mineral interest.
“In 1962, within the 10-year primary term of defendants’ interest, the Lewis ‘C’ Well was drilled and completed on the SE/4. The well produced oil and/or gas in paying quantities until plugged and abandoned on April 7, 1973. The parties agree the development, production and operation of the Lewis ‘C’ extended beyond the primary term defendants’ term mineral interest in the entire tract, the SE/4 and the N/2 of Section 31. Baker v. Hugoton Production Co., 182 Kan. 210, Syl. ¶ 1, 320 P.2d 772 (1958).
“Pursuant to the Kansas Compulsory Unitization Act, K.S.A. 55-1301 et seq., on May 24, 1968 the Kansas Corporation Commission (KCC) ordered unitization of the Nichols Pool in Kiowa County. The unitized area included the SE/4, but not the N/2, of Section 31. The KCC order incorporated by express reference the plan of unitization agreed upon by the necessary 75% of the royalty, term and working interest owners of the Nichols Pool. (R. 10, Ex. C, p.3.) Paragraph 3.4 of that plan provided operations or production anywhere on the unit shall be considered as operations or production in each tract within the unit, the effect being to 'continue in effect each lease, term royalty, or other agreement as to all lands covered thereby just as if such operations had been conducted and a well had been drilled on and was producing from each tract.’. . . The KCC terminated the Nichols Unit effective November 20, 1984.
“After the Lewis ‘C’ Well on the SE/4 was plugged in 1973, no producing oil well or gas well was physically located on the N/2 of Section 31. . . .
“At no time after the Lewis ‘C’ Well was plugged on April 7, 1973, has any producing oil well or gas well ever been physically located or drilled upon the SE/4 of Section 31.” 629 F. Supp. at 621-22.
The district court held that the statutory unitization of the Nichols Pool extended the defendants’ defeasible term mineral interests only as to the SE/4 which was included in the unit. We agree.
Although not pertinent to the question now before us, we point out that there were two original mineral deeds, each covering a one-fourth term mineral interest. Plaintiffs in this action sought to quiet title to one-half of the minerals and not just one-fourth. As both instruments were identical and executed on the same date, the opinion of Judge Kelly applies equally to each conveyance and the reversionary interests thereunder.
At the outset we note the parties and the trial court correctly characterized the instruments before the court as mineral deeds which conveyed a base or determinable fee in the oil and gas in place. Wilson v. Holm, 164 Kan. 229, 234, 188 P.2d 899 (1948).
In Wilson v. Holm, a quiet title action brought by a reversioner, this court set out certain rules pertaining to defeasible term mineral interests of the type at issue here. The court stated that “the ultimate test as to whether an estate created by a deed has terminated depends entirely upon its own provisions,” and that the “deed must be construed in accord with the intent and purpose of the parties after it has been examined in its entirety.” 164 Kan. at 239.
This court has consistently followed the rule, asserted in Wilson v. Holm, that the instrument which creates a defeasible term mineral interest is controlling on the question of whether the interest has terminated. See Parkin v. Kansas Corporation Comm’n, 234 Kan. 994, 677 P.2d 991 (1984); Short v. Cline, 234 Kan. 670, 676 P.2d 76 (1984); Classen v. Federal Land Bank of Wichita, 228 Kan. 426, 617 P.2d 1255 (1980); Friesen v. Federal Land Bank of Wichita, 227 Kan. 522, 608 P.2d 915 (1980); Klippel v. Beinar, 222 Kan. 681, 567 P.2d 867 (1977); Smith v. Home Royalty Association, Inc., 209 Kan. 609, 498 P.2d 98 (1972); Stratmann v. Stratmann, 204 Kan. 658, 465 P.2d 938 (1970); Dewell v. Federal Land Bank, 191 Kan. 258, 380 P.2d 379 (1963); Shepard, Executrix v. John Hancock Mutual Life Ins. Co., 189 Kan. 125, 368 P.2d 19 (1962); Baker v. Hugoton Production Co., 182 Kan. 210, 320 P.2d 772 (1958); and Wagner v. Sunray Mid-Continent Oil Co., 182 Kan. 81, 318 P.2d 1039 (1957). While the foregoing cases cover a multitude of factual situations and establish numerous principles of law, one common thread that permeates the opinions is that the extent and duration of a term mineral interest is ordinarily controlled by the provisions of the document creating the interest. The cases also reflect that to perpetuate a term mineral interest beyond the primary term contained in the original document, there must be production from or operations on a portion of the property contained in the original grant. It is also the rule in Kansas that where defeasible term mineral interests are voluntarily unitized with other property, production from the other property within the unit will operate to continue the term mineral interests only as to property actually included within the unit. Classen v. Federal Land Bank of Wichita, 228 Kan. 426. There is nothing in the original deed in this case which would extend the term mineral interest in the N/2 of the section by off-tract production from the Nichols Unit. Insofar as the deeds in this case are concerned, the term mineral interest in the N/2 terminated when the actual production from the SE/4 terminated.
Does the fact that the Nichols Unit was created pursuant to the Kansas compulsory unitization law, K.S.A. 55-1301 etseq., rather than by voluntary agreement alter the foregoing general principles under the facts of this case? We think not.
The plaintiffs rely heavily upon Classen v. Federal Land Bank of Wichita, 228 Kan. 426, and the applicable unitization statutes. In considering Classen, it is necessary to also consider the companion case of Friesen v. Federal Land Bank of Wichita, 227 Kan. 522. Friesen was a quiet title action against the holder of a reserved undivided % interest in minerals under a quarter section of land. The Federal Land Bank by deed conveyed three quarter sections, referred to in the opinion as Tracts 1, 2, and 3, subject to a reservation of an undivided one-fourth interest in the oil, gas, and other minerals for a period of 20 years “and so long thereafter as oil, gas and/or other minerals or any of them are produced therefrom, or the premises are being developed or operated.” 227 Kan. at 522-23. The Friesens subsequently became the owners of Tract 2 by a deed from the original grantees of the bank. At the end of the primary term, no actual drilling had occurred on any of the three tracts, but Tract 1 had been pooled by its owners with other property to form a production unit, and production had commenced from the other property within the unit. Evidence was presented that the unit well was physically draining gas from under Tract 1, and the defendant bank contended that this was production from the tract sufficient to extend the term of the mineral interest as to all three of the tracts within the meaning of the mineral reservation clause. The court reviewed several of our earlier cases and held that the mineral reservation as to Tract 2 had expired at the end of the primary term.
In Classen v. Federal Land Bank of Wichita, 228 Kan. 426, the Classens, the original grantees in the conveyance from the bank, brought suit to quiet title to their claimed reversionary interest as to Tracts 1 and 3 of the same property as described in Friesen. The defendant bank claimed its mineral interest by virtue of the same mineral reservation described in Friesen, arguing again that unit production outside Tract 1 but allegedly draining gas from under Tract 1 extended its mineral interest not only as to Tract 1 but also as to Tract 3. The Classens argued that, to extend the mineral interest beyond the primary term, production must actually come from a well located on one of the three tracts or operation or development must physically occur upon one of the tracts. As Tract 1 had been voluntarily placed in the unit by the parties, the court held that production from the unit continued the Federal Land Bank mineral interest in that tract. However, as in Friesen, we held that production from the unit did not perpetuate the mineral interest in Tract 3 which was not included in the unit. One authority has succinctly summarized our holdings in Friesen and Classen as follows:
“A defeasible term mineral interest cannot be extended unless there is a well physically located on the land which is subject to the grant. However, if a portion of the land is effectively pooled or unitized, the duration of the grant will be extended as to acreage which actually participates in production from the pooled or unitized operation. Acreage included in the grant, but not participating in unit production, will not be held by pooled or unitized operations, [citing Classen].” Pierce, Kansas Oil and Gas Handbook § 9.21 p. 9-20 (1986).
We are of the opinion our prior decisions, including Classen, are controlling unless the Kansas compulsory unitization law requires a different conclusion.
K.S.A. 55-1303 sets forth the requisites for statutory unitization by the Kansas Corporation Commission. The statute requires, inter alia, that the applicant submit a proposed plan of unitization along with a copy of a proposed operating plan. There is no contention in this case that there was not a valid unitization order issued by the Kansas Corporation Commission. The order which was issued approved the proposed plan of unitization and the proposed operating plan. The plan of unitization provided in part:
“3.4 Continuation of Leases and Term Royalties. Operations, including drilling operations, conducted with respect to the Unitized Formation on any part of the Unit Area, or production from any part of the Unitized Formation, shall be considered as operations upon or production from each Tract, and such operations or production shall constitute a compliance with and continue in effect each lease, term royalty, or other agreement as to all lands covered thereby just as if such operations had been conducted and a well had been drilled on and was producing from each Tract.”
The term “Tract” is defined by ¶ 1.8 of the plan as follows:
“1.8 Tract means each parcel of land described as such and given a Tract number in Exhibit A.”
The SE/4 of Section 31 is listed as Tract # 20 in Exhibit A attached to the plan.
K.S.A. 55-1306 and -1308 are also relevant to our decision in this case. K.S.A. 55-1308 provides in part:
“Property rights, leases, contracts and other rights or obligations shall be regarded as amended and modified only to the extent necessary to conform to the provisions and requirements of this act and to any valid order of the commission providing for the unit operation of a pool or a part thereof, but otherwise shall remain in full force and effect.” (Emphasis added.)
K.S.A. 55-1306 provides in pertinent part:
“All operations, including, but not limited to, the commencement, drilling, or operation of a well upon any part of the unit area shall be deemed for all purposes the conduct of such operations upon each separately owned tract in the unit area by the several owners thereof. The portion of the unit production allocated to a separately owned tract in a unit area shall, when produced, be deemed, for all purposes, to have been actually produced from such tract by a well drilled thereon. Operations conducted pursuant to an order of the commission providing for unit operations shall constitute a fulfillment of all the express or implied obligations of each lease or contract covering lands in the unit area to the extent that compliance with such obligations cannot be had because of the order of the commission.
“Except to the extent that the parties affected so agree no order providing for unit operations shall be construed to result in a transfer of all or any part of the title of any person to the oil and gas rights in any tract in the unit area.”
We think it is clear that compelled unitization pursuant to the statutes must be limited in its scope to the accomplishment of the objectives of the unit formed. Statutory unitization or compulsory unitization is done pursuant to the police power of the state and the power of the Kansas Corporation Commission to prevent waste, conserve oil and gas, and protect the correlative rights of persons entitled to share in the production of oil and gas. K.S.A. 55-1301. Under such circumstances the statutes should be strictly construed and limited so as to minimize disruption of interests in property not included in the unit. As specifically provided in K.S.A. 55-1308, property rights can only be amended and modified to the extent necessary to meet statutory requirements and the order providing for the operation of the unit. If, as we held in Classen, a voluntary pooling or unitization will not operate to extend a term mineral interest as to any property not included in the unit, a compelled statutory unitization certainly will not do so. Here the N/2 of the section was not a part of the unit, was not affected by the off-tract production from the unit, and did not benefit from such production. Defendants were free to pursue development and production from the N/2 regardless of what took place on the Nichols Unit, but apparently elected not to do so.
Our unitization statutes have been before this court on only one prior occasion, and that case involved this very same Nichols Unit. See Parkin v. Kansas Corporation Comm’n, 234 Kan. 994. In Parkin, Justice Miller discussed at length the background and provisions of the statutes. Parkin involved the dissolution or termination of the unit, which the Corporation Commission and the district court denied based upon their determination that the plan of unitization constituted a contract. This court made it clear that compulsory units are created pursuant to statutory authority and are not contractual in nature.
The appellants rely primarily on ¶ 3.4 of the plan of unitization and on cases from other jurisdictions which follow the rule that off-tract unit production will perpetuate a term mineral interest, even as to non-unitized acreage. See Panhandle Eastern Pipe Line Company v. Isaacson, 255 F.2d 669 (10th Cir. 1958); Fox v. Feltz, 697 P.2d 543 (Okla. App. 1984) (reaffirms rule stated in Panhandle Eastern); South. Royalty Co. v. Humble Oil & Ref. Co., 151 Tex. 324, 249 S.W.2d 914 (1952). This court has declined to follow Panhandle Eastern and South. Royalty Co. in numerous cases, including Classen, 228 Kan. 426; Friesen, 227 Kan. at 525-26, and Smith v. Home Royalty Association, Inc., 209 Kan. 609, 614, 498 P.2d 98 (1972). Appellants also assert a different interpretation of the statutes and contend that the language in ¶ 3.4 of the plan of unitization requires the extension of the term mineral interest in the N/2 of Section 31, even though it is not in the unit, and even though there is no longer any actual production from a well on the SE/4 which is in the unit. We do not find their arguments persuasive.
We conclude the decision of the federal district court is correct. As stated earlier, the certified question is:
“When a term mineral interest in several tracts has been conveyed by a single instrument and one of those tracts has been unitized under the Kansas Compulsory Unitization Act, Kan. Stat. Ann. 55-1301 et seq., is the entire mineral interest extended by the unitized production or only the interest in the tract included within the unit?”
We hold that under the facts submitted only the interest in the tract included within the unit is extended by the unitized production when there is no actual production from a well upon the tract within the unit. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an action by a lending institution against individual guarantors of a corporate nonrecourse real estate development loan. The district court entered summary judgments in favor of the defendant guarantors and the lending institution appeals therefrom.
The facts underlying this litigation are lengthy and complex but must be recited herein in considerable detail. To make their reading more meaningful it is helpful to state, at this point, the three primary grounds upon which the district court’s decision rests, as follows:
1. The guarantors were guaranteeing the legal obligations of the corporation. Inasmuch as the corporation’s failure to make loan payments as promised could result only in the loss of the security, the guarantors could not be liable for a money judgment for the corporation’s failure to make the payments;
2. whereas the original guaranty agreement of two of the defendants was specifically excepted from the nonrecourse provisions of the corporate loan, their subsequent guaranty agreement, made concurrently with the sale of the security and the loan assumption, was not — hence the second guaranty agreements were not so excepted; and
3. to permit the lending institution to sue the guarantors periodically for missed payments as opposed to resolution by foreclosure is not authorized by the contracts, would result in a multiplicity of actions, and is contrary to public policy. The case was presented to the district court on stipulations of
uncontroverted facts. These stipulations are quite comprehensive — covering all aspects of the pertinent transactions except for the specific negotiations leading to execution of the guaranty agreements replacing the original such agreements. The parties’ stipulations as to the cast of characters involved are as follows:
“Parties and Related Entities
“1. Defendant Hostetler is currently and has been for eight years, Chairman of the Board of Directors of the First Savings Bank of Manhattan, Kansas (formerly First National Bank of Manhattan, Kansas, and hereinafter the ‘First Bank of Manhattan’). He has been a member of that Board for 14 years, is an officer of the bank and he or his family owns virtually 100% of the First Bank of Manhattan. Defendant Hostetler obtained a law degree from the University of Kansas, but has never practiced law. He has had limited real estate experience, including experience in agricultural and commercial real estate.
“2. Defendant Lashbrook is currently and has been for approximately three years the President of First National Bank of Overland Park, Kansas. Prior to that time, he was President of First Bank of Manhattan for nine years, which Bank is a major tenant of The First Bank Center at issue herein and at which Bank defendant Hostetler is Chairman of the Board of Directors.
“3. Defendant Miller is a certified public accountant and a partner in the accounting firm of Miller, Nelson & Company. Miller has been involved in general accounting and financial tax consulting. His accounting clients include real estate brokers, commercial and residential real estate developers and syndicates and purchasers of real estate. He is and has been personally involved in the real estate development, including the Stillwell Crossing Subdivision development.
“4. Plaintiff Overland Park Savings & Loan Association (hereinafter ‘OPS&L’) is a federally chartered savings and loan association doing business in the State of Kansas with its principal place of business at 9400 Antioch, Overland Park, Kansas. Plaintiff has a branch office at 7810 151st Street at 69 Highway, Overland Park, Kansas.
“5. Dee-Kay Developers, Inc. is a Kansas corporation principally owned and operated by defendant Miller.
“6. H & L Investments was, at the time of the transactions involved herein a Kansas General Partnership consisting of defendants Hostetler and Lashbrook as general partners. The only asset of the partnership was the shopping complex in Manhattan, Kansas, commonly known as The First Bank Center, which is the subject of this action.”
The district court’s pertinent findings of fact are as follows:
“3. In 1984, H & L Investments entered into negotiations with OPS&L for a loan which H & L intended to use to develop the First Bank Center.
“4. The land upon which the Center is built was owned in fee simple by the First Bank of Manhattan, a bank owned almost entirely by the defendant Hostetler and his family.
“The First Bank of Manhattan leased the real estate to H & L Investments for the purpose of building a shopping center.
“5. On December 7,1984, OPS&L loaned 1.2 million dollars to H & L for use in building First Bank Center, a multi-tenant commercial shopping center.
“6. The basic terms of the note were for monthly payments of $14,123.53 from January 1, 1985 to December 1, 1995. On De cember 1,1995, a balloon payment for the balance would be due. Interest was fixed at 13.9% per annum.
“7. The promissory note executed by H & L was secured by a mortgage on the First Bank Center. The mortgage was duly executed by H & L and the First Bank of Manhattan, which held fee simple title to the land.
“8. Three clauses of the promissory note lie at the heart of this controversy: the prepayment clause, the default clause, and the non-recourse clause.
“9. The prepayment clause provides as follows:
‘The Maker hereby reserves the privilege to prepay all or any portion of the principal of this Note; the penalty for prepayment shall be the amount by which 13.9% is greater than the weekly average yield on United States Treasury securities adjusted to a constant maturity of one year plus 250 basis points on the date for prepayment multiplied by the number of years remaining to maturity (rounded to nearest .01 years) multiplied by the amount of prepayment; provided, however, that any such prepayment shall be applied first to then accrued but unpaid interest due on this Note, and the balance of any such prepayment shall be applied in reduction of principal thereunder.’
“10. The purpose of such a prepayment clause is to protect the lender from fluctuations in the interest market. Essentially, the banking institution borrows money from other, larger lenders, and then in turn loans it to the ultimate borrowers at interest rates which are slightly higher than the rate being paid by the banking institution. The difference between the two interest rates (i.e., the bank’s and the borrower’s) is the margin of profit from which the bank pays its operating expenses and makes it[s] profit.
“When a bank loans a large sum of money such as this for a lengthy period of time, it protects itself by a prepayment clause, because the interest rate it is paying to its lender is locked in at the rate at which it borrowed from its lender. Should interest rates fall, the ultimate borrower would naturally refinance at the lower interest rate, and prepay its loan to the bank. In that event, the bank would have to loan the money to new borrowers at the current, lower interest rate, but the bank would still be locked into paying its lender at the higher rate. The prepayment penal-
ties are a formula by which the bank computes, and requires the borrower to pay, the difference between the higher rate at which the borrower contracted and the lower rate existing at the time of prepayment.
“Without such prepayment clauses, banks would be unable to make large, long-term loans during periods of high interest rates.
“11. The default clause, which is set out below, contains no similar penalty protecting OPS&L from fluctuations in the interest market in the event it accelerates the note because of default. It provides:
Tn case of default in the payment of any said installments of interest and/or principal due hereunder, or upon default of any of Maker’s obligations under the mortgage securing payment of this Note, Lender (or the then existing holder hereof) shall have the right, after ten (10) days of continuing default and after notice giving Maker twenty (20) days to cure such default, to declare the entire unpaid principal balance of this note due and payable at once. Interest at the rate of two and one-half percent (2.5%) per annum shall be due and payable on any sum not paid within ten (10) days from date due.’ “12. The note also contains anon-recourse clause, which is set
out below:
‘Notwithstanding anything contained in this Note or the Mortgage securing it, neither the Maker, nor any partner thereof, shall have any personal liability to pay the indebtedness evidenced by this Note or to perform any covenant herein or in the mortgage, and the holder of this Note shall look solely to the property securing this Note for the payment of such indebtedness, and no deficiency or money judgment shall be sought or obtained against Maker or any partner of Maker; provided, however, nothing set forth herein shall be construed to limit the personal liability of the guarantor under the Guarantee of even date herewith from the partners of Maker and their spouses to the Lender.’
“13. The note was signed by Lashbrook and Hostetler in their capacity as general partners of H & L Investments.
“14. The mortgage securing the note was also signed by Lashbrook and Hostetler as general partners of H & L Investments and by Hostetler as president of the First National Bank of Manhattan on December 7, 1984. The mortgage document sets forth a seven-part definition of ‘default’, which is not relevant to this case, and defines the Mortgagee’s right to institute foreclosure proceedings upon default. The mortgage document also contains a non-recourse clause, which does not differ in any significant respect from the one contained in the note. The clause is set forth below:
‘Notwithstanding anything contained in this Mortgage or the Note secured hereby, neither the Bank, the Mortgagor, nor any partner thereof shall have any personal liability to pay the indebtedness evidenced by the Note or to perform any covenant therein or in this Mortgage, and the holder of this Mortgage shall look solely to the property encumbered by this Mortgage for the payment of such indebtedness and no deficiency or money judgment shall be sought or obtained against Mortgagor, the Bank or any partner of Mortgagor; provided, however, nothing set forth herein shall be construed to limit the personal liability of the Guarantor under the Guarantee of even date herewith from the partners of Mortgagor and their spouses to Mortgagee.’
“15. The ‘guarantee of even date’ referred to in the note and mortgage was signed by Charles and Patricia Hostetler and Richard and Patricia Lashbrook. It was signed on December 7, 1984, along with the note and mortgage. The guaranty document was apparently a form used [by] OPS&L, because four separate guaranty documents are involved in this case, and all are identical except for some type[d]-in modifications.
“16. The guaranty signed by Mr. and Mrs. Hostetler and Mr. and Mrs. Lashbrook has the word ‘Limited’ typed in above the caption ‘Guarantee of All Liabilities.’ It provides for joint and several liability on the obligation and guarantees ‘prompt and unconditional’ payment of the liabilities of the borrower (H & L Investments). Typed in near the end of the document is this sentence: ‘It is expressly agreed that liability of Guarantor(s) herein is limited to [$500,000.00].’
“17. The guaranty document recites that ‘[association shall have its remedy under this guarantee without being obliged to resort first to any security or to any other remedy or remedies to enforce payment or collection of the obligations hereby guaranteed, and may pursue all or any of its remedies at once or at different times.’
“18. In 1986, H & L Investments negotiated a sale of the shopping center to Dee-Kay Developers, Inc., a corporation owned by defendant David K. Miller. A real estate sale contract was signed by H & L and Dee-Kay on March 13, 1986. The transfer transaction was a complex one, and all parties to this lawsuit made certain concessions in order to effect it. There is some dispute among the parties as to why, and for what consideration, each party took certain actions; but because, in this court’s opinion, none of these issues are material to the outcome of this case, they will be set down as uncontroverted. Highly summarized, the transaction occurred as follows:
a) Dee-Kay contracted to buy the First Bank Center for 1.3 million dollars.
b) Payment of the 1.3 million [dollars] was to occur in this manner: Dee-Kay was to pay $1,000 in earnest money; Dee-Kay was to assume the 1.2 million dollar loan at OPS&L; and Dee-Kay was to pay the balance in ‘cash equivalent’ at closing. The ‘cash equivalent’ actually was in the form of the transfer by Dee-Kay to Lashbrook a real estate development Dee-Kay owned, known as Stillwell Crossing.
c) OPS&L consented to the assumption of H & L’s note by Dee-Kay, and modified the note to permit Dee-Kay to prepay up to $18,000.00 of principal per year without penalty.
d) OPS&L received a fee of .5% of the principal balance due on the H & L note at the time it was transferred to Dee-Kay. The payment of this fee was shared equally by Dee-Kay and H & L.
e) OPS&L cancelled the original $500,000.00 personal guaranties signed by the Hostetlers and the Lashbrooks.
f) Hostetler and Lashbrook (but not their spouses) signed new guaranty documents, in which each of them guaranteed the performance of Dee-Kay on the assumed note to the extent of $200,000 apiece.
g) OPS&L released its mortgage on the Stillwell Crossings property, and Dee-Kay then transferred that property to Lash-brook, free and clear, at the time of closing.
h) OPS&L refinanced for Dee-Kay the loan originally secured by the Stillwell Crossings property, and secured the new note with a second mortgage on Miller’s home in Overland Park, Kansas, and a certificate of deposit.
“19. Miller’s association with OPS&L predated any of the above transactions, and on April 17, 1985, he had signed a personal guaranty for all liabilities of Dee-Kay Developers, Inc. to OPS&L. This guaranty had no limitations. The guaranty document he signed in 1985 is identical to the one signed by the Hostetlers and Lashbrooks jointly in December 1984, and the ones signed by Hostetler and Lashbrook individually as part of the 1986 transfer, except that these contained typed-in limitation clauses.
“20. Miller, as president of Dee-Kay Developers, Inc., signed the assumption of H & L’s note and mortgage on April 30, 1986. On the same day, a ‘Note Modification Agreement’ was signed by Miller as president of Dee-Kay, Wilson W. Siemens as president of OPS&L, and the Lashbrooks and the Hostetlers. The modification agreement confirmed all terms and conditions of the December 7, 1984, note, but modified it to the extent that Dee-Kay would be permitted to prepay up to $18,000 per year of the principal of the loan without triggering the prepayment penalty.
“21. On May 2, 1986, H & L assigned its leasehold interest in the First Bank Center to Dee-Kay, and on the same day Lash-brook and Hostetler signed their new guaranties. The new guaranty documents were identical in form to the one they had signed earlier, except for the typed-in limitation clauses. The new guaranty documents differed from the one they had previously signed in several important aspects:
a) They were signed to guarantee the performance of Dee-Kay Development, Inc., on its obligation to OPS&L.
b) Lashbrook and Hostetler signed separate, individual guaranties for $200,000 apiece, instead of a joint and several guaranty for $500,000.
c) Their wives were not required to sign the new guaranties.
“22. The original $500,000 guaranty was cancelled by OPS&L
when the new guaranty documents were signed.
“23. Almost immediately after the May 2, 1986, closing on the transaction, Miller learned that the rents actually collected from the shopping center were only about one-half of what he was told to expect when the sale was being negotiated. On May 28, 1986, Miller notified OPS&L that Dee-Kay would default on the June, 1986, payment and all payments thereafter, and suggested to OPS&L that it declare a default and commence foreclosure proceedings. Miller offered to voluntarily deed the property over to OPS&L in lieu of foreclosure.
“24. Dee-Kay did in fact default on the June, 1986, payment and has not made any of the monthly payments since then.
“25. OPS&L refused Dee-Kay’s offer to deed over to it the leasehold improvements, and has refused to declare an acceleration and institute foreclosure proceedings.
“26. Instead, OPS&L has sued Miller, Lashbrook and Hostetler individually on their guaranties.”
This action was filed on August 25, 1986, by Overland Park Savings & Loan Association (OPS&L) to recover the unpaid monthly installments from the guarantors. Subsequent to the district court’s entry of summary judgment herein, OPS&L filed a foreclosure action which is, apparently, being held in abeyance pending resolution of this appeal.
A guaranty is a contract between two or more persons, founded upon consideration, by which one person promises to answer to another for the debt, default, or miscarriage of a third person, and, in a legal sense, has relation to some other contract or obligation with reference to which it is a collateral undertaking. A contract of guaranty is to be construed, as are other contracts, according to the intention of the parties as determined by a reasonable interpretation of the language used in the light of the attendant circumstances. After the intention of the parties or the scope of the guarantor’s undertaking has been determined by application of general rules of construction, the obligation is strictly construed and may not be extended by construction or implication. Iola State Bank v. Biggs, 233 Kan. 450, Syl. ¶¶ 1, 2, 662 P.2d 563 (1983); Trego WaKeeney State Bank v. Maier, 214 Kan. 169, Syl. ¶¶ 2, 3, 519 P.2d 743 (1974).
In determining “the intention of the parties and the scope of the guarantor’s undertaking” attention must be given to the attendant circumstances. Hostetler and Lashbrook were the general partners in H & L Investments. They were the moving parties in attempting to obtain the million dollar plus loan from OPS&L in order to build the shopping center. Obviously, OPS&L was not satisfied to loan the money to H & L without the additional protection of the guaranty agreement from the two individuals and their respective spouses. The parties stipulated this joint and several guaranty of $500,000 was intended to and did induce OPS&L to make the loan. The reference in the promissory note and mortgage that the “guarantee of even date” identified the instrument, acknowledged its existence, and specifically exempted it from the nonrecourse provision of the note and mortgage.
H & L’s partners subsequently entered into negotiations to sell the shopping center to Miller’s corporation, Dee-Kay Developers. The OPS&L loan was outstanding. All of the parties and their business entities had an interest in the successful culmination of the proposed sale which hinged upon securing the consent of OPS&L for Dee-Kay’s assumption of the loan. Concessions had to be made to gain OPS&L approval. The original guaranty of the partners went to the obligation of the partnership. Inasmuch as the partnership was in the loan on a nonrecourse basis, its only liability was to lose the security — property it was selling to Dee-Kay. OPS&L already had Miller’s unlimited guaranty agreement as to Dee-Kay’s obligation, but, obviously, it was unwilling to cut all strings between it and the partners individually it had under the note and mortgage. Its acceptance of the loan assumption, something sought by the partners, entailed the cancelling of the original H & L guaranty agreement with its $500,000 joint and several liability, including that of the spouses and substituting the guaranty by the partners of H & L of the obligation of Dee-Kay. It is important to bear in mind that the second guaranty agreement was for the debt of the Dee-Kay Corporation, the purchaser of the shopping center, rather than the debt of the H & L partnership, the seller. The new guaranty agreement, presumably through negotiation, was limited to $200,000 each rather than $500,000 jointly and severally.
We do not believe that the “of even date” language in the note and mortgage created anything in the original guaranty that was not present in the second guaranty. This was a loan assumption — the original loan was not cancelled, it was assumed by Dee-Kay. The note modification agreement of April 30, 1986, allowing for the specified prepayment of interest states:
“WHEREAS, Guarantors have guaranteed payment and performance of said Note and Mortgage by Borrower [Dee-Kay] pursuant to their respective Guaranty Agreements and the terms and conditions thereof; and
“WHEREAS, Borrower and Guarantors requests that said Note be modified and amended to allow future payments and obligations deemed by Borrower as more favorable to them, and Overland Park is willing to modify and amend said Note for the benefit of Borrower and Guarantors.”
Miller, Lashbrook, and Hostetler executed this instrument as “Guarantors.” Miller also executed it as president of Dee-Kay, “Borrower.”
Lashbrook, Hostetler, and Miller contend that their respective guaranties are, for all practical purposes, illusions. That is, inasmuch as OPS&L can look to Dee-Kay only for foreclosure of the real estate with no deficiency judgment, then no liability exists as to the guarantors under any circumstances. If such be the case, why did the partners negotiate the limited dollar amounts of a guaranty agreement that cannot result in any liability to the guarantors? What purpose would the guaranties serve? The parties hereto were experienced and knowledgeable in the field. They obviously intended that the guaranty agreements create rights and impose obligations.
Interpretation of the effect of a guaranty agreement upon a nonrecourse loan has not been before us previously. The case of Federal Deposit Ins. Corp. v. University Anclote, 764 F.2d 804 (11th Cir. 1985), had the issue before it and we believe the rationale therein is sound. In Anclote, the court stated:
“James C. Petersen appeals from the district court’s entry of summary judgment in favor of the Federal Deposit Insurance Corporation (FDIC) in its suit to enforce a guaranty agreement. Finding no error in the district court’s construction of the agreement, we affirm.
“On June 10, 1980 University Anclote, Incorporated (Anclote) executed a promissory note in favor of Metropolitan Bank and Trust Company (Bank) in the amount of $1,428,000.00 plus interest at a rate of two per cent over the prime interest rate. The note was secured by a mortgage executed on the same day encumbering specified real property owned by Anclote.
“Both the note and mortgage were essentially non-recourse in nature since the Bank’s sole remedy in the event of default was to seek foreclosure of the mortgage. Anclote’s note in part provided:
‘There shall be no general corporate liability hereunder and nothing contained herein shall obligate the undersigned or its successors or assigns further than to bind its right, title and interest in the property securing this Note and fully described in the Mortgage of even date herewith. In the event of a default hereunder, the sole remedy of the holder hereof shall be foreclosure of the property covered by the aforesaid Mortgage and the holder hereof shall not be entitled to a deficiency judgment and none shall be sought or entered.’
“On June 23, 1980 Petersen executed an ‘Unconditional Guaranty with Limits of Liability,’ in favor of the Bank. The agreement states:
‘[Guarantors] unconditionally guarantee the prompt and full payment to Bank when due of all indebtedness and liabilities of any kind (including without limitation principal, interest and attorneys’ fees) for which Customer [Anclote] is now or may hereafter become liable to Bank in any manner, either primarily or secondarily, absolutely or contingently, directly or indirectly, and whether incurred directly with Bank or acquired by Bank by assignment or otherwise and however evidenced, and any and all renewals or extensions of or substitutes for any of the foregoing indebtedness or liabilities or any part thereof.’
Petersen’s liability under the agreement was expressly limited to $600,000.00.
“The Bank subsequently became insolvent and the FDIC was appointed liquidator of the Bank’s assets. The FDIC, in its corporate capacity, purchased certain assets from the liquidator, including the note and mortgage involved here. At the time of FDIC’s purchase, Anclote had already defaulted in payment of the note.
“The FDIC then brought a foreclosure action against Anclote and sought recovery on the guaranty from Petersen. The basic issues were decided on the parties’ motions for summary judgment. The district court entered judgment of foreclosure against Anclote and a judgment against Petersen to the extent of his liability under the guaranty, $600,000.00.
“Petersen contends that because the primary debtor cannot be held liable for the amount of debt reflected in the note, neither can he, as guarantor, be held liable for this sum. He asserts that, as a collateral undertaking, the extent of his guaranty can only be determined with reference to Anclote’s obligations after default. He argues that since Anclote’s liability to FDIC was wholly satisfied by the foreclosure decree, there is no longer any underlying debt left for him to pay. Petersen contends that because the agreement does not expressly provide for greater liability on the part of the guarantor, he cannot be held liable beyond the extent of Anclote’s liability.
“We have no trouble with Petersen’s recitation of the general rules governing contracts of guaranty. If a guaranty is free from ambiguity, it is strictly construed in favor of the guarantor. Scott v. City of Tampa, 158 Fla. 712, 30 So.2d 300, 302, cert. denied, 332 U.S. 790, 68 S.Ct. 99, 92 L.Ed. 372 (1947). If ambiguous, it is construed against the drafter — here, the Bank and its assignee, the FDIC. See Miami Nat’l Bank v. Fink, 174 So.2d 38, 40 (Fla.3d DCA), cert. denied, 180 So.2d 658 (Fla. 1965). A guaranty is a collateral promise to answer for the debt or obligation of another. Nicolaysen v. Flato, 204 So.2d 547, 549 (Fla. 4th DCA 1967), cert. denied, 212 So.2d 867 (Fla. 1968). The extent of the guarantor’s liability depends upon the language of the guaranty itself and is usually equal to that of the principal debtor. 38 Am.Jur.2d Guaranty § 74 (1968). ‘[A] guarantor is liable only in the event and to the extent that his principal is liable.’ Id. at § 77. Finally, if the principal’s obligation has been paid or satisfied, the guarantor’s obligation is terminated. Id. at § 78.
“The difficulty in this case arises, however, in applying these rules to the documents at issue. The crux of the controversy is the debt or obligation Petersen undertook to guarantee. Petersen contends that a guarantor’s legal liability is that of the principal debtor’s after default. Here, he alleges there is no guarantor liability since the FDIC may not pursue the principal debtor beyond foreclosure of the property. The FDIC, on the other hand, contends that the language of the guaranty is unconditional and refers to all of Anclote’s debt, whether recourse or non-recourse.
“After careful consideration, we agree with the FDIC’s construction of the extent of Petersen’s liability under the guaranty. The guaranty agreement itself reflects that Petersen guaranteed all indebtedness and liabilities of any kind for which Anclote was or was to become liable. Despite the fact that the note prohibited any deficiency judgment and provided that the holder’s sole remedy was to be foreclosure against the property, the note and mortgage also provided that upon default the holder could declare the entire balance due and payable and could enforce the collection of all sums due.
“We agree with the district court that the ‘logical interpretation of these provisions concerning liability, acceleration and remedies is that while the Plaintiffs may accelerate and obtain judgment against Anclote for the total balance due under the note, that judgment cannot be satisfied from any Anclote assets other than the mortgaged property.’ However, Anclote’s ‘indebtedness’ is the total sum reflected in the note, plus interest and other costs. As Petersen unconditionally guaranteed to pay this amount if Anclote defaulted, he may be called upon to satisfy the debt up to the express limit of his guaranty.
“As for Petersen’s claim that greater liability is being imposed upon him than that of the principal debtor, such is not precisely the case. Petersen and Anclote are both liable for the amount of the note, plus interest and costs. Merely because Anclote cannot be held liable for a deficiency judgment does not mean that Anclote did not incur an indebtedness when it signed the note. Similarly, Petersen can be held liable for his separate and independent promise to pay the full amount of Anclote’s obligation.
“Even assuming that greater liability is being imposed, such was created by the contract itself. Petersen guaranteed to pay all indebtedness ‘of any kind’ for which Anclote was liable ‘in any manner, either primarily or secondarily, absolutely or contingently, directly or indirectly.’ It further provided that:
‘No extension of time or other indulgence granted by Bank to Customer or Guarantors, or any of them, will release or affect the obligations of Guarantors and no omission or delay on Bank’s part in exercising any right hereunder or in taking any action to collect or enforce payment of any obligation guaranteed hereby will be a waiver of any such right or release or affect the obligations of Guarantors hereunder.’
The language, in conjunction with the fact that the guaranty was undertaken in connection with a non-recourse debt, acted to expressly create greater liability on the part of the guarantor. See Victory Highway Village, Inc. v. Weaver, 480 F. Supp. 71, 75-76 (D. Minn. 1979) (where somewhat similar language in a guaranty agreement was held to create greater liability on the part of the guarantor in circumstances where principal debtor could not be held liable for a deficiency judgment) ....
“A contract of guaranty may provide for greater liability than that of the principal debtor. 38 C.J.S. Guaranty § 43 (1943). Petersen’s unconditional guaranty of the non-recourse obligation is precisely such an undertaking. Any other construction of the contract would be elevating form over substance, and, as the district court noted, would ‘declare that the parties originally involved in the negotiation of the guaranty engaged in the drafting of an elaborate agreement which was, from its inception, meaningless and without value.’
“In sum, the terms of the guaranty are clear and unambiguous. Even construed strictly, Petersen’s guaranty unconditionally promises to pay Anclote’s debt upon default and the parties clearly intended that the guaranty cover the note at issue here. There being no material issue of fact in dispute, summary judgment is AFFIRMED.” 764 F.2d at 804-07.
To be sure, Anclote involved a deficiency judgment following foreclosure. In the case before us, OPS&L is seeking past due payments on the loan. We do not believe this distinction is significant, however. The guaranty agreements herein grant OPS&L the right to proceed directly against the guarantors “without being obliged to resort first to any security or to any other remedy or remedies to enforce payment or collection of the obligations hereby guaranteed.” This is what OPS&L is attempting to do in this case. If the security itself is the only protection of OPS&L, then there are no remedies other than foreclosure and the quoted language is only illusory.
Further, unlike the district court, we do not believe multiple actions for unpaid rent are so contrary to the public policy of deciding all disputes in one lawsuit so as to invalidate contractual rights affording alternate or successive remedies. Judgments against Lashbrook and Hostetler cannot exceed their $200,000 individual liability. Miller’s liability is unlimited, but his corporation is the borrower.
We conclude the district court erred in holding that the action herein violated the contracts and was contrary to the public policy of the State.
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The opinion of the court was delivered by
Allegrucci, J.:
The present case arises from a personal injury action in which the plaintiffs sought to exclude the testimony of defendant Bordman’s proposed expert witness, Dr. Joseph Lichtor. The trial court granted the motion to exclude Dr. Lichtor’s testimony, and the case is now before this court as an interlocutory appeal.
The plaintiffs, Vincent and Cynthia Jones, filed their petition on September 10, 1984, alleging that they had received personal injuries due to the negligent operation of the motor vehicles driven by the defendants, Ted J. Bordman and Barbara J. Flakus. During the course of the pretrial proceedings in the case, defendant Bordman named Dr. Joseph Lichtor as his expert witness. The plaintiffs sought, by subpoena duces tecum, to obtain extensive documentary materials from Dr. Lichtor. The materials sought by the plaintiffs included all medical reports made by Dr. Lichtor for the past six years, Dr. Lichtor’s income tax returns, and a list of all cases in which Dr. Lichtor served as an expert witness for the defendant’s attorneys, the firm of Wallace, Saunders, Austin, Brown and Enochs, Chartered, of Overland Park, Kansas. Both the defendant and Dr. Lichtor moved to quash the subpoena. A hearing was held on the motions to quash on March 24, 1987.
On March 25, 1987, the district judge found that the subpoena was proper and denied the motion to quash. The district court authorized the subpoena of materials previously produced by Dr. Lichtor in Case No. 85-C-4694, Barnett v. Drees, which was also pending in the Johnson County District Court. The district court also took judicial notice of the decision of Judge Marion Chipman in the Barnett v. Drees case and, in so doing, adopted the findings of that decision as the findings of the court in the present case. The district court further found that the “burden of proof has shifted to the defendant calling Dr. Joseph Lichtor as a witness to establish his competency to testify as a truthful witness.” At the defendant’s request, the district court certified an interlocutory appeal pursuant to K.S.A. 1987 Supp. 60-2102(b).
The findings and conclusions made by Judge Chipman in Barnett v. Drees, and as adopted by the trial judge in this case, are:
“1. Dr. Lichtor is a board-certified, licensed orthopedic surgeon.
“2. Dr. Lichtor spends approximately 75 to 90 percent of his professional time on medicolegal matters. The balance of his professional time is spent on medical research, medical writing, seeing private patients and related matters.
“3. Dr. Lichtor testifies in court on the average of two times per month. Approximately 90 percent of the time he testifies for the defendant.
“4. Approximately 75 percent of the medicolegal work performed by Dr. Lichtor is performed for the defendant.
“5. Dr. Lichtor also performs examinations in workers’ compensation cases. Most of this work is for the plaintiff. However, he has also examined for certain employers or their insurance companies, including the United States Postal Service, various police departments and the Henry Wurst Company.
“6. The Court ordered Dr. Lichtor to produce all medicolegal reports in his possession for the years 1980 through October 1986. Dr. Lichtor produced 245 reports. He failed to produce an undetermined number of reports contained in the subject matter files he maintains.”
Findings No. 7 through No. 12 consist of an analysis by the court of the medical findings made by Dr. Lichtor as evidenced in the 245 reports subpoenaed by the plaintiffs. The court compared Dr. Lichtor’s findings based upon who requested him to do so, the type of case, and the diagnosis.
“13. Exhibits T7’ and ‘18’ are medicolegal reports prepared for the plaintiff by Dr. Lichtor. They are the only reports that Dr. Lichtor acknowledges to have been prepared for the plaintiff. Exhibits ‘21,’ ‘22’ and ‘23’ are acknowledged by Dr. Lichtor to have probably been prepared for the defendant. There are material differences in the tone, content and format between the reports prepared for the plaintiff and those prepared for the defendant. Examples of these differences include the failure of Dr. Lichtor to note anything about the physical agility of a plaintiff whom he is examining for the plaintiff. Dr. Lichtor notes the ‘normal’ agility of plaintiffs whom he examines for a defendant. Dr. Lichtor also refers to age and degenerative changes of the spine as normal when examining for the defendant. When examining for the plaintiff, he either omits references to x-ray findings or describes them as abnormal. These differences are best explained by the fact that one type of report was prepared for the plaintiff and the other for the defendant. The reports referred to herein are typical examples of the reports prepared by Dr. Lichtor.
“14. The deposition of Dr. Lichtor in this case was begun on Monday, August 25, 1986, and was continued after two hours. Plaintiffs counsel issued a subpoena for Dr. Lichtor for the completion of his deposition. Plaintiff retained the services of a process server, O.W. Boggess, to serve the subpoena. Mr. Boggess attempted to serve the subpoena on Tuesday, August 26, 1986, at approximately 6:30 p.m. at Dr. Lichtor’s residence. Mr. Boggess rang the door bell. No one opened the door. Someone from inside the house, a man, asked who was at the door. Mr. Boggess identified himself and asked for Dr. Lichtor. The individual responded that Dr. Lichtor was not there and would not be back until late that night. The individual identified himself as Dr. Lichtor’s father. Mr. Boggess recorded notes of this conversation upon returning to his car. He also recorded the license plate and description of an automobile in Dr. Lichtor’s driveway. The automobile was owned by Dr. Lichtor and was the car he regularly drove to and from work. Dr. Lichtor testified that he had no knowledge of these events; that he did not identify himself as his father who is deceased; and that he knew of no one else who could have been at his house on the date and time in question. Dr. Lichtor’s testimony concerning this incident is not credible. The testimony of Mr. Boggess is credible. The only reasonable conclusion which the Court, as the finder of fact, may draw from this testimony is that Dr. Lichtor was the person responding to the questions of Mr. Boggess and that Dr. Lichtor did not testify truthfully concerning this incident. Dr. Lichtor denied any knowledge of this incident at the hearing on his qualifications on February 17, 1987, and at the conclusion of his deposition on August 28, 1986. Dr. Lichtor’s testimony cannot be attributed to a failure of memory or a simple lack of knowledge. Dr. Lichtor’s testimony is the result of his intent to deceive the finder of fact.
“15. Dr. Lichtor testified, as he has in prior cases, that he is unaware of the amount of his income or the amount attributable to his medicolegal work. The Schedule ‘C’s’ of Dr. Lichtor’s tax returns for the years 1980 through 1985 were introduced into evidence. Dr. Lichtor assisted in the preparation of these schedules and reviewed them prior to filing them. Notwithstanding that Dr. Lichtor had been cross-examined on this subject on repeated prior occasions, and in the deposition in this case, and at the hearing on his qualifications, Dr. Lichtor persisted in his denial of knowledge concerning his income and concerning the amount attributable to his medicolegal activities. His persistent denial of knowledge of these facts can only be attributed to his intent to deceive the finder of fact.
“16. Dr. Lichtor has written a book entitled, ‘Understanding Personal Injuries in Tort Litigation.’ This book sets forth Dr. Lichtor’s opinions concerning the proper method of evaluation, diagnosis and treatment of injuries sustained in accidents. Dr. Lichtor sets forth standards for keeping medical records, for proper wording of diagnoses and for necessary elements of a diagnosis. Dr. Lichtor testified that these are standards he applies in his private practice and in his medicolegal work. However, Dr. Lichtor does not apply these standards in his private practice. Dr. Lichtor fails to keep records on certain patients and he regularly uses diagnostic terminology condemned in his book. A review of over 900 private patient charts kept by Dr. Lichtor fails to establish any effort by him to adhere to the diagnostic standards he requires in medicolegal matters.”
Findings Nos. 17 and 18 deal with Dr. Lichtor’s holding himself out as an expert on Abnormal Sick Behavior for Personal Gain (ASB). The court found a diagnosis of ASB is a psychological or psychiatric diagnosis and that Dr. Lichtor is not a qualified expert in that regard.
“19. The Court has observed Dr. Lichtor testify as an expert witness on a number of occasions. On these occasions, Dr. Lichtor’s conduct in the courtroom and his manner of testifying has demonstrated an obvious disregard for scientific matters. In one case before this Court, he was testifying regarding the difference between objective findings and subjective findings in a personal injury case and the attorney asked him to testify as to what his observations were of the plaintiff. He commenced his testimony by saying, T observed that the plaintiff had dirty underwear.’ There was no issue in the case regarding whether or not the plaintiff had dirty underwear. His comment was made solely for the purpose of trying to prejudice the jury. The Court has observed this witness in trial after trial and has concluded that the witness has no desire to be unbiased or fair but simply is there to further the cause of the party that employs him, regardless of what means he has to use.
“20. Dr. Lichtor has demonstrated a pattern over an extended period of time of testifying in an untruthful manner that is intended to deceive the finder of fact. This pattern of testifying has been demonstrated in other cases tried before this Court and was again demonstrated in the hearing on Dr. Lichtor’s qualifications at which the Court acted as the finder of fact.
“21. Dr. Lichtor bases his conclusions to a substantial degree on what will advance the cause of his client and not on the facts in a particular case. The overwhelming statistical data derived from a review of the 245 reports produced by Dr. Lichtor, though not determinative, cannot be ignored. It cannot be a mere coincidence that Dr. Lichtor almost always reaches a conclusion favorable to his client, whether it be a defendant in an automobile collision case or a plaintiff in a workers’ compensation case.
“22. Dr. Lichtor applies different standards and criteria in reaching his conclusions when he examines for the defendant than when he examines for the plaintiff or when he treats a private patient.
“23. Dr. Lichtor’s testimony will not assist the jury in its fact-finding mission and any probative value his testimony may have is outweighed by its prejudicial impact.”
Additional facts will be stated and discussed as they are relevant to the issues in this appeal.
We first consider whether Dr. Lichtor has standing as an intervening party to perfect his appeal in this case. The plaintiffs contend that Dr. Lichtor does not have such standing. Plaintiffs first argue that Dr. Lichtor has an insufficient interest in the subject matter of the present personal injury action to qualify as a valid intervening party, and second, that Dr. Lichtor is not an intervening party since he failed to file a written motion to intervene.
Although the plaintiffs are correct in contending that Dr. Lichtor does not possess a right to intervene pursuant to K.S.A. 60-224(a), that is not the sole basis upon which a district court may permit a non-party to intervene in a civil proceeding. Under subsection (b) of the statute, a district court may allow permissive intervention “(1) When a statute confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common.” The decision of whether to grant or deny permissive intervention is wholly within the discretion of the district court. Bush v. Viterna, 740 F.2d 350, 359 (5th Cir. 1984); American States Ins. Co. v. Hartford Accident & Indemnity Co., 218 Kan. 563, 545 P.2d 399 (1976). See 7C Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1913, pp. 375-80 (1986). In the present case, although Dr. Lichtor did not possess an interest relating to the subject of the action, his defenses against the subpoena and the exclusion of his testimony presented common questions of law and fact, which authorized the district court to utilize its discretion in determining whether to permit intervention.
A different matter, however, is presented by the failure of Dr. Lichtor to satisfy the procedural requirements for intervention. K.S.A. 60-224(c) provides, in part:
“Motion to intervene and practice in intervention. (1) A person desiring to intervene shall serve a motion to intervene upon the parties as provided in K.S.A. 60-205. The motions shall state the grounds therefor, and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute of this state gives a right to intervene.”
In Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 722 P.2d 1093 (1986), the court upheld the denial of intervention where the intervening party had made only an oral motion to intervene, and had failed to file a motion to intervene upon the parties to the action. We stated:
“K.S.A. 60-224(c)(l) requires the party moving to intervene in an action to serve a motion upon the parties. The motion must state the grounds for intervention and be accompanied by a pleading setting out the claim or defense for which intervention is sought.
“A motion to intervene must be properly served on a party pursuant to K.S.A. 60-205, ‘accompanied by a pleading setting forth the claim or defense for which intervention is sought.’ K.S.A. 60-224(c)(l). Wilson & Walker v. State, 230 Kan. 49, 630 P.2d 1102 (1981).” 239 Kan. at 666.
In Wilson & Walker v. State, 230 Kan. 49, 630 P.2d 1102 (1981), we held that a non-party making only an oral motion to intervene failed to satisfy the requirements of the statute. We said:
“Finally, Mrs. Walker’s claim for intervention must be denied because she failed to comply with the provisions of K.S.A. 60-224. A motion to intervene must be properly served on the party pursuant to K.S.A. 60-205, accompanied by a pleading setting forth ‘the claim or defense for which intervention is sought.’ K.S.A. 60-224(c)(l).
“The request to intervene was made orally the day of the severance hearing. A motion was not served on the party as provided for in K.S.A. 60-205; there was no timely application.” 230 Kan. at 55-56.
In the present case, Dr. Lichtor failed to make a written motion to intervene accompanied by a pleading setting forth the claim or defense for which intervention is sought; nor, as in Wilson (? Walker, did he make an oral motion to intervene in the action. The record reveals that, at the March 24,1987, hearing before the district court, an entry of appearance was made by Dr. Lichtor’s attorney. The court stated at the opening of the hearing:
“THE COURT: Well, first of all, I am rather confused in that I’m not sure that there is standing for the doctor to be represented at this point in time, or for entry of appearance to be entered at this time, and I would like to hear counsel on that issue.”
The plaintiffs’ attorney then formally objected to Dr. Lichtor’s attorney’s entering an appearance in the case. Dr. Lichtor’s attorney stated that Dr. Lichtor possessed the right to oppose the subpoena “even though he is a nonlitigant.” Dr. Lichtor’s attorney failed to make any mention of intervention in the action and counsel’s statement that Dr. Lichtor was “a nonlitigant” is inconsistent with an assertion that Dr. Lichtor was attempting to obtain intervenor status. The district court concluded:
“THE COURT: I will allow you to enter an appearance in this case for a very limited issue as it may relate to Dr. Lichtor’s hearing as to his qualifications, but for no other purpose. If you want me to hear your motion to quash, I will be happy to hear that motion.”
The plaintiffs formally objected to Dr. Lichtor’s attorney’s making even a limited appearance for the purpose of arguing her motion to quash. When Dr. Lichtor’s attorney filed the “APPLICATION FOR PERMISSION TO TAKE AN INTERLOCUTORY APPEAL” with the Court of Appeals, in which Dr. Lichtor was characterized for the first time as an “intervenor,” the plaintiffs again responded, objecting to Dr. Lichtor’s presence as an intervening party in the interlocutory appeal. Contrary to the suggestions of Dr. Lichtor, the plaintiffs have never conceded Dr. Lichtor’s status as a valid intervening party and have continually objected to any such appearance by Dr. Lichtor in this case.
Dr. Lichtor also argues that his original motion to quash the subpoena satisfies the requirements of K.S.A. 60-224(c)(l). The motion to quash has not been included in the record and is found only as an appendix to Dr. Lichtor’s reply brief. The motion is titled, “LIMITED ENTRY OF APPEARANCE and MOTION TO QUASH SUBPOENA and/or MOTION FOR ORDER REQUIRING PAYMENT OF COSTS and/or MOTION FOR CONTINUANCE OF HEARING.” The pleading refers to Dr. Lichtor as “movant and expert witness herein,” not as an intervenor. The prayer for relief at the conclusion of the pleading contains no request for Dr. Lichtor to intervene in the present action. During the entire course of the pleading, no mention is made either of intervention or K.S.A. 60-224.
Not only has Dr. Lichtor failed to comply with K.S.A. 60-224(c)(1), which requires the service of a motion to intervene stating the grounds for intervention, accompanied by a pleading setting forth the claim or defense for which intervention is sought, the trial court never granted him permission to intervene pursuant to K.S.A. 60-224(b). We therefore conclude that Dr. Lichtor is not an intervening party to the present litigation and he does not have standing to perfect this appeal. However, the issues which Dr. Lichtor attempts to raise are also raised by defendant Bordman. For that reason, we will consider Dr. Lichtor as an amicus curiae and consider his briefs and arguments accordingly.
We next consider the plaintiffs’ challenge of defendant Bordman’s standing to contest the issuance of the subpoena and to file the motion to quash. The plaintiffs argue that the statute governing the issuance of a subpoena of records of a business not a party to the litigation, K.S.A. 1987 Supp. 60-245a, permits only the non-party to object to the subpoena. We disagree. While 60-245a(b) authorizes the non-party to object to the production of the subpoenaed business records, there is nothing in the statute which prohibits a party from also opposing the subpoena by a motion to quash. The effect of the plaintiffs’ argument would force a party opposing the granting of a subpoena of a non-party’s business records to remain silent, even if the party possessed otherwise valid grounds for opposing the subpoena. K.S.A. 1987 Supp. 60-245a(b) merely provides express authority for the non-party to independently object to the production of the business records. There is nothing within this statute which requires a party to relinquish its right to oppose such a subpoena of documents under K.S.A. 1987 Supp. 60-245(b).
The plaintiffs also attack the certification by the district court of the present interlocutory appeal. The plaintiffs contend that ¶ 10 of the district court’s journal entry, which certifies the present case as a valid interlocutory appeal, does not validly reflect the decision of the district court. The plaintiffs’ attorney contends that his signature, which is attached to the journal entry, was added to the present version of the district court’s journal entry without his knowledge or consent. According to the attorney for the plaintiffs, he submitted a journal entry with his signature, which did not contain the present version of ¶ 10 in which the court expressly certifies the case as proper for an interlocutory appeal. The plaintiffs’ attorney states in his brief that his signature attached to his proposed journal entry was removed from that journal entry and attached, without his authorization, to another journal entry which contained the present version of ¶ 10 authorizing the taking of an interlocutory appeal.
Even assuming that the present version of the journal entry did not have the plaintiffs’ attorney’s prior express approval, the journal entry nonetheless does reflect the decision of the district court that the present case is a proper one for the taking of an interlocutory appeal. At the conclusion of the March 25, 1987, hearing in the district court, the attorney for defendant Bordman stated:
“MR. HASTY: Okay. Before the Court makes any other orders, we ask the Court to certify the orders you made yesterday with regard to the motion to quash, and today’s order, for an immediate appeal and to stay all proceedings until that appeal is heard.
“THE COURT: I will be happy to, if that’s what you would like. Be more than happy to do that. Draw the appropriate journal entry.”
The plaintiffs’ argument that that portion of the journal entry authorizing the taking of an interlocutory appeal does not validly reflect the decision of the district court is not supported by the record.
We next turn to the issues raised by defendant Bordman. He first contends that the district court erred in upholding the issuance of the subpoena of Dr. Lichtor’s records on the ground that no objection had been filed to the subpoena within ten days. The defendant argues that the relevant statute does not require a response within ten days.
The defendant is technically correct. K.S.A. 1987 Supp. 60-245a(b) requires that a non-party opposing a subpoena duces tecum respond by written objection “within 10 days after the service of the subpoena or at or before the time for compliance, if the time is less than 10 days after service.” However, as previously discussed in this opinion, this section governs only the right of the non-party subject to the subpoena. K.S.A. 1987 Supp. 60-245a does not prohibit a party from moving to quash a subpoena against a non-party. The time in which a party may respond to a subpoena for the production of documentary evidence is controlled by K.S.A. 1987 Supp. 60-245(b). This statute contains no explicit 10-day requirement, but merely requires that the motion be “made promptly and at or before the time specified in the subpoena for compliance therewith.” In the present case, “the time specified in the subpoena for compliance therewith” cannot be determined since the plaintiffs have failed to include a copy of the original subpoena in the record on appeal. The failure of defendant Bordman to respond to the subpoena within ten days, therefore, cannot serve as justification for the decision of the district court to deny the motions to quash the subpoena. This determination, however, does not resolve the issue of whether the district court erred in upholding the issuance of the subpoena.
The district court’s decision that the issuance of the subpoena was proper was reached independent of its conclusion that there had been no objections filed tó the subpoena within ten days. During the March 24, 1987, hearing, the court indicated that its determination that the subpoena was proper was not dependent upon the failure of the opponents of the subpoena to respond within ten days. The court stated: “I do not desire to get involved in the legal argument as to the time frame within which the objection was made and I do not believe it to be controlling in this particular case.” We must therefore consider whether the district court committed error in finding that the plaintiffs could subpoena Dr. Lichtor’s records and, based on that finding, denying the defendant’s motion to quash.
The propriety of the subpoena of Dr. Lichtor’s records turns upon the authority of a trial court to authorize the discovery of the records in question to support an attack upon the credibility of that witness.
Although no Kansas case appears to have addressed this issue, a review of decisions from other jurisdictions supports the conclusion that the district court erred in denying the motions to quash the subpoena in the present case. In Allen v. Superior Court, 151 Cal. App. 3d 447, 198 Cal. Rptr. 737 (1984), the court held that the trial court had erred in granting a subpoena duces tecum requiring a medical expert witness appearing for the defendant to produce documents relating to
“(1) records pertaining to his examination of real party and billing for the examination; (2) records indicating the sources of his income where examinations were made at the request of insurance companies or defense lawyers over the last five years; (3) records of any kind that would reveal what portion of his total income was from treatment of patients, as opposed to evaluation of persons for the defense during the last five years; (4) records related to prior depositions in cases over the past five years when he was asked by the defense to examine someone; (5) all reports of examinations and evaluations prepared at defense request over the past five years.” 151 Cal. App. 3d at 449.
The court concluded that the party seeking the production of the documents
“made no showing that the information sought or substantially equivalent information could not be obtained through other means, such as by conducting a deposition without production of the records. Nonetheless, the court permitted disclosure. The court abused its discretion when it failed to require a less intrusive method of discovery.
“At deposition, the medical expert may be asked questions directed toward disclosing what percentage of his practice involves examining patients for the defense and how much compensation he derives from defense work. To show bias or prejudice, [the party seeking to obtain discovery by subpoena] need not learn the details of his billing and accounting or the specifics of his prior testimony and depositions. As petitioner points out, publications which index the testimony of medical units are available to real party. Exact information as to number of cases and amounts of compensation paid to medical experts is unnecessary for the purpose of showing a bias.” 151 Cal. App. 3d at 453.
The court in Allen relied, in part, upon the decision of the Supreme Court of Texas in Russell v. Young, 452 S.W.2d 434 (Tex. 1970). In Russell, the Texas court rejected the granting of a broad subpoena of a proposed expert witness’ records, where the sole purpose for the discovery of the records was for impeachment of that proposed expert witness. Russell was a workers’ compensation case and, as in the instant case, the party employing the physician and the physician brought the mandamus action to order the trial judge to quash the subpoena. The subpoena duces tecum was defended on the ground it might show the doctor was a “plaintiff s doctor.” In a later case, the Texas Supreme Court elaborated on its decision in Russell. In Ex Parte Shepperd, 513 S.W.2d 813 (Tex. 1974), the court stated:
“Russell presented an attempt at wholesale discovery of the private records of a non-party. Allowing discovery orders of that kind would permit witnesses to be subjected to harassment and might well discourage reputable experts from accepting litigation-related employment.” 513 S.W.2d at 816.
The purpose of discovery is to determine the facts which are relevant to the issues in controversy. It is in theory a search for the relevant truth. The plaintiffs contend that the scope of discovery as defined in K.S.A. 1987 Supp. 60-226(b) is broad enough to permit the inspection of Dr. Lichtor’s records for possible evidence showing bias and prejudice. K.S.A. 1987 Supp. 60-226(b) provides: “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.” We agree with plaintiffs that the test for permitting discovery under K.S.A. 1987 Supp. 60-226(b) is not whether the evidence sought is admissible, but whether it appears reasonably calculated to lead to the discovery of admissible evidence. The medical records in question pertain to persons who are not parties to this action and as such are not relevant and are, therefore, inadmissible. It does not follow that the wholesale discovery of these medical records is permissible because evidence may be discovered which might show bias and prejudice of the witness. Questions may be directed to the doctor through interrogatories or by deposition which would elicit the evidence plaintiffs seek to show prejudice and bias. It is proper to ask what percent of a physician’s practice involves examining, diagnosing, and/or testifying for defendants, and what he is paid for such work; however, a showing of bias or prejudice does not require that the details of those medical reports be disclosed. The scope of discovery under K.S.A. 1987 Supp. 60-226(b) contemplates the full disclosure of the expert witness’ opinion and the facts and basis for that opinion. It does not contemplate the discovery of the medical records of persons not a party to the lawsuit for the sole purpose of obtaining evidence which may show a bias or prejudice.
In the present case, the sole purpose for the discovery was to obtain evidence which could impeach Dr. Lichtor’s character for veracity, even though the evidence subpoenaed was clearly inadmissible for that purpose, or to support the exclusion of Dr. Lichtor as a witness. We do not find that the information sought “appears reasonably calculated to lead to the discovery of admissible evidence.” Thus, the subpoena of these records falls outside the scope of discovery permitted by K.S.A. 1987 Supp. 60-226(b). In addition, as noted above, the plaintiffs could have obtained the evidence sought through other less obtrusive means, such as by written interrogatories or deposition.
We next turn to the central issue in this appeal, which is whether the district court properly excluded the testimony of Dr. Lichtor as an expert witness. In excluding Dr. Lichtor’s testimony, the district court relied directly upon the findings of Judge Chipman in Barnett v. Drees. Therefore, a discussion of the propriety of the exclusion of Dr. Lichtor as a witness in turn depends upon the correctness of the findings stated in that case.
Judge Chipman’s decision in Barnett v. Drees addressed three separate points. First, the court concluded that Dr. Lichtor would not be permitted to testify as an expert witness “because he is not competent to testify.” The court based its conclusion upon numerous occasions in which Dr. Lichtor’s veracity was under question. Second, Judge Chipman also found that Dr. Lichtor did not possess the necessary qualifications to render psychological evaluations. Specifically, the court found that Dr. Lichtor was not qualified to diagnose a person as suffering from “Abnormal Sick Behavior for Personal Gain.” Finally, Judge Chipman noted the failure of Dr. Lichtor to abide by orders of the court in prior litigation. The present issue revolves around the first, and apparently the main, basis upon which Dr. Lichtor was excluded as a witness: the conclusion that Dr. Lichtor had often violated his oath by making untruthful statements.
Although the district court stated in Barnett v. Drees that it was not basing its ruling upon “a decision about Dr. Lichtor’s credibility,” a review of the court’s decision indicates that the primary basis for the exclusion of Dr. Lichtor as a witness was the numerous occasions of alleged untruthfulness by Dr. Lichtor. The district court expressly stated that Dr. Lichtor was able to understand the meaning of his oath, but that the alleged prior instances of untruthfulness indicated that he was unable to abide by his oath. The court stated: “Dr. Lichtor understands the meaning of his oath as a witness, but, for his own reasons he is unable or unwilling to abide by that oath. Such a witness is not competent to testify.”
Every person is presumed competent to testify as a witness. The burden of establishing incompetency rests upon the challenger, and requires the demonstration of a statutory basis for the determination of incompetency. K.S.A. 60-407. State v. Thrasher, 233 Kan. 1016, 666 P.2d 722 (1983); State v. Poulos, 196 Kan. 253, 411 P.2d 694, cert. denied 385 U.S. 827 (1966). K.S.A. 60-417, which provides the basis upon which a person may be found incompetent to testify as a witness, states:
“Disqualification of witness; interpreters. A person is disqualified to be a witness if the judge finds that (a) the proposed witness is incapable of expressing himself or herself concerning the matter so as to be understood by the judge and jury either directly or through interpretation by one who can understand him or her, or (b) the proposed witness is incapable of understanding the duty of a witness to tell the truth. An interpreter is subject to all the provisions of this article relating to witnesses.”
In State v. Thrasher, we said:
“[I]n order for a witness to be disqualified, the trial court must be convinced the witness is incapable of expressing himself concerning the matter so as to be understood by the judge and jury, or is incapable of understanding the duty of a witness to tell the truth.” 233 Kan. at 1018.
In the present case, the district court made no finding that Dr. Lichtor was unable to express himself. In addition, the court expressly stated that Dr. Lichtor “understands the meaning of his oath as a witness.” The statutory requirements for competence have thus been satisfied and the conclusion of the district court in the present case that Dr. Lichtor was not competent to testify was in error. The rationale offered by the court in Barnett v. Drees that Dr. Lichtor was “unable or unwilling to abide” by his oath is not a test for witness competence sanctioned by statute and, therefore, is not a permissible basis for disqualifying Dr. Lichtor under K.S.A. 60-417. By the express findings of the district court, Dr. Lichtor satisfies the statutory requirements of competence expressed in K.S.A. 60-407 and 60-417.
Although the district court attempted to exclude Dr. Lichtor as a witness on the grounds of incompetence, the test for incompetence used by the court was not the test sanctioned either by statute or by the decisions of this court. Rather, the essence of the district court’s decision was that Dr. Lichtor should not be permitted to testify because he had made numerous untrue statements in the past. The position taken by the district court that prior false statements by a witness could serve as grounds for disqualification of the witness was rejected in State v. Smallwood, 223 Kan. 320, 574 P.2d 1361 (1978). In Smallwood, the appellant advocated a test of competence similar to that adopted in the present case.
“The appellant argues because Mr. Meeks lied under oath on several occasions prior to the trial, he was incapable of understanding his duty to tell the truth. This argument overlooks the purpose of K.S.A. 60-417(£>). That provision concerns whether a person is mentally and intellectually able to recognize the moral and legal duty of a witness to tell the truth. If Mr. Meeks previously lied as a witness, such conduct demonstrates a failure to comply with his duty to tell the truth rather than a failure to understand or recognize it. Moreover, the transcript reveals Mr. Meeks was questioned concerning his concept of the truth and his duty as a witness to tell the truth. He clearly understood his duty as a witness.” 223 Kan. at 327.
A potential witness is not disqualified under K.S.A. 60-417 because of prior instances of falsehood. Even assuming the district court was correct in its assessment of the prior statements made by Dr. Lichtor, this assessment could not serve as a basis for disqualifying Dr. Lichtor as a witness.
In addition, the district court in Barnett v. Drees and therefore the district court in the present case by adopting the findings of that court erred in utilizing evidence of specific instances of Dr. Lichtor’s prior conduct to effectively conclude that Dr. Lichtor was not a credible witness. Despite the statements made by the district court in Barnett v. Drees that it was not basing its decision upon the credibility of the witness, the entire thrust of the court’s decision was based upon its conclusion that Dr. Lichtor’s alleged lack of veracity on prior occasions invalidated his competency to testify as a witness. The district court stated that its conclusion that Dr. Lichtor was not competent to testify was “based upon repeated and persistent instances in which Dr. Lichtor has testified untruthfully.” (Emphasis added.) The veracity, or lack thereof, of Dr. Lichtor on specific prior occasions was, therefore, the core of the district court’s decision. K.S.A. 60-422 provides in part: “As affecting the credibility of a witness . . . (d) evidence of specific instances of his or her conduct relevant only as tending to prove a trait of his or her character, shall be inadmissible.”
This issue was also addressed in Smallwood, where the appellant contended that he should be permitted to cross-examine a witness regarding prior false statements of the witness. The appellant argued that the trial court should have permitted the cross-examination because it was relevant to the witness’ lack of veracity. 223 Kan. at 326. We rejected the argument, stating:
“This claim lacks merit. The testimony was inadmissible as specific instances of conduct relevant only as tending to prove a trait of character.
“Thus, a witness’s credibility may be attacked by showing the witness has character traits for dishonesty or lack of veracity, but those traits may only be proven by opinion testimony or evidence of reputation. Those traits may not be proven by specific instances of the witness’s past conduct. [Citations omitted.] Since the two episodes concerning Mr. Meeks’ prior testimony were nothing more than prior specific instances of his conduct, the trial court properly prevented the appellant from inquiring about them on cross-examination by applying the exclusionary rule provided in K.S.A. 60-422(d).” 223 Kan. at 326-27.
The final finding by the Barnett v. Drees court, that Dr. Lichtor, on prior occasions, had disregarded directions from the trial court as to permissible subjects for testimony, did not independently justify the exclusion of Dr. Lichtor’s testimony. The record fails to demonstrate that less stringent methods of limiting the extent of Dr. Lichtor’s testimony would not be satisfactory. The district court possesses the power to limit a witness’ testimony to admissible evidence; in addition, K.S.A. 60-237(b)(2) provides the court with authority to apply a variety of sanctions for the failure to comply with the discovery orders of the court. The court also possesses inherent discretionary power to punish the contemptuous disregard of its orders. Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 673 P.2d 1126 (1983); see K.S.A. 20-1204a(a).
We, therefore, find that the district court’s order excluding Dr. Lichtor as a witness was improper for two reasons. First, as discussed above, it utilized a standard for determining competence which is not sanctioned by statute. In addition, in applying that incorrect standard for the determination of competency, the district court relied upon evidence of specific instances of conduct, which is prohibited by K.S.A. 60-422(d). We, therefore, conclude that the district court committed error by prohibiting Dr. Lichtor from testifying as a witness.
The final issue raised by the defendants is whether the district court erred in taking judicial notice of the findings in Barnett v. Drees. While the district court might properly, based upon the evidence before it, permit Dr. Lichtor to testify subject to orders limiting his testimony to matters within the scope of his expertise, the issue remains whether the district court in the present case had the ability to take judicial notice of the findings of the district court in Barnett v. Drees.
The scope of judicial notice is defined by K.S.A. 60-409. Nothing within the statute authorizes a court to take judicial notice of the contested factual findings reached by another court. While a court may take judicial notice of tjie outcome of another proceeding, where that ultimate outcome possesses an independent legal significance (see State v. Lowe, 238 Kan. 755, 715 P.2d 404 [1986]), there is no authority for a trial court to take judicial notice of the factual conclusions reached in another court in another case.
Not only is there a lack of direct authority for the district court’s action in taking judicial notice of the Barnett v. Drees findings, but also the taking of judicial notice in the present case effectively contravenes Kansas law relating to collateral estoppel. In McDermott v. Kansas Public Serv. Co., 238 Kan. 462, 712 P.2d 1199 (1986), we held that collateral estoppel, or issue preclusion, required mutuality; i.e., the issue subject to preclusion must have arisen in a prior case in which both of the current parties were adequately represented. This court rejected the argument advanced by the appellee in McDermott that offensive collateral estoppel should be permitted so long as the party against whom collateral estoppel is sought remains the same in both cases. The court noted that, while a number of jurisdictions had discarded the requirement of an identity of both parties, the requirement of mutuality nonetheless remained the majority rule and was expressly endorsed as a requirement for collateral estoppel under Kansas law.
Thus, this court, in McDermott, rejected the argument that offensive collateral estoppel should be permitted so long as the defendant remains the same in both actions. Instead, the court adhered to the rule that collateral estoppel requires both the plaintiff and the defendant to have been parties to the prior litigation. In the present case, however, the effect of the district court’s taking judicial notice of the findings reached in Barnett v. Drees precludes defendant Bordman from contesting the issue of the admissibility of Dr. Lichtor’s testimony, even though neither the plaintiffs nor the defendants in the present action were parties in Barnett v. Drees.
Finally, Dr. Lichtor, citing several cases, argues that the taking of judicial notice in the present case deprives him of the due process of law. It is unnecessary to address the due process argument advanced by Dr. Lichtor based upon our conclusion that the taking of judicial notice in the present case was error. This conclusion is independent of Dr. Lichtor’s due process argument and the issue is, therefore, not essential to a resolution of the present case. In addition, Dr. Lichtor has no interest in the issues being litigated between the parties in the present case nor does he have standing as an intervening party. We further note that Dr. Lichtor was presented with an opportunity to be heard with regard to the allegations made by the plaintiffs. The district court, during the course of the March 25 hearing, expressly stated that it would give all parties “an opportunity to present any additional testimony or evidence that you would like regarding [Dr. Lichtor’s] qualifications to testify in this case.” The record fails to reveal whether Dr. Lichtor took advantage of that opportunity.
The judgment of the district court is reversed. | [
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The opinion of the court was delivered by
Prager, C J.:
This is an appeal by the State from an order of the district court dismissing a complaint which charged the defendant, Dan Winkel, with the unlawful sale of cereal malt beverage to a minor in violation of K.S.A. 1987 Supp. 21-3610a. The dismissal occurred during the defendant’s jury trial following both the empaneling of a jury and the testimony of Jon Peffly, the State’s only actual witness to the sale of beer. Defense counsel in his opening statement did not deny that the sale occurred.
The facts in the case were not greatly in dispute and essentially are as follows: On February 25, 1987, Jon Peffly was a reserve police officer who testified that he was in training taking classes at the Beloit Vo-Tech School. While attending the school, he was associated with law enforcement as a reserve officer for the City of Beloit and also for Mitchell County. He testified that he was in a training program and would go around with police officers as part of his training.
In February 1987, the law enforcement officers in Mitchell County engaged in a program for the enforcement of the Kansas liquor laws. Peffly took part in a police investigation of liquor sales to minors. At that time Peffly was only 19 years of age. As part of the program, Peffly was driven to the Lumberyard Lounge in Glen Elder where he purchased beer from an employee, Dan Winkel. Winkel was charged with unlawful sale of cereal malt beverage to a minor and his trial began on December 30,1987. Peffly was called to the stand and testified that he was a part-time police officer in training and that he was 19 years of age at the time he purchased the beer. Defense counsel then objected, basing his argument on certain provisions of the Kansas Law Enforcement Training Act (K.S.A. 74-5602 et seq).
In K.S.A. 1987 Supp. 74-5602, a police officer or law enforcement officer is defined as “a full-time or part-time salaried officer or employee of the state, a county or a city, whose duties include the prevention or detection of crime.” K.S.A. 74-5618 provides: “Every police officer or law enforcement officer, as defined by K.S.A. 74-5602 . . . , shall have attained at least 21 years of age.”
Other sections of the Kansas Law Enforcement Training Act provide for the training of law enforcement officers at training centers or at a certified state or local law enforcement agency. K.S.A. 1987 Supp. 74-5605 requires that an applicant for admission to a course conducted by a training center must be a United States citizen, not have a criminal record, must be the holder of a high school diploma or its equivalent, must be of good moral character, must have completed a psychological test approved by the commission, and must be free of any physical or mental deficiencies. There is no requirement under that section that a person engaged in a training course be 21 years of age. K.S.A. 74-5616 requires that a person to be eligible for an appointment as a permanent police officer or law enforcement officer must be at least 21 years of age and have successfully completed or satisfied the training requirements of the statute.
When the issue was raised at the trial, the trial court concluded that Peffly could not testify for the State about any information that he acquired while serving as a part of the police investigation. The court stated on the record that Peffly could have testified about the beer purchase if he had not already told the jury that he was a police officer. The court then stated: “But the fact is that he has already testified that he was an officer on an investigative function and on an investigative mission for the law enforcement agencies. And he cannot be an officer. And I don’t think testimony that he has acquired in that capacity is proper testimony to be placed before a jury for any purpose.”
The judge then declared a recess and, when he returned to the courtroom, told the jury:
“Ladies and Gentlemen of the Jury, we have had a most unique turn of events. In light of the fact that this reserve officer was nineteen years of age at that time, Kansas law prohibits the hiring of any officer who is not twenty-one years of age. An officer who is nineteen is obviously under twenty-one. And therefore doing work in an investigative capacity as an officer he cannot do that. If he cannot do it, he then cannot give evidence about what he has done. Therefore, there is no choice upon this Court except to dismiss this complaint and to discharge the Defendant.”
The trial court then dismissed the complaint and the State brought this appeal. This case is essentially an appeal by the State on a question reserved. The defendant had been placed in jeopardy at the time the complaint was dismissed by the trial court.
In this case, the evidence was undisputed that the defendant was a trainee who had neither applied for nor received a certification from the Kansas law enforcement training commission. He was simply in training and the Kansas statutes do not require a trainee to have attained the age of 21 years during his training course. That issue, however, need not be determined in this case.
The real issue presented on appeal is whether or not the trial court erred in ruling that Peffly could not testify, assuming he was acting as a police officer and not 21 at the time defendant sold him beer. A determination of that issue will dispose of this appeal. We have concluded that the appeal of the State should be sustained, because the trial court erred in ruling that Peffly could not testify as to his purchase of beer from the defendant.
The primary statute covering the qualifications of a witness to testify is K.S.A. 60-407, which provides:
“60-407. General abolition of disqualifications and privileges of witnesses, and of exclusionary rules. Except as otherwise provided by statute (a) every person is qualified to be a witness, and (b) no person has a privilege to refuse to be a witness, and (e) no person is disqualified to testify to any matter, and (d) no person has a privilege to refuse to disclose any matter or to produce any object or writing, and (e) no person has a privilege that another shall not be a witness or shall not disclose any matter or shall not produce any object or writing, and (f) all relevant evidence is admissible.”
That statute establishes a presumption that a witness is competent to testify.
Under K.S.A. 60-417, a person is disqualified as a witness only for two reasons.
“60-417. Disqualifications of witness; interpreters. A person is disqualified to be a witness if the judge finds that (a) the proposed witness is incapable of expressing himself or herself concerning the matter so as to be understood by the judge and jury either directly or through interpretation by one who can understand him or her, or (b) the proposed witness is incapable of understanding the duty of a witness to tell the truth. An interpreter is subject to all the provisions of this article relating to witnesses.”
Age alone is not a valid criteria for disqualification. State v. Thrasher, 233 Kan. 1016, 1018, 666 P.2d 722 (1983). In this case, Peffly was not an incompetent witness as that term is used in the statutes. There was no suggestion that he was incapable of communicating. Clearly, his testimony was relevant, because, without it, there was little evidence that the defendant sold cereal malt beverage to a minor. As one who bought beer from the defendant, Peffly obviously had personal knowledge of the sale. Assuming for the sake of argument that Peffly was not acting legally because of his age, it is illogical to conclude that Peffly’s lack of age should prevent him from testifying. People are allowed to testify every day about their illegal activities, often in return for immunity or lenient sentences.
We hold that the trial court erred in excluding Peffly’s testimony at the trial, and that the trial court further erred in dismissing the complaint. The appeal of the State is sustained. | [
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The opinion of the court was delivered by
Rosen, J.:
This is a wrongful death action brought against the City of Wichita, its chief of police, and several police officers for the death of Amy Robbins, who died as a result of a collision between the vehicle she was driving and a vehicle being pursued by Wichita police officers. Amy’s husband, Gabriel Robbins, filed the lawsuit and now appeals the district court’s decision to grant the defendants’ motion for summary judgment on all of his claims.
FACTS
The tragic events that led up to Amy Robbins’ death began at approximately 11p.m. on October 5,2004, when the Wichita Police Department received a 911 call from Sierra Roach. Sierra reported that her step-father, Jeffrey Drechsler, was causing a disturbance and had “messed up [the] house really badly.” Drechsler had been drinking all evening and had locked Sierra out of the house. When Sierra returned to the house, she had a verbal altercation with Drechsler. Sierra’s mother, Sharolyn Roach, stepped in between Sierra and Drechsler, and Drechsler started pushing both Sierra and Sharolyn. When Sierra called 911, Drechsler went into the attached garage of the residence. Sierra and Sharolyn then locked Drechsler in the garage. While Sierra was talking to the 911 op erator, Drechsler began breaking in the door from the garage to the house with an ax.
The 911 operator relayed Sierra’s address near Bayley and Waverly Streets in Wichita to the police dispatcher, who assigned Officer Brent Woodard to respond to the domestic violence call. While Officer Woodard was en route to Sierra’s house, Drechsler broke through the door with the ax. Sierra escaped out the front door with the phone and continued to talk to the 911 operator. Sharolyn, however, did not get out of the house, and Drechsler began chasing her with the ax. Drechsler pinned Sharolyn on a bed with his hand on her throat and the ax over her head. Drechsler then let Sharolyn off the bed and returned to the garage. Sharolyn ran out the door and hid outside the house. From their hiding places, Sharolyn and Sierra observed Drechsler break the windows in Sharolyn’s car.
Before Officer Woodard reached Sierra’s house, the dispatcher gave him a description of Drechsler and Drechsler’s truck. The dispatcher further advised Officer Woodard that Drechsler had an ax. Officer Woodard asked the dispatcher for more information about what Drechsler was doing with the ax. The dispatcher replied that Drechsler was breaking in the door and further advised Officer Woodard that Sharolyn was in the house with Drechsler.
When Officer Woodard arrived at Sierra’s house at 11:04 p.m., he parked two or three houses away on Waverly Street and approached the house on foot for safety reasons. While he was walking up to the house, he observed Drechsler get in the truck and leave. Officer Woodard could not see if Drechsler still had the ax. Officer Woodard returned to his vehicle and drove up behind Drechsler as Drechsler reached the intersection of Waverly and Lincoln. Officer Woodard activated his overhead lights to signal Drechsler to stop. Drechsler did not stop and proceeded to turn right onto eastbound Lincoln, driving with his headlights off. Officer Woodard activated his siren and began to pursue Drechsler.
Officer Pryor and her partner Officer Cornish were about a half block away when Drechsler drove away from the house. A few moments later, they observed Officer Woodard pursuing Drechsler with his lights and siren operating. Officer Pryor activated her fights and siren and began pursuing Drechsler behind Officer Woodard. Officer Pryer was approximately 3 to 4 car-lengths behind Officer Woodard.
Traffic was hght on Lincoln. Although Drechsler did not accelerate rapidly, he drove through a green fight at the intersection of Lincoln and Woodlawn going approximately 50 miles per hour. Drechsler then accelerated to approximately 70 miles per hour on Lincoln, with Officer Woodard about 75 to 100 yards behind him.
When Drechsler reached the intersection of Lincoln and Rock Road, the traffic fight was red. Drechsler ignored the fight and proceeded into the intersection, decelerating slightly so he could turn right and go southbound on Rock Road toward Harry Street. As Drechsler made the turn, he traveled across the two southbound lanes, through the left tura lane, and into the northbound lanes of Rock Road. After driving southbound in the northbound lanes of Rock Road for approximately one-half block to one block, Drechsler returned to the southbound lanes and began accelerating to 65 or 70 miles per hour. Officers Woodard and Pryor slowed down at the intersection of Lincoln and Rock Road to clear the intersection safely. Although there was no other traffic at the intersection, traffic on Rock Road was a little heavier than that on Lincoln. Officers Woodard and Pryor accelerated after the intersection to speeds of 65 to 70 miles per hour. Officer Woodard continued to pursue Drechsler down Rock Road, remaining about 75 to 100 yards behind Drechsler.
Officer Jackson heard Officer Woodard reporting the pursuit on the radio while he was driving on Harry near Rock Road. Planning to put spikes in the road to stop Drechsler’s truck, Officer Jackson parked near the intersection of Harry and Rock Road and activated Iris overhead fights. However, Officer Jackson was unable to deploy the spikes because he could not locate any spikes in his vehicle. As Officer Jackson returned to his patrol car, he observed Drechsler followed by Officers Woodard and Pryor proceeding through tire intersection of Harry and Rock Road with a green fight.
Officer Tucker was also in the vicinity of Harry and Rock Road and overheard Officer Woodard reporting the pursuit on the radio. Officer Tucker observed Officer Jackson at the intersection of Harry and Rock Road, so he decided to turn south onto Rock Road and head toward the intersection of Rock Road and Pawnee to block traffic on Pawnee. When Officer Tucker turned south onto Rock Road, Drechsler was approximately one-half block behind him. Officer Tucker did not activate his lights or siren and did not exceed the speed limit as he was driving toward the intersection of Rock Road and Pawnee. Prior to reaching Pawnee, Officer Tucker could see that Drechsler was going to overtake him. Officer Tucker pulled over to the right side of the road near the curb to prevent Drechsler from thinking Officer Tucker was trying to block his path and force him into oncoming traffic.
A few seconds before Drechsler reached the intersection of Rock Road and Pawnee, Sergeant Tronsgard got on the radio and asked the dispatcher to call Sierra to determine if anyone was injured. Sergeant Tronsgard stated later that if there were no injuries he would have terminated the chase and issued a ticket.
However, 10 seconds later, before Sergeant Tronsgard could ascertain whether there were any injuries at Sierra’s house, Drechsler broadsided the car driven by Amy Robbins at the intersection of Rock Road and Pawnee. Amy’s husband, Gabriel Robbins, was in the car behind Amy’s and observed the accident. Both Drechsler and Amy died as a result of the accident. The approximate time lapse from when Officer Woodard began following Drechsler to the fatal crash was a little over 2 minutes.
Robbins filed a wrongful death action against the city of Wichita, the chief of police, and the police officers involved in the pursuit (the defendants). The defendants filed a motion for summary judgment. The district court granted the motion for summary judgment, concluding that the defendants did not owe a duty of care to Amy. Robbins appealed to the Court of Appeals, and the matter was transferred to this court on Robbins’ motion to transfer pursuant to K.S.A. 20-3017.
ANALYSIS
When reviewing a motion for summary judgment, an appellate court applies the same standard as the district court.
“ ‘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 parly against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]’ ” Sail v. T’s, Inc., 281 Kan. 1355, 1360, 136 P.3d 471 (2006) (quoting Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 [2002]).
Robbins argues that the district court erred when it concluded that the defendants did not owe a duty of care to Amy. To establish a claim for wrongful death based on negligence, a plaintiff must prove the existence of a duty, breach of the duty, injury, and a causal connection between the breach of the duty and the injury suffered. Reynolds v. Kansas Dept. of Transportation, 273 Kan. 261, 266, 43 P.3d 799 (2002). Whether there is a duty is a question of law, but whether the duty has been breached is a question of fact. Appellate courts review the question of whether a duty exists using a de novo standard. South v. McCarter, 280 Kan. 85, 94, 119 P.3d 1 (2005).
Thornton v. Shore, 233 Kan. 737, 753, 666 P.2d 655 (1983), is on point with this case. In Thornton, a University of Kansas police officer observed a motorist driving 15 miles per hour over the speed limit at about 1:30 in the morning. The officer activated his emergency lights and pulled up behind the vehicle to stop it. Instead of stopping, the driver sped up. The officer turned on his siren and pursued the vehicle. During the pursuit, the driver of the fleeing vehicle exceeded the speed limit, ran stop signs, and drove recklessly. The pursuit ended when the driver ran a stop sign and collided with the decedent’s car. The plaintiff claimed that the officer breached the duty of care required by K.S.A. 8-1506(d), which exempts emergency vehicles from basic traffic laws but requires drivers of emergency vehicles “to drive with due regard for the safety of all persons.” 233 Kan. at 741. Affirming the district court’s decision to grant the defendants’ motion for summaiy judgment, the Thornton court held that the decision to pursue or continue a pursuit is not included in the statutory mandate to drive with due regard. 233 Kan. at 753. The Thornton court stated:
‘We conclude the ‘due care’ requirement of K.S.A. 8~1506(d) applies only to the police officer’s physical operation of his own vehicle and not to the decision to chase or continue to chase a law violator. If the officer is in compliance with the statute in the operation of his own vehicle, he is entitled to the privileges and immunities afforded by the statute and is not vicariously liable or responsible for the reckless or negligent acts of the law violator he is pursuing. The officer is not the insurer of the fleeing law violator. The officer in such circumstances has breached no duty owed to persons injured by the fleeing violator’s own negligence or wanton conduct and, accordingly, as a matter of law the officer has not committed a tort upon such injured persons. There being no tort, as a matter of law, reference to the Tort Claims Act (K.S.A. 1982 Supp. 75-6101 et seq.) is rendered unnecessary.” 233 Kan. at 753.
Like the plaintiff in Thornton, Robbins claims that the officers’ decision to pursue Drechsler was negligent. Robbins also claims that the officers executed the pursuit in a negligent manner in violation of the Wichita Police Department pursuit policies. Although Thornton is on point, Robbins asks us to review and overturn it. Robbins raises three arguments in support of overturning Thornton. First, the Thornton decision does not adequately address K.S.A. 8-1506. Second, the Thornton decision is no longer in accord with the majority of jurisdictions addressing the issue. Third, the policy considerations expressed in Thornton are outdated and unfounded. Analyzing the first issue requires a review of a variety of differing interpretations from multiple jurisdictions; thus, we will address the first two issues as one.
K. S.A. 8-1506 and Majority and Minority Court Interpretations
Robbins asserts that K.S.A. 8-1506 imposes a duly on the operators of emergency vehicles to drive with “due regard for the safety of all persons.” According to Robbins, Thornton ignores this duty. Robbins relies on the dissenting opinion in Thornton, which stated:
“[T]he privileges provided in K.S.A. 8-1506 are limited. To avail oneself of the privileges a driver of an authorized emergency vehicle must give warning with flashing lights and siren. Even with the warnings, however, tire driver must operate the vehicle with due regard for the safety of all persons. The majority holds whenever a high speed chase results in a collision between the person pursued and a third party, die pursuing officer has, as a matter of law, met the ‘due regard’ standard of K.S.A. 8-1506(d) by merely turning on the warning signals. I disagree. Due regard and due care are questions of fact and should remain so. There are numerous scenarios where an accident is caused by one not a party to the collision. It is a question of causation.” 233 Kan. 754 (Herd, J. dissenting).
K.S.A. 8-1506 exempts authorized emergency vehicles from traffic laws when they are involved in an emergency situation, providing:
“(a) The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this section, but subject to the conditions herein stated.
“(b) The driver of an authorized emergency vehicle may:
(1) Park or stand, irrespective of the provisions of this article;
(2) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;
(3) Exceed the maximum speed limits so long as such driver does not endanger life or property;
(4) Disregard regulations governing direction of movement or turning in specified directions; and
(5) Proceed through toll booths on roads or bridges without stopping for payment of tolls, but only after slowing down as may be necessary for safe operation and the picking up or returning of toll cards.
“(c) The exemptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of an audible signal meeting the requirements of K.S.A. 8-1738 and visual signals meeting the requirements of K.S.A. 8-1720, except that an authorized emergency vehicle operated as a police vehicle need not be equipped with or display a red light visible from in front of the vehicle.
“(d) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of reckless disregard for tire safety of others.” (Emphasis added.)
After carefully reviewing the Thornton decision, we believe that Robbins has mischaracterized the Thornton holding. The Thornton court dissected the plaintiff s claim into two parts: the decision to pursue and the physical operation of the emergency vehicle. The Thornton court recognized the duty to “drive with due regard for the safety of all others” imposed by K.S.A. 8-1506 but limited the duty to the physical operation of the emergency vehicle. The Thornton court specifically excluded the decision to pursue from the duty, stating that the operator of the emergency vehicle is not “responsible for the reckless or negligent acts of the law violator he is pursuing.” 233 Kan. at 753. Although the Thornton court recognized a duty of care in regard to the physical operation of the emergency vehicle, it found that, based on the uncontroverted facts, the officer operated his emergency vehicle in compliance with K.S.A. 8-1506. 233 Kan. at 753. Thus, there were no facts to establish that the officer breached the duty of care.
Contrary to Robbins’ argument, Thornton stands for the proposition that K.S.A. 8-1506 imposes a duty on the operator of any emergency vehicle to drive with due regard for the safety of all persons. See State v. Simpson, 11 Kan. App. 2d 666, 732 P.2d 788 (1987) (affirming a police officer’s convictions for reckless driving and passing in a no-passing zone even though the officer was pursuing a vehicle that was attempting to elude him). Appellate courts from a large number of other states with statutes similar to K.S.A. 8-1506 have also interpreted their statutes to impose a duty of care on law enforcement officers involved in a vehicle pursuit. See, e.g., Estate of Aten v. City of Tuscon, 169 Ariz. 147, 817 P.2d 951 (1991); City of Caddo Valley v. George, 340 Ark. 203, 9 S.W.3d 481 (2000); Pearson v. City of Atlanta, 231 Ga. App. 96, 499 S.E.2d 89 (1998); Arnold v. Village of Chicago Ridge, 181 Ill. App. 3d 778, 537 N.E.2d 823 (1989); Robinson v. City of Detroit, 462 Mich. 439, 613 N.W.2d 307 (2000); Eklund v. Trost, 335 Mont. 112, 151 P.3d 870 (2006); Mitchell v. State, 108 A.D.2d 1033, 486 N.Y.S.2d 97 (1985); Parish v. Hill, 350 N.C. 231, 513 S.E.2d 547 (1999); Jones v. Ahlberg, 489 N.W.2d 576 (N.D. 1992); Kelly v. City of Tulsa, 791 P.2d 826 (Okla. App. 1990); Lowrimore v. Dimmitt, 310 Or. 291, 797 P.2d 1027 (1990); Seide v. State, 875 A.2d 1259 (R.I. 2005); Clark v. South Carolina Dept. Of Public Safety, 353 S.C. 291, 578 S.E.2d 16 (2003); Haynes v. Hamilton County, 883 S.W.2d 606 (Tenn. 1994); Travis v. City of Mesquite, 830 S.W.2d 94 (Tex. 1992); Day v. State ex rel. D. of Public Safety, 980 P.2d 1171 (Utah 1999); Colby v. Boyden, 241 Va. 125, 133, 400 S.E.2d 184 (1991); Mason v Bitton, 85 Wash. 2d 321, 534 P.2d 1360 (1975); Sergent v. City of Charleston, 209 W.Va. 437, 549 S.E.2d 311 (2001); Peak v. Ratliff, 185 W. Va. 548, 408 S.E.2d 300 (1991); Estate of Cavanaugh v. Andrade, 202 Wis. 2d 290, 550 N.W.2d 103 (1996).
Three states are in accord with Thornton, holding that the decision to pursue or continue pursuing is not included in the operation of the vehicle and thus not subject to the duty of due regard. See Robinson v. City of Detroit, 462 Mich, at 458 (overruling Fiser v. Ann Arbor, 417 Mich. 461, 339 N.W.2d 413 [1983], which held that a jury could find that high speed of the pursuit caused the fleeing driver to lose control, and Rogers v. Detroit, 457 Mich. 125, 579 N.W.2d 840 [1998], which held that a municipality could be liable for its officers decision to pursue or continue a pursuit); Kelly v. City of Tulsa, 791 P.2d at 828 (stating that the duty cannot be imposed if there is no evidence that the emergency vehicle was being driven in an unsafe manner); Estate of Cavanaugh v. Andrade, 202 Wis. 2d at 316-17 (noting that an officer could be negligent “for failing to physically operate his or her vehicle with due regard for the safety of others”).
Majority view
Robbins further argues that Thornton no longer reflects the majority view among other jurisdictions that have addressed this issue. Robbins relies on the Tennessee Supreme Court’s decision in Haynes v. Hamilton County, in which the court overruled a prior decision that had limited liability to the physical operation of the vehicle. 883 S.W.2d at 610-11 (overruling Kennedy v. City of Spring City, 780 S.W.2d 164 [Tenn. 1989]). Interpreting a statute similar to K.S.A. 8-1506, the Haynes court’s decision turned on additional statutory language not included in K.S.A. 8-1506. The additional language provided immunity for police officers and their employers “ ‘unless the conduct of the law enforcement personnel was negligent and such negligence was the proximate cause of the injuries to the third party.’ ” 883 S.W.2d at 609 (quoting Tenn. Code Ann. § 55-8-108[e]). The Haynes court held that the term “conduct” should be broadly interpreted to include both the physical operation of the vehicle and the decision to commence or continue a pursuit when a reasonable officer would not do so. 883 S.W.2d at 610. In determining whether the officer s decision was reasonable, the Haynes court suggested weighing the risk to innocent third parties and the interest in apprehending suspects. 883 S.W.2d at 611. The Haynes court adopted the reasoning of a decision by the Maryland Supreme Court:
“ ‘Negligent operation of a car is not limited to the negligent manipulation of the gas pedal, steering wheel, or brake pedal, such as involved in speeding, failure to pay attention to what may be in front of the vehicle, failure to apply the brakes, etc. A decision to operate or continue operating the car, when a reasonable person would not do so, clearly can be ‘negligent operation.’ For example, if one decides to operate or to continue to operate a motor vehicle when he is dizzy or otherwise ill, he may be guilty of negligent operation. A decision to operate a car or to continue operating a car knowing that the brakes are faulty may obviously constitute the ‘negligent operation’ of the vehicle.” 883 S.W.2d at 610 (quoting Boyer v. State, 323 Md. 558, 594 A.2d 121, 129 [1991]).
Three states are in accord with Haynes, holding that the decision to pursue or continue a pursuit is included in the operation of the vehicle. See Boyer v. State, 323 Md. at 575 (applying a gross negligence standard based on the Maryland Tort Claims Act and concluding as a matter of law that the evidence was insufficient to establish gross negligence); Aiken v. Borough of Blawnox, 747 A.2d 1282 (Pa. Commw. 2000) (reversing the trial court’s decision granting summary judgment); Travis v. City of Mesquite, 830 S.W.2d at 99 (stating that “[t]he decision to initiate or continue pursuit may be negligent when the heightened risk of injury to third parties is unreasonable in relation to the interest in apprehending suspects”).
We are persuaded by the reasoning of the Haynes and Boyer courts in refusing to distinguish between the decision to pursue and continue the pursuit from the method of pursuing. The language of K.S.A. 8-1506 requires the drivers of emergency vehicles to “drive with due regard for the safety of all persons.” We believe the act of driving involves both the mental and physical components. Unlike the Thornton court, we are unable to distinguish between the decision to pursue and the method of pursuing. Thus, we overrule that portion of the Thornton decision that exempts the decision to pursue and continue the pursuit from the duty found in K.S.A. 8-1506.
While we agree with the Haynes court’s broader construction of the term operation to include the decision to pursue and continue the pursuit, we do not agree with the standard of care it applies. The Haynes court applied an ordinary negligence standard. 883 S.W.2d at 610. We note that some other jurisdictions apply the same ordinary negligence standard of care. See, e.g., Estate of Aten v. City of Tuscon, 169 Ariz. 147, 817 P.2d 951 (1991) (reversing summary judgment for City); City of Caddo Valley v. George, 340 Ark. 203, 9 S.W.3d 481 (2000) (holding City liable to the extent of its insurance); City of Sacramento v. Superior Court, 131 Cal. App. 3d 395, 182 Cal. Rptr. 443 (1982) (noting that the evidence tended to show that the officer was not negligent for failing to warn other motorists with his fights and siren but remanding for trial because the plaintiff presented some facts that might warrant a contrary finding); Tetro v. Stratford, 189 Conn. 601, 611 n.6, 458 A.2d 5 (1983) (affirming a verdict in favor of the plaintiff and noting that there was “no occasion to consider the extent to which formulation of a duty of care should take into account, as one of the relevant circumstances, the fact that police officers are responding to an emergency”); City of Pinellas Park v. Brown, 604 So. 2d 1222 (Fla. 1992) (holding that police, like everyone else, have a duty to lessen the risk or take precautions to protect others when their conduct creates a foreseeable “zone of risk”); Brooks v. Lundeen, 49 Ill. App. 3d 1, 364 N.E.2d 423 (1977) (applying an ordinary care standard to officers who set up a roadblock and failed to warn decedent about an approaching highspeed chase); Eklund v. Trost, 335 Mont. 112, 151 P.3d 870 (2006) (reversing summary judgment and remanding for trial); Lee v. City of Omaha, 209 Neb. 345, 307 N.W.2d 800 (1981) (affirming the trial court’s finding of no liability after a bench trial); Jones v. Chieffo, 549 Pa. 46, 700 A.2d 417 (1997) (overruling Dickens v. Horner, 531 Pa. 127, 611 A.2d 693 [1992], which held that the officer and his employer were immune under the tort claims act because the accident was caused by the criminal acts of the fleeing motorist); Lowrimore v. Dimmitt, 310 Or. 291, 797 P.2d 1027 (1990) (reversing summary judgment in favor of defendants); Haynes v. Hamilton County, 883 S.W.2d at 610 (stating that a decision to operate a car when a reasonable person would not do so can be negligent operation); Travis v. City of Mesquite, 830 S.W.2d at 99; Day v. State of Utah, 980 P.2d at 1181 (stating that the test is whether the driver of the emergency vehicle acted reasonably and with appropriate care for the safety of others in light of the circumstances); Mason v. Bitton, 85 Wash. 2d at 325 (reasoning that the safety of others could be “jeopardized just as much by the negligence of the pursuer as it can by the negligence of the party being pursued”).
However, we interpret the language of K.S.A. 8-1506 to require a standard of care higher than mere negligence, obligating plaintiffs to establish more consequential, material, and wanton acts to support a breach of the standard of care. Many other jurisdictions that recognize a duty of care also impose a more restrictive standard of care, usually requiring reckless disregard or willful and wanton conduct. See, e.g., Estate of Warner v. United States, 754 F. Supp. 1271 (N.D. Ill. 1990) (applying an Illinois statute that exempts public employees from liability if the act or omission occurred in the execution or enforcement of any law unless the conduct was willful and wanton); State of West Virginia v. Fidelity & Cas. Co. of N. Y., 263 F. Supp. 88 (S.D. W. Va. 1967) (holding that officers had no liability absent a willful reckless disregard for life and property like chasing someone at high speeds through a crowded school zone); Madison v. Weldon, 446 So. 2d 21 (Ala. 1984) (reversing judgment in favor of plaintiffs and ordering a new trial because the trial court failed to inform the jury that the officers were entitled to a more liberal standard of care); Duggan v. District of Columbia, 884 A.2d 661 (D.C. 2005) (applying a statute requiring gross negligence for an emergency vehicle on an emergency run); District of Columbia v. Hawkins, 782 A.2d 293 (D.C. 2001) (holding that the officers’ conduct during a police chase met the statutory gross negligence standard); Cameron v. Lang, 274 Ga. 122, 549 S.E.2d 341 (2001) (applying a statute similar to K.S.A. 8-1506 which established a reckless disregard for proper law enforcement proce dures standard); Wade v. City of Chicago, 364 Ill. App. 3d 773, 780, 847 N.E.2d 631 (2006) (affirming jury verdict for defendants because the plaintiff failed to prove the officer’s conduct was willful and wanton as required by statute); Boyer v. State, 323 Md. at 578-79 (applying a statute that granted immunity to the officer as long as the conduct was without malice or gross negligence); City of Jackson v. Brister, 838 So. 2d 274 (Miss. 2003) (applying a statute immunizing officers from liability for any act or omission in the performance or execution of police duties unless the conduct was in reckless disregard of the safety and well-being of any person not involved in the criminal activity); Tice v. Cramer, 133 N.J. 347, 627 A.2d 1090 (1993) (applying statutes that immunized public employees and public entities from any liability caused by an escaping or escaped person unless the misconduct is willful); Mitchell v. State, 108 A.D.2d 1033, 486 N.Y.S.2d 97 (1985) (affirming the dismissal of plaintiff s claim because the officer’s conduct did not rise to the level of reckless disregard); Saarinen v. Kerr, 84 N.Y.2d 494, 644 N.E.2d 988, 620 N.Y.S.2d 297 (1994) (concluding that the uncontroverted facts did not demonstrate recklessness and stating that “use of the undemanding ordinary negligence test—or even the more ‘flexible’ common-law negligence test that is applied in emergency situations—would lead to judicial ‘second-guessing’ of the many split-second decisions that are made in the field under highly pressured conditions”); Parish v. Hill, 350 N.C. 231, 513 S.E.2d 547 (1999) (imposing a gross negligence standard and reasoning that if law enforcement officers are forbidden to pursue, more suspects will flee, creating risks for the general public); Jones v. Ahlberg, 489 N.W.2d 576 (N.D. 1992) (applying a gross negligence standard in a case involving injuries to the passenger in the fleeing vehicle); Whitfield v. Dayton, 167 Ohio App. 3d 172, 854 N.E.2d 532 (2006) (applying a statute that immunized law enforcement officers operating a vehicle in response to an emergency call unless the operation of the vehicle was willful or wanton) ; Seide v. State, 875 A.2d 1259 (R.I. 2005) (applying a reckless disregard standard but reversing the summaiy judgment decision in favor of defendants because the evidence could meet the standard); Clark v. Dept. Of Public Safety, 353 S.C. 291, 578 S.E.2d 16 (2003) (noting that the defendant conceded a duty and agreed to a gross negligence standard); Colby v. Boyden, 241 Va. 125, 400 S.E.2d 184 (1991) (concluding that the officer was entitled to sovereign immunity, so the plaintiff had to establish gross negligence to prevail); Sergent v. City of Charleston, 209 W. Va. 437, 549 S.E.2d 311 (2001) (requiring bad faith, malicious purpose, or a wanton or reckless manner and concluding that the facts were insufficient to establish that standard).
K.S.A. 8-1506(d) states that the privileges provided by the statute do not “protect the driver from the consequences of reckless disregard for the safety of others.” This language establishes “reckless disregard” as the standard of care for evaluating whether the driver of an emergency vehicle breached the duty to “drive with due regard for the safety of all persons.” K.S.A. 8-1506(d).
This court has previously interpreted the reckless disregard standard of care in K.S.A. 8-1506 as follows:
“The standards of care charged to the driver of an emergency vehicle and to the driver of an ordinary vehicle are not the same. The privileges and immunities granted to the driver of an emergency vehicle are not available to the driver of an ordinary vehicle. Notwithstanding the grant of immunities, the statutes require the driver of an emergency vehicle to drive with ‘due regard for the safety of all persons,’ and further provide the immunities do not protect the driver from the consequences of his ‘reckless disregard for the safety of others.’ Even though the use of the word ‘reckless’ suggests an element of wantonness, we believe it was the intent of the legislature to charge the driver of an emergency vehicle with due care under the existing facts and circumstances. The facts and circumstances include the privileges and immunities granted by statute. The test of due care (or due regard as used in the statute), as applied to the driver of an emergency vehicle, is whether with the privileges and immunities provided by statute he acted as a reasonably careful driver.” Shawnee Township Fire District v. Morgan, 221 Kan. 271, 278-79, 559 P.2d 1141 (1977).
We reject the Morgan court’s definition of reckless disregard as used in K.S.A. 8-1506. Instead, we believe the proper definition for reckless disregard is set forth in the PIK instruction for the crime of reckless driving, which defines reckless as “driving a vehicle under circumstances that show a realization of the imminence of danger to another person or the property of another where there is a conscious and unjustifiable disregard of that danger.” PIK Crim. 3d 70.04. This meaning of reckless is in accord with K.S.A. 21-3201(c), which defines reckless conduct as “conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger.” This definition is consistent with the long-recognized scale for measuring the severity of conduct required for a breach of a standard of care: Recklessness is a lesser standard of conduct than intentional conduct and requires running a risk substantially greater than the risk which makes the conduct merely negligent or careless. See Safeco Ins. Co. America v. Burr, 551 U.S. 47, 167 L. Ed. 2d 1045, 127 S. Ct. 2201 (2007) (citing, inter alia, Restatement [Second] of Torts § 500, p. 587 [1963-1964]).
Having established the existence of a duty, and applying the reckless disregard standard of care to the undisputed facts in this case, we conclude that Robbins has failed to establish a prima facie case of breach. When the plaintiff fails to establish a prima facie case of breach, a court may properly grant summary judgment. Welch v. Via Christi Health Partners, Inc., 281 Kan. 732, 768-69, 133 P.3d 122 (2006); Thornton, 233 Kan. at 753-54. Evidence sufficient for a prima facie case is that “evidence which, if left unexplained or uncontradicted, would be sufficient to carry the case to the jury and sustain a verdict in favor of the plaintiff on the issue it supports.” Baker v. City of Garden City, 240 Kan. 554, 557, 731 P.2d 278 (1987).
In this case, there is not sufficient evidence to support a prima facie finding that the officers had a conscious and unjustifiable disregard of the danger the pursuit caused for other motorists. Here, the officers were confronted with a drunken, violent, ax-wielding, fleeing offender whose very presence put whomever he encountered at serious risk of bodily injury. Clearly, the pursuit of Drechsler was justified and the officers’ were operating their vehicles in compliance with the safeguards required by K.S.A. 8-1506. To find otherwise would be implementing the use of judicial hindsight to the many split-second decisions that are made by law enforcement officers under the stress of protecting the lives and safety of the public and themselves. The facts failed to establish under a reckless disregard standard that the officers in this instance breached any duty owed to the plaintiffs. Accordingly, the district court properly granted summary judgment on behalf of the defendants.
Other jurisdictions have reached similar results when the plaintiff failed to establish that the defendants breached the applicable standard of care. Warner v. United States, 754 F. Supp. at 1279 (granting defendants’ motion for summary judgment because the facts were' insufficient to establish willful and wanton conduct); District of Columbia v. Walker, 689 A.2d 40 (D.C. 1997) (concluding as a matter of law that there was no evidence to support gross negligence); Bailey et al. v. L.W. Edison Foundation, 152 Ind. App. 460, 469, 284 N.E.2nd 141 (1972) (concluding as a matter of law that the pursuit was reasonable); City of Miami v. Home, 198 So. 2d 10 (Fla. 1967) (affirming summary judgment because the facts failed to demonstrate a lack of due care in the operation of the officer’s vehicle); Broome v. City of Columbia, 952 So. 2d 1050 (Miss. App. 2007) (affirming bench trial ruling that the City was entitled to sovereign immunity because plaintiff failed to establish reckless disregard); McCoy v. City of Florence, 949 So. 2d 69 (Miss. App. 2006) (affirming summary judgment because facts were insufficient to establish reckless disregard); Lee v. City of Omaha, 209 Neb. at 804 (affirming trial court’s conclusion that the officers were not negligent because that facts were insufficient to establish a breach of the duty of care); Mitchell v. State, 108 A.D.2d at 1034 (concluding that failure to operate lights and siren did not rise to the level of reckless disregard); Saarinen v. Kerr, 84 N.Y.2d at 503 (affirming summary judgment because the evidence failed to establish that the officer acted with reckless disregard); Eckard v. Smith, 166 N.C. App. 312, 320, 603 S.E.2d 134 (2004) (affirming summary judgment for lack of evidence to establish gross negligence); Sergent v. City of Charleston, 209 W. Va. 437, 444, 549 S.E.2d 311 (2001) (affirming summary judgment because the officers’ conduct was not negligent, wanton, or reckless); Peak v. Ratliff, 185 W. Va. 548, 408 S.E.2d 300 (1991) (affirming judgment notwithstanding the verdict on behalf of defendants because the plaintiffs failed to show reckless conduct or gross negligence).
Although we do not adopt the district court’s reasoning, we reach the same conclusion. When the district court reaches the correct result, its decision will be upheld even though die district court relied on the wrong ground or assigned erroneous reasons for its decision. Rose v. Via Christi Health System, Inc., 279 Kan. 523, 525, 113 P.3d 241 (2005).
Policy Considerations
Robbins asserts the policy considerations expressed in Thornton are outdated and unfounded. Robbins maintains that a police officer’s duty to apprehend is distinct and secondary to the officer’s duty to protect the public. We need not address Robbins’ argument regarding the public policy considerations. Time has not diminished the overriding policy considerations enunciated in Thornton v. Shore, 233 Kan. 737, 666 P.2d 655 (1983). Many jurisdictions similarly recognize the public policy expressed in K.S.A. 8-1506 as interpreted by Thornton that law enforcement officers’ pursuit of fleeing offenders is inherent in tire officers’ duty to protect the public. In denying a claim for the passengers injured in a vehicle as a result of a high-speed police chase, the Seventh Circuit Court of Appeals eloquently observed:
“Death and disability haunt law enforcement. Lax law enforcement emboldens criminals and leads to more crime. Zealous pursuit of suspects jeopardizes bystanders and persons accompanying the offender. Easy solutions rarely work, and ex post assessments—based on sympathy for those the criminal has injured, while disregarding the risks to society at large from new restrictions on how the police work—are unlikely to promote aggregate social welfare.” Mays v. City of East St. Louis, Ill., 123 F.3d 999, 1004 (1997).
Suffice it to say, we believe the duty of protecting the public is coextensive with the duty of apprehending suspected criminals and leave to the legislature any policy alteration to the contrary.
The defendants further assert that the district court properly granted their motion for summary judgment based on immunity under the Kansas Tort Claims Act (KTCA). However, we decline to analyze this argument because it is unnecessary for resolving this case.
Affirmed.
Davis, J., not participating.
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The opinion of the court was delivered by
Nuss, J.:
This case concerns a dispute between a widow, Maryam Hjersted, and her stepson, Lawrence Hjersted, over the value of her spousal elective share of her deceased husband’s estate under K.S.A. 59-6a201 et seq. There is no dispute about the percentage share to which she is entitled. The parties simply disagree on the value of two particular assets transferred to Lawrence within 2 years of the death of Maiyam’s husband, Norman: (1) Norman’s interest in the family limited partnership and (2) Norman’s life estate in Nebraska farmland which was sold. Our jurisdiction is pursuant to K.S.A. 20-3018.
The issues on appeal, and our accompanying holdings, are as follows:
1. Did the district court err in determining the value of Norman’s family limited partnership interest that he transferred to Lawrence? Yes.
2. Did the district court err in determining the value of Norman’s life estate interest in proceeds from the sale of the Nebraska farmland? No.
Accordingly, we reverse the decision of the district court and the Court of Appeals on Issue 1 and remand with directions. We affirm the decision of the district court and the Court of Appeals on Issue 2.
FACTS
Norman B. Hjersted (Norman) and his wife, Maiyam, were married in June 1981. Together they had a son, Timothy, and Norman had three children from a prior marriage: Lawrence, Karen, and Ingrid. Since its incorporation in 1981, Norman had totally owned a closely held company called Midland Resources, Inc., (MRI) that manufactures chemicals used in the treatment of water and waste-water.
The Hjersted Family Limited Partnership and Norman’s revocable trust
On February 20, 1997, Norman and Lawrence created the Hjersted Family Limited Partnership (HFLP). Norman transferred all (500) shares of MRI to the HFLP; these shares were the only asset of the limited partnership. Norman kept 96% of the limited partnership interest in HFLP for himself. The remaining HFLP interests were owned as follows: 2% general partnership owned by Norman, 1% general partnership owned by Lawrence, and the last 1% of the limited partnership interest in HFLP owned by Lawrence. They purchased their interests through delivery of cash and promissory notes. Section 1.4 describes the “Character of Business” as:
“The Partnership’s purpose is to facilitate communication among family members in connection with business matters, to reduce costs associated with the disability of any of the partners, to preserve family control of Partnership assets, and the conduct of any other business which shall be legal for a limited partnership to conduct in Kansas.”
Sixteen months later on June 8,1998, Norman created the Norman B. Hjersted Revocable Trust and named himself trustee. The same day, he executed his “Last Will and Testament.” The will “poured over” probate assets into the trust.
Fifteen months after the creation of Norman’s revocable trust, on September 10, 1999, Norman transferred to his trust his 96% limited partnership interest and his 2% general partnership interest in HFLP. Other assets not relevant to this appeal also were transferred.
Gift/sale transaction
Approximately 3 years after the creation of HFLP, on March 1, 2000, Norman entered into a gifUsale transaction with Lawrence concerning his 96% limited partnership interest in HFLP. $675,000 worth of Norman’s 96% interest—the maximum allowable without incurring federal gift tax—was gifted to Lawrence. According to their contract, the balance of Norman’s 96% interest was sold at a price to be determined by later appraisal. Norman retained his 2% general partnership interest as contained in his revocable trust for which he served as trustee.
Norman’s and Lawrence’s appraiser, John Korschot, of Stem Brothers Valuation Advisors (Stem Brothers), testified at the later trial that in May 2000 he was tasked with determining the fair market value of a nonmarketable limited partnership. Korschot first valued the HFLP’s only asset, the 500 shares of MRI stock, at $4500/share, for a total of $2.25 million. This result was reached after applying a “lack of marketability” discount of 20%.
Because the MRI stock was also contained within HFLP, a limited partnership, Korschot applied a discount of 10% for lack of control and an additional 25% discount for lack of marketability, resulting in a combined effective discount of 32.5% for the limited partnership value. In response to a question by the district court, Korschot testified that he was not “double discounting.” He described the basis for the discounts: “a Limited Partner has few, if any rights in the affairs in the Partnership, compared to the General Partner [so] a discount for lack of control of the Limited Partnership should be considered. Also, a discount for the lack of marketability should be considered, since there is no readily available market for the Limited Partnership interest.” According to Korschot, the fair market value of the transferred 96% limited partnership interest in HFLP was the net asset value of MRI ($2.25 million) times the percentage of limited partnership interest transferred (96%), reduced by the additional discounts (32.5%), for a total of $1,458,000.
Because $675,000 of the $1,458,000 was transferred to Lawrence by gift, Korschot’s appraisal meant that Lawrence owed Norman a balance of $783,064. Of this amount, Lawrence paid 5% ($39,150) and signed a promissory note for the remaining $743,914.
On May 18, 2000, approximately 2Vz months after the gift/sale transaction, Norman executed a new trust agreement, which amended and restated the prior trust agreement. The new agreement included provisions for the disposition of Norman s property both before and after his death. Norman remained trustee, and Lawrence was named successor trustee. Lawrence later stepped in as trustee in late 2000 or early 2001 because Norman s stroke at that time left him in a coma for 10 days.
Nebraska farmland
Norman owned a life estate in certain farmland in Richardson County, Nebraska, and Lawrence owned the remainder interest. In September 1999, under purported threat of condemnation, the property was deeded to the United States Army Corps of Engineers for $292,950. The price included both the life estate and the remainder interest, but the entire proceeds were deposited into Lawrence’s bank account. Lawrence later contributed those proceeds toward the purchase of a Florida orange grove as a like-kind investment. At the time of this purchase, Norman wrote to Lawrence: “It is my intent and has always been that you retain ownership of the Florida Farm. I would like and need some of the profits but not to exceed 5% / year of value of money received from the Corp. of Engineers.”
Normans death and subsequent events
On April 28, 2001, approximately 13 months after the gift/sale transaction, Norman died. Among the assets remaining in his revocable trust at that time was his 2% general partnership interest in HFLP.
In August 2001, rather than take what was provided for her under Norman’s will, Maryam filed a petition for elective share of surviving spouse, requesting the court to determine her elective share of the couple’s augmented estate pursuant to K.S.A. 59-6a201 et seq. Thereafter, the district court admitted Norman’s will into probate and appointed Lawrence executor of the estate. As executor, Lawrence filed a proposed calculation of Maryam’s unsatisfied elective share. However, the parties did not agree on the valuation and treatment of all of the properly, particularly the gift/ sale transaction and the life estate in the Nebraska farmland. A trial therefore occurred on June 16 through 19, 2003.
During the trial, both Korschot and an appraiser retained by Maryam, Timothy Meinhart, of Willamette Management Associates (“WMA”), testified. Meinhart testified about his appraisal report dated June 11, 2003, in which he had determined the “fair market value” of the common stock of MRI as of March 1, 2000. He admitted that he was neither asked to, nor did, consider the value of the MRI stock as contained within HFLP, a limited partnership. He determined that the value of the MRI 500 shares of stock was $2.66 million, which included a 10% discount for its lack of marketability, presumably as a closely held corporation. Accordingly, he calculated that the value of Norman’s 96% of the $2.66 million of MRI stock was $2,553,600.
Rased upon the parties’ competing experts, and the down payment and promissory note amounts of the March 2000 gift/sale transaction, the parties’ financial arguments were essentially as follows:
Maryam’s Calculations
Value of MRI (@ 10% discount) $2,660,000
Value of Norman’s 96% MRI interest $2,553,600 Consideration Paid by Promissory Note ($ 743,914)
Consideration Paid at Closing ($ 39,150)
Net Uncompensated Transfer to be added to augmented estate $ 1,770,536
Lawrence’s Calculations
Value of MRI (@ 20% discount) $2,250,000
Value of Norman’s 96% MRI interest $2,160,000
Discount for HFLP (32.5%) (adjusted) ($ 701,936)
Consideration Paid by Promissory Note ($ 743,914)
Consideration Paid at Closing ($ 39,150)
Net Uncompensated Transfer to be added to augmented estate $ 675,000
Of the approximate $1.1 million difference in value, $393,000 was attributable to the difference in values attached to the MRI stock by the competing experts and $701,936 was attributable to Korschot’s “second layer” of discounts, i.e., in the HFLP.
On July 12, 2004, the district court issued its 15-page memorandum decision. Among other things, the court found that Meinhart’s opinion of the MRI stock value of $2.66 million was “better supported” than Korschot’s.
“16.g: That after analysis of the written reports submitted by both experts and weighing the testimony provided by both experts, that the opinion of Meinhart is better supported (in particular with regard to use of more recent data concerning the increase in pretax income in early 2000, the on sight investigation, and the inherent bias to minimize value by Korschot in performing the task hired for), and the court finds that the value of500 shares of Midland Resources Inc. to be $2,660,000.”
The district court also found that the partnership was organized for valid family and business purposes; that Lawrence was the heir apparent of Norman’s business; that Norman had an estate planning and business objective to pass the family business to his son; and that HFLP “was a valid and existing limited partnership at the time of the gift on March 1st, 2000 and continues to be so.” However, because Maiyam did not consent to the transfer, the court found that the full value of the limited partnership interest, i.e., without Korschot’s 32.5% discounts for marketability and control, must be included in the augmented estate. It adopted Maryam’s calculations for calculating the uncompensated transfer at $1,770,536 (then later agreed with Lawrence that K.S.A. 59-6a205[c][3] required the court to reduce the amount of the uncompensated transfer by $10,000, to $1,760,536).
The district court also concluded that the value of Norman’s life estate in the Nebraska farmland—which sold for $292,950—was $137,394. Coupled with its value of the uncompensated transfer of MRI stock, it concluded that those two nonprobate transfers to be added to the augmented estate totaled $1,907,930.
In determining the augmented estate, the court added (1) the net probate estate of $1,754,089, (2) the values of the two nonprobate transfers of $1,907,930, (3) Norman’s nonprobate transfers to Maryam of $241,370, and (4) Maryam’s assets of $857,475, for an augmented estate total of $4,760,863. After calculating Maiyam’s entitlement at 50% of the augmented estate based on the length of her marriage to Norman, and then deducting her assets and Norman’s nonprobate transfers to her, the court found that Maiyam’s unsatisfied elective share was worth $1,281,587.
After Lawrence’s motion for reconsideration, the court later modified its prior judgment. Among other things, the court decreased the probate estate to $1,363,208, decreased the total net probate estate to $1,551,558, decreased the value of Norman’s non-probate transfers to others by $10,000 because of the federal exemption for a gift in 1 year, and now valued the augmented estate at $4,548,333. Based on the modified numbers, the court reduced Maryam’s unsatisfied elective share from $1,281,587 to $1,175,322.
Both parties filed timely notices of appeal on numerous grounds. The Court of Appeals first provided an overview of the Kansas spousal elective share statutes:
“In 1994, the Kansas Legislature amended the Kansas Probate Code to incorporate a comprehensive spousal elective share scheme patterned after the Uniform Probate Code. See K.S.A. 59-6a201 et seq. The statutory scheme gave the surviving spouse the right to take an elective share amount equal to the value of an elective share percentage of the augmented estate, the percentage determined by a statutory table based on length of the marriage. K.S.A. 59-6a202. For purposes of determining the augmented estate, certain uncompensated nonprobate transfers to others are included, including certain of those during the 2-year period next preceding the decedent’s death. K.S.A. 59-6a205 and K.S.A. 59-6a207.
“In a situation such as that presented here, upon the election by a surviving spouse, the statutory scheme requires analysis of nonprobate transfers to determine whether assets should be ‘pulled back’ or included in the augmented estate, together with valuation of those assets at date of transfer. K.S.A. 59-6a205 to K.S.A. 59-6a208. Once the augmented estate has been composed generally from the net probate estate and the eligible uncompensated nonprobate transfers, the surviving spouse is entitled to the elective share percentage shown in the statutory table. K.S.A. 59-6a202 to K.S.A. 59-6a203. Award of fees and other administrative expenses reduce the augmented estate for these purposes. K.S.A. 59-6a204.” In re Estate of Hjersted, 35 Kan. App. 2d 778, 782-83, 135 P.3d 202 (2006).
Regarding the only two issues now before this court on Lawrence’s petition for review, the Court of Appeals held that the district court erred in focusing on Maryam’s lack of consent in determining whether discounts purportedly inherent in limited partnership interests should be applied in the valuation process. It correctly held that the value of the 96% limited partnership interest in HFLP on March 1, 2000, must be included in the augmented estate to the extent it was not supported by consideration. It further held that on the question of value of this interest, the district court’s adoption of Meinhart’s evaluation of the MRI stock at $2.66 million was supported by substantial competent evidence.
The Court of Appeals acknowledged that the district court had a “misfocus” on the value of the MRI stock rather than the limited partnership interest, which could be error because it disregarded discounts for lack of control and marketability purportedly inherent in the fact that the stock was held in a limited partnership. 35 Kan. App. 2d at 787. Nevertheless, the court proceeded to hold that
“[d]iscounts for lack of control and lack of marketability were unnecessary under these circumstances for several reasons:
“• Discounting individual share holdings injects into the appraisal process speculation on the various factors which may dictate the marketability of such holdings. Cavalier Oil Corp. v. Harnett, 564 A.2d 1137, 1145 (Del. 1989);
“• Control and marketability discounts are not appropriate when the purchaser is either the majority shareholder or the corporation itself. Amaud v. Stockgrowers State Bank, 268 Kan. 163, Syl. ¶ 3,992 P.2d 216 (1999). Similarly, when the result of the transaction unifies the interests of a partnership in the same individual [Lawrence], albeit as an individual and a trustee, such discounting is illusory;
“• Where the sole asset of the partnership is corporate stock that has already been discounted for lack of marketability, no further discount is appropriate when valuing the partnership interests because the partnership did not perform a management function for such asset. See Estate of Bongard v. Commissioner, 124 T.C. 95, 126-29 (2005) (transfer of stock to a limited partnership does not satisfy bona fide sale exception to 26 U.S.C. § 2036[a] [2000]);
“• Where, as here, the artificiality or illusory nature of the partnership entity is manifest by its disregard in practice, including illusory capital contributions, lack of any filing of state or federal partnership tax returns, MRI dividends paid direcdy to Lawrence and Norman rather than the entity, and charter forfeiture by the State, the separate legal existence of the partnership entity at death does not require discounting that might otherwise be appropriate in valuing partnership interests. See Estate of Thompson v. C.I.R, 382 F.3d 367 (3d Cir. 2004); Estate of Reichardt v. Commissioner, 114 T.C. 144 (2000); Estate of Morton B. Harper, 83 T.C.M. (CCH) 1641 (2002); Estate of Dorothy Morganson Schauerhamer, 73 T.C.M. (CCH) 2855 (1997) (all of which hold that where a decedent’s relationship to transferred assets remains the same before and after transfer, the assets transferred are returned to gross estate for estate tax purposes).
“• Recognition of discounting under these circumstances could encourage the creation of layers of illusory ownership for nonprobate transfers, each with the potential for additional discounting, and all for the purpose of insulating the true value of assets transferred, in furtherance of a scheme to disinherit a spouse. Such encouragement would be counter to the legislative purpose of the Kansas spousal elective share statutes. See In re Estate of Antonopoulos, 268 Kan. 178, 181-82, 993 P.2d 637 (1999); Ackers v. First National Bank of Topeka, 192 Kan. 319, 332-33, 387 P.2d 840 (1963).” 35 Kan. App. 2d at 787-89.
Accordingly, the court affirmed the district court’s valuation of the transfer and the resulting addition of $1,760,536 to the augmented estate.
Regarding the second issue for which this court later accepted review, the Court of Appeals also affirmed the district court’s inclusion in the augmented estate of the life estate interest in the Nebraska farmland because the life tenant, Norman, and the remainderman, Lawrence, united in a nonjudicial sale of the property. 35 Kan. App. 2d at 791-92.
Additional facts will be provided as necessary to the analysis.
ANALYSIS
Issue 1: The district court erred in determining the value of Norman’s family limited partnership interest that he transferred to Lawrence.
Lawrence argues that the Court of Appeals erred in affirming the district court’s valuation, explaining:
“[T]he value of the 96% limited interest in HFLP that Norman transferred to Lawrence is one of the key issues in this appeal because the Kansas Spousal Elective Share statute ‘pulls back’ the value of Norman’s gift to Lawrence as an addition to the augmented estate. See K.S.A. 59-6a205(c) (augmented estate includes value of gifts made within two years prior to death). To the extent this litigation ultimately determines that the value of the 96% limited partnership interest in HFLP is greater than the amount of Norman’s gift [$675,000] plus Lawrence’s payment [$783,064 in cash and note], the additional value constitutes an additional gift which must be included in the augmented estate. One of the key determiningfactors in the value of the 96% limited interest in HFLP is whether to apply the 32.5% valuation discount for lack of control and lack of marketability.” (Emphasis added.)
As we have explained, a minority discount allows an appraiser to adjust for a “lack of control” over the entity on the theory that the minority interests are not worth the same as the majority interests due to the lack of voting power. A marketability discount allows an appraiser to adjust for a “lack of liquidity” in the interest itself on the theory that there is a limited supply of purchasers of that interest. See Amaud v. Stockgrowers State Bank, 268 Kan. 163, 165, 992 P.2d 216 (1999) (citing Hood et al., Valuation of Closely Held Business Interests, 65 UMKC L. Rev. 399, 438 [1997]).
The Court of Appeals refined the salient issue: the value of the 96% HFLP interest on March 1, 2000. Generally, the determination of property value has been a question of fact. See Board of Johnson County Commrs v. Smith, 280 Kan. 588, 597, 123 P.3d 1271 (2005) (condemned property’s fair market value is jury question); Hotchkiss v. Fischer, 139 Kan. 333, 31 P.2d 37 (1934) (value of stock in closely held corporation is jury question). The determination of asset value concerning the augmented estate, as in the case at bar, was a question of fact for the district court in In re Estate of Antonopoulos, 268 Kan. 178, 190-92, 993 P.2d 637 (1999) (issue of value of properties in joint tenancy and of value of homestead remanded to district court for determination). Indeed the district court here included as one of its findings of fact a determination that the value of the 500 shares of MRI stock was $2,660,000.
The Court of Appeals ruled that substantial competent evidence supported this district court determination of MRI value. See U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003) (substantial evidence is evidence possessing both relevance and substance which furnishes a substantial basis of fact from which the issues can reasonably be resolved). Inherent in the Court of Appeals’ use of this standard of review is an acknowledgment that valuation is a question of fact. Indeed, it earlier stated: “To the extent that the district court made fact findings, particularly as they regard valuation issues, we review those findings to determine whether drey are supported by substantial competent evidence.” (Emphasis added.) 35 Kan. App. 2d at 784. As a result, the Court of Appeals further acknowledged that “we do not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact.” 35 Kan. App. 2d at 784.
After the district court’s adoption of Meinhart’s valuation of MRI stock, it essentially declined to analyze Korschot’s additional discounts for lack of control and marketability which were based upon the MRI stock’s containment within the HFLP. It instead rejected these discounts simply because “the surviving spouse did not consent to this transfer.” The Court of Appeals correctly determined that rejection on the consent basis was error because under K.S.A. 59-6a205 and K.S.A. 59-6a207, consent is irrelevant.
Although the Court of Appeals reviewed the district court’s MRI valuation finding based upon Meinhart’s opinion as a question of fact, it then proceeded to reject the Korschot additional discounts because they were “unnecessary under these circumstances.” 35 Kan. App. 2d at 787. While the court did not articulate its standard in arriving at this determination, its analysis reveals a de novo review and resultant legal conclusion. However, it did not similarly review Meinhart’s admitted use of a 10% lack of marketability discount as a matter of law, but apparently embraced the propriety of his discount within the “factual” determination.
As analyzed below, the Court of Appeals was incorrect in estabHshing several legal reasons for total rejection of Korschot’s additional discounts “under these circumstances” as an alternate basis for affirming the district court.
Among other things, one of the Court of Appeals’ ostensible legal reasons—the “artificiality or illusory nature of the partnership entity”—was apparently based upon that court’s independent determination of facts after reviewing evidence in the record. The facts highlighted by the Court of Appeals, e.g., a lack of filing of state or federal partnerships tax returns, are inconsistent with findings made by the district court. These findings include the trial court’s express determination that HFLP was organized for valid family and business purposes, that Lawrence was the heir apparent of Norman’s business, and accordingly that Norman had an estate planning and business objective to pass the family business to his son.
As mentioned, an appellate court does not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. We also accept as true all inferences to be drawn from the evidence which support or tend to support the findings of the district court. Evenson Trucking Co. v. Aranda, 280 Kan. 821, 837, 127 P.3d 292 (2006). Our deferential review of the record reveals that substantial competent evidence supports these district court findings. Norman and Maryam’s attorney at the time the HFLP was created in 1997, Denver Void, testified that the purpose of the HFLP was: (1) to shield Norman’s assets from a potential claim related to environmental litigation, (2) to shield assets from business creditors, (3) for estate planning and business succession purposes—so that Lawrence would receive all of his interests in his closely held businesses and manage the company, and (4) to reduce taxes by reducing the value of Norman’s estate. Void further testified that although a merger had been contemplated by Norman and Lawrence of their various enterprises, they decided to first form the HFLP, because of the possibility that through merger Norman’s estate taxes would increase as a result of the increase in the value of Lawrence’s business.
These district court findings in turn partially supported its determination in its July 12, 2004, journal entry: “The court finds that the partnership was a valid and existing limited partnership at the time of the gift on March 1st 2000 and continues to he so.” (Emphasis added.) This determination impliedly rejected Maryam’s argument, acknowledged by the court in its finding that “the surviving spouse . . . counters that the family partnership was not properly created or properly maintained and thus a discount is not applicable.” Accordingly, the Court of Appeals was incorrect in weighing conflicting evidence and in relying upon the purported artificiality or illusory nature of the HFLP to conclude that Korschot’s discounts were unnecessary.
Another reason given by the Court of Appeals for totally rejecting Korschot’s additional discounts as unnecessary was its belief that discounting individual share holdings injects into the appraisal process speculation on the various factors which may dictate the marketability of such holdings. 35 Kan. App. 2d at 787. However, the Court of Appeals itself previously accepted such alleged speculation-based marketability discounting in this case. It had already supported the district court’s adoption of Meinhart’s appraisal which applied a 10% marketability discount when determining the value of Norman’s 96% individual holding in MRI: $2,553,600. Accordingly, we cannot agree with the Court of Appeals’ rejection of Korschot’s additional discounts on this basis. Other grounds for our rejection of the Court of Appeals’ “legal” reasons will be addressed later in the opinion while discussing other issues.
Moreover, with the Court of Appeals’ absolute rejection, as a matter of law, of Korschot’s additional discounts, the court effectively ehminated the only evidence in the record on the value of the transferred 96% limited partnership interest in HFLP on March 1, 2000, which value that court itself described as “the paramount consideration.” 35 Kan. App. 2d at 786. As mentioned, Meinhart freely admitted that he did not value the HFLP interest: only its sole asset, the MRI stock. Consequently, the Court of Appeals’ decision ultimately made case-dispositive a valuation that made no pretense of addressing that court’s paramount issue: value of the HFLP limited partnership interest on March 1, 2000.
We conclude that the valuation of the 96% HFLP interest on March 1, 2000, is best left to the district court. See In re Estate of Antonopoulos, 268 Kan. 178, 187, 993 P.2d 637 (1999) (after holding that district court erred in fading to include joint tenancy property in augmented estate, this court rejected spouse’s request for it to compute value of her elective share, noting disputed facts as to value of properties to be included). Accordingly, the case is reversed and remanded to the district court. The court will be required to at least address the validity of Korschot’s 32.5% discounts for lack of marketability and lack of control of HFLP interests, and may adjust, compromise, or even reject one or both. As several commentators have expressed when valuing closely held business interests, including limited partnerships:
“Opinions as to value frequently are far apart especially when such opinions are requested by adversaries. In the final analysis, the outcome of each case is usually a compromise, with the Court often finding a value somewhere between the valuation sought by the taxpayer and the higher appraisal sought by the Service. Since the facts of each case will determine the outcome, it is worth noting that case law is usually available to support any position regarding valuation of an interest in a closely held business.” Hood, et al., Valuation of Closely Held Business Interests, 65 UMKC L. Rev. 399, 406-07 (1997) (reference work cited with approval in Amaud v. Stockgrowers State Bank, 268 Kan. 163, 165, 992 P.2d 216 [1999]).
Indeed, in Bohl v. Bohl, 232 Kan. 557, 657 P.2d 1106 (1983), the district court was required to value the stock in a closely held corporation for property division in divorce proceedings. After considering the wife’s expert’s valuation of $4,018,297 and the husband’s expert’s valuation of $993,635, the district court determined the value was $2,066,463, which this court affirmed as “well within the evidence and will not be disturbed.” 232 Kan. at 565.
We cannot prognosticate all the factors that the district court could decide to consider in this value determination on remand. What follows is not offered to suggest, much less direct, a particular outcome regarding any of the topics discussed. Rather, it is offered to suggest some general contours of guidance which the district court may decide to consider, or not to consider, at its discretion.
Estate and Gift Tax Contexts
As mentioned, the district court made supported findings that the partnership was organized for valid family and business purposes; that Lawrence was the heir apparent of Norman’s business; and accordingly that Norman had an estate planning and business objective to pass the family business to his son. These findings in turn partially support the court’s determination that the partnership was a valid and existing limited partnership at the time of the gift on March 1st, 2000, and continued to be so at the time of its ruling in July 2004. This determination impliedly rejected Maryam’s argument that the family partnership was not properly created or properly maintained and thus a discount was not applicable.
On remand, the district court may possibly determine from these prior rulings that—contrary to the Court of Appeals’ belief that “[a]t some time before his death, Norman apparently visited his attorneys and expressed a desire to disinherit his wife” (35 Kan. App. 2d at 781)—Norman’s HFLP transfers instead were manifestations of his estate planning and business objective to pass the family business to Lawrence. As mentioned, attorney Void essentially testified to this effect. Moreover, as Lawrence points out, Maryam herself had some involvement in the gift/sale. Lawrence testified, without contradiction, that she not only attended the transaction, but she was also the one who suggested that he buy Norman’s HFLP interest over a 30-year period instead of 10 years because she wanted income for a longer period of time.
Should the district court determine that Norman’s transfers indeed represented legitimate estate and business planning, or at least did not represent a desire to disinherit Maryam, it may also consider that, without more, discounts for lack of control and lack of marketability can appropriately be applied to interests in family limited partnerships. See Jensen, The Magic of Disappearing Wealth Revisited: Using Family Limited Partnerships to Reduce Estate and Gift Tax, 1 Pitt. Tax Rev. 155 (2004); Hood, et al., Valuation of Closely Held Rusiness Interests, 65 UMKC L. Rev. 399 (1997). As the title of the Pittsburgh Tax Review article suggests, discounts through the use of family limited partnerships are often applied in an effort to reduce estate and gift taxes, i.e., in dealings with the IRS. The article describes the taxpayers’ goal as reverse alchemy: “to reduce the value of their property” for tax purposes. 1 Pitt. Tax Rev. at 155. Indeed, “the discount partnership” was described in 1997 as the “most recent innovation” to reduce transfer taxes, i.e., estate, gift, and generation-slapping taxes. See Blatt, Minority Discounts, Fair Market Value, and the Culture of Estate Taxation, 52 Tax L. Rev. 225, 226 (Winter 1997).
As the Pittsburgh Tax Review article’s author discusses how to use the family limited partnership to reduce estate and gift taxes, he provides examples that are factually similar to the instant case. He explains that frequently a taxpayer will
“transfer tire assets she wished to qualify for a discount [to a family limited partnership (FLP)], taking back a general partnership (GP) interest representing a minute portion of the FLP’s equity (say, 1%) and limited partnership (LP) interests representing the balance of the FLP’s equity (say, 99%). The taxpayer will then embark on a gift program designed to eliminate all of her LP interests at little or no gift tax cost. Thus, her estate at death will consist of only a GP interest representing a mere one percent of the FLP’s equity, [or she may also] give away the GP interest . . . , thereby totally eliminating the FLP from her estate.” 1 Pitt. Tax Rev. at 156.
The author explains the tax benefits available through the use of this technique: “[T]he LP interests will be valued for tax purposes at a substantial discount from the value of the underlying assets that they represent. The purported justification for these discounts is that the LP interests lack both control and marketability.” 1 Pitt. Tax Rev. at 157.
In language similar to the testimony of Korschot, the author first describes the rationale for the lack of control discount available through the use of this technique:
“State law prohibits the limited partners of an FLP from participating in the management of the business. Consequently, a buyer of an LP interest will be at the mercy of the general partners with respect to all decisions regarding the FLP’s operations and earnings (e.g., whether the FLP distributes its earnings to the partners or retains them in the business). Obviously, a buyer will pay less for such an interest than he would for an interest that confers control.” 1 Pitt. Tax Rev. at 157.
In Kansas, for example, limited partners must rely on the general partner to malte decisions, and their rights to make decisions regarding partnership operations and property is significantly restricted. See K.S.A. 56-la253(a) (powers of the general partners); K.S.A. 56-la203 (limitations on control of limited partnerships).
Similarly, in language also reminiscent of Korschot’s testimony, the Pittsburgh author next describes the rationale for the lack of marketability discount available through the use of this technique:
“The owner of an LP interest wishing to dispose of that interest cannot sell it simply by telephoning her broker. To sell the interest, the limited partner must locate potential buyers and convince one of them to buy it. This means providing a potential buyer with financial statements and explaining to him the FLP’s business, its prospects for the future, its competition, and its management. Since the buyer of the LP interest will have no say in the management of the FLP, he will want to meet the general partner to evaluate his competency and honesty and to determine if the general partner’s plans for the business’ future are satisfactory. All of this requires time and effort, and time and effort mean money. The rationale for allowing a discount for lack of marketability is that a potential buyer will discount, that is, pay less for an interest that he cannot readily resell.” 1 Pitt. Tax Rev. at 157-58.
The author observes that through the use of the family limited partnership, courts have generally allowed combined discounts for lack of marketability and control ranging from 25% to 35% and sometimes even more. 1 Pitt. Tax Rev. at 155. For example, in Harwood v. Commissioner, 82 T.C. 239 (1984), where the family limited partnership transferred certain interests, the United States Tax Court applied discounts totaling 50% for minority interests which were not publicly traded and were subject to transfer-restricting clause in the partnership agreement. The author concludes that “tírese discounts, when used in conjunction with the gift tax annual exclusion and the gift tax unified credit, can result in very substantial amounts of wealth being transferred” without any liability for estate and gift tax. 1 Pitt. Tax Rev. at 158.
He also notes that the discounts have been allowed for reducing transfer taxes even when the reduction in value is only temporary. The author explains with an example relevant to our facts:
“Suppose P operates a business worth $3,000,000. P transfers the business to a newly formed FLP, takes back a 1% GP interest and 99% LP interests. She gives the 99% LP interests to her son, S. Years later, P dies and in accordance with her long-term plan, bequeaths the 1% GP interest to S. The business is still worth $3,000,000. For purposes of this example, ignore the discount for lack of marketability.
“Under current law, P’s gift of the LP interests to S will qualify for a substantial discount because they lack control . . . However, this [lack of control] diminution in the value of the LP interests is merely temporary, since it will cease upon P’s death when S receives the 1% GP interest. P will then have full control of the FLP and, assuming no change in the value of the enterprise, will be able to sell the business for $3,000,000: $30,000 for the GP interest and $2,970,000 for the LP interests.” (Emphasis added.) 1 Pitt. Tax Rev. at 171.
The author explains that by splitting the transfer of the business into two steps—inter vivos transfers of the LP interests and a testamentary transfer of the GP interest—hundreds of thousands of dollars of value will escape the transfer tax through use of the lack of control discount. 1 Pitt. Tax Rev. at 171. The author later illustrates with an example involving a truncated period of transfers:
“A donor may transfer LP interests representing 99% of the FLP’s entity to a child, and then in a year following these transfers, transfer the 1% GP interest to the same child. Under current law, 99% of the FLP’s equity will qualify for a lack-of-control discount even though once the donee acquires control, he will be able to sell the LP interests without discount by selling them together with the 1% GP interest.” (Emphasis added.) 1 Pitt. Tax Rev. at 213-14.
See also generally Harris, Valuation of Closely Held Partnerships and Corporations: Recent Developments Concerning Minority Interest and Lack of Marketability Discounts, 42 Ark. L. Rev. 649, 658-59 (1989) (study documenting marketability discounts in the range of 30 to 40% for closely held companies.); see Blatt, Minority Discounts, Fair Market Value, and the Culture of Estate Taxation, 52 Tax L. Rev. 225 (1997) (Anecdotal evidence indicates that the size of minority discounts have grown over time and that their use has soared.). Indeed, one aspect of a case cited by the Court of Appeals to support its conclusion of the artificiality or illusory nature of the limited partnership, Estate ofBongardv. Commissioner, 124 T.C. 95 (2005), supports discounts. There, a decedent transferred his stock in a closely held corporation to a limited liability company. The tax court accepted the parties’ stipulations that the value of his interest in the limited liability company was subject to a 13% discount for lack of control and a 17.5% discount for lack of marketability, with certain units additionally subject to a 5% discount for lack of voting rights. 124 T.C. at 132-33.
In short, the district court may possibly find: that the HFLP interest transfers were manifestations of Norman’s legitimate business and estate planning; that they would be entitled, at least for transfer tax purposes, to discounts for marketability and control; and that a similar rationale would allow such discounts for valuing those assets in the augmented estate for the spousal elective share purposes.
Kansas dissenting shareholder case law
In Amaud v. Stockgrowers State Bank, 268 Kan. 163, 992 P.2d 216 (1999), we addressed a corporations reverse stock split and forced buyout of minority shareholders’ stock in order to prevent any fractional share holdings pursuant to K.S.A. 17-6405. Apprais ers determined “fair market value,” then, after applying minority and marketability discounts, determined the shares’ “fair value” under K.S.A. 17-6405.
We noted that cases and commentators suggested that the majority of states have not applied minority and marketability discounts when determining the fair value of stock in similar cases. 268 Kan. at 166. We observed that the American Law Institute was in accord. See 2 A.L.I., Principles of Corporate Governance § 7.22, pp. 314-15. Among the rationales for the refusal to apply the discounts is application would penalize the minority shareholder and unfairly enrich the majority shareholders. We joined the majority of states, answering the specific certified question from the U.S. district court as follows: “that minority and marketability discounts should not be applied when the fractional share resulted from a reverse stock split intended to eliminate a minority shareholder’s interest in the corporation.” 268 Kan. at 170.
In the district court’s determination of HFLP value on remand, it may consider whether Maiyam is comparable to a minority shareholder entitled to the undiscounted value of HFLP interests. But it should concurrently consider the caveat contained in Comment e to A.L.I. § 7.22 cited in Amaud-.
“The valuation principles adopted by § 7.22 are those that are appropriate for appraisal [of fair value of shares for corporate transactions giving rise to appraisal rights], and they do not necessarily apply in other contexts, such as the valuation of stock for tax or ERISA purposes. The standard of valuation employed in any given context should reflect the purpose served by the law in that context, and thus § 7.22 is not intended to imply that in other contexts discounts attributable to minority status or non-marketability are necessarily inappropriate.” (Emphasis added.)
As part of the district court’s calculus, it should also note that it had previously accepted the 10% marketability discount of Meinhart in his valuation of the MRI stock. While not binding on remand, this acceptance is obviously contrary to the outright rejection of the stock discounts in Amaud. Indeed, in a case not involving the specific Amaud situation, this court has held that “control of the stock” is a factor that may be taken into consideration in arriving at the stock’s fair market value. Equity Investors, Inc. v. Academy Ins. Group, Inc., 229 Kan. 456, 468, 625 P.2d 466 (1981).
The Court of Appeals actually cited Amaud as support for its decision denying application of Korschot’s additional discounts: specifically, for the proposition that control and marketability discounts are not appropriate when the purchaser of the stock is either the majority shareholder or the corporation itself. It then concluded that the entirety of the partnership interests was unified in Lawrence and that when the result of a transaction unifies the interest of a partnership in the same individual, albeit as an individual and a trustee, control and marketability discounts are illusory. 35 Kan. App. 2d at 787.
We disagree with the Court of Appeals’ unification conclusion, thus providing another reason for disapproving that court’s rejection of Korschot’s additional discounts as a matter of law. Accordingly, the district court should not consider the Court of Appeals’ conclusion in its determination of value. In reality, the control of HFLP resided with the general partnership, not with the 96% of HFLP owned by Norman and transferred to Lawrence. Norman’s 2% general partnership interest—obviously greater than Lawrence’s 1%—was transferred to his trust on September 10, 1999, and was there at the time of Norman’s death in April 2001. Norman remained trustee until at least late 2000 or early 2001 after his coma when Lawrence stepped in. In short, Lawrence was not the trustee on March 1,2000, the date of the transfer, and the date acknowledged by the Court of Appeals for valuing the HFLP interests. Accordingly, there was no unification of the partnership interests in Lawrence on the critical date in question. Moreover, even when Lawrence later became trustee, there was no unification of interests in HFLP because until Norman’s death, Norman retained the rights to at any time: change the trustee, revoke the trust, and transfer his 2% general partnership interest out of the trust.
Kansas Spousal Elective Share
As another reason for rejecting Korschot’s additional discounts as a matter of law, the Court of Appeals held that creating layers of illusory ownership and allowing their attendant additional discounting could further a scheme to disinherit a spouse contrary to the legislative purpose of the Kansas spousal elective share statutes. 35 Kan. App. 2d at 788. In general support the court cited In re Estate of Antonopoulos, 268 Kan. 178, 181-82, 993 P.2d 637 (1999). There, we acknowledged that “[t]he new elective-share provisions were intended to correct the inequities that resulted under prior law” (268 Kan. at 181) and that “[t]he public purpose of elective-share statutes is to prevent disinheritance of the surviving spouse." 268 Kan. at 183. Consequently, we stated that “[t]o hold that the intestate share precludes ... a surviving spouse from taking an elective share would defeat the intent of the Kansas Legislature to protect against disinheritance.” (Emphasis added.) 268 Kan. at 183.
In addition to preventing a surviving spouse’s disinheritance, however, is another purpose of the Kansas elective share statutes: to prevent the surviving spouse from needlessly overriding the decedent’s legitimate intent to benefit others, e.g., “the greedy electing spouse.” See Kuether and Thompson, The Capricious Operation of the Kansas Elective Share: Feast or Famine for the Surviving Spouse, 61 J.K.B.A. 32, 37 (Dec. 1992). Accordingly, the authors were concerned about a “feast” for the surviving spouse. See also Item of Interest, Spousal Elective Share Substantially Changed, 63 J.K.B.A. 10 (Jun./Jul. 1994) (bill “guards both against disinheriting a surviving spouse and against allowing the spouse to take too much”).
Here, based upon previously supported findings, the district court may possibly determine that the HFLP interest transfers represented legitimate steps toward a legitimate estate planning and business objective. Moreover, Void testified that one of the reasons for forming HFLP was to reduce taxes by reducing the value of Norman’s estate. Indeed, $675,000 worth of Norman’s 96% interest in HFLP was gifted to Lawrence because that was the maximum amount allowable without incurring federal gift tax. Additionally, appraiser Korschot was retained to value the HFLP interest at the time of transfer, March 1, 2000, and he applied discounts for the reasons he explained: a limited partner has less rights than a general partner in the affairs of the partnership and there was no readily available market for limited partnership interests. Disallowance of those discounts by the district court could arguably be considered inconsistent with Norman’s legitimate intent to benefit his son Lawrence (through substantially reduced taxes) via the HFLP interest transfers.
On the other hand, the district court arguably already recognized the somewhat inconsistent purposes of the spousal elective share and transfer tax reduction. Specifically, it considered the “inherent bias” in Korschot’s valuation of MRI—apparently because he wanted to minimize value in order to reduce taxes at the time of the transfer. The court then included this bias as one of its reasons for rejecting Korschot’s MRI discount of 20% in favor of Meinhart’s discount of 10%:
“Meinhart is better supported (in particular with regard to . . . the inherent bias to minimize value by Korschot in performing the task hired for), and the court finds that the value of 500 shares of Midland Resources Inc. to be $2,660,000.” (Emphasis added.)
This example further supports our decision to remand. The valuation of the 96% HFLP interest on March 1, 2000, is best left to the district court, so it may continue addressing, if not balancing, competing considerations. As a result, any valuation decision by the district court on remand should be reached after considering both—often at odds—public purposes contained in the spousal elective share statutes.
Kansas Divorce
On remand, the district court may find parallels with a divorce proceedings’ property division. We have recognized that the new spousal elective-share provisions were “based upon two theories of the marriage relationship: the partnership theory’ and the ‘support theory.’ ” In re Estate of Antonopoulos, 268 Kan. at 181-82 (1999). “The partnership theory of marriage recognizes that both partners have contributed to the accumulated estate. See O’Sullivan and Bowen, New Spousal Elective-Share Rights: Leveling the Playing Field, 65 J.K.B.A. 18 (Feb./Mar. 1996); Uniform Probate Code Rev. Art. II, General Comment, 8 U.L.A. 93, 99 (1998).” 268 Kan. at 182.
Authors O’Sullivan and Bowen assert that “under the partnership theory of marriage, a spouse should have the same rights regardless of whether the marriage terminated by divorce or by death.” They next observe that “[i]n Kansas, the courts have applied the theory of ‘equitable distribution’ in divorce situations, viewing marriage as a partnership to which both spouses contribute.” 65 J.K.B.A. at 19. They conclude that “[c]onsistent with the partnership theory of marriage, the new law will bring the surviving spouse’s rights at death more in line with those of a former spouse at divorce.” 65 J.K.B.A. at 26 (citing inter alia K.S.A. 60-1610 [Subsection (b) provides in relevant part that “[i]n making the division of property the court shall consider . . . such other factors as the co.urt considers necessary to make a just and reasonable division of property.”]); see also 61 J.K.B.A. at 37 (“economic partnership theory of marriage is already reflected and carried out” under equitable distribution systems, including Kansas, when marriage dissolved by divorce).
We observe that in the divorce case of Bohl v. Bohl, 232 Kan. 557, 563, 657 P.2d 1106 (1983), an expert witness applied a 20% marketability discount to determine the value of stock in a closely held corporation for property division purposes. While the opinion is not entirely clear, it appears that die trial court accepted this part of the expert opinion testimony while rejecting another. This court affirmed the trial court’s valuation which was between the valuation opinions of the two competing experts.
In turning to other jurisdictions for clearer guidance, we acknowledge that some allow discounts in divorce property divisions, while others do not. See Annot., 16 A.L.R. 6th 693, Use of Marketability Discount in Valuing Closely Held Corporation or Its Stock. For example, in In re Marriage of Muelhaupt, 439 N.W.2d 656 (Iowa 1989), after simply reciting the necessity of discounting stock in order to arrive at market value, the court allowed minority and lack of marketability discounts of stock in family’s closely held corporation for property division in a divorce proceeding.
On the other hand, in Webber & Webber, 99 Or. App. 703, 784 P.2d 111 (1989), the court upheld the trial court’s refusal to utilize minority or marketability discounts when valuing a husband’s shares of a closely held farming operation. Evidence revealed that the husband still farmed with his father, and the court found if he were to sell his stock, he would probably sell it to his parents without discounts.
Similarly, in Brown v. Brown, 348 N.J. Super. 466, 792 A.2d 463 (2002), the court disallowed discounts of stock in a closely held corporation for an equitable distribution of property in a divorce proceeding. It first likened the situation to dissenting shareholder appraisal rights, similar to this court in Amaud, and then held:
“[N]o actual transfer of shares is involved in this equitable distribution case. That distinction makes the marketability discount even less appropriate than in the statutory appraisal or deadlock contexts, since no sale of the business appears likely in the foreseeable future. We see no reason to reward the spouse who holds title to the shares by allowing him to retain the value of the entire bloc at a bargain ‘price,’ that is, crediting the non-owner spouse with less than the owner’s proportionate share of full value when determining equitable distribution of the marital assets. Here, allowing the marketability or minority discounts wouldunfairly minimize the marital estate to Ellen’s detriment and is inconsistent with the concept of equitable distribution. While ‘there is no ready market for the shares and consequently no fair market value’ of [the company], [husband’s] shares in the going concern have value to him and to his co-owners that does not depend upon a theoretical sale to an outsider and has not changed as a result of the divorce complaint or judgment." (Emphasis added.) 348 N.J. Super, at 489.
But in Wisconsin, for example, discounts are apparently allowed in divorce proceedings but disallowed in dissenting shareholder cases. In refusing to apply the discounts from Wisconsin divorce cases to dissenting shareholder cases, the court in HMO-W Inc. v. SSM Health Care System, 234 Wis. 2d 707, 611 N.W.2d 250 (2000), cited Comment e to A.L.I., Principles of Corporate Governance § 7.22, the same section cited with approval by this court in Amaud, stating:
“However, the principles governing valuation of stock for tax or property division [divorce] purposes may not be imported into the appraisal [dissenting minority shareholder] process. That is because the standard of valuation in any given context should reflect the purpose served by the law in that context.” (Emphasis added.) 611 N.W.2d at 258.
As mentioned, the district court in the instant case applied Meinhart’s 10% discount to the MRI stock. Thus, as in HMO-W Inc., discounts could possibly be approved in the divorce-like context, e.g., spousal elective share, despite not being approved in the Arnaud dissenting shareholder context.
Issue 2: The district court did not err in determining the value of Norman’s life estate interest in proceeds from the sale of the Nebraska farmland.
Lawrence next argues that the Court of Appeals erred in affirming the district court’s decision that the sale of the Nebraska farmland separated Norman’s life estate from the remainder interest, resulting in the commuted value of his life estate becoming part of the augmented estate.
The augmented estate “includes the value of the decedent’s probate estate, reduced by funeral and administration expenses, homestead or homestead allowance, family allowances and enforceable demands.” K.S.A. 59-6a204. Whether the commuted value of the life estate was appropriately included in the augmented estate presents a mixed question of fact and law. The parties’ dispute of the proper characterization of the sale requires this court to review whether substantial evidence supports the factual findings made by the district court. U.S.D. No. 233, 275 Kan. at 318. However, this court’s review of the legal conclusions is unlimited. Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 819, 104 P.3d 378 (2005).
As a result of a testamentary disposition from Norman’s mother, he owned a life estate in farmland in Richardson County, Nebraska; Lawrence held a vested remainder. In September 1999, Lawrence, Norman, and Maryam sold the property under an alleged threat of condemnation to the United States Army Corps of Engineers for $292,950. The purchase price included both Norman’s life estate interest and Lawrence’s remainder interest. In December 1999, all of the proceeds from the sale were deposited into Lawrence’s bank account.
Before the sale was completed, Lawrence arranged to purchase other property in Florida as a “like kind” reinvestment in order to avoid paying capital gains tax. Around the time of the purchase, Norman wrote to Lawrence: “It is my intent and has always been that you retain ownership of the Florida Farm. I would like and need some of the profits but not to exceed 5% / year of value of money received from the Corp. of Engineers.” Lawrence contributed all of the proceeds of the previous sale toward the purchase of the Florida property.
Before trial, the parties provided differing values of Norman’s interest in the sale proceeds. Lawrence claimed the value was $23,478. This figure was based upon Norman’s assignment of his share of the proceeds in exchange for profits from the Florida property computed at 5% per year of the Nebraska property value until his death 19 months later. Maryam, on the other hand, asserted that the value of Norman’s share of the sale proceeds was $137,393.55, based on a calculation of his fractional interest in the proceeds using a “7520 rate” for the date of the sale. See 26 U.S.C. § 7520 (2000) (standardized valuation tables).
The district court determined that without Maryam’s consent, Norman transferred his life estate interest to Lawrence within 2 years of his death. Based solely on the absence of her consent, the court adopted her proposed valuation of Norman’s fractional interest in the proceeds.
To the Court of Appeals, Lawrence argued that the district court erred in including sale proceeds in the augmented estate, asserting that the forced nature of the sale, combined with the purported reinvestment agreement, did not separate the life estate from the remainder estate. In support, Lawrence cited authority prohibiting a court from separating a fife estate from the remainder as part of a forced sale:
“When not required by the exigencies of the situation, the separation of life estates from estates in remainder, by estimating the values of the former and paying such values to the life tenants, constitutes an unnecessary and therefore unauthorized infringement upon the testator’s intention. Hence, in the absence of some overpowering necessity, the court has no power to direct the separation of the life estate from the estate in remainder by estimating the value of the former and paying that value to the life tenant.” (Emphasis added.) 51 Am. Jur. 2d, Life Tenants and Remaindermen § 105.
Based upon this authority, Lawrence argued that the district court separated Norman’s life estate from Lawrence’s remainder without a showing of any “exigent circumstances.”
In contrast, Maryam disputed the characterization of the nature of the sale, asserting instead that it was voluntary. She further asserted that the treatise provision on which Lawrence relied was not applicable because it pertained exclusively to sales by court order. Instead, Maryam argued that the appropriate treatise section for reference was § 107, pertaining to voluntary sale by parties, which provides in part:
“When a life tenant and a remainderman unite in a nonjudicial sale of the property, without agreeing as to the division or disposal of the proceeds, the life tenant is entitled to receive, absolutely, from such proceeds the estimated value of his or her estate computed as of the time of the sale.” (Emphasis added.) 51 Am. Jur. 2d, Life Tenants and Remaindermen § 107.
In affirming the district court’s adoption of Maryam’s proposed valuation, the Court of Appeals agreed with Maryam that the treatise law cited by Lawrence dealt exclusively with an “ ‘interest in real estate . . . sold by court order[,]’ ” and was therefore not applicable. 35 Kan. App. 2d at 791 (quoting 51 Am. Jur. 2d, Life Tenants and Remaindermen § 105). The court then quoted 51 Am. Jur. 2d, Life Tenants and Remaindermen § 104, discussing the importance of the judicial sale/nonjudicial sale distinction: “ ‘The judicial or nonjudicial character of a sale greatly affects whether a life tenant is entitled, or may be compelled, to receive from the proceeds of a sale of the property which was subject to his or her estate.’ ” 35 Kan. App. 2d at 791.
Although the Court of Appeals acknowledged that the district court characterized the sale as “forced,” it noted that Lawrence admitted that he did not have to sell the property. 35 Kan. App. 2d at 791. The court concluded:
“The sale of the Nebraska realty was clearly not a judicial sale, and based upon this admission by Lawrence, it was not truly a ‘forced’ sale either. We adopt the rule set forth above as applicable, that when a life tenant and remainderman unite in a nonjudicial sale of their property, the life estate is entitled to receive the estimated value of his or her estate at the time of sale. We understand drat this is precisely what Maryam’s approach was intended to achieve.
“Given the stipulation as to the numerical calculation, we decline to examine the amount with more precision, and we affirm the district court’s adoption of Maryam’s approach together with the resulting inclusion of $137,393.55 in the augmented estate.” (Emphasis added.) 35 Kan. App. 2d at 791-92.
In addition to arguing that the lower courts erred in separating the life estate from the remainder and including the commuted value of the life estate in the augmented estate, Lawrence also asserts that Court of Appeals erred in disregarding the district court’s factual finding that the sale was “forced” under threat of condemnation and instead finding that the sale was voluntary.
At the outset we observe that contrary to Lawrence’s general assertion, the record does not establish that the district court specifically found that the Nebraska property was sold under “threat of condemnation.” However, he is correct that the court did refer to the sale as “forced,” as demonstrated by its conclusion of law 9: “That the decedent transferred his interest in the forced sale of certain real estate to his son Lawrence within two years of his death without consent of his surviving spouse.” (Emphasis added.)
However, the court made no factual findings supporting a forced sale. The court did refer to “a transfer of an asset to the son Lawrence.”
“(a) The decedent owned a life estate interest for which his son Lawrence was the remainderman, in a parcel of real property in Richardson County, Nebraska . . . which parcel was sold to the Corps of Engineers on September 22nd 1999 for the sum of $292,000.”
Even if we were so inclined, we would be hard-pressed to make a determination regarding force without observing witnesses. On the one hand, Lawrence testified the Army Corps of Engineers told him that it “wanted to condemn” the property and that the sale occurred “under threat of condemnation.” On the other hand, although the Corps initially contacted Lawrence, the Corps accepted Lawrence’s offer of sale. Lawrence also testified that he “didn’t have to sell [the property]” and that he “voluntarily signed [the] contract.”
More important, whether the sale was actually “forced” is not dispositive. As the Court of Appeals stated, according to 51 Am. Jur. 2d, Life Tenants and Remaindermen § 104, the present dispute first turns on the characterization of the sale as either judicial or nonjudicial, not forced or unforced. A “judicial sale” is defined as “[a] sale conducted under the authority of & judgment or court order[.]” (Emphasis added.) Black’s Law Dictionary 1365 (8th ed. 2004). Regardless of whether the sale was “forced,” the record does not demonstrate that it was required by court order or judgment. Further, Lawrence testified that eminent domain proceedings had not been initiated. We hold that the mere fact that the Corps could have condemned the property does not convert a nonjudicial sale into a judicial one.
Lawrence again cites 51 Am. Jur. 2d, Life Tenants and Remaindermen § 105. This section is not applicable because it specifically discusses property “taken in eminent domain.” However, Lawrence also points to an additional section of 51 Am. Jur. 2d, Life Tenants and Remaindermen § 107, “Sale by parties,” as in conflict with the rule adopted by the Court of Appeals:
“Still another view is that in a voluntary sale, commutation will be denied on the theory that there is no right to commutation when statutory authority to commute does not exist. Under this view, if property owned by a life tenant and remaindermen is voluntarily sold by them, the life tenant is not, in the absence of an agreement as to the disposition of the proceeds, absolutely entitled to such portion of the proceeds as represents the present worth of his or her life estate calculated upon his or her expectancy of life as indicated by mortality tables, but he or she may take only the income from the reinvested corpus until the termination of his or her interest by death. In this connection, some of the authorities have said very, generally, without making any distinction between judicial and voluntary sales, that under ordinary circumstances, the life tenant is not entitled to have the value of his or her life estate commuted and paid to him or her in gross instead of the annual interest on the fund, unless the parties in interest agree to it.”
This other section quoted by Lawrence does not appear to be the majority view; rather, the rule appears to apply in a limited number of states. See Miracle v. Miracle, 260 Ky. 624, 86 S.W.2d 536 (1935), and In re Oertle, 34 Minn. 173, 24 N.W. 924 (1885).
By contrast, the rule adopted by the Court of Appeals appears to be the rule of reason:
“The rule of commutation, at least as applied to nonjudicial sales, seems to be the rule of reason, that the owner of a life estate upon the sale thereof, in like manner as the owner of an interest in fee upon the sale thereof, is entitled to and perhaps should be compelled to take, the consideration received therefor.” Mt. Freedom Presbyterian Church v. Osborne, 81 N.J. Super 441, 446, 195 A.2d 907 (1963) (citing 33 Am. Jur., Life Estates, Remainders and Reversions § 275, p. 768).
See also Annot., 102 A.L.R. 969, section III (in the context of sale by parties):
“[It] is held, by the very decided numerical weight of authority, that, where a life tenant and remaindermen unite in a nonjudicial sale of property, without agreeing as to a division or disposal of the proceeds, the life tenant is entitled to receive, absolutely, from such proceeds the estimated value of his estate computed as of the time of the sale.” (Emphasis added.)
We conclude that the rule promoted by Maryam, and subsequently adopted by the Court of Appeals, should be adopted because it states a rational, majority view concerning nonjudicial sales. Such a rule undercuts the issues asserted by Lawrence.
Accordingly, the next question is whether Norman’s handwritten note to Lawrence was an “agreement as to a division or disposal of the proceeds[.]” See 51 Am. Jur. 2d, Life Tenants and Remaindermen § 107. The district court ruled from the bench that the handwritten note from Norman expressing his desire for 5% profits from the reinvestment was not an enforceable agreement because it lacked Lawrence’s signature and was not supported by consideration. Rather, it merely expressed what Norman expected. The Court of Appeals agreed, but without reference to a standard of review.
Whether a contract exists is a question of fact. Reimer v. The Waldinger Corp., 265 Kan. 212, 214, 959 P.2d 914 (1998); see also Augusta Bank & Trust v. Broomfield, 231 Kan. 52, 60, 643 P.2d 100 (1982) (‘Where the evidence pertaining to the existence of a contract is conflicting a question is presented for the trier of fact.”). An appellate court determines whether the finding is supported by substantial competent evidence; it is not concerned with evidence that might have supported contrary findings. 265 Kan. at 214. Our review of the language of the note itself reveals that such evidence exists to support the finding that no enforceable agreement, i.e., contract existed, in addition to revealing the note’s failure to speak to the actual disposal or division of the proceeds from the sale of the Nebraska property. Therefore, we affirm the district court and the Court of Appeals on the issue of valuing Norman’s life estate interest in proceeds from the sale of the Nebraska farmland.
Lawrence has also timely moved this court, pursuant to Supreme Court Rule 7.07(b) (2006 Kan. Ct. R. Annot. 57), for attorney fees and expenses incurred on appeal to this court in the amount of $47,093.28, with a supporting affidavit. Appellate courts are experts on the reasonableness of attorney fees. Link, Inc. v. City of Hays, 268 Kan. 372, 383, 997 P.2d 697 (2000). After consideration of all relevant factors and the motion, response, and reply, we conclude that Lawrence should recover an additional sum of $25,000 for reasonable attorney fees on appeal to this court, to be taxed as costs. See Lee Builders, Inc., v. Farm Bureau Mut. Ins. Co., 281 Kan. 844, 862, 137 P.3d 486 (2006).
Affirmed in part, reversed in part, and remanded with directions on the issue of valuing Norman’s 96% interest in HFLP transferred to Lawrence on March 1, 2000.
Johnson, J., not participating.
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Per Curiam,-.
This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator alleging that the respondent, Troy L. Daugherty, violated the Kansas Rules of Professional Conduct. The hearing panel unanimously recommends that Daugherty be indefinitely suspended from the practice of law in the state of Kansas.
Troy L. Daugherty, an attorney admitted to the practice of law in Kansas in September 1990, is also admitted to the practice of law in the states of Illinois and Missouri. Respondent’s last registration address with the Clerk of the Appellate Courts of Kansas is in Olathe, Kansas.
The complaint against respondent arises out of a final adjudication of a disciplinary action and sanctions in the state of Illinois, for which respondent received reciprocal attorney discipline and sanctions in the state of Missouri. The formal complaint here charged respondent with violating Kansas Rules of Professional Conduct (KRPC) 3.1 (2007 Kan. Ct. R. Annot. 500) (meritorious claims and contentions required), KRPC 3.3(a)(1) (2007 Kan. Ct. R. Annot. 508) (false statement of fact to a tribunal), KRPC 3.3(a)(4) (2006 Kan. Ct. R. Annot. 467) [now KRPC 3.3(a)(3) (2007 Kan. Ct. R. Annot. 508)] (offer evidence that the lawyer knows to be false), KRPC 3.4(b) (2007 Kan. Ct. R. Annot 514) (falsify evidence), KRPC 8.1(b) (2007 Kan. Ct. R. Annot. 553) (failing to respond to a demand for information from a disciplinary authority), and KRPC 8.4(b), (c), and (d) (2007 Kan. Ct. R. Annot. 559) (com mit a criminal act; engage in dishonesty, fraud, deceit or misrepresentation; and engage in conduct prejudicial to the administration of justice). When respondent did not file an answer to the formal complaint within 20 days as required by Supreme Court Rule 211(b) (2007 Kan. Ct. R. Annot. 304), a supplement to the formal complaint charged respondent with violating KRPC 8.1(b). Respondent eventually filed an answer to the formal complaint wherein he denied violating the KRPC and denied the findings of fact made by the Illinois Disciplinary Hearing Panel.
The Kansas Board for Discipline of Attorneys held a hearing on October 4, 2007. Respondent appeared pro se. At the hearing, the Disciplinary Administrator’s Exhibits 1 through 8 were admitted.
HEARING PANEL FINDINGS
The hearing panel found the following facts by clear and convincing evidence:
“2. On July 26,2005, the Illinois Attorney Registration and Disciplinary Commission filed a Complaint against the Respondent. Thereafter, on September 22, 2005, the Respondent filed an Answer to the Complaint.
“3. On September 2006, the Illinois Attorney Registration and Disciplinary Commission held a hearing before a Hearing Panel. Thereafter, on January 3, 2007, the Hearing Panel issued its Report and Recommendation. On March 19, 2007, die Supreme Court of Illinois approved and confirmed the Report and Recommendation of the Hearing Board. As a result, the Court suspended the Respondent’s license to practice law in the State of Illinois for one year. Additionally, the Illinois Supreme Court ordered that the Respondent’s license to practice law will not be reinstated until the Respondent satisfies his restitution obligation with the Morton Community Bank.
“4. The Report and Recommendation of the Hearing Panel, affirmed and confirmed by die Illinois Supreme Court, provides as follows:
INTRODUCTION
‘The hearing in this matter was held on September 18, 2006, at the Chicago, Illinois offices of the Attorney Registration and Disciplinary Commission (ARDC) before the Panel of James A. Shapiro, Chair, Roma J. Stewart, and David A. Winter. Robert J. Verrando represented the Administrator of the ARDC. Respondent appeared in person and proceeded pro se.
‘THE PLEADINGS
‘On July 26,2005, the Administrator filed a four-count Complaint against Respondent pursuant to Supreme Court Rule 753(b). The Complaint al leged that Respondent made misrepresentations in connection with a loan application, made false statements to a tribunal, committed peijury during a deposition, and failed to respond to the ARDC’s requests for information.
‘Respondent filed an Answer to the Complaint admitting some of the factual allegations, denying some of the factual allegations, and denying all allegations of misconduct.
‘THE EVIDENCE
‘The Administrator presented the testimony of two witnesses, called Respondent as an adverse witness, and tendered exhibits 1-13, which were admitted. Respondent testified on his own behalf.
‘Count I ‘Admitted Facts
‘In April 2001, Respondent agreed to purchase a 1997 Lincoln Town Car from Thomas Fincham. Also in April, Respondent represented to Morton Community Bank (Morton Bank) that he intended to purchase the car, and requested a loan for the purchase. On May 21, 2001, Respondent executed a document entitled “Consumer Note, Disclosure and Security Agreement” in favor of Morton Bank. On May 4, 2001, Morton Bank sent Respondent a check in the amount of $15,000 made payable to Respondent. At no time did Respondent purchase the car, give Morton Bank a security interest in any property in exchange for the loan, or repay the loan proceeds to Morton Bank.
‘Thomas Fincham
‘Thomas Fincham is an attorney licensed to practice law in Missouri. Fincham and Respondent worked at the same Missouri law firm for approximately two years. In early 2001, Fincham was attempting to sell a 1997 Lincoln Town Car, and Respondent expressed interest in purchasing it. He showed Respondent the car sometime between March and May 2001. The car was not damaged, and Respondent agreed to buy it for $15,000. On May 3, 2001, at Respondent’s request; Fincham sent Gene Hart at Morton Bank, via facsimile, a copy of the car’s title, and stated that Respondent was interested in purchasing the car.
‘Respondent never purchased the car and told Fincham that he could not obtain financing. The car had never been in an accident, and Fincham never told Respondent that it had been in one. However, when Fincham purchased the car, it was not new, and the salesman told him there had been some quarter panel damage that had been repaired. Fincham informed Respondent about the quarter panel damage before Respondent agreed to purchase tire car. After Respondent initially saw the car, someone threw a rock through the window on the driver’s side. Fincham told Respondent about the incident during a telephone conversation, and had the window repaired. He did not recall Respondent coming to his office to discuss the window or to inspect the car.
‘In February or March of 2002, Fincham received a telephone call from Hart asking him for the title to the car. He told Hart that he still owned the car, and had not sold it to Respondent. In February 2002, Fincham sold the car to someone else for $9,000. Fincham thought the price was low, but wanted to sell the car because he had purchased another one.
‘Gene Hart
‘In 2001, Gene Hart was the branch manager and loan officer at the Morton Bank. Respondent was a bank customer, and in early 2001 he told Hart he wanted to purchase a 1997 Lincoln Town Car, and requested a $15,000 auto loan. Hart called the seller of the car to get a copy of the title. Respondent did not complete a loan application because Respondent was an attorney, had several other loans with the bank, and had a good relationship with the bank. Respondent signed a “Consumer Note and Security Agreement” identifying the car, the amount of the loan, the payment schedule, and other terms of the loan. After receiving dre signed note, the bank sent Respondent a check for $15,000. Hart made the check payable to Respondent, and relied on Respondent’s integrity to send him the title.
