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The opinion of the court was delivered by
Holmes, J.:
This is an appeal by the State of Kansas, pursuant to K.S.A. 1987 Supp. 22-3602(b)(l), from an order of the district court dismissing a criminal complaint on the grounds the prosecution was not commenced within the period of the statute of limitations. K.S.A. 1987 Supp. 21-3106(3) and (6).
The facts are not in dispute. In its complaint the State alleged that on or about July 20, 1984, Aaron Nicholson obtained or exerted unauthorized control over a twelve-pack of Coors beer from a convenience store in Great Bend. K.S.A. 1987 Supp. 21-3701(a). The State further alleged that the accused fled from the scene in a white Cadillac, committing various traffic infractions. K.S.A. Chapter 8. The complaint was filed July 20, 1984, and an arrest warrant was issued the same day and subsequently delivered to the Barton County Sheriff s Office.
Sometime between July 20 and mid-October, 1984, the appellee was incarcerated at the Kansas State Industrial Reformatory (KSIR) on other charges. The arrest warrant had not been executed prior to his incarceration. Appellee’s incarceration at the KSIR resulted from a conviction in another county and at no time between July 20,1984, and October 10,1984, did the Barton County authorities have custody of Nicholson. On October 10, 1984, the Barton County Sheriff s Office sent a copy of the pending arrest warrant to the Records Department at the KSIR in Hutchinson. The preprinted form letter read in part:
“Enclosed please find a copy of our warrant on above named subject. If located and you are able to effect an arrest, notify us and we will dispatch an officer. If already in custody, place as a detainer and advise us when he may be released to our custody.” (Emphasis added.)
The State contends that on or about October 19, 1984, the appellee was provided standard forms used by the Department of Corrections to notify inmates of detainers as required by K.S.A. 22-4301(b). The appellee does not contest this assertion on appeal, although he apparently did so in the district court. During the appellee’s term of incarceration at the KSIR, he made no attempt to assert his right to dispose of the detainer pursuant to the Uniform Mandatory Disposition of Detainers Act, K.S.A. 22-4301 et seq., and whether that act was complied with by the State is not an issue in this appeal.
In December 1987 and January 1988, apparently while still incarcerated, appellee moved to dismiss the charges and the detainer contending, inter alia, that the prosecution had not been commenced within the applicable statute of limitations because of unreasonable delay in executing the warrant originally issued July 20,1984. Following argument, the district court dismissed the Barton County charges and the detainer, reasoning that the statute of limitations barred the prosecution since it had not been commenced within two years of the date the offenses were allegedly committed. The district court reached its conclusion based upon the fact there was no return in the court file reflecting that the warrant had been executed.
The narrow issue presented is whether, under the facts of this case, the failure to execute the arrest warrant while appellee was incarcerated at the KSIR constitutes unreasonable delay. Determining whether a delay in executing a warrant is unreasonable, when the delay is caused by the incarceration of the defendant in another county or jurisdiction, requires the application and consideration of several statutes.
K.S.A. 1987 Supp. 21-3106(3) provides that a prosecution for the crimes here involved must be commenced within two years of the date of the offenses. Subsection (6) of the same statute reads:
“(6) A prosecution is commenced when a complaint or information is filed, or an indictment returned, and a warrant thereon is delivered to the sheriff or other officer for execution. No such prosecution shall be deemed to have been commenced if the warrant so issued is not executed without unreasonable delay. (Emphasis added.)
K.S.A. 22-2305 provides in part:
“(1) The warrant shall be executed by a law enforcement officer. . . .
“(2) The warrant may be executed ... at any place within the jurisdiction of the state of Kansas.
“(3) The warrant shall be executed by the arrest of the defendant. . . .
“(5) The officer executing the warrant shall make return thereof to the magistrate before whom the defendant is brought.”
The definitions statute, K.S.A. 1987 Supp. 22-2202, provides:
“(4) ‘Arrest’ means the taking of a person into custody in order that the person may be forthcoming to answer for the commission of a crime. The giving of a notice to appear is not an arrest.”
From the foregoing statutes it is clear that a prosecution is timely commenced if the complaint is filed and a warrant on the complaint is delivered to the sheriff within two years (in the present case) of the offenses charged. K.S.A. 1987 Supp. 21-3106(3), (6). Here, the offenses were alleged to have occurred on July 20, 1984, and a complaint was filed and a warrant issued the same date. The warrant was delivered to the sheriff promptly. Thus the prosecution was commenced timely unless thereafter the warrant was “not executed without unreasonable delay,” in which case “no such prosecution shall be deemed to have been commenced.” Here, less than three months after the warrant was issued, a detainer was lodged by the Barton County Sheriff against the appellee while he was incarcerated at the KSIR on other charges.
In order for the warrant in the present case to be executed as required by the statutes, the law enforcement officer must arrest the appellee by taking him into custody. Here, the appellee was already in the custody of the secretary of corrections and confined at the KSIR in Reno County. “Custody” is defined as “the restraint of a person pursuant to an arrest or the order of a court or magistrate.” K.S.A. 1987 Supp. 22-2202(9). In State v. Clark, 222 Kan. 65, 67, 563 P.2d 1028 (1977), the court stated, “A detainer is a hold order or informal demand by one exercising public authority for the possession of a person already in lawful custody.” It is clear that at the time of the hearing in this case, the outstanding warrant had not been “executed” as the appellee had never been arrested and taken into custody on the warrant.
It is generally recognized that a person already in custody cannot be arrested on an outstanding warrant from another county or jurisdiction. See Hayes v. United States, 367 F.2d 216, 221 (10th Cir. [Kan.] 1966); State v. Bowman, 106 Kan. 430, 435-36, 188 Pac. 242 (1920); 6A C.J.S., Arrest § 5.
In this case, the delay in complying with the statutory requirements for execution of an arrest warrant was not “unreasonable” because it was impractical, if not impossible, to arrest the defendant as long as he was already in custody. While it may have been possible for the Barton County Sheriff to secure the release of the appellee from the custody of the secretary of corrections for purposes of executing the warrant and taking appellee before the magistrate in Barton County, he was under no obligation to do so. Although not cited by either party in their briefs, or oral argument, the issue has been determined in at least two longstanding opinions of this court. In State v. Bowman, 106 Kan. 430, the court was faced with a similar set of facts. This court held:
“The statute specifying that time of absence of the defendant from the state, concealment to avoid service of process, and concealment of the fact of crime, shall not be included in computing the period of limitation, relates to the time within which action shall be commenced, and does not forbid exclusion of the time the defendant was in the penitentiary after prosecution was commenced.” Syl. ¶ 4.
“A criminal prosecution is commenced when a warrant on which the defendant is arrested is, duly issued in good faith and delivered to the sheriff for service. This is true, although there may be subsequent unnecessary delay in executing the writ, but the time such delay continues is included in computing the period of limitation.” Syl. ¶ 5.
“The sheriff was not authorized to execute the warrant during the time the defendant was confined in the penitentiary, and such time may not be credited to him, in computing the statutory period, as unnecessary or unreasonable delay in executing the writ.” Syl. ¶ 6.
“The sheriffs official duty did not require him to request parole or other release of the defendant from the penitentiary for arrest and prosecution, even if such request would have been availing; and the sheriff is not chargeable with lack of diligence or failure to improve opportunity in executing the writ because he did not make such request.” Syl. ¶ 7.
In McCullough v. Hudspeth, 168 Kan. 39, 210 P.2d 413 (1949), the defendant contended he had been deprived of his right to a speedy trial due to delay in serving the warrant occasioned by his incarceration in the state penitentiary. The warrant was timely issued in 1944 but had not been executed in 1949 when the defendant was about to be released. The court relied upon Bowman in holding the prosecution had been timely commenced and that the delay in executing the warrant because of the defendant’s incarceration did not deny defendant of his right to a speedy trial. Although the statute of limitations was not the issue in McCullough, the court recognized the validity and applicability of the rule from Bowman.
In the present case, the trial judge reached his decision that the prosecution had not been timely commenced based upon the fact there was no return of the warrant in the court file. Specifically, the judge stated:
“[T]he file does not reflect a return of the warrant. . . . [T]here being no return on the warrant, no return of the warrant in the file, I must conclude that the case has not been commenced because more than two years has elapsed. Therefore, I find that the statute of limitations has lapsed, has run, I should say.”
While K.S.A. 22-2305(5) requires the law enforcement officer who executes the warrant to make a return thereof to the magistrate before whom the defendant is brought, it does not require the return as a necessary condition of proper execution. Likewise, the failure to make a return of the warrant does not invalidate the warrant or have any bearing on whether there has been unreasonable delay in executing the warrant. Although it is the statutory duty of the executing officer to show compliance with the warrant’s command by making a return, the appellee cites no authority, and we have found none, for the court’s assumption that the failure to comply with that duty because the warrant has not yet been executed results in ineffective execution or constitutes unreasonable delay in the execution of the warrant which would invalidate the commencement of the prosecution.
The decisions in Bowman and McCullough are controlling in this case. We hold that the delay in the execution of the warrant in this case was not unreasonable when that delay was occasioned by the incarceration of the appellee at the KSIR.
The decision of the district court is reversed and the case is remanded with directions to reinstate the complaint against the appellee. | [
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The opinion of the court was delivered by
Herd, J.:
This is an appeal of a personal injury action wherein a summary judgment was entered in favor of the Catholic Diocese of Wichita. The district court ruled the negligence of Father Steven Scheier, pastor of a Catholic parish, could not be imputed to the diocese.
Appellants were injured when their pickup was struck by a car driven by Father Scheier, pastor of Sacred Heart Parish in Fredonia. The parish is now part of the Catholic Diocese of Wichita, a not-for-profit organization incorporated in the State of Kansas, although it existed well before the corporation’s formation. Father Scheier owned and insured the car. He had no subsequent recollection of the accident, or the events preceding it. He did recall going to Wichita to visit a friend, Father Ken Melaragno, to discuss problems he was having with his parish’s Altar Society. He had no subsequent recollection of the visit.
Appellants filed suit against Father Scheier and against the diocese under the doctrine of respondeat superior. They claimed Scheier was an employee of the diocese who was acting within the scope of his employment at the time of the accident. On June 12, 1987, the district court heard arguments on motions by both the diocese and appellants for summary judgment and granted summary judgment in favor of the diocese. The court found there was not an employee/employer relationship between the parish priest and his diocese for the purpose of imputing negligence under civil law. It found the diocese’s right to control over Father Scheier was based on ecclesiastical rather than civil law.
The Roman Catholic Church is hierarchical in nature, extending from the parish to the diocese and ultimately to the Pope. Each diocese is headed by a bishop and contains a number of parishes, each headed by a pastor. The pastor is required to conduct his parish according to church canons and diocesan statutes. A pastor may be removed from office, but only for serious cause and then under specific procedures requiring the bishop to confer with others and allowing the pastor to appeal the decision. Diocesan law sets the amount of each pastor’s salary. Under Canon Law, if a pastor’s compensation exceeds his needs, he is obligated to return the excess to the diocese. Wichita Diocesan statutes prescribe a salary of $400 a month and a car allowance of $300 a month. The Wichita Diocese now follows the majority of diocese in issuing a W-2 form to each priest. This policy was instituted after a tax dispute over whether priests were considered to be self-employed. The pastor is required by diocesan statute to report to the bishop annually on the financial and spiritual status of the parish.
The bishop is clearly the pastor’s superior under ecclesiastical law. The evidence shows, however, that a pastor’s day-to-day activities are within his own discretion and control. He is authorized under Canon Law to do whatever he feels is necessary to carry out his duties. He sets his own hours and vacation. He makes out his own paycheck, and hires or fires any non-priest/non-deacon employee, such as secretaries and janitors. Such salaries, including his own, come from parish receipts. The pastor has complete discretion in purchasing church supplies and paying the bills from parish • funds. The details of daily bookkeeping and accounting of sums received and spent by the parish are not reviewed by. the diocese.
Appellants do not dispute the facts in the case. They argue only that the facts create a question for the jury whether an employer-employee relationship existed between the diocese and Father Scheier. The diocese asserts Father Scheier’s legal relationship to it in an imputed negligence analysis is that of an independent contractor rather than an employee.
Resolution of conflicting evidence which might establish the existence of an agency is for the finder of fact. Aetna Casualty and Surety Co. v. Hepler State Bank, 6 Kan. App. 2d 543, 548, 630 P.2d 721 (1981). What constitutes an agency, however, is a question of law. Fredricks v. Foltz, 225 Kan. 663, 670, 594 P.2d 665 (1979).
Thus, the sole issue before this court is whether it may be found, as a matter of law from the uncontroverted facts, that the diocese may not be held liable under the doctrine of respondeat superior, or whether it is for the jury to weigh the facts and decide whether Father Scheier was an employee under established agency law. The specific question to be answered is whether a pastor’s negligence while engaged in activity beneficial to his diocese (viewing the evidence most favorably to the appellant), but within his own discretion and control, may be imputed to his diocese.
The phrase “imputed negligence” refers to the doctrine which places upon one individual responsibility for the negligence of another. Schmidt v. Martin, 212 Kan. 373, 375, 510 P.2d 1244 (1973). The doctrine of imputed negligence, or respondeat superior, has its origin in public policy. It is elemental that every person conduct his business so as not to cause injury to others, and if he conducts business through others, he is bound to manage them so third persons are not injured by the others while they are doing the principal’s business within the scope of their authority. The doctrine is a “fiction of the law,” not favored in this state, which is limited to master/servant (employer/employee) and joint enterprise relationships. Schmidt, 212 Kan. at 376. See Lightner v. Frank, 240 Kan. 21, 26, 727 P.2d 430 (1986). These are relationships in which the potential respondents have sufficient control and responsibility for the actions of others to justify holding them liable for their actions.
Professors Prosser and Keeton explain the “multitude of very ingenious reasons” offered to justify the doctrine in the master/servant relationship:
“[The employer] has a more or less fictitious ‘control’ over the behavior of the servant; he has ‘set the whole thing in motion,’ and is therefore responsible for what has happened; he has selected the servant and trusted him, and so should suffer for his wrongs, rather than an innocent stranger who has had no opportu nity to protect himself; it is a great concession that any man should be permitted to employ another at all, and there should be a corresponding responsibility as the price to be paid for it — or, more frankly and cynically, ‘In hard fact, the reason for the employers’ liability is the damages are taken from a deep pocket.’ None of these reasons is so self-sufficient as to carry conviction, although they are all in accord with the general common law notion that one who is in a position to exercise some general control over the situation must exercise it or bear the loss. . . .
“What has emerged as the modern justification for vicarious liability is a rule of policy, a deliberate allocation of a risk. The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer’s enterprise, are placed upon that enterprise itself, as a required cost of doing business. They are placed upon the employer because, having engaged in an enterprise, which will on the basis of all past experience involve harm to others through the torts of employees, and sought to profit by it, it is just that he, rather than the innocent injured plaintiff, should bear them; and because he is better able to absorb them, and to distribute them, through prices, rates or liability insurance, to the public, and so to shift them to society, to the community at large. Added to this is the makeweight argument that an employer who is held strictly liable is under the greatest incentive to be careful in selection, instruction and supervision of his servants, and to take every precaution to see that the enterprise is conducted safely.” Prosser and Keeton on Torts § 69 (5th ed. 1984).
In contrast to an “employee” under the respondeat superior doctrine, an “independent contractor” is one who contracts to do certain work according to his own methods, without being subject to the control of his employer, except as to the result of his work. An independent contractor therefore represents the will of his employer only in the result, and not as to the means in which it is accomplished. Snedden v. Nichols, 181 Kan. 1052, 1055, 317 P.2d 448 (1957). Thus, one who hires such an individual is not liable for that party’s negligence. See Wallis v. Secretary of Kans. Dept. of Human Resources, 236 Kan. 97, 689 P.2d 787 (1984).
The primary test to determine whether one is an employee or an independent contractor is the “right to control” test. The employer need not actually control the work of the employee; he need only have the right to control the work. Danes v. St. David’s Episcopal Church, 242 Kan. 822, Syl. ¶ 3, 752 P.2d 653 (1988). Other tests include the authority to discharge the employee before work is completed, Schroeder v. American Nat’l Bank, 154 Kan. 721, 724, 121 P.2d 186 (1942), and control over payment of wages and the amount paid, Davis v. Julian, 152 Kan. 749, 756, 107 P.2d 745 (1940).
Whether ecclesiastical superiority, which clearly exists herein in the bishop/pastor relationship, constitutes a legal master/servant relationship in civil law has not previously been before this court. Other jurisdictions have reached varying results, although all focus on the issue of control. In Leahey v. Williams, 141 Mass. 345, 6 N.E. 78 (1886), the Massachusetts Supreme Court ruled in favor of the bishop in an action for the recovery of money borrowed by pastors for the purchase of real estate held in the name of the bishop, because the evidence indicated parish pastors were autonomous in the secular affairs of their parishes.
An opposite result was reached in Roman Catholic Archbishop v. Industrial Acc. Com., 194 Cal. 660, 230 Pac. 1 (1924), a workers’ compensation case in which a carpenter was injured while reshingling a roof of a Roman Catholic Church. The court noted, however, that had it been alleged and proved that it was not a part of the bishop’s duties to have the roof repaired, but rather the duty of the parish pastor, the result might have been different.
Facts similar to the instant case are found in Ambrosio v. Price, 495 F. Supp. 381 (D. Neb. 1979), in which a parish priest was involved in a car accident on his way to visit friends. Suit was brought against the parish as well as the priest and the Archbishop. All parties moved for summary judgment. The court granted summary judgment in favor of the parish and the Archbishop on the basis of scope of employment, but implied in dicta that imputed negligence could have been found had the priest acted upon the orders of the church for its benefit. 495 F. Supp. at 385.
A final case relied upon by appellants, Stevens v. Roman Catholic Bishop of Fresno, 49 Cal. App. 3d 877, 123 Cal. Rptr. 171 (1975), is inapplicable because the alleged negligence was that of a missionary priest who did not hold the office of pastor and the appellate court based its decision on Canon Law, a position contrary to Kansas case law. See generally Gospel Tabernacle Body of Christ Church v. Peace Publishers & Co., 211 Kan. 420, 506 P.2d 1135, reh. denied 211 Kan. 927, 508 P.2d 842 (1973).
Two Kansas automobile cases are pertinent on the doctrine of respondeat superior in this state. In Houdek v. Gloyd, 152 Kan. 789, 107 P.2d 751 (1940), defendant Gloyd, acting as a salesman for Oehlert Tractor & Equipment Company, was alleged to have negligently caused an automobile accident. Gloyd was traveling in his own car for the purpose of selling equipment for Oehlert when the accident took place. Gloyd made his living by purchasing equipment at 85% of the list price from Oehlert and then selling the equipment for whatever profit he could make. If the customer was going to defer payment on the equipment, Oehlert had to approve the terms of the sale. If a trade-in was being arranged, Oehlert had to fix the price on the trade-in. Gloyd did not receive a salary and expenses were not paid by Oehlert. He was not directed where to make sales, but was told not to interfere with Oehlert’s regular salesmen. Sales were reported to the company. Oehlert withheld social security taxes and had the right to terminate its arrangement with Gloyd. On the basis of these facts and circumstances, the court held an independent contractor relationship existed. While Oehlert had the right to terminate the relationship and had some general supervisory control over Gloyd, it did not control the details and physical services supplied by Gloyd. The court held Oehlert’s payment of social security taxes was not relevant to the issue of whether Gloyd was an employee for purposes of imputing negligence.
Similarly, in Hurla v. Capper Publications, Inc., 149 Kan. 369, 87 P.2d 552 (1939), the court held as a matter of law that a newspaper deliveryman who used his own car was not an employee for purposes of imputing negligence because the evidence demonstrated the employer did not have the right to control the physical conduct of the carrier in the performance of his duties.
Applying the “right to control” test to the case herein, we see the diocese has no control over the day-to-day activities of a parish pastor. Although a diocese sets a pastor’s salary and has the power to eventually remove him from office, the pastor retains significant control even in these areas. Moreover, the pastor is clearly in control of his parish. He performs his duties as he sees fit, and is required only to make annual reports of status and planning to the diocese.
In the present case, if the negligence of the pastor may be imputed to the diocese, it logically may be extended to the Pope, as all control over the pastor’s employment ultimately stems from Roman Catholic ecclesiastical law, in which the Pope is the highest authority.
Restatement (Second) of Agency § 220 (1957) lists several factors which are helpful in determining whether an individual is to be held an employee for purposes of imputing fault. Some of the factors (such as long-term employment, by one employer, in one area) support appellants’ position (§ 220 Comment h). Other factors support the position of the diocese. The diocese does not control the details of the pastor’s work, much of which may be delegated by the pastor as he sees fit. The work is of a type which requires a high level of skill and experience and is generally done without supervision. The pastor is in control of his workplace and provides his own supplies and even his salary from parish proceeds.
Father Scheier was driving his own self-insured automobile on the day of the accident, a factor which has repeatedly been held significant in determining agency. He had purchased personal insurance to cover liability arising out of his use of the automobile. The diocese did not request Father Scheier to visit his friend; he chose to go on his own accord. He neither advised nor sought permission of the diocese, as was in keeping with his autonomous position as pastor.
In a typical respondeat superior situation, the employee would not be expected to procure insurance to protect against liability for his actions at work. His potential negligence is viewed by his employer as “a required cost of doing business” which may be shifted to society at large. See Prosser and Keeton on Torts § 69. In such a situation, an innocent victim would often not be able to recover damages for negligence unless the employee’s negligence was imputed to the employer. The doctrine of respondeat superior allows the victim to reach the “deep pocket” which benefits from the risk undertaken, and thus encourages an employer to supervise his employees to prevent injuries to others caused by the employees’ negligence. The case at bar is not a typical respondeat superior situation where public policy dictates imputed liability.
We have carefully examined the record before us and conclude that under these facts and circumstances the legal relationship of Father Scheier to his diocese was that of an independent contractor, as the district court correctly determined. There are no genuine issues of material fact and the diocese is entitled to judgment as a matter of law. See K.S.A. 1987 Supp. 60-256(c).
The decision of the district court is affirmed. | [
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The opinion of the court was delivered by
Miller, C.J.:
Defendant Michael A. Anderson was convicted of aggravated robbery, K.S.A. 21-3427, in a bench trial held in Sedgwick District Court. He was sentenced to a term of 15 years to life, later modified to 10 to 20 years. He appeals, raising three issues: (1) Did the trial judge’s conduct deprive the defendant of a fair trial? (2) Was the judge’s decision based on facts either not in evidence or inadmissible? and (3) Did the trial court abuse its discretion by denying defendant’s request to withdraw his waiver of trial by jury?
Anderson first contends that the trial judge interrupted the examination of witnesses, elicited testimony unfavorable to the defendant, and failed to accord the defendant the presumption of innocence. In State v. Hamilton, 240 Kan. 539, Syl. ¶ 5, 731 P.2d 863 (1987), we stated the rule which governs us here. We said:
“Allegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding such alleged misconduct; and in
order to warrant or require the granting of a new trial it must affirmatively appear that the conduct was of such a nature that it prejudiced the substantial rights of the complaining party.”
Anderson’s primary complaint is that the judge cross-examined alibi witnesses after the State and defense counsel had completed their examination of those witnesses. Defendant argues that the judge’s examination of those witnesses bolstered the State’s case and elicited testimony unfavorable to the defense.
We have examined carefully that portion of the record about which the defendant complains. While it is true that the answers given by the witnesses to the judge’s questions were more favorable to the State than to the defense, the questions were not slanted. A trial judge may quite properly propound questions to witnesses in order to elicit the truth. The rule is stated in 75 Am. Jur. 2d, Trial § 88, as follows:
“A trial judge has the power within proper limits, to impose limitations upon the number of witnesses, and to control their examination. It is within his authority to propound questions to, and examine, witnesses for the purpose of eliciting facts material to the case at bar. He may in a particular case be justified in examining some witnesses at considerable length, in an effort to bring out the true facts ....
“. . . The test is not the number of questions that the trial court asks, but whether, because of such questioning, the defendant was prejudiced.”
Here, answers to the trial judge’s questions could well have strengthened the defendant’s position rather than that of the State. That they did not is not the fault of the judge. Nothing in the record indicates that the judge assumed the role of a prosecutor or that he resolved issues against defendant’s interests before the presentation of all of the evidence. He did express to counsel his thoughts as to the quality of the evidence, but we see nothing wrong with such observations during a bench trial. Such guidance by the judge during trial is intended to be helpful to counsel, and is not a resolution of the merits of the case.
Anderson also argues that the trial court’s comments left him no choice but to testify as to his alibi defense. We disagree. The judge stated in substance to counsel, during trial, that the alibi witnesses testified as to defendant’s whereabouts on most evenings, but were not specific as to defendant’s presence at the precise time of the robbery. The judge never requested or insinuated that the defendant must testify. There is nothing in the record to indicate that the defendant’s decision to testify in the case was other than voluntary. The trial judge’s conduct in the case was not of such a nature that it prejudiced Anderson’s right to a fair and impartial trial. This point is without merit.
Anderson next contends that the trial court erred in finding the defendant guilty because its finding was based in part upon facts either not in evidence or improperly admitted into evidence. The facts not in evidence consist of the testimony at the preliminary examination, at which the same judge presided, and the non-verbal communications observed by the judge between witnesses who sat in the rear of the courtroom and nodded their heads in indication of their agreement with or disbelief of the testimony of witnesses who were then testifying. The judge indicated that he took into consideration the fact that one witness, who was sequestered, gave essentially the same testimony at the preliminary hearing as she gave at trial. He also stated that he observed the conduct of the alibi witnesses in the courtroom during trial. He took these things into consideration only in determining the reliability of the witnesses and the weight to be given their testimony.
When sitting as the trier of fact, a judge has the right to observe the conduct of a witness in the courtroom and to consider that in weighing the testimony. The testimony of the witness for the State who testified at both the preliminary examination and at trial was consistent. The judge considered no facts established at the preliminary examination but not included within the evidence at trial. While it was error for the court to consider the preliminary examination testimony in determining the credibility of the witness at trial, under the facts of this case there was no prejudice to the defendant and any error in this regard was harmless.
Counsel also points to one instance when the trial court overruled an objection to the testimony of a witness to a conclusion of fact. Defendant contends that the judge relied upon that conclusion in arriving at his decision. In State v. Gordon, 219 Kan. 643, Syl. ¶ 11, 549 P.2d 886 (1976), we said:
“Where trial is by the district court, on appellate review the supreme court indulges in the presumption the lower court considered only properly admissible evidence in reaching its decision unless the contrary is shown by the record.”
Here, the trial judge made extensive comments, immediately prior to announcing his decision, discussing the evidence. He indicated what items he had taken into consideration, and he did not mention the conclusion of the witness to which defendant now points. His decision appears to have been formed only upon the basis of admissible evidence, all of which was before him and in evidence at trial. We find no indication in the record that the judge relied upon any inadmissible evidence or upon anything outside the record.