‘On February 8, 2002, Hart sent Respondent a letter explaining that Respondent had failed to make the last two payments on the loan. Hart also informed Respondent that he had contacted tire seller of the car and learned that Respondent had not purchased it. Before sending the letter, Hart had attempted to discuss the late payments with Respondent by telephone but was unable to reach him, and Respondent failed to return Hart’s voicemail messages. Before February 2002, Respondent had made three or four payments. After that time, Respondent made several additional payments. The balance of the loan is approximately $9,000. Eventually, Morton Bank sued Respondent and obtained a judgment against him. The bank spent approximately $18,000 in attorney’s fees pursuing the matter.
‘The consumer note would have given the bank a security interest in the Lincoln Town Car if tire bank had received the title. The security interest would not have been transferable to another car without modifications to the loan. The bank made no modification to Respondent’s loan. Because Respondent did not purchase the Lincoln Town Car, the loan was unsecured.
‘Respondent
‘Respondent signed the consumer note which accurately described Fincham’s Lincoln Town Car. He also received and deposited the check for $15,000 from Morton Bank. He never told Hart that he failed to purchase the car.
‘Respondent testified he intended to buy the car, but never agreed to buy it, and only told Fincham he was interested in buying it. However, Respondent admitted he told Fincham he would pay $15,000 for the car, and applied for and obtained a loan to purchase the car. Initially, Fincham told Respondent the quarter panel had been damaged prior to his ownership, and he would have the car checked and tell Respondent if there was any frame damage. Before Fincham had the frame checked, the car was vandalized when the window was broken. Respondent decided not to buy the car after he saw the broken window, and determined that it was not worth $15,000. He used $10,000 of the loan proceeds to buy a different car, a Cirrus, and spent the remaining $5,000 on living expenses. He did not intend to defraud the bank, and thought he would repay the loan. He is still willing to repay the loan, but Morton Bank is demanding repayment of the loan and $18,000 in attorney’s fees. Respondent is unable to pay that much in a lump sum, but is willing to make payments.
‘Also im2001, Respondent was going through a divorce and representing a client in a wrongful death action, both of which were consuming a large amount of his time. In the wrongful death action, Respondent believed he would obtain a large settlement, and spent his own money on expert opinions and other costs of the litigation. He later learned that his client lacked standing, and was unable to pursue the case. Between his divorce and the wrongful death case, Respondent was having financial difficulties, and he defaulted on the Morton Bank loan.
‘Counts II and III ‘Admitted Facts
‘On April 25, 2002, Morton Bank filed a lawsuit against Respondent to recover the loan proceeds. On December 13, 2002, the circuit court entered a default judgment against Respondent. On October 9, 2003, Respondent filed a petition under chapter 7 of the Bankruptcy Code. On January 3, 2003, Morton Bank filed an adversary complaint with the bankruptcy court objecting to the dischargeability of his debt to the bank. Respondent filed an answer to the adversary complaint, admitting that the purpose of Morton Bank’s loan was to finance the purchase of a car, but stating Fincham had “wrecked” the car before Respondent could purchase it, the value of the car was “substantially diminished,” and repair of the car was uncertain due to “insurance entanglements.” On December 17, 2004, Respondent gave sworn testimony at a deposition in connection with the adversary complaint.
‘Respondent
‘After Respondent defaulted on the loan, Morton Bank filed a lawsuit against Respondent. Respondent filed an answer to the complaint. On December 3, 2002, a judgment in the amount of $15,251.60 was entered against Respondent.
‘On October 9, 2003, Respondent filed a bankruptcy petition, in which he listed the loan from Morton Bank. In the petition, Respondent also listed several credit card debts, $79,000 owed to the Internal Revenue Service for employee withholding taxes, and $31,000 owed to his ex-wife as part of the divorce settlement. In January 2004, Morton Bank filed an adversary complaint against Respondent in the bankruptcy proceedings claiming that the debt to the bank was not dischargeable because Respondent had obtained the loan by deceit.
‘In February 2004, Respondent filed an answer to the adversary complaint. Respondent admitted that the purpose of the loan was to purchase the Lincoln Town Car, and stated that he did not purchase the car because it was “wrecked by the then owner, its value substantially diminished, and the prospects of the repair of the vehicle in question due to insurance entanglements.” Respondent explained that the words “then owner” refer to the person who owned the car before Fincham, and that the value was substantially diminished because Fincham sold the car for $9,000 instead of $15,000. In paragraph 11 of the answer, Respondent stated he did not own the car, and that Morton Bank knew he did not own it. He also stated he “utilized tire funds to purchase an alternative vehicle in its stead.” In paragraph 13, Respondent said he “never owned the collateral because of its wrecked condition.”
‘During his deposition in the adversary proceeding, Respondent was asked about the damage to tire car, and he responded “somebody had T-boned the—this vehicle, the Lincoln Town Car.” He also stated “the whole side of the vehicle was substantially damaged.” Respondent acknowledged that he was wrong when he made these statements.
‘During the deposition Respondent further explained, “the damage looked very substantial. It was hard for me to envision the vehicle looking and being in the same condition as it was when I was first going to buy it and then looking at it in the condition it was in.” Respondent gave other incorrect answers at the deposition which he admitted were wrong and attributed to his lack of preparation for that testimony. For example, he repeatedly stated that Fincham was unsure if his or tire other driver’s insurance would pay for the damage to the car. Respondent was referring to the body damage that occurred before Fincham owned the car and not the broken window.
"When Respondent filed an answer to the adversaiy complaint and gave a deposition in the bankruptcy matter, he was confused about the condition of the car and believed his statements were accurate. He now acknowledges he was wrong when he said the car had been wrecked, but denies engaging in a four-year pattern of deceit.
‘Count IV ‘Admitted Facts
‘On January 5, 2005, counsel for the Administrator sent Respondent a letter requesting that he provid'e information relating to the Morton Bank loan. As of February 1, 2005, Respondent had not responded to the letter, and on that date, counsel for the Administrator sent a second letter requesting the same information. On April 5, 2005, Respondent had not responded to either letter, and counsel for the Administrator sent Respondent a subpoena duces tecum requiring his appearance and the production of documents at the Administrator’s office on May 3,2005. Respondent failed to appear on that date. As of July 19, 2005, the date of the Inquiry Panel meeting, Respondent had failed to provide the Administrator with the requested information.
‘Respondent
‘Respondent testified that he cooperated with the Administrator. He failed to respond to the subpoena because he did not have any of the documents requested by the Administrator. He sent the Administrator one letter along with his deposition from the adversary proceeding.
‘Evidence Offered in Mitigation
‘Respondent was licensed to practice law in 1985. He has performed pro bono legal services for [the] vast majority of his legal career, handling between one and three cases each year. Respondent acknowledged he made a mistake by failing to give the bank a security interest in the car he purchased, and he is sorry for making that mistake.
Trior Discipline
‘On January 30, 2004, the Supreme Court of the State of Kansas imposed a censure against Respondent. On January 14, 2005, the Illinois Supreme Court censured Respondent in a reciprocal discipline proceeding. The discipline was based on Respondent’s misconduct in 2001 involving neglect of two divorce matters and failing to communicate with those clients. After the clients discharged Respondent, he continued to bill them for legal work, including for responding to their disciplinary complaints. The Kansas decision noted that Respondent’s misconduct was aggravated by the harm he caused to his clients, the waste of court resources, and his failure to acknowledge his misconduct. In re Daugherty, 04 RC 1512, M.R. 19795 (January 14, 2005).
‘FINDINGS OF FACT AND CONCLUSIONS OF LAW
‘In attorney disciplinary proceedings, the Administrator must prove the alleged misconduct by clear and convincing evidence. Supreme Court Rule 753(c)(6); In re Ingersoll, 186 Ill. 2d 163, 168, 710 N.E.2d 390 (1999). It is well-settled that “clear and convincing evidence is a standard of proof which, while less than the criminal standard of proof beyond a reasonable doubt, is greater than the civil standard of preponderance of the evidence.” Cleary and Graham, Handbook of Illinois Evidence, § 301.6 (6th ed. 1994). This standard of proof is one in which the risk of error is not equally alio cated; rather, this standard requires a high level of proof, both qualitatively and quantitatively, from the Administrator. Santosky v. Kramer, 455 U.S. 745, 764-66, 102 S. Ct. 1388 (1982); In re Tepper, 96 CH 543, M.R. 14596 (1998) (Review Bd. Dec. at 12). Suspicious circumstances are insufficient to warrant discipline. In re Lane, 127 Ill. 2d 90, 111, 535 N.E.2d 866 (1989).
‘In this case, based on the evidence and testimony presented at the hearing, we find that the Administrator proved by clear and convincing evidence that Respondent engaged in all the misconduct alleged in the Complaint. Specifically, we find that Respondent: 1) advanced a claim the lawyer knows is unwarranted under existing law (Count II); 2) made a statement of material fact to a tribunal which the lawyer knew or reasonably should know is false (Count II); 3) offered evidence the lawyer knows to be false in appearing in a professional capacity before a tribunal (Count III); 4) participated in the creation of false evidence in appearing in a professional capacity before a tribunal (Count III); 5) failed to respond to a lawful demand for information form [sic] a disciplinary authority (Count IV); 6) engaged in conduct involving dishonesty, fraud, deceit or misrepresentation (Counts I, II, III); 7) engaged in conduct which is prejudicial to the administration of justice (Counts I, II, III, IV); and 8) engaged in conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute (Counts I, II, III, IV) in violation of Rules 1.2(f)(2), 3.3(a)(1), 3.3(a)(4), 3.3(a)(5), 8.1(a)(2), 8.4(a)(4), and 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.
‘Count I
‘We find Respondent engaged in the misconduct alleged in Count I of the Complaint. Respondent acted dishonestly when he obtained the loan from Morton Bank. He agreed to purchase the Lincoln Town Car from Fincham. He received a $15,000 loan from Morton Bank to purchase the car. He signed the loan documents agreeing to give Morton Bank a security interest in the car as collateral for the loan. Based on his representations to the bank and signing the loan documents, the bank gave him a $15,000 loan. Respondent received the loan proceeds and deposited them into his personal account. But he never purchased the car in which the bank was supposed to have a security interest.
‘Instead, he later used $5,000 for living expenses and $10,000 to buy a different car. Respondent never told Morton Bank that he failed to buy the Lincoln Town Car, or that he used part of the money to buy a different car. He also did not give the bank a security interest in the car he ultimately purchased. There is no question that Respondent’s conduct was dishonest and deceitful. He obtained the loan based on false statements and used the proceeds for other purposes without informing the bank. Although not charged by the Administrator, we believe Respondent’s conduct amounted to bank fraud.
‘Respondent argues he was not dishonest with Morton Bank because when he applied for and accepted the loan, he intended to purchase the car. According to Respondent, he decided not to purchase the car only after signing the loan documents. Even if Respondent’s testimony were believable, which it is not, he would not avoid a finding of misconduct. Regardless of when he decided not to purchase the car, he still failed to inform the bank of his decision and used the loan proceeds for a purpose other than purchasing the Lincoln Town Car. Respondent’s attempt to somehow justify his actions by claiming that he intended to purchase the car illustrates his complete lack of understanding of his misconduct.
‘Respondent also attempts to minimize his wrongdoing by arguing that if he had informed the bank of his decision to purchase a different car, the bank could have simply modified the loan documents and there would have been no problems. This argument is illogical. Respondent testified he ultimately purchased a Cirrus for $10,000. If he had informed the bank of this purchase, the bank would have had to significantly modify the loan documents. The original loan was based on the $15,000 value of the Lincoln Town Car. Assuming the Cirrus was worth $10,000, the bank would not have lent Respondent $15,000. The loan involved the bank receiving a security interest in the car, and the bank would not have given Respondent a loan for more than the value of the car.
‘Respondent’s conduct was also prejudicial to the administration of justice, defeated the administration of justice, and brought the legal profession into disrepute. One of the reasons the bank was so cooperative with Respondent was because he was an attorney and had had other loans with the bank. See In re Chandler, 161 Ill. 2d 454, 641 N.E. 2d 473 (1994). Respondent betrayed that trust and in so doing discredited the legal profession.
‘Counts II and III
“We also find Respondent engaged in all the misconduct alleged in Counts II and III of the Complaint by making false statements in his answer to the adversary complaint and in a deposition during the bankruptcy proceedings. Respondent failed to make payments on the Morton Bank loan. Morton Bank filed a complaint in the circuit court against Respondent, and in December 2002, obtained a default judgment against him. On October 9, 2003, Respondent filed a bankruptcy petition, which included the Morton Bank judgment. On January 3, 2004, Morton Bank filed an adversary complaint with the bankruptcy court objecting to the dischargeability of his debt to the bank. Respondent filed an answer to the adversary complaint, admitting the purpose of Morton Bank’s loan was to finance the purchase of the car, but stating it was “wrecked by the then owner, its value substantially diminished, and the prospects of the repair of the vehicle in question due to insurance entanglements. . .” Respondent also stated in the answer he “never owned the collateral because of its wrecked condition.”
‘In a subsequent deposition, Respondent was asked about the damage to the car, and he responded “somebody had T-boned the—this vehicle, the Lincoln Town Car.” He also stated “the whole side of the vehicle was substantially damaged.” He further explained, “the damage looked very substantial. It was hard for me to envision the vehicle looking and being in the same condition as it was when I was first going to buy it and then looking at it in the condition it was in.” Respondent also repeatedly stated that Fincham was unsure if his or the other driver’s insurance would pay for the damage to the car.
‘Respondent’s statements in the answer and deposition were false. Fincham testified the car was not “wrecked” and there were no insurance entanglements. He also testified the only damage the car had was before he owned it. When Fincham bought the car, the salesman told him one of the quarter panels had been repaired. Fincham told Respondent about the repair, but there was no sign of damage when Respondent initially looked at the car. After Respondent saw the car, the driver’s side window had been broken. Fincham told Respondent about that damage, had the window replaced, and there was no residual damage to the car. Fincham’s testimony was clear and unequivocal, and we find it credible. In re Smith, 168 111. 2d 269, 283, 659 N.E.2d 896 (1995). During the disciplinary hearing, Respondent admitted that he was incorrect when he made contrary statements in his answer and deposition.
‘Respondent claims he believed his statements were correct when he made them, but subsequently learned he was mistaken. We find Respondent’s testimony on this point not credible in the least. The Lincoln Town Car was never in an accident or suffered damage as Respondent described. There were no facts relating to the car even remotely similar to the ones propounded by him. He could not have been confused or mistaken. Instead, we find he fabricated a set of facts in an effort to defeat the bank’s adversary complaint. Based on Respondent’s testimony before us, and the facts of this case, we also believe Respondent knew these facts were false when he made them and intentionally lied during the bankruptcy proceedings.
‘Respondent further stated he failed to pay close attention to the loan transaction because he was distracted by his divorce and a wrongful death case he was handling. Although we understand the importance of these other matters, Respondent had an obligation to act properly regarding the loan transaction. His misconduct is not excused or explained by his involvement in the other matters. Furthermore, Respondent made the false statements in his answer and deposition long after those other matters con- eluded. He therefore has no excuse for making blatantly false statements in a court document and under oath after the distracting matters had long concluded.
‘Additionally, we find that the other matters explain, in part, the reason Respondent engaged in the misconduct. It is apparent that Respondent was having financial difficulties during the period of time he engaged in the misconduct. He admitted he was undergoing a divorce and his bankruptcy petition lists a $31,000 debt he owed to his wife. He also explained he had advanced large amount of money in the wrongful death action by taking cash advances on his credit cards. The case was ultimately dismissed, and he was unable to recover any of the money. We believe Respondent lied to the bank and misused the loan proceeds because of these financial problems and he fabricated the story about the car being in a wreck in an attempt to justify his misconduct.
‘Based on these facts, we find Respondent advanced a claim he knew was unwarranted, made a statement of material fact to a tribunal he knew or reasonably should have known was false, offered evidence he knew to be false when appearing in his professional capacity before a tribunal, participated in the creation of false evidence, engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, engaged in conduct that is prejudicial to the administration of justice, and engaged in conduct that tends to defeat tire administration of justice and bring the legal profession into disrepute. See In re Ingersoll, 186 Ill. 2d 165, 71 N.E.2d 390 (1999); In re Cagle, 03 SH 14, M. R. 20140 (September 26, 2005).
‘Count IV
“We further find that Respondent engaged in all of the misconduct alleged in Count IV of die Complaint. On January 5, 2005, the Administrator sent Respondent a letter requesting he provide information relating to the Morton Bank loan. Respondent failed to respond to the letter. On February 1, 2005, the Administrator sent Respondent a second letter requesting the same information. Respondent failed to respond to either letter, and on April 5, 2005, die Administrator sent Respondent a subpoena duces tecum requiring his appearance and the production of documents at the Administrator’s office on May 3, 2005. Respondent failed to appear on that date. As of July 19,2005, the date of the Inquiry Panel meeting, Respondent had failed to provide the Administrator with the requested information. On July 18, 2005, the Administrator received a letter from Respondent denying misconduct and giving die Administrator a copy of his deposition from the adversary proceeding.
‘Based on these facts, we find that Respondent failed to respond to a lawful demand for information from a disciplinary authority, engaged in conduct prejudicial to the administration of justice, and engaged in conduct that tends to defeat the administration of justice and brings the legal profession into disrepute.
‘RECOMMENDATION
‘The purpose of the disciplinary system is to protect the public, maintain the integrity of the legal system and safeguard the administration of justice. See In re Gorecki, 208 Ill. 2d 350, 802 N.E.2d 1194 (2003); In re Howard, 188 Ill. 2d 423, 721 N.E.2d 1126 (1999). “The Rules of Professional Conduct recognize that the practice of law is a public trust and lawyers are the trustees of the judicial system.” In re Smith, 168 Ill. 2d 269, 287, 659 N.E.2d 896 (1995). The objective of a disciplinary inquiry is not punishment, but to protect the public from incompetent or unscrupulous attorneys, maintain the integrity of the profession, and protect the administration of justice from reproach. See In re Twohey, 191 Ill. 2d 75, 727 N.E.2d 1028 (2000). In determining the appropriate sanction for an attorney’s misconduct, the purpose of the disciplinary system and the facts surrounding the misconduct must be considered. See In re Chernois, 114 Ill. 2d 527, 502 N.E.2d 722 (1986).
‘The discipline imposed on an attorney who has engaged in misconduct also depends on the aggravating and mitigating factors presented during that attorney’s disciplinary proceedings. See Gorecki, 208 Ill. 2d at 360-61. In this case there is one mitigating factor and several aggravating factors.
‘Respondent’s misconduct is mitigated by the fact he performed pro bono legal work throughout his career. Respondent testified that since 1985 he has handled between one and three case [sic] per year on a pro bono basis. We will consider this evidence in mitigation.
‘Respondent’s misconduct is aggravated by his prior discipline. Generally, prior discipline is a serious factor that aggravates subsequent misconduct, and typically causes a more severe sanction than might otherwise be imposed. In re Blank, 145 Ill. 2d 534, 585 N.E. 105 (1991). The nature of the prior misconduct and die period of time between the prior misconduct and the current misconduct are important elements to consider when determining the weight to be given to this aggravating factor. See In re Levin, 101 Ill. 2d 535, 463 N.E.2d 715 (1984).
‘In this case, Respondent’s prior disciplinary action is an aggravating factor. On Januaiy 30, 2004, the Supreme Court of the State of Kansas imposed a censure against Respondent based on misconduct occurring in 2001 and involved neglect of two divorce matters and failing to communicate with those clients. After the clients discharged Respondent, he continued to bill them for legal work, including for responding to their disciplinary complaints. Respondent’s misconduct was aggravated by the harm he caused his clients, the waste of court resources, and his failure to acknowledge his misconduct. On Januaiy 14, 2005, the Illinois Supreme Court censured Respondent in a reciprocal discipline proceeding.
‘Although the nature of the misconduct in the prior and current disciplinary actions are substantially different, we must acknowledge that this is Respondent’s second disciplinary action within a relatively short period of time and we consider his prior discipline an aggravating factor. Additionally, the prior and current misconduct involve similar aggravating facts.
‘Respondent also aggravated his misconduct by fading to recognize the seriousness of his misconduct or express remorse for his actions. Failing to recognize the seriousness of misconduct and the lack of remorse are aggravating factors that must be considered when determining the appropriate sanction. In re Lewis, 138 Ill. 2d 310, 562 N.E.2d 198 (1990). Respondent acknowledged he made a mistake when he faded to give the bank a security interest in the car he purchased, and is sorry for making that mistake. We found Respondent’s testimony on this point half-hearted and not convincing. Additionally, he faded to acknowledge the other misconduct, involving false statements during the adversary proceedings, or show remorse for it. Accordingly, we consider this a significant aggravating factor.
‘Respondent further aggravated his misconduct by failing to give truthful testimony. Respondent’s testimony under oath to this Panel and in the bankruptcy deposition is nothing short of a bald-faced lie. It is perjury. In our view, Respondent committed bank fraud, and the only reason he has not been prosecuted for it is that the loss amount is insufficient to pique the interest of the FBI or U.S. Attorney’s Office.
‘Respondent further aggravated his misconduct by causing harm to Morton Bank. Because of Respondent’s misconduct the bank was forced to sue him to recover the loan and pursue further relief in bankruptcy court. The loan is still unpaid and there has been a substantial delay in any recovery. Although Respondent’s misconduct is not related to any of his clients, it was committed for personal gain and caused financial harm and protracted inconvenience to the bank.
‘The fraudulent act of an attorney aicting in his own behalf in which he seeks personal gain, directly or indirectly, to the detriment of honesty, is no less reprehensible than when he acts on behalf of his client. It is our duty to supervise the professional conduct of lawyers practicing in Illinois, and the fulfillment of that duty necessarily requires inquiry into the private conduct of attorneys to the extent that such conduct relates to professional competence or the dignity of the legal profession. In re Chandler, 161 Ill. 2d 459, 473, 641 N.E.2d 473 (1994).
‘Having considered the aggravating and lack of mitigating factors, we must now recommend the appropriate sanction. The Administrator recommends Respondent be suspended from the practice of law for one year and for us to at least consider a suspension until further order of the court, and cites several cases supporting this recommendation. See In re Thebeau, 111 Ill. 2d 251, 489 N.E.2d 877 (1986) (attorney suspended for one year for notarizing a document without witnessing the signature and lying to the court); In re Levinson, 71 Ill. 2d 486, 376 N.E.2d 998 (1978) (attorney suspended for six months and until further order of the court after neglecting a case and failing to communicate with his client and demonstrating an inability to comply with his ethical obligations); In re Nalick, 02 SH 63, M.R. 19294 (May 27, 2004) (attorney suspended for one year after filing a bankruptcy petition containing false information); In re Lamis, 98 CH 63, M. R. 16112 (September 29,1999) (attorney suspended for 17 months for altering an affidavit and lying to the court about it); In re Passman, 93 CH 573, M.R. 12249 (March 26, 1996) (attorney suspended for nine months for creating a false stipulation in an effort to dismiss a wage garnishment). Respondent suggests a reprimand is warranted.
‘Respondent’s suggestion that he receive a reprimand is positively laughable. The Administrator’s request for a one-year suspension seems almost charitable. Consequently, we accept the Administrator’s suggestion and recommend that Respondent be suspended for one year and until he makes restitution to the bank, including interest on the $15,000 loan and reasonable attorney’s fees the bank incurred trying to collect it. Respondent is obviously a very bright lawyer. It is a shame to take him out of the legal community, but the public needs to be protected from his transgressions.
‘In Nalick, the attorney represented clients in a bankruptcy proceeding. A fire had destroyed the clients’ house and they had received numerous checks from their insurance company related to the fire. On the bankruptcy documents, Nalick failed to disclose the insurance proceeds the clients had received for loss of personal property. Additionally, at a creditor’s meeting, the clients denied receiving any insurance proceeds, and Nalick did nothing to correct their denial. The clients directed Nalick to dismiss the bankruptcy petition, but Respondent failed to do so. After his clients’ debts were discharged, the trustee filed a complaint to revoke the discharge based on the fraudulently concealed insurance proceeds. Nalick failed to respond to the complaint, the discharge was revoked, and sanctions were entered against him. In aggravation, Nalick had received a prior discipline for improperly handling client funds. He was suspended for one year.
‘In Thebeau, the attorney handled a probate matter for three brothers who agreed that one of them would purchase their deceased mother’s house through an installment contract. Thebeau prepared a contract showing the sale of the house was by a single payment, and filed that contract with tire court. He believed the installment contract would keep the estate open for several years. Thebeau also notarized the signatures of the three brothers on the installment contract without witnessing them sign it. He also notarized a quitclaim deed, knowing that one of the brothers had signed all the brothers’ names on it. In suspending Thebeau for one year, the Court characterized the misconduct as a deliberate course of conduct and a fraud against the judicial system that was “professionally outrageous.” Thebeau, 111 Ill. 2d at 255-56.
Tn In re Cagle, 03 SH 14, M.R. 20140 (September 26,2005), the attorney engaged in misconduct relating to three clients. In one bankruptcy matter, Cagle filed documents containing false information and failed to correct false statements made by her client. In a second matter, she failed to timely file a lawsuit, created a false file-stamped complaint, gave the complaint to her clients, and lied about the validity of the complaint to another attorney. In another matter, after a complaint she filed was dismissed, she took no action to refile the case, lied to her clients about the status of the case, and ignored inquiries from another attorney about the matter. Cagle also failed to timely respond to the Administrator’s requests for information. In mitigation, she had no prior discipline, presented character witnesses, and cooperated before the Hearing Board. In aggravation, she failed to show remorse, and caused harm to her clients. She was suspended for nine months.
‘After reviewing these cases, and considering Respondent’s misconduct and the mitigating and aggravating factors, we recommend that Respondent be suspended from the practice of law for one year. Respondent’s misconduct is similar to the misconduct in Thebeau, Nalick and Cagle where the attorneys made misrepresentations to courts to advance their cases. Also, Nalick and Respondent have few mitigating factors and similar aggravating factors including a prior discipline. Respondent’s case is distinguishable from Cagle’s, who had no prior discipline and received a shorter suspension.
‘As the Administrator suggested, we have considered a suspension until further order of the court but decline to impose it. Such as [sic] designation is appropriate where the attorney has demonstrated an inability to conform to normal standards of the legal profession or has repeated prior misconduct for which he was disciplined. See In re Houdek, 113 Ill. 2d 323,497 N.E.2d 1169 (1986); In re Levin, 101 Ill. 2d 535, 463 N.E.2d 715 (1984). Although Respondent has received a prior discipline, that case involved substantially different misconduct. We also do not believe that Respondent has demonstrated an inability to abide by his ethical obligations sufficient to require that the suspension remain in effect until further order of the court. None of the attorneys in Thebeau, Nalick or Cagle were suspended until further order of the court.
‘Moreover, a suspension until further order of the court might create a disincentive for Respondent to make restitution to the bank. We believe Respondent should make the bank whole, and that he should have every incentive to do so. Consequently, we are recommending that Respondent have keys to his own reinstatement. We recommend that Respondent’s suspension remain in effect until he makes full restitution to Morton Bank. Restitution should include repayment of the remaining loan principal with all applicable interest, and no more than $18,000 in attorney’s fees.
‘Therefore, in light of Respondent’s misconduct, and considering the mitigating and aggravating factors, and relevant case law, we recommend that Respondent be suspended from the practice of law for one year and until he pays restitution to Morton Bank.’
“5. On May 29, 2007, the Missouri Supreme Court issued an order suspending the Respondent’s license to practice law. The Missouri Supreme Court ordered that the Respondent’s license be suspended for a period of one year and that his license shall not be reinstated until he has made restitution as required by the Illinois Supreme Court.”
HEARING PANEL CONCLUSIONS
The hearing panel then made the following conclusions of law:
“1. Kan. Sup. Ct. R. 202 provides that ‘[a] final adjudication in another jurisdiction that a lawyer has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in tins state.’ Based upon the Respondent’s stipulation to the admission of Disciplinary Administrator’s Exhibits 1 through 8, the evidence presented at the hearing, including the Respondent’s failure to provide any evidence to controvert the factual findings contained in the Disciplinary Administrator’s Exhibits, and pursuant to Kan. Sup. Ct. R. 202, the Hearing Panel concludes that the Respondent engaged in misconduct.
“2. The Illinois Supreme Court concluded that the Respondent violated Illinois Rules of Professional Conduct 1.2(f)(2), 3.3(a)(1), 3.3(a)(4), 3.3(a)(5), 8.1(a)(2), 8.4(a)(4), and 8.4(a)(5).
“3. Illinois Rule of Professional Conduct 1.2(f)(2) provides that:
‘In representation of a client, a lawyer shall not . . . advance a claim or defense the lawyer knows is unwarranted under existing law, except that the lawyer may advance such claim or defense it if can be supported by a good-faith argument for an extension, modification, or reversal of existing law.’
The rule in Kansas that is most similar is KRPC 3.1. It provides:
‘A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.’
Pursuant to Kan. Sup. Ct. R. 202, the Hearing Panel concludes that the Respondent violated KRPC 3.1.
“4. The Illinois Supreme Court next concluded that the Respondent violated Illinois Rules of Professional Conduct 3.3(a)(1), 3.3(a)(4), and 3.3(a)(5). Those rules provide as follows:
‘(a) In appearing in a professional capacity before a tribunal, a lawyer shall not:
(1) make a statement of material fact or law to a tribunal which the lawyer knows or reasonably should know is false;
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures;
(5) participate in the creation or preservation of evidence when the lawyer knows or reasonably should know the evidence is false.’
KRPC 3.3(a)(1) and KRPC 3.3(a)(4) are substantially similar to Illinois Rule of Professional Conduct 3.3(a)(1) and 3.3(a)(4). KRPC 3.3(a)(1) and KRPC 3.3(a)(4) [KRPC 3.3(a)(4) is now KRPC 3.3(a)(3). The FHR cites the amended version of KRPC 3.3(a)(3).] provide as follows:
‘(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.’
KRPC 3.4(b) appears to be similar to Illinois Rule of Professional Conduct 3.3(a)(5). KRPC 3.4(b) provides:
‘A lawyer shall not:
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.’
Pursuant to Kan. Sup. Ct. R. 202, the Hearing Panel concludes that the Respondent violated KRPC 3.3(a)(1) and KRPC 3.3(a)(4).
“5. The Illinois Supreme Court also concluded that the Respondent violated KRPC [sic] 8.1(a)(2). That rule provides:
‘(a) An applicant for admission to the bar or a lawyer in connection with a bar admission application or in connection with a lawyer disciplinary matter, shall not:
(2) fail to disclose a fact necessary to correct a material misapprehension known by the person to have arisen in the matter, or fail to respond to a lawful demand for information from an admissions or disciplinaiy authority, except that this Rule does not require disclosure of information otherwise protected by these Rules or by law.’
A similar Kansas rule can be found at KRPC 8.1(b). It provides:
‘An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.’
Accordingly, pursuant to Kan. Sup. Ct. R. 202, the Hearing Panel concludes that the Respondent violated KRPC 8.1(b).
“6. Finally, the Illinois Supreme Court concluded that the Respondent violated Rule 8.4(a)(4) and 8.4(a)(5). Those rules provide:
‘(a) A lawyer shall not:
(4) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(5) engage in conduct that is prejudicial to the administration of justice. In relation thereto, a lawyer shall not engage in adverse discriminatory treatment of litigants, jurors, witnesses, lawyers, and others, based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status. This subsection does not preclude legitimate advocacy when these or similar factors are issues in the proceeding.’
In Kansas, similar rules can by found at KRPC 8.4(c) and KRPC 8.4(d), as follows:
‘It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice.’ Pursuant to Kan. Sup. Ct. R. 202, the Hearing Panel concludes that the Respondent violated KRPC 8.4(c) and KRPC 8.4(d).”
HEARING PANEL RECOMMENDATIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to the public and to the legal profession to maintain his personal integrity.
“Mental State. The Respondent knowingly and intentionally violated his duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual harm to the Morton Community Bank and to the legal profession.
“Aggravating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Prior Disciplinary Offenses. On January 30, 2004, the Kansas Supreme Court censured the Respondent for having violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.5, KRPC 1.16, and KRPC 8.4(g).
“Further, on March 19, 2007, the Illinois Supreme Court suspended the Respondent’s license to practice law in Illinois for a period of one year for misconduct included in this case. The Illinois Supreme Court further ordered that the Respondent’s license to practice law in that state will not be reinstated until he pays restitution to the Morton Community Bank. Finally, on May 29, 2007, the Missouri Supreme Court suspended the Respondent’s license to practice law in Missouri for one year for misconduct included in the instant case. The Missouri Supreme Court also ordered the Respondent to make restitution to the Morton Community Bank before his license will be reinstated. The Missouri and Illinois disciplinary cases, however, arise from the same offenses that are the basis of the instant disciplinary case. As a result, the Hearing Panel has not considered these two disciplinary cases as an aggravating factor.
“Dishonest or Selfish Motive. The Respondent's] misconduct was motivated by dishonesty and selfishness.
“Refusal to Acknowledge Wrongful Nature of Conduct. Throughout the Illinois disciplinary proceeding and continuing through the hearing held in the instant action, the Respondent has refused to acknowledge the wrongful nature of his conduct.
“Vulnerability of Victim. The Morton Community Bank was vulnerable to the Respondent’s misconduct. The bank made the loan without the routine formalities including a loan application because the Respondent is an attorney. The bank relied to its detriment on the Respondent’s integrity in making the loan.
“Substantial Experience in the Practice of Law. The Illinois Supreme Court admitted the Respondent to the practice of law in 1985. The Kansas Supreme Court admitted the Respondent to practice law in 1990. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for more than fifteen years. Accordingly, the Hearing Panel concludes 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 the Morton Community Bank.
“Mitigating Factors. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Personal or Emotional Problems if Such Misfortunes have Contributed to a Violation of the Kansas Rules of Professional Conduct. In 2001, the Respondent went through a bitter divorce. As a result of the divorce, the Respondent suffered financial difficulties. The Illinois Supreme Court stated:
‘... We believe Respondent lied to the bank and misused the loan proceeds because of these financial problems and he fabricated the story about the car being in a wreck in an attempt to justify his misconduct.’
Accordingly, the Hearing Panel concludes that the Respondent’s personal financial difficulties led to the Respondent’s misconduct.
“Imposition of Other Penalties or Sanctions. The Respondent’s license to practice in Illinois and Missouri has been suspended.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
“Standard 6.11. Disbarment is generally appropriate when a lawyer, with die intent to deceive the court, makes a false statement, submits a false document, or improperly widiholds material information, and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding.
“Standard 6.12. Suspension is generally appropriate when a lawyer knows diat false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes [an] adverse or potentially adverse effect on the legal proceeding.”
The panel recommended the following discipline:
“The Disciplinary Administrator recommended that the Hearing Panel impose the same discipline as imposed by the Illinois Supreme Court and the Missouri Supreme Court. The Respondent stated that he did not have an objection to the Disciplinary Administrator’s recommendation.
“The Report and Recommendation adopted by the Illinois Supreme Court contains strong, descriptive language regarding the Respondent’s misconduct. Specifically, the Illinois Supreme Court found that the Respondent’s conduct was dishonest and deceitful. Also, it concluded that he obtained the loan ‘based on false statements.’ Further, the Illinois Court stated its belief that the Respondent’s conduct ‘amounted to bank fraud.’ Finally, the Court concluded that the Respondent’s testimony was not credible, that ‘he fabricated a set of facts,’ and that he ‘intentionally lied during the bankruptcy proceedings.’ Findings such as these warrant a severe sanction.
“Lawyers must be trustworthy. If an attorney provides false testimony and engages in fraudulent conduct, the attorney forfeits the privilege of practicing law. The Hearing Panel believes that it should give due deference to the decisions of our sister states in such matters; however, the Illinois discipline is apparently based upon the consideration of tire discipline given for similar infractions to other lawyers in that state. Our Court has admonished us to consider each case sepa rately while being mindful of the standards. This Hearing Panel believes the standards, the Respondent’s conduct, and his current opinion that he is not blameworthy for the infractions, warrant a different discipline than that given in Illinois and Missouri and recommended by the Disciplinary Administrator.
“Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be indefinitely suspended from the practice of law in the State of Kansas. We are not certain that the effect of the recommended discipline will actually have a different result than the suspensions of our sister states with the added restitution requirement they have made, but we believe that the Respondent should be required to go through the reinstatement process before again practicing law in Kansas.”
DISCUSSION
In a disciplinary proceeding, we consider the evidence, the findings of the disciplinary panel, and the arguments of the parties to determine whether the respondent violated the KRPC and what discipline should be imposed. Attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. In re Landrith, 280 Kan. 619, 636, 124 P.3d 467 (2005); Supreme Court Rule 211(f) (2007 Kan. Ct. R. Annot. 304) (misconduct to be established by clear and convincing evidence).
The Respondent did not file any exceptions to the panel’s final report. A hearing panel’s final report is deemed admitted under Supreme Court Rule 212(c) and (d) (2007 Kan. Ct. R. Annot. 317) when a respondent fails to file exceptions. In re Devkota, 280 Kan. 650, 655, 123 P.3d 1289 (2005). We conclude the panel’s findings of fact are supported by clear and convincing evidence and support the panel’s conclusions of law. Further, we adopt the panel’s findings of fact and conclusions of law.
With respect to the discipline to be imposed, we have carefully reviewed the record and the recommendation of the panel. Although we would normally impose reciprocal discipline, as the Disciplinary Administrator recommended in this case, we believe the sanctions imposed by the Illinois Supreme Court and the Missouri Supreme Court were exceedingly lenient in light of the Illinois Hearing Panel’s opinion that Respondent committed bank fraud. Our view of bank fraud and the Respondent’s conduct as found in this complaint warrants more severe discipline. A majority of this court concurs with the hearing panel’s recommendation for Re spondent to be suspended indefinitely from the practice of law in the State of Kansas. A minority, however, would impose a harsher sanction, disbarment.
It Is Therefore Ordered that Respondent, Troy L. Daugherty, be and he is hereby disciplined by indefinite suspension from the practice of law in Kansas in accordance with Supreme Court Rule 203(a)(2) (2007 Kan. Ct. R. Annot. 261) for violation of KRPC 3.1; KRPC 3.3(a)(1); KRPC 3.3(a)(3); KRPC 3.4(b); KRPC 8.1(b); and KRPC 8.4(b), (c), and (d).
It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs of these proceedings be assessed to Respondent. | [
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The opinion of the court was delivered by
Beier, J.:
This appeal from a consolidated child in need of care (CINC) case and a paternity action arises out of an artificial insemination leading to the birth of twins K.M.H. and K.C.H. We are called upon to decide the existence and extent of the parental rights of the known sperm donor, who alleges he had an agreement with the children’s mother to act as the twins’ father.
The twins’ mother filed a CINC petition to establish that the donor had no parental rights under Kansas law. The donor sued for determination of his paternity. The district court sustained the mother’s motion to dismiss, ruling that K.S.A. 38-1114(f) was controlling and constitutional. That statute provides:
“The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife is treated in law as if he were not the birth father of a child thereby conceived, unless agreed to in writing by the donor and the woman.” K.S.A. 38-1114(f).
Factual and Procedural Background
Many of the underlying facts are undisputed. The mother, S.H., is an unmarried female lawyer who wanted to become a parent through artificial insemination from a known donor. She was a friend of the donor, D.H., an unmarried male nonlawyer, who agreed to provide sperm for the insemination. Both S.H. and D.H. are Kansas residents, and their oral arrangements for the donation occurred in Kansas, but S.H. underwent two inseminations with D.H.’s sperm in Missouri.
D.H. accompanied S.H. to a Missouri clinic for the first procedure and provided the necessary sperm to medical personnel. The first procedure did not result in a pregnancy. D.H. did not accompany S.H. to Missouri for the second procedure. Instead, he provided the sperm to S.H., and she delivered it to the Missouri physician responsible for the insemination. The second procedure resulted in S.H.’s pregnancy and the birth of the twins.
There was no formal written contract between S.H. and D.H. concerning the donation of sperm, the artificial insemination, or the expectations of the parties with regard to D.H.’s parental rights or lack thereof.
The twins were bom on May 18, 2005. The day after their birth, S.H. filed a CINC petition concerning the twins, seeking a determination that D.H. would have no parental rights. The petition identified D.H. as “[t]he minor children’s father” and alleged that the twins were in need of care “as it relates to the father” and that “the [f]ather should be found unfit and his rights terminated.” The petition continued to refer to D.H. throughout as the twins’ father.
On May 31, 2005, D.H. filed an answer to the CINC petition and filed a separate paternity action acknowledging his financial responsibility for the children and claiming parental rights, including joint custody and visitation. The CINC and paternity actions were consolidated. S.H. filed a motion to dismiss the paternity action, invoking K.S.A. 38-1114(f). After the motion was filed, the district judge raised questions concerning choice of law and the constitutionality of the statute and ordered the parties to brief these issues along with the other issues arising out of the motion to dismiss.
In her brief, S.H. argued Kansas law should apply because her original oral agreement with D.H. took place in Kansas; the parties reside in Kansas; the sperm resulting in the pregnancy was given to her by D.H. in Kansas; and the children reside in Kansas. In her view, the single fact that the procedure was performed by a doctor in Missouri did not constitute a significant contact with that state, and Missouri did not have a sufficient ongoing interest in the parties or in the subject matter of their dispute.
On the merits, S.H. principally relied upon K.S.A. 38-1114(f). S.H. argued that her CINC petition did not constitute her written assent to D.H.’s parental rights under K.S.A. 38-1114(f). She also asserted that the mutual preinsemination intent of the parties—as a single mother-to-be and a sperm donor only, not as coparents— was clear from their actions during the pregnancy. According to S.H., she sought out fertility tests and treatments on her own; D.H. did not attend the second procedure or sonograms or other prenatal medical appointments; and he did not provide emotional support or financial assistance during the pregnancy or after the twins’ birth. She also argued that D.H. was morally, financially, and emotionally unfit to be a father.
In his arguments in the district court, D.H. maintained that he had standing to file his paternity action as the biological father of K.M.H. and K.C.H. On choice of law, D.H. argued that Kansas conflict principles required the court to look to the place of either contract formation or contract performance. He asserted that the “more sensible” approach in this case would be to apply the law of the state where performance occurred, which was, according to him, where the artificial insemination was performed. D.H. said Missouri has no statute barring a presumption of paternity for a known sperm donor for an unmarried woman; paternity is proved by “consanguinity or genetic test.” D.H. also asserted that no doctor would perform an insemination on an unmarried woman in Topeka, Lawrence, or Kansas City, Kansas, and suggested a Kansas doctor could have had a duty to discuss the legal implications of the procedure under Kansas law while a Missouri doctor would not.
In the event the court held that Kansas law governed, D.H. argued that K.S.A. 38-1114(f) unconstitutionally deprived him of his right to care, custody, and control of his children and violated public policy “supporting] the concept of legitimacy and the con comitant rights of a child to support and inheritance.” If the statute is constitutional, he asserted, its dictate of nonpaternity of a sperm donor should not apply to him because he had provided his sperm to S.H. rather than to a licensed physician. He also cited the CINC petition’s identification of him as the twins’ “father” and its faulting of him for failing to do things consistent with parenthood. D.H. asserted the wording of the CINC petition was evidence of the parties’ mutual intent to take themselves out from under the statutory provision for nonpaternity. He also contended that he had offered financial assistance and attempted to visit the children in the hospital after their birth and on subsequent occasions, but that he was prevented from doing so by S.H.
The district judge ruled that Kansas law governed, that K.S.A. 38-1114(f) was constitutional and applicable, and that the CINC petition did not constitute a written agreement departing from the provision for nonpaternity set forth in the statute. The judge therefore granted S.H.’s motion, concluding as a matter of law that D.H. had no legal rights or responsibilities regarding K.M.H. and K.C.H.
Issues on Appeal
On appeal, both parties reiterate the arguments they made to the district court, and D.H. alleges for tire first time that another statutory provision and equity favor his side of the case. We therefore address six issues: (1) Did the district judge err in ruling that Kansas law would govern? (2) Did the district judge err in holding K.S.A. 38-1114(f) constitutional under the Equal Protection and Due Process Clauses of the Kansas and the federal Constitutions? (3) Did the district judge err in interpreting and applying the “provided to a licensed physician” language of K.S.A. 38-1114(f)? (4) Did the district judge err in determining that the CINC petition did not satisfy the requirement of a writing in K.S.A. 38-1114(f)? (5) Did K.S.A. 38-1114(a)(4) grant D.H. parental rights? and (6) Does equity demand reversal of the district court?
On this appeal, we also have the benefit of briefs from two amici curiae—one from the Washburn University School of Law’s Children and Family Law Center (Center), which argues that K.S.A. 38-1114(f) is unconstitutional as applied to knoum sperm donors, and one from family law professors Joan Heifetz Hollinger, et al., who argue that K.S.A. 38-1114(f) is constitutional and that it should be applied consistently with its plain language to bar D.H.’s assertion of paternity.
Standing and Standard of Review
The parties do not appear to dispute D.H.’s standing to bring a paternity action at this stage in the proceedings, but we note briefly as a preliminary matter that his standing is not in serious doubt. K.S.A. 38-1115(a)(l) permits a child “or any person on behalf of such a child” to bring a paternity action “to determine the existence of a father and child relationship presumed under K.S.A. 38-1114.” It is D.H.’s position that his fatherhood of the twins should be presumed under the statute.
Regarding standard of review, each of the issues raised on appeal presents a pure question of law reviewable de novo by this court. Kluin v. American Suzuki Motor Corp., 274 Kan. 888, 893, 56 P.3d 829 (2002). Although S.H.’s motion was titled “Motion to Dismiss,” the district judge considered materials beyond the pleadings, essentially treating the motion as one for summary judgment. We are therefore mindful of our often stated standard of review following summary judgment in the district court: We must view the evidence in the light most favorable to the nonmoving party, D.H. See Wachter Management Co. v. Dexter & Chaney, Inc., 282 Kan. 365, 368, 144 P.3d 747 (2006). The district court’s judgment for the moving party, S.H., should be affirmed on appeal if there remains no genuine issue of material fact for trial and the case is appropriate for disposition in her favor as a matter of law. See K.S.A. 60-256; Scott v. Hughes, 281 Kan. 642, 644, 132 P.3d 889 (2006); Kluin, 274 Kan. at 893.
Choice of Law
The United States Supreme Court has held:
“In deciding constitutional choice-of-law questions, whether under the Due Process Clause or the Full Faith and Credit Clause, this Court has traditionally examined the contacts of the State, whose law was applied, with the parties and with the occurrence or transaction giving rise to the litigation. [Citation omitted.] In order to ensure that the choice of law is neither arbitrary nor fundamentally unfair [citation omitted], the Court has invalidated the choice of law of a State which has had no significant contact or significant aggregation of contacts, creating state interests, with the parties and the occurrence or transaction.” Allstate Ins. Co. v. Hague, 449 U.S. 302, 308, 66 L. Ed. 2d 521, 101 S. Ct. 633 (1981).
Various factors are relevant to a choice-of-law determination, including the procedural or substantive nature of the question involved, the residence of the parties involved, and the interest of the State in having its law applied. Sun Oil Co. v. Wortman, 486 U.S. 717, 736,100 L. Ed. 2d 743,108 S. Ct. 2117 (1988) (Brennan, J., concurring). “ ‘As long as Kansas has “ ‘significant contact or [a] significant aggregation of contacts’ ... to ensure that the choice of Kansas law is not arbitrary or unfair,” constitutional limits are not violated.’ [Citations omitted.]” Brenner v. Oppenheimer & Co., 273 Kan. 525, 534, 44 P.3d 364 (2002); see Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 818, 86 L. Ed. 2d 628, 105 S. Ct. 2965 (1985) (citing Allstate Ins. Co. v. Hague, 449 U.S. at 312-13); Dragon v. Vanguard Industries, Inc., 277 Kan. 776, 790, 89 P.3d 908 (2004). Also, to the extent this case is viewed as a contractual dispute, Kansas courts apply the Restatement (First) of Conflict of Laws § 332 (1934), and the doctrine of lex loci contractus, i.e., the law of the state where the contract is made governs. See ARY Jewelers v. Krigel, 277 Kan. 464, 481, 85 P.3d 1151 (2004); Wilkinson v. Shoney’s, Inc., 269 Kan. 194, 209-10, 4 P.3d 1149 (2000); Foundation Property Investments v. CTP, 37 Kan. App. 2d 890, Syl. ¶ 4, 159 P.3d 1042 (2007); Layne Christiansen Co. v. Zurich Canada, 30 Kan. App. 2d 128, 141-42, 38 P.3d 757 (2002). A contract is made where the last act necessary for its formation occurs. ARY Jewelers, 277 Kan. at 481-82; Wilkinson, 269 Kan. at 210; Foundation Property Investments, 37 Kan. App. 2d at 894-95; Layne Christiansen Co., 30 Kan. App. 2d at 141-43.
“Generally the party seeking to apply the law of a jurisdiction other than the forum has the burden to present sufficient facts to show that other law should apply. Failure to present facts sufficient to determine where the contract is made may justify a default to forum law.” Layne Christensen Co., 30 Kan. App. 2d at 143-44. In addition, we note that Kansas courts have often leaned toward a lex fori, or law of the forum, approach, opting to apply Kansas law absent a clear showing that another state’s law should apply. See Dragon, 277 Kan. at 790; Systems Design v. Kansas City P. O. Employees Cred. Union, 14 Kan. App. 2d 266, 269, 788 P.2d 878 (1990). Moreover, our Court of Appeals has recognized in a case focused on the legitimacy of a child that, “[i]n our current mobile society, place of conception of child carries little weight [in choice-of-law determination].” In re Adoption of Baby Boy S., 22 Kan. App. 2d 119, 126, 912 P.2d 761, rev. denied 260 Kan. 993, cert, denied 519 U.S. 870 (1996). Instead, “[w]hether a child is legitimate is determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the child and the parent”; considerations include “the relative interests of those states in the determination of the particular issue,” “the protection of justified expectations,” “the basic policies underlying the particular field of law,” and the “certainty, predictability and uniformity of result.” Restatement (Second) of Conflict of Laws §§ 6, 287 (1) & comment d (1969).
D.H. urges us to follow the lead of the Illinois Supreme Court in In Re Marriage of Adams, 133 Ill. 2d 437, 447, 551 N.E.2d 635 (1990), which applied the law of the state where an insemination was performed because it would “fulfill the participants’ expectations and . . . help insure predictability and uniformity of result.”
In Adams, a husband and wife had been Florida residents; their consultations concerning fertility options occurred in Florida; the artificial insemination from an anonymous donor was performed by a Florida doctor in his Florida clinic; and the baby was bom in Florida and was a Florida resident until the wife moved herself and the child to her parents’ home in Illinois and then filed for divorce. The husband sought a determination of nonpaternity, and the court determined that Florida law should govern because Florida had a more significant relationship than Illinois to the parentage dispute. 133 Ill. 2d at 447.
The facts of this case bear little resemblance to the facts of Adams. Here, the parties are Kansas residents. Whatever agreement that existed between the parties was arrived at in Kansas, where they exchanged promises supported by consideration, and D.H. literally delivered on his promise by giving his sperm to S.H. The twins were bom in Kansas and reside in Kansas. The only fact tying any of the participants to Missouri is the location of the clinic where the insemination was performed.
Under these circumstances, we hold that Kansas law applies and that significant contacts and a significant aggregation of contacts with Kansas make application of our law to the parties’ claims not only appropriate but also constitutional. This choice is neither arbitrary nor unfair; neither party would have been justified in expecting Missouri to have a controlling interest as to any dispute between them.
Constitutionality ofKS.A. 38-1114(f)
In his brief, D.H. makes a general allegation that K.S.A. 38-1114(f) offends the Constitution. The cases he cites in support discuss both the Equal Protection Clause and the Due Process Clause; we thus presume his challenge relies upon each of these provisions. See U.S. Const, amend. XIV; Kan. Const. Bill of Rights, §§ 2, 18. At oral argument before this court, D.H. conceded that his rights under these provisions do not differ as between the federal and state Constitutions. He also acknowledged that he no longer challenges the statute as unconstitutional on its face; rather, he argues it cannot be constitutionally applied to him, as a known sperm donor who alleges he had an oral agreement with the twins’ mother that granted him parental rights. The amicus brief filed by the Center further clarifies that the constitutional challenge before us is only to the statute as applied to D.H.
The Center insists the statute deprives D.H. of parental rights without due process of law and without a required finding of unfitness. It urges us to dispense with a literal reading of the statute’s language, invoking the purported purpose of the Kansas Parentage Act, K.S.A. 38-1110 et seq,, to encourage fathers to acknowledge paternity and child support obligations voluntarily. It also emphasizes that courts should seek a result geared to the best interests of the child, in this case advancing a public policy favoring the right of every child to two parents, regardless of the means of the child’s conception.
As mentioned in summary above, our review of whether a statute is constitutional raises a question of law reviewable de novo. In re Tax Appeal of CIG Field Services Co., 279 Kan. 857, 866-67, 112 P.3d 138 (2005). In addition,
“ ‘[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. In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond substantial doubt.’ [Citations omitted].” State v. Rupnick, 280 Kan. 720, 736, 125 P.3d 541 (2005).
Given the relative newness of the medical procedure of artificial insemination, and thus the newness of K.S:A. 38-1114(f)’s attempt to regulate the relationships arising from it, it is not surprising that the issue raised by D.H. is one of first impression, not only in Kansas but nationally. We therefore begin our discussion of the constitutionality of the statute by surveying the landscape of various states’ laws governing the rights of sperm donors for artificial insemination. This landscape and its ongoing evolution provide helpful context for our analysis of K.S.A. 38-1114(f).
The majority of states that have enacted statutes concerning artificial insemination state that the husband of a married woman bears all rights and obligations of paternity as to any child conceived by artificial insemination, whether the sperm used was his own or a donor’s. See, e.g., Ala. Code § 26-17-21(a) (1992) (“If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived.”); see also Cal. Fam. Code § 7613(a) (West 2004) (same); Colo. Rev. Stat. § 19-4-106(1) (West 2005) (same); Ill. Comp. Stat. ch. 750 40/3(a) (West 1999) (same); Minn. State § 257.56 Subd. 1 (2007); Mo. Rev. Stat. 210.824(1) (2000) (same); Mont. Code Ann. § 40-6-106(1) (2005); Nev. Rev. Stat. § 126.061(1) (2005) (same); N.J. Stat. Ann. § 9:17-44(a) (2002) (same); N.M. Stat. Ann. § 40-ll-6(A) (Michie 2006) (same); Ohio Rev. Code Ann. § 3111.95(A) (Anderson 2003) (sim ilar); Wis. Stat. § 891.40(1) (2005-06) (same). Further, several of these states’ statutes provide that a donor of semen used to inseminate a married woman will not be treated in law as the father of any child conceived, if he is not the woman’s husband. See, e.g., Ala. Code § 26-17-21(b) (1992) (“The donor of semen provided to a licensed physician for use in artificial insemination of a married woman other than the donor’s wife is treated in law as if he were not the natural father of a child thereby conceived.”); Minn. Stat. § 257.56 Subd. 2 (2007) (same); Mo. Rev. Stat. § 210.824(2) (2000) (same); Mont. Code Ann. § 40-6-106(2) (2005) (same); Nev. Rev. Stat. § 126.061 (2) (2005) (same). One court has observed that these two rules protect the expectations of the married couple, the best interests of the child, and the expectations of the donor. See People v. Sorensen, 68 Cal. 2d 280, 284-88, 66 Cal. Rptr. 7, 437 P.2d 495 (1968).
The 1973 Uniform Parentage Act, promulgated by the National Conference of Commissioners on Uniform State Laws, 9B U.L.A. 377 (2001), provided the model for many of the state artificial insemination statutes that incorporate these two rules. See, e.g., Cal. Fam. Code § 7613; N.M. Stat. Ann. § 40-11-6. Section 5 of the original uniform Act provided:
“(a) If, under the supervision of a licensed physician and with tire consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were die natural father of a child thereby conceived. The husband’s consent must be in writing and signed by him and his wife. The physician shall certify their signatures and the date of the insemination, and file the husband’s consent with the [State Department of Health], where it shall be kept confidential and in a sealed file. However, the physician’s failure to do so does not affect the father and child relationship. All papers and records pertaining to the insemination, whether part of the permanent record of a court or of a file held by the supervising physician or elsewhere, are subject to inspection only upon an order of the court for good cause shown.
“(b) The donor of semen provided to a licensed physician for use in artificial insemination of a married woman other than the donor’s wife is treated in law as if he were not the natural father of a child thereby conceived.” (Emphasis added.) Uniform Parentage Act (1973) § 5; 9B U.L.A. at 407-08.
The wording of this original Act and statutes that imitated it did not address the determination of a sperm donor’s paternity when an unmarried woman conceived a child through artificial insemination. The earliest case to address this particular question arose in a state that had not yet adopted any statute regarding the effects of the procedure.
In that case, C.M. v. C.C., 152 N.J. Super. 160, 377 A.2d 821 (1977), a sperm donor filed a paternity suit, seeking parental rights to a child bom when the child’s unmarried mother artificially inseminated herself with the donor’s sperm. In that case, the mother and the donor had been in a long-standing romantic relationship; the donor testified they were contemplating marriage; the mother wanted a child but did not want to have sexual intercourse before marriage; and the insemination procedure was performed at the mother’s home. Three months into the pregnancy, the mother ended her relationship with the donor, and she refused him access to the child after its birth.
The New Jersey court relied upon a common-law presumption of paternity to award visitation rights to the donor as the “natural father” of the “illegitimate child.” Had the mother and the donor been married and conceived the child through artificial insemination, the court said, the donor would have been considered the child’s father. Given the evidence that the parties had intended to parent the child together, the court believed the same result should follow, despite the absence of wedding vows. 152 N.J. Super, at 165-68.
Certain states other than New Jersey either anticipated the need for their original statutes to govern the relationship of a sperm donor to the child of an unmarried recipient as well as a married recipient or modified their original uniform Act-patterned statutes to remove the word “married” from the § 5 (b) language. This meant these states’ statutes contained complete bars to paternity for any sperm donor not married to the recipient, regardless of whether the recipient was married to someone else and regardless of whether the donor was known or anonymous. An example of such a provision reads: “The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife is treated in law as if he were not the natural father of a child thereby conceived.” See, e.g., Cal. Fam. Code § 7613(b) (West 2004); Ill. Comp. Stat. ch. 750 40/3(b) (West 1999); Wis. Stat. § 891.40(2) (2005-06) (same); see also Colo. Rev. Stat. § 19-4-106(2) (West 2005) (substantially similar); Conn. Gen. Stat. § 45a-775 (2007) (similar); Idaho Code § 39-5405 (2002) (similar); Ohio Rev. Code Ann. § 3111.95(B) (Anderson 2003) (same); Va. Code Ann. § 20-158(A)(3) (2004) (substantially similar).
Four cases interpreting one of these types of statutes covering both married and unmarried recipients and establishing an absolute bar to donor paternity were decided before a 2000 amendment to the uniform Act made it applicable to unmarried as well as married recipients of donor sperm. See Uniform Parentage Act (2000); 9B U.L.A. 295 (West 2001).
The first of the four arose in California in 1986. In that case, Jhordan C. v. Mary K., 179 Cal. App. 3d 386, 224 Cal. Rptr. 530 (1986), a donor provided sperm to one of two unmarried women who had decided to raise a child together. California had adopted the language of the 1973 Uniform Act with the exception that it had omitted the word “married” in the second subsection. Jhordan C., 179 Cal. App. 3d at 392 (citing then-existing Cal. Civ. Code § 7005 [West 1979], which now appears, substantially unchanged, in Cal. Fam. Code § 7613 [West 2004]). As the court put it:
“[T]he California Legislature has afforded unmarried as well as married women a statutory vehicle for obtaining semen for artificial insemination without fear that the donor may claim paternity, and has likewise provided men with a statutory vehicle for donating semen to married and unmarried women alike without fear of liability for child support. Subdivision (b) states only one hmitation on its application: the semen must be ‘provided to a licensed physician.’ Otherwise, whether impregnation occurs through artificial insemination or sexual intercourse, there can be a determination of paternity with the rights, duties and obligations such a determination entails.” Jhordan C., 179 Cal. App. 3d at 392.
Because the parties had no doctor involved in the donation or insemination and thus the sperm was never “provided to a licensed physician,” the court ruled that the case before it fell outside the statute. It therefore affirmed the lower court’s recognition of the donor’s paternity. Jhordan C., 179 Cal. App. 3d at 398. Although the court addressed its ruling’s impact on the constitutional rights of the two women, it did not address any constitutional implications for the donor. Jhordan C., 179 Cal. App. 3d at 395-96.
The second case, In Interest of R.C., 775 P.2d 27 (Colo. 1989), arose in Colorado in 1989. In that case, the district court had refused to admit proffered evidence of an agreement that the donor would act as a father based on relevance; it granted the unmarried mother’s motion to dismiss the donor’s paternity suit based on Colorado’s statute. The Colorado provision, like that in California, applied to both married and unmarried recipients and contained a blanket bar to donor parental rights. See Colo. Rev. Stat. § 19-4-106.
The Colorado Supreme Court reversed the district court and remanded for findings of fact. It explicitly rejected the idea that an unmarried recipient lost the protection of the statute “merely because she knows the donor.” R.C., 775 P.2d at 35. And it did not reach the equal protection and due process challenges raised by the donor. However, it concluded the statute was ambiguous and refused to apply its absolute bar to paternity because the known donor had produced evidence of an oral agreement that he would be treated as father of the child. R.C., 775 P.2d at 35.
The next case, McIntyre v. Crouch, 98 Or. App. 462, 780 P.2d 239 (1989), cert, denied 495 U.S. 905 (1990), involved an unmarried woman who artificially inseminated herself with a known donor’s semen. The donor sought recognition of his paternity, and both he and the woman sought summary judgment. The Oregon artificial insemination statute read:
“If the donor of semen used in artificial insemination is not the mother’s husband: (1) Such donor shall have no right, obligation or interest with respect to a child bom as a result of the artificial insemination; and (2) A child bom as a result of the artificial insemination shall have no right, obligation or interest with respect to the donor.” Ore. Rev. Stat. § 109.239 (1977).
The donor challenged this statute under equal protection and due process principles. He swore out an affidavit in support of summary judgment and argued he had relied on an agreement with the mother that he “would remain active” in the child’s life and “participate in all important decisions concerning the child.” 98 Or. App. at 464. He sought visitation and said that he was willing and able to accept the same level of responsibility for the support, education, maintenance, and care of the child and for pregnancy-related expenses that he would have had if the child had been bom from his marriage to its mother. The district court ruled that the donor’s paternity claim was barred by the Oregon statute.
The McIntyre court began its analysis by reciting its equal protection standard of review, which was strict scrutiny, a standard more searching than that applied to such claims in Kansas. See generally State v. Limon, 280 Kan. 275, 283-87, 122 P.3d 22 (2005) (equal protection challenge based on gender discrimination does not require strict scrutiny, i.e., showing classification necessary to serve compelling state interest; rather, court applies intermediate scrutiny, i.e., classification must substantially further legitimate legislative purpose); see Chiles v. State, 254 Kan. 888, 891-93, 869 P.2d 707, cert, denied 513 U.S. 850 (1994); Farley v. Engelken, 241 Kan. 663, 669, 740 P.2d 1058 (1987). The Oregon court stated: “A statute that gives a privilege to women while denying it to men is inherently suspect and subject to strict scrutiny, unless the classification (1) is based on specific biological differences between men and women and (2) is rationally related to the purposes of the statute.” McIntyre, 98 Or. App. at 469.
Under this standard, the Oregon court ruled that the statute before it drew an acceptable “classification of unmarried males and unmarried females . . . based on biological differences .... Only a male could contribute the sperm to accomplish conception; only a female could conceive and bear the child.” 98 Or. App. at 469-470. Further, the classification was rationally related to the purposes of the statute, which were: (1) to allow married couples to have children, even though the husband was infertile, impotent, or ill; (2) to allow an unmarried woman to conceive and bear a child without sexual intercourse; (3) to resolve potential disputes about parental rights and responsibilities: that is, (a) the mother’s husband, if he consents, is father of the child, and (b) an unmarried mother is free from any claims by the donor of parental rights; (4) to encourage men to donate semen by protecting them against any claims by the mother or the child; and (5) to legitimate the child and give it rights against die mother’s husband, if he consented to the insemination. 98 Or. App. at 467-68, 470. Thus the statute did not offend equal protection either on its face or as applied.
The court also rebuffed the donor’s due process challenge to the statute on its face. 98 Or. App. at 470. However, the donor also argued that the statute violated due process under the federal and state Constitutions as applied to him, a known donor who had an agreement with the mother to share the rights and responsibilities of parenthood. The court agreed the statute would violate the Due Process Clause of the Fourteenth Amendment as applied to the donor if such an agreement was proved. 98 Or. App. at 470-72.
On this point, the court looked to Lehr v. Robertson, 463 U.S. 248, 261, 77 L. Ed. 2d 614, 103 S. Ct. 2985 (1983), an adoption case. Lehr dealt with the necessity of notice of pending adoption proceedings to an unwed father who had not filed with New York’s putative father registry and had never established a substantial relationship with the child. The Court stated:
“When an unwed father demonstrates a full commitment to die responsibilities of parenthood by ‘com[ing] forward to participate in the rearing of his child,’ [citation omitted], his interest in personal contact with his child acquires substantial protection under the Due Process Clause. . . . But the mere existence of a biological link does not merit equivalent constitutional protection.” Lehr, 463 U.S. at 261 (quoted in McIntyre, 98 Or. App. at 470).
The Lehr Court ultimately held that the State’s failure to notify the father of adoption proceedings did not deny him due process of law. 463 U.S. at 264-65. No substantive due process right to care, custody, and control of the child had vested in a man who could demonstrate nothing more than a biological link to his offspring. 463 U.S. at 258-62. The Lehr Court noted, however, that an unwed father who demonstrated “a full commitment to the responsibilities of parenthood” could not be absolutely barred from asserting his parental rights without a violation of due process. 463 U.S. at 261.
The McIntyre court reasoned that the Due Process Clause should afford no less protection to a sperm donor who had facilitated artificial insemination than an unwed father, “provided that [the sperm donor] could prove the facts” in his summary judgment affidavit that tended to support the existence of an agreement with the mother and his reliance upon it. Because the court concluded the constitutionality of the Oregon statute as applied to this donor would turn on whether he was given an opportunity to establish those facts, summary judgment in favor of the mother was reversed. 98 Or. App. at 472.
The last of the four cases, C. O. v. W. S., 64 Ohio Misc. 2d 9, 639 N.E.2d 523 (1994), also concluded, as the McIntyre court did, that a statute purporting to be an absolute bar to paternity of sperm donors, while constitutional in the absence of an agreement to the contrary, could be unconstitutional as applied when the donor can establish that an agreement to share parenting existed between him and the unmarried woman who was the recipient of the sperm. 64 Ohio Misc. 2d at 12.
In C.O., the Ohio statute at issue stated: “If a woman is the subject of a non-spousal artificial insemination, a donor shall not be treated in law or regarded as the natural father of a child conceived as a result of the artificial insemination, and a child so conceived shall not be treated in law or regarded as the natural child of the donor.” See Ohio Rev. Code Ann. § 3111.95 (Anderson 2003). The statute also required artificial insemination to be conducted under the supervision of a physician. As in Jhordan C., an unmarried woman had inseminated herself with a known donor s sperm. Although the court ultimately determined the statute was inapplicable because the mother had failed to comply with the physician involvement requirement, it further opined that the statute would violate due process if applied to the donor, because he and tire mother, at the time of the procedure, had agreed there would be a relationship between the donor and the child. 64 Ohio Mise. 2d at 12.
Since the Uniform Act was amended in 2000 to state simply, “A donor is not a parent of a child conceived by means of assisted reproduction,” two of our sister states have decided three additional cases addressing statutes with identical or substantively indistinguishable provisions governing sperm donors and unmarried recipients. Steven S. v. Deborah D., 127 Cal. App. 4th 319, 25 Cal. Rptr. 3d 482 (2005); In re H.C.S., 219 S.W.3d 33 (Tex. App. 2006); In re Sullivan, 157 S.W.3d 911 (Tex. App. 2005).
Two of these cases come from Texas. They do not add much to the legal landscape with which we are concerned in this appeal because their outcomes were driven by standing, not an issue before us. See H.C.S., 219 S.W.3d 33 (known donor lacked standing to pursue parentage adjudication; child conceived through assisted reproduction by unmarried donor’s sister’s same-sex partner using donor’s sperm); Sullivan, 157 S.W.3d 911 (known donor had standing to maintain paternity action; parties had signed preinsemination agreement stating donor would be treated as if he, mother were married).
The third case, Steven S., 127 Cal. App. 4th 319, from California, involved an unmarried woman and a known sperm donor who tried artificial insemination; when that resulted in a miscarriage, they attempted to conceive through sexual intercourse, also without success. Finally, a second artificial insemination attempt resulted in conception. The donor initially was veiy involved with the pregnancy and the child, and he filed a paternity action when the child was 3 years old.
The district court noted that California’s statute presented a bar to paternity for unmarried sperm donors, but ruled in favor of the donor based on equitable estoppel. The donor was known; he had engaged in sexual intercourse with the unwed mother; and she had acknowledged him as the child’s father and had allowed him to participate in the pregnancy and celebrate the birth of the child. The California Court of Appeals reversed, holding that the “words of [Cal. Fam. Code] section 7613, subdivision (b) are clear” and that, under such facts, “[t]here can be no paternity claim” because of the statute’s absolute bar. Steven S., 127 Cal. App. 4th at 326.
None of these three decisions raised or reached the equal protection or due process challenges raised by the donor here.
Where does our Kansas statute fit into this landscape and its ongoing evolution?
In 1985, Kansas became one of the states that adopted portions of the Uniform Parentage Act of 1973 regarding presumptions of paternity, but it did not adopt any provision relating to artificial insemination. See L. 1985, ch. 114, sec. 5 (H.B. 2012).
In 1994, Kansas amended its statute to incorporate the 1973 Uniform Act’s § 5(b) as K.S.A. 38-1114(f). See L. 1994, ch. 292, sec. 5 (Subst. H.B. 2583). It did not differentiate between known and unknown or anonymous donors, but it did make two notable changes in the uniform language.
As discussed above, although the 1973 Uniform Act governed tire paternity of children born only to married women as a result of artificial insemination with donor sperm, the version adopted by Kansas omitted the word “married.” See K.S.A. 38-1114(f). This drafting decision demonstrates the legislature’s intent that the bar to donor paternity apply regardless of whether the recipient was married or unmarried.
The other alteration in the 1973 Uniform Act’s language is directly at issue here. The Kansas Legislature provided that a sperm donor and recipient could choose to opt out of the donor paternity bar by written agreement. See K.S.A. 38-1114(f). The legislative record contains no explanation for this deviation from the 1973 Uniform Act’s language. See Minutes of the House Judiciary Committee, January 19, 1994, and February 25, 1994.
This second drafting decision is critical and sets this case apart from all precedent. Our statute’s allowance for a written agreement to grant a sperm donor parental rights and responsibilities means that, although we may concur with the McIntyre and C.O. courts in their constitutional analyses of absolute-bar statutes, we need not arrive at the same result. K.S.A. 38-1114(f) includes exactly the sort of escape clause the Oregon and Ohio courts found lacking— and unconstitutional—in their statutes.
Ultimately, in view of the requirement that we accept as true D.H.’s evidence supporting existence of an oral agreement, we are faced with a very precise question: Does our statute’s requirement that any opt-out agreement between an unmarried mother and a known sperm donor be “in writing” result in an equal protection or due process violation? Although several other states have adopted statutes like K.S.A. 38-1114(f), including language permitting an unmarried woman and a sperm donor to avoid the statutory bar and provide for the paternity of the donor through an “agreement in writing”—see Ark. Code Ann. § 9-10-201 (2002); Fla. Stat. § 742.14 (2005); N.H. Rev. Stat. Ann. § 168-B:3(I)(e) (2002); N.J. Stat. Ann. § 9:17-44(b) (2002); N.M. Stat Ann. § 40-11-6(B) (2006)—none of the courts of these states has yet subjected such a statute to a constitutional crucible. We do so now, as K.S.A. 38-1114(f) is applied to D.H.
Equal Protection
K.S.A. 38-1114(f) draws a gender-based line between a necessarily female sperm recipient and a necessarily male sperm donor for an artificial insemination. By operation of the statute, the female is a potential parent or actual parent under all circumstances; by operation of the same statute, the male will never be a potential parent or actual parent unless there is a written agreement to that effect with the female. As discussed with counsel for the parties at oral argument before this court, the male’s ability to insist on father status effectively disappears once he donates sperm. Until that point, he can unilaterally refuse to participate unless a written agreement on his terms exists. After donation, the male cannot force the fatherhood issue. The female can unilaterally decide if and when to use the donation for artificial insemination and can unilaterally deny any wish of the male for parental rights by refusing to enter into a written agreement.
The guiding principle of equal protection analysis is that similarly situated individuals should be treated alike. Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985); State v. Limon, 280 Kan. 275, 283, 122 P.3d 22 (2005). In Kansas, as before the United States Supreme Court, statutory gender classifications such as this classification in K.S.A. 38-1114(f) are subject to intermediate, or heightened, scrutiny. Limon, 280 Kan. at 283-87; Chiles, 254 Kan. at 891-93; Farley, 241 Kan. at 669; see Reed v. Reed, 404 U.S. 71, 76-77, 30 L. Ed. 2d 225, 92 S. Ct. 251 (1971). In order to pass muster under the federal and state equal protection provisions, a classification that treats otherwise similarly situated individuals differently based solely on the individuals’ genders must substantially further a legitimate legislative purpose; the government’s objective must be important, and the classification substantially related to achievement of it. Ne vada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 729, 155 L. Ed. 2d 953, 123 S. Ct. 1972 (2003); United States v. Virginia, 518 U.S. 515, 533, 135 L. Ed. 2d 735, 116 S. Ct. 2264 (1996); Farley, 241 Kan. at 669.
Given the biological differences between females and males and the immutable role those differences play in conceiving and bearing a child, regardless of whether conception is achieved through sexual intercourse or artificial insemination, we are skeptical that S.H. and D.H. are truly similarly situated. However, assuming for purposes of argument that they are, we perceive several legitimate legislative puiposes or important governmental objectives underlying K.S.A. 38-1114(f).
As the McIntyre court observed about the Oregon statute, K.S.A. 38-1114(f) envisions that both married and unmarried women may become parents without engaging in sexual intercourse, either because of personal choice or because a husband or partner is infertile, impotent, or ill. It encourages men who are able and willing to donate sperm to such women by protecting the men from later unwanted claims for support from the mothers or the children. It protects women recipients as well, preventing potential claims of donors to parental rights and responsibilities, in the absence of an agreement. Its requirement that any such agreement be in writing enhances predictability, clarity, and enforceability. Although the timing of entry into a written agreement is not set out explicitly, the design of the statute implicitly encourages early resolution of the elemental question of whether a donor will have parental rights. Effectively, the parties must decide whether they will enter into a written agreement before any donation is made, while there is still balanced bargaining power on both sides of the parenting equation.
In our view, the statute’s gender classification substantially furthers and is thus substantially related to these legitimate legislative purposes and important governmental objectives. K.S.A. 38-1114(f) establishes die clear default positions of parties to artificial insemination. If these parties desire an arrangement different from the statutory norm, they are free to provide for it, as long as they do so in writing. Encouraging careful consideration of entiy into parenthood is admirable. Avoidance of the limbo in which D.H. finds himself is a worthy legislative goal. We therefore hold that the application of K.S.A. 38-1114(f) to D.H. does not violate equal protection.
Due Process
Neither D.H. nor the Center explicitly addresses whether the due process challenge to K.S.A. 38-1114(f) in this case is based on procedural due process principles or substantive due process doctrine. Nor did the Oregon or Ohio courts that decided McIntyre and C.O. draw this distinction or comment upon it. See 98 Or. App. at 471-72; 64 Ohio Mise. 2d at 12. To the extent D.H.’s due process argument is couched in procedural language, i.e., that K.S.A. 38-1114(f)’s requirement of a writing, strictly interpreted, denies him “a meaningful opportunity to be heard” on the claim that there was, in fact, an oral agreement, we simply disagree. Indeed, for purposes of ruling on the propriety of the district judge’s summary disposition in favor of S.H., we accept D.H.’s evidence that there was an oral agreement. Still, he has been denied no procedural right to which he was entitled; the statute merely sets up a burden of proof that his own inaction before donating his sperm left him unable to meet.
D.H.’s ignorance of the statute’s requirement of a writing to record any agreement between him and S.H. as to his parental rights does not necessitate a ruling that the statute cannot be constitutionally applied to him. See Jhordan C. v. Mary K., 179 Cal. App. 3d 386, 389, 224 Cal. Rptr. 530 (1986) (court analyzes applicability of artificial insemination statute despite parties’ ignorance of it); see also Lehr v. Robertson, 463 U.S. 248, 264, 77 L. Ed. 2d 614, 103 S. Ct. 2985 (1983) (failure to file with putative father registry out of ignorance of law insufficient reason to criticize law itself); State ex rel. Murray v. Palmgren, 231 Kan. 524, 536, 646 P.2d 1091 (1982) (ignorance of the law is no excuse). It is apparent to us that the only potentially meritorious due process argument before us focuses on the assertion of D.H.’s fundamental right to care, custody, and control of his children. This raises a substantive due process concern, rather than a problem over the absence of a specific procedural protection. Indeed, if anything, D.H. and the Center advocate for less rather than more formality in process; they regard the requirement of a writing to memorialize any agreement between a sperm donor and a recipient as so heavy a procedural burden that it tips the constitutional scales in favor of D.H. here.
In addition to relying on McIntyre and C.O., which, as previously discussed, addressed complete-bar statutes unlike our own, D.H. and the Center emphasize the United States Supreme Court’s decision in Lehr. See 463 U.S. at 261. Lehrs facts limit its utility here. As mentioned above, that case involved an unwed biological father petitioning to set aside an order of adoption based on his failure to be notified of the adoption proceedings. A New York statute guaranteed protection of any interest such a putative father could have in assuming a responsible role in the future of his child: The father in Lehr had failed to avail himself of this protection and had taken no other action that would have established a protectable interest in the child. While a state may not absolutely bar a biological parent from asserting parental rights—the proposition for which D.H. and the Center cite Lehr—Kansas has not done so. Even a sperm donor with no relationship to a child’s mother can forge and protect his parental rights by insisting on a written agreement.
D.H. and the Center argue that D.H.’s other efforts to assert his entitlement to and intention to exercise parental rights-—stymied, they say, by S.H.—should be enough. S.H., of course, casts D.H.’s behavior in a considerably less favorable light. Again, however, for purposes of review of the district judge’s summary deposition in S.H.’s favor, we accept D.H.’s version of events. The infirmity in his substantive due process argument does not He in those factual allegations for which he has provided evidence in the record, including his allegation of an oral agreement; the infirmity lies in the absence of any proof of an agreement with S.H. in writing.
We simply are not persuaded that the requirement of a writing transforms what is an otherwise constitutional statute into one that violates D.H.’s substantive due process rights. Although we agree with the Center that one goal of the Kansas Parentage Act as a whole is to encourage fathers to voluntarily acknowledge paternity and child support obligations, the obvious impact of the plain language of this particular provision in the Act is to prevent the creation of parental status where it is not desired or expected. To a certain extent, D.H. and the Center evidently misunderstand the statute’s mechanism. It ensures no attachment of parental rights to sperm donors in the absence of a written agreement to the contrary; it does not cut off rights that have already arisen and attached.
We are confident this legislative design realizes the expectation of unknown or anonymous sperm donors, whether their motive for participation in artificial insemination is altruistic or financial. To the extent it does not realize the expectation of a known sperm donor, the statute tells him exactly how to opt out, how to become and remain a father. If, as the Center argues, genetic relationship must be destiny, then an anonymous donor with no intention to be a father would nevertheless automatically become one. It is evident to us the legislature chose an alternate arrangement. Neither D.H. nor the Center has convinced us there is a constitutional mandate for this court to make an independent policy choice.
We also reject the argument from D.H. and the Center that the statute inevitably makes the female the sole arbiter of whether a male can be a father to a child his sperm helps to conceive. This may be true, as we discussed above, once a donation is made, a recipient who becomes pregnant through artificial insemination using that donation can refuse to enter into an agreement to provide for donor paternity. This does not make the requirement of written agreement unconstitutional. Indeed, it is consistent with United States Supreme Court precedent making even a married pregnant woman the sole arbiter, regardless of her husband’s wishes, of whether she continues a pregnancy to term. See Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 69-71, 49 L. Ed. 2d 788, 96 S. Ct. 2831 (1976). As discussed above, before a donation is made, a prospective donor has complete autonomy to refuse to facilitate an artificial insemination unless he gets an agreement in writing to his paternity terms. This is more than most fathers, wed or unwed to their children’s mothers, can ever hope for. See Note and Comment, A Tale of Three Women: A Survey of the Rights and Responsibilities of Unmarried Women Who Conceive by Alternative Insemination And A Model for Legislative Reform, 19 Am. J. L. & Med. 285, 304 (1993) (absence of executed writing evidence donor failed to, in words of Lehr, “grasp opportunity” to parent; chance to condition donation upon execution of agreement puts donor in control). The requirement that a sperm donor’s and recipient’s agreement be in writing does not violate D.H.’s due process rights.
All of this being said, we cannot close our discussion of the constitutionality of K.S.A. 38-1114(f) without observing that all that is constitutional is not necessarily wise. We are mindful of, and moved by, the Center’s advocacy for public policy to maximize the chance of the availability of two parents—and two parents’ resources—to Kansas children. We are also aware of continued evolution in regulation of artificial insemination in this and other countries. In particular, Britain and The Netherlands now ban anonymous sperm donations, near-perfect analogs to donations from known donors who will have no role beyond facilitating artificial insemination. These shifts formally recognize the understandable desires of at least some children conceived through artificial insemination to know the males from whom they have received half of their genes. The Human Fertilisation and Embryology Authority Act of 1990, as amended by Disclosure of Donor Information, Regulations 2004 No. 1511 (requiring, effective April 2005, British donors’ identities to be made available to donor-conceived children when children become 18); Netherlands Embryos Bill, Article 3 Dutch Ministry of Health, Welfare, and Sport (2004) www.minvws.nl/en (effective June 2004, child bom using donated sperm has right to obtain information about biological father at age 16). As one such child recently wrote,
“[tjhose of us created with donated sperm won’t stay bubbly babies forever. We’re all going to grow into adults, and form opinions about the decision to bring us into the world in a way that deprives us of the basic right to know where we came from, what our history is and who both our parents are.”
Clark, My Father was an Anonymous Sperm Donor, The Washington Post, December 17, 2006, at B01 (also currently available at http://www.washingtonpost.com/wp-dyn/ content/article/2006/ 12/15/AR200612l501820.html). We sympathize. However, weighing of the interests of all involved in these procedures as well as the public policies that are furthered by favoring one or another in certain circumstances, is the charge of the Kansas Legislature, not of this court.
“Provided to a Licensed Physician”
D.H.’s next argument on appeal is that the district judge erred in applying K.S.A. 38-1114(f) to him because his sperm was not “provided to a licensed physician,” as required by the statute. Instead, it was provided to S.H., who, in turn, provided it to the medical personnel who performed the insemination.
D.H. opens this argument by citing a Kansas Court of Appeals case involving a petition to terminate the rights of a putative father for the proposition that “[sjtatutes pertaining to adoption, relinquishment, or termination of parental rights are strictly construed as they affect a parent’s liberty interest in the custody and control of his or her children.” In re J.A.C., 22 Kan. App. 2d 96, Syl. ¶ 3, 911 P.2d 825 (1996). This case has no influence on our de novo standard of review here. As discussed at length with regard to the constitutionality of K.S.A. 38-1114(f), absent a written agreement to the contrary, D.H. is not a putative father. He is a sperm donor only. His link to the twins is purely, and solely, biological. It does not give rise to a constitutionally protected right. See Lehr, 463 U.S. at 261.
When we are called upon to interpret a statute, we first attempt to give effect to the intent of the legislature as expressed through the language enacted. 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 legislative history construing the statute to effect the legislature’s intent. See CPI Qualified Plan Consultants, Inc. v. Kansas Dept. of Human Resources, 272 Kan. 1288, 1296, 38 P.3d 666 (2002); State v. Robinson, 281 Kan. 538, 539-40, 132 P.3d 934 (2006).
Again, K.S.A 38-1114(f) states in pertinent part: “The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor s wife is treated in law as if he were not the birth father of a child . . . .” D.H.’s argument focuses on the phrase “provided to licensed physician,” essentially reading it to say “directly and personally provided to a licensed physician” or “provided to a licensed physician by the donor.” This argument lacks merit.
The language of the statute is clear and unambiguous, and we will not add to it, as D.H. suggests. The words “the donor” form the subject of the predicate “is treated as if he were not the birth father.” The lengthy dependent clause “provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife” modifies “semen.” K.S.A. 38-1114(f) does not require the donor himself to provide his sperm to the physician performing the insemination. It requires only that the donor’s sperm be provided to the physician by an unspecified someone or something. The fact that S.H. was that someone here did not prevent application of the statute to this situation.
“Unless Agreed to in Writing”
Assuming arguendo the constitutionality and applicability of K.S.A. 38-1114(f), D.H. next argues that the statute’s requirement of a written agreement should be deemed satisfied by the CINC petition filed by S.H. or by the CINC petition and his paternity petition, read together. He asserts that the statute sets forth no requirement that a written agreement be entered into at or before the time of the insemination and points out that the CINC petition referred to him “56 times” as the twins’ “father.” S.H. argues that there was no “meeting of the minds” between her and D.H. regarding coparenting and that the pleadings evidence none.
There is no technical definition of “agreed to” or “writing” in the Kansas Parentage Act of which K.S.A. 38-1114(f) is a part. Although these words or forms of them are defined elsewhere in Kansas statutes, see, e.g., K.S.A. 2006 Supp. 84-1-201(3) (defining “agreement” as used in Kansas version of Uniform Commercial Code); K.S.A. 2006 Supp. 84-1-201(46) (defining “written,” “writing” as used in same), these definitions, by their terms, are inapplicable. We therefore give these words as used in K.S.A. 38-1114(f) the meaning accorded them in everyday English. See GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001).
When we do so, there can be no doubt that the pleadings filed by the parties are “in writing.” However, interpreting them separately or together to prove the parties “agreed to” D.H.’s status as a father would require Lewis Carroll’s looking glass. The absence of such an agreement necessitated the drafting and filing of the pleadings in the first place. Their existence and substance do not memorialize accord, rather, its opposite. A CINC petition to terminate D.H.’s parental rights under K.S.A. 38-1531 may have been an odd procedural vehicle for effecting S .H.’s desire—a court order stating that D.H. never acquired any parental rights under K.S.A. 38-1114(f). A declaratoiy judgment action might have been better suited to her legal position. But she and her counsel were in uncharted waters. We will not hold that the pleadings constitute a written agreement by operation of law.
Parental Rights Under KS.A. 38-1114(a)(4)
In the final paragraphs of his brief on appeal, D.H. argues that this case should be controlled by K.S.A. 38-1114(a)(4) rather than K.S.A. 38-1114(f). K.S.A. 38-1114(a)(4) provides:
“(a) A man is presumed to be the father of a child if:
“(4) The man notoriously or in writing recognizes paternity of the child, including but not limited to a voluntary acknowledgment made [by amendment of birth certificate] in accordance with K.S.A. 38-1130 or [filing of birth certificate under K.S.A.] 65-2409a, and amendments thereto.”
In his brief before the district court, D.H. attempted to reserve “the right to make claims based on ratification, estoppel, and common law,” but this specific contention under K.S.A. 38-1114(a)(4) was never raised below. Nevertheless, given the status of this case as one of first impression and the potential for denial of funda mental rights, see In re M.M.L., 258 Kan. 254, 261, 900 P.2d 813 (1995), we address its merit.
A specific statute controls over a general statute. See State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. 293, 311, 955 P.2d 1136 (1998). Likewise, a specific provision within a statute controls over a more general provision within the statute. K.S.A. 38-1114(f) is far more specific to cases involving artificial insemination by a sperm donor such as D.H. than the general presumption of paternity set out in K.S.A. 38-1114(a)(4). D.H.’s claim under K.S.A. 38-1114(a)(4) is without merit.
Equity
For the first time in his appellate reply brief, D.H. asserts that the district court must be reversed because S.H. has “unclean hands.” In essence, he argues that he, a nonlawyer, was tricked by lawyer S.H., who failed to inform him of the statute and failed to explain how the absence of independent legal advice or a written agreement could affect his legal rights. He asserts that he asked S.H. about whether he needed a lawyer or whether they should put their arrangement in writing and was told neither was necessary. This behavior, he alleges, may have constituted a violation of S.H.’s ethical duties as a licensed lawyer.
Despite D.H.’s attempt in his district court brief to reserve “the right to make claims based on ratification, estoppel, and common law,” this invocation of equity was never further preserved for review by pursuit in the district court or by inclusion in his opening appellate brief. See McGinley v. Bank of America, N.A., 279 Kan. 426, 444, 109 P.3d 1146 (2005) (issue not briefed by appellant deemed waived, abandoned); Titterington v. Brooke Insurance, 277 Kan. 888, Syl. ¶ 3, 89 P.3d 643 (2004) (“[a] point raised only incidentally in a party’s brief but not argued in the brief is deemed abandoned”); Board of Lincoln County Comm’rs v. Nielander, 275 Kan. 257, 268, 62 P.3d 247 (2003) (issue not raised in district court not preserved for appellate court). Even if we would nonetheless be inclined to reach its merit, given the posture of the case and the fundamental nature of the rights in play, we also are prevented from doing so by an inadequate appellate record of the underlying facts. See State ex rel. Stovall v. Alivio, 275 Kan. 169, 172, 61 P.3d 687 (2003) (duty of party to furnish appellate record sufficient to enable review of issue). D.H. never proffered evidence to support his assertions of nefarious conduct by S.H. The evidence he presented to the district court focused only on the existence of an oral agreement and his efforts at support; even assuming all of this evidence to be true, it is insufficient under what we have held is a constitutional statute.
Generally speaking, mere ignorance of the law is no excuse for failing to abide by it. State ex rel. Murray v. Palmgren, 231 Kan. 524, 536, 646 P.2d 1091 (1982). There may be a case in the future in which a donor can prove that the existence of K.S.A. 38-1114(f) was concealed, or that he was fraudulently induced not to obtain independent legal advice or not to enter into a written agreement to ensure creation and preservation of his parental rights to a child conceived through artificial insemination. This is not such a case.
Affirmed.
Allegrucci, Nuss, Luckert, and Rosen, JJ, not participating.
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The opinion of the court was delivered by
Nuss, J.:
Marc Vincent Sappington directly appeals his convictions of three counts of first-degree murder, one count of kidnapping, and one count of aggravated burglary against four different victims. Our jurisdiction is under K.S.A. 22-3601(b)(l), conviction of an off-grid crime.
Approximately 2 months after these convictions, Sappington was also convicted of first-degree felony murder and attempted aggravated robbery for a different episode. His appeal from those convictions is the subject of State v. Sappington, 285 Kan. 176, 169 P.3d 1107 (2007).
The issues on appeal, and this court’s accompanying holdings, are as follows:
1. Did the district court err in failing to instruct the jury on the defense of voluntary intoxication? No.
2. Did the district court err in refusing to grant Sappington’s request for new counsel? No.
3. Did the district court err in refusing to allow the defense to put on certain evidence about Sappington’s mother’s schizophrenia? No.
4. Did the district court err in refusing to declare a mistrial after the State began to play the videotape of the wrong confession in open court? No.
Accordingly, we affirm the district court and convictions.
FACTS
Between April 7 and April 10,2001, three young men in a Kansas City, Kansas, neighborhood were murdered and a woman was kidnapped. Marc Sappington confessed to the crimes, and many of the following facts are contained in his confession.
Terry Green
Early in the morning of April 7, 2001, Sappington killed Terry Green by stabbing him at least four times in Sappington’s back yard. Sappington was afraid that someone had seen what he did, so he covered the body with a blue tarp and placed it in the back of Green’s car. He tiren parked the car in an antiques mall parking lot in Kansas City, Missouri. The car and Green’s body were discovered in the afternoon of April 10, 2001.
Michael Weaver
On the morning of April 10, 2001, Michael Weaver’s body was found slumped in the front seat of a car parked in an alley near his house.
Weaver and Eric Fennix, Sappington’s best friend, were stepbrothers. Alice Wilson, Fennix’s mother, testified that she lived in a house with Fennix, Fennix’s fiancée, Myah, and Weaver. Wilson was awakened early in the morning of April 10 when Sappington knocked on the front door, saying he needed a screwdriver. She told him to look in the kitchen. He watched television with Wilson for awhile then went upstairs to get a jacket. About 10 minutes later he ran down the stairs and out the back door.
After Sappington left Fennix’s house, he stayed in the back yard for several minutes as voices in his head told him to eat flesh. Weaver arrived in the yard a few minutes later. Using a knife Sap pington had grabbed while in Fennix’s kitchen, he stabbed Weaver. The wound went from Weaver’s back completely through his chest. Weaver tried to get in his car and drive away, but crashed into a light pole. A neighbor was awakened by the crash and called the police. Within moments, Sappington heard sirens, so he attempted to move the car away from the accident scene. He abandoned it in a nearby alley before the police arrived.
Fred Alton Brown
Sappington claims that he had not satisfied the commanding voices in his head, so he killed Fred Alton Brown on April 10 as well. Just hours after killing Weaver, Sappington invited Brown to come to his house and smoke some “wet.” The two went to Sappington’s basement, where Sappington shot him in the back with a shotgun. Sappington cut off a piece of Brown’s leg and tried to eat it. It made him sick, so he went upstairs and fried it. He ate the cooked flesh and drank some of Brown’s blood. Sappington then used a maul and knife to dismember the body.
Anita Washington
Around 9:30 p.m. on April 10, Anita Washington, who lived in the same neighborhood, returned home from the grocery store. While she was parked in her driveway, Sappington knocked on her car window and pointed a gun at her. He got in the back seat and told her to drive to Kansas City, Missouri. Sappington kept saying that he was a “dead man.” At some point, he told Washington to pull over so he could drive. After doing so, she exited the car and ran to the nearest house, where she called the police.
Sappington was apprehended on April 12, 2001. He was taken to the police station where he was Mirandized and then confessed to all three homicides as well as the kidnapping. The confession was videotaped. After confessing, Sappington took detectives to where he had dumped a piece of Weaver’s t-shirt, the keys to Weaver’s car, and to another location where he had dumped the keys to Green’s car. He was later charged with three counts of first-degree murder and with one count each of kidnapping and aggravated burglary.
Sappington suffers from schizophrenia and admitted using PCP (phencyclidine) during April 2001. In addition to hearing voices telling him to “eat flesh and drink blood” or he would die, he also claims that during that time he suffered from other aural and visual hallucinations. He relied upon the “not guilty by reason of mental disease or defect” defense, claiming that his schizophrenia rendered him incapable of possessing the required criminal intent to commit the charged offenses.
The case was continued several times over 3 years because of alternating periods of Sappington’s competency/incompetency. Sappington was evaluated primarily by Dr. William S. Logan, a psychiatrist, who met with Sappington 13 times over that entire period. Sappington was ultimately deemed competent to stand trial in July 2004 and went to trial later that month.
Through Dr. Logan’s evaluations, he determined that Sapping-ton suffered from schizophrenia at the time of trial, but he was not able to definitively state that Sappington suffered from schizophrenia in April 2001. Dr. Logan also testified that the effects of PCP use and the symptoms of schizophrenia are virtually the same.
In July 2004, a jury found Sappington guilty of all charges. He received consecutive sentences of three fife terms for the first-degree murders, 79 months for the kidnapping, and 32 months for the aggravated burglary.
More facts will be added as necessary to the analysis.
ANALYSIS
Issue 1: The district court did not err in failing to instruct the jury on the defense of voluntary intoxication.
Sappington admits that he relied solely upon the defense of mental disease or defect under K.S.A. 22-3220. Nevertheless, he contends that the district court erred in failing to independently instruct the jury on the voluntary intoxication defense because there was evidence indicating that he was suffering from a PCP-induced psychosis at the time he committed these crimes. The State responds that Sappington did not request this instruction and accordingly the failure to provide it was not clearly erroneous.
We agree that Sappington did not request or object at trial to the omission of a voluntary intoxication instruction; therefore, a clearly erroneous standard would typically apply. K.S.A. 2006 Supp. 22-3414(3); State v. Cooperwood, 282 Kan. 572, 581, 147 P.3d 125 (2006). Instructions are clearly erroneous if the appellate court finds “ ‘ “there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. [Citation omitted.]” ’ ” Cooperwood, 282 Kan. at 581.
As evidentiary support for the instruction, Sappington argues that when first interviewed in late April 2001, he told Dr. Logan that he attributed the command voices in his head to his PCP use. He also told the police that he was using PCP regularly throughout April 2001, and he claimed that the command voices coincided with heavy PCP use. In his confession, Sappington told the detectives he had been “smoking wet” prior to the crimes. Additionally, during the State’s cross-examination of Dr. Logan, the prosecutor asked, “As a matter of fact, he told you . . . that later in that day, he used and when he’s talking about the Weaver homicide, he used more wet and began to think he needed to drink blood again. And obviously there he associated the—the usage of the drug with having to drink blood, correct?”
Sappington reinforces his evidentiary support by showing that during the State’s closing argument, the prosecutor himself appeared to claim that Sappington’s behavior was not due to the mental disease of schizophrenia but due to his voluntary use of PCP. The prosecutor then further appeared to argue that voluntary intoxication was no defense, telling the jury:
“So what Mr. Sappington was trying to tell you is, well, I took some drugs and I voluntarily took these drugs and when I killed somebody because I took drugs, you ought to just find me not guilty. You ought to just say that Fm not guilty because of mental disease or defect because I went out and chose to use drugs voluntarily.
“Ladies and gentlemen, that’s not a defense. That’s not a defense at all.
“Even if you think these voices that you heard because you took the drugs wants you to drink his blood and eat his flesh, not an excuse at all. The only way it would be an excuse is if he had this legitimate mental disease or defect. ... It was the drugs that caused him to hear the voices.
“[W]e have evidence through his own statement that he was using drugs and it was the drugs that caused it . . . .” (Emphasis added.)
Apparently the prosecutor was attempting to make the point that under Sappington’s sole theory of defense in this particular case; voluntary PCP use was not a defense; only a “natural” defect like schizophrenia would qualify as his purported mental disease or defect. The prosecutor explained he was arguing that Sappington had conveniently changed his story from PCP-induced psychosis to schizophrenia only after his counsel had filed the notice of reliance on the defense of mental disease or defect under K.S.A. 22-3219. Consequently, he points out that throughout the later trial, Sappington attempted to establish that he had schizophrenia in April 2001 and that his behavior was a result of that condition, not PCP use. Sappington seems to primarily characterize the prosecutor’s comments as an admission that sufficient evidence of PCP use was present to require an instruction on voluntary intoxication.
The prosecutor’s argument could be viewed as an assertion that voluntary intoxication is never a legal defense, which is incorrect. While voluntary intoxication is not a complete defense, it is a defense to specific intent crimes. See K.S.A. 21-3208(2). Murder in the first degree—three of the charges in the instant case—is a specific intent crime. K.S.A. 21-3401. Nevertheless, we hold that Sappington’s failure to request the voluntary intoxication instruction is fatal to his argument.
Sappington did not rely on the defense of voluntary intoxication. While there is evidence of voluntary intoxication through PCP use, Sappington elected to proceed strictly under a mental disease or defect defense. “ ‘ “ ‘It is the duty of the trial court to properly instruct the jury upon a party’s theory of the case.’ ” ’ ” In re Care & Treatment of Foster, 280 Kan. 845, 864, 127 P.3d 277 (2006). As a result, after Sappington requested instructions only on the mental disease or defect defense, the district court instructed on only that theory.
We acknowledge the general rule in criminal cases is drat even inconsistent defenses are generally permissible. State v. Hunter, 241 Kan. 629, 643, 740 P.2d 559 (1987). We specifically acknowl edge that “a defendant in a criminal case may rely upon voluntary intoxication to show a lack of specific intent even though he also relies upon other defenses which may be inconsistent therewith.” State v. Shehan, 242 Kan. 127, 131, 744 P.2d 824 (1987). But we further acknowledge that “it is fundamental to a fair trial that the accused be afforded the opportunity to present his or her theory of defense,” State v. Humphrey, 252 Kan. 6, 14, 845 P.2d 592 (1992), and believe that imposing a defense upon a defendant which is arguably inconsistent with the one upon which he completely relies—by providing the jury a defense instruction that neither party requests—is akin to denying the defendant the meaningful opportunity to present his chosen theory of defense. A sua sponte instruction on voluntary intoxication runs the considerable risk of improperly interfering with Sappington’s chosen defense and resultant trial strategy, which were presumably selected after consideration, and rejection, of other alternatives.
We note, for example, that K.S.A. 21-3107(3) formerly provided: “It is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty . . . upon the evidence adduced.” (Emphasis added.) And our cases interpreted that language to essentially impose a sua sponte obligation to instruct on the trial court. See, e.g., State v. Boyd, 216 Kan. 373, 376, 532 P.2d 1064 (1975) (duty to so instruct even though such instructions have not been requested or have been objected to). That provision—which concerns types of inconsistent defenses, e.g., the difference between the elements of the crime charged and its lesser included offenses—was ehminated by the legislature in 1998. Accordingly, at present we can see no valid reason to require district courts to instruct juries on every possible theory of defense for which some evidence has been presented when the defendant has not relied upon that defense. In short, in the instant case the district court did not err in failing to instruct on voluntary intoxication.
Issue 2: The district court did not err in refusing to grant Sappington s request for new counsel.
Sappington next contends the court erred in denying his multiple requests for new counsel. The State basically responds that his counsel did a commendable job under difficult circumstances. We independently observe that over a 3-year span, from his April 2001 arrest through his July 2004 trial, Sappington was found mentally competent, then incompetent, then competent, then incompetent, and then competent. Each of Sappington’s motions to change counsel was filed during periods of competency, with the trialbeing conducted within the same month of his latest competency determination.
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 the view adopted by the district court. State v. McGee, 280 Kan. 890, 894, 126 P.3d 1110 (2006). The burden is on the party alleging the abuse. State v. White, 280 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. McGee, 280 Kan. at 894. 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]).
After being found competent to stand trial, Sappington filed his first pro se “Motion for Relief of Court Appointed Counsel” on March 25, 2002. He alleged that irreconcilable conflicts of interest existed, specifically that he lacked confidence in attorney Patricia Kalb’s representation and that she was not providing “faithful representation.” Sappington later withdrew the motion with the hope that he and Kalb “could work through the problems.”
In January 2003 Sappington was found incompetent to stand trial because, among other things, his attorney stated that voices were telling him not to talk to her, and Dr. Logan determined that he was unable to “consult with his attorney in preparing his defense.” The January trial was postponed. In April 2003, he was again found competent, and trial was rescheduled for the following August.
On June 17 Sappington stopped taking his medications and his counsel filed for a trial continuance. On July 9 he filed another motion for relief of counsel. It was nearly identical in content to the March motion except that it also alleged a “complete breakdown in communication with his counsel.”
On July 28, 2003, the court held a hearing on Sappington’s July 9 motion. There, Sappington told the court that Kalb failed to comply with his “reasonable requests” or failed to do so in a timely manner. Sappington provided the court with his letters to Kalb requesting copies of statements of witnesses and the preliminary hearing transcript. He also stated that Kalb failed to speak with him enough regarding possible plea agreements and different aspects of his case.
Kalb testified that she had met with Sappington the previous day to discuss their problems. She did not feel that their problems were “that serious.” Kalb stated that Sappington’s mental health problems had been the cause of many of the delays in this matter. She admitted that it had taken some time to get the witness statements from the State and that it had taken a while to get the transcript, but that the “more important” issue was that she and Sappington were having a “hard time” communicating regarding his theory of defense. Kalb seemed to imply that this difficulty was largely due to Sappington’s mental status and stated that she had tried to convey to him her thoughts on a defense.
The court denied Sappington’s motion. It informed him that the defendant always has the final say in his defense, that his had been one of the more serious and complex cases in the county’s recent history, and that his mental status had caused some delay. It found no legal sufficiency in Sappington’s argument and stated that it would not change counsel with a trial date set for 1 week from the day of the hearing. The court concluded that Kalb had zealously guarded Sappington’s constitutional rights and that it could find no fault in her representation.
Within the week, the August 2003 trial was postponed because Sappington again stopped taking his medication, and he was again found incompetent. Trial was eventually rescheduled for February 2004. That trial was later postponed because of Sappington’s continued incompetence and Dr. Logan’s characterization of his “partial malingering.”
In July 2004 Sappington was once again found competent, and trial began on the 19th of that month. That morning Sappington made an oral motion to dismiss counsel. He claimed there was a conflict of interest, that Kalb lied to him on many occasions, and that he did not trust her representation. When asked for more details, Sappington said she lied that she would come see him and that she did not bring him documents. He could not identify any specific documents or occasions. Kalb denied ever lying to him and stated she had brought him even more than he had ever requested, e.g., all witness statements and the transcript.
The court again denied Sappington’s motion, observing that Sappington brought the motion the morning of trial. It also found that there was no legal or factual basis for granting the motion and referred to Kalb’s representation as “first rate,” adding it felt no stone had been left unturned in Sappington’s defense by his counsel. It noted “[w]e have been anticipating coming to trial . . . since 2001” and “every avenue in your defense has been explored taking considerable time from this Court and all of the parties involved.”
Sappington renewed his motion at the close of evidence. He requested a mistrial because Kalb did not ask all of the questions that he requested. Kalb responded that at least two of the questions were irrelevant and the answers would not have been in Sapping-ton’s best interest. Sappington claimed that throughout trial, Kalb would not cooperate with his requests and that he did not believe Kalb did everything she could have to defend him. After receiving this information the court overruled the motion.
On August 27, 2004, Kalb argued a motion for new trial, including at Sappington’s request a claim that new counsel should have been appointed. The court denied the motion, finding, among other things, that no one could say that counsel had not performed competently and nothing had ever led the court to believe that defendant and his counsel were anything other than prepared to go to trial.
To begin our analysis, we note that in order to determine whether to appoint new counsel, the district court must conduct some sort of investigation. Here, the court satisfied this requirement by fully hearing Sappington’s complaints, both at the motion hearing and certainly the trial, and fully hearing his counsel’s responses. The court further satisfied this requirement by its own observations of counsel’s performance over the course of 3 years. See State v. Collier, 259 Kan. 346, 359, 913 P.2d 597 (1996). Sappington had the same attorney, Kalb, throughout the instant case. Her performance observed by the court included multiple actions to protect Sappington’s rights regarding his competency to stand trial and other pretrial matters. The court concluded that Kalb had performed at a high level of advocacy on Sappington’s behalf.
The district court was also well aware of the unique circumstances of this case. Throughout this lengthy process, an overarching consideration was seeing if Sappington was capable of being found competent to stand trial. As a result, the court was quite cognizant of the substantial challenges any counsel would have faced representing Sappington. In an analogous context, the court in State v. Ferguson observed that a lack of communication between a defendant and counsel does not automatically constitute a violation of tire Sixth Amendment right to counsel. 254 Kan. at 71. There, the court agreed with the State that “ ‘lack of communication between a defendant and defense counsel due to a defendant’s refusal to cooperate is not of itself basis for reversal on grounds of ineffective assistance of counsel.’ ” (Emphasis added.) 254 Kan. at 73-74. The Ferguson court held that under the circumstances of that case, substitution of counsel would have been futile.
In Sappington’s case, there were multiple competency and incompetency determinations. The district court was forced to continue trial several times after finding that Sappington was not competent to stand trial or able to assist in his own defense. Based on the competency evaluations and Kalb’s statement at the July 2003 hearing on Sappington’s motion, it is doubtful the appointment of substitute counsel would have solved the communication problems. Concerning Sappington’s oral motion made on the first day of trial, he clearly failed to establish a “complete breakdown of communication” between him and counsel.
Another consideration is the timeliness of Sappingtoris motion. This court has held that a request for substitute counsel made on the first day of trial is not timely. State v. Collier, 259 Kan. at 358-59. Although, as Sappington points out, his oral trial motion was not his first request for new counsel, he has provided no explanation for his delay in filing an additional request.
Finally, the record reveals that Kalb protected Sappington throughout the case. She was diligent in monitoring Sappingtoris mental health, frequently requesting a continuance or a finding that Sappington was incompetent to stand trial at that time. Kalb filed several motions throughout the case and was otherwise diligent in presenting the best case possible. As the State points out, several times throughout trial, Kalb requested a short break to meet with her client. She also approached the bench on more than one occasion, explaining to the judge that she would be asking questions that Sappington requested that she ask. The State points out that defense counsel “asked the court numerous times throughout tire trial for a moment to confer with her client.” Sappington does not allege that he disagreed with Kalb’s trial strategy.
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 Kalb could no longer effectively aid Sappington in the fair presentation of his defense. Sappington failed to show “justifiable dissatisfaction” with his counsel, e.g., a complete breakdown in communications. Accordingly, the district court did not abuse its discretion in denying Sappington’s motions.
Issue 3: The district court did not err in refusing to allow the defense to put on certain evidence about Sappington s mothers schizophrenia.
Sappington argues that his right to a fair trial was violated because the district court excluded certain evidence that was an integral part of his theory of defense. See State v. White, 279 Kan. 326, 331, 109 P.3d 1199 (2005). The State responds that a defendant’s right to present his or her defense is subject to statutory rules and case-law interpretation of rules of evidence and procedure. See 279 Kan. at 331.
Our decision in State v. Gunby, 282 Kan. 39, 47, 144 P.3d 647 (2006), provides a road map for our analysis of this evidentiaryissue. When a party challenges the admission or exclusion of evidence on appeal, tire first inquiry is relevance. Unless otherwise prohibited, all relevant evidence is admissible. K.S.A. 60-407(f). “Relevant evidence” is “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). A material or logical connection between the asserted facts and the inference or result they are intended to establish are necessary to establish relevance. 282 Kan. at 47 (citing State v. Lumley, 266 Kan. 939, 950-51, 976 P.2d 486. [1999]).
Gunby further explained our possible standards of review:
“Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge’s discretion, depending on the contours of the rule in question. [Citation omitted.] When the adequacy of the legal basis of a district judge’s decision on admission or exclusion of evidence is questioned, we review the decision de novo.” 282 Kan. at 47-48.
Because the adequacy of the district court’s legal basis for excluding evidence is not being questioned, our review is for abuse of discretion.
As mentioned in Issue 1, Sappington’s defense was not guilty by reason of mental disease or defect. Throughout trial, Sappington attempted to prove that he suffered from schizophrenia in early April 2001, and that his criminal behavior was its result. As part of this endeavor, Sappington sought to establish a link between the schizophrenia of his mother, Mary White, and his own behavior. The district court excluded two pieces of Sappington’s evidence on this issue: medications Mary was taking, which would have established that she suffered from schizophrenia; and her behavioral symptoms that were allegedly similar to his own, which would purportedly establish that he also suffered from schizophrenia at the time of the crimes.
Dr. Logan testified that schizophrenia has a genetic component; therefore, the mental health of Sappington s family is relevant.
As for the medication evidence, during Dr. Logan’s direct examination defense counsel attempted to put into evidence three of Mary’s prescriptions. One of the prescriptions was for a psychotropic drug, which counsel contended would demonstrate that Mary was schizophrenic. The State objected to their admission, claiming that Dr. Logan did not know for whom or what they had been prescribed. The court sustained the objection, agreeing with the State’s foundation objection and noting that Sappington had already established that Mary was schizophrenic.
While this testimony may have a tendency to prove a material fact—that Maiy suffered from schizophrenia—it still may be properly excluded. We agree the court did not abuse its discretion in refusing to allow Dr. Logan to comment regarding medications he did not prescribe and which were prescribed to a patient he had not evaluated. Additionally, we agree that the testimony was cumulative as Sappington had already established that Mary was schizophrenic through the testimony of her brother, Rufus White. See State v. Torres, 280 Kan. 309, 333, 121 P.3d 429 (2005) (“[Wjhether otherwise relevant evidence is cumulative is a matter of discretion for the trial court.”).
As for the evidence of Mary’s behavior attempted to be introduced through White, we observe that Sappington did not establish that her behavior was the exclusive result of schizophrenia. Both White and Dr. Logan testified that Mary also suffered from a bipolar disorder. Because Dr. Logan testified about considerable overlap in the symptoms for bipolar disorder and schizophrenia, Mary’s symptoms could have been the result of either disease. Similarly, we observe that Sappington used PCP, and Dr. Logan repeatedly testified that the symptoms of PCP use and schizophrenia are identical. Accordingly, he could not tell whether Sappington’s behavior was the result of PCP use or schizophrenia. Finally, we observe that even if both Mary and Sappington clearly suffered only from schizophrenia, Sappington failed to present any testimony that family members with schizophrenia usually exhibit the same symptoms, i.e., Sappington’s behavior would expectedly parallel Mary’s. Consequently, the trial court did not abuse its discretion in hmiting testimony of Mary’s symptoms.
Issue 4: The district court did not err in refusing to declare a mistrial after the State began to play the videotape of the wrong confession in open court.
Finally, Sappington claims that the trial court erred in refusing to declare a mistrial after the State began to play the videotape of the wrong confession in open court. The State responds that the mistake did not make it impossible to proceed without injustice to Sappington.
K.S.A. 22-3423(1) states:
“The trial court may terminate the trial and order a mistrial at any time that he finds termination is necessary because . . . (c) [prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.” (Emphasis added.)
As a general rule, a motion for a mistrial is reviewed under an abuse of discretion standard, and the party alleging the abuse bears the burden of proving that “his or her substantial rights to a fair trial were prejudiced.” State v. White, 284 Kan. at 343. This court also examined a court’s duty to declare a mistrial in White-.
“It is necessary when justice so requires to declare a mistrial where there is some fundamental failure of the proceeding. When an event of prejudicial misconduct, the damaging effect which cannot be removed by admonition and instruction, is presented to the jury, the trial judge must declare a mistrial.” 284 Kan. at 343.
In March 2001, approximately 1 month before the events in this case occurred, Sappington was also involved in a shooting in which David Mashalc was lulled. Sappington’s resultant trial on first-degree felony murder and attempted aggravated robbery charges occurred in late September 2004, approximately 2 months after the trial in the instant case. See State v. Sappington, 285 Kan. 176, 169 P.3d 1107 (2007). At the beginning of Sappington’s trial for the triple murder, he requested an order in limine to prohibit any mention of the allegations in the Mashak case during this trial. The State made no objection, and the trial judge granted the order.
During the State’s case-in-chief, Detective Greg Lawson testified about the details of Sappington’s confession. The State asked Detective Lawson to play the videotaped confession for the jury. As the tape began to play, the prosecutor asked the detective to shut the tape off and approached the bench for a conference out of hearing of the jury.
During that conference, the prosecutor told the court that it looked like the wrong videotaped confession was starting to play. He explained that he picked up the wrong tape from counsel table and believed the tape that had been playing was from the Mashak homicide. The record reveals that the tape played for a short period of time. The jury only heard a detective begin to Mirandize Sappington—no questions were asked and no information about the instant case was revealed.
Sappington then moved for a mistrial. Defense counsel Kalb explained that the Mashak tape showed Sappington wearing an orange jail suit, while in the correct confession tape, he was wearing street clothes. She argued that the jury would “know something was up” and it would be “obvious it’s a different time about a different matter.” The judge offered to give a curative instruction, but she declined, saying “any explanation would make it worse.”
We hold that Sappington has not met his burden of showing his substantial rights to a fair trial were prejudiced. Similarly, although the playing of the wrong tape violated the court’s order in limine, Sappington has not shown that the facts elicited in violation of the order substantially prejudiced him. See State v. Gleason, 277 Kan. 624, 640, 88 P.3d 218 (2004). He assumes that the jury would infer from the jail suit that he was being questioned about a separate incident. This is not the only logical conclusion, however. The juxy could reasonably have concluded that Sappington was questioned by police multiple times in this case, as he was charged with five separate crimes against four different victims. Additionally, the jury was never told that the tape was from another case, nor did it hear any facts suggesting that the tape was from a separate incident. Sappington refused a curative instruction, and no additional attention was drawn to the mistake.
We conclude the district court did not abuse its discretion in refusing to declare a mistrial. °
. rr. j Aihrmed.
Davis, J., not participating.
Greene, J., assigned. | [
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The opinion of the court was delivered by
Rosen, J.:
This case comes before the court on Jeffrey Wayne Cooper’s petition for review. Cooper asks us to reverse the decision of the Court of Appeals, which affirmed his sentence for one count of manufacturing methamphetamine.
Cooper was charged with five felonies relating to manufacturing, possessing, and conspiring to manufacture and possess methamphetamine. Cooper pled guilty to one count of manufacturing methamphetamine, in exchange for the dismissal of the four remaining felony counts. In order to provide a factual basis for Cooper’s plea, the State proffered evidence that law enforcement officers had discovered in Cooper’s possession empty blister packs of ephedrine products, an empty coffee filter with methamphetamine residue, and a half-gallon container with approximately 3 inches of fluid that smelled strongly of starting fluid. Based on these proffered facts, the district court accepted Cooper’s plea and convicted him of manufacturing methamphetamine.
Pursuant to State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), the district court sentenced Cooper as though he had been convicted of a severity level 3 drug felony, imposing a 22-month prison sentence. Cooper appealed his sentence to the Court of Appeals, arguing that he should have been sentenced for a level 4 drug felony. The Court of Appeals affirmed Cooper’s sentence. State v. Cooper, No. 95,633, unpublished opinion filed November 9,2006. We granted Cooper’s petition for review. The record showed the State received timely notice of our granting a hearing on the matter. The State’s untimely request to file its brief the day before oral argument was denied.
ANALYSIS
Cooper pled guilty to manufacturing methamphetamine in violation of K.S.A. 65-4159(a). Pursuant to K.S.A. 65-4159(b), the crime of manufacturing methamphetamine is a severity level 1 drug felony. The district court nevertheless sentenced Cooper for a severity level 3 drug felony based on State v. McAdam, 277 Kan. at 146. The McAdam court held that manufacturing methamphetamine in violation of K.S.A. 65-4159(a) was identical to compounding a stimulant in violation of K.S.A. 65-4161(a), a level 3 drug felony. Because the offenses were identical, McAdam could be sentenced only under the lesser penalty. 277 Kan. at 145-46.
Even though the district court sentenced him for a level 3 drug felony in accordance with McAdam, Cooper contends that the district court should have sentenced him for a level 4 drug felony. Cooper argues that manufacturing methamphetamine in violation of K.S.A. 65-4159(a), a level 1 drug felony, is identical to using drug paraphernalia to manufacture methamphetamine in violation of K.S.A. 65-4152(a)(3), a level 4 drug felony. Cooper argues that the elements are identical and the court was required to sentence him for the lesser penalty.
Cooper s argument requires us to interpret the relevant statutes. Interpretation of a statute is a question of law subject to unlimited review. State v. Fanning, 281 Kan. 1176, 1178, 135 P.3d 1067 (2006).
“The fundamental rule for statutory construction is that the intent of the legislature controls if it can be ascertained. When a statute is plain and unambiguous, we must give effect to the legislature’s intent as expressed by the language in the statutory scheme rather than determine what the law should or should not be.” 281 Kan. at 1178.
Offenses are identical when they have the same elements. Fanning, 281 Kan. at 1180. In order to determine whether the elements are identical for sentencing purposes, an appellate court must consider the statutory elements in conjunction with the underlying facts. Fanning, 281 Kan. at 1182-83; McAdam, 277 Kan. at 146.
K.S.A. 65-4152(a)(3), defining the crime of using drug paraphernalia, provides:
“(a) No person shall use or possess with intent to use:
(3) any drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, sell or distribute a controlled substance in violation of the uniform controlled substances act.”
K.S.A. 65-4159(a), setting out the crime of unlawfully manufacturing a controlled substance, provides:
“(a) . . . [I]t shall be unlawful for any person to manufacture any controlled substance or controlled substance analog.”
The governing principle of the identical offense doctrine is: “Where two criminal offenses have identical elements but are classified differently for purposes of imposing a penalty, a defendant convicted of either crime may be sentenced only under the lesser penalty provision.” (Emphasis added.) State v. Nunn, 244 Kan. 207, 229, 768 P.2d 268 (1989).
The two statutes at issue—K.S.A. 65-4159(a) and K.S.A. 65-4152(a)(3)—do not have identical elements. Nothing in K.S.A. 65-4159(a) requires the State to prove that a defendant used paraphernalia to manufacture methamphetamine. Although, as a factual matter, paraphernalia must have been used to manufacture methamphetamine, the State is not required to prove this fact. For example, the State could present a witness who would testify, “I watched the defendant manufacture methamphetamine.” A defendant might also confess, “I manufactured methamphetamine.” In either such case, the State would have established a prima facie case and would not be required to prove how that manufacturing occurred or that any paraphernalia was used in the process. Even if the evidence described the scientific process and circumstantially established that paraphernalia had been used in the process, the jury would not be instructed that it must find beyond a reasonable doubt that the defendant possessed paraphernalia for tire purpose of manufacturing the methamphetamine.
When two statutes contain overlapping provisions, this court must examine the facts in order to determine the area of overlap. Once it is determined which provisions of a statute apply, the only question is whether the overlapping provisions contain identical elements. That determination is made from the statute. See State v. Campbell, 279 Kan. 1, 106 P.3d 1129 (2005).
An issue similar to that presented in the instant case arose in State v. Stevens, 278 Kan. 441, 101 P.3d 1190 (2004). Noting that McAdam controlled the question, this court explained:
“The elements of 65-4159(a) and 65-4161(a) are not necessarily identical. For example, the elements of a violation of 65-4161(a) could be that the defendant sold opium. The elements were identical, however, as applied to the circumstances in McAdam. In the present case, as in McAdam, the manufacture of methamphetamine was the objective, and an overt act was committed toward that end. The elements of 65-4159(a) and 65-4161(a) are identical in the circumstances of this case. For this reason and in accord with the reasoning and result of McAdam, Stevens may be sentenced only under the lesser penalty provision of K.S.A. 65-4161(a).” 278 Kan. at 456.
In Fanning, 281 Kan. 1176, we considered whether the identical offense doctrine applied to the offenses of attempted manufacture of methamphetamine and possession of drug paraphernalia with the intent to manufacture methamphetamine. We concluded the doctrine did not apply, stating:
“Although the elements are nearly identical, they are not completely identical. Attempted manufacture of methamphetamine requires an additional element not found in possession of drug paraphernalia. Consequently, the two crimes are not identical under the rules applied in both McAdam and Campbell, which required the elements proven to be exacdy the same under each statute.” 281 Kan. at 1183.
This holding and analysis is consistent with our prior decisions. It is also consistent with the two policy considerations that underlie the identical offense doctrine. These are: (1) it is difficult to discern legislative intent regarding the level of punishment when two statutes that proscribe the same conduct have identical elements but differing sentencing provisions (see Campbell, 279 Kan. at 16); and (2) identical crimes with differing penalties make the “ "the decision as to which penalty to seek ... a matter of prosecutorial whimsy in charging.’ ” Nunn, 244 Kan. at 229 (quoting State v. Clements, 241 Kan. 77, 83, 734 P.2d 1096 [1987)]).
Those concerns do not apply to the present case. The legislature has designed statutes that more severely punish someone who manufactures methamphetamine and that also allow an additional, but less severe, punishment because the person possesses drug paraphernalia used to manufacture methamphetamine. The possibility of cumulative punishments for the same conduct is a policy decision for the legislature that should not be undercut by this court. Moreover, the legislative intent directs the discretion of the prosecutor. While the prosecutor may choose to charge an accused under both statutes, that decision would be based on evidence that there was a manufacture and that the accused possessed paraphernalia. See State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006) (constitution allows multiple punishments for same conduct if convicted of crimes with different elements).
The decision of the Court of Appeals affirming the district court is affirmed. The decision of the district court is affirmed.
Davis and Johnson, JJ., not participating.
Greene, J., and Larson, S.J., assigned. | [
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The opinion of the court was delivered by
Nuss, J.:
Dustin O. Holt appeals his jury convictions of first-degree premeditated murder and conspiracy to commit murder. He also appeals his sentences, which were consecutive: life in prison without the possibility of parole for 25 years for the murder and 131 months’ imprisonment for the conspiracy. 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 trial court err in its jury polling when each juror was asked, “Is this the verdict of the jury?” No.
2. Did the trial court err when it refused Holt’s request to add the “mere presence or association” language to the jury instruction on aiding and abetting? No.
3. Did the trial court err when it overruled Holt’s objection to the giving of an aiding and abetting instruction? No.
4. Did the trial court err when it instructed the jury that Holt could be convicted as an aider and abettor, even though the State’s theory was that he was the shooter? No.
5. Did the trial court err when it ordered Holt to reimburse the State Board of Indigents’ Defense Services (BIDS) for attorney fees? Yes.
6. Did the trial court err when it used Holt’s prior convictions to calculate his criminal history score? No.
Accordingly, we affirm the convictions and sentences, but remand to the district court for redetermination of the BIDS fee reimbursement.
FACTS
Unless otherwise noted, the following facts are taken from the testimony of Dustin Holt’s paramour, Lisa Shoffner, and his friend, Landrey Casey, at Holt’s jury trial. Holt did not testify.
In January 2005, Kenton and Lisa Shoffner’s blended family lived south of 1-70 on the border of Shawnee and Wabaunsee Counties. The property contained a two-story home and a large garage.
Kenton and Lisa each brought three children into the marriage. They had one child together, Samantha, who was killed in an accident in 1999. Following Samantha’s death, Lisa began self-medicating, using methamphetamine over the next 5 years. She began carrying Kenton’s revolver under the front seat of her car for protection from the drug users with whom she was interacting.
On December 31, 2004, the Shoffners invited some friends to their home to celebrate New Year’s. Lisa’s friend Michelle Smith, Smith’s boyfriend John Berry, and Holt attended. This was the first time Lisa had met Holt. According to Lisa, she and Holt began a sexual relationship that night. For the next 10 days, Lisa spent most of her time with Holt away from home.
On January 7, 2005, Lisa received a cell phone call from her daughter Crystal. Crystal told Lisa that Kenton was angrily yelling at her about Lisa because Lisa was spending so much time away from home. Kenton’s comments “pissed [Lisa] off’ and after hanging up the phone, Lisa told Holt that she wanted to kill her husband.
Two days later, Lisa and Holt picked up Holt’s friend Landrey Casey. This was the first time Lisa and Casey met, although they had talked to each other on the phone. According to Lisa, she told Holt and Casey that her husband had a $50,000 life insurance policy. According to Casey, Holt told him that Lisa wanted her husband “knocked off’ and asked if Casey was willing to help them for part of the $50,000. Casey also testified that Lisa told him that she had some bruises from Kenton.
Lisa later took her friend Dawn Gilley to Lisa’s home to do some laundry. Holt rode with them. Lisa introduced Holt to Kenton, saying Holt’s name was Jim. Holt, Lisa, and Dawn returned to Topeka; Lisa and Holt then slept at Dawn’s house for awhile.
Upon awakening, Lisa learned that while they were sleeping, Kenton had called Dawn and told her that he was going to call the cops because they were doing dope. He also told Dawn that she should stay away from Lisa.
Holt and Lisa met Casey later that evening. They bought methamphetamine with $30 Casey received from his girlfriend Shawna and smoked some of it before going to Shawna’s house. Lisa claims that shortly after arriving, she told the others that she needed to go home to check on her kids. Casey and Holt went with her. Casey testified that as Lisa paid for a gas stop along the way, Holt pulled out the gun from under her front seat and showed it to Casey. According to Casey, Holt also told him that Kenton had been threatening to shoot Lisa.
Lisa testified that the group’s plan was to park in Kenton’s garage upon arrival at the Shoffner’s house. Holt and Casey were to remain there while Lisa went into the house to lure Kenton outside. According to Lisa, after she parked in the garage around midnight, Holt told her to get Kenton as close as possible to the blanket that hung in the garage doorway.
Lisa went into the house and started arguing with Kenton, bringing up the prior phone call she had received from Crystal. She then said she was going to the garage to smoke dope and started walking in that direction. Kenton followed closely behind her.
According to Casey s trial testimony, as Kenton pulled back the blanket, Casey said to him, “What’s up dog? What the fuck you gonna do now?” Kenton said, “No,” and Casey told Holt to “bust on him.” Casey claims that Holt then shot Kenton in the chest with Kenton’s own revolver. Kenton fell to the ground, and Casey told Holt to shoot him again. Holt then shot Kenton in the face at pointblank range.
At trial, Lisa testified that she did not remember a lot about the shooting because she was highly medicated at the time. She said she heard two shots but did not see who was holding the gun.
Casey testified that Holt drove off in Kenton’s pick-up as Casey scrambled to get in. The plan had called for Lisa to wait to call 911 until Holt and Casey got to Topeka. Instead, she panicked and called 911 as the pick-up was turning out of the driveway. Lisa lied to the dispatcher and the first law enforcement officers on the scene, claiming she did not know the assailants.
Holt and Casey were apprehended shortly thereafter. Due to the icy weather, the pick-up slid off the road and got stuck in a ditch. When Shawnee County Sheriffs Deputy Hawks heard the dispatch call of the shooting on the radio, he recognized the name “Shoffner.” When he encountered Holt and Casey walking along 1-70 toward Topeka, he recognized them from a traffic stop a few days earlier when he had issued Lisa a warning for a tag-light violation. Deputy Hawks tiren notified other law enforcement officers. The murder nearby. weapon was soon found in the highway ditch
By the end of the month, the State filed a complaint charging Casey, Holt, and Lisa each with one count of first-degree murder and one count of conspiracy to commit first-degree murder. The State also charged Casey and Holt with one count of theft for the pick-up.
Casey eventually pled guilty to an amended complaint charging him with aiding a felon, conspiracy to commit aggravated battery, possession of methamphetamine, and felony theft. Although he had not been sentenced at the time of Holt’s trial, he expected to be sentenced to an underlying term of 3 years, but would only have to serve probation. Casey’s trial testimony against Holt was part of his plea agreement.
Lisa eventually pled guilty to felony murder. Although she had not been sentenced at the time of Holt’s trial, she expected to receive a life sentence with the possibility of parole in 20 years. Lisa’s trial testimony against Holt was also part of her plea agreement.
Sheriff Howser testified that during Holt’s stint in the county jail pending trial, Holt contacted the jail supervisor and asked to speak with Howser. Holt was upset and told Howser, “I shot him. I’m the one that shot him.” Howser grabbed a voice recorder and asked Holt to repeat himself. Once the recorder was activated, Holt said, “I pulled the trigger.” Howser then clarified, “So, you say you pulled the trigger and you’re the one that threw the gun down on the ground?” Holt replied, “Yup.”
Based in part upon Howser’s testimony and the DNA profile on the revolver grip as being consistent with Holt’s, the State’s theory at trial was that Holt was the shooter. In response, Holt claimed that Casey was the shooter. In support of this theory, Holt presented evidence that Casey had confessed to being the shooter. Specifically, Sheriff Howser testified that Joe Lamb, a jail supervisor, heard Casey tell another inmate that Casey was the one who had shot Kenton. During Casey s testimony, he denied having told the inmate that he was the one who pulled the trigger. KBI agent Ezell Monts testified that Holt did admit to being at the residence but not to doing the shooting.
During deliberations, the jury sent a number of notes to the court, including requests to see evidence and to see copies of testimony. The jury also sent a note informing the court: “At this time we are a hung jury on the murder charge only. Can you give us some guidance?” After the judge asked for clarification of the jury’s request, the jury sent a note saying: “We are hung on all offenses in Count I. Have a verdict for Count II [conspiracy].” The judge ordered them to leave the first count unsigned.
The juiy then asked: “If the juiy convicts on Count I, first degree murder, does that mean Dustin Holt had to be the one that pulled the trigger?” As the judge contemplated sending the jury home for the night, he received another note that said: “Please clarify the term ‘intentionally killed.’ ” The judge directed the jury to look at the juiy instructions for clarification.
Soon after, the jury returned a verdict of guilty on both counts. The trial court denied the State’s request to impose a Hard 50 sentence. It determined that Holt was in criminal histoiy category H and sentenced him to 131 months for the conspiracy charge and life imprisonment for the murder. The sentences were to run consecutively.
ANALYSIS
Issue 1: The trial court did not err in its jury polling.
Holt argues that his right to an impartial and unanimous juiy was violated when, during polling, the court clerk asked each juror, “Is this the verdict of the jury?” instead of “Is this your [he., individual] verdict?” The State primarily responds that Holt’s argument is untimely because he failed to object to these procedures until his counsel’s appellate brief.
The record reveals that after the juiy returned from its deliberations, the clerk read aloud the verdict finding Holt guilty of first-degree murder and conspiracy. The judge then asked the presiding juror, “This is the verdict of the juiy?” and “It was a unanimous verdict?” The presiding juror said yes.
Holt’s counsel then requested that the jury be polled, so the clerk asked each juror, individually by name: “Is this the verdict of the jury?” Each juror replied, “Yes, it is.” Neither Holt nor his counsel raised any objections to the question, to the procedure, or otherwise. The jury was then dismissed.
We begin by acknowledging that the Sixth Amendment to the United States Constitution gives the accused a right to an “impartial jury.” The right to a unanimous jury verdict, however, is not constitutional but statutory. State v. Voyles, 284 Kan. 239, 250-51, 160 P.3d 794 (2007); see K.S.A. 22-3421; K.S.A. 22-3423(l)(d). Similarly, the right to have a jury poll conducted is not constitutional but statutory. See Cabberiza v. Moore, 217 F.3d 1329, 1336 (11th Cir. 2000) (“[W]e know of no constitutional right to have a poll conducted.”); see K.S.A. 22-3421.
Jury polling has been a right in Kansas for over 100 years. As we stated in State v. Muir, 32 Kan. 481, 481, 4 Pac. 812 (1884):
“A party has, in all cases, the right to know whether the supposed verdict is the verdict of each juror or only one of the jury, and examining the jury by the poll is the only recognized means of ascertaining whether they were unanimous in their decision.”
More recently, we discussed the purpose of jury polling in State v. Tanker, 216 Kan. 347, 349, 532 P.2d 1073 (1975). There we stated:
“Any party in a civil or criminal case has an absolute right to have the jury polled. (State v. Muir, 32 Kan. 481, 4 Pac. 812 [1884].) This practice requires each juror to answer for himself, thus creating individual responsibility and eliminating any uncertainty as to the verdict announced by the foreman. It also affords an opportunity for free expression unhampered by the fears or errors which may have attended the private proceedings.”
The right of polling the jury, along with the general procedures for releasing the jury verdict, is contained in K.S.A. 22-3421. It states:
“The verdict shall be written, signed by the presiding juror and read by the clerk to the jury, and the inquiry made whether it is the jury’s verdict. If any juror disagrees, the jury must be sent out again; but if no disagreement is expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case. If the verdict is defective in form only, it may be corrected by the court, with the assent of the jury, before it is discharged.” (Emphasis added.) K.S.A. 22-3421.
The statute is silent on how the juiy is to be polled, i.e., how the purposes of polling are to be accomplished. While we acknowledge that the trial court could have been more precise in its clerk’s polling language, we also acknowledge that Holt did not object to the polling at the trial court level—at either the time it was conducted or afterward.
There are no Kansas cases on point, but the State argues that this situation is most analogous to the trial court’s handling of jury questions during deliberations, citing State v. Groschang, 272 Kan. 652, 36 P.3d 231 (2001). There, the juiy requested to see a Physician’s Desk Reference (PDR) that was not admitted into evidence. The trial judge submitted two sections that had been testified to by the defense expert witness and read during the trial. Defense counsel agreed that the sections should be sent to the jury. On appeal, Groschang complained that a relevant portion of the PDR that had been read to the jury during his expert witness’ testimony was not included in the material sent to the jury. 272 Kan. at 672.
This court held that Groschang waived his right to raise the issue on appeal, stating as follows:
“The record clearly shows that Groschang participated in the proceedings and was given the opportunity on the record to voice any objections or to suggest a different response. He did not do so. The time-honored rule that an issue not presented to the trial court may not be raised for the first time on appeal, State v. Ji, 251 Kan. 3, 17, 832 P.2d 1176 (1992), also applies to jury requests under K.S.A. 22-3420(3). As the State points out, a timely objection is necessary to give the trial court the opportunity to correct any alleged trial errors. See State v. Wolfe, 194 Kan. 697, 699, 401 P.2d 917 (1965).
“Clearly, the defendant had the opportunity to object and to inform the trial court of his dissatisfaction with the court’s response to the jury request while the court still had a chance to correct any error. By failing to object, the defendant waived his right to raise the issue on appeal.” 272 Kan. at 672-73.
The statute at issue in Groschang, K.S.A. 22-3420(3), like its statutory cousin at issue in the instant case, K.S.A. 22-3421, contained no “contemporaneous objection” requirement. Contra K.S.A. 60-404. That requirement is imposed via our general case law. State v. Kirtdoll, 281 Kan. 1138, Syl. ¶ 7, 136 P.3d 417 (2006) (“As a general rule, a party cannot raise an issue on appeal where no contemporaneous objection was made and where the trial court did not have an opportunity to rule.”).
The case of State v. Woods, 218 Kan. 163, 542 P.2d 319 (1975), is also of guidance. Although it did not deal with a possible waiver of the polling procedures issue by failure to object at the trial level, it did recognize the difficulty a defendant presents to an appellate court when his or her concerns about the verdict are not raised at the time of polling:
“We think it extremely important in this case that following the polling of the jurors, counsel for the defendant did not request the trial court to inquire further into the matter, nor ask the trial court to direct the jury to resume its deliberations. Counsel for the defendant apparently was not concerned about the answers of the jurors and obviously assumed that it would not be to the defendant’s advantage to inquire further into the matter. In the situation presented here the trial court was clearly in a better position to view the jurors’ responses to its questions on polling and their demeanor than is this court on the cold record now before us.” (Emphasis added.) 218 Kan. at 168.
In part because of the defendant’s failure to raise concerns about the jurors’ responses at the time of polling, this court held that he had failed to show the trial court abused its discretion in not interrogating the jurors further about their verdict, or in its failure to direct they resume deliberations. Cf. Jackson v. U.S., 386 F.2d 641, 643 (D.C. Cir. 1967) (defense counsel waited until the jury was dismissed and dispersed before objecting to the verdict on the ground that a particular juror’s answers to the poll showed the verdict was not unanimous; the court stated, “[I]f these circumstances were so plainly evident, it seems to us that they would, as they should, have been immediately called to the court’s attention upon the record. Had that been done, any doubts whatever about the state of the jurors’ minds could have been cleared up and appropriate action taken before the jury was dismissed. A principal office of the making of objections by counsel in adversaiy proceedings is not only to assure justice but also to achieve efficiency and expedition in its administration.”).
Here, apparently no one interpreted the clerk’s polling questions or the jurors’ expressions and responses to suggest there was any problem. Holt particularly had the opportunity to object to the polling question 12 times. Yet he failed to object to anything on any ground, which prevented the trial court from having any chance to cure any alleged defect in the polling before the juiy was discharged.
While Holt raised this issue for the first time in his appellate brief, it was not until oral arguments before this court that he asked for us to consider his issue pursuant to the “ends of justice” exception to our general rule. See State v. Kirtdoll, 281 Kan. at 1149 (“consideration of the [newly-raised] theory is necessary to serve the ends of justice”).
Application of this exception is not warranted under the facts of this case, however, because Holt has failed to show that the polling procedure, e.g., the clerk’s question, actually harmed him. We first note that the jury was given an instruction that its verdict must be unanimous; indeed, it was the last instruction given to the jury, stating, “The person selected [as presiding juror] will . . . speak for the jury in court and will sign the verdict upon which you agree. . . . Your agreement upon a verdict must be unanimous.” (Emphasis added.) The jury is presumed to follow the instructions. State v. Cromwell, 253 Kan. 495, 510, 856 P.2d 1299 (1993). After the verdict was read, the presiding juror, in response to the court’s question, confirmed in the jury’s presence, that the verdict was the jury’s and that the verdict was unanimous. Each juror then individually stated that this was the jury’s verdict. There is simply no evidence suggesting that Holt received anything other than a unanimous verdict from an impartial jury, i.e., no comments before the jury was dismissed and no posttrial affidavits from jurors or defense counsel to support Holt’s allegations.
The case of United States v. Lustig, 555 F.2d 737 (9th Cir. 1977), provides some additional support. There, somewhat similar to the instant case, after the verdict was announced each juror was asked not whether it was “your verdict” but whether a “true verdict” had been announced. Each answered affirmatively. The defendant then requested that the jury be polled as to each of four counts, and the trial court apparently refused. On appeal, the defendant argued that failure to use this procedure was reversible error. The Ninth Circuit rejected this argument, holding that defendant would have a valid objection if one or more jury members expressed some uncertainty as to the verdict; but there was no uncertainty expressed about the “true verdict.” 555 F.2d at 746.
We will briefly comment upon proper jury polling. While trial courts do not have to be “letter perfect” in their polling procedures and language, the better practice is to poll the jury in such a way as to ensure that each juror is answering for himself or herself, e.g., asking, “Is this your verdict?” The American Bar Association suggests:
“The poll should be conducted by the court or clerk of court asking each juror individually whether the verdict announced is his or her verdict. If the poll discloses that there is not that level of concurrence required by applicable law, the jury may be directed to retire for further deliberations or may be discharged.” (Emphasis added.) ABA Principles for Juries and Jury Trials, American Jury Project, Principle 15(F.) (2005).
At least one federal circuit has also endorsed this view, suggesting that the ABA standards provide the “best practice” for polling. United States v. Shepherd, 576 F.2d 719, 723 n.1 (7th Cir. 1978).
Because Holt did not timely object to the polling, he did not preserve this issue for appeal.
Issue 2: The trial court properly refused Holt’s request to add the “mere presence or association” language to the instruction on aiding and abetting.
Next, Holt argues that the trial court erred when it refused to add the “mere presence or association” language to the aiding and abetting instruction. The State counters that the trial court followed the specific language of PIK Crim. 3d 54.05 and that “[e]rror cannot be predicated on a district court’s refusal to give a specific instruction where the instructions given cover and include the substance of the instructions refused.” State v. Pink, 270 Kan. 728, 738, 20 P.3d 31 (2001).
The PIK instruction on aiding and abetting 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.”
Holt requested that the following language be added: “Mere association with the principals who actually commit the crime or mere presence in the vicinity of the crime is insufficient to establish guilt as an aider or abettor.” In denying the request, the trial court held that this was a matter for closing argument and it was adequately covered by the other instructions.
Holt acknowledges that per the official Comment to PIK Crim 3d 54.05, the trial court may properly refuse to add the “mere presence or association” language because the pattern instruction “clearly informs the jury that intentional acts by a defendant are necessary to sustain a conviction for aiding and abetting.” State v. Pink, 270 Kan. at 738-39; State v. Jackson, 270 Kan. 755, 760-61, 19 P.3d 121 (2001); State v. Ninci, 262 Kan. 21, 46, 936 P.2d 1364 (1997); State v. Scott, 250 Kan. 350, 361, 827 P.2d 733 (1992); State v. Hunter, 241 Kan. 629, 639, 740 P.2d 559 (1987). However, he argues that the trial court should have given his requested additional language because the jury’s questions show, among other things, that it had doubts whether Holt was the shooter.
Holt has not made any novel arguments that convince this court to depart from well-established Kansas law and hold that the trial court erred in rejecting his proposed language. The pattern instruction clearly informs the jury that intentional acts by a defendant are necessary to convict on aiding and abetting. Moreover, as in Pink, 270 Kan. at 739, the instruction did not prevent him from arguing that while some evidence suggested he may have accompanied Lisa and Casey to the murder scene, his mere association and presence was insufficient to establish the required intentional acts to convict on aiding and abetting. As in Pink, “it was forcibly and logically argued” by Holt’s counsel in closing. See 270 Kan. at 739.
Issue 3: The trial court did not err in overruling Holt’s objection to the giving of an aiding and abetting instruction.
Holt next argues that because there was insufficient evidence to support an aiding and abetting instruction, the trial court erred when it overruled his objection to giving it. He suggests that the court cannot instruct that he was either the principal or the aider and abettor, because the State’s entire case was built on its assertion that he was the principal, i.e., the shooter. The State responds that there is sufficient evidence to warrant the instruction.
We have held that the aiding or abetting instruction is appropriate if, from the totality of tire evidence, the jury could reasonably conclude that the defendant aided and abetted another in the commission of the crime. State v. Edgar, 281 Kan. 47, 55, 127 P.3d 1016 (2006).
The case of State v. Clemons, 251 Kan. 473, 836 P.2d 1147 (1992), is on point. There, the first-degree murder defendant argued that an aiding and abetting instruction should not have been given. He asserted that he was not charged with aiding and abetting and such evidence was not produced by the State. Indeed, in closing argument the State expressly tried to refute the possibility that anyone besides the defendant was the assailant by stating that the victim’s wife, who was at the murder scene, did not actually shoot her husband. 251 Kan. at 485. This court reviewed the evidence and rejected his argument, stating: “Although the State’s theory of the case was that Clemons was the person who killed [the victim], from the totality of the evidence the jury could have reasonably concluded that Clemons aided and abetted [victim’s wife] in the commission of the crime.” (Emphasis added.) 251 Kan. at 486.
In examining the evidence in the instant case, we acknowledge Holt points to the State’s evidence that he was the shooter, suggesting that based on that evidence, the jury could not conclude that Casey was the shooter and Holt therefore the aider and abettor. As the State adroitly notes, however, while its prosecution theory was that Holt was the shooter, Holt’s entire defense was that Casey was the shooter. Indeed, it was the defense who elicited that part of Sheriff Howser’s testimony indicating that Casey confessed to another inmate about being die shooter. Additional evidence from which the jury could conclude that Holt aided and abetted Casey as the shooter was Lisa’s testimony that Holt told her to get Kenton close to the blanket in the garage, and Lisa’s and Casey’s testimony that Holt enlisted Casey to help with the crime.
As in Clemons, here the aiding and abetting instruction was proper because the jury reasonably could have concluded from the totality of the evidence that Holt was an aider or abettor to Casey, even though the State’s theory was that Holt was the principal. See State v. Holt, 260 Kan. 33, 917 P.2d 1332 (1996) (though defendant charged as a principal in aggravated burglaiy, under the facts the juiy could find him guilty as an aider and abettor; giving of aiding and abetting instruction not error); See also State v. Gleason, 277 Kan. 624, 88 P.3d 218 (2004) (sufficient evidence for a jury to find defendant guilty as either a principal or as aider and abettor; giving of aiding and abetting instruction was not error.)
Issue 4: The district court did not err in instructing the jury that Holt could be convicted as an aider and abettor, even though the State's theory was that he was the shooter: The State did not improperly use inconsistent theories.
In an argument related to the one Holt made in issue 3, he claims that the trial court erred in giving the aiding and abetting instruction because the State had already determined that Casey was the accessory by accepting his plea to accessory-type crimes. More specifically, Holt contends that the State is prevented from arguing that he was an aider and abettor because it had already concluded that Casey was. As a result, he claims that his due process rights were violated and he was denied a fair trial through the State’s inconsistent arguments. The State essentially responds that it is not estopped from taking these positions.
Whether the trial court violated an individual’s due process rights is a question of law, to which this court exercises unlimited review. See State v. Sanders, 272 Kan. 445, 461, 33 P.3d 596 (2001).
The case of In re J.W.S., 250 Kan. 65, 825 P.2d 125 (1992), is on point. There, the juvenile respondent and his friend went into the country with the respondent’s stepfather. The stepfather was killed by 3 shotgun blasts, and both boys were charged with first-degree murder. The friend, Malone, said the respondent shot his stepfather, and Malone then pled guilty to aiding and abetting first-degree murder.
At respondent’s trial for first-degree murder, Malone testified that the respondent had shot the victim with premeditation. In respondent’s testimony, he claimed for the first time that Malone shot the victim. Based upon these new facts, the State amended the information to include aiding and abetting as an alternative charge against respondent. The jury convicted the respondent of aiding and abetting in the murder.
We rejected respondent’s first argument that there was no evidence to support his conviction of aiding and abetting. We held that “Under the evidence the jury could, and apparently did, find that the boys planned the murder, that Malone did the actual shooting, and that respondent was an active participant in the murder.” 250 Kan. at 67-68.
In what this court described as an “offshoot” to the first issue, the respondent then made an argument quite similar to the one made by Holt:
“As an offshoot to this issue, respondent contenéis that the State, having accepted Malone as an aider and abettor in the crime, cannot charge respondent as an aider and abettor. Respondent concedes that an aiding and abetting conviction is valid even if the alleged principal is acquitted or convicted of a lesser charge. . .
“Under respondent’s theory, once the prosecution permits one of two codefendants to plead guilty to aiding and abetting, then it is locked into proving the second defendant is the principal. If it fails to prove the same, then the second defendant must be acquitted. . . . We find no merit in the estoppel argument.” (Emphasis added.) 250 Kan. at 68.
As we summarized in the opinion syllabus: “Where two defendants are charged with the commission of a crime and one enters a plea of guilty thereto as an aider and abettor, the State is not estopped by virtue of the earlier plea from alternatively charging the other as an aider and abettor.” 250 Kan. 65, Syl. ¶ 3.
Although the In re J.W.S. court did not deal with the jury instruction issue, as argued here, rejection of Holt’s argument naturally flows from that court’s holding. If the State is not estopped from charging aiding and abetting, then it is not estopped from requesting a jury instruction on that charge. In Smith v. State, 765 N.E.2d 578 (Ind. 2002), the Indiana Supreme Court dealt with the jury instruction issue in this specific context. There, one Lampley pled guilty to an accomplice-based crime and became the principal witness against Smith in his retrial on murder charges. The State proceeded on the theory that Smith killed the victim. It also asked for and received an accomplice jury instruction, however, believing the jury might instead find that Lampley had killed the victim and that Smith had aided Lampley. After Smith’s conviction of murder and other crimes, he argued on appeal that because the State had given Lampley a plea bargain for an accomplice-based crime, the doctrine of judicial estoppel precluded an instruction based upon a State theoiy inconsistent with Smith committing the murder, i.e., his aiding Lampley in committing the killing. The Indiana Supreme Court rejected the argument.
In addition to our reliance upon these authorities to reject Holt’s claim, we observe that accepting it would cause considerable problems. As mentioned, while the State’s theory was that Holt was the shooter, Holt’s defense was that Casey was the shooter. Once some evidence was provided to support Holt’s defense, e.g., Sheriff Howser’s testimony that Casey told an inmate he was the shooter, the State felt obligated to proceed under an alternate prosecution theory: Holt was perhaps simply the aider and abettor. With Holt’s objection to the State’s request for an aiding and abetting instruction in support of this alternate theory, however, he essentially seeks to prevent the jury from considering that he was simply an aider and abettor—despite the existence of evidence to that effect and despite the fact he denied being the shooter. Instead, Holt improperly seeks to force the juiy to have only two choices: that he was either the shooter or that he was not involved at all.
Issue 5: The trial court erred in ordering Holt to reimburse BIDS for attorney fees.
Next, Holt argues that the trial court erred when it ordered him to reimburse BIDS for attorney fees because the court failed to consider his ability to pay, the financial burden that payment would impose, and the validity of the fees. The State concedes that the matter should be returned to the lower court with instructions to comply with K.S.A. 2006 Supp. 22-4513.
Under K.S.A. 2006 Supp. 22-4513, a trial judge may require a defendant to reimburse the State for attorney fees. As we noted in State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006), however, that judge must consider on the record at the time of assessment the financial resources of the defendant and the nature of the burden that payment of the fees will impose. 281 Kan. 538, Syl. ¶ 1. We also held that the sentencing court’s failure to explicitly consider the financial resources of the defendant and the nature of the burden that payment of the fees would impose was reversible error. 281 Kan. at 546-48; see State v. Voyles, 284 Kan. 239, Syl. ¶ 8, 160 P.3d 794 (2007).
Here, the trial court faded to make particularized findings on the record. The State told the trial court that based on the BIDS cost reimbursement table for off-grid trials lasting less than 2 weeks, the fee would be $7,000. While there was some discussion about Holt’s ability to pay restitution, the trial court did not consider his ability to pay attorney fees. The court simply ordered him to pay the BIDS reimbursement fee of $7,000.
The matter is remanded to the district court with orders to comply with K.S.A. 2006 Supp. 22-4513 in determining Holt’s ability to pay BIDS fees.
Issue 6: The trial court did not err in using Holt’s prior convictions to calculate his criminal history score.
For his last claim of error, Holt argues that the trial court erred by including his prior convictions in calculating his criminal history score. The State responds that his argument is contrary to well-established precedent.
The constitutionality of the Kansas Sentencing Guidelines Act is a question of law over which appellate courts exercise unlimited review. State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002). There, we held that the use of criminal history scores is not unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
Holt claims that Ivory should be overturned in light of the United States Supreme Court’s decisions in Shepard v. United States, 544 U.S. 13, 161 L. Ed. 2d 205, 125 S. Ct. 1254 (2005); Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004); and Johnson v. United States, 544 U.S. 295, 161 L. Ed. 2d 542, 125 S. Ct. 1571 (2005). We have recently considered this precise argument and have refused to overrule our prior decisions. See State v. Gaither, 283 Kan. 671, 693, 156 P.3d 602 (2007); State v. Gonzalez, 282 Kan. 73, 117-18, 145 P.3d 18 (2006) (affirming Ivory rule after United States Supreme Court post-Apprendi decisions in United States v. Booker, 543 U.S. 220, 160 L. Ed. 2d 621, 125 S. Ct. 738 (2005), Blakely, and Shepherd). Holt has not presented any new facts or law that merit reconsideration of this issue.
Consequently, the trial court did not err when it included Holt’s prior convictions in its calculation of his criminal history score.
Convictions and sentences affirmed. Remanded to the district court for redetermination of the BIDS fee reimbursement.
Davis, J., not participating.
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The opinion of the court was delivered by
Davis, J.:
Defendant James Cromwell appeals his jury conviction and his sentence for two counts of premeditated first-degree murder, two counts of aggravated robbery, two counts of rape, one count of aggravated criminal sodomy, and one count of theft.
Defendant contends: (1) he. was deprived of his. constitutional right to effective assistance of counsel or, in the alternative, the right to conduct his own defense; (2) he was denied his right to be present during trial; (3) the court erred in allowing the jury to consider evidence about the 1987 crimes to prove his identity with respect to the 1991 crimes; (4) the court abused its discretion in denying defendant’s motion to sever; and (5) the court erred in accepting the jury’s recommendation of a mandatory 40-year sentence. We determine that no reversible error of law appears and affirm.
The charges against defendant arise out of the deaths of two women, Ernestine Hoist, age 60, and Isabell Moore, , age 85, and the theft of a car. Ms. Hoist’s body was discovered in her apartment after she. did not show up . for work on February 3, 1987. There were no signs of forced entry into her . apartment, but there was evidence of a struggle. Ms. Hoist’s billfold and checkbook were missing. She died as a result of ligature and manual strangulation. The police chemist detected seminal material in a vaginal swab taken from Ms. Hoist. A population geneticist testified that DNA extracted from seminal material found in the vaginal swab from Ms. Hoist matched the defendant’s DNA. The defendant worked with Ms. Hoist at the Salvation1 Army.
In January 1987, defendant also worked as a painter and laborer for Earl Griffith. On January 31, 1987, Griffith bought defendant some groceries and loaned defendant his yellow 1973 Volkswagen so that defendant could take the groceries home. Defendant never returned the car, and he admitted he left Wichita in a yellow 1973 Volkswagen sometime in February 1987.
Defendant returned to Wichita in 1990 arid again worked and lived at the Salvation Army. In February 1991, he was asked to leave the Salvation Army because of his drinking. On or about Friday, February 22, 1991, defendant went to stay with a friend, Don Griffin, who had an apartment directly below Isabell Moore’s apartment. Isabell Moore helped the apartment owners by collecting rent and letting repair people into the apartments. Griffin introduced defendant to Ms. Moore; defendant subsequently went to Ms. Moore’s apartment on several occasions with Griffin or alone to use the telephone or to ask for money or food. Griffin and another witness testified that defendant left Griffin’s apartment early in the evening on Monday, February 25, 1991, and that he did not return until about 1:30 or 2:00 a.m., Wednesday, February 27. They also testified that between 9:00 and 10:00 p.m. on February 25 or 26, they heard a lot of noise in Ms. Moore’s apartment.
After unsuccessful attempts to contact Isabell Moore on February 26 and the morning of February 27, 1991, the owner of Ms. Moore’s apartment building discovered her body in her apartment. There were no signs of forced entry into the apartment, but there was evidence of a struggle. Ms. Moore’s purse was missing. She died as the result of manual and ligature strangulation, but she also had numerous bruises and abrasions on her body and a postmortem stab wound in her upper left chest. The presence of undigested food in her stomach, together with her habit of eating at 6:00 p.m., suggested that Ms. Moore died between 9:00 and 10:00 p.m. There was evidence of vaginal and anal penetration, and evidence of seminal material in the vaginal swabs and pubic hair from Ms. Moore’s body. The police chemist testified that a hair found at the scene was “consistent with” defendant’s hair and could have come from defendant. There was not sufficient DNA material on the vaginal swabs to complete a DNA analysis.
Defendant was charged with two counts of first-degree murder, two counts of aggravated robbery, two counts of rape, one count of aggravated criminal sodomy, and one. count of felony theft. The court denied defendant’s motion to sever the charges arising out of the Hoist homicide from those arising out of the Moore homicide. The jury found defendant guilty of all counts and found that aggravating factors existed in the death, of Ms. Moore to warrant imposition of the mandatory 40-year sentence. See K.S.A. 1992 Supp. .21-4624; K.S.A. 1992 Supp. 21-4625; K.S.A. 1992 Supp. 21-4628.
The court entered judgment against the defendant on all counts and found there was sufficient evidence to support the jury’s recommendation of the mandatory 40-year sentence. The court sentenced the defendant to life pursuant to K.S.A. 21-4501(a) for the premeditated murder of Ernestine Hoist; to terms of 15 years to life for each of the counts of rape, aggravated robbery, and aggravated criminal sodomy pursuant to 21-4501(b); to a term of one to five years for the theft count pursuant to 21-4501(e), arid to a term of life without parole for 40 years pursuant to 21-4501(a) and K.S.A. 1992 Supp. 21-4628 for the premeditated murder of Isabell Moore.
EFFECTIVE ASSISTANCE OF COUNSEL.
Defendant made known his dissatisfaction with appointed counsel early in the proceedings. The information was filed in June 1991, and defendant was represented by counsel at the preliminary hearing in July. In August, defendant wrote twice to the ACLU, expressing dissatisfaction with his attorney. In October, he expressed his written dissatisfaction to the Wichita Bar Association, the Office of the Disciplinary Administrator, and Judge Cranmer, who had presided over the preliminary hearing.
At the pretrial hearing on November 15, 1991, Judge Owens asked defendant if he had any. more complaints other than those identified in the letter to Judge Cranmer. Defendant expressed additional specific complaints. Although defense counsel explained the circumstances surrounding many of defendant’s specific complaints, it was clear that a serious communication problem existed. Defendant repeatedly expressed his distrust of his attorney and had refused to see her on several occasions immediately before trial. He asked the court to appoint substitute counsel. Defense counsel stated that she wanted to represent defendant and that she was prepared for trial.
The Sixth Amendment right to counsel includes the right to effective assistance of counsel and the right to conduct one’s own defense. See Faretta v. California, 422 U.S. 806, 819, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975) (self-representation); Powell v. Alabama, 287 U.S. 45, 71, 77 L. Ed. 158, 53 S. Ct. 55 (1932) (effective assistance); State v. Cunningham, 222 Kan. 704, 706; 567 P.2d 879 (1977) (self-representation). An indigent criminal defendant is not entitled to counsel of his or her own choice. State v. Banks, 216 Kan. 390, 393, 532 P.2d 1058 (1975). Generally, the decision whether to appoint new counsel is a matter left to the trial court’s discretion. Banks, 216 Kan. 390, Syl. ¶ 2; State v. Saeger, 13 Kan. App. 2d 723, Syl. ¶ 1, 779 P.2d 37 (1989). Irreconcilable conflict between a defendant and his attorney may, under certain circumstances, require the appointment of substitute counsel in order to protect a defendant’s Sixth Amendment right to effective assistance of counsel. See, e.g., Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991); United States v. Williams, 594 F.2d 1258, 1260 (9th Cir. 1979); Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir. 1970).
The complete breakdown of communication between an attorney and his or her client may evidence an irreconcilable conflict that requires appointment of substitute counsel. In the instant case, the communication problem was presented to the court a few days before trial was scheduled to begin. The trial court denied defendant’s motion for substitute counsel, but took steps to reestablish the communication between attorney and client and allowed additional time for trial preparation.
After pretrial motions were argued, defendant asked to serve as “cocounsel” in his own defense. He expressed concern that he had not had time to discuss several State’s witnesses with his attorney and thought that he might be better able to cross-examine those witnesses. He made it clear that he did not wish to represent himself, but wished to assist his counsel. The court took his request under advisement. Expressing concern about the communication problems between defendant and his counsel, the court asked defendant if he needed more time to prepare' for trial. Defendant indicated that if the court granted a continuance, he would use that time to communicate with his attorney to prepare for trial. The court granted a three-week continuance.
' “THE COURT: [The court] can if you feel as though you need that time to become prepared. Your attorney has indicated she is ready to go; but if you feel as though you need more time to begin your communication, begin with her and work with her so that she can find out more information from you and you can find out information from her of more recent developments, the Court would consider granting you a continuance in the case starting on Monday, perhaps setting it over for two or three weeks, if that’s what you want. I just don’t want to rush you into trial, if there’s been any communication problems that can possibly be solved by granting a continuance in this case.
“THE DEFENDANT: I would appreciate it.
“THE COURT: So it is your desire the case be continued for perhaps two or three weeks so that you can have this communication with Ms. Bacon?
“THE DEFENDANT: Yes, sir.”
The court granted a three-week continuance and told defendant:
“THE COURT: Yes. Well, I am going to honor your request, Mr. Cromwell; and I will continue the case and set it over for trial for December 9th. And what I will ask for you to do then between now and then, is to do everything you can to communicate with Ms. Bacon.”
On December 5, 1991, another pretrial hearing took place and the court ruled on various pretrial motions and held a Jackson v. Denno hearing. While there were indications of continuing problems in the relationship between defense counsel and defendant, there also was some indication that they were communicating.
The content of defense counsel’s cross-examination of one of the detectives who interviewed defendant strongly suggested that defense counsel and defendant had conferred about what took place during the interview. She inquired about the lapse of several hours between the time the detective Mirandized defendant and the time the taped interview began. She asked if the detéctive told defendant “over and over again” that he did not do very well on the polygraph. She asked, “[Djidn’t you tell Mr. Cromwell that what you really wanted was a statement that you could play to Mr. Griffin, who was the other suspect?” She asked, “Did you not tell Mr. Cromwell at that time that what you needed on your case for Mr. Griffin was a statement by him, meaning Mr. Cromwell, of Mr. Griffin’s involvement, so that you could play it to him while he was in prison? . . . And indeed didn’t you spend some time talking to him, explaining to him what exactly should be on this statement?”.
Defendant and his counsel also communicated at the hearing. At the close of her cross-examination of one witness, defense counsel told the court that defendant had asked if he could cross-examine the witness. The court indicated it preferred that defense counsel conduct the examination, and defendant and his counsel conferred privately before defense counsel asked some additional questions. Defendant also testified at the hearing and conferred with his counsel after his testimony, before the defense rested.
Trial commenced on December 9, 1991, as scheduled. After voir dire, defense counsel made a record that she had advised defendant not to put his NCIC records into evidence but that defendant chose to do so. In order to facilitate defendant’s wishes, she had entered into a stipulation that “would allow for someone available to testify to it.” She also advised the court that defendant had asked her to make a clear record that he preferred and believed it was his right that Detective Holmes not be present in the courtroom when other witnesses testify.
Although the court ultimately denied defendant’s request to present the opening statement, defense counsel advocated defendant’s position on this request. The record reflects defendant’s communication with his counsel about the opening remarks. Defense counsel indicated that defendant had expressed a desire to give the opening statement, thát she had discussed with him the court’s discretion regarding that request, and had advised him about protocol if the court granted the request. Defendant and his counsel had conferred privately after the court indicated its understanding that defendant wanted legal representation and told defendant the extent to which he could participate in the proceedings was discretionary. Defense counsel told the court that defendant’s plan for his opening statement was succinct and not objectionable.
Defense counsel conferred privately with defendant after cross-examining the first State’s witness and before telling the' court she had no further questions. After the second witness’ direct testimony, defense counsel told the court that defendant wanted to conduct the cross-examination. Defendant said there were three questions he wanted to ask: “The way I want to phrase them, I don’t know if Mrs. Bacon would say them the way I would say it but then is within the bounds of the law, the way I can ask the questions.” The court denied defendant’s' request and suggested that defendant “continue to confer with your counsel, and you can allow your counsel then to ask those questions of the witness.” Defendant and his counsel conferred privately, and counsel cross-examined the witness. After cross-examining the third State’s witness, defense counsel again conferred privately with defendant before indicating that she had no further questions.
The court recessed for the afternoon break. Before the jury was brought back in, defense counsel indicated that defendant had an oral motion he wished to make. Defendant then asked if he could be his own counsel, ‘‘[i]f that’s the only way I can question witnesses.” After some discussion between the court and the defendant, the court, referring to defendant’s earlier explanation as to why he wanted to cross-examine a witness, said:
“What I had in mind is that the possibility might exist you and your attorney would disagree strategically on the types of questions that need to be asked; and your attorney might choose not to go into a certain area that you wished to go into; but if we are talking about the same questions, then I don’t see any difference between you asking those questions and your attorney asking those questions.”
The defendant replied:
. “Well, there seems to be a difference. The witness that just left, I wanted to question, specific question. The man stated that he was the foreman at the place where I had been at, all right. From what I gathered, it was established that I was still at that place in February of 1987. I have the records to prove that’s á lite. I’m not able to bring that forwards I’m not able to show that. So then, thereafter, I need to be'my own attorney.”
Although defendant’s statement relates to whether the court properly denied his request to act as cocounsel, his statement merits comment. Defendant suggested that there was additional information he wanted to add by his questions that was not brought, out by his counsel. This is not the case. First, he. did not ask the court for permission to cross-examine the witness. Second, defense counsel conferred with defendant after she cross-examined the witness and before indicating she had no more questions. Third, defense counsel established on crpss-examination that the witness did not know when defendant left the Sab vation Army and that the witness could not testify that defendant was living there in 1987. Thus, defendant’s perception about what the testimony established is .incorrect. . ■
The court advised defendant he needed to work through the assistance of his counsel and denied his request for self-representation. Defendant then asked to leave, the courtroom and expressed his desire not to be present during the trial.
Communication continued after defendant left the trial. The first thing in the morning on December 10, defense counsel renewed defendant’s motion to represent himself because it was important to her client. Defendant -declined the opportunity to add to his counsel’s argument. When the court denied the motion and asked defendant if he wanted to be in or out of court, defense counsel indicated that defendant would like to stay, if the court would allow him to cross-examine some witnesses when he felt his counsel was not doing a good job.
Defendant told the court that the reason he wanted to cross-examine witnesses was because he did not trust his attorney to ask the questions that he would ask. The court informed the defendant that if his attorney would not ask questions he thought were important, that might be reason enough for him to be allowed to ask the questions but that complaints about the form of the question were not sufficient. Defense counsel indicated that for strategic reasons she had modified some of the questions he requested, and defendant chose to leave the courtroom.
Communication between attorney and client continued even after this incident. On the morning of December 13, the court advised defendant of his right to testify (or not to testify) and that if he chose to testify, the State could cross-examine him. The following colloquy took place:
“THE COURT: ... At this time would you like to have more time to discuss with your attorney the decision as to whether or not you wish to testify in this proceeding?
“THE DEFENDANT: No, Your Honor. We have discussed it.”
Defendant stated he did not want to testify and asked to be excused. Defendant was present at sentencing and given the opportunity to speak to the court. . . .
Although there was a substantial break in communication between defendant and his counsel, which,, if not addressed, might have resulted in an irreconcilable conflict, the court restored communication between defense counsel and client, making it unnecessary to appoint substitute counsel. The defendant and his counsel took advantage of the three-week continuance to communicate with one another, and communication continued throughout all proceedings. Under these circumstances, we conclude that the trial court did not abuse its discretion in refusing to appoint substitute counsel.
SELF-REPRESENTATION
As noted above, after the State’s ■ third' witness testified,' de fendant asked the court to allow him to represent himself. This was the first time defendant had made such a request. Defendant claims on appeal that the trial court erred by not allowing him to represent himself.
Although a defendant has a right to self-representation, that right is unqualified only if it is asserted before trial. United States v. Mayes, 917 F.2d 457, 462 (10th Cir. 1990), cert, denied 112 L. Ed. 2d 1192 (1991). If a defendant does not ask to represent himself before trial starts, the court has discretion whether to grant his request for self-representation. 917 F.2d at 462.
Defendant attempts to' avoid this timeliness requirement by claiming that the court did not inform him of his right to self-representation. However, defendant considered and rejected the possibility of self-representation as early as the pretrial conference on November 15, 1991. In discussing his desire to act as co-counsel, defendant stated he was not asking to act as counsel, but only as cocou'nsel. Defendant repeatedly stated that he did not want to be lead counsel and stated that hé did not want to say which witnesses would be called, did riot want to make the opening statement or closing argument, and did not want to make legal arguments. At the final pretrial conference on December 5, 1991, the court specifically advised defendant that he had a constitutional right to represent himself. At the close of that hearing, the court, defense counsel, and defendant specifically discussed whether defendant wanted to represent himself. Defendant said he did not.
Because defendant did not ask to represent himself until after trial was under way, it was within the trial court’s discretion to grant or deny defendant’s request. In exercising that discretion, á court should balance the alleged prejudice to defendant with “ ‘disruption of the proceedings, inconvenience and delay, and possible confusion of the jury,’ ” and should also consider the réason for the request and the quality of counsel’s representation. Mayes, 917 F.2d at 462.
Our consideration of the record leads us to conclude that the court, in balancing the above factors, did not abuse its discretion in denying defendant’s motion for self-representation. Allowing self-representation after a day of trial with counsel and after three witnesses had testified could have been disruptive, and could well have confused the jury.
Next, the reason for defendant’s request does not support his claim that the trial court abused its discretion. Defendant asked to represent himself because the court did not allow him to cross-examine a witness. A defendant has no constitutionally protected right to serve as cocounsel. State v. McKessor, 246 Kan. 1, 12, 785 P.2d 1332, cert, denied 495 U.S. 937 (1990). The trial court nevertheless established a procedure by which defendant could ask to cross-examine witnesses during the trial. The court denied defendant’s first such request because the only reason defendant gave was that he believed he might ask the questions differently than his counsel would ask them. Dissatisfied with the court’s denial of his request^ defendant asked to represent himself after the third witness had testified.
Finally, the quality of defense counsel’s representation does not lead us to conclude that the court abused its discretion in denying defendant’s request for self-representation. Although defendant essentially claims that defense counsel did not provide any defense at all .after he left the courtroom, the record reflects her continuing advocacy of both his expressed wishes and his best interest. She renewed defendant’s motion for self-representation at his request, cross-examined several key witnesses, and objected to much of the State’s evidence. She moved for judgment of acquittal or new trial and objected to jury instructions. She argued for leniency in sentencing.
One of the reasons advanced by the court for the need of defendant to be represented by counsel was the anticipated presence of expert testimony of DNA experts and counsel’s expertise in conducting a cross-examination in this area. Defendant correctly points out that defense counsel did not cross-examine the witness who offered DNA testimony. Defendant is correct that DNA evidence was particularly significant evidence in the conviction for the murder of Hoist. Defendant argues that defense counsel’s failure to cross-examine the DNA expert, particularly in light of her opening statements emphasizing the importance of cross-examination, was evidence that he did not have effective assistance of counsel.
Although defense counsel did not cross-examine the DNA expert at trial, she did cross-examine the expert at the preliminary hearing. Defense counsel’s cross-examination at the •preliminary hearing did little to undermine the valúe of the DNA evidence. In light of this cross-examination, cross-examination at trial might have accomplished nothing more than confirming direct examination. Defense counsel hired and consulted with a DNA expert. It may well be concluded that her decision- to forego cross-examination of the DNA expert was a sound .tactical decision.
The right to effective assistance of counsel is a cornerstone of our system of justice. In order to preserve that right, it is essential that courts attend to objective, legitimate complaints that indigent defendants present about their attorneys.. The trial court here attended to defendant’s complaints and went to great lengths to protect defendant’s right to effective assistance of counsel. Defendant was not denied his right to-effective assistance of counsel.
RIGHT TO BE PRESENT AT TRIAL
As noted above, after the court deniéd the defendant’s request to represent himself, defendant asked to be excúséd from the trial. The court advised him of the possible adverse impact of his absence and assured defendant that he was welcomé to remain in the courtroom. Defendant chose to leave.
On appeal, defendant properly notes that an accused has a constitutional right to be present at every stage of trial. Illinois v. Allen, 397 U.S. 337, 338, 25 L. Ed. 2d 353, 90 S. Ct. 1057 (1970). A defendant can waive that right, however, and defendant’s voluntary absence may be deemed a waiver of the right to be present. State v. Kelly, 213 Kan. 237, 241, 515 P.2d 1030 (1979); State v. Galloway, 16 Kan. App. 2d 54, 56, 817 P.2d 1124, rev. denied 249 Kan. 777 (1991). A defendant’s “voluntary absence after the trial has been commenced in such person’s presence shall not prevent contiiiuing the trial to arid including the return of the verdict.” K.S.A. 22-3405. A defendant cannot impede a trial by choosing to be absent. Galloway, 16 Kan. App. 2d at 56.
Defendant claims that his absence was riot voluntary because his poor relationship with his attorney, together with the trial court’s denial of his request to be cocounsel and denial of his request to represent himself, conveyed to him that he was not welcome at the trial and could not be a part of it. This court has rejected similar arguments in the past. In State v. Salton, 238 Kan. 835, 715 P.2d 412 (1986), the court denied defendant’s pretrial request for new counsel when defendant said he was not ready for trial and would not attend. On appeal, he claimed his absence was not voluntary. We said that if the trial court erred at all, defendant invited the error. 238 Kan. at 837-38. In Saltón, we concluded that the defendant’s absence was “clearly voluntary.” 238 Kan. at 838.
The trial court listened to and took steps to resolve problems between defendant and his attorney. Communication was restored. The trial court set up a proper procedure to deal with defendant’s specific requests to cross-examine witnesses. The court did not abuse its discretion in denying defendant’s request to represent himself.
Defendant chose to leave the trial. The court advised defendant of the risks associated with his absence and assured defendant he was welcome to stay. The court brought defendant into the courtroom every day to ask him if he wanted to be present. The court left a standing order at the jail to return defendant to the court immediately if he expressed any desire to return to the court. Before the trial ended, defendant was given the opportunity to testify; he declined after having discussed his right with his attorney and again expressed his desire to leave the courtroom. He was present at sentencing.
Defendant’s absence from the trial was voluntary; he waived his constitutional right to be present. The trial court did not err in allowing the trial to continue.
USE OF EVIDENCE ABOUT ONE RAPE/ROBBERY/ MURDER TO PROVE IDENTITY IN THE OTHER RAPE/ROBBERY/MURDER
Before trial, the State moved that evidence of the crimes against Ms. Hoist be admitted and that the jury be allowed to consider it in reaching a verdict about the crimes against Ms. Moore and “vice versa.” The State argued that such evidence was admissible under K.S.A. 60-455 because it was relevant to prove identity, intent, preparation, plan, and motive. The court initially deferred ruling on the motion, properly noting that because it had denied defendant’s motion to sever the charges, the evidence would be admissible at trial, leaving only the issue of the purposes for which the jury could consider it. The jury instructions would address the purposes for which the jury could consider the evidence.
The court ultimately granted the State’s motion, but only to the extent it allowed the jury to use the evidence for purposes of proving identity. Instruction No. 17 instructed the jury to “decide each charge separately on the evidence and law applicable to it.” It also instructed that the jury could consider evidence tending to prove the defendant committed the crimes charged in the Hoist case, in the Isabell Moore case and vice versa, but “solely for the purpose of proving the defendant’s identity.”
Defendant claims that the trial court erred in allowing evidence of earlier crimes to be used for even the limited purpose of proving identity in the later crimes. He claims that 60-455 does not apply to this case because it applies only to prior convictions. He also claims that the instruction was “enormously prejudicial” because identity was the only real issue in the Moore case, where the State did not have the DNA evidence to specifically link defendant to the crime. Defendant claims the instruction basically told the jury to “ignore evidence in one incident if it found enough evidence in the other, even if in reality the State had not sustained its burden of proving the charges in that one incident beyond a reasonable doubt.”
The admissibility of the evidence under K.S.A. 60-455 is not an issue in this case. Because the cases were tried together, the questioned evidence was admissible independent of 60-455. The only issue is whether the court erred in instructing the jury that it could consider evidence that defendant committed one set of crimes to prove identity in the other set of crimes. In general, when evidence is admissible independent of 60-455, a limiting instruction is not required. See, e.g., State v. Wilson, 247 Kan. 87, 97, 795 P.2d 336 (1990). Accordingly, the limiting portion of Instruction No. 17 was unnecessary, and the instruction given was not error.
Instruction No. 17 advised the jury that it could consider the evidence on the issue of identity. As the cases involving 60-455 instruct, evidence that a defendant had committed similar offenses may be relevant to the issue of identity. See, e.g., State v. Williams, 234 Kan. 233, 234, 670 P.2d 1348 (1983); State v. Lomax & Williams, 227 Kan. 651, 653, 608 P.2d 959 (1980); State v. Henson, 221 Kan. 635, 644, 562 P.2d 51 (1977); State v. Johnson, 210 Kan. 288, Syl. ¶ 4, 502 P.2d 802 (1972). The crimes here were strikingly similar.
Defendant also claims that the instruction basically told the jury to ignore the burden of proof and that it could convict defendant of one crime if it found enough evidence that he committed the other. On the contrary, Instruction No. 17 specifically told the jury to consider each crime separately and to decide each charge “separately on the evidence and law applicable to it, uninfluenced bv your decision as to any other charge.” Instruction No. 17 permitted the jury to consider evidence that defendant committed one of the homicides in considering the other homicide, “solely for the purpose of proving the defendant’s identity.” In addition, Instruction No. 14 properly instructed the jury on the State’s burden of proof. The jury is presumed to follow the instructions as a' whole. State v. Logan, 236 Kan. 79, 84, 689 P.2d 778 (1984).
The evidence was admissible because the charges were tried together. Because the evidence was admissible independent of 60-455, a limiting instruction was not necessary. The trial court nevertheless gave a limiting instruction that limited the purposes for which the jury was to consider the evidence and placed the burden of proof for each separate crime upon the State. The instruction was not erroneous.
. SEVERANCE
Before trial, defendant moved to sever the charges so that the Hoist and Moore incidents could be tried separately. The trial court denied the .motion because the charges were “of the same or similar character.” See K.S.A. 22-3202(1). Defendant claims that the trial court abused its discretion in allowing the Moore and Hoist incidents to be tried together because they were not sufficiently similar and because the potential for prejudice was too great where the jury heard evidence of both crimes.
K.S.A. 22-3202(1) provides in pertinent part:
“Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character . . . .”
Whether a defendant will be tried-on all separate charges in a single trial is a matter within the discretion of the trial court, and its decision will not be disturbed on appeal unless there is a clear showing of abuse of discretion. State v. Woods, 250 Kan. 109, 116, 825 P.2d 514, cert, denied 121 L. Ed. 2d 100 (1992); State v. Adams, 218 Kan. 495, 506, 545 P.2d 1134 (1976). If reasonable people could differ about the propriety of the trial court’s decision, this court will not find that the trial court abused its discretion. Woods, 250 Kan. at 117.
Defendant claims that the difference in ages of the victims, the lapse of four years between the crimes, and the application of the “hard 40” sentence to one, but not the other, renders the events sufficiently dissimilar to require that they be tried separately. The State argues, and we agree, that the differences are not material and that the similarities far outweigh the differences.
Although the victims were different ages, they both Were mature women who lived alone and knew the defendant. The lapse of four years does not make the crimes dissimilar. There was evidence that the defendant was out of the state between 1987 and mid-1990. The application of the “hard 40” sentence to the Moore crime but not to the Hoist crime is not material. The legislature did not consider differences in sentences to be dis-positive because K.S.A. 22-3202(1) speaks of the similarities of the crimes, not the sentences, and contemplates potential trial of felonies and misdemeanors together. Moreover, while the consideration of aggravating factors may distinguish the hard 40 from other sentences, the jury considers whether to impose the hard 40 in a separate proceeding after the guilt phase of the trial is complete. Thus, evidence of and argument about aggravating factors need not taint the guilt phase of the trial.
Defendant’s claim that the jury was encouraged to infer guilt in one incident based on guilt in the other is not supported in the record. The trial court instructed the jury to consider separately the evidence and law applicable to each crime and to limit the purposes for which the jury might consider evidence of one incident in reaching a verdict in the other. Even if tried separately, the similarity of the crimes would make the evidence of one admissible under K.S.A. 60-455 to prove identity in the other. See Williams, 234 Kan, at 234; Lomax & Williams, 227 Kan. at 653; Henson, 221 Kan. at 644-45; State v. Johnson, 210 Kan. at 292-93. We have declined to find error when a trial court refused to sever charges that were sufficiently similar such that evidence of one would be admissible under 60-455 in the trial of the other and no prejudice would result to the defendant. See, e.g., State v. Breazeale, 238 Kan. 714, 729-30, 714 P.2d 1356, cert, denied 479 U.S. 846 (1986); State v. Howell, 223 Kan. 282, 285-86, 573 P.2d 1003 (1977). The trial court did not err in denying defendant’s motion to sever the Hoist and Moore charges.
HARD 40
Defendant finally contends that there was not sufficient evidence to support the court’s decision to accept the jury’s recommendation of a mandatory 40-year sentence. K.S.A. 1992 Supp. 21-4624 permits the imposition of a mandatory 40-year sentence when the jury finds evidence of certain aggravating factors and the court finds that the jury’s recommendation was supported by the evidence. The trial court instructed the jury that it could recommend the hard 40 if it found one of three aggravating factors:
1. Defendant committed the crime for defendant’s own self for the purpose of receiving money or any other thing of monetary value;
2. Defendant committed the crime in order to avoid or prevent lawful arrest or prosecution;
3. Defendant committed the crime in an especially heinous, atrocious, or cruel manner.
The jury found all three factors. See K.S.A. 1992 Supp. 21-4625(3), (5), and (6).
Defendant claims on appeal that it is not proper to impose the hard 40 based on the first factor unless receiving monetary value is the sole purpose for the murder. Defendant claims that the second factor does not justify the hard 40 unless the victim was about to apprehend him. Finally, defendant claims that the third factor is unconstitutionally vague.
Most of the cases on which defendant relies with respect to the first two factors are death penalty cases. See Ex Parte Johnson, 399 So. 2d 873 (Ala. 1979); State v. Bigelow, 37 Cal. 3d 731, 209 Cal. Rptr. 328, 691 P.2d 994 (1984); Menendez v. State, 368 So. 2d 1278 (Fla. 1979). We have held that such cases are of limited precedential value in evaluating the propriety of factors in hard 40 sentence enhancement cases. State v. Bailey, 251 Kan. 156, 171, 834 P.2d 342 (1992). Defendant also cites Boutwell v. State, 659 P.2d 322, 328 (Okla. 1983), which involved a “murder for remuneration” factor that the court found, by definition, meant murder for hire.
Defendant’s argument that allowing the hard 40 sentence in such cases would make most murders subject to the hard 40 does not invalidate such an interpretation of the statute. The legislature has said that it is particularly egregious to take the life of another to obtain property or to avoid being held accountable for a crime. The legislature has allowed courts and juries to impose particularly hard sentences for such conduct. The language of the statute is not expressly limited to cases involving murder for hire or those in which the victim was about to apprehend the defendant. Moreover, this court has implicitly rejected the notion that K.S.A. 1,992 Supp. 21-4625(5), applies only in cases where the victim is about to apprehend the defendant. In Bailey, 251 Kan. at 173-74, the court affirmed the trial court’s acceptance of the hard 40 sentence recommendation based on K.S.A. 1992 Supp. 21-4625(5), where the victim was not about to apprehend the defendant.
There was evidence that défendant committed the murder for the purpose of obtaining money or other items of value. Moore’s purse was not found, and Hoist’s billfold and checkbook were missing from her apartment. Indeed, defendant was convicted of aggravated robbery in both instances. There also was evidence that defendant committed the murders to avoid arrest or prosecution. Both victims knew defendant and would have been able to identify him as the person who raped and robbed them.
Finally, defendant argues that the third factor, K.S.A. 1992 Supp. 21-4625(6), is unconstitutionally vague. The district court included the following definitions in its sentencing instructions to the jury: “ ‘heinous’ means extremely wicked or shockingly evil; ‘atrocious’ means outrageously wicked and vile; ‘cruel’ means pitiless, or designed to inflict a high degree of pain, utter indifference to, or enjoyment of the sufferings of others.” This court has twice rejected the argument that 21-4625(6) is unconstitutionally vague, and has indicated that such an argument is particularly meritless when definitions identical, or nearly identical, to those used here are included. See State v. Walker, 252 Kan. 279, 300-01, 845 P.2d 1 (1993); Bailey, 251 Kan. at 173. The trial court did not err in accepting the jury’s recommendation.
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The opinion of the court was delivered by
Six, J.:
This case, before us on summary judgment, examines the authority of a county to hire a private accounting firm to assist the county appraiser in the analysis of reported amounts of tangible personal property.
Dillon Stores and W. H. Braum, Inc., (taxpayers) sought to enjoin enforcement of certain subpoenas duces tecum issued by Harvey County. The action also was to determine the validity of a contract between the County and Allen, Gibbs, & Houlik (AGH), a private accounting firm.
Taxpayers claim an illegal “tax ferret” contract had been entered into between AGH and Harvey County; consequently, the subpoenas duces tecum were unlawful and void. The trial court entered summary judgment for taxpayers, ruling that (1) the contract was void because the County did not have authority to contract, and (2) the subpoenas duces tecum, which were based on the contract, were also void.
Defendants Elysa K. Lovelady, the county appraiser, and Craig D. Cox, the county counselor, (the County) have appealed. Our jurisdiction is under K.S.A. 20-3018(c) (transfer from the Court of Appeals).
When summary judgment is challenged on appeal, we must read the record in the light most favorable to the party who defended against the motion for summary judgment. Bright v. Cargill, Inc., 251 Kan. 387, 392, 837 P.2d 348 (1992).
In the case at bar, our standard of review, the legal scale we use in weighing the sufficiency of taxpayers’ claim, is unlimited. We are reviewing statutory construction, which presents a conclusion of law. See U.S.D. No. 352 v. Nea-Goodland, 246 Kan. 137, 140, 785 P.2d 993 (1990). We find that Harvey County had authority to contract and to issue the subpoenas; consequently, we reverse the trial court.
Facts
According to Harvey County, AGH met with the county administrator to discuss the general concepts of personal property tax compliance reviews. The administrator expressed interest in the project based on his belief that compliance in the county was inadequate. The administrator told AGH he would discuss the project with the county appraiser.
AGH prepared an engagement letter regarding the compliance audit. AGH and the County agreed that AGH’s role was limited to assisting the County in: (1) identifying taxpayers with a high probability of omitted or undervalued property; (2) obtaining the appropriate books and records to review; and (3) preparing an accounting of the personal property from the taxpayer’s records for the county appraiser. According to Harvey County, the goal was to have the assistance of an unbiased, objective expert in generating the personal property list.
The County asserted that the contract stated a fee for Phase I of $3,500. AGH’s compensation for Phase II was based on an hourly rate (time involved) and the value of services as determined by AGH’s billing rate. The contract also contained a provision which stated that AGH’s Phase II fee could not exceed 35% of the additional tax and fees as determined and assessed by the county appraiser. The 35% figure was included, according to Harvey County, as a cap on AGH’s professional fees, and it was understood that the cap would be applied to the entire project. Based on an initial review, AGH determined that 18 taxpayers appeared to be good candidates for the compliance review process.
The list of taxpayers was examined to determine from which taxpayers AGH and the County needed to request additional information and what type of documents would be needed in order to determine compliance. AGH indicated that the taxpayers’ federal income tax returns, financial statements, and books and records were the appropriate documents.
Authority to Hire a Private Accounting Firm to Assist the County Appraiser
Harvey County asserts that the trial court erred in its application of the Kansas Home Rule Powers Act. According to the county, the Home Rule Act (K.S.A. 19-101 et seq.) extends a wide variety of powers to counties. The County emphasizes that “K.S.A. 19-101 fourth grants each county the power to make all contracts in relation to the property and concerns of the county necessary to the exercise of its corporate or administrative powers.”
County appraisers are permitted to hire outside agencies to assist in the assessment of properties located within the county:
“With the consent and approval of the board of county commissioners or district board, [the county appraiser] may appoint such specialized help as he may need to properly assess specific properties and may pay them such compensation as the board of county commissioners or district board shall provide.” K.S.A. 19-425.
Consequently, the County believes its actions were consistent with K.S.A. 19-425. We agree.
The County explains that it contracted with AGH for the sole purpose of receiving the firm’s assistance in discovering tangible personal property that was subject to personal property taxation. The County reasons that it needed the assistance of experts because the methods and means of avoiding liability are often complex and beyond the expertise of most county appraisers.
Taxpayers advance the view that K.S.A. 19-425 does not apply because it is a statute of limited application. They reason that the trial court correctly found that K.S.A. 19-425 merely allows the county appraiser to hire specialized help to properly assess specific properties which are out of the . ordinary and which require specialized expertise. Taxpayers suggest, without citation of authority, examples of such specialized property are rare art, gems, and items found at a nuclear power plant. We do not agree with taxpayers’ restrictive interpretation of K.S.A. 19-425.
The trial court and taxpayers rely on two of our early decisions, State, ex rel., Eubanks v. Sedgwick County Comm’rs, 150 Kan. 143, 91 P.2d 2 (1939), and State, ex rel. Coleman v. Dickinson County, 77 Kan. 540, 95 Pac. 392 (1908). Eubanks and Coleman are of historical interest.
In Coleman, Dickinson County accepted a solicitation from a company to assist county officers in discovering taxable property that had not been listed or assessed. The company received 25% of the taxes paid as a result of its help. The Attorney General sued to enjoin the contract. Finding no statutory authority that would permit the county to so contract, we found the contract to be void. 77 Kan. at 543. We recognized that the contract grew out of a legitimate problem relating to escaped and underreported property. We noted that the contract would have been valid if the county had been given the power to enter into such a contract. 77 Kan. at 542.
Similarly, in Eubanks, the Attorney General sued to enjoin a contract between the county and a private individual for the discovery of property that had not been voluntarily reported for tax purposes. We relied on Coleman in finding the Eubanks contract void for want of authority. 150 Kan. at 145, 147. We concluded that the determination of the necessity of such contracts was for the legislature. 150 Kan. at 147. K.S.A. 19-425, which was enacted in 1968 (L. 1968, ch. 206 § 5), empowers counties to hire experts to assist in the proper assessment of personal property. The legislature has spoken.
According to taxpayers, home rule does not apply to the case at bar because the State has preempted the property tax area. Taxpayers assert that the State, through constitutional and legislative acts, has reserved exclusive jurisdiction to regulate all property tax matters. Therefore, taxpayers believe the contract at issue is beyond the County’s home rule power by reason of state preemption.
The concept of home rule is briefed and argued extensively by the parties. Harvey County advances home rule as authority for the contract’s validity. Taxpayers emphasize that home rule does not apply. We reviewed the history of Kansas home rule in Missouri Pacific Railroad v. Board of Greeley County Comm’rs, 231 Kan. 225, 226, 643 P.2d 188 (1982).
K.S.A. 19-101 fourth, in combination with K.S.A. 19-101c, provides counties with discretion to enter into contracts which assist in administration. The approach taken by the 1974 home rule amendments is clearly contrary to the “need a statute” view in Coleman and Eubanks. The question is whether some provision in K.S.A. 1992 Supp. 19-101a(a) limits Harvey County’s authority. See State ex rel. Stephan v. Board of Sedgwick County Comm’rs, 244 Kan. 536, 540-41, 770 P.2d 455 (1989). Taxpayers believe that 19-101a(a)(l) institutes such a limitation because taxation is governed ultimately by the legislature.
In Blevins v. Hiebert, 247 Kan. 1, 6, 795 P.2d 325 (1990), we quoted Claflin v. Walsh, 212 Kan. 1, 7-8, 509 P.2d 1130 (1973):
“ ‘[I]n determining whether a legislative enactment is applicable uniformly to all cities such a legislative intent should be clearly evident .... Even before the passage of the home rule amendment we held that legislative intent to reserve exclusive jurisdiction to the state to regulate must be manifested clearly by statute before it can be held that the state has withdrawn from [the] cities power to regulate in the premises.’ Clajlin v. Walsh, 212 Kan. at 7-8 (emphasis added).”
As Harvey County explains, examining potential conflicts between state and local law is a way of determining whether state law uniformly preempts an action by a county.
The legislature has not expressly prohibited counties from receiving assistance from accounting firms concerning underreported personal property. Taxpayers claim taxation must be uniform. In the case at bar, the application of taxation rates is uniform. The only differences lie in enforcement, an area which would be historically nonuniform. Additionally, several tax cases illustrate the fact that uniformity is not the pre-eminent goal of the legislature. See Cogswell v. Sherman County, 238 Kan. 438, Syl. ¶ 3, 710 P.2d 1331 (1985) (“Article 11, § 1 of the Kansas Constitution, providing for uniform and equal rates of assessment, does not require that the levy and amount raised by the tax be the same in each taxing district. The constitution only requires a uniform and equal rate throughout the territory in which the tax is levied. The principle of equality is fully satisfied by making local taxation equal and uniform as to all property within the limits of the taxing district.”); Executive Aircraft Consulting, Inc. v. City of Newton, 252 Kan. 421, Syl. ¶ 1, 845 P.2d 57 (1993) (“Home rule empowers a city or county to levy any type of exaction unless the legislature preempts the field by uniform enactment.”).
Taxpayers contend that under K.S.A. 1992 Supp. 79-1427a and K.S.A. 79-1461, the county appraiser has the sole and exclusive duty to investigate, list, and appraise escaped or underreported taxable property.
The literal reading of K.S.A. 1992 Supp. 79-1427a advocated by taxpayers is strained. The claim that only the county appraiser has the authority to deal with escaped property, taken to its extreme, would mean that no assistance could be provided by other support staff.
We need not embark on an extensive analysis of the application of home rule to the case at bar. K.S.A. 19-425 is a specific authorization statute. The contract was not, as the trial court found, ultra vires.
Public Policy—Contingént Fee Agreement
Taxpayers, relying on Coleman and Eubanks, assert a contingent fee feature in the contract is a further ground of illegality. The trial court agreed.
The County insists that its contract with AGH was not a contingent fee agreement. The County contends that the plain meaning of contingent undérmines the trial court’s reasoning. The County also emphasizes that even if the contract was a contingent fee agreement, such contracts are not prohibited in Kansas. For example, in Edwards County Comm’rs v. Simmons, 159 Kan. 41, 151 P.2d 960 (1944), we approved á contingent fee contract in which the county retained an attorney to collect delinquent taxes.
Harvey County also indicates that other Kansas statutes authorize contingent fee contracts between counties and third parties. The County cites K.S.A: 79-2018, which gives counties the ahthority to enter into .contingent fee contracts to assist in the collection of unpaid personal property taxes. According to Harvey County, K.S.A. 79-2018 illustrates that in, the realm of personal property taxation, contingent fee contracts are valid, enforceable, and further the interests, of public policy.
Taxpayers believe that contingent fee “tax ferret” contracts are particularly invidious. Taxpayers note that in Coleman, we found the contingent fee contract to be void not only because it was beyond the power of the county commissioners, but also because it was against public policy. 77 Kan. at 545.
The examples of contingent fee contracts that have been authorized by the legislature and approved by this court suggest that such contracts do not inherently violate public policy. The “tax ferret” metaphor is not applicable to contemporary situations under K.S.A. 19-425 where an accounting firm assists a county with record interpretation. Any inference to the contrary suggested by either Eubanks, 150 Kan. 143, or Coleman, 77 Kan. 540, is hereby disapproved.
The Subpoenas Duces Tecum
The trial court reasoned that the subpoenas were void because the County’s contract with AGH is void. Taxpayers argue that the specific contract between AGH and the County is replete with potential abuses and no safeguards exist against those abuses. According to taxpayers, under several provisions of the contract, a taxpayer can and must be selected for compliance review on a purely arbitrary and selective basis.
According to taxpayers, the validity of the contract should be judged from its four corners, not by the alleged subjective intention of the parties or according to insignificant distinctions of form. They contend that the contract must be evaluated based upon its practical and substantive effect.
The attack on the contract in the case at bar is atypical because the parties to the contract, Harvey County and AGH, are in agreement concerning the construction of the contract. Taxpayers, as third parties, are asserting the contrary interpretation.
Taxpayers emphasize that the documents requested in the subpoenas duces tecum were to be handed over to AGH for a review. Taxpayers argue that such a review is improper due to the nature of the contract. Taxpayers further reason that the subpoenas can also be viewed as unlawful and void because the county did not comply with K.S.A. 79-1461. (Taxpayers suggest that 79-1461 does not authorize the county appraiser to permit AGH to review the subpoenaed documents.)
Taxpayers assert that the appraiser was trying to improperly use her qualified subpoena power to obtain information for AGH. K.S.A. 79-1461 provides in part:
“The appraiser may request the county or district attorney or county counselor to subpoena and examine under oath any person or persons, records or documents that it is reasonable to believe would be useful in identifying and determining the value of the property located within the county.”
Taxpayers argue that the plain language of the statute provides only for the county attorney, the district attorney, or the county counselor to examine taxpayers and their records. Taxpayers assert that no statutory language would allow either AGH or any other third party to review such documents. Consequently, taxpayers believe that the county appraiser cannot act under the guise of K.S.A. 79-1461 and cite Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 459, 691 P.2d 1303 (1984). Taxpayers state that applying Kansas Krude to the case at bar, Lovelady may not exercise her powers derived from the legislature to modify the legislative act which is being administered. 236 Kan. at 459.
Kansas Krude is misapplied by taxpayers. In Kansas Krude, the Board of Tax Appeals (BOTA) granted a crude oil excise tax exemption which was not granted by the legislature. We held that BOTA had no authority to do so. 236 Kan. at 459.
Under K.S.A, 79-1461, the county appraiser has the authority to request the issuance of subpoenas of records or documents needed to facilitate an investigation into property tax valuations.
Attached to the April 1992 subpoenas was a letter from the appraiser dated February 7, 1992, addressed to taxpayers. The letter referenced the compliance review being conducted by the appraiser’s office. A request for specific records was contained in the letter. Reference was also made to AGH as assisting in the review. Taxpayers were instructed to send the requested records to AGH’s Wichita office. Taxpayers chose not to comply with the appraiser’s February 7, 1992, request. The subpoenas are not void. The subpoenas commanded delivery at the appraiser’s office. The records requested were identified by attaching the February 7, 1992, letter which specifically listed the desired items.
AGH may properly assist the county; consequently, AGH may have access under the document supervision of one of the officials named in K.S.A. 79-1461 to the subpoenaed documents. The April 1992 subpoenas commanded appearance and delivery to the Harvey County appraiser’s office, not at the offices of AGH. Any records or documents subpoenaed under K.S.A. 79-1461 must remain under the physicial custody and control of one or more of the county officials listed in K.S.A. 79-1461.
Summary judgment for the taxpayers is reversed. The subpoenas are not defective. They command document delivery to the Harvey County Appraiser’s Office.
Abbott, J., not participating.
Terry L. Bullock, district judge, assigned. | [
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The opinion of the court was delivered by
Holmes, C.J.:
This is an appeal by the plaintiff, C.J.W., a minor, from an order of the district court granting the defendant, State of Kansas, summary judgment. The Court of Appeals affirmed the judgment of the district court in an unpublished opinion filed September 18, 1992. We granted plaintiff’s petition for review and now reverse the Court of Appeals and the district court.
In the district court, the plaintiff sued the State of Kansas and a named individual. As both the plaintiff and the individual defendant were minors subject to juvenile proceedings when the events herein took place, Supreme Court Rule 7.043 (1992 Kan. Ct. R. Annot. 36) applies to our opinion. Therefore, the minor plaintiff will be referred to as C.J.W. or plaintiff and the individual defendant will be referred to as Randy. In quotes from earlier proceedings in this case we have substituted these designations for the actual names used without further indication that we have done so. Randy is not a party to this appeal.
On two separate occasions during the last week of June, 1983, plaintiff, a 12-year-old boy, was allegedly assaulted and sexually molested by Randy while both were being detained at Johnson County Juvenile Hall. Plaintiff’s amended complaint alleged in part:
“5. Thereafter, on or about June 23 and June 30, 1983, the minor Plaintiff, C.J.W., was brutally assaulted, raped and sexually molested by Defendant, Randy, a youth who was being detained on the same premises as Plaintiff, proximately causing Plaintiff to sustain personal injury, mental anguish, emotional distress, psychiatric disorder, embarrassment, humiliation, and social withdrawal which has and will affect the minor Plaintiff for the rest of his life.” (Emphasis added.)
Randy had been committed to the custody of the State of Kansas Department of Social and Rehabilitation Services (SRS) in 1976 by the Woodson County Juvenile Court. Sharon Minor, the SRS social worker in charge of Randy’s case, initially claimed during discovery that she did not find out he was placed at Juvenile Hall until after the alleged attacks on plaintiff; however, on further examination she conceded she may have been in error in making such a claim and admitted she knew, on June 24, 1983, that Randy was at Juvenile Hall.
The files of SRS produced during discovery revealed that various officials of the State, as well as Sharon Minor, had knowledge of Randy’s violent and aggressive behavior long before the alleged attacks on plaintiff in June of 1983. On January 6, 1976, protective services were requested for Randy because he was an “aggressive child.” During his evaluation at the Southeast Kansas Mental Health Center in January of 1976, Randy was “belligerent, hostile, angry,” and “attempted to destroy the office.” Randy was placed in SRS custody on July 16, 1976. His teachers advised SRS that he was “disruptive” and violent with other students. Reports filed with the Woodson County Juvenile Court indicate that Randy was a bully and a fighter at school. In his first placement at the Gillis Home, his unit supervisor reported that Randy acted out in the form of “bullying, fighting and being generally disruptive in the cottage.” The unit supervisor also reported in a progress summary that Randy was “very aggressive” and “sometimes very rough on the younger children.” A Gillis Home caseworker noted in his report that Randy “continues to bully and hit weaker boys,” “is frequently fighting with other boys,” “picks on smaller boys such as on May 10, 1978, when he kicked an East Cottage boy in the side and knocked him on the ground,” “is always ready to fight, his answer to any conflict is either fighting or a one-on-one conference with a staff member,” and “to show his anger Randy will be abusive, both physically and verbally.” SRS staffing notes from December 8, 1981, indicate that Randy had a violent temper and was “too much” for his aunt and uncle to handle. A psychiatric evaluation from St. Francis Boys’ Home stated that Randy admitted to getting into several fights while at St. John’s Military School. Topeka State Hospital reported that Randy threatened to punch staff members, and that he “has been in several altercations with other male peers.” While at the Residential Home for Boys in Wichita, Randy was involved in fights on April 18 and 22, 1983, and was nearly involved in an altercation on April 20, 1983. The foregoing statement of facts is taken primarily from plaintiff’s alleged uncontroverted statement of facts number 27 and filed in opposition to the defendant’s motion for summary judgment. Those alleged facts were then controverted by the defendant.
Around June 9, 1983, Randy ran away from the Wichita Residential Home and made his way to his stepfather in Florida. Shortly thereafter Sharon Minor located Randy in Florida and made arrangements for his return to the Kansas City area. Randy returned about June 21, 1983, and was placed in Temporary Lodging for Children III in Johnson County. Randy immediately got into trouble after he struck another resident in the head with a pool ball, prompting his transfer to Juvenile Hall on June 23, 1983. His first attack on the 12-year-old plaintiff apparently took place that same day. At the time of the alleged attacks Randy was 17 years old.
Plaintiff also contends that SRS had knowledge of Randy’s sexually deviant tendencies. His aunt had reported that Randy acted out sexually toward her three-year-old daughter. SRS staff notes indicated that Randy’s aunt and uncle refused to keep him because he tried to molest their daughter. A child care worker report stated that Randy acted out sexually on occasions and was believed to be knowledgeable on the subject of sex. A report from Shawnee County Youth Shelter in March 1981 indicated he was considered a rapist by that facility.
Upon learning of Randy’s detention in Juvenile Hall, Sharon Minor talked with officials there on June 24, 1983, but did not provide Juvenile Hall with any records or other information regarding Randy’s history or any instructions regarding special measures that should be taken to supervise Randy or protect the other detainees from him.
Following discovery, the State filed a motion for summary judgment and in support thereof set forth numerous facts which it contended were uncontroverted. The plaintiff took issue with several of the stated facts which primarily related to whether the State had a duty to provide information to the authorities at Juvenile Hall and to whether SRS knew that Randy was being held at Juvenile Hall. In addition, plaintiff submitted additional facts which he contended were uncontroverted and which related primarily to the knowledge of the State concerning Randy’s violent and aggressive behavior and its knowledge of his sexually deviant behavior. These alleged facts of the plaintiff were then controverted by the State in its response which stated: “These facts are in issue.”
After argument on the State’s motion, the court granted summary judgment to the State. The journal entry reads in pertinent part:
“1. That the Court has made a conscious effort to not give any weight to the in camera inspection the Court made of the numerous documents produced by the State. The Court has carefully reviewed the documents appended to the respective pleadings that concern the Motion before the Court. However, it is not a proper function for the Court to weigh the merits of probable likelihood of what is or is not reasonable or what was or was not an aspect of causation.
“2. That in accordance with Kansas Supreme Court Rule 141, the following facts were not controverted by Plaintiff, and therefore, the State’s Statement of Uncontroverted Facts numbers 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21 and 26 are deemed admitted. The Court notes that Plaintiff has controverted the State’s Statement of Uncontroverted Facts numbers 10, 19, 22, 23 and 24, and further notes that the Plaintiff has set forth additional uncontroverted facts. However, the Court makes no finding as to the facts which Plaintiff controverts or Plaintiff’s additional uncontroverted facts.
“3. That the focus of the Court’s concern is the Kansas Tort Claims Act, K.S.A. 75-6101 et seq. (“Act") and as it applies to this case, it does not create a legal duty on the part of the State and does present a discretionary function.
“4. That the Court held that within the last number of years we have gone away from sovereign immunity and have reached a Tort Claims Act which presents a balancing of interest. A number of decisions have construed the Act but we have not as yet gone to the proposition of making the State virtually an insurer of the general public.
“5. The Court found and held that the Act as it applies to the uncontested facts in this case, does not create a legal duty on the part of the State and does present a discretionary function and that the State was within its proper discretion in all of its actions, and the Court need not determine whether it was reasonable or whether there was a causation factor.
“6. That based on the foregoing ruling that the Court does not need to consider Defendant’s Motion to Dismiss or any other pending motions and makes no ruling considering same.
“It Is Therefore Ordered, Adjudged And Decreed that the State had no duty to Plaintiff. As such, the State of Kansas’ Motion for Summary Judgment is sustained.
“It Is So Ordered.”
As set forth in the journal entry, the trial court concluded that the uncontroverted facts of the case did not give rise to a legal duty on the part of the State. The court specifically made no finding as to the facts which plaintiff controverted or plaintiff’s additional statements of fact and concluded that the State acted within its discretion and was immune from liability under the discretionary function exception to the Kansas Tort Claims Act, K.S.A. 1992 Supp. 75-6104(e). The Court of Appeals affirmed, and we granted review.
The issues in this appeal are (1) whether the trial court erred in determining that the State had no legal duty to control Randy or to warn others of his violent and sexually deviant tendencies, (2) whether the trial court erred in concluding that the discretionary function exception to the Tort Claims Act, K.S.A. 1992 Supp. 75-6104(e), entitled the State to immunity from liability, and (3) whether there were controverted material facts which precluded the granting of summary judgment.
We will first address the issue of whether the State owed plaintiff a duty to warn of Randy’s violent and sexual propensities and to protect him from Randy. In Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983), this court stated:
“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 inj'ured 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. [Citations omitted.] Whether the duty has been breached is a question of fact. “ (Emphasis added.)
As a general rule, 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. A special relationship may exist between parent and child, master and servant, the possessor of land and licensees, persons in charge of one with dangerous propensities, and persons with custody of another. Washington v. State, 17 Kan. App. 2d 518, 521, 839 P.2d 555 (1992); Restatement (Second) of Torts §§ 315-20 (1964).
Plaintiff relies upon the Restatement (Second) of Torts to argue that, because the State took charge of Randy in 1976 and knew of his dangerous tendencies, the State had a special relationship with both plaintiff and Randy which created a duty on behalf of the State to control Randy and to protect plaintiff.
There are several sections of the Restatement (Second) of Torts which appear applicable to the case before us. Restatement (Second) of Torts § 314A (1964) sets forth certain special relations which may give rise to a duty on the part of one person to protect another. It provides, in part, that one who is required by law to take custody of another under circumstances which deprive that person of the normal opportunities for protection is under a duty to protect the person taken into custody against unreasonable risk of physical harm from others.
In §§ 315—320 of the Restatement (Second) of Torts the duty to control the conduct of third persons is set forth and discussed. Several sections are relevant.
Ҥ 315. General Principle
“There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.”
"§ 319. Duty of Those in Charge of Person Having Dangerous Propensities “One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.”
Ҥ 320. Duty of Person Having Custody of Another to Control Conduct of Third Persons
“One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal power of self-protection or to subject him to association with persons likely to harm him, is under a duty to exercise reasonable care so to control the conduct of third persons as to prevent them from intentionally harming the other or so conducting themselves as to create an unreasonable risk of harm to him, if the actor
(a) knows or has reason to know that he has the ability to control the conduct of the third persons, and
(b) knows or should know of the necessity and opportunity for exercising such control.”
Plaintiff also relies upon Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984), where the rule set forth in Restatement (Second) of Torts § 319 was adopted as the law of this state governing the duty owed to area residents and area law enforcement personnel by those in charge of persons with dangerous propensities in the State penitentiary. In Cansler, prison officials failed to inform area law enforcement personnel when seven armed inmates, all of whom were serving life terms for murder, escaped from the Kansas State Penitentiary. Cansler, a law enforcement officer in Bonner Springs, unaware of the prison escape, observed a traffic violation and pursued an automobile in which three of the escapees were fleeing. Cansler came upon the car, wrecked and in a ditch, and saw the occupants fleeing to a nearby house. Surmising the car might be stolen, he radioed for backup, then approached the house, where the suspects had apparently taken shelter. As he approached the house, one of the inmates shot Cansler three times with a high-powered rifle taken from the prison guard tower. As a result of his injuries, Cansler sued the State of Kansas and the Kansas State Penitentiary.
The trial court refused to dismiss Cansler s claim against the State, and the State filed an interlocutory appeal. Among other things, this court was asked to determine whether the State owed a duty to the plaintiff, and, if so, whether the acts or omissions of the State fell within the discretionary function exception contained in what is now K.S.A. 1992 Supp. 75-6104[e].
The Supreme Court cited to Restatement (Second) of Torts §§ 315 and 319 and found that the State did have a duty:
“It is the rule in this state that one who takes charge of a third person, whom he knows or should know to be likely to cause bodily harm to others if not controlled, is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.” 234 Kan. 554, Syl. ¶ 1.
Applying this rule to the facts presented, the court concluded the State not. only had the duty to securely confine the seven inmates but also had a duty to take reasonable steps to notify residents in the area and other law enforcement officers of the escape.
The State attempts to distinguish Cansler from the case now before us on the facts of the two cases. The State claims it did not have a duty here because SIRS custody of Randy was interrupted by his detention at Juvenile Hall. Sharon Minor, however, testified that she was still the social worker in charge of Randy’s case when he was initially placed at Juvenile Hall. Minor also testified that when Randy was taken into custody at Juvenile Hall, he was still under SRS supervision, and once he was adjudicated to be a juvenile offender, the SRS division in the county where the offense was committed would take charge of his case. In short, SRS continued to be responsible for Randy upon his arrival at Juvenile Hall and would remain responsible even following his adjudication as a juvenile offender.
The recent case of Washington v. State, 17 Kan. App. 2d 518, is even more directly on point than Cansler. Washington was an inmate at Lansing Correctional Facility and sustained serious physical injuries when stabbed by another inmate, Timothy Vaughn. Following a fight between Washington and Vaughn, both were placed in the Adjustment and Treatment Unit (A & T). While in A & T, Vaughn made several threats against Washington which were allegedly heard by and reported to officers at A & T. Later, both parties were released from A & T, returned to the general prison population, and placed in the same cellhouse. On the same day of his release from A & T, Vaughn made good on his threats and stabbed Washington in the left eye with an ice pick. Washington filed, suit against the State, alleging that the State breached a duty it owed to Washington to warn and protect him from Vaughn. Washington appealed the grant of summary judgment in favor of the State. The Court of Appeals set forth the issues:
“The State filed a motion for summary judgment, arguing: (1) The prison' officials did not breach any duty owed to Washington; (2) Washington’s injuries were not proximately caused by the prison officials’ acts or omissions; (3) the- police function exception (K.S.A. 1991 Supp. 75-6104[n]) of the Kansas Tort Claims Act precluded Washington’s recovery; and (4) the discretionary function exception (K.S.A. 1991 Supp. 75-6104[e]) of the Act also precluded Washington’s recovery. The district court concluded the State did owe a duty to Washington to protect him from Vaughn, but held the State was not liable to Washington by virtue of the discretionary function exception.” 17 Kan. App. 2d at 520.
In discussing whether the State owed a duty to Washington, the Court of Appeals stated:
“What duty did the State owe Washington? Did the State have a duty under Restatement (Second) of Torts §§ 315-320 (1977) to exercise reasonable care to control Vaughn and prevent him from harming Washington because of its special relationship with Washington or merely a duty to treat Washington humanely as required by K.S.A. 75-5210(a)? The question presented is one of first impression in this state.
“As a general rule, in the absence of a ‘special relationship’ there is no duty on an actor to control the conduct of a third person to prevent harm to others. McGee v. Chalfant, 248 Kan. 434, 438, 806 P.2d 980 (1991); Restatement (Second) of Torts § 315 (1977). A special relationship may exist between parent and child, master and servant, the possessor of land and licensees, persons in charge of one with dangerous propensities, and persons with custody of another. Restatement (Second) of Torts §§ 316-320.
“Washington relies upon Restatement (Second) of Torts to argue the State had a special relationship with both Washington and Vaughn which created a duty on behalf of the State to control Vaughn and protect Washington.” 17 Kan. App. 2d at 521.
The court then set forth the provisions of Restatement (Second) of Torts §§ 315, 319, and 320, which will not be repeated here. Thé court discussed Cansler, pointing out that the Supreme Court had adopted § 319 in that case, and stated:
“In resolving the question of what duty is owed Washington, we conclude the duty defined in Restatement (Second) of Torts § 320, quoted above, most closely reflects the relationship of the parties and should be applied to the penitentiary setting to define the duty owed by the State to control a prisoner and prevent harm to another prisoner. In the absence of a statute, nearly all courts that have considered the matter have concluded that prison officials owe a duty of ordinary or reasonable care to safeguard a prisoner in their custody or control from attack by other prisoners. This duty to provide reasonable care to protect an inmate from violence is not violated in the absence of a determination that the danger was known or, in the exercise of ordinary care, should have been known by a prison official. [Citations omitted.] By application of the duty defined in Restatement (Second) of Torts § 320, the State does not become the insurer of the safety of a prisoner. The State only becomes liable in the event that damage proximately results from a failure to exercise reasonable care to prevent harm. Again, this duty to provide reasonable care to protect an inmate from violence is not violated in the absence of a determination that the danger was known or, in the exercise of ordinary care, should have been known by a prison official.
“Whether a duty has been breached is a question of fact. Durflinger, 234 Kan. at 488. Application of the duty set forth in Restatement (Second) of Torts § 320 and the aforementioned cases suggests that, because Washington was in the custody of prison officials when threatened by Vaughn and officials allegedly knew of that threat and had knowledge of Washington’s fight with Vaughn, those officials had a duty to exercise reasonable care to control Vaughn and prevent him from harming Washington. Whether the State breached its duty to Washington is a question of fact which should be submitted to a trier of fact.” 17 Kan. App. 2d at 523-24.
The foregoing language from Washington is equally applicable to the factual situation now before us.
The justification for the application of §§ 319 and 320 to the facts of this case is much more obvious than in either Cansler or Washington. Here a 12-year-old child was taken into custody by juvenile officials and placed at the mercy of a 17-year-old bully who had a long history of violent and sexually deviant acts toward others, all of which was known to juvenile officials of the State and SRS. Children who are taken into custody should be protected from others in custody and the duty to children such as the plaintiff is more compelling than that due either of the plaintiffs in Cansler and Washington. We have no hesitancy in concluding that §§ 315, 319, and 320 of the Restatement (Second) of Torts apply to this case and that the State not only had a duty to warn the officials of Juvenile Hall of Randy’s propensities to commit violence but also to take reasonable steps to protect plaintiff from Randy. Whether the State breached its duty to plaintiff remains to be determined in subsequent proceedings.
The next issue before this court is whether the State is exempt from liability by virtue of the discretionary function exception to the Tort Claims Act, K.S.A. 1992 Supp. 75-6104(e). The statute provides:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
“(e) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a gov emmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved.”
The Kansas Tort Claims Act makes liability the rule and immunity the exception, and the burden is on the State to establish its entitlement to any of the exceptions set forth in K.S.A. 1992 Supp. 75-6104. Hopkins v. State, 237 Kan. 601, 609, 702 P.3d 311 (1985). If the State cannot meet this burden, then the general rule of liability set forth in K.S.A. 75-6103 governs. Allen v. Kansas Dept. of S.R.S., 240 Kan. 620, 622, 731 P.2d 314 (1987); Jackson v. City of Kansas City, 235 Kan. 278, 286, 680 P.2d 877 (1984).
The State argues that the decision to inform Juvenile Hall of Randy’s history was within Sharon Minor’s discretion. To support this proposition, the State relies upon excerpts of testimony from Minor’s deposition where she states that the Kansas Manual for Youth Services requires SRS to provide a case history on a child under SRS supervision to a facility which undertakes physical custody of the child only upon the facility’s request for information. Minor also testified in her deposition that SRS caseworkers were permitted to share information on a child’s history with a facility housing the child at the discretion of the caseworker’s supervisor. The State asserts that, according to Minor’s testimony, the manual allowed her discretion in providing information concerning Randy to Juvenile Hall, and, in exercising her discretion, she chose not to provide any information. The State maintains that as Minor’s actions were a discretionary function, the State shall not be liable for damages pursuant to K.S.A. 1992 Supp. 75-6104(e).
The trial court determined that the facts of the case did not give rise to a legal duty and that the State was immune from liability under the discretionary function exception. The Court of Appeals agreed with the trial court. However, it is the position of the plaintiff that because the State’s duty to control Randy and to warn others about his dangerous propensities and to protect persons in plaintiff’s position is imposed by law and is ministerial, not discretionary, the State is not entitled to the protection afforded by the discretionary function exception.
Plaintiff relies upon Cansler, and observes that in Cansler the Supreme Court summarily rejected the State’s claim it was en titled to the protection of the discretionary function exception. In Cansler we stated:
“An extended discussion is not warranted here, however, since plaintiff’s claim is not based upon abuse of discretion, but upon breach of nondiscretionary duty.
“, . . The duty to confine and the duty to warn are imposed by law and are ministerial, not discretionary. . . . [Plaintiff’s] claim is not based upon how the State decided to confine or warn, but upon the State’s alleged complete failure to do so. Whether the State exercised reasonable care is an issue of fact.
“The discretionary function exemption provides no barrier to plaintiff’s claims against either defendant, both of whose acts or omissions were not discretionary, under the alleged facts now before us. The alleged acts or omissions complained of were ministerial, not discretionary.” 234 Kan. at 570.
This court discussed the discretionary function exception to the Kansas Tort Claims Act in Dougan v. Rossville Drainage Dist., 243 Kan. 315, 757 P.2d 272 (1988). In Dougan, a landowner and his farm tenants brought an action against the drainage district to recover for damage to croplands and loss of crops due to flooding because of diversion of surface water. The drainage district, as a governmental entity, claimed that although the Tort Claims Act applied, the drainage district was protected by the discretionary function exception. After reviewing several earlier decisions involving the discretionary function provision, this court held:
“Simply stated, our more recent cases hold that the discretionary function exception is not applicable in those situations where a legal duty exists, either by case law or by statute, which the governmental agency is required to follow. The governmental agency cannot properly claim that its challenged action falls within the discretionary function exception where the action taken violated a legal duty.” 234 Kan. at 322.
The Dougan court recognized that the discretionary function exception is available only when no mandatory duty or guidelines exist. The court concluded:
“Based upon the rationale set forth above, we have concluded that the trial court properly held in this case that the discretionary function exception' provided for in K.S.A. 75-6104(d) does not apply to relieve the Rossville Drainage District from liability in this case. This is so because, under the Kansas Tort Claims Act, a governmental agency does not have a discre tionary right to violate a legal duty and avoid liability. To so hold would completely nullify the purpose of the Kansas Tort Claims Act.” (Emphasis added.) 234 Kan. at 325.
In Washington v. State, 17 Kan. App. 2d 518, 521, 839 P.2d 555 (1992), the Court of Appeals discussed briefly the discretionary function exception in a law enforcement or custodial situation. In considering the statutory exception, the court stated:
“This court’s review of the district court’s conclusions of law is unlimited. Gillespie, 250 Kan. at 129. The burden is on the governmental entity to establish immunity under one of the exceptions in K.S.A. 75-6104.’ Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 364, 819 P.2d 587 (1991). The most recent Kansas cases dealing with the discretionary function exception hold that it is not applicable in situations where a legal duty exists, either by case law or by statute, which the governmental agency is required to follow. 249 Kan. at 366. Dougan v. Rossville Drainage Dist., 243 Kan. 315, 322, 757 P.2d 272 (1988).
“In its journal entry granting summary judgment, the district court concluded that Kansas statutes provide no standards or guidelines for handling prisoners. The court concluded, in the absence of such standards or guidelines, the State was exempt from liability under the discretionary function exception. Assuming the prison authorities in charge of Vaughn knew or should have known of his intention to harm Washington, they had a duty to exercise reasonable care to control Vaughn to prevent the occurrence of such harm. If the factfinder concludes upon remand that the State’s legal duty under Restatement (Second) of Torts § 320 was breached, the State cannot claim immunity from liability under the provisions of 75-6104(e) by asserting the absence of standards or guidelines applicable to the handling of prisoners.” 17 Kan. App. 2d at 524-25.
Because the State’s duty to control Randy, to warn others about his dangerous propensities, and to protect persons in the position of the plaintiff is imposed by law and is ministerial, not discretionary, the State is not entitled to the protection afforded by the discretionary function exception. SRS cannot rely upon its manual to avoid liability for its acts regarding a duty imposed by law.
The final issue is whether the trial court committed error in granting summary judgment to the State when there were genuine issues of disputed material facts concerning the State’s actual and constructive knowledge of Randy’s violent and sexually deviant behavior.
Summary judgment is governed by K.S.A. 1992 Supp. 60-256(c), which provides in pertinent part:
“The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
The standard of review of a decision granting summary judgment is stated in Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306-07, 756 P.2d 416 (1988):
“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. [Citation omitted.] 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.”
Certain well-recognized principles have been developed to guide the courts in considering a motion for summary judgment. This court in applying 60-256(c) has recognized that summary judgment is an extreme remedy, which should only be granted where the truth is not left in doubt. Morris v. Atchison, T. & S. F. Rly. Co., 198 Kan. 147, 149, 422 P.2d 920 (1967). Summary judgment is only appropriate where the record conclusively shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Patterson v. Brouhard, 246 Kan. 700, 702, 792 P.2d 983 (1990). It is not proper for the court to choose between conflicting possible inferences or to enter summary judgment where the facts presented are subject to conflicting interpretations or where reasonable persons might differ as to their significance. It is only when “reasonable persons could reach but one conclusion from the same evidence that an issue may be decided as one of law.” Williams v. Community Drive-In Theater, Inc., 214 Kan. 359, 364, 520 P.2d 1296 (1974).
In considering this appeal, the facts as earlier set forth are stated in the light most favorable to the plaintiff and are assumed to be true. The trial court and the Court of Appeals apparently found that even though there were controverted factual issues, the facts were not necessary to a determination that the State had no liability under the Kansas Tort Claims Act.
On appeal, plaintiff asserts that the State failed to conclusively demonstrate that no genuine issue of material fact remained or that it was entitled to judgment as a matter of law. Plaintiff points out that several facts “which lie at the heart of this matter” are at issue, and notes that in the State’s reply to plaintiff’s memorandum and suggestions in opposition to the State’s motion for summary judgment, the State alleged: “The State controverts Plaintiff’s Additional Statement of Uncontroverted Facts 27 and 28 and the various subparagraphs thereunder. These facts are in issue. The State denies that it had extensive knowledge of Randy’s violent and aggressive behavior.” (Emphasis added.)
Plaintiff contends that the facts which the State concedes were at issue are not only material, but are the very facts which give rise to the State’s duty in this case.
The State, on the other hand, argues that while there are controverted facts they are not material to a resolution of this matter in that the State owed no duty to the plaintiff. It is the position of the State that the court may determine whether a duty exists as a matter of law without reference to a consideration of the controverted facts. The State concedes that if it had a duty to the plaintiff, then the controverted facts might be pertinent as to whether the State negligently discharged its duty.
The trial court in its ruling acknowledged there were controverted facts but stated “the Court makes no finding as to the facts which Plaintiff controverts or Plaintiff’s additional uncontroverted facts.” After having so stated, the court apparently found that there was no legal duty on the part of the State under the discretionary function exception to the Tort Claims Act, K.S.A. 1992 Supp. 75-6104(e). The journal entry on the court’s rulings then states:
“5. The Court found and held that the Act as it applies to the uncontested facts in this case, does not create a legal duty on the part of the State and does present a discretionary function and that the State was within its proper discretion in all of its actions, and the Court need not determine whether it was reasonable or whether there was a causation factor.” (Emphasis added.)
Thus, it appears that the court relied upon facts which were uncontroverted and chose to ignore the controverted facts.
On appeal the Kansas Court of Appeals adopted similar reasoning. It held:
“Because K.S.A. 1991 Supp. 75-6104(e) provides the State with immunity from liability, the factual question of whether State employees had knowledge of Randy’s inappropriate behavior does not affect the judgment in this case and is immaterial. A finding of immateriality in turn supports the trial court’s decision to grant summary judgment.”
However, the Court of Appeals in reciting the facts stated, “Minor did not learn of Randy’s placement in Juvenile Hall before the alleged assaults on plaintiff occurred.” (Emphasis added.) The court then goes on to state:
“By the time Minor learned, of Randy’s detention, the assaults on plaintiff had already taken place. Given the facts in this case, it would be inappropriate to find that Cansler [v. State, 234 Kan. 554, 675 P.2d 57 (1984)], imposed a duty on Sharon Minor to warn Juvenile Hall about Randy’s behavioral problems.” (Emphasis added.)
The record is clear that Sharon Minor and SRS had actual knowledge of Randy’s placement in Juvenile Hall several days before the second assault on plaintiff and may have had knowledge prior to the first assault. Not only did the Court of Appeals rely upon controverted facts in reaching its decision, it relied upon erroneous statements of facts not supported by the record.'
In this case, both the trial court and the Court of Appeals appear to have gotten the cart before the horse, so to speak. As in all negligence cases, the existence of a duty, although a question of law, by necessity turns upon the facts of the case. Whether the State had a duty to control Randy or to warn and protect those endangered by him depends on the State’s actual and constructive knowledge of the danger he posed. The State conceded both in the trial court and before the Court of Appeals that facts concerning the State’s knowledge of Randy’s dangerous propensities were at issue. The district court failed to consider these issues of fact, and held that the facts were not material based on its finding that the State had no duty. The Court of Appeals affirmed the trial court’s grant of summary judgment despite disputed issues of fact, finding that the facts were immaterial based on its finding that the State owed no duty to the plaintiff. Having determined that the State had a duty and that the discretionary function exception to the Tort Claims Act does not apply, we conclude that at the very least there are controverted material facts which remain unresolved and make summary judgment inappropriate.
The judgments of the Court of Appeals and the district court are reversed, and the case is remanded for further proceedings.
DAVIS, J., not participating.
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The opinion of the court was delivered by
Holmes, C.J.:
United Steelworkers of America, Local No. 4706, (United Steelworkers or the Union) appeals from an order of the district court dismissing its petition for judicial review of a decision of the Kansas Commission on Civil Rights (KCCR) (now the Kansas Human Resources Commission). The district court held it lacked jurisdiction because the petition filed pursuant to K.S.A. 77-613 was untimely. The Court of Appeals affirmed the dismissal by the district court in United Steelworkers of America v. Kansas Comm’n on Civil Rights, 17 Kan. App. 2d 863, 845 P.2d 89 (1993). We granted the Union’s petition for review.
The underlying complaint leading to this appeal was filed by Ruth A. Morales against United Steelworkers, alleging discriminatory action by the Union. The relevant facts are not in dispute and are set forth in the opinion of the Court of Appeals.
“The underlying complaint of discrimination was filed with the Kansas Commission on Civil Rights (KCCR) under the Kansas Act Against Discrimination, K.S.A. 44-1001. et seq., by Ruth A. Morales.
“On March 6, 1990, the KCCR held an evidentiary hearing. On June 15, 1990, hearing examiner Thomas L. Green issued his findings of fact and conclusions of law and entered judgment for the Union.
“On July 6, 1990, the KCCR filed its own findings and conclusions of law, entering judgment for Morales.
“On July 13, 1990, the Union mailed a petition for rehearing. On July 16, 1990, the petition for rehearing was filed at the KCCR.. On July 20, 1990, the KCCR denied the Union’s petition for rehearing.
“On August 17, 1990, the Union filed its petition for judicial review with the district court. On February 28, 1992, the district court ordered dismissal of the Union’s appeal for lack of jurisdiction by reason of its failure to file for judicial review within the statutory period provided for in K.S.A. 77-613(b).” 17 Kan. App. 2d at 863-64.
On March 10, 1992, United Steelworkers filed a motion to alter or amend judgment and argued that the district court erred in interpreting K.S.A. 77-613(b). Specifically, United Steelworkers argued that the 30-day appeal period should have commenced to run on July 21, 1990, the first day after the KCCR issued its order denying the petition for rehearing. United Steelworkers also argued that even under the district court’s interpretation of K.S.A. 77-613(b), United Steelworkers should have been allowed an additional three-day statutory grace period for mailing once the KCCR denied the petition for rehearing. See K.S.A. 77-613(d).
On May 5, 1992, the district court issued a second memorandum opinion and order in response to United Steelworkers’ motion to alter or amend judgment. In that order, the district court reaffirmed its original holding that the 30-day appeal period set forth in K.S.A. 77-613(b) commences when a final order is issued and is tolled only after a petition for reconsideration is filed. The court next considered United Steelworkers’ second contention that it was entitled to two three-day statutory grace periods. The district court held:
“It is true that this court did not specify in its February 28, 1992, Order that petitioner was entitled to an additional three-day grace period after KCCR denied the Petition for Rehearing. However, this Court allowed for a three-day grace period in its Order when it calculated the thirty-day appeal period tolling from the date the Petition was mailed by Petitioner.”
The Court of Appeals adopted the reasoning and holding of the district court’s May 5, 1992, order. The Court of Appeals held:
“In this case, there was a motion for rehearing filed and it was denied. The motion for rehearing was an attempt to exhaust administrative remedies under K.S.A. 77-613(b). If K.S.A. 77-613(b) is construed to mean that the Union had 30 days to file a petition for judicial review after the denial of its motion for rehearing, then there is no need for the language “but the time is extended during the pendency of the petitioner’s timely attempts to exhaust administrative remedies.’ Therefore, the above statute must have contemplated that service of the order, which starts the 30-day countdown, must be something other than the rulihg on the motion for rehearing. Therefore, it is logical to interpret the above language to mean that the time is temporarily tolled during the pendency of a motion for rehearing. The 30-day countdown starts with the filing of the KCCR order, temporarily stops with the filing of a motion for rehearing, and starts again with the KCCR’s ruling on the motion for rehearing.” 17 Kan. App. 2d at 867.
The Union asserts two issues on appeal: (1) The district court erred in its interpretation of the provision of K.S.A. 77-613(b) governing the time allowed for filing a petition for judicial review of an administrative agency order, and (2) the district court erred in its interpretation of the three-day statutory grace period for service by mail contained in K.S.A. 77-613(d).
The resolution of the issues before the court involves the interaction of three comprehensive legislative enactments: the Kansas Act Against Discrimination, K.S.A. 44-1001 et seq.; the Kansas Administrative Procedure Act, K.S.A. 77-501 et seq.; and the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq.
“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.” McMillen v. U.S.D. No. 380, 253 Kan. 259, Syl ¶ 7, 855 P.2d 896 (1993).
We now turn to the specific statutes involved in this appeal. K.S.A. 1992. Supp. 44-1010 provides:
“Any party being dissatisfied with any order or decision of the commission may petition for reconsideration in accordance with the provisions of K.S.A. 77-529 and amendments thereto. No cause of action arising out of any order or decision of the commission shall accrue in any court to any party unless such party shall petition for reconsideration as herein provided. No party shall, in any court, urge or rely upon any ground not set forth in the petition for reconsideration.” (Emphasis added.)
K.S.A. 44-1011(b) provides in pertinent part:
“Any action of the commission pursuant to the Kansas act against discrimination is subject to review in accordance with the act for judicial review and civil enforcement of agency actions . . . .”
K.S.A. 1992 Supp. 77-529 provides:
“(a) Any party, within 15 days after service of a final order, may file a petition for reconsideration with the agency head, stating the specific grounds upon which relief is requested. The filing of the petition is not a prerequisite for seeking administrative or judicial review except as provided in K. S.A. 44-1010 ,and 44-1115, and amendments thereto, concerning orders of the Kansas human rights commission [formerly Kansas Commission on Civil Rights], K.S.A. 55-606 and 66-118b, and amendments thereto, concerning orders of the corporation commission and K.S.A. 74-2426 and amendments thereto concerning orders of the board of tax appeals.
“(b) The agency head shall render a written order denying the petition, granting the petition and dissolving or modifying the final order, or granting the petition and setting the matter for further proceedings. The petition may be granted, in whole or in part, only if the agency head states, in the written order, findings of fact, conclusions of law and policy reasons for the decision if it is an exercise of the state agency’s discretion, to justify the order. The petition is deemed to have been denied if the agency head does not dispose of it within 20 days after the filing of the petition.
“An order under this section shall be served on the parties in the manner prescribed by K.S.A. 77-531 and amendments thereto.” (Emphasis added.)
K.S.A. 77-612 provides in part:
“A person may file a petition for judicial review under this act [the Act for Judicial Review and Civil Enforcement of Agency Actions] only after exhausting all administrative remedies available within the agency whose action is being challenged and within any other agency authorized to exercise administrative review . . . .” (Emphasis added.)
K.S.A. 77-613 provides in pertinent part:
“Subject to other requirements of this act or of another statute:
(b) A petition for judicial review of an order is not timely unless filed within 30 days after service of the order, but the time is extended during the pendency of the petitioner’s timely attempts to exhaust administrative remedies.” (Emphasis added.)
The parties go to great lengths in propounding their respective arguments as to the applicability and interpretation of K.S.A. 77-613(b), which they deem to be controlling. Considerable time and effort is expended in attempts to explain the language “but the time is extended during the pendency of the petitioner’s timely attempts to exhaust administrative remedies.” The district court and the Court of Appeals also found this statute to be controlling. The arguments propounded and the authorities cited in support of the conflicting views of the parties clearly demonstrate that the statute is ambiguous, at best. In attempting to resolve the overlapping and confusing language of the three acts before the court, we believe the solution clearly lies within the language of the Kansas Act Against Discrimination and more particularly the specific provision of K.S.A. 44-1010 which provides: “No cause of action arising out of any order or decision of the commission shall accrue in any court to any party unless such party shall petition for reconsideration as herein provided.”
The Kansas Administrative Procedure Act and the Act for Judicial Review of Civil Enforcement of Agency Actions are general acts setting forth procedures to be followed in actions before and appeals from numerous governmental agencies. The Kansas Act Against Discrimination is a specific act establishing the KCCR and specifying its duties, powers, procedures, etc. Under the specific provisions of K.S.A. 1992 Supp. 44-1010, no cause of action for judicial review even accrues until the party has sought reconsideration before the KCCR. Not only is the filing of a petition for reconsideration a condition precedent to any cause of action by way of appeal, but K.S.A. 77-612 also states:
“A person may file a petition for judicial review under this act only after exhausting all administrative remedies available within the agency whose action is being challenged . . . .”
All of the applicable statutes refer to appeals from a “final order” or an “order” of the administrative agency. Where, as here, the statutes specifically provide there can be no appeal or judicial review of any order without filing a petition for reconsideration with the KCCR and “exhausting all administrative remedies,” we conclude that such exhaustion does not occur until the petitioner files a petition for reconsideration and the KCCR files its order on reconsideration or fails to file an order within 20 days as specified in K.S.A. 1992 Supp. 77-529(b).
To seek judicial review of the KCCR decision, United Steelworkers was required to file a petition for reconsideration before a cause of action could even accrue and also was required to exhaust its administrative remedies. We recognize the dilemma of the Court of Appeals when it states:
“If K.S.A. 77-613(b) is construed to mean the Union had 30 days to file a petition for judicial review after the denial of its motion for rehearing, then there is no need for the language “but the time is extended during the pendency of the petitioner’s timely attempts to exhaust administrative remedies.’ ” 17 Kan. App. 2d at 867.
The provisions of K.S.A. 1992 Supp. 77-529(a), K.S.A. 77-612 and 77-613(b), and K.S.A. 1992 Supp. 44-1010 are obviously conflicting and create ambiguity in applying the statutes to the present case. The cases and authorities relied upon by the parties merely emphasize the conflict and ambiguity apparent when the three legislative acts are read together.
The entire area of judicial review of agency actions is clouded not only by inconsistent appellate decisions, but also by the over lapping and confusing language of the Kansas Administrative Procedure Act and the Act for Judicial Review and Civil Enforcement of Agency Actions. For example, K.S.A. 1992 Supp. 77-529 provides that the filing of a petition for reconsideration is not a prerequisite to judicial review except in orders from the Human Rights Commission, the Corporation Commission, and the Board of Tax Appeals. However, K.S.A. 77-612 provides that a petition for judicial review from any agency action can only be filed after all administrative remedies have been exhausted. In those instances where the filing of a petition for reconsideration with the agency is not mandatory, those two statutes could very well be in conflict.
The statutory inconsistencies are further complicated when the statutes pertaining to specific agencies such as those recognized in K.S.A. 77-529 have their own requirements which must be met prior to seeking judicial review. While the specific language of K.S.A. 77-613(b) targeted by the district court and the Court of Appeals may very well apply in some situations, we are of the opinion that when statutes applicable to specific agencies and K.S.A. 77-612 conflict with K.S.A. 77-613(b), the statutes applicable to the agency in question and K.S.A. 77-612 control.
Under K.S.A. 1992 Supp. 44-1010, no cause of action accrues until a petition for reconsideration is at least filed with the administrative agency. Thereafter, K.S.A. 77-612 requires that the ensuing administrative remedies must be exhausted before judicial review may be sought.
In resolving the ambiguity and conflict herein, we conclude the specific language and direction of K.S.A. 1992 Supp. 44-1010, together with the provisions of K.S.A. 77-612, must control appeals from the KCCR to the district court. Here, the KCCR filed its original order on July 6, 1990, the Union timely filed its motion for rehearing on July 16, 1990, the KCCR filed its order denying rehearing on July 20, 1990, and the Union filed its petition for review on August 17, 1990. The K.S.A. 77-612 requirement that the Union exhaust its administrative remedies was not met until the KCCR issued its order on the petition for reconsideration. We conclude that the time for filing an appeal for judicial review did not commence until the order was filed. As the administrative remedies were not exhausted until July 20, 1990, the Union’s petition for judicial review was timely filed within the 30 days provided by K.S.A. 77-613(b).
In view of the decision reached herein, it is not necessary to consider the other arguments and authorities relied upon by the parties.
The decisions of the Court of Appeals and the district court are reversed, and the case is remanded to the district court for further proceedings.
Davis, J., not participating.
Ralph M. King, Jr., district judge, assigned. | [
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Per Curiam:
This is an original proceeding in discipline filed by the Disciplinary Administrator against John M. Talley, of Anchorage, Alaska, an attorney admitted to the practice of law in the State of Kansas.
The complaint filed against the respondent arises out of a final adjudication in Alaska that respondent was guilty of professional misconduct. The complaint is filed pursuant to Supreme Court Rule 202 (1992 Kan. Ct. R. Annot. 152).
The matter was submitted to a panel of the Kansas Board for Discipline of Attorneys on the pleadings and stipulation of the parties. All appearances before the panel were waived. The panel found, in part:
“On January 8, 1992, respondent was suspended from the practice of law in Alaska for four (4) years by the Supreme Court of the State of Alaska in a disciplinary proceeding entitled In the Disciplinary Matter Involving John M. Talley, Sup. Ct. No. S-4420. That case encompassed five (5) separate complaints which involved: failure to answer the grievances; failure to properly segregate client funds into a trust account; neglecting legal matters entrusted to him; practicing law while suspended; and theft of client funds. Following his four-year suspension, which the Alaska court made retroactive to August 10, 1989, respondent must offer proof of restitution and serve two (2) years of probation, together with other conditions, before he may be admitted to practice in Alaska.”
The panel unanimously adopted and recommended the sanctions agreed and stipulated to by the Disciplinary Administrator and respondent that respondent be indefinitely suspended pursuant to Supreme Court Rule 203 (1992 Kan. Ct. R. Annot. 153) with the condition that he may apply for readmission pursuant to Supreme Court Rule 219 (1992 Kan. Ct. R. Annot. 180) at any time subsequent to his readmission in the State of Alaska.
The court, having considered the record, report, and recommendation of the disciplinary hearing panel, accepts and concurs in the findings, conclusions, and recommendation of the panel with the exception that suspension shall commence as of the date of this opinion, and reinstatement shall be pursuant to Supreme Court Rule 219 irrespective of respondent’s readmission to the practice of law in Alaska.
It is therefore ordered that John M. Talley be and he is hereby indefinitely suspended from the practice of law in the State of Kansas commencing on the date of this opinion.
It. is further ordered that respondent shall forthwith comply with Supreme Court Rule 218 (1992 Kan. Ct. R. Annot. 176) and pay the costs of this action, and that this order be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Abbott, J.:
Plaintiffs’ action challenges the adequacy of the State’s Child in Need of Care program. The Governor of the State of Kansas is one of several named defendants. The trial court dismissed the Governor as a defendant because it believed it could not grant the relief sought by plaintiffs against the Governor. Plaintiffs appeal from the order dismissing the Governor.
After the appeal was docketed, plaintiffs entered into a settlement agreement with the remaining defendant. Thus, we are first faced with the issue of whether this appeal is now moot in that plaintiffs are requesting an advisory opinion and no real controversy exists at this time.
Some background is necessary in order to understand the dis-positive issues.
Plaintiffs brought a civil rights action on behalf of a class of children who have been placed in the Child in Need of Care (CINC) program of the Kansas Department of Social and Rehabilitation Services (SRS) or who are at risk of such placement. The trial court certified the class as children who are in the legal and/or physical custody of the Kansas Department of Social and Rehabilitation Services as well as children who the department knows or should know are at risk of coming into the department’s CINC program. Plaintiffs describe numerous instances where they contend the CINC program failed to provide adequate care for the named plaintiffs. Plaintiffs assert claims under federal statutes, the federal Constitution, state law, and the state constitution.
The case originally named Governor Hayden as a defendant. When Governor Finney took office, she was substituted for Governor Hayden pursuant to K.S.A. 60-225(d). Also named as defendants were the Secretary of the Kansas Department of Social and Rehabilitation Services, the Commissioner of Youth Services, the Director of the Kansas Childi-en in Need of Care Program, and the Kansas Department of Social and Rehabilitation Services (SRS).
SRS has overall responsibility for social services programs in the state of Kansas. Youth Services is one of seven departments under SRS. Within the Department of Youth Services is the Children in Need of Care Program.
The district court judge attempted several times to glean from plaintiffs exactly what relief they sought against each named defendant. At a hearing on April 27, 1992, plaintiffs’ counsel indicated that they were not seeking personal damages against any defendant, but rather were seeking relief against the defendants in their official capacity. Plaintiffs’ counsel also stated:
“The reason that the Governor is needed [as a party] is the Governor has the authority to appoint the Secretary and to make the Secretary comply with laws under penalty of removal. All right. The second authority that the Governor has is the Governor deals with the legislature. The Governor would have the opportunity to ask the legislature for additional funding that might be needed should plaintiffs succeed on their claims and, second, has the authority, then, to also ask the legislature for legislative changes that might be needed to bring the State into compliance if the plaintiffs succeed on their claims. . . .
“I can be quite honest that at a minimum we—plaintiffs need, for injunctive relief and for purposes of your orders, the Governor and the Secretary [of SRS] because . . . the ACLU has had experience where, one, it has just been the Secretary, and after trial, or after a Consent Decree was issued, a judge attempted to force the Secretary to do certain things to be in compliance with the Court’s Orders. The Governor would simply veto the order or strike it because the Governor wasn’t under the authority of the Court.”
At a May 4, 1992, hearing, plaintiffs’ counsel stated: “I want to make it clear that the plaintiffs are not seeking—we said this before—we are not seeking different relief against different defendants. . . . [W]e are seeking a single form of relief that would run against all three defendants.” At a July 29, 1992, hearing, plaintiffs’ counsel stated:
“Much of the confusion in this motion is caused by the Governor’s persistently characterizing our claims in what I think is an incorrect way. We do not claim a right to have the Governor submit a particular budget. We do not claim a right to have the Governor pass financial legislation. We do not claim a right to have the Governor fire the Secretary. We do claim a right to have the State of Kansas comply with clearly established Federal constitutional and statutory law and state statutory law and State Constitution. And we claim through the personal involvement of the Governor and through her supervisory involvement, that the Governor has the authority and the responsibility to ensure that that law is complied with.
“And it would be perfectly ordinary for this Court to order the government take all steps necessary to comply with what are clear legal mandates. How the Governor complies is her business. Whether she complies by ordering the Secretary to do something, or by firing the Secretary, or by- some other method, that’s up to her. That’s entirely up to her. The question is whether she has to comply with the requirements of law, whether she has to comply with the promise she made when she signed her name to these documents [copies of the state Federal IV-B plan for child welfare], whether she has to comply with clear legal mandates. So our claim is not, as they repeatedly characterize it, the claim is to fire the Secretary or whatever, the claim is, the Governor has to be held responsible for the violations of law that occurred in the state.”
The district court granted the Governor’s motion to dismiss on August 20, 1992, stating:
“The plaintiffs state that they do not seek an order from this Court requiring the Governor to veto specific legislation, budgetary or otherwise, or hire or fire the Secretary of SRS. It is a given that the Governor singularly cannot appropriate money or even create new positions. Plaintiffs argue the Governor should remain a party in case some relief is sought which cannot be afforded, if the Governor is not a party.
“The only relief sought by plaintiffs is to compel SRS compliance with the law. Any order that can be issued to the Governor in regard to plaintiffs’ claims can also be made directly to the Secretary of SRS who is statutorily responsible for administration of the programs that plaintiffs allege are deficient. Any unlawful activities of SRS can be enjoined by the Court.
“The only possible relief obtainable as to the Governor would be an order directing her to have the Secretary of SRS perform some act under penalty of dismissal. This intermediate step in fashioning a remedy is unnecessary. The Court concludes as a matter of law that the Court cannot grant the relief sought by the plaintiffs against Governor Joan Finney and for this reason the Motion to Dismiss should be and is hereby sustained.”
This order was made a final judgment on October 23, 1992. It is from this order that plaintiffs appeal.
At various stages of the proceedings of this case, all defendants except SRS were dismissed.
During the pendency of this appeal, the plaintiffs entered into a settlement agreement with the remaining defendant that disposed of all matters in controversy. On June 18, 1993, the trial court held a public heai'ing and held the agreement to be a “fair and equitable settlement of this case” and approved the agreement and dismissed the case.
Kansas appellate courts are constitutionally without authority to render advisory opinions and appellate review is dependent upon the existence of an actual case or controversy. NEA-Topeka, Inc. v. U.S.D. No. 501, 227 Kan. 529, 531, 608 P.2d 920 (1980). In U.S.D. No. 503 v. McKinney, 236 Kan. 224, 229, 689 P.2d 860 (1984), we said that an appellate court will not decide moot issues where it cannot make its judgment effective and that this rule applies to both private and public controversies and to law or fact issues. We also stated that for an injunction to issue, there must be some indication that there is a threatened injury. 236 Kan. at 236.
Plaintiffs’ principal argument is that the settlement could be frustrated if we do not make the Governor a party and the State fails to make a good faith effort to carry out the terms of the agreement.
The plaintiffs have settled all existing controversies in this case with an agency of the State of Kansas. No specific relief could be obtained from the Governor at this time. Plaintiffs make no allegation of wrongdoing against the Governor at this time and no allegation of a breach of the agreement. We could enter no meaningful order. As we view it, we would be ordering the Governor to obey the law and carry out her duties as Governor of the State of Kansas without a finding of a wrongful act and without specific directions concerning specific action to be taken. This we cannot do. An issue becomes moot when a judgment of the appellate court would be of no consequence. Six Cities v. State Corporation Commission, 213 Kan. 413, Syl. ¶ 1, 516 P.2d 596 (1973). The issues originally raised by plaintiffs against the Governor, if valid, are now moot by virtue of the agreement plaintiffs entered into and which was approved by the trial court.
Appeal dismissed as moot. | [
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The opinion of the court was delivered by
Davis, J.:
The State appeals the dismissal of criminal charges, contending that the trial court exceeded its authority in dismissing the charges. We agree and reverse and remand for further proceedings.
Highly summarized, the facts are that the defendant, Walter Williamson, allegedly threatened his wife and daughter with a knife. The defendant was arrested on probable cause by Officer Bobby Whitten of the Junction City Police Department for two counts of aggravated assault. Upon first appearance by the defendant, the court reviewed the officer’s affidavit in support of the arrest, found probable cause for the arrest and detention, and ordered a complaint to be filed. The court found the defendant to be indigent, appointed the public defender’s office to represent the defendant, and set bond in the amount of $5,000. Preliminary examination was set for August 6, 1992.
At this first appearance, the State informed the court that defendant had been hospitalized for paranoid schizophrenia within the last year and that the family believed that the incident arose because the defendant suffered a relapse. The State requested a competency examination, and the court responded by ordering an evaluation from the Pawnee Mental Health Center forthwith. Both parties agree that the report was to be a competency examination under the provisions of K.S.A. 1992 Supp. 22-3302. Within two days the court received a report from the Pawnee Mental Health Center prepared by Luther Wright, a registered psychologist, consisting of the following:
“I conducted a psychological assessment on Walter Williamson, Sr. (DOB: 10-19-92) (sic), at Geary County Detention Center on July 31, 1992. It is my professional opinion that he has a schizophrenic process, and is in need of care and treatment. Due to this, it is felt that he needs hospitalization to receive proper treatment.”
On August 3, 1992, the court called the matter on for an unscheduled hearing on defendant’s motion to dismiss. The motion to dismiss is not contained in the record. The State waived notice. At that hearing defense counsel stated that the basis of the motion was State v. Montgomery, 14 Kan. App. 2d 577, 796 P.2d 559 (1990), and similar cases. Montgomery, unlike this case, deals with two criminal statutes—one general, making a false writing, and one specific, giving a worthless check. In Montgomery, the court held that under the facts of the case, the more specific statute must be the basis for charges. Montgomery provides no basis for defendant’s motion in this case, which concerns the State’s choice between proceeding under a civil statute, commitment for care and treatment, or a criminal statute, aggravated assault. The court did not base its dismissal upon Montgomery.
At the hearing on defendant’s motion to dismiss, the court heard testimony from the defendant’s wife of 30 years. She confirmed that the defendant had, within the past year, been hospitalized for paranoid schizophrenia. She testified that for the past several months, defendant had not taken his prescribed medication, but instead had flushed his medication down the toilet. In her opinion, her husband was in need of care and treatment, not jail. Based upon this evidence and based upon the report from the Pawnee Mental Health Center, the court dismissed the criminal charges. The court stated:
“For the Court to allow proceedings of a criminal nature, the Court must have before it a probable cause to believe that this man committed a crime. From the evidence presented this day in sworn testimony, the Court finds that there is now a lack of probable cause to support the criminal charges in this case.
“It is obvious from the testimony that this man is ill—both from the wife of 30 years, her testimony of his failure to take prescribed medicines, and also from the evaluation prepared by Luther Wright, registered psychologist.
“The Court would find that this man is in need of treatment, that it is a matter civil in nature, that there is a failure of probable cause at this time and the Court should not turn a blind eye to such evidence.”
In concluding, the court advised the prosecutor:
“The Court wants to advise counsel that the actions which you have taken are not in the best interest of either the State or anyone else. And you have not taken into consideration the harm that you are doing, Mr. County Attorney, and you certainly should have considered that before filing criminal charges.”
A county attorney or district attorney is the representative of the State in criminal prosecutions. As such, he or she controls criminal prosecutions. It is the county or district attorney who has the authority to dismiss any charge or to reduce any charge. State v. Turner, 223 Kan. 707, 709, 576 P.2d 644 (1978). The prosecuting attorney has broad discretion in discharging his or her duty. The scope of this discretion extends to the power to investigate and to determine who shall be prosecuted and what crimes shall be charged. State v. Dedman, 230 Kan. 793, 798, 640 P.2d 1266 (1982); State v. Blount, 13 Kan. App. 2d 347, 351, 770 P.2d 852, rev. denied 245 Kan. 786 (1989). The prosecuting attorney has discretion to dismiss charges, and the court cannot refuse to allow a dismissal. Foley v. Ham, 102 Kan. 66, 67-72, 169 Pac. 183 (1917): Similarly, the court cannot restrain a prosecutor from prosecuting an action. State, ex rel., v. Rohleder, 208 Kan. 193, 195, 490 P.2d 374 (1971).
It is apparent from the record that upon hearing additional evidence after charges were filed, the trial court concluded that it made more sense to handle this case by way of civil commitment than by criminal charges. The court’s determination was based upon its conviction that the defendant was mentally ill and better treated as one who was suffering from paranoid schizophrenia than as a criminal defendant. The court accomplished this by finding that, based upon the new evidence, probable cause no longer existed that the defendant committed a crime. In doing so, the court exceeded its authority.
State v. Dedman involved defendant’s contention that the trial court erred in not requiring a rape victim to submit to a polygraph examination. In rejecting this contention, the court described the limitation on the trial court’s power to interfere with prosecutorial functions:
“Further, such an order would involve a serious separation of powers question. ‘Generally speaking . . . the executive power is the power to enforce the laws, and the judicial power is the power to interpret and apply the laws in actual controversies.’ Van Sickle v. Shanahan, 212 Kan. 426, Syl. ¶ 8, 511 P.2d 223 (1973). The prosecuting attorney is a member of the executive, not judicial, branch of government. Although the Kansas Constitution contains no express provision requiring the separation of powers, ‘separation is accomplished by the establishment of the three branches of government and the distribution of the various sovereign powers to each of them.’ 212 Kan. at 440. Allowing judicial oversight of what is essentially a function of the prosecutor’s office would erode that power.” 230 Kan. at 797-98.
In this case, the decision to proceed with criminal rather than civil commitment for care and treatment was a decision within the discretion of the prosecutor’s office. The court’s dismissal, no matter how enlightened, amounts to an impermissible judicial intrusion into the prosecutor’s function.
The court’s action also runs afoul of the procedures set up by the législature for determination of insanity within our criminal system of justice. In effect, the court’s dismissal of the charges amounted to a determination that the defendant could not have violated the criminal law because he was mentally ill and needed care and treatment for that illness. Thus, the court concluded that there was not probable cause to believe that the defendant committed an offense and dismissed the charges.
The determination of a defendant’s competency to stand trial is governed by the provisions of K.S.A. 1992 Supp. 22-3302. While the court arguably ordered a competency evaluation in accordance with the statute, the resulting evaluation did not address the question of defendant’s competency to stand trial. It was at this time incumbent upon the court to request a proper evaluation in accordance with K.S.A. 1992 Supp. 22-3302.
The defense of insanity within our criminal system depends upon the defendant’s filing a notice of insanity pursuant to K.S.A. 1992 Supp. 22-3219. Once noticed, the determination is governed by the M’Naghten test in accord with the law. See State v. Boan, 235 Kan. 800, 686 P.2d 160 (1984); PIK Crim. 2d 54.10 (1984 Supp.). The court in this case determined that no probable cause existed because the defendant was mentally ill. Its decision amounts to a determination that because of his illness at the time of the offense, an essential element of the offense was missing. This is not the court’s function unless the court is the trier of fact, a notice of insanity has been given, and, based upon the evidence, the court concludes that the defendant is not guilty by reason of insanity.
Finally, K.S.A. 1992 Supp. 22-3428 provides for disposition of the case in the event defendant is acquitted by reason of insanity.
The defendant argues that the court would have had authority, at the time the initial affidavit of probable cause was presented, to determine that no probable cause existed to proceed with criminal charges. He argues that the court would have the same authority to dismiss for lack of probable cause at the preliminary examination stage based upon the evidence presented in this case. In both respects the defendant’s argument lacks merit.
In this case, defendant has not yet disputed facts alleged in the officer’s probable cause affidavit. Those facts establish probable cause that a crime was committed by the defendant. Beyond that, there may be serious questions about whether defendant is competent to stand trial and, if so, whether the defendant’s mental condition is a defense to the crime charged. Our criminal code addresses both of these issues, and the code guides and controls the discretion of the court in resolving these issues. The law does not permit the court to dismiss charges under the facts of this case, nor does the law permit the court to dismiss charges because in its opinion the matter is better handled by civil commitment for care and treatment. We therefore reverse and remand for further proceedings in accordance with this opinion.
Reversed and remanded for further proceedings. | [
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The opinion of the court was delivered by
Six, J.:
The central issue in this appeal is whether, under the unique facts of this case, a plea bargain in a criminal drug case collaterally estops a drug tax proceeding commenced by the Kansas Department of Revenue (KDR). Ancillary questions relating to exhaustion of administrative remedies, jurisdiction of the district court in the instant action, and the interpretation of our summary judgment Rule 141(b) (1992 Kan. Ct. R. Annot. 124) are also considered.
KDR appeals the district court’s decision enjoining the collection of a tax assessment and fine on marijuana possessed by Richard Dickerson. The Court of Appeals affirmed the trial court’s decision in an unpublished per curiam opinion. We granted KDR’s petition for review.
The district court’s determinations of law frame the issues on appeal. Consequently, our standard of review is unlimited. Gillespie v. Seymour, 250 Kan. 123, Syl. ¶ 2, 823 P.2d 782 (1991).
We affirm the trial court and the Court of Appeals. KDR, as an agency of the State, is bound by the plea agreement bargained for by Dickerson.
Facts
The facts were set forth by the Court of Appeals as follows:
“On February 26, 1990, Dickerson entered a plea of guilty as part of a plea agreement to one count of possession of more than 28 grams of marijuana without a tux stamp and one count of possession of Cannabis, commonly known as marijuana. The district court, accepting the terms of the plea bargain, placed Dickerson on probation for two years. As a condition of his probation, Dickerson was ordered to pay $350 in taxes due pursuant to K.S.A. 1991 Supp. 79-5202 and a fine of $350 pursuant to K.S.A. 79-5208. Dickerson subsequently paid these amounts in full. Neither party appealed from the district court’s judgment.
“On July 7, 1990, the Director of Taxation for KDR issued a drug tax assessment against Dickerson in the amount of $2,565.15, as well as a penalty in the same amount. KDR mailed notice of the assessment and penalty to. Dickerson pursuant to K.S.A. 1991 Supp. 79-5205(a). The notice indicated that Dickerson could challenge the assessment within 15 days of July 7, 1990, by filing a written request for a hearing with the Director of Taxation.
“Upon receiving notice of the tax assessment and penalty, Dickerson consulted with the attorney who had represented him and arranged his plea bargain in the criminal case. The attorney instructed Dickerson to mail a copy of the final journal entry in the criminal case to KDR. Dickerson thereafter mailed a copy of the journal entry to KDR, although he never requested a formal hearing. Dickerson also telephoned KDR on two occasions and believed these actions resolved the matter.
“On July 24, 1990, the Crawford County Sheriff took possession of a 1969 Plymouth automobile owned by Dickerson. KDR intended to sell the vehicle to collect a portion of the tax assessed against Dickerson. Dickerson responded by filing a petition in district court seeking to enjoin the sale of the automobile. The petition alleged the tax assessment violated the terms of the sentence imposed upon Dickerson in the prior criminal action and requested that KDR be permanently enjoined from attempting to collect the tax assessed against Dickerson.
“In response to Dickerson’s petition, KDR filed a motion for summary judgment alleging summary judgment to be appropriate, in part because: (1) Dickerson failed to exhaust his administrative remedies by requesting a hearing with the Director of Taxation, and (2) the allegations in Dickerson’s petition lacked merit. Dickerson filed a response opposing summary judgment. The court denied the motion for summary judgment, and the matter proceeded to trial.
“At a hearing held July 24, 1991, KDR produced evidence showing that, although Dickerson paid a fine in an amount equivalent to the possession of 100 grams of marijuana, law enforcement officials recovered more than 700 grams of marijuana in a search of Dickerson’s home. Dickerson did not dispute this evidence but contended the taxes and fines established pursuant to his prior plea agreement prevented KDR from assessing any further taxes or penalties against him.
“After the close of the hearing, the district court concluded: (1) It had jurisdiction to hear the case even though Dickerson had not requested an administrative hearing; (2) Dickerson’s prior plea agreement constituted a contract which collaterally estopped KDR from collecting further taxes and fees; and (3) by failing to properly consider Dickerson’s telephone inquiries and the journal entry he provided, KDR abused its power and discretion. Based on these conclusions, the court issued a permanent injunction barring KDR from further attempts to collect the tax assessed against Dickerson. The district court also ordered the sheriff to release Dickerson’s automobile.”
KDR believes that three facts were not correctly stated in the Court of Appeals’ decision and should be found as follows: (1) Dickerson did not enter a plea of guilty to possessing 100 grams of marijuana; (2) there was no plea agreement that Dickerson could plead guilty to possessing 100 grams of marijuana; (3) the amount of marijuana possessed by Dickerson was not determined in the criminal proceeding. We do not agree.
In his memorandum opinion in the civil injunction action, the trial judge concluded:
“3. The State of Kansas entered into a plea agreement with the plaintiff in the criminal action and he was ordered to pay $350.00 in taxes pursuant to K.S.A. 79-5202 and a fine or penalty in the same amount pursuant to K.S.A. 79-5208. This fine is based on an amount equal to 100 grams of marijuana. The plaintiff paid the fine and the State accepted it. The binding agreement was judicially recognized and approved. The State is collaterally estopped from proceeding in any different action on the same matter under the ruling in State v. Parsons, 15 Kan. App. 2d 374[, 808 P.2d 444] (1991).
“4. The State of Kansas is bound by its contracts and is collaterally estopped by its actions and agreements. The State of Kansas has a duty to treat its citizens fairly and to abide by its contracts.”-
KDR is incorrect when it asserts that the amount of marijuana was not specified in the original criminal proceeding. The record from the criminal case is before us. The trial court, in the injunction action, took judicial notice of Dickerson’s criminal case file. The criminal record included testimony which explained the nature of the plea agreement that formed the basis for the journal entry. The criminal case record contains several references by the trial court to 100 grams of marijuana. Because KDR’s focus has been transfixed on its factual contention that Dickerson did not plead to a specific amount, we set out the transcript of the pertinent portion of the criminal case audiotape recorded at Dickerson’s February 26, 1990, arraignment, waiver of preliminary hearing, and entry of plea:
THE STATE: “Specifically your Honor at this time the State would move to amend Count I of the information to charge pursuant to K.S.A. 79-5201 et seq. that the defendant would be charged with possession of untaxed marijuana in the amount of 100 grams under the provisions of 79-5208 ....
By agreement the parties would stipulate that the defendant did in fact possess 100 grams at time of arrest and the penalties under 79-5208 would include assessment of a penalty of 100% in addition to the tax of $3.50 per grain. There is a 100% penalty of $3.50 per gram also. . . .
THE COURT: “A previous charge of possession of marijuana with the intent to sell would now be amended to charge that in fact you did possess 100 grams of marijuana therefore subjecting you to the Subsection (c) of 79-5201 definition of a dealer by being a person who possesses more than 28 grams of marijuana ....
“[Sjhould you plead to that particular charge in Count I there would be a tax subject to being imposed by K.S.A. [19]87 Supp. 79-5202 at the rate of $3.50 per gram. Further there would be a penalty imposed of 100% of that particular tax. If I compute that correctly the tax would be $350 and a penalty would be an additional $350.
“[I] find probable cause to believe on or about the '26th day of September, 1989 that there was violation of 79-5201(c) wherein this defendant possessed 100 grams of marijuana. I further find probable cause that this defendant did possess 100 grams of marijuana in violation of that particular statute and those following.
THE COURT: “Ok, Mr. Dickerson, you have waived preliminary hearing. You understand you are charged and appearing in Crawford County District Court on amended information that alleges that on or about the 26th day of September of 1989 that you did in fact possess a certain quantity of cannabis commonly known as marijuana and that that amount was 100 grams. As I advised you previously under 79-5208 as a penalty section there is a tax that would be imposed at the rate of $3.50 per gram. There is further a penalty of 100% of that particular tax that would cause a tax and penalty in the nature and amount of $700. Do you understand that?
DICKERSON: “Yes.
THE COURT: “With that in mind are you prepared to enter a plea today?
DICKERSON: “Yes.
THE COURT: “And what is your plea?
DICKERSON: “Guilty.
THE COURT: “Are you entering a plea in fact because you did have in your possession approximately 100 grams of marijuana back on the 26 of September of 1989?
DICKERSON: “Yes.”
Trial Court Jurisdiction
KDR asserts that the Court of Appeals erroneously concluded that the district court had subject matter jurisdiction without specifying the precise statutory basis for the jurisdictional claim. KDR labels K.S.A. 60-907 (illegal acts of public officers) as the only authority for Dickerson’s suit to enjoin KDR’s drug tax assessment. KDR reasons that we have narrowly interpreted K.S.A. 60-907, citing Whitehead v. City of Fredonia, 235 Kan. 321, Syl., 680 P.2d 286 (1984). KDR asserts that it had the express authority to impose the drug tax under K.S.A. 79-5201 et seq., and the Court of Appeals did not find that KDR’s actions were “permeated with fraud.”
Dickerson claims in response that the district court had jurisdiction in Crawford County when KDR filed its action to sell his car. He argues that the State (or KDR) subjected itself to the jurisdiction of the Crawford County court when it elected to bring the action in that locale.
The district court’s conclusion that it could exercise jurisdiction is correct, although the reasons stated for the conclusion are not. (The district court relied on K.S.A. 79-3235.) A district court’s reasons for its decision are immaterial if the ruling was correct for any reason. Prairie State Bank v. Hoefgen, 245 Kan. 236, 245, 777 P.2d 811 (1989).
Additionally, we do not agree with KDR’s claim that Whitehead applies to the injunction sought by Dickerson. Dickerson wanted the injunction to prevent the taking of his property in a manner he believed to be wrongful by virtue of the plea bargain. Dickerson’s injunctive request is not a typical case of a party seeking relief from a tax assessment.
The district court had jurisdiction.
Summary Judgment Rule 141(b)
KDR asserts that Dickerson did not comply with Supreme Court Rule 141(b) (1992 Kan. Ct. R. Annot. 124) when he filed his response to KDR’s motion for summary judgment. Consequently, KDR contends that the district court erred when it failed to (1) disregard the statement of facts set forth in Dickerson’s response and (2) adopt KDR’s facts as uncontroverted.
KDR agrees that a party, in responding to a summary judgment motion, does not have to controvert facts. KDR explains that among the uncontroverted facts contained within its motion were statements that Dickerson failed to exhaust administrative remedies and, consequently, the district court lacked jurisdiction.
In Plummer Development, Inc. v. Prairie State Bank, 248 Kan. 664, Syl. ¶ 1, 809 P.2d 1216 (1991), we stated: “A trial court’s ruling that an opposing party is deemed to have admitted the uncontroverted facts submitted by the movant for the failure to follow Supreme Court Rule 141 (1990 Kan. Ct. R. Annot. 110) rests within the sound discretion of the trial court.” The Plummer rule is based upon our analysis in Ruebke v. Globe Communications Corp., 241 Kan. 595, 604, 738 P.2d 1246 (1987). See Plummer, 248 Kan. at 666-67.
Dickerson failed to follow Rule 141(b). Dickerson’s statement of uncontroverted facts, in large part, set forth matters in the criminal case record concerning the journal entry and plea agreement. These matters created a genuine issue of material fact and served as a sufficient basis for the district court to deny KDR’s motion. The district court’s ability to determine whether factual issues were controverted was not frustrated by Dickerson’s failure to cite to the record. See Slaymaker v. Westgate State Bank, 241 Kan. 525, Syl. ¶ 1, 739 P.2d 444 (1987).
The district court did not err in refusing to deem lack of exhaustion and lack of jurisdiction as admitted, uncontroverted statements of fact. Exhaustion is implicitly controverted by the journal entry in the criminal case which provides a non-tax basis for reviewing KDR’s conduct. The determination of jurisdiction is for the court. Jurisdiction is not proven or disproven because a party says so within a statement of uncontroverted facts.
The Plea Agreement
The Court of Appeals discussed the binding nature of the plea agreement:
“In Santobello v. New York, 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971), the Supreme Court indicated one who agrees to a plea bargain with the State has a right to relief upon the breach of a promise made as part of that agreement. The Court specifically held that, ‘when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.’ 404 U.S. at 262. The State received Dickerson’s guilty plea in exchange for a promise to seek no more than a $350 tax assessment against him. Dickerson could have received a much larger fine, since law enforcement officials recovered more than 700 grams of marijuana from his property. K.S.A. 1991 Supp. 79-5202(a)(l). The reduction in Dickerson’s tax assessment must have been offered to induce his guilty plea. Following Santobello, Dickerson’s plea agreement with the State precludes any assessment of the drug tax in an amount greater than $350.”
State v. Parson, 15 Kan. App. 2d 374, 808 P.2d 444 (1991), controls the disposition of the case at bar. In Parson, the issue of privity between various state officers is discussed. Richard A. Parson was charged in a criminal prosecution with operating an unregistered vehicle, a mobile water well drilling rig. Parson held that the conviction was barred by operation of the doctrine of collateral estoppel. A prior declaratory judgment action had determined that the rig was exempt from registration. The State Highway Commission Motor Vehicle Department and the Treasurer of Sedgwick County were parties to the declaratory judgment action. 15 Kan. App. 2d at 379. The later criminal case against Parson was filed in Pratt County.
Dickerson negotiated the tax and fine with an agent of the State, the Crawford County Attorney. The plea agreement was implemented by the State through the district court judge. The State, as embodied in the Director of Taxation, cannot now vary the terms of the prior agreement and court order.
KDR contends that we should not approve of the “bargaining away” of its additional drug tax assessment by the Crawford County Attorney. KDR maintains that the county attorney’s actions were ultra vires and void. KDR reasons that Dickerson could have been permitted to withdraw his plea in the criminal case and, consequently, his rights would have been protected.
Dickerson suggests that the criminal case and drug tax proceeding are related because the two cases involve the same marijuana, same statutory authority for the assessment, same defendant, and same State. Dickerson relies on Parson and maintains that the State bargained away the State’s tax assessment rights in any amount greater than 100 grams.
KDR now asserts that: (1) the county attorney did not promise that KDR would refrain from assessing the drug tax, (2) Dickerson failed to prove the existence of such a promise, and (3) Dickerson testified that no one told him the plea agreement would bar KDR from further assessing taxes. However, on cross-examination by KDR, Dickerson’s criminal case attorney testified as follows: “My recollection is that the State and Mr. Dickerson and I agreed that we would stipulate that the amount of marijuana he possessed was whichever amount that gave rise to the $350.00 taxation.” A review of the criminal case audiotapes settles the 100 gram guilty plea issue.
KDR reasons that the tax ramifications of Dickerson’s conduct are collateral to the disposition of his criminal case. KDR cites City of Ottawa v. Lester, 16 Kan. App. 2d 244, 822 P.2d 72 (1991). In Lester, the Court of Appeals explained that “[t]he test of whether consequences are collateral has been defined as ‘whether the consequences imposed are a definite, immediate, and largely automatic result of the guilty plea.’ United States v. Lott, 630 F.Supp. 611, 612 (E.D. Va.), aff’d 795 F.2d 82 (1986).” 16 Kan. App. 2d at 248. Given the language and nature of Dickerson’s criminal proceeding, journal entry, and plea agreement, the tax and fine imposed were settled. The setting of the tax and fine in the criminal case renders the existence of further taxes and fines a nullity.
Finally, KDR contends that allowing a court to assess a tax violates separation of powers. KDR claims that State v. Blackmore, 15 Kan. App. 2d 539, 811 P.2d 54, aff’d in part, rev’d in part 249 Kan. 668, 822 P.2d 49 (1991), is useful by analogy. Blackmore is a sentencing case which recognizes that any judge of the judicial district is authorized to pronounce sentence on a person convicted of a crime in that district. The doctrine of separation of powers was not discussed.
KDR should not be allowed to return at a later date to unravel the plea agreement and alter the trial court’s initial determination. Fairness dictates upholding the application of Parson. Our view that KDR was in privity with the prosecutor is, to some extent, reinforced by the fact that KDR accepted Dickerson’s payment and waited several months before it pursued the additional assessment. KDR states that (1) it has never sought collection of the same tax twice, and (2) Dickerson has been credited with payment of $350 in tax and $350 in penalty.
Dickerson relied on a promise by an agent of the State, the prosecutor. Given the context of the situation, Dickerson had no reason to believe that the prosecutor and court could not determine his fine. The criminal case information was amended to charge 100 grams of marijuana. His guilty plea was to a specific amount of the drug, 100 grams.
Exhaustion of Administrative Remedies
KDR argued that the district court erred in denying its motion for summary judgment based upon Dickerson’s failure to exhaust his administrative remedies. Dickerson contended that the district court was the proper forum to challenge the tax assessment because that court made the initial assessment in the criminal case.
The Kansas Drug Tax Act is found in K.S.A. 79-5201 et seq. The cental provision of the Act at issue is K.S.A. 1992 Supp. 79-5202, which provides for a tax on marijuana of $3.50 per gram. The marijuana tax is imposed on the possession of more than 28 grams of the drug. K.S.A. 1992 Supp. 79-5201(c); K.S.A. 1992 Supp. 79-5204(a). K.S.A. 1992 Supp. 79-5204 requires that payment of the tax be evidenced by a tax stamp affixed to the drug.
For a taxpayer not having the stamps (a common occurrence), the tax is assessed by the Director of Taxation based on “personal knowledge or information.” K.S.A. 1992 Supp. 79-5205(a). Failure to pay the tax when due results in sanctions. Civil sanctions are handled by KDR. Criminal sanctions are handled by prosecuting attorneys. K.S.A. 79-5208 is the penalty provision for violation of the Kansas Drug Tax Act. In a criminal proceeding, a defendant convicted under the Act may be sentenced to imprisonment for not more than five years or fined not more than $10,000 or both.
K.S.A. 1992 Supp. 79-5205 vests the sole authority for tax assessment in the Director of Taxation and provides for a jeopardy assessment procedure to collect the tax. K.S.A. 79-5208 provides for the assessment of a penalty in the amount of 100% of the tax for failure to pay in addition to the tax imposed under K.S.A. 1992 Supp. 79-5202. KDR can collect interest on the tax at 18% annually from the date the tax is due. K.S.A. 79-2968.
The legislature has established a detailed appeal process for persons assessed a drug tax in a K.S.A. 79-5201 et seq. proceeding. The provisions of K.S.A. 1992 Supp. 79-5205(b) allow a taxpayer to request a hearing before the Director of' Taxation within 15 days of the date of the mailing of a tax assessment. Decisions of the Director may be appealed to the State Board of Tax Appeals under K.S.A. 74-2438. Dickerson failed to timely request a hearing before the Director of Taxation. The Court of Appeals explained:
“The facts presented to the district court in the memoranda of the parties, when considered in the light most favorable to Dickerson, suggest that Dickerson consulted KDR and that KDR misled him into believing a copy of the journal entry in his criminal case might serve as an adequate substitute for a hearing with the Director of Taxation. While Dickerson waited for KDR to evaluate the effect of the journal entry, his time to file an appeal expired. Given these factual allegations, the district court did not err in denying KDR’s motion for summary judgment.”
The Court of Appeals farther discussed the exhaustion issue in the context of the question of whether the district court had jurisdiction to grant an injunction under K.S.A. 79-3235. The Court of Appeals determined that 79-3235, dealing with collection of delinquent taxes, did not provide the district court with jurisdiction in this assessment matter. The court found that Dickerson failed to follow through with the administrative appeal process and that KDR was not responsible for Dickerson’s actions.
The Court of Appeals ultimately found that the district court’s conclusion that it had jurisdiction was correct. Dickerson had not sought to challenge the statutory provisions which governed taxation of marijuana. Rather, he sought relief from the assessment on the grounds that it violated the terms of his plea agreement.
KDR asserts that Zarda v. State, 250 Kan. 364, 370-71, 826 P.2d 1365, cert, denied 119 L. Ed. 2d 566 (1992), stands for the proposition that where a litigant seeks tax relief, administrative remedies must be exhausted even in combination with requests for injunctive relief based on a claim that the statute is unconstitutional. KDR views Zarda’s companion case, Dean v. State, 250 Kan. 417, 422, 826 P.2d 1372, cert, denied 119 L. Ed. 2d 566 (1992), as clarifying the fact that administrative agencies may consider questions of statutory interpretation.
Dickerson replies: (1) The State did not appeal the criminal judgment; (2) the judgment occurred prior to any notice of hearing before KDR; (3) the State received and accepted the fine without question or reservation; (4) the criminal judgment barred the future assessment and eliminated the necessity for an administrative hearing. Dickerson asserts that responsibility lies with KDR’s failure to appeal the criminal judgment, not with his failure to exhaust administrative remedies.
KDR, in its supplemental brief, analyzes Farmers Banshares of Abilene, Inc. v. Graves, 250 Kan. 520, 826 P.2d 1363 (1992), as agreeing with Zarda and Dean. During oral argument, KDR referenced our recent opinion in J. Enterprises, Inc. v. Board of County Commissioners, 253 Kan. 552, 857 P.2d 666 (1993), as additional support.
The exhaustion requirement is not simply an arbitrary rule that must be blindly enforced if a case somehow touches an administrative agency. See Goodwin v. City of Kansas City, 244 Kan. 28, 29-30, 766 P.2d 177 (1988).
The question of the binding effect of the plea agreement was the issue in the case at bar. The nature of the plea agreement is not within the specialized expertise of the Director of Taxation or the State Board of Tax Appeals. Exhaustion was not required because consideration of the binding effect of the judgment and plea agreement would conclusively determine the issue. The responsibility of construing the criminal journal entry rests with the district court, not with KDR. Zarda, Dean, Graves, and J. Enterprises, Inc., do not control under the unique facts in the case at bar.
Two principles, enforcement of a plea agreement and exhaustion of administrative remedies, are in conflict. These principles must be reconciled in the disposition of the instant appeal and for future guidance to trial courts, prosecutors, the defense bar, and KDR. The roots of both principles ■ are firmly bedded, one in the area of criminal law, the other in administrative law. The proceedings in the case at bar have highlighted tension between the two principles. Prosecutors should follow K.S.A. 79-5201 et seq. and trial courts should not accept plea agreements involving K.S.A. 1992 Supp. 79-5205 drug tax assessments.
KDR is collaterally estopped from claiming that Dickerson possessed 700 grams of marijuana. The tax and penalty for possession of 100 grams have been paid.
Affirmed.
Davis, J., not participating.
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The opinion of the court was delivered by
Davis, J.:
The City of Overland Park (City) appeals the district court’s dismissal of a municipal court complaint charging the de fendant, Bryan L. McBride, with unlawful possession of marijuana. We reverse and remand for further proceedings.
The defendant was charged in Overland Park Municipal Court with a violation of Overland Park Municipal Code (O.P.M.C.) § 11.56.140 (1986), which provides:
“A. It is unlawful for any person to deliver, possess, manufacture, have under his control, sell, or offer for sale any drug controlled substance or marijuana all as defined in 11.56.130 . . . .”
Defendant was found guilty as charged in the Municipal Court of Overland Park and appealed to the District Court of Johnson County.
In proceedings before the district court, after the City had called its first witness but before any testimony, the defendant moved to dismiss the complaint for lack of jurisdiction. The defendant contended that the complaint did not allege a crime because the complaint did not allege intent. Ultimately, the trial court dismissed the complaint because the complaint failed to allege an essential element of the offense, intent. The question presented on appeal is whether the complaint is fatally defective by failing to specifically allege intent.
The City contends that the trial court erred in dismissing the complaint because defendant’s motion was untimely. More specifically, the City asserts that the defendant waived any objection to defects in the complaint because he did not raise them before trial. To support its position, the City relies upon K.S.A. 1992 Supp. 22-3208(3), which provides:
“Defenses and objections based on defects in the institution of the prosecution or in the complaint, information or indictment other than that it fails to show jurisdiction in the court or to charge a crime may be raised only by motion before trial. The motion shall include all such defenses and objections then. available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver. Lack of jurisdiction or the failure of the complaint, information or indictment to charge a crime shall be noticed by the court at any time during the pendency of the proceeding.” (Emphasis added.)
The very statute relied upon by the City undermines its position.
In State v. Bird, 238 Kan. 160, 166, 708 P.2d 946 (1985), we said:
“Failure of an information to sufficiently state an offense is a fundamental defect which can be raised at any time, even on appeal. [Citations omitted.] Sufficiency of the indictment or information is to be measured by whether it contains the elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet, and by whether it is specific enough to make a plea of double jeopardy possible. ... if the allegations in an information fail to constitute an offense in the language or meaning of an applicable statute, the information is fatally defective.”
The City’s contention that the defendant waived any objection to defects in the complaint by not timely raising lack of jurisdiction is wholly without merit. The statute relied upon by the City supports a contrary conclusion.
The City also contended at trial and contends on appeal that Ó.P.M.C. § 11.56.140 creates absolute liability for the offense of possession of marijuana. Thus, the City contends there was no requirement that the complaint allege intent. While the City still argues this position before this court, it should be noted that the City ultimately represented to the trial court that § 11.56.140 was a “general intent crime.” The trial court based its dismissal upon that representation and upon the City’s failure to amend the complaint after being given an opportunity to do so. The following exchange between the court and counsel demonstrates this.
“THE COURT: All right. I’ll accept that [City’s position] as requiring general criminal intent to prove the crime. I’ll grant the City leave then to amend the Complaint to add ‘willfully’ and ‘intentionally’ which was previously stricken. And we’ll proceed with setting the matter over for trial at a later date.
“MR. HARRIS: Judge, if I could respond to that. I would point out to the Court that this matter is a Municipal Court appeal, that there has already been a trial on the Complaint as set out.
“And I think the last time that we were here I cited a State v. Wilson case that says you cannot change the charge at the time of trial. So I think that’s what we would be doing at this point is Mr. McBride is appealing from a decision of the Municipal Court on one charge, and now the City is going to be amending a charge, making it a new charge that we’re going to trial upon.
“THE COURT: Okay. I note your objections and I believe that the Complaint . . . fairly apprised . . . the defendant of the crime to which he had been charged and the objections are noted for the record, but overruled. The City will amend.
“CITY OF OVERLAND PARK: Your Honor, just for the matter of making a record, it is still—the City will amend the Complaint to include the term intentionally, intentionally on this issue although it remains the City’s position that it is not required to do so.
“THE COURT: Well, you have your choice. If you don’t choose to wish to amend, then I’m going to consider that’s your announcement that there is no general criminal intent required has no purpose in the proceeding, and I’ll dismiss the case and we’ll get on with life.
“Decide what you want to do, because you can’t have it part one way and part the other way.
“Do you understand this is not the same situation that we have under Kansas statutes? The City’s ordinance would purport on its face to not require a general criminal intent and if that’s the way you’re going to prosecute him in the City and then you want to change and prosecute him differently in the District Court, that’s not right.
“CITY OF OVERLAND PARK: Your Honor, the City maintains its position that the word ‘possession’ does carry with it the general mens rea requirement and that it is not unconstitutionally vague or overbroad and it is not a violation of police powers to have the knowledge and intent wrapped up in the word ‘possession’.
“THE COURT: This case is dismissed.”
In spite of its position before the trial court, the City continues to argue on appeal that § 11.56.140, prohibiting possession of marijuana, imposes absolute liability. O.P.M.C. § 11.04.090(1), however, provides that “[ejxcept as otherwise provided, criminal intent is an essential element of every crime defined by this code.” Nevertheless, the City contends that O.P.M.C. § 11.04.120 creates an exception applicable to this case. Section 11.04.120 provides:
“A person may be guilty of an offense without having criminal intent if the crime is an ordinance or traffic infraction and the ordinance defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described.”
The City maintains that O.P.M.C. § 11.56.140, the ordinance at issue, fits that exception because it is an “ordinance” and it clearly indicates legislative intent to impose absolute liability. We perceive no legislative intent for the imposition of absolute liability in the adoption of this ordinance. “Possession” means having control over a thing with knowledge of and the intent to have such control. See PIK Crim. 2d 53.00. The ordinance is patterned after the state statute prohibiting possession of marijuana. The use of the term “possession” has a definite meaning and connotes knowledge with intent to have control over the marijuana. Thus, the O.P.M.C.’s statement that, except as otherwise provided, criminal intent is an essential element of every crime defined by the code controls.
We finally come to the dispositive, question raised by this appeal: “Was the complaint fatally defective without an allegation of intent?”
The complaint at issue states as follows:
“Off. Schumacher of lawful age, being first duly sworn on oath, for complaint against the above shown accused person alleges and states:
“That on or about the 03 day of February, 1992, the said Bryan L. McBride, within the corporate limits of the above named City and State did then and there in violation of the ordinances of said City willfully, unlawfully, and intentionally (1) have in his possession a quantity of a controlled substance, to wit: tetrahydrocannabinol.”
The words “willfully” and “intentionally” are lined through, creating the impression that the crime charged is one without intent. Who lined through the above words or at whose direction this was done is unclear from the record. Nevertheless, the City was then given an opportunity to amend the complaint to include those words, but, instead, the City maintained its contradictory positions that (1) the section imposed strict liability and (2) the complaint as worded was sufficient because possession connotes a willfulness and knowledge. In its latter assertion, the City is correct.
As indicated above, the term “possession” is defined as “[h]aving control over a place or thing with knowledge of and the intent to have such control.” PIK Crim. 2d 53.00. Thus, possession in and of itself or the word “possess” means having control over a thing with knowledge and the intent to have such control. Thus, by use of the word “possess,” the ordinance in question necessarily incorporates a knowing and intentional act. Possession of marijuana under the Overland Park Municipal Code is a general intent crime and the'charging language of the ordinance is sufficient to state an offense.
Dismissal by the trial court on the basis that the complaint fails to state an offense by omission of the word “intent” was error. We therefore reverse and remand for further proceedings.
Several questions concerning the constitutionality of the ordinance were raised below. However, we do not perceive the court’s dismissal to be on any other ground than for lack of jurisdiction. Because the court did not dispose of the matter on constitutional grounds, we do not reach the question of the constitutionality of the ordinance and express no opinion regarding its constitutionality.
Reversed and remanded for further proceedings. | [
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The opinion of the court was delivered by
Allegrucci, J.:
This is a direct appeal by Bobby Young from his conviction by a jury of first-degree murder (K.S.A. 1992 Supp. 21-3401). He was convicted for the shooting death of his girlfriend, Carol Dorsey.
Carol Dorsey died on April 4, 1991, from a gunshot wound to her left temple. She lived with Young and Walter “Teddy” Banks. Young testified that the three of them drank “seven days a week from sunup to sundown.”
At his trial, Young testified that he had shot Dorsey and that it had been an accident. He gave the following account of events to the jury: Dorsey was lying on the couch watching television and he was walking between the couch and the coffee table when he heard someone knocking on the window behind the couch. There was no response to Young’s inquiry as to who was there. When he leaned across Dorsey in order to pull back the curtain, he had a gun in his hand. He then slipped off the couch and heard a shot. When he looked at Dorsey, she had blood on her head.
Banks testified that he had been in the bathroom at the time Dorsey was shot. Because there was no phone in the house where Young, Dorsey, and Banks lived, Banks went to a neighbor s house and asked that the neighbor call 911.
Young went to the house of another neighbor, Paul Mann. Young, with the gun in his hand, told Mann that he had just shot his wife and needed to call 911. While Young was talking with the 911 dispatcher, he put the gun on the table. Mann took it into another room. Mann overheard Young telling the dispatcher that he had accidentally shot his wife.
Mann testified that, after his neighbors had been taken into custody, a detective retrieved the gun from his house. At trial the detective referred to the gun as a pistol and the shells from it as .22 caliber. When he seized it, the pistol had five live rounds and one spent round in the cylinder in the firing position.
Officer Cronk was dispatched to Young’s house at about 8:10 p.m. He talked to Young at the house. He testified that Young appeared to be under the influence of alcohol. (Young’s blood alcohol concentration later was found to be .25.) He also testified that there were instances when Young’s attention seemed to waver from the person who was speaking to him and that Young made some seemingly random statements. When Officer Cronk was able to get Young to pay attention to him, Young coherently answered questions.
Young told Cronk that he did not own a handgun. He denied shooting Dorsey. He blamed the shooting on someone else. He said that there was a fourth person in the house, someone from out of town whose name he did not know, and that the out-of-town person had shot Dorsey.
Young was taken to the police department, where he was interviewed by Detective Davis beginning at approximately 8:53 p.m. on April 4. Davis could smell alcohol on Young, but Davis said that Young was coherent and capable of understanding and responding to questions. Davis described Young as “functioning” and neither stumbling nor falling.
Young told Davis that he had been out in the back yard feeding the dog when he heard a shot. Banks was in the house when Young came back in, and Dorsey was lying on the couch bleeding. Young said he knew the face but not the name of the man who had shot her. He said that he had gone next door and instructed his neighbor to “call the police because someone shot my woman.” Young told Davis that he then went back home and had a conversation with Dorsey. She said to Young that he knew who shot her, and she assured Young that Young was not the person who shot her. Young told Davis that he owned two shotguns, but denied that he owned any other guns or that there were any other guns at the residence. Young stated that, if he had shot Dorsey, “it would have been with a shotgun.”
In a second interview conducted by Detective Davis at approximately 9:30 p.m. on April 4, Young repeated his claim that a fourth person had been at the house and had shot Dorsey. Detective Davis confronted Young with the dispatcher’s statement that Young had called 911 and reported that he accidentally shot Dorsey. Davis told Young that if the shooting had been an accident, Young should tell him. Young replied, “If I shot her, I’d tell you.”
At trial, Young admitted to the jurors that he had hit Dorsey on several occasions and that he had told Robert Freeman that he was going to kill Dorsey. Young also admitted that he had told Connie Mason that he removed the guns from his house because he was afraid he was going to hurt someone.
A number of witnesses testified that they had observed Young physically abuse Dorsey or that they had heard Young talk about physically abusing Dorsey or getting rid of Dorsey or killing Dorsey. Some witnesses saw and heard Young threaten Dorsey, some heard Young accuse Dorsey of infidelity, and one witness testified that he had been threatened by Young. In brief, those witnesses stated the following: Barbara Williams, Dorsey’s niece, saw Young hit Dorsey two or three times in the head. Gloria Jacobs heard Young say that, as an embalmer, he knew how to kill a person instantly and then saw Young point to a person’s temple. She saw Young slap Dorsey and kick her when she fell to the floor, and she saw Young point a gun at Dorsey and threaten to kill her.
Connie Mason testified that she had heard Young say he suspected Dorsey of infidelity. Benfadean Craig testified that she had heard Young say that he was going to kill Dorsey and Banks and that Young thought they were “fooling around.” Martha Bax ter, a neighbor, testified that approximately a week before the shooting Young told her that he was going to get rid of Dorsey so that he could be with Baxter. Patrick Coen, another neighbor, testified that, while he was driving Young to the liquor store, Young explained that he was taking his pistol there to get rid of it because he was concerned about hurting Dorsey or Banks or himself. Young told Coen that he had thought about shooting Banks and Dorsey and putting them in the well in the back yard. Sandra Freeman, another neighbor, testified that she heard Young say he was going to shoot Dorsey. Patricia Hardin testified that in March 1991 she heard Young threaten to kill Dorsey and some people who had helped her. Freddie Harrell, a friend of Young, testified that Young told him that, if he could get away with it, he would kill Dorsey.
The defendant first contends that there was not sufficient evidence from which the jury could have found beyond a reasonable doubt that Young was capable of forming the intent to kill Dorsey. In State v. Bailey, 251 Kan. 156, Syl. ¶ 2, 834 P.2d 342 (1992), the standard of review was stated as follows:
“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.”
Young asserted voluntary intoxication as a defense. K.S.A. 21-3208(2) provides:
“An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.”
In State v. Beebe, 244 Kan. 48, 60-61, 766 P.2d 158 (1988), this court concluded that PIK Crim. 2d 54.12 is an adequate statement of the statutory provision on voluntary intoxication. The instruction which the court approved stated:
“ ‘Voluntary intoxication is not a defense to a criminal charge, but when a particular intent or other state of mind is a necessary element of the offense charged, intoxication may be taken into consideration in determining whether the accused was capable of forming the necessary intent or state of mind.’ ”
In the present case the jury was instructed, in accordance with PIK Crim. 2d 54.12-A (1992 Supp.), as follows:
“Voluntary intoxication may be a defense to the charge of murder in the first degree or the lesser included offenses of murder in the second degree, or voluntary manslaughter, where the evidence indicates that such intoxication impaired a defendant’s mental faculties to the extent that he was incapable of forming the necessary intent to commit murder in the first degree, murder in the second degree or voluntary manslaughter.”
Young contends that the evidence was not sufficient to permit the jury to find that he was capable of forming the necessary intent to kill. He emphasizes evidence of his history of alcoholism, of his blood alcohol level on the night of the shooting, and of his drunken actions on that night. He argues that the State’s evidence of his intent to kill consisted of showing the shot was fired at close range and of his statements that he wanted to kill Dorsey. He argues that the finding the shot was fired at close range is consistent and compatible with his version of the shooting. He argues that his statements about killing Dorsey “could not be taken seriously” because it was his customary practice to say things he did not mean, make threats he did not intend to carry out, and fabricate incredible accounts of his activities. Thus, Young concludes that his statements were “only weak circumstantial evidence of his intent to kill [Dorsey].”
The State cites a number of elements of the evidence which would support a finding that Young was capable of forming and had the specific intent to kill Dorsey. Among them are the following: Immediately after the shooting, Young responded to officers’ questions in a coherent manner. He appeared to be capable of understanding and responding to questions. In order to protect himself from police action, he told the 911 dispatcher that he was unarmed. He told three widely varying versions of what happened, and all three of them were exculpating.
Before the shooting, Young stated on a number of occasions and to a number of people that he wanted to get rid of Dorsey or that he would kill her. Young had told people that he knew an injury to the temple would kill a person instantly. Approximately a week before the shooting, he took the handgun out of his house and put it into someone else’s possession because he had been thinking about shooting Dorsey. A few days prior to the shooting, Young retrieved the handgun. On the day before the shooting, Young told a friend that he would kill Dorsey if he could get away with it.
The evidence, viewed in the light most favorable to the prosecution, would support the finding of a rational factfinder that Young was capable of forming the intent to kill Dorsey and was guilty beyond a reasonable doubt.
The defendant next contends it was error for the district court to admit evidence that Young had on other occasions physically abused Dorsey. Young complains of specific portions of the testimony of witnesses Patricia Hardin and Dorothy Mae Brooks. Hardin’s testimony is as follows:
“Q. And did Carol [Dorsey] at that time visit with you about any concerns that she had about the defendant?
“A. She was afraid of him. She was afraid to leave him. We had discussed her moving out away from the people that she was living with and I had discussed with her that I would try and help her find another place to live if she needed and she said that she was afraid, she was afraid to leave because he would just come there where she was.
“Q. Did she say why she was afraid of him?
“A. Because he hit her, he hit her and kicked her, slapped her, you know, whatever; he just, you know, constantly abused her.
“[Prosecutor]: I don’t have any further questions.”
Counsel for the defendant then proceeded to cross-examine the witness.
Brooks was Dorsey’s sister. Her testimony to which Young objects is as follows:
“Q. Do you remember what the two of you visited about at that time?
“A. We talked about other things and then she got into the—well, she took her jacket off and that’s when I had seen her bruises. I asked her what happened and all she said is that he did it and then we talked for a while and she told me then, ‘Sis, I’m afraid of him and, Sis, I think—I think he’s going to kill me.’
“Q. Was—
“A. (Interrupting) ‘I’m afraid he’s going to kill me.’ I’m sorry.
“Q. Was that the only time that you saw any bruises on Carol that you can recall?
“A. I think I seen little ones on her before but I didn’t say anything to her about it.
“Q. Did Carol make any type of similar statements to you on other occasions?
“A. She used to say he iussed with her and he, you know, kind of used her and things like that but that’s all.
“[Prosecutor]: Thank you, Ma’am. No further questions.”
Counsel for the defendant then proceeded to cross-examine the witness.
Young contends that the testimony contained inadmissible hearsay. Young states in his brief that “[t]he defense objected on hearsay grounds and the state argued that they were admissible under K.S.A. 60-460(1) as mental state.” There is no record reference for the objection, and the transcript shows no contemporaneous objection.
The district court judge had indicated to the parties that, before getting into certain evidence which was questionable as to admissibility under K.S.A. 60-455, they would discuss whether or not a precautionary instruction should be given to the jury. K.S.A. 60-455 involves evidence of other crimes or civil wrongs. At the time the district court judge was discussing with counsel upcoming witnesses who might testify as to other crimes or civil wrongs, Young’s counsel also objected to a portion of the testimony of Officer Jerry Gilbert on the additional ground that it was hearsay. This hearsay objection seems to have been disposed of to everyone’s satisfaction upon the prosecutor’s assurance that the out-of-court statements which would be related by Officer Gilbert were made by Young.
Pressing the discussion of a precautionary instruction on evidence of other crimes and civil wrongs, the district court judge asked the State to make a proffer of what various witnesses were expected to say. The prosecutor stated that Dorothy Brooks would testify as to statements made to her by Dorsey. The district court judge identified this testimony as containing an “out-of-court statement of Carol Dorsey,” and asked the prosecutor to state his “position with regard to the hearsay implications.” Then the district court judge asked defense counsel for his “argument as to the hearsay implications.” In this way, defense counsel specifically stated his hearsay objection to the testimony of Brooks. The district court overruled the objection based on this court’s rulings in State v. Taylor, 234 Kan. 401, 408, 673 P.2d 1140 (1983), and State v. Wood, 230 Kan. 477, 638 P.2d 908 (1982).
Among the witnesses whose testimony was included in the State’s continuing proffer was Patricia Hardin. The prosecutor stated:
“She would also testify just—not anything pertaining to the defendant as far as bad acts, but it would deal with the fact that Carol was horrified and scared of the defendant, she was afraid to leave the defendant, he had hit her before, that Carol had put him out and the defendant would always just kick in the door, climb back through the window and be right back into her life.”
Defense counsel did not object to Hardin’s testimony on the ground of hearsay when the prosecutor made the proffer of her testimony, nor does the record show any specific objection to Hardin’s testimony on this ground.
On appeal, Young concedes that the witnesses’ testimony about Dorsey’s fear of him was admissible pursuant to K.S.A. 1992 Supp. 60-460(1), which permits introduction of statements of the declarant’s state of mind. K.S.A. 1992 Supp. 60-460(1) states:
“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, is hearsay evidence and inadmissible except:
“(1) Statements of physical or mental condition of declarant. Unless the judge finds it was made in bad faith, a statement of the declarant’s (1) then existing state of mind, emotion or physical sensation, including statements of intent, plan, motive, design, mental feeling, pain and bodily health, but not including memory or belief to prove the fact remembered or believed, when such a mental or physical condition is in issue or is relevant to prove or explain acts or conduct of the declarant or (2) previous symptoms, pain or physical sensation, made to a physician consulted for treatment or for diagnosis with a view to treatment, and relevant to an issue of declarant’s bodily condition.”
He argues, however, that 60-460(1) does not permit Brooks’ testimony that Dorsey said Young “did it” when she was asked about her bruises and Hardin’s testimony that Dorsey said she was afraid of Young because he “hit her,” “kicked her,” “slapped her,” and “constantly abused her.” He contends that the testimony consists of “statements to prove a fact remembered, and they were therefore inadmissible.” Defendant is referring to the exception to the hearsay rule for statements of the mental con dition of the declarant, which disallows a statement of “memory or belief to prove the fact remembered or believed.”
The State argues that the testimony is not hearsay. The State relies on this court’s reasoning from Taylor. Mrs. Taylor, the homicide victim and wife of the defendant, kept a notebook in connection with a marriage encounter session which she and her husband had attended. The State offered the notebook into evidence, and defendant objected on the ground of hearsay, among others. 234 Kan. at 407. This court reasoned as follows:
“The statements in the notebook were not inadmissible hearsay because they were not introduced to prove the truth of the matters stated, such as whether the defendant had a bad temper. K.S.A. 60-460. The significance of the statements lies in the fact that they were made. State v. James, 223 Kan. 107, 108-09, 574 P.2d 181 (1977). They show Mrs. Taylor believed the marriage had problems, that there was indeed marital discord. State v. Phipps, 224 Kan. 158.
“The rule in Kansas is that in a case of marital homicide, evidence of a discordant marital relationship and a wife’s fear of her husband’s temper is competent as bearing on the defendant’s motive and intent. The court did not err in admitting into evidence Shirley Taylor’s letters which contained statements of marital discord and her fear of the defendant’s temper since they showed the relationship of the parties and their conduct in that relationship.” 234 Kan. at 408.
The State contends that, even if the statements were hearsay, they were admissible pursuant to the exception set out in K.S.A. 1992 Supp. 60-460(d)(3), which allows
“[a] statement which the judge finds was made ... (3) if the declarant is unavailable as a witness, by the declarant at a time when the matter had been recently perceived by the declarant and while the declarant’s recollection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort.”
K.S.A. 60-459(g)(3) defines “unavailable as a witness” to include “unable to be present or to testify at the hearing because of death.”
The State also contends that the testimony of Brooks and Hardin is admissible under K.S.A. 1992 Supp. 60-460(l)(l). It appears that the State’s argument in this regard is that Dorsey’s statements expressed her then-existing mental state of apprehension of harm at the hands of Young without relying on memory or belief to prove that she was afraid of him.
Brooks testified that Dorsey had told her that Young bruised her. The rationale from Taylor applies to this testimony of Brooks. The significance of the statement by Dorsey that Young bruised her lies in its being made. It shows that Dorsey believed the relationship had problems and that there was indeed discord between them. As stated in Taylor, the rule in this state is that “in a case of marital homicide, evidence of a discordant marital relationship and a wife’s fear of her husband’s temper is competent as bearing on the defendant’s motive and intent.” 234 Kan. at 408. No reason has been presented, nor do we know of any, why the lack of a marital commitment in the live-in relationship of Dorsey and Young should alter the principle expressed in Taylor. We conclude the rule and rationale of Taylor is applicable to Young and Dorsey’s live-in relationship.
Hardin was asked, “Did she say why she was afraid of him?” Hardin did not answer the question which was asked. She responded, “Because he hit her, he hit her and kicked her, slapped her, you know, whatever; he just, you know, constantly abused her.” Hardin’s answer would support more than one interpretation. The most likely is that Dorsey did say why she was afraid of Young and what Dorsey said was that she was afraid of him because he physically abused her. Another is that Hardin was aware of Young’s physically abusing Dorsey, and it was self-evident to Hardin that Dorsey, in the circumstances, would be afraid of Young. It is not clear that Hardin was relating a statement made by Dorsey; hence, there is a question as to whether the testimony involved an out-of-court statement of the declarant. In either case, Hardin’s testimony did not constitute inadmissible hearsay; however, the issue has not been preserved for consideration on appeal. We find no error in the admission of Brooks’ and Hardin’s testimony.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Davis, J.:
The landowners appeal jury condemnation awards, claiming that the court erred by admitting evidence of petroleum contamination and, in the alternative, by not instructing the jury on their estoppel theory. The landowners also contend that the court erroneously excluded evidence and that the jury failed to follow the court’s instructions. Finding no reversible error, we affirm.
On March 28, 1990, the City of Olathe filed a petition for eminent domain, seeking to condemn eight tracts of land to enable expansion of the 119th Street and 1-35 interchange project. The City was dissatisfied with the awards on tract 5, owned by Marvin and Peggy Stott and David and Eileene Hendrix, and tract 6, owned by Arthur and Dejah Seute. The appraisers’ awards from which the City appealed were $341,000 for tract 5 and $1,180,000 for tract 6. On June 29, 1990, the City paid an amount equal to the original awards to the clerk of the court and appealed from those awards to the district court. The date of taking for purposes of property valuation was June 29, 1990.
The controversy centers upon leakage from underground gasoline and diesel fuel storage tanks. Both tracts had been operated as service stations for at least the last 25 years. On appeal to the district court, the City claimed that the appraisers had failed to consider evidence of petroleum contamination on tracts 5 and 6.
During the course of trial, appraisers for the City were allowed, over the landowners’ objections, to discuss the impact of petroleum contamination on the fair market value of the property. The landowners contend that no evidence of contamination should have been admitted because a specific act, the Kansas Storage Tank Act (Act), K.S.A. 65-34,100 et seq., preempts the moré general condemnation statutes, K.S.A. 26-501 et seq., and provides the only relief available in Kansas for contamination damage resulting from leakage of underground storage tanks.
The landowners contend that the City, through its agents, had information concerning the contamination long before the City filed its condemnation action. The landowners claim that the City should have been estopped from claiming any reduction in property value due to contamination because it did not timely disclose the existence of the contamination to the landowners. Thus, the landowners contend that they were deprived of the opportunity to mitigate damages. In effect, the landowners argue that the City was silent when it had a duty to speak.
During the course of trial, the landowners sought to introduce testimony from Thomas Glinstra, the Olathe city attorney, who would have testified that the City had acquired, on previous occasions, property that was on the Environmental Protection Agency’s list of contaminated sites but did not investigate such contamination. The landowners proffered such testimony to impeach the credibility of city appraisers. The trial court ruled that this evidence was not admissible because it was not relevant.
Also, during the course of trial, on cross-examination, the landowners asked the consultant who studied the contamination problem for the City, Robert Sholar, if anyone had instructed him not to tell the landowners of the contamination. Upon objection by the City, the trial court instructed Robert Sholar not to answer because the trial, court did not believe the answer to the question was relevant. The landowners contend that the evidence was relevant to establish the City’s intent to mislead or deceive the landowners into doing nothing and that the. exclusion of this evidence was extremely prejudicial to their equitable estoppel theory. The landowners did not make a proffer of the excluded testimony.
After the trial concluded and the verdict had been read and accepted, the trial court inquired of the jury on the record about how it treated the existence of contamination in reaching its verdict. Briefly, the juror who responded indicated that the jury did consider the contamination and that it reduced the property value by 10% because of the contamination. The landowners contend that this was error.
Admissibility of Evidence of Contamination
One of the primary purposes in any eminent domain proceeding is to determine the fair market value of the property taken. Underground petroleum contamination necessarily affects the market value of real property. Evidence of such contamination is therefore admissible in an eminent domain action unless, as the landowners contend, the Act provides the exclusive remedy for petroleum contamination.
The Act essentially establishes a regulatory scheme that imposes certain requirements on owners and operators of above-ground and underground tanks in which regulated substances (petroleum or “hazardous substances”) are stored. See generally K.S.A. 65-34,100 et seq. and especially 65-34,102(p), (u) (defining regulated substance and storage tank). The Act also authorizes the Kansas Department of Health and Environment' (KDHE) to promulgate rules and regulations regarding tank installation, maintenance, upgrading, removal, and cleanup. See generally K.S.A. 65-34,104 through 65-34,111. The Act provides for licensing of tank installers and contractors. K.S.A. 65-34,110, K.S.A. 65-34,111, K.S.A. 65-34,112.
The Act requires owners and operators to notify KDHE of the “tank’s existence, including age, size, type, location, associated equipment and uses.” K.S.A. 65-34,104(a). The Act also requires owners and operators to supply various information about underground storage tanks (USTs) that are still in ground, but were taken out of service between January 1, 1974, and May' 8, 1986. K.S.A. 65-34,104(b). The Act requires KDHE approval for the construction, installation, modification, or operation of a storage tank and allows KDHE to deny, suspend, or revoke such authorization if the owner or operator is not in compliance' with various provisions of the Act. K.S.A. 65-34,106(a), (c). The Act requires owners or operators of USTs to provide evidence of financial responsibility sufficient to pay for corrective action and to compensate third parties for cleanup, property damage, and bodily injury resulting from the release of a regulated substance from a UST. K.S.A. 65-34,107; K.S.A.. 65-34,102(g). The Act requires owners and operators to provide information about the storage tank to KDHE representatives on request. K.S.A. 65-34,108.
The Act expressly prohibits various activities and makes such conduct a class A misdemeanor. K.S.A. 65-34,109. It also imposes civil penalties and remedies for violations of certain provisions. K.S.A. 65-34,113.
Although the Act imposes liability for “costs of corrective action taken in response to a release from [a] petroleum storagé tank” on the tank’s owner or operator, K.S.A. 65-34,115, the Act also establishes an Underground Petroleum Storage Tank Release Trust Fund (the Fund) that may be used to reimburse owners and operators for some (if not most) corrective action costs incurred as a result of petroleum releases from USTs. K.S.A. 65-34, 114; K.S.A. 65-34, 114a; K.S.A. 65-34, 117; K.S.A. 65-34, 119; K.S.A. 65-34, 119a; K.S.A. 65-34, 121.
The Fund will only reimburse for costs of corrective action, which does not include all costs that may be associated with property contaminated by UST releases. K.S.A. 65-34,119. The Act defines “corrective action costs” as costs incurred for the following:
“(1) removal of petroleum products from petroleum storage tanks, surface waters, groundwater or soil;
(2) investigation and assessment of contamination caused by a release from a petroleum storage tank;
(3) preparation of corrective action plans approved by the secretary;
(4) removal of contaminated soils;
(5) soil treatment and disposal;
(6) environmental monitoring;
(7) lease, purchase and maintenance of corrective action equipment;
(8) restoration of a private or public potable water supply, where possible, or replacement thereof, if necessary; and
(9) other costs identified by the secretary as necessary for proper investigation, corrective action planning and corrective action activities to meet the requirements of this act.” K.S.A. 65-34,118(d).
In addition to specifying what kinds of costs are covered as “corrective action costs,” the Act also expressly provides that certain other costs are not reimbursable from the Fund. For example, the owner or operator is liable for the cost of removing, replacing, or retrofitting tanks. K.S.A. 65-34,118(c)(4); K.S.A. 65-34,119(b)(9). In addition, the Fund is not liable for the loss of business, damages, or taking of property associated with any corrective or enforcement action. K.S.A. 65-34,114a(d). Finally, the Act imposes limits on the total amount of costs it will pay for any one release and the annual aggregate it will reimburse any owner or operator. K.S.A. 65-34,120.
The Act also imposes conditions on the availability of Fund reimbursement. The owner or operator must pay the lesser of the first $100,000 or $3,000 plus $500 per tank. K.S.A. 65- 34,119(b)(1). The Fund may not be used to reimburse owners and operators who are United States government agencies or owners and operators who are not in substantial compliance with the Act. K.S.A. 65-34,119(a)(1), (2). The Fund may not be used to reimburse for corrective action costs incurred at a petroleum production or refining facility. K.S.A. 65-34,119(b)(ll). Reimbursement is only available for corrective action approved by the Secretary of Health and Environment for which appropriate records are kept and notice of completion is given. K.S.A. 65-34,119(b)(2), (4), (6). The owner or operator also must enter into a consent agreement with KDHE that incorporates specific provisions. K.S.A. 65-34,118(c). No reimbursement is available if (1) the release was due to the owner’s or operator’s willful or wanton conduct; (2) the owner or operator is behind in money owed to the Fund; (3) the release was from an unregistered UST; (4) the owner or operator violates any provision of the consent agreement required by K.S.A. 65-34,118(c); (5) the owner or operator obr .structs KDHE’s investigation efforts; (6) the owner or operator is not . in substantial compliance with the Act; or (7) the owner or operator did not report or take corrective action in response to a release. K.S.A. 65-34,119(d).
The landowners’ primary argument appears to be that the Kansas Storage Tank Act is a specific statute that preempts all other common law or statutes that might address funding the cleanup cost incurred because of releases from USTs. Accordingly, the landowners argue, it is not appropriate to consider the impact of such contamination on property value in this eminent domain proceeding.
The City contends that the trial court properly admitted evidence of the contamination because the funding available under the Act only mitigated, but‘did not eliminate, all adverse effects of the contamination. The landowners do not contend that the Act eliminated all adverse effects of the contamination, but argue that because it expansively addresses contamination from UST releases, it provides the only relief available.
The landowners cite three Kansas cases for the proposition that a specific statute, complete in itself, controls over other statutes that might deal with the same subject matter in some general or incidental way. The landowners cite Szoboszlay v. Glessner, 233 Kan. 475, 664 P.2d 1327 (1983); Early Detection Center, Inc. v. Wilson, 248 Kan. 869, 811 P.2d 860 (1991); and Meinhardt v. Kansas Power & Light Co., 8 Kan. App. 2d 471, 661 P.2d 820 (1983). Although the cases do stand for the proposition the landowners claim, they are not pertinent to this case.
In Szoboszlay, the court held that the appeal time limit specific to small claims actions applied rather than the general time limit applicable to all (other) limited actions. 233 Kan. at 479-80. Similarly, in Early Detection Center, the court determined that “[ajlthough the statutory laws relating to general corporations are applicable to professional corporations, the professional corporation laws take precedence over any provision of the law regulating general corporations.” 248 Kan. at 876. Meinhardt involved the application of a specific statute specifying prejudgment interest in a condemnation action and a general statute regarding post-judgment interest. 8 Kan. App. 2d at 473-74. Each case the landowners cite involved the' court’s choice between general statutes that might apply to a situation and a statute that specifically addressed the issue before the court. In such cases, Kansas law holds that the specific statute controls. We are not faced with such a choice in this case.
The primary case on which the landowners rely states that “statutes complete in themselves, relating to a specific thing, take precedence over general statutes or over other statutes which deal only incidentally with the same question.” Szoboszlay, 233 Kan. at 479. The Kansas Storage Tank Act is not “complete in itself” with respect to the issue of cleanup costs. Reimbursement from the UST Fund is not automatic, but is contingent upon complying with various statutory requirements. See K.S.A. 65-34,119. Even when reimbursement is available, the Fund does not cover all costs associated with petroleum contamination. See K.S.A. 65-34, 118(d); K.S.A. 65-34, 119(a), (b); K.S.A. 65-34, 120. The Act does not cover reduction in property value attributable to risk or stigma associated with the contamination that may remain after the property is cleaned up to KDHE’s satisfaction.
In further support of their position, the landowners rely on Department of Health v. Hecla Min. Co., 781 P.2d 122 (Colo. App. 1989). They contend that Hecla Mining stands for the proposition that funding of the cost of environmental remediation should be pursued in an action brought pursuant to the statute specifically enacted to address such contanimation. Reliance on Hecla Mining is misplaced.
Hecla Mining was a condemnation action brought pursuant to specific statutory authority for states, to condemn uranium mill sites for the purpose of cleaning up radiation contamination. 781 P.2d at 124-25 (citing 42 U.S.C. § 7914[a] [Supp. II 1978] and Colo. Rev. Stat. § 25-ll-303[l][d][1982]). The landowners argue that because the State in Hecla Mining filed its condemnation action pursuant to that specific statutory authority, Hecla Mining supports their contention that the City’s only recourse for dealing with the petroleum contamination on tracts 5 and 6 is the recourse provided by the Kansas Storage Tank Act.
Hecla Mining requires no such conclusion. First, Hecla Mining did not hold that condemnation pursuant to the statutory authority was the State’s only option. The court simply did not address that issue. Second, the Kansas Storage Tank Act has no comparable condemnation provision. Third, as noted above, reimbursement from the Fund is not automatic, but is contingent upon complying with various statutory requirements. See K.S.A. 65-34, 119. Fourth, even when reimbursement is available, the Fund does not cover all costs associated with petroleum contamination. See K.S.A. 65-34, 118(d); K.S.A. 65-34, 119(a); K.S.A. 65-34, 120. The Act does not address what appears to be the primary cost at issue here—the reduction in value attributable to stigma and risk.
Equitable Estoppel Instruction
In Holley v. Allen Drilling Co., 241 Kan. 707, Syl. ¶ 4, 740 P.2d 1077 (1987), we defined equitable estoppel as'
“the effect of thé voluntary conduct of a person whereby' he is precluded, both at law and in equity, from asserting rights against another person relying on such conduct. A party asserting equitable estoppel must show that another party, by its acts, representations, admissions, or silence when it had a duty to speak, induced it to believe certain facts existed. It must also show it rightfully relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such' facts.”
The landowners claim that the City should be estopped from claiming any reduction in property value due to contamination because it did not timely disclose the existence of the contami nation to the landowners, which' deprived the landowners of an opportunity to mitigate the property damage.
The landowners acknowledge that in order for a party to be estopped by silence, the complaining party must show (1) the silent parties’ intent to mislead or Willingness to deceive, (2) knowledge or reason to suppose thát someone is relying on that silence, and (3) as a result of that reliance, that someone is acting or about to act as he- or she would not otherwise act. See, e.g., Turon State Bank v. Bozarth, 235 Kan. 786, 790, 684 P.2d 419 (1984). The landowners then claim that the court should have instructed the jury on equitable estoppel because: (1) Terracon Environmental, Inc., the City’s consultant, told the lessee of tract 5 that it would notify the lessee if it “found anything”’and did not notify the lessee when it found contamination; (2) the City knew of the contamination as early as March 1989, but no one told the landowners until days before the condemnation action was initiated; (3) Terracon admitted it knew the tanks were leaking in May 1989 and that they would have continued to leak until removed, thereby exacerbating the problem; and (4) the landowners thereby were deprived of the opportunity to mitigate the damage. '
“A party is entitled to an instruction explaining its theory of the case where there is evidence to support it.” Guillan v. Watts, 249 Kan. 606, 617, 822 P.2d 582 (1991). The record in this case does not support the landowners’ claim that they were entitled to an instruction on equitable estoppel.
The evidence at trial indicated that both tracts 5 and 6 had been operated as service stations. Robert Sholar, an environmental engineer with Terracon, testified on behalf of the City about the contamination and cleanup methods. In the course of its investigation of the,site, Terracon determined that there was soil and groundwater contamination ■ at the site.
Sholar testified'that the information about the nature and extent of contamination was developed through a phased series of environmental assessments. Normally, a phase I environmental assessment does not require sampling or testing, but includes a site visit and the collection of information about the property from regulatory authorities. If the results of those efforts indicate that contamination may be present, then Terracon recommends a phase. II assessment, which includes intrusive sampling of whatever environmental media the phase I assessment indicated might be contaminated.
In this case, the phase I assessment was a combination of the typical phase I assessment (site visit and collection of information from regulatory authorities) and some intrusive sampling because the presence of USTs suggested possible contamination. The intrusive sampling here involved several soil borings to specific depths and installation of four groundwater monitoring wells, The soil borings provided information about the characterization of soils, hydrology of the site, and soil contamination.
After phase I, KDHE agreed with Terracon that contamination was present, that the available data did not indicate the scope of the problem, and that additional work was needed to define the scope of the problem and determine the appropriate remediation. Terracon then conducted a phase II assessment involving additional soil borings and groundwater monitoring wells. The phase II assessment also was done in phases—Terracon installed half of the deep water wells and then sent the data to KDHE to see if additional wells were necessary. Additional deep wells along the perimeter of the property did not indicate that contamination was migrating off site.
The soil and groundwater contamination was at or above KDHE “action levels,” levels at which KDHE requires cleanup. KDHE required soil and groundwater remediation. Terracon prepared three remediation options for KDHE’s review. Option 1 involved very limited removal and treatment of soil and required about 12 years of surface groundwater treatment and 15 years for deep groundwater treatment. Option 2 required removal of contaminated soil, some of which would be disposed of off site and some of which would be treated on site by aeration. Option 2 required 3-5 years for surface groundwater treatment and 10 years for deep groundwater treatment. According to Sholar, if one considers inflation rates, option 2 is the better choice economically. Option 3 required removal of more soil and was the most expensive option proposed. Terracon recommended and KDHE selected option 2.
The option 2 remediation plan ultimately selected by the City and KDHE included:
(1) a groundwater recovery or “interceptor” trench to intercept contaminated groundwater so that it could be pumped to a treatment center before discharge;
(2) removal and off-site disposal of some contaminated soil;
(3) on-site treatment (by aeration) of some contaminated soil;
(4) removal of USTs and lines; and
(5) removal of asbestos.
The court allowed evidence of the total cost of option 2. Evidence of the amount of cleanup costs that were not reimbursable from the Fund also was admitted. As discussed earlier in this opinion, if owners and operators of storage tanks comply with the Act’s requirements, the Fund will reimburse most cleanup costs except the cost of the actual physical removal of the tanks and surrounding concrete. Because the Fund covers only costs attributable to UST releases, it does not reimburse other cleanup costs, such as the cost of asbestos or solid waste removal.
According to Sholar’s testimony at trial, the nonreimbursable expenses at the Overland Truck Plaza site, tract 6, totaled $46,150 “under the assumption that environmental assessment costs are reimbursable.” At the Apeo site, tract 5, $15,450 would not be reimbursable.
Several serious problems exist with the landowners’ estoppel theory. Problems listed below support a conclusion that the trial court did not err in refusing to instruct the jury on equitable estoppel.
First, Robert Sholar, the only representative of Terracon who testified, testified that he did not recall telling the lessee of tract 5 that he would notify the lessee if Terracon “found anything.” Although Bruce Craig, the lessee of tract 5, testified that Sholar and Bob Fine, Terracon representatives, said they would call him if they found something on the property, Sholar’s testimony makes that a disputed fact. When Craig called Terracon in June of 1989, he was told that it had not yet compléted its study. The evidence supports that statement.
Second, Sholar did not admit the tanks were leaking at the time he prepared his May 1989 report or that they would have continued to leak until they were removed from service. Contrary to the claim of the landowners, Sholar specifically declined to express an opinion about whether the tanks were leaking at the time he prepared the May 1989 report:
“Q: And specifically you suspected that the underground storage tanks were leaking; correct? Or the distribution lines or both?
“A: I don’t think we had any conclusion as to they are leaking, meaning leaking at present. We may have at that time had some reason to believe that they had leaked at least some time in the past.
“Q: And if they had leaked in the past, it was likely that they were leaking at that time?
“A: Well, not necessarily.”
Despite, counsel’s attempts to secure an unequivocal admission that if the tanks were leaking in May 1989, they would continue to leak until removed, Sholar equivocated a great deal:
“Q: And if, in fact, those tanks were corroded and were leaking in May of 1989 when your report was prepared, they would have continued to leak and further contaminate the property until they were removed from service; correct?
“A: As I think I have stated previously, if they were leaking, if they • ■ remained in service, if the level of product in the tank was above the leak hole in the tank, and if there was no higher hydrostatic pressure outside the tank, a water level above the leak level, assuming all those conditions were favorable towards the leak, I would have to say a leak would continue.
“Q: So the answer is yes?
“A: Given those assumptions, the answer is yes.”
Thus, the landowners’ efforts to establish an express promise by the City’s agent (Terracon) to disclose the results of its investigation depend on a disputed fact, not uncontroverted evidence as the landowners claim. Although even controverted evidence might support giving an instruction, Terracon’s alleged “promise” was made to one lessee on one of the tracts at issue. Such a statement would not necessarily create a duty of the City to any Or all of the landowners.
Moreover, the City has a defensible position that it did timely disclose the final results. The assessment was done in phases. iUthough the initial round of sampling disclosed the existence of contamination, additional investigation was necessary to determine the scope of the problem. A May 1989 report from Terracon to the City indicated that there was some contamination on both sites. A September 1989 réport expressed doubt about whether groundwater treatment would be necessary; a November 1989 report contained information on the groundwater flow; and a January 22, 1990, report contained the three remediation options. The landowners received the January 22, 1990, report in March 1990. The investigation was not complete until that January report was finished..
As the City notes, a party who asserts estoppel must show prejudice. Ford v. Willits, 9 Kan. App. 2d 735, 745, 688 P.2d 1230 (1984). Accord Holley, 241 Kan. 707, Syl. ¶ 4 (party asserting estoppel must show rightful reliance and that it would be prejudiced if the other party is not estopped); Turon State Bank, 235 Kan. at 790 (party asserting estoppel must show that as a consequence of its reliance it is acting or will act as it would not otherwise act). The landowners have not shown that they were prejudiced by the City’s silence.
The prejudice the landowners claim is that the problem was exacerbated by the City’s delay in informing the landowners of the problem and that the landowners were deprived of the opportunity to mitigate the damage. The evidence suggests that the contamination occurred over a long period of time. The properties had been operated as gas stations for 25 to 30 years. There was evidence of deep bedrock groundwater contamination.
There was some evidence that some of the tanks that were removed had large holes, which might support a conclusion of leakage between May 1989 and March 1990. Given the deep widespread contamination and the long-term use of the property, it appears that the bulk of the problem did not occur in a few months. Moreover, Sholar testified that whether the tanks leaked between May 1989 and the date of removal depended on several other factors (such as whether the product level was above the hole and whether there was hydrostatic pressure).
In addition, the landowners could not have fixed the contamination problem in the months between the May 1989 report and March 1990 (when the landowners learned of the contamination). The Act requires that KDHE approve a corrective action plan before reimbursement is available, and a plan cannot.be developed until the nature and extent of the contamination is known. Finally, the landowners continue to insist that (a) they are not liable for the cleanup costs and (b) the contamination should not affect property values. Given this, it is indeed difficult to conceive of how the landowners’ alleged reliance on the City’s silence caused them to act as they otherwise would not have acted.
Exclusion of Testimony of Thomas Glinstra
At trial, the landowners proffered that Thomas Glinstra, the Olathe city attorney, would testify that the City had acquired property that was on the EPA’s list of contaminated sites but did not investigate contamination on that property and that the City’s perception of the contamination’s impact on the value of tracts 5 and 6 had changed over time. The trial court ruled that this evidence was not admissible because it was not relevant.
' A trial court’s decision concerning the admissibility of evidence will not be disturbed on appeal absent a showing of abuse of discretion. Ryan v. Kansas Power & Light Co., 249 Kan. 1, 11, 815 P.2d 528 (1991); see Enlow v. Sears, Roebuck & Co., 249 Kan. 732, Syl. ¶ 9, 822 P.2d 617 (1991). “An abuse of discretion exists only when no reasonable person would take the view adopted by the trial court.” Enlow, 249 Kan. 732, Syl. ¶ 9. This general principle applies to rulings on the relevancy of evidence. Tucker v. Lower, 200 Kan. 1, 6, 434 P.2d 320 (1967).
The issue before this court is thus whether the trial court abused its discretion in excluding Glinstra’s testimony about the City’s purchase of other contaminated property and its changing perception about the impact of the contamination on the value of tracts 5 and 6. Evidence is relevant if it has any tendency in reason to prove any material fact. K.S.A. 60-401(b). The landowners argue the material fact that the excluded evidence tends to prove is that the City’s appraisers were not credible witnesses.
The landowners argue that the City’s failure to consider petroleum contamination on adjacent property indicates that the City did not perceive contamination as detrimental to property value, which in turn diminishes the City’s appraisers’ credibility. The fact that the City investigated potential contamination on tracts 5 and 6 and did not investigate contamination on adjacent property that was on an EPA list of contaminated property is not alone sufficient to make the evidence relevant to the City’s appraisers’ credibility. First, and most importantly, there is no indication that the same appraisers evaluated that other property, which makes the impact of this evidence on the City’s current appraisers’ credibility minimal. At best, the evidence would show only that the City responded differently to other contaminated property. Moreover, even if the same appraisers had appraised both properties, there was no indication that the appraisers did not consider the contaminated state of the other property in assessing its value. There also is no indication that the other property was contaminated by petroleum or that it had long been property on which a potentially pollution-producing industry had operated. Thus, there is no indication that the same potential for extensive, long-term, below-surface contamination existed. Finally, if the property was on an EPA list of contaminated properties, the EPA may have already investigated the contamination and made the results of its investigation available to the City.
Similarly, reasonable people could differ about the relevance of the proffered testimony of Glinstra about the City’s allegedly changing approach to the contamination’s impact on the value of tracts 5 and 6. The landowners’ claim seems to be that the City first believed that it was entitled to a dollar-for-dollar offset of cleanup costs and that it only started considering stigma and risk when the Act was amended so that it was eligible for reimbursement from the Fund. Thus, the landowners seem to be claiming that the City’s appraisers concocted the notion that stigma and risk would decrease the property’s value when the possibility of reimbursement from the Fund eliminated the prospect of a dollar-for-dollar offset.
The landowners contend that a difference between what the City believed at one point in time and what its appraisers did at a later time affects the appraisers’ credibility. The proffered testimony only indicated that it was the City’s intent “to assert a claim of a dollar-for-dollar offset against the properties.” The Act was amended in 1989 to permit possible reimbursement for some of those costs, and in January 1992, the City’s experts testified that the property value was reduced because of stigma and risk. The fact that the City thought it was entitled to a dollar-for-dollar offset for cleanup costs before the Act was amended to create even the possibility of reimbursement is not entirely unreasonable, nor is it particularly relevant. The City’s failure to articulate (or perhaps even realize) in 1989 that the properties’ values might be reduced because of risk or stigma is not surprising or particularly relevant. The City hired experts to determine the impact of contamination on property value. In short, the fact that the City thought one thing in 1989 and its experts had an additional, but not mutually exclusive, notion in 1992 does not support the conclusion that the experts’ testimony is not credible.
Even if the testimony would have stated that the appraisers thought in . 1989 that the City should get a dollar-for-dollar offset and later reduced the value of the property because of stigma and risk, it would hot necessarily be relevant to credibility. First, there is no indication that the appraisers would not have reduced the value for stigma and risk in addition to the dollar-for-dollar offset if the dollar-for-dollar offset had remained available! Both of the City’s appraisers reduced the value for unreimbursable cleanup costs in addition to stigma and risk. Second, the appraisers determined it was appropriate to reduce the value for stigma and risk as a result of their study of the property and the contamination’s impact on other comparable property values. It was an opinion formed over time after investigation. The trial court did not err in excluding the testimony as irrelevant.
Exclusion of Testimony of Robert Sholar
The landowners contend the court erred in excluding Sholar’s response to the question whether the City had instructed him not to fell the landowners about the contamination. As noted in the discussion of Issue' III above, the trial court’s decision to exclude testimony as irrelevant will not be reversed absent an abuse of discretion. If reasonable people could differ about the relevance of the evidence, this court will not conclude that the trial court abused its discretion. The landowners contend that the excluded evidence had a tendency to prove the City intended to mislead or deceive the landowners into doing nothing about the contamination by keeping from them the existence of the contamination.
Generally, this court will not reverse a judgment because of the erroneous exclusion of evidence unless a party proffers the evidence. See, e.g., Enlow, 249 Kan. 732, Syl. ¶ 10; K.S.A. 60-405. Because the landowners did not proffer the excluded evidence, we will not reverse the judgment.
Jury Instructions
The landowners argue on appeal that a 10% reduction was contrary to the court’s instruction No. 4, which told the jury in pertinent part to “consider all the factors actually bearing upon value which by the evidence were shown to exist, not as separate items, but.only as they as a whole affect market value.” Instruction No. 4 was based upon PIK Civ. 2d 11.03. The landowners contend that the jury considered contamination as a separate item and allocated a particular value to it (10%), which was then subtracted from the value of the property. Thus, the landowners contend that the jury failed to follow the instructions of the court in arriving at a value for the property taken.
The landowners did not object to the verdict at trial and did not preserve this issue for appeal. We have held that absent an objection before the jury is discharged, a party cannot later assert an objection to the verdict. Kitchen v. Lasley Co., 186 Kan. 24, 28, 348 P.2d 588 (1960).
However, upon consideration of the issue raised, we do not believe that the jury’s 10% reduction for contamination was actually contrary to the court’s instruction. The court instructed the jury to consider the factors “not as separate items, but as they as a whole affect market value.” The statute and case law on which this instruction is based suggest that “as they as a whole affect market value” means “to the extent they affect market value.” K.S.A. 26-513(d), which describes factors to be considered in determining just compensation, provides that pertinent factors “are not to be considered as separate items of damages, but are to be considered only as they affect the total compensation.” In addition, Rostine v. City of Hutchinson, 219 Kan. 320, 323-24, 548 P.2d 756 (1976), provides that “improvements be considered only to the extent they enhance the value of the whole property and not as separate items.” By reducing the property value by 10% because of the contamination, the jury considered the extent to which the contamination affected the total value of the property. The 10% figure has meaning only as it relates to the whole. It appears from the juror’s comment that the jury merely reduced the property value by 10% to account for the contamination. In fact, the l-esponse of the juror was that “the whole thing was 10%. We didn’t divide it up per se. The potential risk involved was more important than the stigma.”
Finally, K.S.A. 60-441 prohibits the use of evidence concerning the mental processes by which a verdict was determined. In all likelihood, it was an accident that the judge’s dialogue with the jurors even appears in the record. The judge indicated that he was curious about how they treated the contamination issue because it might be useful to him in settlement discussions on other cases. The jurors were not sworn as witnesses, and their verdict already had been accepted. The City is correct that the juror’s statements concern “the mental processes by which the verdict was determined.” Such evidence is not admissible in a proceeding concerning the validity of the verdict. See, e.g., K.S.A. 60-441; Miller v. Zep Mfg. Co., 249 Kan. 34, 47, 815 P.2d 506 (1991) (jurors’ alleged statements that some of them agreed to find plaintiff less than 50% negligent if damages were kept low were inadmissible because they involved the jury’s mental processes).
One final comment needs to be made about the City’s motion to dismiss the appeal. The City claimed that no notice of appeal had been filed with respect to tract 6 and that the landowners’ failure to notify the lessees of the appeal warrants dismissal of the appeal. We have determined that the landowners have met procedural requirements for effecting this appeal, and we reaffirm our prior decision to deny the City’s motion to dismiss.
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The opinion of the court was delivered by
McFarland, J.:
This is an appeal from an award of punitive damages entered in an action by the beneficiaries of a trust for recovery of damages for oil and gas investments made by the Trust.
The factual background is complex and is set forth in Gillespie v. Seymour, 250 Kan. 123, 823 P.2d 782 (1991), hereinafter re ferred to as Gillespie I. Originally, punitive damage awards were entered as follows:
For the period prior to July 1, 1987:
Dorothea Seymour $2,000,000
Paul A. Seymour, Jr. $2,000,000
Paul A. Seymour, III $ 25,000
For the period after July 1, 1987:
Dorothea and Seymour, Jr., jointly $ 89,250.
In Gillespie 1, we held the entry of punitive damage awards against Dorothea and Paul Seymour, III, were improper and reversed the same. As to the punitive damage awards against Paul Seymour, Jr., we stated:
“Seymour’s conduct relative to the Trust’s investments in Arrowhead has been discussed extensively elsewhere in this opinion and little would be gained by its repetition herein. It is sufficient to say that his egregious conduct as found by the trial court is legally adequate to support a punitive damage award.
“This brings up to examination the amount of the punitive damage awards entered against Seymour.
“K.S.A. 1990 Supp. 60-3701 provides, in pertinent part:
‘(e) Except as provided by subsection (f), no award of exemplary or punitive damages pursuant to this section shall exceed the lesser of:
(1) The annual gross income earned by the defendant, as determined by the court based upon the defendant’s highest gross annual income earned for any one of the five years immediately before the act for which such damages are awarded; or
(2) $5 million.
‘(f) In lieu of the limitation provided by subsection (e), if the court finds that the profitability of the defendant’s misconduct exceeds or is expected to exceed the limitation of subsection (e), the limitation on the amount of exemplary or punitive damages which the court may award shall be an amount equal to IV2 times the amount of profit which the defendant gained or is expected to gain as a result of the defendant’s misconduct.
‘(g) The provisions of this section shall not apply to any action governed by another statute establishing or limiting the amount of exemplary or punitive damages, or prescribing procedures for the award of such damages, in such action.
‘(h) As used in this section the terms defined in K.S.A. 60-3401 and amendments thereto shall have the meaning provided by that statute.
‘(i) The provisions of this section shall apply only [to] an action based upon a cause of action accruing on or after July 1, 1987 and before July 1, 1988.’
“The trial court found the plaintiffs’ cause of action herein accrued in August 1987. Without stating any legal basis therefor, the trial court circumvented the operation of the statute by entering two separate punitive damage awards based on the effective date of the statute (July 1, 1987). The award for punitive damages based on conduct occurring prior to July 1, 1987, was made without application of the statute, and the post-July 1 award was presumably in compliance with the statute, although we cannot see from the record the basis for the $89,250 calculation.
“We hold that the determination of the punitive damage award against Seymour was erroneous. Only one award of punitive damages may be entered, and it must be made in accordance with the mandates of K.S.A. 1990 Supp. 60-3701. The awards of punitive damages entered against Seymour must be reversed and the case remanded for entry of a punitive damage award determined pursuant to K.S.A. 1990 Supp. 60-3701.” 250 Kan. at 145-46.
On remand, no additional evidence was submitted on the issue of punitive damages. Oral arguments were heard and briefs filed. The district court’s decision thereon is set forth in its memorandum opinion as follows:
“MEMORANDUM OPINION
“I have been directed by the Supreme Court to make a single punitive damage award. This ruling applies to Paul Seymour, Jr. I previously made awards for punitive acts before July 1, 1987 and for punitive act[s] after July 1, 1987. fiuly 1, 1987 is the effective date of K.S.A. 60-3701.)
“The previous award of punitive [damages] was for $89,250 subsequent to July 1, 1987 and for $2,000,000 prior to July 1, 1987.
“The Court finds that the profitability of defendant’s misconduct exceeds the limitation of K.S.A. 60-3701(e). The profitability existed for many years more than the number of years set out in Section (e). The acts began in 1974 and continued until 1987. Plaintiffs suggest that the limitation of section (f) is $6,439,039.
“My previous award as to Paul Seymour, Jr., was $2,089,250. Other awards of punitive damages were made but were reversed on appeal.
“I will not change the amount of the award because of the reversals.
“Punitive damages are awarded to plaintiff against Paul Seymour, Jr., in the amount of $2,089,250.00.
“Judgment is entered for plaintiffs against defendant, Paul Seymour, Jr., for punitive damages in the amount of $2,089,250.00.”
The parties agree that an appropriate award under K.S.A. 1992 Supp. 60-3701(e)(l) would be $865,861 (Seymour’s highest gross annual income in the statutory five-year period). The district court stated that the profitability of defendant’s misconduct exceeded the limitation of K.S.A. 1992 Supp. 60-3701(e)(l) and that the award should be entered under K.S.A. 1992 Supp. 60-3701(f). The award was fixed at $2,089,250—the exact amount of the aggregate punitive damage award entered against Seymour, Jr., in Gillespie I. There is no indication as to how this figure was reached under subsection (f) of the statute. We have only the enigmatic statement, “I will not change the amount of the award because of the reversals.”
What the district court characterized as plaintiffs’ suggestion that the maximum award under subsection (f) is $6,439,039 is apparently based upon one and one-half times the compensatory damages entered in Gillespie I. On appeal, plaintiffs argue the award is supportable on the basis of the $2.6 million invested in Arrowhead Petroleum, Inc., by the Trust which, when multiplied one and one-half times, comes to $3.9 million. There is no punitive damage award against Arrowhead, of which Seymour owns 51 percent. Seymour contends there is no evidence admitted from which his “profit” could fairly be determined, as the gross receipts to Arrowhead from the Trust, with no deduction for expenses, in no way equate to Seymour’s “profit” on the transaction. There is nothing to indicate how the trial court defined or computed Seymour’s profit. Little would be gained by speculating on how the district court arrived at the punitive damage award imposed on remand.
The enactment of K.S.A. 1992 Supp. 60-3701 (and its companion K.S.A. 1992 Supp. 60-3702) represents a substantial change in the award of punitive damages in Kansas. Prior thereto, the trier of fact determined the amount of damages based upon rather nebulous factors. Appellate review thereof was limited. We stated the general rules relative to punitive damages in Binyon v. Nesseth, 231 Kan. 381, 386, 646 P.2d 1043 (1982), as follows:
“An appellate court will not find a punitive damage award excessive unless it is of a size to shock the conscience of the appellate court. See, e.g., Cantrell v. R. D. Werner Co., 226 Kan. 681, 686, 602 P.2d 1326 (1979); Henderson v. Hassur, 225 Kan. 678, 697, 594 P.2d 650 (1979). The Court of Appeals in 7 Kan. App. 2d at 118 quoted Henderson v. Hassur on principles of law governing the extent of punitive damages allowed. That portion of Henderson reads:
‘It is difficult, if not impossible, to lay down precise rules by which to test the question of when a verdict for punitive damages is excessive. Motor Equipment Co. v. McLaughlin, 156 Kan. 258, 273, 133 P.2d 149 (1943). Punitive damages are imposed by way of punishing a party for malicious or vindictive acts or for a willful and wanton invasion of another party’s rights, the purpose being to restrain him and to deter others from the commission of like wrongs. Koch v. Merchants Mutual Bonding Co., 211 Kan. 397, 402, 507 P.2d 189 (1973). The law establishes no fixed ratio between actual and exemplary damages by which to determine excessiveness. In assessing punitive damages the nature, extent, and enormity of the wrong, the intent of the party committing it, and all circumstances attending the transaction involved should be considered. Any mitigating circumstances which may bear upon any of the above factors may be considered to reduce such damages. Will v. Hughes, 172 Kan. 45, 55, 238 P.2d 478 (1951). In fixing an award of punitive damages a jury may consider the amount of actual damages recovered, defendant’s financial condition and the probable litigation expenses. Ayers v. Christiansen, 222 Kan. 225, 229, 564 P.2d 458 (1977).’ 225 Kan. at 694.”
Under K.S.A. 1992 Supp. 60-3701, a bifurcated proceeding is established. The trier of fact determines if punitive damages should be awarded. The court, in a separate proceeding, then establishes the amount thereof. A substantial list of factors is set forth in the court’s consideration in determining the amount of the award. Limitations on the amount of the award are set forth in subsections (e) and (f) as follows (repeated for convenience):
“(e) Except as provided by subsection (i), no award of exemplary or punitive damages pursuant to this section shall exceed the lesser of:
(1) The annual gross income earned by the defendant, as determined by the court based upon the defendant’s highest gross annual income earned for any one of the five years immediately before the act for which such damages are awarded; or
(2) $5 million.
“(f) In lieu of the limitation provided by subsection (e), if the court finds that the profitability of the defendant’s misconduct exceeds or is expected to exceed the limitation of subsection (e), the limitation on the amount of exemplary or punitive damages which the court may award shall be an amount equal to lVa times the amount of profit which the defendant gained or is expected to gain as a result of the defendant’s misconduct.”
We believe that it is the clear legislative intent of K.S.A. 1992 Supp. 60-3701(e) and (f) that sufficient findings of fact be made by the district court to afford meaningful appellate review of the size of the award. If the award entered had been $865,861 under (e)(1) it would have been sufficient herein to state that amount, as the parties had agreed on the figure. The district court opted, however, to award punitive damages subject to the restriction in subsection (f). It was, therefore, incumbent upon the district court to make sufficient findings of fact to afford meaningful appellate review. This, obviously, did not occur herein and the punitive damage award against Paul Seymour, Jr., must, again, be reversed and the matter remanded for redetermination. Under the totality of the circumstances, we conclude that, upon remand, the matter should be assigned to a different district court judge.
The judgment 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
Abbott, J.:
This is an appeal by numerous boards of county commissioners and county appraisers from the trial court’s denial of their motions to intervene in a lawsuit filed by the Attorney General of the State of Kansas against the Kansas Department of Revenue and its Secretary, Mark Beshears (Secretary); David C. Cunningham, Director of the Division of Property Valuation (Director); and the State Treasurer, Sally Thompson.
Highly summarized, the Attorney General commenced an action in June 1992, alleging that “the valuation and assessment of real property throughout the State of Kansas is not in substantial compliance with the law” and that the defendants failed to administer and supervise adequately the statewide reappraisal program.
The Attorney General sought a declaratory judgment that current statewide reappraisal is unconstitutional and is not in substantial compliance with the law. The Attorney General requested an injunction to compel a statewide reappraisal to ensure all real property “is appraised at fair market value on a uniform and equal basis” and to enjoin permanently “the defendants from receiving, accepting, collecting or attempting to collect” certain property tax revenues from a county in which the appraisal system is not in substantial compliance “with the Constitutional requirement of uniform and equal fair market appraisal.” The property tax revenues at issue are those pursuant to K.S.A. 76-6b01 (statewide mill levy to support state institutions of higher education), K.S.A. 1992 Supp. 76-6b04 (statewide mill levy to support state institutions caring for the mentally ill and retarded, caring for and providing vocational training for the handicapped, or caring for deprived and delinquent children), and K.S.A. 72-6431 (statewide mill levy to support school finance).
The defendants answered, denying that they had failed to perform their duties and that the valuation and assessment of real property throughout the state was not in substantial compliance with the law.
With the agreement of the Attorney General and the defendants, the trial court subsequently filed an order for corrective action. The trial court stated it had continuing subject matter jurisdiction and made numerous findings relating to the defendants’ statutorily authorized duties. The court decreed that if anyone failed to cooperate or comply with the Director’s or the Secretary’s directives, that individual “shall be mandamused or otherwise brought before [the trial court] to compel compliance with or for any other remedies available to the Secretary or Director by law.” Also included in the court’s order was a directive for the Department of Revenue to develop “a valid sales ratio study, as required by 1992 Substitute for House Bill 2816, to pinpoint those classes and subclasses of property in each county that require further appraisal review” and to “establish minimum standards of education and training for county personnel performing appraisal analysis functions.’ ” It appears the trial judge, with the parties’ consent and by agreement, ordered the defendants to follow legislative direction, i.e., to follow the law.
Several motions to intervene then were filed by the proposed intervenors, the boards of county commissioners and the county appraisers for Butler, Coffey, Finney, Grant, Greeley, Hamilton, Harvey, Haskell, Johnson, Kearny, Lyon, McPherson, Meade, Morton, Ottawa, Rice, Saline, Stanton, Stevens, and Wyandotte Counties. (The proposed intervenors requested that the remaining boards of county commissioners and county appraisers be added as additional party defendants. That was not done, and that issue is not before us.) The trial court denied all motions to intervene.
The proposed intervenors, with the exception of those from Johnson County, whose motion to appear as amicus curiae was granted, appealed from the trial court’s denial of their motions to intervene. The appeal was transferred from the Court of Appeals to this court, pursuant to K.S.A. 20-3018(c).
The proposed intervenors claim the trial court erred in denying their motions to intervene pursuant to K.S.A. 60-224(a). That statute provides, in pertinent part:
“(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter substantially impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”
An order denying an application to intervene is a final, appealable order. Campbell American Legion v. Wade, 210 Kan. 537, Syl. ¶¶ 6, 7, 502 P.2d 773 (1972). The standard of review is abuse of discretion. Although intervention of right is construed liberally in favor of intervention, three factors must be present: substantial interest in the subject matter, inadequate representation of the proposed intervenors interest, and timely application. Herrmann v. Board of Butler County Commrs, 246 Kan. 152, 155, 785 P.2d 1003 (1990).
We begin by addressing whether the proposed intervenors had a substantial interest in the subject matter. In considering the motions for intervention, the trial court initially noted the proposed intervenors had the burden of persuading the trial court of their “right to participate in state-level policy and administrative decisions” because the Attorney General filed suit against only “state-level officers and entities charged with making, and ultimately enforcing, policy decisions affecting property taxation throughout Kansas” and because the Attorney General did not allege wrongdoing on the part of any particular county or county official. The trial court found the proposed intervenors did not have a substantial interest in the subject matter of the litigation, reasoning the legislature exclusively delegated “all powers relating to property taxation and valuation” to the Department of Revenue and the Director of Property Valuation. See K.S.A. 1992 Supp. 75-5105 (the Secretary of Revenue supervises the Director of Property Valuation, who administers the Division of Property Valuation); K.S.A. 79-1402 (the Director has “general supervision of the system of taxation throughout the state”); K.S.A. 1992 Supp. 79-1476 (the Director administers and supervises “a statewide program of reappraisal of all real property located within the state”).
In particular, the trial court relied upon “the depth, extent, and breadth of the Director’s powers.” See, e.g., K.S.A. 79-1401 (the Director has “general supervision and direction of the county assessors . . . and shall regulate and supervise the due performance thereof”); K.S.A. 79-1403 (in the course of an investigation, the Director has authority “to require local officers whose duties pertain to the assessment and collection of taxes” to report to the Director in the form prescribed); K.S.A. 1992 Supp. 79-1404 First (the Director has “general supervision over the administration of the assessment and tax laws of the state, over the county and district appraisers, [and] boards of county commissioners ... to the end that all assessments of property” are “relatively just and uniform” and assessed at “actual and full cash market value”); K.S.A. 1992 Supp. 79-1404 Second (the Director has authority “[t]o confer with, advise and direct” local officials statutorily charged with making levies and assessments); K.S.A. 1992 Supp. 79-1404 Third (the Director is authorized to instigate prosecutions against or to initiate removal from office county officials who fail to comply with the Director’s orders or statutory requirements concerning assessment and taxation of property); McManaman v. Board of County Commissioners, 205 Kan. 118, 126, 468 P.2d 243 (1970) (“the legislature saw fit to vest ultimate supervisory responsibility for the administration of the assessment and tax laws of the state squarely on the Director of Property Valuation with attending enforcement power and authority”). The trial court concluded that, with regard to their taxation functions, the proposed intervenors were “ministerial agents of the State.”
We also note K.S.A. 1992 Supp. 79-1479 requires county appraisers to submit to the Director quarterly progress reports concerning action taken to appraise county property. The statute continues that if the Director determines “any county has failed, neglected or refused to properly provide for the appraisal of property or the updating of the appraisals,” the Director can file a complaint with the Board of Tax Appeals (BOTA). If BOTA finds the county is not in substantial compliance with the law, BOTA can order the Director to assume immediately the duties of the county appraiser until the Director decides the county is in substantial compliance with the law.
The proposed intervenors argue the trial court erred in finding they had no substantial interest in the subject matter of the case. Initially, the proposed intervenors assert the nature of the relief requested alone compels intervention. The Attorney General’s requested relief included a permanent injunction against receiving, collecting, or attempting to collect certain property tax rev enues. According to the proposed intervenors, the power to receive, collect, or attempt to collect property tax revenues resides with county officials. For support, the following is cited:
“School districts and the state as a whole (except for public utilities [K.S.A. 79-5a01, 79-6a01, and 79-1404]) have no assessing power or authority with respect to the valuation of property for tax purposes. By legislative fiat that responsibility is vested in the county, which is charged with the administration of all laws relating to assessment, equalization and collection of real and personal property taxes (K.S.A. 79-141 la). Each county comprises a separate assessment district, and the county assessor, or county clerk acting as assessor, has the duty of assessing all property in the county (K. S.A. 79-1411b, 79-1412a).” (Emphasis supplied by proposed intervenors.) Mc-Manaman, 205 Kan. at 123-24.
“Beginning with the year 1956 the county is hereby declared to be the governmental unit charged with the primary responsibility for the administration of all laws relating to the assessment, review, equalization, extension and collection of real and personal property taxes, except as hereinafter provided.” K.S.A. 79-1411a.
The proposed intervenors suggest the above authority stands for the proposition that the county, not the Director, is primarily responsible for administering tax laws and that the county officials’ powers are substantive and discretionary. Therefore, the proposed intervenors maintain the trial court erred in finding the legislature has conferred all powers relating to property taxation and valuation exclusively upon the Department of Revenue and the Director of Property Valuation.
In McManaman, the plaintiffs owned land situated in a particular school district that encompassed real estate in three counties. The three counties’ rates of assessment were not equal. The plaintiffs’ causes of action pertained “to the inequality and lack of uniformity in the assessment of property within the same taxing district—the school district on the one hand, and the State of Kansas on the other.” 205 Kan. at 120.
The portion of the opinion upon which the proposed intervenors rely must be considered in context with other language in the opinion, which the proposed intervenors fail to discuss. The McManaman court also stated:
“The taxing process of government is made up of three components—the assessment of property, the levy of the tax against the property, and the collection thereof. [Citation omitted.] The assessment and valuation of prop erty has always been considered an incident to the taxing power.” 205 Kan. at 123.
“As we indicated earlier, the primary responsibility for assessment of real estate and tangible personal property subject to taxation rests with the county. . . .
“Of even greater importance, in our opinion, is that the legislature saw fit to vest ultimate supervisory responsibility for the administration of the assessment and tax laws of the state squarely on the director of property valuation with attending enforcement power and authority. (K.S.A. 79-1401, 79-1402, 79-1404, and 79-1405.)” 205 Kan. at 126.
This court then set forth in detail the powers and authority of the Director of Property Valuation. 205 Kan. at 126-27. Based upon the Director’s “clearly defined official duties,” we concluded the Director “has full power and authority to enforce the assessment laws promulgated by the legislature and to insure that all property subject to tax is assessed uniformly and equally.” 205 Kan. at 127.
McManaman does not support the proposed intervenors’ argument. Contrary to their assertion, county officials are not primarily responsible for administering tax laws. The McManaman court concluded, after reviewing the pertinent statutes, that the Director has the ultimate supervisory responsibility for administering assessment and tax laws. See generally Note, Kansas Property Classification and Reappraisal: The 1986 Constitutional Amendment and Statutory Modifications, 29 Washburn L.J. 26, 46-59 (1989)(thorough discussion of statewide reappraisal in Kansas).
Additionally, the Attorney General contends the trial court did not ignore the nature of the relief requested. The Attorney General claims that, even if the trial court had, the nature of the relief requested is irrelevant because the relief requested does not apply to the proposed intervenors in that they are not defendants in this action. If the relief requested is granted, the Attorney General maintains that “only the State treasurer, as the only defendant who actually collects property tax revenue from the levies in issue, would be enjoined from ‘. . . receiving, accepting, collecting, or attempting to collect’ ” the applicable property tax revenues. According to the Attorney General, the relief requested was crafted to avoid disrupting local government operations.
The proposed intervenors also dispute the trial court’s reliance upon League of United Latin Amer. Citizens v. Clements, 884 F.2d 185 (5th Cir. 1989), and Wade v. Goldschmidt, 673 F.2d 182 (7th Cir. 1982). The trial court acknowledged these cases factually were distinguishable from the instant case, but found them persuasive authority for the proposition “that the. proper parties to defend state-level policies and practices are not the political subdivisions of the state, such as cities and counties, but rather are the state-level entities charged with the administration and direction of those policies and practices.”
In Clements, Midland County moved to intervene in a suit challenging Texas’ at-large system of electing state district judges. It was determined Midland County was not a “real party in interest” and did not have a “legally cognizable interest” that justified intervention because Texas counties do not have a role in the at-large system of electing judges. In Texas, the power to create or reshape judicial districts is vested in three legislative bodies, the state legislature, the Judicial Districts Board, and the Legislative Redistricting Board. 884 F.2d at 187-88. The proposed intervenors contend Clements is not persuasive authority because the situations are too diverse: Texas counties have no role in the at-large system of electing judges. In contrast, Kansas counties and county officials are responsible for the valuation and assessment of property.
In Wade, certain Illinois counties and cities sought to intervene as defendants in a suit brought to bring the defendants, the State of Illinois and the United States Department of Transportation, into compliance with federal statutes concerning highway construction. The Seventh Circuit Court of Appeals concluded the applicants had “no direct legally protectable interest that could be impaired and impeded.” 673 F.2d at 186. In reaching that conclusion, the court noted:
“[T]he only focus . . . [of] the ongoing litigation ... is whether the governmental bodies charged with compliance, defendants, have satisfied the federal statutory procedural requirements in making the administrative decisions regarding the construction .... In a suit such as this, brought to require compliance with federal statutes regulating governmental projects, the governmental bodies charged with compliance can be the only defendants.” 673 F.2d at 185.
The proposed intervenors argue that, if anything, Wade supports their position because, here, counties are charged with compliance and county officials suffer the consequences of noncompliance.