Finally, defendant Anderson contends that the trial court abused its discretion by denying defendant’s request to withdraw his waiver of trial by jury. Both counsel acknowledge and agree that on December 16, 1985, the defendant validly waived his right to a jury trial. This waiver was entered before the Honorable Owen Ballinger. Later, defendant filed a motion to withdraw his waiver of jury trial and that motion was summarily overruled by the Honorable Paul W. Clark. Defendant was not present in person before Judge Clark at the time of that ruling. Finally, defendant renewed his motion to withdraw his waiver of jury trial before the Honorable Robert D. Watson immediately prior to trial. Judge Watson also overruled the motion. Any error by Judge Clark in ruling upon the motion in defendant’s absence was clearly corrected when the motion was presented before Judge Watson in defendant’s presence.
Anderson relies primarily on State v. Pruett, 213 Kan. 41, 515 P.2d 1051 (1973), and alleges that the facts of that case are similar to the facts in the case at bar. We do not agree. In Pruett, the trial judge refused to permit the State to amend the charges against the defendant by reducing one count from felony to misdemeanor; he then refused to permit the defendant to withdraw his waiver of jury trial; and finally, he overruled the defendant’s motion for acquittal on one count wherein the defendant claimed that he was charged under the wrong statute. We held that the trial judge in that case had “stepped down from his role as an impartial trial judge and assumed the role of public prosecutor.” 213 Kan. at 48. We sustained the defendant’s position on all three of the issues raised, and we remanded the case to the trial court for further proceedings. We find no such indications of prejudice in this case.
It is the general rule, as stated in Syl. ¶ 3 of the Pruett case, that:
“A waiver of trial by jury, voluntarily and regularly made by the defendant in a criminal action who knew and understood what he was doing, cannot afterward be withdrawn except in the court’s discretion.”
In Pruett, we found that the trial judge abused his discretion in refusing Pruett’s request to withdraw his previous waiver, and in denying him a jury trial. We were careful to point out in Pruett that our ruling was made, however, under the peculiar circumstances of that case; such circumstances are not present here. Anderson also complains that the trial judge would not let him address the court personally in support of his motion. Anderson was personally present and was represented by competent counsel who was capable of articulating any concerns or arguments the defendant wanted to convey to the trial judge in connection with his motion to withdraw the waiver. We find no error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Lockett, J.:
Under the authority of the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq., the United States District Court, Wichita, Kansas, asks: whether, under Kansas law, an employer who makes available free cereal malt beverages in uncontrolled amounts to its employees on the employer’s premises may be held liable for all foreseeable consequences of its acts and omissions, including torts committed by employees while driving home from the workplace in an intoxicated condition. We conclude: An employer is liable for the tortious acts of his employee only under special circumstances. Special circumstances exist when the employee is on the employer’s premises, performing work for the employer, or using the employer’s chattel, when the employer voluntarily assumes a duty to control the employee, or when the employer negligently retains a known incompetent or unfit employee. Absent special circumstances, an employer owes no duty to a third party for tortious acts of an employee who, after consuming alcohol on the employer’s premises, leaves the employer’s premises and, while off duty, injures a third party. The answer to the certified question is, “No.”
The parties have stipulated to the following facts. Defendant Michael Cooper was employed by V&M Distributing, Inc., (V&M) a beer wholesaler, as a route driver. V&M provides a hospitality lounge on its premises where cereal malt beverages, soda pop, and coffee are provided without cost to employees and customers. The hospitality room was used for training retailers, community activities, and as an employee lounge. It was common practice for V&M employees to consume cereal malt beverages on the premises during work hours. V&M’s policies state “all work is to be completed before using the lounge.” V&M’s policy manual states:
“Our products should always be presented as products of moderation; therefore, we should only serve or consume a couple of beers while using the hospitality area. Let’s all work towards projecting a positive image through the availability of our fine facility.”
V&M had no other policy specifically limiting the amount of beer an employee could consume.
On June 14,1985, Cooper left V&M en route to his home when he lost control of his vehicle and struck and killed a pedestrian, A. R. Thies, whose body then struck and injured Noreen Malchow. Cooper’s blood alcohol level measured .22% by weight. Cooper stated he had drunk approximately six or seven beers within the 24 hours preceding the time of the collision. Cooper had no reported history of excessive drinking or of driving a vehicle while intoxicated. No one at V&M was aware that Cooper was intoxicated when he left the workplace. However, the general manager of V&M conceded that it was foreseeable that an employee could overconsume beer in the hospitality room and then become involved in an automobile collision resulting in injury.
Plaintiffs filed suit in the United States District Court for the District of Kansas against Cooper and V&M. The claim against V&M alleged that a special relationship existed between Cooper and V&M by virtue of the employer-employee relationship, that V&M was negligent in providing free intoxicants to its employees on its premises in unlimited quantities, and that V&M was liable for all foreseeable consequences of its acts. V&M filed a motion to dismiss and Judge Kelly withheld a ruling finding no applicable Kansas precedent on the issue of employer liability under these facts.
Negligence is never presumed. Wicina v. Strecker, 242 Kan. 278, 280, 747 P.2d 167 (1987). Negligence exists when there is a duty owed by one person to another and a breach of that duty occurs. Whether duty exists is a question of law. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983). 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 person or the actor and the injured party. Restatement (Second) of Torts § 315 (1963).
Normally, an employer is under no duty to control the conduct of an employee acting outside the scope of employment. Plaintiffs claim a special relationship exists here because the employer’s act of negligence occurred while the employee was on the employer’s premises and the employee was subject to the employer’s control. They also argue that the employer who provides intoxicating beverages to an employee in unlimited quantities knows or should know that the employee could become intoxicated and drive home from work in an intoxicated condition. Under such circumstances, plaintiffs contend the em ployer assumes the risk of injury to third persons caused by the negligent act of the intoxicated employee.
Plaintiffs rely on four cases for support; all four are inapposite. Primary reliance is placed on the Texas decision of Clark v. Otis Engineering Corp., 633 S.W.2d 538 (Tex. App. 1982), aff d 668 S.W.2d 307 (Tex. 1983). Texas is similar to Kansas in not having a dram shop act. Otis involved a wrongful death action brought against an employer after plaintiff s decedents were killed in an automobile accident involving an intoxicated Otis employee. The facts in the case were compelling: the employee, Matheson, had a history of drinking on the job; on the night of the accident Matheson’s supervisor knew Matheson was seriously intoxicated, removed him from his work station, and escorted him to the parking lot to his car. This was done even though Otis maintained a nurse’s station on the premises. The supervisor testified he was afraid that Matheson might have an accident. In other words, the employer had specific knowledge that Matheson was intoxicated and affirmatively undertook to control the situation. The Texas Supreme Court, in a 5-4 decision, adopted the following standard of duty:
“[W]hen, because of an employee’s incapacity, an employer exercises control over the employee, the employer has a duty to take such action as a reasonably prudent employer under the same or similar circumstances would take to prevent the employee from causing an unreasonable risk of harm to others. 668 S.W.2d at 311.
Four justices disagreed, reasoning that, even in this case, the employer had no duty to control the employee, absent a custodial relationship such as warden/prisoner.
A subsequent Texas case has indicated that the duty imposed on the employer in Otis resulted solely from the employer’s affirmative act of taking control of the intoxicated employee. In Pinkham v. Apple Computers, Inc., 699 S.W.2d 387 (Tex. App. 1983), plaintiffs sued the employer, Apple, for wrongful death and injury resulting from an accident which occurred when an employee, who had become intoxicated at an employer-sponsored party, struck plaintiffs while driving home. Depositions revealed that the employee had exhibited behavior which indicated intoxication, but that the employer had taken no steps to control the employee. The Texas Court of Appeals held that, since Otis required an affirmative act, no duty would be imposed upon the employer in this case. The Court stated:
“Texas does not have a Dram Shop Act which imposes liability on the provider of alcoholic beverages for subsequent off-premises acts of negligence by patrons or guests. The gist of appellants’ contention is that they seek the establishment by judicial decree of liability on a provider of alcoholic beverages for subsequent acts of negligence by an imbiber due to intoxication. This we refuse to do.” 699 S.W.2d at 390.
The next case cited by plaintiffs is Chastain v. Litton Systems, Inc., 694 F.2d 957 (4th Cir. 1982). Chastain involved a wrongful death action against an employer who sponsored a company Christmas party and allegedly allowed an intoxicated employee to leave the party. The court, applying North Carolina law, noted that North Carolina had modified the common law to impose liability upon persons who dispense alcohol for business purposes for torts committed by imbibers of the alcohol. This modification disclosed a state policy of liability for dispensers of alcohol other than social hosts. Therefore, a jury question was presented as to whether the employer was acting as a social host or for business purposes and, if for business purposes, whether the employer had been negligent in furnishing alcohol, knowing the employee had become intoxicated. Chastain does not support plaintiffs’ argument here because it is based upon a state public policy which does not exist in Kansas.
In Robertson v. LeMaster,_W. Va._, 301 S.E.2d 563 (1983), the court imposed a duty on an employer who required his employee to work over 27 consecutive hours before permitting him to drive home (over 50 miles away). The exhausted employee fell asleep at the wheel and was involved in a collision. The court ruled it was a jury question whether the employer’s conduct prior to the accident had created a foreseeable and unreasonable risk of harm to others. 301 S.E.2d at 570. However, the basis for the Robertson decision was the employer’s affirmative conduct in requiring the employee to work almost four consecutive shifts. Here, V&M did not require its employees to use the hospitality lounge or drink beer.
In McCarty v. Workmen s Comp. Appeals Bd., 12 Cal. 3d 677, 117 Cal. Rptr. 65, 527 P.2d 617 (1974), an employee attended an office party, became intoxicated, collided with a railroad signal pole on the way home, and was killed. His wife brought a workers’ compensation action for death benefits. The California Supreme Court found that, for purposes of recovery, the employee’s drinking occurred within the scope of employment. This case is distinguishable primarily because the public policies underlying recovery under a state workers’ compensation system are completely different from the policy which imposes third-party liability for drunken driving.
The majority of jurisdictions have refused to impose liability on employers who have furnished liquor to employees for injury which occurred when the employee became intoxicated and caused injury to a third party off the premises. Some jurisdictions have reached this decision even in cases where the employer had knowledge of the employee’s intoxicated state. Whittaker v. Jet-Way, Inc., 152 Mich. App. 795, 394 N.W.2d 111 (1986) (no liability for furnishing liquor to intoxicated employee at Christmas party). See also Martin v. Palazzolo Produce Co., Inc., 146 Ill. App. 3d 1084, 497 N.E.2d 881 (1986) (no liability where employer invited employee to have some drinks with him at the workplace); Burkhart v. Brockway Glass Co., 352 Pa. Super. 204, 507 A.2d 844 (1986) (no liability in wrongful death action where employer furnished alcohol to visibly intoxicated employee at business meeting). See cases cited in Annot., 51 A.L.R.4th 1048. Most jurisdictions finding the employer liable require, at a minimum, that the employee have been obviously intoxicated: Chastain v. Litton Systems Inc., 694 F.2d 957; Dickinson v. Edwards, 105 Wash. 457, 716 P.2d 814 (1986). See Comment, Employer Liability for a Drunken Employee’s Actions Following an Office Party: A Cause of Action Under Respondeat Superior, 19 Cal. W. L. Rev. 107 (1982).
A few jurisdictions have held an employer liable under the theory of respondeat superior, where the facts are sufficient to raise a jury question of whether the employee was within the scope of employment: Harris v. Trojan Fireworks Co., 120 Cal. App. 3d 157, 174 Cal. Rptr. 452 (1981) (sufficient connection between employment and employer’s Christmas party to raise scope of employment issue); Romeo v. Van Otterloo, 117 Mich. App. 333, 323 N.W.2d 693 (1982) (employee within scope of employment while on the way home from business party which furthered employer’s interest); Dickinson v. Edwards, 105 Wash. 457 (recognizing liability under theory of respondeat superior where employee became intoxicated at business banquet he was required to host).
In Kansas, two recent cases are controlling and answer the certified question. The first case, Ling v. Jan’s Liquors, 237 Kan. 629, 703 P.2d 731 (1985), was decided prior to the certification of the question, and the second case, Meyer v. Grubaugh, 242 Kan. 716, 750 P.2d 1031 (1988), was decided after the question was certified. The only distinguishing fact between Meyer and this case is that here, the employer furnished the alcohol to the employee. However, in Meyer, the employer stipulated that he knew or should have known that the employee was intoxicated. Here, neither the employer nor any co-workers were aware that the employee was intoxicated.
In Ling, a Missouri vendor illegally sold alcohol to a minor who became intoxicated and caused injury to the Kansas plaintiff. The majority of this court refused to modify the common law, and determined, apart from statute, that no redress exists against persons who sell, give, or furnish intoxicating liquor for resulting injuries or damages due to the acts of intoxicated persons, either on the theory that the dispensing of the liquor constituted a direct wrong or that it constituted actionable negligence. The majority stated that the decision whether to impose civil liability upon suppliers of alcohol for the torts of their intoxicated patrons is a matter of public policy reserved for legislative action. 237 Kan. at 640. Since the decision in Ling, the Kansas legislature has been in session twice and has not acted to modify the common law by imposing civil liability upon a vendor who, in violation of a statute, sells liquor to a minor who subsequently becomes intoxicated and injures another.
In Meyer v. Grubaugh, 242 Kan. 716, the plaintiff was injured when his car was struck by a car driven by a state employee on his way home from work. The employee had become intoxicated after consuming several cans of beer during work hours in his car located in a parking lot leased by his employer. The plaintiff sued both the employee and the employer, claiming liability on the part of the employer because of the “special relationship” which exists between an employer and employee, citing the Restatement (Second) of Torts §§ 315 and 317 (1963).
We noted that § 317 imposes liability upon the employer for tortious acts of his employee only in limited circumstances, specifically if the employee is on the employer’s premises or using the employer’s chattel. We also recognized that employer liability may exist when an employer voluntarily assumes a duty to control the employee or when the employer negligently retains a known incompetent or unfit employee and concluded:
“Absent special circumstances, a private employer owes no duty to a third party for tortious acts of an employee who, after consuming alcohol on the employer’s premises, leaves the employer’s premises and while off duty injures the third party.” 242 Kan. at 716, Syl. ¶ 2.
We conclude: An employer is liable for the tortious acts of his employee only under special circumstances. Special circumstances exist when the employee is on the employer’s premises, performing work for the employer, or using the employer’s chattel; when the employer voluntarily assumes a duty to control the employee; or when the employer negligently retains a known incompetent or unfit employee. Absent special circumstances, an employer owes no duty to a third party for tortious acts of an employee who, after consuming alcohol on the employer’s premises, leaves the employer’s premises and, while off duty, injures a third party. The answer to the certified question is, “No.” | [
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Per Curiam-.
This original action in discipline was filed by the office of the Disciplinary Administrator against Charles W. Sauer, of Overland Park, an attorney admitted to the practice of law in Kansas. A panel of the Kansas Board for Discipline of Attorneys heard the complaint, found violations had occurred, and recommended respondent be disciplined by suspension from the practice of law. Respondent has made no appearance in this proceeding and has filed no exceptions to the panel’s report.
The panel’s findings of fact are as follows:
“1. Respondent is an attorney at law. His Kansas Attorney Registration Number is 10206. His last registration address with the Clerk of the Appellate Courts of Kansas is 8686 West 96th Street, Suite 210, Overland Park, Kansas, 66212.
“2. In late September of 1986, Complainant Evelyn K. Stuckey retained Respondent to obtain a change of name for her son, Randy, who resided in Panama. Respondent requested a $400.00 retainer be given to him before he would provide any legal services. Respondent informed Mrs. Stuckey that the name change would take approximately 6 to 8 weeks to obtain.
“3. On October 2, 1986, Mrs. Stuckey mailed her check in the amount of $400.00 to Respondent for legal services. The check was endorsed by Respondent and deposited in Franklin Savings Association on October 9, 1986. Mrs. Stuckey also provided Respondent with her son’s Social Security number and a copy of her son’s birth certificate as Respondent had requested.
“4. Beginning in late October of 1986 and throughout the months of November and December of 1986, Mrs. Stuckey made numerous attempts to contact Respondent by telephone in order to learn of the status of her case. Respondent did not return the telephone calls.
“5. In January of 1987, Mrs. Stuckey visited Respondent’s law office without an appointment. She met with Respondent briefly in the hall outside of his office. Respondent advised her he would have the name change accomplished in one week. He told her he had been busy with other clients and would be in touch with her.
“6. Mrs. Stuckey did not hear from Respondent as he had indicated. She wrote him a letter in February, 1987 and requested the return of her advance of $400.00. She stated she intended to hire new counsel since Respondent was too busy to handle the name change.
“7. Respondent did not respond to Mrs. Stuckey’s letter. Thereafter, Mrs. Stuckey telephoned Respondent’s office but was unable to speak with him. She spoke with Respondent’s secretary in order to see if Respondent had received her letter. Respondent never returned Mrs. Stuckey’s call.
“8. Respondent has never returned Mrs. Stuckey’s money. He has taken no action on the change of name for Mrs. Stuckey’s son.
“9. James P. Cashin, attorney at law, was appointed by Charles S. Schnider to investigate the charges against Respondent.
“10. Respondent failed to return Mr. Cashin’s numerous telephone calls or to respond to correspondence from Mr. Cashin regarding the complaint.”
Based on these findings, the panel concluded there was clear and convincing evidence that respondent had violated: (1) DR 6-101(A)(3) (1987 Kan. Ct. R. Annot. 143) by neglecting a legal matter entrusted to him; and (2) Rule 207 (1987 Kan. Ct. R. Annot. 105) by failing to cooperate with the disciplinary administrator in the investigation of the complaint herein. The panel then recommended that respondent be disciplined by suspension from the practice of law pursuant to Rule 203(a)(2) (1987 Kan. Ct. R. Annot. 102).
After carefully considering the record in this case, the court concurs with the recommendation made by the Board.
It Is Therefore Ordered that Charles W. Sauer be and he is hereby indefinitely suspended from the practice of law in the State of Kansas.
It Is Further Ordered that Charles W. Sauer shall forthwith comply with the provisions of Rule 218 (1987 Kan. Ct. R. Annot. 116).
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 29th day of April, 1988. | [
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The opinion of the court was delivered by
Herd, J.:
This is an appeal by the State, pursuant to K.S.A. 1987 Supp. 22-3602(b)(4), from the trial court’s order granting a new trial to defendant Michael Neal following his convictions of felony theft, K.S.A. 1987 Supp. 21-3701, and aggravated robbery, K.S.A. 21-3427. The trial court ordered a new trial on the basis of newly discovered evidence, pursuant to K.S.A. 22-3501(1). The sole issue on appeal is whether the court abused its discretion in granting the new trial. We affirm.
The events leading to Neal’s conviction are as follows. A woman in Montgomery County was robbed at gunpoint at 8:20 p.m. on August 10, 1986. The victim described the robber as a masked white male, 5’ 9”, 145 pounds, wearing blue jeans and driving a blue car with an Oklahoma license tag. She thought there might have been another person in the car.
Shortly after the crime was reported, a police officer observed a blue car being abandoned by a man and woman who ran into a wooded area and disappeared. The officer was too far away to identify the couple. The car had been reported as stolen that morning by Darrell Simpson of Tulsa. Another officer reported seeing a man standing by an occupied blue car in the area shortly before the robbery. He put together a composite drawing of the man he had seen. It was shown to Simpson, who said it looked like Neal, “except the hair was wrong.” He explained Neal was a man who had shared a house with him several years ago, whom he had not seen since. Neal is a white male, 5’ 11”, weighing 170 pounds.
The Montgomery County sheriff s office contacted the Tulsa, Oklahoma, sheriff s office and discovered Neal was on house arrest for possession of a stolen credit card. A photo lineup was made. Three officers who had seen a man and woman walking away from the area of the abandoned car identified Neal. Neal objected to the lineup because his picture was larger than the other five.
A complaint was filed against Neal for aggravated robbery and felony theft of a car, and a warrant was sent to Tulsa. A Montgomery County officer then went to the Tulsa sheriff s office; there he ascertained Neal was still under the supervision of the Oklahoma Department of Corrections. While there, the officer failed to ascertain Neal’s address or whether the warrant had been served. Although Neal at no time violated the terms of his house arrest, Tulsa authorities failed to serve the Kansas warrant on him. After several months, they returned the Kansas warrant marked “unknown address.” The National Crime Information Center (NCIC) was notified of the outstanding warrant by Montgomery County. Through NCIC Neal was discovered a year later in Arlington, Texas, where he had moved at the end of his probation. He was extradited to Kansas for a preliminary hearing on September 10, 1987. After being bound over, his trial was set for November 3, 1987.
Neal told his attorney he had worked at Bennigan’s Restaurant in Tulsa from about 5:30 to 9:30 p.m. on August 10. If true, this would have made it impossible for him to commit a robbery 80 miles away in Kansas at 8:20 p.m.. Neal’s father corroborated his statement, recalling he had driven Neal to work and picked him up at the times stated by Neal. Tim Hawbacker, manager of Bennigan’s in Tulsa in 1986, remembered Neal working for him, but could not remember if he had worked during the night in question. He knew if he could find the computer records of that night he would have the proof. Each employee at Bennigan’s is required to clock in and out, punching in both employee and craft codes into computer records. A complete printout of all activity in the restaurant — payroll, sales, product sold — is sent over the computer to the home office in Dallas, Texas, every night. The Tulsa restaurant stored their computer sheets over a month old in an outside storage facility. At the request of Neal’s father, Hawbacker spent more than four hours digging through papers in a warehouse, trying to find the appropriate records. He was unsuccessful. Finally convinced that the year-old documents had been destroyed, he suggested that Neal’s father call Bennigan’s home office in Dallas to see if it could help.
On September 9, 1987, Neal wrote a letter to the Dallas office requesting a printout of his August 10, 1986, work record. When no response was received, Neal’s attorney repeated the request by a letter dated September 22. Neal’s father called the records department at the home office, but was told no such record was available. Before the trial, Neal’s attorney was advised by Bennigan’s Dallas office that Neal had indeed worked a total of 4.35 hours on August 10, 1986, but its records did not disclose the time of day the work was performed.
This was the information presented at trial. Neal was convicted by a jury on both counts. After the trial, Neal asked his father to make one more effort to obtain the needed employment information by calling Donald Leeper, the general manager for Bennigan’s in Dallas. Neal knew Leeper because Leeper supervised the opening of a new Bennigan’s in Arlington, Texas, where Neal worked after moving from Oklahoma. Leeper had not been contacted before because he had not supervised Neal at the Tulsa restaurant.
It fortuitously turned out that Leeper was one of the few people in the Bennigan’s organization who had a thorough understanding of its computer system linking all the restaurants with the mainframe computer in Dallas. Unlike the people in Dallas who had handled Neal’s earlier requests, Leeper knew the information Neal requested was still retrievable and knew how to obtain it. Leeper flew to Montgomery County for the hearing on the motion for a new trial at Bennigan’s expense. He testified the Bennigan’s people contacted before trial did not know that information on the time of day Neal worked was available. He testified the restaurant managers have no knowledge of what happens to the daily information they send to the home office. The only detailed record they ever see is that which is kept for a month, and which Neal’s manager, Hawbacker, had tried to find. The records retrieved from the mainframe computer show Neal’s testimony at trial was correct. Neal had clocked in at 5:22 p.m. on the night of August 10,1986, and clocked out at 9:43 p.m.
There was a distinct feature to the recorded times which became significant. Neal testified he clocked in at 5:22, clocked out at 5:27, and then immediately clocked in again at 5:27, before finally clocking out at 9:43. This odd pattern unlocked the memory of Neal’s Tulsa manager, Tim Hawbacker, who then clearly recalled Neal working the night of August 10. Neal had been clocking in as a trainee, making $3.35 an hour. On the evening of August 10, he clocked in as a trainee but Hawbacker told Neal his training period was over and showed him how to clock out on the trainee code and clock back in on the service assistant code. Under this code he would make only $2.01 an hour, but would receive a share of the tips customers left.
Hawbacker testified that, if he had been contacted shortly after the crime occurred, instead of a year later, he probably would have remembered Neal working the night of August 10 without the aid of the computer printouts. At any rate, the printouts would still have been readily available to him for a month or two after the crime. He also flew to Neal’s hearing at Bennigan’s expense and testified he now has a clear memory of Neal working at all times between 5:27 and 9:43 p.m. He testified he saw Neal every five or ten minutes throughout the evening.
Kari Ryan, Neal’s former trainer, had not worked that night, but testified by affidavit, “[I]t is impossible for anyone to clock another employee in or out on the computer, . . . ordinarily the manager watches the working times of employees like a hawk.” Leeper testified managers make up prearranged schedules showing which employees are to work each shift, and have cards they check to make sure everyone is present as scheduled.
A co-employee of Neal’s from Bennigan’s could not remember if Neal worked that evening, but testified by affidavit it would be “highly unlikely” anyone else could get away with clocking in and out for him. Another employee testified it would be “almost impossible” for anyone to sign in or out for Neal, and said she had never heard of such a thing happening at Bennigan’s. The present manager of the Tulsa Bennigan’s testified there was so much interaction between employees and management during a shift it was not likely another employee could punch in for another employee and cover for that employee. He testified such an occurrence had never come to his attention during his years with Bennigan’s and that he believed an employee’s absence would be noticed by the manager immediately.
An examinination of Bennigan’s method of distributing tips adds credence to testimony that Neal could not have gotten away with having someone clock in and out for him on the night of August 10. Each employee receives a percentage of the total tips received each day, according to the number of hours worked. This is why employees support management’s policy of sending non-essential employees home when business is slow. Thus, Hawbacker testified he probably sent Neal home at 9:43 because the waitresses at that point preferred to bus their own tables in return for a bigger percentage of tips. At the end of the day each employee’s share of tips is put in a separate envelope, and the amount each employee is to receive is put in a large ledger. The next day, each employee entitled to tips signs the open ledger and receives his or her money. The ledger is subject to careful scrutiny by employees to make sure no one receives tips he or she did not earn.
Neal was shown by the computer, and thus on the ledger, to be entitled to $19.48 in tips for the evening of August 10. Leeper testified there were nine other employees entitled to tips who would have “raised some Cain” if they had seen a person listed on the ledger who had not worked the night before. He testified, “I could bring about 100 hostesses from the Bennigan’s system that said they would just scream bloody murder, I mean it’s just not possible.”
The trial court granted Neal’s motion for a new trial on the grounds of the newly discovered records, which showed the exact hours Neal worked and refreshed his manager’s memory.