The trial court cited Clements and Wade as additional, persuasive authority for its ruling. In finding the proposed intervenors did not have a substantial interest in the subject matter of the case, the trial court relied upon the Director’s statutorily authorized duties and upon the McManaman decision, both of which support the court’s ruling.
Additionally, the proposed intervenors maintain they have a substantial interest in the subject matter of this case because they are “affected parties”—it is the county officials whose actions will be scrutinized and who will have to defend against allegations of substantial noncompliance with the law. Corrective action, if any, will be directed toward county appraisers, and the county is responsible for funding such corrective action. See K.S.A. 1992 Supp. 79-1413a (if BOTA determines property appraisal “is not in substantial compliance with the law and the guidelines and timetables prescribed by the director of property valuation,” BOTA can order a reappraisal of all or part of the property in a county at the county’s expense); K.S.A. 1992 Supp. 79-1482 (“The board of county commissioners . . . is . . . authorized to levy a tax ... in an amount necessary to pay all costs incurred in conducting programs of countywide reappraisal and complying with the provisions of this act.”); see also In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, 13, 687 P.2d 603 (1984) (“Substantial compliance simply means compliance consistent with the purpose of the statute.”).
The problem with this claim is that it is academic and not supported by the record on appeal, which contains no allegations concerning any particular county or county appraiser. Until some action is taken against a particular county or county official, the proposed intervenors are not affected parties and do not have a substantial interest in the subject matter of this case. County officials will have a remedy if and when action is taken against them.
The proposed intervenors’ final argument concerns the existence of a statutory administrative process to resolve disputes between the Director and county officials. See, e.g., K.S.A. 74-2438 (anyone aggrieved by “any finding, ruling, order, decision, or other final action on any case of the . . . director of property valuation” may appeal to BOTA); L. 1992, ch. 131, § 5 (should the board of county commissioners disagree with the ratios determined for the county by the Director of Property Valuation, the board may appeal to BOTA). This process, according to the proposed intervenors, creates a substantial interest that mandates their intervention. Additionally, the proposed intervenors claim the fact the Director’s decisions are not final is further proof the proposed intervenors are not mere rank and file ministerial agents of the State.
The proposed intervenors further contend this statutory administrative process does not protect their interests in the case at bar because the trial court’s order for corrective action creates a potential judicial bypass of administrative remedies. The order provides that county officials not in substantial compliance with the law “shall be mandamused or otherwise brought before [the trial court] to compel compliance or for any other remedies available to the Secretary or Director by law.” As with the previous claim, this contention also is speculative because a judicial bypass of administrative remedies has not occurred. The wording of the order does not preclude exhaustion of administrative remedies. Moreover, the parties to the order have not appealed the order and are, in fact, in agreement with the order. The merits of the order are not before this court.
We cannot say no reasonable person would agree with the trial court’s finding that the proposed intervenors did not have a substantial interest in the subject matter of the litigation. See In re Marriage of Soden, 251 Kan. 225, Syl. ¶ 9, 834 P.2d 358, cert, denied - U.S. -, 121 L. Ed. 2d 540 (1992) (abuse of discretion defined). Because intervention of right pursuant to K.S.A. 60-224(a) requires the occurrence of three factors and because the proposed intervenors lack one of those factors, a substantial interest in the subject matter, there is no reason to address the other two factors.
The trial court did not abuse its discretion in denying the motion for intervention.
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The opinion of the court was delivered by
Six, J.:
This is a first impression products liability case. Four questions concerning a manufacturer’s post-sale duties to warn of danger incident to use of its product have been certified by the United States District Court for the District of Kansas. Our jurisdiction is under K.S.A. 60-3201 (authority to answer certified questions).
The Certified Questions
The four certified questions are:
I. Whether Kansas products liability law recognizes a continuing duty to warn theory of liability requiring manufacturers who learn of a danger incident to the use of their products after the sale of those products to warn ultimate consumers who purchased the products prior to the time the manufacturers learned of the potential danger through warnings disseminated to the manufacturers’ retailers who have continuing contact with the consumers.
II. Whether Kansas products liability law recognizes a continuing duty to warn theory of liability requiring manufacturers who learn of a danger incident to the use of their products after the sale of those products to directly warn ultimate consumers who purchased the products prior to the time the manufacturers learned of the potential danger.
III. Whether Kansas products liability law places a duty to retrofit upon manufacturers who learn of a potential danger incident to the use of their products after the products have been sold.
IV. Whether Kansas products liability law places a duty to recall upon manufacturers who learn of a potential danger incident to the use of their products after the products have been sold.
Answers to the Certified Questions
Because of the infinite variety of products marketed in this state, the following answers are inexorably linked to and amplified by the corresponding portions of the opinion.
We answer the four certified questions as follows:
I. A qualified yes.
II. A qualified yes.
III. No.
IV. No.
The federal court memorandum and order certifying the four questions contains the following statement of facts:
Facts
“The case comes before the court pursuant to several product liability claims brought by the plaintiff against the manufacturers and distributors of the Wil-Rich Field Cultivator (the ‘cultivator’), which is a piece of heavy farming equipment. Among other claims, the complaint alleges that defendants had a continuing duty to retrofit or recall the cultivator and/or to warn the end user of the cultivator of unreasonably dangerous defects which the defendants discovered to exist in the cultivator after its original sale.
“Plaintiff Ryan Patton’s father purchased the cultivator from a Wil-Rich dealer in 1977. The cultivator is 28 feet wide and consists of a main body and two ‘wings.’ The wings are raised and lowered hydraulically by the use of cylinders attached to each wing and controlled from the cab of the tractor. When fully raised the wings are approximately at a 90 degree angle. When raised, the wings are held up by hydraulic pressure if the cylinders are correctly attached and fully charged. The wings can also be held up by a lock pin which is inserted manually. If the hydraulic cylinders are not properly attached and fully charged, the wing will fall rapidly when the lock pin is removed.
“On April 21, 1990, Ryan Patton was changing a hydraulic wing lift cylinder on the cultivator. The wings were fully raised and pinned up by the lock pin. Patton finished changing the cylinder and proceeded to remove the lock pin on the right wing. He did so by standing directly under the raised right wing of the cultivator and pushing up the wing. This relieved pressure on the lock pin and Patton proceeded to pull it out. When he did so the wing fell on him, causing him serious injury.”
Patton’s claims as stated by the certifying court are:
“[Djefendants were subject under Kansas law to a continuing duty to warn plaintiff of dangers discovered by defendants after the date of the sale of the cultivator, and that defendants breached this duty by failing to warn plaintiff of the potentially dangerous condition of the cultivator. Plaintiff also contends that defendants were aware of a retrofit program that had been instituted by John Deere on similarly designed cultivators due to the potential for injuries such as were sustained by Ryan Patton. Plaintiffs contend that Kansas law placed a duty on defendants to recall or retrofit the cultivator once the dangerous condition was discovered, and that defendants breached this duty by failing to implement a program to recall or retrofit the cultivator.”
The case is before the federal district court on defendant Hutchinson Wil-Rich Manufacturing Company’s (HWR) partial motion for summary judgment. HWR submitted a statement of uncon troverted facts. Patton countered with a statement of additional uncontroverted facts. HWR responded by addressing the factual statements of the parties: “If these ‘facts’ were presented at a trial, defendants would dispute the truth of many of them. That is not necessary here. To put this motion in a posture to be granted,- defendants assume, solely for purposes of this motion, that all of the material [facts] asserted by plaintiffs are indeed ‘facts’ and are true.”
We also shall assume the truth of the facts advanced by Patton in his response to HWR’s partial summary judgment motion. We proceed with our analysis on the basis of the certification order as supplemented by additional uncontroverted and relevant facts gleaned from the record.
Lear Siegler, Inc., an additional defendant, has adopted the arguments advanced by HWR. Other defendants have been named because of an alleged relationship with the original manufacturer. HWR denies successor or other liability on any theory. We- assume HWR to be the manufacturer and last seller of the cultivator- The resolution of successor liability and ultimate liability, if any, is the business of the federal district court.
The cultivator received normal scheduled maintenance, and numerous replacement parts were purchased from the authorized dealership between 1977 and the date of the accident. The hydraulic cylinders were repaired by the dealership in September 1987. The dealership kept a list of equipment purchased by its customers. HWR has over the years maintained an organized system for the distribution and sale of its products through its authorized dealership network. The network identifies the name of the dealership, the principals involved in the dealership, and their addresses and phone numbers. HWR utilizes territory managers who call on the dealers on a frequent basis. HWR has written dealer sales and service agreements with its dealers throughout the United States.
Several other individuals have been injured in accidents connected with vertical fold cultivator wings manufactured by HWR. These accidents appear to have occurred as early as 1983. HWR was aware of these accidents. Patton admits that prior to 1977, HWR had no notice of accidents involving cultivator wings falling when the mechanical lock pin on the wing was removed. A sec ondary safety wing latch which was developed in 1983 by Deere & Company, one of HWR’s competitors, was unknown to cultivator manufacturers in 1976. Similarly, the other safety devices which Patton alleges should have been on the cultivator were unknown to the industry in 1976. Deere & Company instituted a mandatory safety improvement program for all vertical fold 90‘ field cultivators in October 1983. The Deere retrofit program became known to John Kehrwald, Vice President of Engineering and Manufacturing at HWR, at some point four or five years after it was initiated. Kehrwald recognized his company had problems with the cultivator wings in 1983. Kehrwald indicated that he believed it was an acceptable risk to choose not to retrofit the HWR cultivators.
Patton stated that there was no way to know whether the hydraulic cylinders are fully charged. Consequently, he believed that after installing a new cylinder, it was safe to remove the lockpin on the wings without doing anything more.
There are no warning labels or decals on the wings of the cultivator. The instruction manual neither details the method by which a cylinder should be changed nor mentions hazards. Patton did not receive any warning concerning hazards or safety modifications from either the dealership or HWR.
HWR’s Suggested Specific Issues
HWR and amici Kansas Product Liability Advisory Council, The Defense Research Institute, and Kansas Association of Defense Counsel assert that it is essential for us to respond to additional questions which focus on K.S.A. 1992 Supp. 60-513(b) as a statute of repose. HWR and the amici contend that Patton’s claims have been abolished by the 10-year limitation of 60-513(b).
We decline to entertain the complex inquiries surrounding the impact of K.S.A. 1992 Supp. 60-513(b) on HWR’s liability. HWR’s suggested additional questions have not been certified.
K.S.A. 60-3203 states:
“A certification order shall set forth the questions of law to be answered and a statement of all facts relevant to the questions certified and showing fully the nature of the controversy in which the questions arose.”
Additionally, HWR has not pled K.S.A. 1992 Supp. 60-513(b) as an affirmative defense in the federal suit. Although not included in the listed affirmative defenses in K.S.A. 1992 Supp. 60-208(c), the statute is an affirmative defense and must be pled. Baumann v. Excel Industries, Inc., 17 Kan. App. 2d 807, 810, 845 P.2d 65, rev. denied March 16, 1993. (HWR indicates that when the “stay order” in the instant action is lifted, it will move for summary judgment based on the statute of repose.)
Patton’s Contentions
Patton crafts the following argument: Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 681 P.2d 1038, cert, denied 469 U.S. 965 (1984), provides authority for the view that manufacturers have a continuing duty of reasonable care concerning ethical (prescription) drugs. The Wooderson duty to warn has been applied to other products as well. See State ex rel. Stephan v. GAF Corp., 242 Kan. 152, 156-57, 747 P.2d 1326 (1987). See also Stratton v. Garvey Internat’l, Inc., 9 Kan. App. 2d 254, 258, 676 P.2d 1290 (1984) (discusses negligence or strict liability for failure to warn of a dangerous condition in a product). The factual circumstances of the particular relationship are determinative, not the single fact of whether the alleged duty arose before or after sale.
The Kansas Products Liability Act (KPLA), K.S.A. 60-3301 et seq., places limitations on a manufacturer’s duty to warn. See K.S.A. 60-3305. Patton responds to the contention of amicus Kansas Product Liability Advisory Council that the legislature is the proper forum to create a continuing duty. Patton reasons that the legislature addressed the manufacturer/seller’s duty and neither excluded common-law liability nor imposed a time limit on the duty to warn.
Factors recognized by other courts as relevant to the imposition of a post-sale duty to warn are present in the case at bar. In Comstock v. General Motors Corp., 358 Mich. 163, 173-78, 99 N.W.2d 627 (1959), the Michigan Supreme Court focused on the dangerousness of the product, holding that there was a post-sale duty to warn of defects in an automobile braking system. Patton also relies on Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826 (Minn. 1988), cert, denied 492 U.S. 926 (1989) (alleged defective truck tire rim), and Cover v. Cohen, 61 N.Y.2d 261, 473 N.Y.S.2d 378, 461 N.E.2d 864 (Ct. App. 1984) (alleged defective throttle spring return in Chevrolet Malibu), which indicate that the post-sale duty to warn is a function of the potential dangerousness of the product.
In the instant action, as in Wooderson, the product, although useful and beneficial, posed a potential danger of great harm. Heavy agricultural equipment can rarely be made 100% safe for all foreseeable uses. HWR received feedback concerning injuries caused by the cultivator. HWR marketed its product through an established network, making it relatively easy to notify the retailers and their customers of dangers in the product which were discovered after sale. The use of agricultural equipment renders farming a dangerous occupation.
Although the duty of a post-sale warning may not be present in all cases, HWR had a duty to transmit a warning to authorized dealers who could then pass the message on to consumers. Alternatively, providing notice directly to product owners better insures that those in need of protection will actually receive the information.
Patton is not claiming that the cultivator was not defective when it left HWR’s hands and later became defective. Rather, it is Patton’s position that the cultivator was dangerous when manufactured. If HWR knew or should have known of the danger at that time, it would have had an obligation to give a warning either under the doctrine of strict liability or under a negligence theory. If the danger in the product which existed at the time of sale had not become known to HWR prior to Patton’s injury, his claims would be restricted to these theories applied solely as of the time of sale. However, because HWR acquired knowledge of the cultivator defect and of the risk of danger after sale, its continuing duty to warn was breached when the warning was not given. Patton is not contending that a manufacturer of a product which is considered safe at the time of manufacture, under then current standards, must later warn prior purchasers when safety standards are upgraded.
Patton applies the Restatement (Second) of Torts § 321 (1964) (duty to act when prior conduct is found to be dangerous) and reasons that HWR sold a cultivator which created an unreasonable risk of causing physical injury. After the sale, HWR acquired knowledge of this risk. It was therefore under a duty to exercise reasonable care to prevent the risk from taking effect.
The duty to recall or retrofit, like the duty to issue a post-sale warning, is encompassed within the continuing duty of reasonable care identified in Wooderson and GAF Corp. The recall/retrofit obligation does not create a new duty to upgrade products to current state of the art. Consequently, the focus of the recall or retrofit cases is on the correction of the defect which existed at the time the product was sold. Recall or retrofit is a means by which a manufacturer can fulfill the continuing duty of reasonable care.
Patton concedes that no Kansas cases directly address the duty to retrofit a dangerous product. The facts of the case at bar demonstrate that (1) the danger of personal injury and death to users of the HWR cultivator was significant; (2) HWR had notice of the danger; (3) HWR knew of the existence of a simple safety device which could have been installed to protect people who used the cultivator; and (4) the cost to HWR of making the safety package available would not have been significant. In addition to statutory recall obligations, the common law also recognizes retrofit as a means of providing consumer safety.
HWR’s Contentions
The following contentions are advanced by HWR: There is no duty to recall or retrofit the cultivator. If a product is not defective when it is first sold, it does not thereafter become defective by reason of technological improvements or other knowledge gained by the manufacturer. Foreseeability is the litmus test of whether a manufacturer is liable for a product that is defective when it is first sold. Robbins v. Alberto-Culver Co., 210 Kan. 147, 152, 499 P.2d 1080 (1972) (manufacture of dandruff control product allegedly breached implied warranty of fitness). Our decisions are consistent, with foreseeability being the guide for determining liability. Garst v. General Motors Corp., 207 Kan. 2, 20-21, 484 P.2d 47 (1971) (All courts agree a manufacturer is not obligated to adopt features which represent the ultimate in safety or design. One of the most significant factors to be considered is whether others in the field are using the same or a safer design.); Evangelist v. Bellern Research Corp., 199 Kan. 638, 646, 433 P.2d 380 (1967) (The plaintiff must show the product was defective at the time it left the manufacturer’s control.); Jacobson v. Ford Motor Co., 199 Kan. 64, 67, 427 P.2d 621 (1967) (No matter what theory of liability is applied, a plaintiff must show the product was defective to recover.).
In Siruta v. Hesston Corp., 232 Kan. 654, 659 P.2d 799 (1983), we held that the cross-examination of defendant’s expert regarding design safety changes made in later models of a hay baler was proper. The cross-examination on design safety changes was permitted, not to prove negligence or defect, but to prove feasibility of plaintiff’s proposed guard. 232 Kan. at 667. Siruta stands for the proposition that whatever has happened in product design since a machine was first sold is neither relevant nor admissible to prove negligence. Patton seeks to prove the existence of cultivator accidents and the development of product safety devices, all after 1976, for the purpose of establishing HWR’s culpability. Siruta blocks the admission of such evidence.
K.S.A. 1992 Supp. 60-3307 prohibits, the admission: (1) of subsequent product improvements, and (2) “for any purpose,” not only product design improvements but also later acquired knowledge as to warnings and hazards. The K.S.A. 1992 Supp. 60-3307 operative event is the date when the product was first designed or sold; consequently, what might occur thereafter can have no bearing on the issue of an alleged defect in the product. If it is impermissible to introduce the evidence described in the statute for any purpose, Patton is barred from presenting the evidence he plans to use to create post-sale duties. HWR has never denied the feasibility of warning decals or design changes. Therefore, Patton’s proffered evidence is not admissible.
K.S.A. 60-451 (evidence of subsequent remedial measures is inadmissible) supports the view that the legislature intended that product defects be judged at the time when the product leaves the manufacturer’s control. K.S.A. 1992 Supp. 60-513(b) creates a statute of repose which runs from the last act giving rise to the cause of action. All other sections of the KPLA establish the date of manufacture or sale as the controlling measuring point. The KPLA expresses the intent of the legislature to have any liability for a defective product fixed when the product “goes out the door” for the first time.
Wooderson is distinguishable from the case at bar for two reasons: (1) Wooderson pre-dates 60-513(b) and our opinion in Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 831 P.2d 958 (1992); and (2) Wooderson should be narrowly applied to the facts peculiar to the manufacture and distribution of ethical drugs.
Jones v. Hittle Service, Inc., 219 Kan. 627, 549 P.2d 1383 (1976), does not support the existence of a continuing duty to warn. HWR concedes Jones recognizes that a duty to warn exists, but only as to product defects which may reasonably be foreseen at the time of first sale. 219 Kan. 627, Syl. ¶ 4. The issue of notice of defects to past buyers was not before the court in GAF Corp., and consequently the opinion does not establish a post-sale duty to warn.
We have the power to create new causes of action. However, in the case at bar, the creation of new duties may deprive HWR of a vested property right without due process of law, i.e., HWR’s defense under K.S.A. 1992 Supp. 60-513(b). Three of our 1992 decisions dealing with 60-513(b) (Dobson v. Larkin Homes, Inc., 251 Kan. 50, 832 P.2d 345 [1992]; Admire Bank & Trust v. City of Emporia, 250 Kan. 688, 829 P.2d 578 [1992]; and Harding, 250 Kan. 655) abolish Patton’s post-sale continuing duty claims.
Well-made farm implements last a long time. Durability would be perceived by manufacturers as a negative factor if manufacturers were subjected to post-sale duties. The rule of law Patton seeks to have us adopt will stifle technology and suppress product safety improvement. Under Patton’s scenario, a manufacturer would be far safer to design a machine intended to wear out in a few years. Replacement would be required more often, and more machines, albeit inferior ones, would be sold. Pride of product design and improvement would become secondary to fear of liability. Farmers and implement manufacturers would both be losers. The preceding rationale was expressed in Lynch v. McStome & Lincoln Plaza, 378 Pa. Super. 430, 440-42, 548 A.2d 1276 (1988) (allegedly defective escalator), in refusing to impose a duty to retrofit.
The legislature, in the KPLA, has clearly declared the public policy of the State. The policy is to limit the rights of plaintiffs to recover in product liability suits generally and to judge a product for an alleged defect only when it is first sold.
Discussion
The Post-Sale Duty to Warn
In Wooderson, we undertook an analysis concerning the duty of a manufacturer of ethical drugs to warn others regarding drug side effects. As long as an ethical drug manufacturer markets a prescription product, it has a duty to warn the medical profession of dangerous side effects of which it knows, has reason to know, or should know. The duty continues as long as the marketing continues. 235 Kan. at 409. We relied on and quoted extensively from three cases (Lindsay v. Ortho Pharmaceutical Corp., 637 F.2d 87 [2d Cir. 1980]; Ortho Pharmaceutical v. Chapman, 180 Ind. App. 33, 388 N.E.2d 541 [1979]; McEwen v. Ortho Pharmaceutical, 270 Or. 375, 528 P.2d 522 [1974]), all of which involved ethical drug claims against Ortho Pharmaceutical Corporation, the principal defendant in Wooderson. 235 Kan. at 400, 402, 405. Wooderson s rationale is limited to the ethical drug context.
The expert testimony and exhibits in Wooderson disclosed that there was an abundance of information in medical journals published prior to the years when Wooderson was taking Ortho-Novum 1/so. The information linked the use of oral contraceptives with hemolytic uremic syndrome, malignant hypertension, and acute renal failure. 235 Kan. at 408-09. The abundance of information published prior to the sale to Wooderson presented a fact situation that is different from the case at bar. HWR had no knowledge at the point of sale of any hydraulic cylinder hazard associated with the farm cultivator.
For the differences in the approach taken by federal district court judges in Kansas in referencing Wooderson to other products, see Mason v. Texaco, Inc., 741 F. Supp. 1472, 1482 (D. Kan. 1990), aff’d in part and remanded 948 F.2d 1546 (1991), cert, denied 112 S. Ct. 1941 (1992) (Plaintiff alleged a failure to warn in a products liability action against benzene manufacturer; the court recognized a continuing duty to warn.); Blackburn, Inc. v. Harnischfeger Corp., 773 F. Supp. 296, 301 (D. Kan. 1991) (Crane owner brought negligence and strict liability claims against manufacturer which alleged, among other things, a failure to warn; the court recognized a continuing duty to warn.). But see Johnson County Com. College v. National Gypsum, 733 F. Supp. 1413, 1417 (D. Kan. 1990) (Plaintiff filed suit on negligence and strict liability theory to recover costs associated with the removal of an asbestos-containing plaster product; the court appeared to decline to extend Wooderson beyond the ethical drug context.).
Patton contends that the Court of Appeals recognized a post-sale duty to warn in Stratton v. Garvey Internat’l, Inc., 9 Kan. App. 2d 254, 676 P.2d 1290 (1984). However, the opinion addressed the question of the extent of a successor entity’s duty to warn of defects in its predecessor’s products. Stratton held that a successor corporation has a legal obligation to warn when the successor has both knowledge of the defective condition and a sufficient relationship with the predecessor’s customers. 9 Kan. App. 2d at 258. Stratton failed to meet this two-pronged burden. Consequently, he was unable to demonstrate that the successor corporation had a duty to warn. 9 Kan. App. 2d at 261.
Patton observes that GAF Corp. referenced Wooderson in holding that a roofing products manufacturer had a duty to warn or take corrective action rather than continue to ignore recurring defects in its product. 242 Kan. at 156-57. HWR argues that GAF Corp. only establishes a duty to warn at the time of sale. GAF Corp. is a “knowledge prior to sale” case. GAF had experienced problems with its product five years before it submitted the published specifications upon which the architects relied. 242 Kan. at 153-55. GAF knew its product was defective for the purpose for which it was designed and manufactured when it was sold; consequently, the case is factually dissimilar from the case at bar. 242 Kan. at 157.
The questions certified limit our determination of a continuing duty to warn after sale to an ultimate consumer who purchased the cultivator prior to the time HWR learned of any potential danger. Although the HWR-Patton relationship is distinguishable from those in Wooderson, GAF Corp., and Stratton, the three cases do not signal rejection of a post-sale duty to warn.
In considering whether HWR may have a duty to warn of product hazards after the point of sale, we choose the label “post-sale” rather than “continuing”. The post-sale claim is separate from the warning claim asserted with respect to the point of sale. See Jones v. Hittle Service, Inc., 219 Kan. at 634 (duty to warn arises only when the supplier “knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied”); Restatement (Second) of Torts § 388[a] (1964). A post-sale warning could not be given at the point of sale because a manufacturer would not have knowledge to give it.
A distinction also should be drawn between a negligence claim and a strict liability claim. A basic negligence concept involves a risk-utility analysis in which the risk inherent in a condition or activity is balanced against the utility of the condition or conduct and the burden necessary to eliminate or reduce the risk. See Restatement (Second) of Torts §§ 291-293 (1964).
Under a negligence theory, the duty to warn may be post sale and is not' keyed to the manufacture or sale of the product. The duty to warn under a theory of strict liability exists only at the time the product leaves the manufacturer’s control. This distinction reflects the emphasis in strict liability upon the danger of the product rather than the conduct of a manufacturer, i.e., if a product is not rendered unreasonably dangerous by the absence of warnings when it leaves the manufacturer’s control, it cannot at some later date become unreasonably dangerous due to the lack of warnings. Bly v. Otis Elevator Co., 713 F.2d 1040, 1045-46 (4th Cir. 1983) (alleged defects in lift truck). See Madden, The Duty to Warn in Products Liability: Contours and Criticism, 11 J. Prod. Liab. 103, 170-71 (1988). A negligence analysis is more appropriate than an application of strict liability in the post-sale context. See Dorr, Defense of Allegations of Post-Sale Duty to Warn § 9.02, published in The Trial of a Products Liability Case, Southern Methodist U. Products Liability Institute (1982). In the case at bar, Patton has asserted both negligence and strict liability claims.
A variety of courts have found that a manufacturer does not have a post-sale duty to notify product purchasers or users of changes in the state of the art concerning the safe use of the product. Collins v. Hyster Co., 174 Ill. App. 3d 972, 977, 529 N.E.2d 303 (1988), lv. to app. denied 124 Ill. 2d 554 (1989) (forklift products liability case) recognized the duty to warn distinction in the defect at sale and new design improvement contexts: “Certainly the law does not contemplate placing the onerous duty on manufacturers to subsequently warn all foreseeable users of products based on increased design or manufacture expertise that was not present at the time the product left its control.” Lynch v. McStome & Lincoln Plaza, 378 Pa. Super, at 440-42, considered a manufacturer’s duty to retrofit an escalator with a new braking system or to warn the owners of the new design. The court determined that no such duty existed. See Syrie v. Knoll Intern., 748 F.2d 304, 311-12 (5th Cir. 1984) (alleged defective bank teller stool); Carrizales v. Bheem Mfg. Co., Inc., 226 Ill. App. 3d 20, 33-35, 589 N.E.2d 569 (1991), lv. to app. denied 146 Ill. 2d 623 (1992) (alleged negligence in failing to warn plaintiff that gasoline vapors should not be brought in close contact with gas-fired hot water heater); Estate of Kimmel v. Clark Equipment Co., 773 F. Supp. 828, 831 (W.D. Va. 1991) (alleged negligence in design of and failure to warn concerning operation of a forklift).
The state of the art may be altered by the development of a more effective safety device. For business reasons, a manufacturer may seek to bring product improvement to the attention of its past customers, and it should be encouraged to do so in a manner that does not underplay important safety developments. See Allee, Post-Sale Obligations of Product Manufacturers, 12 Fordham Urb. L.J. 625, 635 (1984). Patton neither requests nor do we impose a requirement that a manufacturer seek out past customers and notify them of changes in the state of the art.
The KPLA became effective July 1, 1981. The KPLA is based on the Model Uniform Product Liability Act, 44 Fed. Reg. 62,714 et seq. (1979). The purpose of the Model Act was to consolidate all product liability actions, regardless of theory into one theory of legal liability. 44 Fed. Reg. 62,720. K.S.A. 1992 Supp. 60-3302(c) provides that all legal theories of recovery, e.g., negligence, strict liability, and failure to warn, are to be merged into one legal theory called a “product liability claim.”
K.S.A. 60-3304 repeatedly utilizes the phrase “at the time of manufacture”. The phrase does not appear in K.S.A. 60-3305. We agree with Patton’s reasoning that K.S.A. 60-3305 does not exclude a post-sale duty to warn. The K.S.A. 60-3305 reference is to “any duty on the part of the manufacturer ... to warn or protect against a danger or hazard which could or did arise in the use or misuse of such product” in “any product liability claim”. We find no statutory limitation nor has HWR cited precedential authority limiting a manufacturer’s duty to warn to the point of sale. See Reed v. Ford Motor Co., 679 F. Supp. 873, 878-79 (S.D. Ind. 1988). The three K.S.A. 60-3305 categories which exclude a duty to warn are: (a) warnings related to precautionary conduct that a reasonable user or consumer would take for protection, (b) precautions that a reasonable user or consumer would have taken, and (c) obvious hazards which a reasonable user or consumer should have known. The period beyond “the time of manufacture” is not an excluded category.
Comstock v. General Motors Corp., 358 Mich. 163, 99 N.W.2d 627 (1959), the seminal case upon which Patton relies, held that a manufacturer’s duty to warn of a known latent defect exists not only at the time of sale but also when such a defect becomes known to the manufacturer. The Comstock facts presented a situation where the defective automobile brake was present at the time of manufacture. The Michigan court limited its holding by observing that: (1) the brake hazard became known to General Motors “shortly after” the car had been put on the market, and (2) the defect was life threatening. 358 Mich, at 177-78.
The post-sale duty to warn varies among jurisdictions. In Cover v. Cohen, 61 N.Y.2d 261, 275, 473 N.Y.S.2d 378, 461 N.E.2d 864 (Ct. App. 1984), a duty to warn product users of discovered dangers was imposed. See Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826, 833 (Minn. 1988), cert, denied 492 U.S. 926 (1989). In doCanto v. Ametek, Inc., 367 Mass. 776, 784-85, 328 N.E.2d 873 (1975) (alleged defective commercial ironer), the Supreme Court of Massachusetts stated: “When the manufacturer of such a machine learns or should have learned of the risk created by its fault, it has a duty to take reasonable steps to warn at least the purchaser of the risk.” See also Smith v. FMC Corp., 754 F.2d 873, 877 (10th Cir. 1985) (alleged defective cranes); Owens-Illinois v. Zenobia, 325 Md. 420, 446, 601 A.2d 633 (Ct. App. 1992) (asbestos strict products liability case); and Harris v. Int'l. Harvester, 127 Misc. 2d 426, 429-30, 486 N.Y.S.2d 600 (S. Ct. 1984) (alleged negligence in connection with design of farm tractor).
Some courts have elected-to further limit the scope of the applicable duty to warn to particular contexts. For example, in Walton v. Avco Corp., 530 Pa. 568, 577-78, 610 A.2d 454 (1992) (Walton II, a strict liability case) the court imposed on a helicopter manufacturer a duty to warn owners that a defective part had been incorporated into the helicopter. See also Walton v. Avco Corp., 383 Pa. Super. 518, 531-32, 557 A.2d 372 (1989) ('Walton I), for the lower court’s analysis which draws a distinction between household consumer goods and a manufacturer of a unique product such as the helicopter. Habecker v. Clark Equipment Co., 797 F. Supp. 381, 388 (M.D. Pa. 1992), applied Walton I to a strict products liability action concerning a defect in a forklift and suggested:
“[W]hile forklifts are not common household goods, they are certainly much more prevalent than helicopters. Nearly any business which has a loading dock or a warehouse has a forklift, and it does not stretch the boundaries of imagination to envision frequent inter-business transfers of this type of equipment. Accordingly, with the Walton[I] panel’s own warning in mind, this court is not willing to extend that doctrine to common business appliances such as forklifts.”
See also Kozlowski v. John E. Smith’s Sons Co., 87 Wis. 2d 882, 901, 275 N.W.2d 915 (1979) (alleged defective sausage stuffer). The cases which impose a duty to warn in a limited context (e.g., Walton and Kozlowski) appear to balance cost and practicality considerations.
K.S.A. 1992 Supp. 60-3307(a)(l) renders “[e]vidence of any advancements or changes in . . . knowledge ... or testing knowledge . . . learned . . . subsequent to the time when the product in issue was . . . manufactured or sold by the manufacturer” inadmissible in a products liability case. Legislative hearings on S.B. 668 (K.S.A. 1992 Supp. 60-3307) included a statement from the President of the Senate, Senator Robert V. Talkington, who supported the bill’s passage:
“I encourage the committee to support a bill which would prohibit the admission into evidence, during court proceedings, of information related to normal advancements or changes in knowledge or techniques of production, design theory, and packaging of products.
“Normal product changes are a result of the growth of knowledge and not a desire to ‘cover-up’ design inadequacies. Passage of this measure would not mean victims of poorly designed products would be unable to seek and achieve compensation for injuries sustained from proper use of such products. What S.B. 668 would do is prevent the mere change of a product or product package being construed in court as an implicit acknowledgement that the .‘original’ design was defective.
“I urge the committee to support this bill to provide an additional element of fairness in our judicial process and encourage economic development and growth in Kansas.” Minutes of Senate Judiciary Committee, March 6, 1986, A-II.
We believe that 60-3307 is an attempt to codify the wide variety of circumstances that may occur under the rule that excludes evidence of subsequent remedial procedures.. See Wheeler v. John Deere Co., 862 F.2d 1404, 1410 n.2 (10th Cir. 1988) (farm combine strict product liability case). K.S.A. 1992 Supp. 60-3307 encourages manufacturers to make their products as sáfe as possible, free from the fear that remedial measures will be used adversely in later litigation. See also K.S.A. 60-451 (relating to subsequent remedial conduct). We view 60-3307 as a “state-of-the-art” statute which prohibits the introduction of post-manufacture remedial measures, except as provided by 60-3307(b) (evidence allowed to impeach a witness after a manufacturer s or seller’s express denial of the feasibility of the remedial measure). See Siruta v. Hesston Corp., 232 Kan. 654, 667, 659 P.2d 799 (1983), for our approval of the admissibility of “feasibility” evidence before the enactment of 60-3307. We consider the following to be the operative language in the context of the case at bari “if such advancements or changes have- been made, learned or placed into common use subsequent to the time the product in issue was . . . sold by the manufacturer.” K.S.A. 1992 Supp. 60-3307(a)(l). As we understand the facts, HWR had effected no remedial measures between the 1976 sale of the cultivator and Patton’s 1990 accident. If we were to accept HWR’s view of 60-3307, we would endorse a situation where a manufacturer’s knowledge of frequently occurring life-threatening, post-sale hazards in. a product free of known hazard at the point of sale would render evidence of those hazards inadmissible when the manufacturer had made no attempt to warn of the hazard.
We recognize a manufacturer’s post-sale duty to warn ultimate consumers who purchased the product who can be readily identified. or traced when a defect, which originated at the time the product was manufactured and was unforeseeable at the point of sale, is discovered to present a life-threatening hazard: See 3 American Law of Product Liability 3d §§ 32:82, 32:83 (1993); Allee, Post-Sale Obligations of Product Manufacturers, 12 Fordham Urb. L. J. at 630 (post-sale duty to warn arises when previously unknown danger becomes known). We agree with the Wisconsin Supreme Court in Kozlowski when it observed, after applying a post-sale warning duty to a sausage making machine under a claim of strict liability and negligence:
“We do not in this decision hold that there is an absolute continuing duty, year after year, for all manufacturers to warn of a new safety device which eliminates potential hazards. A sausage stuffer and the nature of that industry bears no similarity to the realities of manufacturing and marketing household goods such as fans, snowblowers or lawn mowers which have become increasingly hazard proof with each succeeding model. It is beyond reason and good judgment to hold a manufacturer responsible for a duty of annually warning of safety hazards on household items, mass produced and used in every American home, when the product is 6 to 35 years old and outdated by some 20 newer models equipped with every imaginable safety innovation known in the state of the art. It would place an unreasonable duty upon these manufacturers if they were required to trace the ownership of each unit sold and warn annually of new safety improvements over a 35 year period.” 87 Wis. 2d at 901.
We acknowledge practical problems associated with imposing a post-sale duty to warn. See Schwartz, The Post-Sale Duty to Warn: Two Unfortunate Forks in the Road to a Reasonable Doctrine, 58 N.Y.U.L. Rev. 892, 896 (1983). The question of whether such a duty arises in a particular case will depend on the facts of that case. The passage of time from manufacture and initial sale to the discovery of previously unknown hazards may reflect that the product has changed ownership many times. The original purchaser may have moved. The length of product life will vary. What is reasonably prudent post-sale conduct for one manufacturer and one type of product may not be reasonable for another manufacturer of an entirely different type of product. The sale of the farm cultivator was made to Patton’s father on a one-time basis 13 years before the injury. What sales records will be available to the manufacturer? Notification by a manufacturer to all prior purchasers of a product may be extremely burdensome, if not impossible. In the case at bar, the manufacturer’s retailer has continuing contact with the consumers. We reason that a manufacturer who was unaware of a hazard at the time of sale and has since acquired knowledge of a life-threatening hazard should not be absolved of all duty to take reasonable steps to warn the ultimate consumer who purchased the product; however, the warning of unforeseeable dangers is neither required nor possible at the time of sale. A manufacturer is to be given a reasonable period of time after discovery of the life-threatening hazard in which to issue any post-sale warning that might reasonably be required.
The imposition of liability upon a manufacturer for inadequately warning an ultimate consumer who purchased the product prior to the time the manufacturer learned of the potential danger regarding the dangers of the product is dependent upon a reasonableness test and the manufacturer’s actual or constructive knowledge of the risk. Johnson v. American Cyanamid Co., 239 Kan. 279, 287, 718 P.2d 1318 (1986); see Richter v. Limax Intern., Inc., 822 F. Supp. 1519, 1521 (D. Kan. 1993) (alleged manufacturer’s duty to warn users of mini-trampoline about foreseeable dangers associated with the product’s use). A post-sale duty to warn does not exist until either actual or constructive knowledge is acquired by the manufacturer concerning a later life-threatening hazard posed by a product when the product is used for its normally intended purpose. The alleged defect in the cultivator was unknown to HWR when it was initially sold. We do not apply a strict liability theory to the post-sale duty to warn. See American Cyanamid Co., 239 Kan. at 287. The cardinal inquiry is, was HWR’s post-sale conduct reasonable? The reasonableness standard is flexible. See Allee, Post-Sale Obligations of Product Manufacturers, 12 Fordham Urb. L. J. at 631. The type of notice of a problem revealed by product use that will impose a post-sale duty to warn will be a function of the degree of danger which the problem involves and the number of instances reported. Whether a prima facie case has been made for the presence of a post-sale duty will depend on the facts of each case. Cover, 61 N.Y.2d at 276. Each plaintiff must make an initial showing that the manufacturer acquired knowledge of a defect present but unknown and unforeseeable at the point of sale and failed to take reasonable action to warn of the defect.
The nature of the post-sale warning and where and to whom it should be given will involve a case-by-case analysis. The analysis shall include but not be limited to the examination of such factors as: (1) the nature of the harm that may result from use without notice, (2) the likelihood that harm will occur (Does future continuing use of the product create a significant risk of serious harm which can be lessened if a post-sale warning is given?), (3) how many persons are affected, (4) the economic burden on the manufacturer of identifying and contacting current product users (Does the manufacturer have an ongoing relationship with the purchaser or other knowledge of the identity of the owner of the product which provides a practical way of providing a post-sale warning?), (5) the nature of the industry, (6) the type of product involved, (7) the number of units manufactured or sold, and (8) steps taken other than giving of notice to correct the problem. See Cover, 61 N.Y.2d at 276-77. The facts may indicate that notice to all ultimate consumers who purchased the product prior to the time the manufacturer learned of a potential danger is unreasonable, if not impossible. Notice to the distributor or retail seller may, in certain contexts, meet the reasonableness standard.
The particular facts may reflect that a lack of notice was not unreasonable and that a reasonable manufacturer under the circumstances would have taken no post-sale action. Knowledge and reasonableness, as determinative factors, will provide an incentive to manufacturers to issue warnings if latent product hazards are discovered after the initial sale and a warning under the circumstances would be reasonable. We cannot fashion a “bright line” rule from a farm cultivator case that applies with interpretative ease to the infinite variety of products that inhabit the marketplace.
Each trial judge will necessarily be required to make a determination as to whether the record presents a fact question as to knowledge and reasonableness whenever a plaintiff’s claim of negligent breach of a post-sale duty to warn is alleged. Generally, resolution of the issue of reasonableness, after an initial court determination that the issue is presented, will be one of fact for the jury. The trial judge, in instructing the jury on a post-sale duty to warn, shall utilize the relevant factors referenced herein, including the nature and likelihood of the injury posed by the product, the feasibility and expense of issuing a warning, whether the warning would be effective, and whether ultimate consumers who purchased the product can be identified.
Retrofitting and Recall
The answer to certified questions three and four is “no.” Patton has provided no statute or case law to support the claim that HWR is subject to a duty to retrofit or recall the cultivator. We reason that product recalls are properly the business of administrative agencies as suggested by the federal statutes that expressly delegate recall authority. Extensive federal recall legislation deals with the post sale obligations5 of manufacturers of products such as automobiles, consumer products, boats, and medical devices. See Consumer Product Safety Act, 15 U.S.C. § 2064 (1988) (Consumer Product Safety Commission); National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C. § 1414 (1988) (Secretan' of Transportation); The Radiation Control for Health and Safety Act of 1968, 42 U.S.C. § 263g (1988) (Secretary of Health and Human Services); Safe Medical Devices Act’ of 1990, 21 U.S.C. § 360h (1988 and Supp. IV; 1992). . •••
The recall issue in Kansas is referenced in Johnson v. Colt Industries Operating Corp., 609 F. Supp. 776, 782 (D. Kan. 1985) (Evidence on a duty to recall- was introduced; the court did not instruct the jury that the manufacturer had a duty to recall.). Although the Johnson opinion does not precisely indicate what post-sale duties were recognized for manufacturers, the Tenth Circuit on appeal clarified the fact that the district court’s approach did not stand for the existence of a duty to recall or retrofit under Kansas law. See Johnson v. Colt Industries Operating Corp., 797 F.2d 1530, 1532 n.1 (10th Cir. 1986).
Courts deal with the business of individual cases grounded on specific facts. The parties’ contentions are developed and placed before us with specific facts in mind. The decision to expand a manufacturer’s post-sale duty beyond implementing reasonable efforts to warn ultimate consumers who purchased the product of discovered latent life-threatening hazards unforeseeable at the point of sale should be left to administrative-.agencies and the legislature. See, e.g., Wallace v. Dorsey Trailers Southeast, Inc., 849 F.2d 341, 344 (8th Cir. 1988) (affirming district court’s .decision not to impose a duty to retrofit an aerial bucket lift in the absence of a state or federal law requiring the product to be recalled); Smith v. Firestone Tire & Rubber Co., 755 F.2d 129, 135 (8th Cir. 1985); Schwartz, The Post-Sale Duty to Warn: Two Unfortunate Forks in the Road to a Reasonable Doctrine, 58 N.Y.U.L. Rev. at 901. These institutions are better able to weigh the benefits and costs involved in locating, recalling, and retrofitting products. | [
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, Curtis Coleman, from his conviction of second-degree murder.
Two issues are presented on appeal. The first issue involves the trial court’s refusal to allow the testimony of three- witnesses who had not been endorsed by defense counsel prior to their being called to the stand. The unlisted witnesses’ testimony in part would have been that Curtis Taylor, not the defendant, shot and killed Tyrone Germany.
The second issue is whether the trial court erred in failing to instruct the jury on invbluntary manslaughter and voluntary manslaughter as lesser included offenses to the charge of second-degree murder.
Tyrone Germany, the decedent, was shot in front of the residence where his girlfriend, Lashonda Gooley, and her two children live. Lashonda has several siblings, including Albert “Donny” Taylor and Curtis Taylor.
Connie Coleman lives across the street from Lashonda. Connie is the aunt of the defendant. She has a daughter, Elizabeth Coleman, who lives down the street. Mackler “Buck” Nunally resides with Elizabeth and their two children. Elizabeth was expecting a child by Curtis Taylor.
Most of the witnesses know each other and live in the same neighborhood. For example, Elizabeth Coleman, Buck Nunally, the defendant, Donny Taylor, and Curtis Taylor grew up together and live in the projects in Wyandotte County. Curtis Taylor had known the decedent since 1985. The defendant, however, had met the decedent only two or three weeks prior to the shooting.
The events precipitating the shooting of the decedent began at the home of Elizabeth Coleman. The decedent drove Curtis Taylor to Elizabeth Coleman’s residence on a hot summer evening in July of 1991. Curtis Taylor testified he went over to Elizabeth’s to talk about going to visit the doctor because she had called him earlier in the day and asked him to accompany her. Elizabeth testified she had not called Curtis Taylor that day, although she previously had asked him to take her to the doctor. She said that earlier in the day Buck had been “playing” with her and said- he was “going to knock the baby out [of her] stomach” and that her sister had relayed Buck’s comment to Curtis Taylor. Upon his arrival, Curtis Taylor said Buck cursed and threatened him. The witnesses agree a physical fight erupted between the two men, with Curtis Taylor hitting Buck five Or six times and Buck hitting Curtis Taylor once. Buck is a small man, .weighing about 98 pounds. The decedent never threatened anyone nor did he become involved in the fight.
Buck testified Curtis Taylor put a .38 caliber gun to Buck’s head. Buck added that although Curtis Taylor turned the gun over to the decedent, Curtis Taylor retrieved it and fired it into the air three times. Curtis Taylor acknowledged pulling a .38 caliber Smith and Wesson revolver from his pocket, but said he did not point it at Buck and gave the gun to the decedent, who put it in the trunk of his car. Afterwards, Buck filed a police report on the incident.
Although the witnesses’ accounts vary on how it happened, all agree that, as a result of the altercation between Buck and Curtis Taylor, Elizabeth Coleman ended up with a bleeding head injury. Unbeknownst to Buck, Elizabeth left with Curtis Taylor and the decedent. They stopped briefly at the decedent’s house, and then Curtis Taylor and the decedent took Elizabeth to- where her mother, Connie Coleman, lived. She stayed a few minutes and then went to one of her sisters’ houses before returning home.
Curtis Taylor testified he saw the defendant at Connie’s place and they talked about what happened to Elizabeth. According to Curtis Taylor, the defendant said he was not taking sides, but he also was not going to let either Curtis Taylor or Buck hurt Elizabeth and then asked Curtis Taylor, not to hurt her. Curtis Taylor stated the decedent took his gun and returned it when the conversation was finished, at which point Curtis Taylor and the decedent walked across the street to Lashonda’s, where Donny was sitting on the porch. Curtis Taylor said that although Donny had a .25 caliber automatic, he did not have the gun with him at that time. According to Curtis Taylor, he went home about 30-40 minutes later and remained there until after he learned of the decedent’s death. Curtis Taylor testified that he did not shoot the decedent and that he was not present when the decedent was shot.
Buck testified he went for a walk after everyone left—he was frustrated and angry. He eventually met up with the defendant and informed the defendant that Curtis Taylor and the decedent had harassed him with a gun at Elizabeth’s place. ■
After the parties to this story moved from place to place and consumed beer, a man named “Black” gave the defendant á small black automatic handgun to give to Buck. The defendant gave Buck the handgun.
When they were at Elizabeth’s, Buck showed the defendant the blood from where “they” had beaten him: Elizabeth kicked Buck out of the house. Buck and the defendant parted company, and Buck walked up the street to Connie Coleman’s house. That sets the stage for Tyrone Germany’s, death. The. witnesses’ description of what occurred is conflicting and somewhat hard to follow.
Defendant’s Testimony
The defendant observed Donny Taylor, Curtis Taylor, and th'e decedent leave Lashonda’s yard and advance- toward Buck. The defendant decided to attempt to convince Buck to leave the immediate area. As the defendant neared the'men, who -by that time were in the street, he heard Buck arguing with the decedent. Donny Taylor walked in front of the defendant and told the defendant he had nothing to do with this. The defendant responded that he wanted to get Buck out of there. When Donny said no, the defendant pushed him out of the way. The defendant perceived they were setting up for Curtis Taylor and the decedent to “jump on” Buck.
Buck pulled out a gun. The defendant asked Buck, “Why you jumping on Tyrone [Germany] when he’s the one—Curtis [Taylor] is the one that did it?” The defendant then noticed Curtis Taylor was gone and did not see him again that night. -Buck hit the decedent in the face with his hand. The defendant told Buck to give him the gun. The defendant and the decedent both reached for the gun and had a hold on it when the gun went off, hitting nothing. The gun fell to the street, and the defendant reached it first. Curtis Coleman heard two shots, ducked, then raised up, and saw the decedent was down. Donny Taylor was’ yelling, “Man, why did you do it? Man, you hit the wrong:one,” and began breaking windows. The defendant gave the gun back to Buck, who took it and left. The defendant then moved Tyrone from the street to the sidewalk because of traffic and tried to resuscitate him.
When Lashonda came outside and asked what happened, the defendant told her the decedent had been shot. The defendant stayed until he saw the police cars arrive. He then walked to a friend’s house and got a message to his sister to come pick him up. The defendant stayed at his sister’s place for 10 to 20 minutes, had a couple of drinks, and then went to the police station. The defendant denied shooting the decedent.
Mackler “Buck” Nunally’s Testimony
When Buck was sitting on the bench in Connie’s yard, he saw the decedent drive up, park his car, and walk into Lashonda’s house. Buck took the gun out of his pocket and put it beside him on the bench. The defendant walked up and, when the decedent exited Lashonda’s, asked Buck what the decedent had to do with the incident at Elizabeth’s. Buck said, “He brought Curtis Taylor down to the house and they jumped on me and they passed each other the gun.” The defendant was not angry, but was frustrated because Curtis Taylor and the decedent had jumped on Buck. The defendant then picked up the gun and shot once in the air.
As the decedent walked to his car, Buck saw Donny, but not Curtis Taylor. The defendant asked the decedent, “Why did you send your dog [Curtis Taylor] to my dog’s [Buck’s] house?” Tyrone responded that he did not have anything to do with it. Buck then hit the decedent in the face, and the decedent stumbled backwards three or four steps. The decedent had his hands at his side. Donny Taylor joined the fracas, and he and the defendant started arguing. The defendant pushed Donny aside and then hit the decedent, who fell across the curb by the sidewalk. On direct examination, Buck said that as the decedent attempted to stand up, the defendant turned and shot him. On cross-examination, Buck said that the defendant and the decedent struggled over the gun, that the decedent was knocked to the ground with his legs up between the defendant’s legs, and. that as the defendant turned, “the gun just went off.” The defendant was about two to three feet from the decedent when the gun went off. Buck perceived the shooting as accidental. Buck did not see anyone but the defendant with a gun. Buck acknowledged he actually did not see the gun at the time the decedent was shot—he heard the gunshot.
When the decedent was shot, Johnny “Archiemo” Rucker (the defendant’s nephew) was present; Lashonda was in the doorway of her house; and Evelyn Coleman and Connie were on their respective porches. After the shooting, Donny Taylor began breaking windows and repeatedly hollered, “You shot the wrong one.” Buck took the gun from the defendant and left the scene. Buck returned the gun to Black.
Donny Taylor’s Testimony
Donny Taylor was sleeping at Lashonda’s house when she woke him up and said the decedent was being harassed. Donny went outside and saw the defendant and Buck arguing with the decedent. The defendant pulled out a .22 caliber pistol and pointed it at the decedent. Buck walked up to the decedent and hit him. Then the defendant hit the decedent, who fell toward the sidewalk. The defendant shot the decedent from a distance of two or three feet with a .22 caliber gun.
Lashonda was standing in the doorway when the shooting occurred. Donny yelled at the defendant that he shot the decedent for no reason and that it could have been avoided and then ran around and broke windows. Donny acknowledged owning a .25 caliber automatic, but said he did not have the gun with him at the time of the fatal shooting.
Lashonda Cooley’s Testimony
Prior to the shooting, the defendant was sitting on a bench in Connie’s yard. Curtis Taylor was not present at the time of the shooting.
The defendant pushed the decedent to the ground. As the decedent started to, get up, the defendant stood-in front of him and from a distance of three feet shot the decedent in the head. The defendant used a small black handgun. Lashonda was 10 to 12 feet away when this happened and said she had no problem seeing because of the street light.
Other Witnesses’ Testimony
Charlen Jones and her mother live across the street from Lashonda. Charlen and Lashonda are friends. Charlen dates one of the defendant’s nephews. She was in bed when she heard the defendant yell at the decedent to get out of the car and show his face. After a shot was fired and the defendant continued to yell, Charlen looked out of her window and saw Donny standing between the defendant and the decedent. The defendant then pushed the decedent twice, and after he fell down, the defendant shot him with a small handgun. Charlen only heard two shots. She did not see a scuffle for the gun prior to the shooting. Charlen did not see Curtis Taylor during the argument or shooting.
Johnny “Archiemo” Rucker denied being present at the shooting.
Prior to the shooting, Connie Coleman saw Curtis Taylor, Donny Taylor, the decedent, Buck, and the defendant in the street by the light post. Connie heard the defendant tell “the boys that it don’t take all [of] you to jump on Mack as little as he is.” She did not witness the shooting because she was on the telephone. Connie heard one gunshot and went to the window. Lashonda was hollering, “Curtis [Coleman] done shot my man.” Connie then saw the defendant attempt to revive the decedent while the other men ran off.
Evelyn Coleman, another of Connie’s daughters, also lives across the street from Lashonda. Evelyn testified she was sitting on her porch with her boyfriend when she saw Buck hit the decedent. She saw Connie, Buck, and the defendant, but not Curtis Taylor. The defendant attempted to break up the fight between Buck and the decedent, and then the defendant and the decedent started fighting with both of them throwing punches. Evelyn heard a shot and saw the decedent fall. Evelyn ran over to decedent, declared he was dead, and told the defendant to leave. According to Evelyn, the defendant said, “I didn’t shoot him. I ain’t going.” Evelyn did not see any weapons and heard only one shot; she did not know who fired it.
Regina Malone, another cousin of the defendant who lives in the neighborhood, testified. She saw the defendant and the decedent arguing. Regina subsequently heard three gunshots, which she identified as two .22 shots (“a .22 pop is soft”) and one .38 shot (“hard hit”). She ran to the door and saw the defendant trying to resuscitate the decedent. Regina heard Donny Taylor say the bullet was not meant for the decedent, but for the defendant. She claimed that earlier in the day, Donny Taylor had stopped by her place and asked for .22 bullets. On cross-examination by the prosecutor, Regina denied she earlier had told the police she was asleep at the time and did not hear any gunshots.
Of much importance to this case is the testimony of Daralynn Brown, who also lives in the neighborhood. She testified she observed the shooting from her porch. Brent Rogers and a person named Darrin were with her. Daralynn watched the decedent drive up, park his car across the street from Lashonda’s, and exit the vehicle. Daralynn saw Curtis Taylor, Donny, Buck, and the defendant in the immediate vicinity. Curtis Taylor and Donny were standing behind the decedent. Daralynn observed a scuffle, heard two shots, and saw the decedent drop to the ground on his back. Curtis Taylor was the first one to leave the scene—he ran between the buildings and then up the hill behind Lashonda’s house. Another man, whom Daralynn did not recognize, ran behind her building. Buck then left, walking down the street in front of her house. When Daralynn asked Buck what had happened, he just mumbled. The defendant stayed and attempted to. revive the decedent while Donny was “stomping and carrying on” and then hollering and breaking windows. Daralynn heard Donny exclaim the bullet was meant for Curtis and assumed Donny meant the defendant because Curtis Taylor was Donny’s brother. Donny also said he did not know why the shooter had done it because he had just been released from prison and now would be going back. Donny then took off running. Daralynn saw the defendant point either a gun or a finger at the decedent. On cross-examination, she acknowledged she had told the police the defendant had been waving a gun, but said in retrospect she was not sure if it had been a gun.
Curtis Taylor had been convicted of aggravated battery in October 1989, had served 18 months, and had been on parole for 10 months. At the court’s hearing on the defendant’s motion for a new trial, defense counsel mentioned that the State had given Curtis Taylor immunity.
When the police arrived at the crime scene, a crowd of at least 15 people had gathered. The police found a spent .38 caliber bullet near the curb and a shell casing of a lesser caliber than a .38 near the middle of the street. No weapons were recovered.
The pathologist who examined the decedent’s body concluded he died from á gunshot wound to the head. A .22 caliber bullet was removed from the decedent’s head. The pathologist determined that the decedent was shot from a distance of three to four feet and that the bullet entered his skull at a downward angle of 45 degrees. According to the pathologist, it was possible that someone facing the decedent shot him ás he attempted to stand up.
A jury convicted the defendant of second-degree murder, and he was sentenced to a term of 15 years to life.
The defendant argues the trial court erred in refusing to allow three unendorsed defense witnesses to testify. As a result of this error, he claims his right to present witnesses on his own behalf, guaranteed by the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights, and his right'to due-process were' violated. See State v. Gonzales, 245 Kan. 691, 699, 783 P.2d 1239 (1989). •
On the third day of trial, the defendant attempted to call Lucretia Egans as a witness. The State objected, arguing that it had not been notified the witness was to testify and that the pretrial discovery conference order specified the- defense would provide the State with a list of defense witnesses and Lucretia’s name was not on that list. Defense counsel explained he did not know about this witness until he arrived at the courthouse that morning. The source for the witness was the defendant’s family. Defense counsel mentioned the State was welcome to visit with Lucretia Egans. Despite defense counsel’s argument that to exclude the testimony was highly prejudicial to the defendant, the trial court ruled the pretrial order was binding. The court ■ reásoned this was the kind of situation the pretrial order was meant to prevent—to surprise the State in this fashion put the State at a disadvantage.
On appeal, the defendant acknowledges Lucretia Egans’ testimony was not proffered. He maintains, however, that because she was an eyewitness to the shooting, it cannot be said the exclusion of her testimony was harmless error. Without a proffer of the substance of her testimony, it is not known if or how her testimony would have helped the defendant. Additionally, the defendant does not cite to the record to support the statement that Lucretia Egans was an eyewitness to the shooting. Apparently, this fact was never conveyed to the trial judge and we are unable to find it in the record. If Lucretia Egans was an eyewitness to the shooting, it was not discussed when defense counsel attempted to have her take the stand, when defense counsel attempted late endorsements of Diane Germany and Brent Rogers, or in the defendant’s motion for á néw trial: In his motion and at the hearing for a new trial, defense counsel only argued that the trial court erred in excluding the testimony of Brent Rogers and Darrin Fleetwood, also eyewitnesses.
It is within the trial court’s discretion, subject to exclusionary rules, whether to admit or to exclude evidence. State v. Friberg, 252 Kan. 141, Syl. ¶ 5, 843 P.2d 218 (1992). The erroneous exclusion of evidence is governed by K.S.A. 60-405, which provides:
“A verdict or finding shall not be set aside, nor shall die judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of evidence either made known the substance of the evidence in a form and by a method approved by the judge, or indicated the substance of the expected evidence by questions indicating the desired answers.”
It is well established that a party may not assert error based upon the erroneous exclusion of evidence in. the absence of a proffer of that proposed evidence. See State v. Hall, 246 Kan. 728, 746, 793 P.2d 737 (1990); State v. Nemechek, 223 Kan. 766, 770, 576 P.2d 682 (1978); State v. Watkins, 219 Kan. 81, 85, 547 P.2d 810 (1976). Because there was no proffer, the defendant is not in a position to assert the trial court erred in excluding Lucretia Egans’ testimony.
On the fourth day of trial,, the .defendant requested permission to call Brent Rogers and Diane Germany as witnesses. Neither witness had been endorsed. Defense counsel explained that both he and the defendant had not learned of either potential witness until the previous afternoon. Defense counsel apologized to the State for the late endorsement, but pointed out this had been a difficult case for which to prepare a defense.
According to defense counsel, Brent Rogers had been afraid to come forward because he was on probation for a misdemeanor charge in Wyandotte County and had not paid the restitution and court costs as ordered and because he was “extremely” fearful of the Taylors. Defense counsel argued that this witness was vital to the defense. Brent Rogers had been sitting with Daralynn Brown on her porch on the night of the shooting. Daralynn’s testimony earlier that day confirmed this. The substance of Brent Rogers’ testimony would be that he saw both Curtis Taylor and Donny Taylor with guns, that he saw Curtis Taylor come from behind Lashonda’s house and shoot the decedent in the head, and that he could identify other people, such as the defendant and Buck, who were present at the time of the shooting.
The substance of the testimony of Diane Germany, the decedent’s aunt, would be that the decedent lived upstairs in her house and kept a silver-plated gun; that in the early morning hours of the night in question, Curtis Taylor and the decedent, who both had been drinking, showed up at her house; that they left with what she believed to be a gun; and that as they left, they told her they were going to “whip some ass.” Defense counsel maintained Diane’s testimony was vital because it corroborated that Curtis Taylor and the decedent had been together, had been drinking, and were in possession of a gun.
The State again objected, citing the pretrial order in which defense counsel agreed to provide the State with a list of defense witnesses seven days before trial. The State pointed out it only received the witness list at the recess of trial the day before. According to the State, it was prejudicial to allow these witnesses to testify because the State had not had the opportunity to visit with them. The State also claimed these witnesses’ testimony was not reliable. The basis for the unreliability claim was that this testimony was inconsistent with the State’s evidence.
Defense counsel offered to take a recess in order to let the State interview these witnesses.
The trial court decided to exclude the testimony of Brent Rogers and Diane Germany. The court relied upon the pretrial order, citing the importance and purpose behind pretrial discov ery conferences. The trial court acknowledged this was a case in which it was not easy for someone in defense counsel’s “position to go into that particular area of town to have to try to interview witnesses and find people to testify,” but noted that defense counsel had been allocated funds to employ an investigator. ($300 had been allocated.) Because of the investigator’s services, the trial court concluded this was not a case of excusable neglect, i. e., being unable to discover the witnesses earlier. The trial court expressed its skepticism about the reliability of Brent Rogers’ testimony because Daralynn Brown had failed to mention previously that two males had been on the porch with her at the time of the shooting. The trial judge concluded: “I don’t think our system of justice envisions running in a bunch of surprise witnesses at the last minute who would testify in a 180 degree difference from what all the state’s evidence has been up to this time . . . .”
As far as the trial court was concerned, the evidence presented was uncontroverted that the defendant shot the decedent. Defensé counsel responded that as he interpreted the evidence, there was speculation concerning from where the fatal shot was fired and that other people could have fired the shot. The trial court was not persuaded, noting several witnesses had testified the defendant shot the decedent. The judge again questioned the reliability of the proffered testimony, mentioning that if he, the judge, was interested in someone’s welfare, he would have come forward immediately and shared all his knowledge with the police.
Because the substance of the testimony of Brent Rogers and Diane Germany was proffered, the question with regard to these proposed witnesses is whether the trial court abused its discretion in excluding their testimony. The defendant advances two reasons why the trial court abused its discretion: The trial court’s reliance upon the pretrial order was erroneous, and the trial court failed to follow the factors set forth in State v. Bright, 229 Kan. 185, 623 P.2d 917 (1981).
With regard to the pretrial order, defense counsel, the prosecutor, and the tríál judge all signed a standard form pretrial conference discovery document. Defense counsel checked “yes” beside the question asking whether the defense would “provide exhibit and/or witness list including dates of birth, addresses, and race, as per K.S.A. 22-3212, and K.S.A. 22-3213, seven (7) days before trial.” The defendant contends nothing in the language of the pretrial order requires him to provide any information other than what is required under K.S.A. 22-3212 and K.S.A. 22-3213. These statutes pertain primarily to the State’s duty of revelation. See K.S.A. 22-3212(3)(the defendant has a limited reciprocal duty to permit the prosecutor “to inspect and copy or photograph scientific or medical reports, books, papers; documents, tangible objects, or copies or portions thereof, which the defendant intends to produce at trial, and which are material to the case and will not place an unreasonable burden on the defense.”);' K.S.A. 22-3213 (the prosecutor has a duty to produce statements and reports after a State witness testifies on direct examination at the preliminary hearing or at trial; a similar duty is not placed upon the defendant). The defendant argues the pretrial order is not a sufficient basis upon which to exclude the testimony because defense counsel complied with K.S.A. 22-3212 and -3213, which do. not require defense counsel to produce witness lists.
With the exception of alibi witnesses, K.S.A. 22-3218, defense counsel has no reciprocal statutory requirement to. disclose the names of defense witnesses prior to trial. -The legislature, however, has authorized pretrial conferences in criminal cases. See K.S.A. 22-3217. Furthermore, this court encourages the use of pretrial conferences. We have stated that if pretrial conferences “are held, either in civil or criminal cases, both parties are bound by the agreements made at the conference and included by the judge in the order entered at the conclusion of the conference.” Bright, 229 Kan. at 190. If this occurs and the agreement is of record, the pretrial order should be enforced. If the pretrial order could result in manifest injustice, the trial court has authority to modify the order. Bright, 229 Kan. at 192; see K.S.A. 22-3217; K.S.A. 1992. Supp. 60-216. Incorporated in the pretrial order in the instant case was the State’s agreement to open its entire file to the defense and the defendant’s agreement to disclose his witnesses.
More persuasive is the defendant’s contention that in order to exercise its sound discretion, the trial court was obligated to follow the Bright factors and did not do so. In Bright, based upon the facts of that case, this court determined the exclusion of defense witnesses was not reversible error. We then set forth factors for trial courts to follow in the future.
“If a defendant has been required by pretrial or discovery order to disclose defense witnesses prior to trial and fails to do so, and attempts to call a witness or witnesses not disclosed, then in ruling on prosecution objections the trial court should:
(1) Inquire why the witness or witnesses were not disclosed;
(2) determine when the witness first became known to defense counsel, and whether the nondisclosure was willful or inadvertent;
(3) determine whether the proposed testimony is trivial or substantial, whether it goes to an important or minor issue;
(4) determine the extent of prejudice to the State, and the importance of the witness to the defense;
(5) determine any other relevant facts;
(6) grant the State a recess if prejudice can be avoided or reduced by such action; and
(7) avoid imposing the severe sanction of prohibiting the calling of the witness if at all possible. This should be viewed as a last resort.” 229 Kan. at 194.
The Bright court stated that a trial court should make these inquiries. Subsequently, in State v. Cummings, 242 Kan. 84, 87, 744 P.2d 858 (1987), we stated that “[i]n order for a trial court’s discretion to be deemed sound, it must” consider these factors. (Emphasis added.) The Cummings court discussed the general rules about enforcing pretrial orders and then cited Bright as holding that automatic exclusion of such testimony is error.
If a trial court must consider these factors, as stated in Cummings, the trial court in the case at bar failed to exercise its discretion soundly because it did not address the Bright factors. Instead, the trial court focused upon the quality of the evidence, as perceived by the court, rather than the admissibility of the evidence. The trial court took it upon itself to determine the credibility of the proposed witnesses. Credibility is not one of the factors listed in Bright. The State argues that the Bright court’s allowance of other relevant factors permits the trial court to engage in factfinding and to judge the reliability and credibility of the witness. If the trial court engages in factfinding and judges the witness’ credibility, the trial court invades the province of the jury. See State v. Jarmon, 245 Kan. 634, 638, 783 P.2d 1267 (1989) (“Credibility of witnesses in criminal jury cases is an issue for the jury, not for the trial judge or the appellate courts.”); State v. Jones, 233 Kan. 170, 174, 660 P.2d 965 (1983) (a conflict in testimony presents a question of fact for the jury).
Also troublesome is the trial court’s comment that our system of justice does not envision unendorsed defense witnesses testifying 180 degrees different from the State’s evidence. The fact that defense evidence may differ from the State’s evidence should not be surprising. Generally speaking, defense witnesses’ testimony differs partially, if not substantially, from the State’s evidence. Otherwise, there would be no reason for the defense to call its own witnessses.
In Bright, we noted that trial courts consistently permit the late endorsement of State witnesses (and we generally uphold those decisions). 229 Kan. at 192. Cases subsequent to Bright follow this pattern. See, e.g., State v. Damewood, 245 Kan. 676, 685, 783 P.2d 1249 (1989); State v. Hartfield, 245 Kan. 431, 440-42, 781 P.2d 1050 (1989); State v. Beebe, 244 Kan. 48, 51-52, 766 P.2d 158 (1988); State v. Phifer, 241 Kan. 233, 239-40, 737 P.2d 1 (1987); State v. McNaught, 238 Kan. 567, 583, 713 P.2d 457 (1986). With regard to the late endorsement of State witnesses, the test is whether the defendant’s rights have been prejudiced. State v. Ferguson, Washington It Tucker, 228 Kan. 522, 526, 618 P.2d 1186 (1980); see State v. Thompson, 232 Kan. 364, 367, 654 P.2d 453 (1982) (the defendant must show actual prejudice to his or her ability to defend the charges; prejudice is not presumed). Factors in making this determination include whether “the defendant was surprised and the testimony was critical.” Bright, 229 Kan. at 192. “Normally, late endorsement is permitted if the opposing parties are given time to interview the witnesses and cross-check their testimony. [Citation omitted.]” State v. Hunter, 241 Kan. 629, 638, 740 P.2d 559 (1987); see Hartfield, 245 Kan. at 440. The importance of and the purpose behind the factors set forth in Bright, and affirmed in Cummings, cannot be overemphasized. The Bright factors ensure that trial courts evenly handle the late endorsement of witnesses, be they witnesses for the State or for the defense.
With this in mind, we apply the Bright factors to the case at hand.
The State emphasizes that when defense counsel learned of the potential witnesses, defense counsel did not disclose them immediately, but waited until the following day. Therefore, according to the State, the nondisclosure was willful and designed to surprise the State and to prevent the State from investigating the witnesses. The State contends that, because the defendant had the benefit of an investigator’s services to help locate witnesses, it cannot be said the nondisclosure was inadvertent. The State’s arguments are, at best, speculative.
According to the State, the proffered testimony of Diane Germany, the decedent’s aunt, went to a minor point because defense counsel failed to proffer a time frame in which Curtis Taylor and the decedent stopped by Diane’s house, left with what she believed was a gun, and told her they were going to “whip some ass.” The State maintains the incident could have been in reference to when Curtis Taylor, armed with a .38, and the decedent went to Elizabeth’s house. If so, the State contends the proffered evidence was cumulative because Elizabeth, Curtis Taylor, and Buck all testified to these events. The defendant only needs to proffer the substance of the testimony, not every detail. See Marshall v. Mayflower Transit, Inc., 249 Kan. 620, Syl. ¶ 2, 822 P.2d 591 (1991) (“The standard for a satisfactory proffer is whether the proffer contains the substance of the excluded testimony.”). Moreover, defense counsel proffered a general time frame—after midnight in the early morning hours. Although the testimony varied about the time of the shooting, general consensus was that the shooting occurred between 1:00 and 2:00 a.m. The incident at Elizabeth’s occurred earlier in the evening. Contrary to the State’s assertion, Diane’s testimony was important.
The State claims Brent’s proffered testimony was not important because his testimony was not in agreement with the State’s evidence. Brent would have testified that he saw Curtis Taylor, not the defendant, shoot the decedent. The State points out that not one State witness put Curtis Taylor at the scene when the shooting occurred. The question is not whether the State’s evidence supports the proffered testimony. The question is whether the proffered testimony was substantial or trivial—whether it went to an important or minor issue. Brent’s testimony was crucial to the defense because the testimony went to the ultimate question of who shot the decedent.
Contrary to the trial court’s and the State’s conclusions, Brent’s testimony would not have been 180 degrees different from the State’s evidence. Without restating the evidence set forth above, there was circumstantial evidence, as well as direct evidence, to support the - conclusion that the defendant did not shoot the decedent.
In the context of whether the nondisclosure was willful, the State suggests defense counsel’s nondisclosure was simply a maneuver to surprise the State and to prevent the State from investigating the witness. If this were true, why did defense counsel suggest a recess to allow the State to question the witness? Such a recess would have eliminated the surprise element. If needed, a longer recess, could have been granted to allow the State time to investigate the witnesses.
Finally, the trial court failed to consider other options. The trial court did not attempt to avoid the severe sanction of refusing to allow defense witnesses to testify, which the Bright court viewed as a last resort.
The trial court abused its discretion by failing to address the rules set forth in Bright. Furthermore, applying these rules or factors to the. facts of ..this case supports the inclusion of the proffered testimony of Brent Rogers and Diane Germany. Additionally, with regard to the proffered testimony of Brent, the error was not harmless because Brent would have testified that he saw someone other than the defendant shoot the decedent. Simply because the State presented substantial evidence to the contrary should not deny the defendant the opportunity to present and support his defense. The exclusion of Diane’s testimony was not harmless because she would have placed the decedent and Curtis Taylor, together and in possession of a gun prior to the fatal shooting. Neither witness’ testimony would have been cumulative. The defendant’s conviction is reversed, and the case is remanded tó the trial court for a new trial.
The defendant also argues the trial court erred because it failed to instruct the jury on voluntary manslaughter and involuntary manslaughter as lesser included offenses of second-degree murder, the offense charged. He specifically requested the trial court to instruct on involuntary manslaughter, which the trial court refused. The court reasoned that there was no evidence the killing was unintentional and that the defendant had testified he did not fire the fatal shot.
“It is a familiar rule, as codified in the statute, that a trial court has an affirmative duty to instruct the jury on lesser included offenses, including lesser degrees of the same crime; however, this duty does not arise unless there is evidence supporting the lesser offense.” State v. Patterson, 243 Kan. 262, 267, 755 P.2d 551 (1988); see K.S.A. 21-3107. The trial court has an affirmative duty to instruct the jury on an appropriate lesser included offense regardless of whether the defendant requested the instruction. See State v. Bowman, 252 Kan. 883, Syl. ¶ 8, 850 P.2d 236 (1993).
A trial court has a duty to instruct on all lesser included offenses providing there is substantial evidence upon which the defendant reasonably might be convicted of those offenses. State v. McBroom, 252 Kan. 376, Syl. ¶ 1, .845 P.2d 654 (1993); State v. Deavers, 252 Kan. 149, Syl. ¶ 1, 843 P.2d 695 (1992); State v. Humphrey, 252 Kan. 6, Syl. ¶ 11, 845 P.2d 592 (1992); see State v. Lumbrera, 252 Kan. 54, Syl. ¶ 10, 845 P.2d 609 (1992) (“[T]he instruction need not be given if there is no evidence by which a rational factfinder might find the defendant guilty beyond a reasonable doubt of thé lesser included offense.”). The evidence, which must be viewed in the light most favorable to the defendant, may be inconclusive, unsatisfactory, and weak, and consist only of the defendant’s testimony. Deavers, 252 Kan. 149, Syl. ¶ 1; State v. Dixon, 252 Kan. 39, Syl. ¶ 1, 843 P.2d 182 (1992); State v. Evans, 251 Kan. 132, Syl. ¶ 2, 834 P.2d 335 (1992).
The defendant asks this court to clarify the discrepancy in our cases regarding whether the evidence supporting the lesser included offenses must be offered by the accused. In Patterson, 243 Kan. 262, Syl. ¶ 3; this court held that either the defendant or the State may offer the evidence supporting the lesser included instruction. In State v. Mayberry, 248 Kan. 369, 385, 807 P.2d 86 (1991), this court stated that “before instructions on lesser included offenses are required there must be positive testimony presented by the defense to prove á version of the homicide contrary to the version presented by the State.” (Emphasis added.) The determination of this matter is critical to the instant case because the defendant’s testimony and the defense evidence alone do not support instructions on voluntary manslaughter and involuntary manslaughter.
In support of its holding that either the State or the defendant may offer the evidence supporting the lesser included offense, the Patterson court relied upon State v. Armstrong, 240 Kan. 446, 460, 731 P.2d 249, cert, denied 482 U.S. 929 (1987), in which this court stated: “In order for the evidence to be sufficient to require instructions on lesser included offenses, testimony supporting such instructions must be offered either by the State or by the defense for the purpose of proving what events occurred at the time the homicide was committed.” The Armstrong court cited State v. Marks, 226 Kan. 704, 714, 602 P.2d 1344 (1979), for support. The language in Marks is almost identical to the language in Armstrong and is quoted below.
The Mayberry court cited State v. Garcia, 233 Kan. 589, 608-09, 664 P.2d 1343 (1983), for direct support and State v, Armstrong for indirect support. In Garcia, this court commented:
“We have also pointed out that before instructions on lesser included offenses are required there must be positive testimony presented by the defendant for the express purpose of proving a version of how the homicide occurred which is contrary to the version presented by the State. State v. Hutton, 232 Kan. [545,] 554, [657 P.2d 567 (1983)];. State p. Marks, 226 Kan. 704, 714, 602 P.2d 1344 (1979).” 233 Kan. at 608-09.
The Marks court stated:
“In order for the evidence to be sufficient to require instructions on.lesser degrees of the homicide, the testimony supporting such instructions must be offered either by the State or by the defense for the purpose of proving what events occurred at the time the homicide was committed. Contradictory statements of a witness which are offered only for the purpose of destroying his credibility and not as positive evidence to prove the matters contained in the statements are not alone sufficient to require an instruction on' the lesser degrees of homicide. In all of the cases where we have required instructions on the lesser degrees of homicide in a felony-murder case, there has been positive testimony of either the defendant or another. witness offered for the express purpose of proving a particular version of how the homicide occurred.” 226 Kan. at 714. “No positive testimony was offered by the' defendant orkny other Witness to show that the homicide occurred any differently than the way in which the State presented it or to support a conviction of.,a. lesser degree of homicide. Instead, the defendant relied upon, an alibi defense,. . ... As clearly pointed out in State v. Marks, there .must be positive testimony presented for the express purpose of proving a version -of how the homicide occurred which is contrary to the version'presented by the State befdre instructions on lesser included offenses are required.’1’ 232' Kan. at 554-551
In State v. Hutton, 232 Kan. 545, 554, 657.P.2d 567 (1983), this, court quoted the above and then noted “no evidence, was presented to refute the State’s theory of premeditated or felony murder.” The Hutton court continued:
The Mayberry and Garcia opinions used loóse language construing Marks. The Marks court clearly stated that either the State or the defendant could offer the evidence tending to support the instruction of a lesser included offense. The statement about “positive testimony of either the defendant or another witness” is made in the context of felony murder. Marks, 226 Kan. at 714. In felony-murder cases, such as Marks, “the rule requiring instructions on lesser, included offenses does not apply.
. . . Instructions on lesser included offenses may be required only if the evidence supporting the commission of the underlying felony is weak, inconclusive, Or conflicting.” State v. Nguyen, 251 Kan. 69, Syl. ¶ 14, 833 P.2d 937 (1992). See State v. Hobbs, 248 Kan. 342, Syl. ¶ 3, 807 P.2d 120 (1991). Mayberry, Garcia, and the instant case are not felony-murder cases. The statements in Mayberry and Garcia that there must be positive testimony presented by the defendant supporting a lesser included instruction before the trial court is required to give that instruction are overly broad. Evidence supporting a lesser included instruction may be presented by either the defendant or the.State.
It would serve no useful purpose to determine whether the trial court commited reversible error in not giving lesser included offense instructions in this case because a new trial is required on the first issue. When the case is retried, the trial judge will have to make a decision based upon the evidence presented in the new trial, which could have at least three new witnesses.
One further comment is necessary. Part of the trial court’s reasoning in refusing to instruct the jury on involuntary manslaughter was that the defendant testified he did not fire the fatal shot. This alone is not a sufficient basis to refuse to give an instruction. If there is substantial evidence that would support a finding of involuntary manslaughter, then such an instruction should be given notwithstanding a defendant’s testimony that he or she did not commit the act resulting in death. See State v. Rutter, 252 Kan. 739, 850 P.2d 899 (1993) (discussing State v. Smith, 161 Kan. 230, 167 P.2d 594 [1946], in which it was held the evidence warranted a self-defense instruction even though the instruction was not requested and the defendant denied committing the act from which the death resulted).
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Per Curiam:
This is an original proceeding in discipline filed by the Office of the Disciplinary Administrator against Gregory B. King, an attorney admitted to the practice of law in Kansas. Two separate complaints were filed, case No. B5312 and case No. B5232, which were consolidated for hearing before the Kansas Board for the Discipline of Attorneys (Board) and this court. The facts, as determined by the hearing panel of the Board (the panel) are not disputed by respondent.
The following findings and recommendations were made by the panel:
CASE NO. B5312
“1. [Respondent] is an attorney at law ....
"2. Complainant Marlin A. Ferguson met with respondent on July 24, 1991, to discuss obtaining representation in connection with the estates of Allison and Martha Hanna, complainant’s grandfather and his wife. Martha Hanna died intestate on November 18, 1990, and Allison Hanna died testate on May 8, 1991. The complainant paid respondent $100.00 on July 24, 1991, which amount was to compensate respondent for the initial office visit and was to be deducted from the retainer of $750.00 that respondent required to accept the representation. Complainant agreed to the balance of the retainer, $650.00, on July 31, 1991.
“3. On September 20, 1991, Carolyn Jimmerson, the Complainant’s fiancee, contacted the respondent and told him that the complainant was now in a position to pay the remainder of the retainer. On September 24, 1991, the complainant sent the respondent a registered letter which contained the will of Allison Hanna and the death certificates of both Allison and Martha. The letter also contained a $650.00 check. That check was mistakenly de posited in the respondent’s office account and not his trust account; shortly thereafter the office account was frozen upon the filing of an Internal Revenue Service lien.
“4. Just prior to depositing the complainant’s $650.00 check, the respondent had accepted a new job with the Department of Housing and Urban Development. His supervisor told the respondent that he would not be able to maintain a private practice other than what was necessary to wind up his work in progress. The complainant was informed of these developments.
“5. The respondent took no further action to probate the estate after accepting the complainant’s retainer. He also failed to keep the complainant advised of the status of the cases.
“6. Complainant Ferguson went to respondent’s office on October 28, 1991, but concluded the office had been closed. Respondent denies the office had been permanently closed as of that date. In any event, complainant’s efforts to contact respondent were fruitless. On November 10, 1991, the complainant’s fiancee attempted to reach respondent at his home, speaking to respondent’s wife. Later that day, respondent returned Carolyn Jimmerson’s call. Arrangements were made for respondent to meet the complainant the next day at the public library in Kansas City, Kansas. The complainant was late for the appointment at the library and by the time he arrived the respondent had left.
“7. On November 11 the complainant went to the respondent’s residence. Respondent offered no explanation for his failure to file a petition to probate the will of Allison Hanna. Respondent wrote the complainant a post-dated check for $650.00 on his office account to repay the retainer. Complainant was advised the check would not be good until November 15, 1991. Respondent did not advise complainant that the deadline for filing Allison Hanna’s will was imminent or had passed.
“8. The complainant was the primary beneficiary under the will of Allison Hanna, but he is not an heir at law. Respondent failed to file the will and failed to advise complainant of the deadlines for filing wills as set forth in K.S.A. § 59-617. Subsequently, complainant’s cause was taken up by a different attorney; Allison Hanna’s will was admitted to probate without challenge despite the unseemly time delay.
“9. The check respondent had given to complainant was not honored by the bank. Numerous attempts to contact respondent were unsuccessful, but finally, Ms. Jimmerson reached respondent on December 20, 1991. On December 26, 1991, respondent gave complainant a cashier’s check for $650.00.
“10. Respondent admits that his conduct in this matter violated MRPC 1.1 [1992 Kan. Ct. R. Annot. 244] [competence], 1.3 [1992 Kan. Ct. R. Annot. 248] [diligence], 1.4 [1992 Kan. Ct. R. Annot. 251] [communication], 1.15 [1992 Kan. Ct. R. Annot. 281] [safekeeping property], 1.16 [1992 Kan. Ct. R. Annot. 286] [declining or terminating representation], and 3.2 [1992 Kan. Ct. R. Annot. 294] [expediting litigation]. The panel concurs violations of these rules are established by clear and convincing evidence.
CASE NO. B5232
“11. The second matter here at issue involves certain members of the Kansas City, Kansas, Chapter of the International Association of Black Professional Fire Fighters, Inc. (hereinafter “PRIDE”) who believed the City and the International Association of Firefighters Local No. 64 were discriminating against African Americans and other minorities in hiring and promotion practices.
“12. In November 1986 several officers of PRIDE contacted attorney Elmer Jackson about a potential lawsuit against the City and the union based on these concerns. Their initial meeting was with Mr. Jackson and the respondent on November 26, 1986.
“13. An initial retainer of $2,000.00 was paid to Mr. Jackson on or about November 13, 1986, before PRIDE’s first conference with counsel. An oral fee arrangement was concluded at the first meeting for an hourly fee of $100.00 for all time expended and for expenses.
"14. At the time of the initial meeting with the officers of PRIDE, Elmer Jackson and Gregory King shared office space and had entered into an arrangement with one another whereby King would assist Jackson in handling various matters which came to Jackson. Any fee received for such services would be split equally between Jackson and King regardless of the time expended by either.
“15. Elmer Jackson and Gregory King worked jointly on the case until their case sharing arrangement ended as the result of a fee dispute during the late spring and early summer of 1988.
“16. At the time that Jackson and King ended their working relationship, Jackson advised the officers , of PRIDE that they should determine which lawyer they wanted to continue their representation. At that time the case was still in the investigatory stage. PRIDE elected to have King continue their representation. Jackson provided all the files and records he had on the matter to King.
“17. On June 14, 1988, one and one-half years after counsel was retained, PRIDE’s charge of discrimination was filed with the Equal Employment Opportunity Commission (hereinafter “EEOC“). On November 21, 1989, respondent amended the EEOC charge by adding class action allegations. The EEOC closed its investigation and issued a right to sue letter on December 30, 1989.
“18. On March 5, 1990, PRIDE gave King $120.00 for a filing fee. On March 30, 1990, King filed a complaint in federal district court. The International Association of Black Professional Fire Fighters, Inc. was named as plaintiff. No individuals were named as plaintiffs. The lawsuit alleged it was. brought on behalf of a class of plaintiffs and sought both monetary relief for each individual member of the class and equitable relief in the form of an injunction. Defendants named in the suit were the City of Kansas City, Kansas and the International Association of Firefighters Local No. 64. Both of the defendants were timely served and filed answers.
“19. In April of 1990, and May of 1990, both defendants served written discovery requests upon the plaintiff. Extensions of time were obtained by King to respond to the requests. Responses were eventually filed by King although after the extended due dates.
“20. On June 20, 1990, the federal court issued a Scheduling Order establishing the following deadlines: September 28, 1990, for plaintiff to identify experts; October 22, 1990, for discovery; and November 26, 1990, for the filing of dispositive motions. A discovery conference was scheduled for September 26, 1990.
“21. On August 16, 1990, the union filed a motion for partial summary judgment seeking to dismiss all claims for any individuals for back pay, front pay, lost seniority or other monetary damages upon the basis that the PRIDE organization had no standing under the law to bring such claims. The City joined in the motion on September 11, 1990.
“22. On September 26, 1990, a discovery conference was held with the court. The plaintiff was given an extension until October 19, 1990, to identify experts. Discovery was extended until January 21, 1991. Witness and exhibits lists were due January 31, 1991. Dispositive motions were required to be filed by February 25, 1991. At that conference, upon oral motion by the plaintiff’s counsel and over defendants’ objections, the plaintiff was given until October 15, 1990, to certify the complaint as a class action pursuant to the federal rules.
“23. On October 16, 1990, PRIDE at King’s request gave him a check in the amount of $1,000.00 for witness fees. This money was to be used to secure an expert witness and for litigation expenses.
“24. On July 9, 1990, PRIDE had given respondent a list of individuals to be contacted as potential expert witnesses. Indeed, PRIDE’s officers called one potential expert themselves but although King and the expert made some effort to establish contact, they were unsuccessful. The deadline of October 19, 1990, for identifying experts came and passed without respondent’s filing any designation.
“25. On October 19, 1990, the federal district court issued its memorandum and order granting the defendants’ motions for partial summary judgment and striking all the plaintiff’s claims for monetary relief. The court’s order noted that plaintiff’s counsel had filed no response to the motions and the deadline had long since passed.
“26. Respondent had failed to notify PRIDE that dismissal motions had been filed against the plaintiff. PRIDE’s members first learned of the motions and the court’s action on them by means of a newspaper article.
“27. PRIDE scheduled a meeting with respondent for October 29, 1990, to share their growing dissatisfaction with respondent’s representation and their desire to receive significant documents and keep abreast of their legal affairs.
“28. At the meeting, King assured PRIDE that he had the capability to continue their representation. He failed to produce any of the requested documents for their review at the meeting. He also failed to inform them of the motion filed by defendants five (5) days earlier and described in the following paragraph.
“29. On October 24, 1990, the defendants filed a motion to strike class action allegations based on the failure of plaintiff’s counsel to certify the complaint as a class action by the court imposed deadline of October 19,' 1990. King sought and received two (2) extensions of time to respond to the motion. On January 22, 1991, he filed a response to the motion stating that the defendants had not been prejudiced' by the delay and the court had an obligation of its own to certify the class.
“30. On November 19, 1990, the union and the City identified their expert witnesses. Noted in the designation was the fact that plaintiff had failed to identify any expert witnesses by the October 19, 1990, deadline.
“31. On January 22, 1991, a pretrial conference was held. Discovery in the case was continued until January 31, 1991. The deadline for filing witness and exhibit lists was extended to February 28, 1991. The deadline for dispositive motions was extended to April 1, 1991.
“32. No listing of witnesses and exhibits was ever filed by King.
“33. On May 29, 1991, the officers of PRIDE sent another letter to King stating that it had been several months since they received any written or oral communication from him. They requested a written reply as to the status of the litigation and expressed concern over a statement reportedly made by the union’s president that the case would be dismissed by the court within the next thirty (30) days and he hoped the union would get back the monies spend on the litigation.
“34. The following day, May 30, 1991, the union filed its motion for summary judgment. In that motion, it alleged among other grounds, that the matter should be dismissed for the following reasons: (a) plaintiff’s failure to timely file with the EEOC; (b) the lack of expert or statistical testimony or evidence; (c) the union lacked the authority to take the action requested; (d) the lack of any deposition testimony taken on behalf of the plaintiff concerning the hiring or promotion practices of the City; and (e) failure to obtain or produce any raw data or test scores in support of the claim. On June 14, 1991, the City of Kansas City, Kansas, filed a similar motion.
“35. King did not respond to the May 29, 1991, letter from PRIDE nor did he inform his client of the filing of the motion for summary judgment.
“36. On July 3, 1991, PRIDE learned that the motions for summary judgment had been filed by checking the court files. The officers of PRIDE demanded a meeting with King which occurred on July 8, 1991. On July 9, 1991, King sent a letter to PRIDE confirming part of the discussions at the July 8, 1991, meeting. That letter confirmed that both defendants had filed motions for summary judgment and set out that the options available to the plaintiff were (1) to allow the judge to rule on the motions and appeal if the motions were granted, or (2) to dismiss the case either with or without prejudice. The potential for assessment of fees if the case were dismissed with prejudice was also discussed.
“37. King still had not provided PRIDE with copies of any documents. As a result, on July 10, 1991, members of PRIDE went to the courthouse and expended $106.00 having photocopies of the case file produced. On August 1, 1991, additional costs of $9.00 were incurred in copying subsequent pleadings.
“38. On July 16, 1991, after reviewing the court file, PRIDE representatives contacted King at his home. King was told that he had gotten PRIDE into this mess and he should get it out. King replied that he would take care of it.
“39. On July 19, 1991, King filed a motion for dismissal without prejudice or in the alternative for enlargement of time to respond to summary judgment motions. The defendants filed a motion to dismiss with prejudice or the court to rule on the summary judgment motions to which King had not responded. Oral argument was set for August 26, 1991. King also filed a motion for leave to withdraw based on the concerns of PRIDE raised at the July 8, 1991, meeting with his management of the case and dissatisfaction with his services.
“40. On August 26, 1991, the court heard oral argument on the motions. The court refused to grant plaintiff -a dismissal without prejudice. The court granted King’s motion to withdraw and gave the plaintiff thirty (30) days to find new counsel and thirty (30) days thereafter to respond to the outstanding motions for summary judgment.
"41. On September 27, 1991, the PRIDE organization retained Bryan Nelson, who entered an appearance. After a review of the status of the case, Nelson advised PRIDE that under the existing circumstances they could not prevail at a trial on the merits. PRIDE authorized him to attempt settlement and if such could not be achieved, to dismiss the case with prejudice.
“42. Settlement negotiations in the matter were fruitless and on February 2, 1992, the court entered a memorandum and order dismissing the case with prejudice for failure to prosecute.
“43. King failed to provide PRIDE with an itemized statement for his services despite numerous requests by PRIDE. He failed to provide an itemized statement of expenses and failed to account to PRIDE for the $1,000.00 paid to him for such expenses on October 16, 1990. The only expense of litigation incurred by King was to Metropolitan Court Reporters in the amount of $2,809.90 for copies of depositions taken by the defendants. Metropolitan Court Reporters has not been paid.
“44. Respondent admits that his conduct in this matter violated MRPC 1.1, 1.2 [1992 Kan. Ct. R. Annot. 246] [scope of representation], 1.3, 1.4, 1.5 [1992 Kan. Ct. R. Annot. 254] [fees], 1.15, 3.1 [1992 Kan. Ct. R. Annot. 293] [meritorious claims and contentions], and 3.2. The panel concurs that violations of those rules have been established by clear and convincing evidence.
“45. Most of respondent’s professional life has been spent with the United States Department of Housing and Urban Development, which he presently serves as director of Fair Housing, Enforcement Division, in the office of Fair Housing and Equal Opportunity. Respondent manages a staff of investigators responsible for [pursuing] housing complaints in Iowa, Missouri, Kansas, and Nebraska. Respondent also lectures on housing discrimination law. It is not necessary that respondent hold a license to practice law in order to maintain his position with HUD.
“46. Respondent graduated from law school in 1978 and worked for public agencies, principally HUD, until February of 1984 when he essayed private practice in an office-sharing arrangement with Elmer Jackson. It appears that respondent’s difficulties multiplied in mid-1988 when he and Mr. Jackson ended a case sharing relationship because of a fee dispute.
“47. King acknowledges that he accepted more work than he should have done and was overextended. Further, the PRIDE case overwhelmed and intimidated him. He had never before handled a class action. A Supreme Court decision in 1989 (Wards Cove Packing Co. v. Atonio, 490 U.S. 642 [1989]) rendered the PRIDE case at best very difficult and perhaps impossible to win. However, respondent had no frank conversation with his client about the improbability of success until years later when he read Wards Cove because it was cited in a summary judgment motion.
“48. Respondent has no prior disciplinary record.
“49. Respondent has a distinguished record of public service. He has served as chair of the Kansas City, Kansas, Human Relations Commission and as a member of the boards of The Santa Fe Trails Council of the Girl Scouts and the YMCA. He served The Kaw Valley Arts Council and Leadership 2000 and gives motivational speeches to youths.
“50. Respondent’s supervisor, two peers, and two respected jurists have submitted letters in support of his character and fitness to practice law.
“51. Nonetheless, PRIDE is out of pocket a not insignificant figure, estimated by Jerhome B. Randolph to be $9,400.00, an amount that does not include the sum of $2,809.90 owed to court reporters. Further, their opportunity to have their day in court was compromised by respondent’s conduct. Complainant Ferguson had to expend some considerable effort to recoup the retainer paid to respondent. Further, complainant was fortunate that circumstances permitted him to take under the Hanna will after respondent had permitted the time for filing the will to lapse.
“52. Respondent found the “boom or bust’ nature of private sole practice very difficult to manage, both practically and emotionally. While the committee is not prepared to label his conduct in these cases as self-dealing, it comes perilously close to the mark.
“53. A majority of the panel recommends that respondent be suspended from the practice of law for one year and that respondent repay to PRIDE the $2,000.00 that he received from that organization.”
One panel member recommended public censure.
King did not file exceptions to the report, findings, and recommendations (with the exception of the recommended disci pline) as embodied in the final hearing report of the panel. King filed a written statement in which he asked this court to adopt the minority’s recommendation of public censure. King also sought a clarification by this court as to whether the panel’s recommended discipline included the outstanding balance owed to Metropolitan Court Reporters in connection with the PRIDE litigation.
After a review of the record before this court, we agree with and adopt the panel’s findings, conclusions, and recommendations. As a point of clarification, we are not requiring the respondent to pay the balance owed the court reporters. We were informed during oral argument that the reporters have filed suit against respondent for the amount owed and that litigation is ongoing.
It Is Therefore Ordered that Gregory B. King be suspended from the practice of law for a period of one year in accordance with Supreme Court Rule 203(a)(2) (1992 Kan. Ct. R. Annot. 153) for his violations herein.
It Is Further Ordered that Gregory B. King reimburse PRIDE the sum of $2,000 in accordance with Supreme Court Rule 203(a)(5).
It Is Further Ordered that Gregory B. King shall forthwith comply with Supreme Court Rule 218 (1992 Kan. Ct. R. Annot. 176).
It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of the proceeding be assessed to the respondent. | [
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The opinion of the court was delivered by
Herd, J.:
This is a medical malpractice action filed by the survivors of Patricia Wozniak against Dr. Jay Lipoff for negligence in the treatment of Wozniak’s Graves’ disease. The jury returned a verdict finding Wozniak to be 20% at fault and Dr. Lipoff to be 80% at fault. Judgment was therefore entered against Dr. Lipoff for $584,000, 80% of the total damages of $730,000 found by the jury. Dr. Lipoff appeals.
Patricia Wozniak had worked for Dr. Lipoff as his medical secretary since June of 1982. In July of 1984, Dr. Lipoff ran tests on Wozniak after noticing her eyes had begun to bulge and her thyroid gland was enlarged. The tests showed Wozniak to be hyperthyroid, and Dr. Lipoff, diagnosing her case as Graves’ disease, agreed to treat Wozniak at her request.
Graves’ disease is a disease of the thyroid gland whereby the gland secretes excessive thyroid hormone. The hormone affects many bodily functions. When an excess is produced, the body’s basic metabolism speeds up, or as one expert expressed it, the engine races. The heart rate accelerates, the brain functions too rapidly, appetite increases, and inappropriate sweating occurs. Such hyperthyroidism is dangerous and may result in the inability to concentrate, confusion, insomnia, heart palpitations leading to a heart attack, and other serious problems. The patient becomes anxious and irritable, and engages in inappropriate behavior and may develop serious psychiatric problems. Objective physical signs may include severe weight loss, significant enlargement of the thyroid gland, and bulging eyeballs. Because of its diverse effects on the patient, Graves’ disease is considered a “whole body” disease.
One of the ways in which Graves’ disease can be controlled is through drug therapy. The therapy usually takes about two years, and has about a 40-50% success rate. If the therapy is not eventually successful, the gland must be partially removed by surgery or radioactive iodine. Dr. Lipoff testified Wozniak chose to begin with drug therapy, and he accordingly prescribed a 300 mg. daily dosage of Propylthiouracil (PTU), a drug commonly used in the treatment of Graves’ disease to inhibit the hormone excretions.
Accepted PTU treatment consists of starting the patient on a relatively high dosage with gradual reduction to a lower maintenance dosage after the thyroid is functioning normally. This treatment is continued for eighteen months to two years to prevent relapse. If the remission is not permanent, the disease must be treated anew. The treatment period is so prolonged because it takes considerable time to determine what effect a particular dosage has on the production of thyroid hormone.
On September 5, 1984, Dr. Lipoff increased Wozniak’s dosage to 600 mg. after tests showed she was, although improving, still hyperthyroid. October and November tests showed Wozniak to be functioning in the upper limits of the normal range for thyroid function.
Shortly after Thanksgiving, however, Wozniak evidenced severe anxiety at the office. She kept handing her keys to Dr. Lipoff, informing him he had fired her. Five minutes after being informed she had not been fired, she would again return the keys, saying she was sorry he had fired her. She would cry without provocation and seemed to think people were watching her suspiciously. Dr. Lipoff, although finding her behavior increasingly inappropriate and noting she showed “thought disorder and paranoid ideation,” did not talk to her or her family about the deep depression sometimes associated with Graves’ disease.
Wozniak’s mental condition had become so unbalanced by December that Dr. Lipoff diagnosed her as suffering from paranoid schizophrenia and arranged for her husband to hospitalize her while Dr. Lipoff was out of town. After arranging for a consultation with a psychologist, Dr. Frederick Tirrell, Dr. Lipoff changed his diagnosis of Wozniak’s mental condition to depression.
It is claimed Wozniak’s depression was a mental illness which was unrelated to Graves’ disease. But there was no evidence Wozniak had ever suffered any form of mental illness prior to developing Graves’ disease. Dr. Burglass found absolutely no prior history of depression. He testified it would be very unlikely for the depression to be unrelated to Graves’ disease.
December thyroid tests showed Wozniak’s thyroid function to have dropped to the low normal range. Concerned she might become hypothyroid, Dr. Lipoff reduced Wozniak’s PTU dosage to 300 mg. upon admission to the hospital. He also prescribed an antipsychotic drug, Haldol, and a 75 mg. daily dosage of the antidepressant drug Sinequan.
Wozniak was clearly depressed during the first days of her stay in the hospital and was so characterized by hospital staff. She continued to cry and it was reported she spoke of suicide. By December 20, however, Dr. Lipoff saw clear signs of improvement.
Wozniak continued to display the obvious and classic signs of Graves’ disease. Her eyeballs bulged, she was “jittery and flighty,” and the large goiter on her neck had not decreased in size. Further thyroid function testing caused Dr. Lipoff to believe, however, that Wozniak was borderline hypothyroid and he stopped PTU treatment altogether on December 21.
Although Wozniak was reported to be still having crying spells on December 22, Dr. Lipoff felt her depression was greatly improved. He released her from the hospital, but increased her dosage of Sinequan to 100 mg.
He gave her a prescription of 60 pills with three refills. The manufacturer of Sinequan published the following warning concerning the drug:
“Since suicide is an inherent risk in any depressed patient and may remain so until significant improvement has occurred, patients must be closely supervised during the early course of therapy. Prescriptions should be written for the smallest feasible amount.”
Wozniak did not return to work over the Christmas season. On December 24, Dr. Lipoff put Wozniak back on PTU at 50 mg. a day, but he again stopped the drug completely on December 26.
Wozniak was to have seen Dr. Tirrell, the psychologist, on December 26, but cancelled the appointment. He insisted she see him on the 27th and during that appointment learned she was unhappy with Dr. Lipoff both as her employer and her physician.
Wozniak had an appointment with Dr. Lipoff on December 31, which he had to cancel because of a snowstorm. He was unable to reach Wozniak to tell her. Accordingly, she was angry when she showed up and he was not there. He called her at home that evening and tried to make a new appointment, but she refused.
On January 3, 1985, Dr. Tirrell saw both Wozniak and her husband and suggested she see Dr. Milgram, a psychiatrist. Dr. Milgram insisted Wozniak first see an endocrinologist, and an appointment with Dr. David Sneid was set for January 7, 1985.
On January 4, Wozniak and her son went to Dr. Lipoff s office to get her records for the appointment with Dr. Sneid. Wozniak’s son testified Dr. Lipoff was rude to them and questioned Wozniak’s decision to see an endocrinologist. He informed them the records would not be available until later because they had to be photocopied.
At the January 7 appointment with Dr. Sneid, Wozniak seemed calm and asked appropriate questions. She killed herself the next day with an overdose of approximately 55 pills of Sinequan.
The first issue to be considered is whether the trial court erred in denying Dr. Lipoff s motion for a directed verdict. The trial court was required to submit the case to the jury if the evidence and all inferences reasonably drawn therefrom, viewed in the light most favorable to the party against whom the ruling was sought, were such that reasonable minds could differ on the conclusion to be drawn. In reviewing the trial court’s denial of the motion, our scope of review is the same; if the evidence or the inferences which may be drawn therefrom could, when viewed in the light most favorable to the party opposing the motion, reasonably support different conclusions, the decision is properly one for the jury. Sampson v. Hunt, 233 Kan. 572, 578, 665 P.2d 743 (1983).
Three elements must be proven through expert testimony in order for a plaintiff to prevail in a medical malpractice case: (1) that a duty was owed by the physician to the patient; (2) that the duty was breached; and (3) that a causal connection existed between the breached duty and the injuries sustained by the patient. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983).
In order to resolve appellant’s first issue of error, let us examine each of plaintiffs’ allegations of negligence and the evidence introduced in support of them. These claims will be referred to later in the discussion of other issues.
First: Plaintiffs claim the defendant failed to refer Patricia Wozniak to an appropriate consulting physician despite his lack of experience and his difficulty in managing this particular case.
Dr. Lipoff is an internist rather than an endocrinologist, and had limited training and experience in treating Graves’ disease.
Defendant’s own expert, Dr. Leslie DeGroot, when asked when referrals were proper, stated, “The rules are that whenever the diagnosis is in doubt or when there’s a complication, that one should get referral.” Dr. DeGroot and Dr. Joseph Kyner, an endocrinologist testifying for defendant, further testified that the two critical factors in determining when a referral is needed are the condition of the patient and the experience of the treating physician.
Wozniak’s condition was obviously unstable; tests showed a decrease in thyroid function, but the symptoms of Graves’ disease remained. Her depression was so severe she required hospitalization. The experts agreed psychiatric problems are one of the complications possible with Graves’ disease.
Dr. Lawrence Gavin, plaintiffs’ expert, testified it would have been appropriate under the circumstances for Dr. Lipoff to have called in an endocrinologist.
We conclude there was sufficient evidence of Dr. Lipoff s negligence to submit the issue to the jury.
Second: Plaintiffs claim the defendant failed to formulate and communicate a definitive treatment plan for the decedent’s condition despite the requirement of the development of such a plan and medical knowledge that the communication of the plan to the patient on an understandable basis would be a critical element in the successful treatment of this condition.
Dr. Milton Burglass, a psychiatrist who qualified as an expert on the relationship between depression and Graves’ disease, testified reassurance from the treating physician that the condition would get better was very important to a patient with Graves’ disease. Both Dr. Gavin and Dr. DeGroot testified it was extremely important, in the treatment of Graves’ disease, that the “whole person” be treated because of the emotional problems caused by it. Dr. Gavin, Dr. Kyner, and Dr. Sneid all testified it was important that the disease, with its complications, treatments, and side effects, be carefully explained to the patient.
Dr. Lipoff testified he had discussed with Wozniak the different methods which could be used to treat the disease, and Mary Montgomery, another employee of Dr. Lipoff s, testified she saw Wozniak reading a pamphlet about the disease. Both Dr. Sneid and Dr. Gavin, however, reported that a review of Wozniak’s medical records showed no notation that such an explanation of the disease had been given her. Dr. Gavin testified the lack of explanation to Wozniak about the possible consequences of her disease was a deviation from acceptable medical care.
Dr. DeGroot testified that by December, when Wozniak’s mental problems were increasingly apparent, Dr. Lipoff also had the duty to discuss the problems of Graves’ disease with Wozniak’s husband.
Though contradicted, we find sufficient evidence to submit this issue to the jury.
Third: Plaintiffs claim the defendant failed to give sufficient weight and consideration to the opinion of the consultant obtained by defendant in the treatment of the deceased.
The only person Dr. Lipoff consulted was a psychologist, Dr. Tirrell, soon after Wozniak was admitted to the hospital. Dr. Tirrell recommended aggressive treatment of Wozniak’s Graves’ disease. Instead, Dr. Lipoff discontinued the medication designed to treat Graves’ disease. Dr. Gavin testified discontinuation of PTU therapy would certainly not constitute “aggressive treatment” of the disease. This constitutes sufficient evidence to submit the issue to the jury.
Fourth: Plaintiffs contend the defendant failed to communicate necessary information regarding the treatment of Patricia Wozniak to the consultant although the defendant knew the consultant would continue to treat her.
Dr. Tirrell testified he thought he would have “insisted we get going with something,” had he known Dr. Lipoff had discontinued PTU treatment. Rut Dr. Lipoff did not give his consultant this information. Dr. Kyner testified a consultant should be informed of changes in the treatment of Graves’ disease.
Dr. Lipoff admitted Dr. Tirrell had the right to be informed of changes in medication. Recause Graves’ disease is a “whole body” disease, it is important that the expert treating psychological problems and the expert treating physical problems be aware of each other’s actions. We find sufficient evidence for consideration by the jury.
Fifth: Plaintiffs allege the defendant negligently entered into treatment of a person who was his employee for a disease that had psychological, psychiatric, and emotional components, and which placed the doctor and patient into a conflicting relationship with that of employer and employee, and this conflict eventually proved to be a factor in the death of Patricia Wozniak.
Dr. DeGroot, Dr. Kyner, and Dr. Sneid all testified it was important for a Graves’ disease patient to be in a restful and non-stressful environment. Dr. DeGroot said it was possible the employer-employee relationship between Dr. Lipoff and Wozniak could have instead exacerbated stress on Wozniak. There was also testimony Wozniak’s job responsibilities increased while she was being treated, as she was in part responsible for training three new staff members between September and December.
This allegation of negligence was therefore properly presented to the jury.
Sixth: Plaintiffs’ next allegation is the defendant negligently failed to properly advise Patricia Wozniak or her family concerning the symptoms of Graves’ disease, the treatment modalities accepted for the condition, and the existence or nonexistence of side effects from the program of therapy.
The resolution of this issue was clearly dependent on which evidence was believed. Dr. Lipoff testified he discussed with Wozniak the different methods of treatment of Graves’ disease, and Mary Montgomery testified she noticed Wozniak reading a pamphlet on the disease. But both Dr. Sneid and Dr. Gavin testified the medical records showed no indication Dr. Lipoff had advised Wozniak or her family about the disease.
Dr. Kyner testified Dr. Lipoff had the duty, because of the manufacturer’s warning, to warn both Wozniak and her family about the dangers of Sinequan. There was evidence Dr. Lipoff did not do so. The issue is clearly one for the jury.
Seventh: Plaintiffs next claim the defendant negligently prescribed a quantity of a psychotropic drug, sold under the brand name of Sinequan, in contradiction to and violation of the advice and caution of the manufacturers of this drug, which directly caused the death of Patricia Wozniak.
Dr. Burglass testified it would be extremely unlikely that Wozniak’s depression would have been cured within the short time she was on Sinequan in the hospital. He testified she was certainly still depressed when released. Dr. Lipoff s own notes indicated his belief “[i]t is important to note that Sinequan will take at least seven to ten days to produce the desired effect.” Yet he increased the dosage after only seven days and released Wozniak with a prescription for 60 pills with three refills.
Dr. Kyner testified Wozniak’s dosage was not “the smallest feasible amount” required by the manufacturer’s warning. Dr. Burglass testified a physician must be “very careful” in the use of Sinequan with a Graves’ disease patient, and should see such a patient “every two days” to monitor his or her progress. This does not mean that Dr. Burglass testified a two-day supply was the smallest feasible amount which might be prescribed if he was going to see a patient every two days.
Dr. Burglass stated, “There is an indication that tricyclic antidepressants are prone to have an exaggerated cardiac toxicity in hyperthyroid patients, so one has to be very, very cautious about its use .... Doesn’t mean that one couldn’t use it, but one would have to be very, very cautious about its use and monitor the person extremely, extremely closely.”
The evidence on this claim of negligence presented a jury question.
Eighth: The plaintiffs allege the demeanor and attitude of the defendant as expressed through his acts and statements made toward the decedent were in direct contradiction to and violation of all standards relating to the care of the endocrine condition of Graves’ disease and directly contributed to the death of Patricia Wozniak.
The testimony was unanimous that Graves’ disease is a complicated and dangerous disease in which it is essential that the whole person be treated because depression is one of its complications. Dr. Burglass testified depression is the major cause of suicide. There was testimony a Graves’ disease patient may typically feel she is rapidly deteriorating and will never get better. The treating physician’s reassurance and availability, it was stated, are needed to maintain patient stability. There was also testimony that a non-stressful environment is helpful to the treatment of the disease. Yet, there was testimony Dr. Lipoff did not discuss the ramifications of the disease with Wozniak and, instead, increased her work load.
Despite medical knowledge that severe depression is a complication of Graves’ disease, Dr. Lipoff labeled her a paranoid schizophrenic and had her husband hospitalize her while Dr. Lipoff was out of town.
When Wozniak’s depression continued in the hospital, there was testimony Dr. Lipoff became impatient with her and told her she was being “too difficult.” She was still having crying spells on the day he released her from the hospital, but he testified he believed she was without depression.
Wozniak’s son testified Dr. Lipoff was rude to Wozniak when she came to pick up her medical records and questioned her decision to consult an endocrinologist.
Given the foregoing evidence, a fact question for the jury was presented.
Ninth: Plaintiffs also allege the defendant ignored numerous and obvious symptoms and signs that the decedent continued to suffer from Graves’ disease and discontinued treatment.
Dr. Lipoff relied on tests and found Wozniak to be euthyroid despite her continued enlarged thyroid, bulging eyeballs, and nervousness — all classic symptoms of Graves’ disease. Dr. Gavin testified the enlarged goiter should have been a “warning feature,” because patients who are actually in remission “tend to get a marked shrinkage of the gland.”
Dr. Gavin testified he “would not consider the overall care of Mrs. Wozniak’s Graves’ disease to be consistent with standard medical practice.” He testified Dr. Lipoff failed to provide Wozniak with an acceptable level of care when he failed to maintain her on PTU for a longer period of time and failed to decrease the dosage gradually. When asked about Dr. Lipoff s termination of PTU treatment, Dr. Gavin called it “totally inappropriate.” He testified medical knowledge showed Wozniak was “at a very high risk of relapse,” and that “knowing this information in the setting of somebody with an acute psychiatric disturbance” made the cessation of treatment especially inappropriate.
We find sufficient evidence for this claim to go to the jury.
We hold there was competent evidence introduced in support of each allegation of negligence, which included the three essential elements required in a medical malpractice case. Thus, the trial court did not err in overruling the motion for a directed verdict.
Dr. Lipoff next argues that because the jury returned a general verdict the verdict cannot be sustained by this court unless sufficient evidence is found to support all the specific negligence claims. He claims the evidence was insufficient to support the general verdict. However, our having found sufficient evidence to support the submission of each claim to the jury refutes this argument. A general verdict will stand if any of the allegations of negligence is supported by competent evidence in the absence of erroneous instructions. The cases upon which Dr. Lipoff relies involve erroneous instructions.
Dr. Lipoff argues the trial court erred in instructing the jury on allegations of negligence which were not included in the pretrial order. The alleged errors are contained in Instructions No. 3 and No. 12, to which Dr. Lipoff made contemporaneous objections.
Instruction No. 3 provides:
“The family of Patricia Wozniak, deceased, brings this action. The survivors and heirs of Patricia Wozniak are Gerald Wozniak, Richard Craig Conti, Christina Wozniak, and Christopher Wozniak.
“The claim being made by the family against the defendant is that he negligently treated Patricia Wozniak for an extreme hyperthyroid condition called Graves’ Disease. The specific complaints under this allegation of negligence are as follows:
“1. The defendant failed to refer Patricia Wozniak to an appropriate consulting physician despite his difficulty in managing this particular case, and despite his lack of experience with Graves’ Disease.
“2. The defendant failed to formulate and communicate a definitive treatment plan for the decedent’s condition despite the requirement of the development of such a plan and communicating it to the patient on an understandable basis would be a critical element in the successful treatment of this condition.
“3. The defendant failed to give sufficient weight and consideration to the opinion of the consultant obtained by him in the treatment of the decedent.
“4. The defendant failed to communicate necessary information regarding the treatment of Patricia Wozniak to the consultant although the defendant knew that the consultant would continue to treat Patricia Wozniak.
“5. The defendant negligently entered into treatment of a person who was his employee for a disease that had psychological, psychiatric, and emotional components, and which placed the doctor and patient into a conflicting relationship with that of employer and employee, and this conflict eventually proved to a be a factor in the death of Patricia Wozniak.
“6. The defendant negligently failed to properly advise Patricia Wozniak or her family concerning the symptoms of the disease of Graves’ Disease, the treatment modalities accepted for the condition, and of the existence or non-existence of side effects from the program of therapy.
“7. The defendant negligently prescribed a quantity of a psychotropic drug, sold under the brand name of Sinequan, in contradiction and violation of the advice and caution of the manufacturers of this drug, which directly caused the death of Patricia Wozniak.
“8. The demeanor and attitude of the defendant as expressed through his acts and statements made toward the decedent were in direct contradiction and violation of all standards relating to the care of the endocrine condition of Graves’ Disease, and directly contributed to the death of Patricia Wozniak.
“9. The defendant ignored numerous and obvious symptoms and signs that the decedent continued to suffer from her condition of Graves’ Disease, and discontinued treatment for that condition.
“The family of Patricia Wozniak has the burden of proving that the above claims, or any of them, are more probably true than not true.
“The defendant denied that he was at fault in any of the above-named particulars claimed by the family, and further denies the family has sustained losses to the extent claimed.”
Plaintiffs’ Itemization of Negligence in the pretrial order states:
“Plaintiffs respectfully state that the defendants have taken lengthy depositions of each of the experts designated by plaintiffs. In addition, the defendants have been provided with a lengthy report of Dr. Lawrence Gavin which was-provided to them in November of 1985. Moreover, plaintiffs have a videotape and transcript of Dr. Gavin’s trial testimony which they have shown to the only expert that the plaintiff has been able to depose designated by the defendant, Dr. Kyner, and the specifications of negligence in this complex medical malpractice case are included in the material suggested above. The plaintiff specifically incorporates all of the specifications of negligence designated in the reports, depositions, and trial testimony of the experts designated by the plaintiffs and who have been made available for depositions to the defendants in accordance with the Court’s original discovery conference Order.
“The general specifications of negligence contended by plaintiffs, with the understanding that all of the specifics described in the lengthy depositions and reports above are also included in this portion of the response to the Pretrial Order are as follows:
“1. The defendant negligently and improperly treated Patricia Wozniak for a hyperthyroid condition called Graves’ Disease. The specifics of the improper treatment are included in the experts’ depositions and reports.
“2. The defendant failed to refer Patricia Wozniak to an appropriate consulting expert for her condition to arrive at a definitive treatment plan.
“3. The defendant halted treatment of Patricia Wozniak’s Graves’ Disease and this cessation of treatment caused her death.
“4. The defendant placed Patricia Wozniak in Cushing Memorial Hospital in December of 1984 for a condition that was misdiagnosed.
“5. The defendant failed to properly respect the opinions of the consultation that he did obtain for Patricia Wozniak.
“6. The defendant negligently entered into a treatment program with a person who was his employee for a disease that has numerous emotional components, placing the doctor and patient into a conflicting relationship with that of employer/employee and this eventually caused the death of Patricia Wozniak.
“7. The defendant negligently prescribed a high dose of a psychotropic doxepin drug against the advice and cautions of the manufacturer of this drug, sold under the brand name of Sinequan, which directly caused the death of Patricia Wozniak.
“8. The' defendant failed to properly advise Patricia Wozniak concerning the symptoms of the disease of Graves’ Disease, the treatment modalities for this disease, and side effects from the program of treatment therapy.
“9. The defendant abandoned his patient, Patricia Wozniak, which directly caused her death.
“[10]. The plaintiffs also specifically incorporate all references to negligence made in the depositions and reports of the plaintiffs’ experts, which have already been provided to the defendant in compliance with the original Pretrial Discovery Conference Order.”
The issue is whether the instructions on negligence to the jury are at sufficient variance from the allegations of negligence in the pretrial order to be outside the issues in the case and thus constitute surprise with prejudice to Dr. Lipoff.
Let us compare the instructions with the corresponding portions of the pretrial order. For purposes of clarity, it will be necessary to repeat the pertinent sections of the instructions and the pretrial order.
As a preliminary matter, it should be noted plaintiffs made two general statements in the pretrial order which apply to all instructions. The introductory paragraph states:
“The plaintiffs specifically incorporate all of the specifications of negligence designated in the reports, depositions, and trial testimony of the experts designated by plaintiffs and who have been made available for depositions to the defendants in accordance with the Court’s original discovery conference Order.”
Subsection 10 of the pretrial order states:
“The plaintiffs also specifically incorporate all references to negligence made in the depositions and reports of the plaintiffs’ experts, which have already been provided to the defendant in compliance with the original Pretrial Discovery Conference Order.”
Now we compare the specific instructions and the pretrial order, keeping in mind the content of the foregoing general provisions.
Subsection 2 of Instruction No. 3 states:
“The defendant failed to formulate and communicate a definitive treatment plan for the decedent’s condition despite the requirement of the development of such a plan and communicating it to the patient on an understandable basis would be a critical element in the successful treatment of this condition.”
Subsection 8 of the pretrial order states:
“The defendant failed to properly apprise Patricia Wozniak concerning the symptoms of the disease of Graves’ Disease, the treatment modalities for this disease, and side effects from the program of treatment therapy.”
We stated in Baugher v. Hartford Ins. Co., 214 Kan. 891, 899, 522 P.2d 401 (1974), that the purpose of a pretrial order, as provided by K.S.A. 60-216, is to “acquaint each party in advance of trial with respect to the factual contentions of the parties upon matters in dispute, thus reducing the opportunity for maneuver and surprise at trial.”
When we view subsection 2 of Instruction No. 3 in conjunction with the general statements in the pretrial order, we conclude Dr. Lipoff was adequately apprised of the theory upon which the plaintiffs relied on this issue.
There is no evidence the trial court abused its “large discretionary powers” in modifying the plaintiffs’ allegation of negligence to the language of the allegations to be considered by the jury in subsection 2. See Kleibrink v. Missouri-Kansas-Texas Railroad Co., 224 Kan. 437, 442, 581 P.2d 372 (1978).
Subsection 4 of Instruction No. 3 states:
“The defendant failed to communicate necessary information regarding the treatment of Patricia Wozniak to the consultant although the defendant knew that the consultant would continue to treat Patricia Wozniak.”
Subsection 5 of the pretrial order states:
“The defendant failed to properly respect the opinions of the consultation that he did obtain for Patricia Wozniak.”
There was ample evidence introduced at trial concerning Dr. Lipoffs failure to inform Dr. Tirrell of medication changes. There is no evidence the testimony created surprise for Dr. Lipoff or that he was not presented an opportunity to defend himself against the claim. Again, when we consider the evidence and the entire pretrial order, we conclude there was sufficient information on file to inform the defendant of the nature of plaintiffs’ claim. The trial court was thus justified in giving this instruction.
Subsection 6 of Instruction No. 3 states:
“The defendant negligently failed to properly advise Patricia Wozniak or her family concerning the symptoms of the disease of Graves’ disease, the treatment modalities accepted for the condition, and of the existence or non-existence of side effects from the program of therapy.”
Subsection 8 of the pretrial order states:
“The defendant failed to properly apprise Patricia Wozniak concerning the symptoms of the disease of Graves’ Disease, the treatment modalities for this disease, and side effects from the program of treatment therapy.”
As we can see, the pretrial order omitted the claim that Dr. Lipoff failed to advise the Wozniak family. Dr. Lipoff s expert witness, Dr. DeGroot, was not produced for deposition prior to the time the plaintiffs were required to respond to the pretrial order. When, at trial, he testified that the family should also be advised, the court properly added this to the allegations in the instructions. Since this evidence was provided by Dr. Lipoff s expert witness, he cannot claim surprise.
Subsection 8 of Instruction No. 3 states:
“The demeanor and attitude of the defendant as expressed through his acts and statements made toward the decedent were in direct contradiction and violation of all standards relating to the care of the endocrine condition of Graves’ disease, and directly contributed to the death of Patricia Wozniak.”
There is no corresponding specific allegation in the pretrial order covering these acts of negligence. However, we find this allegation is supported by testimony at trial which was properly reserved by the plaintiffs in the general provisions of the pretrial order. There is no evidence of prejudice or surprise on the part of Dr. Lipoff which would justify a finding the trial court abused its discretion in including the allegation.
Dr. Lipoff also objects that the trial court included an instruction on informed consent despite the failure of the plaintiffs to specifically allege lack of informed consent. The trial court’s Instruction No. 12 provides:
“A physician has a duty to make a reasonable disclosure to his patient of the nature and probable consequences of the suggested or recommended treatment including the dangers within his knowledge which are possible in the treatment he proposes. This disclosure is required in order that the patient will have a basis to make an intelligent informed consent to the proposed treatment. The duty of the physician to disclose is limited to those disclosures which a physician would reasonably make under the same or similar circumstances.
“If a complete disclosure of all facts, diagnosis and possible consequences would endanger the recovery of the patient because of his existing physical or mental condition, the physician may withhold such information.”
In subsection 8 of the pretrial order, the plaintiffs alleged Dr. Lipoff failed to properly advise Patricia Wozniak about the disease, treatment, and side effects. Failure to disclose was not equated with informed consent in the pretrial order.
This instruction states the law as applied to the facts of the case. Evidence was introduced that Dr. Lipoff failed in his duty to disclose to Wozniak the nature and dangers of her treatment for Graves’ disease. That the instruction went on to give the reason such a duty is imposed on a physician — so that informed consent may be obtained — is immaterial in determining the fact of nondisclosure. The giving of Instruction No. 12 did not mislead the jury and thus is not a ground for reversal. Timsah v. General Motors Corp., 225 Kan. 305, 591 P.2d 154 (1979).
Dr. Lipoff next argues the trial court overemphasized the matter of informed consent by giving Instruction No. 12 in addition to Subsections 2 and 6 of Instruction No. 3. Timsah states a trial court should not overemphasize one theory of the case.
Only Instruction No. 12 concerns informed consent, however. Subsection 2 of Instruction No. 3 is based on testimony that it is important for a Graves’ disease patient to be assured that the disease is curable and is being systematically treated; subsection 6 of that instruction is based on information presented at trial that it is important for a Graves’ disease patient and his or her family to be informed that depression is sometimes a symptom of Graves’ disease and for them to understand the implications of that.
We find no overemphasis of informed consent. The matter of nondisclosure was mentioned in three instructions but in a different context each time. There is no showing that these instructions taken together prejudiced Dr. Lipoff. When there is sufficient evidence supporting each theory of negligence and no prejudicial error in instructions, special findings by the jury are not required and a general verdict will be upheld. See Taylor v. State Highway Commission, 182 Kan. 397, 401, 320 P.2d 832 (1958); cf. Franklin v. Northwest Drilling Co., Inc., 215 Kan. 304, 314-15, 524 P.2d 1194 (1974).
Dr. Lipoff s final claim of error is that Wozniak’s suicide resulted from her intervening acts rather than his negligence.
He cites Wozniak’s refusal to see him after he missed an appointment with her and evidence which showed she did not take the' Sinequan on a daily basis as prescribed. There was evidence she may have taken only five Sinequan pills in the 17-day period before her suicide.
Whether an intervening cause exists is a question ordinarily to be decided by the jury. See Secrist v. Turley, 196 Kan. 572, 579, 412 P.2d 976 (1966). Dr. Lipoff testified he agreed with the manufacturer’s warning for Sinequan that suicide must always be considered a possibility when treating a depressed patient. The warning clearly stated the patient taking Sinequan should be prescribed in the lowest feasible amount. There was no question that 60 tablets of 100 mg. of Sinequan with three refills was not the lowest feasible amount which could have been prescribed. Thus, there was competent evidence from which a rational factfinder could find Dr. Lipoff should have reasonably foreseen the danger of Patricia Wozniak committing suicide by an overdose of Sinequan.
Dr. Lipoff did not raise the issue of whether it was error for the trial court to fail to instruct on intervening acts, and this court does not have the power to raise that issue for him. In fact, Dr. Lipoff could not have raised such an issue, for he failed to request an instruction on intervening acts at trial. See K.S.A. 60-251(b); Lostutter v. Estate of Larkin, 235 Kan. 154, 164, 679 P.2d 181 (1984).
Objections to the lack of expert medical testimony that Dr. Lipoffs negligence caused Wozniak’s suicide was an issue properly decided by the jury. It was the province of the expert medical witnesses to testify as to the proper medical treatment for Graves’ disease. There was expert medical testimony that Dr. Lipoff was negligent in that treatment. “[W]here negligence in the treatment is shown by medical witnesses and the evidence shows a bad result, it is the province of the jury to say whether the result was caused by the negligence.” James v. Grigsby, 114 Kan. 627, 632, 220 Pac. 267 (1923).
In Grigsby, there was medical testimony that the defendant physician deviated from accepted medical practice by not using an X-ray to examine the plaintiff s broken leg. The experts were unable to testify, however, that this negligence was the cause of the plaintiff s leg not mending straight, because sometimes this happens even after proper medical treatment. So it is with the case at bar; expert medical witnesses testified to negligence, but not to causation. It is evident a depressed patient might commit suicide despite the best of care. It is a firmly established rule that a jury’s verdict may not be disturbed by an appellate court if there is substantial competent evidence in the record to support it. Diefenbach v. State Highway Commission, 195 Kan. 445, 447, 407 P.2d 228 (1965). We do not have the power to look at the evidence supporting the appellant’s theories, or to weigh the evidence, or to decide what our verdict would-have been had we been the jury. We are not the jury, and we may only examine the evidence in support of the jury’s verdict. Kliebrink v. Missouri-Kansas-Texas Railroad Co., 224 Kan. 437, 440-41, 581 P.2d 372 (1978).
The evidence substantially and competently supports the verdict. The judgment of the trial court is affirmed.
McFarland, J., dissenting: I believe the district court erred in failing to grant Dr. Lipoff s motion for a directed verdict. By virtue of the nature of the issues raised, a detailed statement of the evidentiary facts is necessary. I believe the recitation of facts contained in the majority opinion is too highly summarized and conclusional. Therefore, although there are areas of repetition with the majority opinion, a more detailed recitation of the facts is included herein as follows.
Graves’ disease is considered to be a controllable condition. There are three options for treatment:
1. surgical removal of a substantial part of the thyroid gland;
2. ingestion of radioactive iodine which collects in the gland and burns part of the gland away; and
3. drug therapy by means of a thyroid inhibiting drug such as Propylthiouracil (PTU).
Each of the alternative treatments has pluses and minuses associated with it. Surgical treatment with optimum results can lead to a permanent solution to the problem. As with any surgery there are risks associated with the administration of anesthesia, and post-surgical complications. If too much of the gland is removed, the patient may become hypothyroid requiring lifetime thyroid supplemental medication. If too little of the gland is removed, the patient may remain hyperthyroid. Obviously, surgical removal of a part of the gland results in a permanent alteration of a portion of the body.
Treatment with radioactive iodine does not involve the surgical risks and the optimum result can be a permanent cure. However, if too much or too little of the gland is burned away, the same permanent problems are present as with too much or too little of the gland being surgically removed. Also, as with the surgical alternative, a permanent alteration of the body has occurred.
Drug treatment has the advantage that no permanent alteration of the body occurs. The patient is not exposed to the risks of surgery or the ingestion of a radioactive substance into the body. If drug therapy does not work, the other two options are still available. Cure is effected only 40 to 50 percent of the time. Drug therapy usually takes two years. The patient starts out with a relatively high dosage of the drug. When normal thyroid function is restored the dosage is reduced, then further reduced if the patient’s thyroid function stays in the normal range, then further reduced and so on until the final very low dosage is stopped. Hopefully, the period of remission will become permanent and no further treatment will be needed. Much of the time, however, the thyroid function will gradually increase until the patient must again be treated with the three options again presented. Not infrequently, a patient who has been unsuccessful in achieving long-term control under the drug treatment may elect, the second time, to proceed with the surgical or radioactive iodine alternative. Fortunately, side effects from the administration of the drug PTU are rare. One of the reasons that the drug treatment is so prolonged is that the thyroid-inhibiting drug, unlike blood pressure regulating drugs or drugs regulating heart rate, for example, does not have speedily determinable results. The thyroid gland has the ability to store its hormone and it takes six weeks to two months to determine what effect a particular dosage is having on the production of the hormone.
With this general discussion of the disease and its treatment, I turn to the facts involved in the treatment of Mrs. Wozniak by Dr. Lipoff.
Patricia Wozniak was hired by Dr. Lipoff to be his medical secretary in his Leavenworth office in June of 1982. In July of 1984, Dr. Lipoff noticed that Mrs. Wozniak had an enlarged thyroid gland (thyromegaly) and bulging eyes {proptosis). Diagnostic tests and laboratory studies were made which revealed Mrs. Wozniak was significantly hyperthyroid. Dr. Lipoff diagnosed the problem as being Graves’ disease. Mrs. Wozniak requested Dr. Lipoff, who specializes in internal medicine, to treat her Graves’ disease. She started out with a 300 milligrams per day dosage of PTU. In September of 1984, additional tests showed that Mrs. Wozniak was somewhat improved, but still hyperthyroid. The dosage of PTU was increased to 600 milligrams per day. In October of 1984, further testing showed Mrs. Wozniak’s thyroid functioning in the euthyroid or normal range, although near the upper limit of the range. November testing was quite similar to the October results.
Shortly after Thanksgiving 1984, Mrs. Wozniak started showing emotional problems in the office — crying spells, being overly anxious, etc. On December 13, 1984, Dr. Lipoff decided that hospitalization was necessary for Mrs. Wozniak’s emotional problems and contacted her husband, Gerald Wozniak. They discussed Mrs. Wozniak’s increasing psychological problems. As Dr. Lipoff was going to be out of town until December 15, 1984, he asked Mr. Wozniak to watch his wife closely, and to be at the hospital for admittance of Mrs. Wozniak on December 15, 1984. This,was accomplished against Mrs. Wozniak’s wishes. She was very depressed, anxious, and delusional upon admittance, and Dr. Lipoff admitted her on a diagnosis of paranoid schizophrenia.
Dr. Lipoff concluded a consultation was appropriate and attempted to call in a psychiatrist. This psychiatrist was out of town, so Dr. Lipoff selected Dr. Frederick Tirrell, a psychologist with whom he had previously discussed Mrs. Wozniak’s case on an informal basis.
Thyroid tests made from December 13, 1984, samples revealed her thyroid function was in the low normal range and, out of concern that Mrs. Wozniak might become hypothyroid, Dr. Lipoff reduced her PTU dosage to 300 milligrams per day upon admission. Dr. Lipoff also prescribed Sinequan (an antidepressant drug) and Haldol (an antipsychotic drug) to control her psychiatric symptoms. Dr. Tirrell met with Mrs. Wozniak daily during her hospitalization and conferred with Dr. Lipoff. Dr. Tirrell was in charge of the patient’s mental therapy, and Dr. Lipoff remained team captain and in charge of her treatment for Graves’ disease. Further thyroid function testing led Dr. Lipoff to believe Mrs. Wozniak was borderline hypothyroid and he temporarily stopped administration of PTU on December 21. Upon her release from the hospital on December 22, she was told to resume PTU on December 24 at 50 milligrams per day. On December 26 or 27, after the receipt of further test results showing low borderline thyroid function, Dr. Lipoff telephoned Mrs. Wozniak and advised her to stop taking PTU. At the time of the telephone call, Mrs. Wozniak had an appointment with Dr. Lipoff scheduled for December 31 where her needs could be reviewed. It should be noted that there was a time delay between the taking of blood samples and obtaining the thyroid function results as the blood samples had to be processed by distant out-of-state laboratories.
For the first few days in the hospital, Mrs. Wozniak showed no improvement psychologically. On December 20, 1984, she exhibited great improvement and was discharged on December 22 with a prescription of 60 pills (100 milligrams each) of Sinequan with instructions to take one at bedtime. Mrs. Wozniak functioned well during the Christmas period but did not resume work for Dr. Lipoff. She did not like the effects of Sinequan (drowsiness, lethargy) and took it irregularly even though her family urged her to take the medication. Dr. Tirrell had agreed to the prescription for Sinequan. Mrs. Wozniak was to see Dr. Tirrell on December 26, but she called and cancelled, stating she was feeling fine. She was to see Dr. Lipoff on December 31, 1984. On December 27, Dr. Tirrell, at his own insistence, saw Mrs. Wozniak. She was unhappy with Dr. Lipoff both as her employer and her physician, and Dr. Tirrell suggested she secure a different physician.
Because of a snowstorm, Dr. Lipoff cancelled his December 31 appointments. Attempts were made to contact Mrs. Wozniak about the cancelled appointment, but she could not be reached. As a result, both she and her husband showed up for the appointment and were quite angry because the physician was not present. Dr. Lipoff called her home that evening and both Wozniaks were quite irate over the missed appointment. Dr. Lipoff tried to make a new appointment, but this suggestion was refused. The next day his staff sought to reschedule, but the Wozniaks refused. Dr. Lipoff never saw Mrs. Wozniak again as a patient.
On January 3, 1985, Dr. Tirrell spoke with the Wozniaks. They were angry over the December 31 appointment missed by Dr. Lipoff. As a result of this conversation, Dr. Tirrell conferred with a Dr. Milgram, a phychiatrist, about seeing Mrs. Wozniak as a patient. Dr. Milgram and Dr. Tirrell agreed that it would be best for her to see an endocrinologist first to determine the status of the patient’s Graves’ disease. An appointment to see such a specialist, Dr. David Sneid, was set up for the afternoon of January 7, 1985.
On January 4, 1985, Mrs. Wozniak and Craig, her college student son, went to Dr. Lipoff s office to secure her medical records in anticipation of the January 7 appointment with Dr. Sneid. The records had to be photocopied and were not immediately available. Dr. Lipoff talked to Mrs. Wozniak about her decision to see Dr. Sneid. Later that day, an angry Mr. Wozniak came to the office and secured the records.
On January 7, 1985, Mr. and Mrs. Wozniak went to the Sneid appointment. Dr. Sneid carefully explained Graves’ disease and the three treatment options. He advised them the disease was controllable. Mrs. Wozniak ruled out surgery but was undecided as between radioactive iodine and drug therapy. She asked thoughtful and appropriate questions. That evening, Mrs. Wozniak seemed more relaxed and happier. Her family urged her to take her Sinequan at bedtime, to which she agreed, but she did not take the medicine. The following morning she drove one of her children to school and returned home to do housework. Around noon her son Craig left for awhile. At approximately 4:00 p.m., she was found dead — having ingested the remaining pills of Sinequan. The amount was estimated at 55 pills as she had only taken five in the 17-day period she had had the prescription. At no time in the period after her hospitalization had Dr. Tirrell seen her as a suicide risk, nor had Dr. Sneid so viewed her the previous day, although he had been advised she had talked of suicide while hospitalized, and he had, accordingly, been looking for signs thereof. Additional facts will be stated as necessary for the discussion of particular issues.
MOTIONS FOR A DIRECTED VERDICT
The main thrust of the motions was that the plaintiffs had failed to show that any negligent acts or omissions of defendant had caused or contributed to the suicide of Mrs. Wozniak. I believe this issue has merit and should be dispositive of the appeal.
In Sampson v. Hunt, 233 Kan. 572, 578, 665 P.2d 743 (1983), we stated the rules regarding motions for a directed verdict as follows:
“In ruling on a motion for directed verdict pursuant to K.S.A. 60-250 the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury. The same basic rule governs appellate review of a motion for directed verdict. Frevele v. McAloon, 222 Kan. 295, Syl. ¶ 5, 564 P.2d 508 (1977); Lemley v. Fenner, 230 Kan. 25, 27, 630 P.2d 1086 (1981). The question is not whether there is literally no evidence supporting the party against whom the motion is directed, but whether there is evidence upon which the jury could properly find a verdict for that party. Even where facts are undisputed it is possible that conflicting inferences may be drawn from those facts, and where that is true, the issue must be submitted to the jury. Sexsmith v. Union Pacific Railroad Co., 209 Kan. 99, Syl. ¶ 3, 495 P.2d 930 (1972). Where no evidence is presented on a particular issue, or the evidence presented is undisputed and it is such that the minds of reasonable persons may not draw differing inferences and arrive at opposing conclusions with reason and justice, the matter becomes a question of law for the court’s determination. Thurman v. Cundiff 2 Kan. App. 2d 406, 411, 580 P.2d 893 (1978); Southards v. Central Plains Ins. Co., 201 Kan. 499, 505, 441 P.2d 808 (1968); Kemp v. Railway Co., 91 Kan. 477, 483, 138 Pac. 621 (1914).”
See EF Hutton & Co. v. Heim, 236 Kan. 603, 609, 694 P.2d 445 (1985).
In Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86 (1983), we discussed the fundamental principles of the law of negligence as follows:
“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. See Marks v. St. Francis Hospital & School of Nursing, 179 Kan. 268, 270-71, 294 P.2d 258 (1956). An accident which is not reasonably to be foreseen by the exercise of reasonable care and prudence is not sufficient grounds for a negligence action. Trimyer v. Norfolk Tallow Co., 192 Va. 776, 780, 66 S.E.2d 441 (1951); and Carrington, Victim’s Rights Litigation: A Wave of the Future?, 11 U. Rich. L. Rev. 447, 461 (1977). In Kansas it is a fundamental rule actionable negligence must be based on a breach of duty. Hanna v. Huer, Johns, Neel, Rivers & Webb, 233 Kan. 206, 221, 662 P.2d 243 (1983). See also Robertson v. City of Topeka, 231 Kan. 358, 363, 644 P.2d 458 (1982); and Madison v. Key Work Clothes, 182 Kan. 186, 192, 318 P.2d 991 (1957). Robertson v. City of Topeka, 231 Kan. 358, recognized a special relationship between certain persons could give rise to a duty. Whether a duty exists is a question of law, McIntosh v. Milano, 168 N. J. Super. 466, 495, 403 A.2d 500 (1979); Chesapeake & Pot. Tel. Co. v. Bullock, 182 Va. 440, 445, 29 S.E.2d 228 (1944); Tort Law — Duty to Warn — Psychiatrist’s Duty to Warn Parties of Dangerous Patients, 19 Duq. L. Rev. 181, 185 (1980); and Carrington, 11 U. Rich. L. Rev. at 461. Whether the duty has been breached is a question of fact. Chesapeake & Pot. Tel. Co. v. Bullock, 182 Va. at 445. Further, whether there is a causal connection between the breached duty and the injuries sustained is also a question of fact. Stucky v. Johnson, 213 Kan. 738, 739, 518 P.2d 937 (1974).
“In Kansas negligence is never presumed. Blackmore v. Auer, 187 Kan. 434, 440, 357 P.2d 765 (1960). This court in Blackmore commented it may be said negligence is the failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, as a result of which such other person suffers injury. 187 Kan. at 440. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. In every instance, before an act is said to be negligent, there must exist a duty to the individual complaining, the observance of which would have averted or avoided the injury. The plaintiff who sues his fellow man sues for a breach of duty owing to himself. 187 Kan. at 440. An act is wrongful, or negligent, only if the eye of vigilance, sometimes referred to as the prudent person, perceives the risk of damage. The risk to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. Palsgraf v. Long Island R. R. Co., 248 N.Y. 339, 162 N.E. 99 (1928), 59 A.L.R. 1253. The existence of negligence in each case must depend upon the particular circumstances which surrounded the parties at the time and place of the occurrence on which the controversy is based, 187 Kan. at 441.
“At the center of negligence is the concept of the reasonable person. What would a reasonable and prudent person, confronted by like circumstances and exercising reasonable care, have done? In other words, negligence involves acting other than as a reasonable person would do in the circumstances. The reasonable person has been observed to be the epitome of ordinariness, never reckless or absent-minded, yet neither endowed with exceptional courage, foresight or skill. Mellor, The Law, p. 53 (3rd ed. 1966).” 234 Kan. at 488-89.
We then turned, in Durflinger, to a discussion of medical malpractice and the duties of physicians as follows:
“The particular area of the law of negligence with which we are concerned herein is that of medical malpractice. Negligence is an essential element of a medical malpractice action. Natanson v. Kline, 187 Kan. 186, 354 P.2d 670 (1960). In Malone v. University of Kansas Medical Center, 220 Kan. 371, 552 P.2d 885 (1976), we summarized the duties of physicians and hospitals as follows:
“ ‘In Tefft v. Wilcox, 6 Kan. 46, 61, this court held that a physician is obligated to his patient under the law to use reasonable and ordinary care and diligence in the treatment of cases he undertakes, to use his best judgment, and to exercise that reasonable degree of learning, skill and experience which is ordinarily possessed by other physicians in the same or similar locations. We have continued to impose those duties upon physicians. See PIK, Civil, 15.01 and cases there cited. A physician also has the duty to make a reasonable disclosure to the patient of pertinent facts within his knowledge relating to proposed treatment, in order that the patient may intelligently consent to or refuse the treatment. [Citation omitted.]
“ ‘Hospitals owe a duty to their patients to exercise reasonable care. This is such care, skill and diligence as the known physical and mental condition of the patient may require, and it is that degree of care used by other hospitals in the community or similar communities under like circumstances. See PIK, Civil, 15.02, and cases therein cited.’ 220 Kan. at 375.
“In Chandler v. Neosho Memorial Hospital, 223 Kan. 1, 574 P.2d 136 (1977), this court said:
“ ‘A physician or surgeon is expected to have and to exercise that reasonable degree of learning and skill ordinarily possessed by members of his profession and of his school of medicine in the community where he practices, or similar communities; similarly, a hospital is required to exercise that degree of care, skill and diligence used by hospitals generally in the community or in similar communities under like circumstances. Avey v. St. Francis Hospital & School of Nursing, 201 Kan. 687, 442 P.2d 1013, and cases cited therein.’ 223 Kan. at 3. See also PIK Civ. 2d 15.01. It should be noted a physician is not a guarantor of good results and civil liability does not arise merely from bad results, nor if bad results are due to some cause other than his treatment. Voss v. Bridwell, 188 Kan. 643, 364 P.2d 955 (1961); Goheen v. Graber, 181 Kan. 107, 309 P.2d 636 (1957).
“Rules of law governing the duty of physicians and surgeons to their patients apply generally to dentists (Simpson v. Davis, 219 Kan. 584, 549 P.2d 950 [1976]), and to registered nurses (Hiatt v. Groce, 215 Kan. 14, 523 P.2d 320 [1974]). The duty of a physician to exercise reasonable and ordinary care and diligence remains the same regardless of the particular medical speciality in which the physician practices. However, the particular decisions and acts required of the physician in fulfilling the duty will vary with the circumstances of the patient’s situation and the medical speciality of the physician. Obviously such diverse medical specialities as dermatology, radiology, pediatrics, surgery, and psychiatry confront the professional practitioner of each with radically different medical problems. However, what constitutes negligence in a particular situation is judged by the professional standards of the particular area of medicine with which the practitioner is involved.” 234 Kan. at 489-90.
In order to prevail in a case of medical malpractice, a plaintiff must establish three elements through competent expert medical testimony: (1) a duty owed by the physician to the patient; (2) a breach of that duty; and (3) a causal connection between the breached duty and the injuries sustained by the patient. Durflinger v. Artiles, 234 Kan. 484, Syl. ¶ 1; Webb v. Lungstrum, 223 Kan. 487, 489-90, 575 P.2d 22 (1978); Funke v. Fieldman, 212 Kan. 524, 530, 512 P.2d 539 (1973).
In Allman v. Holleman, 233 Kan. 781, 786, 667 P.2d 296 (1983), we said:
“The concept of fault also requires a causal connection between the conduct in question and the injury complained of. A negligent act is the proximate cause of an injury only when the injury is the natural and probable consequence of the wrongful act.”
In Elliott v. Chicago, Rock Island & Pac. Rld. Co., 203 Kan. 273, 284, 454 P.2d 124 (1969), we said:
“There are many definitions of the term ‘proximate cause,’ but one of the most widely quoted defines the proximate cause of an injury to be that cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the injury would not have occurred. It has been said the proximate cause of an injury is that which naturally leads to, and which might have been expected to be directly instrumental in, producing the result. In testing whether a negligent act is the proximate cause of an injury it is said the injury is the proximate result of negligence only where the injury is the natural and probable consequence of the wrongful act. Natural and probable consequences are those which human foresight can anticipate because they happen so frequently they may be expected to recur. It has also been said that it must appear the injury was anticipated or that it reasonably should have been foreseen by the person sought to be charged with liability.”
The plaintiffs asserted multiple claims of negligence against the defendant physician. It is necessary at this point to discuss each claim, apply the aforesaid rules, and decide whether a submissible case had been presented on such claim. The simplest way to do this is to state each such claim in the language in which it was ultimately submitted to the jury. The sequence of these claims has been rearranged from that submitted to the jury and as discussed in the majority opinion in order to achieve more chronological continuity.
1. THE DEFENDANT NEGLIGENTLY ENTERED INTO TREATMENT OF A PERSON WHO WAS HIS EMPLOYEE FOR A DISEASE THAT HAD PSYCHOLOGICAL, PSYCHIATRIC, AND EMOTIONAL COMPONENTS, AND WHICH PLACED THE DOCTOR AND PATIENT INTO A CONFLICTING RELATIONSHIP WITH THAT OF EMPLOYER AND EMPLOYEE, AND THIS CONFLICT EVENTUALLY PROVED TO BE A FACTOR IN THE DEATH OF PATRICIA WOZNIAK.
There was no evidence presented that it is negligence for a physician to treat an employee. There was some testimony that it might be better to avoid such a situation, but that such activities are very common among physicians as the employee-patient generally desires it due to his or her confidence in the physician and the convenience of such arrangements.
There was testimony that Mrs. Wozniak’s employment duties increased in the fall of 1984 and that she, of necessity, was involved in the training of new personnel in the office. This was stressful for her and Graves’ disease patients need an environment with as little stress as possible. In this claim, plaintiffs are attempting to make a medical malpractice claim out of working conditions. This might be likened to a physician treating his wife (contrary to the better practice) and allowing or permitting stress in the home to be used in a claim for malpractice. It is difficult to see how a physician complaining to his patient-wife about a cold dinner or asking her to do an errand for him could constitute medical malpractice by increasing stress on the wife. In any event, there was no expert testimony that the employee-patient relationship with Dr. Lipoff was a cause in the suicide of Mrs. Wozniak.
2. THE DEFENDANT NEGLIGENTLY FAILED TO PROPERLY ADVISE PATRICIA WOZNIAK OR HER FAMILY CONCERNING THE SYMPTOMS OF GRAVES’ DISEASE, THE TREATMENT MODALITIES ACCEPTED FOR THE CONDITION, AND OF THE EXISTENCE OR NONEXISTENCE OF SIDE; EFFECTS FROM THE PROGRAM OF THERAPY.
There was expert testimony that a physician should thoroughly advise the patient about all aspects of Graves’ disease, the various treatment modalities, and involve the family where appropriate. Dr. Lipoff s records do not reflect any such explanation was given to her and based solely upon such absence there was expert testimony that this was a breach of a duty owed the patient. Dr. Lipoff testified that he fully explained the disease and treatment options to Mrs. Wozniak and there is corroborating evidence she was provided by him with a pamphlet detailing the disease and its treatment.
Assuming that no such explanation occurred, and that, therefore, a breach of a duty in this regard existed, there was no expert testimony that this was a cause of Mrs. Wozniak’s suicide. Dr. Lipoff had discussions with Mr. Wozniak in December 1984 about Mrs. Wozniak’s Graves’ disease and her mental problems. However, Dr. Tirrell was the man directly responsible for the treatment of her psychological problems. The prescription for Sinequan (for her mental problems) will be discussed in conjunction with another claim. There was no expert evidence that any failure of Dr. Lipoff to discuss Graves’ disease, its treatment modalities, etc., with Mr. Wozniak was a breach of a duty which was a cause of Mrs. Wozniak’s suicide.
3. THE DEFENDANT FAILED TO FORMULATE AND COMMUNICATE A DEFINITIVE TREATMENT PLAN FOR THE DECEDENT’S CONDITION, DESPITE THE FACT THAT THE REQUIREMENT OF THE DEVELOPMENT OF SUCH A PLAN AND COMMUNICATING IT TO THE PATIENT ON AN UNDERSTANDABLE BASIS WOULD BE A CRITICAL ELEMENT IN THE SUCCESSFUL TREATMENT OF THIS CONDITION.
Based upon the absence of any reference thereto in Dr. Lip-offs medical records that he developed a treatment plan and discussed it with Mrs. Wozniak, there was expert testimony that this was a breach of a duty. Dr. Lipoff testified he thoroughly discussed his plan with her and that she accepted it. This is corroborated in a number of ways. For example, shortly after the disease was diagnosed, Mrs. Wozniak stated to her son that her drug therapy would take two years to complete. Dr. Lipoff testified the patient was afraid of surgery and ruled that option out — this was the same response she made to Dr. Sneid on January 7. Treatment of the disease with PTU is an accepted treatment modality. Even assuming that no such discussion occurred, and that, therefore, Dr. Lipoff breached a duty in this regard, there was no expert testimony that this breach was a cause of Mrs. Wozniak’s suicide.
4. THE DEFENDANT FAILED TO REFER PATRICIA WOZNIAK TO AN APPROPRIATE CONSULTING PHYSICIAN DESPITE HIS DIFFICULTY ÍN MANAGING THIS PARTICULAR CASE, AND DESPITE HIS LACK OF EXPERIENCE WITH GRAVES’ DISEASE.
There was no expert testimony that it was a breach of a duty for Dr. Lipoff, an internal medicine specialist, to treat Mrs. Wozniak rather than refer her to an endocrinologist. Nor was there any criticism by the experts in his calling in Dr. Tirrell, a psychologist, for the treatment of her mental problems. No submissible case was made on this claim.
5. THE DEFENDANT FAILED TO COMMUNICATE NECESSARY INFORMATION REGARDING THE TREATMENT OF PATRICIA WOZNIAK TO THE CONSULTANT ALTHOUGH THE DEFENDANT KNEW THAT THE CONSULTANT WOULD CONTINUE TO TREAT PATRICIA WOZNIAK.
The claim here is based upon Dr. Lipoff s failure to advise Dr. Tirrell that he had discontinued the drug PTU. There was expert testimony that Dr. Lipoff should have advised Dr. Tirrell that he had discontinued PTU. Dr. Tirrell testified that he told Dr. Lipoff, during the patient’s hospitalization, that the Graves’ disease should be treated “aggressively.” He testified that he was unfamiliar with what “aggressive” treatment of Graves’ disease should involve as this was outside his area of expertise.
Dr. Tirrell testified:
“Q. [By attorney for defendant] Okay. Doctor, was in your opinion — I want to talk about now before the event — was any medical facts available to you or were any medical facts available to you that in your opinion would be predictive of suicide of Pat Wozniak based upon what you knew then?
“A. Well, actually, it was more based on what I didn’t know, which was I presumed that after the hospitalization that she was continuing with PTU and that the Graves’ disease was continuing to be treated very aggressively, and I didn’t know that it had been discontinued, and when I saw her on the 27th, I didn’t ask her, are you still being treated with PTU and so forth, so that certainly — that would be my answer to your question.
“Q. Okay. My question was: Are there any facts that you know of or knew of that would be predictive of suicide for her prior to the event?
“A. Well, as in if I’d known, for instance, that she wasn’t taking the PTU, then I would say, well, watch out, she’ll commit suicide or something? No, I think even if I[’d] known that, I wouldn’t have thrown a red flag up and said, whoa, this is terrible.
“Q. Okay. If we assume for the purpose of the question that she was not taking her PTU, you wouldn’t have come down to the Leavenworth County Courthouse and tried to commit her?
“A. No, I wouldn’t have.
“Q. Okay.
“A. Would have insisted we get going with something, I think.”
There was no expert testimony that the failure of Dr. Lipoff to advise Dr. Tirrell of the cessation of PTU was a cause of the suicide of Mrs. Wozniak. The collapse of the relationship between Dr. Lipoff and the Wozniaks after the missed December 31 appointment resulted in Dr. Lipoff not having the opportunity to take additional blood tests and determine if PTU should be resumed. Additionally, when Dr. Sneid, the endocrinologist, saw her on January 7, 1985, he was aware that she had been off PTU for a week to ten days and saw no reason to rush resumption of the medication.
6. THE DEFENDANT FAILED TO GIVE SUFFICIENT WEIGHT AND CONSIDERATION TO THE OPINION OF THE CONSULTANT OBTAINED BY HIM IN THE TREATMENT OF THE DECEDENT.
This claim goes to Dr. Lipoff s failure to treat the Graves’ disease “aggressively” as suggested by Dr. Tirrell during Mrs. Wozniak’s hospitalization. This was discussed in the preceding claim. There was no expert testimony that Dr. Lipoff deviated from any standard of medical care in failing “to give sufficient weight and consideration to the opinion of’ Dr. Tirrell or that such failure had a causal connection to the suicide of Mrs. Wozniak.
7. THE DEMEANOR AND ATTITUDE OF THE DEFENDANT AS EXPRESSED THROUGH HIS ACTS AND STATEMENTS MADE TOWARD THE DECEDENT WERE IN DIRECT CONTRADICTION AND VIOLATION OF ALL STANDARDS RELATING TO THE CARE OF THE ENDOCRINE CONDITION OF GRAVES’ DISEASE AND DIRECTLY CONTRIBUTED TO THE DEATH OF PATRICIA WOZNIAK.
Mrs. Wozniak was upset over the fact that the other patient in her semi-private hospital room was a terminally ill woman whose presence bothered her. Additionally, Mrs. Wozniak did not want to be hospitalized and was a difficult patient. At some point, Dr. Lipoff may have told her she was “too demanding.” Mrs. Wozniak’s son testified that Dr. Lipoff was “rude” when he and his mother attempted to obtain copies of her medical records to take to Dr. Sneid. Mrs. Wozniak told Dr. Tirrell that Dr. Lipoff was aloof and cold in his demeanor toward her. Let us assume all of this is true (although controverted) and defendant’s attitude and demeanor fell far short of television’s Dr. Marcus Welby’s example of physician demeanor. However, there was no expert testimony that Dr. Lipoff breached any standard of professional conduct in this regard or that such conduct was a cause of Mrs. Wozniak’s suicide.
8. THE DEFENDANT IGNORED NUMEROUS AND OBVIOUS SYMPTOMS AND SIGNS THAT THE DECEDENT CONTINUED TO SUFFER FROM HER CONDITION OF GRAVES’ DISEASE, AND DISCONTINUED TREATMENT FOR THAT CONDITION.
There was expert testimony that the six months’ treatment of Mrs. Wozniak’s Graves’ disease with its rapid drop-off of PTU had virtually no possibility of effecting a permanent remission of the disease. Dr. Lipoff did not direct the discontinuation of the PTU on December 26 or 27 on the belief Mrs. Wozniak was cured. Rather, he was concerned that, based upon blood tests, she might be becoming hypothyroid. Mrs. Wozniak had, at the time, a scheduled appointment with Dr. Lipoff on December 31 where her condition and needs would be evaluated. This was the missed appointment which triggered the collapse of the physician-patient relationship. Mrs. Wozniak had, prior to that date, expressed dissatisfaction with Dr. Lipoff and resentment over his having diagnosed her as a paranoid schizophrenic upon her hospital admission.
There was expert testimony that the rapid dropping of the dosage from 600 milligrams to zero was improper as it could have little likelihood of curing the disease and that a return to hyperthyroidism was almost a certainty. However, blood tests taken a day before Mrs. Wozniak’s death revealed that her thyroid function was only mildly elevated over normal levels. There was no expert testimony that the failure to take PTU after hospitalization or that the rapid decrease in the amounts of the medication during hospitalization were a cause of her suicide.
9. THE DEFENDANT NEGLIGENTLY PRESCRIBED A QUANTITY OF A PSYCHOTROPIC DRUG, SOLD UNDER THE BRAND NAME OF SINEQUAN, IN CONTRADICTION AND VIOLATION OF THE ADVICE AND CAUTION OF THE MANUFACTURERS OF THIS DRUG, WHICH DIRECTLY CAUSED THE DEATH OF PATRICIA WOZNIAK.
No expert testified that the mental problems for which Mrs. Wozniak was hospitalized were the sole result of her Graves’ disease. At the time of her admission to the hospital and throughout the hospitalization, her test results showed that her thyroid function was within normal limits. There was considerable testimony that depression often occurs in patients with Graves’ disease. Yet, no expert stated her extreme anxiety, delusions, etc., were the result of uncontrolled Graves’ disease or Dr. Lipoff s treatment of the disease. Rather, there was a separate mental illness in Mrs. Wozniak which was probably aggravated by the presence of the Graves’ disease. There was no evidence that her bizarre behavior leading to the hospitalization had anything to do with Dr. Lipoff s treatment of her disease. She was given Haldol and Sinequan in the hospital which resulted in a dramatic improvement in her condition. She was discharged from the hospital on December 22 in quite good spirits, and the family enjoyed a pleasant Christmas. Neither Dr. Tirrell nor any other expert testified that the treatment of the patient with these two drugs during hospitalization was inappropriate.
Prescribing Sinequan at a daily dosage of 100 milligrams as a take-home medication, was, likewise, not faulted by the experts. The claim herein rests on the number of pills prescribed — 60, which was a 60-day supply under the prescription. Sinequan is an antidepressant drug. The manufacturer’s insert states:
“Since suicide is an inherent risk in any depressed patient and may remain so until significant improvement has occurred, patients must be closely supervised during the early course of therapy. Prescriptions should be written for the smallest feasible amount.”
One of plaintiffs’ experts, Dr. Burglass, testified that with a new patient who was thought to be a suicide risk, he thought the lowest feasible amount might be a two-day supply if he was going to see a patient every two days. After he had an opportunity to become more familiar with the patient and evaluate the risk of suicide, he could then, if satisfied, prescribe longer-lasting prescriptions. This witness did not testify the number of pills prescribed for Mrs. Wozniak was improper. This witness testified only as to how he personally prescribed the drug and expressed no opinion on whether Dr. Lipoff had breached any duty of care in prescribing the drug.
The strongest testimony in regard to the number of pills prescribed came from Dr. Kyner, an endocrinologist, who stated:
“Q. [Attorney for plaintiff] Now, Doctor, in this particular case, the prescription was for 60 tablets of Sinequan with an authorization for three refills. In your—
“A. Yes sir.
“Q. In your professional view, is that the smallest feasible amount?
“A. Well, no, you can give a smaller amount.
“Q. All right. And if we excuse that, Doctor, as well as we might, let me add some facts and ask if this would change your opinion at all. If we had a woman who had discussed — whose husband had had a treating physician discuss suicide with him on December 13, who had been hospitalized with all kinds of floride psychiatric sequalia [sic] for a week during December, who had many times in the hospital been described as severely depressed, and, in fact, mentioning suicidal ideations, and who on the 3rd and 4th the treating physician who gave her that prescription as delusional and psychotic, would you view the role and duty of the treating physician in that situation to caution those people around her about that drug for the reason mentioned in the caution by the manufacturer?
“A. Yes.
“MR. GURNEY: Your Honor, I’m going to object. I think that’s highly speculative. The factors that he’s injected at this time, he’s asking him to go back in time and make a determination on all these factors, which the determination that would have been made by Dr. Lipoff was based probably on a whole assortment of other things that Dr. Kyner isn’t in a position to weigh.
“THE COURT: Overruled.
“BY MR. WHITE:
“Q. Your answer was, Doctor?
“A. Well, I think it’s probably true, but I’m not a psychiatrist and I don’t know how much was really going on at that point in time.
“Q. Was your answer yes, Doctor?
“A. Yes.
“Q. All right. Now,—
“A. I qualified it.” (Emphasis supplied.)
The only professional seeing Mrs. Wozniak on January 3 or 4 was Dr. Tirrell and he did not view her as being delusional or psychotic. In fact, he saw her as posing no risk of suicide — a position also taken by Dr. Sneid on January 7.
The “lowest feasible amount” is a variable term. Obviously, a prescription of a single pill to be taken in the presence of the prescribing physician is the absolute lowest amount, but is such a prescription feasible when long-term usage is anticipated? Webster’s New World Dictionary 511 (2nd College Ed. 1980) defines feasible as “1. capable of being done or carried out; practicable; . . . suitable.” Under the rationale of the majority opinion, any time a patient overdoses on Sinequan the prescribing physician is liable, as a smaller number of pills could have been supplied. So, to be on the safe side, the physician should require the patient to visit his or her office each day for a new one-pill prescription. Weekends and holidays presumably would have to be skipped. Such a procedure is hardly feasible. Where a patient is not considered to be a suicide risk, there was no evidence that prescriptions for larger amounts of the drug were a breach of any duty.
No one testified as to what constituted a lethal amount of Sinequan. It is a potent drug — hence the manufacturer’s warning. There was no testimony relative to whether 10, 20, or 30 pills would have been lethal. On her visit to Dr. Sneid on January 7, she had her disease and the treatment options fully explained to her. She was told her disease was controllable. Dr. Sneid and Mr. Wozniak testified the patient’s mood was uplifted by the Sneid appointment. Mrs. Wozniak was in good spirits that evening and the following morning when she drove her child to school and did her housework. Neither the professionals involved nor her family had any apprehension or concern of Mrs. Wozniak being a suicide risk on January 8. If the experts have no concern that suicide is a risk for the patient, there is nothing to warn the family of relative to the number of pills prescribed at one time. The lowest feasible amount manufacturer warning relates to how the expert views the patient’s mental condition as it pertains to the risk of suicide. Dr. Lipoff did not view Mrs. Wozniak as a suicide risk after her discharge from the hospital, nor did the two other experts who saw her.
I do not believe plaintiffs made a submissible case on any theory. I would reverse the judgment on the ground it was error for the district court to deny defendant’s motion for a directed verdict. This issue should be dispositive of the appeal. Inasmuch as the majority has concluded otherwise, a brief discussion of at least one other issue is appropriate.
Even assuming there was enough evidence to submit the case on one or two theories of negligence, the submission of all the other erroneous theories was highly prejudicial to the defendant. The jury was free to pick and choose and could find liability where the necessary three elements of liability never converged in a single theory. As we stated in Franklin v. Northwest Drilling Co., Inc., 215 Kan. 304, 524 P.2d 1194 (1974):
“Here two of three theories of recovery were tried to a jury upon a general verdict with erroneous charges. It seems obvious in this case that the rules as to nonprejudicial error cannot be applied. In fairness and justice we must hold under the circumstances of the case the general verdict cannot be upheld. To hold otherwise would require speculation and conjecture that the general verdict was on the proper theory and not on improper theories.” 215 Kan. at 314-15.
I would reverse the judgment herein.
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Per Curiam-.
This is an original proceeding in discipline filed by Bruce E. Miller, disciplinary administrator, against William Van Horn Smith, of Garden City, an attorney duly admitted to the practice of law in Kansas.
The facts are not in dispute. The respondent settled a lawsuit for his client, Everett L. Kobobel, in February 1986, for $17,500. Separate settlement checks were issued by the two defendants in the lawsuit. One check for $7,500 was sent to Mr. Kobobel. A second check for $10,000 was deposited by respondent in a separate checking account maintained by him in which respondent’s personal and business funds were deposited. Respondent was entitled to retain a portion of the settlement proceeds for his fee and expenses, but the balance of the proceeds belonged to Mr. Kobobel. Respondent used all of the settlement funds for personal and business purposes and failed to remit to his client his share of the settlement proceeds until after a disciplinary complaint was filed against him by a Colorado attorney representing Mr. Kobobel. The foregoing facts, while greatly summarized, are not disputed by the respondent.
The Kansas Board for Discipline of Attorneys held a hearing on the complaint and on July 20, 1987, filed its report with the Clerk of the Appellate Courts in which it made extensive findings of fact and conclusions of law. The panel unanimously concluded that the evidence clearly and convincingly showed:
“1. Respondent failed to preserve the identity of funds belonging to his client in that he deposited funds of his client in his personal account with funds belonging to him, and not in a separate account designated for clients’ funds, in violation of DR 9-102(A) [235 Kan. clii].
“2. Respondent failed to promptly pay to his client, as requested by his client, the client’s share of settlement proceeds in the possession of Respondent which the client was entitled to receive, in violation of DR 9-102(B)(4) [235 Kan. cliii].
“3. Respondent engaged in conduct involving dishonesty in utilizing his client’s funds for his personal and business purposes without the consent of his client, in violation of DR 1-102(A)(4) [235 Kan. cxxxvii].”
The panel then recommended that the respondent be suspended from the practice of law for a period of 90 days.
In considering disciplinary proceedings, the Supreme Court is not bound by the recommendations of the Kansas Board for Discipline of Attorneys and the same are advisory only. Supreme Court Rule 212(f), 235 Kan. cxxx; State v. Davitt, 234 Kan. 283, 671 P.2d 1123 (1983).
After a careful review of the record, the majority of the court is of the opinion that the severe nature of the conduct of the respondent requires that he be suspended from the practice of law in Kansas for a period of one year.
It is Therefore Ordered and Adjudged that William Van Horn Smith be and is hereby suspended from the practice of law in the State of Kansas for one year from this date and that the costs of this action be assessed to the respondent. | [
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The opinion of the court was delivered by
Allegrucci, J.:
The plaintiffs, Hachiya and Livingston, brought the present action for a writ of mandamus and permanent injunction against defendant school board seeking their reinstatement as full-time teachers, award of back pay, and other relief. Both parties filed motions for summary judgment. The district court granted summary judgment for defendant and the plaintiffs appealed to the Court of Appeals. The Court of Appeals in an unpublished opinion filed May 21, 1987, affirmed the decision of the district court. This court granted plaintiffs’ petition for review.
The plaintiff, Robert Hachiya, was first employed by U.S.D. No. 307 in August 1980, as a full-time teacher. In addition to his classroom duties, he was given two supplemental assignments, which were assistant football and basketball coach. The school day in U.S.D. No. 307 was divided into seven class periods. Hachiya taught a full schedule, which consisted of six class periods and one planning period.
During the 1981-82 school year, he again taught a similar full schedule and was assigned supplemental duties as head football coach and senior high girls’ basketball coach. At the end of this school year, he acquired tenure pursuant to K.S.A. 72-5436 et seq.
Hachiya again taught a full schedule in the 1982-83 school year; however, his class schedule was changed. Instead of teaching American History, he was assigned “seventh and eighth grade assistant P.E.” during his sixth class period. This class was practice time for the competitive seventh and eighth grade athletic events, which were played after school. Seventh and eighth grade boys had the option of enrolling in physical education or athletics. No after-school practice time was provided.
Plaintiff Cheri Livingston was first employed as a full-time teacher by U.S.D. No. 307 in August 1979. She continued as a full-time teacher through the 1984-85 school year. During that time, she taught six class periods and one planning period. Since her employment in 1979, she has been assigned “seventh and eighth grade girls athletics,” which is also the practice time for competitive junior high athletic events played after school. In addition, she has always accepted the supplemental coaching assignment for all senior and junior high girls’ sports. She had also achieved tenure.
In November 1984, both Hachiya and Livingston resigned their respective supplemental duties as head coach for all junior high sports for the 1985-86 school year. The defendant tabled any action on the resignations until March 1985, at which time the resignations from the “position of coach for” junior high athletics were accepted by the Board. In April 1985, the March Board meeting minutes were amended by deleting the words “coach for” and stating the Board would “accept the resignation of Mr. Hachiya from his position of 7th and 8th grade athletics” and “accept the resignation of Miss Livingston from her position of 7th and 8th grade athletics.” By letter dated April 9,1985, both plaintiffs were informed by the Board that they would be offered a 6/7 contract for the 1985-86 school year. The plaintiffs signed the contracts as offered, specifically reserving their right to file this action.
The plaintiffs filed their petition on June 19,1985, alleging the Board’s action in reducing their primary contracts was a violation of their right to resign from a supplemental duty without being penalized. Both plaintiffs and defendant filed motions for summary judgment. On April 23, 1986, the trial court granted summary judgment in favor of the defendant.
The basic issue involved in the present appeal is whether the junior high school athletics classes taught by the plaintiffs were classes properly covered by the plaintiffs’ primary contracts of employment, or whether they were duties undertaken under a supplemental contract of employment. In granting defendant’s motion for summary judgment, the district court found that the plaintiffs’ obligations to coach the junior high school practice classes were governed by their primary contracts of employment and that the plaintiffs had voluntarily resigned one of their regular classroom duties.
The Court of Appeals, in affirming the district court, found that the Board was within its rights to make what is normally a supplemental duty a part of the primary contract of junior high teachers. The Court of Appeals recognized the existence of precedent to the contrary in decisions it rendered in prior cases, but distinguished these cases “from this case because of the [Kansas Administrative] regulations applicable to junior high schools.” The Court of Appeals stated:
“The case of Swager v. Board of Education, U.S.D. No. 412, 9 Kan. App. 2d 648, [688 P.2d 270, rev. denied 236 Kan. 877 (1984),] and the later case of U.S.D. No. 241 v. Swanson, 11 Kan. App. 2d 171, 717 P.2d 526 (1986), involved high school teachers and their duties. There are no statutes or regulations which authorize high schools to conduct athletic practice during the school day. However, K.A.R. 91-31-14c(c)(4) (1986 Supp.) does permit junior high schools to schedule one hour of practice time per school day in preparation for interscholastic athletic competition. Therefore, it appears that the Board was in compliance with the regulations applicable to junior high schools in scheduling one hour of practice time during the school day.”
K.S.A. 72-5412a provides:
“The board of education of any school district may enter into a supplemental contract of employment with any employee of the district. As used in this section ‘supplemental contract’ means a contract for services other than those services covered in the principal or primary contract of employment of such employee, and shall include but not be limited to such services as coaching, supervising, directing and assisting extra curricular activities, chaperoning, ticket taking, lunch room supervision and other similar and related activities. The provisions of article 54 of chapter 72 of Kansas Statutes Annotated which relate to the continuation of teacher contracts and to the due process procedure upon termination or nonrenewal of a teacher’s contract do not apply to any supplemental contract of employment entered into under this section.”
The plaintiffs argue that, pursuant to the plain language of the statute, coaching is a supplemental duty which must be included in a supplemental contract and that the Board of Education is circumventing the statutory mandate of K.S.A. 72-5412a by making coaching duties a part of plaintiffs’ primary contracts and, as such, forcing the plaintiffs to accept coaching duties as part of their primary duties. Plaintiffs rely upon the Court of Appeals decisions in Swager v. Board of Education, U.S.D. No. 412, 9 Kan. App. 2d 648, 688 P.2d 270, rev. denied 236 Kan. 877 (1984), and U.S.D. No. 241 v. Swanson, 11 Kan. App. 2d 171, 717 P.2d 526 (1986), and contend the defendant’s action is in contravention of the rulings in those cases.
The Court of Appeals specifically recognized the mandatory provisions of K.S.A. 72-5412a in the Swager and Swanson cases. At issue in Swager was the nature of the coaching duties of the plaintiff/teacher. The plaintiff contended that his employment contract with the school board contained, in reality, two sever-able contracts — a primary contract to instruct high school math and a supplemental contract to coach basketball and football. The Court of Appeals, in finding for the plaintiff, summarized the plaintiff s argument:
“His premise is that the language of K.S.A. 72-5412a is mandatory — that is, that coaching duties must always be performed pursuant to supplemental contracts, and that a teacher cannot be required to accept such duties as part of his primary contract. . . .
“Defendant argues precisely the contrary — that the language of K.S.A. 72-5412a is permissive: that it allows the board of education to enter into supplemental contracts for certain services by teachers, but does not require that such services be pursuant to supplemental contracts. Stated another way, K.S.A. 72-5412a does not prohibit the board of education from including coaching duties as part of a teacher’s primary contract.
“We are inclined to accept plaintiffs argument.” (Emphasis added.) 9 Kan. App. 2d at 652-54.
The Court of Appeals found that the language of K.S.A. 72-5412a did not permit coaching duties to be covered by a primary contract of employment:
“The statute uses the mandatory language that ‘ “supplemental contract” means a contract for services . . . and shall include . . . such services as coaching ... .’In our opinion, this language is itself a clear expression of a legislative intent to prohibit school districts from making supplemental duties, such as coaching, part of a teacher’s primary contract.” 9 Kan. App. 2d at 654.
The Court of Appeals’ summary of its holding in Swager also rejected the contention that coaching activities may be covered by a primary contract of employment:
“The provisions of K.S.A. 72-5412a are mandatory, and require that the duties there enumerated, as well as other similar and related activities, be performed pursuant to supplemental contracts. This mandatory language is a clear expression of a legislative intent to prohibit school districts from making supplemental duties, such as coaching, part of a teacher’s primary contract. Thus, a teacher cannot be required to accept such duties as part of the primary contract of employment.” 9 Kan. App. 2d 648, Syl. ¶ 2.
Finally, the Court of Appeals, in Swager, found further support for its position from attempted amendments of K.S.A. 72-5412a, which would have altered the mandatory language of the statute. Rejection of the proposed amendments was, to the Court of Appeals, “a reiteration of the above-stated legislative intent.” 9 Kan. App. 2d at 654. The Court of Appeals decision in Swager was later followed in Swanson, 11 Kan. App. 2d 171. In Swanson, the defendant was a tenured teacher and boys’ basketball coach. He resigned from the coaching duties, and the superintendent, after having received no applications for the coaching position, assigned Swanson to the position. Swanson declined the assignment and the school board brought a declaratory judgment action. In entering judgment for the school board, the district court relied on the negotiated agreement between the board and the teachers, which provided for such an assignment when the position could not be voluntarily filled. On appeal, the Court of Appeals reversed, based upon the decision in Swager. The court stated:
“The statutory scheme and legislative intent as interpreted by this court in Swager is that a teacher may not have his primary contract terminated for refusal to accept a supplemental contract. Provisions of a negotiated agreement which conflict with a statutory scheme are void and unenforceable. Ottawa Education Ass'n v. U.S.D. No. 290, 233 Kan. 865, Syl. ¶ 2, 666 P.2d 680 (1983); K.S.A. 72-5413(1)(3).
“The provision of the negotiated agreement in this case conflicts with the statutory scheme as it relates to unilateral assignment of supplemental contract duties. It is void and cannot be the basis for a finding of breach of contract.” 11 Kan. App. 2d at 173.
The Court of Appeals’ analysis in Swager is a correct interpretation of K.S.A. 72-5412a, and prevents the treatment of the coaching duties in the present case as falling within the plaintiffs’ primary contracts of employment. The significance of the court’s interpretation is that supplemental contracts of employment under K.S.A. 72-5412a do not carry with them the due process protections accorded to a teacher by a primary contract of employment. Conversely, teachers may resign a supplemental contract without imperiling their primary contracts of employment. Swager, 9 Kan. App. 2d 648, Syl. ¶ 4. Similarly, a school board may not unilaterally nonrenew a primary teaching contract for refusal of a teacher to accept a supplemental contract of employment. Swanson, 11 Kan. App. 2d 171, Syl. ¶ 1. The holding of the Court of Appeals in the present case, which permits school boards to treat junior high school practice classes as falling within the primary contract of employment, ignores the mandatory provisions of K.S.A. 72-5412a and is inconsistent with its prior decisions in Swager and Swanson. While Kansas Administrative Regulations might permit junior high schools to offer athletic practice sessions during the day, it is clear that Kansas statutory law requires persons coaching such sessions to be employed pursuant to a supplemental contract of employment.
The attempted distinction by the Court of Appeals in the instant case is not persuasive. At issue is not the propriety of a school board’s scheduling of junior high school practice sessions during the school day, but whether the persons employed to coach such practice sessions must be employed under a supplemental contract of employment. Thus, the Court of Appeals opinion fails to address the controlling issue in the present case. While K.A.R. 91-31-14c(c)(4) (1987 Supp.) may permit junior high schools to schedule practice sessions during the school day, such regulations have no relevance in resolving the issue of the type of contract which governs the coaching of such practice sessions. No authority is cited, nor are we aware of any, that supports the Court of Appeals’ finding that the mandate of a statute can be negated by an administrative regulation.