K.S.A. 22-3501(1) allows a trial court to grant a new trial if required in the interest of justice. One basis for a new trial is newly discovered evidence. The law regarding newly discovered evidence is clear. First, the evidence must be of such materiality it would likely produce a different result at a new trial. State v. Armstrong, 240 Kan. 446, 450-51, 731 P.2d 249, cert. denied 96 L. Ed. 2d 702 (1987). Second, the defendant bears the burden of showing the evidence could not with reasonable diligence have been produced at trial. State v. Arney, 218 Kan. 369, 373, 544 P.2d 334 (1975). The scope of appellate review of an order for a new trial is limited to whether “the trial court’s action was wholly unwarranted and clearly amounted to an abuse of discretion.” Hornback v Missouri-Kansas-Texas Rid. Co., 193 Kan. 395, 397, 395 P.2d 379 (1964).
The State first argues the trial court abused its discretion in granting a new trial because it did not make a specific finding that the two prongs regarding newly discovered evidence had been satisfied.
In Hornback v. Missouri-Kansas-Texas Rid. Co., 193 Kan. 395, the trial court granted a new trial without specifying its reasons for doing so. The presumption that the trial court exercised its independent judgment on the facts prevented us from finding an abuse of discretion on this ground alone. Instead, we held the granting of a motion for a new trial rests so much in the trial court’s discretion that the complaining party must show clearly established error with respect to a question of law.
The State attempts to establish such error by arguing the evidence is not of such materiality as to warrant a new trial because it is merely cumulative. It argues the jury heard evidence that Neal worked 4.35 hours on August 10, but refused to believe Neal and his father’s testimony that these hours were worked during the time of the robbery. This argument is without merit.
The State’s only other argument, a more serious one, is that Neal has failed to carry his burden of showing the evidence could not have been discovered before trial by reasonable diligence. Neal’s attorney did not attempt to subpoena detailed records of Neal’s employment. Such a subpoena would have likely resulted in the needed records being found by knowledgeable employees in the Bennigan’s organization and made available before trial. Neal’s counsel protests that he did not know, and should not reasonably have been expected to know, that detailed printouts were available.
The record shows Neal’s attorney was reasonably diligent in his efforts to obtain the needed documented information. It must be remembered that the State’s delay in serving the warrant was partially the cause of the problem. People’s memories grow stale in a year with regard to times and events. We find the evidence material and the accused diligent in his search for the needed evidence. The trial court did not abuse its discretion in granting a new trial. In light of the evidence here, it would have been an abuse of discretion to deny the motion for a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Lockett, J.:
Plaintiff Joyce L. Vogeler seeks reinstatement of her first action which the district court initially dismissed to allow her to refile to obtain service under K.S.A. 60-203. Subsequently, the district court ruled that the second action it had ordered filed was barred by the two-year statute of limitations. The district court then refused to set aside its earlier order dismissing the first action. In an unpublished decision filed April 28, 1988, the Court of Appeals sustained the district court’s denial of Vogeler’s motion to set aside the dismissal of her original action pursuant to K.S.A. 60-260(b). We accepted Vogeler’s petition for review and reverse, finding that the district court abused its discretion by refusing to set aside its order dismissing the first action.
This case presents a unique set of procedural facts. On March 6, 1985, plaintiff, Vogeler, filed a petition alleging that defendant, Owen, negligently injured her on March 10,1983. Summons was issued on March 6, 1985, and returned on March 17, 1985, showing service on defendant by delivery to an employee at defendant’s office, rather than personal service as required by K.S.A. 60-203. Owen’s answer alleged, among other things, insufficient service of process. Both parties then commenced discovery.
On January 23, 1986, almost three years after the alleged negligent act, Owen moved for dismissal of Vogeler’s action with prejudice, contending that by failing to obtain service required by K.S.A. 60-203, Vogeler had failed to commence the suit within the two-year statute of limitations. Vogeler responded K.S.A. 60-203(b) entitled her to save her cause of action by obtaining service of process within 90 days of the court’s adjudication of improper service.
On April 15, 1986, the district court agreed with both parties, holding that service was improper and K.S.A. 60-203(b) was applicable. The court dismissed Vogeler’s cause of action without prejudice to allow her to file a second action and obtain service on the defendant. The court stated that “[i]n the event the Court attains jurisdiction over defendant, the discovery made in this case shall be utilized in any subsequent proceedings.” When it dismissed the first action to allow Vogeler to obtain service upon Owen, the district court may have relied on language in Vernon’s Kansas C. Civ. Proc. § 60-203 (1984 Supp.), which considers a dismissal and refiling with service of alias summons as proper under 60-203(b).
On April 30, 1986, Vogeler refiled a duplicate of her first petition and obtained personal service on the defendant on May 2, 1986, within 90 days of the district court’s adjudication of improper service as prescribed by 60-203(b). Owen then moved to dismiss, claiming that Vogeler failed to commence the second action within the two-year limitation period. On July 18, 1986, the district court denied the motion, holding that “[t]his court is of the opinion that whether service was made in the initial action or in the refiled action is a procedural technicality and justice would not be served by plaintiff s cause of action being barred under these circumstances. . . . Here, the Court’s jurisdiction is not an issue. The only issue is whether in complying with K.S.A. 60-203(b) service is to be had in the initial action or the refiled case. Either procedure is within the spirit of K.S.A. 60-203(b).”
On that same day, this court decided Newell v. Brollier, 239 Kan. 587, 722 P.2d 528 (1986). In Newell, plaintiff filed an action against Brollier in 1979 which was dismissed in 1985 for lack of personal service. Two months after the dismissal, Newell filed a new lawsuit asserting the same causes of action, and obtained personal service. The district court dismissed the second case, finding that the statute of limitations barred that action. Newell appealed, contending that K.S.A. 60-203(b) extended the statute of limitations and authorized the refiling of his original claim to obtain service. We disagreed, holding that under K.S.A. 60-203(a) an action is commenced on the date the petition is filed if service is made within 90 days of filing (or 120 if extended by the court). If purported service, timely under K.S.A. 60-203(a), is later adjudicated defective, the action shall be deemed commenced as of the filing of the petition if valid service is made within 90 days (120 days if extended by the court) after the adjudication of invalidity under K.S.A. 60-203(b). We held that K.S.A. 60-203(b) does not authorize the filing of a new action after the first action has been dismissed. If a second action is filed, it is commenced on the date the second petition is filed even where service is obtained in the second action within 90 days of the dismissal of the first action. 239 Kan. at 588-89.
On September 10,1986, Owen renewed the motion to dismiss, arguing that under Newell the second action was commenced well beyond the two-year statute of limitations. In reply, Vogeler filed a motion pursuant to K.S.A. 60-260(b) requesting relief from the order dismissing the first action, arguing to avoid injustice the district court should vacate its order dismissing the original action and allow her to proceed to trial. Vogeler reasoned, in spite of her failure to properly serve Owen in the first action, Owen had full notice of that proceeding. Vogeler argued by refiling her action she had merely followed the court’s order and, under K.S.A. 60-260(b)(l), (6), the court should set aside its order dismissing the original action to avoid the manifest injustice she believed was caused by the district court.
The district court granted Owen’s motion to dismiss the second action. When granting the motion to dismiss the second action, the court recognized Newell held K.S.A. 60-203(b) did not authorize the filing of a new action. The district court then granted Vogeler’s motion to set aside the dismissal of the first action, observing that previously it had held she was entitled to the savings provision of K.S.A. 60-203(b). The court noted normally, if an action is dismissed the plaintiff is required to seek relief by appeal, but here, the court would not allow a mere technicality to keep Vogeler from presenting her cause of action.
In December, 1986, after Owen had moved for a rehearing, the court reversed and vacated its order setting aside the dismissal of the first action. The district court found Vogeler’s original motion was for relief from a judgment, and that her choice not to appeal the judgment dismissing the original action was calculated and deliberate and the result of free choice. The court determined that K.S.A. 60-260(b) is not intended to provide a procedure for challenging errors which should be corrected by appeal.
Vogeler appealed and the Court of Appeals noted the district court’s dismissal of the first action was inconsistent with the language of 60-203(b). It found that the district court’s dismissal ended Vogeler’s opportunity to obtain service under 60-203. Therefore, the Court of Appeals held, since she did not appeal the dismissal, she could not use 60-260(b) as a substitute for the appeal. Judge, now Justice, Six dissented, stating Vogeler’s choice not to appeal the dismissal of the original action was neither free, calculated, nor deliberate. He reasoned since the district court believed that 60-203(b) applied, saving the cause of action, Vogeler’s 60-260(b) motion should have been granted for “compelling considerations of justice.” We granted review.
K.S.A. 60-260(b) provides in part that, on motion and upon such terms as are just, the court may relieve a party or said party’s legal representative from a final judgment, order, or proceeding for the following reasons: “(1) mistake, inadvertence, surprise, or excusable neglect; ... or (6) any other reason justifying relief from the operation of the judgment.”
Clearly, K.S.A. 60-260(b) was not intended as an alternative method of appellate review nor as a means of circumventing time limits on appeal, except where required by compelling considerations of justice. It does not provide a procedure to challenge a supposed legal error of the court, nor to obtain relief from errors which are readily correctable on appeal. Neagle v. Brooks, 203 Kan. 323, Syl. ¶ 4, 454 P.2d 544 (1969). Although the broad language of 60-260(b)(6) authorizing relief for “any other reason justifying relief from the operation of the judgment” gives courts broad powers to vacate judgments, this power is not provided to relieve a party from a free, calculated, and deliberate choice. The party remains under a duty to take legal steps to protect his interests. Neagle, 203 Kan. 323, Syl. ¶ 5.
Vogeler argues the dismissal of her original action should be set aside for two reasons. First, she notes the trial court committed an unanticipated procedural error by determining that K.S.A. 60-203(b) permitted dismissal and refiling of the claim. Because she then merely followed the court’s apparently favorable ruling and refiled her petition, she should not be expected to have appealed the dismissal of the action without prejudice. Secondly, she contends there was no finality of the judgment because the district court, when dismissing her original action without prejudice, obviously intended the continuation of her action.
Owen counters by claiming relief under 60-260(b) is not appropriate because Vogeler’s dilemma was brought about by her own free, calculated, and deliberate choice. Owen contends Vogeler erred by (1) failing to obtain proper service even after notice that service was defective; (2) failing to appeal the trial court’s order of dismissal; and (3) misinterpreting K.S.A. 60-203(b) to allow filing a new claim, despite the absence of an appellate court decision to that effect. Owen argues, because of these errors, Vogeler cannot now claim trial court error as a basis for relief.
The Court of Appeals conceded the district court correctly held plaintiff s cause of action was saved by K.S.A. 60-203(b), but found the court then erred by ordering the first action dismissed without prejudice. The Court of Appeals noted Newell required the district court to find there had been defective service and then to allow plaintiff an additional 90 days to obtain service. See Hughes v. Martin, 240 Kan. 370, 372, 729 P.2d 1200 (1986). Nonetheless, the Court of Appeals determined that the burden of the court’s error should be borne by the plaintiff, who had the duty to appeal the erroneous dismissal of the first action. The Court of Appeals found, since plaintiff s choice not to appeal the district court’s dismissal of that action was free, calculated, and deliberate, plaintiff was not entitled to relief under 60-260(b). We disagree.
In Neagle, the appellant chose to file a new action in federal district court, rather than to appeal an adverse state court judgment. We affirmed the denial of appellant’s subsequent motion for relief from judgment in the state court action, holding 60- 260(b) was not enacted to relieve appellant from her free and deliberate choice. We noted that, rather than pursuing an appeal in state court, appellant’s apparent purpose in filing a new action in federal court was to obtain á more favorable result in the federal forum and that plaintiff offered no sound legal reason for that choice.
Here, the Court of Appeals found that Vogeler’s decision not to appeal the dismissal of her first action can be equated with Neagle’s choice not to appeal the state court judgment. The Court of Appeals believed since the district court’s dismissal of the original action without prejudice was procedurally incorrect, Vogeler was required to appeal the order. We disagree with this reasoning. Under the facts of this case, Vogeler could not have been expected to appeal a favorable ruling of the district court. In contrast to the appellant in Neagle, Vogeler’s actions were not motivated by a desire to manipulate the system. When Vogeler prevailed on April 15, the district court intended the continuation of the litigation by allowing her to file the second action. Vogeler was entitled to rely on the court’s favorable ruling. In addition, when the district court dismissed the first action, it did not have the guidance of our decision in Newell.
In In re Estate of Newland, 240 Kan. 249, 730 P.2d 351 (1986), we concluded that K.S.A. 60-260(b)(l) does not afford relief for mistakes of law, but 60-260(b)(6) may afford relief under appropriate circumstances where the scales of justice tilt in favor of the movant. In Wirt v. Esrey, 233 Kan. 300, 311, 662 P.2d 1238 (1983), we reviewed the equitable purposes of 60-260(b)(6):
“This rule, in its entirety, attempts to preserve the delicate balance between the conflicting principles that litigation be brought to an end and that justice be done in light of all the facts. Decisions under the parallel federal rule of civil procedure reflect the view that Rule 60 is to be ‘liberally construed ... in order that judgments will reflect the true merits of a case.’ 11 Wright & Miller, Federal Practice and Procedure: Civil § 2852, p. 143 (1973). Likewise, the liberality with which Rule 60(b) and particularly Clause 6 thereof should be applied is stated as follows in 7 Moore’s Federal Practice, ¶ 60.27(1), p. 342 (2d ed. 1982):
“ ‘Like Rule 60(b) generally, clause (6) should be liberally applied to situations not covered by the preceding five clauses so that, giving due regard to the sound interest underlying the finality of judgments, the district court, nevertheless, has power to grant relief from a judgment whenever, under all the surrounding circumstances, such action is appropriate in the furtherance of justice.’ ”
When determining whether to grant relief under 60-260(b)(6), Wirt directs us to balance the need for finality in litigation against the need for substantial justice under all the circumstances. See In re Estate of Newland, 240 Kan. 249. Here, the district court’s April 15 order allowing Vogeler to continue her action on the merits, though procedurally incorrect, was within the court’s power. Vogeler obtained service on Owen within 90 days of the district court’s adjudication of improper service. The district court’s reinstatement of the first action neither deprived nor prejudiced the rights of the defendant; both parties merely maintained the status quo as required by the statute. Under these circumstances, it does not serve the interests of justice to bar Vogeler from proceeding to litigate her claim on the merits because she relied on the district court’s order. The district court abused its discretion when it reversed its decision to reinstate the first action.
The decisions of the Court of Appeals and district court are reversed. The original action is reinstated and remanded to the district court for further proceedings.
Six, J., not participating. | [
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This original action in discipline was filed by the office of the Disciplinary Administrator against Donald H. Diggs of Wichita, an attorney admitted to the practice of law in the State of Kansas.
The facts are not in dispute. In 1986, respondent was participating in the federal Job Training Partnership Act (JTPA) program through the Human Resources Department of the City of Wichita. Respondent hired two persons for on-the-job training as secretaries under the JTPA program. The contracts with the City required respondent to keep certain records, make periodic reports, and file claims for payment of the trainees’ wages. The total amount paid by the City for the two trainees was $968.80. Claim forms were evidently filed in that amount. The forms were prepared by the trainees and signed by respondent as their employer. It was determined that the forms contained discrepancies resulting in overpayments although respondent apparently did not receive any part of the overpayments nor any part of the proceeds, all of which went to the two trainees.
Based upon the erroneous claims, respondent was charged with four counts of presenting a false claim, K.S.A. 21-3904, and one count of unlawful deprivation of property, K.S.A. 21-3705. All violations were Class A misdemeanors and on September 9, 1987, respondent pled guilty to the charges. Respondent was placed on probation by the District Court of Sedgwick County and, as one of the conditions thereof, he made restitution to the City of the entire $968.80.
Based upon respondent’s guilty plea, a formal complaint in discipline was filed with the Kansas Board for Discipline of Attorneys on December 9, 1987. At a hearing before a panel of the Board, it concluded that respondent’s actions constituted a violation of DR 1-102(A)(3), (4), (5), and (6) (1987 Kan. Ct. R. Annot. 123), and unanimously recommended that respondent be disciplined by public censure.
The court, having carefully reviewed the record, concurs in the recommendation of the hearing panel.
It Is Therefore Ordered that Donald H. Diggs be and he is hereby disciplined by public censure.
It Is Further Ordered that this order of public censure shall be published in the official Kansas Reports and that respondent shall pay the costs of this action. | [
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The opinion of the court was delivered by
Miller, J.:
Chris Kuone was convicted by jury trial in the Shawnee County District Court of indecent liberties with a child, K.S.A. 1987 Supp. 21-3503, and aggravated criminal sodomy, K.S.A. 1987 Supp. 21-3506. He was sentenced to concurrent terms of not less than three nor more than ten years for indecent liberties, and not less than five nor more than twenty years for aggravated criminal sodomy.
Kuone raises five issues on appeal. He contends that the district court erred: (1) in ruling that out-of-court statements made by the alleged victim were admissible pursuant to K.S.A. 1987 Supp. 60-460(dd) in that (a) the victim was not “unavailable” to testify, and (b) there were not “adequate indicia of reliability” surrounding her out-of-court statements; (2) in excluding evidence of the defendant’s good character; (3) in requiring the defendant to introduce the entirety of the transcript of the alleged victim’s preliminary hearing testimony; and (4) in limiting the defendant’s closing argument.
The main evidence against the defendant at trial took the form of hearsay statements made by the alleged victim, F.S., who is eleven years old and who is mildly retarded. She functions at the late first grade to early third grade level. The trial court determined that her hearsay statements relating to the charged crimes were admissible pursuant to K.S.A. 1987 Supp. 60-460(dd).
Before proceeding further, it will be helpful to discuss some of the principles and rules to be applied when admitting testimony under that section and when reviewing it on appeal. K.S.A. 1987 Supp. 60-460(dd) reads in part as follows:
“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:
“(dd) ... In a criminal proceeding . . . , a statement made by a child, to prove the crime . . ., if:
“(1) The child is alleged to be a victim of the crime or offense . . .; and
“(2) the trial judge finds, after a hearing on the matter, that the child is disqualified or unavailable as a witness, the statement is apparently reliable and the child was not induced to make the statement falsely by use of threats or promises.
“If a statement is admitted pursuant to this subsection in a trial to a jury, the trial judge shall instruct the jury that it is for the jury to determine the weight and credit to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, any possible threats or promises that might have been made to the child to obtain the statement and any other relevant factor.”
We first discussed the statute in State v. Myatt, 237 Kan. 17, 697 P.2d 836 (1985). There, it was challenged as being unconstitutional on various grounds. Chief Justice Schroeder, in a unanimous opinion for the court, said:
"In Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980), the United States Supreme Court established a two-part test for determining whether admission of out-of-court statements of a witness who does not testify at trial violates the defendant’s right to confrontation. First, the witness must be unavailable. Second, the witness’s out-of-court statements must have ‘adequate indicia of reliability.’
‘Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.’ (Emphasis added.) 448 U.S. at 66.
“K.S.A. 60-460(dd) allows for the admission of a child victim’s hearsay statements only if the two prongs of Roberts are met. First, the trial judge must hold a hearing to determine whether the child is disqualified or unavailable as a witness. See K.S.A. 60-417. A child is considered to be unavailable for constitutional purposes if the trial court determines that the child is incompetent to testify. Lancaster v. People, 200 Colo. 448, 453, 615 P.2d 720 (1980).
“If the trial judge finds the child is ‘unavailable,’ he must determine if the statement is ‘apparently reliable’ and ‘the child was not induced to make the statement falsely by use of threats or promises.’ See K.S.A. 60-460(dd). It is apparent to this court the legislature intended to incorporate the Roberts standard for admissibility into this statute. Through the use of the words ‘apparently reliable’ it is implicit that the judge must find the evidence contains ‘particularized guarantees of trustworthiness’ since the new statute is not a ‘firmly rooted hearsay exception.’
“The determination of reliability and trustworthiness must be made on a case-by-case basis. Such factors as the age of the child; his or her physical and mental condition; the circumstances of the alleged event; the language used by the child; the presence of corroborative physical evidence; the relationship of the accused to the child; the child’s family, school, and peer relationships; any motive to falsify or distort the event; and the reliability of the testifying witness can be examined. See, e.g., United States v. Nick, 604 F.2d 1199; State v. Rodriquez, 8 Kan. App. 2d [353, 355-57, 657 P.2d 79, rev. denied 233 Kan. 1093 (1983)]. Contrary to the defendant’s argument, the statute does not allow admission of the hearsay statements of a child victim for the sole reason that the statement was made by a child.
“Therefore, we hold K.S.A. 60-460(dd) does not per se violate the Sixth Amendment right to confrontation.” 237 Kan. at 24-25.
In Myatt, both parties stipulated that the six-year-old child victim was disqualified as a witness, and thus the first prong of Roberts was satisfied. Our opinion discussed the evidence at length, and concluded that the trial court did not err in determining the hearsay statements were “apparently reliable,” and in admitting them in evidence.
In In re Mary P., 237 Kan. 456, 701 P.2d 681 (1985), we found that the hearsay exception contained in 460(dd) did not apply in proceedings under the Kansas Juvenile Offenders Code. The legislature has since amended the statute, and it now specifically provides that it is applicable in “a proceeding pursuant to the Kansas juvenile offender’s code.”
State v. Lanter, 237 Kan. 309, 699 P.2d 503 (1985), was an indecent liberties case in which trial was held before our opinion in Myatt. Since the trial court in Lanter had not held a hearing and made the specific Roberts findings required by the statute, we remanded the case to the trial court for further proceedings in conformity therewith.
In State v. Jackson, 239 Kan. 463, 721 P.2d 232 (1986), we quoted from Myatt, stated the procedure for admission of testimony under 460(dd), and reviewed the action of the trial court in admitting such evidence. In State v. Johnson, 240 Kan. 326, 729 P.2d 1169 (1986), we again discussed the two-part test for determining the admission of out-of-court statements of a victim under 460(dd), quoted from Myatt, and analyzed challenges to other statutes in light of Myatt and Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980). In State v. Clark, 11 Kan. App. 2d 586, 730 P.2d 1104 (1986), the Court of Appeals was concerned with the failure of the trial court to give the particular instruction required when a child’s hearsay testimony was admitted under 460(dd). The defendant’s conviction was reversed on the one count requiring such an instruction.
We will first consider defendant’s second contention, that there were not “adequate indicia of reliability” surrounding the out-of-court statements. The out-of-court statements made by F.S. to her special education teacher, her mother, and an investigating police officer, as well as her testimony given at the preliminary examination, were entirely consistent. No contradictions of any consequence occur among any of the statements made by F.S. to these persons. She described the defendant’s sexual activities with her, and said that the defendant threatened to shoot her mother and brother if she told anyone what he had done. F.S. first revealed Kuone’s actions only upon the questioning by her special education teacher, which occurred after the teacher noticed that F.S. was unusually unsociable and “very elusive, didn’t want to speak to anybody, even when going over to her, she appeared to just stare into space, and didn’t really want to interact with anyone.” F.S.’s mother also noticed the significant change in her daughter’s behavior, and testified that she had discovered blood in F.S.’s underwear, although F.S. had not begun to menstruate. There appears to have been no ill feeling between the families of the victim and the defendant, and no reason for her to concoct an untrue story. Based upon this evidence, the trial court did not err in determining that the out-of-court statements made by F.S. possessed apparent reliability and, as testified to by the teacher, F.S.’s mother, and the officer, that there was no inducement to make false statements by the use of threats or promises.
We turn next to the defendant’s claim that F.S. was not unavailable to testify as a witness within the meaning of K.S.A. 1987 Supp. 60-460(dd)(2). The trial court characterized the basis for its finding of unavailability differently on various occasions. It first indicated that the basis for its finding of unavailability was the potential harm to F.S. if she testified at trial. Later, the trial court indicated that the basis for its ruling was a finding that F.S. was incompetent as a witness, and “out of contact with reality.” The trial court appears to have considered both. Later in the hearing, explaining his ruling that the child was unavailable, the trial judge said:
“The basis of my ruling was the testimony of the doctor after the preliminary hearing, and after examination of this young lady, she was out of contact with reality. That’s the exact words. Prior to that, prior to the preliminary hearing in May when he visited with her, that was not the case. That testimony, plus other testimony that he offered about the trauma that was caused by the complete breakdown as a result of the preliminary hearing was sufficient basis to find her unavailable to testify.”
Dr. Alan D. Megibow, a child psychiatrist, testified that he examined F.S. prior to the time she testified at the preliminary examination. He also examined her after her court appearance. He stated that there was a dramatic difference clinically. Prior to her appearance in court there was no clinical evidence of any psychotic functioning. There were no clinical psychotic findings. Afterwards, the doctor found her to be very disorganized, not fully in contact with reality, difficult to manage, disturbed in her thinking, and exhibiting a heightened level of anxiety. In his opinion, the impact of further court appearances would be extremely disorganizing for her. As to her earlier statements and preliminary examination testimony, the witness found consistency and detail far beyond what one would expect a child of her age and intellect to imagine. He had no reason to disbelieve her. He expressed the opinion that coming into the courtroom again as a witness would be a disastrous situation for her emotionally. He expressed the opinion that “there’s a great likelihood of this girl undergoing another severe psychotic break requiring acute hospital entries and medication,” and that further testimony would be more than painful; it would be disorganizing for her, and make her “far less functional than she is now, requiring all kinds of treatment that, for the moment, she’s getting along okay without.”
Dr. Megibow concluded his testimony on cross-examination by stating that future testimony of F.S. would depend upon her emotional status at the time. He could not state with medical certainty whether she could distinguish between reality and fantasy, or be able to recall and recount her past experiences. He testified, “Under stress, I don’t know what I would expect.”
Based upon Dr. Megibow’s testimony, the trial court found that F.S. was unavailable to testify as a witness within the meaning of 460(dd)(2). The defendant argues that only incompetence can satisfy the unavailability requirement of the statute. He argues that K.S.A. 60-417 is controlling for the purpose of determining the unavailability of a witness. That statute provides in substance that a person is disqualified to be a witness if a judge finds that the proposed witness is incapable of expressing himself or herself concerning the matter so as to be understood by the judge and jury, or the proposed witness is incapable of understanding the duty of a witness to tell the truth. Defendant relies upon our opinion in Myatt to support his argument.
Defendant’s contention is incorrect, although he correctly notes that in Myatt, 237 Kan. at 24-25, we said:
“A child is considered to be unavailable ... if the trial court determines that the child is incompetent to testify.”
However, both parties in Myatt stipulated that the child was disqualified as a witness. The stipulation satisfied the first prong of Roberts. Unavailability was not an issue. K.S.A. 1987 Supp. 60-460(dd)(2) specifically states “disqualified or unavailable as a witness.” The constitutional discussion in Myatt was based upon the decision of the United States Supreme Court in Ohio v. Roberts. The two-part test for determining the admissibility emanates from that decision. In Roberts, the unavailability prong of the test was satisfied not because the witness was incompetent, but because the State was unable to locate the witness after having made a good-faith effort to obtain his presence at trial. 448 U.S. at 74-75. Neither Myatt nor Roberts hold that incompetence is the sole basis for a finding that a child witness is unavailable.