The essence of the decisions in both Swager and Swanson is that a school board, which is free to terminate a teacher’s supplemental contract rights without due process, may not compel or coerce a teacher into accepting supplemental duties such as coaching. Permitting such duties as coaching to be covered by a primary contract of employment makes meaningless the policy concerns expressed in Swager and Swanson. The concern that a teacher must be free from coercion and intimidation in his or her decision to undertake supplementary duties such as coaching prevents such duties, even when conducted during the school day as authorized by the Kansas Administrative Regulations, from being treated as a part of the teacher’s primary contract of employment.
Defendant makes several arguments in support of the district court decision. The Board first rather ingenuously contends that it took no affirmative action in the present case, but merely accepted the plaintiffs’ voluntary resignations from their coaching duties. However, the Board did take affirmative action in treating the coaching duties as being subject to the plaintiffs’ primary contracts of employment and in subsequently reducing the plaintiffs’ benefits under their primary contracts by failing to provide them with a full class load and reducing their pay by one-seventh. The Board’s action in the present case illustrates the peril of permitting such activities to be governed by a teacher’s primary contract of employment.
Defendant next attempts to distinguish the present case from the Court of Appeals decisions in Swager and Swanson. The defendant argues that these decisions did not involve a consideration of coaching activities which occurred “during the school day.” The attempted distinction is unacceptable. There is nothing in K.S.A. 72-5412a, nor in Swager or Swanson, which differentiates among supplemental activities by the time of day. The mandatory language of K.S.A. 72-5412a provides that coaching duties must be governed by a supplemental contract of employment. It contains no exception for coaching activities which occur during the school day.
Defendant next attempts to interpret K.S.A. 72-5412a, arguing that the statute is not mandatory in nature. The defendant argues that supplemental contracts under the statute are those contracts which cover “employment duties other than those services covered in the principal or primary contract of employment.” The Board argues that, because the junior high school practice sessions in the present case were under the plaintiffs’ primary contracts of employment, they were not supplemental services because they were not “services other than those services covered in the principal or primary contract of employment.” This selective quotation from K.S.A. 72-5412a is, of course, misleading. First, it makes K.S.A. 72-5412a a nullity, permitting school boards to place any activity they wish under a primary contract of employment, thereby evading the rules relating to supplemental contracts of employment. More importantly, of course, this view of K.S.A. 72-5412a completely ignores the mandatory language of the statute that supplemental contracts of employment “shall include . . . such services as coaching.” Finally, the view expressed by the defendant has been expressly rejected by the Court of Appeals in Swager, which found the language of K.S.A. 72-5412a mandatory, holding that “coaching duties must always be performed pursuant to supplemental contracts.” 9 Kan. App. 2d at 652.
The defendant next argues that K.S.A. 72-5412a does not cover coaching activities which occur during the school day, arguing that only the coaching of extracurricular activities must be governed by a supplemental contract. The Board argues that the term “extracurricular activities” in K.S.A. 72-5412a modifies the term “coaching,” and that, therefore, the coaching activities in the present case which occurred during the school day need not be covered by a supplemental contract. This interpretation of K.S.A. 72-5412a is inconsistent with Kansas law. A plain reading of the statute indicates that the term “extracurricular activities” modifies only the preceding terms “directing and assisting” and does not modify the term “coaching.” This interpretation is supported by the rule of the last antecedent, which has been recognized repeatedly in this state.
. . . In construing statutes, qualifying words, phrases and clauses are ordinarily confined to the last antecedent, or to the words and phrases immediately preceding. The last antecedent, within the meaning of this rule, has been regarded as the last word [or clause] which can be made an antecedent without impairing the meaning of the sentence.’ ” Ruthrauff, Administratrix v. Kensinger, 214 Kan. 185, 190-91, 519 P.2d 661 (1974) (quoting Barten v. Turkey Creek Watershed Joint District No. 32, 200 Kan. 489, 504, 438 P.2d 732 [1968]).
See Liberty Life Ins. Co. v. Guthrie, 148 Kan. 907, 909, 84 P.2d 891 (1938). Under this rule of statutory construction, the modifying phrase “extracurricular activities” clearly modifies only the terms “directing and assisting” and does not modify the more remote term “coaching.” Under the unambiguous wording of the statute, coaching activities, whether occurring before, during, or after the school day, must be governed by a supplemental contract.
The defendant next argues that many school districts with limited resources cannot afford to conduct both junior high school and high school practice sessions after the school day, and the junior high school practice sessions must be conducted during the school day. The Board argues: “If the junior high team cannot practice during the school day, they will not be allowed to practice at all, thus, eliminating the program.” The resolution of the present issue has no bearing upon whether school districts conduct junior high school practice sessions during the school day. The present issue merely involves the determination of whether junior high school practice sessions may be coached by employees under a primary contract of employment. The statutory law of Kansas clearly establishes that coaching activities must be conducted under a supplemental contract of employment. This argument should be directed to the legislature and not to this court. It is for the legislature to determine if a statute should be amended or repealed.
The final argument made by defendant is the alternative argument that, if the junior high practice sessions were supplemental in nature, then the plaintiffs never became tenured during their employment at the school district. The Board argues that, if the practice sessions were not within the plaintiffs’ primary contracts of employment, they never accumulated a sufficient level of full-time employment at U.S.D. No. 307 to acquire tenure.
The Roard cannot be permitted to reap the benefits resulting from its violation of K.S.A. 72-5412a. Although, under ordinary circumstances, the plaintiffs may not have completed a sufficient amount of full-time employment at U.S.D. No. 307 to acquire tenure, under the present case the interests of justice support a finding that the plaintiffs, who had been led to believe they had attained tenured status, should retain that status. In addition, K.S.A. 72-5445(b) provides an alternative to the normal means of acquiring tenure: “Any board may waive, at any time, the years of employment requirements of subsection (a) for any teachers employed by it.” We find that, in the present case, the defendant has effectively waived the normal requirements of tenure and, pursuant to K.S.A. 72-5445(b), the plaintiffs had obtained tenured status.
We therefore conclude that the plaintiffs, as tenured teachers, were within their rights to resign their supplemental coaching duties without affecting their primary contract duties as junior high school teachers. The defendant, by not renewing the plaintiffs’ primary contracts as full-time teachers, failed to meet the nonrenewal and due process requirements of K.S.A. 72-5438, and plaintiffs are entitled to be reinstated to their former full-time teaching status, with commensurate back pay commencing with the 1985-86 school year.
The decision of the Court of Appeals is reversed, the judgment of the district court is reversed, and the case is remanded with directions to enter summary judgment in favor of the plaintiffs in accordance with this opinion.
McFarland, J., dissenting. | [
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The opinion of the court was delivered by
Holmes, J.:
The Hesston State Bank (Hesston) appeals from a summary judgment in favor of the City of Arkansas City, Kansas, (Arkansas City) and Southwest National Bank, Wichita, Kansas, (Southwest National) on competing claims to funds otherwise payable to A. Scott Anderson and E. Sylvia Anderson (the Andersons).
While the facts are essentially undisputed, they are complex and crucial to a full understanding of the issues on appeal. Therefore, they will be set forth in some detail. On July 6, 1984, Arkansas City and Southwest National obtained a judgment against the Andersons and others in an amount in excess of two million dollars. The amount of the judgment and its validity are not in dispute here. The present appeal involves only one of many attempts by appellees to recover on their judgment. The Andersons, along with Herbert L. Ketterman and Grace Ketterman (the Kettermans), were involved in numerous business dealings including ownership of the Main Corporation, K-A Corporation, and numerous partnerships, one of which was Land Opportunities Co.
Land Opportunities Co. was a partnership composed of the Andersons and the Kettermans. Its sole asset consisted of real property in Johnson County, and its sole purpose was to sell the property and divide the proceeds among the partners. In 1983 a portion of the property was sold to Goode Construction Co., Inc., (Goode) and on July 3, 1984, Land Opportunities Co. granted Goode an option to purchase the balance of the property. The option had an expiration date of July 1, 1986. Prior to the expiration date Goode gave notice that it would exercise its option and purchase the remainder of the property.
In the meantime the Andersons and the Kettermans decided to go their separate ways. A number of their joint business ventures had been financed by Hesston, and in early 1985 the Andersons sought to divide and separate their liability to Hesston from that of the Kettermans. On April 22,1985, the Andersons and Hesston reached agreement on a plan to refinance the Andersons. As a part of that agreement, a new note in the amount of $97,256.85 was executed to Hesston by the Andersons. They were then released from the loans and indebtedness for which they and the Kettermans had been jointly responsible. As a part of the April 22, 1985, refinancing Hesston required that the Andersons execute an assignment of any partnership proceeds which they might receive as a result of the Goode option. The assignment reads:
“ASSIGNMENT
“In consideration for loan this date in the amount of Ninety-Seven Thousand Two Hundred Fifty-Six and 85/100 Dollars ($97,256.85), we hereby assign to the Hesston State Bank, Hesston, Kansas, proceeds from our interest in the sale of real estate specifically described in the Option Agreement attached hereto dated July 3, 1984, between Land Opportunities Co., a partnership, in which we are partners, and James A. Goode Construction Company, Inc., buyer.
Dated this 22nd day of April, 1985.
/s/ A. Scott Anderson_
A. Scott Anderson
/si E. Sylvia Anderson_
E. Sylvia Anderson”
The assignment was acknowledged before a notary public and was placed of record in the office of the Johnson County register of deeds on November 13, 1985. Mortgage registration tax in the amount of $243.25 was paid at the time of recording.
On November 27, 1985, Arkansas City and Southwest National obtained from the district court a charging order (K.S.A. 56-328) against the Andersons’ partnership interest in Land Opportunities Co. and several other partnerships. The charging order was served upon Land Opportunities Co. on January 23, 1986. On July 31, 1986, Hesston, evidently having knowledge that Goode had exercised its option to purchase the Johnson County property, filed a Uniform Commercial Code financing statement with the office of the Secretary of State out of what Hesston asserts was “an abundance of caution.” The financing statement specifically covered the April 22, 1985, assignment.
Mid-America Title Company, Inc., of Olathe (Mid-America) was the closing agent for the completion of the sale of the real estate by Land Opportunities Co. to Goode. On August 12, 1986, Arkansas City and Southwest National obtained an order of garnishment which was served upon Mid-America seeking the Andersons’ share, if any, of the Goode option proceeds. Mid-America responded to the garnishment order, paid the sum of $103,449.21 into court, asked that all persons or entities that claimed any interest in the funds be brought in by interpleader, and requested that it be relived of all further liability or responsibility. Hesston then became a party by way of interpleader and asserted it had a first claim upon the money paid in by reason' of the assignment which was executed April 22, 1985. Arkansas City and Southwest National contended that Hesston’s assignment was actually only a security interest and because a financing statement was not filed with the Secretary of State’s office until July 31, 1986, the charging order served upon Land Opportunities Co. on January 23, 1986, had priority.
Arkansas City and Southwest National filed a motion for summary judgment, as did the Andersons. Hesston responded, and on May 21, 1987, the trial court rendered an extensive and well-reasoned memorandum decision which granted summary judgment to Arkansas City and Southwest National. The trial court found that the “assignment” from the Andersons granted Hesston only a security interest which was not perfected until the financing statement was filed with the Secretary of State’s office in July 1986. The court also found that the claims of appellees, based upon the charging order, had priority over the claim of Hesston and ordered the clerk to pay the funds to appellees. Hesston has appealed. The case was transferred from the Court of Appeals to the Supreme Court pursuant to K.S.A. 20-3018(c).
By way of summary and in an attempt to clarify the chronology of events, the following appear to be the controlling dates:
July 6, 1984 Judgment in favor of Arkansas City and Southwest National against the Andersons.
April 22, 1985 Assignment, note, and agreement executed by the Andersons in favor of Hesston.
November 13, 1985 The Andersons’ assignment to Hesston recorded with Johnson County Register of Deeds.
November 27, 1985 Charging order issued by the district court.
January 23, 1986 Charging order served upon Land Opportunities Co.
July 31, 1986 Financing statement filed by Hesston with Secretary of State.
August 12, 1986 Appellees’ garnishment order served upon Mid-America.
Hesston raises the following issues on appeal:
(1) Whether there were material facts in dispute which precluded summary judgment;
(2) whether the district court erred in holding that the April 22, 1985, assignment by the Andersons in favor of Hesston was intended as security for the note;
(3) whether the charging order issued by the court pursuant to K.S.A. 56-328 provided appellees with rights superior to those of Hesston; and
(4) whether Hesston’s failure to timely file its financing statement subordinated its rights to those of the prior judgment creditors, who obtained and served a charging order after the date of the assignment but before a financing statement was filed.
At the outset we wish to emphasize that this appeal and our opinion only address the controversy between Arkansas City and Southwest National on one hand and Hesston on the other. There were other defendants in addition to the Andersons, but neither they nor the Andersons are involved in this appeal. Land Opportunities Co. is not involved in this appeal nor is the partnership real estate in Johnson County. Creditors of the partnership, if any, and other partners and other creditors are not involved in this appeal. The sole issue in this appeal is the priority of the respective rights, if any, of the parties to this appeal, as between themselves, to such portion of the funds held by the clerk that otherwise would have been distributable to the Andersons from Land Opportunities Co. as a result of the sale of the partnership real estate to Goode.
We turn first to the issue of whether there are material unresolved facts which preclude summary judgment. In addressing this issue the learned trial judge stated, in part:
“The first question to be decided is, of course, whether there remain in issue material facts which preclude the entry of summary judgment. Though the Bank [Hesston] has not asked for summary relief, it was agreed at oral argument of the motions of plaintiffs and defendants Anderson that production of evidence would not establish facts not otherwise disclosed by the written instruments which are attached to the motions and are exhibits in the deposition of Robert Showalter, President of the Hesston State Bank, or in the deposition testimony of Robert Showalter.
“Plaintiffs and defendants Anderson have sparred a little over what facts from the record are uncontroverted, but there are no facts in controversy which are material to the issues of whether the assignment to the Bank was absolute or simply created a security interest and, if the transaction between the Bank and defendants Anderson is properly construed as creating a security interest, whether the Bank was required to perfect its security interest by filing a financing statement in order to establish priority over the lien of the charging order.”
The basic issue presented to the trial court and to this court is whether the assignment and related documents constituted an absolute assignment or merely created a security interest. While Hesston did not file a motion for summary judgment, it participated fully by responding to the motions filed by the principal parties, filing briefs, and participating in oral arguments. The real issue is the construction of the various documents surrounding the Andersons’ assignment to Hesston. This court has held that the legal effect of a written instrument is a question of law for the court to decide and, regardless of the construction made by the trial court, on appeal a written instrument or contract may be construed and its legal effect determined by the appellate court. Patrons Mut. Ins. Ass’n v. Harmon, 240 Kan. 707, 713, 732 P.2d 741 (1987); Cornwell v. Jespersen, 238 Kan. 110, Syl. ¶ 6, 708 P.2d 515 (1985). We agree with the trial court that there were no material controverted facts which would preclude the entry of summary judgment and the court was correct in determining the case was ripe for summary judgment.
We now turn to the issue of whether the April 22, 1985, assignment was an actual assignment or whether it was given as security for the note. The trial court held that the assignment was intended to grant only a security interest. Hesston argues it was an “absolute” assignment and not a mere security interest. It argues that the intent of the parties, the Andersons and Hesston, was to create an absolute assignment of the proceeds to be derived from the Goode real estate option contract.
At the outset it is necessary to determine just what interest of the Andersons was subject to the purported assignment. The assignment was set forth in its entirety earlier in this opinion and the operative portion thereof reads, “[W]e hereby assign to the Hesston State Bank, Hesston, Kansas, proceeds from our interest in the sale of real estate.” The real estate referred to was owned by Land Opportunities Co. and the Andersons, individually, had no direct ownership interest in the property. A determination of the interest of the Andersons as partners in Land Opportunities Co. is governed, in part, by the Kansas Uniform Partnership Act, K.S.A. 56-301 et seq.
K.S.A. 56-324 through 56-327 deal with a partner’s property rights in a partnership. K.S.A. 56-324 provides that the property rights of a partner are of three types:
“(1) The partner’s right in specific partnership property, (2) his or her interest in the partnership, and (3) his or her right to participate in the management.”
K.S.A. 56-325 covers the first category: a partner’s right in specific partnership property. The statute provides that partners are co-owners of specific property of the partnership, which they hold as “tenant[s] in partnership.” K.S.A. 56-325(a). Subsection (b) sets forth the incidents of such a tenancy, including the fact that a partner may not assign his right in specific partnership property “except in connection with the assignment of rights of all the partners in the same property.” Since the other partners in Land Opportunities Co. did not, so far as we know, execute an assignment of their proceeds from the option contract, the Andersons were precluded by statute from assigning the option contract itself or its cash proceeds as specific partnership property. K.S.A. 56-325(b); Wellsville Bank v. Nicolay, 7 Kan. App. 2d 172, 174-75, 638 P.2d 975 (1982). This court has recently noted that the assignee of a contract interest acquires no greater rights from the assignment than those possessed by the assignor. See H. Freeman & Son v. Henry’s, Inc., 239 Kan. 161, 163, 717 P.2d 1049 (1986).
K.S.A. 56-326 provides:
“A partner’s interest in the partnership is his or her share of the profits and surplus, and the same is personal property.”
K.S.A. 56-327, however, does permit a partner to assign his or her interest in the partnership itself, but such an assignment “merely entitles the assignee to receive in accordance with his or her contract the profits to which the assigning partner would otherwise be entitled.” K.S.A. 56-327(a) (emphasis added); Wellsville Bank v. Nicolay, 7 Kan. App. 2d at 175. The extent of the profits to which a partner may be entitled is controlled by the agreement of the partners and K.S.A. 56-318, which provides in part:
“The rights and duties of the partners in relation to the partnership shall be determined, subject to any agreement between them, by the following rules:
(a) Each partner shall be repaid his or her contributions, whether by way of capital or advances to the partnership property and share equally in the profits and surplus remaining after all liabilities, including those to partners, are satisfied; and must contribute towards the losses, whether of capital or otherwise, sustained by the partnership according to the partner’s share in the profits.” (Emphasis added.)
Thus, it appears clear that the interest assigned to Hesston could not constitute an interest in the real estate itself or in the Goode option contract and would cover only the Andersons’ distributive share of partnership profits resulting from the sale of the property. However, under the facts and circumstances of this case, the issue is simplified somewhat as it appears the Andersons’ distributive share of partnership profits and their share of the proceeds from the Goode real estate purchase are one and the same.
In determining the true meaning of the assignment, the intent of the parties to the assignment as determined by all the surrounding facts and circumstances, including the documents, is controlling. When all of the documents are read together, along with the treatment given to them by Hesston, it appears clear to us that the assignment was given as security for the note and created a security interest under the Uniform Commercial Code (UCC), K.S.A. 84-1-101 et seq.
The UCC defines “security interest” as follows:
“ ‘Security interest’ means an interest in personal property or fixtures which secures payment or performance of an obligation.” K.S.A. 1987 Supp. 84-1-201(37).
The 1983 Kansas Comment to 84-1-201(37) reads in part:
“The term ‘security interest’ is defined in very broad terms. Most security interests arise from security agreements entered into under Article 9. See Kansas Comment 1983 to 84-9-102. The intent of the parties to a particular transaction is the key, and many arrangements in other formats constitute ‘security interests’ within this definition.”
In determining the intent of the parties, certain general rules of construction must be considered. In New Hampshire Ins. Co. v. Fox Midwest Theatres, Inc., 203 Kan. 720, Syl. ¶ 1, 457 P.2d 133 (1969), it was held:
“The primary rule in construction of any contract is to ascertain the intent of the parties, and such intent may best be determined by looking at the language employed and taking into consideration all the circumstances and conditions which confronted the parties when they made the contract.”
In Hall v. Mullen, 234 Kan. 1031, Syl.¶ 4, 678 P.2d 169 (1984), the court held:
“Where two or more instruments are executed by the same parties at or near the same time in the course of the same transaction and concern the same subject matter, they will be read and construed together to determine the intent of the parties.”
The Andersons, who were jointly indebted to Hesston along with the Kettermans and some of their other joint business ventures, sought to refinance their obligations to Hesston and to be relieved of liability for the Kettermans’ share of the indebtedness. To accomplish this several documents were executed which must be read together to determine the true nature and intent of the assignment. They include the agreement between the parties, the note, the financing statement, and the assignment. The agreement dated April 22, 1985, provides in part:
“WHEREAS, A. Scott Anderson is indebted to the Hesston State Bank of Hesston, Kansas on certain loans in conjunction with Dr. Herbert Ketterman; and
“WHEREAS, the Hesston State Bank desires to take a secured position with regard to the indebtedness; ....
NOW, THEREFORE, the parties agree as follows:
“2. A. Scott Anderson and E. Sylvia Anderson will give to the Hesston State Bank an assignment of their right to proceeds from the sale of property in Johnson County, Kansas with the deed held by Land Opportunities Co. in which the Andersons are partners. An assignment dated April 22, 1985 has been executed.
“5. The assignment to the Bank of the right of the Andersons to proceeds of sale of the real estate described in the Assignment and the attached Option Agreement will be to the extent of principal and interest on the . . . ($97,256.85) note. At any time that note is paid in full, both principal and interest, the Assignment will be released. All proceeds from the Andersons’ interest in the sale of the real estate described in the Assignment will be paid to the Hesston State Bank until such time as the note, both principal and interest, is paid in full.” (Emphasis added.)
The promissory note signed by the Andersons was also dated April 22, 1985, and was on a form prepared or furnished by Hesston. The printed terms of the note clearly call for security and purport to grant the bank a security interest in the collateral described in the note. After reciting the details as to parties, amount, interest rate, and due date, the note provides in part:
“For the purpose of securing the payment of this note . . . the undersigned hereby pledge(s), transfers), and deliver(s) the property hereinafter described, and grant(s) a security interest in favor of the Bank therein . . . :
secured by assignment of proceeds — (Land Opportunities Company, a partnership)
also hereby granting the Bank a security interest in any property or moneys of the undersigned now or hereafter in the possession of said Bank, and agree(s), upon notification, to give such additional security as may be required . . . .”
The note then goes on to refer to the “security so pledged,” waives any exemptions, authorizes “sale of said security,” and provides the Andersons shall be liable for any deficit and that Hesston shall pay any surplus to the Andersons. The note spe cifically provides that it is subject to the Kansas Uniform Commercial Code. The note clearly contemplates that the assignment of the real estate proceeds is security for payment of the loan.
The Andersons also executed a UCC financing statement which refers to Hesston as the “secured party” and after describing the real estate refers to “proceeds assigned under date of 22 April 1985.” The financing statement was filed by Hesston with the office of the Secretary of State on July 31, 1986. See K.S.A. 1987 Supp. 84-9-401(l)(c).
It should also be noted that the assignment was recorded in the real estate records of the Johnson County register of deeds’ office on November 13, 1985. The mortgage registration tax was paid based upon the full amount of the note. Apparently, at that point, Hesston considered the assignment created an interest in the nature of a lien or mortgage on the Land Opportunities Co. real estate. See K.S.A. 79-3101 et seq.
The testimony of the president of Hesston, in his deposition, indicated that the assignment was security for the note and that Hesston’s security under the prior joint obligations, which were being separated and refinanced, was running “a little shy.” The Andersons’ attorneys, in seeking to refinance their clients’ indebtedness to Hesston, wrote that the Andersons “will give the bank security for payment on that note,” referring to the anticipated new note.
The trial court relied upon a number of factors in reaching its conclusion that the assignment was actually a security interest. These factors, as stated by Hesston in its brief, were:
“(a) [T]he loan was not immediately shown as paid when the assignment was made; (b) Bank, as assignee, did not surrender its right to full payment of the debt and to recover any deficiency; (c) Bank would have had to account for any surplus in excess of the debt; (d) the agreement between Bank and Defendants provided that Bank would not have any interest in the real estate, only in the proceeds; (e) the Buyer of the optioned real estate was not notified of the assignment; (f) the term ‘security’ was used in the agreement and note; and (g) the correspondence from Defendants to Bank prior to the transaction and certain of the testimony at the discovery deposition of the Bank president, Robert Showalter, employed the term ‘security.’ ”
The trial court extensively addressed each of these factors and, although we do not deem this list exhaustive, we find the factors were properly considered. See In re Joseph Kanner Hat Co., Inc., 482 F.2d 937 (2d Cir. 1973).
A careful review of the record herein and the documents associated with the “assignment” makes it abundantly clear that only a security interest in the option contract proceeds was created and that, as to Arkansas City and Southwest National, the interest was not perfected until the filing of the financing statement on July 31, 1986. The trial court was correct in its determination that the assignment actually created a security interest which was subject to the provisions of the UCC.
The last two issues raised by Hesston are so intertwined they will be considered together. Essentially the issue raised is the effect of the charging order issued by the trial court in November 1985, and served upon Land Opportunities Co. on January 23, 1986. Does the charging order in this case give appellees a claim to the Goode option proceeds which is superior to that of Hess-ton? We hold that it does. Hesston does not challenge the validity of the charging order, but argues that it entitles the judgment creditors to nothing more from the partnership than the Andersons’ interest in the real property proceeds at the time the charging order was issued or executed. Hesston argues that, as the Andersons had assigned to it their portion of the partnership interest represented by the funds paid into court, and since the assignment to Hesston preceded the issuance of the charging order, appellees could not reach those funds with the charging order because they no longer belonged to the Andersons. Since we have already determined that the assignment created only a security interest, we must determine the effect of the charging order and the priority, if any, of the competing claims.
K.S.A. 56-328 is a verbatim adoption of section 28 of the Uniform Partnership Act and provides:
“56-328. Partner’s interest subject to charging order, (a) On due application to a competent court by any judgment creditor of a partner, the court which entered the judgment, order, or decree, or any other court, may charge the interest of the debtor partner with payment of the unsatisfied amount of such judgment debt with interest thereon; and may then or later appoint a receiver of his or her share of the profits, and of any other money due or to fall due to him or her in respect of the partnership, and make all other orders, directions, accounts and inquiries which the debtor partner might have made, or which the circumstances of the case may require.
“(b) The interest charged may be redeemed at any time before foreclosure, or in case of a sale being directed by the court may be purchased without thereby causing a dissolution:
(1) With separate property, by any one or more of the partners; or
(2) With partnership property, by any one or more of the partners with the consent of all the partners whose interests are not so charged or sold.
“(c) Nothing in this act shall be held to deprive a partner of his or her right, if any, under the exemption laws, as regards his or her interest in the partnership.”
The history, application, and effect of the charging order is discussed at some length by Professor J. Gordon Gose in his article, The Charging Order Under the Uniform Partnership Act, 28 Wash. L. Rev. 1 (1953). In discussing the evolution of the charging order, Professor Gose states:
“One of the most artificial and confusing procedures of the common law was the method by which the creditor of a partner enforced his claim against the interest of his debtor in the partnership. Lord Justice Lindley of the English Court of Appeal, a most eminent authority on the law of partnership, aptly describes the common law procedures in the following language:
‘When a creditor obtained a judgment against one partner and he wanted to obtain the benefit of that judgment against the share of that partner in the firm, the first thing was to issue a fifa., and the sheriff went down to the partnership place of business, seized everything, stopped the business, drove the solvent partners wild, and caused the execution creditor to bring an action in Chancery in order to get an injunction to take an account and pay over that which was due by the execution debtor. A more clumsy method of proceeding could hardly have grown up.’
“Substantially the same procedure prevailed throughout the United States under general execution statutes where the successive steps generally consisted of: (1) seizure of some or all of the partnership property under writ of execution; (2) sale of the debtor partner’s ‘interest in the property’; (3) acquisition of the debtor partner’s interest ‘in the property’ by the purchaser at the execution sale, subject, however, to the payment of partnership debts and prior claims to the firm against the debtor partner; (4) compulsory dissolution and winding up of the partnership; and (5) distribution to the execution purchaser of the debtor partner’s share of any property remaining after the winding up process was completed.
“Two factors combined to bring about this ‘clumsy method.’ The first was the difficulty which courts and lawyers had in understanding the nature of a partner’s interest in a partnership, that is, that it was an intangible share in the business of the firm rather than a direct interest in the property of the firm. Even when this concept was recognized, as it inevitably was when a separate creditor of a partner seized partnership property, the second factor came into play. The common law had no procedure for the seizure of the partner’s intangible interest in the business. The writ of fieri facias, common law counterpart of the writ of execution, permitted seizure of physical property only. Since it was practically inconceivable that valuable partnership interests should be exempt from creditors’ claims, the writ of fieri facias was employed even though ill suited to the purpose.
“We thus find the common law courts enforcing claims against an intangible interest by a procedure commencing with the seizure of property but in its later stages converted into a proceeding whereby the debtor’s beneficial interest in the business is made available to his creditor. The final result, however, could be attained only at the expense of the disruption of the business and the compulsory dissolution of the partnership. These consequences were not only unfair to the non-debtor partners but also harmful to the value of the partnership interest which the creditor sought to reach in that good will and going concern value might be impaired or destroyed. In this state of affairs it was inevitable that a demand for reform arose.” pp. 1-2.
Thus, the charging order came into being as a part of the English Partnership Act of 1890. The English statute was the model for section 28 of the Uniform Partnership Act, which is quite comparable to the original English version. Although the uniform act has been adopted in nearly all jurisdictions, there are few cases and very little authority on the actual procedure to be followed in enforcing a charging order. See Unif. Partnership Act § 28, 6 U.L.A. 358 (1969 and 1987 Supp.). K.S.A. 56-328 sets forth no specific procedure to be followed in enforcing a charging order and the procedure contemplated is described only in broad, general language. Professor Gose, in discussing the lack of a specific procedure, postulates:
“Actually the statute apparently contemplates a highly flexible and elastic procedure under which the court may employ a charging order, a receivership of the debtor partner’s interest, a sale of that interest, and a wide range of orders for accounting or for other purposes ‘which the circumstances of the case may require.’ Fundamentally, the act seems to proceed on the theory that the primary method for satisfying the creditor’s judgment shall be by means of an order diverting the debtor partner’s share of the profits to his creditor in a manner somewhat like that used in garnishment proceedings. If this method is ineffectual there is another more drastic course of action mentioned — a sale of the debtor’s interest in the partnership. The other things provided — for appointment of a receiver and the taking of accounts and the making of such orders as the ‘circumstances of the case may require’ — appear to be designed simply as aids to these 'two basic methods of collecting. The use of these subsidiary aids to the collecting process certainly should be regarded as permissive rather than compulsory. There is no apparent necessity for the appointment of a receiver, if effective collection would result from the mere issuance of an order requiring the partners to pay directly to the creditor the amounts which otherwise would go to the debtor partner. The receiver in such a case would serve no useful function but would merely add to the expense and complexity of the proceeding.
“This broader concept of interpretation appears quite definitely to have been the view of Professor William Draper Lewis, the principal architect of the Uniform Act. Orginally the drafting of the Act was assigned to Dean Ames of the Harvard Law School. He died before the task was completed and Professor Lewis of the University of Pennsylvania Law School then took over and completed the job. In a general survey of the Uniform Act, written in the year following its approval by the Conference of Commissioners on Uniform State Laws, he explained the charging order procedure as follows:
‘After the adoption of the Act, when a judgment is secured against a partner by his separate creditor, all that a creditor will have to do is to apply to the court which gave him the judgment, or any other court, to issue an order on the other partners to pay him the profits which would otherwise be paid to his debtor,' or to make any further order which will result in his securing the payment of his judgment without unduly interfering with the rights of the remaining partners in partnership property.’
“Although this brief statement is of a most general character, it accords with the apparent meaning and intent of the statutory language.” pp. 10-11.
The procedure advocated by Professor Gose would appear to be consistent with the broad language of K.S.A. 56-328 and the intent of the drafters of the uniform act. The charging order in the present case provided in part:
“IT IS HEREBY ORDERED that the Plaintiffs . . . are granted a charging order ... in and to any interest which A. Scott Anderson [and] E. Sylvia Anderson . . . have in and to any of the following partnership properties:
(b) Land Opportunities Co.;
IT IS FURTHER ORDERED that each of the above partnerships are directed and ordered to charge any interest of the Defendants with payment of the judgment . . . .”
The charging order then directed each partnership to provide an accounting and full information relative to the Andersons’ interests in the various partnerships, including Land Opportunities Co.
Based upon the procedure outlined by Professor Gose, upon service of the charging order on Land Opportunities Co. the partnership was required to make all further distributions either directly to the judgment creditors or, if the disbursing partners had any question as to such distribution, they could have paid the money into court or sought additional instructions from the court. K.S.A. 56-328(a) states that the court may make “all other orders, directions, accounts and inquiries . . . which the circumstances of the case may require.” We interpret this language to mean that upon application of any of the parties, the partnership, or any other interested person or entity, the court has the power to issue such orders as are necessary to enforce its charging order. While the institution of actual garnishment proceedings would not ordinarily be required to enforce a charging order as to funds in the hands of the partnership, here the appellees sought collection of their judgment and enforcement of the charging order by garnishment proceedings against the Goode option funds which were in the possession of Mid-America. If the garnishment had not been served upon Mid-America, the funds would have been payable to Land Opportunities Co. and the Andersons’ share, as profits, would be subject to the charging order. Under such circumstances, the funds held by Mid-America were subject to the charging order to the same extent as they would have been if paid to the partnership. Garnishment of Mid-America was merely one way of enforcing the charging order.
Here, the issues before the court are limited to the effect of the charging order upon the Andersons’ distributive share of the proceeds. We are not called upon to determine the proper procedure to actually sell a partnership interest, which appears to be contemplated by K.S.A. 56-328(b). In a case where a judgment creditor is seeking the foreclosure and sale of an entire partnership interest as opposed to collecting only a partner’s distributive share of the profits, if any, the procedure contemplated by the statute is apparently more extensive. See generally 59A Am. Jur. 2d, Partnership § 790 et seq. However, we hold that the issuance and service of a proper charging order is sufficient to require the partnership to pay the judgment debtor’s share of distributable partnership profits to the judgment creditor or to the court to await further orders of the court. Of course, it should be apparent that the extent of any such payment is limited to any amounts due on the unsatisfied judgment. The procedure herein set forth, while similar to garnishment, is separate and apart from the garnishment statutes and is controlled by K.S.A. 56-328 and the broad powers of the court thereunder.
Finally, we must determine whether the service of the charg ing order upon the partnership creates a lien, claim, or charge upon the judgment debtors’ distributive share of partnership profits that has priority over and is superior to an unperfected security interest in the same property. While we have found no cases which specifically state that service of a charging order creates a lien as of the date of service, many cases seem to assume that it does. Compare Shirk v. Caterbone, 201 Pa. Super. 544, 193 A.2d 664 (1963); Taylor v. S & M Lamp Co., 190 Cal. App. 2d 700, 12 Cal. Rptr. 323 (1961); Scott v. Platt, 177 Or. 515, 163 P.2d 293 (1945).
K.S.A. 1987 Supp. 84-9-301(3) defines the term “lien creditor”:
“A ‘lien creditor’ means a creditor who has acquired a lien on the property involved by attachment, levy or the like and includes an assignee for benefit of creditors from the time of assignment and a trustee in bankruptcy from the date of the filing of the petition or a receiver in equity from the time of appointment.” (Emphasis added.)
K.S.A. 1987 Supp. 84-9-301(l)(b) subordinates an unperfected security interest to the rights of “a person who becomes a lien creditor before the security interest is perfected.” If the appellees became “lien creditors” by any means before appellant perfected its security interest on July 31, 1986, then appellant’s security interest is subordinate to the rights of appellees. Conversely, if appellees did not become lien creditors prior to July 31, 1986, their interest in the funds is subordinate to the appellant’s prior security interest.
The Official UCC Comment further explains subsection (l)(b):
“3. Paragraph (l)(b) provides that an unperfected security interest is subordinate to the right of lien creditors. The section rejects the rule applied in many jurisdictions in pre-Code law that an unperfected security interest is subordinated to all creditors, but requires the lien obtained by legal proceedings to attach to the collateral before the security interest is perfected. The section subordinates the unperfected security interest but does not subordinate the secured debt to the lien.”
We conclude that a proper interpretation of K.S.A. 56-328 is that a valid charging order does create a lien upon the debtor partner’s distributive share of present and future profits as of the time of service upon the partnership. The lien or charge thus established has priority over other security interests which are not perfected prior to the date of service of the charging order. The claim of Arkansas City and Southwest National to the funds in this case is superior to the security interest of Hesston.
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The opinion of the court was delivered by
Allegrucci, J.:
This is a criminal action in which the defendant, Thomas Helms, was charged with rape and aggravated battery. The defendant appeals his convictions by a jury of one count of rape (K.S.A. 1986 Supp. 21-3502) and one count of aggravated battery (K.S.A. 21-3414).
J.M. was twelve years old at the time this incident occurred and was living with her mother in Anthony, Kansas. J.M. testified that the defendant arrived at her mother’s house either late in the evening on July 13 or early in the morning of July 14. The defendant forced his way into the house, pushed her down on the floor, pulled her nightgown up around her shoulders and rubbed her breasts, pulled her panties down, and played with her genitals by inserting his finger into her vagina. The defendant hit her at least one time. J.M.’s testimony was corroborated by Kenny Hodson, a lieutenant with the Anthony Police Department. Hodson testified that, between 12:30 a.m. and 2:00 a.m. on July 14,1984, he saw a vehicle parked on the wrong side of the street in front of J.M.’s home. Hodson testified that he saw the vehicle pull away from the curb and that the driver was the defendant.
The defendant testified on his own behalf at trial, denying the charges against him and his presence at J.M.’s house on the night in question. In addition to the two offenses charged, the jury was instructed as to the lesser included offenses of indecent liberties with a child and battery. The defendant was sentenced to a term of imprisonment of ten to thirty-five years on the rape count, and a term of five to fifteen years on the aggravated battery count. The sentences for the two counts were set to run concurrently.
In the present appeal, the defendant presents two issues. He first contends that, in the present case, indecent liberties with a child (K.S.A. 1986 Supp. 21-3503) is a “more specific” statute than rape (K.S.A. 1986 Supp. 21-3502) and, therefore, indecent liberties with a child provides the exclusive basis upon which he may be charged, convicted, and punished. Thus, according to defendant’s argument, the complaint was defective because it charged him with the more general crime of rape rather than a violation of the specific crime of indecent liberties with a child. Defendant cites no authority to support his contention, and we have found none.
It is true that a special statute prevails over a general statute unless the court finds that the legislature intended that the general act controls. Seltmann v. Board of County Commissioners, 212 Kan. 805, 811, 512 P.2d 334 (1973); State v. Wilson, 11 Kan. App. 2d 504, 728 P.2d 1332 (1986). In Seltmann, the court defined the terms general and specific statutes: “ ‘A statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class is special.’ ” 212 Kan. at 810 (quoting 82 C.J.S., Statutes § 163, p. 277). We note that neither Seltmann nor Wilson is factually similar to the present case. In Seltmann, the issue was which of two statutes should be followed by the county in order to build a proposed medical clinic. In Wilson, the defendant was charged and convicted of two counts of presenting a false claim and presentment of claims not incurred. The convictions were based upon the same act of wrongdoing.
It is true, as defendant points out, that indecent liberties with a child contains an element not required to establish the crime of rape. In indecent liberties with a child, the State must prove that the victim was under sixteen years of age. But it is also true that the crime of rape contains elements not present within the crime of indecent liberties with a child. To establish rape, the State must establish that the victim did not consent to the act of sexual intercourse. The nonconsensual sexual intercourse must be shown to have occurred under specific, designated circumstances, among which is the overcoming of the victim by force or fear. K.S.A. 1986 Supp. 21-3502(l)(a). Rape is limited only to acts of sexual intercourse, while indecent liberties with a child includes a wide variety of sexual acts.
Thus, defendant’s argument that indecent liberties with a child is a “more specific” crime within the general crime of rape is not persuasive. Although both crimes may be coincidentally present in the same set of factual events, the two crimes are directed at different actions. Indecent liberties with a child punishes sexual intercourse or lewd fondling with a victim under sixteen years of age. The crime of rape punishes persons committing an act of sexual intercourse with a nonconsenting victim whose resistance is overcome by force or fear. We conclude that indecent liberties with a child is not more specific than rape in dealing with an illicit act of sexual intercourse.
In addition, this court has implicitly rejected the argument now advanced by defendant Helms. In State v. Coberly, 233 Kan. 100, 661 P.2d 383 (1983), this court concluded that, in a given case, the crime of indecent liberties with a child might be a lesser included crime of the crime of rape. In such cases, the court held that the evidence might “support a conviction of either, but not both.” 233 Kan. at 108. We rejected the defend ant’s argument that he could be punished only on the basis of indecent liberties with a child, and could not be convicted of rape, stating: “Here both crimes were charged and the jury was fully instructed concerning indecent liberties with a child and rape. The defendant was found guilty of both. There is no doubt the jury found the defendant guilty of the more serious crime of rape.” 233 Kan. at 109. In Coberly, we found that, under the factual circumstances existing in the case, the crime of indecent liberties with a child was a lesser included offense of the crime of rape, and that the defendant could not be convicted of both crimes. However, while the defendant could not be convicted of both crimes, he could be punished under either the crime of rape or the crime of indecent liberties with a child. Because there was no doubt that the evidence in the case established that the defendant had committed the crime of rape, the court merely voided the defendant’s conviction of indecent liberties with a child, and affirmed the defendant’s conviction of rape. In so doing, this court implicitly rejected a view which treats indecent liberties with a child as a “more specific” crime than the crime of rape and the exclusive statute under which a defendant in such cases may be prosecuted. In the present case, the jury, as instructed by the court, could have found the defendant guilty of rape or the lesser included offense of indecent liberties with a child. That was a proper instruction based upon our holding in Coberly. The defendant was found guilty of rape, and that result was what this court approved in Coberly.
Finally, we note that the rule that a more specific statute should prevail over the general statute is merely a rule of interpretation which is used to determine which statute the legislature intended to be applied in a particular case and has no application in the present case. See Seltmann, 212 Kan. at 811. If it were to apply in the present case, the rule as a means of determining legislative intent must yield where there is a clear indication that the legislature did not intend for one statute to be the exclusive mechanism for punishing a given activity. The necessary result of the defendant’s argument is that an individual who rapes a person under the age of sixteen years may not receive the punishment he would receive were he to have raped an adult. Such an interpretation accords to persons under the age of sixteen less protection than adults. The view that indecent liberties with a child provides the exclusive means of punishment for any individual who commits any sexual crime against a minor flies in the face of logic and reason. It requires an assumption that the legislature intended to afford less protection to the most vulnerable segment of our society.
As part of his first issue, defendant contends that, if we reject his argument that the complaint was defective, we must find, based upon our holding in Coberly, that the crimes of rape and indecent liberties with a child are identical. Therefore, he can be sentenced only under the lesser crime of indecent liberties with a child. The defendant cites State v. Clements, 241 Kan. 77, 734 P.2d 1096 (1987), as authority for requiring that he be resentenced. We do not agree. In Clements, we held that the crime of aggravated sodomy was identical to indecent liberties with a child as defined in K.S.A. 1984 Supp. 21-3503(l)(b), and that the defendant must be sentenced under the lesser offense of indecent liberties. In Coberly, we held that, under the particular facts of that case, proof of the rape necessarily proved the crime of indecent liberties with a child and was, therefore, a lesser included crime under K.S.A. 21-3107(2)(d). 233 Kan. at 108. We did not find that rape and indecent liberties with a child are identical crimes. Each requires proof of an element not required in the other. Rape requires proof that the victim did not consent to sexual intercourse; indecent liberties does not. Indecent liberties requires proof that the victim was under sixteen years of age; rape does not. The elements of the two offenses are not the same and we, therefore, conclude they are not identical offenses.
The second issue asserted on appeal is whether the trial court erred in not granting a mistrial. The defendant essentially argues that discharging the first juror after the jury had been empaneled and sworn required the trial court to declare a mistrial, and that the judge’s failure to do so was an abuse of discretion.
The jury in the present case was empaneled and sworn on the morning of December 16, 1986, and the court then recessed for lunch. After the lunch recess, one of the jurors selected informed the court that she realized during lunch that she bowled with the defendant’s mother. The juror stated that she might have some trouble sitting in the case because she knew the defendant’s mother. The defense attorney informed the court he had no objection to the juror’s remaining on the'jury. The juror was dismissed from the jury panel, and the defense moved for a mistrial. The attorney for the defendant stated that he opposed replacing her with a juror selected from the next four or five people from the jury roll, but thought that such a procedure would be a better practice than picking up four or five people from off the street.
Four persons were called from the jury roll; three had remained after voir dire was conducted. The State exercised a peremptory challenge, while the defendant did not. Of the two remaining jurors, one was designated to replace the juror discharged and the other was designated as an alternate. On the second day of the trial, another juror informed the court that she would have difficulty rendering an impartial verdict because of her knowledge of many of the witnesses in the case. She was replaced on the jury by the remaining alternate juror and she remained as an alternate juror until the case was submitted to the jury, at which time she was excused.
Defendant objects to the procedure by which the alternate jurors were selected. He contends that the district court was required to grant a mistrial after excusing the first juror. We find no merit in the defendant’s argument.
The essence of defendant’s argument is that the district court erred because it selected the alternate jurors after the first juror had been excused. Thus, the two additional jurors selected were not alternates designated to serve if jurors “become” unavailable. Under defendant’s interpretation of the statute, alternate jurors may be selected as replacements only for jurors who prospectively become unavailable after the selection of the alternate jurors.
K.S.A. 1986 Supp. 22-3412(3) provides, in part:
“Immediately after the jury is empaneled and sworn, a trial judge may empanel one or more alternate or additional jurors whenever, in the judge’s discretion, the judge believes it advisable to have such jurors available to replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable to perform their duties. Such jurors shall be selected in the same manner, have the same qualifications, and be subject to the same examination and challenges and take the same oath and have the same functions, powers and privileges as the regular jurors. Each party shall be entitled to one peremp tory challenge to such alternate jurors. Such alternate jurors shall be seated near the other jurors, with equal power and facilities for seeing and hearing the proceedings in the case, and they must attend at all times upon the trial of the cause in company with the other jurors. They shall obey the orders of and be bound by the admonition of the court upon each adjournment, but if the regular jurors are ordered to be kept in custody during the trial of the cause, such alternate jurors also shall be kept in confinement with the other jurors.”
The statute makes no distinction between jurors who have been excused prior to the selection of the alternate or additional jurors and jurors who are excused after the alternate or additional jurors have been selected. The statute contains two time requirements, both of which were complied with by the district court in the present case.
First, K.S.A. 1986 Supp. 22-3412(3) provides that alternate or additional jurors may be selected “to replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable to perform their duties.” (Emphasis added.) In the present case, the fact that the one juror was excused prior to the selection of the alternate jurors is not critical. The requirement of K.S. A. 1986 Supp. 22-3412(3) was met because the alternate juror replaced a juror who was found to be unable to perform her duties prior to the time the jury retired to consider its verdict.
The second time requirement is that the selection of alternate or additional jurors occur “[i]mmediately after the jury is empaneled and sworn . . . .” In the present case, the original twelve-person jury was empaneled and sworn on the morning of December 16, 1986. The jury was then excused for the lunch recess. Immediately after the recess, the juror reported her acquaintance with the defendant’s mother. The first juror was excused and the district court immediately proceeded to a voir dire of four additional persons from the jury list. The alternate jurors were empaneled and sworn on the afternoon of December 16, 1986. The selection of the alternate jurors occurred prior to the presentation of any evidence and prior to opening argument by counsel.
The decision to declare a mistrial, discharge a juror, or select additional or alternate jurors lies within the sound discretion of the trial court. State v. Hollis, 240 Kan. 521, 731 P.2d 260 (1987); State v. Haislip, 237 Kan. 461, 701 P.2d 909, cert. denied 474 U.S. 1022 (1985); State v. Folkerts, 229 Kan. 608, 629 P.2d 173 (1981); State v. Heck, 8 Kan. App. 2d 496, 661 P.2d 798 (1983). The defendant has the burden of showing the substantial prejudice necessary to a finding that the court abused its discretion. State v. Massey, 242 Kan. 252, 747 P.2d 802 (1987); State v. Bagby, 231 Kan. 176, 642 P.2d (1982).
In Folkerts, we stated:
“Our statute K.S.A. 22-3412(3) is similar to F.R.Cr.P. 24(c) and under the federal cases it is well established that the substitution of an alternate for a juror for reasonable cause is within the prerogative and discretion of the trial court. United States v. Ellenbogen, 365 F.2d 982 (2nd Cir. 1966), cert. denied 386 U.S. 923 (1967). See also 2 Wright, Federal Practice and Procedure: Criminal § 388, and Annot., 10 A.L.R. Fed. 185.” 229 Kan. at 616.
In Heck, the court stated:
“The selection of jurors is within the discretion of the trial court, and such discretion will not be reversed on appeal absent a showing of abuse of discretion. State v. Ekis, 2 Kan. App. 2d 658, 660, 586 P.2d 288 (1978), rev. denied 225 Kan. 846 (1979). In Ekis this court also restated the well-accepted rule found in 47 Am. Jur. 2d, Jury § 192, p. 783, that it is ‘[a] fundamental principle that a party or an accused has no vested right to any particular juror or jurors; all that he can insist on is an impartial jury of the requisite number in his own case and, at the most, a substantial compliance with the statutes governing the selection and summoning of jurors.’ ” 8 Kan. App. 2d at 504.
In the case at bar, the trial court acted promptly in selecting and empaneling the alternate jurors and substantially complied with the provisions of K.S.A. 1986 Supp. 22-3412(3). In addition, the defendant fails to show any prejudice resulting from the discharge of the two jurors and the empaneling of the alternate jurors, and we find none. The actions of the trial court were reasonable and did not constitute an abuse of discretion.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
Helen V. Goss brought suit against Oak Park National Bank and Richard Reid for malicious prosecution of a civil action. This appeal is from a directed verdict entered in favor of the Bank and a jury verdict entered in favor of Richard Reid.
Plaintiffs action followed a mortgage foreclosure action brought by attorney Reid on behalf of his client, Oak Park National Bank, on a note and mortgage executed by James A. Goss to the Bank upon which note payments were in default. Before filing suit Reid secured a title search by Columbian National Title Company to determine whether any person had any interest, right, or claim to the real estate described in the mortgage. A title report was issued by Columbian National to Reid stating that child support payments were due from James A. Goss to Helen V. Goss by reason of a judgment in case No. 69188, in the district court of Johnson County. Reid then named Helen V. Goss as a party defendant in the foreclosure proceeding in order to protect the interests of the Bank and to insure that a clear and marketable title could be obtained. Also named as defendants in the foreclosure action were James A. Goss, the debtor; Capitol Federal Savings and Loan Association, which held a prior mortgage on the same real property; and the Kansas Department of Revenue, by virtue of a state tax lien filed against James A. Goss. The petition alleged in substance that Helen V. Goss is named as a party defendant by virtue of case No. 69188 filed in the district court of Johnson County, titled Helen V. Goss v. James A. Goss. The petition sought a personal judgment against James A. Goss, foreclosure of the mortgage, sale of the property, and a determination that the interest, if any, of each of the other named defendants be determined and adjudged to be inferior to the rights of the Bank. No money judgment was sought against Helen V. Goss.
Helen V. Goss was indeed married to and was divorced from James A. Goss. It develops, however, that there were two persons named James A. Goss who were uncle and nephew. Helen V. Goss was married to and divorced from the uncle; the nephew was the mortgagor and the former owner of the real estate in question. Helen V. Goss has no judgment against the nephew and has never claimed any interest in and to the real estate upon which the mortgage was being foreclosed. Helen V. Goss was never served with a summons and a copy of the petition; instead, her first knowledge of the action came on January 9, 1984, when she was served with a copy of the answer, cross-claim, and counterclaim of Capitol Federal. After being served, she contacted her attorney. He called counsel for Capitol Federal. Capitol Federal’s attorney in turn contacted Columbian National Title, which agreed to withdraw its exception, and he also telephoned defendant Reid. About the same time Helen V. Goss spoke with one of the officers of Oak Park National Bank, where she is and has been a customer. The banker, upon realizing the mistake, called Reid to explain the mix-up in the names and to seek a dismissal as to Helen. Reid promptly prepared an order of dismissal, circulated it to other counsel, and secured an order of the court dismissing the action as to Helen V. Goss. This occurred by the end of January 1984.
In this malicious prosecution action, plaintiff claims that Reid should have made a demand upon her and should have offered her the opportunity to respond with her version of the facts before instituting suit against her; that an investigation would have revealed that she was not married to and held no judgment against the James A. Goss who was the mortgagor of the property here involved; and that the wrongful filing of the action against her has caused her great pain and mental suffering. Plaintiff has and claims no interest in the realty; that is precisely what Reid sought to have the court declare in the mortgage foreclosure action.
Plaintiff relies heavily on our decision in Nelson v. Miller, 227 Kan. 271, 607 P.2d 438 (1980), an action for malicious prosecution of a civil action brought by a physician against the attorneys who had previously filed a multi-million dollar malpractice action against him. In that opinion, we said:
“In cases where attorneys are sued for malicious prosecution of a civil action, there are special rules to be applied in determining an attorney’s liability. In Restatement [(Second) of Torts] § 674 comment d [(1976)], the liability of an attorney in such an action is stated to be as follows:
“ ‘d. Attorneys. An attorney who initiates a civil proceeding on behalf of his client or one who takes any steps in the proceeding is not liable if he has probable cause for his action (see § 675); and even if he has no probable cause and is convinced that his client’s claim is unfounded, he is still not liable if he acts primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim. (See § 676.) An attorney is not required or expected to prejudge his client’s claim, and although he is fully aware that its chances of success are comparatively slight, it is his responsibility to present it to the court for adjudication if his client so insists after he has explained to the client the nature of the chances.
“ ‘If, however, the attorney acts without probable cause for belief in the possibility that the claim will succeed, and for an improper purpose, as, for example, to put pressure upon the person proceeded against in order to compel payment of another claim of his own or solely to harass the person proceeded against by bringing a claim known to be invalid, he is subject to the same liability as any other person. . . . An attorney may also be subject to liability if he takes an active part in continuing a civil proceeding properly begun, for an improper purpose and without probable cause.’ pp. 453-454.
We approve section 674 and comment d as a fair statement of the law to govern the liability of attorneys in Kansas for malicious prosecution of a civil action. . . . We . . . adopt the general statement of the law as set forth in Restatement (Second) of Torts § 674 (1976) which is quoted above.
“[T]he attorney must accept the obligation to conduct a reasonable investigation in an attempt to find what the true facts are before filing a civil action on behalf of his client. In determining probable cause in a malicious prosecution action brought against an attorney, a jury may properly consider not only those facts disclosed to counsel by the client but also those facts which could have been learned by a diligent effort on the attorney’s part. In determining the purpose of the attorney in filing a civil action, a jury may properly consider as evidence of good faith or absence of malice the fact that the attorney, before filing an action, made a demand upon his client’s adversary and extended to him the opportunity to respond with his version of the facts. This should be the standard procedure unless an immediate filing of an action is required by the imminent running of the statute of limitations or some other good reason.” Nelson v. Miller, 227 Kan. at 282-85.
Mr. Reid, in preparing the mortgage foreclosure action, sought and received a report from a title company disclosing the names of all persons who could have title to or liens or claims against the described real estate. He wrote a letter to James A. Goss, the mortgagor, telling him that his note was overdue and informing him that the mortgage would be foreclosed if the note was not paid. Reid did not write to Helen V. Goss.
The controlling issue in this lawsuit is whether attorney Reid had probable cause as a matter of law to include Helen V. Goss as a defendant in the foreclosure action. Upon review of the factual background and the applicable law, we hold that he did. We agree with the rationale found in the following testimony of Mr. Gerald L. Goodell, called as an expert by the defendant:
“Q. Mr. Goodell, in your practice in filing a foreclosure action, do you make a distinction between the debtor who owes money and other potential defendants in determining whether to send a letter in advance asking them to pay?
“A. Yes.
“Q. And what is that distinction?
“A. Well, the distinction is the debtor you’re going to seek a money judgment against. A person such as Mrs. Goss you are quieting the title. You are not seeking any type of money judgment against her whatsoever. And in one way, you’re giving her the chance to get paid if, in fact, she did have unpaid child support against this property. On the other hand, you are performing the quiet title aspect, the foreclosure, by joining her.
“Q. Mr. Goodell, what did you mean . . . when you said the reasonable investigation depends on the type of lawsuit?
“A. In a mortgage foreclosure suit investigation concerning joining of people with possible liens, in my opinion, is the ordering of the report. You are getting a report from people who are paid to research the records and to give you the names of everybody that might have a lien against that property. That’s what I mean.”
The client in this case, the Bank, gave its attorney, Reid, information as to the note and mortgage and the delinquency. Reid then ordered a title search in order to determine who else, if anyone, had potential liens or claims against or title to the described property. The client has the right to expect the attorney to handle the foreclosure proceeding so that when judgment is entered, the mortgage is foreclosed, and the property is sold, clouds on the title will be removed and the purchaser at the sale will receive clear or marketable title. Failure to clear the title of potential clouds at the time that the mortgage is foreclosed could constitute legal negligence or malpractice. The title search is instituted for the purpose of discovering those persons or corporations who, according to the public records, have potential claims. Absent unusual circumstances, which were not present here, we hold that the securing of a title search and report from a title company regularly engaged in that endeavor satisfies the foreclosure attorney’s burden of conducting a reasonable investigation.
Before filing the foreclosure action Reid wrote to the mortgagor, James A. Goss. He did not write to the other defendants, including Helen V. Goss, against whom he sought judgment only that their liens, if any, were inferior and subject to that of the plaintiff Bank. This omission is cited by appellant as demonstrating or evidencing bad faith or malice on the part of the foreclosing attorney. But, as we have noted, the attorney had probable cause to include Helen V. Goss as a defendant in the foreclosure action.
Must a “demand letter” be sent to one who is about to be joined in order to remove a cloud on the title? No money judgment is sought against such person; court costs will not be assessed against such person; the only purpose of joining such person as a defendant in the action is to alert that person to come forward and establish any interest such person may claim in the property. If no claim is asserted, the court will decree that such person has no interest superior to that of the foreclosing party. If a claim is asserted, the court will determine the validity and priority of such claim. Those joined as additional party defendants in a foreclosure action include other lenders whose mortgages are of record, record lien claimants, and those who may have some judgment or other claim the efficacy of which is unclear from the record. Holders of mortgages and liens of record will ordinarily appear to protect their claims. Those who have potential liens or claims may or may not appear. We see no reason that such persons be personally notified before the foreclosure proceeding is commenced, and we hold that the failure to notify such persons in advance does not, absent some other factual showing, indicate bad faith or malice on the part of the foreclosing party or its attorney. Though taken literally, the language of our opinion in Nelson v. Miller might indicate that every defendant be notified before an action is filed, such notice need not be sent to persons joined only for the purpose of quieting titles and against whom no money judgment is sought. Despite the quoted language from Nelson v. Miller, an attorney need not make a written demand upon proposed defendants in advance of the filing of an action in the nature of a quiet title or mortgage foreclosure proceeding. Nelson v. Miller was not intended to apply to such proceedings.
There is no evidence that Reid knew of the existence of two James A. Gosses or that he had actual knowledge that Helen V. Goss had a judgment against a James A. Goss different from the mortgagor. There is no evidence that Helen V. Goss was named as an additional defendant in the foreclosure action for any purpose other than that of perfecting the title to the real estate. The Bank did not designate Helen V. Goss as a defendant, and as soon as a bank official learned of her inclusion in the lawsuit, he notified Reid that she had no interest and the action against her should be dismissed. Reid promptly did so. Finally, there is no evidence that Reid joined Helen V. Goss as a defendant because of any ulterior motive. He joined her only to remove the cloud on the title pointed out by the title report.
The elements of wrongful use of civil proceedings, or malicious prosecution of a civil action, are carefully reviewed in Nelson v. Miller, and we will not repeat that discussion here. Two of the essential elements of such a cause of action, both of which must be established, are that the civil proceeding was initiated without probable cause and that the defendant acted with malice primarily for a purpose other than that of securing the proper adjudication of the claim upon which the proceedings were based. Nelson v. Miller, 227 Kan. at 276. See Restatement (Second) of Torts § 674 comment d (1976). We hold that the mortgage foreclosure proceeding at issue here was instituted with probable cause and that there is no evidence indicating malice on the part of either defendant or that either of them acted for any purpose other than that of securing the proper adjudication of the foreclosure proceeding. Neither element was established.
Other issues raised need not be addressed since our holding set forth above determines this appeal. Defendants’ request for attorney fees is denied since this case raises an issue we have not found in any reported case.
The judgment is affirmed. | [
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On the 16th day of December 1987, the office of the Disciplinary Administrator filed a formal complaint with the Kansas Board for Discipline of Attorneys charging J. Taylor Neuschwander of Garden City, Kansas, with violations of the Kansas Code of Professional Responsibility, Supreme Court Rule 225 (1987 Kan. Ct. R. Annot. 122).
The complaint alleges that on the 15th day of June 1979, respondent was appointed administrator of the Estate of Bertha C. Hurty, Deceased, by the District Court of Greeley County, Kansas (Case No. 79-P-14). Respondent filed an inventory and appraisement in said estate on the 25th day of September 1979, valuing the estate at an appraised value of $110,036.40. Court records reflect that the bulk of said estate consisted of corporate securities and cash having a value in excess of $90,000.00. On July 3,1985, respondent was directed by the District Court to file his accounting of the administration of said estate and to proceed to close the estate. Respondent has failed to file any accounting or to take any action to comply with the court’s directions.
Respondent failed to respond in the investigation of the complaint herein and failed to answer or otherwise respond to the formal complaint. The complaint was set to be heard on the 28th day of January, 1988, before a panel of the Kansas Board for Discipline of Attorneys, and on the 27th day of January 1988, respondent advised the Clerk of the Appellate Courts that he desired to surrender his license and privilege to practice law in Kansas pursuant to Supreme Court Rule 217 (1987 Kan. Ct. R. Annot. 115).
The Court, having reviewed the record herein together with the proceedings in the Estate of Bertha C. Hurty, Deceased, finds that the surrender of said license should be accepted.
It is Therefore Ordered that J. Taylor Neuschwander be and he is hereby disbarred from the practice of law in the State of Kansas.
Dated this 29th day of January, 1988.
It is Further Ordered that respondent shall immediately comply with Supreme Court Rule 218 (1987 Kan. Ct. R. Annot. 116).
It is Further Ordered that the costs herein are assessed to the respondent. | [
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The opinion of the court was delivered by:
Holmes, J.:
The State of Kansas appeals from an order of the district court dismissing the complaint against the defendant Lanny Riedel. The trial court sustained defendant’s motion in limine and ruled that the State was barred from introducing evidence of the facts underlying a prior conviction which had been expunged pursuant to K.S.A. 1987 Supp. 21-4619. The State then refused to go to trial and the complaint was dismissed. The State appeals.
As defendant has made no appearance in this appeal, the facts must be gleaned solely from the rather sparse record submitted on appeal. Defendant was originally charged with multiple counts and following a preliminary hearing was apparently bound over for trial on one count of felony theft (K.S.A. 1987 Supp. 21-3701) and one count of altering a vehicle identification number (K.S.A. 1987 Supp. 8-116). The case was assigned to the Hon. William Gray. The State filed a motion pursuant to K.S.A. 60-455 seeking to admit evidence of a prior crime. The defendant had been convicted in 1970 in Douglas County District Court of receiving stolen property while a student at the University of Kansas and that conviction was upheld on appeal in State v. Riedel, 211 Kan. 872, 508 P.2d 878 (1973). In 1981 defendant sought and received an order of the Douglas County District Court expunging the 1970 conviction. The State, at the hearing on its K.S.A. 60-455 motion, argued before Judge Gray that the facts underlying the 1970 conviction should be admissible in the present case “for the purpose of showing intent, knowledge, absence of mistake, as set out in my motion.” Judge Gray took judicial notice of the facts of the prior conviction as set forth in State v. Riedel and ruled those facts would be admissible at the trial of this case. Although the defendant argued that evidence regarding an expunged conviction could not be admitted for K.S.A. 60-455 purposes, the trial court ruled it was admissible under K.S.A. 1987 Supp. 21-4619(f)(4).
Judge Gray granted the State’s motion to admit the evidence on the ground that K.S.A. 1987 Supp. 21-4619(f)(4) permits disclosure of the expunged prior conviction “in a subsequent prosecution for an offense which requires as an element of such offense a prior conviction of the type expunged.” Judge Gray reasoned that the prior conviction was being offered to prove knowledge, intent, or absence of mistake; that these constituted “an element of this case”; and that therefore the prior conviction, despite its expunction, was admissible under the last clause of 60-455 by virtue of the exception in K.S.A. 1987 Supp. 21-4619(f)(4). This reasoning was clearly in error. The wording of 21-4619(f)(4) envisions prosecution for an offense such as habitually promoting prostitution (K.S.A. 21-3514), habitually giving worthless checks (K.S.A. 1987 Supp. 21-3708[l][a]), or possession of a firearm by a felon (K.S.A. 21-4204[l][b]), for which a prior conviction is a statutory element of the crime charged. The language is clear that it is the prior conviction itself that must be an element of the subsequent offense. In this case, defendant was being prosecuted for crimes which do not include a prior conviction as an element of the offenses. Judge Gray apparently confused the 60-455 exception with the 21-4619(f)(4) exception and as a result based his ruling on an erroneous interpretation of the statutes.
Thereafter, the case was reassigned to the Hon. Janice D. Russell and was given atrial date of March 9,1987. On February 19, 1987, defendant filed a motion in limine to prohibit the introduction of the facts from the prior conviction, asserting inter alia that Judge Gray erred in his interpretation of K.S.A. 1987 Supp. 21-4619. A hearing was held on March 9, 1987, and the defendant’s motion was sustained. The State then declined to proceed to trial and the complaint was dismissed. The State appeals. In argument before this court the State candidly conceded its case against defendant, without evidence of the prior conviction, was too weak to justify going to trial.
The State raises two issues in this appeal:
(1) Whether the trial court erred in granting the defendant’s motion in limine after another district judge, to whom the case had previously been assigned, ruled on the State’s motion that evidence of the expunged prior conviction would be admissible under K.S.A. 60-455; and
(2) whether the trial court, in granting the defendant’s motion in limine, erred in ruling that evidence of an expunged prior conviction is inadmissible under K.S.A. 60-455.
The State initially argues that it was improper for the trial judge to even consider the defendant’s motion in limine after a previous ruling by Judge Gray that the evidence was admissible. It is contended that a district judge does not have the power and authority to hear an “appeal” from a pretrial ruling made by another district judge. The State concedes that the trial court is granted broad discretion in the admissibility of evidence. However, it argues that once a trial court renders a pretrial decision on the suppression or exclusion of evidence, that decision may not be reconsidered unless new evidence or facts not considered at the pretrial hearing are adduced which could cause the trial court to change its ruling. The State asserts that defense counsel proffered no new evidence or arguments in the motion in limine.
The State cites no authority directly supporting its argument, but argues that State v. Jackson, 213 Kan. 219, 515 P.2d 1108 (1973), and State v. Boling, 5 Kan. App. 2d 371, 617 P.2d 102 (1980), are analogous.
Jackson addressed whether a trial court erred in suppressing, during the trial, certain evidence alleged to have been illegally seized, after the administrative judge had denied a pretrial motion to suppress. 213 Kan. at 225. The court applied K.S.A. 22-3216, which authorizes a defendant to move to suppress as evidence any property obtained by an unlawful search and seizure. That statute generally requires such a motion to be made before trial, but gives discretion to the court to entertain the motion at trial. The State argued that the motion had been ruled upon by the administrative judge prior to trial and could not be subsequently reentertained by the trial judge. The State relies upon Syllabus ¶ 1 of Jackson, which reads:
“Under the provisions of subsection (3) of K.S.A. 1972 Supp. 22-3216 the trial court may in its discretion reentertain a motion to suppress evidence made and ruled on prior to trial if at trial new or additional evidence is produced that is material to the issue or substantially affects the credibility of the evidence adduced at the pretrial hearing on the motion.”
We do not read the opinion in Jackson as requiring “new or additional evidence” on every occasion that a trial judge reconsiders an earlier order entered at a pretrial motion hearing. As recognized in Jackson, the decision to rehear an earlier motion is a matter which lies within the sound discretion of the trial court. In Jackson, the court recognized that a determination on a pretrial motion ordinarily controls at trial, but the court also stated:
“However, contrary to the state’s position, we believe the last provision referred to [22-3216(3)] also authorizes the trial court, in its discretion, to reentertain the motion at trial. T o interpret otherwise would be to proscribe correction of its own error by the trial court at trial or even on a motion for a new trial.” 213 Kan. at 226.
The State also cites State v. Boling, 5 Kan. App. 2d 371, as being “remotely analogous.” While Boling presented a somewhat similar issue, the Court of Appeals did not reach the merits of the interlocutory appeal because it was dismissed for lack of appellate jurisdiction. Boling is not applicable to the facts of this case.
Here, Judge Gray ruled upon the State’s motion to allow evidence of a prior crime under K.S.A. 60-455 and in doing so based his ruling upon an erroneous interpretation of K.S.A. 1987 Supp. 21-4619(f)(4). Judge Russell was placed in the position of either accepting Judge Gray’s ruling, and perhaps allowing inadmissible evidence to be presented to the jury, or making an independent decision in response to the defendant’s motion to exclude the evidence. We think Judge Russell, as the judge actually presiding at the trial, acted properly in determining she should make the final determination as to the admissibility of evidence at the trial, even though there had been an earlier ruling on the same evidence at a pretrial motion hearing. While in most cases district judges should be reluctant to rehear an issue decided earlier in the proceedings, reconsideration of such an issue lies within the sound discretion of the trial judge. Reconsideration of earlier pretrial rulings, when necessary to prevent prejudice and assure the parties a fair trial, cannot be said to be an abuse of the trial court’s broad discretion. Cf. State v. Quick, 226 Kan. 308, 597 P.2d 1108 (1979). No abuse of discretion on the part of Judge Russell has been shown in this case.
The next issue asserted is that Judge Russell erred in granting the defendant’s motion in limine, thereby ordering inadmissible any evidence pertaining to the defendant’s expunged prior conviction. The State’s burden on appeal of this issue is a heavy one:
“This court has always been committed to the rule that one seeking reversal of a judgment because of erroneous exclusion of evidence has the burden of demonstrating prejudice as well as error in the ruling complained of.” Brown v. Hardin, 197 Kan. 517, 520, 419 P.2d 912 (1966).
Even assuming arguendo that the challenged ruling was in error, the State has not shown that the exclusion of the evidence was prejudicial to its case. After Judge Russell’s ruling, the State declined to present any evidence against the defendant. Under these circumstances the State cannot argue the exclusion was prejudicial to its case since it failed to present any case at all. Had the State allowed the trial to proceed and had the jury returned a not guilty verdict, it might be possible to show that if the evidence had not been excluded, the State might have obtained a conviction. In this case, however, it is impossible to conclude that Judge Russell’s ruling prejudiced the State’s case because it is conceivable, assuming there was a valid basis for the complaint in the first place, that the jury would have returned a guilty verdict even without considering evidence of the prior conviction. Certainly, if the prior conviction was the only evidence the State had which could lead to conviction here, the evidence would be inadmissible under the express terms of K.S.A. 60-455. Judge Russell’s entry of a judgment of dismissal did not result from any prejudicial effect of her ruling on this evidence issue; it resulted instead from the State’s refusal to try its case against the defendant.
The State argues only that the evidentiary ruling was erroneous. This court has held that questions regarding the admissibility of prior crimes evidence are within the discretion of the trial judge, whose ruling will not be interfered with on review unless that discretion was abused, or unless it is clear that the trial court admitted evidence that has no bearing on any of the issues involved in the charge. State v. Aldrich, 174 Kan. 335, 338, 255 P.2d 1027 (1953); State v. Owen, 162 Kan. 255, 176 P.2d 564 (1947).
Unfortunately, the record before this court is not sufficient to support meaningful review of the issue asserted by the State. Although the State apparently recognized at the hearing before Judge Russell that the basis for Judge Gray’s order was erroneous, counsel made no attempt to show the relevance or applicability of the evidence underlying the prior conviction to the charges in the present case. Although the issue asserted may be of substantial interest and have an important bearing upon the administration of criminal justice, an issue of such importance should not be decided on the basis of the record before us.
The appeal is denied. | [
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The opinion of the court was delivered by
Herd, J.:
This is an appeal from the district court’s dismissal of an appeal by The International Brotherhood of Boilermakers from an order of the State Board of Tax Appeals denying tax exemption to certain personal property.
The International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers is a labor union with a membership of approximately 135,000 from the United States and Canada. It has been headquartered in Kansas City, Kansas, since 1881. It seeks exemption from personal property ad valorem tax in Wyandotte County for furniture, typewriters, word processors, and other office equipment used in the headquarters. The headquarters takes up one floor and part of two others in a nine-floor building owned by the Brotherhood. The Brotherhood rents out the other space in the building. No exemption is sought for real estate, nor for equipment which is used for maintaining the building. The Brotherhood does not seek exemption, for example, for a truck used for taking junk out of the building because the truck is not used exclusively for union purposes.
The personal property for which the Brotherhood is not seeking an exemption has a total market value of approximately $30,000, while the property for which it claims exemption has a value of approximately $203,000. The value of the property sought to be exempted has been stipulated to by the parties.
The Brotherhood is separate from the local unions, but is supported by them through participation in a percentage of the local union dues. Its share of local dues averages about $8.60 per month per union member, which amounts to a total of approximately $1,161,000.00 per month. The headquarters is made up of six major departments and employs approximately 130 people.
The Research and Education Department accumulates data on specific industries for use in collective bargaining. It also sponsors university-affiliated union leadership programs. The Occupational, Safety and Health Administration Department is funded in part by a Department of Labor grant. The department researches and provides information to union members about occupational and safety hazards inimitable to the occupations of its members, such as asbestos poisoning and welding accidents.
The National Transient Division collects dues directly from those whose work requires them to travel from place to place (putting up water towers, for example), and thus do not belong to a local union. In return, the Brotherhood provides safety and health information, apprenticeship training, and collective bargaining representation.
The Publications Department distributes pamphlets on work place hazards and precautions workers can take to avoid them. This department publishes the Boilermakers and Blacksmiths Reporter, which in addition to health and safety reports provides union members with news on union benefits and results of union labor negotiations.
The Publications Department also publishes pamphlets on “legislative education action programs.” The Brotherhood engages in political activity. For example, the Brotherhood re ported in the Reporter it had taken “steps to buttress LEAP, the Brotherhood’s political arm.” Members were advised that “LEAP-endorsed candidates won in 70 percent of the congressional contests.” On the next page, the Brotherhood’s president reported the Brotherhood would soon announce where workers should send their “petitions, postcards, and letters” protesting taxation of fringe benefits. 23 Boilermakers & Blacksmiths Reporter 1-2 (Dec. 1984).
The Department of the International President and the Department of the International Secretary-Treasurer are administrative departments which seek to carry out the purposes of the Brotherhood as set out in its constitution:
“to implement the exercise of the natural right of workers to organize that they may more securely work with dignity; to establish the contentment of freedom and security; to enable its members to participate actively in self-government; to unite into one International Brotherhood all workers eligible for membership, regardless of religion, race, creed, color, national origin, age, or sex; to secure improved wages, hours, working conditions and other economic advantages for the members through collective bargaining, through advancement of our standing in the community and in the labor movement, and through other lawful methods; to provide educational advancement and training for officers, employees and members; to safeguard and promote the principle of free collective bargaining, the rights of workers, farmers and consumers, and the security and welfare of all the people by political, educational and other community activity; to protect and strengthen our democratic institutions and preserve and perpetuate the cherished traditions of democracy; to protect and preserve the union as an institution and in the performance of its legal and contractual obligations.” Purposes and Objectives § 2.
The administrative departments, in furtherance of these goals, maintain a defense fund for the legal protection of the union. The departments’ duties include making payments to the A.F.L.C.I.O., of which the Brotherhood is an affiliate, maintaining a strike fund, and investing Brotherhood dues so that their return may also be used to further these purposes. The president and his assistants engage in labor negotiations at many different locations throughout the year.
The Brotherhood seeks exemption from ad valorem taxation of tangible personal property in Wyandotte County used in furtherance of its union objectives, claiming exemption on the ground such property is used exclusively for benevolent purposes under K.S.A. 1986 Supp. 79-201 and Article 11, § 1 of the Kansas Constitution. The State Board of Tax Appeals denied both the Brotherhood’s application and its motion for a rehearing. The Brotherhood appealed to the district court.
The district court denied the appeal on authority of Kansas State Teachers Ass’n v. Cushman, 186 Kan. 489, 351 P.2d 19 (1960). After filing an appeal with the Court of Appeals, the Brotherhood moved to transfer the appeal to this court pursuant to K.S.A. 20-3017 and Supreme Court Rule 8.02 (235 Kan. lxxvi), which motion was granted.
Let us now examine the applicable rules of law. In determining whether an applicant is entitled to an exemption from taxation, we have developed certain principles which are not challenged by the Brotherhood. First, the party claiming tax exemption has the burden of establishing the use of the property is clearly within the exemption. “[Tjaxation is the rule, exemption is the exception.” Cushman, 186 Kan. at 501. Second, we strictly construe statutory and constitutional exemption provisions. All doubts are resolved against exemption. Trustees of The United Methodist Church v. Cogswell, 205 Kan. 847, 851, 473 P.2d 1 (1970). Third, the 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).
The Brotherhood seeks exemption both under statutory provisions and the Kansas Constitution. Article 11, § 1 of the Kansas Constitution provides that:
“All property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes, and all household goods and personal effects not used for the production of income, shall be exempted from property taxation.”
K.S.A. 1986 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 . . . .”
The Brotherhood does not argue it is a charity, but claims exemption as a benevolent organization, contending this court should distinguish between the terms.
The only issue presently before this court is whether the Brotherhood’s use of its property could be held exclusively benevolent even if we were to define “benevolent” broadly and distinguish it from “charitable.”
We have no hesitation in finding that trade unions perform great public service and perform many benevolent acts. However, the purpose of a union, or any trade association, is to promote the well-being of its membership. We hold such purpose is not benevolent. A trade union collects union dues, and bargains collectively for wages, hours, working conditions, and fringe benefits for its membership. It performs a political function by endorsing and supporting candidates. All of those functions are non-benevolent functions. On the other hand, unions operate hospitals, give food to the needy, collect funds for United Way and other charities, and perform many other acts of good will. Thus, a trade union is organized to benefit its membership financially, but also performs benevolent tasks as well. Its benevolent function is not its purpose, but is merely incidental to its purpose of promoting the well-being of its members. The Brotherhood’s actions are consistent with other trade associations such as the Chamber of Commerce, the National Association of Manufacturers, the National Association of Corporate Executives, etc. Of course, the office furniture and equipment used to carry on the business of the trade union is also used to perform the benevolent functions. But such personal property is not used exclusively for benevolent purposes and is thus not exempt from taxation.
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The opinion of the court was delivered by
Allegrucci, J.:
This is a direct appeal in which the defendant, Lawonna R. Hill, was tried before a jury and convicted of second-degree murder. K.S.A. 21-3402. She was sentenced to a term of imprisonment of 15 years to life.
At approximately 3:00 a.m. on February 1, 1986, the Wichita Police Department began to receive reports of a shooting at 9th and Washington in Wichita, Kansas. At the same time, the defendant arrived at the Wichita police station. She told police officers there that she was the one who had done the shooting. Police officers responding to the reported scene of the shooting found a black female lying upon the floor in the hallway of a private club. The victim of the shooting, Patricia A. Jackson, was pronounced dead at the scene by members of the Sedgwick County coroner’s office. The cause of death was a gunshot wound to the chest.
The defendant turned over to the police the gun used in the shooting, a .22 caliber pistol. Police officers informed defendant of her Miranda rights and she consented to interrogation by the police. Immediately prior to the interrogation, police officers informed her that Jackson had died. The police officer conducting the interrogation stated that defendant “gasped and weeped [sic] . . . for a period of time” in apparent “sorrow or shock.” The tape recording made of the interrogation formed almost the entire basis of the State’s case.
During the course of the interrogation, the defendant stated that she, along with her brother, Keith Hill; Keith’s friend, Dana Love; and defendant’s friend, Linda Maples, were at another bar near the scene of the shooting. The defendant, her brother, and Dana Love had arrived at Loffers, the other bar, at approximately 12:30 a.m. Maples was present at Loffers when the defendant arrived. The four stayed until closing at Loffers. Defendant stated during the interrogation that she had not had anything to drink during that time, although she had smoked a joint of marijuana earlier in the evening after she had gotten off work. After Loffers closed, defendant stated that the four proceeded to a nearby bar which was still open, which has been referred to in the record variously as Tom’s place or Rick’s place. Upon arriving, they found the bar was crowded. As defendant went through the door, there was a lot of pushing and shoving. She described the events which followed:
“Hill: . . . So this girl, I don’t know, I guess . . . the girl, the girl. Well, it was, you know, it was kind of pushing and I wasn’t really paying no attention, you know. It was kind of pushing and then she hit me.
“Blevins: How did she hit you?
“Hill: I don’t know. She, you know, she hit me. I was, we was going through the door and we kind of stopped right there where her and this guy was. So she hit me like on top of the head and my girlfriend said, Angel, she said go on — that’s my nickname — Angel. She said, Angel go on, don’t pay no attention ‘cause she’s drunk. So we was going on through, you know, and so I guess the shoving and pushing started again. So there she was again. . . .
“. . . I was walking on and she kinda, I guess, elbowed me again, and I turned around and I don’t know what she was doing, ‘cause I couldn’t see her hands. You know, I couldn’t see her hands. And it was dark, it was dark there. You know, and I couldn’t see her hands, so I didn’t know what the girl had. If she had anything. I don’t know if she had a purse. I couldn’t ... I know I couldn’t see her hands.
“I said, I’m sick of this shit. I think I said I’m sick of this shit, I’m tired of this shit, I’m tired of this pushing or something. I said something. I don’t know, I turned around, you know, and she did something. I think she kind of pushed me to get my attention, I don’t know, and I turned around. You know, I couldn’t see her hands ‘cause it was dark. And evidently she didn’t see mine, either. And that’s all.
“Blevins: Did you get your gun out of your purse?
“Hill: Right. I just reached in there and got it, you know. I didn’t . . . (unintelligible). I was minding my own business. I don’t bother nobody. . . .
“[Blevins]: . . . How many times did you fire it?
“Hill: It had to be once. I only fired one.
“Blevins: Just one time?
“Hill: It had to be.
“Blevins: How far away from her was you, do you think, when you shot at her?
“Hill: I don’t know. I know I could see her in my face, you know. ‘Cause she was right in my face.
“Blevins: Okay. Why did you pull the gun out?
“Hill: I don’t know. I couldn’t see the girl’s hands, for one thing. And I know she had this guy with her for another. And like the guy, I don’t know, I think he was behind her, I don’t know. I didn’t see him; I know I didn’t see him. I think . . . evidently he must have been behind her. I don’t know where her hands went. That’s the main thing; I didn’t know where her hands went ‘cause I couldn’t see her hands ‘cause it, you know, ‘cause it’s so dark in there and I couldn’t see her hands.
“Blevins: Do you remember what she said?
“Hill: She says, I don’t know if she called me a bitch or . . . I don’t . . . She, she said something to me and she triggered me. You know, she said something. And I couldn’t see her hands, you know.
“Blevins: She said something to make you mad, that . . .
“Hill: Well, yes, she . . . ‘cause, you know, I had to turn all the way around, you know. I wasn’t gonna leave my back to her. Ain’t no way. And I couldn’t see her hands. And the guy, you know. I don’t know if the guy was behind me or in front of me. I don’t know, he was a guy with her. She says, she said something to me. ‘Cause I was going on; we was going on in the door. You know, I wasn’t thinking about this girl.
“Blevins: She said something to ... to trigger you and then you got . . . reached in and got your gun?
“Hill: Yeah, because I couldn’t see her hands. I mean she said something. What she said, I don’t remember.”
At the trial, Keith D. Hill, defendant’s brother, testified that he, his sister, and Dana Love left his sister’s house at approximately 11:00 to 11:15 p.m., and went to Loffers. Keith Hill testified that his sister did not have anything to drink at Loffers. After Loffers closed, the three decided to go next door to Rick’s place. Accompanying the three was Linda Maples, the defendant’s friend, whom the three had met at Loffers.
According to Keith Hill’s testimony, at Rick’s place, people “were pushing and shoving, trying to get in. People were trying to get out.” There were approximately 20 to 25 people pushing back and forth in the small hallway at the entrance to Rick’s place. In the hallway, a woman told defendant, “Bitch, you pushed me.” Defendant told the woman, “If I did, I’m sorry.” The woman responded, “Bitch, that ain’t it.” Keith Hill testified that “[t]hey just went on” and his sister “kept on apologizing. The next thing I saw [Jackson’s] hand raised up and the next thing I know the gun went off.” Keith Hill testified that Jackson had raised her hand like she had something in it with which she was trying to hit his sister. Keith Hill testified that he was unable to see if anything was actually in Jackson’s hand because it was too dark and there were too many people in the crowded hallway. Keith Hill also testified that, prior to the shooting, Jackson had struck the defendant.
Dana L. Love also testified that there was a good deal of pushing and shoving in the hallway in Rick’s place. Love testified that it was very dark in the hallway, and too crowded for the number of people who were in it. One woman in the hallway called defendant a bitch and accused defendant of pushing her. Love testified that defendant told the woman, “if I pushed into you, I’m sorry.” Love testified that the defendant “was trying to apologize to the girl and evidently apologizing wasn’t enough.” Love testified that Jackson was angry, and told defendant, “You bitch. You know you pushed me. You know you did, bitch.” Love testified that he then saw the girl “rear back like she had something in her hand, coming toward” defendant. Love testified that Jackson came running at defendant with her hand raised. It was too dark to see if anything was, in fact, in Jackson’s hand.
Linda Maples testified that there were approximately 30 to 40 people in the hallway in the entrance to Rick’s place. Jackson was “coming out [of] the place and she was shoving everybody to get out.” Maples testified that it was very dark in the hallway. However, Maples was able to see Jackson push and shove the defendant. Jackson struck defendant’s head with her fist. Maples told the defendant to ignore Jackson, because Jackson was drunk. Maples testified that, immediately before the shooting, Jackson raised her hand toward defendant, and that Jackson had something in her hand but, because of the darkness, Maples was unable to see what the object was.
The defendant testified on her own behalf. She testified that, on the night of the shooting, she had worked until approximately 9:30 p.m. On her way to work, she picked up her gun from her mother’s house. Defendant testified that she had left the gun at her mother’s because she didn’t want it around her children at home, but had decided to retrieve it when she was told of prowlers near her house. Defendant testified that, when she picked up the gun from her mother’s, she did not know the gun was loaded. She placed the gun in her purse and then went home, where she met her brother, Keith Hill, and Dana Love. At their suggestion, she took them to Loffers at 9th and Washington in Wichita.
At Rick’s place, there was a line of people in the hallway at the entrance. The hallway was very dark and crowded. The defendant saw Jackson and a male companion standing next to a wall. There was a “lot of pushing and shoving.” Jackson told defendant, “Damn, you spilled a drink. A drink got on me.” Jackson also struck defendant on the side of the head. More pushing and shoving followed. The people in the hallway were cursing and hollering. Someone pushed defendant from behind, and she turned around to discover it was Jackson, the same woman who had hit her earlier. Jackson was cursing, and “her eyes kind of lit up, you know, like normal people, they wouldn’t look like that.” Defendant was scared and nervous. Jackson had said something which the defendant was unable to remember, but she remembers that she was scared by the tone of Jackson’s voice. The defendant testified that she could not see Jackson’s hands. She testified that she fired her pistol, but cannot remember the act of shooting. Defendant was scared for her life, and testified that she could see Jackson coming at her, and that she had acted in self-defense only.
The defendant first contends that the trial court erred by refusing to instruct the jury upon the lesser included offenses of voluntary manslaughter (K.S.A. 21-3403) and involuntary manslaughter (K.S.A. 1986 Supp. 21-3404).
A trial court has an affirmative duty to instruct the jury on all lesser included offenses established by the evidence. K.S.A. 1986 Supp. 21-3107(3); State v. Bishop, 240 Kan. 647, 654, 732 P.2d 765 (1987). Instructions on lesser included offenses must be given even though the evidence supporting those offenses may not be strong or extensive. State v. Roberson, 210 Kan. 209, 499 P.2d 1137 (1972). An instruction on lesser included offenses should be given even if the evidence is weak and inconclusive and consists solely of the testimony of the defendant. State v. Staab, 230 Kan. 329, 339, 635 P.2d 257 (1981).
In State v. Buffington, 66 Kan. 706, 710, 72 Pac. 213 (1903), this court said:
“The unsupported testimony of the defendant alone, if tending to establish such inferior degree, is sufficient to require the court so to instruct.”
However, if there is no evidence by which the jury might reasonably convict the defendant of the lesser included offense, the instruction need not be given. State v. Gregory, 218 Kan. 180, 183, 542 P.2d 1051 (1975). An instruction is also unnecessary where the defendant’s testimony precludes a conviction for the lesser offense. See State v. Burrow & Dohlmar, 221 Kan. 745, 561 P.2d 864 (1977); State v. Wilson, 215 Kan. 437, 439-40, 524 P.2d 224 (1974).
In State v. Guebara, 236 Kan. 791, 796-97, 696 P.2d 381 (1985), this court, in summarizing the basic principles of law applicable to voluntary manslaughter, said, in part:
“(2) ‘Heat of passion’ means any intense or vehement emotional excitement of the kind prompting violent and aggressive action, such as rage, anger, hatred, furious resentment, fright, or terror. Such emotional state of mind must be of such a degree as would cause an ordinary man to act on impulse without reflection. State v. Jones, 185 Kan. 235, Syl. ¶ 2, 341 P.2d 1042 (1959); State v. McDermott, 202 Kan. 399 [,449 P.2d 545, cert. denied 396 U.S. 912 (1969)]; State v. Ritchey, 223 Kan. 99, [Syl. ¶ 2,] 573 P.2d 973 (1977); State v. Coop, 223 Kan. 302,573 P.2d 1017 (1978).
“(5) Mere words or gestures, however insulting, do not constitute adequate provocation, but insulting words when accompanied by other conduct, such as assault, may be considered. 2 Wharton’s Criminal Law § 156. . . .
“(6) An assault or battery resulting in a reasonable belief that the defendant is in imminent danger of losing his life or suffering great bodily harm may be of sufficient provocation to reduce the killing to voluntary manslaughter. 2 Wharton’s Criminal Law, § 158.”
We must apply these standards to the present case to determine if the court should have instructed the jury on voluntary manslaughter. In so doing, we must view the evidence in a light most favorable to the defendant. State v. Hunter, 241 Kan. 629, 740 P.2d 559 (1987).
There is evidence in the record that Jackson struck defendant’s head and elbowed and pushed her. Jackson repeatedly used abusive and insulting words toward the defendant. Immediately before the shooting, the defendant could see Jackson coming at her in the dark hallway, and believed that Jackson was about to attack her. In Guebara, we noted that insulting words when accompanied by an assault may be sufficient provocation. 236 Kan. at 797. There is evidence in the record in the present case of both physical assault and abusive and insulting language. The issue is not whether such evidence convincingly establishes that defendant acted under adequate provocation. The issue is whether there was some evidence, however weak and inconclusive, by which a reasonable jury might have convicted the defendant of voluntary manslaughter.
The State cites several cases in support of its position that no instruction was required. We find no support in these cases for the State’s position. The first case is State v. McDermott, 202 Kan. 399, 449 P.2d 545, cert. denied 396 U.S. 912 (1969), in which the victim of the defendant did not initiate any violent acts. Rather, the victim was resisting the defendant’s attempts to force her into his car. 202 Kan. at 400. There were no insults or other provocations directed at the defendant. Moreover, the court stressed that the defendant had testified- that “he was not mad or angry at the time” of the shooting. 202 Kan. at 402. There was, thus, in McDermott, no evidence supporting either the conclusion that the victim had independently provoked the defendant or the conclusion that the defendant was provoked in fact.
In the second case, the State cites State v. Stafford, 213 Kan. 152, 515 P.2d 769 (1973), modified 213 Kan. 585, 518 P.2d 136 (1974), in which the decedent victim had struck the defendant, knocking her glasses off.
“[T]he blow did not bruise or hurt her; she then squirted him in the face with a paralyzer spray from a pressurized can; this dazed him and as he was trying to rub the spray out of his eyes she wrapped the cord from the electric tea kettle around his neck and choked him with it; she grabbed him by what little hair he had on his bald head and threw him against the wall; she then threw him down on the floor and got astraddle of him with her knees on his arms; [the victim] was whimpering, saying ‘Why are you doing these things to me’. Appellant stated . . . ‘This really pissed me off. Continuing, she said she picked up a hammer which was near the refrigerator and hit him with it three or four times.” 213 Kan. at 154.
The victim eventually died by strangulation. In deciding that an instruction on voluntary manslaughter was not required, this court stressed that there was no evidence of adequate provocation at the time the victim was killed, and stressed the helpless condition of the victim at the time of his death. This court stated that, “although there was some evidence of prior quarreling and even of a blow being struck by the decedent, we believe insufficient provocation existed to reduce to voluntary manslaughter the eventual strangulation of one flat on his back in a disabled condition.” 213 Kan. at 166.
Finally, the State is correct that, in State v. Coop, 223 Kan. 302, 573 P.2d 1017 (1978), a “violent drunken quarrel” existed prior to the killing of the victim, the defendant’s wife. However, the defendant’s testimony indicated clearly that the violence existed solely on the part of the defendant husband. The defendant testified that he had a “disagreement” with his wife in the front room of their house. However, not only was there no evidence of violence or provocation on the part of the decedent victim, but also, as in McDermott, the defendant precluded by his testimony the conclusion that he was actually provoked by any actions of the decedent.
In each of these cases, there was insufficient legal provocation by the decedent victim to justify an instruction on voluntary manslaughter. In both McDermott and Coop, the only acts of violence were initiated by the defendant. In Stafford, the victim had struck the defendant, but at the time of the victim’s death the victim was prone and helpless upon the floor. There is no evidence in any of these three cases that, at the time of the victim’s death, the victim provoked the defendant’s actions.
In the present case, there was evidence that the defendant, immediately prior to the shooting, had been physically assaulted and insulted by the victim. We find that the refusal of the district court to instruct the jury on voluntary manslaughter was error.
The defendant also contends that the district court should have instructed the jury upon the lesser included offense of involuntary manslaughter. Involuntary manslaughter is defined in K.S.A. 1986 Supp. 21-3404(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.”
This court paraphrased the requirements of involuntary manslaughter in State v. Gregory, 218 Kan. at 183:
“[Involuntary manslaughter] requires (1) an unintentional killing without malice; and (2) that it occur while the defendant was either (a) committing some misdemeanor or (b) performing some lawful (i.e., not criminal) act in a manner which, in turn, was either (t) unlawful or (ii) wanton.”
In Gregory, this court held that the trial court was justified in submitting an involuntary manslaughter instruction to the jury, since there was sufficient evidence in the record that a jury might reasonably convict the defendant of that offense. This court said:
“[I]n repelling an attack one is limited to ‘that force which reasonably appears to be necessary for that purpose.’ (State v. Stokes, 215 Kan. 5,523 P.2d 364, Syl. ¶ 4. See also, State v. Blocker, 211 Kan. 185, 192, 505 P.2d 1099.) If the jury had found the deadly force employed by Gregory was ‘reasonably necessary’ to repel Fullard’s attack, it would have acquitted him. But if it found that force was excessive what could its verdict be? If it found no malice, it could not convict of murder. If it credited Gregory’s testimony that he did not intend to kill, it could not convict of voluntary manslaughter. Yet the use of excessive force eliminated the statutory justification for the homicide and made it unlawful. Still, it did not in itself constitute the misdemeanor ‘unlawful act’ under the involuntary manslaughter statute because by definition that would have to be an act ‘prohibited’ by statute or ordinance. There is, however, another solution to the jury’s dilemma. We think the jury could conclude on the facts of this case that Gregory had a right of self-defense, and his exercise of that right was a lawful act. It could also find, however, that shooting Fullard was not reasonably necessary — after all, his knife was not open when found. This use of excessive force could be found to be an ‘unlawful manner’ of committing the lawful act of self-defense, and thus supply that requisite element of involuntary manslaughter.” State v. Gregory, 218 Kan. at 185-86.
In State v. Childers, 217 Kan. 410, 416, 536 P.2d 1349 (1975), this court found that the defendant’s testimony that he was only trying to scare the victim, and had no intention of killing the victim, was sufficient to require an instruction on involuntary manslaughter, even though the State had presented “a strong case” to support the charge of second-degree murder and the defendant’s testimony was “partially inconsistent.”
In the present case, viewing the evidence in the light most favorable to the defendant, the jury could have concluded that the defendant unintentionally killed Jackson while defending herself, but used unreasonable and excessive force in so doing. A jury might also have concluded that the defendant might have unintentionally killed the victim by acting in a wanton manner, although not acting in self-defense. The defendant had a right to have the jury instructed on involuntary manslaughter, since there appears sufficient evidence in the record by which a jury might reasonably convict the defendant of such an offense, “however weak, unsatisfactory or inconclusive” the evidence may appear to the court. State v. Buffington, 66 Kan. at 709. The refusal of the trial court in the present case to instruct the jury on involuntary manslaughter was error.
We next consider defendant’s contention that the district court erred by refusing her requested instruction on self-defense. The right of self-defense is defined by K.S.A. 21-3211:
“A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force.”
The circumstances under which a defendant is entitled to an instruction on self-defense are discussed in State v. Childers, 222 Kan. 32, 563 P.2d 999 (1977). In Childers, this court stated that, “in order to rely on self-defense as a defense, a person must have a belief that the force used was necessary to defend himself and, also, show the existence of some facts that would support such a belief.” 222 Kan. at 48. In determining whether there is evidence that the defendant believed that force was necessary to defend himself, “ ‘it is well to remember the test is not how much but is there any.’ ” 222 Kan. at 49 (quoting State v. Smith, 161 Kan. 230, 237, 167 P.2d 594 [1946]). It is the duty of the trial court to instruct the jury on self-defense so long as there is any evidence tending to establish self-defense, although the evidence may be slight and may consist solely of the defendant’s own testimony. State v. Smith, 161 Kan. at 237.
The defendant cites the case of State v. Kelly, 131 Kan. 357, 291 Pac. 945 (1930), in support of her argument that the trial court erred by refusing an instruction on self-defense. In Kelly, the defendant was convicted of second-degree murder and, on appeal, argued that the trial court’s instructions on self-defense were incorrect statements of the law. The defendant had killed the victim, his wife’s lover, by shooting him through the heart with a shotgun. At the time of the shooting, the victim and the defendant were alone, and the sole evidence supporting the assertion of self-defense was the testimony of the defendant. This court stated that the defendant had woven self-defense into his story at trial and, upon his request for an instruction relating to self-defense, “the court was obliged to instruct the jury on that subject.” 131 Kan. at 361.
Here, during the course of the taped interrogation between defendant and police officers made within hours after the shooting, the defendant stated some fifteen times that she could not see Jackson’s hands, and that she was afraid Jackson “was gonna jump on me.”
Immediately before the shooting, the defendant had been insulted and assaulted by Jackson. The defendant stated immediately after the shooting that she believed that Jackson was preparing to attack her. The issue is not whether it is probable or even likely that the defendant was, in fact, acting in self-defense. The issue is whether there is any evidence supporting defendant’s statement that the force she used was necessary to defend herself. Because, viewing all the evidence in the record in the light most favorable to the defendant, there is some evidence of physical aggression on the part of Jackson, and some evidence of a fear of assault on the part of the defendant, an instruction on self-defense should have been given.
The defendant next argues that three of the photographic exhibits admitted into evidence were unduly repetitious, gruesome, and added nothing to the State’s case and, therefore, should not have been admitted. Exhibit 4 is a color photograph taken from the outside of the bar, looking into the entrance hallway. Exhibit 5 is taken from the inside of the hallway, looking in the opposite direction. Both exhibits show the supine body of Patricia Jackson from opposite directions. In both photographs there is blood on Jackson’s face, her jacket, and on the floor. Exhibit 10 is a color photograph, looking downwards from above at the head and upper chest of Jackson. The photograph shows a considerable amount of blood around Jackson’s mouth, and upon her jacket and the floor.
Photographs are admissible so long as they are true reproductions of relevant facts and conditions material to matters in issue, and the decision to admit such photographs lies within the broad discretion of the trial judge. State v. Ruebke, 240 Kan. 493, 516, 731 P.2d 842 (1987). Photographs are inadmissible where they are unduly repetitious, gruesome, and without probative value. State v. Dargatz, 228 Kan. 322, 329, 614 P.2d 430 (1980).
The photographs in the present case are similar to those discussed in State v. Bell, 239 Kan. 229, Syl. ¶ 7, 718 P.2d 628 (1986), where we held:
“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.”
The district court did not abuse its discretion in admitting into evidence Exhibits 4, 5, and 10. See State v. Hollis, 240 Kan. 521, 533-34, 731 P.2d 260 (1987), and cases cited therein.
The defendant next contends that Sedgwick County District Court Judge Robert D. Watson’s conduct during the trial prejudiced her right to a fair trial. The defendant cites three instances in which she alleges that Judge Watson failed to remain impartial. The first instance occurred during the opening statement by counsel for the defendant. The second alleged instance of partiality occurred at the trial during the testimony of Linda Maples. The final instance of alleged misconduct on the part of the trial judge occurred during the testimony of another defense witness, Jonathon Preston Shaffer, who was present at the scene of the shooting.
We recently discussed the standards relevant in the consideration of whether a trial judge’s alleged partiality has deprived a defendant of his right to a fair trial in State v. Hamilton, 240 Kan. 539,731 P.2d 863 (1987). With these standards in mind, we have reviewed the record as to the three alleged instances of misconduct and, although some of the cited comments by the court were unnecessary or improper, we conclude that there was no unnecessary criticism directed at the defendant, or any comments on the strength of the defendant’s case. What statements were made by the trial judge appear generally to reflect only upon defendant’s trial counsel. We do not find the statements of such gravity that they deprived the defendant of a fair trial.
The defendant next contends that the district court improperly excluded expert testimony to the effect that she suffered from a diminished capacity. The defendant sought to introduce the testimony of Dr. Howard Brodsky for that purpose. The State objected to the testimony on the grounds that the crime for which the defendant was charged, second-degree murder, was not a specific intent crime and, therefore, evidence of diminished capacity was inadmissible. The State also argued that the testimony of Dr. Brodsky was a surprise. The district court ruled that Dr. Brodsky’s testimony was inadmissible on the grounds that, as a general intent crime, evidence of diminished capacity is inadmissible in cases involving second-degree murder. Counsel for defendant then introduced Dr. Brodsky’s report into the record as a proffer.
In State v. Jackson, 238 Kan. 793, 714 P.2d 1368 (1986), we said:
“The admission of such evidence for the limited purpose of a partial defense against the specific intent of the crime is the doctrine of diminished capacity or — as designated in many jurisdictions — diminished or partial responsibility. In Lewin, Psychiatric Evidence in Criminal Cases for Purposes Other Than the Defense of Insanity, 26 Syracuse L. Rev. 1051, 1060 (1976), Professor Travis Lewin discussed the scope of the partial responsibility defense:
“ ‘Partial responsibility is a defense only in specific intent cases. Specific intent crimes are those in which, as one of the essential elements of the offense, the prosecution must prove beyond a reasonable doubt that the defendant entertained a specific objective or engaged in certain specified mental activity. Examples of specific intent crimes range from aggravated homicides requiring proof of premeditation, deliberation and a design to effect death, through larceny offenses which require proof that the defendant intended to permanently deprive an owner of personalty of his right to possession, to conspiracy, attempted crimes and all offenses based upon accessorial liability. If for any reason the defendant did not entertain the particular mental state, then he did not commit that crime, although he may, of course, have committed some other or lesser crime not requiring that particular state of mind.’
“Thus, it is apparent we have adopted the doctrine of diminished capacity in spite of our past disclaimers. Evidence of diminished capacity is admissible only for the limited purpose of negating specific intent and is not a substitute for a plea of insanity.” 238 Kan. at 798.
See also State v. Maas, 242 Kan. 44, 744 P.2d 1222 (1987) (recommended instruction on diminished capacity formulated by Supreme Court).
The State contends that second-degree murder is not a specific intent crime, citing State v. Egbert, 227 Kan. 266, 267, 606 P.2d 1022, cert. denied 449 U.S. 965 (1980). Our decision in Egbert does not support the State’s contention.
In Egbert, we did not rule that intent to kill is not a necessary element of second-degree murder but, rather, that the instructions given to the jury in Egbert, taken as a whole, were not misleading. Wé noted that the district court had instructed the jury that it must find that the defendant had killed the victim maliciously. The trial court had further, in its instructions to the jury, defined maliciously pursuant to PIK Crim. 56.04 as “willfully doing a wrongful act without just cause or excuse.” 227 Kan. at 267. The trial court then also defined “willfully” as “conduct that is purposeful and intentional, and not accidental.” 227 Kan. at 267. This court stated that it was not necessary for the trial court to assemble all the instructions in the case into one, and further stated that the instructions in the case, given a fair reading as a whole, would not have misled the jury as to the requirements of second-degree murder.
In State v. Childers, 222 Kan. 32, the defendant was also convicted of second-degree murder. The defendant argued that, while he had intentionally shot the victim, he then proceeded to “point out the distinction between intentional shooting and intentional killing, and that the statute requires intentional killing.” (Emphasis added.) 222 Kan. at 36. We stated: “Defendant’s analysis of the elements of second degree murder is correct.” 222 Kan. at 36.
In State v. Seelke, 221 Kan. at 678, we held:
“In some cases the evidence presented at the trial has tended to show some provocation or mitigating circumstances providing an explanation for the killing or raising a legitimate issue as to whether the defendant had the intention to kill the decedent. An intent to kill is a necessary element of murder in the first degree (K.S.A. 21-3401 [1]), murder in the second degree (K.S.A. 21-3402) and voluntary manslaughter (K.S.A. 21-3403).”
Second-degree murder is defined in K.S.A. 21-3402: “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.” 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 acciden tal.” 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 State’s assertion that an intent to kill was not required under Kansas law in cases involving second-degree murder is not supported by statute or case law. 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 district court’s conclusion that second-degree murder is not a specific intent crime is incorrect, and the district court erred in excluding the testimony of Dr. Brodsky.
Finally, defendant argues that the district court erred in submitting a presumption of intent instruction to the jury. The argument is without merit. The defendant’s position has been consistently rejected by this court. See State v. Ransom, 239 Kan. 594, 604-06, 722 P.2d 540 (1986).
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The opinion of the court was delivered by
Holmes, J.:
Wayne E. Leikam appeals from an order of the Reno County District Court denying his petition to adopt his two minor stepchildren for lack of consent by the children’s natural father. The court found that appellant failed to meet his burden of proof that consent was not required on the ground that the natural father had “failed or refused to assume the duties of a parent for two consecutive years.” K.S.A. 1986 Supp. 59-2102(a)(3).
The children involved, F.A.R. born July 23, 1977, and D.M.R. born March 8, 1979, are both boys born in lawful wedlock. The children’s parents were divorced October 14, 1981. The mother married the appellant in February, 1984. In compliance with the spirit of Supreme Court Rule 7.043, the natural father will be referred to simply as appellee. Appellant, with the consent of the natural mother, filed a petition to adopt F.A.R. and D.M.R. on February 12, 1986. Appellee refused to grant his consent to the adoption and affirmatively contested the adoption. Appellant contended in the trial court that the consent was not required, relying upon K.S.A. 1986 Supp. 59-2102(a), which provides in part:
“(a) Before any minor child is adopted, consent to the adoption must be given by:
“(3) one of the parents, if the other has failed or refused to assume the duties of a parent for two consecutive years . . . .”
The specific issue before the court is whether the trial court committed error in ruling that under the facts of this case the consent of the appellee was required.
Most of the facts are not in dispute. In late 1979, appellee was convicted of rape, aggravated burglary, and attempted rape and was sentenced to a prison term of forty-five years to life. From December 1979 until the date of the hearing on the petition for adoption, he was confined at the Kansas State Industrial Reformatory at Hutchinson (K.S.I.R.). Appellee will not be eligible for parole, under present statutes and regulations, until 1994.
The children and their mother regularly visited respondent at K.S.I.R. until June 1981, when the mother decided to terminate the visitations. On July 31, 1981, she filed for a divorce which was granted October 14, 1981. Sole custody, care, and control of the two children was given to their mother, subject to reasonable visitation rights of the appellee. No provision was made for child support. In late 1981, the appellee filed a motion seeking specific visitation rights which were granted with respect to the older child. However, the court refused to order visitation with the younger child, D.M.R. Under the order, F.A.R. was to be transported once weekly from his mother’s residence to K.S.I.R. by a volunteer from K.S.I.R. Chaplaincy Services who was also to supervise the visits. F.A.R. visited his father three times with the last visit occurring January 20, 1982. He was visibly upset after that visit. The next week, F.A.R. cried and was unwilling to go visit his father. His mother did not force him to go and the chaplaincy services volunteer declined to take the boy to visit his father. On March 5, 1982, the appellee filed a motion in the divorce action seeking specific visitation with D.M.R. The motion was denied by the court on March 19, 1982. Appellant has had no direct contact with D.M.R. since June 21, 1981, nor with F.A.R. since January 20,1982. Additional facts will be developed as they pertain to the specific issues on appeal.
The trial court in its memorandum opinion, after identifying the parties, found, inter alia:
“3. That the natural parents were divorced on October 14,1981, 2 years after the father entered K.S.I.R. on a 45 to life sentence on October 19, 1979.
“4. That the father has been incarcerated continuously from his entry date to present.
“5. That the mother initially visited the father at K.S.I.R. and also took the children with her to visit. That the last visit the natural mother made to K.S.I.R. was on June 21, 1981, and the last time the father saw either of his children was on January 20, 1982.
“6. That the father made attempts to expand visitation but was denied.
“7. That the mother made no attempts to contact the father and, at times, the father did not know the whereabouts of his children. That the mother also returned a proffered support payment by the father.
“8. The father’s last contact with his sons was a photo of the boys with a note that asked him to ‘back ofF on his attempts to contact his ex-wife and sons.
“9. The actions by the mother constitute interference with the rights of the non-custodial parent to maintain contact with his sons. The court understands the reluctance of the mother to continue the association of her sons with the father, a now convicted rapist, but, the court must strictly construe towards maintaining the natural relationship between parent and child.
“10. The court must hold that the petitioner has failed to meet the burden of proof to show that the respondent has failed or refused to assume his parental duties.”
Appellant’s first issue essentially attacks the trial court’s consideration of appellee’s incarceration as a factor in determining whether he failed to assume parental duties and the trial court’s finding that the children’s mother had interfered with the father’s attempts to maintain contact with his sons.
In determining the issues, certain basic principles must be kept in mind. In Aslin v. Seamon, 225 Kan. 77, 587 P.2d 875 (1978), we stated:
“Ordinarily the question whether or not an individual has failed or refused to assume the duties of a parent for the required period of time is a factual one to be determined by the trier of facts upon competent evidence after a full and complete hearing. In re Herbst, 217 Kan. 164, 535 P.2d 437 (1975); In re Sharp, 197 Kan. 502, Syl. ¶ 5, 419 P.2d 812 (1966); In re Waters, 195 Kan. 614, Syl. ¶ 1, 408 P.2d 590 (1965). When findings of fact are attacked for insufficiency of evidence or as being contrary to the evidence, the duty of the appellate court extends only to a search of the record to determine whether substantial competent evidence exists to support the findings. An appellate court will not weigh the evidence or pass upon the credibility of the witnesses. Under these circumstances the reviewing court must review the evidence in the light most favorable to the party prevailing below. Craig v. Hamilton, 221 Kan. 311, 313, 559 P.2d 796 (1977) and cases cited therein.” p.78.
It should also be noted that the best interests of the child, which is the paramount consideration in custody matters, is not controlling in determining the statutory issue of whether a natural parent has failed to assume parental duties. We have no doubt that the best interests of the children in this case weighs heavily in favor of the adoption. It is unfortunate that this father apparently has little concern for the children’s welfare and, instead, has chosen to stand upon his legal rights, but under our statutory scheme of adoption he has that choice.
We also note that the fitness of the appellee as a parent is not a controlling factor under K.S.A. 1986 Supp. 59-2102(a)(3) as it would be in a proceeding to sever parental rights pursuant to K.S.A. 38-1581 et seq. In re Adoption of Wilson, 227 Kan. 803, 806, 610 P.2d 598 (1980).
Appellant cites numerous cases from other jurisdictions in support of his contention that the trial court erred in considering the appellee’s incarceration as a factor in deciding whether he failed to assume parental duties. At the hearing on appellant’s motion for a new trial, the trial court’s comments indicated that the effect of the appellee’s incarceration upon his ability to assume parental duties was an important factor in its decision. That the father had been continuously incarcerated from October 19, 1979, to the date of the decision was a specific finding in the trial court’s memorandum opinion.
Kansas appellate courts have not specifically addressed the issue of what effect should be given to the incarceration of a divorced parent in determining whether that parent has failed to assume the duties of a parent to the extent that consent to adoption is not required. However, this court has consistently held that adoption statutes are to be strictly construed in favor of maintaining the rights of a natural parent, especially where it is claimed that consent to adoption is not required due to the natural parent’s failure to fulfill parental obligations. E.g., In re Sharp, 197 Kan. 502, 504, 419 P.2d 812 (1966). This court has also held that a parent’s reasons, if any, for inaction may be properly considered by the court in support of an answer to an adoption petition. In re Sharp, 197 Kan. at 508.
Appellant relies heavily on cases from other jurisdictions summarized in Annot., Parent’s Involuntary Confinement, or Failure to Care for Child as Result Thereof, as Permitting Adoption Without Parental Consent, 78 A.L.R.3d 712 (1977), and its current supplement. This court has previously noted, however, that the language of the applicable statute is sui generis, and authorities from other jurisdictions which apply statutes worded differently from ours are not necessarily persuasive. In re Sharp, 197 Kan. at 506; In re Waters, 195 Kan. 614, 617, 408 P.2d 590 (1965). As might be expected, there is no unanimity of opinion in other jurisdictions as to the effect that incarceration bears upon the issue of necessity of consent.
In considering whether a nonconsenting parent has failed to assume his or her parental duties for two consecutive years, all the surrounding circumstances must be considered. When a nonconsenting parent is incarcerated and unable to fulfill the customary parental duties required of an unrestrained parent,the court must determine whether such parent has pursued the opportunities and options which may be available to carry out such duties to the best of his or her ability. It is obvious that a parent imprisoned for a long term cannot provide the customary parental care and guidance ordinarily required. If an imprisoned parent has made reasonable attempts to contact and maintain an ongoing relationship with his or her children, it is for the trial court to determine the sufficiency of such efforts. Here, the trial court was correct in considering the limiting effect of appellee’s confinement as one factor in resolving the issue. We do not construe the trial court’s findings as granting undue emphasis upon the appellee’s imprisonment, or as considering it a controlling factor relieving appellee of all duties toward his children. Whether the efforts made by appellee were sufficient to meet his parental obligations under all the circumstances will be considered in connection with appellant’s attack upon the sufficiency of the evidence. We hold that it was not error for the trial court to take into consideration the limiting aspects of appellee’s confinement in determining whether he had failed to assume his parental duties.
As a part of his first issue, appellant also asserts error in the trial court’s finding that certain “actions by the mother constitute interference with the rights of the non-custodial parent to maintain contact with his sons.” The evidence on this point was hotly contested. When findings by the trier of fact are challenged for insufficiency of the evidence or as being contrary to the evidence, the appellate court’s duty is to review the evidence in the light most favorable to the party prevailing below to determine whether substantial competent evidence exists to support the findings. In re Adoption of Crider, 236 Kan. 712, 712-13, 696 P.2d 356 (1985); Aslin v. Seamon, 225 Kan. at 78. The ultimate finding that the natural mother interfered with appellee’s rights to maintain contact with his sons was supported by the evidence, when it is viewed in the light most favorable to appellee. He testified that he received a letter in March 1984 from the boys’ mother in which she promised she would keep him informed about the boys if appellee would not fight her for visitations. Appellee’s niece testified that in mid-1984, at the request of appellee, she asked the boys’ mother if the niece could take the boys to K.S.I.R. to visit their father, but the mother responded that “she didn’t want them to go up there.” On cross-examination, the mother testified that in 1981 she notified appellee she would no longer take the children to see him, and admitted writing a letter to appellee in late 1981 which included the statement, “I will go to jail before I let you see the boys . . . .” The record contains support for the trial court’s finding that the natural mother interfered with appellee’s rights to keep in contact with his sons. However, the court also recognized the natural reluctance of the mother to take two small children to the prison to visit and was sympathetic to her. It does not appear that the trial judge’s finding of fact on this point was a principal factor in his ultimate decision in this case. It merely was one of the circumstances considered in the overall decision and was certainly not a controlling factor.
The next issue asserted on appeal is whether the trial court erred in excluding certain evidence regarding the appellee’s conduct toward his wife and children prior to his incarceration in 1979, more than six years prior to the filing of the adoption petition. A review of the record indicates that the evidence to which objections were sustained was an attempt to explain the natural mother’s reluctance to allow respondent visitations with his children. As the appellee’s brief correctly notes, the excluded evidence essentially related to respondent’s fitness as a parent, which is not at issue in a proceeding under K.S.A. 1986 Supp. 59-2102(a)(3). In re Adoption of Wilson, 227 Kan. at 806. While several objections to the mother’s testimony were sustained, much evidence did come in without objection. The court was well aware of the appellee’s shortcomings as it heard testimony of the beatings suffered by the children’s mother, the threats by appellee, his failure to support the children from the outset, and other testimony. As stated by the judge, “The mother made a bad choice at the time she got married . . . to [appellee].” Appellant also takes issue with the trial court’s rulings in allowing testimony of the appellee regarding events which preceded the two-year period prior to the filing of the adoption petition. Our examination of the record reveals the trial court granted both parties considerable leeway in testifying as to background matters and events prior to the two-year period to explain the action or inaction of the parties during the two-year statutory period. While the critical statutory period is limited to the two years immediately preceding the filing of the petition (In re Sharp, 197 Kan. 502, Syl. ¶ 3), we hold there is no error in admitting evidence of events occurring prior to that period to the extent it is relevant to explain or prove conduct or lack thereof during the two-year period.
The final issue raised by appellant challenges the trial court’s finding that appellant did not sustain his burden of proof that appellee failed to assume the duties of a parent for two consecutive years. This court has consistently held this question is an issue of fact for the trial court to determine upon competent evidence after a full hearing. In re Adoption of Crider, 236 Kan. at 712-13; Aslin v. Seamon, 225 Kan. at 78; In re Waters, 195 Kan. at 617. Our scope of review on this issue is narrow. This court will search the record only to determine whether substantial competent evidence exists to support the trial courts findings, and will not weigh the evidence or pass upon the credibility of witnesses. The reviewing court must review the evidence in the light most favorable to the party prevailing below. Aslin v. Seamon, 225 Kan. at 78; Craig v. Hamilton, 221 Kan. 311, 313, 559 P.2d 796 (1977), and cases cited therein. Before a child can be adopted without the consent of one of the natural parents, the facts warranting an exception as prescribed by statute must be “clearly proven.” In re Adoption of Harrington, 228 Kan. 636, 638, 620 P.2d 315 (1980); In re Sharp, 197 Kan. at 505.
The duties of a parent addressed by the statute include not only the common-law duty of financial support, but also the “natural and moral duty of a parent to show affection, care and interest toward his or her child.” In re Adoption of Wilson, 227 Kan. at 805; see also In re Sharp, 197 Kan. at 508.
Throughout the two-year period, appellee did make attempts through his relatives to learn the whereabouts of his sons, and his testimony to that effect was corroborated by two nieces. He testified that between 1981 and 1984, he wrote letters to his former wife but received no response. Appellee testified that in March 1984 he received a letter from the children’s mother along with a photograph of the children. In the letter, he was assured the mother would keep him informed about his sons if he would not fight her for visitations. Appellee also testified that he had sought legal advice in May 1982 about enforcing his visitation rights, but was reluctant to pursue the matter when he was told the mother might risk imprisonment for contempt of court for refusing to permit visitations. He expressed concern about who would care for his sons.
Although appellee provided no financial support for his sons during the two-year period, he was under no court order to do so, and a 1981 payment of $100 mailed to his former wife for his children had been returned to him with a note discouraging him from trying to see the children. He earned an average of only nine dollars per month working at K.S.I.R., which he spent for toiletries such as soap and shampoo not provided by the reformatory. Appellee regularly entered notations on his calendars remembering his sons’ birthdays and recording his efforts to get information about the boys’ whereabouts and well-being from his relatives. He asked one of his nieces to seek approval from
the children’s mother for them to visit him at K.S.I.R., and two nieces testified that a mid-1984 request to do so was rebuffed. One of the nieces also testified that appellee had told her in December 1983 that Christmas cards and letters he had mailed to the boys had been returned to him, and that appellee did not know where the boys were living. The evidence, when viewed in the light most favorable to appellee, supports the trial court’s conclusion that appellant failed to meet his burden of proof on the question of whether the appellee failed to assume parental duties for the relevant period. Although individual members of this court might have reached a contrary result if sitting at the trial level, when the evidence is viewed in the light most favorable to the appellee, we cannot say the trial court abused its discretion in denying the petition for adoption.
The judgment is affirmed.
Miller, J., and McFarland, J., dissenting. | [
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This is a disciplinary proceeding against Richard L. Hilton, of Wichita. At the time of the hearing before a panel of the Kansas Board for Discipline of Attorneys, the parties stipulated that respondent was guilty of violating:
1. Disciplinary Rule 6-101(A)(3) (1987 Kan. Ct. R. Annot. 143) by neglecting a legal matter entrusted to him; and
2. Supreme Court Rule 207 (1987 Kan. Ct. R. Annot. 105) by failure to cooperate with the disciplinary board and disciplinary administrator in the investigation of the complaint of misconduct herein.
The panel unanimously recommended that the discipline of public censure be imposed upon respondent. No exceptions to the panel report have been filed. The matter is before us for the imposition of discipline.
By virtue of the stipulations herein, the panel did not make specific findings of fact relative to the underlying complaint of misconduct. For our purposes, it is sufficient to state the following relative thereto. Respondent was retained by Evelyn Gunn, complainant herein, in 1983, to handle the probate of the estate of Willie Gwyn. The probate proceeding was commenced in the Sedgwick County District Court and remains pending with the most recent documents therein having been filed on April 30, 1984. In addition to the delay in concluding the case, Ms. Gunn complains about respondent’s conduct relative to his handling of an estate asset, a certain 1978 Cadillac, which was damaged while in the custody of the respondent.
The panel concluded as follows:
“The panel feels that the violation of DR 6-101(A)(3) in itself is not a very serious matter but the panel does feel that the failure of the respondent to cooperate in the investigation of the complaint against him is of a serious nature. It is noted that the respondent at the time of this investigation had many serious personal problems that occurred to him in relation to his health and members of his family, but in spite of this the panel feels that it would have been an easy matter for the respondent to have cooperated in the investigation of this complaint against him, and further feels that he knew or should have known that his failure to so cooperate would have serious repercussions against him.”
Clearly, the panel was more concerned with respondent’s failure to cooperate in the investigation of the complaint than the misconduct involved in the complaint itself. It should be noted that the discipline of public censure has been imposed upon respondent relative to three other complaints (213 Kan. 27, 521 P.2d 600 [1973], and 217 Kan. 694, 538 P.2d 977 [1975]).
We agree with the panel that respondent’s failure to cooperate with the investigation of the complaint herein is a more serious matter than the rather sketchy facts before us relative to the underlying complaint would indicate. Like the panel, we acknowledge respondent did have some major personal problems during at least some of the time period involved, but agree that respondent should have cooperated with the investigation. Cooperation with the investigation of a complaint is a necessary component of the attorney discipline system. Frequently, misunderstandings between an attorney and his or her client can be resolved informally where cooperation occurs. Without cooperation, the attorney’s side of the dispute is never presented to the board or disciplinary administrator until formal proceedings are instituted by which time a considerable amount of effort has been expended by the investigators and a panel convened.
It is Therefore Ordered that respondent be and he is hereby disciplined by public censure and it is directed that this order be published in the official Kansas Reports.
It is Further Ordered that the costs of this proceeding be assessed to the respondent.
Effective this 19th day of February, 1988.
Lockett, J., not participating. | [
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The opinion of the court was delivered by
Lockett, J.:
The Kansas Commission on Civil Rights (KCCR) appeals the decision of the Shawnee County District Court that the KCCR has no jurisdiction, under the Kansas Act Against Discrimination, K.S.A. 44-1001 et seq., to investigate complaints of discrimination in public schools. The district court based its decision on Kansas Commission on Civil Rights v. Howard, 218 Kan. 248, 544 P.2d 791 (1975). We affirm.
In 1953, the Kansas legislature, exercising the police power of the state for the protection of the public welfare, safety, health, and peace of the people of this state, enacted the Kansas Act Against Discrimination (Act), K.S.A. 44-1001 et seq. The legislature recognized that discrimination against individuals in employment relations, in relation to free and public accommodations, or in housing by reason of race, religion, color, sex, physical handicap, national origin, or ancestry concerns the state, “since such discrimination threatens not only the rights and privileges of the inhabitants of the state of Kansas, but menaces the institutions and foundations of a free democratic state.” It acted “to eliminate and prevent discrimination in all employ ment relations, to eliminate and prevent discrimination, segregation, or separation in all places of public accommodations covered by this act, and to eliminate and prevent discrimination, segregation or separation in housing.” K.S.A. 44-1001. (Emphasis added.)
The Act conferred specific powers on the commission. K.S.A. 44-1004 provides in part:
“The commission shall have the following functions, powers and duties:
“(4) To receive, initiate, investigate, and pass upon complaints alleging discrimination in employment, public accommodations and housing because of race, religion, color, sex, physical handicap, national origin or ancestry.” (Emphasis added.)
In 1972, the Act was amended by inserting into K.S.A. 44-1002, “Definitions,” the following:
“The term ‘unlawful discriminatory practice’ also means any discrimination against persons in the full and equal use and enjoyment of the services, facilities, privileges and advantages of any institution, department or agency of the state of Kansas or any political subdivision or municipality thereof.”
K.S.A. 44-1009(c) was also amended to prohibit discrimination in the equal use and enjoyment of any state governmental services, facilities, privileges, and advantages. The specific power granted by the legislature to the KCCR to investigate complaints alleging discrimination in employment, public accommodations, and housing of K.S.A. 44-1004(4) was not amended.
Prior to September 1985, five black students, who attended Linn Elementary School, filed requests to transfer their enrollment to Avondale East Elementary School. Based on Board Policy No. 8025, § V.C., U.S.D. 501 denied the black students’ requests for transfer because they were requesting to be transferred into a school which had a higher minority race percentage than the home attendance area school.
Board Policy No. 8025, § V.C., provides, in part:
“An application for transfer of enrollment will be approved only for (a) a majority race student who requests transfer of enrollment to a school which has a higher minority race percentage than his/her home attendance area school or (b) a minority race student who requests transfer of enrollment to a school which has a lower minority race percentage than his/her home attendance area school.”
On September 5, 1985, five complaints were filed with the Kansas Commission on Civil Rights (KCCR) alleging that Unified School District 501 of Topeka, Kansas, (U.S.D. 501) had denied complainants their request to attend Avondale East Elementary School on the basis of their race and in violation of the Kansas Act Against Discrimination, K.S.A. 44-1009(c)(3), which prohibits discrimination “in places of public accommodation.”
The relevant sections of K.S.A. 44-1009(c)(3) provide:
“(c) It shall be an unlawful discriminatory practice:
“(3) For any person, as defined herein, to refuse, deny, make a distinction, directly or indirectly, or discriminate in any way against persons because of the race, religion, color, sex, physical handicap, national origin or ancestry of such persons in the full and equal use and enjoyment of the services, facilities, privileges and advantages of any institution, department or agency of the state of Kansas or any political subdivision or municipality thereof.”
Each complaint stated in part:
“III. I hereby charge Unified School District #501 and its representatives with a direct violation of the Kansas Act Against Discrimination in that a direct distinction is being made in the offering of services and privileges in a place of public accommodations due to my child’s race, Black American.” (Emphasis supplied.)
Subsequently, the KCCR served five subpoenas duces tecum upon U.S.D. 501 and Mr. Gerry Miller, Custodian of Student Records. U.S.D. 501 then notified the KCCR that it would not voluntarily comply with the subpoenas, contending that the KCCR did not have jurisdiction under the Act to investigate these complaints. The KCCR filed an application and order to enforce subpoena in the district court of Shawnee County pursuant to K.S.A. 44-1004(5). After briefing and oral argument by the parties, the district court denied enforcement of the subpoenas. Citing Kansas Commission on Civil Rights v. Howard, the district court held that, as a matter of law, the KCCR had exceeded its power under the Act which limits the KCCR to addressing discrimination only in the areas of employment, housing, and public accommodations. The court rejected the KCCR’s position that the alleged discriminatory policies of U.S.D. 501 were matters relating to public accommodation, and restricted the definition of places of public accommodation to places of business open to the general public for business purposes. After denial of its motion to reconsider, the KCCR appealed.
This is the KCCR’s second attempt to expand its authority by judicial construction of K.S.A. 44-1009(c)(3) since the 1972 amendment to the Act. The KCCR first attempted to broaden its power in Howard. There, the Court examined the issue of whether the KCCR had the authority to issue subpoenas to investigate a complaint charging a city police officer with an unlawful discriminatory practice, based on the arrest and the post-arrest treatment of the complainant.
The Howard majority initially reasoned that the KCCR’s jurisdiction to investigate depends on whether the provisions of the Act apply to the specific area of alleged discriminatory practice. The court noted that K.S.A. 44-1001 mentioned the three areas of coverage (employment, public accommodations, and housing) no less than five times in its statement of policy and purpose. In addition, K.S.A. 44-1004 limited the power and duties of the commission “to receive, initiate, investigate, and pass upon complaints alleging discrimination in employment, public accommodations and housing because of race, religion, color, sex, physical handicap, national origin or ancestry.” (Emphasis added.) The Howard court reasoned that previous decisions construing the Act had also limited the KCCR’s jurisdiction to those three areas. See, e.g., Atchison, T. & S. F. Rly. Co. v. Lopez, 216 Kan. 108, 113, 531 P.2d 455 (1975); Atchison, T. & S. F. Rly. Co. v. Commission on Civil Rights, 215 Kan. 911, 916-17, 529 P.2d 666 (1974); Jarvis v. Kansas Commission on Civil Rights, 215 Kan. 902, 903, 528 P.2d 1232 (1974).
The Howard majority concluded that KCCR’s jurisdiction was clearly confined to the areas of public accommodation, housing, and employment. See City of Independence v. Kansas Commission on Civil Rights, 218 Kan. 243, 544 P.2d 799 (1975). The majority rejected the KCCR’s argument, the same argument made here, that the 1972 amendment was intended to expand KCCR’s jurisdiction, stating:
“Prior to the 1972 amendment, K.S.A. 44-1002(1) defined an unlawful discriminatory practice as discrimination or segregation in some twenty-one specific types of business establishment or facility, or in ‘a place of public accommodations covered by this act.’ The 1972 amendment (L. 1972, ch. 194, § 2) added the following language:
‘The term “unlawful discriminatory practice” also means any discrimination against persons in the full and equal use and enjoyment of the services, facilities, privileges and advantages of any institution, department or agency of the state of Kansas or any political subdivision or municipality thereof.’
“By the same act virtually the identical language was also added to K.S.A. 44-1009.” 218 Kan. at 252.
The court stated that while it might appear that this language extended the act’s coverage to the “services, facilities, privileges and advantages” of a governmental agency in any area of activity, courts are not permitted to consider only a certain isolated part of an act, when determining legislative intent, but are required to consider and construe together all parts thereof in pari materia. The court reasoned when the liberal interpretation of one section of an act contravenes the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law, citing Claflin v. Walsh, 212 Kan. 1, 8, 509 P.2d 1130 (1973).
Construing the act as a whole, the Howard court did not find from the 1972 amendment any legislative intent to extend the scope of the act beyond those three areas which were stated to be the areas of primary legislative concern. The amendment was equally susceptible, in the court’s view, of being interpreted as a clarifying measure, designed to make clear that governmental as well as private action was covered in the three areas covered by the act.
In this case, the district court, following Kansas Commission on Civil Rights v. Sears, Roebuck & Co., 216 Kan. 306, 532 P.2d 1263 (1975), and Howard, held public schools and school board policies are not matters of “public accommodation,” and, therefore, were not within the scope of KCCR investigatory authority authorized by the Act. The district court also noted that both the Sears and Howard decisions were over ten years old and should the legislature have desired a broader jurisdiction for the KCCR than that defined by the Supreme Court, it has had ample opportunity to amend the Act.
The KCCR concedes that the Howard decision restricted its powers and duties to the limitations set out in 44-1004 and that the Howard court did not adopt the KCCR’s claim of broad power and duties under K.S.A. 44-1009(c)(3). The KCCR now requests that we expand the power and duties of the commission by determining that the definition of “unlawful discriminatory practice” in K.S.A. 44-1009(c)(3) ‘is a legislative grant of additional jurisdiction. The KCCR urges this court to confine Howard to its specific facts, namely to an investigation of discriminatory practices of law enforcement agencies. However, when construing a statute, it is difficult to confine the decision to the specific facts of the case before the court because the decision inherently applies to all subsequent cases brought under the same statute. In Howard, this court established a framework under which subsequent cases must be analyzed.
The KCCR also argues there is a distinction between Howard and the present case because Howard involved alleged discrimination in the carrying out of a “negative, punishing” activity (arrest), while the activity here involves discriminatory denial of a “positive, beneficial” service (education). Even if this distinction were a valid one, it could not be applied absent statutory authority. The Act makes no such distinctions.
The KCCR also attempts to characterize this case as one of “first impression,” stating that Howard left open the question of whether a discriminatory denial of actual services by a governmental entity is covered by 44-1009(c)(3). This argument is misleading. Under Howard, the threshold issue is whether the governmental services were denied in the areas of housing, employment, and public accommodations. Thus, we are required to determine if public schools are places of public accommodation.
We believe that public schools are not places of public accommodation as contemplated by the Act. Places of “public accommodation” are those which are held out as open to the general public and which members of the public generally are invited to patronize and otherwise visit. Kansas Commission on Civil Rights v. Sears, Roebuck & Co., 216 Kan. 306. An examination of K.S.A. 44-1002 also supports the view that the term “public accommodations” refers to businesses open to the general public. Section (h) defines “public accommodations” to include “any person . . . who caters or offers goods, services, facilities and accommodations to the public.” Section (i) pro vides a nonexclusive list of 21 facilities which the drafters of the statute wished to emphasize as included in the concept of public accommodations. (These include hotels, motels, cabin camps, restaurants, trailer courts, bars, ’ taverns, barbershops, beauty parlors, theaters, skating rinks, bowling alleys, billiard parlors, amusement parks, recreation parks, swimming pools, lakes, gymnasiums, mortuaries, and cemeteries.) The legislative intent appears to be that the term “public accommodations” includes all businesses which can reasonably be described as offering goods, services, facilities, and accommodations to the public. If the legislature had intended the public schools to be included within the concept of “public accommodations,” they would have specifically so stated. In addition, the inclusion of the word “services” in section (h) can reasonably be construed to mean business and not educational services.
While not dispositive for the purposes of Kansas law, the opinion of the New Mexico Supreme Court in Human Rights Com’n of N. M. v. Bd of Regents, 95 N.M. 576, 624 P.2d 518 (1981), cited by defendant, is persuasive on the issue of whether public schools are places of public accommodation. The issue there was whether a state university was a place of public accommodation within the meaning of the New Mexico Human Rights Act, N. M. Stat. Ann. § 28-l-2(H) (1987 Repl.). The relevant portions of the New Mexico Act, similar to our own, provide:
“It is an unlawful discriminatory practice for:
“(F) any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services, facilities, accommodations or goods to any individual because of race. . . .” N. M. Stat. Ann. § 28-l-7(F) (1987 Repl.).
“ ‘[P]ublic accommodation’ means any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment which is by its nature and use distinctly private.” N. M. Stat. Ann. § 28-l-2(H) (1987 Repl.).
The New Mexico court reasoned:
“The prohibition against discrimination in public accommodations arose from the common law duties of innkeepers and public carriers to provide their services to the public without imposing unreasonable conditions. See Avins, What is a Place of ‘Public Accommodation?, 52 Marq. L. Rev. 1 (1968). The United States Supreme Court recognized these common law duties when it stated that ‘[i]nnkeepers and public carriers, by the laws of all the States, so far as we are aware, are bound, to the extent of their facilities, to furnish proper accommodation to all unobjectionable persons who in good faith apply for them.’ Civil Rights Cases, 109 U.S. 3, 25, 3 S. Ct. 18, 31, 27 L. Ed. 835 (1883). Early statutes in most states tended to codify the common law by prohibiting discrimination in places of lodging, entertainment and public transportation. See Avins, supra. Universities were not considered public accommodations under the early statutes.” 95 N. M. at 577-78.
Under some circumstances, a school may become a place of public accommodation; for example, when a school sponsors an activity open to the general public. It would then wrongfully discriminate if it limited entrance to the event on the basis of race or sex. However, this is not the case when the alleged discriminatory activity centers on educational policies or access to specific schools.
The KCCR also argues that authority to investigate discrimination in public schools is supported by K.A.R. 21-46-3, which provides:
“Student admission to schools. Student admissions to schools are covered by the provisions of the Kansas act against discrimination.”
This argument has no merit. Pursuant to K.S.A. 44-1004(3), the KCCR has the authority to “adopt, promulgate, amend and rescind suitable rules and regulations to carry out the provisions of the [Act].“ However, this authority is administrative, not legislative, and to be valid must be within the authority conferred by statute. A rule or regulation which goes beyond that which the legislature has authorized, or which violates the statute, or which alters, extends, or limits the source of its legislative powers is void. Woods v. Midwest Conveyor Co., 231 Kan. 763, 771, 648 P.2d 234 (1982) (KCCR regulation ordering damages for pain, suffering, and humiliation exceeded statutory authority and was therefore void).
By enacting K.A.R. 21-46-3, the KCCR exceeded the scope of the Act, broadening its authority beyond the three areas of housing, employment, and public accommodations to student admission to schools. This is not regulation, but legislation, and we have long held that legislation may not be enacted under the guise of regulation. Rhodes v. Harder, 211 Kan. 820, 830-31, 508 P.2d 959, aff d as modified 212 Kan. 500, 512 P.2d 354 (1973).
The district court correctly concluded that the subject matter presented by the complaints in this case fell outside the scope of K.S.A. 44-1009(c)(3) and that the KCCR’s motion to enforce the subpoenas must be denied. Thé allegations presented by the KCCR complainants do not involve matters of public accommodation. Whether the scope of the Act should be broadened to cover the complaints of public school students who were denied the right to transfer to a school outside their attendance area is a matter for the legislature, not the courts.
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The opinion of the court was delivered by
Herd, J.:
This is a personal injury action wherein plaintiff James Summers appeals an adverse jury verdict.
Summers is an employee of Graves Truck Line and as such made regular deliveries to Lerner Shops, Inc., located in Oak Park Mall in Overland Park. The deliveries were made through a service elevator owned and controlled by Oak Park Investment Company, manufactured by Harris-Preble, and serviced and maintained by Montgomery Elevator Company. The service elevator was not open to the public and its use was authorized only to Oak Park tenants, their suppliers, and Oak Park management and staff.
The elevator doors were designed to be closed manually by the person using the elevator. To close the doors, one pulled a strap hanging from the upper door. This would cause the doors to meet horizontally in the middle. There was one strap inside and one outside. If the inner strap was missing, there was a two-inch ledge inside the upper door which could be used. Vandals often cut the straps completely off or shortened them so they could not be properly used. There were complaints the doors were erratic and difficult to close even when the straps were present.
On the date of the accident, March 3,1983, the inner strap was missing. Summers attempted to close the doors from inside the elevator by reaching outside the doors with his left hand and pulling on the outer strap. The doors suddenly slammed together, catching Summers’ left hand and injuring his index finger.
The first two issues allege the trial court erred in overruling Summers’ motion for new trial pursuant to K.S.A. 60-259(a)(Fi/ih) and (Sixth), which provide:
“(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues when it appears that the rights of the party are substantially affected:
“Fifth. For newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.
“Sixth. That the verdict, report or decision was procured by the corruption of the party obtaining it. In this case the new trial shall be granted as a matter of right, and all the costs made in the case up to the time of granting the new trial shall be charged to the party obtaining the decision, report or verdict.
“On motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, and direct the entry of a new judgment.”
The trial court has wide discretion in reviewing the evidence and determining whether a new trial should be granted pursuant to K.S.A. 60-259 because of corrupt evidence. Smith v. Union Pacific Railroad Co., 214 Kan. 128, 130-31, 519 P.2d 1101 (1974).
Summers’ allegations of corruption are based on Oak Park’s answers to an interrogatory which asked for the details of injuries since the installation of the elevator. Oak Park answered “none” to all questions. Summers also asked for all prior correspondence concerning claims for personal injuries in the same time frame. Oak Park replied it had no documentation of any injuries.
Oak Park manager David Sprinkle testified in a deposition there could have been complaints filed of which he was not personally aware. He testified he himself knew of no other individuals who had been injured by the elevator doors. Defense counsel stated in closing argument that Summers was the only person ever injured by the elevator.
After the trial, Summers discovered two individuals had injured their hands in closing the elevator in July of 1984, after his accident but prior to the answering of the interrogatories. These individuals, Cary Pierce and George Hull, had reported their injuries to Jim Edwards, Chief of Security for Oak Park. Correspondence between Hull’s attorney and Oak Park’s insurer concerning investigation of his accident was discovered. Summers contends this is clear evidence Oak Park intentionally withheld information.
The trial court stayed its decision on Summers’ K.S.A. 60-259 motion for a new trial to allow him to reopen discovery in order to make certain no individuals had been injured by the elevator prior to his accident. The court ordered Oak Park to pay attorney fees and costs ultimately totalling $2,234.73 for the reopened discovery. When no prior injuries were discovered, the trial court denied Summers’ motion, holding evidence of subsequent injuries would not have changed the result at trial.
Although admitting its response was inaccurate in light of the wording of Summers’ discovery requests, Oak Park argues it replied in good faith and its omission was purely inadvertent. It claims Security Chief Edwards had not informed anyone of the reported injuries and, in fact, had been fired by the time of discovery for continued failure to communicate with other Oak Park personnel. Oak Park had disclosed Edwards as' a former employee during discovery and Summers’ counsel talked with him after the trial.
Oak Park says Sprinkle was unaware of any subsequent accidents when he answered the interrogatories. Its attorneys searched to verify Sprinkle’s answers but, assuming records subsequent to the March 3, 1983, accident would be irrelevant, they did not discover the two subsequent accidents. Oak Park does not explain how the insurance company could have acted on one of the complaints without Sprinkle’s knowledge since it was standard practice for him to see insurance reports.
Oak Park notes security reports prior to the accident were produced for inspection and copying by Summers’ attorney. He was informed other reports could be produced if necessary but he stated he had seen all he needed to see. Such a search would have produced the report which showed the injury of George Hull. Oak Park argues it cannot be accused of attempting to conceal information which was made available.
A new trial may be granted only if we find the trial court abused its discretion in denying Summers’ motion after allowing subsequent discovery to be held at the cost of Oak Park. Judicial discretion is abused when the court’s action is arbitrary, fanciful, unreasonable, or unwarranted. See Cook v. Cook, 231 Kan. 391, 394, 646 P.2d 464 (1982). Summers contends the subsequent accidents were relevant and his rights were substantially affected. However, subsequent accidents are not relevant to a defendant’s culpability at the time of the first accident. Even if deemed to be newly discovered, producing evidence which is incompetent is not a ground for a new trial. See Trimble, Administrator v. Coleman Co., Inc., 200 Kan. 350, 360, 437 P.2d 219 (1968).
Even if the newly discovered evidence could have clearly affected the outcome of the trial, we have consistently held a new trial will not be granted if the evidence could have been produced by the use of due diligence. We found there was no abuse of discretion in refusing a new trial in Bott v. Wendler, 203 Kan. 212, 229-30, 453 P.2d 100 (1969), where the appellants had not interviewed witnesses before trial who would have been able to supply material information.
In Douglas v. Lombardino, 236 Kan. 471, 489, 693 P.2d 1138 (1985), a plaintiff doctor’s testimony at trial regarding the number of times he had performed a medical procedure was at variance with his deposition. Because this discrepancy could have been discovered prior to trial, we held the later discovery could not be a basis for a new trial.
Under the circumstances we hold these issues to be without merit. Attorneys for both parties should have been more thorough in their examination of the accident reports. Their oversight is understandable, however, since injuries subsequent to March 3 are irrelevant to the case. See 26 Am. Jur. 2d, Elevators and Escalators §§ 70, 71. We find no corruption or withholding of evidence by Oak Park.
The third issue is whether the trial court abused its discretion in allowing evidence before the jury which Summers contends was prejudicial and in violation of the court’s order in limine.
The trial court initially granted Summers’ motion in limine which barred mention of any of Summers’ unrelated lawsuits, injuries, illnesses, or effects thereof until a proffer of such proposed evidence was reviewed out of the presence of the jury. The court reserved the right to admit the evidence if it then determined the evidence to be relevant.
Summers testified the only reason he had stopped hunting and fishing in the winter was because the cold hurt his finger. Defense counsel then asked him if he had given a deposition for a personal injury suit he had filed against the Widger Chemical Company. Summers’ counsel objected, and the court, after a hearing at the bench to determine relevancy, overruled the objection. Defense counsel then presented Summers’ deposition given February 5, 1986, in which he claimed to have been exposed to toxic fumes from Widger, after which he had not hunted because it hurt him to breathe the cold air. Summers attempted to reconcile the discrepancy at trial by testifying he had not been able to hunt in 1983 because of the toxic injury, but after that it was because of his hand injury.
This deposition is clearly admissible as a prior inconsistent statement pursuant to K.S.A. 1987 Supp. 60-232(a)(l), which provides:
“At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
“(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.”
See State v. Worth, 217 Kan. 393, 395, 537 P.2d 191 (1975), cert. denied 423 U.S. 1057 (1976).
While defense counsel’s question in his cross-examination of Summers pertaining to the Widger lawsuit in the presence of the jury was technically in violation of the order in limine, the trial court in its discretion made the order and in its discretion overruled it, recognizing the prior inconsistent sworn statements of Summers as being relevant and material to the determination of damages. We hold the trial court properly admitted the evidence.
The fourth issue is whether the trial court erred in awarding attorney fees to appellee Lerner Shops as a sanction against Summers for frivolously continuing his action against it.
K.S.A. 1987 Supp. 60-211 provides the attorney filing suit for a party must swear he has determined after inquiry that the claim is well grounded in fact and warranted by existing law or a good faith argument for its modification and is not imposed for any improper purpose. The sanction for a false swearing “may include an order to pay to the other party or parties . . . reasonable expenses . . . including reasonable attorney fees.” K.S.A. 60-2007(b) provides for the assessment of costs of frivolous claims. If the court finds a plaintiff asserted a claim “without a reasonable basis in fact and not in good faith,” the expenses incurred by the defendant as a result of the frivolous claim are charged against the plaintiff. The trial court found there was no reasonable basis under Kansas law for the action, but made no finding on good faith. Two separate requirements must be met before attorney fees and expenses can be assessed pursuant to K.S.A. 60-2007(b): (1) The claim asserted was without reasonable basis in fact; and (2) the claim was not asserted in good faith. Rood v. Kansas City Power &- Light Co., 243 Kan. 14, 755 P.2d 502 (1988).
The assessment of attorney fees under the statutes lies within the sound discretion of the trial court and will not be overturned without a clear showing of abuse. Summers bears the burden of showing the trial court abused its discretion. See Lone Star Industries, Inc. v. Secretary, Kansas Dept. of Transp., 234 Kan. 121, 131, 671 P.2d 511 (1983); Cornett v. Roth, 233 Kan. 936, 945, 666 P.2d 1182 (1983).
Summers contacted his attorney a week before the statute of limitations had run. Counsel therefore had very little time to investigate the facts, and filed suit against all parties which might reasonably be deemed to have a duty to Summers.
Where an attorney is forced by circumstances outside his control to file a case without investigation and before demand can be made on the proposed defendant, he has the obligation thereafter to use diligence in promptly determining whether there is good cause against all parties. See Nelson v. Miller, 227 Kan. 271, 276, 607 P.2d 438 (1980). The court thus did not assess expenses from the date the suit was filed, but only those incurred after plaintiff s counsel had received and reviewed depositions, admissions, and copies of the lease between Lerner and Oak Park. This information showed the elevator was not on Lerner’s property and Oak Park retained all ownership, control, and duty to maintain. The court held Summers’ counsel should have at this point acceded to Lerner’s request that it be dropped from the suit.
The general rule is that a tenant has no duty of care towards premises not in his ownership, possession, or control. This rule excludes a store’s liability for common areas owned and controlled by a lessor shopping mall. See Annot., 48 A.L.R.3d 1163. The advent of shopping centers has given rise to a few cases cited by Summers, in which the question of control has been held to be a question of fact not answered by the terms of a store’s lease. See Wilson v. Allday, 487 So. 2d 793 (Miss. 1986), and Jackson v. K-Mart Corp., 182 N.J. Super. 645, 442 A.2d 1087 (1981).
The last expression of Kansas law on this subject was by the Court of Appeals in Hall v. Quivira Square Development Co., 9 Kan. App. 2d 243, 244, 675 P.2d 931, rev. denied 235 Kan. 1041 (1984). The plaintiff in that case had been shopping in a drugstore in a shopping center owned by Quivira before she fell and injured herself in the parking lot 40 feet away from the drugstore. The parking lot was owned, controlled, and maintained by Quivira. The Court of Appeals affirmed summary judgment granted to the drugstore, reiterating our law that the common area of a leased area which a tenant is merely entitled to use, without having control, is the liability of the lessor. See Borders v. Roseberry, 216 Kan. 486, 488-91, 532 P.2d 1366 (1975).
It is clear Summers’ recovery from Lerner is precluded under Quivira. The question remains, however, whether the facts of the case and the law of other jurisdictions provide sufficient evidence that Summers made a good faith effort to modify Kansas law.
As in all difficult decisions, there are meritorious arguments on both sides. It is the trial court’s duty to weigh the dangers of each. The risk of overtaxing the judicial system with frivolous litigation and its excess expenses to the defendants must be weighed against the proposition that the courts are constitutionally committed to the promise that every person is entitled to a remedy for a wrong by due process of law. To keep this promise, the system must be sufficiently open to tolerate an innovative challenge to present theories of the law. Otherwise, we remain mired in the mistakes of the past.
The rules of Jackson, 182 N.J. Super 645, and Wilson, 487 So. 2d 793, might have been sufficient to support a good faith effort to overrule Quivira. Summers failed, however, to directly argue for the overruling of Quivira. This is sufficient evidence of a lack of good faith to support the trial court’s finding. We hold the trial court did not abuse its discretion by imposing sanctions.
The final issue is whether the trial court committed reversible error in failing to submit Summers’ proposed instructions to the jury. We have long adhered to the rule that it is the duty of the trial court to instruct the jury on Kansas law governing the theories of the parties. Garrison v. Marlatt, 224 Kan. 390, 580 P.2d 885 (1978).
The trial court refused Summers’ proposed instructions PIK Civ. 2d 3.02 and PIK Civ. 2d 14.73 (1986 Supp.), on reckless or wanton conduct, ruling Summers had not made a prima facie case of such conduct. This ruling prevented the giving of Summers’ proposed instruction PIK Civ. 2d 9.44 on punitive damages. Summers contends evidence of the long period of time during which straps were missing and the elevator doors were difficult to close was sufficient to show wanton negligence and reckless indifference to the consequences. If reasonable minds could differ as to whether conduct constitutes wantonness, the question is one of fact for the jury. Bowman v. Doherty, 235 Kan. 870, 686 P.2d 112 (1984).
Appellees argue Summers, by showing the length of time straps were missing, merely showed that they knew or should have known of the problem, a requirement which must be met in order to find ordinary negligence. See Smith v. Mr. D’s, Inc., 197 Kan. 83, 85, 415 P.2d 251 (1966). There is no evidence of injury caused by the elevator prior to Summers’ accident. Appellees thus argue they could not have been found to have acted “with a realization of the imminence of danger and a reckless disregard or complete indifference to the probable consequences of the act.” PIK Civ. 2d 3.02. See Roberts v. Beebe, 200 Kan. 119, 126, 434 P.2d 789 (1967). Nor, they contend, could they have been found to “know or have reason to know of facts which create a high degree of risk of harm to another, and then, indifferent to what harm may result,” failed to act. PIK Civ. 2d 14.73 (1986 Supp.).
We hold there was insufficient evidence of willful and wanton conduct to support an instruction thereon.
The trial court refused Summers’ proposed instructions PIK Civ. 2d 15.40 and 15.41 on the heightened duty of care owed a passenger in a common carrier, holding an elevator is not a common carrier.
Black’s Law Dictionary 249 (5th ed. 1979), defines a “common carrier” as:
“Any carrier required by law to convey passengers or freight without refusal if the approved fare or charge is paid in contrast to private or contract carrier. One who holds himself out to the public as engaged in business of transportation of persons or property from place to place for compensation, and who offers services to the public generally.”
The definition does not meet the characteristics of most elevators, and we find no Kansas case holding an elevator to be a common carrier. The statutory and case law definitions of the term do not include elevators. See K.S.A. 66-1,215; State, ex rel., v. Sinclair Pipe Line Co., 180 Kan. 425, 439, 304 P.2d 930 (1956). We hold the elevator in this action is not a common carrier and that the duty to the public with regard to it is that of ordinary care. We find no error in refusing to give the proposed instruction.
The trial court denied Summers’ proposed instruction on the doctrine of res ipsa loquitur. Under the doctrine of res ipsa loquitur, “the thing speaks for itself,” a defendant may be found liable merely from the fact that an accident occurred if the instrument causing the injury is within the defendant’s exclusive control, the accident is of the kind which does not ordinarily occur in the absence of negligence, and the accident is not caused by contributory negligence on the part of the plaintiff. Arnold Associates, Inc. v. City of Wichita, 5 Kan. App. 2d 301, 309, 615 P.2d 814 (1980), rev. denied 229 Kan. 669 (1981). We held the doctrine did not apply against appellee Montgomery in Bias v. Montgomery Elevator Co., 216 Kan. 341, 532 P.2d 1053 (1975), because the freight elevator was not in the exclusive control of the defendant and there was evidence of contributory negligence. In the present case we find no error in refusing to give the requested instruction on res ipsa loquitur.
The trial court denied Summers’ proposed instructions PIK Civ. 2d 13.04, 13.05, and 13.22 on Montgomery’s strict liability as a seller of a product under a product liability theory. Summers failed to indicate he was proceeding under any theory other than comparative negligence. There was no allegation in the pleadings or pretrial order which would support a claim for liability for inherent defect or that Montgomery sold a defective product to Oak Park. We find no trial error on this issue.
The trial court refused three instructions that an owner of property is not excused from it's duty to protect others from danger on its property by the intervening acts of others. Summers claims this instruction was necessary because there was evidence the straps were repeatedly stolen by vandals. Oak Park does not contend the vandalism affected their duty towards Summers. Rather, it argues the elevator could have been safely operated without the straps. The court instructed the jury that the appellees were under a duty to conduct themselves reasonably under the circumstances. The jury was instructed Summers claimed appellees were at fault for the missing strap, and was instructed in order to find liability it only need find that appellees had knowledge of or should have had knowledge of a dangerous condition. We find no error.
Summers also complains the trial court did not instruct on hidden defects. We will not consider this argument as there is no evidence in the record of such an instruction being proposed.
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The opinion of the court was delivered by
Holmes, J.:
Two appeals by Marcellus H. Baker from issues generated by the same criminal convictions have been consolidated in this court. Case No. 60,288 is a direct appeal by Baker from an-adverse ruling in his action pursuant to K.S.A. 60-1507. Case No. 61,155 is an appeal by Baker from the denial of his motion for a new trial based upon newly discovered evidence pursuant to K.S.A. 22-3501. Appellant’s convictions of rape (K.S.A. 1987 Supp. 21-3502), aggravated burglary (K.S.A. 21-3716), and criminal damage to property (K.S.A. 1987 Supp. 21-3720) were affirmed by this court in an unpublished opinion No. 57,237, dated June 21, 1985.
The following facts are taken from this court’s prior opinion.
In the early hours of January 15, 1984, Ms. N. awoke in her Emporia home to find a male intruder standing in the doorway of her bedroom. The intruder entered the bedroom and subdued and raped Ms. N. After he left she called police. Officers Turner and Senn, of the Emporia police department, responded. Snow was falling at the time and there were about two inches of snow on the ground. The officers found footprints in the snow under a kitchen window from which the screen had been cut for the intruder to gain access. Similar footprints were found on the front porch leading away from the house. While Officer Senn interviewed the victim, Turner followed the footprints, which had a distinctive pattern and appeared to have been made by tennis shoes. The footprints led to the front door of an apartment building, Thereafter the two officers were met at the apartment house by Lt. Heinitz of the Emporia police department. Officer Senn advised the other two that the victim had described her attacker as being a black male, about six feet tall, with a medium build and possibly wearing a dark blue stocking cap, dark-colored jacket, leather gloves, and blue jeans. The three officers then followed the footprints into a public hallway in the apartment building and up a flight of stairs to the second floor. Inside the building the footprints were only partially observable by snow and water left on the stairs and floor. They followed the partial prints and water to an apartment on the second floor, where they found puddles of water in front of the door to Apartment # 1.
The officers knocked on the apartment door, which was opened by a woman. When asked if she lived there alone, she replied that her “husband” lived there also. The officers asked if he could come to the front door. While she went to get him, the officers remained in the public hallway. Marcellus H. Baker, a black male who matched the physical description provided by the victim, then came to the door. Turner told Baker they were investigating an incident that occurred in the 1000 block of Mechanic, and asked if he owned a pair of tennis shoes. Baker replied, stating all he owned was a pair of boots. At Turner’s request Baker went to get his boots and, as he did so, said, “I guess I do own a pair of tennis shoes.” Turner asked him to bring those as well. When Baker returned to the front door, Turner asked to see the bottoms of the tennis shoes. The bottom tread of the tennis shoes matched the footprints in the snow. Baker’s shoes were wet with moisture and still had some snow packed between the treads. He was then advised of his constitutional rights under Miranda and placed under arrest. A pair of leather gloves was observed on the floor and, after Baker had dressed, he was taken to the police station along with the tennis shoes and gloves seized by the officers. Additional facts will be developed as necessary for the consideration of the issues now on appeal. We will consider each appeal separately.
Case No. 60.288
Baker has appealed from the trial court’s denial of his K.S.A. 60-1507 motion based upon the assertion that he was denied the effective assistance of counsel in his original appeal. Baker contends that his appointed counsel should have raised, in the appeal of his convictions, the issues of (1) whether Baker had been improperly questioned by police without having been informed in full of his Miranda rights, and (2) whether the trial court abused its discretion by imposing an excessively long sentence.
Kansas appellate courts have apparently addressed only once a claim of ineffective assistance of counsel for failure to raise particular issues on direct appeal of a conviction. See Smith v. State, 8 Kan. App. 2d 684, 666 P.2d 730 (1983). While Smith, like this case, was an appeal from the denial of a K.S.A. 60-1507 motion, the Court of Appeals disposed of the argument summarily and without citing authority. See 8 Kan. App. 2d at 689. As to ineffective assistance of counsel claims in general, however, this court has followed the United States Supreme Court holding in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), which requires the defendant asserting such a claim to prove that (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defense so as to deprive defendant of a fair trial. See State v. Bodtke, 241 Kan. 96, 99, 734 P.2d 1109 (1987); Chamberlain v. State, 236 Kan. 650, Syl.¶ 3, 694 P.2d 468 (1985).
As to an allegation of ineffective assistance of counsel on appeal, the great majority of state courts apparently follow the view that defense counsel is under no duty to assert on appeal every possible question of law in order to preclude a subsequent finding that defendant was provided ineffective assistance of counsel. See Annot., 15 A.L.R.4th 582 § 3[a]; § 23. The United States Supreme Court adopted this view in Jones v. Barnes, 463 U.S. 745, 77 L. Ed. 2d 987, 103 S. Ct. 3308 (1983), reversing the Second Circuit Court of Appeals’ holding that when the appellant asks his assigned counsel to raise particular issues on appeal, counsel must do so to the best of his professional ability. In rejecting that principle, the Supreme Court reasoned:
“[B]y promulgating a per se rule that the client, not the professional advocate, must be allowed to decide what issues are to be pressed, the Court of Appeals seriously undermines the ability of counsel to present the client’s case in accord with counsel’s professional evaluation.
“Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.” 463 U.S. at 751-52.
“For judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every ‘colorable’ claim suggested by a client would disserve the very goal of vigorous and effective advocacy that underlies Anders. [Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967).] Nothing in the Constitution or our interpretation of that document requires such a standard.” 463 U.S. at 754.
In short, the Court held that a criminal defendant has no consti tutional right to have appellate counsel raise every nonfrivolous issue that the defendant requests. See 463 U.S. at 754 n.7.
In the instant case appellant assumes that the same standard for obtaining reversal of a conviction for ineffective assistance of counsel at trial will be applied by this court to a claim of ineffective assistance of counsel on appeal. The State does not challenge that assumption, and in fact relies upon the Strickland two-pronged test in arguing that appellant has failed to carry his burden of proof on either prong. Since this court has not had occasion to squarely address the question of whether the Strickland standard, as adopted by this Court in Chamberlain, applies to claims that appellate counsel’s assistance was ineffective, some background may be helpful.
The right to counsel is rooted in the Sixth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and in Section 10 of the Kansas Constitution’s Bill of Rights. Both those provisions deal with the right to counsel in the context of a criminal trial. While there is no constitutional right to appeal a conviction, the United States Supreme Court has held that under equal protection principles an indigent defendant is constitutionally entitled to the assistance of counsel when a first appeal is granted by the state as a matter of right. Douglas v. California, 372 U.S. 353, 9 L. Ed. 2d 811, 83 S. Ct. 814 (1963). The general right to counsel was later articulated to mean.the right to effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 344, 64 L. Ed 2d 333, 100 S. Ct. 1708 (1980).
While the two-pronged test articulated in Strickland applied to claims of ineffective counsel at the criminal trial stage, that test was applied to a claim of ineffective counsel on appeal in Smith v. Murray, 477 U.S. 527, 91 L. Ed. 2d 434, 106 S. Ct. 2661 (1986). In Smith v. Murray, the appellant was appealing from a denial of a petition for habeas corpus in the federal district court based upon counsel’s decision not to include as an issue in his original state court appeal the admission of certain testimony by a psychiatrist. The Supreme Court, in affirming the denial of the petition, stated:
“Nor can it be seriously maintained that the decision not to press the claim on appeal was an error of such magnitude that it rendered counsel’s performance constitutionally deficient under the test of Strickland o. Washington, 466 U.S. 668, [80 L. Ed. 2d 674, 104 S. Ct. 2052] (1984). Carrier [Murray v. Carrier, 477 U.S. 478, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986),] reaffirmed that ‘the right to effective assistance of counsel . . . may in a particular case be violated by even an isolated error ... if that error is sufficiently egregious and prejudicial.’ Ante, at 496; see also United States v. Cronic, 466 U.S. 648, 657, n. 20, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984). But counsel’s deliberate decision not to pursue his objection to the admission of Dr. Piles’ testimony falls far short of meeting that rigorous standard. After conducting a vigorous defense- at both the guilt and sentencing phases of the trial, counsel surveyed the extensive transcript researched a number of claims, and decided that, under the current state of the law, thirteen were worth pursuing on direct appeal. This process of ‘winnowing out weaker arguments on appeal and focusing on’ those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy. Jones v. Barnes, 463 U.S. 745, 751-52, 77 L. Ed. 2d 987, 103 S. Ct. 3308 (1983). . . . [A]s Strickland v. Washington made clear, ‘[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.’ 466 U.S. at 689, 80 L. Ed. 2d 674, 104 S. Ct. 2052. Viewed in light of Virginia law at the time Mr. Pugh submitted his opening brief to the Supreme Court of Virginia, the decision not to pursue his objection to the admission of Dr. Piles’ testimony fell well within the ‘wide range of professionally competent assistance’ required under the Sixth Amendment to the Federal Constitution.” 477 U.S at 535-36.
We conclude that the test to be applied to a claim of ineffective assistance of counsel on appeal is the same test as articulated by the Supreme Court in Strickland and as adopted by this court in Chamberlain. For a defendant to be successful in asserting that he was denied effective assistance of counsel on appeal, it must be shown that (1) counsel’s performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness, and (2) the appellant was prejudiced to the extent that there is a reasonable probability that, but for counsel’s deficient performance, the appeal would have been successful. In applying such a standard the caveats and direction articulated in Strickland and Chamberlain apply equally to a claim of ineffective assistance of counsel on appeal. As stated in Strickland:
”[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” 466 U.S. at 690.
We now turn to the specific issues which appellant asserts in contending he was denied the effective assistance of counsel on his original appeal. Baker’s first contention is that his appellate counsel should have raised as an issue on appeal that he was improperly questioned by police without having been fully informed of his Miranda rights. He contends that the investigating police officers recited only part of the Miranda warning to him before he made certain incriminating statements which were later admitted into evidence against him. Appellant argues that it was unreasonable not to have raised this issue on appeal since his trial counsel raised the issue in a pretrial motion to suppress certain statements made by Baker. Baker essentially contends that there was a good argument that he was in “custody” while police conducted their pre-arrest questioning at the door of his residence, that he was therefore constitutionally entitled to a full recitation of his Miranda rights, and that the use against him of inconsistent pr e-Miranda statements he made in response to police questioning was improper. It is then asserted the alleged improper questioning could have been the basis for a “fruit of the poisonous tree” challenge to the admission of certain physical evidence allegedly found as a result of Baker’s pre-Miranda statements. The State’s arguments in response essentially urge that Baker was not in custody when he made his pr e-Miranda statements and that the statements were not involuntary.
Baker specifically challenges the admission of certain answers he made to the police officers when he was first confronted at the door of his apartment. Upon being asked by police whether he owned some tennis shoes, Baker allegedly responded, “No, I don’t have any tennis shoes. I have some boots.” The officer then asked if Baker would go get the boots. Baker turned and started walking back into his apartment as if to retrieve the boots, then said, “Oh, I guess I do own a pair of tennis shoes.” The officer asked him to bring the tennis shoes also. Baker complied. The officer asked Baker if he could see the bottoms of the tennis shoes, and Baker again complied by flipping them over to exhibit the soles. At that point, the officer took the shoes from Baker without force or resistance and placed him under arrest, reading the Miranda rights in full to him from a card. There is absolutely no showing that at the time of the statements made by Baker, he was in custody or under arrest. At that time', the officers were merely conducting their preliminary investigation and the questions complained of were not part of any custodial interrogation.
At the conclusion of the suppression hearing the court concluded:
“On the Jackson-Denno part of this for statements made, I find that there were no involuntary statements made in any way in the conversation leading up to the arrest, and from the time that the Miranda warning was given apparently there was not further conversation or statement made after that. And so I find that any statements made that have been testified hereto are not to be suppressed. They’re not in violation of Mr. Baker’s rights.”
This issue of the appellant lacks merit.
Next, appellant contends that his first appellate counsel should have argued on appeal that his sentence was excessive. Appellant was sentenced to concurrent terms of 10 to 20 years for rape, 3 to 10 years for aggravated burglary, and six months for criminal damage to property. Thus, the controlling sentence was the 10 to 20 years for rape. The range for the minimum sentence for rape is 5 to 15 years while the range for the maximum is 20 years to life. In State v. Hamilton, 240 Kan. 539, Syl. ¶ 1, 731 P.2d 863 (1987), we again stated the general rule:
“A sentence imposed which is within the statutory limits will not be disturbed on appeal, provided it is within the realm of discretion on the part of the trial court and not a result of partiality or prejudice.”
There has been absolutely no showing of partiality or prejudice and the sentences were clearly within the statutory limits and within the discretion of the court.
Both issues asserted by appellant in his claim of ineffective assistance of counsel are totally without merit and appellant has failed to meet either prong of the test adopted earlier in this opinion. The failure of counsel to raise an issue on appeal is not, per se, to be equated with ineffective assistance of counsel. As stated by the Supreme Court in Jones v. Barnes, 463 U.S. 745, 77 L. Ed. 2d 987, 103 S. Ct. 3308 (1983):
“Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues. Justice Jackson, after observing appellate advocates for many years, stated:
‘One of the first tests of a discriminating advocate is to select the question, or questions, that he will present orally. Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one. . . . [Experience on the bench convinces me that multiplying assignments of error will dilute and weaken a good case and will not save a bad one.’ Jackson, Advocacy Before the United States Supreme Court, 25 Temple L.Q. 115, 119 (1951).
Justice Jackson’s observation echoes the advice of countless advocates before him and since.” 463 U.S. at 751-52.
We agree. In an appeal from a criminal conviction, appellate counsel should carefully consider the issues, and those that are weak or without merit, as well as those which could result in nothing more than harmless error, should not be included as issues on appeal. Likewise, the fact that the defendant requests such an issue or issues to be raised does not require appellate counsel to include them. Conscientious counsel should only raise issues on appeal which, in the exercise of reasonable professional judgment, have merit.
The judgment in Case No. 60,288 must be affirmed.
Case No. 61,155
In this case, the appellant asserts the district court committed error in denying his motion for a new trial based upon newly discovered evidence. The appellant argues that a new trial should have been granted for the purpose of permitting the defendant to impeach the testimony of the State’s expert on forensic serology. The expert witness testified that approximately 20.7 percent of the black population are Type A secretors, a combination of two genetic traits — Type A blood and the ability to secrete evidence of one’s blood type in other body fluids. The appellant contends that he could have impeached this testimony had he been provided a copy of the study upon which the expert relied. He points to a paragraph in the study that indicates its results “strictly apply only in California” for blacks, since the study sample of blacks was made up only of California residents. Appellant argues that the study’s results were improperly gen eralized to the Kansas black population. The appellants argument relies solely on the potential value of the published study in impeaching or discrediting the testimony of the State’s expert witness, Susan Scholl.
This court has reiterated several times the rules governing motions for new trial on the ground of newly discovered evidence, most recently in State v. Munyon, 240 Kan. 53, 63, 726 P.2d 1333 (1986):
“ ‘The granting of a new trial for newly discovered evidence is in the trial court’s discretion. (State v. Larkin, 212 Kan. 158, 510 P.2d 123, cert. den. 414 U.S. 848, 38 L. Ed. 2d 95, 94 S. Ct. 134.) A new trial should not be granted on the ground of newly discovered evidence unless the evidence is of such materiality that it would be likely to produce a different result upon re-trial. (State v. Hale, 206 Kan. 521, 479 P.2d 902.) The credibility of the evidence offered in support of the motion is for the trial court’s consideration. (State v. Anderson, 211 Kan. 148, 505 P.2d 691; State v. Larkin, [212 Kan. 158].) The burden of proof is on defendant to show the alleged newly discovered evidence could not with reasonable diligence have been produced at trial. (State v. Lora, 213 Kan. 184, 515 P.2d 1086; State v. Arney, 218 Kan. 369, 544 P.2d 334.) The appellate review of an order denying a new trial is limited to whether the trial court abused its discretion. (State v. Campbell, 207 Kan. 152, 483 P.2d 495; State v. Anderson, [211 Kan. 148].)’ ”
When the alleged newly discovered evidence merely tends to impeach or discredit the testimony of a witness, a new trial will not be granted. State v. Richard, 235 Kan. 355, 363, 681 P.2d 612 (1984).
There are numerous reasons why the trial court was correct in its denial of the motion. At the outset it is questionable that the California study relied upon by the State’s expert witness could even be classified as newly discovered evidence in this case. On direct examination, Ms. Scholl testified that her opinion was based, at least in part, on the California study by Dr. Benjamin Grunbaum, and others, which was published in the Journal of Forensic Sciences. Counsel for the defense then made the following objection:
“I’m going to object. If we have a learned treatise, I think the very least that we could do is let the Defense have an opportunity to review it. Apparently the witness is basing her — she has no information but is basing this instead upon a study done in California. We simply ask that we be given an opportunity to review that document, and we would object on the grounds that it’s hearsay failing an opportunity for the Defense to review it.”
The trial judge ruled:
“Well, I believe this witness has been adequately qualified to give such testimony concerning this and I think the foundation is adequate, so I will overrule the objection. You may answer the question.”
At this point counsel was fully aware of the study, the nature of it, the name of the authors, and where the study was published. No request for a recess was made by defense counsel and no request was ever made to the prosecutor or the witness to furnish a copy of the study. Assuming that the Grunbaum study could not have been discovered with reasonable diligence before trial, it was certainly available on the first day of a three-day trial. Baker was sentenced on May 3, 1984, yet this motion based upon “newly discovered evidence” was not filed until April 1987. Apparently, no attempt was made to obtain a review of what is now asserted to be critical evidence for nearly three years after the original conviction.
Secondly, the alleged newly discovered evidence was not material in this case. Materiality, as it relates to newly discovered evidence not disclosed by the prosecution, was defined by the Supreme Court in United States v. Bagley, 473 U.S. 667, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985). The court stated:
“The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” 473 U.S. at 682.
In the present case, appellant does not contend that the prosecution acted in bad faith in not furnishing a copy of the Grunbaum study to defense counsel or that the failure to provide it was an oversight. Appellant has failed to demonstrate in any way how this particular study or the impeachment of Susan Scholl would have led to a different result in this case. The evidence against Baker was overwhelming. In addition to that recited earlier, the victim, following the attack upon her, found in her bedroom a brown coat button which did not belong to her and which she had never seen before. Baker’s dark brown winter coat recovered pursuant to a search warrant was missing a button which was identical in design, size, and shape to the one found in the victim’s apartment. Further incriminating evidence need not be recited here. Suffice it to say, impeachment of the testi mony of Susan Scholl could not, with any reasonable probability, have affected the outcome of appellant’s trial.
Other arguments in support of this appeal are equally without merit and the judgment in this appeal must also be affirmed.
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The opinion of the court was delivered by
Lockett, J.:
Defendant, The Kansas Power and Light Company (KPL), appeals the judgment in a wrongful death and survival action brought by the surviving spouse and minor children of Kenneth Folks, deceased. Folks, u painter employed by the third-party defendant, Martin Painting Company, was fatally injured when a metal ladder he was using came in contact with defendant’s power line. The jury awarded plaintiffs actual and punitive damages and compared fault. KPL appeals raising numerous issues, including the amount of the punitive damages awarded by the jury. Plaintiffs cross-appeal from the trial court’s reduction of the jury award by the percentage of fault attributed to the employer. Amicus curiae briefs have been filed by the Kansas Association of Defense Counsel (KADC) and the Kansas Trial Lawyers Association (KTLA). We affirm the judgment for actual damages and the trial court’s reduction of the actual damages by the percentage of fault attributed to the employer, but reduce the amount of the punitive damages to $500,000 because, under the facts of this case, the amount awarded by the jury shocks the conscience of this court. Plaintiffs may accept the remittitur of the amount of punitive damages in writing within 10 days after this decision becomes final by filing their acceptance of the remittitur with the clerk of the district court, or receive a new trial on the issue of punitive damages.
FACTS
In May 1984, Kenneth Folks, an employee of Martin Painting Company, was part of a crew painting a new building at the Business World construction site in Lawrence, Kansas. The building was vacant and not connected to the electrical power system. Earlier, in March 1984, KPL had installed two 40-foot poles near the building, one on the southeast corner of the site and a second pole 199 feet directly north. KPL then extended an existing circuit to the second pole by installing two wires in a vertical stack, with the energized wire low and the neutral or ground wire high. The energized wire was a single phase 7,200 volt uninsulated line and was located 24 feet, 9 inches vertically and 6 feet, 6 inches horizontally as it passed the building. The highest point of the building was approximately 35 feet, and the unpainted wall of the building was approximately 10 feet higher than the energized electrical line.
Before beginning to paint the building, Joseph Martin, owner of the painting company, discussed the danger of the overhead power line with Folks and the rest of his crew. About noon, Folks, standing on the ground between a 32-foot ladder and the wall, held the ladder away from the building, while Martin, who was standing on the ladder, attempted to extend it. As Folks moved the ladder away from the wall, it contacted the overhead power line. Folks fell to the ground, still breathing. He was taken to the hospital and was pronounced dead at 2:23 p.m. Folks’ widow and minor children filed a wrongful death and survival action against KPL, alleging that KPL had negligently designed, installed, and maintained the power line that caused Folks’ death. KPL’s answer denied negligence and alleged that Folks and his employer had been negligent. KPL joined Martin Painting Company as an additional party for the purpose of comparative negligence. The case was tried to a jury which found KPL 85%, Martin Painting Company 15%, and the decedent, Folks, 0% negligent and awarded $1,000,000 in actual damages (survival action - $10,000; wrongful death action - $490,000 [pecuniary] and $500,000 [non-pecuniary]). The jury also found that KPL’s act had been willful or wanton and awarded $1,000,000 in punitive damages. After reducing the plaintiffs’ actual damages by the percentage of fault attributed to Martin Painting Company and making adjustments for the wrongful death limitations, the district court entered a judgment for a total sum of $1,450,000. Both parties appeal.
When reviewing the questions raised on appeal, we are hampered because there is no written pretrial order as required by Supreme Court Rule 140(e) (1987 Kan. Ct. R. Annot. 77). We are forced by the lack of a pretrial order to glean the facts from the record or rely on the judge’s statements, which are based on his handwritten notes made at the pretrial conference.
COMPLIANCE WITH INDUSTRY (NATIONAL ELECTRICAL SAFETY CODE) STANDARDS
Plaintiffs alleged that KPL negligently failed to exercise the highest degree of care in the design, construction, and maintenance of its overhead power lines. They further alleged that even though KPL knew or should have known workers engaged in construction and painting would be forced to work near the 7,200-volt power line, KPL created an unreasonable risk of serious injury. KPL argued that there was no evidence that it breached a duty to Folks; therefore, it was entitled to a directed verdict.
When ruling on a motion for directed verdict, both the trial court and the appellate court are required to resolve all facts and inferences reasonably to. be drawn from the evidence in favor of the party against whom the ruling is sought and, where reason able minds could differ based on the evidence, the motion must be denied and the case submitted to the jury. Holley v. Allen Drilling Co., 241 Kan. 707, 710, 740 P.2d 1077 (1987).