The child hearsay statute expressly uses the term “unavailable as a witness.” The same term is defined in K.S.A. 60-459:
“60-459. Definitions. As used in K.S.A. 60-460, its exceptions and in this section:
“(g) ‘Unavailable as a witness’ includes situations where the witness is (1) exempted on the ground of privilege from testifying concerning the matter to which his or her statement is relevant, or (2) disqualified from testifying to the matter, or (3) unable to be present or to testify at the hearing because of death or then existing physical or mental illness, or (4) absent beyond the jurisdiction of the court to compel appearance by its process, or (5) absent from the place of hearing because the proponent of his or her statement does not know and with diligence has been unable to ascertain his or her whereabouts.”
Under K.S.A. 60-459(g)(2), a person may be unavailable as a witness where he or she has been disqualified from testifying as incompetent under K.S.A. 60-417. However, K.S.A. 60-459(g) also provides other situations in which a person may be found to be unavailable as a witness. Particularly relevant to the present case is subsection (3), which provides that a person may be unavailable where she is “unable to be present or to testify at the hearing because of death or then existing physical or mental illness.” Thus, a physical or mental condition which prevents a witness from appearing in court to testify may also constitute unavailability.
In State v. Ruebke, 240 Kan. 493, 517, 731 P.2d 842 (1987), the absent witness was held to be unavailable where he was suffering from second- and third-degree burns. There was a letter from the witness’ doctor stating “that it would not be in his best physical and mental well-being to appear in court and testify,” and there was testimony that he was sedated daily for pain and was not totally alert until late afternoon. 240 Kan. at 518. In State v. Steward, 219 Kan. 256, 547 P.2d 773 (1976), the out-of-court witness was in the “late stages of pregnancy, with high blood pressure and other complications.” 219 Kan. at 262. The doctor for the witness whose baby was due one to two months after trial was scheduled to commence testified that “she was in no shape to travel to Kansas City” for the trial. 219 Kan. at 262. In both Steward and Ruebke, the determination of witness unavailability was based on the potential physical harm to the witnesses were they to testify at trial. In the present case, there is significant medical testimony that the witness would likely suffer serious emotional or mental difficulties from testifying at trial. Neither party has cited a Kansas case dealing with the unavailability of a witness-victim based on emotional or mental illness, and we have not found a discussion of this specific issue by a Kansas appellate court.
Several appellate courts in other jurisdictions have addressed the issue of the unavailability of witnesses in sexual assault cases due to the psychological trauma inflicted upon the witness. In Warren v. United States, 436 A.2d 821 (D.C. 1981), the defendant was charged with eleven counts of kidnapping and sexual assault. On retrial, the trial court had excluded the hearsay statements of one of the complaining witnesses, Linda Jenkins, finding insufficient evidence to conclude that Jenkins was unavailable as a witness. The trial court noted that the medical experts testifying in the case disagreed regarding the relative mental harm likely to be suffered by Jenkins’ testifying “in relation to the burden carried by the average victim-witness.” 436 A.2d at 829.
The trial court, however, found that a second complaining witness, Marilyn Reed, was unavailable. The District of Columbia Court of Appeals upheld the conclusion that Reed was unavailable to testify at trial, noting: “In contrast to the conflicting prognosis for Jenkins, the experts substantially agreed on the severity of the injury to befall Marilyn Reed were she forced to relive the events of her rape through another court appearance.” Warren, 436 A.2d at 829. The medical testimony indicated that Reed was suffering from severe mixed psychoneurosis with emphasis on depressive mood. She was suicidal and remained so at the time of the hearing. She had changed her name, religion, and lifestyle since the rape. One doctor testified that the trauma of again testifying in court would possibly result in permanent psychological injury. On appeal, the Court of Appeals quoted the trial court’s finding that the medical experts agreed that Reed “ ‘would undergo far greater mental anguish than normally accompanies court appearances of the victims of rapes (and presumably other such crimes as kidnapping, terrorism, and hijacking) and that her appearance in court . . . would be likely to lead to severe psychosis, even possible suicide.’ ” 436 A.2d at 828. The Court of Appeals found that the record supported the trial court’s conclusion.
The District of Columbia Court of Appeals approved the trial court’s action which “cautiously extended the traditional definition of witness unavailability to include psychological unavailability of the type demonstrated in the case of Marilyn Reed, but to exclude the lesser degree of psychological infirmity demonstrated by Linda Jenkins.” 436 A.2d at 828. In so ruling, the Court of Appeals stressed the limited nature of its ruling:
“The ruling below was not only supported by the evidence, but was also a reasonable construction of the witness unavailability rule. We do not intend to sanction a new category of medical unavailability in all cases where witnesses are likely to suffer adverse emotional or psychological effects as a result of testifying against their assailants. But in the extreme circumstances presented here, we agree that the grave risks to the witness’ psychological health justify excusing her’live in-court testimony. The expert testimony relating to Reed’s mental health established that there was both a high likelihood of temporary psychological injury, perhaps even psychosis, and a possibility of permanent psychological injury.” Warren, 436 A.2d at 829-30.
The court cited the only two cases it was aware of that had interpreted codified rules of evidence which included mental illness within the definition of unavailability:
“In People v. Gomez, 26 Cal. App. 3d 225, 230, 103 Cal. Rptr. 80, 83-84 (1972), the California statute was interpreted to require a showing that ‘the illness or infirmity must be of comparative severity; it must exist to such a degree as to render the witness’ attendance, or his testifying, relatively impossible and not merely inconvenient.’ In Gomez, the witness’ unavailability under this standard was established by two psychiatrists who testified that she was ‘very vulnerable to stress; she had a tendency to psychomotor seizures which were difficult to diagnose and treat’ and that her present and future mental health might well be injured by testifying before the court. Id. at 228, 103 Cal. Rptr. 82.
“The decision in People v. Lombardi, 39 App. Div. 2d 700, 701, 332 N.Y.S.2d 749, 750-51 (1972), affd 33 N.Y.2d 658, 348 N.Y.S.2d 980, 303 N.E.2d 705 (1973), cert. denied, 416 U.S. 906, 94 S. Ct. 1611, 40 L. Ed. 2d 111 (1974), upheld a lower court finding that it would endanger the witness’ health to testify again, where testimony by the witness’ husband and her psychiatrist could reasonably have satisfied the court that had the witness ‘been required to appear and testify in person . . . her mental and physical health would have been seriously jeopardized’ and would have resulted in a ‘further and perhaps successful attempt at suicide.’ The witnesses in both the California and New York cases were rape victims.” Warren, 436 A.2d at 827.
In finding the trial judge’s ruling was supported by the evidence, the court cited with approval the following factors as relevant to the determination of whether a witness is unavailable because of anticipated psychological trauma or disability if required to testify:
“(1) the probability of psychological injury as a result of testifying, (2) the degree of anticipated injury, (3) the expected duration of the injury, and (4) whether the expected psychological injury is substantially greater than the reaction of the average victim of a rape, kidnapping or terrorist act. Just as in the case of physical infirmity, it is difficult to state the precise quantum of evidence required to meet the standard of unavailability. The factors should be weighed in the context of each other, as well as in the context of the nature of the crime and the pre-existing psychological history of the witness.” Warren, 436 A.2d at 830 n.18.
The Seventh Circuit in a case where the prosecution sought to have the victim declared unavailable because of then existing mental illness, applied similar standards in Burns v. Clusen, 798 F.2d 931, 937-38 (7th Cir. 1986), and stated:
“In a situation where the State argues that a witness is unavailable because of mental illness, the judge must consider both the duration and the severity of the illness. With regard to duration, it is not essential to a finding of unavailability that the illness be permanent. The duration of the illness need only be in probability long enough so that, with proper regard to the importance of the testimony, the trial cannot be postponed, United States v. Amaya, 533 F.2d 188, 191 (5th Cir. 1976), citing 5 Wigmore, Evidence § 1406(a) (Chadbourn rev. 1974). In the case of a mental rather than a physical disability, the trial judge’s task is more difficult because there is often greater uncertainty as to the prognosis. Parrott v. Wilson, 707 F.2d 1262 (11th Cir.), cert. denied, 464 U.S. 936, 104 S. Ct. 344, 78 L. Ed. 2d 311 (1983). A judge must weigh the desirability of a speedy trial against the possibility that a further delay may find the declarant competent.
“As to severity, mental illness itself may not automatically render a witness unavailable. The judge must consider the symptoms, what tasks a witness is then capable of. While all victims of violent crimes may suffer emotional trauma, some victims may suffer far greater anguish than normally accompanies court appearances.”
The Seventh Circuit concluded that the sexual assault victim was not proven to suffer from a psychological condition of such duration that she could be considered unavailable as a witness. The court stressed the lack of consistent medical expert testimony with regard to the duration of the victim witness’ mental impairment.
At the close of the 460(dd) hearing in this case, the trial court found that the child was unavailable as a witness, that her statements were apparently reliable, and that she was not induced to make the statements falsely by use of threats or promises. Our function, as an appellate court, is to determine from a thorough review of the record whether there is sufficient competent evidence, when viewed in the light most favorable to the prevailing party below, to support the trial court’s findings.
The District of Columbia Court of Appeals set forth in Warren several factors as relevant to the determination of whether a witness is unavailable. These factors, while not exclusive, are helpful. The trial judge in the present case did not have these factors called to his attention to assist in evaluating the evidence, but they may be helpful in future cases. We will review the evidence before the trial judge in this case in light of the Warren factors.
First, the testimony of the child psychiatrist indicates that, in his professional opinion, requiring the child to give further testimony in court would be disastrous to her emotionally. He was of the opinion that there is great likelihood that she would undergo another severe psychotic breakdown. This would require further hospitalization, medication, and treatment. Her earlier testimony caused her to suffer an acute break with reality. The probability of psychological injury as a result of testifying further would appear probable if not certain.
Second, the witness was a retarded child who attended special education classes. She had had the same teacher for four years, and she was able to learn on approximately a second grade level. She was apparently in full contact with reality prior to the preliminary hearing. Requiring her to testify would, according to the child psychiatrist, likely cause another severe psychotic break, such as she suffered following the preliminary examination. It would be more than painful; it would be disorganizing, would cause her to be less functional than she now is, and would require all kinds of treatment which she does not otherwise need. The degree of anticipated injury appears to be substantial.
Third, the psychiatrist expressed no opinion as to the expected duration of the expected psychological injury. However, the child suffered a severe psychological injury at the time of the preliminary examination, and was hospitalized, given medication, and treated. Almost three months later, when the 460(dd) hearing was held, the child had not returned to her normal mental state. It is obvious that the psychiatrist was not speaking of a trifling or fleeting psychological injury, but one that would continue for many months, a substantial injury.
Finally, from what we have said above, it is obvious that the expected psychological injury to this child, should she be required to testify further, would be substantially greater than the reaction of the average victim of a rape or other sexual assault. The trial court was certainly aware that most victim witnesses do not, as a result of testifying, suffer severe and long-lasting breaks with reality requiring hospitalization.
We conclude that there was ample competent evidence to support the finding of the trial court that the witness was unavailable. This includes her history, retardation, and mental condition; the extent and severity of the breakdown she suffered immediately following the preliminary examination; and the opinion of the child psychiatrist as to the consequences to be expected should she be required to testify in the case again.
Defendant next contends that the trial court erred in excluding the opinion testimony of witnesses as to his good character. During the course of the trial, the defense attempted to introduce the testimony of Mr. and Mrs. Thomas M. Smith and Jim Rogers, friends and neighbors of the defendant. Counsel for the defendant characterized their testimony in a proffer to the court:
“That all these people are neighbors of Mr. Kuone; that all of them that had contact with him over a fairly regular basis over the last eight or nine years; that all of them have come to know him; that they, based upon their knowledge of him and their conversations with him and seeing him in the community, in their neighborhood, that they have an opinion as to whether or not he has a propensity for violence or is a violent-sort of fellow, I believe their testimony would be, ‘No,’ that they do not believe that; that whether they have an opinion as to whether he is a good citizen and good, law-abiding neighbor, and I think their testimony would be that, in their opinion, he is.”
The trial court refused to admit the testimony of Rogers and the Smiths based upon its conclusions that character evidence in the form of the opinion of lay witnesses is inadmissible and that the evidence lacked probative value.
On appeal, the State argues that the basis for the exclusion of the opinion testimony in the present case was a lack of foundation. However, lack of foundation was not the basis upon which the opinion evidence in the present case was excluded, nor would such an exclusion be justifiable had such been the case. The portion of the record that the State cites relates not to the opinion testimony of the defendant’s witnesses, but to the initial questioning of Thomas Smith regarding his knowledge of the defendant’s reputation within the community. Smith testified that he had no knowledge of the defendant’s reputation within the community. However, there is no basis in the record for finding lack of foundation for the opinion evidence of the witnesses. Smith testified that he is the defendant’s neighbor and has known the defendant for eight to ten years. With regard to the other character witnesses that the defendant sought to introduce, defense counsel’s proffer indicated that they had been in personal contact with the defendant on a fairly regular basis for eight to nine years and that they were prepared to give an opinion on his lack of propensity for violence and his law-abiding nature. The victim had said that the defendant threatened to shoot her mother and her brother if she told anyone of defendant’s actions, and thus the proffered character evidence was material. There was no basis for concluding that the personal opinion testimony of the witnesses was without foundation. Each had lived nearby and had had frequent contact with the defendant over an eight- to ten-year period. Instead, the trial court’s exclusion of the three witnesses’ opinion testimony can be justified only if the rationale offered by the trial court for its ruling is correct; that is, that lay witness opinion testimony as to the defendant’s good character is inadmissible and without probative value.
Both conclusions of the trial court are erroneous. K.S.A. 60-447 provides the basic standard for the introduction of character evidence as proof of a person’s conduct. The pertinent portions of that statute provide:
“Subject to K.S.A. 60-448 when a trait of a person’s character is relevant as tending to prove conduct on a specified occasion, such trait may be proved in the same manner as provided by K.S.A. 60-446, except that ... (b) in a criminal action evidence of a trait of an accused’s character as tending to prove guilt or innocence of the offense charged, (i) may not be excluded by the judge under K.S.A. 60-445 if offered by the accused to prove innocence, and (ii) if offered by the prosecution to prove guilt, may be admitted only after the accused has introduced evidence of his or her good character.”
K.S.A. 60-448 prohibits the use of evidence of a person’s character with respect to care or skill to prove the quality of his or her conduct on a particular occasion. That is not applicable in the present case. K.S.A. 60-446 defines the forms by which character may be proven:
“When a person’s character or a trait of his or her character is in issue, it may be proved by testimony in the form of opinion, evidence of reputation, or evidence of specific instances of the person’s conduct, subject, however, to the limitations of K.S.A. 60-447 and 60-448.” (Emphasis supplied.)
K.S.A. 60-446 explicitly includes opinion testimony within the permitted manners of proof of a person’s character. In his work, 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-446 (1979), Judge Gard says: “Evidence in the form of opinion as to a character trait in issue is generally admissible under prevailing rules and is made so by this section.” In addition, the trial court erred in concluding that the evidence of the defendant’s good character would lack probative value. When a defendant in a criminal action seeks to present evidence of his character which would tend to prove innocence, K.S.A. 60-447 expressly provides that the evidence may not be excluded under K.S.A. 60-445, which gives the trial judge the discretion to exclude evidence when its probative value is substantially outweighed by the risk of prejudice.
In State v. Sullivan & Sullivan, 224 Kan. 110, 124, 578 P.2d 1108 (1978), the trial court refused to allow the defendant’s employer to testify as to the defendant’s good character. In holding the trial court erred, we said:
“K.S.A. 60-447 provides, if a character trait is relevant, evidence of specific instances which tend to prove the trait may be introduced in a criminal action if offered by the accused to prove innocence. K.S.A. 60-448 relates to traits of care and skill and is inapplicable in the present case.
“The state argues the testimony was offered in support of defendant’s credibility and properly excluded as not bearing on truth and veracity. The record indicates that appellant John was attempting to introduce evidence of his good character and it was error for the trial court to sustain the state’s objection to this evidence. It is not necessary for us to determine whether the error was harmless since a new trial is necessary on other grounds.”
The decision of a defendant to offer evidence of his good character is not a decision lightly undertaken since, once introduced, the prosecution may provide rebuttal evidence of the defendant’s lack of good character to prove guilt. In the present case, however, the defendant concluded that it would be beneficial to his case to introduce evidence relating to his law-abiding character and his lack of propensity for violence. The case against the defendant was almost solely based upon the testimony of F.S. The defendant’s testimony and the evidence of his good character comprised his entire defense. The physical evidence was inconclusive and, contrary to the State’s contention, no other character witness was allowed to testify for the defendant. We conclude that the trial court erred in refusing to admit the evidence.
Whether this error was harmless, however, is another question. Kuone was charged with two crimes, indecent liberties with a child and aggravated criminal sodomy. The State did not charge that the victim’s resistance was overcome by force or fear, or that the defendant used force on any occasion. Although only two counts were charged, there was evidence of a series of similar incidents involving defendant with the eleven-year-old mentally retarded victim over a period of time. The character trait at issue was whether the defendant was a child molester or pedophile.
The excluded testimony has nothing to do with proving defendant’s guilt or innocence of the two crimes charged. The proffered character evidence went only to refute a statement by the victim, a statement of fact unnecessary to establish the offenses. Character testimony that would be relevant to disprove the charges, for example, would be that defendant had been around young girls frequently in situations where similar conduct could have occurred, but that the defendant had always behaved in an acceptable manner. The proffered testimony had no bearing on whether defendant committed the acts charged, and for that reason we hold that its exclusion, while error, was harmless.
The defendant next takes issue with the trial court’s ruling on the introduction into evidence of the preliminary hearing transcript. During the presentation of the defendant’s case, defense counsel sought to introduce the transcript of the cross-examination of F.S. taken at the preliminary hearing. The trial court ruled that counsel could present the transcript of the cross-examination testimony, but required that the direct examination of F.S. also be presented. The defendant now argues that the trial court erred in requiring him to introduce, as a part of his defense, evidence of F.S.’s direct examination testimony. We agree.
However, the defendant does not indicate the nature of any prejudice as a result of the trial court’s action. The direct examination testimony was properly admissible after the defendant introduced F.S.’s cross-examination, but should have been admitted and clearly identified as part of the State’s case, rather than the defendant’s. We have repeatedly held that errors which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining do not require reversal when substantial justice has been done. State v. Lowe, 238 Kan. 755, 765, 715 P.2d 404 (1986). That is the case here; the evidence was admissible, and we find no substantial prejudice or reversible error in the manner in which it was admitted.
Finally, defendant contends the district court erred in limiting his closing argument. In the course of the statements made by F.S. against the defendant, she also indicated that she had had sexual contacts with several other persons. Counsel for the defendant now argues that the trial court erroneously prohibited him from asking the jury during closing argument why the authorities had failed to investigate, apprehend, and charge any other individuals.
The trial court gave the defendant broad leeway to stress F.S.’s statements relating to sexual contacts with persons other than the defendant, but prohibited speculation upon why the State had failed to apprehend and prosecute other individuals. The trial court stated:
“I want to indicate to Mr. Brunton that I think he can argue about the testimony relative to these other people, but I don’t think he can argue, ‘Why aren’t they sitting at the defense table?’
“. . . I think you have a right to talk about the accusations made by [F.S.] against these other people, but I don’t think you have a right to ínflame. I think it would [be inflaming] the jury to a point where I don’t know if a jury can be repaired, so I would allow you broad discretion in your argument, but I’m not going to allow you to talk about, ‘Why haven’t they been charged?’ ”
The scope of oral argument generally lies within the sound discretion of the trial court, and the court’s rulings will form no basis for a reversal absent a showing of abuse of discretion. Here, we find no abuse of discretion in the modest limitation placed by the court on defense counsel’s closing argument. The matter of why others had not been charged was outside of the evidence, outside of the issues in this trial, and wholly immaterial. However, even assuming that the trial court abused its discretion in limiting defense counsel’s closing argument, no reversible error is presented in this case. The record indicates that counsel for the defendant failed to make any formal objection to the trial court’s decision. Indeed, the record fails to reveal even an informal expression of disagreement with the trial court’s ruling.
The judgment of the trial court is affirmed. | [
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On January 18, 1991, this court placed respondent on probation for a period of two years with specific conditions of supervision. In re Evans, 248 Kan. 176, 180, 804 P.2d 344 (1991).
This court finds that the Disciplinary Administrator has filed a second report verifying that respondent has fully complied with all conditions imposed upon him by this court and recommending that respondent be discharged from probation.
Therefore, this court, having reviewed the files and recommendations of the Office of the Disciplinary Administrator, finds that respondent Willis Boyd Evans, Jr., should be discharged from probation.
It Is Therefore Ordered that respondent is discharged from probation and from any further obligation 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 respondent. | [
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The opinion of the court was delivered by
Six, J.:
This is an administrative law case arising out of a conflict between the Kansas Racing Commission (KRC) and a racetrack manager.
Virgil Delbert Reed, former general manager of the Wichita Greyhound Park, appeals the district court’s affirmance of an order entered by the KRC under the Parimutuél Racing Act, K.S.A. 74-8801 et seq.- The order revoked his occupation license, fined him $6,000, and permanently excluded him from the park. Our jurisdiction is under K.S.A. 20-30l8(c) (transfer from the Court of Appeals on motion of this court).
The Kansas Administrative Procedure Act (KAPA), K.S.A. 77-501 et seq., and the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., furnish the procedural perimeters for our review.
The field of appellate inquiry considers issues presented by Reed concerning (1) the sufficiency of the notice of the- charges against him; (2) the lack of substantial evidence supporting the KRC order; and (3) the validity of statutes and KRC regulations which were attacked as being unconstitutionally vague.
As more fully set out in the opinion, we affirm on the substantial evidence and vagueness issues and reverse on the sufficiency of the notice issue.
Facts
Reed was employed by Wichita Greyhound Park, Inc., a for-profit corporation which is the “facility owner licensee” for the park. See K.S.A. 74-8802(3). He was issued an occupation license by the KRC in March 1990, in connection with his employment. State racing judges officiating at the racetrack conducted an emergency misconduct hearing under K.S.A. 74-8816(h) in September 1990 and suspended Reed’s license. The KRC, following the emergency hearing, issued a notice of formal hearing which contained a list of alleged violations.
The notice of hearing was orally amended at a prehearing conference. The KRC chairman, who was presiding at the conference, ordered that Reed be furnished with the specific allegations of perjury by October 2 (eight days prior to the KRC hearing). The chairman also ordered:
“The administrative hearing in this case is limited to the allegations as set forth in the request for hearing and notice of formal hearing as orally amended in this prehearing conference unless amended or joined by order of the presiding officer after written motion filed by petitioner’s counsel [the KRC’s attorney] and an opportunity to respond is afforded to respondent.” (Emphasis added.)
An amended hearing notice incorporating 11 specific perjury charges was issued. There were no further amendments to the charges against Reed.
The content of the five counts in the amended hearing request overlapped. The charges, according to their topical substance, are: (1) the telefax charge; (2) the perjury charge; (3) the “unqualified” to be general manager charge; (4) the loan to make a bet charge. The fifth count was a request to bar Reed from the Park.
The KRC conducted a four-day formal administrative hearing. Reed was found to have committed violations in three of the four charges (no violation was found on the loan charge). Summarized, the KRC’s order was as follows:
Count Violation Penalty
COUNT I K.A.R. 112-ll-21(a) license revoked;
(1991 Supp.), receiving fined $5,000
gambling information;
K.S.A. 21-3805 giving
false testimony
under oath
COUNT II K.A.R. 112-11-210) and (k) (1991 Supp.), receiving gambling information license revoked; fined $500
COUNT III K.S.A. 74-8816(b), occupation license; K.S.A. 74~8816(e)(3), (5), unqualified to perform duties of his license license revoked; fined $500
COUNT IV K.S.A. 74-8819(f), loaning no violation money to wager
COUNT V based on violations K.S.A. 74-8804(f)(l), stated in counts I-III (3); excluded from racetrack facilities in Kansas
Reed, in a petition for reconsideration, sought rescission of the fines and modification to reflect that he was guilty only of negligence. The order was modified as to Count III in accordance with Reed’s request on a charge referred to as the Coleman Washington incident.
The Telefax Charge
In August 1990, a two-page message for Rudy Williams, a professional gambler and a regular customer at the Park, was received on the Park’s telefax machine. The fax contained information to be used by Williams in placing bets that day at the Park. As a result of the interaction between Reed and Williams in connection with the fax, Reed was charged with violating KRC regulation K.A.R. 112-ll-21(a) (1991 Supp.) (Count I) (prohibiting violation of federal, state, or local laws by any person while on the grounds of a racetrack facility). Reed was so charged because of allegations he violated K.S.A. 21-3805 (perjury) and 18 U.S.C. § 1084(a) (1988) (prohibiting the use of wire communication to transmit information assisting in the placing of bets or wagers at a sporting event or contest while on park grounds). The KRC alleged that 18 U.S.C. § 1084(a) was violated through Reed’s “acquiescing in and permitting the use of the racetrack’s telefax machine to receive gambling information.”
This same telefax acquiescence formed the basis for Count II, which alleged that Reed violated K.A.R. 112-ll-21(j) (1991 Supp.) (“When on the grounds of a racetrack facility, no person shall: . . . [j] unless authorized by the stewards or racing judges, use any radio transmitter or other transmitting device at a racetrack facility during a race meet.”) and K.A.R. 112-ll-21(k) (1991 Supp.) (“When on the grounds of a racetrack facility, no person shall: . . . (k) unless authorized by the commission, transmit or receive or attempt to transmit or receive wagering information through the use of a communication device.”).
The KRC found clear and convincing evidence that Reed had permitted gambling information to be received on the telefax machine.
Reed contends that he did not (1) see gambling information on the fax sheet; (2) give permission to Williams to use the telefax machine; and (3) know the machine had been used until after the fact.
The trial judge reviewed the evidence and found, among other things, that Reed (1) attempted to locate the fax for Williams; (2) was present when an office employee handed the fax to Williams; and (3) saw the top page of the fax, which contained twin-tri and pick-six wagering information.
Reed emphasizes that the KRC did not find that he had authorized use of the Park’s telefax machine, nor did it find that he had given Williams permission to receive the information on the Park’s machine. Reed asserts that all the KRC found was that he was aware, after the fact, that gambling information for Williams was received on a telefax machine.
Perjury
The giving false information under oath charge related to perjury allegedly committed at the emergency hearing. Count I set out 11 specific incidents of perjury, all relating to the Reed-Williams relationship at the Park after the fax arrived. A specific page of the hearing transcript was referenced for each incident. Count I also stated: “In addition to the foregoing separately numbered areas of false testimony, special counsel [for the KRC] hereby incorporates by reference each and every variance between the statements given by Virgil Delbert Reed under oath at the September 8 and 9, 1990, emergency hearing.”
The KRC found that Reed, in four situations, willfully and knowingly gave false testimony under oath: i.e., (a) Reed’s denial of any knowledge or information that gambling information was being received on a telefax machine at Wichita Greyhound Park on August 31, 1990; (b) Reed’s description of the events in connection with his meeting Rudy Williams on August 31, 1990; (c) Reed’s role in writing the Idaho racing regulations; and (d) Reed’s participation on an Iowa senate committee on parimutuel rules.
. The “Unqualified” to be General Manager Charge
An occupation license may be denied, suspended, or revoked if an applicant “is not qualified to perform the duties associated with the license being applied for.” K.S.A. 74-8816(e)(3) and (f).
Count III alleged that Reed intentionally disregarded and displayed a predilection to disregard, at his pleasure, certain KRC regulations: (1) K.A.R. 112-11-7 (1991 Supp.) provides that track security personnel must cooperate with law enforcement agencies having jurisdiction to enforce criminal laws and regulations at racetrack facilities. Reed disciplined Dan Hall, a former assistant director of security, for answering a question from counsel for the KRC in the presence of various KRC officials (including Ben Travis, the Director of Racing). The question related to defective heat alarms. (2) Reed also disciplined Hall because one of Hall’s subordinates attempted to enforce the provisions of K.A.R. 112-11-10 (1991 Supp.) (relating to state license and visitors’ passes) with respect to Coleman Washington (Director of Housekeeping). Reed took the position with senior security staff that his personal will and desires had precedence over the Kansas law and regulations requiring occupation licensing. Reed stated that Coleman Washington should be permitted to work without an occupation license, in violation of K.S.A. 74-8816(b), and that security personnel should not question Reed’s wishes or embarrass management personnel by attempting to enforce the law. In connection with Hall’s response to KRC counsel’s questions relating to defective alarms, Reed charged Hall with disloyalty to the track management and with failure to act like a team player. Reed discharged Hall in August of 1990.
Reed disputes the contention that he took disciplinary action against Hall as a result of either incident. Reed’s testimony indicates that he believed he had sent Hall a “counseling statement” and had not “disciplined” Hall.
The KRC found, under Count III, that Reed was unqualified to perform the duties associated with his position as general manager.
The trial court affirmed the KRC on Count III. In reviewing the Coleman Washington incident, the court stated:
“Shortly before noon on June 27, 1990, Mr. Washington arrived at the commission licensing office with Mr. Reed. Mr. Reed stated that security had failed to offer Mr. Washington a visitor’s pass, but a commission'license clerk had been informed to the contrary by a security officer, and she explained to Mr. Washington that the security officers were just doing their jobs. Mr. Reed interjected ‘the hell with security.’ The clerk stated security was merely enforcing the regulations established by the state legislature, but Mr. Reed stated that ‘legislators make rules because they have nothing better to do.’
“On July 3, 1990, six days after the Coleman Washington incident, the general manager summoned Security Director Jack Henderson and Assistant Security Director Dan Hall to his office and verbally chastised them for filing a state report of violation regarding the June 27, 1990 Coleman Washington incident. Mr. Reed referenced a report of violation prepared ,by security officer Randal Smith, and said he would not have his friend Mr. Washington or other department heads treated in such a manner. Mr. Reed further stated ‘he did not care about the dogshit rules of Kansas, this was his track, and he was going to do things his way.’ ”
In reviewing the Ben Travis incident, the court stated:
“At a July 3, 1990 meeting in Mr. Reed’s office, the general manager verbally reprimanded Assistant Security Director Dan Hall for three complaints'made by the track’s director of bars and concessions concerning three incidents that allegedly occurred in June. Mr. Hall testified that the cited incidents did not occur and that he had attempted to explain to Mr. Reed that they never occurred, but the general manager cut Mr. Hall off. Later the same day Mr. Reed issued written reprimands to Mr. Hall in connection with the three complaints and a fourth complaint, which charged Mr. Hall with inappropriately providing information on defective heat alarms to representatives of the Kansas racing commission on June 20, 1990.
“Three employees mentioned in the complaints written by the director of bars and concessions testified that the complaints were inaccurate, and the reported incidents did not occur, or did not occur in a way so as to reflect poorly on Mr. Hall. Although Mr. Hall filed written responses to all of the written complaints and write-ups, and requested a hearing with Mr. Reed, the director of bars and concessions, and the employees mentioned in the written complaints, Mr. Reed refused to grant such a hearing and the reprimands stood as issued.”
The Request to Bar Reed from the Park
Count V, which contained no additional substantive allegations, requested that Reed be excluded from Kansas racing facilities under K.S.A. 74-8804(f)(l) and (3). Reed was charged with having “violated provisions of the Pari-Mutuel Racing Act, and the rules and regulations of the Racing Commission, and as a person whose presence reflects adversely on the honesty and integrity of greyhound racing.” The KRC, by a three to two vote, determined that Reed’s “presence in the future at Wichita Greyhound Park could raise questions as to allegations of impropriety and be extremely disruptive to employees who might have been working at the racetrack while the respondent was general manager.”
The Standard of Review
Our standard of review is statutorily defined by the KJRA, K.S.A. 77-601 et seq.
K.S.A. 77-623 provides that agency actions are reviewable by appellate courts as in other civil cases.
K.S.A. 77-621(c) states:
“The court [the district court in the case at bar] shall grant relief only if it determines any one or more of the following:
(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied;
(4) the agency has erroneously interpreted or applied the law;
.(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure;
(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole . . . ; or
(8) the agency action is otherwise unreasonable, arbitrary or capricious.”
We exercise the same review of the agency’s action as does the district court. Peck v. University Residence Committee of Kansas State Univ., 248 Kan. 450, 455-56, 807 P.2d 652 (1991). We must accept as true the evidence and all inferences to be drawn therefrom which support or tend to support the findings of the trial court. We are to disregard any conflicting evidence or other inferences which might be drawn therefrom. Vakas v. Kansas Bd. of Healing Arts, 248 Kan. 589, 604, 808 P.2d 1355 (1991). “A rebuttable presumption of validity attaches to all actions of an administrative agency and the burden of proving arbitrary and capricious conduct lies with the party challenging the agency’s action. Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. 343, 344, Syl. ¶¶ 8, 9, 770 P.2d 423 (1989).” Kaufman v. Kansas Dept. of SRS, 248 Kan. 951, 961, 811 P.2d 876 (1991).
We extend deference to an agency’s interpretation of its own regulations. The interpretation will not be disturbed on appeal unless it is clearly erroneous or inconsistent with the regulation. In re Tax Appeal of Newton Country Club Co., 12 Kan. App. 2d 638, 647, 753 P.2d 304, rev. denied 243 Kan. 779 (1988). The extension of deference, however, does not mean that we abdicate our responsibility of judicial oversight in the review of agency actions.
Notice of the Allegations of Misconduct
Reed argues that when the KRC found him unqualified to be general manager, it did so based on conduct which was not charged in the amended hearing notice.
Reed also contends that the KRC found him guilty of conduct not specified in the amended hearing notice in connection with the perjury charge. According to Reed, the four instances in which the KRC found him guilty of perjury were not among the initial 11 specified in the hearing notice. Reed reasons that to convict him of perjury, the KRC had to concoct four other charges that he did not know about until he read the KRC’s final order. Additionally, he emphasizes that the prehearing conference order contained a precise requirement for notice of the charges, as well as a limitation on the issues to be heard by the KRC. Reed observes that no further amendments to the charges against him were presented prior to the KRC hearing. We consider the chairman’s prehearing conference order limiting the issues to be heard of significance in resolving the perjury notice issue.
The absence of sufficient notice is important because K.S.A. 74-8816(f) expressly provides that proceedings to revoke an occupation license or impose a fine shall be conducted in accordance with the KAPA. Notice and a hearing are . required before the KRC can revoke a license. K.S.A. 77-512. The notice must contain “a statement of the issues involved and, to the extent known to the presiding officer, of the matters asserted by the parties.” K.S.A. 77-518(c)(7). Reed also contends that the lack of notice violated his constitutional right to procedural due process under the Fourteenth Amendment.
The KRC, in response to Reed’s due process claim, emphasizes its regulation K.A.R. 112-4-6 (1991 Supp.).
“License subject to conditions and agreements, (a) Each, license issued to a licensee by the commission shall remain the property of the commission.
“(b) Possession of a license shall not confer any right upon the holder to employment at a racetrack facility.”
Consequently, the KRC has explicitly stated that an occupation license, which is required before an individual can work at a racetrack facility (K.S.A. 74-8816 and K.A.R. 112-4-1 [1991 Supp.]), does not confer a property right in the license or in a position at a racetrack. According to the KRC, an individual must have some type of protected property interest before substantive due process is implicated. See Kosik v. Cloud County Community College, 250 Kan. 507, 512, 827 P.2d 59, cert. denied 121 L.E.d. 2d 138 (1992), and Kansas Racing Management, Inc.. v. Kansas Racing Comm’n, 244 Kan. 343, 353-58, 770 P.2d 423 (1989). We need not reach Reed’s Fourteenth Amendment contention because we conclude that the notice Reed received was facially inadequate in certain respects when compared with the violations found by the KRC.
Reed emphasizes that the trial court .erred when it found that the perjured matters were stated “to the extent known.” According to Reed, the trial court’s reasoning creates a “Kafka-like” dilemma: Despite the notice requirements of the prehearing conference order limiting the charges, he “should have been prepared to defend himself on all possible charges of perjury arising from the emergency hearing and all possible charges that he was not qualified ... as long as those unknown charges were ‘sim ilar’ to those-actually alleged.” Reed insists that he did not even know during the hearing what he was charged with.
The KRC counters with a discussion of the notice issue as it relates to the finding that Reed was unqualified to be general manager. The KRC indicates that it not only adopted specific findings concerning the Travis and Washington incidents, but it also adopted findings concerning other violations. Consequently, the KRC maintains that Count III (Reed’s qualifications to remain as general manager) was supported by findings concerning the Travis and Washington incidents, for which Reed had notice. We agree.
Additionally, the KRC indicates that “[u]nder Kansas law it is ‘reasonable’ notice that is required,” citing Rydd v. State Board of Health, 202 Kan.. 721, 451 P.2d 239.(1969). The KRC reasons that Reed was put on notice that his qualifications for licensure were at issue due to his flagrant disregard for the racing act. The KRC contends that, in addition to the 11 referenced instances of perjury, it alleged generally that Reed committed perjury as to other facts. The other facts were testified to at the emergency hearing and were incorporated by reference in the prehearing conference order. The KRC argues that the additional facts were examples consistent with Reed’s intentional disregard for racing rules. According to the KRC, Reed had actual notice that testimony concerning disregard for rules would be elicited from Park employees, and the KRC fully complied with KAPA notice requirements. We do not agree.
In Community of Woodson v. State Corporation Comm., 186 Kan. 747, Syl. ¶ 1, 353 P.2d 206 (1960), we reasoned that a statement with reasonable and substantial certainty is required so as to advise a respondent of the matters charged and the relief sought. The key consideration for determining the sufficiency of the notice received by Reed is whether he was sufficiently forewarned so as to allow him to adequately prepare his defense.
We are troubled by the fact that Reed was found, in certain instances, to be guilty of actions other than those for which he was charged. The prehearing conference order specifically limited the hearing to allegations set forth in the amended charging document. Reed could have relied upon this notice and only prepared to defend the particular 11 instances of perjury which were spec ified prior to the hearing. The specificity of the perjury charges, coupled with the order requiring the hearing to be on stated allegations, created a situation where Reed lacked notice as to two of the KRC’s perjury findings, i.e., his relationship with (1) the Idaho racing regulations and (2) the Iowa senate committee.
We affirm the KRC’s perjury findings on Reed’s denial of knowledge that gambling information was received on the telefax machine and his description of the events in connection with his meeting Rudy Williams on August 31, 1990. We reverse as to the remaining two findings (Reed’s role in writing the Idaho racing regulations and his participation on an Iowa senate committee on parimutuel rules).
Transmitting or Receiving Wagering Information Through the Use of a Communication Device
Reed asserts that he was charged with “permitting” one or all of the types of conduct proscribed by certain statutes and KRC regulations and that the evidence failed to prove even this conduct. He emphasizes that at most, he could be charged with after-the-fact knowledge that a fax message containing gambling information for Williams was received on the Park’s telefax machine. According to Reed, it is not disputed that the first opportunity he had to know the contents of the fax message developed after the fax had been received on the Park’s machine. Reed argues that even if he knew the fax contained gambling information he is not guilty of “receiving” gambling information.
Reed states that, as a matter of law, there is no evidence that he “permitted” the telefax machine to be used to receive gambling information. Reed asserts that foreknowledge and consent are necessary ingredients to permitting someone to do something. He argues that after-the-fact knowledge does not satisfy the definition of the term “permit.” He relies on Reeb v. Liquor Control Board, 24 Wash. App. 349, 353, 600 P.2d 578 (1979) (To “permit” a regulatory violation to occur requires “actual or constructive knowledge of the circumstances which would foreseeably lead to the prohibited activity.”).
Reed further believes that the KRC’s true complaint was that he did not prevent Williams from taking the fax sheets and using the information to make bets. He observes that the KRC should adopt a regulation commanding employees to prevent the use of gambling information received on a telefax machine if it wishes to ban such conduct. He reasons that the KCR is torturing the term “permit” to include knowledge acquired after the fact.
The KRC maintains that it assessed the credibility of the witnesses and, in the case of the conflicting testimony of Reed and Williams, found Williams to be credible. The KRC emphasizes that credible witnesses testified Reed not only was aware gambling information was received on the telefax machine, but that he also helped search for the fax and facilitated its delivery to Williams. The KRC maintains that Reed failed to take action to prevent the delivery of faxed information to a known gambler. It asserts that given Reed’s experience and knowledge of the laws which prohibit the use of Park telefax machines in connection with gambling information, he should have made an inquiry as to the content of the fax before it was delivered to Williams.
The KRC does not directly respond to Reed’s arguments on the issues concerning the distinction between actually transmitting or receiving information and permitting the information to be communicated. Reed raises valid questions concerning his conduct and the language of the regulations under which he was charged.
In the context of the federal statute and KRC regulations (18 U.S.C. § 1084[a] and K.A.R. 112-ll-21[a], [j], and [k] [1991 Supp.]), the general nature of the regulations in question must be considered. Such an analysis leads to the conclusion that Congress and the KRC arguably intended to prohibit the use of fax technology in connection with the transmission of gambling information. The question before us in reviewing the fax incident is whether the record in the case at bar supports the KRC’s conclusion that Reed violated K.A.R. 112-ll-21(a) (1991 Supp.) as effected by a violation of 18 U.S.C. § 1084(a) (“knowingly uses a wire communication facility”) and K.A.R. 112-ll-21(j) and (k) (1991 Supp.). We think not. We do not evaluate credibility. We accept the KRC’s version of the facts. The KRC does not allege that Reed himself used a transmitting device or received wagering information through the use of a communication device. Rather, the charge was that Reed permitted the Park’s telefax machine to be used to receive the two-page fax message sent to Williams.
The regulations in question are not ambiguous. K.A.R,. 112-ll-21(j) (1991 Supp.) states: “When on the grounds of a racetrack facility, no person shall . . . (j) unless authorized by the stewards or racing judges, use any radio transmitter of other transmitting device at a racetrack facility during a race meet.” .
K.A.R. 112-ll-21(k) (1991 Supp.) states: “When on the grounds of a racetrack facility, no person shall: . . . (k) unless authorized by the commission, transmit or receive or attempt to transmit or receive wagering information through the use of a communication device.” The enforceable scope of the regulations should be limited to the plain language. “Permitting” the use of the Park’s telefax machine is not within the scope of the proscribed activities.
18 U.S.C. § 1084(a) provides:
“Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest, or for the transmission of a wire communication which entitles the recipient to receive money or credit as a result of bets or wagers, or for information assisting in the placing of bets or wagers, shall be fined not more than $10,000 or imprisoned not more than two years, or both.”
As a matter of law, the KRC and the trial court incorrectly applied the regulations in question to the factual scenario in the case at bar. Reed’s conduct was not a violation of either K.A.R. 112-ll-21(a) (1991 Supp.) as effected by 18 U.S.C. § 1084(a) or K.A.R. 112-ll-21(j) and (k) (1991 Supp.).
Not Qualified To Be General Manager—K.S.A. 74-8816(e) Not Unconstitutionally Vague
K.S.A. 74-8816(e)(3) provides:
“Denial of an occupation license by the commission shall be in accordance with the Kansas administrative review procedure act. The commission may refuse to issue an occupation license to any person who:
“(3) is not qualified to perform the duties associated with the license being applied for.”
Reed submits that it is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. He quotes Watkins v. Roach Cadillac, Inc., 7 Kan. App. 2d 8, Syl. ¶ 5, 637 P.2d 458 (1981), rev. denied 230 Kan. 819 (1982). The Court of Appeals reasoned that “[c]onstitutip,nally impermissible vagueness in a statute depends on whether [persons] of common intelligence must guess at a statute’s meaning and differ as to its application; if so, the statute lacks the first essential of due process and is void for vagueness.”
Reed asserts that K.S.A. 74-8816(e)(3) neither conveyed fair warning to him that his conduct would render him "not qualified” to be the Park’s general manager nor adequately guarded against arbitrary and discriminatory enforcement. Consequently, he reasons the statute is void for vagueness as applied to his conduct.
Reed notes that the KRC regulations provide for the possibility of examinations to “determine ‘qualifications’ for an occupation license” (K.A.R. 112-4-8 [1991 Supp.]), but fail to establish any other standards to define the term “qualified.” He contends that there are no objective guidelines or standards in the KRC’s regulations for assessing his qualifications to be the Park’s general manager. He asserts that the absence of such guidelines means the KRC can be as arbitrary and discriminatory as it chooses. Consequently, Reed suggests that all one can do is judge the KRC’s findings in light of the commonly understood meaning of “qualification.” He maintains that none of the grounds used by the KRC constitute a “qualification” in the ordinary sense of that word as used by persons of ordinary intelligence.
Reed observes that even though a general manager’s performance may be acceptable to his employer, the KRC reserves the right to suspend the license of the manager if it is not satisfied with the performance of duties, as opposed to qualifications to perform those duties. Reed argues that if the Kansas Legislature intended the phrase “not qualified to perform” in K.S.A. 74-8816(e)(3) to include actual performance of one’s duties as well as the qualifications to perform those duties, then the statute is unconstitutionally vague. We do not agree.
According to the KRC, Reed raised the vagueness issue for the first time when he filed his petition for judicial review; consequently, he may not assert the issue on appeal. Reed did, in fact, raise the constitutional issue, prior to the KRC hearing. Furthermore, we have reasoned that although an issue is generally required to be raised prior to appeal, “[s]ince administrative boards and agencies may not rule on constitutional questions, the issue of constitutionality must be raised when the case is on appeal before a court of law.” In re Residency Application of Bybee, 236 Kan. 443, Syl. ¶ 4, 691 P.2d 37 (1984).
The KRC argues that K.S.A. 74-8816(e) must be read in conjunction with subsection (f). Subsection (f) provides in part: “The commission may suspend or revoke an occupation license for any reason which would justify refusal to issue such a license.” A licensee may be found unqualified to maintain a license for the same reasons a license applicant may be found to be unqualified to receive an initial license. The KRC must be able to respond if an unqualified person is hired and licensed and then later discovered to be disqualified.
In Hearn v. City of Overland Park, 244 Kan. 638, 640-42, 772 P.2d 758, cert, denied 493 U.S. 976 (1989), we undertook an analysis of the vagueness concept. We reasoned that “[a] statute is not invalid for vagueness or uncertainty where it uses words of commonly understood meaning. [Citations omitted.] At its heart the test for vagueness is a common-sense determination of fundamental fairness.” 244 Kan. at 642.
In the context of statutes which provide administrative agencies with some type of decision-making or enforcement authority, we emphasized that
“when a statute is ambiguous, the interpretation placed upon it by an administrative agency whose duties are to carry the legislative policy into effect should be given great weight and may be entitled to controlling significance when the scope and limitations of the powers of the agency must be determined in judicial proceedings. [Citations omitted.]” State ex rel. Stephan v. Kansas Racing Comm’n, 246 Kan. 708, 720, 792 P.2d 971 (1990).
Furthermore,
“[standards to guide an administrative agency in the application of a statute may be inferred from the statutoiy purpose. Less detailed standards and guidance to administrative agencies are required in order to facilitate the administration of laws in the areas of complex social and economic problems. Vakas v. Kansas Bd. of Healing Arts, 248 Kan. 589, Syl. ¶¶ 7, 8, 808 P.2d 1355 (1991).” Kaufman v. Kansas Dept. of SRS, 248 Kan. 951, 957, 811 P.2d 876 (1991).
Examples of the type of conduct that would render an individual unqualified are not specified in K.S.A. 74-8816(e)(3). The question is whether an ordinary person, exercising common sense, would know that. Reed’s conduct as identified by the KRC would place an individual at risk of. losing a license because that person was not qualified.
In Morra v. State Board of Examiners of Psychologists, 212 Kan. 103, 111, 510 P.2d 614 (1973), we held that the term “wrongful actions” within K.S.A. 74-5324(e) (Weeks) was not unconstitutionally vague as a ground for revoking or suspending a psychologist’s license.
Reed’s experience, background, and training are important to the consideration of whether he, or a similarly situated individual, would have adequate warning as to the proscribed conduct. Given Reed’s experience, he should have been aware that his conduct could result in the KRC reaching a determination that he was unqualified to hold the license. '
Acting to strictly uphold the various regulations which govern racing would be among the necessary eligibility requirements to hold a general manager’s license. The term “not qualified to perform the duties associated with the license being applied for” is not inherently vague under the facts in the case at bar. We have characterized terms appearing to be vague as sufficiently definite to withstand constitutional attack. See Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 454, 436 P.2d 828 (1968) (Statute fáiled to list all examples of prohibited conduct under the term “unprofessional conduct”; the “determination whether by common judgment certain conduct is disqualifying is left to the sound discretion of the board.”); Kansas State Board of Healing Arts v. Acker, 228 Kan. 145, Syl. ¶ 5, 612 P.2d 610 (1980) (“The terms ‘immoral conduct’ and ‘dishonorable conduct’ as used in K.S.A. 1979 Supp. 65-2836 [provisions allowing revocation of license to practice medicine] are not so vague and indefinite that the statute must be declared unconstitutional.”).
Our duty is to uphold the statute if there is any reasonable way to do so. Greater leeway is afforded statutes regulating business than those prohibiting criminal conduct in determining constitutional .challenges for vagueness. Guardian Title Co. v. Bell, 248 Kan. 146, Syl. ¶¶ 2, 3, 805 P.2d 33 (1991).
K.S,A. 74-8816(e)(3) is constitutional. An ordinary person exercising common sense is capable of understanding that conduct which may disqualify initially will continue to render the person unqualified, even if licensed through oversight. The KRC may employ 74-8816(e)(3) to remedy the situation.
Reed contends that the vagueness of the term “not qualified” fails to adequately guard against arbitrary and discriminatory enforcement. However, he has failed to demonstrate how the KRC’s actions in the case at bar were arbitrary or discriminatory. The trial court found the decision of the KRC to be supported by substantial evidence. We agree with the trial court’s evaluation of the evidence on the vagueness issue. The KRC’s actions were consistent with the general legislative purpose to insure that track operations are held to a standard of utmost integrity. The KRC has discretion to interpret the term “not qualified” and to apply the term to Reed’s conduct. The uniquely sensitive nature of parimutuel racing dictates that the KRC’s licensing decisions should be afforded deference.
The KRC Regulations-Vagueness
Reed reasons that the transmission regulations invoked in the telefax charges, K.A.R. 112-ll-12(j) and (k) (1991 Supp.), must be considered void for vagueness as they were applied to him. He explains that he raised this issue before the KRC by a motion to dismiss filed before the hearing.
We have vacated the KRC’s order as it relates to Reed’s violations of K.A.R. 112-ll-21(a) (1991 Supp.) as effected by 18 U.S.C. § 1084(a) in Count I and K.A.R. 112-ll-21(j) and (k) (1991 Supp.) in Count II; consequently, we do not reach the vagueness contentions relating to administrative regulations.
Disposition
We find substantial evidence in the record to affirm the KRC’s conclusions of law as to:
Count I: Paragraph 9, concerning Reed’s violation of K.S.A. 21-3805 (perjury) (Reed had adequate notice to sustain two of the four KRC perjury incident findings, i.e., the denial of any knowledge that gambling information was being received on a telefax machine at the Park and Reed’s description of the events in connection with his meeting with Williams) and K.A.R. 112-11-21(a) (1991 Supp.) (a violation of statutory law, perjury, K.S.A. 21-3805[a], while on the grounds of a racetrack);
Count III: The Coleman Washington incident as modified by the KRC (findings of fact, paragraph 12[a]), the Ben Travis incident (findings of fact, paragraphs 12[c]), the Rudy Williams incident (findings of fact, paragraph 12[e]); and Count V.
We affirm: (1) the KRC’s revocation of Reed’s license under Counts I and III; (2) the-. Count III fine of $500; and (3) the Count V sanction of excluding Reed from the Wichita Greyhound Park.
We do not find substantial evidence in the record to affirm, and, consequently, we reverse, as to:
Count I: Findings of fact, paragraph 6, a violation of K.A.R. 112-ll-21(a) (1991 Supp.) as effected by 18 U.S.C. § 1084(a) (transmission of gambling information by wire); and Count II.
We vacate the order as to Count II and the portion of Count I based on a violation of K.A.R. 112-ll-21(a) (1991 Supp.) as effected by 18 U.S.C. § '1084(a).
We agree with Reed’s contention that he lacked notice of the charges reflected in the KRC findings .of fact, paragraph 12(b) (loaning money by an employee of Wichita Greyhound Charities for gambling purposes) and paragraph 12(d) (a track employee placing a wager, contrary to company policy). We find no reference in the charging document of such events.
Wé vacate the fines, except as to Count- III. K.S.A. 1992 Supp. 60-2101(b). We surmise that the fines imposed by the initial order as modified were based on the KRC’s judgment in reviewing the totality of Reed’s violations. We are mindful of K.S.A. 74-8816(f), which grants the KRC authority to impose fines “not exceeding $5,000 for each violation” in addition to suspending an occupation license.
We do not by our action vacating $5,500 of the initial $6,000 sanction in the case at bar signal that the KRC’s use of K.S.A. 74-8816(f) is to be inhibited in any future case.
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The opinion of the court was delivered by
Allegrucci, J.:
Theodore T. Hogan appeals from his conviction of violating Prairie Village Ordinance No. 1785, Article 9.13, which makes it “unlawful for any person to engage in picketing before or about the residence or dwelling of any individual in the city, or before or about any church in the city.” He was found guilty in municipal court of picketing before or about a church, and he appealed to the district court. He was found guilty in the district court and was fined $300, with $200 of the fine suspended for one year upon the condition that he commit no further violations of the ordinance. Hogan appealed to the Court of Appeals, and the case was transferred to this' court pursuant to K.S.A. 20-3018(c).