Distributors of electricity are neither liable for occurrences which cannot be reasonably anticipated nor insurers against accidents and injuries. Murphy v. Central Kansas Electric Cooperative Ass’n, 178 Kan. 210, 214, 284 P.2d 591 (1955). However, because of the dangerous nature of their product, they are required to exercise the highest degree of care to avoid injury to others. Wilson v. Kansas Power & Light Co., 232 Kan. 506, 510-12, 657 P.2d 546 (1983) (citing Henderson v. Kansas Power & Light Co., 184 Kan. 691, 339 P.2d 702 [1959]). The degree of care required of distributors of electricity is the degree which would be used by prudent persons engaged in the industry, under like conditions and commensurate with the dangers involved and the practical operation of the plant, to guard against contingencies which can be reasonably foreseen and anticipated. Where the wires maintained by a company are designed to carry a powerful current of electricity, so that persons coming in contact with them are certain to be seriously injured or killed, the law imposes upon the company the duty of exercising the utmost or highest degree of care to prevent such injury, especially where high-tension wires are suspended over the streets of populous cities dr towns. 26 Am. Jur. 2d, Electricity, Gas, and Steam § 44, pp. 248-50.
KPL claims, even though its high-voltage line was suspended above a construction site, it was not negligent because the power line exceeded the clearance requirements developed by the Institute of Electrical and Electronic Engineers and published in The National Electric Safety Code (NESC), Table 234-1, which requires a five-foot horizontal clearance between power lines and adjacent buildings. KPL reasons that, since the NESC guidelines set the standard applicable to the design, maintenance, and operation of power lines, compliance with the guidelines precludes a finding of negligence as a matter of law. KPL’s argument fails for several reasons.
First, it is the general rule that conformity with the NESC or an industry-wide standard is not an absolute defense to negligence. While it may be evidence of due care, compliance with industry standards, or standards legislatively or administratively imposed, does not preclude a finding of negligence where a reasonable person would have taken additional precautions under the circumstances. Jones v. Hittle Service, Inc., 219 Kan. 627, 632, 549 P.2d 1383 (1976) (citing Garst v. General Motors Corporation, 207 Kan. 2, 484 P.2d 47 [1971]). Whether the company is negligent, even though it complied with the code, is usually a question to be determined by the jury under proper instructions by the court. Henderson v. Kansas Power & Light Co., 184 Kan. at 701.
Second, there was evidence that the NESC guidelines were not even applicable to Business World because the site was still being constructed. The National Electric Safety Code is supplemented by the “National Electric Safety Code Interpretations” which apply to situations not addressed by the code. Interpretation IR 59, 1974, states:
“INTERPRETATION (Oct 7, 74)
“Clearances involving building construction sites are not covered by this Code. This was the subject of a previous interpretation dated March 12, 1963 (rule 234C4, IR 98). It was pointed out that there are too many variables which may affect clearance requirements for buildings under construction. It was felt that any set of clearances which covered the worst situation would inherently penalize other situations where different construction equipment and methods were used. Clearances from completed buildings are covered in Rule 234C. Rule 232A does not apply to building sites under construction. The U.S. Labor Department (OSHA), especially 29CFR1926, as well as most states, have regulations regarding the clearances between cranes and energized power lines.”
Third, the NESC guidelines set only a minimum safety standard. The Introduction to the NESC states:
“The purpose of these rules is the practical safeguarding of persons during the installation, operation, or maintenance of electric supply and communication lines and their associated equipment. They contain minimum provisions considered necessary for the safety of employees and the public.” (Emphasis added).
Finally, plaintiffs also introduced evidence that KPL:
1. violated the provisions of Lawrence, Kansas, Ordinance No. 5284 pertaining to Underground Wiring Districts;
2. failed to warn that its two-wire overhead line had been constructed with the energized line below the neutral line; that the wire was energized;, that when energized, the line carried 7,200 volts; and that contact with the line would result in serious injury or death;
3. failed to design, construct and maintain its lines in conformity with local good practice;
4. failed to cover, guard, raise, bury, relocate, isolate, insulate, or de-energize the bare 7,200volt primary overhead line that Folks contacted;
5. failed to comply with the minimum requirements of its own work safety rules; and
6. failed to develop or implement an appropriate policy of accident prevention to assist field personnel in preventing or reducing the occurrence of long metal objects contacting bare overhead power lines, including the line contact resulting in the death of Kenneth Folks.
Accepting as true all facts which the evidence tends to prove without reweighing the evidence, and drawing all reasonable inferences against KPL, there is substantial competent evidence to have submitted the case to the jury. The trial court did not err in denying KPL’s motion for directed verdict.
FAILURE TO WARN
KPL argues that the trial court improperly allowed the jury to consider whether KPL negligently failed to warn those working at the construction site that its two-wire overhead line had been constructed with the energized high-voltage line below the neutral line and that contact with the line could result in serious injury or death.
The failure of a power company to post warning signs at particular places of danger may be a factor in determining negligence. 26 Am. Jur. 2d, Electricity, Gas, and Steam § 156, p. 369. As a matter of law, it is not unreasonable to require a power company to place warning signs when extending high-voltage lines over private property. Further, the alleged unreasonableness of an electric company in failing to post warning signs presents a question of fact and is a proper question to be submitted to the jury. Henderson v. Kansas Power & Light Co, 184 Kan. at 696-98 (citing Worley v. Kansas Electric Power Co., 138 Kan. 69, 23 P.2d 494 [1933]).
KPL and amicus curiae KADC argue that because (1) the danger of high-voltage electricity is well known in general and (2) Folks and his employer discussed the overhead line on the morning of the accident, Folks’ actual knowledge of the danger obviated any duty to warn on the part of KPL. They compare the situation of Folks to the plaintiff in Wilson v. Kansas Power & Light Co., 232 Kan. 506, where the plaintiff and his brother were laying irrigation pipe near a power line located at the edge of farm property. There, KPL’s power line was plainly visible and both brothers knew the inherent danger of the electrical power line. The Wilson court stated that normally the existence of a duty to warn is a question for the trier of fact to determine, but that “in this case, however, there [was] no evidence whatsoever that the presence of any warning signs would have prevented the accident,” 232 Kan. at 514. The Court then held that, as a matter of law, KPL had no duty to warn.
Henderson and Wilson demonstrate that there is a distinction in the duty to warn between those who maintain electric power lines in rural as opposed to urban areas. However, even though there is a different duty to warn in urban areas than there is in rural areas, the degree of care required to protect the public from danger in either situation is the highest degree which would be used by a prudent company engaged in the industry under like conditions.
Here, there was evidence that the energized high-voltage line that killed Folks had not been connected to service customers and that the accident would not have occurred if KPL had not energized the line.. In addition, both plaintiffs’ and KPL’s witnesses testified that an average person could not tell which of the two wires was energized. The evidence showed that, without any signs to warn of the danger, KPL placed its power lines in a vertical stack with the energized high-voltage wire below the neutral wire in an urban area where it knew that construction was occurring.
A question of fact was presented as to whether Folks should have known the wire was energized and, even if he knew, whether he reasonably could have assumed that the lower wire was the neutral one. The issue of KPL’s breach of a duty to warn was properly submitted and the jury was correctly instructed, under principles of comparative negligence, to consider whether Folks’ prior knowledge of the danger was a factor which contributed to his death.
ADMISSION OF PRIOR ACCIDENTS
KPL argues that the trial court erred in admitting evidence of 14 prior power line accidents. To determine this issue, it is necessary to review the procedure followed by the trial court in admitting the prior accidents, as well as the circumstances which evolved during discovery of the accident reports. During discovery, plaintiffs were able to determine that KPL maintained handwritten log books of accidents. The four log books obtained contained over 15,000 accidents. Plaintiff requested production of 309 accident reports dealing with ladders, construction accidents, or long metal objects contacting overhead wires. After it was revealed that 111 of the reports had been destroyed by KPL, plaintiffs reviewed the remainder and requested that 33 be furnished. The trial court reviewed the reports and found that the 33 reports were relevant.
At trial, KPL objected to the admission of all evidence of prior accidents. Ultimately, after reviewing all the accidents outside the hearing of the jury, the trial judge admitted 14 accident reports. These included two accidents in Lawrence involving painters whose ladders contacted a 7,200 volt power line and two similar accidents outside Lawrence. All of these accidents resulted in serious injury or death. In addition, evidence of four accidents resulting in death from overhead contact with metal pipes and antennas was admitted. Finally, six accident reports destroyed by KPL, involving antenna contact, were read into the record from the original log book. KPL does not dispute that the evidence of prior accidents was admitted to prove foreseeability.
It is the duty of electric companies to guard against contingencies which can be reasonably foreseen and anticipated, and it is not necessary that the precise injury should have been anticipated so long as the probability of injury to someone who had a right to be in the vicinity might have been reasonably anticipated. Henderson v. Kansas Power & Light Co., 184 Kan. at 696; 26 Am. Jur. 2d, Electricity, Gas, and Steam § 43, p. 252. Evidence of prior similar accidents is admissible to prove foreseeability as long as the prior accidents involve substantially similar circumstances. Powers v. Kansas Power & Light Co., 234 Kan. 89, 97-98, 671 P.2d 491 (1983). For further discussion, see Kearney v. Kansas Public Service Co., 233 Kan. 492, 497-98, 665 P.2d 757 (1983).
In a civil case, the admission of evidence of prior acts or occurrences is committed to the sound discretion of the trial court and will be overturned on appeal only upon a showing of abuse. The admission of such evidence will always carry a potential for prejudice. Where the prior accident evidence was admitted to prove foreseeability, exact similarity of prior accidents with the accident in question is not necessary as long as the prior accident was one which would have warned the defendant.
KPL and amicus curiae KADC argue that the rationale of Horn v. Chicago, R.I. and Pac. Rid. Co., 187 Kan. 423, 357 P.2d 815 (1960), which involved an accident at a railroad crossing, bars the admission into evidence of the 14 prior KPL power line accidents involving metal objects. We disagree. In Horn, the prior accident was offered to prove that the crossing was dangerous. Here, prior similar accidents were not offered to prove that the wire was dangerous, but to show notice or foreseeability of the danger. All of the accidents were similar, since each involved a long metal object contacting a KPL high-voltage line. KPL’s own literature classified the accidents into the same specific category. Since the accidents involved substantially similar circumstances, no abuse of discretion has been shown.
KPL, even though it failed to object during trial, also claims that the court improperly admitted evidence that KPL failed to give immediate notice by telegram to the Kansas Corporation Commission (KCC) of all accidents resulting in loss of life or serious personal injury, as required by K.S.A. 66-132. The chief engineer of the KCC testified that the KCC had received 27 reports from 1971 to 1984, but that there were six years during which no reports were made. When six of these accident reports were then admitted, defense counsel did not object. KPL has not demonstrated that this evidence was so prejudicial that, even though it failed to object to the admission of the evidence, it should receive a new trial.
SUBMISSION OF VIOLATION OF LAWRENCE UNDERGROUND WIRING ORDINANCE TO TURY
KPL claims, since the underground wiring ordinance did not apply to the Business World site, it was improper for the jury to determine whether it violated the ordinance. We disagree. Lawrence, Kansas, Ordinance No. 5284 provides in part:
“Underground Wiring Districts
“5-450. DEFINITIONS. Definitions of terms as used in sections 5-443 to 5-448 inclusive, shall be as follows:
“(a) Underground Wiring District - shall mean an area in the City of Lawrence, Kansas, within which poles, overhead wires and associated overhead structures are prohibited by this article.
“5-451. “REQUIRED IN NEW AREAS. The governing body of the City of Lawrence, does hereby find and determine that the public interest requires that all poles, overhead wires and associated overhead structures used in supplying electric, communication or related service to be constructed within an underground wiring district in the city be placed underground in order to promote and preserve the health, safety and general welfare of the public and to improve the appearance and the orderly development of the city. From and after June 22, 1976, it shall be unlawful, except as specifically provided herein, for any person or utility to erect, construct, use or maintain any pole, overhead wires and associated overhead structures within an underground wiring district. (Ord. 5284)
“5-452. UNDERGROUND WIRING DISTRICTS ESTABLISHED, (a) The governing body of the city further finds and determines that the public interest requires that all areas within the city, platted and unplatted, which are not developed and which do not have any electrical or communication services installed on June 22,1976, are hereby declared to be underground wiring districts.
“5-454. SPECIAL EXCEPTION. Notwithstanding any other provisions of this article, the city governing body may grant special exceptions on a permanent or temporary basis to the provisions hereof on such terms as the governing body may deem appropriate in cases of emergency or unusual circumstances to any party to erect, construct, install, maintain, use or operate poles and overhead wires and associated overhead structures within any underground wiring district. (Ord. 5284)”
“5-4A08. PENALTY. Any person or utility who shall erect, construct, place, or operate any such pole, overhead wire, or associated overhead structure within an underground wiring district in violation of this article, or who shall otherwise fail to comply with the provisions of this article shall be guilty of a misdemeanor and, upon conviction thereof, shall be punishable by a fine not to exceed five hundred dollars ($500) for each offense. (Ord. 4683, Sec. 8)”
Though KPL’s witness, the chief building inspector for the City, testified that it is the responsibility of the developer or architect to get a variance from the ordinance, there was sufficient evidence for the jury to disregard his testimony. The Business World site was an undeveloped area which had no electric service prior to the beginning of construction. The ordinance clearly makes the utility directly responsible for violations. It also provides that an approval of a site plan does not allow a utility company to violate the terms of the ordinance and allows only the city governing body to grant an exception to the ordinance. Further evidence was introduced which showed that a site plan, dated September 30, 1979, specified underground service and that when the developer applied for electrical service on February 10, 1984, the clerk checked the box marked “UG” or underground. In short, the evidence on the issue of violation of the ordinance raised a question of fact and it was not error to submit the question of a violation of the ordinance to the jury.
KPL argues, even if the evidence on the violation of the underground wiring ordinance is admissible, the jury should have been instructed to compare the fault of the City of Lawrence and the developer/architect. Prior to trial, KPL did not request that the City or the developer/architect be joined as party-defendants for the purposes of comparing their negligence as provided by K.S.A. 60-258a. The judge’s notes, made at the pretrial hearing, indicate that KPL requested that the jury compare only the negligence of Folks, his employer, and KPL. After all the evidence had been submitted to the jury and the parties were arguing about which instructions should be given, KPL, for the first time, asked to join the City and the developer/architect to compare their negligence. Under such circumstances, the judge properly found that it would be unfair at that stage of the trial to allow the defendant to add the City or the developer/architect as defendants.
AWARD FOR PAIN AND SUFFERING
In the survival action, the jury awarded Folks $10,000 for pain and suffering. KPL contends, because there was “no competent” evidence that Folks was conscious after the accident and prior to his death, the award for pain and suffering is improper.
Under Kansas law, the testimony of lay witnesses is admissible on the issue of consciousness. In Pape v. Kansas Power & Light Co., 231 Kan. 441, 448, 647 P.2d 320 (1982), the court affirmed the jury’s award of damages for pain and suffering because Pape was observed to have been breathing and audibly moaning immediately after the accident and later squeezed his wife’s hand in response to her questions. In this case, there is conflicting testimony regarding whether Folks was conscious after the accident had occurred. A police officer testified that when he arrived on the scene Folks was breathing and making incoherent noises, and appeared to be conscious. Folks’ employer testified that Folks was never conscious. The jury considered the conflicting testimony, determined that Folks was conscious, and properly awarded damages for pain and suffering.
OTHER TRIAL ERRORS
KPL complains of several other trial errors which it argues demand reversal because they denied KPL a fair trial. First, KPL contends that Instruction 13 unduly and improperly emphasized plaintiffs’ case because the judge refused to insert the word “safe” before the word “design.” The instruction read in part: “The National Electric Safety Code contains minimum requirements and guidelines for the design, construction and maintenance of power lines.” KPL ignores that the NESC itself states that its guidelines “contain minimum provisions considered necessary for the safety of employees and the public. They are not intended as a design specification or an instruction manual.” The instruction was a correct statement and conformed to the evidencé.
Second, KPL complains that the court erred in the admission of surprise evidence. Specifically, KPL contends that the court should have disallowed the testimony of Dr. Gary Baker, plaintiffs’ economist. The court, however, found that KPL had over two weeks’ notice before trial that this witness would be called; therefore, KPL could not complain it was surprised. A careful review of the record reveals that KPL received sufficient notice that the witness would testify and the trial judge did not abuse his discretion by allowing the testimony.
KPL next complains of “prejudicial comments” made by the judge during trial. These statements include: (1) two comments made when the court sustained one of KPL’s objections; (2) one comment directed at both attorneys concerning surprise evidence; and (3) allowing leading questions to be asked of some of KPL’s witnesses.
“[N]o comment or remark should be made by a judge, during the trial of an action, which may tend to excite prejudice or hostility in the minds of the jurors toward one of the party-litigants, or sympathy for the other, but a mere possibility of prejudice from a remark of the judge is not sufficient to overturn a verdict or judgment, and, where a construction can properly and reasonably be given to a remark which will render it unobjectionable, it will not be regarded as prejudicial.” Plains Transport of Kansas, Inc. v. Baldwin, 217 Kan. 2, 10, 535 P.2d 865 (1975.) (Emphasis added.)
Here, the jury was instructed that it was not to consider or draw inferences from rulings of the court upon evidentiary objections, and that verdicts were to be based entirely upon the evidence adduced at trial and the law as set forth in the instructions.
Further, Instruction No. 5 stated:
“Neither in these instructions nor in any ruling, action, or remark that I have made during the course of this trial have I intended to interpose any opinion or suggestion as to how I would resolve any of the issues of this case.”
After examining the statements and having read the transcript, we find no instances of prejudice or reversible error.
PUNITIVE DAMAGES
After the reduction of the jury’s award of actual damages by the percentage of fault attributed to Folks’ employer and adjustments for the wrongful death limitation, under the law, the plaintiffs were compensated as far as a monetary award can compensate the widow and fatherless children. The punitive damages, on the other hand, were not an award of money to compensate for the loss of Kenneth Folks, but to punish and restrain KPL and deter other providers and distributors of electricity from committing similar wrongs in the future.
In the 127-year evolution of the common law of punitive damages in Kansas, only recently have the amounts awarded caused much concern. All states except Louisiana, Massachusetts, Nebraska, and Washington allow punitive damages under the common law or by statute. Most states,-including Kansas, allow punitive damages to be awarded for compensation, punishment, deterrence of the defendant, or deterrence of others. See Ghiardi & Kircher, 1 Punitive Damages L. and Prac. § 4.16, Table 4-1 (Cum. Supp. 1987).
Punitive damages were first discussed by Chief Justice Crozier in Malone v. Murphy, 2 Kan. 250 (1864). The Malone court stated:
“There has been much discussion in the Courts, and among elementary writers upon the subject of vindictive damages, or ‘smart money’ as they are sometimes styled. Several decisions sustain the rule laid down by the court below; and Mr. Sedgwick, in his admirable work upon the measure of damages, takes the same view. Mr. Greenleaf thinks the damages should be limited to compensation only. Logically we think he is right, and were the question an open one, we should be inclined to adopt his view of the subject. But it can make no difference practically which rule is adopted in the trial of a cause. If the jury shall be confined to compensation for the injury sustained, they will be authorized to estimate injury to the feelings, mental anguish and tarnished honor; and in assessing damages for these things their own judgment can be their only guide. No standard can be fixed — no rule of compensation established. All must necessarily be left to the discretion of the jury, subject only to the power of the court to determine whether their estimate, if apparently excessive, has been influenced by passion or prejudice.” 2 Kan. at 261-62.
The right of the jury to determine the amount of punitive damages was reaffirmed in Albert Wiley v. Keokuk, 6 Kan. 94 (1870). In addition, the Wiley court expanded the awarding of punitive damages solely for compensation by recognizing that, under the common law as well as statutory law, whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy, men are often punished for aggravated misconduct or lawless conduct by way of a civil action and by the damages inflicted by way of penalty or punishment given to the party injured. The court held such an award of damages was not only good law, but was founded on sound principles and beneficial in its application, and noted that such damages often furnish the only restraint upon a bad man, who cares little for his neighbor’s character, his person, or his property. The court refused to adopt the Massachusetts, Indiana, and North Carolina limitation that, where the civil action is based on a crime, the wrongdoer should not be punished both by the criminal law and the civil law. The Wiley court concluded, “If the law [of awarding punitive damages] is wrong, let the law-making power correct it.” 6 Kan. at 106.
Today, the increase in the frequency and size of punitive damage awards has resulted in requests to legislatures or courts to change the standards for awarding punitive damages. Proposals include imposing legislative caps, holding bifurcated trials, or requiring a higher standard of proof, i.e., clear and convincing. Another option suggested is to remove wanton acts from the acts for which punitive damages can be awarded and limit punitive awards to willful conduct.
ERROR TO SUBMIT ISSUE OF KPL’S WILLFUL AND WANTON CONDUCT TO THE TURY
In Kansas, punitive damages are awarded to punish the wrongdoer for his malicious, vindictive, or willful and wanton invasion of another’s rights, with the ultimate purpose being to restrain and deter others from the commission of similar wrongs. Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, Syl. ¶ 17, 681 P.2d 1038, cert. denied 469 U.S. 965 (1984). A jury may consider an award of punitive damages if any reasonable view of the evidence would support such an award. Johnson v. Colt Industries Operating Corp., 797 F.2d 1530 (10th Cir. 1986). “To constitute wantonness, the acts complained of must show not simply lack of due care, but that the actor must be deemed to have realized the imminence of injury to others from his acts and to have refrained from taking steps to prevent the injury because indifferent to whether it occurred or not.” Cope v. Kansas Power & Light Co., 192 Kan. 755, 761, 391 P.2d 107 (1964) (quoting Frazier v. Cities Service Oil Co., 159 Kan. 655, 157 P.2d 822 [1945]). (Emphasis supplied.)
KPL states that it was error to submit the issue of punitive damages based on willful and wanton conduct to the jury because its compliance with the NESC was conclusive evidence of good faith. KPL further contends that, in addition to the “shield” of compliance with the NESC, there was no evidence that KPL had either a realization of the imminence of any danger at the site or a reckless disregard or indifference to possible consequences. KPL presented one argument to the jury in its defense — namely, that KPL had exceeded the minimum requirements of the NESC by one and one-half feet and, therefore, it was not negligent. The jury obviously rejected this position.
We note that KPL’s argument on appeal assumes compliance with the NESC. However, substantial evidence was presented at trial to show that the NESC guidelines did not even apply to construction areas specifically because of the many variables found at such sites. Further, under tort law, compliance with industry standards does not shield KPL from a finding of negligence and is not conclusive on the issue of due care. Nor does compliance with industry standards automatically preclude a finding of wanton or willful conduct. KPL’s acts and whether they were negligent, willful, or wanton were judged by looking at the particular facts and circumstances of the case.
In sum, the issue is, viewed in the light most favorable to the plaintiffs, was there evidence from which a jury could have concluded that KPL was clearly indifferent to the rights of others? See Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. at 416. Specifically, the jury considered whether KPL’s placement of a 7,200-volt power line with a 6 and Vz foot horizontal and a 24 and % foot vertical clearance from a 35-foot tall building under construction showed or should be deemed to have shown realization of and indifference to danger, where defendant conceded that it was foreseeable that the building would have to be painted, that tall ladders would have to be used, and that, when ladders were propped against the building, the 6-foot clearance from the power line would be diminished. Further, KPL placed an energized line a few feet away from a building under construction at a time when the line was not needed, in violation of a Lawrence ordinance and in violation of the interpretations of the NESC. Similar accidents with KPL’s power lines which resulted in death or serious injury had occurred in the recent past. KPL was clearly aware of the danger inherent in the placement of the line, but left it up to the Martin painters to protect themselves.
There was additional evidence from which it could be inferred that KPL was aware that it had created an unnecessary danger for its own convenience and with complete disregard for the safety of others. Under these facts, there was sufficient evidence presented to submit the issue of punitive damages to the jury.
ERROR IN TURY INSTRUCTIONS
KPL complains that instructions defining wanton and willful conduct and the factors a jury should consider in awarding punitive damages were improper under the facts of this case. The first instruction is taken directly from PIK Civ. 2d 3.02 and 3.03 and is a correct definition of acts which are willful and wanton.
Wanton conduct is defined in PIK Civ. 2d 3.02 as follows:
“An act performed with a realization of the imminence of danger and a reckless disregard or complete indifference to the probable consequences of the act is a wanton act.”
Willful conduct is defined in PIK Civ. 2d 3.03 as follows:
“An act performed with a designed purpose or intent on the part of a person to do wrong or to cause an injury to another is a wilful act.”
PIK Civ. 2d 3.02 and 3.03 are required to be given if a plaintiff is entitled to punitive damages based on such conduct. The instructions state that either willful or wanton conduct is sufficient under Kansas law for the imposition of punitive damages. For conduct to be wanton, no element of intentional wrongdoing is required.
Recently, this court has dealt with several punitive damage cases where manufacturers of products exhibited willful conduct amounting to fraud and deception of the public for private gain. See State ex rel. Stephan v. GAF Corp., 242 Kan. 152, 747 P.2d 1326 (1987); Tetuan v. A.H. Robins Co., 241 Kan. 441, 738 P.2d 1210 (1987); Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387. We upheld substantial awards for punitive damages in these cases. Other Kansas cases have upheld punitive damage awards for conduct more wanton than willful. See Ford v. Guarantee Abstract Title Co., 220 Kan. 244, 553 P.2d 254 (1976). There, we held that the reckless indifference by defendant title company amounted to wanton conduct and supported the award of punitive damages. The instruction here was a correct statement of the law regarding willful and wanton acts.
The other instruction of which KPL alleges is error followed PIK Civ. 2d 9.44 (1986 Supp.) and provided the jury with the factors it could consider when awarding punitive damages. That instruction stated:
“If you find that plaintiffs are entitled to recover, and you also find that the conduct of the defendant was wilful or wanton, then in addition to the actual damages to which you find plaintiffs entitled, you may award plaintiffs an additional amount as punitive damages in such sum as you believe will serve to punish defendant and to deter others from like conduct.
“If you do award punitive damages in this case, then in assessing the amount of such damages you may consider the following:
1. The amount of actual damages assessed on the survival claim;
2. The nature, extent and enormity of the wrong;
3. The financial condition of the party committing it;
4. The probable expenses of litigation;
5. Any mitigating circumstances tending to minimize the amount of such damages.
“You may not award punitive damages unless you award actual damages.”
KPL argues it was error to allow the jury to consider litigation expenses and the financial condition of KPL when no evidence of those factors was introduced. Initially, we note that in Brewer v. Home-Stake Production Co., 200 Kan. 96, 100, 434 P.2d 828 (1967), this court held that an instruction allowing the jury to consider litigation expenses was proper with or without evidence.
While preparing the instructions for the jury, the judge stated that he did not believe that the jury would award the plaintiffs punitive damages; therefore, he would not allow the plaintiffs to present evidence of KPL’s worth. The judge reasoned that evidence of the enormous net worth of KPL would influence the jury’s award of actual damages.
Our prior decisions do not require that a plaintiff present evidence on the net worth of a defendant to justify the size of the award for punitive damages. In assessing punitive damages, the nature, extent, and enormity of the wrong, the intent of the party committing it, and all circumstances attending the transaction are allowed to be considered by the jury. Will v. Hughes, 172 Kan. 45, 55, 238 P.2d 478 (1951). In addition, the jury may consider the amount of actual damages recovered, defendant’s financial condition, and the probable litigation expenses. Ayers v. Christiansen, 222 Kan. 225, 229, 564 P.2d 458 (1977).
We agree with KPL that, if the trial judge does not believe that the financial condition of KPL should be considered in awarding punitive damages and no evidence of the defendant’s financial condition is introduced for the jury to consider, the jury should not be instructed to consider defendant’s financial condition in awarding punitive damages. However, after reviewing the record, we do not feel the instruction is clearly erroneous, nor that, if that portion of the instruction had not been given, there is a real possibility that the jury would have returned a different verdict. State v. Houck, 240 Kan. 130, 139, 727 P.2d 460 (1986).
JURY MISCONDUCT
KPL also attacks the punitive damage award on the basis of juror misconduct. KPL has attached an affidavit of juror Marilyn Downs in which she states that she advised the other jurors that the usual legal fee would be 33%% and that the other jurors adjusted the damage award accordingly. Plaintiffs have attached affidavits from five other jurors who all state that the purpose of the damage award was to punish KPL for wanton conduct and that no specific amount of attorney fees was discussed by the jury. This conflicting evidence is insufficient to establish a basis for juror misconduct relating to the punitive damage award and KPL has not shown that its rights were substantially prejudiced.
ERROR IN NOT ORDERING A REMITTITUR FOR PUNITIVE DAMAGES
A plaintiff has no right to punitive damages except when awarded by the jury under the common law. Whether to award punitive damages and in what amount is for the jury to determine. When awarded, punitive damages are reviewed by the trial judge if requested by post-trial motion. The party assessed punitive damages at trial has the option to request a new trial, that the award be set aside, or that the trial judge grant a remittitur. The award of punitive damages will not be set aside unless the trial judge finds that the award (1) was based on passion, prejudice, or bias; (2) was based on mistake of law or fact; or (3) lacked evidentiary support.
Where a verdict is so excessive and out of proportion to the damages sustained as to shock the conscience of the court and judgment has been entered, the trial judge may tentatively affirm the judgment, provided that the plaintiff will accept a reduced judgment, or may grant a new trial. Barnes v. St. Francis Hospital & School of Nursing, 211 Kan. 315, 321, 507 P.2d 288 (1973). A party that accepts a remittitur is precluded from appealing the reduction of the award.
The party assessed punitive damages has the right to appeal the trial court’s denial of the motion for a new trial and the denial of the party’s request for a remittitur of the punitive damages. On appeal, the decision of the trial court will not be reversed unless the appellate court determines that the trial court abused its discretion by affirming an award of punitive damages (1) based on prejudice, passion, or bias; (2) based on a mistake of law or fact; or (3) which lacked evidentiary support. However, if the appellate court determines the trial court did not abuse its discretion in affirming the award of punitive damages, but the award is so excessive and out of proportion as to shock the conscience of the appellate court, the appellate court may tentatively affirm the judgment and allow the plaintiff to either accept a reduced amount or be granted a new trial on the issue of punitive damages.
KPL argues that its conduct did not warrant $1,000,000 in punitive damages and that the award is disproportionate to the actual damage award of $10,000 in the survival action. (Both parties agreed that only the survival action provided a basis for the recovery of punitive damages.) It is difficult to formulate precise rules of law to determine whether an award of punitive damages is excessive. The law establishes no fixed ratio between actual and exemplary damages by which to determine excessiveness. Since there is no fixed ratio to determine what is reasonable, it is difficult to state a rule with precision.
Here, KPL’s defense was that it had complied with the NESC and should be absolved of responsibility. This argument did not convince the jury that KPL had used the highest degree of care under the circumstances. It is also clear from the juror affidavits that, when awarding punitive damages, the jurors considered KPL’s lack of public safety procedures in comparison to the extensive safety measures taken for KPL employees.
An award of punitive damages must be reviewed in the light of the actual damages sustained, the actual damage award, the circumstances of the case (the nature, extent, and enormity of the wrong), the intent of the party committing it, the relative positions of the plaintiff and the defendant, the defendant’s financial worth and the plaintiff s probable litigation expenses. See Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. at 420. When reviewing punitive damages, any mitigating circumstances which may bear upon any of the above factors may be considered to reduce such damages. Will v. Hughes, 172 Kan. at 55. See Ayers v. Christiansen, 222 Kan. 225.
As noted earlier, an award of punitive damages serves the twin purposes of punishment and deterrence. Punitive damages are not awarded because of any special merit in the injured party’s case. Therefore, a punitive damage award which is more than necessary to punish or deter, or which inflicts a penalty or burden on a wrongdoer disproportionate to the wrongful act, is excessive and contrary to the policy and purpose of awarding punitive damages. The circumstances of each case determine whether the award of punitive damages is excessive and contrary to public policy.
In Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 386, the defendant ignored scientific and medical evidence that use of its product caused serious damage. Ortho continued to use the product, played down its harm, and gave physicians no warning of the dangers involved. The jury awarded the plaintiff $2,000,000 for actual damages and $2,750,000 in punitive damages. The Wooderson court reviewed the award of punitive damages and determined that, under the facts, the amount of punitive damages awarded by the jury did not shock its conscience.
This court also approved an award of $1,700,000 in compensatory damages and $7,500,000 in punitive damages against the A.H. Robins Co., the manufacturer of the intrauterine contraceptive device known as the “Daikon Shield.” Tetuan v. A.H. Robins Co., 241 Kan. 441. In Tetuan, there was overwhelming evidence that Robins knew the Daikon Shield was not only ineffective, but unsafe. Despite this knowledge, the company continued to manufacture, promote, and sell the device. Even after being sued by the injured users of the device, Robins consistently denied and concealed the product’s dangers by fabricating test results and destroying hundreds of documents which would have revealed that Robins was well aware of the dangers.
In Will v. Hughes, 172 Kan. 45, the lessor’s agent denied the lessee the right to enter the leased ground. The agent then cut and sold the lessee’s wheat and gave the money to lessor. The Will court, after assessing the extent and enormity of the wrong and insuring that the policy behind the punitive damage award was not defeated, reduced the punitive damage award of $500 to $250.
In Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, the purchaser of real estate paid the purchase price at closing to a realtor-escrow holder, who transferred the fund to a title insurance company and its agent with instructions that the purchasers were to receive title before the funds could be disbursed. Contrary to the instructions, the title company disbursed the funds prior to the receipt of title. Because the purchasers were unable to receive a clear title, they requested that the title company return the escrow funds. The title company refused and the purchaser filed an action against the title company and its agents for the purchase price and for punitive damages for wrongfully withholding the purchaser’s money. The Ford court found the jury award of punitive damages excessive and reduced it.
In Will and Ford, the punitive damage award was more than necessary to punish or deter, and inflicted a penalty or burden disproportionate to the wrongful act. By contrasting the wrongfulness of the acts of the defendants in Will and Ford with those in Ortho Pharmaceutical Corp. and A.H. Robins, we may ascertain why the large punitive damage awards against the latter were approved by the appellate court.
Both Ortho and A. H. Robins knowingly embarked upon a course of conduct dangerous to the public, motivated by private gain. The acts of KPL in this case do not rise to the level of wrongfulness of the acts of the drug manufacturers in the above cases. Here, the $1,000,000 punitive damage award against KPL is more than necessary to punish or deter and amounts to a penalty or burden on KPL disproportionate to the wrongful act. Considering all the facts and circumstances that led to the death of Folks, it is our collective belief, as the appellate court, that the award of $1,000,000 punitive damages is excessive and contrary to public policy and shocks our judicial conscience. Accordingly, the judgment of $1,000,000 punitive damages against KPL is reduced to $500,000 upon the condition that the plaintiffs accept the reduced amount of punitive damages in writing within ten days after this decision becomes final by filing their acceptance with the clerk of the district court. If the plaintiffs fail to accept the remittitur within the time allotted, they are granted a new trial on the issue of punitive damages against the defendant.
CROSS-APPEAL
Plaintiffs cross-appeal the trial court’s reduction of the jury award of actual damages by the 15% of fault attributed to the decedent’s employer. Plaintiffs claim, since the jury found that KPL’s conduct was wanton, KPL is jointly and severally liable for all actual and punitive damages awarded. This position is contrary to our present law. The trial court was correct in reducing the amount of actual damages by the percentage of fault attributable to Folks’ employer. K.S.A. 1987 Supp. 60-258a.
The judgment of the district court is affirmed as modified. | [
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The opinion of the court was delivered by
Allegrucci, J.:
This is an appeal by the State of Kansas on a question reserved pursuant to the provisions of K.S.A. 1987 Supp. 22-3602(b)(3). The State questions the court’s granting the defendant probation pursuant to K.S.A. 1987 Supp. 21-4606a.
The facts in the case are not disputed.
The defendant, Victoria Knabe, pled guilty to one count of theft (K.S.A. 1987 Supp. 21-3701) and one count of forgery (K.S.A. 1987 Supp. 21-3710). Both crimes are class E felonies. The district court sentenced the defendant to a term of imprisonment of one to two years on each count, designating the sentences to run consecutively. However, the district court found that the presumptive sentence provisions of K.S.A. 1987 Supp. 21-4606a were applicable, and placed defendant on probation for a period of five years. Among the conditions imposed upon defendant in return for the grant of probation, the district court required defendant to pay restitution in the sum of $100,417.18. The restitution was to be paid to the clerk of the district court “at a rate not less than $500 per month commencing on the first day of October, 1987, and continuing on the first day of each month thereafter until paid in full.”
The State contends that a defendant convicted of more than one class E felony is not entitled to presumptive probation under K.S.A. 1987 Supp. 21-4606a.
K.S.A. 1987 Supp. 21-4606a provides:
“Presumptive sentence for certain class E felons. The presumptive sentence for a person who has never before been convicted of a felony, but has now been convicted of a class E felony shall be probation or assignment to a community correctional services program on terms the court determines, unless the conviction is of a crime specified in article 34, 35 or 36 of chapter 21 of Kansas Statutes Annotated. In determining whether to impose the presumptive sentence, the court shall consider any prior record of the person’s having been convicted or having been adjudicated to have committed, while a juvenile, an offense which would constitute a felony if committed by an adult.”
The State argues that, because the phrase “has now been convicted of a class E felony” includes the singular “felony,” it cannot apply in the present case where a defendant has been convicted of two felonies. The State’s argument is not persuasive. Even applying the statutes separately to each conviction, the requirements for presumptive probation under K.S.A. 1987 Supp. 21-4606a are satisfied. The record fails to reveal that defendant has ever been convicted of a felony. Neither theft nor forgery is “a crime specified in article 34, 35 or 36 of chapter 21 of Kansas Statutes Annotated.” Finally, there is no prior record of defendant’s “having been convicted or having been adjudicated to have committed, while a juvenile, an offense which would constitute a felony if committed by an adult.”
Pursuant to the State’s interpretation of K.S.A. 1987 Supp. 21-4606a, the legislature did not intend the presumptive sentence statute to apply where a defendant has been convicted of more than one class E felony. However, we must keep in mind that criminal statutes must be construed in favor of the person to be subjected to their operation. State v. Magness, 240 Kan. 719, 732 P.2d 747 (1987); State v. Keeley, 236 Kan. 555, 694 P.2d 422 (1985). As noted previously, the statute can also be reasonably interpreted to simultaneously apply to separate and contemporaneous class E felony convictions. We adopted a similar rationale in sentencing habitual offenders. In State v. Wilson, 230 Kan. 287, 634 P.2d 1078 (1981), we affirmed the Court of Appeals’ holding that, in order to enhance a defendant’s sentence under K.S.A. 21-4504(2), the conviction of the prior offense must occur before the subsequent offense is committed. In State v. Osoba, 234 Kan. 443, 672 P.2d 1098 (1983), we extended the sequential relationship applied in Wilson to the habitual criminal provisions of K.S.A. 8-1567(d). In Osoba, Chief Justice Schroeder, speaking for the court, said:
“The majority rule in imposing increased sentences on habitual offenders, followed in the interpretation of K.S.A. 1982 Supp. 21-4504, is that ‘for enhancement of sentence of a defendant as a second offender, the previous conviction must have occurred prior to commission of the principal offense.’ State v. Wilson, 6 Kan. App. 2d 302, 305, 627 P.2d 1185, affd 230 Kan. 287, 634 P.2d 1078 (1981). See also State v. Felton, 194 Kan. 501, 506, 399 P.2d 817 (1965); Annot., 24 A.L.R.2d 1247. The issue has apparently not arisen under self-contained specific habitual criminal statutes, such as K.S.A. 8-1567.
“From examination of statutory language and case law in Kansas as well as other jurisdictions, we conclude the sequential relation requirement applied to K.S.A. 1982 Supp. 21-4504 should, by analogy, be extended to K.S.A. 8-1567.” 234 Kan. at 443-45.
The State responds by arguing that, unless its interpretation is adopted, “if one is sentenced for convictions of 40 class E felonies, then presumptive probation would apply.” However, it is important to note that the presumption in favor of probation under K.S.A. 1987 Supp. 21-4606a may be overcome by the considerations cited in K.S.A. 1987 Supp. 21-4601 and K.S.A. 21-4606. State v. Linsin, 10 Kan. App. 2d 681, 684, 709 P.2d 988 (1985). Thus, a trial court faced with a defendant convicted of 40 class E felonies would be able to rebut the presumption in favor of probation of K.S.A. 1987 Supp. 21-4606a, by a consideration, among other things, of “[t]he defendant’s history of prior criminal activity,” and “[t]he extent of the harm caused by the defendant’s criminal conduct.” K.S.A. 21-4606(2)(a) and (b).
We interpret K.S.A. 1987 Supp. 21-4606a to require that a person who is convicted of more than one class E felony, but who has not been convicted of a felony prior to the commission of those class E felonies, and who meets the other requirements of the statute, is entitled to a presumption in favor of probation or assignment to a community correctional services program. However, while the presumptive statute applies in such situations, the court may consider the extent of the defendant’s criminal conduct in determining whether the presumption in favor of probation has been overcome. In the present case, although the district court found that the defendant’s actions were serious and intentional, it found no reason not to impose the presumptive sentence of probation. The district court made it clear that the defendant would not have been granted probation absent the presumptive probation statute. The district court informed the defendant:
“You committed a serious crime over a long period of time knowing precisely what you were doing. This was a conscious act on your part extending over many months and the Court feels as Mr. Watson has indicated, that this type of offense really deserves, in my opinion, more than probation, but I am certainly willing to follow the law, because I am sworn to do that.
“The legislature has stated that you are entitled to probation, and if they feel that way, then probation you shall have.”
However, after determining that the presumptive probation statute applied, the district court stated that “[t]he legislature has spoken, in its wisdom, and I find nothing in this record which would overcome that.” We hold the district court did not err in determining that K.S.A. 1987 Supp. 21-4606a applied and, after finding nothing in the record that would overcome the statutory presumption in favor of the defendant, granting probation.
The appeal of the State is denied. | [
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The opinion of the court was delivered by
Lockett, J.:
A direct appeal by the prosecution upon a question reserved (K.S.A. 1987 Supp. 22-3602[b][3]) asks whether the statutory justification for the use of deadly force in self-defense provided by K.S.A. 21-3211 excuses a homicide committed by a battered wife where there is no evidence of a deadly threat or imminent danger contemporaneous with the killing. An amicus curiae brief has been filed by the Kansas County and District Attorney Association.
Peggy Stewart fatally shot her husband, Mike Stewart, while he was sleeping. She was charged with murder in the first degree, K.S.A. 21-3401. Defendant pled not guilty, contending that she shot her husband in self-defense. Expert evidence showed that Peggy Stewart suffered from the battered woman syndrome. Based upon the battered woman syndrome, the trial judge instructed the jury on self-defense. The jury found Peggy Stewart not guilty.
The State stipulates that Stewart “suffered considerable abuse at the hands of her husband,” but contends that the trial court erred in giving a self-defense instruction since Peggy Stewart was in no imminent danger when she shot her sleeping husband. We agree that under the facts of this case the giving of the self-defense instruction was erroneous. We further hold that the trial judge’s self-defense instruction improperly allowed the jury to determine the reasonableness of defendant’s belief that she was in imminent danger from her individual subjective viewpoint rather than the viewpoint of a reasonable person in her circumstances.
Following an annulment from her first husband and two subsequent divorces in which she was the petitioner, Peggy Stewart married Mike Stewart in 1974. Evidence at trial disclosed a long history of abuse by Mike against Peggy and her two daughters from one of her prior marriages. Laura, one of Peggy’s daughters, testified that early in the marriage Mike hit and kicked Peggy, and that after the first year of the marriage Peggy exhibited signs of severe psychological problems. Subsequently, Peggy was hospitalized and diagnosed as having symptoms of paranoid schizophrenia; she responded to treatment and was soon re leased. It appeared to Laura, however, that Mike was encouraging Peggy to take more than her prescribed dosage of medication.
In 1977, two social workers informed Peggy that they had received reports that Mike was taking indecent liberties with her daughters. Because the social workers did not want Mike to be left alone with the girls, Peggy quit her job. In 1978, Mike began to taunt Peggy by stating that Carla, her 12-year-old daughter, was “more of a wife” to him than Peggy.
Later, Carla was placed in a detention center, and Mike forbade Peggy and Laura to visit her. When Mike finally allowed Carla to return home in the middle of summer, he forced her to sleep in an un-air conditioned room with the windows nailed shut, to wear a heavy flannel nightgown, and to cover herself with heavy blankets. Mike would then wake Carla at 5:30 a.m. and force her to do all the housework. Peggy and Laura were not allowed to help Carla or speak to her.
When Peggy confronted Mike and demanded that the situation cease, Mike responded by holding a shotgun to Peggy’s head and threatening to kill her. Mike once kicked Peggy so violently in the chest and ribs that she required hospitalization. Finally, when Mike ordered Peggy to kill and bury Carla, she filed for divorce. Peggy’s attorney in the divorce action testified in the murder trial that Peggy was afraid for both her and her children’s lives.
One night, in a fit of anger, Mike threw Carla out of the house. Carla, who was not yet in her teens, was forced out of the home with no money, no coat, and no place to go. When the family heard that Carla was in Colorado, Mike refused to allow Peggy to contact or even talk about Carla.
Mike’s intimidation of Peggy continued to escalate. One morning, Laura found her mother hiding on the school bus, terrified and begging the driver to take her to a neighbor’s home. That Christmas, Mike threw the turkey dinner to the floor, chased Peggy outside, grabbed her by the hair, rubbed her face in the dirt, and then kicked and beat her.
After Laura moved away, Peggy’s life became even more isolated. Once, when Peggy was working at a cafe, Mike came in and ran all the customers off with a gun because he wanted Peggy to go home and have sex with him right that minute. He abused both drugs and alcohol, and amused himself by terrifying Peggy, once waking her from a sound sleep by beating her with a baseball bat. He shot one of Peggy’s pet cats, and then held the gun against her head and threatened to pull the trigger. Peggy told friends that Mike would hold a shotgun to her head and threaten to blow it off, and indicated that one day he would probably do it.
In May 1986, Peggy left Mike and ran away to Laura’s home in Oklahoma. It was the first time Peggy had left Mike without telling him. Because Peggy was suicidal, Laura had her admitted to a hospital. There, she was diagnosed as having toxic psychosis as a result of an overdose of her medication. On May 30, 1986, Mike called to say he was coming to get her. Peggy agreed to return to Kansas. Peggy told a nurse she felt like she wanted to shoot her husband. At trial, she testified that she decided to return with Mike because she was not able to get the medical help she needed in Oklahoma.
When Mike arrived at the hospital, he told the staff that he “needed his housekeeper.” The hospital released Peggy to Mike’s care, and he immediately drove her back to Kansas. Mike told Peggy that all her problems were in her head and he would be the one to tell her what was good for her, not the doctors. Peggy testified that Mike threatened to kill her if she ever ran away again. As soon as they arrived at the house, Mike forced Peggy into the house and forced her to have oral sex several times.
The next morning, Peggy discovered a loaded .357 magnum. She testified she was afraid of the gun. She hid the gun under the mattress of the bed in a spare room. Later that morning, as she cleaned house, Mike kept making remarks that she should not bother because she would not be there long, or that she should not bother with her things because she could not take them with her. She testified she was afraid Mike was going to kill her.
Mike’s parents visited Mike and Peggy that afternoon. Mike’s father testified that Peggy and Mike were affectionate with each other during the visit. Later, after Mike’s parents had left, Mike forced Peggy to perform oral sex. After watching television, Mike and Peggy went to bed at 8:00 p.m. As Mike slept, Peggy thought about suicide and heard voices in her head repeating over and over, “kill or be killed.” At this time, there were two vehicles in the driveway and Peggy had access to the car keys. About 10:00 p.m., Peggy went to the spare bedroom and removed the gun from under the mattress, walked back to the bedroom, and killed her husband while he slept. She then ran to the home of a neighbor, who called the police.
When the police questioned Peggy regarding the events leading up to the shooting, Peggy stated that things had not gone quite right that day, and that when she got the chance she hid the gun under the mattress. She stated that she shot Mike to “get this over with, this misery and this torment.” When asked why she got the gun out, Peggy stated to the police:
“I’m not sure exactly what . . . led up to it . . . and my head started playing games with me and I got to thinking about things and I said I didn’t want to be by myself again. ... I got the gun out because there had been remarks made about me being out there alone. It was as if Mike was going to do something again like had been done before. He had gotten me down here from McPherson one time and he went and told them that I had done something and he had me put out of the house and was taking everything I had. And it was like he was going to pull the same thing over again.”
Two expert witnesses testified during the trial. The expert for the defense, psychologist Marilyn Hutchinson, diagnosed Peggy as suffering from “battered woman syndrome,” or post-traumatic stress syndrome. Dr. Hutchinson testified that Mike was preparing to escalate the violence in retaliation for Peggy’s running away. She testified that loaded guns, veiled threats, and increased sexual demands are indicators of the escalation of the cycle. Dr. Hutchinson believed Peggy had a repressed knowledge that she was in a “really grave lethal situation.”
The State’s expert, psychiatrist Herbert Modlin, neither subscribed to a belief in the battered woman syndrome nor to a theory of learned helplessness as an explanation for why women do not leave an abusive relationship. Dr. Modlin testified that abuse such as repeated forced oral sex would not be trauma sufficient to trigger a post-traumatic stress disorder. He also believed Peggy was erroneously diagnosed as suffering from toxic psychosis. He stated that Peggy was unable to escape the abuse because she suffered from schizophrenia, rather than the battered woman syndrome.
At defense counsel’s request, the trial judge gave an instruction on self-defense to the jury. The jury found Peggy not guilty.
The first issue is whether we have jurisdiction to hear this appeal. K.S.A. 1987 Supp. 22-3602(b) provides:
“Appeals to the supreme court may be taken by the prosecution from cases before a 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; or
“(4) upon an order granting a new trial in any case involving a class A or B felony.”
Although the State may not appeal an acquittal, it may reserve questions for appeal. State v. Martin, 232 Kan. 778, 779, 658 P.2d 1024 (1983). We will not entertain an appeal by the prosecution merely to determine whether the trial court committed error. State v. Lamkin, 229 Kan. 104, Syl. ¶ 2, 621 P.2d 995 (1981). The appeal by the prosecution must raise a question of statewide interest, the answer to which is essential to the just administration of criminal law. State v. Martin, 232 Kan. at 780.
The question reserved is whether the trial judge erred in instructing on self-defense when there was no imminent threat to the defendant and no evidence of any argument or altercation between the defendant and the victim contemporaneous with the killing. We find this question and the related question of the extent to which evidence of the battered woman syndrome will be allowed to expand the statutory justification for the use of deadly force in self-defense are questions of statewide importance.
The State claims that under the facts the instruction should not have been given because there was no lethal threat to defendant contemporaneous with the killing. The State points out that Peggy’s annulment and divorces from former husbands, and her filing for divorce after leaving Mike, proved that Peggy knew there were non-lethal methods by which she could extricate herself from the abusive relationship.
Under the common law, the excuse for killing in self-defense is founded upon necessity, be it real or apparent. 40 Am. Jur. 2d, Homicide § 151, p. 439. Early Kansas cases held that killing in self-defense was justifiable when the defendant had reasonable grounds to believe that an aggressor (1) had a design to take the defendant’s life, (2) attempted to execute the design or was in an apparent situation to do so, and (3) induced in the defendant a reasonable belief that he intended to do so immediately. State v. Horne, 9 Kan. *119, *129 (1872), overruled on other grounds 15 Kan. 547, 554 (1875).
In State v. Rose, 30 Kan. 501, 1 Pac. 817 (1883), we approved an instruction on self-defense which stated in part: “[B]efore a person can take the life of another, it must reasonably appear that his own life must have been in imminent danger, or that he was in imminent danger of some great bodily injury from the hands of the person killed. No one can attack and kill another because he may fear injury at some future time.” 30 Kan. at 503. The perceived imminent danger had to occur in the present time, specifically during the time in which the defendant and the deceased were engaged in their final conflict. 30 Kan. at 506.
These common-law principles were codified in K.S.A. 21-3211, which provides:
“A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force.”
The traditional concept of self-defense has posited one-time conflicts between persons of somewhat equal size and strength. When the defendant claiming self-defense is a victim of long-term domestic violence, such as a battered spouse, such traditional concepts may not apply. Because of the prior history of abuse, and the difference in strength and size between the abused and the abuser, the accused in such cases may choose to defend during a momentary lull in the abuse, rather than during a conflict. See Comment, Criminal Law: The Kansas Approach to the Battered Woman s Use of Self-Defense [State v. Hundley, 236 Kan. 461, 693 P.2d 475 (1985)], 25 Washburn L. J. 174 (1985). However, in order to warrant the giving of a self-defense instruction, the facts of the case must still show that the spouse was in imminent danger close to the time of the killing.
A person is justified in using force against an aggressor when it appears to that person and he or she reasonably believes such force to be necessary. A reasonable belief implies both an honest belief and the existence of facts which would persuade a reasonable person to that belief. K.S.A. 21-3211; State v. Childers, 222 Kan. 32, 48, 563 P.2d 999 (1977). A self-defense instruction must be given if there is any evidence to support a claim of self-defense, even if that evidence consists solely of the defendant’s testimony. State v. Hill, 242 Kan. 68, 78, 744 P.2d 1228 (1987).
Where self-defense is asserted, evidence of the deceased’s long-term cruelty and violence towards the defendant is admissible. State v. Hundley, 236 Kan. 461, 464, 693 P.2d 475 (1985); State v. Gray, 179 Kan. 133, 292 P.2d 698 (1956). In cases involving battered spouses, expert evidence of the battered woman syndrome is relevant to a determination of the reasonableness of the defendant’s perception of danger. State v. Hodges, 239 Kan. 63, 716 P.2d 563 (1986). Other courts which have allowed such evidence to be introduced include those in Florida, Georgia, Illinois, Maine, New Jersey, New York, Pennsylvania, Washington, and Wisconsin. See Johann & Osanka, “I Didn’t Mean to Kill Him!,” 14 Barrister 19, 20 (Fall 1987). However, no jurisdictions have held that the existence of the battered woman syndrome in and of itself operates as a defense to murder.
In order to instruct a jury on self-defense, there must be some showing of an imminent threat or a confrontational circumstance involving an overt act by an aggressor. There is no exception to this requirement where the defendant has suffered long-term domestic abuse and the victim is the abuser. In such cases, the issue is not whether the defendant believes homicide is the solution to past or future problems with the batterer, but rather whether circumstances surrounding the killing were sufficient to create a reasonable belief in the defendant that the use of deadly force was necessary.
In three recent Kansas cases where battered women shot their husbands, the women were clearly threatened in the moments prior to the shootings. State v. Hundley, 236 Kan. 461, involved a severely abused wife, Betty Hundley, who shot her husband, Carl, when he threatened her and reached for a beer bottle. Several weeks prior to the shooting, Betty had moved to a motel. Carl continued to harass her and threaten her life. On the day of the shooting, Carl threatened to kill her. That night he forcibly broke into Betty’s motél room, beat and choked her, painfully shaved her pubic hair, and forced her to have intercourse with him. Thereafter, he pounded a beer bottle on the night stand and demanded that Betty get him some cigarettes. Betty testified that he had attacked her with beer bottles before. She pulled a gun from her purse and demanded that Carl leave. When Carl saw the gun he stated: “You are dead, bitch, now.” Betty fired the gun and killed Carl.
In State v. Osbey, 238 Kan. 280, 710 P.2d 676 (1985), Osbey was convicted of first-degree murder of her husband. On the day of the shooting, the husband had a gun and had communicated threats to kill Osbey both to her and others. He had shown the gun to a friend of Osbey’s who warned Osbey. After an argument, when the husband was moving out, Osbey threw his chair towards his van. Osbey’s husband said, “I’m sick of this shit,” picked up some record albums from inside the van, and started towards the house. Osbey ran inside, loaded a gun, and told her husband to stay back because she did not want to hurt him. Her husband said he did not want to hurt her, either, and reached behind the albums he was carrying. Fearing he was reaching for his gun, Osbey shot him.
In State v. Hodges, 239 Kan. 63, 716 P.2d 563 (1986), on the night of the shooting, the husband attacked Hodges and beat her head against a doorjamb twenty times. He then said he was going to kill her. Hodges was then kicked and beaten before making her way into another room. When her husband said, “God damn you. Get in here now!” she grabbed a gun, ran to the doorway, and shot him.
On appeal, none of these cases raised the issue of the propriety of the self-defense instruction. Each case involved a threat of death to the wife and a violent confrontation between husband and wife, contemporaneous with the shooting. Here, however, there is an absence of imminent danger to defendant: Peggy told a nurse at the Oklahoma hospital of her desire to kill Mike. She later voluntarily agreed to return home with Mike when he telephoned her. She stated that after leaving the hospital Mike threatened to kill her if she left him again. Peggy showed no inclination to leave. In fact, immediately after the shooting, Peggy told the police that she was upset because she thought Mike would leave her. Prior to the shooting, Peggy hid the loaded gun. The cars were in the driveway and Peggy had access to the car keys. After being abused, Peggy went to bed with Mike at 8 p.m. Peggy lay there for two hours, then retrieved the gun from where she had hidden it and shot Mike while he slept.
Under these facts, the giving of the self-defense instruction was erroneous. Under such circumstances, a battered woman cannot reasonably fear imminent life-threatening danger from her sleeping spouse. We note that other courts have held that the sole fact that the victim was asleep does not preclude a self-defense instruction. In State v. Norman, 89 N.C. App. 384, 366 S.E.2d 586 (1988), cited by defendant, the defendant’s evidence disclosed a long history of abuse. Each time defendant attempted to escape, her husband found and beat her. On the day of the shooting, the husband beat defendant continually throughout the day, and threatened either to cut her throat, kill her, or cut off her breast. In the afternoon, defendant shot her husband while he napped. The North Carolina Court of Appeals held it was reversible error to fail to instruct on self-defense. The court found that, although decedent was napping at the time defendant shot him, defendant’s unlawful act was closely related in time to an assault and threat of death by decedent against defendant and that the decedent’s nap was “but a momentary hiatus in a continuous reign of terror.” 89 N.C. App. at 394.
There is no doubt that the North Carolina court determined that the sleeping husband was an evil man who deserved the justice he received from his battered wife. Here, similar comparable and compelling facts exist. Rut, as one court has stated: “To permit capital punishment to be imposed upon the subjective conclusion of the [abused] individual that prior acts and conduct of the deceased justified the killing would amount to a leap into the abyss of anarchy.” Jahnke v. State, 682 P.2d 991, 997 (Wyo. 1984). Finally, our legislature has not provided for capital punishment for even the most heinous crimes. We must, therefore, hold that when a battered woman kills her sleeping spouse when there is no imminent danger, the killing is not reasonably necessary and a self-defense instruction may not be given. To hold otherwise in this case would in effect allow the execution of the abuser for past or future acts and conduct.
One additional issue must be addressed. In its amicus curiae brief, the Kansas County and District Attorney Association contends the instruction given by the trial court improperly modified the law of self-defense to be more generous to one suffering from the battered woman syndrome than to any other defendant relying on self-defense. We agree and believe it is necessary to clarify certain portions of our opinion in State v. Hodges, 239 Kan. 63.
Here, the trial judge gave the instruction approved in State v. Simon, 231 Kan. 572, 575, 646 P.2d 1119 (1982), stating:
“The defendant has claimed her conduct was justified as self-defense.
“A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force. Such justification requires both a belief on the part of the defendant and the existence of facts that would persuade a reasonable person to that belief.”
The trial judge then added the following::
“You must determine, from the viewpoint of the defendant’s mental state, whether the defendant’s belief in the need to defend herself was reasonable in light of her subjective impressions and the facts and circumstances known to her.”
This addition was apparently encouraged by the following language in State v. Hodges, 239 Kan. 63, Syl. ¶ 4:
“Where the battered woman syndrome is an issue in the case, the standard for reasonableness concerning an accused’s belief in asserting self-defense is not an objective, but a subjective standard. The jury must determine, from the viewpoint of defendant’s mental state, whether defendant’s belief in the need to defend herself was reasonable.”
The statement that the reasonableness of defendant’s belief in asserting self-defense should be measured from the defendant’s own individual subjective viewpoint conflicts with prior law. Our test for self-defense is a two-pronged one. We first use a subjective standard to determine whether the defendant sincerely and honestly believed it necessary to kill in order to defend. We then use an objective standard to determine whether defendant’s belief was reasonable — specifically, whether a reasonable person in defendant’s circumstances would have perceived self-defense as necessary. See State v. Simon, 231 Kan. at 573-74. In State v. Hundley, 236 Kan. at 467, we stated that, in cases involving battered spouses, “[t]he objective test is how a reasonably prudent battered wife would perceive [the aggressor’s] demeanor.”
Hundley makes clear that it was error for the trial court to instruct the jury to employ solely a subjective test in determining the reasonableness of defendant’s actions. Insofar as the above-quoted language in State v. Hodges can be read to sanction a subjective test, this language is disapproved.
The appeal is sustained.
Prager, C.J., dissenting. | [
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The opinion of the court was delivered by
Herd, J.:
This is a medical malpractice action brought by Jessica Bacon, a minor, and Charles and Cristine Bacon, her parents, against Mercy Hospital of Ft. Scott, Dr. Thomas Pirotte, and Dr. Colette Fleming. A claim against Dr. Gary Grimaldi was dismissed and an action against Newman-Young Clinic under the doctrine of respondeat superior was settled and dismissed with prejudice. The Bacons appeal from the trial court’s order granting summary judgment to defendants.
The facts reveal that in 1980 Cristine Bacon was in her second pregnancy. It was uneventful until the last minutes before delivery. Mrs. Bacon’s doctor was Dr. Thomas Pirotte, a family practitioner with the Newman-Young Clinic, P.A. On November 11, 1980, Dr. Pirotte informed Mrs. Bacon there were no problems with her pregnancy and the child could be born at any time. Mrs. Bacon went into labor that night. She was taken to the labor room shortly after she was admitted to Mercy Hospital of Ft. Scott. Labor proceeded normally until 3:50 a.m. At that time, the fetal heart monitor began to register sudden, severe bradycardia, a slowing of the heartbeat. From 3:50 a.m. to 4:05 a.m. the monitor gave no tracing in which a discernible pattern could be read, probably because of the movement of the baby’s heart away from the Doppler aim of ultrasound. It was later found the umbilical cord had wrapped around the baby’s neck twice. The cord compression, which caused an autonomic nervous system mediated deceleration, probably accounted for the bradycardia.
The bradycardia was promptly recognized and Dr. Pirotte was called in a timely fashion. Dr. Pirotte appropriately ruptured the membranes and correctly connected an internal monitor so that at 4:05 the heart pattern could again be correctly ascertained. He moved the patient to the delivery room and called Dr. Grimaldi, an obstetrician. The baby, Jessica Bacon, was delivered at 4:25 a.m., by Dr. Grimaldi. She was not breathing, was markedly cyanotic, and had a heartbeat of less than 100 beats per minute.
Dr. Grimaldi suctioned the baby, clamped and cut the umbilical cord, and brought her to Dr. Pirotte, who immediately placed her on a warming pan, passed a laryngoscope through her mouth, inserted an endotracheal tube, and put a ventilating bag on the tube in preparation for resuscitation efforts. The Bacons agree that all care provided by the appellees was reasonable up to that point, except the Bacons’ witness, Dr. Wood, a pediatrician, testified a pediatrician should have been called at the same time as Dr. Grimaldi, the obstetrician.
Dr. Pirotte found severe bronchial and lung tissue resistance to his attempts to give the baby air from the bag. Dr. Pirotte testified this was not because the bag was defective, but because of the extraordinary resistance of Jessica’s lungs. He had no explanation for why the resistance was so strong, but said that, although rare, it had been known to happen before. He immediately and appropriately switched procedures to the mouth-to-tube method, in which he put his mouth to the endotracheal tube fitting and breathed through the tube for the baby. An assistant held an oxygen tube near his mouth so that as he took a breath, his oxygen intake was enriched and transferred to Jessica. A staff member administered cardiac massage to Jessica at the same time. Between breaths, Dr. Pirotte asked that Dr. Fleming, a pediatrician, be called in.
Although she was not on call, Dr. Fleming arrived at 4:40 a.m., 15 minutes after Jessica’s birth. At this point there is conflict in the testimony. Dr. Pirotte testified Jessica began to breathe on her own after about ten minutes, and resuscitation efforts ceased as her heartbeat and color improved. Dr. Fleming testified Jessica was taking some “gasping respirations” when she arrived, but she had been put back on the ventilating bag. When she took over the “bagging,” she noted extreme lung resistance, but was able to continue resuscitation with the bag. She continued bagging for about fifteen minutes. She explained bagging must continue even after a baby begins to breathe spontaneously, until it is certain the danger is over. The endotracheal tube was not removed until 5:45 a.m., so the bag could quickly be reattached if necessary.
Dr. Fleming transferred Jessica, still in the warming tray, to the nursery after the respiratory emergency was over. Jessica’s first recorded temperature was only 94 degrees. Dr. Fleming’s notes say Jessica “was difficult to warm (temporary difficulty with machine).” Dr. Fleming testified, however, that she found no defects in the machine and continued to use it later. She said the note was made to herself in order to check why Jessica was slow to warm. She and Dr. Pirotte, a big man, later concluded the initial difficulty had been caused by Dr. Pirotte’s body blocking some of the rays in his successful efforts to resuscitate Jessica. Both testified such blockage could be difficult to prevent in that resuscitation was of first priority. Dr. Fleming added a light to Jessica’s side to increase the temperature when she arrived. She recorded that Jessica had become pink with regular spontaneous respiration at one-half to three-fourths hours of age. By the age of two hours, Jessica’s temperature had reached 97 degrees.
The evidence indicates Jessica was suffering hypoxia or even asphyxia for at least 20 to 35 minutes before birth. The Bacons attribute no fault to this period of deprivation. After birth, Jessica suffered asphyxia or hypoxia for a period of 25-30 minutes, perhaps as much as 45 minutes. It is this post-birth period of deprivation, as a result of appellees’ alleged negligence, the Bacons claim caused Jessica’s cerebral palsy. The cause of Jessica’s cerebral palsy is the main issue in the case.
The first issue on appeal is whether the Bacons submitted sufficient evidence regarding causation to avoid summary judgment. Although the question of whether a defendant’s actions proximately caused a plaintiff s injury is normally a question of fact for the jury, where the facts of a case are susceptible to only one conclusion, the question is one of law and may be properly subject to summary judgment. Baker v. City of Garden City, 240 Kan. 554, 557, 731 P.2d 278 (1987). Summary judgment is governed by K.S.A. 1987 Supp. 60-256, which provides in pertinent part:
“(c) .... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
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. Busch v. City of Augusta, 9 Kan. App. 2d 119, 123, 674 P.2d 1054 (1983).
Summary judgment is seldom proper in negligence cases. Phillips v. Carson, 240 Kan. 462, 472, 731 P.2d 820 (1987). On the other hand, the appellees do not, in order to prevail in their summary judgment motions, need to prove they were not negligent or that their actions did not cause Jessica’s cerebral palsy. In Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), the United States Supreme Court analyzed Rule 56(c) of the Federal Rules of Civil Procedure, which language is adopted verbatim in K.S.A. 1987 Supp. 60-256(c). The United States Supreme Court held there can be no genuine issue as to any material fact when the plaintiffs offer no proof concerning an essential element of their case. The Court stated:
“One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses and we think it should be interpreted in a way that allows it to accomplish this purpose.” 477 U.S. at 323-24.
Negligence is never presumed, and may not be inferred merely from a lack of success or an adverse result from treatment. Tatro v. Lueken, 212 Kan. 606, 611, 512 P.2d 529 (1973). The plaintiff in a medical malpractice case bears the burden of showing not only the doctor’s negligence, but that the negligence caused the injury. See Funke v. Fieldman, 212 Kan. 524, 535, 512 P.2d 539 (1973). Except where the lack of reasonable care or the existence of proximate cause is apparent to the average layman from common knowledge or experience, expert testimony is required in medical malpractice cases to establish the accepted standard of care and to prove causation. Webb v. Lungstrum, 223 Kan. 487, 490, 575 P.2d 22 (1978); Karrigan v. Nazareth Convent & Academy, Inc., 212 Kan. 44, 48-51, 510 P.2d 190 (1973). Expert witnesses must confine their opinions to matters in issue which are certain or probable and not testify as to mere possibilities. Nunez v. Wilson, 211 Kan. 443, Syl. ¶ 1, 507 P.2d 329 (1973).
The appellees claim summary judgment was proper because the Bacons offered no evidence Jessica’s cerebral palsy was caused by the actions of the appellees. They also claim the Bacons’ only expert witnesses, Dr. Buck and Dr. Wood, failed to qualify as experts on cerebral palsy, thus nullifying any testimony they offered on causation. Since the etiology of cerebral palsy is beyond the experience and knowledge of a lay jury, the presentation of this case is dependent upon the testimony of experts.
Both of the Bacons’ expert witnesses gave contradictory testimony. Dr. Buck, an obstetrician from Lawrence, testified as to Dr. Pirotte’s negligence. He stated the absence of any evidence of a congenital, anatomical problem with Jessica’s lungs and airway, Dr. Pirotte’s difficulty in bagging, and the time lapse before Jessica began to breathe on her own showed Dr. Pirotte was not reasonably adept at the bagging procedure. Dr. Buck testified that the cause of cerebral palsy cannot be determined in every case. When asked whether the hypoxia, both preceding the delivery and thereafter during the resuscitative period, caused Jessica’s cerebral palsy, he answered that he believed the hypoxia before and after birth caused the baby’s present condition and that proper resuscitation would have likely erased the effects of the earlier hypoxia. Later in the deposition, Dr. Buck gave the following testimony:
“Q: The diagnostic cause of cerebral palsy is ordinarily a neurological evaluation as opposed to an obstetrician and gynecologist’s evaluation, is it not, sir?
“A: Yes.
“Q: All right. And when you’re dealing with the causation of this child’s cerebral palsy, that’s basically a neurological question that you’d expect to be answered by a qualified pediatric neurologist, wouldn’t you, sir?
“A: Yes.
“A: ... As I indicated earlier, I would defer to a neurologist to state the link-up between the departure of care and resulting in CP. I feel my role as an obstetrician is to discuss obstetrical management.
“Q: . . . Are you saying that as an obstetrician that you are not qualified to render an opinion and would defer to a neurologist as to whether the departure you had stated in this case caused CP in this instanceP
“A: Yes. And the reason for that is that the assessment of the infant by the neonatologist or neurologist is going to hopefully give you an impression as to whether there is something basically wrong with the child, such as a chromosomal abnormality or a congenital abnormality or whether the most likely cause of the problem is due to hypoxic events.” (Emphasis supplied.)
The testimony of Dr. Judith Wood, a pediatrician from Las Vegas, pertained to pediatrician Dr. Fleming’s handling of the case. Dr. Wood’s only criticism of Dr. Pirotte’s actions was that he should have called in Dr. Fleming at the same time he called in the obstetrician, Dr. Grimaldi.
Dr. Wood testified she believed several commissions and omissions by Dr. Fleming contributed to Jessica’s cerebral palsy by adding unwarranted stress to the baby. Jessica was already in a stressful situation, which contributes directly to acidosis, which, in turn, can be a contributing factor in cerebral damage. The first omission was the failure to warm Jessica in a timely manner. The second was Dr. Fleming’s failure to maintain the umbilical arterial catheter for longer than two and one-half hours when there was no intravenous line going at the time. Dr. Wood noted it was important in a neonate who has been stressed to keep some kind of intravascular line open in case of problems. Sometime after removing the catheter, Dr. Fleming did indeed try to reestablish an intravascular line on Jessica, in case it was needed suddenly, but was unable to do so during the eight attempts she made. Dr. Wood criticized these attempts as creating unnecessary stress for Jessica and stated after three failed attempts Dr. Fleming should have asked someone else to attempt to establish the line.
Dr. Wood criticized Dr. Fleming for allowing the mother to nurse Jessica twice within the first six hours of her birth. Oral feedings are usually withheld for at least 24 hours in high risk infants in order to avoid additional stress. One of her major criticisms was that Dr. Fleming did not obtain consultation from a level three neonatology center as early as possible.
After noting bloody stools, back and neck arching, and “extreme irritability,” Dr. Fleming arranged for Jessica to be transported that afternoon to Children’s Mercy Hospital in Kansas City, a level three neonatology center. During transport, Jessica had a seizure. An i.v. tube was attached, and she was given phenobarbital.
Dr. Wood testified she. had never attended a child who has cerebral palsy, had never been asked to diagnose cerebral palsy, and does not hold herself out as an expert in determining the etiology of cerebral palsy. Her testimony on causation was as follows:
“Q: [D]o you have an opinion within a reasonable degree of medical probability as to whether or not there were any departures from standard approved medical care by Dr. Collette Fleming that caused cerebral palsy in this child, Jessica Bacon?
“A: Yes, I think it’s quite possible.
“Q: All right. Can you state within a reasonable degree of medical probability rather than just that it is possible?
“A: It’s difficult for me to do.
“Q: Are you stating then that you cannot state within a reasonable degree of medical probability that the care and treatment by Dr. Fleming caused cerebral palsy in this child?
“A: I don’t think that need necessarily be the cause, but I think it was at least a contributing factor.
“Q: Within a reasonable degree of medical probability?
“A: Within a reasonable degree of medical probability.
“Q: Doctor, can you state within a reasonable degree of medical probability that Jessica’s cerebral palsy did not result from intrauterine hypoxia?
“A: It might have contributed to it.
“Q: Is that the best you can state?
“A: It could be a contributing factor but I don’t think it was solely the cause of her subsequent neuromuscular problems.
“Q: I take it then that you can’t state that the child’s cerebral palsy resulted strictly or solely from post-birth problems?
“A: Yes, that’s correct.” (Emphasis supplied.)
In discussing Dr. Fleming’s failure in establishing an i.v. tube on Jessica, Dr. Wood acknowledged it was a difficult procedure, which, because the infant’s vein is so small, often fails. Dr. Wood’s testimony continued:
“Q: . . . If we were to eliminate all those additional stresses or those potential additional stresses to the child, are you able to tell us that this child would not have cerebral palsy today?
“A: No.
“Q: Are you able to tell us that this child wouldn’t have cerebral palsy to the same degree and to the same extent that it has today?
“A: No.
“Q: All of these things that you’ve identified are possibilities of being contributing factors at most; isn’t that a fair statement?
“A: Right.
“Q: And, as to whether they were or not, you are unable to tell us simply because you don’t know?
“A: That’s right.
“Q: By reason of lack of information and by reason of lack of training and by reason of qualifications; is that a fair statement, ma’am?
“A: By reason of the fact that there are so many undeterminable factors I don’t think anybody could give you a correct answer.” (Emphasis supplied.)
The trial court in its memorandum decision stated the problem as follows:
“During his deposition, Dr. Buck stated that the hypoxia caused the cerebral palsy and that the only question was whether the hypoxia causing the cerebral palsy occurred prior to or after birth. Later in his deposition, Dr. Buck testified that he was not an expert concerning cerebral palsy and its causes. Dr. Buck went on to state that it would be necessary to conduct a neurological evaluation by a pediatric neurologist in order to determine the exact cause of Jessica’s cerebral palsy. He further testified that such a diagnosis was not within the realm of expertise of an obstetrician-gynecologist. Dr. Buck indicated that his testimony concerned the obstetrical management of the case and that he would defer to a neurologist on the question of causation.
“Plaintiffs’ other expert is Judith Wood, M.D. Dr. Wood is a pediatrician. Dr. Wood testified concerning the standard of care concerning Defendant Fleming. Dr. Wood testified to several factors which caused the baby additional stress. Dr. Wood testified that she was not an expert with regard to the cause of cerebral palsy. She further stated that she could not testify that the deviations from standard approved medical care on the part of Defendant Fleming caused Jessica’s cerebral palsy, or contributed to that condition.
“The question before this Court is whether or not, based upon their own testimony, Dr. Buck and Dr. Wood can testify as to the causes of cerebral palsy and the nexus between the deviation from standard of care and the cerebral palsy. The decision as to whether a witness qualifies as an expert and, if so, the area of expertise within which the expert can testify are discretionary decisions for the Court. . . .
“. . . . The plaintiffs are entitled to try their case to a jury but only if the case is legally sufficient for submission. The jury cannot be expected to determine the issue of causation in this case without the aid of expert testimony. Who will qualify as an expert on cerebral palsy, the causes of cerebral palsy in general, and the specific cause of the cerebral palsy suffered by Jessica Bacon? By their own testimony, Dr. Buck and Dr. Wood cannot. If the plaintiffs’ experts cannot, how can the jury?
“Plaintiffs argue that it is clear hypoxia caused the cerebral palsy. However, it is frankly conceded that all children who suffer hypoxic episode do not develop cerebral palsy and that cerebral palsy can occur in the absence of any hypoxic incident. Indeed, it is conceded that cerebral palsy can occur in the absence of any known cause. Plaintiffs sweep away these difficulties by taking the position that because Jessica has cerebral palsy and because Jessica suffered a hypoxic event, Drs. Buck and Wood can testify that the hypoxia caused the cerebral palsy.
“Based upon their own testimony, both Dr. Buck and Dr. Wood are not qualified to give an opinion as to the cause of Jessica’s cerebral palsy.”
The Bacons do not dispute that the causes of cerebral palsy are complicated and beyond the realm of a layman’s knowledge and therefore must be proven by expert medical testimony. See Funke v. Fieldman, 212 Kan. 524. Instead they assert that their expert witnesses have shown that the cerebral palsy was caused by hypoxia, and whether it was caused by hypoxia suffered before or after birth is a question for the jury.
The Bacons base their contention the cause of the cerebral palsy is not in dispute on two opinion letters submitted by Dr. John Evans and Dr. Russell Nelson on behalf of appellees Pirotte and Fleming. These letters were provided in response to interrogatory answers requesting identification of expert witnesses and a summary of their opinions. Both doctors found Jessica’s injury was the result of asphyxia before birth, but the trial court noted “it seems clear to the Court that the defendants’ experts did not attempt to determine causation but rather assessed the case based upon the plaintiffs’ discovery record.”
The cause of Jessica’s cerebral palsy has been vigorously disputed by the appellees throughout the record. The Bacons elected not to depose Dr. Evans or Dr. Nelson and did not attempt in any way to establish their theory of causation through other medical experts. The trial court noted that if the Bacons intended to use the appellees’ expert witnesses to establish causation they were required to supplement their interrogatory responses to include these experts, to list the experts pursuant to the discovery conference order, and to state their change of position and their response to the summary judgment motions.
Defendant Mercy Hospital filed a motion for summary judgment on February 4,1987, in which it alleged the Bacons had not provided evidence of causation. Appellees Fleming and Pirotte filed a motion for summary judgment on February 5, 1987, also alleging the Bacons had not provided any evidence that negligence had caused Jessica’s cerebral palsy. Oral arguments were held March 3, 1987. Appellees contend the trial court made clear it had already read the depositions and had serious concern about the causation questions at the oral argument'of the motions for summary judgment, and therefore stated additional briefing would be accepted on the motions. A transcript of the oral argument is not contained in the record. The Bacons submitted no additional support and the court granted summary judgments on May 14, 1987. On June 5, 1987, the Bacons filed a memorandum in support of their motion to alter or amend judgment in which they attached affidavits from Dr. Buck and Dr. Wood which they asked the court to consider in changing its decision as to lack of evidence on causation.
In his affidavit Dr. Buck swears he is of the opinion the hypoxia after delivery caused Jessica’s cerebral palsy. Dr. Wood testified the stress inflicted on Jessica after birth increased the severity of her palsy. On August 24, 1987, the court denied the motion, holding:
“The affidavits submitted by plaintiffs cannot be considered by the Court because there is no procedural rule allowing such a submission of affidavits at this point in the proceedings.
“Even if the affidavits are considered, they clearly contradict the deposition testimony of Dr. Woods and Dr. Buck. Clearly, an issue of fact can not be created in such a fashion. Mays v. Ciba-Geigy Corp., 233 Kan. 38, 661 P.2d 348 (1983).
“If the affidavits are not contradictory, then in reality they add nothing to the deposition testimony of Dr. Woods and Dr. Buck. It logically follows that the Court’s previous ruling that the opinions of Drs. Wood and Buck as to causation are without adequate foundation based upon lack of expertise would be unaffected by the affidavits.”
On appeal, the Bacons argue the court had authority to consider the affidavits pursuant to K.S.A. 1987 Supp. 60-256(e). This statute is inapplicable to this case. It applies to the filing of affidavits before summary judgment. Rather, K.S.A. 60-259(g) is applicable:
“In all cases where the ground of the motion [for new trial or amendment of judgment] is error in the exclusion of evidence, want of fair opportunity to produce evidence, or newly discovered evidence, such evidence shall be produced at the hearing of the motion by affidavit, or when authorized by the judge by deposition or oral testimony of the witnesses, and the opposing party may rebut the same in like manner.”
The affidavits of Dr. Buck and Dr. Wood, filed after judgment, are attempts to bolster and fortify their deposition testimony. They state they were of the opinion the hypoxic events occurring subsequent to Jessica’s delivery caused or increased the severity of the cerebral palsy. There was no denial of fair opportunity to produce this evidence and the evidence is not newly discovered. The trial court was proper in not considering the affidavits. If there was sufficient evidence of causation to deny summary judgment, it must be on the basis of the depositions before the court at the time it made its decision. A party may not remain silent in the face of a motion for summary judgment and later claim there is additional evidence to support its claims. See Stovall v. Harms, 214 Kan. 835, 838, 522 P.2d 353 (1974). An affidavit cannot be used to controvert a prior sworn statement in order to create an issue of material fact and defeat a motion for summary judgment. See Mays v. Ciba-Geigy Corp., 233 Kan. 38, 41-47, 661 P.2d 348 (1983).
The Bacons object to the trial court striking issues from consideration which were supported only by the Bacons’ listing of publications in the pretrial order. They designated the Accreditation Manual for Hospitals (1980), Standards and Recommendations for Hospital Care of Newborn Infants (1977), and Standards for Obstetrics-Gynecological Services (19 ), as those publications which would show the negligence of defendant Mercy Hospital concerning hospital privileges, consultations, medical records, laboratory equipment, supplies, and capability.
The Bacons showed absolutely no connection between the cited volumes and these allegations of negligence when requested to do so in depositions. The expert witnesses gave no testimony as to these allegations. The trial court therefore properly held these volumes could not later be claimed to contain evidence of negligence which would become apparent at trial. Dr. Wood did consult Standards and Recommendation for Hospital Care for Newborn Infants in her criticism of Dr. Fleming’s action and the court allowed the publication to be considered on this issue.
We hold the Bacons failed to present evidence that the acts of Mercy Hospital of Ft. Scott, Dr. Pirotte, and Dr. Fleming caused Jessica Bacon’s cerebral palsy. The trial court properly granted summary judgment to appellees. In light of the foregoing holding, we do not reach the other issues raised by the Bacons.
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Per Curiam-.
This original action in discipline was filed by the Disciplinary Administrator against Jack L. Miller of Olathe. Respondent failed to appear before the hearing panel of the Kansas Board for Discipline of Attorneys, and he fails to appear here, after notice duly given to him and mailed to his last known address as shown by the records of the Clerk of this court.
The complaints in this case are based upon two separate transactions. In the first, the hearing panel found that on July 23, 1984, the respondent was appointed by the Johnson County District Court as guardian and conservator of Margo Nesbitt; he posted a personal bond in the amount of $1,000. In a hearing held before the appointing court on April 6,1987, the court found that respondent failed to account for funds of the conservatorship and the court removed him and forfeited his bond. The amount of $27,093.35 was found missing from the assets of the conservatorship. Many of the checks totalling that amount were written by respondent,. payable to himself. By the spring of 1987, respondent had abandoned his law practice in Kansas, and his whereabouts thereafter are unknown. The panel found that there was clear and convincing evidence that Miller converted the said sum, or at least a large portion of it, to his own use. The panel concluded that his actions amounted to violations of DR 1-102(A)(3) (1987 Kan. Ct. R. Annot. 123), in that he engaged in illegal conduct involving moral turpitude; DR 1-102(A)(4) (1987 Kan. Ct. R. Annot. 123), in that he engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation; DR 1-102(A)(5) (1987 Kan. Ct. R. Annot. 123), in that he engaged in conduct that is prejudicial to the administration of justice; DR 1-102(A)(6) (1987 Kan. Ct. R. Annot. 123), in that he engaged in conduct that adversely reflects on his fitness to practice law; DR 6-101(A)(3) (1987 Kan. Ct. R. Annot. 143), in that he neglected a legal matter entrusted to him; DR 7-101(A)(3) (1987 Kan. Ct. R. Annot. 147), in that he prejudiced or damaged his client during the course of the professional relationship; and DR 9-102(B)(4) (1987 Kan. Ct. R. Annot. 157), in that he failed to promptly pay or deliver to his client funds, securities, or other properties which the client was entitled to receive.
The second complaint relates to respondent’s representation of Howard T. Johnson. The panel found that respondent was retained by Johnson to represent him in an uninsured motorist case, and that petitioner filed a lawsuit on behalf of Johnson, but took no further action and abandoned his client.
The panel concluded that respondent’s actions amounted to a violation of DR 6-101(A)(3) (1987 Kan. Ct. R. Annot. 143), in that he neglected a legal matter entrusted to him.
The panel was persuaded by clear and convincing evidence that respondent violated all of the disciplinary rules above cited, and the panel unanimously recommended that respondent be disciplined by disbarment.
After carefully reviewing the record in this case, the court agrees with the findings and conclusions of the panel that respondent engaged in illegal conduct involving moral turpitude; his conduct involved dishonesty, fraud, deceit, or misrepresentation; his conduct is prejudicial to the administration of justice; and his conduct indicates his unfitness to practice law. He not only neglected legal matters entrusted to him, but he violated the trust placed upon him by his appointment as conservator, and failed to promptly pay or deliver funds of his ward which the successor conservator is entitled to receive. The court is of the opinion that respondent should be disbarred.
It Is Therefore Ordered that Jack L. Miller be and he is hereby disbarred from the practice of law in the State of Kansas. The privilege and license of Jack L. Miller to practice law in this state are hereby revoked, and the Clerk of this court is directed to strike the name of Jack L. Miller from the roll of attorneys in the State of Kansas.
It Is Further Ordered that Jack L. Miller shall forthwith comply with the provision of Rule 218 (1987 Kan. Ct. R. Annot. 116).
It Is Further Ordered that the costs of this action be assessed to the respondent. | [
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The opinion of the court was delivered by
Beier, J.:
Plaintiff Francis P. Denning brings this appeal to challenge K.S.A. 2007 Supp. 74-4957(5)’s annual earnings cap limiting the amount of retirement he may draw under the Kansas Police and Firemen’s Retirement System (KP&F).
Denning began his law enforcement career in 1978, when he went to work for the Johnson County Sheriff s Department. During this employment, Denning participated in KP&F.
Between 1996 and 2002, Denning worked as the Chief of Police of Roeland Park. In 2001, Roeland Park switched from the Kansas Public Employees Retirement System (KPERS) to KP&F, and Denning’s participation switched as well.
On August 8, 2002, Denning left Roeland Park to become the Undersheriff for Johnson County, where he continued to participate in the KP&F system. When he retired from that position on May 1, 2003, Denning began drawing his KP&F retirement benefits.
Denning was later elected Sheriff of Johnson County and was sworn in on January 10,2005. Because of 74-4957(5)’s annual earnings cap, administrators of the Kansas Public Employees Retirement System (KPERS), which oversees KP&F, suspended his retirement payments. Denning reached the earnings cap in February 2005. That decision was eventually upheld by the KPERS Board and the district court.
K.S.A. 2007 Supp. 74-4957(5) reads in pertinent part:
“If a retirant who retired on or after July 1, 1994, is employed, elected or appointed in or to any position or office for which compensation for service is paid in an amount equal to $15,000 or more in any one such calendar year, by the same state agency or the same police or fire department of any county, city, township or special district or the same sheriffs office of a county during the final two years of such retiranf s participation, such retirant shall not receive any retirement benefit for any month for which such retirant serves in such position or office. . . . Any retirant employed by a participating employer in the Kansas police and firemen’s retirement system shall not make contributions nor receive additional credit under such system for such service except as provided by this section.”
For a portion of the time Denning worked for the Johnson County Sheriff s Department from 1978 to 1996, the statute permitted a retirant who returned to work to elect to revoke retirement and become an active KP&F participant again, meaning he or she could contribute a portion of earnings and earn service credit. That option was added in 1987 and removed in 1994. Also in 1994, the legislature replaced what had been a 30-day limit on collection of retirement benefits after a retiranf s return to work with the annual earnings cap at issue here. The amount of that cap has increased over time to the $15,000 the statute contained when this dispute arose.
Denning asserts on this appeal that the word “during” in the statute should be interpreted to mean that its earnings cap applies only if a retirant goes back to work for the same employer for which he or she worked throughout the 2 years before retirement; it is not enough if the retirant returns to work for an employer for which he or she worked at any point in the 2 years. This is a distinction with a difference for Denning because he worked only 9 months for the Johnson County Sheriffs Department in the 2 years immediately before his retirement.
Denning also asserts on this appeal that the statute, if not interpreted in the fashion he suggests, is unconstitutionally void for vagueness, violates the federal Contract Clause of Article 1, § 10 of the United States Constitution, and runs afoul of equal protection.
Interpretation ofKS.A. 2007 Supp. 74-4957(5)
Although this court has previously stated that “interpretation of a statute is a necessary and inherent function of an agency in its administration or application of that statute” and that “the legal interpretation of a statute by an administrative agency that is charged by the legislature with the authority to enforce the statute is entitled to great judicial deference,” Mitchell v. Liberty Mut. Ins. Co., 271 Kan. 684, Syl. ¶ 4, 24 P.3d 711 (2001), we have recently been reluctant to apply the doctrine of operative construction when faced with questions of law on undisputed facts. See Fieser v. Kansas Bd. of Healing Arts, 281 Kan. 268, 270-71, 130 P.3d 555 (2006). An agency’s interpretation of a statute is not conclusive; final construction of a statute always rests within the courts. Graham v. Dokter Trucking Group, 284 Kan. 547, 554, 161 P.3d 695 (2007); Fieser, 281 Kan. at 270; Foos v. Terminix, 277 Kan. 687, 692-93, 89 P.3d 546 (2004).
Denning’s first argument on appeal, that the Board and the district court erred in interpreting K.S.A. 2007 Supp. 74-4957(5), raises a pure question of statutory interpretation, over which this court’s review is unlimited. See Johnson v. KPERS, 262 Kan. 185, 188, 935 P.2d 1049 (1997).
When a statute is plain and unambiguous, the court must give effect to its express language, rather than determine what the law should or should not be. This court will not speculate on legislative intent and will not read the statute to add something not readily found in it. If the statute’s language is clear, there is no need to resort to statutoiy construction. Graham, 284 Kan. at 554; Steffes v. City of Lawrence, 284 Kan. 380, 386, 160 P.3d 843 (2007).
Denning asserts that his choice of meaning for “during” is the “primary” definition, citing three dictionaries. In response, KPERS cites two dictionaries.
We acknowledge that the word “during,” viewed in isolation, has more than one common and ordinary meaning. The competing dictionaries and their definitional hierarchies demonstrate this fact. However, when considered as part of the broader text of the statutory subsection, “during” is not ambiguous. Rather, the legislative intent behind its use is plain. Double-dipping of publicly supported salary and pension is to be limited. A KP&F retirant who returns to work for any employer that paid his or her wages at any point in the 2 years preceding retirement is subject to the earnings cap.
Vagueness
We understand Denning’s first constitutional argument to assert that the statute should be struck down as void for vagueness.
“ ‘The 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. In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond substantial doubt.’ [Citation omitted.]” State v. Rupnick, 280 Kan. 720, 736, 125 P.3d 541 (2005) (quoting State v. Armstrong, 276 Kan. 819, 821, 80 P.3d 378 [2003]).
The issue of whether a statute is constitutional is one of law. Our scope of review on issues of law is unlimited. In re Tax Appeal of CIG Field Services Co., 279 Kan. 857, 866-67, 112 P.3d 138 (2005).
Denning’s vagueness challenge is without merit. If we cannot conclude that the word “during” or the statutory subsection in which it appears is ambiguous, we certainly cannot conclude that either is unconstitutionally vague. We also note that our previous cases analyzing vagueness questions have focused on criminal and regulatory statutes. See, e.g., Boatright v. Kansas Racing Comm'n, 251 Kan. 240, 834 P.2d 368 (1992) (relying on Guardian Title Co. v. Bell, 248 Kan. 146, 805 P.2d 33 [1991]; discussing existence of two vagueness analyses, criminal and “business”; statutes regulating business afforded greater leeway). K.S.A. 2007 Supp. 74-4957(5) is not a criminal statute. And it is doubtful it could qualify as a regulatory statute governing Denning in the conduct of his “business.” Even if we could say it did, it comfortably comports with the forgiving “business” vagueness measure, i.e., a “commonsense determination of fairness . . . [i.e., whether] an ordinary person exercising common sense [could] understand and comply with the statute.” Boatright, 251 Kan. at 243.
Contract Clause
Denning’s second constitutional argument is based on the federal Contract Clause and focuses on the 1994 amendments to 74-4957, which did away with a KP&F retirant’s option upon reemployment to revoke retirement and return to active participant status, and which replaced a 30-day limitation on earnings with a dollar limitation.
The federal Contract Clause, Article I, § 10 of the United States Constitution, guarantees that “[n]o State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . .”; see Young Partners v. U.S.D. No. 214, 284 Kan. 397, 403, 160 P.3d 830 (2007). State retirement systems create contracts between the State and its employees who are members of the system. Brazelton v. Kansas Public Employees Retirement System, 227 Kan. 443, Syl. ¶¶ 1, 2, 3, 607 P.2d 510 (1980); see Singer v. City of Topeka, 227 Kan. 356, 365-66, 607 P.2d 467 (1980). A unilateral, retroactive, substantial change in retirement benefits by a governmental employer to the disadvantage or detriment of employees violates the Contract Clause. Brazelton, 227 Kan. 443, Syl. ¶ 5.
We have held that the test for determining whether a state law violates the Contract Clause is whether: “ ‘(1) The state law has, in fact, operated as a substantial impairment of a contractual relationship; (2) whether there is a significant and legitimate public purpose behind the legislation; and (3) whether the adjustment of the contracting parties’ rights and responsibilities is based upon reasonable conditions and is of a character appropriate to the public purpose justifying the legislation’s adoption.’ ” U.S.D. No. 443 v. Kansas State Board of Education, 266 Kan. 75, 84, 966 P.2d 68 (1998); Federal Land Bank of Wichita v. Bott, 240 Kan. at 624, Syl. ¶ 4, 732 P.2d 710 (1987). Specifically, “ ‘[t]o be sustained as reasonable, alterations of employees’ pension rights must bear some material relation to tire theory of a pension system and its successful operation, and changes in a pension plan which result in disadvantage to employees should be accompanied by comparable new advantages.’ ” Brazelton, 227 Kan. at 453 (quoting Betts v. Board of Administration, 21 Cal. 3d 859, 863, 148 Cal. Rptr. 158, 582 P.2d 614 [1978]). We have said that this test applies regardless of the magnitude or degree of impairment to a plaintiff employee. 227 Kan. at 450.
In argument before this court, Denning conceded that the 1994 replacement of a time limitation with an earnings hmitation constituted an exchange with offsetting benefits and detriments for employees. However, he insisted that the portion of the 1994 amendment that did away with a retirant’s ability to revoke retirement and return to participation lacked a required corresponding advantage under Contract Clause analysis.
We are unpersuaded by Denning’s Contract Clause argument for three reasons.
First, we believe the changes wrought by the 1994 amendment must be viewed as a whole rather than parsed and paired. Our examination of whether the Contract Clause has been violated by pension system changes cannot be reduced to mere counting and matching of arguably beneficial and detrimental provisions. As KP-ERS argued before us, the 1994 amendments must be viewed as a whole. When viewed in such a context, the 1994 deletion of the revocation option was not uncompensated. The replacement of the 30-day limitation with a dollar limitation not only resulted in a direct offset, one for the other; it also increased the annual total of KP&F retirement that the majority of retirants returning to work would draw. Most are not paid so handsomely as Denning, and the dollar limit meant their retirement payments would continue for much longer than 30 days after they began work each year. This is part of the balance that must be considered when the 1994 amendments are measured against the requirements of the Contract Clause.
Second, our precedent has recognized that there may be times when pension system changes are necessaiy for the greater good, even if an individual employee or retirant may suffer some marginal disadvantage. Changes may be made, for example, “to protect the financial integrity of the system or for some other compelling-reason.” Brazelton, 227 Kan. at 453. Changes may be “necessary to preserve or protect the pension system; to maintain flexibility; to permit necessary adjustments due to changing conditions; to protect the beneficial purpose of the system; to maintain the system on a sound actuarial basis or by reason of administrative necessity.” 227 Kan. at 454. This is in keeping with our view that the Contract Clause must be considered in conjunction with the reserved power of the State to protect the vital interests of its citizens. Federal Land Bank of Wichita v. Bott, 240 Kan. at 632; see also Young Partners, 284 Kan. at 403 (“ '[fjreedom of contract . . . implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community’ ” [quoting Kansas City Power & Light Co. v. Kansas Corporation Comm’n, 238 Kan. 842, 853, 715 P.2d 19 (1986)]).
Third, and finally, Denning’s argument is mortally weakened because the versions of the statute in effect when he first became a participant in the KP&F system in 1978 and when he reentered the system in 2001 did not give reemployed retirants the option of revoking retirement and continuing to contribute and earn service credit. See L. 1973, ch. 327, sec. 1; L. 2001, ch. 209, sec. 29. This option was added in 1987, L. 1987, ch. 299, sec. 27, and remained in effect only until enactment of the 1994 amendment, L. 1994, ch. 293, sec. 21. In other words, the benefit Denning complains about losing was not one he enjoyed when he entered the KP&F system in 1978, reentered in 2001, or upon his retirement. Even if we adopt a micro rather than a macro view of the facts before us, it does not appear that the statutory retirement revocation option was a part of the consideration for Denning’s acceptance or continuation of public employment. See Brazelton, 227 Kan. at 449.
Equal Protection
Equal protection analysis also does not lead us to strike K.S.A. 2007 Supp. 74-4957(5). Denning argues that if he were covered by KPERS rather than KP&F, he would not be subject to the earnings cap because of his elected status. He is mistaken.
The relevant KPERS provision is K.S.A. 2007 Supp. 74-4914(5). It specifically applies an earnings cap to a retirant who returns to work after being elected to his or her position, as long as the term of the elected official began July 1, 2000, or after. Thus, although in theory there may exist some KP&F-covered elected official who returned to work after retirement and whose term began before July 1, 2000, who could pursue the equal protection challenge Denning attempts here, Denning is not that person.
For all of the foregoing reasons, the district court is affirmed. | [
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The opinion of the court was delivered by
Nuss, J.:
Marc Vincent Sappington directly appeals his convictions of first-degree felony murder and attempted aggravated rob bery. Our jurisdiction is under K.S.A. 22-3601(b)(l), conviction of an off-grid crime.
Approximately 2 months before these convictions, Sappington was also convicted of crimes arising out of a different episode: three counts of first-degree murder, one count of kidnapping, and one count of aggravated burglary against four different victims. His appeal from those convictions is the subject of State v. Sappington, 285 Kan. 158, 169 P.3d 1096 (2007).
The issues on appeal, and this court’s accompanying holdings, are as follows:
1. Did the prosecutor commit reversible misconduct during closing argument? No.
2. Did the district court err in denying Sappington’s motion for change of judge? No.
3. Did the district court err in admitting certain autopsy photographs into evidence? No.
4. Did the district court err in denying Sappington’s requests for new counsel? No.
Accordingly, we affirm the district court and convictions.
FACTS
David Mashak owned and operated Phase One Auto Sales, a detail and auto sales shop located in Kansas City, Kansas. On March 5,2001, Mashak sold a 1984 Chevy Impala to A.G. for $750. Mashak’s wife, Valerie Mashak, testified that in early March she accompanied Mashak to the shop when Mashak showed A.G. the car. Valerie testified that when Mashak sold the car to A.G., Mashak told A.G. to park the car because the “tags weren’t right.” Two days after the sale Police Officer Jason Allen stopped the Impala being driven by A.G. because the 30-day tag was altered. Due to the altered tag, Allen had the car towed to the impound lot. According to Valerie, on approximately March 10 A.G. called Mashak at home, complaining about his car being towed and asking Mashak to get it out of the impound lot.
On March 16, 2001, Mashak and Johnny Sublett, Mashak’s employee and best friend, were eating lunch in the business’ office around 2 p.m. when an African-American male entered the busi ness. Mashak and Sublett were the only individuals in the shop at the time. Sublett did not know this individual; he was later identified as A.G. According to Sublett, A.G. was angry and spoke to Mashak about getting the vehicle that Mashak had sold to A.G. out of the impound lot. Mashak did not pay attention to A.G.; he continued eating his lunch. A.G. then walked out of the shop.
As soon as A.G. walked out, a different man wearing a black mask and a black Carhartt or Dickie coat with a hood entered the shop. Sublett did not recognize this individual either. The man, later identified as Sappington, was carrying what Sublett described as a black AK assault rifle. As soon as Sappington entered, he started shooting. When Sublett saw the gun, he ran into the garage portion of the business and dived under a vehicle. From there, he could hear Mashak getting shot in the office and fleeing to the garage. After approximately 10 minutes, Sublett crawled out and called an ambulance. Mashak was lying on the garage floor, conscious, but dying.
Richard Turner, a customer at Loud and Clear Car Audio across the street, heard the gunshots and then saw one African-American male running out of Mashak’s shop and another African-American male shooting into it. Turner and Donald Martin, the owner of Loud and Clear Car Audio, then saw two men speed away in a brown vehicle. According to Martin, a “hooded person” was driving the vehicle.
Police found Mashak and eight shell casings inside the shop. Officer Kim J. Crockett testified that AK-47 assault rifles and SKS assault rifles fire the caliber of ammunition found in the building. Seven of the shell casings were found in the office and one on the garage floor. The officers also found several bullet holes in the interior walls of the shop and in some of the vehicles parked in the garage.
Dr. Donald Pojman, the forensic pathologist who performed the autopsy, testified that Mashak suffered five gunshot wounds—two to the left shoulder, one to the right elbow, and two to the right side of the chest. Dr. Pojman opined that Mashak died from multiple gunshot wounds, most importantly the gunshot wound to the chest, with loss of blood the ultimate cause of death.
The next month an anonymous tip led officers to investigate Sappington as a participant in the shooting. He eventually confessed to his participation in the crime. Sappington stated that A.G. approached him about helping recover money from Phase One Auto Sales because the guys there had sold A.G. a car that had been towed because the “tags weren’t right.” He characterized himself and A.G. as “associates” prior to this incident. According to Sappington, A.G. said he would go into the shop first and talk to the owner and then Sappington was supposed to enter 6 seconds later as an “enforcer.”
Sappington stated that his role was to hold a gun on the individuals to make sure they cooperated; there was no plan to shoot them. With a black scarf covering his face, he entered the shop and pointed the SKS rifle at the two men sitting behind the counter. Because they “quickly moved” and Sappington thought they were reaching for a gun, he shot them. He then ran out of the shop, and he and A.G. fled in a brown vehicle.
A pager registered to A.G.’s father was found at the scene which had independently led officers to investigate A.G. as a suspect. From a photo lineup, Sublett identified A.G. as the person who entered the shop on the day of the shooting, and Valerie Mashak identified him as the person who bought the car from her husband and who had called about getting it out of the impound lot. A.G. eventually confessed to his participation in the crime and implicated Sappington as the shooter.
The case against Sappington was continued a number of times over 3 years because of periods in which he alternated between competency and incompetency. Sappington was evaluated primarily by Dr. William S. Logan, a psychiatrist, who met with Sapping-ton 13 times over that entire period. Sappington was ultimately deemed competent to stand trial in July 2004. He was tried and convicted later that month for the triple murders and other crimes committed in April 2001 (Sappington, 285 Kan. 158). He was tried in September 2004 for the crimes in the instant case committed in March 2001.
At trial, both Sappington and A.G. recanted their confessions. Sappington testified that he had nothing to do with the shooting, that he was never at the shop and that he did not know A.G. or Mashak. He claimed that he agreed to confess to the murder because Detective Greg Lawson, who took his confession, promised that he would help Sappington avoid the death penalty in a different homicide case if he confessed to shooting Mashak. Sappington testified that he based his confession strictly upon information that Lawson gave him.
Although A.G.’s preliminary hearing testimony was consistent with his prior taped confession, when called by the State to testify at trial he stated, “I can’t do this. I can’t lie like this, man. This ain’t right.” He then testified that he did not know Sappington in March 2001 and did not know who did the shooting. As a defense witness, A.G. admitted that he had previously implicated Sapping-ton as the shooter. However, he testified that he had gone to the shop only to talk to Mashak about getting his car out of the tow lot. While A.G. was talking to Mashak, a masked man entered the body shop and just started shooting. A.G. testified that he then ran out “scared for his life.” After the shooting, his father picked him up; A.G. testified that his father would testify that the father did not pick up anyone other than A.G. at that time.
A.G. testified that he implicated Sappington only because Detective Lawson said that would mean that A.G. would remain in juvenile court for his own charges. He further testified that when Lawson walked him from the juvenile center to the police station, Lawson told him details on what to confess.
The jury convicted Sappington of one count of first-degree felony murder and one count of attempted aggravated robbeiy. The court sentenced him to life imprisonment without parole eligibility for 20 years plus a consecutive term of 130 months’ imprisonment, with the sentences to run consecutive to the sentences imposed in the triple murder case: consecutive sentences of three life terms for the first-degree murders, 79 months for kidnapping, and 32 months for aggravated burglaiy.
More facts will be added as necessary to the analysis.
ANALYSIS
Issue 1: The prosecutor did not commit reversible misconduct during closing argument.
Sappington first contends that reversal and remand for new trial is required because the prosecutor improperly diluted the “beyond a reasonable doubt” burden of proof during closing argument. The State basically responds that no misconduct occurred.
Our standard of review was recently reiterated in State v. White, 284 Kan. 333, 337-38, 161 P.3d 208 (2007):
“Allegations of prosecutorial misconduct require a two-step analysis. 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 tiróse 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 die test to prosecutorial action in contexts beyond mere comment on the evidence. See State v. Swinney, 280 Kan. 768, 779, 127 P.32 261 (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.’ ” State v. White, 284 Kan. at 338.
Sappington specifically challenges the following comments made by the prosecutor during his rebuttal closing argument:
“You know, one of the things we talked about in voir dire, if you will remember, we talked about this beyond a reasonable doubt concept and there’s not a single one of you here can say—can go into that jury room and say, I know beyond all doubt that Marc Sappington is the one who did this. There’s not a single one of the 12 of you that can go back there and say, I know beyond any doubt that Marc Sappington is the one that did this. It’s not what the law is asking you to do, though. Remember our test is beyond a reasonable doubt. And is it reasonable given that evidence that we have that Marc Sappington is the one that did thisP And I suggest to you the answer is, yes, it is.
“And, with that, I ask you to go back and consider all those things I asked you to do a little bit earlier and return those verdicts of guilty for both premeditated first degree murder and attempted aggravated robbery. Thank you.” (Emphasis added.)
Sappington argues that the italicized statement suggested to the jury that it could convict him if they merely found it was “reasonable” to conclude he was the culprit, an incorrect statement of law that lessened the State’s “reasonable doubt” burden of proof. As he correctly notes, a jury may convict a defendant only if it has “no reasonable doubt as to the truth of each of the claims required to be proved by the State.” PIK Crim. 3d 52.02.
The parties have cited a number of cases for our guidance, several of which support both sides. In chronological sequence they are as follows:
In State v. Banks, 260 Kan. 918, 926, 927 P.2d 456 (1996), the defendant moved for a mistrial because the prosecutor argued in closing:
“ ‘My burden is the burden that you must consider this case beyond a reasonable doubt. It is not beyond any doubt, it is not beyond the shadow of a doubt, it is beyond a reasonable doubt.
“ ‘Reasonable doubt means if you are going to say these men are not guilty of something, you have to give a reason for it.’ ” (Emphasis added.)
The court found the italicized language improper. However, it held that the trial court did not abuse its discretion in refusing to declare a mistrial due to this one statement. 260 Kan. at 926-28. The court concluded that when the prosecutor’s argument was considered in its entirety, particularly the preceding nonitalicized language correctly stating the burden, the statements ultimately recognized that the burden of proof falls on and remains with the State. 260 Kan. at 927.
As an apparent factor in its calculus, the Banks court also observed that the district court had correctly instructed the jury: in effect, PIK Crim. 3d 52.02.
“ ‘The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty until you are convinced from the evidence that he is guilty.
“ ‘The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims made by the state, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant guilty.’ ” (Emphasis added.) 260 Kan. at 927.
In affirming the conviction despite die prosecutor’s improper statement, this court emphasized the “other substantial and compelling evidence going directly to [defendant’s] guilt.” 260 Kan. at 928.
In State v. Mitchell, 269 Kan. 349, 7 P.3d 1135 (2000), the court held that the following remark during the prosecutor’s closing argument was an erroneous and misleading statement of law: “ ‘the State’s burden of proof in this type of criminal case and in any criminal case is a common sense burden.’ ” 269 Kan. at 360-61. It reasoned that the comment impermissibly suggested to the jury that it could convict the defendant “by using a burden of proof less than ‘reasonable doubt.’ ” 269 Kan. at 361.
As in Banks, however, in Mitchell the court ultimately ruled that the improper remarks did not deny the defendant a fair trial essentially because of the weight of the evidence against him. Echoing part of the federal standard from Chapman v. California, this court held that the remarks had little, if any, likelihood of changing the result of the trial. 269 Kan. at 361.
The next year in State v. Diggs, 272 Kan. 349, 34 P.3d 63 (2001), the defendant likewise argued that the prosecutor misstated the State’s burden of proof and erroneously shifted the burden to the defense. The opinion does not quote the prosecutor’s closing argument, but states:
“Diggs contends that the prosecutor erred by equating the ‘reasonable doubt’ standard with ‘common sense’ or ‘reasonable explanation.’ She argues that the burden was shifted to Diggs when the prosecutor repeatedly asked the jury to consider whether Diggs’ actions were ‘reasonable.’
“Here, unlike State v. Mitchell, 269 Kan. 349, 357-61, 7 P.3d 1135 (2000), the prosecutor did not define reasonable doubt as ‘common sense,’ nor did he define it as a ‘reasonable explanation.’ He told the jurors that they could apply common sense to the facts in their deliberations, including tire determination of whether rigor mortis had already started setting in when the EMT’s arrived at tire scene of tire murder. It appears that the prosecutor questioned whether certain facts were ‘reasonable’ in order to argue to the jury that the facts did not create a reasonable doubt.” 272 Kan. at 363.
The Diggs court concluded that the prosecutor’s comments were within the bounds afforded counsel for argument.
The next year in State v. Finley, 273 Kan. 237, 42 P.3d 723 (2002), the defendant argued that the prosecutor improperly defined the State’s burden of proof with the following statement during closing argument:
“ ‘I would submit to you that a reasonable doubt is really nothing more than a fair doubt that’s based on reason and common sense and arises from the status of the evidence. It’s impossible for me to prove everything to you by an absolute certainty. At the same time, a defendant should not be convicted just on speculation and conjecture, but you have much more than that in this case. You don’t just have speculation or conjecture that [defendant] is guilty.’ ” 273 Kan. at 248.
The Finley court noted the risk “that the definition gave the jury the impression that something slightly more than suspicion or conjecture is sufficient to reach reasonable doubt.” 273 Kan. at 249. Nevertheless, it also noted that this conclusion would ignore the first part of the prosecutor’s argument. Although seemingly deciding that the prosecutor’s statement was error, and therefore qualifying as misconduct, the Finley court ultimately concluded that “[i]t cannot be said the prosecutor’s argument regarding the burden of proof denied [defendant] a fair trial,” because the court had earlier determined that the evidence of guilt was overwhelming. 273 Kan. at 249.
More recently, in State v. Wilson, 281 Kan. 277, 286, 130 P.3d 48 (2006), the court observed that the prosecutor’s closing argument was far less egregious than the prosecutor’s statement in Finley: “ 1 want you to look at the evidence, remember all the testimony that you heard, and go back to that definition of reasonable doubt that, unfortunately, no one can say in precise words what it is. You just have to intuitively know when you see it.’ ” This court held that the prosecutor properly stated the law regarding reasonable doubt. 281 Kan. at 287.
In the instant case, the prosecutor did not expressly define the term “reasonable doubt” in improper language as did the Banks and Mitchell prosecutors. However, his inaccuracy is more serious than the prosecutors’ statements made in Finley and Wilson, and probably Diggs, on the issue of burden of proof. To convict a defendant of a crime, the jury must find that it has no reasonable doubt as to the truth of each claim the State must prove. PIK Crim. 3d 52.02. Yet, as Sappington argues, his prosecutor’s statement suggests that a jury may convict if the juxy believes that it is merely “reasonable” that he committed the crime. We conclude that this misstatement dilutes the State’s burden because a jury could convict due to its reasonable belief that a defendant committed a crime while still having a reasonable doubt as to guilt. Accordingly, the comment is outside the wide latitude afforded a prosecutor.
The prosecutor’s misstatement of the law, however, does not necessarily amount to reversible error. Reversal is not required unless the prosecutor’s actions deprived Sappington of a fair trial. State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 (2004). The first factor to consider in the harmlessness inquiry is whether the misconduct is gross and flagrant, i.e., did it prejudice the jury against Sapping-ton? See State v. Elnicki, 279 Kan. 47, 65, 105 P.3d 1222 (2005). We hold it did not.
As did the prosecutor in Banks, the prosecutor here did properly state the burden of proof in the sentence immediately preceding his misstatement, saying: “Remember, our test is beyond a reasonable doubt.” Also, as in Banks, the overall closing argument made several clarifications on the burden of proof: that reasonable doubt is not “beyond all doubt” or “beyond any doubt.” See also Finley, 273 Kan. 237 (court must read the prosecutor’s erroneous statement together with his or her correct statements on the burden of proof).
Likewise, as in Banks, here the district court properly instructed the jury on the burden of proof, providing PIK Crim. 3d 52.02 on the burden of proof and reasonable doubt. Additionally, the court provided the jury with Instruction No. 8, which explained the alternate theories of murder in the first degree and reiterated that the burden of proof is beyond a reasonable doubt. A jury is presumed to have followed the instructions. State v. Horn, 278 Kan. 24, 43, 91 P.3d 517 (2004). In short, the prosecutor’s conduct was not gross and flagrant.
Next, no real prosecutorial ill will has been shown. There is no indication that the prosecutor deliberately misstated the burden of proof with this isolated statement: “And is it reasonable given that evidence that we have that Marc Sappington is the one that did this? And I suggest to you the answer is yes, it is.” Citing Diggs, the State argues that when placed in the context of his entire rebuttal argument, the statement was intended only to mean that it was reasonable, based upon the evidence presented at trial, to believe Sappington’s confession instead of his trial testimony. In other words, the State claims that the prosecutor merely questioned whether certain facts were reasonable in order to argue that the facts did not create reasonable doubt.
The prosecutor’s language is more direct and more troubling than that suggested in Diggs, making ill will a closer question. But the fact that it is merely close, and not clear, and when coupled with the language’s one-time appearance during a lengthy closing argument, weighs against our finding ill will.
Lastly, the evidence against Sappington was of such a direct and overwhelming nature that the misstatement likely had little weight in the minds of the jurors. In response to Sappington’s and A.G.’s trial recantation of their confessions, Detective Lawson testified that he did not tell them what to say prior to taking their statements. Although he had a good idea of the physical evidence prior to taking Sappington’s confession, he did not know the “play by play” as detailed in their confessions. Moreover, he testified that he was very careful not to tell A.G. anything about Sappington’s confession because he wanted to judge both suspects’ credibility based upon how their statements coincided.
Lawson further denied ever promising Sappington that he would not receive a death sentence if he confessed to Mashak’s killing. He also testified that after he walked A.G. the short distance from the detention center to his adjoining office building, A.G.’s attorney was present for a large portion of the interview that occurred prior tó the taped confession.
Both Sappington’s and A.G.’s taped confessions were played for the jury. A review of the tapes reveals that the two confessions closely paralleled each other in their detail and seem spontaneous and unrehearsed. Both men were forthcoming with little need for exploratory questions by Lawson. During their taped confessions, both Sappington and A.G. stated that they were not coerced or promised anything in exchange for their statements. When questioned by Lawson at the end of his confession, Sappington specifically stated that the officers never told him what to say and that he volunteered all of the information.
Additionally, there was considerable circumstantial evidence supporting both confessions. Both Turner and Martin testified that after hearing shots at the body shop, they saw two men leaving together in a brown vehicle. Both Sappington and A.G. volunteered in their confessions that they fled in a brown vehicle. Eight assault rifle shell casings were found at the scene; shop occupant Sublett testified that the shooter not only fired an assault rifle but also wore a black mask. Sappington confessed to shooting an assault rifle and wearing a black scarf over his face.
Sublett testified that one man entered first, argued with Mashak, and as soon as he walked out an armed man entered and began shooting. He also testified that he could tell that the two men— A.G. and the shooter—were together and were executing a plan. Sappington confessed that they had a plan: A.G. was to enter the shop first, and he was to enter seconds later as the enforcer to hold a gun on the occupants. Additionally, an anonymous source called the police and identified Sappington as A.G.’s accomplice. Both Sappington and A.G. volunteered in their confessions that Sappington was the shooter.
Supportive of a plan, or at least of A.G.’s involvement, was an officer’s testimony that the pager found at the scene contained messages from A.G.’s family on the day of the shooting, stating, “don’t ruin your future,” “please turn around before it’s too late,” “don’t choose lockup over Grandma, Marie, yourself, your future,” and “go to [church] before it’s too late.” Similarly, A.G. was identified by the victim’s wife as the man with whom her husband had had recent difficulty about a blue car and identified by shop occupant Sublett as the man who had entered to angrily argue about the car shortly before the shooting.
Furthermore, A.G.’s father directly contradicted A.G.’s trial testimony that his father only.picked up A.G. after the incident. In the process the father corroborated many of the details of the recanted confessions—which Sappington and A.G. claimed were based upon information fed to him by Detective Lawson.
The father testified that on March 16, 2001, A.G. called him sometime in the afternoon to come pick him up at an apartment building. The father further testified that he picked up both A.G. and A.G.’s friend, whom he did not know. When he got to the building, he opened his trunk from the inside of his car, and A.G. and the friend put their shoes in the trunk. The friend then sat in the back seat and A.G. sat in the front. The father dropped the friend off somewhere on a side street “off of 7th Street.” He and A.G. then picked up A.G.’s mother from work, ran some errands, and took A.G. to the bus station for a planned trip to visit his sister in Texas.
Similarly, in their recanted confessions, both Sappington and A.G. independently stated that following the shooting they disposed of their vehicle and then went to an acquaintance’s apartment where A.G.’s father picked them up. According to both these confessions, A.G.’s father popped the car’s trunk from inside the vehicle, and then they put their shoes and the firearm in the trunk. A.G. confessed that Sappington sat in the back. According to both their confessions, A.G.’s father dropped Sappington off at 8th and Parallel streets. In A.G.’s confession, he stated that after dropping Sappington off, A.G. and his dad picked his mom up from work, went to Walmart, and then to the bus station where he left to visit his sister in Texas.
Given the juiy’s conviction, it obviously rejected the recantations. A.G.’s and Sappington’s taped confessions were well corroborated by other testimony and evidence, and the confessions were made more telling by Sappington’s and A.G.’s unusual trial stories.
In conclusion, although prosecutorial misstatement occurred in this case, reversal is not required because the prosecutor did not prejudice the jury against Sappington and deny him a fair trial. We hold that the harmlessness standards are satisfied from both K.S.A. 60-261 (not inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (conclude beyond a reasonable doubt that the error had little, if any, likelihood of having changed the results of the trial).
Issue 2: The district court did not err in denying Sappington’s motion for change of judge.
Sappington next contends the trial judge erred by refusing to recuse himself from the instant case after making biased remarks at the sentencing hearing for the triple murder case. The State responds that the remarks were nothing more than fair characterizations of the facts of a grisly case.
Our standard of review is well known:
“ “When a district court refuses to recuse itself from a trial upon the defendant’s request, this court has promulgated a two-part test to determine whether the defendant received a fair trial or whether the defendant’s due process rights were violated: (1) Did the trial judge have a duty to recuse himself or herself from this case because the judge was biased, prejudicial, or partial? (2) If the judge did have a duty to recuse and failed to do so, is there a showing of actual bias or prejudice to warrant setting aside the judgment of the trial court?’ ” State v. Walker, 283 Kan. 587, 605, 153 P.3d 1257 (2007) (quoting State v. Alderson, 260 Kan. 445, Syl. ¶ 2, 922 P.2d 435 [1996]).
K.S.A. 2006 Supp. 20-311d provides the procedure for a party’s request for a change of judge. First, the party must file a motion for change of judge without stating in the motion the grounds for belief that the judge cannot afford the party a fair trial. The assigned judge shall then hold an informal hearing on the motion. Next, if the judge refuses to recuse, the party seeking a change of judge may then file an affidavit alleging the grounds for change of judge. K.S.A. 2006 Supp. 20-311d(a). If an affidavit is filed, the chief judge of the district shall at once determine the legal sufficiency of the affidavit. If the affidavit is found to be legally sufficient, the case shall be assigned to another judge. K.S.A. 2006 Supp. 20-311d(b).
K.S.A. 2006 Supp. 20-311d(c)(5) articulates the affidavit grounds upon which Sappington relies: “that on account of the personal bias, prejudice or interest of the judge such party cannot obtain a fair and impartial trial or fair and impartial enforcement of post-judgment remedies.”
On the first day of the jury trial, Sappington fax filed a motion asking Judge Burdette to recuse himself. Judge Burdette had also presided over the July 2004 triple murder trial and subsequent sentencing. Although neither the faxed motion or the sentencing transcript is contained in the record on appeal, Sappington appears to argue in the Mashak trial transcript that the judge had described Sappington as a “homicidal time bomb” when imposing the sentences approximately 3 weeks earlier on September 2. According to defense counsel’s statement in the Mashak trial transcript, at sentencing Judge Burdette had also stated that “if [Sappington] was going to ever get out again, I had no doubt he would do this again.” Due to these statements, Sappingtoris motion alleged that the judge was prejudiced against Sappington and that this prejudice would “contaminate the jury.”
Judge Burdette held an informal hearing on the matter outside the presence of the jury and denied Sappingtoris motion. The judge stated that his statements solely addressed the sentencing of Sappington in the prior case and had “absolutely nothing to do with his guilt or innocence in this case.” He further stated that he had no trouble being fair and impartial in this case. He also noted that pursuant to statute, the defense could file a more detailed motion with the chief judge of the district court if it chose to further pursue the matter.
Sappington did not file a motion with the chief judge, and did not reestablish his request for a change of judge until his motion for new trial. In denying Sappingtoris motion on that ground, Judge Burdette stated that Sappington failed to raise any issues necessitating the court’s recusal of itself and noted that he failed to take further proceedings beyond the informal hearing.
Sappington argues to this court that the judge’s reference to Sappington as a “homicidal time bomb”—or as stated in his brief as a “ticking time bomb”—evidenced the judge’s hostile feeling against him and suggested that the judge “had already reached an unalterable conclusion about Mr. Sappington’s character.” He ar gues that based upon these statements, a reasonable person would have doubt about Judge Burdette’s impartiality toward Sappington.
The State counters that Judge Burdette’s statement in the triple murder case was made concerning the facts of that case and was given as a reason for the court’s imposition of maximum, consecutive sentences. It characterizes the comment as “nothing more than a fair characterization of the facts of a grisly triple murder case where one person was dismembered, another left dead in a car in a public parking lot and the third left dead with a broken knife blade embedded in his back.” Consequently, the State argues that the comment does not establish that the court was biased, prejudicial, or partial.
The first step in our analysis is to determine whether the judge had a duty to recuse from this single murder case based on his statement made during sentencing in the triple murder case. We initially observe that Sappington has failed to sufficiently designate a record to support his claim, e.g., a copy of his fax-filed motion to recuse, much less the sentencing hearing transcript. We have only the transcript of the limited discussion regarding the motion on the first day of trial. As such, this court is prevented from considering the context in which the judge made the challenged statement. A defendant possesses the burden to designate a record that affirmatively shows prejudicial error. Without such a record, an appellate court presumes the action of the trial court was proper. State v. Holmes, 278 Kan. 603, 612, 102 P.3d 406 (2004).
Moreover, Judge Burdette did not have a duty to recuse himself from this case based on his characterization of Sappington in the prior case. We acknowledge that a judge should disqualify himself or herself if the circumstances of the case “create reasonable doubt concerning the judge’s impartiality, not in the mind of the judge himself, or even, necessarily, in the mind of the litigant filing the motion, but rather in the mind of a reasonable person with knowledge of all the circumstances.” State v. Logan, 236 Kan. 79, 86, 689 P.2d 778 (1984). We further acknowledge that the Kansas Code of Judicial Conduct states that a judge has a duty to recuse himself or herself from a case when “the judge’s impartiality might reasonably be questioned.” This includes instances where “the judge has a personal bias or prejudice concerning a party.” Rule 601A, Canon 3E(l)(a) (2006 Kan. Ct. R. Annot. 576-77).
Given that this isolated statement occurred in a completely separate case and that this court is prevented from placing it in the context in which it was made, we cannot say that a reasonable person would have reasonable doubt regarding Judge Burdette’s impartiality. The statement is analogous to the judge’s reference to the defendant as a “mean mother” in State v. Griffen, 241 Kan. 68, 71, 734 P.2d 1089 (1987). That particular reference was made prior to sentencing during the judge’s attempt to summarize the findings of the presentence investigation report to substitute defense counsel. 241 Kan. at 71. This court concluded that the judge’s remarks, while “ill-advised,” did not demonstrate partiality, prejudice, or bias on his part. 241 Kan. at 71-73. Similarly, Judge Burdette’s reference to Sappington as a “homicidal time bomb” in the triple murder case does not demonstrate that he was biased or prejudiced against Sappington in the instant case.
Second, even if we were to assume that Judge Burdette had a duty to recuse himself from this case, Sappington still needs to demonstrate actual bias or prejudice by the judge. This court has often rejected claims of error in denials of motions for change of judge due to a lack of demonstrated prejudice. See, e.g., Walker, 283 Kan. at 609; State v. Reed, 282 Kan. 272, 279, 144 P.3d 677 (2006); Griffen, 241 Kan. at 73. Sappington has not pointed to anything in the record, nor can we find anything there, showing that Judge Burdette exhibited bias or prejudice at trial or sentencing in the instant case. Therefore, the court did not err in denying Sappington’s motion for change of judge.
Issue 3: The district court did not err in admitting certain autopsy photographs into evidence.
Sappington next contends the district court erred in admitting certain autopsy photographs into evidence because they were “overly repetitious, gruesome and only went to inflame the jury.” At trial, he objected to only four of these photographs: Exhibits # 21, # 24, # 26, and # 27. The State counters that the photographs were not cumulative or overly gruesome and were used by Dr. Pojman to illustrate his testimony regarding the manner of death.
The standard of review for the admission of these photographs requires us to first determine whether they are relevant, i.e., probative. State v. Gunby, 282 Kan. 39, 47, 144 P.3d 647 (2006). See State v. Kirby, 272 Kan. 1170, 1186-88, 39 P.3d 1 (2002); State v. Ruebke, 240 Kan. 493, 517, 731 P.2d 842 (1987) (Photographs and videotape of homicide victims “had a reasonable tendency to prove or disprove a material fact in issue, or shed light upon a material fact.”).
State’s Exhibit # 21 is a “body shot” of the victim at the time of autopsy. Exhibit # 24 shows two lesions located on the top of the victim’s left shoulder. Exhibit # 26 shows two large wounds on the left side of the torso and a large sutured incision made by medical personnel at the hospital. Exhibit # 27 is a closer view of the two injuries depicted in Exhibit # 26. In overruling Sappington’s objections, the district court held that the State was allowed to show that the victim died and that Dr. Pojman, who performed the autopsy, could use these photographs to aid the jury’s understanding of how Mashak died.
Dr. Pojman testified that the photographs would be useful in his testimony to help him explain to the jury the nature and location of the injuries. After describing the injuries depicted in each photograph, Dr. Pojman referred to them to explain how the injuries caused Mashak’s death. Specifically, he used the photographs to explain the gunshot wounds and why he surmised that the shots went from back to front. He also used them to explain that the wounds were irregular, particularly using die photograph of the closer view of die chest wounds to better explain their irregularity to the jury. He concluded that Mashak died of multiple gunshot wounds depicted in the photographs, most important a wound to the chest, which resulted in a loss of blood.
Clearly the photographs were used to prove the manner of death and to explain medical testimony. They are relevant and admissible. See State v. Bell, 273 Kan. 49, 52-53, 41 P.3d 783 (2002) (Photographs used to prove the manner of death and die violent nature of die crime are relevant and admissible.); State v. Deal, 271 Kan. 483, 493, 23 P.3d 840 (2001) (Photographs which are relevant and material in assisting the jury’s understanding of medical testimony are admissible, including photographs which aid a pathologist in explaining the cause of death.). Even though at trial Sappington did not challenge Mashak’s cause of death, we have held that the prosecutor has the burden to prove all the elements of the crime charged and photographs to prove the elements of the crime, including the fact and manner of death and the violent nature of the crime, are relevant and admissible. See State v. Gholston, 272 Kan. 601, 613, 35 P.3d 868 (2001), cert, denied 536 U.S. 963 (2002).
Sappington argues that the photographs are overly repetitious, gruesome, and introduced only to inflame the jury, i.e., prejudicial. Our standard of review of these claims is abuse of discretion. State v. Parker, 277 Kan. 838, 847, 89 P.3d 622 (2004) (An abuse of discretion has occurred when the admitted photographs were unduly repetitious and cumulative or their introduction was solely for the purpose of prejudice.). The facts that two of the photographs, Exhibits # 26 and # 27, depict the same injuries does not render such photographs unduly repetitive when, as here, they depict different aspects of those injuries. State v. Hernandez, 284 Kan. 74, 101, 159 P.3d at 950 (2007) (citing State v. Bradford, 272 Kan. 523, 534-35, 34 P.3d 434 [2001]). We observe that the admission of photographs in a murder case has rarely been held to be an abuse of discretion. State v. Torres, 280 Kan. 309, 327, 121 P.3d 429 (2005) (citing State v. Deal, 271 Kan. at 493).
We have reviewed the four photographs and find no abuse of discretion in their admission into evidence.
As to the other photograph about which Sappington complains, Exhibit # 22, no objection was made at trial to its admission. As such, the issue of its admission was not preserved on appeal. K.S.A. 60-404; State v. Torres, 280 Kan. at 328.
Issue 4: The district court did not err in refusing to grant Sap-pinion’s request for new counsel.
Finally, Sappington contends the court erred in denying his multiple requests for new counsel which deprived him of the opportunity to participate in his own defense. The State basically re sponds that his counsel did a commendable job under difficult circumstances, i.e., those created by Sappington s repeated mental problems. We independently observe that over a 3-year span, from his April 2001 arrest through his September 2004 trial, Sappington was found mentally competent, then incompetent, then competent, then incompetent, and then competent. Each of Sappington’s motions to change counsel was filed during periods of competency, with the trial for Mashak’s murder being conducted 2 months after his latest competency determination and trial for triple murder.
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 the view adopted by the district court. State v. McGee, 280 Kan. 890, 894, 126 P.3d 1110 (2006). The burden is on the party alleging the abuse. State v. White, 284 Kan. 333, Syl. ¶ 3, 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. McGee, 280 Kan. at 894. 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]).
The facts concerning Sappington’s motions for change of counsel in the instant case are identical to many of those in the triple murder because certain proceedings were consolidated until shortly before the triple murder trial began in late July 2004.
After being found competent to stand trial in December 2001, Sappington filed his first pro se “Motion for Rehef of Court Appointed Counsel” on March 25, 2002. He alleged that irreconcilable conflicts of interest existed, specifically that he lacked confidence in attorney Patricia Kalb’s representation and that she was not providing “faithful representation.” Sappington later withdrew the motion with the hope that he and Kalb “could work through the problems.”
In January 2003 Sappington was found incompetent to stand trial because, among other things, his attorney stated that voices were telling him not to talk to her, and Dr. Logan determined that he was unable to “consult with his attorney in preparing his defense.” The January trial was postponed. In April 2003, he was again found competent, and trial was rescheduled for the following August.
On June 17 Sappington stopped taking his medications and his counsel filed for a trial continuance. On July 9 he filed another motion for relief of counsel. It was nearly identical in content to the March motion except that it also alleged a “complete breakdown in communication with his counsel.”
On July 28, 2003, the court held a hearing on Sappington’s July 9 motion. There, Sappington told the court that Kalb failed to comply with his “reasonable requests” or failed to do so in a timely manner. Sappington provided the court with his letters to Kalb requesting copies of statements of witnesses and the preliminary hearing transcript. He also stated that Kalb failed to speak with him enough regarding possible plea agreements and different aspects of his case.
Kalb testified that she had met with Sappington the previous day to discuss their problems. She did not feel that their problems were “that serious.” Kalb stated that Sappington’s mental health problems had been the cause of many of the delays in this matter. She admitted that it had taken some time to get the witness statements from the State and that it had taken a while to get the transcript, but that the “more important” issue was that she and Sappington were having a “hard time” communicating regarding his theory of defense. Kalb seemed to imply that this difficulty was largely due to Sappington’s mental status and stated that she had tried to convey to him her thoughts on a defense.
The court denied Sappington’s motion. It informed him that the defendant always has the final say in his defense, that his had been one of the more serious and complex cases in the county’s recent history, and that his mental status had caused some delay. It found no legal sufficiency in Sappington s argument and stated that it would not change counsel with a trial date set for 1 week from the day of the hearing. The court concluded that Kalb had zealously guarded Sappington’s constitutional rights and that it could find no fault in her representation.
Within the week, the August 2003 trial was postponed because Sappington again stopped taking his medication, and he was again found incompetent. Trial was eventually rescheduled. That trial was later postponed because of Sappington’s continued incompetence and Dr. Logan’s characterization of his “partial malingering.”
In July 2004 Sappington was once again found competent, and his trial for the triple murder began on the 19th of that month. The morning of trial, he made an oral motion to dismiss counsel, claiming that she lied when she said she would come see him and again claiming that she did not bring him documents. After counsel denied the allegations, the court denied the motion, finding counsel’s representation “first rate” and adding that it felt no stone had been left unturned in his defense. Sappington renewed his motion at the close of evidence, requesting a mistrial because Kalb did not ask all of the questions that he requested. After counsel responded, the court denied the motion, and he was convicted of all charges. He renewed his position in his motion for new trial, which the court denied, stating that no one could say that counsel had not performed competently.
Sappington’s trial for the Mashak charges began on September 27, 2004. As he had done the first day of trial in the triple murder case, that morning Sappington made an oral motion to dismiss counsel. He again did not believe Kalb had been adequate in her preparation, particularly in corresponding and otherwise dealing with him to build his case or decide on a defense. For other reasons, he referred to “the last motion to reheve counsel.”
In response to the court’s inquiry, Kalb stated that she was prepared to proceed to trial in this case. The court denied Sappington’s motion, stating that Sappington’s general statements did not rise to the legal threshold for the court to consider removal of counsel, especially in light of the timing of the motion. The court further stated that Sappington had failed to present arguments different from those raised in the triple murder case and in his previous motions. The court found that based upon all of its observations, Sappington was receiving the benefit of an experienced criminal defense attorney, and that it could “see nothing whatsoever that would support his contention that counsel should be removed.”
When Kalb argued Sappington’s motion for new trial on December 10,2004, she asserted that he was unable to meaningfully communicate with counsel, reminding the court that he had requested new counsel before the trial in the instant case as well as in the triple murder case. The court denied Sappington’s motion, observing that “we’ve had this issue several times” and “have discussed it at length.” It held that there was “no evidence whatsoever” that Sappington was unable to communicate with his attorney at trial.
To begin our analysis, we note that in order to determine whether to appoint new counsel, the district court must conduct some sort of investigation. Here, the court satisfied this requirement by fully hearing Sappington’s complaints and fully hearing his counsel’s responses, both at the July 2003 motion hearing and the September 2004 trial. The court further satisfied this requirement by its own observations of counsel’s performance over the course of 3 years. See State v. Collier, 259 Kan. 346, 359, 913 P.2d 597 (1996). Sappington had the same attorney, Kalb, throughout both cases. According to the record on appeal, her performance observed by the court included multiple actions to protect Sappington’s rights regarding his competency to stand trial and other pretrial matters. She was especially diligent in monitoring Sappington’s mental health, frequently requesting a continuance or a finding that Sappington was incompetent to stand trial at that time. Overall, the court concluded that Kalb had performed at a high level of advocacy on Sappington’s behalf.
The district court was well aware of the unique circumstances of this case. Throughout this lengthy process, an overarching consideration was seeing if Sappington was capable of being found competent to stand trial. As a result, the court was quite cognizant of the substantial challenges any counsel would have faced representing Sappington. In an analogous context, the court in State v. Ferguson observed that a lack of communication between a defendant and counsel does not automatically constitute a violation of the Sixth Amendment right to counsel. 254 Kan. at 71. There, the court agreed with the State that “ lack of communication between a defendant and defense counsel due to a defendant’s refusal to cooperate is not of itself basis for reversal on grounds of ineffective assistance of counsel.’ ” (Emphasis added.) 254 Kan. at 73-74. The Ferguson court held that under the circumstances of that case, substitution of counsel would have been futile.
The instant case admittedly is distinguishable from Ferguson because there is no evidence that any communication problems between Sappington and Kalb were deliberate on his part. In Sappington’s case, however, there were multiple competency and incompetency determinations, and the district court was forced to continue trial several times after finding that Sappington was not competent to stand trial or able to assist in his own defense. Based upon these determinations and Kalb’s statements at the July 2003 hearing on Sappington’s motion, it is doubtful the appointment of substitute counsel would have solved the communication problems.
Another consideration is the timeliness of Sappington’s motion. This court has held that a request for substitute counsel made on die first day of trial is not timely. State v. Collier, 259 Kan. at 358-59. Although, as Sappington points out, his oral trial motion was not his first request for new counsel, he has provided no explanation for his delay in making an additional request. Furthermore, Kalb’s July 2003 statements, which Sappington primarily relies as evidence of a communication problem, were made over a year before his trial in this case.
Finally, Sappington has failed to point to any facts that demonstrate a “complete breakdown of communication” between him and counsel at trial. Despite his assertion to the contrary, Sapping-ton actively participated in his defense. Unlike at the triple murder trial, he testified and, through counsel’s direct examination, completely presented his theory of defense: he had absolutely no involvement in the crime. Accordingly, he recanted his confession on the stand. Moreover, counsel Kalb called A.G. to testify and elicited his testimony where he not only recanted his confession implicating Sappington but also corroborated Sappington’s defense theory. Sappington does not allege that he disagreed with Kalb’s trial strategy.
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 Kalb could no longer effectively aid Sappington in the fair presentation of his defense. Sappington failed to show “justifiable dissatisfaction” with his counsel, e.g., a complete breakdown in communications. Accordingly, the district court did not abuse its discretion in denying Sappington’s motions.
Affirmed.
Davis, J., not participating.
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The opinion of the court was delivered by
Johnson, J.:
This action in mandamus by William Slusher and Ralph Sorrell (relators) to compel the City of Leavenworth (City) to apply the veteran’s preference statute, K.S.A. 73-201, to promotions within the Leavenworth Police Department (LPD) returns to our court for a second time. See State ex rel. Slusher v. City of Leavenworth, 279 Kan. 789, 112 P.3d 131 (2005) (hereafter Slusher I). In this appeal, the relators complain that, although the district court granted them summary judgment with regard to the applicability of the veteran’s preference, it should have ordered the City to promote them without further proceedings and should have awarded them damages and attorney fees. The respondents, City of Leavenworth, Greg Baldan, Lee Doehring, and Gary Ortiz, cross-appeal, claiming that the veteran’s preference statute is unconstitutional and that the relators did not exhaust their administrative remedies. Further, respondents moved for a dismissal of Sorrell’s appeal, claiming that it was now moot. We affirm the district court’s rulings on the mandamus petition and deny respondents’ cross-appeal and motion.
The genesis of this action was a vacancy in a lieutenant’s position and a vacancy in a sergeant’s position on the LPD. Slusher, a sergeant with the LPD, applied for the lieutenant’s position; Sorrell, an LPD officer, applied for the sergeant’s position. Both met the initial application requirements for the respective positions, and both were veterans within the purview of the veteran’s preference statute. Neither was selected for a promotion; the successful applicants were not veterans.
In response to inquiries, Baldan, the City’s personnel director, informed both relators that the veteran’s preference applies only to initial hiring and, thus, was inapplicable to their applications for promotion. Doehring, the police chief, and Ortiz, the city manager, reiterated Bakian’s interpretation that the veteran’s preference statute did not apply to promotions.
Slusher and Sorrell subsequently filed a petition for writ of mandamus in the district court, alleging that they had been denied their respective promotions in violation of the veteran’s preference in K.S.A. 73-201, and seeking an order compelling the LPD to promote them accordingly. The district court dismissed the petition, finding that the petition failed to state a claim upon which relief could be granted because K.S.A. 73-201 only applies to initial hiring, not promotions. Further, the district court found that mandamus was not an appropriate remedy because application of the veteran’s preference statute involves the exercise of discretionary authority which cannot be the subject of a mandamus action.
Slusher and Sorrell appealed, and the matter was transferred to this court from the Court of Appeals. Slusher I, 279 Kan. at 790. Slusher I limited the opinion to the procedural posture of the case at that time. First, the court interpreted K.S.A. 73-201 to apply “to internal promotions as well as to initial hiring.” 279 Kan. at 796. The court then noted that 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. Wilson v. Sebelius, 276 Kan. 87, 90, 72 P.3d 553 (2003).” 279 Kan. at 797.
Finally, the court noted that “[m]andamus also is a proceeding used for compelling a public officer to perform a clearly defined duty, one imposed by law and not involving the exercise of discretion. Sedlak v. Dick, 256 Kan. 779, 785, 887 P.2d 1119 (1995).” 279 Kan. at 797. By pointing out that, in addition to defining which veterans are covered by the preference, K.S.A. 73-201 contains two eligibility requirements—competence to perform the job duties and good reputation—the court intimated that the application of the statute involves the exercise of discretion. However, given that a dismissal due to failure to state a claim is considered solely on the pleaded facts of the petition, the court suggested that the exercise of discretion was not yet an issue in the case, so as to preclude the mandamus procedure. 279 Kan. at 797-98. The matter was remanded to the district court for further proceedings.
Upon remand, the district court found that, pursuant to the Supreme Court’s interpretation of K.S.A. 73-201, the City had no discretion as to whether to give meaningful preference to qualified veterans. Rather, the City had a clearly defined duty to consider the veteran’s preference in its employment decisions relating to Slusher and Sorrell. Thus, the district court ruled that the “[f]ailure to do so requires [the district court] to order that the respondents make the promotion opportunities available to the relators and to properly apply the requirements of K.S.A. 73-201 in that process.”
However, the district court opined that Slusher I left open the possibility that the relators’ competence or good reputation might be disputed issues, the determination of which involves the exercise of discretionary authority so as to preclude mandamus relief. The court noted that the relators’ good reputation was not in dispute but found that a dispute did exist as to their competence. Accordingly, the district court refused relators’ request for a ruling that they were entitled to their respective promotions, as a matter of law.
In making its order, the district court cautioned that the relators were entitled to a “meaningful preference in the process.” In that regard, the district court rejected respondents’ suggestion that “competency” is the equivalent of “best qualified” because that definition effectively “eviscerates the preference,” i.e., the best qualified applicant has no need for preferential treatment. Likewise, the district court rejected the relators’ contention that meeting the minimum job qualifications satisfies the statutory competency requirement. The court opined that the statutory standard of competency lies somewhere in between, stating that it means “something more than meeting the minimum qualifications for the job,” but “something less than having qualifications equal to or better than any other candidate.” To guide the City, the court pointed to language in The State v. Addison, 76 Kan. 699, 707, 92 Pac. 581 (1907) (.Addison I), which stated: “ "Competent,’ when used to indicate the qualifications which a public officer should possess, must necessarily include every qualification essential to the prompt, efficient and honest performance of the duties pertaining to the office to be filled.”
Although the district court’s journal entry purports to enter summary judgment for the relators, only a portion of the petitioners’ prayers were granted. The relators obtained a favorable statutory interpretation but were denied the remedies which they sought. As noted above, the district court did not simply order the City to promote the relators, as they requested. Likewise, the district court rejected the relators’ claims for damages and for attorney fees. The relators appeal these adverse rulings.
COURT-ORDERED PROMOTIONS
In their first two issues, the relators essentially argue that the district court had before it everything that it needed to order the City to promote them forthwith, i.e., that they were entitled to the promotions as a matter of law. We disagree.
Standard of Review
First, we note the parties do not concur on our standard of review. The disparity is understandable given the unusual nature of the case. The respondents advocate for the application of the well-settled review standard for summary judgments. See, e.g., Korytkowski v. City of Ottawa, 283 Kan. 122, 128, 152 P.3d 53 (2007). However, this appeal deals with the relators’ requests which were omitted from the summary judgment, or more accurately the partial summary judgment, in their favor. In arguing for a de novo review, the relators cite to Stith v. Williams, 227 Kan. 32, 34, 605 P.2d 86 (1980). However, the Stith standard of review applies when the district court determines a case based upon documents and stipulated facts, which is not entirely the instant case. Moreover, the action was styled as a petition for writ of mandamus. “Whether mandamus lies is dependent upon an interpretation of the applicable procedural and substantive statutes, over which this court has unlimited review. See Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).” Lynn v. Simmons, 32 Kan. App. 2d 974, 976, 95 P.3d 99 (2003).
Here, the overarching question involves the interpretation and application of the veteran’s preference statute, which is a question of law subject to unlimited review. See, e.g., LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007).
Applicable Statute
In Kansas, a veteran’s preference is afforded in K.S.A. 73-201, which states:
“In grateful recognition of the services, sacrifices and sufferings of persons who served in the army, navy, air force or marine corps of the United States in world war I and world war II, and of persons who have served with the armed forces of the United States during the military, naval and air operations in Korea, Viet Nam or other places under the flags of the United States and the United Nations or under the flag of the United States alone, and have been honorably discharged therefrom, they shall be preferred for appointments and employed to fill positions in every public department and upon all public works of the state of Kansas, and of the counties and cities of this state, if competent to perform such services; and the person thus preferred shall not be disqualified from holding any position in said service on account of his age or by reason of any physical or mental disability, provided such age or disability does not render him incompetent to perform the duties of the position applied for; and when any such ex-soldier, sailor, airman or marine shall apply for appointment to any such position, place, or employment, the officer, board or person whose duty it is or may be to appoint a person to fill such place shall, if the applicant be a man or woman of good reputation, and can perform the duties of the position applied for by him, or her, appoint said ex-soldier, sailor, airman or marine to such position, place, or employment: Provided, That the provisions of this act shall not be applicable to any persons classed as conscientious objectors. The provisions of this act shall not be controlling over the provisions of any statute, county resolution or city ordinance relating to retirement, or termination on the basis of age, of employees of the state or any county or city. Whenever under any statute, county resolution or city ordinance retirement, or termination on the basis of age, of any employee is required at a certain age, or is optional with the employer at a certain age, such provisions of such statute, resolution or ordinance shall be controlling and shall not be limited by this section.” (Emphasis added.)
Initially, the statute required that eligible veterans receive preference “over other persons of equal qualifications” and required the appointing authority to “make an investigation as to the qualifications of said ex-soldier or sailor for such employment.” G.S. 1901, 6509. The statute was amended, deleting the language for preference “over other persons of equal qualifications” and substituting the language, “if competent to perform such services,” which remains in the current version of the statute. L. 1907, ch. 374, sec. 1; K.S.A. 73-201. The language requiring the appointing authority to make an investigation into the veterans’ qualifications was deleted and not replaced by other language. L. 1907, ch. 374, sec. 1. Subsequent amendments have dealt with defining which veterans were covered by the preference.
Analysis
Relators begin by declaring that the district court found that the respondents
“illegally denied Relators the benefit of K.S.A. 73-201 by: 1) denying them the benefit because they interpreted the statute to apply to initial hires only; 2) denying them the benefit because they unreasonably interpreted the statute to require that Relators have qualifications equal to all other candidates; and 3) employing a process that did not give Relators meaningful preference.”
The obvious flaw with the second and third alleged “findings” is that the City, having determined the statute inapplicable to promotions, never reached the point of interpreting how to apply the preference to Slusher and Sorrell and did not employ any process with respect to the preference.
Relators then leap to the conclusion that the City’s violation of the statute required the district court to grant them the relief they requested, including ordering the City to promote them. Such a conclusion would require a mechanical application of the veteran’s preference statute, utilizing a bright-line, court-determined definition of competence to determine that a veteran meeting mini mum job qualification requirements automatically gets the job, i.e., to construe the statute as providing an absolute entitlement rather than a preference. While the statutory language might lend support for such a strict application of the preference, our prior cases have opined that public policy considerations, and perhaps constitutional restrictions, dictate against such an approach.
Prior to the 1907 statutory amendments, Dever v. Humphrey, 68 Kan. 759, 75 Pac. 1037 (1904), declared that hiring decisions made fairly and honestly upon a good faith investigation of qualifications would not be open to review or revision by the courts. As rationale for such judicial restraint, Dever stated:
“The legislature has placed the authority of making appointments mainly in the administrative officers and boards, and vested them with a discretion and judgment to determine who is best qualified to serve the public, and the general rule in such cases is that the courts, cannot supervise the exercise of such authority, nor control the discretion and judgment so vested. [Citations omitted.]” 68 Kan. at 764.
Addison I, the first case decided after the 1907 statutoiy amendments, considered whether the new Veteran’s Preference Act language should be read literally so as to eliminate the discretion previously afforded to the hiring authority. The court opined:
“How or where these questions, so important to the veteran applicant, are to be determined, cannot be ascertained from the express terms of the statute. The duty of ascertaining whether these legal requirements exist or not naturally belongs to the appointing power, and to place this duty there would appear to be so eminently appropriate that under ordinary circumstances it would be assumed at once that the statute so intended, and the omission expressly so to state would be supplied by implication. A peculiar difficulty, however, stands in the way of such an interpretation of this statute. The former enactment expressly provided that the officer, board or person whose duty it was to make the appointment should, before any appointment was made, make an investigation as to the qualifications of the veteran applicant. The present law repeals this provision and does not provide in any way for the performance of this duty. From this it might be argued that it was intended to withdraw the performance of this duty from such tribunal, or to dispense with an investigation altogether. Either of these conclusions would leave the statute shorn of its most important features and would probably destroy its validity. Both should, therefore, be avoided, and some interpretation adopted, if possible, which will sustain the law. It seems clear from the language of the statute as it now stands that the legislature intended to confer this preference upon such veterans as might possess the prescribed requirements. In the absence of any provision to the contrary it may be held that the duty of determining all questions involved in making such appointments belongs to the appointing power, notwithstanding the repeal of the former act.
“We conclude, therefore, that the real purpose of the later act was not so much to change the old law with reference to the investigation and determination of the claims of applicants thereunder as to change the standard of qualifications required. Under the former act the applicant was required to possess qualifications equal to his competitors. Now it is sufficient if he is merely competent and able to perform the duties of the office.
“The meaning of the word ‘competent,’ as used in this statute, is not very clear. To ascertain the signification intended reference may be made to the subject-matter about which it is used. ‘Competent,’ when used to indicate the qualifications which a public officer should possess, must necessarily include every qualification essential to the prompt, efficient and honest performance of the duties pertaining to the office to be filled. A law which means less than this cannot stand. The maintenance of an efficient public service in all the departments of the government is a matter of paramount importance. Desirable as it may be to confer special public favors upon the rapidly disappearing patriots of this state, it cannot be done at a sacrifice of the public welfare.” 76 Kan. at 706-07.
When the same case returned to our Supreme Court, it clearly recognized that the hiring authority retained discretion in the application of the veteran’s preference and that the courts should afford due deference to that exercise of discretion. The State v. Addison, 78 Kan. 172, 175, 96 Pac. 66 (1908) (Addison II) (“ The determination of the appointing board or officer as to the qualifications of the applicant involves official discretion, and, when made fairly and in good faith, is final.’ The State v. Addison, 76 Kan. 699, 707, 92 Pac. 584.”). Subsequent cases reiterated the respective roles of the hiring authority and the courts. See, e.g., Owens v. City of Coffeyville, 151 Kan. 263, 269, 98 P.2d 415 (1940) (power to make the appointment rests with the hiring authority and is not subject to court review when honesdy and fairly made; courts cannot supervise the exercise of discretionary authority “nor control the judgment so vested”); Campbell v. Sargent, 85 Kan. 590, 594-95, 118 Pac. 71 (1911) (duty of the appointing authority to investigate the qualifications of the veteran applicants); Dever v. Platt, 81 Kan. 200, 201-02, 105 Pac. 445 (1909) (court cannot interfere with hiring decision which is made in good faith and fairly).
Here, the City never exercised its discretion in relation to the Veteran’s Preference Act, because it believed that K.S.A. 73-201 did not apply. The relators’ contention that the district court should have usurped the hiring authority’s power by ordering the City to promote them runs counter to a centuiy of judicial restraint. Likewise, the suggestion that we should, at this late date, interpret K.S.A. 73-201 as precluding the City’s exercise of discretion ignores that the legislature has not taken any action in the 100 years since Addison I to counter the Supreme Court’s interpretation of the veteran’s preference statute. Thus, we find that the district court’s order for the City to reopen the hiring process and apply a meaningful veteran’s preference for Slusher and Sorrell was the correct remedy in this case.
Competence
Although intertwined with the foregoing discussion, relators raise as a separate issue the district court’s refusal to declare them to be “competent” within the meaning of the veteran’s preference statute. Such a ruling would have been neither legally nor factually supportable.
Relators commence by reminding us of the rules for statutory construction, including the premise that the legislature is presumed to ascribe the ordinary and common meaning to the words that it uses. See Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). They then argue that the district court should have used the dictionary definition of “competent,” rather than relying on the explanation in Addison I. However, again, any argument that Addison I or its progeny misinterpreted legislative intent is negated by the legislature’s failure to rectify the alleged misinterpretation, notwithstanding the numerous amendments it has subsequently made to other provisions in the statute.
Next, the relators contend that the record before the district court on summary judgment revealed no material dispute as to the relators’ competence. We do not read the record as being so clear-cut. For instance, Slusher’s internal evaluations while a sergeant criticized his computer skills, and Sorrell was relatively unknown to newer officers because of his assignment outside the department.
Nevertheless, the point is that the courts should not be making the initial determination of competency because, as we discussed above, that discretion lies with the hiring authority. Addison II clarified that “competent” is “always a comparative term” which should “be construed in the sense of fully capable of adequately rendering all the services which the welfare of such a city demands.” 78 Kan. at 178. The hiring authority, rather than the court, is in the best position to perform that analysis, constrained only by the requirement that it act fairly, honestly, and in good faith.
We pause briefly to clarify that we do not believe that Addison II’s reference to competence being a “comparative term” was meant to resurrect the equal qualifications paradigm whereby the qualifications of one applicant is compared to another. Rather, it refers to comparing the veteran’s qualifications to the skills and experience necessary to efficiently perform the duties of the new position sought. For instance, a police officer assigned to patrol may be unquestionably the best patrol officer in the department, yet, if the officer lacks the skills necessary to effectively and efficiently supervise others, he or she may not be comparatively competent for a promotion to a supervisoiy position.
The relators also challenge the district court’s suggestion that mandamus was an inappropriate vehicle to challenge the discretionary determination of competency. They cite to National Mutual Casualty Co. v. Hobbs, 149 Kan. 625, 88 P.2d 1006 (1939), where the Supreme Court reversed the issuance of a writ of mandamus because the evidence was insufficient to establish that the public official’s act involved an abuse of discretion. When read in its entirety, Hobbs does not support the relators’ contention that discretionaiy acts are properly subject to mandamus. To the contrary, mandamus may not be invoked to control discretion. See Willis v. Kansas Highway Patrol, 273 Kan. 123, 127, 41 P.3d 824 (2002). The determination of competency under the Veteran’s Preference Act is a discretionary decision. The district court correctly opined that it was inappropriate to control the City’s discretion by finding the relators competent as a matter of law.
Finally, the relators attempt to transform the discretionary nature of the competency determination into a mandatory act by arguing that the City’s ordinances established a level of competence for the positions. The ordinances established the procedures for developing a certified fisting of eligible candidates but did not purport to define competence for the particular sergeant and lieutenant positions. Simply put, the argument is unavailing, and the relators’ reliance on Goodrich v. O’Neill, 85 Kan. 595, 117 Pac. 1016 (1911), is misplaced.
DAMAGES
The relators complain that the district court declined to award them damages for the City’s violation of the Veteran’s Preference Act. The statute governing mandamus has a specific provision for damages which states: “Damages. If judgment be given for the plaintiff, he or she may also recover such damages as he or she may have sustained by reason of the failure of the defendant to perform the specified duty, together with costs.” K.S.A. 60-802(c).
The relators’ arguments suggest that we should review the matter de novo. However, the statute uses the word “may” which is normally associated with a discretionary function. See Corder v. Kansas Board of Healing Arts, 256 Kan. 638, 661, 889 P.2d 1127 (1994) (the decision whether to grant damages is discretionary). Furthermore, “the question of damages in a mandamus action requires a consideration of the motives of the actor in failing to act.” 256 Kan. at 661.
The district court based its damage ruling on two bases. First, the court noted that, until the City made its determination of whether relators were competent to perform the duties of the respective positions, the court could not know whether the relators sustained any damages. In other words, if the relators were not entitled to the promotions, after being afforded a meaningful preference, then they did not sustain damages by reason of the City’s failure to apply the veteran’s preference statute.
We agree with the district court’s logic. Perhaps more fundamentally, however, the statute conditions the damage award upon judgment being given for the plaintiff. At this point, the relators have not been given judgment upon their claim that they are entitled to the promotions, and we have determined here that the district court was correct in not granting the promotions as a matter of law.
Secondly, the district court opined that it could not determine the measure of damages from the record before it. Contrary to the relators’ attempt to argue otherwise, the compensation information provided, over objection, by the City during discovery is not uncontroverted. Further, the information appears inadequate to definitively and accurately calculate the relators’ damage claim.
The district court’s refusal to award damages was well-founded and correct. The ruling is affirmed. See In re Marriage of Bradley, 282 Kan. 1, 7, 137 P.3d 1030 (2006) (judicial discretion abused only when action taken is arbitrary, fanciful, or unreasonable).
ATTORNEY FEES
The relators point out that K.S.A. 60-802(c) authorizes the award of attorney’s fees as damages in a mandamus action upon a finding that the public official’s refusal to perform a duty was unreasonable. They correctly concede that the denial of fees is reviewed for an abuse of discretion, citing to Knuth v. State Farm Mut. Auto. Ins. Co., 30 Kan. App. 2d 184, 185, 41 P.3d 287 (2000).
The relators give their attorney fee claim a great deal of efficacy by declaring that “the District Court found and as established above, Respondents acted in an unreasonable and/or arbitrary manner when they determined that K.S.A. 73-201 required equal qualifications.” However, the argument begins to evanesce when one considers the accuracy of the relators’ declaration.
We first note that the City’s action was to refuse to apply the veteran’s preference of K.S.A. 73-201 to Slusher and Sorrell based upon its opinion that the preference did not apply to promotions. Although the relators may have perceived the City’s arguments before the district court as promoting an equal qualifications interpretation of the statute, that was not the basis of the City’s refusal to perform a duty.
More to the point, the relators fail to provide a record citation to corroborate that the district court found respondents’ actions to be unreasonable and/or arbitraiy. The omission is understandable, given that such a cite does not exist. The labeling of the City’s actions as unreasonable and arbitrary appears to be the relators’ characterization, rather than the court’s finding. Rather, the district court specifically said that “respondents’ misinterpretation of the law in this case was not the product of bad faith.”
The relators do acknowledge the district court’s finding of no bad faith, but urge us to reweigh the evidence and countermand that factual finding. We decline to do so on the basis of our review standard. See LSF Franchise, 283 Kan. at 19 (we review factual findings to determine if they are supported by substantial competent evidence). However, we would note that relators’ factual arguments are less than persuasive and their other arguments in favor of awarding attorney fees are unavailing.
CROSS-APPEAL
CONSTITUTIONALITY OF KS.A. 73-201
In Slusher I, we observed that respondents had not challenged the constitutionality of K.S.A. 73-201. Upon remand to the district court, the respondents specifically argued against the statute’s constitutionality.
Upon appeal, respondents contend the statute violates the Privileges and Immunities Clause found in the Kansas Constitution Bill of Rights, § 2, which says that “[n]o special privileges or immunities shall ever be granted by the legislature, which may not be altered, revoked or repealed by the same body.” Additionally, they argue that applying the statute to promotions violates the due process and equal protection guarantees of both state and federal Constitutions. We disagree, perhaps ironically finding that our interpretation of the statute to vest discretion in the hiring authority, as urged by the respondents, saves the veteran’s preference from being constitutionally infirm.
We pause only briefly to state the obvious: appellate review of the constitutionality of a statute is a question of law over which we exercise unlimited review. See Williams v. Natural Gas Co. v. Supra Energy, Inc., 261 Kan. 624, 629, 931 P.2d 7 (1997). Well-settled principles govern our task:
“ ‘ “The constitutionality of a statute is presumed. All doubt 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. In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond a reasonable doubt.” [Citation omitted.]’ State v. Whitesell, 270 Kan. 259, 268, 13 P.3d 887 (2000).” State v. Brown, 280 Kan. 898, 899, 127 P.3d 257 (2006).
The respondents acknowledge that in Goodrich v. Mitchell, 68 Kan. 765, 75 Pac. 1034 (1904), the Supreme Court specifically found Kansas’ veteran’s preference statute to be constitutional. They attempt to discount the Goodrich decision as being relevant only to the pre-1907 version of the statute, because the opinion relied upon the statute’s “theory of equality of qualifications.” 68 Kan. at 770. The respondents also argue that Addison I, which applied the amended statute, only indirectly addressed the constitutionality of the veteran’s preference statute by stating in dictum that the statute was not unconstitutional because it placed public good at the forefront and left discretion with the appointing authority.
However, the invalidity which Goodrich found that our statute avoided by providing for equal qualifications was that of “a statute, making tire appointment of veterans compulsory, when the appointing power should think the applicants not qualified to perform the duties of the office sought.” 68 Kan. at 770. By interpreting the 1907 amendments to vest discretion in the hiring authority to determine whether the veteran is competent to perform the duties of the office sought, as established in Addison I and its progeny, K.S.A. 73-201 continues to avoid constitutional infirmity.
Respondents make the additional argument that, by interpreting K.S.A. 73-201 to include promotions in Slusher I, this court rendered the statute unconstitutional on due process and equal protection grounds. As the district court pointed out, to accept respondents’ argument, one must find that the Kansas Supreme Court ignored the premise that statutes should be construed so as to be constitutional, if possible, and abandoned its duty to uphold, rather than to defeat, the constitutionality of legislative enactments. We do not believe that to be the case.
Even though Slusher I stated that the constitutionality of K.S.A. 73-201 was not raised by the parties, it nevertheless considered the respondent’s citation to Housing Auth. v. Pa. Civil Service Com'n, 556 Pa. 621, 625, 730 A.2d 935 (1999), “as standing for the Pennsylvania court’s recognition of constitutional difficulties arising from the application of a veterans’ preference to promotions.” Slusher I, 279 Kan. at 793. Slusher I opined that the “Pennsylvania court’s reasoning is overly narrow.” 279 Kan. at 793. A reasonable interpretation of Slusher I is that the court considered, and rejected, the argument that construing K.S.A. 73-201 to apply to promotions renders it unconstitutional. Respondents fail to persuade us otherwise the second time around.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
Respondents claim that the relators failed to invoke the subject matter jurisdiction of the district court by failing to exhaust their administrative remedies. Apparently, Slusher did not commence the grievance procedure, and Sorrell stopped short of exhausting his remedies when he failed to appeal to the City’s Civil Service Commission.
An allegation that a party failed to exhaust his or her administrative remedies is a question of law over which we have unlimited review. Cole v. Mayans, 276 Kan. 866, 869, 80 P.3d 384 (2003).
“Generally, an agency should be given the first opportunity to exercise its discretion or special expertise. When an administrative remedy is provided by statute, such a remedy must ordinarily be exhausted before a party can bring the matter before the courts. However, if no agency remedy is available or when it is inadequate, exhaustion is not required.” 276 Kan. at 869 (citing NEA-Coffeyville v. U.S.D. No. 445, 268 Kan. 384, 389, 996 P.2d 821 [2000]).
Slusher I implicitly ruled on this question when it found that mandamus was appropriate because relators sought an authoritative interpretation of the law for the guidance of public officials. 279 Kan. at 796-97. The respondents do not and cannot point to any part of the grievance procedure whereby the relators could obtain such a remedy. As the district court stated: “Obtaining an authoritative interpretation of the law is not something the relators were entitled or required to pursue through administrative reme dies. Without obtaining authoritative interpretation of the law, whatever administrative remedies were available to the relators were essentially meaningless.”
We affirm the district court’s determination that, given the relief sought, the relators’ failure to exhaust their administrative remedies was not fatal to their petition for writ of mandamus.
MOOTNESS
This case was docketed in the Court of Appeals. Respondents filed a motion with the Court of Appeals to dismiss Sorrell’s appeal as moot. An affidavit from the Chief of Police was attached to the motion stating that Sorrell was promoted to sergeant on December 14, 2006, after he applied for a subsequent opening. Therefore, the respondents argued that there was no controversy, and the only judgment that could be entered as to Sorrell was moot.
An appeal will not be dismissed for mootness unless it is clearly and convincingly shown that the actual controversy has ended and the only judgment that could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in the case are concerned. In re M.R., 272 Kan. 1335, 1339, 38 P.3d 694 (2002).
As Sorrell argued in response, the appeal included the issue of whether he should have been awarded damages for the City’s failure to apply the veteran’s preference statute. The claimed damages were predicated on the loss of additional income from the date of the denial of the first promotion. Thus, his subsequent promotion did not end the controversy as to damages and attorney fees.
Affirmed.
Davis and Nuss, JJ., not participating.
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Per Curiam
This is an original uncontested proceeding in discipline filed by the Disciplinary Administrator against respondent, Dorsey Evans, an attorney admitted to the practice of law in Kansas on February 11, 1959, albeit respondent has been administratively suspended in this state since November 20, 1987. Respondent is also admitted to practice law in the District of Columbia and the state of Maryland. The respondent’s last registration address filed with the Cleric of the Appellate Courts of Kansas is Washington, D.C.
The complaint against respondent in this state arises out of a final adjudication of a disciplinary action and accompanying sanction in the District of Columbia, for which respondent was also reciprocally sanctioned in the state of Maryland. The formal complaint here charged respondent with violating Kansas Rules of Professional Conduct (KRPC) 1.1 (2006 Kan. Ct. R. Annot. 358) (competence), KRPC 1.7(b) (2006 Kan. Ct. R. Annot. 411) (conflict of interest), and KRPC 8.4(d) (2006 Kan. Ct. R. Annot. 510) (misconduct).
A hearing was held before a panel of the Kansas Board for Discipline of Attorneys on May 3, 2007. The respondent appeared pro se, by telephone. During his direct examination, the respondent testified that he had fulfilled the requirements for reinstatement in the District of Columbia. He was reinstated to the practice of law with the condition of probation and oversight of his practice on September 6, 2006. The respondent had also been reinstated to the practice of law in Maryland on March 13, 2007.
HEARING PANEL FINDINGS
The hearing panel found the following facts by clear and convincing evidence:
“2. The Respondent was admitted to the practice of law in the District of Columbia on June 1, 1960. Thereafter, on December 10, 1985, the Respondent was admitted to the practice of law in the state of Maryland.
“3. On April 27, 2006, the District of Columbia Court of Appeals issued an order of discipline regarding the Respondent. See In re Evans, 902 A.2d 56 (D.C. 2006). In its opinion, the Court incorporated the Board on Professional Responsibility’s report. The findings of fact contained in the Board’s report included the following:
A.Respondent’s Practice
“1. Respondent is a member of the Bar of the District of Columbia Court of Appeals, having been admitted on June 1, 1960. Respondent is also admitted to practice law in Maryland and Kansas.
“2. Respondent’s practice has included probate matters in the D.C. Superior Court since that court was formed in 1972.
“3. Respondent also has an active real estate settlement practice. In 1997, Respondent owned Delco Title, which he operated out of his law office in Silver Spring, Maryland. Bankers Financial Group, a mortgage lending company, used Respondent and Delco Tide repeatedly for mortgage settlements over a three-to four-year period through 1997, sending Delco Title approximately 20 loans per month for handling.
B.The Heirs of Zaidee Robinson
“4. Mrs. Zaidee H. Robinson died in 1987. At the time of her death, Zaidee Robinson owned real property located at 716 Ingraham Street in northwest Washington, D.C. (hereinafter the ‘Ingraham Street property’). As of April 1997, Zaidee Robinson’s estate had never been probated.
“5. Zaidee Robinson was survived by two sons, Maurice and Clifton.
“6. Maurice Robinson died in 1989. He was survived by his wife, Carolyn Robinson and two sons Qawi and Yusef. At the time of his death, Maurice and his family resided at the Ingraham Street property.
“7. Following his mother’s death, Clifton Robinson was incarcerated.
C.Respondent’s Representation of Carolyn Robinson
“8. On April 17,1997, Bankers Financial contacted Delco Title about handling a closing on a real estate loan for Carolyn Robinson. The loan was for $65,000 on the Ingraham Street property, where Carolyn Robinson lived at the time.
“9. At some point after the initial referral, Respondent learned that the Ingraham Street property was deeded to Zaidee rather than Carolyn Robinson. Carolyn Robinson subsequently retained Respondent to assist her in becoming personal representative of Zaidee Robinson’s estate and in closing the loan on the Ingraham Street property. As described by Respondent, his ‘office was asked to handle a title closing for Carolyn Robinson and a probate estate was opened to have the appropriate people appointed to sign for the loan.’
“10. The Committee concluded that the record is unclear regarding whether Respondent or a representative of Delco Title or anyone else in Respondent’s office disclosed his interest in Delco Title to Carolyn Robinson. We disagree with this finding in view of Respondent’s testimony that there was no situation in which it would have been appropriate for him to disclose his interest in Delco to Carolyn Robinson and that he had no knowledge whether she had such information prior to representing her in connection with the estate. Accordingly, the Board finds that Bar Counsel proved by clear and convincing evidence that Respondent did not himself disclose his conflict to Carolyn Robinson and did not know whether she had knowingly waived the potential conflict prior to representing her in his capacity as an attorney.
“11. On April 24, 1997, Respondent filed a Petition for Probate in the Probate Division of the Superior Court of the District of Columbia, on behalf of Qawi S. Robinson, Carolyn Robinson, and Clifton Robinson, as petitioners. Qawi and Carolyn Robinson are listed as personal representatives. The petition bears signatures of all three petitioners and Respondent signed as counsel.
“12. The petition listed Maurice Robinson, Carolyn’s husband, as ‘deceased.’ At the time of the filing, no probate estate had been opened for Maurice Robinson.
“13. The petition listed Clifton Robinson as ‘incarcerated.’ Respondent was informed by Carolyn Robinson that Clifton would waive his interest in the estate. Respondent made no effort to confirm this purported waiver with Clifton Robinson.
“14. Forms entitled ‘Renunciation, Nomination of Personal Representative and Waiver of Bond’ signed by Clifton and Yusef Robinson were filed with the Petition (the ‘renunciation forms’).
“15. On April 29,1997, a Probate Judge signed an Abbreviated Probate Order appointing Carolyn and Qawi Robinson as co-personal representatives of the estate of Zaidee Robinson.
“16. On May 8, 1997, Qawi and Carolyn Robinson, as co-personal representatives of the estate, deeded the Ingraham Street property to Carolyn Robinson.
“17. The same day, Carolyn Robinson executed a Deed of Trust mortgaging the Ingraham Street property for $65,000.
“18. The interest rate on the mortgage was 12.930%. A broker’s fee of $6,500 was paid to Bankers Financial from the settlement funds.
“19. Delco Title was paid a settlement fee of $350.
“20. Delco Title received a check for $824.20 out of the settlement funds. In addition to the settlement fee listed above, this payment included items 1102 and 1103 on HUD Form 1-A: $325 for ‘Abstract or title search to Lots and Squares Abstractors’ and $160 ‘Title examination to Spectrum Title Services.’ In fact, Delco paid only $75 to Spectrum Title Services and $155 to Lots and Squares Abstractors. Accordingly, die fees retained by Delco totaled $590.
“21. Respondent’s law office, Evans & Evans received $1,700.00 in fees from the setdement funds. This included document preparation fees (items and 1104 and 1105 on HUD Form A-l) and $1,300.00 in fees for probate work (item 1107).
“22. In total, Respondent retained $2290 from this transaction.
“23. Respondent did not receive approval from the Probate Court before accepting these payments.
D. Mishandling of the Estate and Closing
“24. Maurice Robinson was an heir to Zaidee Robinson’s estate. Bar Counsel’s experts testified that, because Maurice Robinson was deceased, it was necessary to open and probate his estate before transferring assets from his mother’s estate.
“25. Respondent did not open an estate for Maurice Robinson prior to transfer of the Ingraham Street property.
“26. It is apparent from the record that the Respondent intended the renunciation forms Clifton and Yusef Robinson filed with the probate petition to operate as waivers of their interest in the Ingraham Street property. The Committee found it was plain on the face of the document that the signatory only waived the right to act as personal representative of the estate and not the right to estate property. The Board accepts this finding.
“27. The Committee noted that Respondent gave inconsistent explanations regarding how he came to make this ineffective filing. Respondent initially claimed that he was acting on advice he received personally from a probate official, Donald Horton. According to Respondent, ‘the probate official handed this to me and said, instead of having this one signed, sign this one, and have Mr. Clifton Robinson sign filis one to renounce his interest in the properly.’
“28. However, the Committee noted that Respondent had made previous statements under oath that his office clerk, not Respondent, received the advice from the probate division regarding what form to use.
“29. When confronted at the Hearing with the prior inconsistent testimony, Respondent conceded T did send Tommy and he went there for me’ referring to his assistant Thompldn Hallman. Respondent did not call Mr. Hallman as a witness to this alleged conversation with the probate officer. The probate officer involved, Mr. Horton, now retired from the probate office, was called by Bar Counsel. He had no recollection of a conversation with Tommy Hallman where he suggested they use a ‘renunciation of personal representation form’ to renounce rights to the estate assets.
“30. The Committee did not find Respondent’s conflicting testimony to be credible. Accordingly, it found that he had not received any advice or suggestion from the probate division that he should use the ineffective form as a release of the signatory’s right to estate property. The Board accepts this finding.
“31. Bar Counsel’s expert testified that, in any event, an heir can only renounce a share in an estate within nine months of the date of death. After this time expires, the heir must formally assign the rights to effectively transfer title of estate property.
E. Subsequent Legal Proceedings
“32. On July 11,1997, Clifton Robinson filed an affidavit with the Probate Court alleging that his signature had been forged on the Petition for Probate, the Consent and Waiver of Bond, and the Renunciation.
“33. In response to this affidavit, the Probate Court entered an order directing Qawi Robinson and Carolyn Robinson to appear on September 10,1997 and ‘show cause why they should not be removed as co-personal representatives’ of the estate.
“34. At that hearing, the Respondent learned that his client, Carolyn Robinson, had forged Clifton Robinson’s signatures. The Committee declined to find that Respondent knew about the forgeries before the hearing and it credited Respondent’s testimony that he had no reason to question the signatures obtained by his client. The Board accepts this finding.
“35. Bar Counsel’s probate expert opined that she would write to the other heirs to make sure ‘they had no interest,’ and ‘malee certain that they signed an assignment or something.’ The Committee concluded, however, that this testimony did not support a finding that a competent probate attorney would have insisted on this course of conduct, i.e., would have spoken to or corresponded with the other heirs personally, rather than accept the statements of Ms. Robinson and the signatures she had supposedly obtained.
“36. The show cause hearing was continued until November 13,1997. Respondent did not attend the November 13 hearing. Respondent later claimed his absence from court was ‘due to a posting error by new personnel in . . . [my] office.’
“37. In a written Order issued on November 14, 1997, the Court removed Carolyn and Qawi Robinson as Co-Personal Representatives. The Court noted, ‘with this loan clouding the status of the [Ingraham Street property] Carolyn Robinson has an obvious conflict of interest of her own that precludes her ability to discharge her fiduciary duty.’
“38. The Court appointed Benny L. Kass, Esq. to act as personal representative of Zaidee Robinson’s estate.
“39. The November 14 Order also directed the removed co-personal representatives to file an affidavit detailing the assets and debts of the estate on or before January 5, 1998. Respondent was served with a copy of this Order.
“40. The removed co-personal representatives did not file the required affidavit. On the filing deadline, Carolyn Robinson filed a petition for an extension of time, claiming that she needed more time to comply because she was no longer represented by Respondent and that she had expected him to file the affidavit on her behalf. The Court denied this request in a written Order, dated January 28, 1998.
“41. In the January 28 Order, the Court expressed concern over (1) Respondent’s ownership of the title company used for the loan on the estate property, and (2) Respondent’s continued representation of the estate and Ms. Robinson, ‘knowing that she was using as collateral realty that did not belong to her’ and suggested that Bar Counsel should investigate this apparent conflict.
“42. The Court also noted that Respondent had made no effort to explain his absence at the November 13 hearing.
“43. The January 28 Order was served on both Respondent and Bar Counsel.
“44. On February 2, 1998, Respondent moved to withdraw as counsel for the estate, which the Court allowed on March 11, 1998.
“45. On May 8, 1998, Mr. Kass filed a civil action against Carolyn Robinson, Qawi Robinson, Respondent and his law firm, and Delco Title over the erroneous probate and property settlement. Respondent settled the claims against him for $37,500.
“4. Based upon tire facts set forth in ¶ 3 above, the District of Columbia Court of Appeals concluded that the Respondent violated District of Columbia Rules of Professional Conduct 1.1(a) (competent representation), 1.1(b) (skill and care), 1.7(b)(4) (conflict of interest), and 8.4(d) (conduct that seriously interferes with the administration of justice) during his representation of a client. As a result, the District of Columbia Court of Appeals suspended tire Respondent ‘from the practice of law in the District of Columbia for a period of six months with reinstatement conditioned upon his completion of six hours of continuing legal education courses in tire area of probate law and legal ethics.’ Evans, 902 A.2d at 59. Additionally, the District of Columbia Court of Appeals ordered that the final 90 days of the period be stayed on the condition that the Respondent be placed on probation and subject to a practice monitor for a period of one year.
“5. On August 10, 2006, tire Court of Appeals of Maiyland issued its opinion on the same matter and imposed reciprocal discipline. The Court of Appeals of Maryland suspended the Respondent for a period of 90 days. See In re Evans, 905 A.2d 384 (Md. 2006).
“6. For a period of twenty years, the Respondent has failed to pay the annual Kansas attorney registration fee, failed to complete tire requisite number of continuing legal education hours for Kansas, and has failed to pay the Kansas annual continuing legal education fee.”
HEARING PANEL CONCLUSIONS
The hearing panel then made the following conclusions of law:
“1. The District of Columbia Court of Appeals concluded that the Respondent violated Rule 1.1(a), Rule 1.1(b), Rule 1.7(b)(4), and Rule 8.4(d). The Rules in the District of Columbia are substantially similar to the Kansas Rules of Profes sional Conduct. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.1, KRPC 1.7(b), and KRPC 8.4(d), as detailed below.
“2. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ The Respondent failed to competently represent his client when he filed ineffective renunciation statements for Yusef and Clifton Robinson, when he permitted Carolyn Robinson to distribute estate assets without court approval, and when he took his fees out of the estate without court approval. See Evans, 902 A.2d at 70, 72. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.1.
“3. KRPC 1.7 provides the general rule regarding conflicts of interest. That rule provides, in pertinent part, as follows:
‘(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.’
In this case, the Respondent did not obtain the client’s consent after consultation. See Evans, 902 A.2d at 66. Therefore, the Hearing Panel concludes that the Respondent violated KRPC 1.7(b).
“4. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). In this case, the Respondent engaged in ‘conduct that is prejudicial to the administration of justice’ when he failed to attend the November 13 hearing regarding the forged documents, when he failed to withdraw from the representation or ensure that his client complied with the Court’s November 14 order directing her to file an accounting, and when he accepted payment of legal fees from estate assets without prior court approval. See Evans, 902 A.2d at 67. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(c).”
HEARING PANEL RECOMMENDATIONS
In recommending suspension for an indefinite period of time as the appropriate discipline in this case, the hearing panel considered the following factors outlined by the American Bar Association Standards for Imposing Lawyer Sanctions:
“Duty Violated. The Respondent violated his duty to his client to provide competent representation, his duty to his client to refrain from conflicts of interest, and his duty to the legal profession to refrain from prejudicing the administration of justice.
“Mental State. The Respondent knowingly violated his duties.
“Injury. As a result of the Respondent’s misconduct, tire Respondent caused actual harm.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Prior Disciplinary Offenses. The Respondent has been previously disciplined on two occasions. In 1982, the Respondent was informally admonished for fading to supervise the work of an associate attorney. In 1990, the District of Columbia Court of Appeals suspended the Respondent’s license to practice law for six months for negligent misappropriation. In that case, the Respondent took a fee from an estate without proper authorization. In re Evans, 578 A.2d 1141 (D.C. 1990). Finally, in cases based upon the facts in the instant case, the District of Columbia Court of Appeals and the Maryland Court of Appeals suspended the Respondent’s license to practice law for a net period of 90 days each.
“Dishonest or Selfish Motive. The Respondent’s misconduct was motivated by selfishness, in that, by virtue of the conflict of interest, the Respondent and his title company received funds from the estate.
“Refusal to Acknowledge the Wrongful Nature of his Conduct. The Respondent refused to acknowledge that he engaged in wrongdoing—other than to admit that he failed to read the form he used for the renunciation of the interest in the estate. The Respondent failed to acknowledge that he failed to provide competent representation to his client, the Respondent failed to acknowledge that he had a conflict of interest, and the Respondent failed to acknowledge that his misconduct prejudiced the administration of justice. Accordingly, the Hearing Panel concludes that the Respondent’s failure or refusal to acknowledge the wrongful nature of his conduct is a factor in aggravation in this case.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to the practice of law in 1959. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for a period of more than 40 years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Imposition of Other Penalties or Sanctions. For this conduct, the Respondent has been suspended from the practice of law in the District of Columbia and the state of Maryland.
“Remoteness of Prior Offenses. The discipline imposed in 1982, is remote in time and in character to the misconduct in this case. The discipline imposed in 1990, is remote in time but not in character to the misconduct in this case.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘Suspension is generally appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes injury or potential injury to a client.’ Standard 4.32
‘Suspension is generally appropriate when a lawyer engages in an area of practice in which the lawyer knows he or she is not competent, and causes injury or potential injury to a client.’ Standard 4.52
‘Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.’ Standard 7.2.”
The panel recommended the following discipline:
“The Deputy Disciplinary Administrator recommended that the Respondent be indefinitely suspended.
“The Respondent stated that he has already been suspended from the practice of law for this conduct—in the District of Columbia and Maryland—and that no discipline should be imposed.
“The Hearing Panel considered the Respondent’s argument that because he has already been suspended from the practice of law in the District of Columbia and the state of Maryland that he should not be again suspended for the same misconduct. First, a license to practice law is a privilege not a right. In order to preserve the privilege, a lawyer must refrain from engaging in misconduct. Second, because our profession is self-regulated, the public monitors actions taken closely. Thus, when a lawyer engages in misconduct, appropriate discipline must be imposed (1) to assure that the public is protected and (2) to establish that the public’s confidence in our system of self-regulation is deserved. Finally, the Respondent has applied for and received three licenses to practice law—in the state of Kansas, the District of Columbia, and the state of Maryland. The jurisdictions are separate and distinct entities and the status of the license in one jurisdiction is not interdependent on the status of the others. Each jurisdiction has the authority to regulate its licensees subject to its rules.
“Generally, in reciprocal discipline cases, the Hearing Panel is inclined to recommend that the same discipline be imposed in Kansas as was imposed in the state where the Respondent practices. However, in this case, the Respondent’s relationship with Kansas is different than the Respondent’s relationship with the District of Columbia and the state of Maryland. The Respondent actively practices law in the District of Columbia and the state of Maryland. In contrast, the Respondent has never practiced law in Kansas, he has no present plans to move to Kansas and practice law, and he has made no attempt to comply with the requirements of the Kansas Supreme Court rules. The Respondent failed to pay registration fees, failed to pay continuing legal education fees, and failed to complete the required continuing legal education hours. The Respondent’s inaction has resulted in a 20-year suspension from the practice of law in the state of Kansas.
“Because the Respondent has failed to comply with the rules of the Kansas Supreme Court for a period of 20 years, a more severe discipline is appropriate. Accordingly, the Hearing Panel recommends that the Kansas Supreme Court suspend the Respondent’s license to practice law for an indefinite period of time.
“In the event the Respondent applies for reinstatement, the Hearing Panel recommends that at the reinstatement hearing, the Respondent establish that he knows, understands, and is willing to comply with the Kansas Supreme Court rules. Further, based upon the Respondent’s testimony, the Hearing Panel is somewhat concerned regarding the Respondent’s competence. As such, if the Respondent applies for reinstatement, the Hearing Panel recommends that the Disciplinary Administrator investigate fully whether the Respondent is competent to engage in the active and continuous practice of law.
“Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
DISCUSSION
That respondent violated the Rules of Professional Conduct in this state requires no discussion. Respondent did not file exceptions to the final hearing report of the panel, and, therefore, the panel’s findings of fact are deemed admitted. Supreme Court Rule 212(d) (2006 Kan. Ct. R. Annot. 295). Likewise, pursuant to Supreme Court Rule 202 (2006 Kan. Ct. R. Annot. 239-40), “[a] final adjudication in another jurisdiction that a lawyer has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this state.”
On the other hand, we have no constraints in determining the appropriate disposition. “The recommendation of the panel or the Disciplinary Administrator as to sanctions to be imposed shall be advisory only and shall not prevent the Court from imposing sanctions greater or lesser than those recommended by the panel or tire Disciplinary Administrator.” Supreme Court Rule 212(f) (2006 Kan. Ct. R. Annot. 297).
At first blush, the recommended sanction of indefinite suspension would appear disproportionate to that imposed in the District of Columbia and the state of Maryland. However, as the panel noted, unlike his relationship with the other jurisdictions, respondent has been continuously suspended from the practice of law in this state for 2 decades because of his complete disregard for the administrative and financial obligations placed upon those attor neys who would be active practitioners in this state. Therefore, we concur with and adopt the panel’s recommendations.
It Is Therefore Ordered that Dorsey Evans be and he is hereby indefinitely suspended from the practice of law in the state of Kansas, effective on tire date of this opinion.
It Is Therefore Ordered that Dorsey Evans shall comply with Supreme Court Rule 218 (2006 Kan. Ct. R. Annot. 314) and, if respondent seeks reinstatement, that he shall comply with Supreme Court Rule 219 (2006 Kan. Ct. R. Annot. 327); that he shall demonstrate that he knows, understands, and is willing to comply with the Kansas Supreme Court rules; and that he is competent to engage in the active and continuous practice of law in this state.
It Is Therefore Ordered that this opinion be published in the official Kansas Reports and that respondent pay the costs of these proceedings.
Davis, J., not participating.
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The opinion of the court was delivered by
Nuss, J.:
Paul Drayton directly appeals his convictions of first-degree murder and felony theft. 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 State violate an order in limine by introducing testimony suggesting Drayton was incarcerated when detectives interviewed him? No.
2. Did the district court commit reversible error in allowing a police detective essentially to testily that, were he innocent, he would have responded to police questioning differently than Drayton did? No.
3. Did the prosecutor commit reversible error by eliciting testimony from a police detective that Drayton had invoked his right to siíence and by using that invocation to impeach his credibility in closing argument? No.
4. Was the evidence insufficient to support a theft conviction because the State could not prove that the murder victim, who owned the van, was alive at the time of its taking? No.
5. Did the district court err in ordering Drayton to reimburse BIDS for attorney fees in the amount of $7,110, when it essentially found that he would not have the financial ability to pay? Yes.
Accordingly, we affirm the convictions but reverse the district court’s attorney fees assessment.
FACTS
Paul Drayton was released from the Sedgwick County Adult Detention Facility on May 30,2002. That same day he visited a friend, James Mayberry. After the two men engaged in sexual relations, Drayton discarded his condom in a trash can in Mayberry’s bathroom.
The next day, a large blue plastic grocery/trash bag was found by the Magetti family near their curb in Wichita, approximately 2 to 3 miles from Mayberry’s house. While they first saw it as they were leaving for work at approximately 8 a.m., they did not look more closely until returning home at approximately 4 p.m. Upon seeing the contents, the Magettis called the police.
The police found that the bag contained two knives with dried blood, wadded bloody paper towels, a used condom, and a wallet containing Mayberry’s driver’s license but no money. The police then went to Mayberiy’s house. They found no sign of forced entry but did find Mayberry nude, bloodied, and dead in his bed, with multiple wounds to his neck and chest. In the bedroom was a box of condoms and a roll of paper towels, like those found in the grocery/trash bag. The police noted that Mayberry’s van was missing, which they later found—with the key in the ignition—a few blocks from the Magettis’ house. The van had been seen there with its lights on as early as 4 a.m. that day by a neighborhood resident.
DNA profiles were later obtained from the condom found in the bag. Most of the DNA from the condom exterior proved to be Mayberry’s, while the DNA profile from the semen in the condom interior was found to be a possible match to Drayton.
Approximately 18 months later, in December 2003, Wichita Police Detective Kelly Otis traveled with Detective Mark Gantt to interview Drayton in Texas where he was incarcerated for another crime. After Detective Otis advised Drayton of his rights, he agreed to speak with Otis. After approximately 50 minutes of interviewing, Drayton requested that it end.
A buccal swab was taken from Drayton after the interview. The DNA from that swab was matched to the profile of Drayton earlier obtained from the used condom. Drayton was then charged with first-degree murder and felony theft.
At trial, the coroner established that Mayberry died from multiple stab wounds to the neck and chest. The DNA samples from the condom were introduced and established as those of Mayberry and Drayton.
John Bailey, a mutual friend of Drayton and Mayberiy, testified that in July 2002, a few months after the murder, Drayton telephoned him. When Bailey advised Drayton that Mayberry had been murdered, Drayton replied that he had not been in Wichita that weekend and asked that Bailey not tell anyone where he was.
Detective Otis testified that during the Texas interview with Drayton:
1. Drayton stated initially that he went straight from the county detention facility to the bus station and directly to Texas, without stopping to visit anyone in Wichita. Upon further questioning, however, Drayton then admitted that he had visited Mayberry.
2. Drayton said Mayberiy had been sick, they had talked about a friend, and Mayberry then showed him Mayberry’s recently acquired used van. Initially Drayton said he just looked at the van from the outside. After Otis falsely told Drayton that his fingerprints had been found inside the van on the steering wheel, however, Drayton then admitted that he had sat in the driver’s seat but had not driven it.
3. Drayton said he left Mayberry’s house the evening of his visit, walked the few miles to the bus station, and took the 11 p.m. bus to Dallas.
4. Drayton said that he and Mayberiy had no sexual contact, asserting that he (Drayton) “was not that way.”
5. Drayton did not say whether he was aware that Mayberry had been filled (Otis eventually told him that Mayberry had been), nor did Drayton ask Otis why he had come to Texas to interview him.
6. When Drayton asked for an attorney, Otis ended the interview. But Drayton then volunteered: “I don’t know why you think I would kill him, I had my own money.” However, neither Mayberiy’s wallet nor possibly missing money had been mentioned during the interview.
After Drayton’s objection to Otis’ testimony about the Texas interview was again overruled, Drayton then testified:
1. He did have sex with Mayberiy during his visit on May 30,2002. He had not admitted this conduct to Detective Otis during the Texas interview because he was very private about his sexuality.
2. He had left Mayberry’s house around 7 p.m., and Mayberiy was not feeling well when he left. He had walked the few miles back to the bus station, spent the night in and around that station, and left on the 11 a.m. bus the next day for Dallas.
3. He often got a.m. and p.m. mixed up, but he had told Otis during the Texas interview that he had left Wichita on a bus at 11, without specifying either a.m. or p.m.
A contractor for Greyhound Bus Lines in Wichita testified that when Drayton traveled from Wichita to Dallas in May 2002, only three buses made that trip. They left Wichita at 5:15 a.m., 12:25 p.m., and 5:45 p.m.
Drayton was convicted and sentenced to life imprisonment without the possibility of parole for 25 years for first-degree murder and 7 months’ imprisonment for theft, to be served consecutively.
Additional facts will be provided as necessary to tire analysis.
ANALYSIS
Issue 1: The State did not violate an order in limine by introducing testimony suggesting Drayton was incarcerated when detectives interviewed him.
Drayton’s brief asserts that the State violated an order in limine when Otis referenced the Texas facility and its guards in his testimony and that the violation constitutes reversible error. The State responds that the issue has not been preserved for appeal because Drayton did not object at trial to Otis’ references. See State v. Decker, 275 Kan. 502, 507, 66 P.3d 915 (2003) (if a party’s motion in limine is granted to exclude the admission of certain evidence at trial, but the party does not object to the admission of such evidence at trial, then the issue is not preserved on appeal). In the alternative, the State argues that any error was harmless.
We agree with the State that the issue has not been preserved for appeal. While Drayton tried to avoid the trial objection requirement by reframing the issue at oral arguments as prosecutorial misconduct, we will not accept this late characterization.
Even if the issue were preserved for appeal, we hold that no order violation occurred; even if so, it caused no substantial prejudice to Drayton. See State v. Gleason, 277 Kan. 624, 640, 88 P.3d 218 (2004) (“ ‘We employ a two-part test to evaluate alleged violations of a motion in limine: [1] Was there a violation of the order in limine and [2] if the order in limine was violated, did the testimony substantially prejudice the defendant?’ ”).
No order violation
Drayton’s actual motion in limine requests an order “restricting the State from admitting certain evidence . . .
“1. That the Defendant’s prior criminal record ... is immaterial, irrelevant, and inadmissible for the purpose of impairing his credibility as a witness . . . pursuant to K.S.A. 60-421.
“Furthermore, any evidence of a trait of the Defendant’s character as tending to prove his guilt of any of the offenses charged, if offered by the State to prove guilt, may only be admitted after the Defendant has introduced evidence of his good character pursuant to K.S.A. 60-447(b)(ii). If such information were made known to the jury, it would be improper, unduly prejudicial and erroneous. Moreover, the prejudice and harm could not be erased by the court sustaining an objection and/or instructing the jury to disregard such evidence.
“3. The State has not filed a motion pursuant to K.S.A. 60-455 for the purposes of admitting into evidence the Defendant’s prior criminal history. Any attempt to admit the same at trial would be substantially prejudicial to the Defendant and such could not be erased by the court sustaining an objection and/or instructing the jury not to consider evidence of any prior criminal history.” (Emphasis added.)
There is no written order contained in the record on appeal, but later discussion of the actual motion consisted of this very brief exchange:
“THE COURT: Anything else? You had one, Mr. Brown [Drayton’s Attorney]?
“MR. BROWN: Motion in limine for us, going into what he was convicted of.
“THE COURT: Motion in limine then to follow the law.
“MR. BROWN: Unless I let the cat out of the bag.” (Emphasis added.)
The following exchange about the Texas interview occurred during direct examination of Otis during the State’s case-in-chief:
“Q: And could you explain to the jury this interview that you had with Mr. Dray-ton? What was the size of the room?
“A: The room was—I don’t know what its official name was—it was almost like a dayroom or visiting room.
“Q: Okay.
“A: It consisted of several tables, vending machines. The room was probably slightly larger maybe than this courtroom. The room at the time of the interview was empty. The guards had allowed us to have access to that room in the facility. We interviewed Mr. Drayton in that room. It was like a lunchroom.” (Emphasis added.)
Drayton points to the italicized words and asserts that by mentioning “guards” and using the terms “visiting room” and “facility,” Detective Otis “violated the order in limine by indirecdy informing the juiy that Mr. Drayton was in a secure facility with guards at the time of the interview” to convey that Drayton was in jail. He also asserts that the State, recognizing the impact of such information, agreed to keep this evidence out. Drayton references a specific conversation among the attorneys and the court in support.
That conversation, which occurred on the first day of trial shortly before the discussion of the motion in hmine, consisted of the following brief exchange:
“MR. BROWN [Drayton’s attorney]: We also have the situation where they interviewed him in the Texas penal facility.
“THE COURT: I think you can just say they went to Texas and interviewed him at such and such.
“MS. PARKER [State’s attorney]: The big issue—I think we can do that we interviewed him in Texas in a room. The real issue for us, I think, is the time of his release [much earlier, from the Kansas Department of Corrections], we have a witness. And I don’t know.” (Emphasis added.)
Based upon Otis’ testimony, the written motion and apparent oral order in limine, and the ensuing discussion, we are unable to conclude that any order in limine was violated. Otis’ testimony does not address Drayton’s prior criminal history or what he was convicted of. While the State arguably agreed to simply state he had been interviewed in a Texas room, and while “guards” and “facility” were indeed mentioned in one instance, Otis also testified he was in a room like a dayroom, a visiting room, or a lunchroom with several tables and vending machines.
No substantial prejudice
Even assuming an order violation, Drayton must show that it caused him substantial prejudice. See State v. Gleason, 277 Kan. at 640. Errors that do not affirmatively cause prejudice to the sub stantial rights of a complaining party do not require reversal when substantial justice has been done. State v. Voyles, 284 Kan. 239, 252, 160 P.3d 794 (2007); see K.S.A. 60-261.
Drayton assumes that the juiy learned from the testimony that he was in jail in Texas. He asserts that this could have led the jury to the incorrect inference that since he had been in jail before, he was more likely to be guilty of the present offense. He concludes that “[i]t cannot be said that the jury’s knowledge that Mr. Drayton had been in jail in Texas did not contribute to the jury’s verdict in this case.”
Drayton has not demonstrated, however, that the jury knew of his incarceration in Texas. But it did hear evidence that Drayton had been released from the Sedgwick County Adult Detention Facility the same day as Mayberry’s murder. It also heard Drayton himself testify that he had been “incarcerated for some time” and associated with “drug dealers and gang bangers.” If error occurred, its consequences did not substantially prejudice Drayton.
Issue 2: The district court did not commit reversible error in allowing a police detective essentially to testify that, were he innocent, he would have responded to police questioning differently than Drayton did.
Drayton next argues that Detective Otis was improperly allowed to express his opinion on what he found “unusual” about the differences between Drayton’s Texas statement and his later trial testimony. The State essentially responds no error occurred and, if so, it was harmless.
For our standard of review, this court has stated:
“[Ejvidentiaiy rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge’s discretion, depending on the contours of the rale in question. When the adequacy of the legal basis of a district judge’s decision on admission or exclusion of evidence is questioned, an appellate court reviews the decision de novo.” State v. Gunby, 282 Kan. 39, Syl. ¶ 2, 144 P.3d 647 (2006).
After Otis testified in detail about the differences between Dray-ton’s stories, he was briefly cross-examined:
“Q. And it [the Texas interview] lasted only about 50 minutes?
“A. Yes, sir.
“Q. And then the interview was terminated?
“A. That is correct.
"Q. Nothing unusual about that-—I mean, a person doesn’t have to talk to you?
“A. That’s correct.” (Emphasis added.)
Otis was then examined on redirect. The State’s brief characterizes Otis’ redirect testimony as his finding “it unusual that a suspect would partake in an interview, but not provide all the information he felt would be helpful to the investigation, especially information tending to deflect suspicion of his involvement”:
“Q. You were asked if you found anything unusual about this interview. And in light of [Drayton’s] testimony yesterday, do you find anything unusual about this interview?
“A. I certainly do.
“Q. And what is that?
“MR. BROWN: Your honor, I’ll object, foundation, as far as him giving an opinion about this interview being unusual.
“THE COURT: Overruled.
“MR. BROWN: All right.
“A. I found it unusual yesterday, it would be—It seems to me that, if someone were asking me questions about a homicide, and the questions became pointed to the level that I felt that I was possibly being accused of that homicide, that the person possibly being accused would not [sic] be completely truthful if he were not involved in the death of that person, that he would not [sic] tell or give the police a statement that could be followed up that could possibly remove him of suspicion. I felt that, after yesterday’s testimony by Mr. Drayton, that it would have been possibly embarrassing for him to admit to having sex with a victim, however, it certainly could have shed a light on some evidence that was located. And I don’t know why he wouldn’t have told me that at the beginning.
“MS. PARKER: Thank you. No further questions.
“MR. BROWN: No, I don’t have any recross. Thank you.” (Emphasis added.)
No opening the door
The State first argues that Drayton’s counsel opened the line of questioning as to the unusualness of Drayton’s testimony by asking Otis to express his opinion about it. See State v. Johnson, 258 Kan. 475, 481, 905 P.2d 94 (1995) (when a defendant opens an otherwise inadmissible area of evidence during examination of witnesses, the prosecution may then present evidence in that formerly for bidden sphere); see also State v. Fisher, 283 Kan. 272, 311, 154 P.3d 455 (2007) (same).
We disagree with-the State. The “nothing unusual” the defense was discussing concerned Drayton’s termination of the interview because he did not have to talk to Otis. That is quite different from the “unusualness” the prosecutor then explored, i.e., the unusualness of what Drayton did or did not say in Texas and inviting Otis’ opinion as to why.'
Having rejected the State’s first attempt to prevail on this issue, we must now determine whether the admission of the challenged testimony should be reviewed as a matter of law or as a question of discretion. Gunby, 282 Kan. 39, Syl. ¶ 2.
Opinion on credibility and guilt
Otis’ testimony can be construed as an opinion on the credibility of Drayton as a witness. We have held that a witness may not express an opinion on the credibility of another witness. State v. Jackson, 239 Kan. 463, 470, 721 P.2d 232 (1986). This is because the determination of the truthfulness of a witness is for the jury. State v. Plaskett, 271 Kan. 995, 1009, 27 P.3d 890 (2001); State v. Manning, 270 Kan. 674, 698, 19 P.3d 84 (2001); see State v. Lash, 237 Kan. 384, 386, 699 P.2d 49 (1985).
Asking for a witness’ opinion on another witness’ credibility, even if done indirectly, as here, is still improper. The case of State v. Mullins, 267 Kan. 84, 977 P.2d 931 (1999), provides guidance. There, the following colloquy occurred between the prosecutor and a nurse who had examined the sexual abuse minor victim:
“Q. [Mr. Cahill] Okay. Was there anything about that evaluation that caused you to be concerned that there might be coaching or that [victim] in some way would be making this up? Anything inconsistent in his statements regarding that?
“MR. REARDON: I object to this on the basis she can’t be a human lie detector as to whether or not the child was telling the truth.
“MR. CAHILL: That’s not what I am asking. Asking if anything led her to be concerned about the statements in that area that were inconsistent.
“THE COURT: I will allow it. Go airead.
“Q. [Mr. Cahill] go ahead and answer it.
“A. [Phillips] I thought he had been coached?
“Q. [Mr. Cahill] Right. Any indication of that kind of behavior?
“A. [Phillips] No.” (Emphasis added.) 267 Kan. at 93.
The Mullins court held that when the nurse was asked whether the sexual abuse victim was coached, this was another way of asking if he was telling the truth. The court held that the line of inquiry was improper “and the trial court erred in allowing the question to be answered.” 267 Kan. at 97.
It is even more clear that Otis’ testimony can be construed as an opinion on the often closely related issue of Drayton’s guilt or innocence, i.e., “In my opinion, an innocent person would have told me the truth at the outset.” Opinions on guilt or innocence are improper. State v. Jackson, 239 Kan. at 470 (“[W]e think it was error for the trial court to permit the witnesses to testify and tell the juiy that in their opinions the defendant committed the acts of molestation with which he was charged.”).
This court’s opinion in State v. Steadman, 253 Kan. 297, 855 P.2d 919 (1993), is of guidance. There, this court reversed the murder and robbery convictions and remanded for new trial because one detective was allowed to testify that in his opinion, defendant killed the victim and only guilty suspects feel the enormous pressure defendant exhibited during the interrogation at the police department. A second detective testified that he thought defendant was guilty because, among other things, other suspects were “ ‘honest’ ” and not guilty of the crime. 253 Kan. at 300, 303-04. Just as the Steadman detective was prohibited from opining that only guilty subjects feel the enormous pressure the defendant exhibited during the interrogation, Detective Otis was prohibited from opining that it was unusual for a suspect “to not provide all the information he felt would be helpful to the investigation, especially information tending to deflect suspicion of his involvement.”
In light of our prior decisions, we conclude that the district court had no discretion on whether to allow Detective Otis to express his opinion on Drayton’s credibility or on his guilt or innocence. That opinion testimony is inadmissible as a matter of law. See State v. Elnicki, 279 Kan. 47, 53-54, 105 P.3d 1222 (2005) (trial court has no discretion on whether to allow witness to express an opinion on the credibility of another witness; such evidence is inadmissible as a matter of law); State v. Steadman, 253 Kan. at 304 (without citing standard, court held that police witnesses “cannot testify that in their opinion the defendant was guilty of the crime”).
Otis’ status as a police detective, whether qualified as an expert or not, does not affect this holding. Expert witnesses are similarly prohibited from expressing opinions on witness credibility or the defendant’s guilt. See State v. Jackson, 239 Kan. at 470 (error to permit expert witnesses to testify that in their opinions the child victim was telling the truth and defendant committed the acts of molestation with which he was charged); State v. Lash, 237 Kan. at 386 (psychologist could not testify as to his expert opinion that the alleged victim had been sexually molested by defendant because it called for opinion as to whether victim was telling the truth that his father was the molester: requires expert to pass upon the credibility of witnesses or the weight of disputed evidence); see also State v. Plaskett, 271 Kan. at 1008-09 (error in allowing detective to express opinion as to whether victim was telling the truth); State v. Steadman, 253 Kan. at 304 (police witnesses “cannot testify that in their opinion the defendant was guilty of the crime”).
Now that we have determined it was error to admit this evidence, we tum to the magnitude of the error, i.e., whether it was harmless or reversible. See, e.g., State v. Mullins, 267 Kan. at 97.
Harmless error
Errors that do not affirmatively cause prejudice to the substantial rights of a complaining party do not require reversal when substantial justice has been done. State v. Voyles, 284 Kan. at 252; see K.S.A. 60-261. Among other things, this court specifically considers whether the error is of such a nature as to affect the outcome of the trial. See State v. Englehardt, 280 Kan. 113, 130, 119 P.3d 1148 (2005) (reversal is required only where an erroneous admission of evidence is of such a nature as to affect tire outcome of the trial and deny substantial justice).
The record reflects that the DNA of both Mayberry, as victim, and Drayton were found on the used condom the day after May- berry’s death. Bailey testified that after Drayton telephoned him and Bailey informed him Mayberry had been murdered, Drayton volunteered that he had not been in Wichita that weekend and asked Bailey not to tell anyone where he was. Moreover, Detective Otis testified that Drayton never asked him why he had come all the way from Wichita to Texas for the interview. While nothing had been said in the interview about Mayberry’s missing wallet or any money missing from it, when the interview terminated Drayton then volunteered, “I don’t know why you think I would kill him, I had my own money.”
Additionally, Drayton’s stories frequently changed, revealing not only substantial inconsistencies often disfavored by juries but also establishing substantive evidence of his guilt. Although he first told Otis he had gone straight from the detention facility to the bus station, he then admitted he had visited Mayberry between those two stops; the police found no evidence of forced entry into May-berry’s apartment where his body was found. While he first told Otis he had merely looked at Mayberry’s newly acquired van from the outside, when told his fingerprints had been found on the steering wheel, he then admitted he had sat in the driver’s seat—but had not driven it. The van was then found, with the key in the ignition, the day after the murder, in the same neighborhood as the bag containing the bloody knives and towels.
According to Otis, Drayton first told Otis he had taken the 11 p.m. bus to Dallas; at trial Drayton testified he left on the 11 a.m. bus, explaining he often got a.m. and p.m. mixed up but had simply told Otis he had left at 11. A bus company contractor testified in contradiction: there had been no bus at either 11 a.m. or 11 p.m. Additionally, while Drayton first told Otis he had no sexual contact with Mayberry, at trial he testified that they did have sex the day before Mayberry’s body was found. The used condom containing their DNA was found the day after Mayberry’s death in the bag with bloody knives and towels not too far from where Mayberry’s van was then found, with the key in the ignition, several miles from the murder scene. It is highly likely that the person who took the time to remove the used condom from the murder scene and dis card it at this far location was the same person whose inculpatory DNA was on it.
Finally, Drayton’s narrow window of freedom in Wichita—from when he was released from the detention facility until he said that he left on the bus for Dallas—was within the same time frame as when Mayberry was killed.
Based upon this evidence, we conclude that any error was harmless: Otis’ improper testimony did not affect the outcome of the trial and deny substantial justice.
Issue 3: The prosecutor did not commit reversible error by eliciting testimony from a police detective that Drayton had invoked his right to silence and by using that invocation to impeach his credibility in closing argument.
Drayton argues that the prosecutor committed reversible misconduct when, in violation of Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), he improperly impeached Dray-ton with Drayton’s post-Miranda silence. Specifically, the prosecutor twice elicited testimony from Detective Otis that Drayton had invoked his right to silence, and the prosecutor commented on this invocation during closing argument. Among other things, the State responds that the issue of a Doyle violation is not preserved for appeal because Drayton admits that he failed to make contemporaneous objections at any time.
Historically this court has required a contemporaneous objection to preserve a Doyle violation for appeal. See Fisher v. State, 222 Kan. 76, Syl. ¶ 7, 563 P.2d 1012 (1977). Here, there clearly were no contemporaneous objections to any of the three alleged violations. However, the lack of a contemporaneous objection has not necessarily barred consideration of an appeal under a claim of prosecutorial misconduct. See State v. Swinney, 280 Kan. 768, 779, 127 P.3d 261(2006). In State v. Hernandez, 284 Kan. 74, 79, 159 P.3d 950 (2007), we acknowledged a potential conflict between these two schools of thought where, as here, the defendant framed the alleged Doyle violations as instances of prosecutorial misconduct. Because Hernandez’ trial counsel had raised an appropriate objec tion under Doyle, we did not otherwise address the possible tension. Hernandez, 284 Kan. at 79.
Similarly, today we do not decide the issue of whether a lack of a contemporaneous objection to evidence constituting a Doyle violation prevents the resultant argument on appeal of prosecutorial misconduct. We acknowledge that the State’s brief cites State v Sanchez, 282 Kan. 307, 311, 144 P.3d 178 (2006), for the proposition that an appellate court does not review an alleged Doyle violation when defendant fails to raise a timely objectioii with the trial court. However, no real argument was made that we should not consider the Doyle issue on appeal until the State’s letter under Supreme Court Rule 6.09 (2007 Kan. Ct. R. Annot. 45) discussing Hernandez was filed 2 days before oral arguments in this case. Like Hernandez, we leave resolution of this tension for another day, when the issue has been squarely presented and the parties have had sufficient opportunity to fully address it in their briefs, or to adequately prepare for it at oral arguments, or both. Accordingly, ■ we will consider whether the now objected-to instances constitute prosecutorial misconduct. But first, we review the facts.
The testimony and closing argument
The first instance which allegedly shows that the State violated Drayton’s right to silence was when the State was laying the foundation for Detective Otis to testify on direct examination about the Texas interview:
“Q. And did there come a time in your interview, .after you had given him Miranda, that he decided that he wanted to stop talking to you?
“A. Yes.
“Q. Or he asked for a lawyer?
“A. He did.
“Q. Let’s go through how you went through the Miranda form for the jury, please.
“A. Okay.”
This exchange was followed by a lengthy detailed description of the process of reviewing with Drayton the Miranda rights form used by the Wichita police. Otis completed this form with Drayton before the actual substantive interview began. Otis testified that the form included, among other things, advice that “if you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have a right to stop answering at any time until you talk to a lawyer.”
The second instance about which Drayton complains was later during the State’s direct examination of Otis, again discussing the Texas interview:
“Q. Um, at some point the, was the interview ended by Drayton?
“A. It was.
“Q. And did you continue asking him questions after that time period?
“A. Once he asked for an attorney, the interview ended.”
The third instance about which Drayton complains occurred during the State’s rebuttal closing argument:
“And when you look at the evidence here, and you rate what’s true and what’s not true, and there is a lot of different things that Mr. Drayton said, and it’s so convenient. Talle about speculation, is it not convenient to watch a case go on, watch several months, to see what the evidence is, then take the stand and change the story to have you speculate about some phantom person coming in and seeing Mr. Mayberry? Certainly not Mr. Drayton, because he was there and he had sex with him.”
Standard of review
Our standard of review for allegations of prosecutorial misconduct was recently reiterated in State v. White, 284 Kan. 333, 337-38, 161 P.3d 208 (2007):
“Allegations of prosecutorial misconduct require a two-step analysis. First, the appellate court must determine whether the comments were outside the wide latitude [that tire prosecutor is] 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 tire 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, this 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 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.” State v. White, 284 Kan. at 338.
We begin our analysis of the Doyle issues with a short review. As we recently confirmed in State v. Hernandez, 284 Kan. 74, the use for impeachment purposes of defendant’s silence, at the time of arrest and after receiving Miranda warnings, violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See Doyle v. Ohio, 426 U.S. 610; State v. Mims, 220 Kan. 726, 556 P.2d 387 (1976).
This same analysis applies even when, as here, the defendant first talks with officers after being Mirandized and then later invokes his right to silence. See State v. Clark, 223 Kan. 83, Syl. ¶ 2, 574 P.2d 174 (1977) (Accused may remain completely silent and is under no duty to volunteer his exculpatory story. Thus, he should be afforded the same right after some discussion with police when he remains silent as to matters later asserted at trial.).
This court has also held that it is a Doyle violation to elicit evidence that a defendant has invoked the right to remain silent:
“It is constitutionally impermissible for the State to elicit evidence at trial of an accused’s post-Miranda silence [citing Doyle], A Doyle violation occurs when the State attempts to impeach a defendant’s credibility at trial by arguing or by introducing evidence that the defendant did not avail himself or herself of the first opportunity to clear his or her name when confronted by police officers but instead invoked his or her constitutional right to remain silent. State v. Brinkley, 256 Kan. 808, 820, 888 P.2d 819 (1995).” (Emphasis added.) State v. Edwards, 264 Kan. 177, 195, 955 P.2d 1276 (1998).
Clearly, the testimony of Detective Otis, twice making reference to Drayton’s invocation of his rights, constitutes Doyle violations of the type mentioned in Edwards.
We next examine the prosecutor’s statements in rebuttal closing argument. As discussed earlier, a Doyle violation can be committed in a number of ways, e.g., a prosecutor’s commenting on a defend-ant’s postarrest silence or implying that a defendant had some ob ligation to reveal his or her trial testimony to police after being warned' of his or her right to remain silent. Hernandez, 284 Kan. at 94. It is not a violation, however, to impeach a defendant’s trial testimony through use of a prior inconsistent statement given after he or she was provided Miranda warnings. State v. Falke, 237 Kan. 668, 682, 703 P.2d 1362 (1985). The Falke court consequently held: “Therefore, when the defendant made a different statement at trial . . . the prosecutor could properly impeach him with his prior inconsistent statement. K.S.A. 60-422(b).” 237 Kan. at 682.
We conclude there was no Doyle violation in the closing argument. The prosecutor was not alluding to Drayton’s invocation of silence, but rather his changed stories from Texas to trial: “[T]here is a lot of different things that Mr. Drayton said . . . . [I]s it not convenient to watch a case go on, watch several months, to see what the evidence is, then take the stand and change the stoiy.” Nor was there otherwise prosecutorial misconduct: the statements were not outside the wide latitude allowed in discussing evidence.
We now examine the magnitude of the error of allowing Otis’ testimony.
Harmless error
Prosecutorial error does not necessarily amount to reversible error. Reversal is not required unless the prosecutor’s actions deprived Drayton of a fair trial. State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 (2004). The first factor to consider in the harmlessness inquiry is whether the misconduct is gross and flagrant, i.e., did it prejudice the juiy against Drayton. See State v. Elnicki, 279 Kan. at 65. We hold it did not.
The State tried to set the backdrop for Drayton’s 50-minute interview by explaining, in detail, the Miranda rights form. Otis’ first reference to Drayton’s decision to stop talking came before both that discussion and the disclosure of the interview contents. Any alleged flagrancy was tempered by Otis’ telling the jury soon thereafter that per the police’s own Miranda rights form, Drayton absolutely had the right to stop answering questions at any time until he talked to a lawyer. Although Otis’ second reference makes the decision more difficult, we are unable to conclude that the conduct was gross and flagrant. Among other things, we note as part of our consideration that the State made no comments regarding this assertion of rights in closing arguments. Cf State v. Edwards, 264 Kan. at 196.
As for ill will, we are unable to conclude that any was shown from the record. Although there were two references to Drayton’s invocation of rights, we believe allegations of ill will also were tempered by Otis’ telling the jury during that same direct examination by the State that Drayton absolutely had the right to stop answering questions at any time. Similarly, the absence of comments by the State during closing arguments regarding Drayton’s assertions cuts against any claim of ill will.
Lastly, the evidence against Drayton was of such a direct and overwhelming nature that the error likely had little weight in the minds of the jurors. The specific evidence against him was discussed earlier in Issue 2. In addition, any harm that may have occurred was substantially reduced by Drayton’s counsel’s questions during Otis’ cross-examination which drew the admission that Drayton was legitimately exercising his rights:
“Q. And [the interview] lasted only about 50 minutes?
“A. Yes, sir.
“Q. And then the interview was terminated?
“A. That is correct.
“Q. Nothing unusual about that—I mean, a person doesn’t have to talk to you?
“A. That’s correct.
“Q. You told him right upfront; did you not?
“A. That is right; you are correct.
“Q. And people exercise their rights?
“A. Absolutely.
“Q. All right. Thank you.”
In conclusion, although the prosecutor erroneously elicited testimony violative of Doyle, reversal is not required because the prosecutor did not prejudice the jury against Drayton and deny him a fair trial. We hold that the harmlessness standards are satisfied from both K.S.A. 60-261 (not inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18 (conclude beyond a reasonable doubt that the error had little, if any, likelihood of having changed the results of the trial).
Issue 4: The evidence was sufficient to support a theft conviction.
Drayton next argues that insufficient evidence exists to convict him of theft because at the time the van was taken Mayberry was already dead, i.e., no longer the owner. The State primarily responds that a jury could have inferred from the evidence that Dray-ton completed the theft before Mayberiy died. See State v. Gibson, 246 Kan. 298,303, 787 P.2d 1176 (1990) (It is the jury’s prerogative to determine the weight to be given the evidence and the reasonable inferences to be drawn from the evidence.).
Standard of review
Our standard of review is well known:
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to tire prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Burhans, 277 Kan. 858, 871, 89 P.3d 629 (2004).
The theft
The jury was instructed that in order to prove felony theft as charged under K.S.A. 21-3701(a)(l)(b)(2), the State had the burden to show:
(1) James Mayberry was the owner of the property—a wallet and the van;
(2) Drayton obtained or exerted unauthorized control over the property;
(3) Drayton intended to deprive James Mayberry permanently of the use or benefit of the property;
(4) The value of the properties was at least $500 but less than $25,000; and
(5) This act occurred on or about May 31, 2002, in Sedgwick County, Kansas.
Drayton challenges only the first element and specifically asserts that the evidence presented at trial was
“insufficient to convict Mr. Drayton of theft because James Mayberry was no longer the legal owner of the minivan at the time of its taking.
“. . . At the moment of his death, property ownership of the minivan passed either to his intestate successors under K.S.A. 59-502 or to his estate pending execution of his will. . . . The state cannot prove beyond a reasonable doubt that Mr. Mayberry was still alive, and therefore [was] the owner of property, when the van was taken.”
Discussion
We first observe that based upon the evidence presented, the jury may have rationally inferred that Drayton completed the theft before Mayberiy died. See State v. Ordway, 261 Kan. 776, 804, 934 P.2d 94 (1997) (“If an inference is a reasonable one, the juiy has the right to make the inference.”); State v. Bird, 240 Kan. 288, 299, 729 P.2d 1136 (1986), cert, denied 481 U.S. 1055 (1987) (a conviction “can be based entirely on circumstantial evidence and the inferences fairly deducible therefrom”). In other words, a jury could have rationally inferred that within minutes of Mayberry’s stabbing, and therefore while he was still alive, Drayton took his wallet and then his van to flee the crime scene.
The coroner testified that Mayberry’s death was not instantaneous:
“Q. [Prosecutor:] And after doing this [the autopsy], were you able to determine what the cause of Mr. Mayberry’s death was?
“A. Yes.
“Q. What was it?
“A. His cause of death is multiple stab wounds.
“Q. Were you able to determine, based on his injuries, how long it may have taken Mr. Mayberry to die?
“A. That would be difficult to estimate. He did have wounds to the aorta, but as long as they were small wounds, that the blood could still pump to the brain, until there would be enough time that the blood would then begin to go into the chest cavity causing his loss of blood and for him to go into shock. So a matter of minutes, but I can’t say how many minutes that would be.
“Q. But he would have been alive for a matter of minutes?
“A. Yes.
“Q. And all these stab wounds to his neck and chest, was his airway cut or obstructed in any way?
“A. No.” (Emphasis added.)
Even if the jury believed that Mayberry was dead at the time of the van’s taking, we conclude that sufficient evidence existed for the jury to have found that murder and the theft were part of a continuous chain of events. A similar situation occurred in State v. Myers, 230 Kan. 697, 640 P.2d 1245 (1983). There, the defendant was convicted of voluntary manslaughter, aggravated robbery, and arson. He shot the victim and then returned 3 hours later for the stated purpose of making sure the victim was dead. Upon returning to the location of the body, the defendant removed several items, including the victim’s wallet and money.
Defendant argued on appeal that because the victim’s wallet and money were taken from his body about 3 hours after he was killed, the property was not taken by force or threat of force and therefore these elements of aggravated robbeiy had not been established. See K.S.A. 21-3427. This court upheld the aggravated robbery conviction. 230 Kan. at 703-04. As this court later described in State v. Adam, 257 Kan. 693, 698, 896 P.2d 1022 (1995), the Myers court rejected defendant’s contention that the crime required the threat or force to be concurrent with the taking of the property and his contention that the force must be used with intent to steal.
Relying in large part upon People v. McGrath, 62 Cal. App. 3d 82,133 Cal. Rptr. 27 (1976), where convictions of murder and post-death theft were upheld because the crimes were part of one continuous transaction, the Myers court held:
“[W]here a defendant shoots his victim and later decides to take and remove the victim’s personal belongings, where the act of force and the taking of the property are so connected as to form a continuous chain of events so that the prior force makes it possible for the defendant to take the property from the victim’s body without resistance, that is sufficient for a conviction of the crime of robbery under KS.A. 21-3426. Since the killing was accomplished with a dangerous weapon, a violation under K.S.A. 21-3427 was established by the evidence.” (Emphasis added.) 230 Kan. at 703-04.
The case of State v. Holt, 260 Kan. 33, 917 P.2d 1332 (1996), provides additional guidance. There, the defendant was convicted of numerous offenses, including two counts of first-degree murder, aggravated burglary, aggravated robbery, and felony theft. Two of the victims were killed when their homes were burglarized and property taken. Among other things, on appeal defendant directly argued that the evidence of aggravated robbery was insufficient to convict him because there was no proof the victims were alive when their property was taken. Accordingly, he argued that the property could not have been taken from their “presence” as the crime required. See K.S.A. 21-3426; K.S.A. 21-3427. The Holt court squarely rejected defendant’s argument: “[T]he defendant is incorrect in asserting that the victim must be alive at the time the property was taken.” 260 Kan. at 42.
Relying in large part upon Myers, the Holt court held that “the possibility that [the victims] were deceased by the time the taking was completed does not render the evidence of aggravated robbery insufficient. . . . [T]he act of force and bodily harm and the taking of the property from the victims were part of a continuous chain of events.” 260 Kan. at 42.
The continuous chain of events, or continuous transaction, theory has been followed in a number of jurisdictions. See Arthur v. State, 735 So. 2d 213, 219-20 (Miss. 1999) (collecting cases). Maryland’s highest court explained the rationale for its application of its rule in Metheny v. State, 359 Md. 576, 606, 755 A.2d 1088 (2000):
“ ‘If the force precedes the taking, the intent to steal need not coincide with the force. It is sufficient if there be force followed by a taking with intent to steal as part of the same general occurrence or episode. Even if the force results in death, a taking and asportation after the death is nevertheless robbery.’
“... [A] felon who applies force to neutralize a victim should be held responsible for that action if the felon later decides to take advantage of the situation by robbing the victim. In essence, we have allowed, in such circumstances, for a constructive concurrence of the force and intent to steal at the time of the taking.” (Emphasis added.)
We observe that several of the salient facts of the instant case are similar to those in Myers: intentionally causing death, through the use of a deadly weapon, followed within hours by the taking of the victim’s property. In Myers, the robbery occurred 3 hours after death. In the instant case, the jury could have found that the theft occurred within 2 hours after death, as Drayton testified that he left Mayberry’s house about 2 hours after arriving there, during which, time they talked, Drayton had a drink, and the two had sex.
In short, after reviewing all of the evidence, viewed in the light most favorable to the prosecution, we are convinced that this ra tional juiy could have found Drayton guilty of theft beyond a reasonable doubt.
Issue 5: The district court erred in ordering Drayton to reimburse BIDS for attorney fees in the amount of $7,110, when it essentially found that he would not have the financial ability to pay.
Finally, Drayton argues that the district court erred in assessing any attorney fees against him under K.S.A. 2006 Supp. 22-4513 because he had no ability to reimburse the Board of Indigents’ Defense Services (BIDS). The State responds that when subsection (b) and (c) of K.S.A. 2006 Supp. 22-4513 are considered, the legislature anticipated that the defendant’s rights would be protected by providing him the ability to petition the court to waive all or part of the fees or to modify the method of payment, if payment of the amount due would impose “manifest hardship” on the defendant or his immediate family.
The arguments necessitate statutory interpretation, a question of law over which this court exercises unlimited review. State v. Rogers, 282 Kan. 218, 222, 144 P.3d 625 (2006).
At the sentencing hearing the district court assessed BIDS attorney fees against Drayton. Then this exchange occurred:
“MR. BROWN [defense counsel]: Your honor, . . . would you take into consideration his financial condition in assessing $7,110 to avoid another hearing?
“THE COURT: Well, I will make it very clear, since he will be imprisoned for the next 25 years, that his financial condition does not make it likely that it will be paid by him or that he will have the ability to pay. That’s as far as I go. I think that should be sufficient for the purposes that you were seeking. Is that correct?
“MR. BROWN: Thank you, your honor.” (Emphasis added.)
The statute at issue, K.S.A. 2006 Supp. 22-4513, requires a district court to order a convicted defendant to reimburse BIDS for attorney fees and other defense services. It states:
“(a) If the defendant is convicted, all expenditures made by the state board of indigents’ defense services to provide counsel and other defense services to such defendant or the amount allowed by the board of indigents’ defense reimbursement tables as provided in K.S.A. 22-4522, and amendments thereto, whichever is less, shall be taxed against the defendant and shall be enforced as judgments for payment of money in civil cases.
“(b) 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. A defendant who has been required to pay such sum and who is not willfully in default in the payment thereof may at any time petition the court which sentenced the defendant to waive payment of such sum or of any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose hardship on the defendant or the defendant’s immediate family, the court may waive payment of all or part of the amount due or modify the method of payment.
"(c) Whenever any judgment has been entered pursuant to subsection (a) of this section, a sum equal to such judgment may be recovered by the state of Kansas for the benefit of the state general fund from any persons to whom the indigent defendant shall have transferred any of the defendant’s property without adequate monetary consideration after the commission of the alleged crime, to the extent of the value of such transfer, and such persons are hereby made hable to reimburse the state of Kansas with interest at 6% per annum. Any action to recover judgment for such expenditures shall be prosecuted by the attorney general, who may require the assistance of the county attorney of the county in which the action is to be filed, and such action shall be governed by the provisions of the code of civil procedure relating to actions for the recovery of money. No action shall be brought against any person under, the provisions of this section to recover for sums expended on behalf of an indigent defendant, unless such action shall have been filed within two years after the date of the expenditure by the state board of indigents’ defense services.”
We addressed this statute in State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006), whose holding serves as the primary basis for our decision today. There, we held that these first two subsections of the statute set out four distinct—but logically and temporally related—provisions: (1) BIDS must be reimbursed, and fees to enable such reimbursement must be assessed against convicted defendants and enforced as civil judgments; (2) the sentencing court shall consider the defendant’s financial circumstances in setting the amount and payment method of the fees; (3) once the fees are assessed, a defendant may petition for waiver of all or part of the fees; and (4) if such a petition is filed, the court will determine whether payment imposes “manifest hardship” on the defendant and his or her family and, if so, may waive or modify the amount or method of payment. 281 Kan. at 544.
We also held that regarding step 2, the statute “clearly requires a sentencing judge, ‘in determining the amount and method of payment’ of BIDS reimbursement, i.e., at the time the reimbursement is ordered, to ‘take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose.’ The language is mandatory; the legislature stated unequivocally that this ‘shall’ occur.” (Emphasis added.) 281 Kan. at 543.
This same point was made several times more throughout the opinion. “[T]he sentencing court, at the time of initial assessment, must 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.” 281 Kan. at 546.
The point was repeated in 281 Kan. at 547:
“[Sjubsection (a) of K.S.A. 22-4513 states that taxation of ‘all expenditures’ by BIDS shall occur and that neither subsection (a) nor subsection (b) explicitly states consideration of a defendant’s financial resources must occur ‘at sentencing.’ However, reading the subsections together, this is their practical effect. The consideration must occur, and sentencing is the proceeding that routinely addresses BIDS reimbursement.” (Emphasis added.)
As our holding in Robinson repeatedly made clear, in order to determine the amount of defendant’s payment of BIDS reimbursement, at sentencing the court is required to take account of the defendant’s financial resources and the nature of the burden that payment of such sum will impose explicitly. Moreover, the court must state on the record how those factors have been weighed in the court’s decision, i.e., determining how much of a fee, if any, to impose. Indeed, we stated that “[wjithout an adequate record on these points, meaningful appellate review of whether the court abused its discretion in setting the amount ... of the fees would be impossible.” (Emphasis added.) 281 Kan. at 546.
Here, there was no meaningful judicial consideration of these factors in determining the amount of the attorney fees that Drayton could afford to reimburse. The district judge’s own finding indicates that Drayton essentially was unable to afford to reimburse any of the $7,110: “[S]ince he will be imprisoned for the next 25 years, ... his financial condition does not make it likely that it will be paid by him or that he will have the ability to pay. That’s as far as I go.”
Moreover, the Tenth Circuit Court of Appeals has held that when, as the district court found, a person is “unlikely to be able to pay,” no requirement to pay is to be imposed. In Olson v. James, 603 F.2d 150, 155 (10th Cir. 1979), the Tenth Circuit struck down an earlier version of 22-4513 as constitutionally deficient under the United States Supreme Court decision in Fuller v. Oregon, 417 U.S. 40, 40 L. Ed. 2d 642, 94 S. Ct. 2116 (1974). It held:
“[A] court should not order a convicted person to pay these expenses [for court appointed counsel] unless he is able to pay them or will be able to pay them in the future considering his financial resources and the nature of the burden that payment will impose. If a person is unlikely to be able to pay, no requirement to pay is to be imposed.” (Emphasis added.) Olson, 603 F.2d at 155.
In Robinson, we noted that Olson required recoupment statutes to provide that a convicted defendant not be ordered to pay counsel expenses unless he or she was able to pay or would be able to pay them in the future, when available financial resources and the nature of the burden payment would impose were taken into account. 281 Kan. at 546. We further observed that after the Olson decision, our legislature amended the Kansas statute, essentially to its current form. See L. 1981, ch. 157, sec. 2. We held that the timing and substance of the amendment, nearly identical to the Oregon provision commented favorably upon by the Fuller Court, was “revealing about the intention behind the legislature’s chosen language.” 281 Kan. at 546. We concluded that “intention is borne out by the interpretation we give the statute today,” e.g., that a convicted defendant not be ordered to pay counsel expenses unless he or she was able to pay or would be able to pay in the future. See 281 Kan. at 546.
Despite these statements from Robinson, the State argues that when one couples subsection (c) with subsection (b), the legislature has announced its intent to allow tire attorney general sufficient time to further investigate a defendant’s financial status and his or her ability to repay, where the district court considered a defendant’s ability to pay at the time of sentencing. Subsection (c) provides for a 2-year period in which the attorney general’s office may investigate any transfer of a defendant’s property without adequate monetary consideration in order to recoup any moneys expended on behalf of an indigent defendant. Subsection (b), as noted, allows a defendant to petition for waiver at any time.
The primary problem with the State’s position is that the Robinson court rejected a similar State’s argument, i.e., that Robinson’s appeal was premature because subsection (b) specifically allows him to petition for waiver of the fees. We held: “[T]he fact that the statute also permits a defendant to petition for waiver does not change the mandatory language or mean the waiver procedure is intended as a substitute for the sentencing court’s initial consideration of a defendant’s finances.” 281 Kan. at 544. Accordingly, the mandatory language requiring the district court’s initial consideration at the time of sentencing must take priority over any subsequent rights or remedies available under the statute, to the attorney general or the defendant.
Drayton’s convictions of murder and theft are affirmed. The district court’s order assessing attorney fees against Drayton for reimbursement of BIDS fees is reversed.
Davis, J., not participating.
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The opinion of the court was delivered by
Allegrucci, J.:
The State appeals the district court’s ruling which allowed Stephen Dean Reed to file a successive motion to modify his sentence under K.S.A. 1992 Supp. 21-4603(4)(b) after his first motion to modify had been denied. This court’s jurisdiction is based on K.S.A. 22-3602(b)(3).
The following background facts are taken from this court’s opinion in Reed’s original appeal from the district court’s order denying his motion to withdraw his plea of nolo contendere to first-degree murder:
“On March 17, 1986, Jimmy Ray Vanderlinden was found dead in his residence near Galena, Kansas. The victim had been bound hand and foot and had been shot three times in the back of the head. As a result of the ensuing investigation, multiple felony charges were filed against Susan Diane Vanderlinden (the victim’s wife), Luke Patrick Callihan, and the defendant herein. It was the State’s theory that the wife had hired Callihan to kill her husband. Callihan, in turn, had subcontracted the job to the defendant. Callihan, pursuant to a plea bargain, pled guilty to conspiracy to commit murder (a class C felony) in exchange for the dismissal of the other charges and his testimony against Mrs. Vanderlinden and the defendant herein.” State v. Reed, 248 Kan. 506, 506-07, 809 P.2d 553 (1991) {Reed I).
Reed entered his plea of nolo contendere on March 9, 1987. His motion to withdraw the plea was filed in the district court in April and denied in May 1987. He was sentenced to the custody of the Secretary of Corrections. 248 Kan. at 507.
In July 1987, Reed filed a motion to modify his sentence pursuant to 21-4603. The motion was taken up by the district court in November 1987 and denied on January 13, 1988.
On January 22, 1988, Reed filed a motion to reconsider the withdrawal of his plea of nolo contendere. It was denied by the district court in February 1988. Also on January 22, 1988, he filed a notice of appeal from his conviction, sentence, and denial of his motion to withdraw the plea. This court affirmed. 248 Kan. 506. The mandate was filed in the office of the clerk of the district court on May 15, 1991.
On May 6, 1991, Reed filed a second motion to modify his sentence. On June 17, 1991, the district court conducted a hearing on the State’s motion asking the court to decline to entertain the second motion to modify for lack of jurisdiction.
The district court found that the motion to modify had been filed within the time prescribed by 21-4603(3). The district court concluded that it was within its discretion to entertain more than one timely motion to modify sentence.
Before the district court had ruled on the merits of the second motion to modify sentence, the State appealed from the order assuming jurisdiction. In an unpublished per curiam opinion, this court dismissed the appeal for lack of jurisdiction. State v. Reed, No. 66,853, unpublished opinion filed May 22, 1992 (Reed II). The district court then denied Reed’s second motion to modify his sentence.
The State renewed its appeal from the district court’s decision that it had jurisdiction to consider a successive motion to modify sentence. The parties filed new briefs, and the matter is now before this court.
As a preliminary matter, Reed contends that the State’s appeal should be denied on the ground that the State failed to provide a record. Although the record is slim, we find it is adequate for determination of the single issue on appeal.
The sole issue asserted by the State is whether the district court erred in considering Reed’s second motion to modify his sentence under K.S.A. 1992 Supp. 21-4603 when his first motion, to modify had been denied.
K.S.A. 1992 Supp. 21-4603(4) provides as follows:
“(a) Except when an appeal is taken and determined adversely to the defendant as provided in subsection (4)(b), at any time within 120 days after a sentence is imposed, after probation or assignment to a community correctional services program has been revoked, the court may modify such sentence, revocation of probation or assignment to a community correctional services program by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits and shall modify such sentence if recommended by the Topeka correctional facility unless the court finds and sets forth with particularity the reasons for finding that the safety of members of the public will be jeopardized or that the welfare of the inmate will not be served by such modification.
“(b) If an appeal is taken and determined adversely to the defendant, such sentence may be modified within 120 days after the receipt by the clerk of the district court of the mandate from the supreme court or court of appeals.”
K.S.A. 21-4603 has been tinkered with in each recent legislative session. The substantive amendment occurred during the 1988 session and became effective on July 1 of that year. See L. 1988, ch. 116. The salient features of the 1988 amendment were the division of subsection (3) into sections (a) and (b) and the addition of the “except” clause. What was subsection (3) in the 1988 version of the statute is subsection (4) in the current version.
Reed argues that the current version of 21-4603 is not applicable to his motion to modify sentence. He contends that the version of the statute which was in effect at the time the offense was committed applies. For the proposition that the earlier version applies to his motion, he relies on State v. Sylva, 248 Kan. 118, 120, 804 P.2d 967 (1991); State v. Sutherland, 248 Kan. 96, 804 P.2d 970 (1991); and State v. Pierce, 246 Kan. 183, 787 P.2d 1189 (1990).
The court’s reason and rule respecting prospective or retroactive operation are stated in the following paragraphs from the syllabus in Sutherland:
“A fundamental rule of statutory construction is that a statute operates prospectively unless its language clearly indicates that the legislature intended it to operate retroactively.” Syl. ¶ 4.
“An exception to the fundamental rule set forth in Syl. ¶ 4 is that, if the statutory change does not affect the substantive rights of the parties and is merely procedural or remedial in nature and is not prejudicial to the parties, it applies retroactively.” Syl. ¶ 5.
“Because K.S.A. 1989 Supp. 21-4603(3) affects the length of the sentence to be imposed, it is substantive in nature and must be applied prospectively.” Syl. ¶ 6.
The State asserts that 21-4603 is a procedural statute but fails to address any of the controlling case authority.
Sutherland’s offense took place and sentence was imposed before July 1, 1989. On July 1, 1989, K.S.A. 21-4603 was amended. Prior to the amendment, subsection (3) provided that the court “may” modify a sentence if recommended by the state reception and diagnostic center. After the amendment, the section provided that the court “shall” modify a sentence if so recommended. On July 13, 1989, Sutherland filed his motion to modify sentence. This court concluded that the amendment did not apply in Sutherland’s case. Included in the court’s reasoning was a reference to the holding in Kelsey v. State, 194 Kan. 668, 670, 400 P.2d 736 (1965), that “the penalty for an offense is that provided by statute at the time the offense was committed.” 248 Kan. at 107-OS.
Before this court decided Sutherland, the Court of Appeals had filed conflicting decisions on the issue whether 21-4603 operates prospectively or retroactively. State v. Sylva, 14 Kan. App. 2d 609, 795 P.2d 947 (1990), held that 21-4603 was substantive rather than procedural, and it was affirmed in Sylva, 248 Kan. 118. In Sylva, this court referred to its decision in Sutherland as controlling. 248 Kan. at 120.
Reed says of Pierce:
“[T]his Court implicitly found that the version of the statute’s subsection in effect at the time of the offense applied to a motion to modify when it noted that the amendments to K.S.A. 21-4603(3) in 1988 and 1989 were ‘not applicable to this appeal.’ Pierce, 246 Kan. at 185.”
The reported opinion does not indicate when Pierce’s offenses were committed. We do know that he was convicted by a jury on July 14, 1986. 246 Kan. at 184. We also know, not because it is stated in the opinion but by checking the session laws, that the version of the statute applied in the opinion became effective on July 1, 1986. See 246 Kan. at 185 and L. 1986, ch. 136, § 1. The court introduced the statutory provision as “K.S.A. 21-4603 in effect at the time relevant to this proceeding.” 246 Kan. at 185. Because we know that jury trials are not completed within two weeks of the commission of felony offenses, we can deduce that the Pierce court was not applying the version of the statute which was in effect at the time of the offense. The version applied was in effect at the times of Pierce’s conviction, sentencing, and filing of the first motion to modify.
In Sutherland, it appears from the rationale stated there that the court selected for application the post-1988 version of 21-4603 which was in effect at the time of the offense. It happens that the same version was in effect at the time sentence was imposed. In Pierce, it appears that the court selected for application the pre-1988 version of 21-4603 which was in effect at the time of conviction and sentence rather than when the offenses were committed. In the present case, Reed committed the offense in 1986; he entered a plea and was sentenced in 1987. In either case, a pre-1988 version of 21-4603 would apply to the defendant’s motion to modify. The pre-1988 version in effect, K.S.A. 1985 Supp. 21-4603(3), provided:
“Any time within 120 days after a sentence is imposed or within 120 days after probation has been revoked, the court may modify such sentence or revocation of probation by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits. If an appeal is taken and determined adversely to the defendant, such sentence may be modified within 120 days after the receipt by the clerk of the district court of the mandate from the supreme court or the court of appeals.”
The State argues that there is nothing in the language of the statute which indicates an intent to allow a defendant to file multiple motions for modification of the same sentence. The State also argues that it is “clear on the face of the statute that the legislature has intended for the district courts to address the issue of modification [only] once.” And the State concludes its argument by suggesting that interpreting 21-4603 as it advocates would safeguard defendant’s right to seek modification of his sentence while prohibiting an abuse of judicial resources by repeated litigation of the same issue.
. The State relies on State v. Saft, 244 Kan. 517, 769 P.2d 675 (1989). In particular, it urges consideration of the following language: “[Tjhere is generally no reason to modify a sentence which has already been modified within the 120 days from the original sentencing. The defendant’s arguments for modification have already been heard and decided.” 244 Kan. at 521. The State fails to comment on an obvious difference between Saft and the present case—that Saft’s previous motion to modify had been granted.
Saft is an appeal from the district court’s ruling that it lacked jurisdiction to modify. Saft’s previously modified sentence. This court affirmed. Saft initially was sentenced to a controlling term of 15 years to life. Within 120 days of the time sentence was imposed, he filed, a motion to modify. Nearly a year later the district court granted the motion and modified his sentence to 10 to 20 years on each charge, with each sentence to run concurrently. Within 120 days of the time the sentence was modified, Saft filed a motion to modify the modified sentence.
. The issue before the court, therefore, was “whether a district court has jurisdiction to modify a sentence pursuant to a motion filed within 120 days from a modification of sentence, but outside the 120 days from the imposition of the original sentence.” 244 Kan. at 518. The controlling statute, 21-4603, has been amended since the Saft decision. The changes, however, are not material to this portion of the discussion. The pertinent portion of the statute which was applicable to Saft’s question stated the following: “ ‘Any time within 120 days after a sentence is imposed . . . the court may modify such sentence . . . by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits.’ ” 244 Kan. at 518 (quoting K.S.A. 21-4603[3]).
Saft argued that the legislature’s use of the phrase “within 120 days after a sentence is imposed” “means that a defendant has 120 days after each modification to file for another modification.” 244 Kan. at 518. This court rejected the interpretation advocated by Saft. It reasoned that the legislature “could easily have granted the court authority to modify ‘within 120 days after a sentence is imposed or modified.’ ” 244 Kan. at 521. The court noted that the legislature had spelled out a few exceptions to the 120-day rule, but that a motion to modify a modified sentence was not among the exceptions.
In the present case, the district court’s comment on the language singled out by the State is as follows:
“Justice Herd, in Saft, at page 521, does say: ‘In contrast, there is generally no reason to modify a sentence which has already been modified within the 120 days from the original sentencing. The defendant’s arguments for modification have already been heard and decided.’ This language, however, in this court’s view is not a directive, but rather is only illustrative of the author’s argument on an entirely different issue. In this court’s opinion, whether the sentencing court entertains more than one motion to modify sentence, if timely filed, is entirely discretionary.”
In Saft, this court opined that the legislature had specified a few exceptions to the 120-day rule for defendants who have lost a favorable condition or opportunity. The exceptions permit these defendants to apply for more lenient treatment. For example, when probation has been revoked or when an appeal has been decided adversely to a defendant, the legislature provided for a motion to modify sentence within 120 days of revocation or receipt of the mandate. The defendant whose sentence has been modified, on the other hand, has already been favored. The legislature does not seem to have carved out an exception to the 120-day rule for such defendant. When this court observed in Saft that the “defendant’s arguments for modification have already been heard and decided,” 244 Kan. at 521, it was implicit in the observation that the arguments had been heard and decided in defendant’s favor.
This reasoning does not apply to a defendant, like Reed, whose previous motion for sentence modification was denied rather than granted. The denial of a motion for sentence modification does not degrade or improve a defendant’s lot; it maintains the status quo. Reed’s circumstances, therefore, do not seem to be like those for which the legislature created an exception to the 120-day rule. Nor are they like the circumstances in Saft.
The State’s assertion that Saft controls and that the rule from Saft precludes a second motion for modification irrespective of the disposition of the first motion is not persuasive. The time limits on a district court’s jurisdiction for entertaining a motion to modify sentence are the central subject of Saft. In the present case, there is no contention that Reed’s second motion for modification is untimely. Thus, there seems to be no direct lesson which can be drawn from Safi to assist with disposition of the present case.
In State v. Pierce, 246 Kan. 183, Pierce was convicted in July 1986 and sentenced in September 1986. On December 30, 1986, he filed a motion to modify his sentence, which was denied. In February 1988 his convictions were upheld by this court; the denial of his first motion to modify was not raised as an issue in that appeal. In April 1988, Pierce filed a second motion to modify his sentence. The district court denied the motion and denied Pierce’s request for appointment of counsel in connection with the motion. He appealed only the issue of appointment of counsel, and this court, in deciding that counsel was not necessary, said:
“In the present case, the defendant filed two motions to modify his sentence pursuant to K.S.A. 21-4603(3). At the time the statute allowed the court to consider modification both post-sentence and post-appeal. The defendant was granted a hearing on the first motion at which he was represented by counsel. The second motion alleges no new facts or circumstances which would justify a modification of sentence or require a hearing.” 246 Kan. at 188.
Implied in this statement is a recognition that the pre-1988 version of 21-4603(3) permits both post-sentence and post-appeal motions to modify.
General principles of statutory construction which may provide some guidance in examining 21-4603(3) are as follows:
“The fundamental rule of statutory construction is that the purpose and intent of the legislature govern when the intent can be ascertained from the statute. ...
“When the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment. [Citations omitted.] In determining legislative intent, the court is not required to examine only the language of the statute, but may properly ‘look into the causes which impel the statute’s adoption, the objective sought to be attained, the statute’s historical background and the effect the statute may have under the various constructions suggested.’ [Citations omitted.]” Hughes v. Inland Container Corp., 247 Kan. 407, 414, 799 P.2d 1011 (1990).
In addition, the court applies the following principles when considering criminal statutes:
“When a penal statute is questioned, the court is required to strictly construe the act in favor of the accused. State v. Cole, 238 Kan. at 372. ‘However, [this] rule of strict construction concerning penal statutes is subordinate to the rule that judicial interpretation must be reasonable and sensible to effectuate legislative design and . . . intent.’ State v. Fowler, 238 Kan. 213, 215, 708 P.2d 539 (1985).” State v. Magness, 240 Kan. 719, 721, 732 P.2d 747 (1987).
Applying these general principles to the pre-1988 version of 21-4603(3), it is clear that the district court may modify a sentence within 120 days of its imposition. Further, the sentence of a defendant who unsuccessfully appealed could be modified within 120 days of receipt of the mandate. In effect, the defendant who appeals can file a motion to modify 120 days from sentencing and, if the appeal is determined adversely, 120 days from receipt of the mandate. We conclude that the district court had jurisdiction to consider Reed’s motion to modify sentence following receipt of the mandate even though the court had denied his pre-appeal motion to modify filed within 120 days of sentencing.
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The opinion of the court was delivered by
Allegrucci, J.:
The plaintiffs, Charles L. Winter and Darlene M. Graff, the former co-conservators of the estate of Fred A. Marcotte, appeal from the order of the district court granting summary judgment in favor of the defendants in a legal malpractice action filed against Clifford R. Hope, Jr., and his law firm (Hope). The Court of Appeals affirmed the district court in an unpublished opinion filed March 12, 1993. We granted plaintiffs’ petition for review.
This appeal is related to our decision in In re Conservatorship of Marcotte, 243 Kan. 190, 756 P.2d 1091 (1988). Plaintiffs are alleging that Hope negligently failed to advise them of their statutory duty to file annual accountings while acting as the co-conservators for Fred A. Marcotte. In Marcotte, the relevant facts were set out as follows: “In July 1980, Fred A. Marcotte filed a voluntary petition for conservatorship with the Finney County District Court. . . . The district court accepted the petition on July 18, 1980, and appointed a nephew and niece of Marcotte, Charles L. Winter and Darlene M. Graff, as co-conservators.” 243 Kan. at 191.
Fred Marcotte died testate on October 25, 1983. Winter and Graff petitioned to end the conservatorship and filed an accounting for the period of its existence, July 1980 through October 1983. In January 1984, the district court terminated the conservatorship and discharged Winter and Graff as co-conservators. 243 Kan. at 19U
Heirs and legatees and a special administrator challenged gifts made by the co-conservators to themselves or family members during the conservatorship. 243 Kan. at 191-92. This court stated that “[a] voluntary conservatee may not dispose of personal property by inter vivos conveyance during the conservatorship without court approval.” 243 Kan. 190, Syl. ¶ 1. The court held that Winter and Graff were liable for the value of the gifts and expenses, with interest, and that the K.S.A. 59-1704 double-value penalty for conversion applied regardless of their good faith. The penalty assessed against each was $49,000. See 243 Kan. at 192-95.
Clifford Hope was the attorney who set up the conservatorship. Hope gave Winter and Graff advice about their rights and duties as co-conservators. Hope asserts that he advised them of their duty to file annual accountings; Winter and Graff assert that he did not. Winter and Graff contend that the filing of annual accountings could have afforded opportunities for court approval of the gifts. Even though it lies right at the heart of this lawsuit, the disputed fact is not material to the reasoning of the lower courts. Both the district court and the Court of Appeals concluded that the co-conservators would not have been relieved of liability for conversion even if they had filed annual accountings.
Nearly three years after the conservatorship was established, on July 8, 1983, Hope wrote to Winter and Graff, advising them that Kansas law required them to file annual accountings with the court. He added that the rule was not strictly enforced.
There is no allegation that Clifford Hope was aware of the gifts to the co-conservators and their family members.
According to the district court, “[a] review of the final accounting prepared and filed by the plaintiffs reflects that ‘stock purchase—gifts’ were made to plaintiff on the following dates: December 8, 1980; April 22, 1981; May 19, 1981; December 14, 1981; January 6, 1982; and May 23, 1983.” If Winter and Graff had timely filed annual accountings, they would have submitted them to the district court in the month of August in 1981, 1982, and 1983.
In the present case, the district court entered summary judgment in favor of Hope and against Winter and Graff on the ground that the alleged negligent conduct of Hope could not be shown to be the proximate cause of the co-conservators’ damages. The Court of Appeals affirmed.
The pertinent portion of K.S.A. 1980 Supp. 59-3029, during the period of the conservatorship, stated: “Except where expressly waived by the court, every conservator shall annually present a verified account covering the period from the date of appointment or the last account.”
In granting summary judgment for Hope, the district court reasoned as follows:
“24. If, as Plaintiffs contend, the Defendants’ failure to properly advise them concerning the annual accounting resulted in the damages they now claim, then it’s safe to assume that ‘but for’ the absence [ofl the annual accounting, Plaintiffs would have incurred no liability. The facts in this matter, however, fail to support Plaintiffs’ position. Assuming for sake of argument that the Plaintiffs had filed their annual accountings in a timely fashion, they would have submitted such accounts in August for each of the years 1981, 1982 and 1983. If it is further assumed that each year’s accounting evidenced the ‘stock purchase—gift’ made during that period, then it appears that for each such year, the gifts would have been conveyed well before the accounting was ever due. Since no one other than the co-conservators, the stockbroker and perhaps the conservatee had actual notice of the inter vivos transfers, there was never an opportunity to approve or challenge such conveyances until well after the fact. It appears, therefore, that Plaintiffs would have this Court adopt the theory that the filing of an annual accounting somehow equates to Court approval. Under the facts presented herein, to do so would amount to the Court merely ratifying that which has already occurred—in essence, an ex post facto proceeding which confirms rather than approves the conveyances, and which serves no purpose, where the gifts had already been expended or the funds depleted or assigned.
“25. This Court is of the opinion that the appellate courts, in holding that a voluntary conservatee could not make an inter vivos conveyance of personalty without Court approval, necessarily intended that such approval predate the actual conveyance. . . .
“26. This Court would conclude, therefore, that as to Plaintiffs’ claim that Defendants were negligent in failing to properly advise the Plaintiffs, as conservators, concerning an annual accounting, there is no causal connection or proximate cause between any such omission and the damages Plaintiffs seek to recover. To summarize, the Court’s rationale is based on the conclusion that under the facts and circumstances presented, the filing of an annual accounting and the Court’s mere ratification of the conservators’ acts is inappropriate and would not have altered the holding in Marcotte[, 243 Kan. 190,] as it pertains to Plaintiffs’ liability.”
The Court of Appeals státed that the issue which “controls the outcome of the case” is “when and how” court approval of a conservatee’s conveyances should be sought and obtained. In Marcotte, this court stated that “a voluntary conservatee may not dispose of personal property by inter vivos conveyance during the conservatorship without court approval,” 243 Kan. at 194, but did not specify when the approval had to be obtained. The Court of Appeals reasoned that
“[i]f the proper method for seeking court approval is by including the conveyance in the annual accounting, then [Winter and Graff] could have avoided liability for conversion by simply filing an annual accounting that included the conveyance ....
“If, on the other hand, court approval must be sought before the conveyance can be made, then merely including the conveyance in the annual accountings could not have absolved [them] of liability.”
The Court of Appeals concluded that- “the proper time for seeking court approval for inter vivos transfer of conservatorship assets is prior to the transfer.” Thus, according to the Court of Appeals, Winter and Gi-afF
“could not have escaped liability for conversion by including the transfers in an annual accounting since any such accounting would be after the transfer occurred. Therefore, even if [Hope] breached [his] duty to [Winter and Graff] by not folly advising them of the need to file annual accountings, this breach was not the cause of the penalty for conversion assessed against [them].”;;
Factors considered by the- Court of Appeals include the following: First, under K.S.A. 1992 Supp. 59-3030, it is not mandatory that the district court conduct a heáring on an annual accounting. The district court may conduct a hearing on its own motion and shall conduct a hearing at the request of the conservator or an interested person.
Second, this court relied, in Marcotte, on Citizens State Bank & Trust Co. v. Nolte, 226 Kan. 443, 450, 601 P.2d 1110 (1979), where it was stated that “a conservatee under a voluntary conservatorship cannot contract or deed away his property inter vivos without the prior approval of the conservator or, where required by statute, the approval of the district court.” The Court of Appeals stated that the court’s specifying prior approval of the conservator suggests that approval of the district court also must be “prior.” .
Third, requiring prior court approval of transfers is “consistent with the realities of the conservatorship process in Kansas.” The Court of Appeals’ reasoning in this respect is that, because review of annual accountings is permissive, requiring court approval before a transfer is the only effective means by which the courts may- supervise conservatorships.
Fourth, requiring prior court approval of transfers is “consistent with statutory schemes in other states.” The Court of Appeals cites statutes from California, Connecticut, and Florida, which expressly require court approval before transfers of conservator-ship assets. The presence of express prior approval requirements among the conservatorship acts of other states highlights the absence of such- a requirement in Kansas’ statutory scheme. Comparison with other states’ statutes, therefore, might as easily suggest that prior approval was not. contemplated by this state’s legislature as that it was.
The principal ground on which Winter and Graff sought this court’s review of the Court of Appeals’ decision was that it con flicts with the Court of Appeals’ decision in In re Conservatorship of Holman, 18 Kan. App. 2d 173, 849 P.2d 140 (1993).
Lewis Markley was conservator for Eleanor Markley Holman from 1980 until her death in 1988. At the beginning of the conservatorship, he sold Holman’s Colorado residence to his daughter for $50,000 despite a recent appraisal at $78,000, and he purchased a small airplane with proceeds from cashing in Series “E” Bonds. He showed these transactions in the annual accounting. Notice was sent to interested parties, and a hearing was conducted on the accounting. It was approved by the district court. 18 Kan. App. 2d at 174.
When Holman died, Markley was appointed administrator of the estate. Written defenses were filed to the probate petition. The district court conducted a hearing which touched on the final accounting of the conservatorship as well as the probate of Holman’s estate. The district court concluded that Markley “had negligently and unfaithfully dealt with the assets as Holman’s conservator and as the administrator of her estate.” 18 Kan. App. 2d at 175. Markley was surcharged $206,474.24.
Markley appealed. The Court of Appeals reversed on the ground that the district court’s order approving the annual accounting was a final judgment which the doctrine of collateral estoppel prevents the parties from relitigating. No petition for review was filed.
Here is the Court of Appeals’ statement of its Holman holding:
“We hold that, under K.S.A. 1992 Supp. 59-3031, settlement and allowance by the court of a conservator’s accounting, after due notice, is an appealable final order. It operates to relieve the conservator and the conservators sureties from liability for all acts and omissions which are fully and accurately described in the accounting. Such an order gives rise to the doctrine of collateral estoppel or res judicata, as the case may be.” (Emphasis added.) 18 Kan. App. 2d at 176.
The Court of Appeals noted that the majority rule is that orders approving annual accountings do not operate as final judgments. 18 Kan. App. 2d at 175. The feature of the Kansas procedure which seemed to convince the Court of Appeals that the majority rule should not apply in this state is that the approval proceedings are not ex parte. The Court of Appeals noted:
“K.S.A. 1992 Supp. 59-3031 provides that the annual accounting will be settled and allowed after a hearing on the matter. Furthermore, notice of the hearing must be given to all interested parties. K.S.A. 1992 Supp. 59-3030. In addition, Kansas law provides that the decision of the court allowing an annual accounting is immediately appealable. K.S.A. 1992 Supp. 59-2401(10). The appeal must be taken within 30 days from the judgment. In re Estate of Williams, 238 Kan. 651, 655, 714 P.2d 948 (1986).” 18 Kan. App. 2d at 176.
In the present case, Winter and Graff contend that they were injured as a result of Hope’s failing to advise them to file annual accountings. In rejecting their claim, the Court of Appeals concluded that there was no causal link between his failure and their injuries because court approval for transfers of conservatorship assets obtained after the transfers does not relieve a conservator of liability. This' is contrary to the holding in Holman. A proviso in Holman that notice must be given to all interested parties and a hearing conducted in order for the court’s post-transfer approval to relieve the conservator of liability does nothing toward reconciling' Holman and the present case.
In the present case, the Court of Appeals placed some significance, for the purpose of determining when court approval was required, in a hearing on the annual accounting being permissive under K.S.A. 1992 Supp. 59-3030. It is not significant, however, in a direct inquiry whether there may be a causal link between not knowing of the annual accounting requirement and liability for unauthorized transfers. If Winter and Graff had filed annual accountings which fully and accurately described the'conveyances made to themselves and their family members, there may have been a duly noticed hearing. It cannot be said that they would not have been relieved of liability by following the statutory procedure. As noted above, 59:3030 provides that a hearing is mandatory upon the petition of the conservator or an interested party. If Winter and Graff had been given that information along with the information that annual accountings are required, they could have made certain that adequate hearings were held on their transfers.
There is the possibility that the district court would not have approved of conveyances described in the annual accountings. The effect of the district court’s disallowance of the conveyances under our holding of Marcotte is that the K.S.A. 59-1704 double-value penalty for conversion applies even when a transfer is disallowed and the conservatorship assets are restored. However, there would remain an issue of proximate causation in the event of disallowance since the plaintiffs presumedly would not have made the gifts in the subsequent years and the resulting liability would have been prevented.
Hope argues that Holman and the present case are . not inconsistent. His contention is that Holman does not reach the issu.e whether or not there is a requirement for prior court approval of inter vivos transfers of conservatorship assets. It is intrinsic in Holman, however, that prior approval is not necessary to relieve the conservator from liability for making an inter vivos gift:
We conclude that the holding in Holman is sound, that settlement and allowance of the conservator’s annual accounting after proper notice and hearing is an appealable final order and operates to relieve the conservator from liability for all acts and omissions which are fully and accurately described therein. Such an order approving the annual accounting gives rise to collateral estoppel or res judicata, as the case may be.
In In re Conservatorship of Marcotte, 243 Kan. 190, 756 P.2d 1091 (1988), we did not state whether court approval must be obtained prior to making the gift in order to relieve the conservator of liability for conversion. Neither this court nor the legislature has specifically spoken to that question. Although our holding in Marcotte contemplated that the conservator should obtain court approval prior to making an inter vivos gift, it does not follow that the obtaining of court approval necessarily must predate the making of the gift to relieve a conservator from liability for conversion. Obviously, obtaining prior court approval would afford a conservator the greatest protection. In that case, the conservator would be relieved of any liability for making the subsequent gift. The conservator who makes the gift and then proceeds to obtain court approval pursuant to K.S.A. 1992 Supp. 59-3031 is at risk of being liable for conversion in the event the court does not approve the annual accounting.
With that distinction in mind, we conclude that in a voluntary conservatorship, settlement and allowance by the court of an annual accounting, after due notice to all interested parties and a hearing, relieves the conservator from liability for making an inter vivos gift which is fully and accurately set out in the accounting. Having so concluded, we must reverse the district court’s grant of summary judgment in favor of the defendants.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed, and the case is remanded for further proceedings. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an action by insureds against the defendant insurance company seeking: (1) a determination that the comprehensive general liability insurance policy in question afforded coverage for and a duty to defend against lawsuits filed by employees and former employees of insureds; (2) a judgment reimbursing the insureds for monies paid out in settlement of said lawsuits and satisfying the balance of said settlement; and (3) payment of the insureds’ attorney fees arising from defense of said actions and the prosecution of the action herein as well as certain consequential damages arising from the insurer’s breach of the insurance contract. The defendant insurance company appealed from the judgment of the district court finding there was coverage and a duty to defend and ordering the insurance com pany to pay the settlement and the requested attorney fees. The insureds cross-appealed from the refusal of the district court to consider or allow the requested consequential damages. The Court of Appeals reversed the district court’s judgment against the insurance company, holding there was no coverage or duty to defend relative to said lawsuits. MGM, Inc. v. Liberty Mut. Ins; Co., 17 Kan. App. 2d 492, 839 P.2d 537 (1992). The matter is before us on petition for review.
The facts may be summarized as follows.
MGM, Inc., (MGM), is a Kansas corporation that owned and operated a Western Sizzlin Steak House, on Rock Road in Wichita, at all pertinent times herein. Defendant John Mash was the president of MGM. Telephone service at the restaurant consisted of a pay phone located in a frequently used area and two non-pay telephones located in the manager’s office. The office was kept locked in the manager’s absence. No other employee worked in the office. In January 1988, Mash became concerned over telephone charges for unauthorized long distance calls originating from the manager’s office. He wanted to find out which employee or employees were making these calls. On January 27, 1988, Mash purchased and installed two telephone recording devices in the office ceiling. The employees were not advised of the installations. The devices would activate when the respective telephone receiver was picked up and would disconnect when the receiver was returned to its cradle.
Every few days Mash would listen to the tapes and rewind them for rerecording. On February 19, 1988, a plumber repairing a hot water pipe discovered the recording devices. That same day, Mash removed the devices.
On May 19, 1988, Mash was contacted by an attorney who advised that she represented two MGM employees, that the use of the recording devices was a criminal offense, that lawsuits were being considered based upon invasion of privacy, and that the matter could be resolved by paying each client $10,000.
That same day Mash called defendant Liberty Mutual Insurance. Company (Liberty Mutual), relayed the facts of his visit from the employees’ attorney and asked if MGM’s liability insurance policy issued by Liberty Mutual would provide coverage in this sitúa tion. The individual Mash talked to was Viola Schuckman, a claims supervisor. Bill Smith, claims manager, was absent at the time. The conversation lasted about 30 minutes. Schuckman told Mash that she did not think there was coverage as the conduct giving rise to the claims was an illegal act, but that she would check the policy and get back with him. She also advised that if suit were filed, the company would evaluate the allegation for coverage. Mash then contacted his own attorney, James Schaefer, and relayed the events which had occurred. On advice of Schaefer, Mash told Schuckman to contact Schaefer with the company’s response to the coverage matter. On May 20, 1988, Schuckman contacted Schaefer. She advised him that she did not think there was coverage for a criminal act, but that “if any lawsuits were filed, he should submit the lawsuits to us so we could review the allegations and make a determination at that point whether there was any coverage.” Subsequently, Schuckman conferred with the claims manager as to what had transpired up to that point, and he concurred with Schuckman’s initial belief that there was no coverage. Six petitions were filed on June 14, 1988, and Schaefer forwarded these to Liberty Mutual.
Coverage was denied based on the petitions, the policy, and the conversations with Mash. No additional investigation was done. Ten petitions were ultimately filed. MGM settled these for $100,000 ($10,000 for each plaintiff).
This action was brought seeking a determination that coverage existed and that the insurer’s duty to defend had been breached and damages for that breach. The district court held there was coverage under the “advertising injury” provision of the policy and that the insurer breached its duty to defend. Liberty Mutual was ordered to pay: (1) $55,000, which was the amount paid out in settlement by MGM and Mash; (2) $45,000, which was the balance due on the settlement of the lawsuits; (3) $57,786 for attorney fees; and (4) prejudgment interest and costs. Liberty Mutual appealed therefrom, and MGM and Mash cross-appealed the district court’s refusal to consider certain claimed consequential damages.
We turn now to the issues in the appeal of Liberty Mutual. The district court found there was coverage and a corresponding duty to defend under the “advertising injury” portion of the policy. The plaintiffs did not claim coverage under such policy provisions. They relied, instead, on personal injury coverage policy provisions. Before us and the Court of Appeals, the plaintiffs do not argue that the district court’s reliance on the “advertising injury” portion was correct.
Instead, they argue the judgment of the district court should be affirmed on the basis that it was correct for the wrong reason— specifically, that there was coverage and a duty to defend under the personal injury policy provisions. The Court of Appeals opinion herein discusses the “advertising injury” policy provisions and correctly concludes the conduct giving rise to the claims herein is unrelated to advertising activities and such coverage is inapplicable. Little would be gained, under the circumstances herein, from further discussion of the “advertising injury” policy provisions.
We turn then to the question of whether there was coverage and a duty to defend under personal injury policy provisions. Liberty Mutual contends there was no coverage as: (1) the evidence is uncontroverted that there was no publication or utterance of the intercepted telephone conversations and hence the employees’ claims were not included within the policy personal injury definitions; and (2) coverage was specifically excluded as the conduct arose out of a wilful violation of penal statutes (K.S.A. 21-4002 and 18 U.S.C. § 2511 [1988]).
We shall first consider whether there was coverage under the personal injury provisions of the policy. The definitions contained therein provide:
“ ‘Personal Injury’ means injury arising out of one or more of the following offenses committed during the policy period:
(1) false arrest, detention, imprisonment, or malicious prosecution;
(2) wrongful entry or eviction or other invasion of the right of private occupancy;
(3) a publication or utterance
(a) of a libel or slander or other defamatory or disparaging material, or
(b) in violation of an individual’s right of privacy,
except publications or utterances in the course of or related to advertising, broadcasting, publishing or telecasting activities conducted by or on behalf of the named insured shall not be deemed personal injury.” (Emphasis supplied.)
Liberty Mutual is correct in its statement that the evidence is uncontrovertéd that Mash never disclosed the content of or discussed the recorded conversations with anyone. Hence, there was no publication or utterance in violation of an individual’s right of privacy and no coverage under said policy provisions.
This determination does not, however, resolve the duty to defend question. The petitions filed by the employees and former employees each alleged disclosure of the recorded conversations. In State Farm Fire & Casualty Co. v. Finney, 244 Kan. 545, 553-54, 770 P.2d 460 (1989):
“The duty to defend arises whenever there is a ‘potential of liability’ under the policy. Spruill Motors, Inc. v. Universal Underwriters Ins. Co., 212 Kan. 681, 512 P.2d 403 (1973). The insurer determines if there is a potential of liability under the policy by examining the allegations in the complaint and considering any facts brought to its attention or which it could reasonably discover. Where a petition alleges an act that is clearly not covered, for example, that the defendant acted willfully and intentionally, a declaratory judgment would then be proper to determine the issue of coverage, since there would [be] no ‘potential of liability’ under the policy for intentional acts. Where the complaint alleges both a negligent and intentional act, these alleged facts give rise to the potential for liability and the duty to defend arises. 212 Kan. at 686.”
In Patrons Mut. Ins. Ass’n v. Harmon, 240 Kan. 707, 710, 732 P.2d 741 (1987), we stated:
“The" possibility of coverage may be remote, but if it exists the [insurance] company owes the insured a defense. The possibility of coverage must be determined by a good faith analysis of all information known to the insured or all information reasonably ascertainable by inquiry and investigation.”
Here, Liberty Mutual conducted no investigation before denying coverage and defense. If these were the only applicable policy provisions, it could well be concluded that a duty to defend wás owed. However, the policy contains the following exclusion:
“(B) This insurance does not apply:
(2) to personal injury or advertising injury arising out of the wilful violation of a penal statute or ordinance committed by or with the knowledge or consent of the insured.”
The concealed recording devices were intentionally installed by Mash, the conversations intentionally recorded, and the recordings intentionally listened to by Mash. Wilful and intentional are synonymous. See Websters New Collegiate Dictionary 1341 (1977): “2: done deliberately: INTENTIONAL syn.” See also K.S.A. 21-3201(2), which provides:
“(2) Willful conduct is conduct that is purposeful and intentional and not accidental. As used in this code, the terms “knowing,’ ‘intentional,’ ‘purposeful,’ and ‘on purpose’ are included within the term ‘willful.’ ”
K.S.A. 21-4002 provides:
“(1) Breach of privacy is knowingly and without lawful authority:
(a) Intercepting, without the consent of the sender or receiver, a message by telephone, telegraph, letter or other means of private communication.”
18 U.S.C. § 2511 provides:
‘‘(1) Except as otherwise specifically provided in this chapter any person who—
(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).”
Disclosure of information intercepted is not an element of either offense—the interception itself completes the offense. MGM and Mash argue that there is evidence that of the employees who sued two or three knew of the existence of the recording devices and this is the equivalent of consent. Note, the employees denied such knowledge. No authority is cited for the proposition that such knowledge of the existence of the recording devices would be a defense to a prosecution under either statute.
We conclude the wilful violation of a penal statute exclusion is controlling on the duty to defend issue and, if reached on the coverage issue, it would have been applicable therein to deny coverage. Thus, there was no coverage afforded by the policy or duty to defend the lawsuits filed herein by the employees and former employees, and the district court erred in holding otherwise and awarding damages to the plaintiffs herein. This is the same result reached by the Court of Appeals and, like said court, this determination renders moot the balance of the issues raised in the appeal of Liberty Mutual and the cross-appeal of MGM and Mash as they all relate to the trial court’s computation of damages herein.
The judgment of the Court of Appeals is affirmed. The judgment of the district court is reversed; the cross-appeal is dismissed.
Holmes, C.J., and Davis, J., not participating.
Marla J. Luckert and Terry L. Bullock, district judges, assigned. | [
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The opinion of the court was delivered by
Davis, J.:
This is a workers compensation appeal involving the constitutionality of a statute limiting nonresident alien dependents’ death benefits to $750. Under the Workers Compensation Act, all other dependents’ death benefits are fixed in an amount not to exceed $200,000. The trial court upheld the constitutionality of the statute. We reverse and remand for further proceedings consistent with our opinion.
On August 21, 1990, 39-year-old Fermín A. Jurado, a resident alien of Mexico, died as a result of massive head injuries he received while working for Popejoy Construction Company (Popejoy) located near Syracuse, Kansas. He had lived and worked in Kansas since 1988. He moved to Kansas to learn English and eventually pursue his profession as an engineer in this country. He had received an engineering degree from the Technological Institute of the City of Juarez in Mexico in 1979. At the time of his death, he was survived by his wife and three children, ages 7, 4, and 2, all of whom were residents and citizens of the Republic of Mexico. It was his plan to move his dependents to the United States as soon as he had mastered the English language well enough to obtain employment as an engineer.
Upon his death, Aetna Life and Casualty Company issued a check to his dependents in the amount of $750 on behalf of Popejoy, paid pursuant to K.S.A. 44-510b(i), which provides:
“If the [deceased] employee does not leave any dependents who are citizens of or residing at the time of the accident in the United States, the amount of compensation shall not exceed in any case the sum of $750.”
All other dependents, including resident alien dependents, are covered by K.S.A. 44-510b(h), which authorizes compensation benefits “not [to] exceed a total amount of $200,000.”
In upholding the constitutionality of K.S.A. 44-510b(i), the district court concluded that neither the state nor federal Equal Protection Clauses extend to nonresident aliens. The dependents filed their appeal with the Court of Appeals. On motion, we granted a transfer of the appeal to this court.
While this appeal involves only one issue, the approach used in deciding this issue is of critical importance. A threshold question must first be resolved as to whether our determination involves a consideration of the constitutional rights of the deceased employee, or whether the resolution involves a consideration of the constitutional rights of the employee’s dependents. Consistent with the conclusion of the district court, Popejoy urges this court to find that the dependents, as nonresident aliens, are afforded no constitutional protections. Thus, according to its contention, because nonresident aliens have no constitutional rights to advance, the statutory amount awarded must stand. The dependents, however, urge us to consider the constitutionality of this statute based upon the constitutional protections afforded to the resident alien employee.
Employee’s or Dependents’ Rights
We begin our discussion with the conclusion that the issue before us does not depend upon the existence or nonexistence of the rights of the dependents but, rather, involves a consideration of the constitutional rights of the resident alien employee, now deceased.
In a recent case decided by. the Florida Supreme Court involving almost identical facts, the court concluded:
“However, we do not perceive this case as hinging on the constitutional rights of the surviving dependents, but on the constitutional rights of the worker, now deceased.” De Ayala v. Florida Farm Bureau Cas. Ins., 543 So. 2d 204, 206 (Fla. 1989).
In De Ayala, a statute similar to ours provided coverage for nonresident alien dependents in an amount up to $1,000, but provided other dependents benefits in an amount up to $100,000. De Ayala was involved in a motor vehicle accident while he was working for a Florida business. The decedent was survived by his dependent parents, wife, and six minor children, all of whom were residents and citizens of the Republic of. Mexico. Prior to his death, the decedent had lived and worked in the United States for 25 years. The Florida Supreme Court rejected without any discussion the respondent’s contention that, as nonresident aliens, the dependents were not entitled, to assert the constitutional principles that form the basis of this action. The Florida Supreme Court merely concluded that the constitutional rights of the surviving dependents did not determine the issue, but the approach must be based on a consideration of the constitutional rights of the worker, now' deceased. 543 So. 2d at 206.
Justice Overton’s dissenting opinion in De Ayala clearly articulates Popejoy’s argument that we should focus on the rights of the nonresident alien dependents. Justice Overton states:
“This conclusion that a decedent has constitutional rights has no legal basis. I find the law is clear that a decedent has no constitutional rights. The heirs and beneficiaries, upon the decedent’s death, can assert only their own rights—not the rights of the corpse. This principle was aptly stated in J. Gray, The Nature and Sources of the. Law 38 (2d ed. 1921) as follows:
‘Included in human beings, normal and abnormal, as legal, persons, are all living beings having a human form. But they must be living beings; corpses have no legal rights.’ (Emphasis added.)
In State v. Powell, 497 So. 2d 1188, 1190 (Fla. 1986), cert, denied 481 U.S. 1059, 107 S. Ct. 2202, 95 L. Ed. 2d 856 (1987), this Court agreed with the principle, stating:
‘In addressing the issue of the statute’s constitutionality, we begin with the premise that a persons constitutional rights terminate at death. See Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973); Silkwood v. Kerr-McGee Corp., 637 F.2d 743 (10th Cir: 1980), cert, denied 454 U.S. 833, 102 S. Ct. 132, 70 L. Ed. 2d 111 (1981); Guyton v. Phillips, 606 F.2d 248 (9th Cir. 1979), cert, denied 445 U.S. 916, 100 S. Ct. 1276, 63 L. Ed. 2d 600 (1980). If any rights exist, they belong to the decedent’s next of kin.’ (Emphasis added.)” 543 So. 2d at 208, Overton, J., dissenting.
The two basic cases cited by Justice Overton in his dissent do not, in our opinion, provide a sound basis for his conclusion, particularly under the facts of this case. In Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705, reh. denied 410 U.S. 959 (1973), the Supreme Court did not hold that a person’s constitutional rights terminate upon death. At most, Roe v. Wade held that a fetus that is not yet viable outside the womb is not a person for the purposes of the Fourteenth Amendment. In Silkwood v. Kerr-McGee Corp., 637 F.2d 743 (10th Cir. 1980), cert, denied 454 U.S. 833 (1981), the court was considering the plaintiffs’ claim that actions after the employee’s death violated her civil rights. Under those circumstances, the court held that “the civil rights of a person cannot be violated once that person has died.” We have no argument with this conclusion but Silk-wood, in our opinion, does not provide a firm basis for the conclusion that a. worker’s constitutional rights, most of which grew out of the employment contract and preexisted his death, terminate upon his death.
Unlike Silkwood, we deal with the disparate benefits that accrue to Kansas workers and their dependents as a result of an employment contract and workers compensation laws that preexist a worker’s death. Although the death benefit vests after death and is distributed to dependents rather than the worker, the benefit nevertheless arises out of the employment relationship and is part of the benefits package that the worker earned before he died. Thus, as a practical matter, the disparate treatment occurred before Jurado died.
As early as the 1920’s, the United States Supreme Court recognized that death benefits serve an employee’s interest in providing for his or her family. In Madera Co. v. Industrial Comm., 262 U.S. 499, 67 L. Ed. 1091, 43 S. Ct. 604 (1923), the Supreme Court of the United States upheld a provision in the California workers compensation law requiring payment of death benefits to nonresident aliens as against the employer’s Fourteenth Amendment challenge. The Supreme Court noted that the es sential purpose of workers compensation is to serve the best interests of the employee in seeing that his or her family is protected against the loss of his income. 262 U.S. at 503-04.
Madera Co. noted that workers compensation benefits have a quasi-insurance quality in that benefits should go “to those to whom the employee would have naturally have made such insurance payable: to himself, although an alien, if he be disabled; and to those dependent upon his earnings for support, if he be killed.” 262 U.S. at 503.
Popejoy argues that the case of Routh v. List & Weatherly Construction Co., 124 Kan. 222, 257 Pac. 721 (1927), clearly states that the Workers Compensation Act creates a right of action for the employee’s loss and a separate right of action in the dependents “for their benefit” if the worker dies from the injury. Based upon this case, Popejoy argues that, because a separate independent cause of action exists in the dependents, we should approach their separate case from their rights, not the constitutional rights of the deceased employee.
In Routh, the court noted:
“The right of action of dependents does accrue at the time of the accident, and everything must relate back to the situation at that time, but dependents have no standing or independent right of action while the workman is living. After his death they have such right of action, which in that sense does accrue after the death of the workman.” 124 Kan. at 227.
While the Kansas Workers Compensation Act separates the two causes of action and creates a separate right of action in the dependents, that right of action is derived from the deceased employee, and everything must relate back to the time of the accident.
In a sense the dependents’ action is derivative. Black’s Law Dictionary 399 (5th ed. 1979) defines derivative as “[c]oming from another; taken from something preceding; secondary. That which has not its origin in itself, but owes its existence to something foregoing. Anything obtained or deduced from another.” In discussing death and disability workers compensation benefits, the United States Supreme Court noted:
“[T]he two kinds of payment are ‘always regarded as component parts of a single system of rights and liabilities arising out of’ the relation of employer and employee. [Citation omitted.] The object of such acts ‘is single—to provide for the liability of the employer to make compensation for injuries received by an employee,’ whether to the employee himself or to those who suffer pecuniary loss by reason of his death. [Citation omitted.]” Madera Co., 262 U.S. at 501.
We consistently have recognized in Kansas that the employment relationship is the source of the workers compensation liability. In Moeser v. Shunk, 116 Kan. 247, 251, 226 Pac. 784 (1924), finding that the Workers Compensation Act was the exclusive remedy as between the deceased employee’s dependents and the employer, the court noted: “The workmen’s compensation law fixed the liability of an employer to his employee where both parties are under the law, and this liability is founded upon the contract of employment and the statute.” In Lyon v. Wilson, 201 Kan. 768, 774, 443 P.2d 314 (1968), an action by the wife of a deceased employee, we noted: “The liability of an employer to an injured employee arises out of contract between them, and the terms of a statute are embodied in that contract.” Finally, in a 1977 action by a deceased worker’s dependents, Baker v. List and Clark Construction Co., 222 Kan. 127, 133, 563 P.2d 431 (1977), we held that “[t]he liability of an employer to an injured or deceased employee arises out of the contract between them.” (Emphasis added.)
To exclude from our consideration the employment contract and the rights of the employee, as Popejoy urges, is to ignore the very nature of the rights conferred under our Workers Compensation Act. The dependents’ right of action is derivative of and dependent upon the employee’s contract of employment. It exists, if at all, because of the employee-employer relationship, the statutes governing that relationship and benefits conferred, and the contract of employment, all of which preexisted the worker’s death. All considerations focus upon the employee and the rights and laws preexisting the employee’s death, and we therefore conclude that it is entirely appropriate to approach a determination of constitutionality upon our consideration of the constitutional rights of the employee, now deceased, Fermín Jurado.
Equal Protection
The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. 14 § 1. Its counterpart, Section 1 of the Kansas Constitution Bill of Rights, provides: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”
We have long said that the Constitution does not make this court the critic of the legislature, “but rather, the guardian of the Constitution; and every legislative act comes before this court surrounded with the presumption of constitutionality.” Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 760, 408 P.2d 877 (1965). Neither the state nor federal equal protection provisions prohibit legislative classifications; equal protection requires, however, that legislative classifications be reasonable, not arbitrary, and that they be justified by legitimate legislative objectives. See, e.g., Plyler v. Doe, 457 U.S. 202, 216, 72 L. Ed. 2d 786, 102 Sv Ct. 2382 (1982); Stephenson v. Sugar Creek Packing, 250 Kan. 768, 774, 830 P.2d 41 (1992); Farley v. Engelken, 241 Kan. 663, 668, 740 P.2d 1058 (1987).
This court and the United States Supreme Court have used three basic standards to- determine whether a legislative classification violates the right to equal protection of the law. The least scrutiny applied is the “rational basis” test. To pass constitutional muster under the rational basis test, the legislative classification “must bear a rational relationship to a legitimate objective.” Stephenson, 250 Kan. at 774. See McGowan v. Maryland, 366 U.S. 420, 425, 6 L. Ed. 2d 393, 81 S. Ct. 1101 (1961); Bair v. Peck, 248 Kan. 824, 830-31, 811 P.2d 1176 (1991). Courts typically have applied a rational basis test when parties have asserted equal protection challenges to social and economic legislation. See Leiker v. Gafford, 245 Kan. 325, 363, 778 P.2d 823 (1989) (applying rational basis test to statutory limitation on wrongful death, damages). When this test is appropriate, constitutionality is presumed, and the burden is on the party challenging the statute to prove that no rational basis exists. State ex rel. Schneider v. Liggett, 223 Kan. 610, 616, 576 P.2d 221 (1978).
The second level of scrutiny may be described as the “substantial relationship” or “heightened scrutiny” test. To be constitutionally valid under this test, “the classification ‘must serve important governmental objectives and must be substantially related to achievement of those objectives.’ ” Stephenson, 250 Kan. at 775. The United States Supreme Court has applied this level of scrutiny to “quasi-suspect” classifications such as those based on sex or legitimacy. See generally Farley, 241 Kan. at 669 (citing, inter alia, Pickett v. Brown, 462 U.S. 1, 76 L. Ed. 2d 372, 103 S. Ct. 2199 [1983], and Craig v. Boren, 429 U.S. 190, 50 L. Ed. 2d 397, 97 S. Ct. 451 [1976] [gender]).
The third level of scrutiny, strict scrutiny, requires a showing that “the classification is necessary to serve a compelling state interest.” Stephenson, 250 Kan. at 775; Farley, 241 Kan. at 670. See Shapiro v. Thompson, 394 U.S. 618, 634, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969). This strict level of scrutiny applies when fundamental rights are affected or when suspect classifications are involved. See, e.g., Farley, 241 Kan. at 669; Liggett, 223 Kan. at 617. Although statutes generally come before this court clothed with the presumption of constitutionality, Londerholm, 195 Kan. at 760, when a suspect classification or fundamental right is involved, the burden of proof to justify the classification shifts to the proponent of the statute. Farley, 241 Kan. at 670; Liggett, 223 Kan. at 617.
In this case, we deal with a statutory classification based on alienage. The class of workers that K.S.A. 44-510b(i) singles out for disparate treatment is made up of workers with dependents who are nonresident aliens. Although the statute does not discriminate against employees based on the employees’ alienage, it does discriminate against a class of employees based on their dependents’ alienage. Workers compensation death benefits serve a dual purpose. First, they serve the employee’s interest in assuring that his or her family is protected against the loss of the worker’s income. See Madera Co., 262 U.S. at 503-04. They also serve the dependents’ interests but, as noted above, the dependents’ rights are derived from and dependent upon the employee’s right. The two are so intertwined that we cannot separate them for purposes of this constitutional analysis.
K.S.A. 44-510b(i) provides less protection to an employee’s dependents on the basis of the dependents’ alienage. By doing so, it creates a classification of employees based on alienage even though the classification is not based on the employee’s alienage. Although the benefit limitation applies only to dependents who are nonresident aliens, to suggest that this makes it a classification based on residence is disingenuous. Nonresident United States citizens are entitled to the same benefits as resident citizens and resident aliens. The statute’s disparate treatment of these two classes of nonresidents is based solely on alienage. Simply because the statute does not similarly discriminate against resident aliens does not make it any less an alienage classification. In Nyquist v. Mauclet, 432 U.S. 1, 8-9, 53 L. Ed. 2d 63, 97 S. Ct. 2120 (1977), the United States Supreme Court applied strict scrutiny to a statute that affected only a subclass of resident aliens. The court determined that the legislative classification was nevertheless based on alienage. K.S.A. 44-510b(i) creates and treats differently a class of employees based on the alienage of the employees’ dependents; it is a legislative classification based on alienage.
The United States Supreme Court consistently has held that classifications based on alienage, at least with respect to resident aliens, are suspect and that strict scrutiny applies. See, e.g., Bernal v. Fainter, 467 U.S. 216, 219, 81 L. Ed. 2d 175, 104 S. Ct. 2312 (1984); Graham v. Richardson, 403 U.S. 365, 372, 29 L. Ed. 2d 534, 91 S. Ct. 1848 (1971). Such level of scrutiny applies even to resident aliens who are in this country illegally. Plyler v. Doe, 457 U.S. at 216-17.
Even though the statutory classification in this case deals with nonresident alien dependents, the alienage-based classification affects resident employees. Thus, the alienage-based classification affects the equal protection rights of resident employees.
K.S.A. 44-51 Ob(i)
The provisions limiting nonresident alien dependent compensation to an amount of $750 were enacted by the Kansas Legislature in 1911. See L. 1911, ch. 218 § 11. The death benefit ceiling for all other dependents was $3,600 in 1911. However, K.S.A. 44-510b(h) has been amended over the years to the current ceiling of $200,000, representing a 6,150% increase in the amount of death benefits since the statute’s inception. In stark contrast, the $750 ceiling in K.S.A. 44-510b(i) has remained static for 81 years.
Popejoy contends that K.S.A. 44-510b(i) will withstand even the strictest scrutiny because a compelling governmental interest necessitates this classification. Popejoy claims that the State would face an “insurmountable task” of administering benefits to citizens of foreign countries, dealing with foreign governments, ascertaining choice of law rules with regard to issues such as marriage and paternity, and insuring dependents received the benefits to which they are entitled. It cites the prevention of fraud and extreme financial hardship on the citizens, employers, and insurance carriers of Kansas as compelling interests that justify the statute’s classification.
In response to this contention, it must be noted that the statute allows the nonresident alien dependents to recover some benefits, and the insurers or employers must address these administrative matters. Within a week of Jurado’s death, a $750 check was issued to his dependents. Moreover, difficulty of establishing a dependent’s entitlement to benefits is not a difficulty of the State. The burden of proof is on the claimant to prove his or her entitlements to any award under the Workers Compensation Act, K.S.A. 1992 Supp. 44-501(a).
To the extent the difficulty of administering benefits qualifies as a compelling interest, it is an interest of the employers or the insurers, not the State. Moreover, under the Kansas Workers Compensation Act, all employers are required to secure payment of workers compensation benefits by either contracting with a private insurance carrier, qualifying as a self-insurer, or maintaining membership in a qualified workers compensation pool. K.S.A. 1992 Supp. 44-532(b). Finally, the contention that administration of benefits would be an “insurmountable task” may have been viable in 1911. However, given the global economy within which we work, the task has become less difficult over the past 80 years.
We conclude that the disparate treatment between employees with nonresident alien dependents and other employees is unconstitutional and violative of the Equal Protection Clauses of both the Kansas and the United States Constitutions. As noted by De Ayala v. Florida Farm Bureau Cas. Ins., 543 So. 2d 204, 207 (Fla. 1989):
“One of the primary benefits that an employee works for is the satisfaction and well-being of providing for his or her family. The law did not afford petitioner’s deceased husband different treatment while he was alive and working. He shared the same burdens’ as his fellow employees. He paid taxes and contributed to the growth of his company and the general economy. His labor, along with that of his American or Canadian co-workers, helped pay for the employer’s insurance premiums required under the worker’s compensation law. Common sense dictates that he should be entitled to the same benefits,’ regardless of the residence or status of his dependents. We agree with the California Supreme Court, which in discussing this issue in 1916, held:
‘If it may reasonably be thought that the best interests of the state, of the employers of labor, and of those employed, as well as of the public generally, are promoted by imposing upon the industry or the public the burden of industrial accident—and some such theory lies at the bottom of all workmen’s compensation statutes . . . the residence and citizenship of the injured workman, or (if he shall have met death) of his dependents, are factors entirely foreign to the discussion.’ ”
As the United States Supreme Court noted in Madera Co.:
“Such employers’ liability statutes are designed to benefit all employees. [Citation omitted.] They have the interest of the employees in mind and are primarily for the protection of their lives; the action is given to the beneficiaries on their account, and they are not intended to be less protected if their beneficiaries happen to live abroad.” 262 U.S. at 504.
Other Jurisdictions
The workers compensation laws in all but nine states have special provisions for nonresident alien dependents. “Five states expressly include nonresident aliens on equal terms with other dependents; five states exclude them from benefits altogether. Most of the rest provide for reduced benefits or the commutation of benefits to a lump sum on a reduced basis, and many restrict the classes of beneficiaries.” 2 Larson’s Workmen’s Compensation Law § 63.50, at 11-185-86 (1993). We have identified four jurisdictions that have addressed the constitutionality of statutes that treat nonresident alien dependents differently from other dependents. Three upheld the constitutionality of the respective statutes, and one found that the statute was unconstitutional.
In Alvarez Martinez v. Industrial Com’n of Utah, 720 P.2d 416 (Utah 1986), the Utah Supreme Court upheld the constitutionality of a statute that limited death benefits payable to nonresident alien dependents to one-half of that to which other de pendents would be entitled. Its decision is based upon a consideration of the rights of dependent nonresident aliens. The court concluded that this class of dependents has no constitutional rights based on Johnson v. Eisentrager, 339 U.S. 763, 94 L. Ed. 2d 1255, 70 S. Ct. 936 (1950). Unlike Alvarez Martinez, we consider the constitutional rights of the worker.
Pedrazza v. Sid Fleming Con., Inc., 94 N.M. 59, 607 P.2d 597 (1980), the Supreme Court of New Mexico upheld the constitutionality of a statute that provided nonresident alien dependents are not entitled to any death benefits. 94 N.M. at 63. In so holding, however, the court also held that because these dependents were “not covered by the Act,” they were not barred from pursuing other avenues of recovery. 94 N.M. at 63. Thus, their due process rights under the United States Constitution and the state constitution were not jeopardized because the right to advance an independent cause of action was not taken away. It is true that the Pedrazza court held that the right to equal protection extended to only people within the geographic boundary of the state. 94 N.M. at 62 (citing Yick Wo v. Hopkins, 118 U.S. 356, 30 L. Ed. 2d 220, 6 S. Ct. 1064 (1886), and Johnson v. Eisentrager, 339 U.S. 763. We, however, unlike Pedrazza, consider the constitutional rights of the worker, not the rights of the surviving dependents.
In Pena v. Industrial Com’n of Arizona, 140 Ariz. 510, 683 P.2d 309 (Ct. App. 1984), and Jalifi v. Industrial Commission of Arizona, 132 Ariz. 233, 644 P.2d 1319 (Ct. App. 1982), the Arizona Court of Appeals summarily rejected plaintiffs’ equal protection challenges to the state statute that allowed nonresident alien dependents to recover 60% of the benefits to which other dependents are entitled. In reaching its conclusion, Pena, unlike our approach, based its conclusion on the fact that nonresident aliens are not entitled to equal protection.
Filially, in De Ayala, the Florida Supreme Court held unconstitutional a statute that provided $1,000 maximum in death benefits to nonresident alien dependents and $100,000 maximum to all other dependents. The court found the statute violated the worker’s constitutional rights to the extent it provided reduced benefits for Florida workers with nonresident alien dependents not living in Canada. 543 So. 2d at 207-08. Based on our analysis of the above cases and based upon our consideration of the facts and law, we conclude that the provisions of K.S.A. 44-510b(i) are unconstitutional in that they violate Jurado’s federal and state constitutional rights to equal protection of law. Accordingly, we reverse and remand for further proceedings consistent with this opinion.
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The opinion of the court was delivered by
Abbott, J.:
This is an appeal by The Peppermint Twist Management Co., Inc., (Peppermint Twist) from judgments in a personal injury case in favor of Cindia “Cindi” Cott and John Cott. The Cotts were injured when Peppermint Twist’s employees served them Eco-Klene dishwashing liquid containing sodium hydroxide in place of a similar-looking alcoholic beverage. Peppermint Twist presents four issues with five subissues on appeal. The Cotts raise two issues on cross-appeal.
Cindi Cott; her husband, Charles Price; and her fáther, John Cott joined friends for an evening at the Peppermint Twist in Topeka, Kansas, on September 23, 1989. The nightclub promoted its drink specials. That evening, Peppermint Twist advertised watermelon shots for one dollar by posting it on a portable sign in the nightclub’s parking lot, by writing it in grease pencil on a board at the entrance of the nightclub, and by periodic announcements over the loudspeaker. A watermelon shot contains Southern Comfort, Creme de Noyaux, and orange juice.
The front bar area of the nightclub had sinks for handwashing glasses. A “normal” dishwashing liquid was used at these sinks; however, the club ran out of this soap several weeks prior to September 23, 1989. The testimony was conflicting whether additional soap had been ordered and whether management authorized the use of Eco-Klene at these sinks. Heavy Duty EcoKlene was the detergent used in the high-volume automatic dishwasher in the kitchen and was purchased and stored in five-gallon containers. The label on each Eco-Klene container warned that the product contains sodium hydroxide, that the product causes severe chemical burns, and that ingestion of the product could be fatal.
Sodium hydroxide is an alkaline substance and is commonly known as lye. It is an extremely dangerous corrosive and will bum human tissue very quickly if ingested. The degree of the injury will vary depending upon the manner in which the lye is ingested, that is, whether it is “gulped down” or sipped. EcoKlene contains 30 percent sodium hydroxide in solution, which upon contact will burn tissue instantaneously and continuously, causing liquefaction, a dissolving of tissue. Liquefaction continues until the lye is diluted by the liquid released from the breakdown of the cells. The ingestion of this liquid lye produces intense pain.
A Peppermint Twist employee transferred Eco-Klene from the five-gallon container into an unmarked pour-and-serve or hurricane container. The container was placed in the front bar area underneath the sinks. On September 23, the unmarked pour- and-serve container of Eco-Klene was placed on top of the bar and was mistaken for a container of watermelon shots. Both are red in color and similar in appearance. Eco-Klene has no odor. The container of Eco-Klene was placed on the tray of Mary Cottrell, one of the cocktail waitresses.
Mary stopped by the table where Cindi, Charles, John, and their friends were seated and solicited orders for watermelon shots. Cindi testified that she asked Mary about the drink and that Mary responded, “Yes, I’ve drank them. They’re gopd. They taste just like watermelon.” Cindi said she relied upon Mary’s representations when she ordered a watermelon shot. Three watermelon shots were ordered. Mary poured the liquid from the pour-and-serve container into the shot glasses on her tray and then served them. Cindi and John each drank one of the watermelon shots.
Cindi testified that after she took a drink, she was in a state of shock because the drink was “very, very hot.” She remembered sitting there staring and then grabbing her stomach and spitting. Cindi went to the bathroom and laid down on the floor of the handicap stall because she could not breathe. She described the sensation as “a fire, a very hot fire, burning inside of you from your belly all the way up and .you [were] gasping trying to get air.” Cindi thought she was dying and was concerned about what would happen to her young children.
Charles noticed other people heading for the restrooms and decided to check on Cindi. He found her unconscious on the floor with miicus coming out of her mouth. Charles climbed over the top of the stall because the door was locked. Cindi was not breathing when he reached her. After Charles performed the Heimlich maneuver on Cindi, a gust of air came out and she started breathing. The next thing Cindi remembered was Charles holding her head over the toilet and telling her “to get it out.” When Cindi regurgitated, some of the substance ended up on her hand, permanently scarring her hand.
John was surprised Cindi would try the mixed drink and watched her reaction. He noticed a funny look on Cindi’s face after she took a drink. He then picked up one of the shot glasses and drank the contents. John testified that “[i]t felt like somebody just took a red-hot poker and jammed it down your throat.” He grabbed his throat and then drank a cold beer. John remembers going outside and throwing up several times. He stated that it felt like his throat was closing down and that he felt- so bad he wanted to die.
John and Cindi subsequently were taken by ambulance to a local hospital. Their injuries, treatment, and prognosis will be discussed in conjunction with the issue on damages.
Approximately one dozen poisonings occurred at the Peppermint Twist on September 23, 1989. The Topeka-Shawnee County Health Agency conducted an investigation and concluded that Eco-Klene was not labeled for handwashing use and was transferred improperly to a food container and that the food container in which Eco-Klene had been stored was not labeled to reflect its contents and was not stored in a proper place for toxic items. These are violations of K.A.R. 28-36-26(g), part of the regulations governing food service establishments promulgated by the Kansas Department of Health and Environment (KDHE).
Cindi and John filed individual suits against Peppermint Twist, alleging strict liability, negligence, and breach of express and implied warranties. Peppermint Twist moved to add Ecolab, Inc., the manufacturer of Eco-Klene, as an additional party for purposes of fault comparison, pursuant to K.S.A. 1992 Supp. 60-258a(c). Cindi and John subsequently amended their petitions to include claims against Ecolab.
In a similar case filed against Peppermint Twist, the nightclub admitted it had breached the cocktail waitress’ express warranty that the substance was “good” and it had breached, an implied warranty of merchantability by serving a drink not of merchantable quality. Thereafter, Cindi and John jointly moved to dismiss with prejudice their claims against Ecolab and to dismiss without prejudice the strict liability and negligence claims- against Peppermint Twist. Based upon the settlement into which the plaintiffs and Ecolab. entered, the trial court dismissed Cindi’s and John’s claims against Ecolab. Cindi and John proceeded to trial, on a theory of breach of express warranty under K.S.A. 84-2-313. The trial court ruled,, however, that Peppermint Twist could raise Ecolab’s fault as an affirmative defense and have the jury compare the fault of Ecolab and the nightclub.
After the presentation of the plaintiffs’ cases, they moved for a directed verdict on the breach of warranty claim. The trial court found Peppermint Twist breached the express warranty “ ‘that the material served was a watermelon shot, an alcoholic beverage fit for human consumption.’ ”
In distributing fault in both cases, the jury found Peppermint Twist 100 percent at fault and Ecolab zero percent at fault. Ten out of twelve jurors were in agreement to award Cindi $2,500,000 as follows: $1,100,000 for past and future medical expenses; $360,000 for future loss of income; and $1,040,000 for past and future pain and suffering, including mental anguish and disfigurement. The jury unanimously awarded John $750,000 as follows: $.80,000 for past and future medical expenses; $100,000 for past and future loss of income; and $570,000 for past and future pain and suffering, including mental anguish and disfigurement. The trial court applied K.S.A. 1992 Supp. 60-19a02 and reduced the damages for past and future pain and suffering to the statutory cap of $250,000. This reduced Cindi’s total award to $1,710,000 and John’s total award to $430,000.
The trial court denied Peppermint Twist’s motion for remittitur or for a new trial. Peppermint Twist appealed. Cindi and John filed cross-appeals. Peppermint Twist’s motion to transfer the appeal from the Court of Appeals to this court was granted.
I. NEW TRIAL
Peppermint Twist contends it is entitled to a new trial on all issues because the evidence does not support the damages awarded and because the jury disregarded the trial court’s instructions. “The granting of a new trial is a matter of trial court discretion and, as with all discretionary matters, will not be disturbed on appeal except by a showing of abuse of that discretion.” Wahwasuck v. Kansas Power & Light Co., 250 Kan. 606, Syl. ¶ 7, 828 P.2d 923 (1992). “Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court.” In re Marriage of Soden, 251 Kan. 225, Syl. ¶ 9, 834 P.2d 358, cert, denied _ U.S. _, 121 L. Ed. 2d 540 (1992).
A. DAMAGE AWARDS
Peppermint Twist only contests the sufficiency of the evidence for the objective elements of damage awards, that is the damages awarded for future medical expenses and for future loss of income. On cross-appeal, Cindi and John (the Cotts) raise a legal question about the damages awarded for pain and suffering, a subjective element of damage awards. The Cotts’ question will be discussed later.
In arguing the evidence does not support the damage awards, Peppermint Twist initially relies upon K.S.A. 1992 Supp. 60-249a. Subsection (a) requires that a verdict in any personal injury action for damages be itemized as follows: noneconomic injuries and losses (pain and suffering, disability, disfigurement, and any accompanying mental anguish), economic injuries and losses, and medical expenses. Under subsection (b), such a verdict is to be further itemized into past and future damages. Subsection (c) specifies there must be some evidence to support an award before the jury is instructed upon any item of damage. Peppermint Twist claims error in the special verdict form used because the trial court failed to separate past and future damage awards. Peppermint Twist neglects to mention the court asked about, and Peppermint Twist’s counsel agreed to lump together, past and future damage awards. If there was error, Peppermint Twist, through the actions of its counsel, consented to it and therefore cannot raise it on appeal. See Mitchell, Trustee v. Moon, 206 Kan. 213, Syl. ¶ 3, 478 P.2d 203 (1970), in which this court held: “A defendant may not complain of rulings or matters to which he has consented, or take advantage of error upon appellate review which he invited, or in which he participated.”
In denying Peppermint Twist’s motion for remittitur or for a new trial, the trial court concluded the “awards should stand despite an indication that the jury made no rigorous attempt to calculate the figures in the medical or wage categories.” The trial court described the injuries to Cindi’s esophagus as “severe, traumatic, and long-lasting” and concluded that the jury took into account Cindi’s life expectancy. The court acknowledged the award was generous, but determined the evidence supported the award because “of the potential exhibited by all the medical testimony of reoccurrences, potential replacements of the esophagus on numerous occasions, the cost of this, [and] the potential of cancer.”
Peppermint Twist argues the jury award for Cindi’s future medical costs is speculative, is not calculated reasonably from the evidence, and in fact is “outrageously disproportionate” to the evidence. According to Peppermint Twist, the jury awarded Cindi $1,078,933.31 for future medical costs because the total award was $1,100,000 and her past medical expenses were $21,066.69. The nightclub claims the evidence was that Cindi was undergoing an annual endoscopy at a cost of $386 per visit; that Cindi was undergoing periodic esophageal dilations; and that Cindi could perform the dilations herself, but if she chose to have a doctor perform them the cost was $84 per visit. Peppermint Twist emphasizes that even if Cindi had a doctor perform the dilation monthly, it would take 602 years to exhaust the jury’s award. The nightclub contends the trial court “misstated the evidence” in that there was no evidence Cindi might need repeated surgeries. Peppermint Twist claims the evidence showed that one esophageal replacement surgery might be needed at a cost of approximately $95,000 and that the surgery would eliminate the risk of cancer and the need for future endoscopy and dilation. Peppermint Twist adds that because the doctors estimated the need for the surgery at less than one percent, the trial court erred in even allowing the jury to hear this evidence. The nightclub maintains that even if the replacement surgery never occurred, there was no evidence Cindi’s risk of cancer was substantial or even was more likely than not to occur.
“ ‘When a verdict is attacked on the ground that it is contrary to the evidence, it is not the function of this court on appeal to weigh the evidence or pass on the credibility of the witnesses. If the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the successful party, will support the verdict, this court should not intervene.’ [Citation omitted.]” Wahwasuck, 250 Kan. at 617.
We view the evidence differently than does counsel for Peppermint Twist.
Dr. Robert W. Braun, a gastroenterologist, examined and treated Cindi the night she was taken to the emergency room. He immediately noticed that her lower lip was swollen and that she had extensive oral bums. Cindi complained of a burning in her chest and of epigastric distress. Dr. Braun performed an emergency endoscopy, which is a procedure that permits a doctor to examine the interior of a body canal. See Stedman’s Medical Dictionary 513 (25th ed. 1990). He endoscoped Cindi’s esophagus and stomach. The esophagus is a muscular tube that forms a canal between the mouth and the stomach. Anything taken into the mouth and swallowed “passes through the pharynx (throat) into the esophagus and from there into the stomach.” 2 Schmidt, Attorney’s Dictionary of Medicine and Word Finder E-172 (1993). Peristalsis, a succession of muscular contractions in the esophagus, propels food and drink downward and then helps keep food and drink in the stomach.
During the emergency endoscopy, Dr. Braun discovered “extensive oral burns, swelling or edema of the hypopharynx and the larynx.” The hypopharynx are the muscles in the back of the throat, and the larynx refers to the vocal cords. He also observed that Cindi’s “esophagus was diffusely inflamed with severe necrosis, erythema, which is redness, and [denudation] of the mucosa, meaning it appeared as if it had been stripped or dissolved away.” Additionally, the doctor found active bleeding.
During a second endoscopy three days later, Dr. Braun found throughout the entire esophagus circumferential bums, which increase the risk of strictures. In this case, a stricture is an abnormal narrowing of the esophagus caused by the formation of scar tissue in response to the swallowing of a caustic substance. See 3 Schmidt, Attorney’s Dictionary of Medicine and Word Finder 306-07 (Feb. 1993 Supp.). Strictures obstruct the passage of food, drink, and even saliva.
About one week later, on the day before Cindi was released from the hospital, Dr. Braun performed a third endoscopy. After observing esophagitis and early stricturing, he immediately dilated her esophagus. Dilation is an uncomfortable and sometimes painful process that breaks up scar tissue and expands or stretches the diameter of the esophagus. The process ensures that the esophagus’ airway remains open. A succession of gradually larger dilators are dropped down the patient’s esophagus. Some doctors sedate the back of the patient’s throat to reduce or prevent gagging.
Shortly after her release from the hospital, Cindi underwent another endoscopic examination in which Dr. Braun encountered four strictures. Twelve days later, the doctor performed another endoscopy, discovered that strictures were reforming in the same location with mild ulceration of the upper and lower strictures, and dilated her esophagus once again. Dr. Braun diagnosed Cindi with “[mjultiple esophageal strictures secondary to caustic ingestion.” He performed numerous dilations in the subsequent months. When the doctor last saw Cindi in August 1990, he was encouraged because the strictures were not reforming as quickly. In Dr. Braun’s opinion, Cindi will need to be monitored by a physician and undergo dilations for the rest of her life. The doctor does not recommend self-dilation.
Dr. Phillip B. Miner, Jr., Director of the Division of Gastroenterology and Professor of Medicine at the University of Kansas Medical Center, began treating Cindi in August 1990. The doctor commented that for the rest of her life, Cindi’s strictures will reoccur and she will need repeated dilation. Dr. Miner has tried to maintain monthly dilations and is teaching Cindi to dilate her.self. Even if Cindi learns to dilate herself, she will need to see the doctor at least annually. Dr. Miner does not recommend esophageal replacement surgery.
Dr. John R. Lilly, who is a pediatric surgeon at The Children’s Hospital in Denver and has studied esophageal replacement in children, examined Cindi in April 1991. The doctor also had access to the medical records of Cindi’s treating physicians. Dr. Lilly noted Cindi had been receiving esophageal dilations monthly for the past year, but that dilation has not relieved all her symptoms. She is unable to eat solid foods such as meat. She suffers from heartburn, which is sufficiently severe to wake her at night. The topical anesthetic used in conjunction with the dilations leaves her ears burning for a couple of days. Cindi also complains of pain in her chest and in her back.
Dr. Lilly diagnosed Cindi as having “an esophageal injury leading to stricture formation, probably compounded by an element of gastroesophageal reflux responsible for her symptomatology.” Gastro reflux refers to stomach acid refluxed into the esophagus because of the weakened valve between the stomach and the esophagus. The valve normally keeps the contents and acid in the stomach out of the esophagus. The doctor opined that ingesting lye damaged the valve. Symptoms of gastro reflux include heartburn and pain in Cindi’s chest and back. Formation of scar tissue, stenosis or strictures, and chronic inflammation from the acid refluxing are some of the long-term effects. Generally, the usual treatment is an interabdominal operation in which a new valve is created; however, the operation would be risky for Cindi because of her damaged esophagus. Dr. Lilly concluded Cindi will have medical problems and need medical supervision for the rest of her life. Despite complications with esophageal replacement, the doctor recommended the surgery because of Cindi’s “miserable existence.” Dr. Lilly stated that if she does not have the surgery, she will need to be dilated, either by a doctor or by herself, a minimum of three or four times a year.
As previously mentioned, Cindi has difficulty eating solid foods; it can take solid food one-half hour to pass through Cindi’s esophagus. Cindi does not eat much solid food and when she does, she takes very small bites and chews the food for a long time. Cindi no longer enjoys socializing and eating in restaurant's because it takes her so long to eat and because food often gets caught in her esophagus, causing her to gag. When Cindi starts gagging, she will go to the restroom and stick her finger down her throat in order to make herself regurgitate. After dilation, Cindi cannot eat solid food the first couple of days or approximately three weeks later. Dr. Lilly acknowledged Cindi is “quite uncomfortable” the last week before her next dilation. In lieu of eating solid foods, Cindi drinks milk and Ensure, a high protein-caloric liquid, to help maintain her weight.
One of the dangers of dilation, also referred to as dilatation, is perforating the thin walls of the esophagus. Perforation can cause major internal bleeding or, more seriously, can allow bacteria to escape from the esophagus into the surrounding tissue, such as the heart. If infection sets in, the strictures worsen and emergency surgery generally is required. Death can result. Additionally, food may become lodged in the esophagus, and attempts to dislodge the food may cause the esophagus to rupture. Other dangers include vomiting and aspiration with the primary complication of pneumonia and a slight risk of sudden death.
With regard to the surgery, sometimes the damaged esophagus can be removed and the remaining esophagus attached to the stomach. Other times part of the stomach may be used to patch the hole. Another possibility is an interpositional graft, which involves removing the esophagus and replacing it with another part of the intestinal tract, i.e., the large or small intestine or the colon. There is, however, no satisfactory way to replace the esophagus. Interpositional grafts cannot replace peristalsis. Therefore, gravity is the only means by which to propel food downward. An individual who has had an interpositional graft is limited in the types of food that can be ingested and also must eat smaller meals and eat more frequently than someone whose esophagus functions normally. Additionally, food often becomes stuck in the esophageal replacement and eventually stagnates. This leads to stenosis, a type of stricture, and a new operation is required to correct the problem.
Interpositional grafts place an acid-bearing part of the intestine close to the mouth. This leads to ulcer formation and “a foul taste in the mouth.” The individual’s breath has such a bad smell that others can detect it as soon as the individual enters a room. If the colon, is used as an esophageal replacement, there is a possibility of reflux of acid from the stomach into the colon, causing colitis with ulceration and bleeding.
An adult whose esophagus has been burned because of ingesting lye has an increased risk of cancer of the esophagus. The elevated risk has been estimated as high as a thousand-fold increase. Among individuals with similar injuries, Cindi’s chances of developing cancer may be as high as 10 percent. If the general public is included, the increased risk is 3 percent. Because most lye ingestion cases have involved children, there are no reliablé studies involving adults. The experts agree there is no way to determine whether an adult who has ingested lye and has strictures of the esophágus will get esophageal cancer; however, there is a risk factor and the individual should be concerned. This type of cancer is treated with surgical removal of the cancerous portion of the esophagus and radiation. Cancer of the esophagus has a high fatality rate, with one expert stating the mortality rate is virtually 100 percent. Onset of the cancer, usually occurs more than 20 years after the lye injury. The shortest reported time frame has been eight years. Surgical removal of the esophagus eliminates the risk of developing esophageal cancer.
Peppermint Twist argues: “Speculation concerning the dire nature of remote possibilities is insufficient, as a matter of law, to support a pecuniary award for the presumed actual occurrence of those consequences.” In support of this argument, the nightclub cites Morris v. Francisco, 238 Kan. 71, 77, 708 P.2d 498 (1985), in which this court stated that “recovery may not be had where the alleged damages are too conjectural or speculative to form a basis for measurement.” The nightclub also relies upon Tamplin v. Star Lumber & Supply Co., 251 Kan. 300, 836 P.2d 1102 (1992), and Sharpies v. Roberts, 249 Kan. 286, 816 P.2d 390 (1991), for the proposition that future medical damages can be awarded only if the evidence shows a “substantial possibility” or “reasonable probability” that such expenses will .occur. Peppermint Twist’s reliance upon the latter cases is misplaced. Tamplin concerned awards for mental distress, and Sharpies addressed the criteria for establishing a medical malpractice claim based upon expert testimony.
The Tamplin court held:
“Anxiety based upon a reasonable fear that an existing injury will lead to the occurrence of a disease or condition in the future is an element of mental distress for which damages may be recovered. However, for the fear to be reasonable, it is not necessary to show that prospect of such an occurrence is a medical certainty or probability. It is sufficient if there is a showing that a substantial possibility exists for such an occurrence.” 251 Kan. 300, Syl. ¶ 1.
The Cotts concede Cindi’s future medical expenses cannot be determined exactly, but contend that alone does not invalidate the jury’s award. See Gregory v. Carey, 246 Kan. 504, Syl. ¶ 2, 791 P.2d 1329 (1990) (Because “the issue of damages is a difficult one to calculate, the law has given juries great leeway in this area.”); Kansas Dept. of SRS v. Goertzen, 245 Kan. 767, 774, 783 P.2d 1300 (1989) (“[T]he inability to calculate damages with absolute exactness does not render them too uncertain to preclude their award.”). More recently, in Cerretti v. Flint Hills Rural Electric Co-op Assn, 251 Kan. 347, 362, 837 P.2d 330 (1992), we held:
“It is the function of the trier of fact to determine the amount of damages that should be awarded to a party, based upon evidence of the loss suffered, A reasonable basis for computation and the best evidence obtainable under the circumstances should enable the trier of fact to make an estimate which provides an adequate recovery of damages. [Citation omitted.]”
The experts did not agree on what course Cindi’s future treatment should take. For example, Dr. Miner recommended continued monthly dilation and annual endoscopic examinations. Dr. Lilly recommended semiannual examinations. Peppermint Twist lists the cost of a dilation at $84 and an endoscopy at $386.
According to the jury instruction, Cindi was 24 years of age at the time of trial and could be expected to live 56 more years. Future medical costs for just these two procedures, based upon Cindi’s testimony, is $336,000. This figure does not take into account the continued risk of perforation or the potential need for additional or more frequent monitoring. This figure does not consider that' Cindi has as high as a 10 percent chance of developing cancer of the esophagus. Nor does it take into consideration inflation as reflected by medical costs over the last 25 years.
Dr. Lilly also recommended a different course of treatment— he recommended esophageal replacement surgery. The cost of such surgery is approximately $95,000. Because problems develop with esophageal replacements, additional operations are probable.
It seems likely that Cindi’s future medical costs will include some combination of the above. Based upon the best evidence available under the circumstances, the jury’s award has a reasonable basis for computation and is not based upon mere speculation.
The trial court upheld the damages awarded for John’s medical costs, reasoning that the injuries John sustained were “extremely serious.” The court concluded there was substantial medical testimony concerning potential medical costs for future throat and mouth problems as well as for the complications of cancer.
Peppermint Twist argues the evidence does not support an inference that John’s injuries have the potential to worsen in the future. According to Peppermint Twist, the jury awarded John $45,463.83 for future medical costs because the total award was $80,000 and his past medical expenses were $34,536.17. The nightclub contends the only evidence of future medical costs was a semiannual check-up at a cost of $386 per examination. Peppermint Twist calculated it would take approximately 58 years of semiannual examinations to deplete the jury’s award. According to the jury instruction, John was 56 years of age at the time of trial and had a life expectancy of 21.9 years. Peppermint Twist maintains future medical costs should not consider John’s leukoplakia because John’s treating physician testified that ingesting lye did not cause the condition. Furthermore, according to the nightclub, even if the condition resulted in cancer, it could be corrected medically at a maximum cost of $23,033. Again, we view the evidence differently.
Dr. Braun was John’s emergency room treating physician. John complained that his throat was sore, that his tongue and chest burned, and that he was unable to swallow his own saliva. Dr. Braun noted that John was unable to handle his secretions and saliva and that John’s oral membranes, tongue, palate, and pharynx were burned. The doctor performed an endoscopy, finding swollen vocal cords and extensive bums in the hypopharynx, larynx, esophagus, and stomach. Because John developed breathing problems, a tracheotomy, also referred to as a fiber optic direct laryngoscopy, was performed by an ear, nose, and throat specialist, Dr. Hsu, who confirmed Dr. Braun’s findings. Dr. Braun performed another endoscopy three days later and found extreme inflammation of the esophagus “in its entire length and circumferentially’ ” as well as a large ulcer forming in the stomach. John was discharged from the hospital six days later, and his discharge diagnosis was accidental lye ingestion, “chemical burns of the pharynx/larynx with laryngeal obstruction,” “lye bums of the esophagus, stomach, pharynx, and palate,” “large gastric ulcers secondary to the ingestion,” and emphysema.
The following day, Dr. Braun performed an endoscopy on John. The doctor found no evidence of stricturing, but observed the lower two-thirds of the esophagus oozed or bled upon touch. Dr. Braun dilated John, encountering no obstructions. John underwent further endoscopic examinations and dilations in the following months. No strictures were found. Because John remains at risk for strictures, Dr. Braun recommended occasional endoscopy, particularly if John experiences difficulty in swallowing, loss of weight, burning or pain, feeling full immediately after eating, or vomiting. When Dr. Braun last saw John in January 1990, the doctor found no obvious stricturing and determined the healing and reepithelialization of the ulcer was complete.
Dr. Charley W. Norris, an ear, nose, and throat surgeon at the University of Kansas Medical Center, saw John two or three times between August 1990 and the trial in September 1991. Because of his specialty, Dr. Norris focused upon the chemical and lye burns outlined in John’s discharge diagnosis. The doctor reviewed the discharge summary and also the laryngoscopies John underwent. The first laryngoscopy revealed John’s vocal cords were swollen, but not liquefied. On John’s right vocal cord, a white plaque, either referred to as hyperkeratosis or leukoplakia, was found. Both arytenoids, the vocal cords’ hinge-like structures, were swollen severely. The second laryngoscopy revealed the right vocal cord still was swollen and had exudate on the surface, meaning pus or secretions accumulating in the area. Because of the burns caused by the lye ingestion, John had nearly unidentifiable anatomy in the hypopharynx and larynx. According to Dr. Norris, it is possible the lye could have been forced up into John’s sinuses, thereby damaging the glands that secrete moisture for the nose, pharynx, and larynx.
Dr. Norris’ first examination of John in August 1990 revealed both vocal cords were red, swollen, and puffy. He also found leukoplakia, a premalignant condition, on the right vocal cord. Because some smokers develop leukoplakia, the lye ingestion may have aggravated a preexisting condition. John had smoked cigarettes until 1969 and then changed to a pipe. John has had laser surgery to scrape the white plaque off of his vocal cord. The surgery decreased, but did not eliminate, the leukoplakia, which is difficult to eliminate totally. Dr. Norris recommends that John have his vocal cords examined regularly. There was evidence John should have check-ups every three to six months for the rest of his life. As long as John’s vocal cords are abnormal, that is, red, swollen, and puffy, John is at risk to develop cancer. Additionally, John will need further surgeries to remove the white plaque. If a malignancy occurs, a partial or total removal of the voice box and cobalt radiation therapy will be required.
Dr. Miner also reviewed John’s discharge summary. Because of his area of expertise, the doctor focused upon the chemical bums to the pharynx, which transfers food into the esophagus, and the large gastric ulcers in John’s stomach. Dr. Miner opined the difference between John’s injuries and Cindi’s injuries was that John held the lye liquid in his mouth longer and, because of that, John’s injuries were more severe in his larynx and pharynx than in his esophagus. The doctor examined John and found evidence of ulcers. Based upon their unusual location and large scar form, Dr. Miner determined the ingestion of lye caused the ulcers. Dr. Miner recommends that John have an annual endoscopy because of the possibility of developing cancer of the esophagus or cancer in the stomach scar. If either cancer develops, it probably will occur 20 to 30 years after ingesting the lye.
Viewing the evidence in the light most favorable to the prevailing party, John will need to have his vocal cords checked every three months. “[Aggravation of a pre-existing condition is compensable” in a personal injury action. Kirk v. Beachner Construction Co., Inc., 214 Kan. 733, 737, 522 P.2d 176 (1974). Based upon Peppermint Twist’s stated cost of $386 per visit, the cost of future examinations for John’s life expectancy is $33,813.60. Dr. Miner also recommends an annual endoscopy, adding another $8,760 to John’s future medical costs. Adding the costs of the vocal cord and endoscopic examinations together totals $42,573.60. After subtracting this amount from the future medical costs award of $45,463.83, less than $3,000 remains. The jury might have awarded more money for these examinations; the jury might have concluded the ingestion of lye aggravated John’s preexisting condition of leukoplakia and awarded approximately $3,000 toward the vocal cord surgery, which was estimated to cost $24,308; or the jury might have awarded less money for the examinations and more money toward the surgery. Regardless of which scenario the jury followed, the jury’s award of future medical costs for John has a reasonable basis for computation and is not based upon mere speculation.
The jury awarded Cindi $360,000 for future economic loss, and the trial court upheld the award. According to the court, there was evidence from which the jury could have concluded Cindi was totally and permanently disabled and would be unable to achieve economic independence for the remainder of her life. The court suggested the award could be based on a working life of 36 years at a minimum salary of approximately $10,000 per year.
Peppermint Twist argues Cindi’s own testimony repudiated the award for future loss of income in that she stated she was not claiming lost wages. It is clear from the context, however, that Cindi was referring to past wages, not future wages. Cindi testified she was not employed át the time of ingesting the lye. Furthermore, Peppermint Twist did not object when the plaintiffs requested an instruction for (and only for) future lost earnings for Cindi.
The nightclub also contends there was no evidence to support the award for future lost income. Peppermint Twist primarily relies upon Cindi’s testimony that she wants to complete her GED and that she has considered taking vocational training in floral design, home design, or day-care. Prior to September 1989, Cindi intermittently worked various janitorial and cleaning jobs. The nightclub claims the evidence did not suggest her injuries would interfere with these “hypothetical future careers.” Moreover, it is claimed there was no expert testimony that Cindi had a realistic expectation of future employment in any field other than her previous field. Peppermint Twist suggests Cindi’s claim is speculative and indistinguishable from the plaintiff’s claim of lost earning capacity in Stang v. Caragianis, 243 Kan. 249, 259-61, 757 P.2d 279 (1988), in which this court held the claim was too speculative to have been submitted to the jury because the plaintiff only had aspired to become a model and had not pursued such a career after the accident.
Peppermint Twist also asserts there was no evidence Cindi’s injuries impaired her ability to clean houses or perform janitorial services. The nightclub claims the damages awarded here were based upon an abstract loss of ability to be employed gainfully. Peppermint Twist contends this alleged disability is nonpecuniary and should have been subject to the damage cap on pain and suffering. In support, the nightclub cites Kuhl v. Atchison, Topeka & Santa Fe Rwy. Co., 250 Kan. 332, 344, 827 P.2d 1 (1992), as expressly holding “that a general loss of the ability to perform work is an intangible element of loss, subject to damage caps.” Peppermint Twist argues the issue is not whether the damages were appropriate for Cindi’s losses, but “whether a pecuniary award for these losses can be sustained.” ,
Presumably, Peppermint Twist is referring to the following language in Kuhl: “The verdict form and PIK Civ. 2d 9.01, Elements of Personal Injury Damage, make clear that the element of disability is categorized along with pain and suffering, as non-economic/subjective.” 250 Kan. at 344. PIK Civ. 2d 9.01 (1990 Supp.) provides in pertinent part:
“You shall determine the amount of damages sustained by the plaintiff: You should allow the amount of money which will reasonably Compensate plaintiff for plaintiff’s injuries and losses resulting from the occurrence ,in question including any of the following shown by the evidence:
a. Pain, suffering, disabilities, or disfigurement, and any accompanying mental anguish suffered by plaintiff to date (and those plaintiff is reasonably expected to experience in the future); ' ’
c. -Loss of time or income to date by reason,of plaintiff’s .disabilities' (and that which plaintiff is reasonably expected to lose in the future . . .); and
' “In determining the amount of damages you should consider plaintiff’s age, condition of health before and after, and" the nature, extent and duration of the injuries. For such items as pain, suffering, disability, and mental, anguish there is no unit value and no mathematical formula the court can give you. You should allow such sum as will fairly and adequately compensate plaintiff. The amount to be allowed rests within your sound discretion.”
In the instant case, the jury instruction was identical to PIK Civ. 2d. 9.0.1, except for changing the language to provide for more than one plaintiff. Peppermint Twist attempts to equate damages awarded for pain and suffering based upon a disability with damages awarded because of a diminished earning capacity based upon that disability. The argument is a subterfuge. The issue is whether the evidence supports the damages awarded for loss of future income.
There is evidence to support the jury’s award. Elizabeth Anderson, who has her doctorate and is certified by the Kansas Division of Workers Compensation as a rehabilitation counselor, testified for the defense. As a rehabilitation counselor, Dr. Anderson examines a client’s medical records to ascertain what disability is involved, considers the psychological aspects of the disability, and then visits extensively with the client. The doctor verifies the client’s achievements, academic and intellectual abilities, aptitudes, and interests before conducting performance tests.
Cindi spent three days with Dr. Anderson and her staff in April 1991. Because Cindi had ingested lye, the doctor advised her to seek an occupation that allowed her some flexibility and control over her routine. According to Dr. Anderson, Cindi has three strikes against her: lack of skills; fear of not meeting competitive standards, which the doctor concluded was related directly to the lye ingestion; and remediation and cultural factors that may be against her in the work environment. The concern about not meeting competitive standards is that Cindi must have frequent dilation and is sick and sore after these dilations. Because Cindi experiences this “discomfort,” Dr. Anderson concluded Cindi would not be able to perform a job, even janitorial work, at an efficient and consistent pace and maintain quality performance.
Additionally, Dr. Lilly testified that if Cindi has the esophageal replacement surgery, she will have difficulties with a job that requires bending over because of the length of time it will take for food to reach her stomach.
“ ‘In reviewing an award for an objective element of damages such as loss of past and future income, an appellate court must look to the record to see if there is evidence to support the jury’s calculation of pecuniary loss.’ [Citation omitted.] In discussing how damages for loss of past and future income should be calculated, this court has observed that
‘the extent of the diminution or impairment of earning capacity is a relevant consideration and is arrived at by comparing what the injured party was capable of earning at or before the time of the injury with what the party is capable of earning after the injury. This is recovery for injury to the capacity to earn and is relevant in calculating a party’s loss of earnings.’
“ ‘In addition, in determining the amount to be awarded for decreased earning capacity, the jury should consider the health of the injured party and the party’s physical ability to maintain herself before the injury, as compared with her condition in these respects afterward. [Citation omitted.]’ ” Wahwasuck v. Kansas Power & Light Co., 250 Kan. 606, 618, 828 P.2d 923 (1992).
“ The jury should award a fair and reasonable compensation, taking into consideration what the plaintiff’s income would probably have been, how long it would have lasted, and all the contingencies to which it was liable. As bearing on these matters, the nature and extent of the plaintiff’s business, profession, or employment, his skill and ability in his occupation or profession, the loss or diminution of his capacity to follow it, as a consequence of the injury, and the damages he has sustained by reason of such diminution may be shown and taken into consideration.’ ” Morris v. Francisco, 238 Kan. 71, 78, 708 P.2d 498 (1985).
The jury could have concluded that Cindi’s earning capacity was impaired based upon Dr. Anderson’s testimony, the serious nature of Cindi’s injuries, and Cindi’s health before and after ingesting the lye. There is a reasonable basis for calculating the $360,000 award: A 40-hour week at an hourly wage of $4.50, which is approximately minimum wage and the wage Cindi received at her last job prior to the injury, for 4172 years computes roughly to $360,000. Additionally, the Cotts point out the jury was instructed to take into account the economic value of Cindi’s time that will be devoted to future medical treatment. Peppermint Twist did not object to that portion of the instruction.
The trial court upheld the $100,000 awarded to John for past and future loss of income. The court noted that John’s annual income as a line crew supervisor for a utility was $30,000, that John could be expected to work 10 to 15 additional years, that John’s injuries “could drastically affect his ability to perform his job,” and that there was evidence it “was probable and to be expected” for John to suffer up to a five-year total income loss.
John’s lost wages prior to trial totaled $2,100; he had missed approximately 21 days from work because of his injuries. Peppermint Twist claims the evidence does not support awarding John $97,900 for future loss of income ($100,000 total award minus $2,100 past lost earnings). Based upon John’s testimony that his hourly wage was $17.01, the nightclub declares the damages awarded for loss of future income is the equivalent of 5,755 hours, 719 eight-hour days, 144 weeks, or nearly 3 years (actually 23A years) missed from work. According to Peppermint Twist, there was no evidence John’s injuries impaired his earning capacity or limited his ability to perform his present job. The nightclub also claims there was no evidence John’s medical condition might deteriorate drastically, resulting in his absence from work.
John has been employed by KP&L since 1958 and is the foreman of a line crew. As troubleshooters, the crew regularly works around high voltage. In his capacity as foreman, John verbally supervises and communicates with the employees under his direction. John testified that losing his vocal cords would adversely affect his employment because he would not be able to communicate with the employees he supervises. If he should lose his vocal cords, John imagines he will be forced to retire. The ability to communicate is an important aspect of the job. Company policy does not compel retirement until an employee reaches the age of 70; therefore, John could work until November 2004, 13 years past the time of trial. John does not wish to retire before the mandatory age because he is helping take care of his youngest child, who is 13 years of age.
Dr. Anderson, the vocational counselor, also spent three days with John in April 1991. John reported to her that he believed something was wrong with his throat, that he had a serious belching problem, and that he worried the health problems caused by ingesting lye might force him to retire. The doctor discussed John’s numerous job-related liabilities: his age; health problems predating the lye ingestion, such as suffering a stroke in 1962 and a seizure disorder; “a single work history of entry-level low-skill work”; extremely low academic abilities; low average intellectual ability; no transferable skills; a hearing impairment; and “a severe physical problem with the stomach, mouth, throat ulcers, and a requirement for dilation.” Dr. Anderson acknowledged that only the last liability was related to lye ingestion, but referred to it as “the proverbial straw that broke the camel’s back in relationship to his ability to work” and considered these physical problems a vocational liability. A voice change was detected in John, which the doctor believed could be a problem. She determined that, based upon John’s job performance, his job was at risk.
Additionally, John testified he misses one or two days from work every time he visits the doctor.
There was evidence from which the jury could have concluded John’s future earning capacity was diminished, but not totally impaired. The serious nature of John’s injuries, his health before and after the lye ingestion, and Dr. Anderson’s testimony support the damages awarded.
The trial court did not abuse its discretion in refusing to grant Peppermint Twist’s motion for remittitur or for a new trial.
B. JURY INSTRUCTIONS
Peppermint Twist argues a new trial is warranted because the jury disregarded the trial court’s instructions. In support of this argument, the nightclub directs our attention to Kuhl v. Atchison, Topeka & Santa Fe Rwy. Co., 250 Kan. 332, 827 P.2d 1 (1992), and City of Ottawa v. Heathman, 236 Kan. 417, 690 P.2d 1375 (1984). In particular, Peppermint Twist relies upon the following language from Heathman:
“Where under all the facts and circumstances it is disclosed that the jury was confused in making findings and in awarding damages, or where a.jury verdict manifests a disregard for the plain instructions of the court on the issue of damages, or arbitrarily ignores proven elements of damage, or indicates passion, prejudice or a compromise on the issue of liability and damages, the verdict should be set aside on motion for a' new trial.” 236 Kan. at 423. -
Peppermint Twist claims that the “jury was confused about the court’s instructions on fault” and that the “jury disregarded the plain instructions of the court concerning the assessment of damages.” In an attempt to prove both claims, the nightclub submitted to the trial court an affidavit from Michael T. Buford, the jury foreman.
Peppermint Twist contends that because the jury did not find Ecolab at least partially negligent, the jury did not understand the fault instructions. In his affidavit, juror' Buford stated the jury believed Ecolab’s packaging and warnings about Eco-Klene were inadequate, but the jury was confused whether Ecolab could be held at fault. According to Buford, the jury did not understand the instructions that explained the conditions under which fault could be attributed to the manufacturer of Eco-Klene. Buford said the jury found Instruction No. 16, the strict liability instruction, confusing in that the jury believed Instruction No. 16 required the jury to find all five strict liability elements present before the jury could find Ecolab liable under any theory, including negligence. Because of this confusion, Buford authored a question on behalf of the jury. Buford claims that if the trial court would have instructed the jury that Instruction No. 16 was not applicable to the theory of negligence, all jurors would have attributed “a substantial amount of fault” to Ecolab.
Buford’s affidavit may not be used to impeach the verdict because the affidavit probes into the mental processes of the jury. Admissibility of evidence to test a verdict is governed by statute. K.S.A. 60-444(a) provides that if the validity of a verdict is in question a juror may testify “as a witness to conditions or occurrences either within or outside the jury room” except as limited by K.S.A. 60-441. K.S.A. 60-441 specifies that “no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict or indictment or concerning the mental processes by which it was determined.”
“Under these statutes we have held that a juror may not impeach his or her verdict on any ground inherent in the verdict itself; a juror may not divulge what considerations personally influenced him or her in arriving at the verdict or what reasoning personally led him or her to the final decision. State v. Taylor, 212 Kan. 780, 512 P.2d 449 (1973). More recently in Crowley v. Ottken, 224 Kan. 27, 31, 578 P.2d 689 (1978), it was pointed out that evidence is not admissible under K.S.A. 60-441 if it only pertains to the reasons a juror joined in the verdict. To be admissible the evidence must relate to extrinsic misconduct or to physical facts or occurrences within or without the jury room.” Verren v. City of Pittsburg, 227 Kan. 259, 260, 607 P.2d 36 (1980).
“The mental process of a juror in reaching a verdict or the factors which influence the mental process cannot be inquired into for the purpose of impeaching a verdict. Public policy forbids the questioning of a juror on these matters for a very obvious reason, i.e., there is no possible way to test the truth or veracity of the answers.” Saucedo v. Winger, 252 Kan. 718, 729, 850 P.2d 908 (1992).
See Crowley v. Ottken, 224 Kan. 27, 31, 578 P.2d 689 (1978) (juror’s affidavit to impeach verdict inadmissible; affidavit “did not relate to extrinsic misconduct or to physical facts or occurrences within or without the jury room but only to the reasons she joined in the verdict”); Smith v. Union Pacific Railroad Co., 214 Kan. 128, 134-35, 519 P.2d 1101 (1974) (trial court properly excluded juror’s affidavit that stated jury “instructions were not clear and were confusing to some of the jurors”).
Even if the merits of Peppermint Twist’s contention are addressed, the trial court did not abuse its discretion in refusing to grant a new trial. The question submitted to the trial court reads as follows: “In Instruction No. 16, do we have to find all five conditions true to find Ecolab with any damages?” After considerable input from the attorneys, the trial court responded: “Yes, but the Defendant Peppermint Twist has presented an alternate theory of liability, to wit, negligence.” In denying Peppermint Twist’s motion for a new trial, the trial court determined the jury was instructed, both adequately and correctly, on the possibility of finding Ecolab negligent. The court concluded: “There can be no question the jury could have, and knew it could have, found Ecolab negligent.”
Instruction No. 16 begins, “You may assess fault against Ecolab, Inc., for plaintiffs’ injuries provided you find the following from the evidence” and then lists the five elements of strict liability. Instruction No. 14 specifies that Peppermint Twist has asserted two theories why Ecolab “should be found at fault, one based upon negligence and the other based upon strict liability.” The instruction then expressly and separately sets forth Peppermint Twist’s negligence and strict liability theories against Ecolab. Instruction No. 14 concludes by explaining that Peppermint Twist has the burden of proving Ecolab’s fault under either theory and that subsequent instructions will guide the jury in making this determination. Instruction No. 31 directed the jury to make its determination “on the basis of comparative fault of the parties.” The instruction also defined negligence and explained: “A party is at fault when he or she is negligent, strictly liable or has breached an express warranty; and that negligence, strict liability or breach of express warranty has caused or contributed to the event which brought about the injury or damages for which claim is made.” The instructions, read as a whole, and the trial court’s response to the jury question make it clear the jury could have found Ecolab negligent. We do not find reversible error on this issue.
Peppermint Twist’s next contention is that the jury disregarded the trial court’s instructions about assessing damages and arrived at a quotient verdict, which amounts to jury misconduct. “A quotient verdict is one in which the jurors agree in advance to return as their verdict the amount obtained by averaging the figures each juror records as his verdict and subsequently return a verdict that is the direct product of such an agreement.” Johnson v. Haupt, 5 Kan. App. 2d 682, Syl. ¶ 4, 623 P.2d 537 (1981); see Merando v. A.T. & S.F. Rly. Co., 232 Kan. 404, 407-10, 656 P.2d 154 (1982); Hogue v. Kansas Power & Light Co., 212 Kan. 339, 344-46, 510 P.2d 1308 (1973). “Upon an allegation that a jury returned a quotient verdict, narrow questions may be directed to the jurors to determine whether they agreed in advance to be bound by an averaging technique.” Johnson, 5 Kan. App. 2d 682, Syl. ¶ 6.
The nightclub claims the irregularity of the damage verdicts is apparent from the verdict because the sums awarded are not traceable to the evidence and because the jury used “a round figure ‘target.’ ” Again, Peppermint Twist relies upon juror Buford’s affidavit. Buford stated that the jury determined damages by beginning with the maximum allowable damages and then decreasing the amount until the requisite 10 jurors agreed; that the jury then allocated the total amount between the three categories of pain and suffering, medical costs, and lost wages; that there was no rigorous attempt to calculate medical costs and lost wages; and that the amount for the third category was arrived at by simply subtracting the other two categories from the total award. According to Peppermint Twist, the jury erred not only in failing to answer each category of damages, but also in agreeing upon general damage verdicts and then deliberating only to the extent necessary to come up with artificial amounts for the special verdict form that added up to a predetermined general verdict.
Again, we need not address the merits of Peppermint Twist’s contention. Buford’s affidavit probes into the mental processes of the jury and may not be used to overthrow the verdict. See Merando, 232 Kan. at 410 (trial court properly excluded juror affidavit concerning the method by which the jury arrived at its verdict); Verren, 227 Kan. at 262-63 (juror testimony admissible to show “a conscious conspiracy by the members of the jury to disregard and circumvent the instructions on the law given by the court”); Gannaway v. Missouri-Kansas-Texas Rld. Co., 2 Kan. App. 2d 81, 84, 575 P.2d 566 (1978) (juror testimony that jury disregarded instructions permissible only if it is “apparent from the verdict itself that the jury had misunderstood or disregarded the instructions”). Buford’s affidavit does not establish a conscious conspiracy. Additionally, the alleged irregularity of the damages awarded is not apparent from the verdict. As previously discussed, the sums awarded are. traceable to the evidence. The fact the jury awarded rounded-off sums is not in and of itself evidence of irregularity.
The trial court did not abuse its discretion in refusing to grant Peppermint Twist’s motion for á new trial based upon alleged jury misconduct.
II. COLLATERAL SOURCE BENEFITS
Peppermint Twist argued the trial court erred in failing to apply the Collateral Source Benefits Act, K.S.A. 1992 Supp. 60-3801 et seq., and in not allowing the nightclub to introduce evidence of the Cotts’ settlements with Ecolab. At oral argument on May 28, 1993, Peppermint Twist conceded there was no error, based upon a decision we filed on April 16, 1993. In Thompson v. KFB Ins. Co., 252 Kan. 1010, 1024, 850 P.2d 773 (1993), this court held unconstitutional the Collateral Source Benefits Act.
III. NONUNANIMOUS VERDICT
Peppermint Twist argues that K.S.A. 1992 Supp. 60-248(g), which permits a verdict when 10 of 12 jurors agree, is unconstitutional. The statute provides, in pertinent part: “Whenever the jury consists of 12 members, the agreement of 10 jurors shall be sufficient to render a verdict. In all other cases, subject to the stipulation of the parties as provided in subsection (a), the verdict shall be by agreement of all the jurors.”
The Cotts maintain the jury instructions and verdict forms Peppermint Twist initially proposed agreed to 10, 11, or 12 jurors concurring in the verdict. Subsequently, based upon State v. Roland, 15 Kan. App. 2d 296, 807 P.2d 705 (1991), a criminal decision, Peppermint Twist argued a 10-2 verdict was unconstitutional unless all litigants consented to nonunanimity and Peppermint Twist was withdrawing its consent. The trial court overruled the nightclub’s objections to a less than unanimous verdict.
In denying Peppermint Twist’s motion for a new trial, the trial court found that a nonunanimous verdict was not grounds for a new trial. The court noted the nightclub had cited no authority for its claims that the Kansas Constitution requires unanimous verdicts in all trials and that the law requiring unanimous verdicts in criminal trials is applicable to civil trials.
On appeal, Peppermint Twist claims a nonunanimous verdict, as authorized by 60-248(g), violates § 5 of the Kansas Constitution Bill of Rights and is in conflict with K.S.A. 60-238 and K.S.A. 60-239. See Kan. Const. Bill of Rights, § 5 (“The right of trial by jury shall be inviolate.”); K.S.A. 60-238 (the right of a jury trial shall be preserved; a litigant may demand a jury trial, but if the demand is not served, the right is deemed waived); K.S.A. 60-239 (when and what issues are triable by jury or by trial court). To support this claim, Peppermint Twist cites Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 789 P.2d 541 (1990), and Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 757 P.2d 251 (1988), for authority to apply a quid pro quo analysis, which the nightclub divides into three parts. Peppermint Twist claims the statute must meet 14th Amendment due process requirements, must be reasonably necessary to and promote the public’s general welfare, and must provide an adequate substitute for the constitutional right impaired.
Peppermint Twist’s three-part test does not agree with our understanding of quid pro quo analysis. Whether an adequate substitute remedy exists is part of the due process analysis. In Samsel, this court stated:
‘‘The legislature can modify the right to a jury trial . . . , but the legislature’s right is not absolute. Statutory modification of the common law must meet due process requirements and be reas'onably necessary in the public interest to promote the general welfare of the people of the state. Due process requires that the legislature substitute the viable statutory remedy of quid pro quo (this for that) to replace the loss of the right.” 246 Kan. at 358.
For a general discussion of quid pro quo analysis, see Note, Testing the Constitutionality of Tort Reform with a Quid Pro Quo Analysis: Is Kansas’ Judicial Approach an Adequate Substitute for a More Traditional Constitutional Requirement?, 31 Washburn L.J. 314 (1992).
The first question that must be addressed is whether the right to a jury trial in civil cases under the common law includes the right to a unanimous verdict. Only if a common-law right has been abrogated must this court determine whether the legislature has provided an adequate substitute remedy, that is, whether a quid pro quo exists.
Although a state constitutional issue is raised, federal constitutional interpretation of the alleged common-law right provides guidance. Apodaca v. Oregon, 406 U.S. 404, 32 L. Ed. 2d 184, 92 S. Ct. 1628 (1972), involved a challenge to an Oregon statute that permitted nonunanimous verdicts in all criminal cases except first-degree murder. After noting that the unanimity requirement originated in the Middle Ages and by the 18th century had become an accepted aspect of the common-law jury trial, the Supreme Court commented that “ ‘the relevant constitutional history casts considerable doubt on the easy assumption . . . that if a given feature existed in a jury at common law in 1789, then it was necessarily preserved in the Constitution.’ [Citation omitted.]” 406 U.S. at 408-09. The Court discussed the conflicting inferences that could be drawn from the fact the framers of the Constitution eliminated earlier references to unanimity and to the “accustomed requisites” in the context of the right to a jury trial. Concluding that historical considerations would not resolve the issue, the Court then focused upon the jury’s function in contemporary society. The Court stated: “ ‘[T]he essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen . . . .’ [Citation omitted.] A requirement of unanimity, however, does not materially contribute to the exercise of this commonsense judgment.” 406 U.S. at 410. The views of all jurors, even those representing minority viewpoints, will be heard during deliberation. It cannot be assumed “the majority of the jury will refuse to weigh the evidence and reach a decision upon rational grounds, just as it must now do in order to obtain unanimous verdicts.” 406 U.S. at 413. The Court held that the federal constitution does not require unanimous verdicts.
Peppermint Twist acknowledges the United States Constitution does not require unanimous jury verdicts, but argues “the right to a jury trial in common law civil cases in Kansas is more extensive than the rights guaranteed by the United States Constitution.” See Samsel, 246 Kan. at 351; Schultz v. Kansas Gas & Electric Co., 7 Kan. App. 2d 500, 502, 644 P.2d 484 (1982). The nightclub contends Kansas historically has required unanimity under our Bill of Rights. See Barker v. Railway Co., 89 Kan. 573, 577, 132 Pac. 156 (1913) (In a case involving fire damage to an apple orchard, this court stated that the 12 jurors’ “unanimous opinion as to the essential facts of the case as well as to the general result must be in favor of the prevailing party.”); Maduska v. Thomas, 6 Kan. *153, Syl. ¶ 3 (1870) (In a case involving a contract for the sale of land, this court held: “A verdict of any less number than twelve jurors, is not a verdict of the jury.”).
A careful review of the cases cited reveals flaws in Peppermint Twist’s argument. In Schultz, the Court of Appeals acknowledged more than the federal constitution not requiring unanimous verdicts. The Schultz court stated:
• “Historically, the right to a jury was interpreted to include the right to the unanimous verdict of a twelve-member panel. However, it has been determined that .neither the number of persons necessary to compose a jury (Williams v. Florida, 399 U.S. 78, 26 L. Ed. 2d 446, 90 S. Ct. 1893 [1970]), nor the proportion of the jury which must concur in the verdict (Apodaca v. Oregon, 406 U.S. 404, 32 L. Ed. 2d 184, 92 S. Ct. 1628 [1972]), is constitutionally specified and unalterable by state statute.” 7 Kan. App. 2d at 502.
Peppermint Twist fails to discuss the context in which the Samsel court discussed our broader Kansas rights to a jury trial. The Samsel court stated:
“The United States Supreme Court has determined that the guarantee of a jury trial under the 7th Amendment is limited and does not extend to the remedy phase of a civil trial. We have interpreted our constitution as granting broader rights to the citizens of this state. The state constitution and the Kansas common law recognize that the right to a jury trial includes the right to have the jury determine damages.” 246 Kan. at 351.
' Peppermint Twist does not argue framer intent or express language in the Kansas Constitution requires unanimous verdicts. Nor can it. “No express Kansas constitutional language requires jury unanimity nor does clear evidence of framer intent exist. Past references to a preserved common-law jury right have been by implication or assumption.” Note, Civil Juries: Recent Legislation Allowing Nonunanimous Verdicts, 18 Washburn L.J. 269, 286 (1979). The legislature enacted the nonunanimous verdict provision in 1978, after the Apodaca decision. See L. 1978, ch. 226, § 1(g).
A related issue, whether a litigant is entitled to a jury of 12, also provides guidance. In Williams v. Florida, 399 U.S. 78, 26 L. Ed. 2d 446, 90 S. Ct. 1893 (1970), the challenge, was to a Florida statute that allowed six-member juries in all but capital cases. The United States Supreme Court reviewed the historical development of trial by jury and concluded that fixing the jury panel at 12 members was “a historical accident, unnecessary to effect the purposes of the jury system and wholly without significance ‘except to mystics.’ [Citation omitted.]” 399 U.S. at 102. The Court discussed the “elusive” framers’ intent and then turned to the function and purpose of a 12-member jury in relationship to a jury trial. It was reasoned the precise number was not the important factor, but “the number should probably be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility of" obtaining a representative cross-section of the community.” 399 U.S. at 100. The United States Supreme Court held that a 12-member jury “is not a necessary ingredient of ‘trial by jury.’ ” 399 U.S. at 86.
Kansas has addressed a similar issue, but not in the context of whether the constitutional right to a jury trial includes the right to a 12-member panel. In fact, based upon the Williams decision, the parties in Bourne v. Atchison, T. & S. F. Rly. Co,, 209 Kan. 511, 497 P.2d 110 (1972), did not raise any constitutional challenges. Bourne was a wrongful death case in which, the defendant’s request for a 12-member jury was denied on the basis of a local court rule. This court did not invalidate the local rule, but found error in the trial court’s interpretation and application of the local rule. In the absence of a stipulation, this court determined the trial court violated K.S.A. 1971 Supp. 60-248(a), which provided: “The parties may stipulate that the jury shall consist of any number less than twelve (12) or that a verdict or a finding of a stated majority of the jurors shall be taken, as the verdict or finding of the jury.” 209 Kan. at 513. We held:
“The right of trial by jury is a substantial and valuable right. The law favors trial by jury, and the right should be carefully guarded against infringements.”
“The state has an interest in the subject of trial by jury as a matter of public policy. The state has declared its policy on the subject not only by the decisions of its courts but also through acts of the legislature.”
“The legislature may make any reasonable regulations as to the practice and procedure in civil cases involving jury trials as long as the right to a jury trial is not materially impaired.”
“The legislature has the power to regulate the number of jurors required in civil cases in district courts.” 209 Kan. 511, Syl. ¶¶ 1-4.
In Palmer v. Ford Motor Company, 498 F.2d 952 (10th Cir. 1974), the Tenth Circuit Court of Appeals addressed the constitutional question of whether the Kansas Constitution entitled a litigant to a jury of 12. After reviewing prior Kansas law, including Bourne, the Court of Appeals concluded “that in Kansas the right to a 12-man jury is not a matter of substantive law but is subject to regulation by the legislature, the local courts, and the parties to the specific case.” 498 F.2d at 954. The court then noted Kansas law was consistent with federal decisions.
We hold the Kansas constitutional right to trial by jury does not include the right to a unanimous verdict in civil cases. That being so, we need not proceed further with the quid pro quo analysis.
Peppermint Twist also argues a nonunanimous verdict is “utterly irrational and wholly unrelated to the administration of justice consistent with honesty and due process.” Peppermint Twist points out K.S.A. 1992 Supp. 60-248(g) has been interpreted to permit nonunanimous verdicts only if a jury of 12 is impaneled. See Schultz, 7 Kan. App. 2d 500, Syl. ¶ 3. The nightclub contends there is no rational basis for permitting a verdict if 10 out of 12 jurors agree, but not if 10 out of 11 jurors agree. Therefore, Peppermint Twist claims the nonunanimous verdict provision of 60-248(g) does not promote any worthwhile concerns, such as avoiding mistrials, which waste public resources. According to the nightclub, the practical result of allowing nonunanimous verdicts is that plaintiffs are relieved of their substantive burden of proof. The nightclub also suggests juries in cases involving non-unanimous verdicts will not carefully evaluate the evidence and will avoid resolving differences of opinion because they are not required to continue to deliberate.
“If a statute is attacked as violating due process, the test is whether the legislative means selected have a real and substantial relation to the objective sought. This rule has been restated in terms of whether the statute is reasonable in relation to its subject and is adopted in the interest of the community.”
“A statute comes before the court cloaked in a presumption of constitutionality, and it is the duty of the party attacking the statute to sustain the burden of proof.” Peterson v. Garvey Elevators, Inc., 252 Kan. 976, Syl. ¶¶ 2, 4, 850 P.2d 893 (1993).
The Cotts contend K.S.A. 1992 Supp. 60-248(g) was enacted because of the backlog of civil cases, the expense of litigation, and the erosion of public confidence in the judicial system. According to the Cotts, the nonunanimity provision helps to reduce court congestion, reduce the cost of retrying cases when one or two jurors disagree, and promote finality in litigation. The argument is persuasive. Most states view nonunanimous verdicts in civil cases as a means to increase “court efficiency without sacrificing jury trial safeguards” and to preserve “public confidence.” Note, Civil Juries: Recent Legislation Allowing Nonunanimous Verdicts, 18 Washburn L.J. at 273.
IV. COMPARATIVE FAULT
Peppermint Twist argues it did not have a fair opportunity to prove Ecolab’s comparative fault. In support of its argument, the nightclub advances three reasons: The trial court placed “unreasonable restrictions” on discovery. The trial court permitted “improper evidence and argument” at trial that enhanced the nightclub’s fault and minimized the manufacturer’s fault. The trial court improperly instructed the jury on the standard for assessing liability against Ecolab. The nightclub claims these errors entitle it to a new trial on all issues or, preferably, to the entry of a defense verdict.
A. DISCOVERY
Peppermint Twist argues its discovery against Ecolab was restricted unreasonably because the trial court failed to enforce discovery orders. The Cotts filed suit against Peppermint Twist, and pursuant to K.S.A. 1992 Supp. 60-258a(c), the nightclub added Ecolab as an additional party for purposes of fault comparison. The Cotts then modified their petitions to add claims against Ecolab. According to Peppermint Twist, it had to file motions to compel discovery because Ecolab was uncooperative. The nightclub claims the trial court then directed Ecolab to co operate and ordered additional discovery. Peppermint Twist contends that before the additional discovery was completed, the Cotts settled with Ecolab. Thereafter, the nightclub alleges the trial court refused to enforce the discovery orders, which “substantially prejudiced” the nightclub’s ability to prove Ecolab had been at fault.
The nightclub claims the outstanding discovery concerned evidence of similar occurrences. Citing Powers v. Kansas Power & Light Co., 234 Kan. 89, 671 P.2d 491 (1983), Peppermint Twist maintains evidence of similar occurrences “is admissible to prove notice of defect and to prove fault.” See Powers, 234 Kan. at 98 (“Evidence of prior similar accidents is admissible to prove foreseeability.”). Because discovery was thwarted and the trial court refused to make a record of documents inspected in camera, Peppermint Twist contends it is impossible to know how seriously its rights were prejudiced.
Peppermint Twist also asserts that the basis for the trial court’s refusal to enforce the discovery orders was the court’s conclusion that it had no jurisdiction over Ecolab once the Cotts and Ecolab entered into the settlements. Citing Gaulden v. Burlington Northern, Inc., 232 Kan. 205, 654 P.2d 383 (1982), and Wilson v. Probst, 224 Kan. 459, 581 P.2d 380 (1978), the nightclub argues the status of an additional party under 60-258a is determined by the presence or absence of the defendant’s claim of comparative fault and not by whether the plaintiff has a claim against the additional party. Peppermint Twist concludes by claiming that a party joined under 60-258a(c) has the same status as a party joined under K.S.A. 60-214 (third-party practice), K.S.A. 60-219 (joinder of persons needed for adjudication), or K.S.A. 60-224 (intervention) and that only the court can dismiss a party. The nightclub maintains that because the trial court never entered an order of dismissal against Ecolab, the manufacturer was bound to comply with the discovery orders.