Hogan is a resident of Prairie Village. On Sunday morning, March 15, 1992, he was arrested and charged with “picket ing . . . before or about a church in the 6700 block of Mission Road between the hours of 0800 and 0945 hours” in violation of Prairie Village Ordinance No. 1785, Article 9.13 of the Uniform Public Offense Code, as amended and incorporated by reference in the Prairie Village Municipal Code, Title 10, Ch. 10.04.010 (1992).
On that morning, Hogan walked on the sidewalk on the west side of Mission Road, a north-south street. The streets marking the. northern and southern boundaries of his walking route are Homestead and Tomahawk. In between lie 66th Street, 67th Street, 67th Terrace, 68th Street, and 68th Terrace.
On the east side of Mission Road, the Village Presbyterian Church is situated slightly north of 67th Street. The church maintains two parking lots. Both are on the east side of Mission Road, one north and one south of the church.
Hogan carried a sign. Hogan testified that one side of the sign “shows a dead baby with a question, ‘Is it murder[?]’ above it.” Hogan testified that the other side shows “[a] head that has been not severed, but tom from the baby’s body with a question, ‘Is it murder[?],’ above it and the publisher is Human Life International.”
Hogan testified that his purpose in carrying the sign and walking along Mission Road was “to educate and inform people about the truth about abortion.” He testified that he chose the location “because it would up my ante of Christians on their way to and from church.” He testified that the congregation of Village Presbyterian Church was “part of [his] primary audience, but not [his] sole audience.” He also aimed to reach individuals who were driving and walking along Mission Road.
Officer James Moyers testified that when he first observed him, Hogan was “mid-block between 66th and 67th.” The officer observed Hogan walk back and forth twice “between 66th Terrace and 67th.” He was directly across Mission Road from Village Presbyterian Church for approximately 100 feet of this circuit immediately to the north of 67th Street. The south end of the church building is at 67th Street.
The officer stopped Hogan at 67th Street. The officer checked Hogan’s identification and then allowed him to continue walking while the officer obtained a copy of the picketing ordinance. The officer testified that, instead of going north toward 66th Street, Hogan then “generally walked from 67th Street down towards 69th Street.” According to the officer,
“[i]t was during that time that the call or the incident was taken over by Corporal Brooks [Officer Moyers’ supervisor] who at that point advised Mr. Hogan of the ordinance, and after being warned and being videotaped, he continued in violation of Corporal Brooks’ command to cease because he was violating the ordinance, and at that point I was instructed by Corporal Brooks to place Mr. Hogan under arrest.”
The officer testified that he observed some pedestrians move from the west to the east side of Mission Road when Hogan was on the west side. He was unable to say whether they crossed the street to avoid Hogan or to get to the church. He also testified that at the time the pedestrians crossed over from Hogan’s side, Hogan had been stopped and was being questioned by two police officers.
Hogan testified that he began walking on Mission Road at approximately 7:45 a.m. on the morning of March 15, 1992. He had walked from Homestead Street to Tomahawk Street and back twice before he was stopped by Officer Moyers at 67th Street and Mission Road. Thereafter, he walked south on Mission Road to Tomahawk (approximately three blocks) and back to 67th Street three times before he was stopped and arrested at 67th Terrace and Mission Road.
The district court’s journal entry of judgment states in pertinent part as follows:
“4. The Court finds that at approximately 8 a.m. on Sunday, March 15, 1992, the defendant picketed before or about the Village Church, 6700 block of Mission Road, Prairie Village, Kansas in that he carried a sign bearing on each side a picture of an aborted unborn child and the message, ‘IS IT MURDER?’, in violation of the ordinance.
“5. The Court finds that the ordinance as applied to the conduct of the defendant serves a significant government interest in that it protects privacy and the free exercise of religion.
“6. The Court further finds that the ordinance as applied to the conduct of the defendant is narrowly drawn, not overly broad, and prohibits only focused picketing taking place before a particular residence or a particular church.
“7. The Court further finds that the ordinance left open to the defendant alternative channels by which he could express his views.
“8. The Court finds the ordinance to be content-neutral.
“9. The ordinance is accordingly constitutional.
“It Is Therefore By The Court Ordered, Adjudged And Decreed that the defendant is found guilty of having violated Prairie Village Ordinance 1785, Article 9.13 of the Uniform Public Offense Code, as amended and incorporated by reference in the Prairie Village Municipal Code.”
Hogaii raises two issues on appeal. First, he contends that the district court erred in construing the ordinance to apply to his conduct. The ordinance provides as follows:
“It is unlawful for any person to engage in picketing before or about the residence or dwelling of any individual in the city, or before or about any church in the city.
“Every person convicted of violating this section shall be imprisoned for not more than one year or fined not more than $2,500 or by both such fine and imprisonment, provided that any person convicted of a second or subsequent conviction shall be required to be confined to not less than five consecutive days in the county jail in addition to any penalty assessed; which period of imprisonment shall not be suspended nor the defendant placed on probation until the five consecutive days are served.”
In the present case, Prairie Village (City) prosecuted Hogan for targeting the Village Presbyterian Church for communication of his message. The City denied “trying to prosecute Mr. Hogan for walking in front of the residences on Mission Road.” The City conceded that the ordinance could not be constitutionally applied to prosecute Hogan for carrying his sign in front of the residences on Mission Road because that conduct would not constitute picketing before or about a particular residence.
Hogan contends that his carrying his sign back and forth twice in front of the Village Presbyterian Church but on the opposite side of the street does not constitute picketing before or about a church. For purposes of this appeal, Hogan accepts the accuracy of Officer Moyers’ testimony about Hogan’s path. The City stated that it would not have prosecuted Hogan for a violation of the ordinance if he had walked back and forth between Tomahawk and Homestead without doubling back between 66th and 67th Streets.
The City argues that this issue is one of sufficiency of the evidence rather than construction of the ordinance, as it is stated by Hogan. The City contends that the scope of the court’s review on this question should be 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.” State v. Zuniga, 237 Kan. 788, Syl, ¶ 5, 703 P.2d 805 (1985).
The City contends that there was sufficient evidence that Hogan was picketing the Village Presbyterian Church. Hogan does not dispute the City’s evidence as to his conduct. Although the parties state the issue differently, it is essentially the same issue. Is Hogan’s conduct prohibited by the ordinance? If it is not, then obviously the evidence is not sufficient to support Hogan’s conviction. Whether the ordinance applies to Hogan’s conduct is a question of law. See State v. Schlein, 253 Kan. 205, Syl. ¶ 1, 854 P.2d 296 (1993).
In State v. Hupp, 248 Kan. 644, 656, 809 P.2d 1207 (1991), we restated the rule that “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.” We have recognized that a statute or ordinance which is facially overbroad is to be construed and restricted to embrace only conduct which is not constitutionally protected. See State v. Huffman, 228 Kan. 186, Syl. ¶ 3, 612 P.2d 630 (1980). In State v. Stauffer Communications, Inc., 225 Kan. 540, 592 P.2d 891 (1979), K.S.A. 21-3827 was challenged as unconstitutional for reasons of vagueness and overbreadth. In considering that issue, we said:
“The Supreme Court has consistently applied a stricter standard where the statute assailed as vague may impinge on First Amendment interests. ‘Where a statute’s literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts.’ Smith v. Goguen, 415 U.S. 566, 573, 39 L. Ed. 2d 605, 94 S. Ct. 1242 (1974). The reason for this is ‘First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.’ N.A.A.C.P. v. Button, 371 U.S. 415, 433, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963).” 225 Kan. at 546.
In Frisby v. Schultz, 487 U.S. 474, 101 L. Ed. 2d 420, 108 S. Ct. 2495 (1988), the United States Supreme Court upheld an ordinance which prohibited picketing before or about any residence. In upholding it, the Supreme Court gave the ordinance the following narrow reading:
“[I]n order to fall within the scope of the ordinance the picketing must be directed at a single residence [citation omitted]. General marching through residential neighborhoods, or even walking a route in front of an entire block of houses, is not prohibited by this ordinance. [Citation omitted.] Accordingly, we construe the ban to be a limited one; only focused picketing taking place solely in front of a particular residence is prohibited.” 487 U.S. at 483.
Here, consistent with Frisby, the district court narrowly construed the ordinance to prohibit “only focused picketing taking place before a particular residence or a particular church.” Such an interpretation is also consistent with the City’s contention that the ordinance is narrowly tailored to apply only to the targeted picketing of a specific church. The district court found Hogan’s conduct to be focused picketing and therefore a violation of the ordinance.
Hogan contends that his was not focused picketing taking place solely in front of the church building. He was not on the same side of the street as the church, and he walked a multi-block route. He contends that the City unfairly focused on an unrepresentative segment of his route for the purpose of prosecuting him.
In Frisby v. Schultz, the Supreme Court found “picketing” defined in Webster’s Third New International Dictionary 1710 (1981), as “posting at a particular place.” 487 U.S. at 482. In the present case, neither party has directed this court to a different definition. The decisions of this court have defined picketing in the context of a labor dispute. See State v. Personett, 114 Kan. 680, 220 Pac. 520 (1923). In Newell v. Local Union 795, 181 Kan. 898, 911, 317 P.2d 817 (1957), we said:
“The unfair labor practices of which appellee complains consist of unlawful picketing and boycotting. G.S. 1955 Supp., 44-809, insofar as pertinent herein provides:
‘It shall be unlawful for any person
‘(14) To engage in picketing by force and violence, or to picket in such a manner as to prevent ingress and egress to and from any premises, or to picket other than in a peaceable manner.’ ”
Webster’s New Twentieth Century Dictionary 1356 (2d ed. 1973) defines picketing as “the act of guarding or watching with pickets; especially, the act of a labor organization in posting pickets during a strike.” 2 The Compact Edition of the Oxford English Dictionary 2166 (1971) defines picketing as “[t]he action of the [verb] picket ... (b) in a labour dispute, the posting of men to intercept non-strikers on their way to work and prevail upon them to desist.”
Neither party challenges the definition set out in Frisby. Hogan contends that he was not picketing within the meaning of this definition because his communication was not directed at the church. The City points to Hogan’s admission that he walked back and forth across the street from the church. The City contends that his conduct falls within the definition of “picketing” which is set out in Frisby. The City points to Hogan’s testimony that his purpose in picketing was to “up his ante” of Christians on their way to and from church.
Although this case does not involve a labor dispute, it is noteworthy that Hogan’s conduct was neither violent nor forceful, nor did he prevent or impede the ingress or egress to the church. Hogan was not posted at or in front of the church. He walked a route on the opposite side of the street which took him several blocks north and several blocks south of the church. He was not protesting the church, its teachings, or its members. Although he walked the general area because of the probability of a high concentration of “Christians,” his message was directed to all persons traversing Mission Road. We interpret the ordinance to prohibit focused picketing taking place solely in front of the church. We conclude, based upon the required narrow reading of the ordinance, that Hogan was not engaged in conduct prohibited by the ordinance. He was not picketing a church within the meaning of this ordinance.
Since we conclude the ordinance does not apply to Hogan’s conduct, it is not necessary to pass upon his challenge to the constitutionality of the ordinance. We will not consider a constitutional challenge to a statute or ordinance where our decision can be based on other grounds. See State, ex rel., v. Barnes, 171 Kan. 491, 233 P.3d 724 (1951).
The judgment of the district court is reversed. | [
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The opinion of the court was delivered by
Lockett, J.:
This is an appeal from a jury verdict in a personal injury action in favor of plaintiff, David Hurlbut, against his employer, J & J Metal Products Company (J & J), and Conoco, Inc., for injuries suffered as a result of an explosion at the J & J plant. The jury unanimously awarded Hurlbut $14,613,553 and apportioned fault 85% against Conoco, 15% against J & J, and 0% against the other parties. Judgment was entered against Conoco and in favor of Hurlbut in the amount of $12,421,520 (85% of the jury verdict). Conoco appeals, claiming the trial court (1) erred in failing to grant its motions for summary judgment, directed verdict, and judgment notwithstanding the verdict and (2) deprived it of its right to a fair trial. Defendant Firman L. Car-swell Manufacturing Company (Carswell), the maker of the vat which exploded, cross-appeals.
Hurlbut was severely injured as a result of an explosion on January 20, 1988, at the J & J plant in Paola, Kansas. Hurlbut was an employee of the company. Two other employees, Charles Hoffman and John Windisch, died as a result of their injuries from the explosion. Wrongful death actions involving those decedents were consolidated with the Hurlbut lawsuit for discovery and trial. This appeal is not concerned with the verdict and judgment in those actions, which have been settled.
J & J manufactures and markets corrugated steel pipes. As part of its manufacturing operations, J & J uses a large asphalt dip vat for the purpose of coating corrugated steel pipe with asphalt. Carswell designed, manufactured, and installed the dip vat used by J & J in 1951 or 1952. The dip vat had an open-to-air asphalt chamber, or pan, sitting on top of a heat transfer oil chamber. Ten natural gas burners heated oil in the lower chamber which in turn heated asphalt in the upper chamber. J & J had always used Dowtherm A in the lower chamber. The Dowtherm A was heated to its boiling point of 490 degrees Fahrenheit during the heat transfer process.
Dowtherm A (manufactured and marketed by Dow Chemical Company) was designed to be utilized either as a liquid phase heat transfer medium or a vapor phase heat transfer medium. Carswell recommended Dowtherm A for use as a vapor phase heat transfer medium in the vapor phase heat transfer system of the dip vat. From 1951 until January. 1988, Dowtherm A functioned safely and effectively as a vapor phase heat transfer medium in the vapor phase heat transfer system of the dip vat. In January 1988, J & J substituted Conoco heat transfer oil (CHTO) for Dowtherm A as the heat transfer medium in the dip vat. CHTO is designed as a liquid phase only heat ti-ansfer medium to be used only in liquid phase heat transfer systems. CHTO is not designed for use as a vapor phase heat transfer medium in any type of vapor phase heat transfer system. J & J, acting on Conoco’s recommendation, attempted to use CHTO in the same manner as Dow.therm A had been used.
J & J performed routine maintenance on the dip vat in December 1987 and January 1988. Part of the routine maintenance included replacing the heat transfer fluid. During the routine maintenance of the dip vat in January 1988, Dowtherm A was drained from the heat transfer chamber and replaced with CHTO. In order to remove any residual Dowtherm A from the heat transfer chamber, J & J employees put water into the chamber, héated the water until it boiled, and then drained the water and Dowtherm A residue from the heat transfer chamber.
After replacing the Dowtherm A with CHTO, J & J employees started the process of heating the asphalt dip vat during the afternoon of January 19, 1988. In order to gradually heat the transfer system, the dip vat, and the asphalt, the burners were ignited over a period of time. Throughout the night and early morning of January 19-20, 1988, one or more of J & J’s employees stayed with the dip vat and observed the heating process.
At approximately 4:20 p.m. on January 20, 1988, an explosion forced the bottom of the asphalt chamber of the dip vat upwards into an inverted position. Asphalt was spewed throughout the dip house. A fireball erupted and also spread throughout the house. There were only two possible scientific explanations for the explosion: (1) autoignition of the heat transfer oil; or (2) water instantaneously flashing to steam.
Hurlbut sued Conoco; Carswell; J & J; Quality 66 Service Company, the company that sold the heat transfer oil to J & J; and others. Trial commenced on March 2, 1992, and ended April 24, 1992. The jury found Conoco liable for breach of express warranty, strict liability, breach of implied warranty, negligence, and misrepresentation of material facts. The jury found the cause of the explosion in the heat transfer chamber of the asphalt dip vat to be autoignition.
MOTION FOR SUMMARY JUDGMENT
Conoco first contends its motion for summary judgment should have been granted because: (a) plaintiff was allowed to violate Supreme Court Rule 141 (1992 Kan. Ct. R. Annot. 124) by reserving until the trial the right to call witnesses to controvert defendant’s facts set out in its motion for summary judgment; (b) plaintiff did not and could not produce facts in support of the autoignition theory; and (c) the facts contained in the summary judgment record demonstrated that steam caused the explosion.
Conoco’s motion for summary judgment and memorandum in support of the motion were filed, on December 16, 1991. Plaintiff’s memorandum in opposition set out 295 uncontroverted facts. At the conclusion of the hearing on Conoco’s motion for summary judgment, the judge refused to grant the motion because he would be required to weigh the evidence to rule on the motion. He stated:
“I don't think there are sufficient uncontroverted Findings of Fact with which to sustain a total motion for summary judgment for Conoco in this particular case on that motion.”
The order of the trial court denying the motion for summary judgment was filed on February 27, 1992. The order merely stated that Conoco’s motion for summary judgment was denied.
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, togethér with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Mark Twain Kansas City Bank v. Kroh Bros. Dev. Co., 250 Kan. 754, 762, 829 P.2d 907 (1992).
Summary judgment may be granted when the evidence shows no liability as a matter of law and where the central facts are not in dispute. 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. An issue of fact is not genuine unless it has legal controlling force as to a controlling issue. A disputed question of fact which is immaterial to the issue does not preclude summary judgment. If the disputed fact could not affect the judgment, it does not present a genuine issue of material fact. Knudsen v. Kansas Gas & Electric Co., 248 Kan. 469, 483, 807 P.2d 71 (1991).
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. 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. If factual issues do exist, they must be material to the case to preclude summary judgment. Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306-07, 756 P.2d 416 (1988).
VIOLATIONS OF SUPREME COURT RULE 141
Conoco contends the trial court violated Supreme Court Rule 141 by allowing the plaintiff to wait until the trial to call witnesses to controvert the factual bases for Gonoco’s motion for summary judgment. In addition, Conoco asserts plaintiff’s memorandum in opposition to summary judgment failed to set forth its facts and contentions, a concise summary of conflicting testimony or evidence, and proper citations to the record.
In its brief, Conoco has not pointed out any portion of the record to support its contention that the trial court allowed Hurl-but to call witnesses during the trial to present additional evidence controverting the factual bases of Conoco’s motion for summary judgment. We have reviewed the pleadings and note the order denying defendants’ motion' for summary judgment was filed prior to trial. The fact that the defendants’ motion for summary judgment was denied prior to trial shows that the trial court did not violate Supreme Court Rule'141 by allowing plaintiff to wait until trial to call witnesses- to controvert the motion for summary judgment.
FACTS SUPPORT A STEAM EXPLOSION,. NOT AUTOIGNITION
Conoco next contends that it is entitled to summary judgment because plaintiff failed to present evidence prior to trial that Conoco’s product, CHTO, was the probable cause of plaintiff’s injuries. Conoco is arguing that, in order for the plaintiff to successfully oppose its motion for summary judgment, plaintiff had to prove that CHTO probably caused his injuries by autoigniting. Conoco claims the plaintiff failed because plaintiff’s experts merely assumed the existence of the two necessary conditions for autoignition of the CHTO, viz., (1) that a sufficient quantity of oxygen was present in the heat transfer chamber of the asphalt dip vat when (2) the temperature of the CHTO exceeded its autoignition temperature of 680 degrees Fahrenheit. Conoco claims that, although plaintiff’s memorandum in opposition to Conoco’s motion for summary judgment contained 295 statements of uncontroverted facts, the memorandum did not set out the facts or calculations upon which plaintiff’s experts relied to prove the factors necessary for autoignition of the CHTO. Conoco concludes that the uneontroverted facts contained in the summary judgment record show that the cause of the explosion was steam, not autoignition of the CHTO.
Plaintiff responds that he did not have to prove that autoignition of the CHTO caused the explosion. He claims that the theories of recovery against Conoco, set forth in the pretrial order, did not require proof of the exact scientific explanation or cause of the explosion. Those theories were: (1) breach of express warranty; (2) breach of implied warranty of fitness for a particular purpose; (3) strict liability pursuant to Restatement (Second) of Torts § 402B (1963) (misrepresentation of material facts about the character, quality, and suitability of CHTO); (4) negligence; and (5) strict liability pursuant to Restatement (Second) of Torts § 402A (1963) (unreasonably dangerous and defective in design and because of inadequate warnings and instructions). Plaintiff argues that whether the explosion was caused by steam or by autoignition of CHTO was not essential to his theories of liability. If the record supports the jury’s finding that the CHTO autoignited, we need not reach this argument.
Was the district judge- correct in finding there were sufficient facts to allow the jury to determine if the CHTO autoignited? We note the record shows Dowtherm A, a man-made product, has' a fixed boiling point and cannot be heated to a temperature where it will autoignite. CHTO is a petroleum based product which has a boiling range. Once CHTO reaches its initial boiling temperature,- certain percentages of it begin to vaporize and it will continue until it is all vaporized. Complete vaporization occurs at around 1,000 degrees Fahrenheit. Conoco engineers admitted that when CHTO’s temperature exceeds 680 degrees Fahrenheit and oxygen is present, CHTO will autoignite without a flame source.
In a vapor phase heat transfer system, the temperature at the surface of the CHTO has to be significantly greater than the asphalt it was heating in the vat. Both of plaintiffs’ experts determined that at 4:20 p.m. on January 20, 1988, when the explosion occurred the temperature of the CHTO vapors was in excess of the oil’s autoignition temperature, of 680 degrees Fahrenheit, and the explosion was caused by autoignition of CHTO vapors.
Plaintiff claims its memorandum contained uncontroverted facts that at the time of the explosion the temperature of the CHTO exceeded 680 degrees Fahrenheit and that oxygen was present in the system. In addition, its memorandum set out a variety of ways that oxygen could have entered the system prior to the explosion. The most plausible explanation was that on the day of the explosion, J & J employees shut down the vat’s burner system before quitting for the day. Turning down the burners caused a decrease in the temperature inside the heat transfer chamber, resulting in a reduction in pressure. Reducing the pressure sucked-oxygen into one or both of the two valves that were opened during the shutdown procedure. Oxygen entering the heat transfer system when the CHTO was at' or above its autoignition temperature caused the explosion of the asphalt dip vat.
Evidence of J & J’s normal shutdown procedure supported plaintiff’s experts’ opinions on how the oxygen entered the -héat transfer chamber of the asphalt dip vat. The procedure at the time the burners were being shut down was first to drain the condensation tank on the west end of the vat, then open the faucet-like valve, thereby permitting the heat transfer chamber to be refueled with condensed heat transfer fluid. The opening of the faucet-like valve provided an opening for oxygen to be sucked into the system.
Plaintiff states there was evidence that it was scientifically impossible for liquid water or steam to have been present in the heat transfer chamber at the time of the explosion. The heat transfer chamber had been continuously vented the night before the explosion. Because the temperature of the CHTO was significantly above its initial boiling point of 600-750 degrees Fahrenheit by 7:00 a.m. on January 20, 1988, all of the water had to have been vaporized and vented out the open valve the night before the explosion. Without water or steam present, therefore, steam could not have caused the explosion.
In addition, one of plaintiff’s experts in mechanical engineering noted that the amount of volume displacement of the heat transfer chamber of the dip vat after the explosion was approximately 500 cubic feet. The volume displacement if caused by a steam rupture would have been approximately 40 cubic feet. Because the increase in volume of the heat transfer chamber was 500 cubic feet, plaintiff’s expert concluded it was impossible for the explosion to have been caused by steam.
The burden on the party seeking summary judgment is a strict one. The trial court resolved all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling was sought. On appeal, we have applied the same rule and find reasonable minds could differ as to the conclusions drawn from the evidence. Under the applicable standard of review, the district court was correct in refusing to grant summary judgment to Conoco.
MOTIONS FOR DIRECTED VERDICT AND JUDGMENT NOTWITHSTANDING THE VERDICT
Conoco next contends that the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict because: (a) plaintiff relied on speculation, false assumptions, and conjecture to support his autoignition theory; (b) plaintiff’s own evidence demonstrated that it was impossible for autoignition to have caused the explosion; and (c) the evidence at trial demonstrated that steam, not autoignition, caused the explosion.
When a verdict is challenged for insufficiency of the evidence or as being contrary to the evidence, it is not the function of this court to weigh the evidence or pass on the credibility of the witnesses. Wisker v. Hart, 244 Kan. 36, 37, 766 P.2d 168 (1988). In ruling on a motion for directed verdict pursuant to K.S.A. 1992 Supp. 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 reasonable minds could reach different conclusions based on the evidence, the motion must be denied and the matter submitted to the jury. This rule must also be applied when appellate review is sought on a motion for directed verdict. The same test is applicable to a motion for judgment notwithstanding the verdict. Simon v. National Farmers Organization, Inc., 250 Kan. 676, 683, 829 P.2d 884 (1992).
Plaintiff notes that there were only two theories on the cause of the explosion, autoignition of CHTO or steam. Citing Farmers Ins. Co. v. Smith, 219 Kan. 680, 549 P.2d 1026 (1976), and its citation of Casey v. Phillips Pipeline Co., 199 Kan. 538, 431 P.2d 518 (1967), plaintiff points out that causation of the explosion may be proven by circumstantial evidence. In Farmers Ins. Co., this court noted that plaintiff’s expert stated that he looked for all of the possibilities that could start a fire and then, by the process of elimination, went through the complete checklist of possibilities to arrive at his opinion as to the source of ignition and the source of combustion in that fire. The Farmers court noted that a cause of action may be proven by circumstantial evidence, and such evidence, in order to be sufficient to sustain a verdict of a jury, need not rise to that degree of certainty which will exclude any and every other reasonable conclusion. The court found that proximate causation in a proper case may be shown by circumstantial evidence. By plaintiff’s expert’s elimination of other possible causes for the fire, his conclusion that the fire was the result of some defect in the mobile home’s electrical system was reasonable. 219 Kan. at 686-90.
In denying Conoco’s motion for a judgment notwithstanding the verdict, the trial court stated:
“Conoco, in its motion, argues unpersuasively, that the court and the jury should have ignored all of the evidence offered by the plaintiff’s experts on the cause of the explosion' and in its stead listened only to the defendant’s experts who testified the cause of the explosion was steam and therefore the fault of J&J. They also argue that the plaintiff’s experts were not qualified to testify and therefore their testimony was inadmissible and therefore the plaintiffs failed to present a prima facie case.
“Conoco argues that Dr. Lee Lowery and Dr. George Peterson were not qualified and therefore should not have been permitted to testify. Many of the citations to testimony concerning Lowery and Peterson are to depositions taken prior to trial or allegations of fact made by Conoco in its motion for summary judgment filed prior to trial. In dealing with this motion the court is more concerned about what evidence was presented at trial.
DR. GEORGE PETERSON
“The court for the sake of brevity, will not repeat here the extensive curriculum vitae of Dr. Peterson that was admitted into evidence at trial as plaintiffs’ exhibit no. 293. Suffice it to say, Dr. Peterson has devoted a large portion of his life, his education, his research, his teaching, his writings to the phenomenon of heat transfer, especially that which occurs when substances change phase, that is from a solid to a liquid, and from a liquid to a vapor. He demonstrated in court an ability to perform thermodynamic calculations that clearly and unrefutably are not within the skills of ordinary citizens. The man is an expert in this field and has many accomplishments.
“Furthermore, it is not surprising that Dr. Peterson has not done extensive work with petroleum products since they by their very nature are so unsuitable as heat transfer mediums in vapor phase heat transfer systems. But that fact does not make him “unqualified” to testify about how the heat transfer system of the asphalt dip vat at J&J worked and how thermodynamically it exploded. His expertise goes to the very heart of the issue. Conoco would have this court believe that only an expert on petroleum products or on dip vats could testify. They miss the point. Dr. Peterson could clearly, through the application of his expertise, determine and testify about this explosion and how it occurred on a level that few other witnesses could.
DR. LEE LOWERY JR.
“At trial, plaintiffs’ exhibit 281 contained extensive information about Dr. Lowery. It will not be repeated here. Summarily, it can be said that the education, experience and training of Dr. Lowery leads this court to the conclusion that he is an expert in the field of structure failure analysis, structure design and analysis and mechanical device design and analysis. Further, he is able to determine these matters in a fashion that is not common to mankind in general.
“It was also determined that Dr. Lowery had extensive knowledge, experience and training in the subject of engineering ethics, and standards by which product designers are or should be professionally judged.
“The areas of engineering in which any rational court would conclude Dr. Lowery is an expert were material to the issues of this case and were clearly helpful to the jury in determining if Conoco Heat Transfer Oil, as a product itself, should have been introduced into the heat transfer system of the asphalt dip vat at J&J. This should not overlook the fact that his testimony about the structure of the dip vat itself was important in the determination of the issues presented in this case.
“These two men presented testimony to the jury about engineering principles, thermodynamics, mechanisms of heat transfer, design and safety considerations, mathematical computations of heat production, vapor pressure, explosions and metal deformation and destruction, and volumetric calculations. These learned witnesses displayed a comprehensive knowledge of these topics as well as others that are outside the scope of knowledge of mankind in general. These technical subjects are certainly proper for expert testimony. [Citation omitted.]
“The arguments made by Conoco attempt to show that since those two experts testified that the recommendation and use of Conoco Heat Transfer Oil in the heat transfer chamber of the asphalt dip vat at J&J was unsafe and improper their conclusions are wrong and inadmissible because their testimony tends to show fault on the part of Conoco. In other words, if their testimony is damaging to Conoco’s case, it is wrong and inadmissible.
“But the jury was able to hear, evaluate and judge the testimony of these two men in contrast to the testimony of the experts of Conoco. The jury was persuaded by the former.
“Conoco makes much of the fact that these two experts were relying upon reports of others and upon some scientific principles, such as, autoignition of petroleum products can only occur in the presence of oxygen. It is clear to this court that the plaintiffs’ experts were relying upon the same physical evidence and reports of the explosion investigators as the experts of Conoco. Further they made physical inspections of the remains of the vat along with measurements and scientific tests. Further, the scientific principle about autoignition was agreed to by Conoco’s experts. They reached different conclusions and demonstrated them to the jury. The jury chose to believe the plaintiffs’ experts over the defendants’.
“Finally, much is made by Conoco that David Hurlbut testified that he heard the burners burning when he entered the dip vat house on that fateful day. He also testified that he had his hard hat on and had his back to the vat just before the explosion. He also testified that he was looking at his watch and thinking about quitting and saying ‘it was time to pick up the tools.’ Does this mean all the burners were on and burning? Does this mean that Hoffman or Windisch was not in the process of shutting the burners off when he entered? Does this mean there was no leak around one of the tubes? Does this mean that a partial vacuum would not be created when the burners were turned off therefore drawing air (and therefore oxygen) into the heat transfer chamber through one or all of the valves that were open? Or through the leak? Mr. Hurlbut testified about what he thought he heard. The jury then weighed the evidence and concluded that oxygen had entered the heat transfer chamber in sufficient quantities [to] produce the autoignition explosion.”
Expert opinion testimony is admissible if it will be of special help to the jury on technical subjects with which the jury is not familiar or if such testimony will assist the jury in arriving at a reasonable factual conclusion from the evidence. The test of competency of an expert witness is whether he or she discloses sufficient knowledge to entitle his or her opinion to go to the jury. The admissibility of expert testimony is within the broad discretion of the trial court. Wahwasuck v. Kansas Power & Light Co., 250 Kan. 606, Syl. ¶¶ 3, 4, and 5, 828 P.2d 923 (1992).
As noted, the burden on the party seeking a directed verdict and a judgment notwithstanding the verdict is a strict one. Here, the trial court resolved all the facts and inferences which could have reasonably been drawn from the evidence in favor of the prevailing party. Applying the same rule on appeal, we find reasonable minds could differ as to the conclusions requested by the defendant and, therefore, the trial court properly denied the defendant’s motions for a directed verdict and a judgment notwithstanding the verdict.
DEPRIVED OF A FAIR TRIAL
Conoco asserts it is entitled to a new trial because the trial court: (a) allowed plaintiff’s experts to change their opinions and calculations prior to and during trial; (b) allowed into evidence a brochure produced by defendant Carswell in the middle of trial; and (c) refused to allow Conoco to demonstrate to the jury the kettle test which illustrated the scientific' principles applicable to steam explosions. In reviewing these claims, we note that 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. State v. Brown, 249 Kan. 698, Syl. ¶ 1, 823 P.2d 190 (1991); State v. Anderson, 211 Kan. 148, 150, 505 P.2d 691 (1973).
On February 25, 1992, approximately six days prior to the start of trial, plaintiff delivered to Conoco’s attorneys additional reports prepared by Dr. Peterson. The next day, Conoco filed a motion in limine to exclude the new calculations and to preclude Dr. Peterson from' testifying at trial as to these calculations or for the court to grant a continuance so that it could analyze and prepare a defense against the new calculations. On February 28, 1992, the trial court denied both motions because the trial had been set for over a year, the court did not know when it could be reset, and the court budget had been prepared for the trial to be held in 1992. The judge stated that he understood why Conoco felt surprised by Dr. Peterson’s new calculations but that plaintiff’s counsel had not attempted to conceal the information and the judge- was satisfied that the information was promptly forwarded to Conoco’s counsel by the plaintiff’s attorney upon its receipt. However, the trial court stated Conoco could depose Dr. Peterson over that information if Conoco desired
“since this does, appear to be much different than at least the portions of the deposition that he previously gave, and if Conoco feels that in their turn of presenting evidence fn this case they need to hire someone to rebut that, they may do so, but they should notify this Court and.the plaintiffs of who that person is by the 15th of March.”
Plaintiff asserts it is important to note that at the time of Dr. Peterson’s deposition^ Conoco had not provided plaintiff all of the information required by Dr. Peterson to finalize all of his opinions. Dr.. Peterson’s additional calculations were a result of subsequent calculations by Conoco’s expert, Dr. Burmeister. Plaintiff argues that Dr. Peterson’s new calculations did not change his. ultimate opinions but merely rebutted Dr. Burmeister’s most recent calculations.
We note that Dr. Burmeister’s deposition was taken on January 14, 17, and 20, and concluded on February 13 and 14, 1992. Dr. Burmeister’s deposition totaled 847 pages, and included 75 exhibits, containing mostly calculations. During Dr. Burmeister’s deposition of February 13 and 14, 1992, he provided additional calculations and opinions that had been previously unknown to plaintiffs. Plaintiffs sent all of the information gathered in the January and February 1992 depositions of Dr. Burmeister to Dr. Peterson and Dr. Lowery. All of Dr. Peterson’s calculations to which Conoco objected on the grounds they were new were responses to the opinions, calculations, and evidence from Dr. Burmeister’s depositions. This claim has no merit.
EXPERTS CHANGING TESTIMONY...
Prior to trial, when Conoco had asked the court to set a deadline for plaintiff’s experts to complete their calculations, the trial court noted:
“Counsel, there is only so much I can do, but it seems like to me that these experts are going to be the type that they are going to continually make recalculations. They will be feeding off of one another, if you will. They will hear what the other person says and say, T didn’t think of that. Let me do this.’ They will be talking to you back and forth, and they will probably be making new calculations after the trial, because there are things that you probably haven’t thought to tell me that they didn’t think to ask you.
“I don’t think it is realistic. I think they are going to continue to do this—I will tell you this: If there is any change—major change in their testimony and they notify you of that, then you are going to have to notify the other side. I can’t believe that they would change anything in a major way, but these minor refinements', I think that is just going to be the nature of their field. I can’t give you that, so I won’t order that.”
K.S.A. 60-456(b) provides, in part:
“If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing . . . .”
Throughout discovery and trial, the court is vested with vast amounts of discretion in its direction of the pretrial discovery and the admission of evidence during the trial. Judicial discretion implies the liberty to act as a judge should act, applying the rules and analogies of the law to the facts and situations which occur prior to and during the trial.
Experts for both sides were allowed to submit calculations during trial to rebut testimony. Throughout trial, defendant’s experts changed their testimony about their calculations and revealed new data about CHTO. As a result, plaintiff’s experts repeated previous calculations or performed new ones to respond to the new testimony and calculations of defendant’s experts. We have reviewed the defendant’s claim and find that reasonable persons could differ as to the propriety taken by the trial court; therefore, it cannot be said that the trial court abused its discretion.
CARSWELL BROCHURE AND DOCUMENTS
On March 25, 1992, three weeks into trial, during cross-ex- animation of Richard Schmidt, president of codefendant Carswell, Conoco’s counsel asked Schmidt if he could obtain information concerning a reference his father, past president of Carswell, had made about an asphalt vat and a Dow representativé. Schmidt agreed to look for the requested information that night. Schmidt found the information stored in a box in the basement of the manufacturer’s office.
On March 26, 1992, Schmidt produced the advertising brochure describing the asphalt dip vat as using the vapor phase heating process and three pieces of correspondence indicating that Carswell was ordering the correct amount of Dowtherm heat transfer liquid. These documents would have been covered by Conoco’s request for production of documents in July 1990. On March 27, 1992, Conoco filed its objections to the introduction of these documents into evidence, requesting a mistrial or a three-month continuance. The trial court refused to grant a mistrial or a three-month continuance and admitted the documents into evidence. To allow Conoco time to assess its position and the parties to recall witnesses, reinstate claims against Carswell, and conduct additional discovery, the judge recessed the trial for four days.
Conoco contends it did not receive a fair trial because the hearsay brochure and other documents admitted in the middle of the trial not only surprised Conoco, they destroyed Conoco’s trial strategy and the credibility of its experts and counsel. Conoco’s first assertion is that the documents were inadmissible out-of-court hearsay statements offered by the plaintiff to prove that the vat was designed as a vapor phase system. Conoco argues these documents were found in the “private” file of Mr. Lagerwall, a deceased former employee of Carswell, and were not kept in the ordinary course of business. Conoco claims the exhibits were untrustworthy because the author of the brochure was unknown and there was no opportunity to cross-examine the author or authors as to the validity or accuracy of the documents.
Plaintiff claims the exhibits also were properly admitted as business records under K.S.A. 1992 Supp. 60-460(m), which allows admission of:
“(m) Business entries and the like. Writings offered as memoranda or records of acts, conditions or events to prove the facts stated therein, if the judge finds that (1) they were, made in the regular course of a business at or about the time of the act, condition or event recorded and (2) the sources of information from which made and the method and circumstances of their preparation were such as to indicate their trustworthiness.
“If the procedure specified by subsection (b) of K.S.A. 1992 Supp. 60-245a for providing business records has been complied with and no party has required the personal attendance of a custodian of the records or the production of the original records, the affidavit of the custodian shall be prima facie evidence that the records satisfy the requirements of this subsection.”
We note that the letters were addressed to or sent by an employee of Carswell at the time and they were retained in the employee’s letter file which remained at the Carswell plant. The president of Carswell testified that these were business letters prepared at or near the dates on the letters and all related to Carswell’s business.
The admissibility of business records is a question to be determined by the trial court upon a preliminary showing as to their authenticity and accuracy. The judge’s determination of the sufficiency of such preliminary proof will not be disturbed unless there has been an abuse of discretion. An appellate tribunal will accept the trial judge’s assessment unless the judge’s assessment wás arbitrary or capricious. The trial judge did not abuse his discretion in admitting the documents.
Conoco next asserts that the prejudice and surprise caused by the admission of the exhibits disrupted Conoco’s trial strategy and destroyed Conoco’s experts’ and counsel’s credibility. In addition, Conoco alleges plaintiff’s counsel used the brochure to bolster plaintiff’s experts’ credibility. Conoco states that although it was permitted to make new allegations of fault against Carswell admission of the documents made it impossible to communicate a new defense to the jury.
Before admitting the documents, the trial court noted:
“As a result of cross examination by Conoco’s trial counsel, Mr. Schmidt, who was testifying on behalf of defendant Firman Carswell Manufacturing Co., was asked to find the name of a representative of Dow Chemical Co. with whom he had dealings years ago. During an evening recess, Mr. Schmidt went through some papers in an old box behind a furnace in a storage room at Firman Carswell’s plant in Kansas City, Ks. He found Firman Carswell Exhibits 7 and 8. Outside the presence of the jury, the court examined the documents in question and sent the jury home so that the parties could have an opportunity to brief the court on the effect of the admission of these documents into evidence and whether they should be admitted into evidence. This court is convinced that Mr. Schmidt was telling the truth and he had found these exhibits and there is no evidence to believe that he or his counsel tried to hide their existence from the Court or the other parties. The man simply found the exhibits that were relevant and material and competent to prove some points that were in dispute during the trial.
“After adjourning court for a day, the Court then held a hearing outside the presence of the jury to determine the admissibility of the exhibits and determine the progress of the trial thereafter.
“Although no one knew of the existence of these and there was legitimate surprise about the documents Conoco argued at the time that their statements are not relevant or material to their defenses. They argued throughout the trial that it was irrelevant whether the heat transfer system in the asphalt dip vat at J&J was designed as a vapor phase or liquid phase system. It was their position that it was operated as a liquid phase system by J&J and that was important, not its design. Conoco continued with great vigor to allege fault on the part of J&J for using water to flush out this system. This was the core of Conoco’s defense.
• “These documents shed significant light on matters that until their admission, had been disputed by the parties. Those issues were: 1. When and by whom was the dip vat designed? 2. Was it a vapor phase or liquid phase design? and 3. What was its operating pressure and temperature? These documents corroborated other evidence previously admitted by both the plaintiffs and Conoco on these points. None of the information in these documents precluded Conoco from its defense.
“After determining that the documents should be admitted into evidence, the court then granted a four day adjournment of the trial, not six months as requested by Conoco. [In its brief, Conoco states it requested a three-month continuance.] Whatever surprise or shock Conoco experienced as a result of these documents being unearthed during the trial they had sufficient time to overcome them, especially since it was several weeks before Conoco had to present evidence. Also the court granted leave to Conoco to review their claims of fault against Firman Carswell and make new ones as well.
“The court will not restate its findings about these documents or Conoco’s request for a mistrial made in the course of the trial but will, rather, incorporate them as if fully set out herein.
“Suffice it to say the court does not believe that it committed error when it made the judgments mentioned above.”
K.S.A. 60-445 provides:
“Except as in this article otherwise provided, the judge may in his or her discretion exclude evidence if he or she finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered.”
Citing 1 Gard, Kansas C. Civ. Proc. 2d Annot., § 60-445 (1979), plaintiff argues that the exclusion of evidence on grounds of unfair surprise is not favored in Kansas. Plaintiff argues that Conoco cannot show that it suffered unfair prejudice as a result of the admission because Conoco had, in its opening statement, clearly stated to the jury that it did not matter whether the vat had a liquid or vapor phase system.
The existence of the brochure and other documents was no longer known by Carswell—time had even extinguished Car-swell’s knowledge that it had manufactured the vat. Conoco had not anticipated that its cross-examination of the now president of Carswell would lead to the discovery of documents.
The trial judge recognized that not only Conoco but all the parties were surprised by the discovery. The trial judge determined the probative value of the documents to ascertain the truth was not substantially outweighed by the risk that admission of the document would unfairly or harmfully surprise Conoco. To minimize the harm, the judge recessed the trial for four days to allow Conoco to retrench and prepare for the introduction of the documents.
Conoco was always aware that the plaintiff claimed the dip vat was designed and used as a vapor heat transfer vat. Conoco’s experts had the same opportunity to examine the vat as did the plaintiff’s experts. Each party’s experts gathered information, made assumptions, and reached a conclusion. Plaintiff’s experts determined that the vat was designed and used as a vapor heat transfer vat. On the other hand, Conoco’s experts reached a different conclusion—they determined that the vat was designed as a liquid phase heat transfer vat. Obviously, either the plaintiff’s or Conoco’s experts had reached an erroneous conclusion. The discovery of the brochure which stated that the vat was designed as a vapor heat transfer vat determined the answer to that controversy.
The major purpose of the introduction of evidence at trial is to airive at the truth. To arrive at the truth, evidence may be rejected because:
(1) The evidence is unreliable;
(2) the evidence is not relevant; or
(3) the evidence contravenes some legal policy more important than the determination of truth.
The use of the discoveiy process has for the most part eliminated surprise and ambush from the trial of civil actions. Full disclosure of all relevant facts gathered or known by the parties is essential to secure a just determination of an action. The brochure was relevant to the issue of how the dip vat was designed to be used—the brochure had great probative value to the determination of that truth.
Under K.S.A. 60-455, the trial judge may in his or her discretion exclude evidence if he or she finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise á party who has not had reasonable opportunity to anticipate that such evidence would be offered. We find under the circumstances the trial judge did not abuse his discretion by admitting the evidence.
STEAM EXPLOSIONS AND THE KETTLE TEST
Conoco’s last complaint is that, although plaintiff’s experts were permitted to testify that it was impossible for steam to have caused the explosion, it was prevented from demonstrating to the jury the scientific and physical principles that Conoco’s experts used in concluding that steam caused the explosion. Conoco sought to present the kettle test by a videotape as demonstrative evidence of its expert’s explanation of the scientific principles applicable to steam explosions. The kettle test consisted of a series of experiments performed for Conoco at the independent testing laboratories of Southwest Research Institute under the supervision of Conoco expert Dr. Adams, who specializes in the investigation of combustion and steam explosions and fires, including refinery explosions and asphalt fires.
To justify his refusal to allow the jury to view the videotape of the kettle test, the trial judge stated:
“The ‘kettle test’ does deserve mention. The court made extensive findings after hearing much evidence about this ‘test.’ The fact remains there were many significant differences that existed between the kettle ‘test’ and the structure of the asphalt dip vat at J&J. It would have been prejudicial to admit this evidence even for the ‘illustrative purposes’ alleged by Conoco.”
The trial court excluded the videotapes and an explanation of the kettle test experiment because the test did not replicate or at tempt to replicate what occurred in the dip. vat at J & J and was not sufficiently similar to what had occurred in the asphalt dip vat.
Relying on Robinson v. Audi NSU Auto Union, 739 F.2d 1481, 1484 (10th Cir. 1984), and Millers’ Nat. Ins. Co., Chicago, Ill. v. Wichita Flour M. Co., 257 F.2d 93, 99 (10th Cir. 1958), Conoco argues that where evidence is offered only for the purpose of illustrating scientific principles, the experiment need not be “substantially similar” to the actual events upon which the lawsuit is based.
Robinson was a products liability action in which plaintiffs sued the manufacturer, importer, distributor, and retailer of their Audi automobile for damages arising out of a rear-end collision. Defendants offered into evidence over plaintiffs’ objection the film “Cars That Crash and Burn,” which depicted a series of rear-end collisions between various different makes of-1973 automobiles.'. Plaintiffs’ Audi was a 1976 model. On-appeal, plaintiffs contended that the film was inadmissible because it depicted cpllisions ■ of 1973 automobiles which were dissimilar from the 1976 Audi involved in. the accident and because the conditions under which the filmed collisions occurred did not reflept the conditions surrounding the plaintiffs’ accident. Plaintiffs also maintained .that the defendants’ expert should not have been permitted to refer to. the inadmissible film in .testimony.
In resolving this issue, the Tenth Circuit noted that the admission of evidence of experiments must he established by showing background proof that the experiments were conducted under conditions that were at least similar to those which existed at the time of the accident. Demonstrations of experiments used: to merely illustrate the principles in forming an expert opinion do not require strict adherence to the facts. It is important in that situation, however, that it be made clear to the jury that even though there is not similarity to the events of the accident the information is received on a theoretical basis for the limited purpose for which it is offered. Where photographs, films, and slides are used to demonstrate the experiment, care must be used to point out that they are representative only of what the witness is seeking to establish and they must not be misleading in and of themselves. It stated that the purpose of this rule is to prevent confusion of the jury. Accordingly, when experiments do not simulate the actual events at issue, the jury should be instructed that the evidence is admitted for a limited purpose or purposes. 739 F.2d at 1484. The Robinson court found that plaintiffs had waived any objection to the absence of a limiting instruction and that they suffered no prejudice by the admission of the film.
Millers’ Nat. involved an explosion at a grain elevator. Defendant insurers objected to the admission of motion pictures of experiments conducted by plaintiff’s witnesses and to testimony relating to the experiments as misleading because they were not performed under conditions substantially similar to those known to have existed at the time of the occurrence. The court instructed the jury before each group of films was shown that they were admitted only for the purpose of illustrating certain principles which plaintiff contended were applicable in the case. The Tenth Circuit stated that it is clear that the experiments were presented to show principles and not to show what actually occurred. Defense counsel did not contend that an expert may not state the principles on which an opinion is based. Indeed, in a case such as this, expert testimony would be of little value unless such principles were both stated and tested by cross-examination. The demonstrative evidence which was used was merely a means to enable or assist the witness to make an understandable communication of admissible matter with reasonable accuracy and expedition.
The Millers’ Nat. court noted that the admission of testimony of experiments is a matter resting largely within the discretion of the trial court. The proper exercise of that discretion depends upon the situation in each case. In Millers’ Nat., the question was whether the breakout was caused by dead weight loading alone or by such loading plus an explosive force. This involved consideration of pressures, stresses, strains, transmission of force, structural strength, and other matters that are beyond the common knowledge of persons untrained in the subjects. The trial judge, after patiently viewing the pictures out of the presence of the jury, concluded that they were admissible to show the principles which the plaintiff contended. He permitted the defense to perform experiments in the courtroom. He gave proper cau tionary instructions. The Millers’ Nat. court held there was nothing before it to show any abuse of discretion.
In response, plaintiff cites 22 Wright & Graham, Federal Practice and Procedure, Evidence § 5171 (1978), and claims that the question of admissibility of scientific or experimental tests is one of relevance; viz., does the experiment have any tendency to prove or disprove a consequential fact? Plaintiff also argues that for experimental evidence to be probative, the proponent of the evidence must demonstrate that the conditions of the experiment were identical with or similar to those obtained in respect to the litigated happening.
Relying on the following quotation from a case challenging the admission of accident reconstruction evidence, Spraker v. Lankin, 218 Kan. 609, 615, 545 P.2d 352 (1976), plaintiff argues that Kansas adheres to the rule that the condition must be similar to such a degree that the results of the experiment are based upon more than speculation:
“We conclude that it was prejudicial error to submit this testimony to the jury. Opinions of experts are helpful to a court or jury in motor vehicle cases, particularly where there are no eyewitnesses to a collision. [Citations omitted.] However, opinions must be based upon reasonably accurate data available at the scene. Where there is little factual data, computations based upon assumption and speculation should not be received in evidence.”
Plaintiff’s evaluation of the court’s conclusion in Spraker is not correct. As to the plaintiff’s claims that the test vehicles and test conditions were dissimilar to those involved in the collision, the court noted:
“Some of the obvious differences are the grade at the accident scene and the level test site; the different makes, sizes, weights, types and construction of the motorcycles; the types of brakes; the types of tires; and the surface areas of the portions of the various vehicles which came in contact with the surface of the highway.” 218 Kan. at 614.
The Spraker court concluded that such differences go to the weight of the testimony rather than its competency, citing Pool v. Day, 143 Kan. 226, 53 P.2d 912 (1936). The court stated the differences should be recognized and may be explained by the expert. 218 Kan. at 614.
Regarding the admissibility of the kettle test, the trial court here stated:
“Counsel, the admission of evidence is within the sound discretion of this Court. The ruling of this Court on this particular motion is based upon a principle of law that’s found in Timsah v. General Motors Corporation, 225 Kan. 305. It is the opinion of this Court . . . whether or not [the test] is admissible to this Jury is within the sound discretion of this Court.”
“I believe that in order for this to be demonstrated to the Jury, the one seeking its admission must show conditions similar or present at the time of the occurrence in question. The testimony has been quite clear here in this particular case that the results of the kettle test do not attempt nor do they replicate what has occurred in this dip vat at J & J Metals. I believe that if I were to admit the results of this test or evidence concerning this test for even a limited purpose of being illustrative of certain properties or principles, it would be construed and could be—since it’s not similar to the conditions, it would be prejudicial to the plaintiffs’ case.
“I will therefore, in short, sustain the plaintiffs’ motion and direct that it—the videotapes not be shown and that the evidence not be adduced in the form of testimony from the doctor concerning the same.”
In Timsah v. General Motors Corp., 225 Kan. 305, 591 P.2d 154 (1979), plaintiffs’ truck went'out of control, turned over, and remained on its side for some time. Witnesses testified the hydraulic fluid reservoir for the power steering system still contained hydraulic fluid after the accident. Plaintiffs offered to fill the reservoir with water, place the cap thereon, and turn the reservoir on its side in the presence of the jury. The defendant objected to the experiment because there was no offer of proof that the conditions involved in the proposed experiment would be similar to the conditions which were present at the time of the accident. The court refused to pei-mit plaintiffs to conduct an in-court experiment to establish whether the hydraulic reservoir would retain fluid when turned upside down. The Timsah court stated that the relevance of demonstrations or tests to be performed in the presence of the jury rests in the sound discretion of the trial court and its decision on the matter would not be reversed on appeal unless an abuse of discretion is apparent. 225 Kan. at 317.
The admission of evidence of experiments must be established by showing background proof that the experiments were conducted under conditions that were at least similar to those which existed at the time of the accident. Demonstrations of experiments used to merely illustrate the principles in forming an expert opinion do not require strict adherence to the facts. The relevance of demonstrations or tests to be performed in the presence of the jury rests in the sound discretion of the trial court.
Each of the cases cited by the parties concludes that the admission of evidence of experiments is a matter resting largely in the discretion of the trial court. The trial court noted the misleading effect the kettle test would have on the jury, as well as the problem with its relevance to understanding the actual vat. On appellate review, the test is whether the trial court abused its discretion. In this case the court did not abuse its discretion.
Negligence is actionable when it involves the invasion of a legally protected interest, the violation of a right. 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 sustained, and (2) that he or she was damaged by the negligence. Plaintiff has met that burden. In addition, the law does not guarantee to every litigant a perfect trial; it does guarantee each litigant a fair trial. Schneider v. Washington National Ins. Co., 204 Kan. 809, 815, 465 P.2d 932 (1970). We have reviewed Conoco’s claims and note the parties were well represented by their attorneys and the trial was presided over by a skilled judge. Conoco received a fair trial.
Because of our decision, we do not reach Carswell’s cross-appeal.
Affirmed.
Abbott, J., not participating.