“The control of discovery is entrusted to the sound discretion of the trial court and orders concerning discovery will not be disturbed on appeal in the absence of a clear abuse of discretion.” Evans v. Provident Life & Accident Ins. Co., 249 Kan. 248, Syl. ¶ 9, 815 P.2d 550 (1991). “[T]he admission of evidence of prior acts or occurrences is committed to the sound discretion of the trial court and will be overturned on appeal only upon a showing of abuse.” Folks v. Kansas Power & Light Co., 243 Kan. 57, 66, 755 P.2d 1319 (1988).
The trial court explained its discovery rulings in its memorandum of decision denying Peppermint Twist’s motion for a new trial, stating:
“The alleged failure of the Court to require Ecolab to make timely and comprehensive discovery is a song that has been sung often and aggressively by counsel for Peppermint Twist. . . . Certainly discovery can be abused by requesting too much as well as by giving too little. In this case an entire piece of new and separate litigation was developed between Ecolab and Peppermint Twist over discovery. The Court was concerned about when, if at all, the Plaintiffs’ cases would get to trial. A halt had to be called in the interest of justice.”
A summary of Peppermint Twist’s discovery against Ecolab included 30 depositions, 8 requests for production of documents, and 4 sets of interrogatories.
With regard to discovery of prior incidents of ingestion, the trial court expressed its reluctance to allow discovery on- this sensitive, potentially privileged, and prejudicial (to Ecolab) material, which may not have even been admissible. The court noted that when this became an issue, discovery essentially was complete. The trial court decided to allow discovery of two prior incidents and precluded discovery of two other incidents. Evidence of one prior incident was introduced at trial, the result of an informal agreement between counsel: Peppermint Twist wanted thé evidence admitted to show fault on Ecolab’s part, but agreed not to pursue other incidents. The Cotts agreed to the evidence because of the medical issues. The trial court found this agreement did not prejudice Peppermint Twist.
A reasonable person would agree with the trial court’s discovery rulings. Peppermint Twist has failed to show the trial court’s rulings were arbitrary, fanciful, or unreasonable. See In re Marriage of Soden, 251 Kan. 225, Syl. ¶ 9, 834 P.2d 358, cert, denied _ U.S._, 121 L. Ed. 2d 540 (1992). The trial court’s rulings on discovery do not amount to reversible error.
B. PRETRIAL ORDER
Peppermint Twist asserts fault issues outside the scope of the pretrial order were improperly injected at trial. The nightclub maintains the Cotts exceeded the scope of the pretrial order by introducing evidence of the nightclub’s alleged violations of KDHE and OSHA regulations to rebut the nightclub’s claim of comparative fault against Ecolab. The Cotts dismissed their negligence and strict liability claims prior to trial. Another problem, according to Peppermint Twist, is that because this evidence was outside the scope of the pretrial order, the evidence was in actuality rebuttal evidence and the Cotts introduced it in their case in chief. The nightclub alleges it objected to the introduction of this evidence, but neglects to support this claim by citing to the record. Thus, we can assume there is no evidence in the record to support the claim.
In any event, contrary to the nightclub’s assertion, the Cotts did not raise new fault issues. Although the pretrial order does not list negligence per se as a theory, the contested facts identified in the order address whether Peppermint Twist violated KDHE and OSHA regulations. The Cotts maintain this contested evidence concerning the nightclub’s allegedly negligent acts was admissible because the evidence related to foreseeability, including' what uses reasonably could be anticipated. The contested evidence is .not rebuttal evidence.
Peppermint Twist also contends “the jury was left to drift” because the instructions read to the jury did not explain which party had the burden of proof on the additional fault issues the Cotts injected to mitigate Ecolab’s fault. Therefore, according to the nightclub, the jury did not understand what part, if any, the evidence concerning regulation violations played in determining fault. Peppermint Twist acknowledges a supplemental instruction on the Cotts’ burden of proof was given, but maintains the instruction was “vague.” Furthermore, according to the nightclub, this instruction was never put in writing and submitted to the jury with the other instructions. After the trial court instructed the jury, counsel for Peppermint Twist requested an additional instruction on the Cotts’ burden of proof. The trial court then instructed the jury that the plaintiffs have the burden of proving Peppermint Twist caused the incident and of establishing damages. A written version of this instruction follows the other instructions in the record on appeal. The instructions, taken as a whole, are not vague. See Cerretti v. Flint Hills Rural Electric Co-op Ass'n, 251 Kan. 347, Syl. ¶ 5, 837 P.2d 330.(1992).
Finally, Peppermint Twist declares that considering “the totally confused sequence of presentation of the evidence and jury instructions,” it is not surprising the jury was confused, as attested to by juror Buford’s affidavit. As previously discussed, Buford’s affidavit is not admissible evidence. The Cotts dispute the nightclub’s suggestion that the jury misapplied this evidence and used it to find Peppermint Twist negligent. Because the jury was directed to find fault against Peppermint Twist under a breach of express warranty claim, the Cotts contend the only way the jury could use this evidence was in connection with determining Eco-lab’s fault.
Peppermint Twist has no legal or factual basis for reversal on this issue.
C. JURY INSTRUCTIONS ON FAULT
Peppermint Twist contends five different jury instructions pertaining to assessment of fault were clearly erroneous. With regard to these alleged errors, the nightclub does not bother with references to the record on appeal.
“If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous.” Cerretti, 251 Kan. at 355.
Peppermint Twist contends it was clearly erroneous not to instruct the jury that Ecolab should be held to the standard of an expert regarding the risks and hazards the product poses. Citing Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 681 P.2d 1038, cert, denied 469 U.S. 965 (1984), the nightclub contends this standard-is the law in Kansas for product manufacturers. The Wooderson court specifically held this to be the standard of constructive knowledge for drug manufacturers. 235 Kan. 387, Syl. ¶ 6. More-importantly, as the Cotts point out, is that Peppermint Twist fails-to show the lack of instruction prejudiced it. Additionally, the Cotts assert that Ecolab’s knowledge about the risks of its product or lack thereof was not an issue at trial.
The nightclub maintains the trial court erred in instructing the jury that failure to heed reasonable warnings is always negligence because there was no negligence claim against it. Error also is alleged in the trial court’s reftisal to instruct that product warnings must be heeded only to the extent an ordinary person would follow them. Citing Wooderson, 235 Kan. at 410, the Cotts assert the instruction was correct because this court has recognized “ a presumption that an adequate warning would be heeded.’ ” See Restatement (Second) of Torts § 402A, comment j (1964). Regardless, the nightclub does not establish the instruction given and the one refused were prejudicial.
During deliberation; the jury asked the trial court to clarify the word “defective” in relationship to the product. The court directed the jurors to use their common understanding of the word and reminded the jury the word was illustrated in Instruction No. 15. That instruction informed the jury that “[a] product is in a defective condition, if, at the time it leaves the manufacturer’s hands, it is in a condition which is unreasonably dangerous to the ordinary user.” Peppermint Twist alleges it was clearly erroneous not to use the “legal test,” but never explicitly sets forth the legal test. Again, the nightclub does not explain how the trial court’s explanation misled the jury. Additionally, “[j]ury instructions are to be considered together and read as a whole, without isolating any one instruction.” Cerretti, 251 Kan. at 355. The court’s response, coupled with its reference to Instruction No. 15, is not clearly erroneous.
The discussion of the previous issue disposes of Peppermint Twist’s fourth allegation of error, that the trial court erred in instructing on theories beyond the scope of the pretrial order without identifying the party with the burden of proof.
The nightclub’s final complaint is that the law and the evidence in this case do not support an instruction that the nightclub made and breached express warranties. Citing K.S.A. 84-2-313, Peppermint Twist argues that an express warranty exists only if “an affirmation of fact or description becomes the basis of the bargain” and that an express' warranty is not created by mere endorsement of the product. Here, according to the nightclub, there was error because the cocktail waitress’ comments were “mere commendation” and because the Cotts did not purchase the drinks and the friend who bought the drinks did not hear the waitress’ comments. The Cotts disagree, arguing the waitress’ comments established an express warranty. See Naaf v. Griffitts, 201 Kan. 64, Syl. ¶ 1, 439 P.2d 83 (1968) (“An express warranty is created by any direct and positive affirmation of fact made by the seller concerning the article to be sold during sale negotiations and as part of the contract upon which the seller intends the buyer to rely in making the purchase.”). The Cotts also dispute Peppermint Twist’s contention that they were not buyers, pursuant to K.S.A. 84-2-313, because they did not pay for the drinks. The Kansas Comment 1983 to K.S.A. 84-2-103 explains that a buyer includes someone who receives goods under a preexisting contract. The instruction was. not clearly erroneous.
None of the alleged errors warrant reversal. The instructions or lack thereof are not clearly erroneous.
V. COMPARATIVE FAULT PRINCIPLES
The Cotts raise two issues on cross-appeal. Their first argument centers on whether comparative fault principles are applicable in a breach of express warranty case. Specifically, the Cotts claim the trial court erred in allowing the jury to compare Peppermint Twist’s fault with the alleged fault of Ecolab. The Cotts maintain the error was not harmless because if the trial court had stricken that defense, the discovery, pretrial, trial, and appeal issues would have been narrowed.
Although comparative fault principles were applied in this case, the Cotts prevailed at trial. The jury found Peppermint Twist, the defendant, 100 percent at fault and Ecolab, which was not a party, zero percent at fault. The Cotts do not suggest this court grant them a new trial because comparative fault principles were applied. The only remedy the Cotts request is that this court direct the trial court not to instruct the jury on comparative fault in the event of a new trial. This issue is moot.
VI. STATUTORY CAPS
For their second issue on cross-appeal, the Cotts argue the trial court erred in applying K.S.A. 1992 Supp. 60-19a02 to this breach of express warranty casé and thereby reducing their awards for pain and suffering to $250,000 each. The statute provides, in pertinent part:
“(a) As used in this section ‘personal injury action’ means any action seeking damages for personal injury or death.
“(b) In any personal injury action, the total amount recoverable by each party from all defendants for all claim's for noneconomic loss shall not exceed a sum total of $250,000.”
Citing Weathers v. American Family Mut. Ins. Co., 777 F. Supp. 879 (D. Kan. 1991), as authority, the Cotts argue the statutory cap only applies to negligence claims. Because the instant case involved a breach of express warranty, the Cotts ask this court to restore the jury’s original verdicts for pain and suffering— $1,040,000 for Cindi and $570,000 for John.
The plain language bf K.S.A. 1992 Supp. 60-19a02 requires noneconomic damage awards be capped at $250,000 in personal injury actions, which are defined as “any action seeking damages for personal injury or death.” In other words, the statutory cap is applicable to any suit, including breach of express warranty, in which personal injuries are claimed, as in the case at bar.
Additionally, the rationale underlying the Weathers decision is not persuasive. In Weathers, a diversity case applying Kansas law, the issue was whether the statutory cap contained in K.S.A. 1992 Supp. 60-19a01 applies to claims of malicious prosecution or Outrage. K.S.A. 1992 Supp. 60-19a01 applies only to causes of action accruing between July 1, 1987, and July 1, 1988, whereas 60-19a02 applies to causes of action accruing on or after July 1, 1988. K.S.A. 1992 Supp. 60-19a01(f); K.S.A. 1992 Supp. 60-19a02(f). The language of subsections (a) and (b) of 60-19a02 is identical to the language of subsections (a) and (b) of 60-19a01, except 19a02(b) replaces the term “pain and suffering” with “non-economic loss.” Noneconomic loss is the broader term, including “claims for pain and suffering, mental anguish, injury and disfigurement not affecting earning capacity, and losses which cannot be easily expressed in dollars and cents. [Citation omitted.]” Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 352, 789 P.2d 541 (1990).
In Weathers, Chief Judge Earl E. O’Connor relied upon the Samsel decision, in which the constitutionality of 60-19a01 and 60-19a02 was upheld. Chief Judge O’Connor stated:
“Although the [Kansas Supreme Court] did not expressly discuss the scope of section 60-19a01 in Samsel, the opinion does suggest that the court would limit application of the statute to negligence actions. Throughout the opinion are numerous references to ‘negligence,’ ‘negligent act,’ ‘negligent tortfeasor,’ and ‘negligence actions.’ Id. at 354, 355, 358, 361, 364, 365, 366, 368, 369, 789 P.2d 541. These references, read in light of the court’s discussion of the history of the statute, lead us to the inevitable conclusion that section 60-19a01 was not intended to apply to cases in which the tortfeasor’s actions have gone beyond negligence. Because insurance coverage is simply not available for intentional torts, application of section 60-19a01 in intentional tort cases would do nothing to further die legislature’s intention of easing insurance rates and ensuring the continued availability of liability insurance. Similarly, application of section 60-19a01 in such cases would do nothing to speed or ensure recovery by victims of intentional torts. Aside from these factors, the court finds nothing in the language of the statute or in the Samsel opinion to indicate that the Kansas legislature intended to deny full recovery to victims of intentional torts. Accordingly, the court concludes that section 60-19a01 is inapplicable to plaintiff’s malicious prosecution claim.
“Even assuming, arguendo, diat intentional torts are included within the scope of section 60-19a01, the court would conclude that the statute is inapplicable to the instant case. Subsection (b) of the statute refers to damages for ‘pain and suffering.’ K.S.A. 60-19a01(b). Although this term is not defined in the statute, the court agrees with plaintiff that the term ‘refers to the misery associated with physical injury and not to the emotional distress experienced by plaintiff as a result of malicious prosecution.’ ” 777 F.Supp. at 881.
For the reasons stated above, the judge also refused to apply 60-19a01 to plaintiff’s claim of outrage. 777 F. Supp. at 881 n.2.
Peppermint Twist disagrees with Chief Judge O’Connor’s interpretation of Samsel. The nightclub contends the Samsel court did not limit damage caps to negligence actions. We agree.
Most of this court’s use of the term negligence and similar phrases in Samsel are in the context of discussing other cases. See 246 Kan. at 354, 355, 361. Another use of negligence was this court’s restating of one of the defendant’s arguments. See 246 Kan. at 354. The other use of negligence in the majority opinion is as follows: “Our constitution provides that the common-law right to a jury trial includes the right to have the jury determine the amount of the damages in personal injury actions. An individual does not, however, have a vested right in the common-law. rules governing negligence actions.” 246 Kan. at 358. The remaining references cited in the Weathers opinion are found in the separate concurring and dissenting opinions in Samsel. See 246 Kan. at 364, 365, 366, 368, 369. The context in which the Samsel cause of action arose, that being negligence, also must be taken into account. 246 Kan. at 345. Read as a whole, the Samsel decision does not restrict, either expressly or impliedly, application of damage caps to negligence actions. The key phrase is “personal injury action” as defined in the statute. The case before us clearly fits the definition of “any action” for recovery for “personal injury.”
The trial court did not err in applying the statutory cap to the instant case.
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The opinion of the court was delivered by
Abbott, J.:
Bank of Kansas appeals the validity of sales tax liens and their attachment and enforceability against homestead property. The trial court held the Bank lacked standing and was estopped from challenging the validity of the sales tax liens and ordered the homestead property subject to the sales tax liens sold to satisfy the liens. This appeal followed.
Charles W. and Connie Davison own real estate in Reno County that is now and has been their homestead since they purchased it in March 1969.
On July 15, 1988, the Kansas Department of Revenue (KDR) filed a sales tax warrant with the Clerk of the District Court of Reno County, Kansas, Case No. K-587-B, in the principal amount of $24,041.99 against Charles W. Davison, Connie Davison, and Nelson Music Co., Inc. On September 2, 1988, KDR filed a sales tax warrant with the Clerk of the District Court of Reno County, Kansas, Case No. K-592-A, in the principal amount of $10,363.10 against Charles W. Davison (and others not parties herein).
On April 25, 1990, Charles W. Davison and Connie Davison executed a mortgage on the real estate in favor of Bank of Kansas. The mortgage was recorded in the Reno County Register of Deeds Office in the principal amount of $140,000.
On October 11, 1991, Bank of Kansas commenced a foreclosure action against Charles W. Davison and Connie Davison in the Reno County District Court, joining as defendants KDR and other parties alleged to have liens against the Davisons individually or jointly or against the real estate. KDR filed its answer and cross-claim on November 12, 1991, seeking foreclosure of its sales tax liens against Charles W. Davison and Connie Davison. Both Bank of Kansas and KDR requested the district court to determine the priority of the liens involved.
Bank of Kansas and KDR each moved for partial summary judgment. Bank of Kansas contended that KDR’s sales tax liens were not valid because KDR failed to follow the proper filing procedure and that the Homestead Act, Article 15, § 9 of the Kansas Constitution, prohibited attachment and enforcement of the sales tax liens because the real estate was the homestead of the Davisons. KDR contended that Bank of Kansas lacked standing to challenge the sales tax liens, that Bank of Kansas was estopped from collaterally attacking the sales tax liens, that the liens were in fact properly filed, and that sales tax liens can attach to and be enforced against homestead property.
The trial court held that Bank of Kansas lacked standing to assert defects in KDR’s filing of the sales tax warrants, that the sales tax judgments did attach to the homestead real estate, that the Bank’s motion for partial summary judgment was denied, and that KDR’s motion for partial summary judgment was granted. KDR’s liens were declared first and prior liens.
The trial court determined that KDR’s sales tax liens in the total amount of $52,254.58 plus interest were first and prior liens against the real estate and ordered the real estate sold to satisfy these liens if the Davisons did not pay the liens within 10 days. The court also ordered that Bank of Kansas have a judgment against the Davisons in the amount of $139,631.60 plus interest, title insurance expense, and all expenses incurred by Bank of Kansas in preserving the real estate, that the mortgage be foreclosed, and that the real estate be sold if the judgment was not paid within 10 days. The judgment in favor of Bank of Kansas was determined to be a second lien on the real estate.
I. STANDING
KDR asserts that Bank of Kansas lacks standing to challenge the sales tax liens because the Bank was not a “real party in interest” to the filing of the sales tax liens. KDR contends that Bank of Kansas is attempting to step into the shoes of the Davisons and assert the rights the Davisons might have. KDR further contends that the Davisons no longer have a right to challenge the sales tax liens because they did not pursue the administrative and judicial remedies available to them.
KDR has misconstrued Bank of Kansas’ attempts to challenge the sales tax liens. Bank of Kansas is not stepping into the Davisons’ shoes and challenging the sales tax liens on behalf of the Davisons. Rather, Bank of Kansas is challenging the sales tax liens to protect its own interest in having a lien superior to that of KDR.
More than 100 years ago this court decided a priority controversy between a mortgage lien and a judgment lien as asserted against homestead property. Insurance Co. v. Nichols, 41 Kan. 133, 21 Pac. 111 (1889). There, this court stated:
“[T]he plaintiff [mortgagee] below had the unquestionable right to show [that the property in question was the homestead of the debtor] for the purpose of showing that beyond all question its mortgage lien was prior and superior to the supposed judgment lien of the German Insurance Company. It had the right to show this fact, not for the benefit of [the debtor], but for the benefit of itself and for the protection of its own rights and interests. [Citation omitted.] Indeed, it is our opinion that whenever a contest arises between two parties as to which has the prior or superior lien upon property owned and occupied by a third person, either party may show any fact that will defeat the other party’s lien, or postpone the same so as to render it a subsequent or inferior lien, and this although the fact to be so shown may be that the property is the homestead of the third party.” 41 Kan. at 136.
See First Natl Bank v. Tyler, 130 Kan. 308, 286 Pac. 400 (1930); Pitney v. Eldridge, 58 Kan. 215, 48 Pac. 854 (1897); Elwell v. Hitchcock, 41 Kan. 130, 21 Pac. 109 (1889).
KDR directs this court’s attention to the proposition that only the “real party in interest,” and not merely any party who will benefit from an adjudication, has standing to sue. See Ryder v. Farmland Mut. Ins. Co., 248 Kan. 352, 807 P.2d 109 (1991); Joe Self Chevrolet, Inc. v. Board of Sedgwick County Comm’rs, 247 Kan. 625, 802 P.2d 1231 (1990); Citizens State Bank of Grainfield v. Kaiser, 12 Kan. App. 2d 530, 750 P.2d 422, rev. denied 243 Kan. 777 (1988). KDR contends, therefore, that even though Bank of Kansas will benefit from an adjudication of the validity of KDR’s sales tax liens, Bank of Kansas is not the real party in interest.
K.S.A. 1992 Supp. 60-217(a) does require that an action be prosecuted in the name of the real party in interest. The real party in interest is “ ‘the party who, by the substantive law, has the right sought to be enforced.’ ” Torkelson v. Bank of Horton, 208 Kan. 267, 270, 491 P.2d 954 (1971) (quoting 3A Moore’s Federal Practice § 17.02 [2d ed. 1970]). See Ryder, 248 Kan. 352, Syl. ¶ 5. A discussion of the “real party in interest” is inapplicable here, however. Bank of Kansas is not seeking relief from KDR, but merely a determination that its mortgage lien has first prio
The mistake KDR makes is in its argument that Bank of Kansas cannot challenge the integrity of the prior perfected tax judgments of KDR. This argument directly contradicts the cases cited above which conclude that a mortgagee has the right to show any fact that will defeat or postpone the interest of a competing lien creditor. First Nat’l Bank, 130 Kan. at 310; Pitney, 58 Kan. at 220-221; Insurance Co., 41 Kan. at 136; Elwell, 41 Kan. at 132.
KDR also asserts that only natural persons have the right to claim the homestead exemption. Neither of the cases KDR relies on, Bellport v. Harder, 196 Kan. 294, 411 P.2d 725 (1966), and Swenson v. Kiehl, 21 Kan. 533 (1879), supports KDR’s assertion. Again, the line of cases discussed above clearly shows this court’s view that a corporate mortgagee bank has standing to assert the homestead exemption of a mortgagor to protect its mortgage lien. First Nat’l Bank, 130 Kan. at 310; Pitney, 58 Kan. at 220-221; Insurance Co., 41 Kan. at 136; Elwell, 41 Kan. at 132.
Bank of Kansas is challenging the validity and attachment and enforcement of KDR’s sales tax liens not to deprive KDR of its liens but to protect the Bank’s own mortgage lien. The district court erred in finding that Bank of Kansas lacked standing to challenge KDR’s sales tax liens. Bank of Kansas does have standing to challenge the sales tax liens and to assert the homestead exemption in order to protect its own mortgage lien interest in the Davisons’ homestead property.
II. COLLATERAL ESTOPPEL
KDR contends that Bank of Kansas is estopped from collaterally challenging the validity of KDR’s sales tax liens.
“Collateral estoppel prevents a second litigation of the same issues between parties or their privies.” In re Estate of Beason, 248 Kan. 803, 813, 811 P.2d 848 (1991). The requirements of collateral estoppel are:
“(1) a prior judgment on the merits which determined the rights and liabilities of the parties on the issue based upon ultimate facts as disclosed by the pleadings and judgment; (2) the parties must be the same or in privity; and (3) the issue litigated must have been determined and necessary to support the judgment.” Estate of Beason, 248 Kan. at 813.
See Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. 683, 690, 751 P.2d 122 (1988). Collateral estoppel is inapplicable here.
A prior judgment on the merits of KDR’s sales tax liens has not been rendered here. The sales tax liens created by KDR do not constitute “judgments”. K.S.A. 79-3617 sets forth the procedure for collecting delinquent sales taxes. In part, that statute provides:
“The amount of such warrant so docketed shall thereupon become a lien upon the title to, and interest in, the real property of the taxpayer against whom it is issued. The sheriff shall proceed in the same manner and with the same effect as prescribed by law with respect to executions issued against property upon judgments of a court of record ....
“The court in which the warrant is docketed shall have jurisdiction over all subsequent proceedings as fully as though a judgment had been rendered in the court. . . . If a warrant is returned, unsatisfied in full, the secretary or the secretary’s designee shall have the same remedies to enforce the claim for taxes as if the state of Kansas had recovered judgment against the taxpayer for the amount of the tax.” (Emphasis added.)
This statute clearly indicates that sales tax liens properly filed are not in fact judgments, but rather are only treated in the same manner as judgments.
The discussion by this court in Riggan v. Director of Revenue, 203 Kan. 129, 453 P.2d 52 (1969), is helpful to a clear understanding of the nature of sales tax liens. This court stated, “Prior decisions holding that the filing of a tax warrant for unpaid personal property taxes has the characteristics and attributes of a judgment, and the same force as a judgment, nevertheless, do not fulfill the requirement that the judgment be rendered’ in a court of record” in order to activate the dormant judgment statute. 203 Kan. at 135. This court therefore held that sales tax liens were not “judgments rendered by a court of record” and thus the dormant judgment statute did not apply to sales tax liens.
There has been no prior litigation concerning KDR’s sales tax liens here. The warrants were sent to the Clerk of the District Court of Reno County, but no litigation involving the sales tax liens occurred. The merits of the sales tax liens were never addressed. Again, Bank of Kansas is challenging the validity of KDR’s sales tax liens not to deprive KDR of its liens but to protect the Bank’s own mortgage lien. No prior judgment on the merits was rendered here. The doctrine of collateral estoppel is therefore inapplicable.
III. SALES TAX WARRANTS
The Bank of Kansas contends that KDR failed to follow the proper procedure for filing its sales tax warrants and therefore does not have valid sales tax liens against the Davisons’ homestead property.
K.S.A. 79-3617 sets forth the procedure for collecting delinquent sales taxes:
“Whenever any taxpayer liable to pay any sales or compensating tax, refuses or neglects to pay the tax, the amount, including any interest or penalty, shall be collected in the following manner. The secretary of revenue or the secretary’s designee shall issue a warrant under the hand of the secretary or the secretary’s designee and official seal directed to the sheriff of any county of the state commanding the sheriff to levy upon and sell the real and personal property of the taxpayer found within the sheriff’s county to satisfy the tax, including penalty and interest, and the cost of executing the warrant and to return such warrant to the secretary or the secretary’s designee and pay to the secretary or the secretary’s designee the money collected by virtue thereof not more than 90 days from the date of the warrant. The sheriff shall, within five days, after the receipt of the warrant file with the clerk of the district court of the county a copy thereof, and thereupon the clerk shall either enter in the appearance docket the name of the taxpayer mentioned in the warrant, the amount of the tax or portion of it, interest and penalties for which the warrant is issued and the date such copy is filed and note the taxpayer’s name in the general index. No fee shall be charged for either such entry. The amount of such warrant so docketed shall thereupon become a lien upon the title to, and interest in, the real property of the taxpayer against whom it is issued. The sheriff shall proceed in the same manner and with the same effect as prescribed by law with respect to executions issued against property upon judgments of a court of record, and shall be entitled to the same fees for services.
“The court in which the warrant is docketed shall have jurisdiction over all subsequent proceedings as fully as though a judgment had been rendered in the court. A warrant of similar terms, force and effect may be issued by the secretary or the secretary’s designee and directed to any officer or employee of the secretary or the secretary’s designee, and in the execution thereof such officer or employee shall have all the powers conferred by law upon sheriffs with respect to executions issued against property upon judgments of a court of record and the subsequent proceedings thereunder shall be the same as provided where the warrant is issued directly to the sheriff. The taxpayer shall have the right to redeem the real estate within a period of 18 months from the date of such sale. If a warrant is returned, unsatisfied in full, the secretary or the secretary’s designee shall have the same remedies to enforce the claim for taxes as if the state of Kansas had recovered judgment against the taxpayer for the amount of the tax. No law exempting any goods and chattels, land and tenements from forced sale under execution shall apply to a levy and sale under any of the warrants or upon any execution issued upon any judgment rendered in any action for sales or compensating taxes. The secretary or the secretary’s designee shall have the right at any time after a warrant has been returned unsatisfied, or satisfied only in part, to issue alias warrants until the full amount of the tax is collected. No costs incurred by the sheriff or the clerk of the court shall be charged to the secretary or the secretaiy’s designee.”
“The methods prescribed for the recovery of delinquent taxes are wholly statutory, no methods exist apart from the statute, and whatever procedures and remedies are available are to be found in the tax statutes.” Riggan, 203 Kan. 129, Syl. ¶ 2. See Board of Johnson County Comm’rs v. Roberts, 231 Kan. 135, 139, 643 P.2d 138 (1982). K.S.A. 79-3617 creates the procedure for obtaining a lien for delinquent sales taxes. “The validity of a lien created by statute depends upon complying with the terms of the statute.” Homestead Land Title Co. v. United States, 249 Kan. 569, 576, 819 P.2d 660 (1991) (citing Clark Lumber Co. v. Passig, 184 Kan. 667, 673, 339 P.2d 280 [1959]).
KDR asserts that the substance of K.S.A. 79-3617 requires only that the tax warrants be ultimately filed with the clerk’s office and that the manner or fact of delivery to the sheriff or the clerk is ■ irrelevant. KDR suggests that the legislative intent is that no lien exists until the tax warrants are filed with the clerk (so as to put third parties on notice of the lien), so that KDR benefits from following the language of the statute to protect its interests in a timely manner but is not required to do so. KDR relies on the fact that its tax warrants had been filed with the clerk of the district court some 20 months before Bank of Kansas acquired its mortgage interest in the Davisons’ property, so that Bank of Kansas had actual or constructive notice of KDR’s superior interest in the property.
Here, KDR’s sales tax warrants were not sent directly to the sheriff, and the sheriff never received one of the warrants. The question is whether K.S.A. 79-3617 requires that the warrants be sent directly by KDR to the sheriff.
“ ‘Interpretation of statutes is a question of law. The function of the court is to interpret the statutes, giving the statutes the effect intended by the legislature.’ [Citation omitted.] . . . ‘There is a presumption that the legislature does not intend to enact useless or meaningless legislation.’ [Citation omitted.]” Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). “When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.” Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992).
“When determining whether a statute is open to construction, or in construing a statute, ordinary words are to be given their ordinary meaning and courts are not justified in disregarding the unambiguous meaning. . . .”
“It is presumed the legislature understood the meaning of the words it used and intended to use them; that the legislature used the words in their-ordinary and common meaning; and that the legislature intended a different meaning when it used different language in the same connection in different parts of a statute.” Boatright v. Kansas Racing Comm’n, 251 Kan. 240, Syl. ¶¶ 7, 8, 834 P.2d 368 (1992).
However, “where a statute is susceptible of more than one construction, it must be given that construction which, when considered in its entirety, gives expression to its intent and purposes, even though such construction is not within the strict literal interpretation of the statute.” Jackson v. City of Kansas City, 235 Kan. 278, 318, 680 P.2d 877 (1984). This rule, however, “does not permit a disregard of manifest legislative intention appearing from plain and unambiguous language.” J.G. Masonry, Inc. v. Department of Revenue, 235 Kan. 497, 500, 680 P.2d 291 (1984).
The first paragraph of K.S.A. 79-3617 contains directory language:
“[The tax] shall be collected in the following manner. The secretary of revenue . . . shall issue a warrant . . . directed to the sheriff .. . commanding the sheriff to levy upon and sell the real and personal property of the taxpayer . . . and to return such warrant to the secretary . . . and pay . . . the money collected by virtue thereof not more than 90 days from the date of the warrant. The sheriff shall, within five days, after the receipt of the warrant file with the clerk of the district court ... a copy thereof (Emphasis added.)
By using the word “shall,” the legislature normally requires strict compliance with these steps. See Northern Natural Gas Co. v. Williams, 208 Kan. 407, 418, 493 P.2d 568, cert, denied 406 U.S. 967 (1972).
However, K.S.A. 1992 Supp. 79-2101, concerning collection of delinquent personal property taxes, provides in part that “the county treasurer shall issue a warrant signed by the treasurer directed to the sheriff of the county, commanding the sheriff to levy .... Such warrant shall be delivered to the sheriff. ” (Emphasis added.) K.S.A. 79-3617 has no similar provision that the warrant “shall be delivered to the sheriff.” Thus, the legislature demonstrates its use of language when it wants to make clear delivery to the sheriff is mandatory.
The purpose of filing the warrant in the office of the clerk of the district court is to give notice of the tax lien. How it gets there does not seem important. K.S.A. 79-3617 does not set forth the method of delivery. Here, KDR’s sales tax warrants were filed in the proper place and gave notice to the public that the liens existed. We hold that a sales tax warrant filed with the clerk of the district court creates a valid lien pursuant to K.S.A. 79-3617 even though it is not delivered to the sheriff prior to filing with the clerk of the court
IV. HOMESTEAD ISSUE
Bank of Kansas next contends that even if KDR has valid sales tax liens on the Davisons’ property, the liens cannot attach to or be enforced against the Davisons’ property because it is their homestead.
Article 15, § 9 of the Kansas Constitution states:
“A homestead to the extent of one hundred and sixty acres of farming land, or of one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner, together with all the improvements on the same, shall be exempted from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon: Provided, The provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife . . . ."
In Homestead, 249 Kan. 569, Syl., we specifically held on a question certified by the United States District Court for the District of Kansas that “the sales tax lien does attach to real property which is subject to a claim of homestead exemption under Article 15, § 9 of the Kansas Constitution.” There, a sales tax lien filed against a wife attached to her interest in homestead property held with her husband, and when the husband and wife voluntarily sold the homestead, her portion of the proceeds was seized to satisfy the sales tax lien.
Bank of Kansas relies on Morris v. Ward, 5 Kan. 239 (1869), and suggests that Homestead was improperly decided and should be overruled. In Morris, this court held that “no incumbrance or lien or interest can ever attach to or affect the homestead, except the ones specifically mentioned in the constitution.” 5 Kan. at 244. See State, ex rel., v. Mitchell, 194 Kan. 463, Syl. ¶ 5, 399 P.2d 556 (1965); Coughlin v. Coughlin, 26 Kan. 116, 118 (1881).
We believe our holding in Homestead to be sound and decline to change or reconsider the holding that sales tax liens do attach to property which is subject to a claim of homestead exemption.
We note the Kansas Title Standards have long warned that a sales tax warrant creates a lien on a homestead (citing K.S.A. 79-3235 and K.S.A. 79-3617). Kansas Title Standards Handbook § 13.8 (5th ed. 1990).
The Bank of Kansas next contends that even if sales tax liens attach to homestead property, the Homestead Exemption protects the Davisons’ property from forced sale because the exception in the Homestead Act for “sale for taxes” only applies to taxes related to the homestead property itself.
We did not address whether sales tax liens can be enforced against homestead property in Homestead. We distinguished the attachment of sales tax liens to homestead ■ property from the ability to force a sale of homestead property and noted there that no forced sale of the homestead property had occurred.
“If this case involved an attempt to foreclose on the property due to taxes owed by the taxpayers, then it would be necessary to decide whether the provision of the Homestead Exemption allowing a forced sale of the property ‘for taxes' should be interpreted to involve only taxes that arise from the land in issue. This case, however, does not involve a forced sale.” Homestead, 249 Kan. at 574.
.Neither has a forced sale occurred here. Bank of Kansas has foreclosed on the Davisons’ homestead property by virtue of its mortgage. Upon sale of the homestead to satisfy the Bank’s foreclosure, the proceeds, can be used to satisfy KDR’s first and .prior liens. It was not necessary for KDR to force a sale of the home-, stead property because Bank of Kansas had already done so. .
Both parties here extensively discuss the . enactment of the Homestead Exemption as it is recorded in the Wyandotte Constitutional Convention. KDR asserts that the framers of the Kansas Constitution could have limited the exception for “sale for taxes” to taxes related to the homestead property but chose not to. Indeed, the homestead exemption in the Texas Constitution limits the exception for taxes to the “taxes due thereon.” Tex. Const, art. 16, § 50. Conversely, Bank of Kansas relies on United States v. Hershberger, 475 F.2d 677 (10th Cir. 1973), and contends that the sales tax was nonexistent at the time the Homestead Exemption was enacted and therefore could not have been contemplated as falling within thé scope of “taxes” as that term wás used by the framers in the Homestead Exemption.
We hold that sales taxes are within the definition of “taxes”' as that word is used in the Homestead Exemption. “[T]he power to levy taxes is inherent in the power to govern but the éxercise of that power is dependent upon the existence of legislation designating the kinds of property to be taxed. The authority to impose taxes rests upon legislation.” Robbins-Leavenworth Floor Covering, Inc. v. Leavenworth Nat’l Bank & Trust Co., 229 Kan. 511, 512, 625 P.2d 494 (1981).
“A constitution must be interpreted liberally to carry into effect the principles of government which it embodies. It deals broadly with general subjects, and its language should not be interpreted in any narrow, refined or subtle sense, but should be held to mean what the words imply to the common understanding of men.” State v. Sessions, 84 Kan. 856, Syl. ¶ 1, 115 Pac. 641 (1911). .
The term “taxes” as used in the Homestead Exemption must be interpreted in its common meaning. “Tax’.’ is .defined as “[a] pe- ■ cuniary burden laid upon individuals or property to support the government, and is a payment exacted by legislative authority.” Black’s Law Dictionary 1457 (6th ed. 1990). Webster’s Third New International Dictionary 2345 (1976) defines “tax” as “a usually pecuniary charge imposed by legislative or other public authority upon persons or property for public purposes.”
The Homestead Exemption in the Kansas Constitution does not limit the exception for “sale for taxes” to taxes related to the homestead property, as is asserted by Bank of Kansas and as was held by the Tenth Circuit in Hershberger. In Homestead, we clearly placed the sales tax lienholder above the status of a general lien creditor. When the State of Kansas, through its Department of Revenue, obtains valid sales tax liens by virtue of the legislature’s exercise of the power to tax, the liens attach to the taxpayer’s property regardless of whether it is subject to a claim of homestead exemption. The rights possessed by the State of Kansas as a sales tax lienholder include the right to force a sale to satisfy the lien. KDR has the right to force a sale of the Davisons’ homestead property to satisfy its valid sales tax liens.
While we disagree in part with the reasons the trial court expressed for its decision, we agree with the result reached. A trial court decision which reaches the right result will be upheld, even though the trial court may have relied upon the wrong ground or assigned erroneous reasons for its decision. Admire Bank & Trust v. City of Emporia, 250 Kan. 688, Syl. ¶ 2, 829 P.2d 578 (1992).
Affirmed. | [
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The opinion of the court was delivered by
.McFarland, J.:
Lewis E. Gibbens appeals from his convictions, on nolo contendere pleas, of two counts of rape (K.S.A. 21-3502).
Defendant was charged with rape (K.S.A. 21-3502), aggravated criminal sodomy (K.S.A. 21-3506), and indecent liberties with a child (K.S.A. 1992 Supp) 21-3503) as to victim E.N. and like charges as to victim M.N. Accordingly, he stood charged with four class B and two class C felonies. The crimes wére alleged to have occurred in June and July of 1991. Case No. 91-CR-5290 was subsequently filed, also in Harvey County, charging five counts of forgery (K.S.A. 21-3710). Further complicating defendant’s defensive position was the fact that all 11 felonies were allegedly committed while defendant was assigned to a community corrections program, thereby triggering the consecutive sentencing provisions of K.S.A. 1992 Supp. 21-4608(3). Eight additional forgery charges, were pending against defendant in Marion County. .
In resolution of the pending Harvey County charges, the defendant entered into a plea bargain with the Harvey County Attorney. The defendant agreed to plead nolo contendere to the two rape charges herein and two of the forgery charges in case No. 91-CR-5290. The remaining seven felony charges would be dismissed.
The plea bargain was presented to the trial court on January 24, 1992. The trial court was advised that the defendant did not believe that he was guilty but desired to enter Alford-type pleas of guilty to the agreed upon counts. The trial court accepted the pleas following proper inquiry. No complaint is made as to the conduct of the plea or the sentencing proceedings.
The sentencing took place on March 3, 1992, and defendant appealed from the sentencing on the rape counts, contending the two consecutive 15 years to life terms were excessive and constituted an abuse of judicial discretion. That is the sole issue set forth in the docketing statement filed herein.
SENTENCING
The defendant entered his pleas of nolo contendere to two counts of rape. He was sentenced to 15 years to life on each count, the sentences to run consecutively with each other, but concurrently with the sentences imposed on the forgery convictions in case No. 91-CR-5290.
The defendant’s position, as stated in his brief, is as follows:
“The sentence imposed in the present case, although it exceeds the minimum, is within the statutory limits. Mr. Gibbons does not contend that it was the result of partiality or prejudice, rather, he argues that the trial court erred by failing to carefully consider the policy of K.S.A. 21-4601 and the factors enumerated in K.S.A. 21-4606 in fixing the punishment for Mr. Gibbens’ crime.”
A sentence which is within the statutory limits will not be disturbed on appeal, provided it is within the realm of discretion on the part of the trial court and not a result of partiality or prejudice. State v. Hamilton, 240 Kan. 539, 540, 731 P.2d 863 (1987) (citing State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 [1986]). There is no claim of partiality or prejudice herein.
We have held that it is the better practice when the sentence exceeds the minimum for the court, on the record, to make a detailed statement of the facts and factors considered by the court in imposing sentence. However, a trial court’s failure to make such a detailed statement does not necessarily demonstrate an abuse of discretion; each case must be considered on its facts. State v. Bennett, 240 Kan. 575, 578, 731 P.2d 284 (1987); State v. Harrold, 239 Kan. 645, 650, 722 P.2d 563 (1986); State v. Richard, 235 Kan. 355, 366, 681 P.2d 612 (1984).
The factors set forth in K.S.A. 21-4606(2) are as follows:
“(a) The defendant’s history of prior criminal activity;
(b) The extent of the harm caused by the defendant’s criminal conduct;
(c) Whether the defendant intended that his criminal conduct would cause or threaten serious harm;
(d) The degree of the defendant’s provocation;
(e) Whether there were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
(f) Whether the victim of the defendant’s criminal conduct induced or facilitated its commission;
(g) Whether the defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.”
As to the trial court’s consideration and application of these factors, the defendant states:
“In the instant case, the court did carefully consider the above factors. It correctly found that there was great harm caused by the defendant’s conduct, and the victims did not induce or facilitate its commission. However, the rest of the factors are either in Gibbens’ favor or they are unknown.”
The defendant thus concedes the trial court “did carefully consider” the sentencing factors. This statement is amply borne out by the record.
The presentence investigation report showed a substantial number of prior convictions, none of which were of the magnitude of the two B felonies herein. The report also showed neither probation nor assignment to a community corrections had been satisfactorily completed and that defendant had substance abuse problems. As to the factors in his favor, the defendant points to evidence that, while a child, he was “ostracized from other children”; was reared in an “abusive atmosphere”; and that he “cares” for the minor children.
The two victims were five- and eight-year-old sisters. Defendant characterizes himself as their stepfather, although there is no showing that there has been a judicial determination of the existence of a common-law marriage to the children’s mother. Regardless of the legal basis involved, defendant resided in the home with the two girls and their mother. While residing there, he engaged in a variety of sexual activities with them, including sexual intercourse and oral and anal sodomy. One of the victims contracted a venereal disease from the defendant.
The trial court carefully considered and applied the statutory sentencing factors and concluded that the maximum allowed sentence was appropriate. The trial court’s expression of concern over the enormity of the crimes and the damage done to the minor victims is reasonable and certainly appropriate. The trial court further specifically noted that defendant at age 29 had an extensive criminal record and that probation and assignment to a community corrections program had been unproductive. We find no error or abuse of discretion in the imposition of the sentences herein.
VALIDITY OF CONVICTIONS
In his brief the defendant asserts a second issue, raised for the first time on appeal. This second issue is, in essence, a collateral attack on the unappealed from acceptance of his nólo contendere pleas. Defendant argues that the trial court lacked jurisdiction herein as the defendant should have been charged with what he contends is the specific statute, aggravated incest (K.S.A. 21-3603) instead of rape, as the two victims were his five- and eight-year-old stepdaughters. In support thereof, he cites State v. Williams, 250 Kan. 730, 829 P.2d 892 (1992), which held that where the statutorily specified biological, step, or adoptive relationship exists between offender and child victim that aggravated incest is the specific statute to be applied as opposed to the more general indirect liberties with a child statute (K.S.A. 1992 Supp. 21-3503).
We express no opinion on this issue as we conclude the issue is not properly before us for the following reasons:
1. The notice of appeal filed herein specifies that appeal is taken only from the sentences imposed.
2. The aggravated incest argument was never raised before the trial court; no motion to withdraw the pleas or arrest judgment was made; and no appeal was taken from any matter relating to the convictions themselves.
3. No authority is cited for the proposition that the aggravated incest-rape argument is a jurisdictional matter. The information on its face contains all allegations necessary for the conviction of the defendant on both counts of rape.
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The opinion was delivered by
Abbott, J.:
Shana Nero appeals from the trial court’s grant of summary judgment to Kansas State University (KSU). At issue is whether KSU has a duty to protect residents of university residence halls and, if so, the nature and extent of that duty.
Shana Nero was sexually assaulted in a coed residence hall by a fellow residence hall student, Ramon Davenport.
Thirty-five days earlier, Ramon Davenport resided in Moore Hall, a coed residence hall at KSU. On that date, April 28, 1990, Ramon Davenport was accused of raping J.N., a female resident of Moore Hall.
The following Monday, April 30, 1990, because of the accusation of rape against Davenport and after consultation between KSU housing and student life administrators and staff members, Davenport was assigned temporarily to Marlatt Hall, an all-male residence hall on the other side of the campus. The Assistant Director of Housing, Dr. Rosanne Priote, sent Davenport a letter dated April 30, 1990, confirming the temporary residence hall assignment and requesting he not enter Moore Hall or Derby Food Center until further notice in order to provide “some physical distance” between J.N. and Davenport. After meeting with Davenport, Dr. Susan M. Scott, Associate Dean of Student Life, in a letter dated May 2, 1990, confirmed Davenport’s voluntary agreement to be reassigned to Marlatt Hall for the remainder of the academic year. Dr. Scott also commented that because Davenport had agreed to the reassignment, KSU would not initiate immediately a university adjudication of the incident, but reserved the right to do so at a later date depending upon the outcome of the criminal charge. KSU does not have a set policy, practice, or procedure for removing from student housing a student accused of the rape or sexual assault of another student in a residence hall.
On May 2, 1990, Davenport was charged with rape in the Riley County District Court. He pleaded not guilty and was released on bond. The Manhattan Mercury and the Kansas State Collegian reported Davenport’s arrest, the charge against him, his plea of not guilty, and his release on bond.
At the close of the 1989-90 academic year, only one residence hall, Goodnow Hall, was available for students attending intersession and summer school. Goodnow Hall was a coed residence hall.
Davenport moved into Goodnow Hall for the 1990 spring intersession, beginning May .18 and ending June 3. Shana Nero, a University of Oklahoma student, came to KSU for the intersession and was assigned to Goodnow Hall. Nero had two brief conversations with Davenport prior to June 2, 1990. She knew he was a KSU student living in the same residence hall.
On June 2, 1990, Nero was doing laundry and watching television in the basement recreation room of Goodnow Hall. Davenport came into the lounge and sexually assaulted her while the two of them were watching television.
On' June 4, 1990, KSU terminated Davenport’s summer school residence hall contract and instructed him to remove his belongings from Goodnow Hall by 8:00 p.m. that evening and not to enter any food service building or residence hall for any reason.
Nero brought a complaint against Davenport under KSU’s Policy Prohibiting Sexual Violence, which had been adopted in 1989. Pursuant to Nero’s complaint, Davenport was found to have violated the policy.
On August 29, 1990, Davenport pleaded guilty to the rape of J.N. In exchange for Davenport’s plea on the rape charge, the, sexual assault charge involving Nero was dropped.
Nero subsequently filed a negligence suit against KSU, alleging the university had a duty to protect her against Davenport’s sexual advances and had failed to exercise reasonable care.to do so. Nero also filed a claim of sexual assault and battery against Davenport. The trial court granted summary judgment against Davenport, and that judgment, is not an issue in this appeal. The trial court granted KSU’s motion for summary judgment. Nero appealed to the Court of Appeals. The case was transferred to this court, pursuant to K.S.A. 20-3018(c).
Nero claims the trial court erred in granting KSU’s summary judgment motion because the court only partially analyzed whether KSU owed a duty of care to her. According to the plaintiff, KSU had a duty to protect her from Davenport’s actions because of the university’s “special relationship” with both Davenport and her and because she shared a landlord-tenant relationship with KSU.
“In a negligence action, summary judgment is proper if the only, questions presented are questions of law. To recover for negligence, the plaintiff must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. Whether a duty exists is a question of law. Whether the.duty has been breached is a question of fact.” Honeycutt v. City of Wichita, 251 Kan. 451, Syl. ¶ 8, 836 P.2d 1128 (1992). .
The trial court, and this court on, appeal, first must determine whether a duty exists. Without a duty, there can be no breach to support a plaintiff’s claim. Hackler v. U. S. D. No. 500, 245 Kan. 295, 297, 777 P.2d 839 (1989).
In Thies v. Cooper, 243 Kan. 149, 151, 753 P.2d 1280 (1988), this court recognized:
“It is the general rule that an actor has no duty to control the conduct of a third person to prevent that person from causing harm to others unless a ‘special relationship’ exists between ■ the actor and the third party or the actor and the injured party. Restatement (Second) of Torts § 315 (1963).”
See McGee v. Chalfant, 248 Kan. 434, 438, 806 P.2d 980 (1991); Washington v. State, 17 Kan. App. 2d 518, Syl ¶ 1, 839 P.2d 555, rev. denied 252 Kan. 1095 (1992).
As far back as 1983, this court, speaking through Justice McFarland, stated:
“Although this court has never formally adopted ... § 315, . . . we discussed the concept of special relationship in Robertson v. City of Topeka, 231 Kan. 358, 644 P.2d 458 (1982). . . . We observed a special relationship or specific duty has been found when one creates a foreseeable peril, not readily discoverable, and fails to warn. 231 Kan. at 364.” Durflinger v. Artiles, 234 Kan. 484, 499, 673 P.2d 86 (1983).
The Restatement (Second) of Torts § 315 (1964), provides:
“There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.”
Comment c to § 315 explains:
The relations between the actor and a third person which require the actor to control the third person’s conduct are stated in §§ 316-319. The relations between the actor and the other which require the actor to control the conduct of third persons for the protection of the other are stated in §§ 314A and 320.”
“A special relationship may exist between parent and child, master and servant, the possessor of land and licensees, persons in charge of one with dangerous propensities, and persons with custody of another. Restatement (Second) of Torts §§ 316-320 (1964).” McGee, 248 Kan. at 438.
Although Nero never explicitly argued the distinctive nature of the university-student relationship imposed a duty of care upon KSU, our discussion commences with this argument because the converse view formed the basis of the trial court’s grant of summary judgment in favor of KSU. The trial court ruled the university-student relationship in and of itself was not a special relationship within the meaning of § 315 and, upon that basis, refused to impose a duty upon KSU to protect Nero from Davenport’s actions. The court reasoned that a plaintiff cannot predicate a university’s liability on “the outmoded doctrine of in loco parentis” and that in general universities today “have no legal duty to shield their students from the dangerous activities of other students. ’ Finding no Kansas cases on point, the trial court relied upon cases from other jurisdictions. See Bradshaw v. Rawlings, 612 F.2d 135 (3d Cir. 1979), cert, denied 446 U.S. 909 (1980); Tanja H. v. Regents of the University of California, 228 Cal. App. 3d 434, 278 Cal. Rptr. 918 (1991); Crow v. State of California, 222 Cal. App. 3d 192, 271 Cal. Rptr. 349 (1990); Baldwin v. Zoradi, 123 Cal. App. 3d 275, 176 Cal. Rptr. 809 (1981); Eiseman v. State of New York, 70 N.Y.2d 175, 518 N.Y.S.2d 608, 511 N.E.2d 1128 (1987). With regard to the doctrine of in loco parentis, the weight of authority is in agreement with the trial court’s ruling. See Furek v. University of Delaware, 594 A.2d 506, 519-20 (Del. 1991). For a general discussion of the in loco parentis doctrine, see Szablewicz & Gibbs, Colleges’ Increasing Exposure to Liability: The New In Loco Parentis, 16 J. L. & Educ. 453 (1987); Note, The Doctrine of In Loco Parentis, Tort Liability and the Student-College Relationship, 65 Ind. L.J. 471, 472 (1990).
The trial court found no Kansas cases that considered “whether colleges and universities have a duty to protect students living in their residence halls from sexual assaults by other students living in the halls” or “whether colleges and universities have a duty to warn other students when an individual living in its residence halls has been charged with sexual assault or any other crime.” None of the cases the trial court cited are exactly on point, and all can be distinguished factually. The same can be said for the cases Nero cites.
Bradshaw, 612 F.2d 135, concerned whether a college could be held liable for injuries a student, Donald Bradshaw, sustained when riding in a car driven by a fellow student who had become intoxicated at the annual sophomore class picnic. A faculty sponsor helped plan the picnic and cosigned a check for class funds used to purchase the beer. The majority of students attending the picnic were under the legal drinking age of 21.
The Third Circuit rejected the in loco parentis doctrine, reasoning:
“Our beginning point is a recognition that the modern American college is not an insurer of the safety of its students. Whatever may have been its responsibility in an earlier era, the authoritarian role of today’s college administrations has been notably diluted in recent decades. Trustees, administrators, and faculties have been required to yield to the expanding rights and privileges of their students. . . . College students today are no longer minors; they are now regarded as adults in almost every phase of community life. . . . There was a time when college administrators and faculties assumed a role in loco parentis. Students were committed to their charge because, the students were considered minors. A special relationship was created between college and student that imposed a duty on the college to exercise control over student conduct and, reciprocally, gave the students certain rights of protection by' the college. The campus revolutions of the late sixties and early* seventies were a direct attack by the students on rigid controls by the colleges and were an all-pervasive affirmative demand for more student rights. . . . Regulation by the college of student life on and off campus has become limited. Adult students now demand and receive expanded rights of privacy in their college life including, for example, liberal; if not unlimited, [parietal] visiting hours. College administrators no longer control the broad arena of, general morals. At one time, exercising their rights and duties in loco parentis, colleges were able to impose strict regulations. But today students vigorously claim the right to define and regulate their own lives. Especially have they demanded and received satisfaction of their interest in self-assertion in both physical and mental activities, and have vindicated what may be called the interest in freedom of the individual will. . . .
“Thus, for the purposes of examining fundamental relationships that underlié tort liability, the competing interests of the student and of the institution of higher learning are much different" today than they were in the past. At the risk of oversimplification, the change has occurred because society considers the modern college student an adult, not a.child of tender years.” 612 F.2d at 138-40.
The court acknowledged a special relationship could impose a duty upon the college. 612 F.2d at 141.
Bradshaw claimed the college’s regulation that imposed sanctions on students who used alcohol created a custodial relationship between the college and its students. The Third Circuit disagreed, reasoning that the college’s regulation simply “tracked” state law. Bradshaw’s final argument was that because the college knew students would drink at the picnic in violation of state law and the college’s regulation and because the college knew the students’ conduct created a high risk of harm to third parties, the college had a duty either to control the students’ conduct or to protect third parties, such as Bradshaw, from potential harm. The Third Circuit concluded that Bradshaw failed to prove either duty. The appellate court also noted it would be an impossible burden for the college' to control students’ beer drinking off campus, particularly in light of the fact the majority of the college’s students were from a neighboring state in which the legal drinking age was 18.- 612 F.2d at 141-42.
In Baldwin, 123 Cal. App. 3d 275, after a dorm party at which underage college students consumed alcohol in violation of state law and university policy, a high-speed car contest ensued that resulted in two or more of the cars colliding. The plaintiff, who was a passenger in one of the cars and was severely injured, sued the university. She claimed a special relationship existed between the university and herself that imposed a duty upon the university to prevent the injuries she received.
A California Court of Appeals panel noted: “When the avoidance of foreseeable harm requires a defendant to control the conduct of another person, or to warn of such conduct, the common law as a general rule imposes liability only if the defendant bears some special relationship to the dangerous person or potential victim.” 123 Cal. App. 3d at 282-83. The court commented that California has recognized “a duty of reasonable care when the defendant stood in a special relationship to both the victim and the person whose conduct created the danger.” 123 Cal. App. 3d at 283. According to the court, foreseeability is central to determining whether a defendant owes a duty of reasonable care. The plaintiff had alleged in her complaint “that the negligent failure to prevent on-campus drinking on the date in question made it reasonably foreseeable that the students would follow the drinking by the driving of their cars in a negligent manner with plaintiff’s resultant injuries.” 123 Cal. App. 3d at 285-86.
“Foreseeability is stated to be a question of fact for the jury [citation omitted], but the matter does not end there. “ \ . . [RJeasonable foreseeability does not turn on whether the particular [defendant] as an individual would have in actuality foreseen the exact accident and loss; it contemplates that courts, on a case-to-case basis, analyzing all the circumstances, will decide what the ordinary man under such circumstances should reasonably have foreseen. The courts thus mark out the areas of liability, excluding the remote and unexpected. . . .” ’ [Citations omitted.] Even though a harm may be foreseeable, as it is alleged to be here, a concomitant duty to prevent the harm does not always follow. ‘Rather, the question is whether the risk of harm is sufficiently high and the amount of activity needed to protect against harm sufficiently low to bring the duty into existence, . . .’ [Citation omitted.]” 123 Cal. App. 3d at 286.
The Court of Appeals panel applied the following factors to determine whether a duty was owed to third persons:
“ ‘the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.’ [Citation omitted.]” 123 Cal. App. 3d at 286.
The Baldwin court then concluded application of these factors to the facts of the case did not support establishing a duty and finding liability. The court noted “a lack of a close connection between the failure of the [university] to control on-campus drinking and the speed contest.” 123 Cal. App. 3d at 287. With regard to the moral blame attached to the university’s conduct, the court relied upon the Bradshaw court’s discussion quoted above. In discussing community consequences, the Baldwin court commented:
“The transfer of prerogatives and rights from college administrators to the students is salubrious when seen in the context of a proper goal of post-secondary education—the maturation of the students. Only by giving them responsibilities can students grow into responsible adulthood. Although the alleged lack of supervision had a disastrous result to this plaintiff, the overall policy of stimulating student growth is in the public interest.” 123 Cal. App. 3d at 291.
In Crow, 222 Cal. App. 3d 192, the plaintiff attended a keg party at one of the residence halls on campus and was assaulted by a fellow student, who previously had assaulted a residence, hall advisor while intoxicated. The plaintiff filed suit against the university, claiming the university failed to supervise the keg party adequately and failed to take action to prevent the assault against him. A California Court of Appeals panel noted that the common law “ ‘generally does not impose a duty upon a defendant to control the conduct of another, or to warn of such conduct, unless the defendant stands in some special relationship either to the person whose conduct needs to be controlled, or to the foreseeable victim of such conduct.’ [Citations omitted.]” 222 Cal. App. 3d at 208. The court then rejected the plaintiff’s “claim of a university/student special relationship,” relying upon the Baldwin court’s discussion of the decline of the in loco parentis doctrine. 222 Cal. App. 3d at 208-09.
In Tanja H., 228 Cal. App. 3d 434, a female university student was raped by four male students after a party in a residence hall in which students under the legal drinking age had been consuming alcohol. The university had regulations prohibiting the consumption of alcohol by underage students in the residence halls, and students signed statements agreeing to abide by those regulations. The female student filed suit against the four male students and the university.
After discussing Baldwin and Crow, a California Court of Appeals panel concluded the issue was the same as presented in those cases: “Should a duty be imposed which would make colleges liable for damages caused by third parties, unless colleges impose onerous conditions on the freedom and privacy of resident students—which restrictions are incompatible with a recognition that students are now generally responsible for their own actions and welfare?” 228 Cal. App. 3d at 438. The court noted “[a] university is not liable as an insurer for the crimes of its students” or “for the sometimes disastrous consequences which result from combining young students, alcohol, and dangerous or violent impulses.” 228 Cal. App. 3d at 435, 437. It was reasoned that “courts have not been willing to require college administrators to reinstitute curfews, bed checks, dormitory searches, hall monitors, chaperons, and the other concomitant measures which would be necessary in order to suppress the use of intoxicants and protect students from each other.” 228 Cal. App. 3d at 438. The Court of Appeals panel determined no duty should be imposed and concluded there was good reason not to shift moral and legal responsibility from the student perpetrators to universities. The court also rejected the plaintiff’s premises liability theory, finding there was not a sufficient nexus between the lack of illumination in the stairway and the assault upon her. 228 Cal. App. 3d at 439.
In Eiseman, 70 N.Y.2d 175, Larry Campbell enrolled in a special state college program for the disadvantaged after being conditionally released from prison, and he , subsequently raped and murdered a fellow student off campus. The New York Court of Appeals began its analysis by noting “the imposition of duty presents a question of law for the courts [citations omitted], resting on policy considerations of whether plaintiff’s interests are entitled to legal protection against defendant’s conduct [citations omitted].” 70 N.Y.2d at 189-90. The court rejected the lower courts’ view that the college’s participation in the special program gave rise to a duty of heightened admissions inquiry or to restrict Campbell’s campus activities. The Court of Appeals agreed with the lower courts’ conclusion that liability cannot be based on the in loco parentis doctrine because “colleges today in general have no legal duty to shield their students from the dangerous activity of other students.” 70 N.Y.2d at 190. The court concluded that to impose a duty of heightened admissions inquiry “would run counter to the legislative policy embodied by the [special] program as well as the laws and policies promoting the reintegration of former convicts into society.” 70 N.Y.2d at 191. With regard to restricting Campbell’s activities on campus, thé highest court in New York commented: “Publicly branding him on campus as a former convict and former drug addict would have run up against the same laws and policies that prevented discriminating against him.” '70 N.Y.2d at 191. The court then noted other students, including the victim, knew of Campbell’s criminal record. The Court of Appeals reasoned that to impose liability upon the college “for failing to screen out or detect potential danger signals in Campbell would hold the college to a higher duty than society’s experts in making such predictions—the correction and parole officers,' who in the present case have been found to have acted without negligence.” 70 N.Y.2d at 191.
Nero cites two cases in which courts have held that liability may be imposed upon a university based, at least in part, upon the distinctive university-student relationship. See Furek v. University of Delaware, 594 A.2d 506 (Del. 1991); Mullins v. Pine Manor College, 389 Mass. 47, 449 N.E.2d 331 (1983).
In Furek, a fraternity pledge was burned when a lye-based liquid oven cleaner was poured over his back and neck during a fraternity hazing activity. The pledge brought suit against the university and others. On appeal, the Supreme Court of Delaware considered whether the university-student relationship imposed a duty upon the university “to make and enforce policies which might protect the student from harm occasioned by the acts of third parties who function under the auspices of the university.” 594 A.2d at 516. The court discussed the uniqueness of this relationship: . . .
“While its primary function is to foster intellectual development through an academic curriculum, the institution is involved in all aspects of student life. Through its providing of food, housing, security, and a range of extracurricular activities the modem university provides a setting in which every aspect of student life is, to some degree; university guidéd. This attempt at control, however, is directed toward a group whose members are adults in the contemplation of law and thus free agents in many aspects of their lives and life styles.” 594 A.2d at 516.
The Furek court was not convinced the university-student relationship did not impose at least a limited duty upon the university to protect students from their fellow students’ actions. The court was critical of the policy analysis in Bradshaw and subsequent cases following Bradshaw, noting these cases provided “no empirical support for the proposition that supervision is inversely related to the maturation of college students.” 594 A.2d at 518. The Furek court decided it was “equally reasonable to conclude that university supervision of potentially dangerous student activities is not fundamentally at odds with the nature of the parties’ relationship, particularly if such supervision advances the health and safety of at least some students.” 594 A.2d at 518. The court concluded:
“The university is not an insurer of the safety of its students nor a policeman of student morality, nonetheless, it has a duty to regulate and supervise foreseeable dangerous activities occurring on its property. That duty extends to the negligent or intentional activities of third persons. Because of the extensive freedom enjoyed by the modern university student, the duty of the university to regulate and supervise should be limited to those instances where it exercises control. Situations arising out of the ownership of land,within the contemplation of § 344, involving student invitees present on the property for the purposes permitted them are within such limitations.” 594 A.2d at 522.
The Furek court also held the university had a duty to protect the student under a landowner-invitee analysis. 594 A.2d at 520-21.
In Mullins, 389 Mass. 47, after being raped by. an unidentified, assailant on the campus grounds, the plaintiff, a freshman, sued the college, which required all freshmen to live on campus. The Supreme Judicial Court of Massachusetts held that colleges owed resident students a duty of protection against a third party’s criminal acts, based upon two principles of law.
One principié was identified as “ ‘existing social values and customs,’ ” in that “colleges of ordinary prudence customarily exercise care to protect the well-being of their resident students, including seeking to protect them against the criminal acts of third parties.” 389 Mass, at 51. The court concluded the “college community itself” recognized this duty in view of the fact that standards had been established setting forth the safety precautions a college should take. The court also reasoned that college campuses were breeding grounds for criminal behavior because of the number of young people, particularly young women, on these campuses and that colleges were in the best position to ensure their students’ safety. The court acknowledged the decline of the in loco parentis doctrine, but maintained “[t]he fact that a college need not police the morals of its resident students, however, does not entitle it to abandon any effort to ensure their physical safety.” 389 Mass, at 52. Furthermore, according to the court, colleges have helped to foster the expectation in students, parents, and the community at large “that reasonable care will be exercised to protect resident students from foreseeable harm.” 389 Mass, at 52.
The Mullins court identified the second principle as the college’s voluntary undertaking to protect students from the criminal acts of third persons and the students’ reliance upon the college’s undertaking. See Restatement (Second) of Torts § 323 (1964). According to the court, a student’s “threshold” consideration in deciding which college to attend is the college’s security measures. The court also noted that students pay for this service through tuition or dormitory fees. 389 Mass, at 53-54.
We hold the university-student relationship does not in and of itself impose a duty upon universities to protect students from the actions of fellow students or third parties. The in loco parentis doctrine is outmoded and inconsistent with the reality of contemporary collegiate life.
There are, however, other theories under which a university might be held liable. See, e.g., Note, The Liability and Responsibility of Institutions of Higher Education for the On-Campus Victimization of Students, 16 J.C. & U.L. 119, 123-30 (1989). See generally Bazyler, The Duty to Provide Adequate Protection: Landowners’ Liability for Failure to Protect Patrons from Criminal Attack, 21 Ariz. L. Rev. 727, 745 (1979); Browder, The Taming of a Duty—The Tort Liability of Landlords, 32 Def. L. J. 497, 500, 540-50 (1983); Selvin, Landlord Tort Liability for Criminal Attacks on Tenants: Developments Since Kline, 9 Real Estate L.J. 311 (1981); Note, Expanding the Scope of the Implied Warranty of Habitability: A Landlord’s Duty to Protect Tenants from Foreseeable Criminal Activity, 33 Vand. L. Rev. 1493, 1503-07 (1980); Annot., 1 A.L.R.4th 1099 (discussion of a university’s liability for failure to protect a student from crime); Annot., 43 A.L.R.3d 331, 348-53 (discussion of a landlord’s duty to protect against crime).
Nero raises other theories. She initially claims the trial court erred in not addressing whether the evidence established a special relationship, other than one based upon the doctrine of in loco parentis, between KSU and Davenport or between KSU and herself.
The plaintiff focuses upon the relationship between KSU and Davenport. She claims KSU took charge of Davenport and was under a duty to exercise reasonable care to control him and prevent him from physically harming others because the university knew or should have known he was likely to cause such harm. The legal basis for her argument is Restatement (Second) of Torts § 315(a), 319 (1964).
Under § 315(a), a special relationship must exist between KSU and Davenport that imposes a duty upon KSU to control Davenport’s conduct. See McGee v. Chalfant, 248 Kan. 434, 438, 806 P.2d 980 (1991); Cansler v. State, 234 Kan. 554, 560, 675 P.2d 57 (1984); Washington v. State, 17 Kan. App. 2d 518, Syl. ¶ 1, 839 P.2d 555, rev. denied 252 Kan. 1095 (1992). Nero alleges that special relationship is based upon § 319, the duty of those in charge of a person having dangerous propensities. The fact that KSU changed Davenport’s residence hall assignment, with his agreement, because of the rape accusation does not mean the university was “in charge” or “took charge” of Davenport within the meaning of § 319. This is exemplified by the illustrations following that section. One illustration involves a private hospital for contagious diseases permitting a patient who has infectious scarlet fever to leave the hospital with the. assurance he is recovered and-the "hospital negligently allowing another infectious patient to escape. The other illustration concerns a private sanitarium for the insane negligently allowing a homicidal maniac to escape.
Cases in which this court has applied § 319 typically have involved-prisoners. See Cansler, 234 Kan. 554, Syl. ¶¶ 2, 3 (the State has a duty to confine inmates securely and, if inmates escape, to notify area residents and area law enforcement); Washington, 17 Kan. App. 2d 518, Syl. ¶ 2 (“Prison officials owe a duty of ordinary or reasonable care to safeguard a prisoner in their custody or control from attack by other prisoners.”). C.J.W. v. State, 253 Kan. 1, 853 P.2d 4 (1993), involved the alleged assault and sexual molestation of a 12-year-old child by a 17-year-old bully, both of whom were in the custody of juvenile officials at the time of the alleged attack. SRS was aware of the older child’s “history of violent and sexually deviant acts.” 253 Kan. at 12. This court applied §§ 315, 319, and 321 of the Restatement, holding the State had a duty, to warn the juvenile officials of the older child’s propensity toward violence and to protect children who are taken into custody from others, including other children, in custody. In Beck v. Kansas Adult Authority, 241 Kan. 13, 735 P.2d 222 (1987), Bradley Boan, “a disturbed former prisoner . . . and a former mental patient,” walked into the emergency room at the KU Medical Center and fired three shots, killing two people. This court held that the Medical Center did not have a common-law duty to warn because “the Medical Center did not take charge of Boan and did not have custody or control over him at any time after his release from the penitentiary or at the time he entered the Medical Center with shotgun in hánd.” 241 Kan. at'23. Here, KSU did not have the type of control or custody over Davenport contemplated by § 315.
The trial court found Nero’s reliance upon Cansler v. State, 234 Kan. 554, misplaced in that “the duty of those in charge of persons with dangerous propensities has no application to the University residence hall setting.” KSU urges this court to agree, stating the relationship between a university and its students is not analogous to the relationship between a prison and its inmates.
We believe the issue before us to be more basic. The trial court granted summary judgment. The law concerning the granting of- summary judgment is well defined and has been stated in hundreds of cases; thus, we need not set it forth again. KSU is a landlord furnishing housing to its students in competition with private landlords. It owes a duty of reasonable care to its tenants. KSU has discretion whether to furnish housing to students. Once that discretionary decision is made, the university has a duty to use reasonable care to protect its tenants. Generally, whether a landlord has breached the duty of reasonable care to a tenant is a question of fact.
“Whether risk of harm is reasonably foreseeable is a question to be determined by the trier of fact. Only when reasonable persons could arrive at but one conclusion may the court determine the question as a matter of law. [Citation omitted.]” Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 362, 819 P.2d 587 (1991).
“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.”
“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.” Gould v. Taco Bell, 239 Kan. 564, Syl. ¶¶ 1, 3, 722 P.2d 511 (1986).
Other jurisdictions have applied the landowner-invitee analysis to determine whether a university has a duty to protect students from the criminal actions of third parties. See Peterson v. San Francisco Community College Dist., 36 Cal. 3d 799, 205 Cal. Rptr. 842, 685 P.2d 1193 (1984); Furek v. University of Delaware, 594 A.2d 506, 520-21 (Del. 1991); Relyea v. State, 385 So. 2d 1378 (Fla. Dist. App. 1980), disapproved on other grounds Avallone v. Bd. of County Com’rs Citrus Cty., 493 So. 2d 1002 (Fla. 1986); Setrin v. Glassboro State College, 136 N.J. Super. 329, 346 A.2d 102 (1975); Brown v. N.C. Wesleyan College, 65 N.C. App. 579, 309 S.E.2d 701 (1983). In analyzing the issue, all but the Relyea court relied upon Restatement (Second) of Torts § 344 (1964), which provides:
“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.”
The general rule is that a landowner has no duty to protect an invitee on the landowner’s premises from a third party’s criminal attack unless the attack is reasonably foreseeable. Prior similar acts committed upon invitees furnish actual or constructive notice to a landowner. Relyea, 385 So. 2d at 1382-83. A university owes student tenants the same duty to exercise due care for their protection as a private landowner owes its tenants. See Peterson, 36 Cal. 3d at 807.
We emphasize that a university is not an insurer of the safety of its students. Nonetheless, a university has a duty of reasonable care to protect a student against certain dangers, including criminal actions against a student by another student or a third party if the criminal act is reasonably foreseeable and within the university’s control.
Here, KSU knew of the alleged rape and had taken reasonable steps under the circumstances—i.e., it removed Davenport from the coed dormitory and moved him across campus and into an all-male dormitory. The university requested that Davenport stay away from the coed dorm and the food service building. School was ending, and Davenport was allowed to finish the semester.
When Davenport enrolled for intersession, KSU had the option of refusing to rent space to him. Instead, the university placed him in a coed dorm with the plaintiff, who is from a different state and presumably had no knowledge of the pending rape charge against Davenport. Nero knew Davenport was a fellow student living in the same dormitory, which may have given her a false sense of security. She ended up alone with Davenport in a public area. Had Davenport been a stranger and not living in the same dormitory, Nero might have been more likely to protect herself by immediately leaving the area.
We are of the opinion reasonable people would disagree whether Davenport’s attack on Nero was foreseeable. Thus, that issue must be resolved by the trier of facts, and the trial court erred in granting summary judgment.
KSU next argues it is immune from liability under the discretionary function exception to the Kansas Tort Claims. Act (KTCA), K.S.A. 75-6101 et seq.
Under the KTCA, liability is the rule and immunity is the exception. The governmental entity has the burden of proving it is entitled to any of the exceptions enumerated in K.S.A. 1992 Supp. 75-6104. If KSU fails, to rheet this burden, the general rule of liability applies. See C.J.W. v. State, 253 Kan. 1, Syl. ¶ 6; Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. at 364. K.S.A. 75-6103(a) sets forth the general rule of liability:
. “Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state.”
The discretionary function exception, upon which KSU relies, is found át K.S.A. 1992 Supp. 75-6104(e) and provides:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
(e) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved.”
In determining whether KSU’s decision was within the discretionary function exception, our focus is on “the nature and quality of the discretion exercised.” It is not enough that the governmental entity exercised its judgment. Some element of exercising judgment is involved in every case. The status of the employee exercising the discretion is not determinative. If there is a clearly defined mandatory duty or guideline, the discretionary function exception is not applicable. Collins v. Board of Douglas County Comm’rs, 249 Kan. 712, 721, 822 P.2d 1042 (1991); Kansas State Bank & Tr. Co., 249 Kan. at 365.
Nero maintains the university’s decision was ministerial based upon the deposition testimony of Dr. Pat Bosco, Associate Vice-President for Institutional Advancement. When asked who made the decision to move Davenport into Goodnow Hall, Dr,- Bosco responded: “It would be our housing people, it would be purely an administrative move.” He further explained that every year everyone attending summer school is consolidated into one residence hall and the other halls are closed. The plaintiff, equates administrative with ministerial.
The parties disagree upon the proper time frame , for determining if KSU is entitled to immunity. The plaintiff asks this court to focus upon, only the university’s decision to allow Davenport to reside in Goodnow Hall. KSU maintains we should examine the totality of its decisions after J.N. accused Davenport óf rape. The university acknowledges “the closing of all but one residence hall and the consolidation ■ of all intersession and summer school students in Goodnow Hall was indeed ‘administrative,’ ” but argues “it had nothing to do with the University’s response to [J.N.’s] accusation of rape against Ramon Davenport.” The trial court focused upon the nature and quality of KSU’s judgments after J.N. accused Davenport of rape.
In' Cansler v. State, 234 Kan. 554, 570, 675 P.2d 57 (1984), we held the State had a duty (arhong other duties) to warn that a dangerous inmate had escaped. This court held the duty to warn is imposed by law and is ministerial, not discretionary. The issue of whether the State exercised reasonable care in doing so was held to be a question of fact.
In Allen v. Kansas Dept. of S.R.S., 24Ó Kan. 620, 731 P.2d 314 (1987), this court held the decision to undertake a voluntary or certain task is discretionary; however, once that decision is made, the State is not immune from liability under K.S.A. 75-6104(d) for negligence in carrying out a ministerial act in furtherance of the task. Allen is consistent with Indian Towing Co. v. United States, 350 U.S. 61, 100 L. Ed. 48, 76 S. Ct. 122 (1955), in which the United States Supreme Court held that whether to establish a lighthouse was discretionary but, once established, there was a duty to maintain it.
Draskowich v. City of Kansas City, 242 Kan. 734, 740-41, 750 P.2d 411 (1988), addressed the general duty under the KCTA to maintain highways in a reasonably safe condition: This court determined that if the City of Kansas City knew there was ice on the road (not caused by the weather) making the road dangerous for vehicles to travel and failed to warn or take other steps reasonably necessary for the protection of those using the road, the question of negligence was an issue of fact to be determined by the trier of fact.
The discretionary function exception was reviewed in Dougan v. Rossville Drainage Dist., 243 Kan. 315, 757 P.2d 272 (1988). In Dougan, Chief Justice Prager, now retired, speaking for the court, said:
“Simply stated, our more recent cases hold that the discretionary function exception is not applicable in those situations where a legal duty exists, either by case law or by statute, which the governmental agency is required to follow. The governmental agency cannot properly claim that its challenged action falls within the discretionary function exception where the action taken violated a legal duty.
“In the later Kansas cases, the court has relied upon the presence or absence of a legal duty in deciding whether the discretionary function exception was applicable. Beck v. Kansas Adult Authority, 241 Kan. [13, 30, 33-34, 735 P.2d 222 (1987)]; Allen v. Kansas Dept. of S.R.S., 240 Kan. 620, 731 P.2d 314 (1987); and Fudge v. City of Kansas City, 239 Kan. 369, 720 P.2d 1093 (1986). The language in Allen makes it clear that illegal acts are outside the scope of the discretionary function exception and that the negligent performance of a ministerial act is not within the exception.
“Based upon the rationale set forth above, we have concluded that the trial court properly held in this case that the discretionary function exception provided for in K.S.A. 75-6104(d) does not apply to relieve the Rossville Drainage District from liability in this case. This is so because, under the Kansas Tort Claims Act, a governmental agency does not have a discretionary right to violate a legal duty and avoid liability. To so hold would completely nullify the purpose of the Kansas Tort Claims Act.” 243 Kan. at 322-25.
We recently reaffirmed the above in C.J.W. v. State, 253 Kan. 1, Syl. ¶ 7, in which the court stated:
“The discretionary function exception to the Kansas Tort Claims Act, K.S.A. 1992 Supp. 75-6104(e), is not applicable in those situations where a legal duty exists, either by case law or by statute, which the governmental agency is required to follow. The governmental agency cannot properly claim that its challenged action falls within the discretionary function exception where the action taken violated a legal duty.”
We aré satisfied the discretionary function exception to the Kansas Tort Claims Act does not apply in this case.
We conclude that KSU exercised its discretion to build, maintain, and operate housing units. Once that discretionary decision was made, KSU had a legal duty to use reasonable care under the circumstances in protecting the occupants of the coed housing unit from foreseeable criminal conduct while in a common area. A factual issue remains whether KSU used reasonable care in carrying out its legal duty to Shana Nero when it placed Ramon Davenport in a coed housing unit with her. A question also exists concerning a failure to warn her and a'failure to institute adequate security measures to protect female students in the same housing unit based upon KSU’s knowledge of the reported sexual attack by Ramon Davenport some three weeks earlier. Whether the second attack was foreseeable by KSU and whether KSU took adequate steps under the circumstances to prevent the second attack are questions of fact, and the trial court erred in granting summary judgment.
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Per Curiam,-.
This is an uncontested attorney disciplinary proceeding involving Mary Catherine Jackson, an Olathe attorney licensed to- practice law in Kansas.
The formal complaint in this case consisted of three counts alleging that respondent had violated MRPC 1.1 (1992 Kan. Ct. R; Annot. 244) (failed to provide competent representation), 1.3 (1992 Kan. Ct. R. Annot. 248) (failed to act with reasonable diligence and promptness), 1.4 (1992 Kan. Ct. R. Annot. 251) (failed to keep the client reasonably informed), 1.15 (1992 Kan. Ct. R. Annot. 281) (failed to safely keep a client’s property), 1.16 (1992 Kan. Ct. R. Annot. 286) (failed to withdraw from representation when requested), 8.4 (1992 Kan. Ct. R. Annot. 328) (misconduct), and Supreme Court Rule 207 (1992 Kan. Ct. R. Annot. 160) (failed to cooperate in the investigation of the complaint). A panel hearing on the complaint was held on September 9, 1992. The Disciplinary Administrator appeared by Stanton A. Hazlett, and the respondent appeared in person.
COUNT I
The complainant in this matter is a Kansas attorney who works for Wyandotte-Leavenworth Legal Services. This agency operates a Voluntary Attorney Program in which low income clients are referred to attorneys who participate in the program. The respondent, Mary Catherine Jackson, participated in the program and had agreed to accept cases for a reduced fee.
This count alleged two instances of misconduct involving the respondent’s participation in the program.
On April 11, 1989, Lori Sessions made written application to Wyandotte-Leavenworth Legal Services to receive assistance, through the Voluntary Attorney Program, in obtaining a divorce. Sessions made two cash payments to Wyandotte-Leavenworth Legal Services in the amount of $55. On August 11, 1989, Wyandotte-Leavenworth Legal Services advised Jackson that the agency wanted to refer the Sessions case to her. Jackson accepted the case and received a check in the amount of $155 from Wyandotte-Leavenworth Legal Services. That check was endorsed by Jackson and cashed on August 22, 1989.
Jackson did not file a petition for divorce for Sessions until January 8, 1990. Although she obtained temporary orders on behalf of Ms. Sessions, she never obtained service on Mr. Sessions. On April 5, 1990, Ms. Sessions wrote a letter to WyandotteLeavenworth Legal Services requesting that the representation of Wyandotte-Leavenworth Legal Services and Jackson be terminated. Ms. Sessions cited as reasons for the termination the lack of communication with her attorney and the failure by Jackson to obtain service on her husband.
On April 12, 1990, and April 27, 1990, the Legal Services attorney wrote Jackson and requested that she reply to Ms. Sessions’ termination letter. Jackson did not reply to these letters. On May 17, 1990, Wyandotte-Leavenworth Legal Services sent Ms. Sessions a refund of her $155 payment which had been forwarded to the respondent. Ms. Sessions retained new counsel, who concluded her case. Jackson has not accounted for the funds paid to her by Wyandotte-Leavenworth Legal Services to represent Sessions.
On September 26, 1989, Alphonso Carroll made written application to Wyandotte-Leavenworth Legal Services to receive assistance through the Voluntary Attorney Program. Mr. Carroll paid $165 to Wyandotte-Leavenworth Legal Services. On January 8,. 1990, Wyandotte-Leavenworth Legal Services wrote to the respondent referring the Carroll matter to her. On January 27, 1990, Jackson accepted the case. Wyandotte-Leavenworth Legal Services sent Jackson a check in the amount of $155, which she endorsed and cashed.
Wyandotte-Leavenworth Legal Services received complaints from Carroll about how slowly his case was proceeding. Consequently, the Legal Services attorney sent letters to Jackson bn April 17, 1990, and April 27, 1990, in which she requested a response from Jackson. Jackson did not reply. Jackson failed to file a petition on behalf of her client. Ultimately, WyandotteLeavenworth Legal Services assumed responsibility for the Carroll matter. Jackson has made no accounting regarding the $155 paid to her.
As to this count, the hearing panel concluded there was clear and convincing evidence that the respondent violated MRPC 1.1, 1.3, 1.4, 1.15, 1.T6, and 8.4, and Supreme Court Rule 207.
COUNT II
The complainant, Larry Burney, retained the respondent to represent him in an administrative hearing regarding an employment matter. The complainant paid the respondent a $375 retainer on May 13, 1991.
The client became dissatisfied with the respondent’s representation. He made many attempts to contact the respondent by phone but was not successful. On June 6, 1991, the client sent the respondent a letter terminating her services and requesting an itemized statement and refund. Because the client had received no response to the June 6 letter, he wrote another letter to the respondent on June 21, 1991. Again, there was no response from Jackson.
On July 3, 1991, the former client filed a small claims action against the respondent requesting a return of the unearned por tion of the retainer. The respondent prevailed in that action. The court held that there was not sufficient evidence to indicate that the respondent had neglected the case.
The panel found that, although the evidence was insufficient to support the charges in Count II, it was clear that the respondent has continued a pattern of conduct in which the investigations of ethical complaints have been ignored. The panel found that the respondent had violated Supreme Court Rule 207 by failing to cooperate in the investigation of the complaint and that the substantive charges in this count should be dismissed.
COUNT III
The complainant, Maurice Jordan, retained the respondent to handle numerous legal matters for him. The respondent had agreed to represent the complainant on a contingent fee basis in some of the matters and on an hourly basis in the remaining cases. The client advanced court costs for some of the cases.
During the years of 1990 and 1991, the complainant became increasingly concerned about how the respondent was handling his cases. On many occasions the client attempted to call the respondent and obtain the return of his files. Jackson would not return the client’s calls and has failed to return the client’s files as requested. The client also wrote letters to the respondent requesting the return of the files.
During the course of the investigation, the client provided information to the investigator regarding the status of one of the cases which he had retained the respondent to handle. The respondent did not keep the complainant advised about the status of his cases and neglected matters entrusted to her.
The panel found that, although the evidence was insufficient to support the charges in Count III, it was clear that the respondent has continued a pattern of conduct in which the investigations of ethical complaints have been ignored. The panel found that the respondent had violated Supreme Court Rule 207 and that the substantive charges in this count should be dismissed. The hearing panel recommended that the respondent be suspended indefinitely from the practice of law.
We note that Mary Catherine Jackson has been publicly censured by this court in In re Jackson, 249 Kan. 172, 814 P.2d 958 (1991) (Jackson I), and In re Jackson, 252 Kan. 219, 843 P.2d 257 (1992) (Jackson II), for similar conduct. In Jackson 1, 249 Kan. at 176, Justice Abbott in his dissent noted, “I would place respondent on supervised probation for a two-year period. Respondent, as a sole practitioner, needs someone she can turn to for advice, as well as someone who will monitor her case management to see that deadlines are met. We are not doing respondent a favor by returning her to the same environment to ‘sink or swim’ on her own.”
In Jackson II, 252 Kan. at 222, we stated that Rule 207(b) (1992 Kan. Ct. R. Annot. 160) imposes a duty on every lawyer subject to the jurisdiction of the Kansas Supreme Court to cooperate with and respond to the inquiries by the state attorney disciplinary authorities at all stages of the proceedings, even when that lawyer is the subject of a disciplinary investigation. The language of Supreme Court Rule 207(b) is simple, straightforward, and unambiguous. It imposes the duty of cooperation on every lawyer under this court’s jurisdiction with one exception. The one exception, the right against self-incrimination, is contained in Rule 223 (1992 Kan. Ct. R. Annot. 186).
We agree with the findings and conclusions of the hearing panel. We note this is not the first or second instance where the respondent has failed to cooperate with the Disciplinary Administrator in the investigation of a complaint brought against her, neglected legal matters, and failed to keep clients informed. Under these circumstances, the court finds that the respondent should be indefinitely suspended from the practice of law.
It is therefore ordered that Mary Catherine Jackson be and she is hereby indefinitely suspended from the practice of law in the State of Kansas, effective October 29, 1993.
It is further ordered that the respondent shall comply with the provisions of Supreme Court Rule 218 (1992 Kan. Ct. R. Annot. 176) and pay the costs of this proceeding, and that this order be published in the official Kansas Reports. | [
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Per Curiam:
The Kansas Board for Discipline of Attorneys filed a report on a complaint against John E. Wilkinson, attorney respondent, on January 12, 1987. Respondent was found to have committed six violations of Supreme Court Rule 225. 235 Kan. cxxxvii. The Board recommended discipline in the form of suspension as prescribed by Supreme Court Rule 203(a)(2). 235 Kan. cxxiv. Respondent filed exceptions to the Board’s report and the matter is before this court for review.
The facts from which these disciplinary complaints arose are as follows. Respondent John E. Wilkinson is a Kansas lawyer admitted to practice in the state in 1958. Dr. Glenn Bair, a Topeka physician, was a client of Wilkinson’s from 1977 until June of 1983. Dr. Bair referred a patient, Dennis Williamson, to Wilkinson for legal services; then Williamson referred a friend of his, Gerald Monhollen, to Wilkinson for legal advice. Respondent’s handling of the legal matters of these three clients is the basis of the six ethical violations found by the Board.
Dennis Williamson, a high school dropout, lost his right leg and two fingers on a construction job in August 1979. In 1980, he went to Dr. Bair to obtain medication for his pain, and Dr. Bair recommended he see John Wilkinson about filing suit for his injuries. Williamson did so, and a settlement for a total of $715,000 was obtained in August of 1981. Williamson received $502,000 after legal fees. That same day, Williamson loaned Respondent $100,000.
Respondent was president and sole stockholder in B-K of Kansas, Inc., which owned and operated three Burger Kings in Topeka. Respondent had explained to Williamson he would lose his three Burger King franchises if he could not come up with the money to install drive-through facilities. On the other hand, he told Williamson, he believed the existence of such facilities would increase business by 40-50%. He accepted Williamson’s loan of $100,000 at 5% interest, explaining he would then be able to help Williamson with future legal advice at no charge. He issued a promissory note from B-K, Inc., to Williamson. The note was unsecured and Respondent did not personally guarantee the loan.
At the time, a commercial loan of $100,000 to Respondent would have required security and the interest rate would have been around 18%. Respondent was unable to obtain a commercial loan.
During the corporation’s fiscal year ending August 31, 1981, B-K, Inc., showed a loss of $339,113 and had a cumulative stockholder’s deficit of $593,805. Respondent had earlier contemplated bankruptcy.
Except for a payment of $1,700 in October of 1982, Respondent made no payments of interest or principal to Williamson during 1981 or 1982.
In January of 1983, B-K, Inc., through Respondent as president, executed to Williamson another unsecured promissory note, to replace the previous note, in the amount of $100,000 at 12% interest per annum payable monthly. Some payments were made, but B-K ultimately defaulted and filed bankruptcy. Williamson was ultimately paid the amount of the note from Respondent’s malpractice insurance carrier.
Respondent argues there is no evidence he intentionally did anything to damage Williamson. He contends the Board should have made findings of fact on certain testimony which supports his assertion of lack of intention to damage Williamson:
1. Respondent believed, at the time of the loan, that he would be able to pay back the loan. He did not know Burger King had decided to recapture his franchises.
2. Williamson was fully aware of the problems Respondent was having with the franchise before he consented to give the loan.
3. Respondent replaced the 5% note with a note paying 12% in January of 1983 (Respondent does not mention the replacement was at Williamson’s request because he was not receiving regular repayment).
Respondent did in fact do some other legal work for Williamson without billing him. However, he subtracted interest payments for this work in an amount possibly greater than he would have regularly charged.
Respondent also urges this court to consider that Williamson has been made whole by Respondent’s malpractice carrier. A client’s ultimate reimbursement for attorney wrongdoing does not excuse professional misconduct. See State v. Callahan, 232 Kan. 136, 652 P.2d 708 (1982). The respondent in Callahan argued he should not be disciplined for violation of disciplinary rules because there was a possibility his client could recover payments due him by filing suit. This court held eventual recovery is not a defense to a professional violation. 232 Kan. at 141-42.
The first issue is whether clear and convincing evidence supports the factual findings of the Board which underlie its conclusion Respondent violated DR 7-101(A)(3) (235 Kan. cxlvii) by negotiating a loan on unconscionable terms out of Williamson’s settlement without Williamson having received independent legal advice.
DR 7-101(A)(3) forbids a lawyer from intentionally prejudicing or damaging his client during the course of their professional relationship.
Respondent intentionally let Williamson risk losing a substantial amount of money. He also intentionally caused Williamson to lose a substantial amount of interest on that money. We hold there is clear and convincing evidence Respondent intentionally damaged his client in violation of DR 7-101(A)(3).
The second issue stems from the same facts and is whether clear and convincing evidence supports the factual findings of the hearing panel that Respondent violated DR 1-102(A)(4) (235 Kan. exxxvii) by misrepresenting to Williamson he was personally responsible for payment of the $100,000 debt.
DR 1-102(A)(4) prohibits conduct “involving dishonesty, fraud, deceit, or misrepresentation.” Williamson testified he understood Respondent was personally obligated to pay off the loan. The Board found Williamson to have “a strong interest in supporting some of the contentions made by the Disciplinary Administrator” because of the then pending malpractice suit against Respondent.
Respondent argues Williamson’s testimony is not sufficient to meet the clear and convincing standard required for the imposition of discipline. He argues the Board found only that Williamson did not know Respondent was not personally responsible for the loan. Respondent contends this finding of fact will not support a conclusion that he represented to Williamson he was personally liable.
Even were we to find the evidence not clear and convincing Respondent represented he was personally responsible on the note, the Disciplinary Administrator contends the Code was still violated. Respondent maintains he intended to be responsible for the note, but the evidence shows he made certain he was not in fact personally responsible for it. The Board found this action, when Respondent knew B-K, Inc. was near bankruptcy, to be a violation of professional ethics. The Administrator also claims Respondent violated his oath not to deny the rights of any person for lucre. Supreme Court Rule 702(i), 235 Kan. clxxxiii.
Whether or not Respondent specifically promised Williamson he was personally responsible for the debt, his statements throughout the transaction justified Williamson’s belief Respondent would hold himself personally responsible. The contrast between Respondent’s words and his actions in making certain he was not in fact personally responsible shows an intent to misrepresent the facts to Williamson. We hold Respondent violated DR 1-102(A)(4).
The next issue involves a loan of $500 from Williamson to his friend, Gerald Monhollon. When Monhollon was later injured in an accident, Williamson referred him to Respondent. It was agreed Respondent would pay Williamson the $500 owed him from the proceeds of the lawsuit he filed on Monhollon’s behalf. In November of 1983, Respondent took the $500 for Williamson out of the settlement along with his fees and expenses. He did not remit the funds to Williamson. He did not put the funds in a segregated trust account. He put the funds in his general trust account. He closed this account before filing bankruptcy proceedings and used the money to pay his own bills.
The question is whether clear and convincing evidence supports the factual findings of the Board that Respondent violated DR 9-102 by withdrawing and utilizing for personal expenditures $500 which belonged to Williamson and was originally deposited by Respondent in his law office trust account.
DR 9-102(A) requires a lawyer to put funds of a client in a separately identifiable account. DR 9-102(B) requires a lawyer to promptly notify the client of his receipt of the funds, to maintain complete records and accounting of the funds, and to promptly deliver the funds when requested. 235 Kan. clii.
Respondent argues DR 9-102 does not apply because when he obtained the funds Williamson was no longer his client, and the rule only refers to a client’s funds. He says his last representation of Williamson was four months earlier. He also objects to the Board’s contention that Williamson should be considered a long-term client because of his agreement to provide free services for a 5% loan. He asserts the replacement note at 12% interest he later gave Williamson negated the obligation to provide services.
Respondent agrees the funds should have been sent directly to Williamson but says he did not do so because Williamson was then in Costa Rica. (He was able, however, to send payments on his loan to Williamson in Costa Rica.) Later, he said, he forgot the funds were in his account when he closed it shortly before filing for bankruptcy.
He urges this court to consider he offered to pay the money with interest as soon as it was brought to his attention. This offer was made at his deposition after the complaint was filed. He urges this court to consider the money was paid through Williamson’s settlement with Respondent’s malpractice insurer.
The evidence is clear and convincing that Williamson was still Respondent’s client on the matter of paying the $500, if nothing else. However, it makes no difference because, even if we hold Williamson not to have been a client, State v. Freeman, 229 Kan. 639, 629 P.2d 716 (1981), stands for the principle that a lawyer must adhere to the Code of Professional Responsibility in all his actions, whether or not the person affected is defined as a client. In Freeman, a lawyer who was acting as a trustee placed loan money meant for the beneficiary of the trust into his own account and used it for his own purposes. He argued he was not subject to discipline under the Code because he was acting as a trustee rather than a lawyer. 229 Kan. 640-41. We held lawyers are subject to discipline for actions outside strict attorney-client relationships and found a violation of DR 9-102. 229 Kan. at 643.
Respondent argues that in Freeman we did not give great consideration to whether there was actually a violation of DR 9-102 because of the overwhelming evidence Freeman had violated DR 1-102. The case does not support this argument. In considering the discipline to be imposed on Freeman, we emphasized we found the commingling of funds reprehensible. 229 Kan. at 644.
DR 9-102 is one of the most clear cut and easily followed rules in the disciplinary code. Funds which belong to a client are always subject to this rule, whether or not the attorney continues to represent that client. We hold there is clear and convincing evidence Respondent violated DR 9-102.
The next complaint involves transactions with Dr. Bair. Shortly after Williamson received the settlement for his injuries, he made four loans in a six-month period (October 1, 1981 - March 8, 1982) to Dr. Bair totalling $245,000. The loans were secured by mortgages on The Manor, a nursing home Bair owned. The Disciplinary Administrator contends Williamson discussed each loan with Respondent, who did not discourage him although he knew prior outstanding liens exceeded The Manor’s value. The Board did not find this to be supported by clear and convincing evidence, however; thus this facet of The Manor transaction is not at issue here. Dr. Bair engaged Respondent’s services in February 1981 to sell The Manor. Respondent and attorney Gene Hackler were to receive 10% of the gross sale price. This gave rise to the next issue.
Respondent prepared the Williamson/Bair promissory notes and mortgages and undertook responsibility for recording the mortgages with the register of deeds at the same time he was representing Bair in the sale of The Manor.
Bair failed to keep current on the monthly interest payments as required by the promissory notes. Williamson executed releases on his mortgages on The Manor in August 1982 and Bair in return executed a replacement consolidated mortgage in the amount of $245,000 at 24% interest per annum payable monthly. The releases and mortgages were prepared by Bair according to forms provided by Respondent. (The original mortgages, typed in Respondent’s office, had releases typed in their margins.) The replacement mortgage was never recorded.
Respondent recorded the releases of the old mortgages in November during negotiations for the sale of The Manor, but did not record, or urge Williamson to record, the replacement consolidated mortgage in the amount of $245,000. Lawyer’s Title required the releases of the original mortgages be filed before it would insure title. Office notes kept by Respondent’s employee disclose payment to Williamson out of proceeds from the sale of The Manor was not contemplated by Respondent. The proposed closing statement prepared by Respondent’s employee shows distributions to Bair of $128,513.79 and $46,100.00 to Respondent, but no mention of Williamson.
When the sale fell through, negotiations began with another group. Respondent’s office prepared another closing statement. It showed a $52,000 distribution to Respondent but, again, no mention of Williamson.
The sale of The Manor was finally consummated with the second group. The closing, scheduled for May, had to be extended. In June, Bair presented Respondent with a bill for $48,500 for medical consultation about patients he had referred to Respondent for personal injury claims. Respondent submitted in return a bill for $91,600 for legal services in trying to sell The Manor and then notified Bair he was withdrawing as his attorney after he collected the fee.
At about this time in June, Respondent told Williamson it was unlikely either of them would get their money from Bair. He told Williamson he was at the bottom of the list of creditors because of the releases. Respondent threatened Bair with litigation on behalf of both himself and Williamson. He accused Bair of obtaining loans from Williamson by fraud.
Respondent continued to represent both himself and Williamson throughout June and most of July in attempting to retrieve money from the proposed sale of The Manor. He did not, however, record or advise Williamson to record his mortgage.
Respondent claims he stopped representing Williamson in July of 1983 after telling him he needed to obtain another lawyer. Williamson denies this. The Board found Respondent continued as Williamson’s attorney from August 1981 to January 1985.
The sale of the nursing home was completed in August of 1983. Of the $1,040,000 in sale proceeds, Respondent received $30,000 and Williamson $15,000. Bair also gave Williamson an unsecured promissory note for the $284,391 principal and interest owed, but he defaulted and the note was discharged in bankruptcy as an unsecured claim.
The Disciplinary Administrator claims the evidence shows Respondent intentionally did not record the mortgage so he could obtain $30,000 from the sale; or at the very least, it shows Respondent neglected his duty as an attorney to advise his client of the consequences of failure to record.
Respondent claims he had no duty to record the mortgage and was never asked to do so. He says his last representation of Williamson occurred a month before the sale. At that time, he says it was a “judgment call” whether the mortgage should be recorded because it was a “club” which could be held over Dr. Bair’s head. He says Williamson was “far down the list as a mortgage holder” and so it was not certain he would have obtained more money by recording. At the hearing, however, he admitted it would have been in Williamson’s best interests to record, and said he told Williamson this. When asked whether it would have been contrary to his interests to have the mortgage recorded, Respondent simply replied, “We were in conflict.”
Respondent points out Williamson asserted no claim against Bair in Bair’s bankruptcy proceeding because he was advised not to by his counsel in the malpractice action against Respondent. Williamson did not follow the advice Respondent claims he gave to obtain the services of another attorney to negotiate with Dr. Bair after July of 1983. Instead, he negotiated on his own with Dr. Bair, receiving stock in exchange for renegotiation of the loan. Respondent again urges this court to consider Williamson’s loss was covered by Respondent’s malpractice insurance carrier.
The issue here is whether clear and convincing evidence supports the factual findings of the board that Respondent neglected a legal matter entrusted to him in violation of DR 6-101(A)(3) by his failure to record or advise Williamson to record the $245,000 mortgage from Bair to Williamson. 235 Kan. cxlvii.
This issue is analogous to one raised in Callahan, in which a lawyer represented both the buyer and seller of land. The buyer was a long-term client of the lawyer, as Dr. Bair was to Respondent. The lawyer did not record a mortgage for the seller, and said he was under no duty to do so. This court held, in finding a violation of DR 6-101(A)(3), the duty of good faith does not terminate immediately after employment by the client ends. The duty extends as long as the influence created by the relationship endures. 232 Kan. at 141.
Respondent counseled Williamson throughout the period of Williamson’s loans to Bair. Respondent cannot evade the trust reposed in him by Williamson simply by refusing to continue to represent his interests a month before money was actually realized.
We hold Respondent violated DR 6-101(A)(3).
The next issue is whether clear and convincing evidence supports the factual findings of the Board that Respondent violated DR 5-101(A) by representing Williamson to obtain for him proceeds from the sale of The Manor when Respondent was also attempting to recover monies from the sale which he knew would not net enough to pay all creditors.
DR 5-101(A) reads:
“Refusing Employment When the Interest of the Lawyer May Impair His Independent Professional Judgment.
(A) Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on'behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.” 235 Kan. cxlv.
The Board found Respondent violated DR 5-101(A) by representing Williamson’s interest in recovering money from the sale of The Manor while at the same time attempting to recover attorney fees from the sale. Respondent knew there would not be enough money to go around. At the hearing, when asked, “As of June and July of 1983 you and Dennis were competing for a scarce amount of dollars, were you not?”, Respondent Wilkinson replied, “We were certainly in conflict.”
Respondent argues he did not violate the rule because he had the consent of Williamson after full disclosure that he was attempting to recover attorney fees and there was not enough money to pay everyone in full.
The ABA/BNA has addressed this question of client consent. It points out some courts have held representation must end if a client will be adversely affected by the lawyer’s personal interests, even if the lawyer has obtained the client’s consent. Kansas is cited as holding this view. ABA/BNA Lawyers Manual on Professional Conduct, p. 51:405.
In the Kansas case cited, however, Alexander v. Russo, 1 Kan. App. 2d 546, 553-54, 571 P.2d 350 (1977), the court actually found the attorney did not give full disclosure. This court has held, contrary to the Disciplinary Administrator’s assertion, that Kansas law does sometimes allow a lawyer to represent a client with conflicting interests if the safeguards of full disclosure and consent are met. In re Estate of Seeger, 208 Kan. 151, 156, 490 P.2d 407 (1971). Seeger, however, involved only potentially conflicting interests, rather than the clear-cut case of antagonistic interests presently before this court.
This court found a violation of DR 5-101(A) in In re Lake, 241 Kan. 351, 737 P.2d 40 (1987). The case was similar to this in that a lawyer encouraged a client to invest a tax refund he had obtained for her in a business operating in a building he owned. He drafted a contract and a promissory note between his client and his tenant while serving as his client’s business advisor.
Clearly Respondent had a conflict of interest with his client and, even though he disclosed it, the client did not have outside counsel and advice when he agreed to permit it. Thus, his consent is uninformed. We hold such uninformed consent is not sufficient to exempt Respondent from the obligations of DR 5-101(A).
The final issue is whether clear and convincing evidence supports the factual findings of the Board that Respondent violated DR 5-105(A), (B), (C), and (E) (235 Kan. cxlvi) because he represented his own interests to receive a share of the proceeds from the sale of The Manor paramount to the interests of Bair and Williamson; and because the interests of Bair were in conflict with Williamson’s interests and Bair was paying Respondent for legal services out of the proceeds of the sale of The Manor.
DR 5-105 reads in part as follows:
“Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer.
“(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105(C).
“(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105(C).
“(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.
“(E) A lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by the financial or other- interests of the organization which recommends, furnishes, renders or pays for his legal services.” 235 Kan. cxlvi.
The interests of Respondent, Williamson, and Bair were in conflict over who was to get The Manor sale proceeds. Respondent represented Bair in trying to sell The Manor; he represented Williamson in trying to obtain payment of the loans to Bair from the sale; and he represented himself in trying to obtain his attorney fees from the sale.
Respondent again argues client consent. He also contends he ceased his representation of Bair in June and his representation of Williamson in July when he realized the conflicts were too great. Respondent also again urges this court to consider that Williamson was made whole by Respondent’s malpractice insurance carrier. These arguments are without merit.
There is evidence Respondent planned to cut Williamson out of the proceeds. He failed to file Williamson’s mortgage against The Manor. Meanwhile, he raised his attorney fees regarding the sale from $52,000 to $91,600, thus reducing the amount available in any case to Williamson. Respondent claims most of the evidence showing no payment to Williamson was contemplated from sale of The Manor was prepared by his employee, with no knowledge on his part. Yet he also contended, in support of his bill to Bair, that he spent 100 hours reviewing the work done by his employee.
The law is clear that a lawyer cannot use his representation of a client to his personal financial advantage. Yeamans v. James, 27 Kan. 195 (1882). We hold Respondent violated DR 5-105(A), (B), (C), and (E).
We have examined the record and find substantial competent evidence to support the findings of fact of the Disciplinary Board. The facts support the Board’s conclusions of law that' Respondent violated the following sections of Supreme Court Rule 225, Code of Professional Responsibility (235 Kan. cxxxvii et seq.): DR 7-101(A)(3); DR 1-102(A)(4); DR 9-102; DR 6-101(A)(3); DR 5-101(A); and DR 5-105(A), (B), (C), and (E).
We conclude the Board’s recommendation that Respondent be indefinitely suspended from the practice of law is appropriate.
It is Therefore Ordered that John E. Wilkinson be and he is hereby indefinitely suspended from the practice of law in the State of Kansas.
It is Further Ordered that John E. Wilkinson shall forthwith comply with Supreme Court Rule 218 (235 Kan. cxxxii).
It is Further Ordered that this order shall be published in the official Kansas Reports and that the costs of this action be assessed to the Respondent.
Effective this 30th day of October, 1987.
Prager, C.J., not participating. | [
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The opinion of the court was delivered by
Lockett, J.:
Defendant appealed his conviction of impairing a security interest (K.S.A. 21-3734[l][c]), claiming that the statute is unconstitutionally vague, that the complaint was constitutionally insufficient, that evidence was improperly excluded, that evidence was improperly admitted, and that various other trial errors were committed by both the State and the judge. Sua sponte holding that K.S.A. 21-3734(l)(c) violates the prohibition against imprisonment for debt found in Section 16 of the Bill of Rights of the Kansas Constitution, the Court of Appeals reversed defendant’s conviction. State v. Jones, 11 Kan. App. 2d 612, 731 P.2d 881 (1987). The State has exercised its statutory right to an appeal because the question as to the constitutionality of the statute arose for the first time as a result of the Court of Appeals decision. K.S.A. 1986 Supp. 60-2101(b). In a brief opinion, State v. Jones, 241 Kan. 627, 739 P.2d 933 (1987), this court unanimously held that K.S.A. 21-3734(l)(c) is not unconstitutional and reversed the Court of Appeals. In order that the other issues raised but not considered by the Court of Appeals could be determined, this case was set for further argument in September of 1987.
Jones was the sole stockholder, president, and operator of Johnson County Motors, Inc., (JoCo) a Yamaha motorcycle dealership. All of JoCo’s motorcycles were ordered from Yamaha under a financing arrangement with the manufacturer, commonly referred to as floorplanning or, under the Uniform Commercial Code (UCC), K.S.A. 84-1-101 et seq., as a consignment. Under the security agreement signed by Jones in his capacity as president of the corporation, Yamaha retained title to the goods until JoCo performed all obligations under the contract. The security agreement further provided that JoCo pay for each motorcycle as it was sold or, if not sold, make payments to Yamaha by a designated date in the invoice.
Despite JoCo’s sales awards, the corporation experienced perpetual cash flow problems. For the five years prior to 1982, Yamaha permitted JoCo to defer forwarding proceeds from the sale of secured inventory, which allowed the cash generated by sales to pay local operating expenses. At the end of each year, Jones would retire JoCo’s debt to Yamaha by taking out personal loans locally. However, by the spring of 1982, JoCo’s chronic undercapitalization, low cash flow, and a debt to Yamaha caused the collapse of the corporation.
In May of 1984, the State filed a criminal complaint charging that Jones “d/b/a Johnson County Motors, Inc.,” had impaired a security interest by failing to account for proceeds of sales to a secured party. K.S.A. 21-3734(l)(c). The State claimed that Jones owed over $250,000 for motorcycles which were sold, but the proceeds were never forwarded to the manufacturer. Jones admitted that JoCo owed Yamaha about $150,000 under the floor plan when it went out of business, but denied any criminal intent to impair the security agreement. Jones was convicted by a jury and sentenced to a maximum term of two years and a minimum term of one year. K.S.A. 21-3734(l)(c).
Jones appealed his conviction to the Court of Appeals, raising numerous issues. Following oral argument, the Court of Appeals sua sponte questioned whether K.S.A. 21-3734(l)(c) violates Section 16 of the Bill of Rights of the Kansas Constitution, which states that “[n]o person shall be imprisoned for debt, except in cases of fraud.” The parties were requested to brief this issue in accordance with the cautionary guidelines set forth in State v. Puckett, 230 Kan. 596, 601, 640 P.2d 1198 (1982). Subsequently, the Court of Appeals in State v. Jones, 11 Kan. App. 2d 612, 731 P.2d 881 (1987), held that, because K.S.A. 21-3734(l)(c) does not require proof of intent to defraud, the statute violates the prohibition against imprisonment for debt found in Section 16 of the Bill of Rights of the Kansas Constitution. The State appealed.
CONSTITUTIONALITY of K.S.A. 21-3734(l)(c)
Section 16 of the Bill of Rights of the Kansas Constitution prohibits the legislature from enacting a law which imposes imprisonment for the mere nonperformance of a contract of indebtedness. 11 Kan. App. 2d at 613, citing Haglund v. Bank, 100 Kan. 279, 284, 164 Pac. 167 (1917); In re Wheeler, Petitioner, 34 Kan. 96, 98, 8 Pac. 276 (1885).
K.S.A. 21-3734 provides in part:
“21-3734. Impairing a security interest.
(1) Impairing a security interest is:
(a) Damaging, destroying or concealing any personal property subject to a security interest with intent to defraud the secured party; or
(b) Selling, exchanging or otherwise disposing of any personal property subject to a security interest without the written consent of the secured party where such sale, exchange or other disposition is not authorized by the secured party under the terms of the security agreement; or
(c) Failure to account to the secured party for the proceeds of the sale, exchange or other disposition of any personal property subject to a security interest where such sale, exchange or other disposition is authorized and such accounting for proceeds is required by the secured party under the terms of the security agreement or otherwise.”
After tracing the history of the statute, the Court of Appeals asserted that Section 16 of the Kansas Bill of Rights does permit imprisonment for debt when fraud is present because the offense then being punished is the fraud, not the indebtedness, citing Tatlow v. Bacon, 101 Kan. 26, 29, 165 Pac. 835 (1917). The court compared a similar worthless check statute, K.S.A. 1971 Supp. 21-3707, which was held not to be an unconstitutional authorization of imprisonment for a debt because that offense required proof of an intent to defraud (State v. Haremza, 213 Kan. 201, 209, 515 P.2d 1217 [1973]), to 21-3734(1)(c). The Court of Appeals then held that 21-3734(l)(c) is a penal statute which essentially describes a failure to meet a civil contract for indebtedness as a crime punishable by imprisonment and violates Section 16 because the crime does not require proof of an intent to defraud. 11 Kan. App. 2d at 615-16. We disagree.
As authority for its decision, the Court of Appeals adopted the reasoning of State v. Hocutt, 207 Neb. 689, 300 N.W.2d 198 (1981). We believe the Court of Appeals misinterpreted Hocutt.
In Hocutt, the defendant had been convicted of disposing of property subject to a security interest under a provision similar to K.S.A. 21-3734(l)(b). There, the defendant contended that the statute was unconstitutional since it provided for imprisonment for nonpayment of a debt without proof of fraud. The Nebraska court found that the statute may have violated the Nebraska state constitutional provision proscribing imprisonment for debt except in cases of fraud; however, as prior Nebraska case law had judicially engrafted the requirement of proof of intent to defraud onto the statute, the statute was not unconstitutional. The court held that any legislation making it a crime for one to use his own money for any purpose other than payment of his debts is violative of state constitutional provisions prohibiting imprisonment for debt except in cases of fraud. 207 Neb. 689, Syl. ¶ 1. (Emphasis supplied.) The Court of Appeals application of Hocutt to create a “debt” under the security agreement is erroneous; JoCo used money belonging to another, not its “own money” for purposes other than the payment required under the security agreement.
The UCC became effective in Kansas on January 1, 1966. It was enacted to meet the contemporary needs of a modern commercial society. An agreement which produces a security interest under the UCC does not create a debt within the prohibition of Section 16 of the Bill of Rights of the Kansas Constitution. This becomes clear when the concept of a security interest is analyzed. Under K.S.A. 1986 Supp. 84-1-201(37), a security interest is defined as “an interest in personal property or fixtures which secures payment or performance of an obligation.” K.S.A. 84-9-306(2) further provides that a security interest continues in the collateral notwithstanding sale and also continues in all identifiable proceeds. In addition, K.S.A. 84-9-306(1) defines proceeds as “whatever is received upon the sale, exchange, collection or other disposition of collateral or proceeds.”
One of the most common types of security agreements allows the debtor to receive possession of the secured property and the creditor to retain title to the property until payment is received. Here, the floor plan arrangement between Yamaha and JoCo provided that JoCo would receive possession of the motorcycles and permission to sell them. Throughout the transaction, however, title to the motorcycles remained in the manufacturer and after a motorcycle was sold, the manufacturer’s security interest continued in the proceeds JoCo received from the buyers less JoCo’s profit. Therefore, notwithstanding the terms “debtor” and “creditor” used throughout the UCC, title remained in Yamaha and any unauthorized use or disposition of the secured property or proceeds by JoCo was a violation of K.S.A. 21-3734(l)(c).
Constitutional guarantees against imprisonment for debt have as their purpose the prevention of the useless and often cruel imprisonment of persons who, having honestly become indebted to another, are unable to pay as they undertook and promised. The spirit of such a provision is to protect an honest debtor who is poor and has nothing with which to pay so that he should not be at the mercy of his creditors if his insolvency is bona fide, but it is not intended to shield a dishonest man who takes unconscionable advantage of another. 16A Am. Jur. 2d, Constitutional Law § 619, p. 569. When constitutional provisions proscribe imprisonment for debt, the “debt” is an obligation to pay money from, the debtor s own resources. 16A C.J.S., Constitutional Law § 487. See In re Marriage of Fithian, 74 Cal. App. 3d 397, 141 Cal. Rptr. 506 (1977).
Our constitutional provision prohibits the imprisonment of an honest individual who becomes obligated to pay another person under an express or implied contract and is later unable to pay the debt from his own resources. Under the Kansas Constitution, imprisonment may result where a debtor intends to deprive a creditor of the creditor’s own money. 21-3734(l)(c) does not violate the prohibition against imprisonment for debt found in Section 16 of the Bill of Rights of the Kansas Constitution.
The State additionally argues that, since the statute imposes imprisonment not for debt but for the willful act of depriving another party of his property, no specific intent to defraud is required. We agree. After the enactment of the UCC, sections of the criminal statutes were consolidated, rewritten, or added to complement its wording. One of the predecessor statutes of K.S.A. 21-3734(l)(a) and(b) was G.S. 1901, § 4259, which stated:
“[A]ny mortgagor of personal property or any other person who shall injure, destroy or conceal any mortgaged property, or any part thereof, with the intent to defraud the mortgagee, his executors, administrators, personal representatives, or assigns, or shall sell or dispose of the same without the written consent of the mortgagee, or his executors, administrators, personal representatives, or assigns, shall be deemed guilty of larceny . . .
In State v. Miller, 74 Kan. 667, 87 Pac. 723 (1906), G.S. 1901, § 4259 was analyzed and this court determined that, because the statute stated the sale of mortgaged property without the written consent of the mortgagee is a larceny, an individual convicted of violating that section must have had the larcenous intent to defraud the mortgagee. K.S.A. 58-3181 (Corrick), a successor statute of G.S. 1901, § 4259, was repealed in 1965 when legisla tive changes were made to conform to the UCC. Prior to 1965, all of the provisions describing conduct within a secured transaction as criminal included the element of intent to defraud. When K.S.A. 21-3734(l)(b) was adopted, the legislature removed all references to mortgaged property and larceny, inserted the phrase “personal property subject to a security interest,” and thus omitted the necessity of proving an intent to defraud; subsection (l)(c) was added to prohibit the failure to account to the secured party when a sale is authorized.
K.S.A. 21-3734(l)(c) does not contain the requirement of a “criminal intent” to commit a crime. It states:
“(1) Impairing a security interest is:
“(c) Failure to account to the secured party for the proceeds of the sale, exchange or other disposition of any personal property subject to a security interest where such sale, exchange or other disposition is authorized and such accounting for proceeds is required by the secured party under the terms of the security agreement or otherwise.”
Under the common law, a crime consisted of two elements, an evil intention and an unlawful act (malum in se). Malum in se crimes usually fall into two classifications: (1) those such as theft and fraud, which require a specific intent to commit, and (2) offenses such as rape, which require no specific intent to commit the offense.
In Kansas, the right to define what act constitutes a crime and the punishment for the prohibited act is a legislative power, subject to the limitations imposed by our state and federal constitutions. The statutory distinction between a general intent crime and a crime of specific intent is whether, in addition to the general intent required by K.S.A. 21-3201 (a willful or wanton act), the statute identifies or requires a further particular intent, i.e., to harm, to permanently deprive, or to defraud. In addition to statutorily adopting the common-law crimes which require an evil intent, the legislature has the power to prohibit other acts which require no proof of criminal intent or knowledge; those acts are termed malum prohibitum.
When an act is prohibited and made punishable by statute, the statute is to be construed in the light of the common law. The existence of a criminal intent is regarded as essential even though the terms of the statute do not require it, unless it clearly appears that the legislature intended to make the act criminal without regard to the intent with which it was done. Under the criminal code, for one to be found guilty of a violation of 21-3734, the legislature intended that the accused must have had a general criminal intent to commit the offense.
In 1969, the Kansas legislature passed the Criminal Code. K.S.A. 21-3101 et seq. Included in the code was K.S.A. 21-3201, which codified the prior common law and case law regarding criminal intent. K.S.A. 21-3201 states that criminal intent is a necessary element of every crime, unless specifically excepted. It further provides that the intent to commit a crime may be established by proof that the conduct of the accused person was willful. Willful conduct is conduct that is purposeful, intentional, and not accidental. The terms “knowing,” “intentional,” “purposeful,” and “on purpose” are included within the term “willful.” K.S.A. 21-3201.
When enacting K.S.A. 21-3734, the legislature intended that K.S.A. 21-3201 be construed in conjunction with all the criminal statutes unless specifically excepted. See State v. Thompson, 237 Kan. 562, 566-67, 701 P.2d 694 (1985). Therefore, to be guilty of impairing a security agreement, a debtor must intentionally fail to account to the secured party for the proceeds of the sale of the personal property subject to the security agreement. Here, both the defendant and the jury were informed of this requirement. The complaint charged that Jones “willfully” failed to account for the proceeds of the sale. The jury was instructed that the State had to prove that Jones had “intentionally failed to account for the proceeds of the sale or sales as specified in the security agreement.”
In summary, the purpose of K.S.A. 21-3734 is to protect a secured party from an intentional unauthorized disposal of the secured property or proceeds by making it a crime to do so. State v. Ferguson, 221 Kan. 103, 107, 558 P.2d 1092 (1976). K.S.A. 21-3734(1)(c) does not punish for a debt in the form of a theft — it punishes for a willful act to deprive a secured party of its property and thus is not unconstitutional imprisonment for debt. Subsection (1)(a) of the statute covers damaging, concealing or exchanging the property with intent to defraud; subsection (1)(b) covers intentionally selling the property without consent; and subsection (l)(c) covers the intentional failure to return the proceeds of sale of the secured property when such sale is authorized. In the case of subsection (l)(c), the proceeds do not represent a debt that the defendant failed to pay; rather, the proceeds represent the property itself. Thus, no section of the statute criminalizes the act of nonpayment of a debt. Instead, the statute makes it a crime to deal with property of another in an unauthorized manner.
Because we hold that K.S.A. 21-3734 does not authorize imprisonment for debt, but instead creates a separate and distinct offense, the decision of the Court of Appeals on this issue is reversed. We now turn to the other issues raised by Jones in his original appeal.
SUFFICIENCY OF THE COMPLAINT
In a felony action, the indictment, complaint, or information is the jurisdictional instrument upon which the accused stands trial. A conviction based upon an information which does not sufficiently charge the offense for which the accused is convicted is void. Failure of the information to sufficiently state an offense is a fundamental defect which can be raised at any time, even on appeal. Sufficiency of the indictment or information is to be measured by whether it contains the elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet, and by whether it is specific enough to make a plea of double jeopardy possible. State v. Bird, 238 Kan. 160, Syl ¶¶ 1, 2, 708 P.2d 946 (1985). If the facts alleged in an information do not constitute an offense within the meaning of the statute upon which it is based, the information is fatally defective. The evidence introduced at trial to show commission of the crime and the jury instructions have no bearing on this question. State v. Jackson, 239 Kan. 463, Syl. ¶ 3, 721 P.2d 232 (1986).
Jones was charged in the complaint as “Robert Eugene Jones d/b/a Johnson County Motors, Inc.,” for feloniously and willfully failing to account to Yamaha for the proceeds of the sale of secured property. He contends that the abbreviation “d/b/a” used by the State in its charging documents stands for “doing business as” and has no legal significance; therefore, the com plaint does not state a crime. He also argues that the complaint is insufficient to hold him responsible as an individual who had assisted the corporation to commit a crime. We disagree.
In Kansas, an individual may not “do business as” a corporation. A corporation is an artificial being existing only in contemplation of law. Land Grant Railway v. Comm’rs of Coffey County, 6 Kan. 245 (1870). A corporation must be thought of without reference to members who compose the corporation. Williams v. Railway Co., 68 Kan. 17, 26, 74 Pac. 600 (1903). Because a corporation is a distinct “person” under the the laws of this state, a corporation can be convicted of a criminal offense. See generally State v. Railway Co., 96 Kan. 609, 612, 152 Pac. 777 (1915), aff'd 248 U.S. 276, 63 L. Ed. 239, 39 S. Ct. 93 (1919). Though Jones is an officer and the sole stockholder of the corporation, legally, he is neither the corporation nor can he be doing business as a corporation.
After the preliminary hearing Jones moved for dismissal of the complaint against him because K.S.A 21-3734 (l)(c) applies only to parties that signed the security agreement, i.e., the two corporations. Jones admits that under K.S.A. 21-3207 he could be held responsible for any illegal act he performed in the name of the corporation if the State had made that allegation in its complaint.
The purpose of the complaint is twofold: (1) to disclose sufficient factual information to enable a magistrate to make an intelligent and impartial finding that there is probable cause to believe that a specific crime has been committed by the defendant and (2) to inform the defendant of the particular offense alleged to have been committed. Here, the complaint charging Jones contains the elements of the offense intended to be charged and sufficiently apprises Jones of what he must be prepared to meet. What was not included in the complaint was the theory of Jones’ individual responsibility for the corporate crime.
When a complaint charges a crime, but fails to specify the particulars for which the individual is responsible 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. K.S.A. 1986 Supp. 22-3201 (5). Defenses and objections based on defects in the institution of the prosecution or in the complaint other than that it fails to show jurisdiction in the court or to charge a crime may be raised only by motion before trial. K.S.A. 22-3208.
The record reflects that Jones was well aware of the theory of criminal responsibility upon which the State would rely at trial. Further, the record shows that he was neither surprised at trial nor deprived of his right to defend himself against that theory. At the hearing on the motion to dismiss, approximately two months prior to trial, the trial court clarified that the case would proceed on the theory of Jones’ individual responsibility for corporate crime, K.S.A. 21-3207, and ruled that despite the lack of reference to K.S.A. 21-3207 in the complaint, defendant had received ample notice of the manner in which he was being charged through the briefs and record filed with the motion to dismiss. We agree.
The court noted that the complaint was not artfully drafted and should have charged, under K.S.A. 21-3207, that Jones was an individual acting for the corporation. The court then advised the State to consider amending the complaint to charge Jones with individual liability for the corporate crime. The State agreed that it was proceeding under K.S.A. 21-3207, but did not amend the complaint. Under these facts, the State’s failure to amend the complaint to include the theory of criminal responsibilty of the defendant did not make the complaint insufficient.
Jones finally contends that Instruction No. 7 was improper because it allowed him to be convicted under two alternate theories when the complaint contained only one theory. We agree.
After the evidence had been submitted, Jones moved for acquittal arguing that he could not be held responsible for the acts of a corporation as charged. The State had attempted to charge in the complaint and proceeded to trial on the theory that Jones, as an individual, performed a criminal act on behalf of a corporation, and was individually responsible to Yamaha because the corporation failed to account to Yamaha for its portion of the proceeds from the sale of the secured property. Following the State’s theory, the trial judge gave Instruction No. 6:
“INSTRUCTION NO. 6
“An individual who performs criminal acts, or causes criminal acts to be performed, in the name of or on behalf of a corporation, is responsible to the same extent as if such acts were performed in his own name or on his own behalf.”
The trial court then reasoned that if there was not sufficient evidence to find Jones guilty for his acts on behalf of the corporation, there was evidence of one transaction where Jones personally made a sale and put the money in his pocket. Then the trial court enlarged the charge by informing the jury that Jones could be found guilty under two separate theories — either the State’s theory found in Instruction No. 6 or the judge’s theory found in Instruction No. 7, which stated:
“INSTRUCTION NO. 7
“The defendant is charged with the crime of impairing a security interest. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That Yamaha Motors Corporation had a security interest in motorcycles it had delivered to JoCo Motors, Inc.;
“2. That the defendant, on his own behalf or on behalf of JoCo Motors, Inc. sold or disposed of the motorcycles which were subject to the security interest and received the proceeds of such sale or disposition;
“3. That the security agreement made a provision that in the event of the sale or disposal of the motorcycles, the proceeds were to be given to Yamaha Motors^ Corporation;
“4. That the defendant, on his own behalf or in the name of or on behalf of JoCo Motors, Inc., intentionally failed to account for the proceeds of such sale or sales as specified in the security agreement;
“5. That the property subject to the security interest was at the time of the sale of the value of fifty dollars ($50.00) or more and was subject to a security interest of fifty dollars ($50.00) or more; and,
“6. That this act or acts occurred on or about the month of June, 1982, in Johnson County, Kansas.”
The instruction allowed the jury to find Jones guilty of impairing a security agreement and intentionally failing to account for the proceeds of the sale to Yamaha either (1) as an individual acting on behalf of JoCo Motors, Inc., or (2) as an individual.
When pleading a crime that may be committed by several different methods in a single-count complaint or information, the State may charge the commission of the offense in any or all of the methods specified in the statute. Jones argues that prior to instructing the jury, both the State and the trial judge agreed he was being tried as an individual who had performed an illegal act for the corporation. It was unfair for the judge to broaden the scope of the charge alleged in the information by adding an alternate theory in the jury instructions. By providing the alternate theory, the jury could convict Jones of a charge of which he had been unaware, thus depriving him of an adequate opportunity to prepare a defense.
When the information alleges one or more theories for commission of the crime, the general rule is that the instructions should be confined to the charges contained in the information and should not be broader or narrower than the information. Instructions given in violation of the rule, however, are excused when the substantial rights of the defendant have not been prejudiced. State v. Turbeville, 235 Kan. 993, 997, 686 P.2d 138 (1984).
A conviction upon a theory not made in the information or properly brought before the court is not a denial of due process under the Fourteenth Amendment of the Constitution of the United States unless the defendant is deprived of his right to defend himself against the charge. See State v. Chatmon, 234 Kan. 197, 205, 671 P.2d 531 (1983); U.S. Const., 6th Amend.; Kan. Const. Bill of Rights § 10; K.S.A. 22-3205. Under the facts of this case, Jones was denied his right to due process. Because of our holding on this issue, we do not reach any of the other issues raised.
Reversed and remanded for a new trial. | [
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Per Curiam:
This is an original proceeding in discipline commenced against the respondent, Magistrate Judge George G. Levans, of the Allen County District Court, 31st Judicial District, before the Commission on Judicial Qualifications. The respondent and his attorney appeared before the Commission and announced that a stipulation had been entered into by the respondent and his counsel and the examiner of the commission. The stipulation was as follows:
“STIPULATION
“COME NOW the undersigned, and hereby stipulate that the following Statement of Facts and Conclusions of Law are true and accurate in the above referenced proceeding, and agree to be bound by said stipulations in the resolution of the pending proceeding.
“STATEMENT OF FACTS
“1. On January 5, 1986, Respondent removed eight (8) railroad ties which appeared to him to be used and which belonged to the Atchison, Topeka and Santa Fe Railway Company, from stacked bundles of new ties in Iola, Kansas. Respondent contends that, earlier, in the summer of 1985, he had asked for permission to have some ties and was given permission by someone he believed to be a Santa Fe employee. He felt that the person with whom he spoke had authority to authorize removal of ties.
“Respondent removed eight (8) new ties some four months after he asserts he received permission. He had no written permission to remove the ties.
“2. Respondent was at first uncooperative in responding to an investigation of the missing ties by Larry Montgomery, Special Police Agent of Atchison, Topeka and Santa Fe Railway Company. After Mr. Montgomery identified himself as a law enforcement officer, Respondent gave a vague description of the person he alleged had granted him permission to take the ties. Agent Montgomery felt that it was not an accurate description of railroad personnel. Upon continued questioning, Respondent varied the description a little bit, but continued to be vague about details. He also was uncertain about the exact time when he was given permission to take the railroad ties saying only ‘some time in the summer’ of 1985. Respondent was requested to give a written statement and at first hesitated, however, a short time later he did give a written statement to Mr. Montgomery.
“It is Respondent’s claim that the reason he did not provide Agent Montgomery with detailed information when interrogated was because he was afraid the railroad was trying to find out the name of the person he alleges gave him permission to take the ties and was going to take punitive action against that person.
“Respondent, when requested, supplied the Commissioner’s Examiner with additional and different details. Respondent indicated to the Examiner that he felt Mr. Montgomery was inquiring of him information which he could use to locate the railroad employee who gave Respondent permission to take the railroad ties and that the railroad employee would lose his job. Respondent indicated that some time around July 15 to August 15, in the hot summer of 1985, he had received permission from someone on the Santa Fe crew to take some ties. After inquiring about the ties along the railroad tracks in Iola, Kansas, Respondent was told to talk to a supervisor who was allegedly at a truck. Respondent indicated that there were two individuals at the truck; one in his late 20’s or early 30’s, and one in his early 50’s, both white males. The truck was a railroad truck. One of the two alleged supervisors wore a yellow hard hat and one a white hard hat. The younger man had a blue shirt, short sleeves, a moustache, and a belt holster with a can of‘Skoal’ in it. Respondent indicated that it was this person who gave him permission to take ties and that it was not necessary to pay anything for the ties.
“CONCLUSIONS OF LAW
“A. The conduct of Respondent in paragraph 1 of the Statement of Facts does not fully comply with the provisions of Canon 1 of the Canons of Judicial Conduct which provide:
“ ‘A judge should participate in establishing, maintaining and enforcing, and should himself observe high standards of conduct so that the integrity and independence of the judiciary may be preserved.’
“Respondent should have verified the purported authority to give away the property of another or obtained written permission. He should have realized any permission given to take ties would reasonably not have included new railroad ties. He should have realized a delay of four (4) to six (6) months in picking up any ties authorized to be removed could easily give the appearance of being improper.
“B. Respondent’s conduct as indicated in paragraph 2 of the Statement of Facts likewise does not fully comply with the provisions of Canon 1 of the Canons of Judicial Conduct to the effect that:
“ ‘A judge should participate in establishing, maintaining and enforcing, and should himself observe high standards of conduct so that the integrity and independence of the judiciary may be preserved.’
“The sequence as outlined in the Statement of Facts indicates Respondent did not fully ‘observe high standards of conduct so that the integrity ... of the judiciary may be preserved.’ A judge has the obligation to cooperate both with law enforcement personnel in the investigation of alleged crimes or the Commission in its investigation of alleged violations of the Canons. Respondent did not fully cooperate with Mr. Montgomery during the initial investigation. He gave him a vague description of a person who was an integral part of the investigation. He did not observe the high standard of conduct required of the judiciary.
“C. The manner in which Respondent conducted himself during the investigation of the incident referred to in paragraphs 1 and 2 of the Statement of Facts does not fully comply with the requirements of Canon 2 of the Canons of Judicial Conduct to the effect that:
“ ‘A judge should avoid impropriety and the appearance of impropriety in all his activities, and that a judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.’
“A judicial officer has the obligation to at all times fully, openly and candidly cooperate in any legitimate investigation of possible illegal or improper acts by duly authorized investigators. Respondent’s conduct was not consistent with that obligation.
“For the foregoing reasons set forth previously based on the Statement of Facts set forth in paragraphs 1 and 2, Respondent has violated the provisions of Canons 1 and 2 of the Canons of Judicial Conduct as indicated.”
The Commission adopted the stipulated statement of facts and conclusions of law and recommended to the Kansas Supreme Court that the respondent be disciplined pursuant to Rule 620 (235 Kan. clxxvii) by public censure.
The respondent elected not to file exceptions to the Commission’s findings of fact, conclusions of law, and recommendations.
On September 18, 1987, respondent and his counsel appeared before this court and the matter was submitted to the court for decision.
The Commission on Judicial Qualifications found that the respondent’s conduct did not fully comply with the provisions of Canons 1 and 2 of the Rules Relating to Judicial Conduct (235 Kan. clxiii). We agree. A judge, even in his private life, is held to standards higher than others. Judges should at all times conduct themselves in a manner that promotes public confidence in the integrity and impartiality of the judiciary, so that the integrity and independence of the judiciary may be preserved. Here, the respondent has stipulated that he was in violation of those Canons.
It is therefore ordered that George G. Levans be publicly censured by this court, and that he pay the costs of this proceeding. | [
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The opinion of the court was delivered by
Miller, J.:
This is a declaratory judgment action brought by the Board of County Commissioners of Osage County against Marian M. Burns and other practicing attorneys and members of the Osage County Bar Association who regularly accept appointments to represent indigent defendants charged with mis demeanor offenses in Osage County. Two issues are involved— whether the county has a legal obligation to pay the fees of attorneys who are appointed to represent indigent defendants charged with misdemeanors and traffic infractions in the district court of Osage County, and whether the district court has authority to set attorney fees in such cases.
By way of background, the Board of County Commissioners of Osage County included in its budget for 1987 a sum of money to compensate attorneys appointed in that county to represent indigent defendants charged with misdemeanors and traffic infractions, and for legal services performed by appointed attorneys under the Kansas Code for Care of Children and the Kansas Juvenile Offenders Code. The budgeted sum was computed and based upon the rate of $30 per hour for such services.
Early in 1987, judges in Anderson and Coffey Counties entered general orders establishing compensation for the hourly fees of appointed counsel in those counties at $68 per hour. Following the entry of that order, one or more of the defendants in this case submitted claims to the Board of County Commissioners of Osage County for services rendered for indigent defendants charged with misdemeanors in that county, seeking payment at the rate of $68 per hour. On March 24, 1987, the Board of County Commissioners of Osage County commenced this declaratory judgment action, joining as defendants all of the practicing attorneys and members of the Osage County Bar who regularly accept appointments to represent indigent persons charged with misdemeanors in Osage County. The Board sought a declaratory judgment to determine whether the Board has any legal duty to pay claims submitted by Osage County attorneys for services rendered in representing indigent defendants charged with misdemeanors, and, if so, whether the Board must pay claims at the rate of $68 per hour for those claims and for attorneys appointed under the Kansas Code for Care of Children, K.S.A. 38-1501 et seq., the Kansas Juvenile Offenders Code, K.S.A. 38-1601 et seq., and other statutes, if any, providing for the payment of fees and expenses of appointed attorneys. Defendants answered, asserting numerous defenses, and filed a counterclaim seeking an order directing the Board to pay appointed counsel $68 per hour.
The trial court, in its memorandum decision, held that the Board of County Commissioners has no obligation to pay attorneys for their services in representing indigents charged, with misdemeanors, but that the Board might, if it so desires, pay for such services in an amount which the Board approves. The court further held it is authorized to fix a reasonable fee for the services of attorneys appointed in actions filed under the Code for Care of Children and the Juvenile Offenders Code, K.S.A. 38-1505(e) and K.S.A. 38-1606(c), and for attorneys appointed to represent proposed patients under the treatment act for mentally ill persons, K.S.A. 1986 Supp. 59-2901, K.S.A. 59-2934. The court, however, declined to determine what a reasonable fee for juvenile and care and treatment cases should be, leaving that to the judge sitting on each case. The defendants then perfected this appeal.
The first and primary issue is whether the county has a legal obligation to pay legal fees of attorneys who are appointed to represent indigent defendants charged with misdemeanors and traffic infractions in Osage County. In our recent opinion in the case of State ex rel. Stephan v. Smith, 242 Kan. 336, 747 P.2d 816 (1987), we examined and determined many related questions, and we will not repeat here our discussion in that case. We pointed out that indigent defendants who are charged with misdemeanors must be provided with counsel when imprisonment is a real possibility. No person may be imprisoned for any offense, whether a felony, misdemeanor, or traffic offense, unless he or she was represented by counsel or knowingly and intelligently waived counsel at trial. Argersinger v. Hamlin, 407 U.S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006 (1972), cited in State ex rel. Stephan v. Smith, 242 Kan. at 350. The responsibility to provide counsel is a public responsibility that is not to be borne entirely by the private bar.
The United States Supreme Court opinions set forth the rules requiring counsel, but the opinions do not dictate how counsel is to be provided, or how or if counsel is to be paid. Those matters are left to the states. In Kansas, indigent defendants charged with felonies have been provided with counsel since 1855. See Laws of the Territory of Kansas 1855, ch. CXXIX, art. V, § 4. Section 10 of the Bill of Rights of the Kansas Constitution provides in part that the accused shall have the right to appear and defend in person or by counsel. The assignment of counsel for indigent defendants charged with felony offenses was provided by G.S. 1868, ch. 82, § 160. As Justice Kaul observed in his opinion in State v. Young, 196 Kan. 63, 69, 410 P.2d 256 (1966), “[b]oth the legislature and this court have spoken on numerous occasions to further implement the constitutional mandate” found in Section 10 of the Bill of Rights.
The original enactments directing the appointment of counsel contained no provision for payment for counsel’s services. In the early opinion of this court in Case v. Board of County Commissioners, 4 Kan. *511 (1868), the county had refused to pay an appointed attorney for his services. The district court affirmed the decision of the Board. This court affirmed, stating, “The law makes provisions for such appointments, but not for any compensation. Whether this is the result of oversight, or design, is alike immaterial; the fact is fatal to the [attorney’s] claim.” 4 Kan. at *513. Case was specifically overruled in State ex rel. Stephan v. Smith, 242 Kan, at 361.
The first statutory authorization of payment came in 1941 with a provision that an attorney appointed to represent an indigent defendant be paid $10 per day from the county general fund. See L. 1941, ch. 291, § 1, later codified as G.S. 1949, 62-1304. That section made the appointment of counsel mandatory for any indigent defendant about to be arraigned upon an indictment or information charging any offense against the laws of this state. The statute was amended in 1953 to provide for the payment of all expenses and a fee of not over $300 for appointed counsel to represent an indigent defendant in an appeal, whenever the defendant was convicted of murder in the first degree and was sentenced to death. L. 1953, ch. 282, § 1. All of the fees so provided were to be paid from the general fund of the county. In 1963, the statute was again amended. L. 1963, ch. 305, § 1. That statute provided for the payment of a reasonable fee for trial counsel, the same to be fixed by the trial judge and paid from the county general fund. The fee for counsel on appeal remained limited to $300. In 1968, the statute was again amended and the $300 limit for fees of appellate counsel was removed. L. 1968, ch. 130, § 1.
K.S.A. 1968 Supp. 62-1304 was repealed in 1969 by L. 1969, ch. 291, § 16. That act created the board of supervisors of panels to aid indigent defendants, the forerunner of our present indigent defense services act, K.S.A. 22-4501 et seq. The 1969 statute, like the present act, provided for payments to attorneys to represent indigent defendants charged with or convicted of felony offenses only. No provision is made in either act for the payment of counsel for indigent defendants charged with misdemeanors. While both acts provide for the creation of a list of attorneys “to represent indigent persons accused of crimes,” both acts provide only for the payment out of state funds of attorneys appointed to represent defendants charged with felonies. See L. 1969, ch. 291, §§ 3 and 7, and K.S.A. 1986 Supp. 22-4503, -4507. The State Board of Indigents’ Defense Services, created in 1982 (see K.S.A. 1986 Supp. 22-4519) has adopted extensive regulations, one of which, K.A.R. 105-l-l(b), reads in part:
“Legal representation at state expense shall not be provided in the following types of cases:
“(3) services on behalf of a defendant charged with a misdemeanor or a defendant appealing a misdemeanor conviction.”
Thus, the State has assumed responsibility to pay attorneys appointed to represent indigent defendants accused of felonies, but has not assumed the burden of paying attorneys appointed in misdemeanor cases.
The United States Supreme Court has determined that certain persons are entitled to counsel; as we noted earlier, these include persons accused of misdemeanors when imprisonment is a genuine possibility. The responsibility of providing counsel is, as we held in Smith, that of the State or the public; it not a responsibility to be shouldered entirely by the private bar. As we concluded in Smith, the State has the obligation to furnish counsel and “to pay appointed counsel such sums as will fairly compensate the attorney, not at the top rate an attorney might charge, but at a rate which is not confiscatory, considering overhead and expenses. The basis of the amount to be paid for services must not vary with each judge, but there must be a statewide basis or scale.” State ex rel. Stephan v. Smith, 242 Kan. at 383. The State may provide a plan for furnishing all counsel for indigent defendants in criminal cases, or it may divide the responsibility with the counties.
The Board of County Commissioners of each county is responsible by law for all expenses incurred for the operation of the district court in the county except those expenses required by law to be paid by the state. K.S.A. 20-348. The legislature has provided for the payment of counsel for the indigent in felony cases but not in misdemeanor cases and, thus, that expense falls upon the counties. The entire expense of the court system, except the salary of judges and court reporters, was traditionally borne by the counties. The legislature has in recent years enacted laws requiring that the State shoulder more of that expense, including payment of most if not all salaries of court personnel, but it has not provided for the payment of the fees with which we are now concerned. We conclude that the county has a legal obligation to provide counsel for indigent defendants who are charged with misdemeanor offenses when imprisonment is a real possibility and to pay fees to such appointed counsel.
The county must have a system in place. It may contract for the services of attorneys; it may continue to budget funds for payment of counsel fees, in cooperation with the administrative judge, based upon the anticipated number of appointments and expected time required; or it may resolve the problem in other ways. But the responsibility for providing counsel for indigents charged with misdemeanors has been left by the legislature to the county, and the obligation is thus that of the county.
The final issue is whether the judges of the district court have authority to fix attorney fees in such cases. Traditionally, the judges have fixed or approved the fees of attorneys engaged in many types of court proceedings such as in the administration of estates or in partition actions, and in the juvenile and care and treatment cases mentioned by the trial judge. Payment of fees for attorneys appointed to represent persons charged with felonies is conditioned upon the approval by the appropriate judge of the amount claimed. See K.S.A. 1986 Supp. 22-4507(b) and K.A.R. 105-5-1. Heretofore, the county has paid the fees of attorneys appointed to represent indigents charged with misdemeanors. The fee has been based upon the scale adopted by the State Board of Indigents’ Defense Services. We hold that the county is not required to pay more than the hourly rate fixed for attorneys representing indigents in felony cases for attorneys representing indigents in misdemeanor cases. The scale for such payment should be resolved by the administrative judge, in cooperation with the Board of County Commissioners, as a part of the budget process mandated by K.S.A. 20-349. The rate of compensation so fixed should apply to all appointments of counsel for indigent misdemeanor defendants within the county. The rate should fairly compensate the attorney, not at the top rate an attorney might charge, but at a rate which is not confiscatory, considering the attorney’s overhead and expenses. The hourly rate fixed by the state for felony representation, to be determined under the same guidelines, could well establish the rate for misdemeanor representation.
Until the next fiscal year, the county must continue to pay fees of attorneys appointed to represent indigent defendants charged with misdemeanors in the county at the rate or rates fixed by the State Board of Indigents’ Defense Services.
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The opinion of the court was delivered by
Herd, J:
This is an action for retaliatory discharge in which Leigh Palmer appeals the district court’s order of dismissal for failure to state a claim upon which relief may be granted.
For the purpose of this appeal we accept the facts as stated by Palmer. Palmer is an experienced medical technician who was working in a medical laboratory in 1986 when Gary Coulter, executive vice-president of Associates in Family Care, P.A., (AFC) recruited her to administer AFC’s in-house laboratory. Coulter told Palmer AFC wanted someone with her assertive nature who would not be easily manipulated by the AFC doctors. At the time she was hired, AFC had a policy of a 90-day probationary period for new employees. Palmer had no written employment contract, individual or union, with the AFC.
During Palmer’s probationary period, she discovered at least one of the physicians was billing Medicaid for lab work which had not been performed. The appellees knew she possessed this knowledge.
Around the first of December, with her probationary period almost over, Coulter told Palmer her probation was being extended. He explained that, although AFC was pleased with the technical quality of her work, her overall performance would be reevaluated on or before January 16, 1987.
Following her discussion with Coulter, Palmer made changes in her operating procedures, attempting to please her employer, although she felt any criticism AFC had of her work was either totally unfounded or based on her adhering to Coulter’s instructions to her when she was first hired. She then asked each of the member physicians if he was pleased with her work. They all said her performance was excellent.
Toward the end of December, Dr. Gary Morsch, a member of AFC, began insisting Palmer have lunch with him. When she finally accepted, he took the occasion to interrogate her about her knowledge of AFC’s billing practices and to obtain her assurance she would keep the information secret. When she refused to assure him she would not report the practices to the appropriate authorities, he told her she could not be trusted and warned her if she were to say anything to anyone she would not be given permanent status with AFC.
About a week later, Palmer proceeded to transmit information to unspecified authorities which she said supported her suspi cions of Medicaid fraud. She was later informed, a week before the end of her new probationary period, that she was fired because her job performance had seriously deteriorated in the last two weeks. She claims her job performance had not deteriorated and that she was fired in retaliation for “whistle-blowing.” She does not, however, specifically allege AFC had knowledge she had reported the alleged fraud.
Palmer brought suit against AFC and the individual physicians based on the above facts. The appellees filed no answer and did not respond to discovery; instead, they moved to dismiss the suit on the ground Kansas does not recognize an exception to the employment-at-will doctrine except for retaliatory discharge for filing a workers’ compensation claim.
At the hearing on the motion, Palmer argued the defendants had not addressed her “separate fraud and detrimental reliance” claims. However, the court held the motion to dismiss was based squarely on the pleadings and sustained the motion, holding Palmer had not stated a cause of action.
The first issue is whether discharge of a probationary employee in retaliation for the reporting of employer fraud or infraction of the law is a tort. A motion to dismiss for failure of the plaintiff to state a claim upon which relief can be granted, K.S.A. 60-212(b)(6), must be denied unless the allegations in the petition, viewed in the most favorable light to the plaintiff, clearly demonstrate the plaintiff is not entitled to relief under any set of facts which could be proved in support of the claim. Keith v. Schiefen-Stockham Insurance Agency, Inc., 209 Kan. 537, 540, 498 P.2d 265 (1972),
We must, therefore, for purposes of review, assume Palmer was fired for reporting the illegal actions of her employers. Appellees disagree, arguing Palmer did not actually claim in her petition that they were aware she had notified state authorities. However, her allegation the termination took place “with the intent of punishing [her] for . . . reporting the unethical and illegal billing practices of AFC” is sufficient, under the applicable standard of review, to constitute such a claim.
The appellees have attached as an appendix to their brief a letter from the Surveillance and Utilization Review Section of the State Department of Social and Rehabilitation Services. The letter was not written until a week after the district court’s decision. It is not a part of the record in this case. Thus, it is not considered in this appeal.
Kansas has long held that, in the absence of an express or implied contract between an employee and employer regarding the duration of employment, either party is free to end the employment at any time for any reason. Johnston v. Farmers Alliance Mutual Ins. Co., 218 Kan. 543, 546, 545 P.2d 312 (1976). This rule has many exceptions.
Public employees are constitutionally protected against wrongful discharge because such discharge involves state action. See Wertz v. Southern Cloud Unified School District, 218 Kan. 25, 29-31, 542 P.2d 339 (1975). Kansas public employees are specifically protected in their right to report violations of state or federal law to any person or agency under K.S.A. 75-2973(b)(l). An estimated 82% of all collective bargaining agreements contain “just cause” provisions which protect workers against wrongful discharge. See Note, A Common Law Action for the Abusively Discharged Employee, 26 Hastings L.J. 1435, 1448 (1975).
All at-will employees are statutorily protected from retaliatory discharge for reporting certain types of abuses. No employee may be fired for reporting child abuse, K.S.A. 38-1525; for reporting abuse of certain adults in need of care, K.S.A. 39-1403(b), 39-1423(b); for testifying before the secretary of human resources, K.S.A. 44-615; or for reporting unsafe or unlawful working conditions to the secretary of human resources, K.S.A. 44-636(f). K.S.A. 44-831 states an employee has a cause of action against any employer who violates the state’s “right to work” amendment, Kan. Const, art. 15, § 12, by conditioning employment on membership or nonmembership in a union. K.S.A. 44-1009(a)(l) prohibits any employer of four or more persons from firing an employee because of race, religion, color, sex, physical handicap, national origin or ancestry.
Appellees argue the statutory exceptions to the right to terminate an employee at will are exclusive since it is generally the province of the legislature to declare public policy. Noel v. Menninger Foundation, 175 Kan. 751, 267 P.2d 934 (1954). The legislature has nevertheless provided that“[t]he common law as modified by constitutional and statutory law, judicial decisions, and the conditions and wants of the people, shall remain in force in aid of the General Statutes of this state.” K.S.A. 77-109. Before courts are justified in declaring the existence of public policy, however, “it should be so thoroughly established as a state of public mind so united and so definite and fixed that its existence is not subject to any substantial doubt.” 175 Kan. 751, Syl. ¶ 4.
The Court of Appeals accepted its obligation to declare public policy in Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981), where the plaintiff alleged he was fired for refusing to withdraw his workers’ compensation claim. A special panel of the Court of Appeals recognized a cause of action in tort, based on public policy, for wrongful discharge in retaliation for the filing of a workers’ compensation claim. Noting that the Workers’ Compensation Act is the exclusive remedy afforded an injured employee, the court held the Act’s purpose in protecting employees could not be subverted by refuge in the employment-at-will doctrine.
In Morton Bldgs., Inc. v. Department of Human Resources, 10 Kan. App. 2d 197, 695 P.2d 450, rev. denied 237 Kan. 887 (1985), the Court of Appeals, in dicta, indicated Murphy is limited to actions in which the employee was discharged for filing a workers’ compensation claim. Appellees urge we adopt this interpretation. Butin Morriss v. Coleman Co., 241 Kan. 501, 510, 738 P.2d 841 (1987), we indicated, in dicta, that Murphy was not limited to discharge for filing a workers’ compensation claim. We held employees discharged because of a supervisor’s disapproval of their private activities stated a valid claim under an implied contract theory, but noted, “Murphy is important because it opened the way to judicial recognition of a variety of public policy considerations which could support actions for tortious retaliatory discharges.” 241 Kan. at 511.
In Anco Constr. Co. v. Freeman, 236 Kan. 626, 693 P.2d 1183 (1985), we did not state the holding in Murphy was so narrow it was confined to retaliatory discharge for the filing of a workers’ compensation claim. We did state, however, that Murphy “applies only to interests protected by state law,” in holding the claim of an employee who was fired for protesting the wage scale at his construction job was covered by the National Labor Relations Board rather than state tort law.
In Kistler v. Life Care Centers of America, Inc., 620 F. Supp. 1268, 1269 (D. Kan. 1985), the United States District Court held a plaintiff had stated a cause of action for retaliatory discharge against public policy because she was fired for testifying against her employer at a state unemployment compensation hearing. The court held Murphy, although a limited public policy exception, was not confined only to discharge in retaliation for filing worker compensation claims, citing Viestenz v. Fleming Companies, Inc., 681 F.2d 699 (10th Cir.), cert. denied 459 U.S. 972 (1982). The Kistler court, however, had more legislative guidance on state public policy than we do in the present case, because K.S.A. 44-615 specifically provides it is unlawful for an employer to fire an employee because of the employee’s testimony before the secretary of human resources.
In Cain v. Kansas Corporation Commission, 9 Kan. App. 2d 100, 673 P.2d 451 (1983), rev. denied 235 Kan. 1041 (1984), the Court of Appeals found the plaintiff did not state a valid tort claim for retaliatory discharge for outspoken advocacy for consumers, but acknowledged Murphy had created a new tort for employment terminations which seriously contravened well-established public policy. Other Kansas appellate decisions have acknowledged, in dicta, that a public policy exception to the employment-at-will doctrine is now recognized. See Anco Constr. Co. v. Freeman, 236 Kan. 626; Allegri v. Providence-St. Margaret Health Center, 9 Kan. App. 2d 659, 664, 684 P.2d 1031 (1984).
Appellees argue Murphy should be limited to circumstances where an employee attempts to enforce a right directly related to him. They point out Palmer’s interest was not a personal one. They also make the argument that it would be impossible to figure damages for the termination of an at-will employee, for even if we hold Palmer could not be fired in contravention of public policy as an exception to the employment-at-will doctrine, she could have been fired for another cause at any time. Finally, appellee argues Palmer was not asked to do anything illegal or unethical in the performance of her work.
The other argument is that Palmer would have been forced to commit a crime if she failed to report the fraud. Let us examine the public policy involved in the implementation of the Medicaid program.
The federal Medicaid program makes funds available for the medical needs of the poor in participating states. 42 U.S.C. § 1392 (1982). To qualify for funds, a state’s medical assistance plan must be approved by the Secretary of Health and Human Services and operated in accordance with federal standards. 42 U.S.C. § 1396a and c (1982); see Country Club Home, Inc. v. Harder, 228 Kan. 756, Syl. ¶ 5, 620 P.2d 1140 (1980), modified 228 Kan. 802, 623 P.2d 505 (1981). The Kansas Secretary of Social and Rehabilitation Services is responsible for administering the state’s medical assistance program in cooperation with the federal government. K.S.A. 39-708c(a) and (s); K.S.A. 39-701; see State ex rel. Stephan v. Harder, 230 Kan. 573, 576, 641 P.2d 366 (1982).
Medicaid fraud is a felony under both state and federal law. K.S.A. 21-3904 (presenting a false claim); 42 U.S.C. § 1396h(a) (1982). Health care providers committing Medicaid fraud may be barred from participation in the program, 42 U.S.C. § 1320a-7(b) (1985 Supp.); K.A.R. 30-5-60(a)(12), (13), and (15), and are subject to civil penalties under federal law. 42 U.S.C. § 1320a-7a(a) (1982). Medicaid fraud is sometimes detected through the Department of Social Rehabilitation Service’s toll-free “Fraud Hotline,” which citizens may call to report fraudulent use of federal programs.
It has long been recognized as public policy to encourage citizens to report crimes. See In re Quarles and Butler, 158 U.S. 532, 535-36 (1895). The Tenth Circuit has stated “[i]t is public policy . . . everywhere to encourage the disclosure of criminal activity.” Lachman v. Sperry-Sun Well Surveying Company, 457 F.2d 850, 853 (10th Cir. 1972). The Kansas Legislature’s provision for an “informer’s privilege,” K.S.A. 60-436, is “based upon sound public policy to encourage those who have knowledge of crime to come forward and give information to law enforcement officers without fear of disclosure.” State v. Cohen, 229 Kan. 65, 69, 622 P.2d 1002 (1981).
Corruptly influencing a witness by attempting to deter the witness from giving evidence is a felony. K.S.A. 21-3806. We held in State v. Reed, 213 Kan. 557, 559, 516 P.2d 913 (1973), that “a person who has knowledge of facts out of which a criminal prosecution might arise is a ‘witness’ within the meaning of the statute.” (Emphasis added.) The statute is thus sufficiently broad to encompass Dr. Morsch’s alleged attempt to coerce Palmer to remain silent about her knowledge of Medicaid fraud at AFC.
Several jurisdictions have provided common-law “whistle-blower” protection for employees discharged for reporting illegal activity. See, e.g., Vermillion v. AAA Pro Moving & Storage, 146 Ariz. 215, 704 P.2d 1360 (1985) (employee told customer of employer theft of customer’s property); Palmateer v. International Harvester Co., 85 Ill. 2d 124, 421 N.E.2d 876 (1981) (employee reported to police theft of screwdriver by co-employee); Kalman v. Grand Union Co., 183 N.J. Super. 153, 443 A.2d 728 (1982) (pharmacist reported to State Board of Pharmacy employer’s plan to violate state pharmacy rules); Garibaldi v. Lucky Food Stores, Inc., 726 F.2d 1367 (9th Cir. 1984) (employee reported to California health officials shipment of adulterated milk); Shaw v. Russell Trucking Line, Inc., 542 F. Supp. 776 (W.D. Pa. 1982) (employee notified police that employer’s trucks were overloaded in violation of state law).
Public policy requires that citizens in a democracy be protected from reprisals for performing their civil duty of reporting infractions of rules, regulations, or the law pertaining to public health, safety, and the general welfare. Thus, we have no hesitation in holding termination of an employee in retaliation for the good faith reporting of a serious infraction of such rules, regulations, or the law by a co-worker or an employer to either company management or law enforcement officials (whistle-blowing) is an actionable tort. To maintain such action, an employee has the burden of proving by clear and convincing evidence, under the facts of the case, a reasonably prudent person would have concluded the employee’s co-worker or employer was engaged in activities in violation of rules, regulations, or the law pertaining to public health, safety, and the general welfare; the employer had knowledge of the employee’s reporting of such violation prior to discharge of the employee; and the employee was discharged in retaliation for making the report. However, the whistle-blowing must have been done out of a good faith concern over the wrongful activity reported rather than from a corrupt motive such as malice, spite, jealousy or personal gain.
The second issue in this appeal is whether Palmer’s petition stated viable causes of action for fraud and detrimental reliance. Palmer alleged Coulter stated the group wanted an employee who would not be “easily manipulated by the individual doctors.” Coulter also told her she would have “very limited responsibility for patient care and would be primarily responsible for management and bringing the lab up to certification standards.” In a separate paragraph of her petition, Palmer then stated:
“4. Based upon the inducements and representations of Mr. Coulter and the defendants, which inducements and representations were known or should have been known to be false, the plaintiff left her job with the independent medical lab and began work at AFC on August 18, 1987.”
Later in the petition, Palmer alleged she was fired for “performing her job as was represented she should when hired.”
Neither appellant’s petition nor brief state what fraudulent inducements appellant refers to. There is no indication Palmer was given different responsibilities than represented for patient care and laboratory management. It could be implied from later events that it was falsely represented to her that she was expected to be a person who would not be easily manipulated. It is not, however, explained how the representation induced her to take the job. Circumstances alleged to constitute fraud must be stated with particularity in the petition. K.S.A. 60-209(b); Price v. Grimes, 234 Kan. 898, 903, 677 P.2d 969 (1984).
We hold appellant’s petition does not allege fraud with sufficient particularity to support her claims of fraud and detrimental reliance.
The judgment of the trial court is reversed on the issue of retaliatory discharge and affirmed on the claims of fraud and detrimental reliance. This case is remanded for further proceedings consistent with this opinion. | [
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Per Curiam:
This is an appeal by the parents of K.J. and A.J. from an order of the Finney District Court terminating their parental rights. The original petition was filed pursuant to the Code for Care of Children, K.S.A. 38-1501 et seq., and both parents were found to be unfit after a hearing before the district magistrate judge. The decision of the district magistrate judge terminating the parental rights of the appellants was affirmed by the district judge based upon the record of the hearing before the district magistrate judge. The Court of Appeals, in a unanimous opinion by Judge Parks, reversed and remanded. In re K.J., 12 Kan. App. 2d 188, 737 P.2d 874 (1987). We granted the petition for review and, after a careful review of the issue raised, adopt the opinion of the Court of Appeals, and, by so doing, affirm that court and reverse the district court.
The appellants raised a number of issues in their appeal to the Court of Appeals. However, the Court of Appeals found it necessary to decide only appellants’ initial contention that they were entitled to a trial de novo on appeal to the district judge.
The appellants argue that this appeal is controlled by K.S.A. 38-1591(b), which provides: “An appeal from an order entered by a district magistrate judge shall be to a district judge. The appeal shall be heard de novo within 30 days from the date the notice of appeal is filed.” Therefore, the district court erred in determining the case on the record of the proceedings before the district magistrate judge.
The appellees argue that K.S.A. 1986 Supp. 20-302b is controlling and, therefore, a determination on the record by the district judge was proper. K.S.A. 1986 Supp. 20-302b(c) provides:
“In accordance with the limitations and procedures prescribed by law, and subject to any rules of the supreme court relating thereto, any appeal permitted to be taken from an order or final decision of a district magistrate judge shall be tried and determined de novo by a district judge, except that in civil cases where a record was made of the action or proceeding before the district magistrate judge, the appeal shall be tried and determined on the record by a district judge.”
The Court of Appeals determined that, historically, a trial de novo appeal to a district judge meant that the case was tried as if it were originally filed for trial before the district judge and had not been previously tried in a lower court. Black defines a trial de novo as “[a] new trial or retrial had in an appellate court in which the whole case is gone into as if no trial whatever had been had in the court below.” Black’s Law Dictionary 1677 (4th ed. rev. 1968). See Reddington v. Rank, 176 Kan. 484, 271 P.2d 807 (1954).
The Court of Appeals correctly held that, in an appeal from the decision of a district magistrate judge in a proceeding filed pursuant to the Code for Care of Children, K.S.A. 38-1501 et seq., the district judge must hear the case as if it were originally filed for trial before the district judge. For the reasons stated by the Court of Appeals in its opinion, we conclude that the trial court’s determination of this case based on the record of the trial before the district magistrate judge was prejudicial error.
The judgment of the Court of Appeals is affirmed, the judgment of the district court is reversed, and the case is remanded for trial. | [
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This original action in discipline results from several complaints filed by the office of the Disciplinary Administrator against Lonnie A. Hamilton, of Olathe, an attorney admitted to the practice of law in Kansas. The Kansas Board for Discipline of Attorneys (Board), following hearings, recommended that the respondent be disbarred. We concur in that recommendation. The various complaints will be separately discussed.
No. B4092
In Count I of this complaint, the hearing panel of the Board found that respondent was retained by Thomas Claus in regard to personal injuries he received in an automobile accident. Without informing his client, and without his consent, the respondent settled his client’s claim for $3,929.50, signed the client’s name on a release and insurance company draft, converted the entire sum to his own use, and abandoned his client. The panel found numerous violations of the Code of Professional Responsibility, Rule 225 (1987 Kan. Ct. R. Annot. 122 et seq.), including DR 1-102(A)(3), (4), (5), and (6); DR 7-101(A)(3); and DR 9-102(B)(l), (3), and (4). The panel also found that respondent failed to cooperate with the Disciplinary Administrator in violation of Rule 207 (1987 Kan. Ct. R. Annot. 105).
In Count II, respondent had been retained to represent Darryl A. Danner in the appeal of a criminal conviction. Mr. Danner paid respondent $1,255.00 to cover the filing fee and an advance payment on the trial transcript of $1,200.00 for the court reporter. Respondent converted the entire $1,255.00 to his own use. The panel found violations of DR 1-102(A)(4) and (6).
No. B4049
William R. Colies retained respondent in a child support and visitation dispute. Colles paid respondent a retainer of $250.00 and respondent failed to furnish the legal services agreed upon. Respondent kept the entire retainer. The panel found respondent had neglected a legal matter entrusted to him in violation of DR 6-101(A)(3) and that he also violated DR 1-102(A)(6) and Rule 207.
No. W3969
In this case the panel found that respondent wrote three rent checks in the amounts of $1,276.00, $1,138.00 and $1,144.00, which were returned marked “insufficient funds.” The checks never have been made good and the panel found violations of DR 1-102(A)(4) and (6).
No. B4047
Respondent, in connection with a business partnership, issued insufficient fund checks to “MHM” Corporation in amounts of $2,000.00, $1,500.00, and $1,000.00, which were never made good. Again the panel found violations of DR 1-102(A)(4) and (6).
No. B4036
Chris Ann Tate retained respondent to represent her in a divorce action. Mrs. Tate paid respondent $300.00 plus $55.00 court costs. Respondent converted the $55.00 to his own use, failed to file the divorce action, kept the $300.00 retainer, and failed to account to his client or perform any of the agreed legal services. The panel found violations of DR 6-101(A)(3) and DR 1-102(A)(4) and (6).
A review of the record reveals that all of the findings of the panel are supported by clear and convincing evidence and we agree with the Board’s recommendation that respondent be disbarred.
It Is Therefore Ordered that Lonnie A. Hamilton be and he is hereby disbarred from the practice of law in the State of Kansas and the Clerk of the Appellate Courts is directed to strike the name of Lonnie A. Hamilton from the rolls of attorneys in Kansas.
It Is Further Ordered that Lonnie A. Hamilton shall comply forthwith with the provisions of Rule 218 (1987 Kan. Ct. R. Annot. 116).
It Is Further Ordered that the costs of this action be assessed to Lonnie A. Hamilton.
Effective this 29th day of April, 1988. | [
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The opinion of the court was delivered by
Allegrucci, J.:
The plaintiffs, Bill Duckworth and Chemold Systems, Inc., filed the present action seeking declaratory relief against the City of Kansas City, Kansas. The plaintiffs’ petition alleged that development loans authorized by the City of Kansas City were illegal and unconstitutional. The plaintiffs appeal the order of the district court granting the City’s motion for dismissal.
For the purpose of this appeal, the facts as stated in the plaintiffs’ petition are accepted as true. In 1986, the plaintiffs remodeled property located at 846 State Avenue in Kansas City, Kansas, at a cost of $600,000. The plaintiffs financed their improvements of the property by obtaining private financing at 12% interest. On April 28, 1987, the plaintiffs applied for $150,000 in municipal community development funds from the City in order to make their property barrier-free for the purpose of hiring handicapped persons. The plaintiffs were informed on June 5, 1987, that their request would not be approved. The City did not assign any reason for its refusal other than a statement that other projects had priority.
The plaintiffs’ petition also contends that, at approximately the same time, the City had decided to approve a loan of $2,000,000 to Robert G. Cotitta to remodel a building in downtown Kansas City. The petition states that the loan to Cotitta provided for 8% interest and deferred any substantial payments upon the loan for the first five years. Cotitta is a “bad credit risk” according to the plaintiffs’ petition, which alleges that Cotitta had defaulted on a prior $200,000 loan from the City. The plaintiffs’ petition also challenges the City’s issuance of grants and loans of approximately $250,000 to the Granada Theatre in downtown Kansas City, Kansas. The plaintiffs allege that the recipients of these development funds from the City “will have a competitive advantage over the plaintiffs” because they will be able to rent their facilities “for less than the plaintiffs because of the lower interest rate and deferred payments agreed to by the City.” The plaintiffs contend that the issuance of the loans by the City was made without appropriate standards and is unjust, discriminatory, and unconstitutional. In addition, plaintiffs contend that the method by which the loans were budgeted violates K.S.A. 79-2927 and K.S.A. 79-2934.
The plaintiffs first challenge the constitutionality of the municipal development loans by the City both on due process and equal protection grounds. A review of our decisions relating to the constitutional authority of governmental agencies to issue economic assistance requires us to reject plaintiffs’ contention. In Ullrich v. Board of Thomas County Comm’rs, 234 Kan. 782, 676 P.2d 127 (1984), this court recognized that, as a general rule, the state legislature may appropriate public money for private individuals so long as the appropriation promotes the public welfare. In Ullrich, this court stressed that the wisdom of a particular public policy could not be decided by the courts, but must be resolved by the legislature.
“What is for the public good or what are public purposes for which appropriations may be made are questions which the legislature must in the first instance decide. In determining those questions, a state legislature is vested with a broad discretion, which cannot be controlled by the courts, except when its action is clearly evasive or violative of a constitutional provision. It has been said that a strict formula to determine public purposes for all times cannot be formulated, since the concept expands with the population, economy, scientific knowledge, and changing conditions. As people are brought closer together in congested areas, the public welfare requires governmental operation of facilities which were once considered exclusively private enterprises, and necessitates the expenditure of tax funds for purposes which were not classified as public. What is a public purpose for which public funds may be expended is not a matter of exact definition, and the line of demarcation is not immutable or incapable of adjustment to changing social and economic conditions that are properly of public and governmental concern.” 234 Kan. at 789.
Although the issue in Ullrich was the constitutionality of transferring assets from the county hospital to a private nonprofit hospital, the rationale for our decision is applicable to the present case:
“The question then is presented whether the transfer of county assets to the Thomas County hospital in this case was for a public purpose. We agree with the trial court that the operation of the hospital by TCHA in this case is for a public purpose. We think it obvious that promoting the public health is within the power of the legislature, and that hospitals promote the public health. If private enterprise can be used to eradicate urban blight or if cities can issue industrial revenue bonds to promote private industry, it should reasonably follow that private enterprise may be used in an attempt to promote the health of the citizens of Thomas County.” 234 Kan. at 790.
In State, ex rel., v. City of Pittsburg, 188 Kan. 612, 364 P.2d 71 (1961), and State ex rel. Tomasic v. City of Kansas City, 237 Kan. 572, 701 P.2d 1314 (1985), this court upheld the constitutionality of governmental assistance of private economic development for the purpose of promoting the overall economic welfare of the general public. Although both cases involve the grants of industrial revenue bonds rather than the issuance of loans by a city, the analysis for constitutional purposes is identical.
In State, ex rel., v. City of Pittsburg, this court upheld the constitutionality of the issuance of revenue bonds, stressing the limited ability of the courts to review the wisdom of a particular legislative enactment as long as the enactment was designed to serve a public purpose. We said:
“From a purely legal standpoint, the rule in this state, as elsewhere, is that courts are concerned only with the power to enact statutes and cannot concern themselves with the wisdom of legislative acts. Courts neither approve nor condemn legislative policy, and their sole function is to determine the validity of a challenged act when measured by applicable constitutional provisions. [Citations omitted.] For the removal of unwise laws from the statute books, appeal lies not to the courts but to the ballot and to the processes of democratic government.” 188 Kan. at 623.
We adopted the same view later in State ex rel. Tomasic v. City of Kansas City. As long as a governmental action is designed to fulfill a public purpose, the wisdom of the governmental action generally is not subject to review by the courts. We said:
“As a general rule of constitutional law, courts have been reluctant to rule on public policy matters since these involve legislative deliberation and judgment. This court stated in Gunkle v. Killingsworth, 118 Kan. 154, 157, 233 Pac. 803 (1925), ‘[w]ithin the scope of legislative power, the legislature itself is the judge of what exemptions are in the public interest and will conduce to the public welfare.’ Therefore, in determining whether K.S.A. 79-201a Second was designed to promote the public welfare, we must follow a policy of judicial restraint unless we find the judgment of the legislature was ‘entirely devoid of a rational basis.’ State, ex rel., v. Board of Regents, 167 Kan. [587, 207 P.2d 373 (1949)] at 596.” 237 Kan. at 579.
The standards for review of the constitutionality of the challenged governmental actions in the context of the equal protection clause is also directed at the existence of a rational basis for the governmental actions. In Manhattan Buildings, Inc. v. Hurley, 231 Kan. 20, 643 P.2d 87 (1982), the court reviewed the rules relating to such cases.
“ ‘Our next concern is whether the statute offends the equal protection clause. When considering this question we must first determine the proper test. Traditionally, the yardstick for measuring equal protection arguments has been the “reasonable basis” test. The standard was set forth in McGowan v. Maryland, 366 U.S. 420, 425-26, 6 L. Ed. 2d 393, 81 S. Ct. 1101:
“ ‘ “. . . The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. . . .”
“ ‘In Dandridge v. Williams, 397 U.S. 471, 25 L. Ed. 2d 491, 90 S. Ct. 1153, reh. denied 398 U.S. 914, 26 L. Ed. 2d 80, 90 S. Ct. 1684, it was stated:
“ ‘ . . If the classification has some‘reasonable basis,’it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78. . . .” (p. 485.)’ ” 231 Kan. at 30 (quoting State ex rel. Schneider v. Liggett, 223 Kan. 610, 614-16, 576 P.2d 221 [1978]).
The same rule was announced in Clark v. Walker, 225 Kan. 359, 590 P.2d 1043 (1979). We said:
“In our examination of a challenged statute, we are obliged to presume that the statute is constitutional; it is the duty of the person attacking the statute to overcome that presumption. Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (1974); Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 408 P.2d 877 (1965). Our consideration of the constitutionality of the statute requires us to apply the ‘minimum rationality’ or ‘reasonable basis’ test. State ex rel. Schneider v. Liggett, 223 Kan. 610, 576 P.2d 221 (1978); Henry v. Bauder; Tri-State Hotel Co. v. Londerholm. See also Dandridge v. Williams, 397 U.S. 471, 25 L. Ed. 2d 491, 90 S. Ct. 1153, reh. denied 398 U.S. 914 (1970). Under that test, a statute is ‘rationally related’ to an objective if the statute produces effects that advance, rather than retard or have no bearing on, the attainment of the objective. So long as the regulation is positively related to a conceivable legitimate purpose, it passes scrutiny; it is for the legislature, not the courts, to balance the advantages and disadvantages.” 225 Kan. at 366.
There is nothing in the record to contradict the City’s statement of its purpose in issuing its initial loan to the Granada Theatre. The City’s resolution approving the issuance of the loan stated that its purpose was to
“augment the redevelopment activities of the downtown area and insure further economic development and revitalization of the Central Business District in the battle against slum and blight by upgrading the appearance of the neighborhood and further this project will unify the efforts of many different groups all striving for the overall goal of downtown redevelopment.”
The district court found that the loans were designed to serve a valid and legitimate public service, stating:
“Plaintiffs do not allege and I cannot contemplate the existence of facts to support a finding that the city council’s judgment was entirely devoid of a rational judgment. It is common public knowledge that the downtown Kansas City, Kansas business area has steadily deteriorated over the past years, notwithstanding the fact that almost all governmental buildings and affairs remain and are conducted in the downtown area. It is also common knowledge that the city has expended considerable effort and public funds over the past several years to revitalize the downtown business area because it is the gateway to Kansas City, Kansas. Plaintiffs might be inclined to argue that such past actions have met with little success. They could conceivably present evidence that the council’s present actions will not achieve the stated goal. Any such argument or evidence, however, is not relevant to the issue before the court — that being whether public funds are being used for a legitimate public purpose. As the elected officials and governing body of Kansas City, Kansas, the city council has the right to determine in the first instance how to achieve the goal of revitalization of the downtown area. It is not for this court to second-guess the council in deciding whether their actions will be successful.”
We agree. The need for redevelopment efforts in the central city area of major urban centers is an important public concern, the legitimacy of which cannot be reasonably questioned. In addition, the plaintiffs have failed, in the present case, to present any support for the view that the issuance of the municipal development loans was arbitrary and wholly without any rational relationship to the purpose which the City sought to achieve. The plaintiffs may take issue with the wisdom of granting the municipal development loans to individuals other than themselves, but the courts are not the proper forum for reviewing the City’s wisdom in issuing those loans.
Plaintiffs argue in their brief to this court that defendant City has conceded the arbitrary nature of the loans in question. The argument the plaintiffs make is essentially that the City, by accepting the truthfulness of the factual allegations contained in the petition for the purposes of consideration of the motion to dismiss, also admitted to those portions of the petition characterizing the issuance of the loans as arbitrary, discriminatory, and without standards. Although the consideration of a motion to dismiss requires accepting the factual allegations contained in a petition as true, there is nothing which requires a court to treat the legal conclusions contained within the petition as also being true. The petition’s allegations that the loans were arbitrary, discriminatory, and without standards were not facts, but legal conclusions, the truth of which the City has not admitted but has continued to vigorously deny. Plaintiffs also argue that the issuance of the loans was accomplished without appropriate standards. All of the authority cited by the plaintiffs for this argument relates to cases involving the delegation of power from a legislative body to a subordinate entity. As the district court noted, there is no authority supporting the proposition that a legislative body (whether the state legislature or, as here, a city council acting under the Home Rule Amendment) is required to comply with standards under which it will pass legislation.
The plaintiffs next contend that the loans violated K.S.A. 79-2927 et seq. These statutes require budgets to be balanced. K.S.A. 79-2935 provides that it is unlawful for a governing body to incur a debt, and any indebtedness “incurred” shall be void. The City, in the instant case, did not incur a debt. We note plaintiffs complain that the district court did not address this issue. The district court’s failure becomes understandable upon a reading of the petition. Halfway through paragraph numbered 12 of the thirteen-page petition is the following: “Said expenditure was not only discriminatory and made by ordinance without standards but was an unbudgeted item and unlawful under the provisions of K.S.A. 79-[2927] etseq. Such expenditure was from a fund maintained by the defendant City for each Councilman.” The petition, and more specifically the quoted sentence, does not state a cause of action based upon a violation of K.S.A. 79-2927 et seq.
Finally, the defendant contends that the plaintiffs are es-topped from asserting their claim of unconstitutionality of the legislation authorizing the granting of municipal development loans. The City argues that the plaintiffs’ action in attempting to obtain loans for the renovation of their own property estops them from arguing the unconstitutionality of the granting of municipal development loans to other individuals. Because of our determination that the municipal development loans are constitutional, it is not necessary to address this issue.
The judgment of the district court is affirmed. | [
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