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The opinion of the court was delivered by
Lockett, J.:
Defendant appeals his convictions of two counts of aggravated robbery and three counts of kidnapping. Defendant claims (1) his identification, the evidence seized in the search of a vehicle, and his confession should have been suppressed; and (2) the trial court erred (a) when it struck a potential juror from the panel; (b) in failing to inquire whether the prosecution had threatened a potential witness for the defense with prosecution; (c) in admitting a hearsay statement indicating he had been identified as the robber; (d) in refusing to declare a mistrial after the prosecution violated an order precluding evidence regarding defendant’s prior criminal record; (e) in refusing to give defendant’s requested instruction regarding the unavailability of a potential witness; and (f) in instructing the jury.
At approximately 7:20 a.m. on January 19, 1991, Eric Stephens, a meat cutter, arrived at the Farmers’ Market in Wichita to open for the day’s business. As Stephens, the first employee to arrive, was opening the back door, a black man wearing nylon hose over his face and an old greenish-looking parka put a gun to his back. The man told Stephens to turn the store’s alarm off and ordered him to open the safe. Stephens stated he could not open the safe but another employee who was arriving in 10 or 15 minutes could. After obtaining the key to the back door from Stephens, the man ordered him inside the walk-in freezer.
At approximately 7:30 a.m., John M. Yaussi, the assistant manager, arrived at the store with his daughter, Maria. Yaussi observed a light-colored car parked behind the market with its engine running, and noted that the driver was bent over. Yaussi noticed Stephens had already arrived and had turned off the alarm to the doors. When Yaussi and Maria entered the store, he turned off the alarm to the safe. As they walked towards the front of the store, they heard the sound of a person running up behind them. They turned and saw a black man in a hooded parka with a nylon stocking over his face pointing a gun at them. Yaussi was ordered to open the safe. The man produced a grey bag and told him to put the money in the bag. Yaussi and Maria were ordered into the walk-in freezer. After a few minutes, Yaussi left the freezer and called 911 to report the robbery.
At 7:26 a.m., Officer Gary Smith of the Wichita Police Department responded to a radio dispatch concerning a suspicious cream-colored Ford Thunderbird parked behind the Farmer’s Market with its engine running. When the officer arrived at the market, he observed the cream-colored Thunderbird pulling away from the curb. The car’s trunk lid was ajar and bouncing up and down. The officer followed the slowly moving car, which was being driven with extreme caution. When the officer pulled up beside the car, the driver, a black woman, would not look towards him.
Officer Smith activated his emergency lights and stopped the car. The driver, Linda Parish, immediately exited the car and approached the officer. Her action caused Smith to become suspicious, and he concluded there was something in the vehicle she did not want him to see. After Officer Smith explained why he had stopped her, Parish indicated her young daughter was in the front seat of the car and a friend was in the back seat. The officer approached the car, looked in the back seat, and observed a black male lying down with his eyes open and “nervously” looking up at him. There was a grey hooded coat lying across the man’s legs. Because he feared for his safety, the officer drew his service revolver and ordered the man out of the car. He told the man to face the car and place his hands on the roof, so the officer could search him for weapons.
After Smith had checked the man for weapons, he received a dispatch over his portable police radio of an armed robbery at the Farmer’s Market. Upon hearing the dispatch, the man ran. Rather than pursue the man, the officer stayed with the car and called back-up officers to the area. Two hours later, through a mug shot, Officer Smith was able to identify the man who ran away as Frio Johnson. Parish, the driver of the car, had also identified the fleeing person as Frio Johnson. None of the victims was able to identify the robber.
From the car, police recovered a black .38 caliber handgun, a knee-high nylon stocking, a grey hooded parka, and a grey bag containing a large amount of cash. The key taken from Stephens was found in the pocket of the parka. Although the crime scene investigators obtained fingerprints from the market and the car, none of them matched those of Johnson. On January 23, 1991, a warrant was issued charging Johnson with two counts of aggravated robbery, Class B felonies, contrary to K.S.A. 21-3427, and three counts of kidnapping, Class B felonies, contrary to K.S.A. 21-3420.
On May 2, 1991, the defendant, after being arrested, was interviewed by Officer Michael Hennessy. Officer Hennessy briefly informed Johnson of the circumstances surrounding his arrest. The defendant immediately denied any involvement in the robbery of the market. Johnson later waived his Fifth Amendment right and confessed to robbing the store.
At trial, Johnson recanted his confession. He stated that a person by the name of Don McPherson came by his house and told him about robbing the market. Johnson said McPherson threatened to hurt his daughter if he told anybody. Johnson testified he was no longer worried about his daughter’s safety because “nobody knows where she lives at now.” Johnson explained that he left his parka at Linda Parish’s house seven or eight months prior to trial and did not have it at the time of the crime.
The jury found Johnson guilty of all charges. Johnson was sentenced to 15 years to life on each count of aggravated robbery and 10 years to life on each count of kidnapping. The sentences for aggravated robbery were ordered to run concurrently with each other. The sentences for kidnapping were also ordered to run concurrently with each other but consecutive to the sentences for aggravated robbery. Johnson appeals his convictions.
Twenty-three separate rights are noted in the first eight Amendments to the Constitution of the United States, twelve of which concern criminal procedure. The Fourth Amendment guarantees the right to be secure against unreasonable searches and seizures and prohibits the issuance of arrest warrants without probable cause. The Fifth Amendment prohibits placing a person in jeopardy by compelling a person to be a witness against himself or herself. The Sixth Amendment lists several rights applicable to criminal prosecutions such as the right to counsel, the right to a speedy and fair trial, and the right to confront opposing witnesses. The Eighth Amendment prohibits excessive bail. Kansas Judges Manual, p. 4-1. Defendant claims that his rights under the Fourth, Fifth, and Sixth Amendments to the Constitution were violated.
SUPPRESSION OF EVIDENCE SEARCH OF THE VEHICLE
Johnson contends his rights under the Fourth Amendment and K.S.A. 1992 Supp. 22-2402(1) were violated when Officer Smith stopped the car in which he was a passenger without having a reasonable and articulable suspicion that a crime had been committed. He argues that the stop of the Parish vehicle was not justified because: (1) Although the stop was based on an anonymous citizen’s call about a “suspicious” vehicle, there was nothing to indicate to the officer that Parish’s car was suspicious; (2) at the time of the stop, Officer Smith had no knowledge that any crime had been committed; and (3) the circumstances that Parish was driving slowly with the car trunk lid unlatched and did not look at Officer Smith when he pulled up next to her car did not provide a reasonable suspicion for the officer to stop the vehicle. Johnson concludes because the stop of the vehicle was illegal, the evidence seized in the subsequent search of the vehicle and the officer’s later identification of Johnson should have been suppressed.
Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed, or is about to commit a crime and may demand the name and address of such suspect and an explanation of such suspect’s actions. K.S.A. 1992 Supp. 22-2402(1). K.S.A. 1992 Supp. 22-2402 is a codification of the United States Supreme Court decision in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). In Terry, the Court held an officer may stop and frisk an individual even though the officer does not have probable cause to believe a crime has been or is being committed if the officer is able to point to “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” 392 U.S. at 21. See State v. McKeown, 249 Kan. 506, 508-09, 819 P.2d 644 (1991).
The stop of a vehicle, under the circumstances set forth in K.S.A. 1992 Supp. 22-2402 and Terry, is different than merely approaching an individual in a public place. Such a stop always, constitutes a seizure. Therefore, to stop a moving vehicle an officer must have articulable facts sufficient to constitute reasonable suspicion. See Delaware v. Prouse, 440 U.S. 648, 661-63, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979). To stop a vehicle to investigate circumstances which provoke suspicion, an officer must be aware of “specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion” that the vehicle contains individuals involved in criminal activity. United States v. Brignoni-Ponce, 422 U.S. 873, 884, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975). See State v. McKeown, 249 Kan. at 510.
At the suppression hearing, Officer Smith testified he received information, prompted by a call from an anonymous caller, over his police radio at approximately 7:26 a.m., that a suspicious cream-colored Thunderbird was parked behind a store with its engine running. It was unknown whether the car was occupied. Officer Smith knew no stores in the area were open at that hour and was aware of a problem with burglaries, larcenies, and auto thefts in the area. As he reached the location of the store, the car pulled slowly away with its trunk lid ajar and bouncing. Officer Smith testified this bothered him because it seemed as if somebody had just thrown something into the trunk or somebody was in there. When the car pulled away, it drove at a speed of approximately 5 to 10 miles an hour as if to not attract attention. Officer Smith thought the driver might have been having car trouble. He also thought it was strange the driver would not look at him when he pulled up beside the car. Looking at the totality of the circumstances, Officer Smith acted reasonably in stopping the vehicle.
“An appellate court will uphold a trial court’s suppression of evidence if that ruling is supported by substantial competent evidence. State v. Chiles, 226 Kan. 140, 144, 595 P.2d 1130 (1979).” State v. Garcia, 250 Kan. 310, 318, 827 P.2d 727 (1992). Here, the officer was aware of sufficient articulable facts which created a rational inference that the individual in the vehicle was involved in criminal activity. The stop of the car was legal. Johnson’s contention that the evidence obtained from the search of the car and Officer Smith’s identification of him was inadmissible as fruit of the poisonous tree because the stop of the car was illegal is without merit.
THE CONFESSION
At the hearing on the motion to suppress Johnson’s confession, Detective Hennessy testified that, on May 2, 1991, when he met with Johnson in a standard police department interview room, Johnson’s leg was shackled to the table, but his arm was free. Prior to meeting with Johnson, Hennessy had reviewed Johnson’s past criminal arrest record and learned Johnson had been arrested 21 times since 1984.
Hennessy further testified that upon arriving in the interview room, he identified himself and explained to Johnson why there was a warrant issued for his arrest. He explained that at the time other officers were investigating the robbery, the female in the car, who was identified as Johnson’s girlfriend or his wife, had identified him (Johnson) as being in the car and as the person who ran from the officer. Hennessy told the defendant that Officer Smith, who had made the initial car stop, had later through photographs identified Johnson as the person who had run from the car. Hennessy told Johnson he was suspected of being the robber and in his opinion there was a good case against Johnson. Upon questioning by the prosecutor, Hennessy explained that it was his policy to inform anyone he wished to question why that person was being detained prior to advising the person of his or her rights. According to Hennessy, before he could inform Johnson of his rights, Johnson immediately said he had been out of town and made it very clear that he was not involved in or had any knowledge of the robbery. Hennessy then told Johnson that if this was true there was no sense in continuing the conversation and started to leave.
Hennessy testified that as he got up from his chair, Johnson asked what would happen to him. Hennessy testified that he perceived Johnson was asking what would happen to him (Johnson) if he was convicted of the charges. Hennessy explained that he could not tell Johnson what would happen; the only thing he could do for him was “to go to the DA and tell the DA if the person is cooperating or not, cooperating in the investigation such as this.” Johnson then asked what kind of a deal Hennessy could make for him with the district attorney. Hennessy said he could not make any deals and once again stated that he could only go to the district attorney and inform the district attorney whether Johnson was cooperating. Johnson motioned Hennessy back to the table, told him to sit down, and said, “Let’s talk.” At that point, Hennessy advised Johnson.of his legal rights. Johnson subsequently confessed to the robbery.
Johnson contends the initial conversation, prior to his confession, between him and the detective was a custodial interrogation which required a warning as to his constitutional rights. He argues that, because he was not advised of his rights prior to the initial conversation with the officer, his confession should have been suppressed. Johnson does not claim that Detective Hennessy engaged in any questioning of the defendant prior to informing the defendant of his rights. Johnson asserts that by describing the strength of the State’s case against him and failing to advise Johnson of his rights prior to Johnson’s statements denying guilt, Hennessy was engaging in the well-established psychological ploy of stating facts that point to defendant’s guilt in order to elicit a confession. He argues that such a ploy is clearly an interrogation under Arizona v. Mauro, 481 U.S. 520, 526-27, 95 L. Ed. 2d 458, 107 S. Ct. 1931 (1987).
The State contends that Johnson cannot argue that he was overcome by psychological pressure because the defendant was not unfamiliar with the Miranda warnings or the police interrogation process. Johnson had been arrested 21 times since 1984. The State asserts there is no evidence that the confession was not a product of the defendant’s free and independent will. It states the record clearly shows that Hennessy was merely explaining the reason for the defendant’s arrest prior to the interrogation process when the defendant interrupted the officer and denied the allegation. The State claims that statement by the defendant was of the defendant’s own initiative. The State points out that no incriminating statements were made by Johnson until after the Miranda warnings had been given.
“In the landmark ease of Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), the United States Supreme Court held the prosecution cannot use statements, whether inculpatory or exculpatory, stemming from custodial interrogation, unless it proves that procedural safeguards were used to secure defendant’s privilege against self-incrimination. These safeguards included informing the person in custody, prior to interrogation, of his Fifth Amendment rights to remain silent, to consult with an attorney, and to have an attorney present during interrogation. 384 U.S. at 445.”
State v. Leroy, 15 Kan. App. 2d 68, 70, 803 P.2d 577 (1990). Custodial interrogation is defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” State v. Fritschen, 247 Kan. 592, 598, 802 P.2d 558 (1990).
In determining whether a confession is voluntary, a court is to look at the totality of the circumstances. The burden of proving that a confession or admission is admissible shall be on the prosecution, and the required proof is by a preponderance of the evidence. Factors bearing on the voluntariness of a statement by an accused include the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused’s age, intellect, and background; and the fairness of the officers in conducting the interrogation. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused. State v. Price, 247 Kan. 100, Syl. ¶ 1, 795 P.2d 57 (1990).
When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely and voluntarily given, and admits the statement into evidence at the trial, this court accepts that determination if it is supported by substantial competent evidence. State v. Perkins, 248 Kan. 760, 764, 811 P.2d 1142 (1991). See State v. William, 248 Kan. 389, 409, 807 P.2d 1292, cert, denied 116 L. Ed. 2d 89 (1991). Here, after reviewing the duration and manner of the interrogation; the accused’s age, intellect, and background; and the fairness of the officer in conducting the interrogation, the record shows there was substantial competent evidence to support the decision of the trial court.
Johnson also argues his confession should have been suppressed because the detective’s impermissible implied promise that if Johnson cooperated the officer would inform the district attorney of the cooperation and Johnson would receive a benefit, made defendant’s confession involuntary.
In State v. Harwick, 220 Kan. 572, 576, 552 P.2d 987 (1976), this court held that a mere offer by the officer who interviewed the defendant to talk to the district attorney does not make a confession involuntary. Johnson claims Harwick does not apply because Hennessy had interrogated Johnson without informing him of his rights prior to implying that Johnson would receive a benefit for cooperating. Johnson does not explain how this makes Harwick inapplicable.
A review of the record shows that the detective did not bargain with or promise the defendant anything by implication or otherwise.
CHALLENGE FOR CAUSE
Johnson next contends the trial court erred when it struck Julie Nguyen, a potential juror, from the panel for cause at the State’s request. He argues that there was no evidence upon which the court could reasonably determine that Nguyen’s state of mind would cause her to act impartially or prejudicially.
During voir dire by the State, Julie Nguyen indicated that some of her friends in the Vietnamese community had been in trouble with the law and she had heard they were treated unfairly. Although she said she could be fair to both sides and she understood she could not take her personal experiences into account if selected for the jury, Nguyen acknowledged her friends’ experiences might cause her a problem as a juror. On four occasions she indicated this might be a problem for her. She could not articulate how it would affect her as a juror. The State moved to have her excused for cause. Over the defendant’s objection, the court excused the juror.
A juror may be challenged for cause when the juror’s state of mind with reference to the case or any of the parties is such that the court determines there is doubt that the juror can act impartially and without prejudice to the substantial rights of any party. K.S.A. 22-3410(2)(i). Challenges for cause are heard by the trial judge and are decided by the judge’s use of discretion.
The trial judge is in a better position than an appellate court to view the demeanor of prospective jurors as they are questioned. A trial judge’s ruling on a challenge for cause will not be disturbed unless it is clearly erroneous or an abuse of discretion is shown. State v. Dixon, 248 Kan. 776, 788-89, 811 P.2d 1153 (1991). The record shows the district court’s ruling was neither clearly erroneous nor an abuse of discretion.
THREATENING A POTENTIAL WITNESS
During the trial, the prosecutor and defense counsel requested a hearing out of the presence of the jury. The prosecutor informed the judge he would not call Parish as a witness because she would recant her previous statement to the police and now testify she drove another person, not Johnson, to the store and knew that person intended to rob the store and, by so testifying, would inculpate herself in the crimes. Defense counsel informed the judge she planned to call Parish as a witness and had talked with Parish during the lunch hour and that Parish told her that Detective Hennessy had threatened to charge her with aiding and abetting a robbery “if she testifies today the way she told the detective she would testify.” Defense counsel claimed that although this constituted prosecutorial misconduct, Parish never theless wanted to testify. The prosecutor responded that he did not threaten to file charges against Parish and never discussed with the witness the potential for charges, and that to his knowledge, Detective Hennessy had not threatened the witness with prosecution.
The judge stated that there was no evidence of prosecutorial misconduct or that, if it occurred, it had affected the defendant’s right to a fair trial. Later in the proceedings, the court appointed an attorney for Parish. After a discussion with her attorney, Parish elected to invoke her privilege against self-incrimination and did not testify.
A threat or implication of possible prosecution “calculated to transform ... a willing witness [in]to one who would refuse to testify” amounts to prosecutorial misconduct. United States v. Smith, 478 F.2d 976, 979 (D.C. Cir. 1973). Johnson contends that the threats clearly constituted prosecutorial misconduct and denied him a fair trial. He argues the trial court was wrong in brushing this issue aside without making an inquiry.
Johnson’s appellate counsel fails to take into account the fact that defendant’s counsel at trial (1) did not request a hearing or make any further inquiry of the officer’s alleged statement, (2) indicated that Parish was willing to testify in spite of the alleged threat to prosecute, and (3) when the court asked defense counsel, “Is there any action you would suggest that I take?” defense counsel responded:
“Your Honor, I am in a difficult position because I would like her to be a witness. I think it is necessary for her to be a witness for our case. However, if she decided not to testify, to take the Fifth Amendment, she would not be available as a witness. I don’t know if the District Attorney is planning on putting in any of her prior statements in this case. I think it would be proper probably for the Court to appoint her an attorney to advise her. I don’t think she really understands what the possibilities -are, what is going on even. I didn’t discuss it with her very much because like I said it is really not my place to.”
The State notes that the trial court heard arguments by both the prosecution and the defense on this point. It contends that because of the judge’s inquiry and the fact that Parish invoked her privilege against self-incrimination, the defendant has not shown prejudicial error or that he was deprived of a fundamentally -fair trial.
Defense counsel did not. provide evidence or an affidavit to show that there was a threat to prosecute the witness or if there was a threat that the threat in any way changed the outcome of the trial. Defense counsel merely concludes that a threat was made by the officer. Because defense counsel failed to further inquire into the matter or. request the trial judge to do so, or to provide any authority showing an evidentiary hearing was required, the issue is without merit.
OUT-OF-COURT STATEMENT
On direct examination, the prosecutor asked Detective Hennessy what he told the defendant at the beginning of the interview. After a number of questions along that line, the prosecutor asked:
“Q. And did you tell him [Johnson] anything else about the case at that time?
“A. I advised him that he has been identified by an officer who had him stopped shortly after the robbery as the same person that he pulled out of the car that was involved in the robbery and had ran from the officer. . ■ ■
“Q. Did you tell him anything else? •
“A. And I also advised him that the person who had been identified to me as his girlfriend identified him.”
At that point defense counsel objected on grounds the statement was hearsay. The court ruled that it was not hearsay because the statement was not offered to prove the truth of the matter stated but to show what the officer said to the defendant about the case and why he wanted to talk with him. On appeal, Johnson contends that the statement was inadmissible hearsay asserting the defendant’s guilt. Johnson, without explanation, cites State v. Collazo, 1 Kan. App. 2d 654, 655, 574 P.2d 214 (1977), as authority and then concludes the trial court erred in overruling the hearsay objection.
In Collazo, the State’s case rested almost entirely on testimony of an undercover narcotics agent who had met the defendant through a third party. The testimony of the agent concerned conversations with the third party, who described- Collazo as a known and large scale drug dealer. The Collazo court held the statements admitted as evidence were so closely related to the defendant’s guilt that the agent’s presentation of the out-of-court statement to the jury not only explained the agent’s interest in the defendant but was also testimony as to defendant’s being a drug dealer. The Collazo court noted an out-of-court declaration by a third party to a police officer which- is offered at trial merely to explain the officer’s conduct in the investigation of a crime, although hearsay, is usually admissible because it is not offered for the truth of the matter stated. However, when such declaration also directly incriminates the defendant, it is inadmissible unless it falls within one or more of the hearsay exceptions of 60-460. The statements to the officer were found inadmissible as they did not fall within one of the hearsay exceptions. 1 Kan. App. 2d at 655-56.
The State argues that the facts of Collazo are distinguishable because the identification by Parish was only a small part of the evidence connecting the defendant to the crime. According to the State, that evidence revealed what led the police to the defendant, but it did not establish the defendant’s guilt. The State notes Parish’s statements did not detail the robbery but merely identified Johnson as being in the car. The State contends the detective’s comment was offered to explain why the defendant had been arrested and what occurred prior to his confession and was not offered to prove that Parish had identified the defendant as the robber.
A situation similar to this case occurred in State v. Thompson, 221 Kan. 176, 179, 558 P.2d 93 (1976), where an officer testified about information given him by a radio dispatch. There, we noted that radio dispatch testimony was admitted merely to explain a sequence of events leading to action by an officer and not to prove the truth of the matter asserted in the dispatch, i.e., to establish the identity and guilt of the defendant.
Here, the question by the prosecution, and answer by the witness was to inform the jury what the agent had told Johnson at the beginning of the interview in order to establish the background and foundation testimony for what occurred later in the conversation. The statement was not closely related to defendant’s guilt, as were the statements in Collazo.
MOTION IN LIMINE
Defendant filed a motion in limine requesting that the State be prohibited from making any reference during trial to his prior criminal record. The court granted the motion ‘lay consent of both parties.”
Defendant contends the order was violated in the direct examination of Detective Hennessy during the following exchange:
“Q. Before you talked with him did you observe him talk with anybody else?
“A. Yes, I observed him come in from the front entrance. He was walked around to our section. He was placed into an interview room. While doing so—
MS. REED: Objection, your Honor. I don’t think this is relevant. It is certainly inadmissible.
MR. PUNTCH: It goes to the defendant’s state of mind at the time, your Honor. It is relevant.
THE COURT: He may answer.
“Q. Go ahead.
“A. While he was being placed in an interview room he became re-acquainted with another detective by the name of Detective Mervosh who he has known for several years.
“Q. What was his mood? How was he acting?
MS. REED: Objection, your Honor. May we approach the bench?”
Outside the hearing of the jury, defense counsel argued that the comment revealed to the jury that the defendant had prior arrests and had previously talked to detectives. She then requested a mistrial, asserting the State had violated the motion in limine.
The State responded to the trial judge that there were numerous individuals in the community who know police officers, and that fact does not indicate those individuals have a criminal record. The prosecutor argued that there was no intimation that any prior contact the defendant had with Detective Mervosh was in a professional capacity. The prosecutor claimed that testimony was necessary because Johnson, in an effort to suppress his confession, intended to claim that he was forced by extreme pressure to falsely state he was the person who committed the crime because of the threat of harm to his daughter. The prosecutor pointed out the fact that Johnson was laughing and joking with the other officers before he was interviewed by Detective Hennessy nullified Johnson’s possible claim of duress. The court sustained the defendant’s objection but denied the motion for mistrial. The court advised defense counsel that if Johnson took the stand and testified he was coerced by the officers, the challenged evidence would become admissible. The court then instructed the jury to disregard the last question and answer.
Defendant contends the court’s refusal to grant a mistrial was a clear abuse of discretion because the testimony (1) “definitely indicated that defendant had a prior criminal record” and (2) was highly , prejudicial because the judge admitted evidence of Johnson’s conduct with officers prior to being questioned and then subsequently failed to investigate the prosecution’s threats to Parish. Defendant fails to offer an explanation regarding the second part of his contention. As to the first part, there was nothing in the detective’s statement that Johnson knew and joked with other police officers which would indicate Johnson had a prior criminal record.
The decision to declare a mistrial lies within the sound discretion of the trial court. The defendant has the burden of showing substantial prejudice before an appellate court will find the trial court abused its discretion. State v. Grissom, 251 Kan. 851, Syl. ¶ 37, 840 P.2d 1142 (1992). Declaration of a mistrial is a matter entrusted to the trial court’s discretion, and that decision will not be disturbed on appeal absent a clear showing of abuse of discretion. State v. Mayberry, 248 Kan. 369, 380, 807 P.2d 86 (1991). Here, there has been no clear showing of an abuse of discretion.
DEFENDANT’S REQUESTED INSTRUCTION
Because Parish had exercised her Fifth Amendment right not to testify, she was not available as a witness. Defendant requested the trial court to instruct the jury that Linda Parish was unavailable as a witness for either party—without informing the jury that she had exercised her Fifth Amendment right not to testify. The court refused to give such an instruction because it would inappropriately focus the jury’s attention on that evidence and cause the jury to speculate why the witness failed to testify.
On appeal, defendant contends that the trial court abused its discretion in not giving the requested instruction because “such an instruction was critical given the threats that may have caused Ms. Parish not to testify and the trial court’s decision to admit [her] hearsay statement identifying defendant as the robber.” No reason or explanation for this claim is provided. In addition, defense counsel failed to argue this claim to the trial court. A defendant cannot raise points on appeal which were not presented to the trial court. State v. Crawford, 246 Kan. 231, 234, 787 P.2d 1180 (1990).
ERROR IN INSTRUCTING THE JURY
Jury Instruction No. 10 stated:
“Insofar as the jury is concerned, you may consider as evidence whatever is admitted in the trial as part of the record, whether it be the testimony of witnesses or an article or document marked as an exhibit, or other matter admitted.”
Defense counsel objected to the instruction, contending that the judge’s instruction failed to follow PIK Crim. 2d 51.04, which provides:
“In your fact finding you should consider and weigh everything admitted into evidence. This includes testimony of witnesses, admissions or stipulations of the parties, and any admitted exhibits. You must disregard any testimony or exhibit which I did not admit into evidence.”
Defendant asserts that when the court specifically instructed the jury to disregard the testimony of Detective Hennessy, the judge implied Johnson had a criminal record. Under the circumstances, he contends, it was imperative that the last sentence of the PIK instruction be given the jury to insure it would not consider inadmissible evidence.
When defense counsel objected to instruction No. 10, she made no mention of Hennessy’s comment about Johnson’s conversation with Detective Mervosh. That particular assertion is now presented for the first time. No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds for the objection, unless the instruction is clearly erroneous. K.S.A. 22-3414(3). Under the circumstances, in considering the instruction, we use the clearly erroneous standard to determine if the defendant is entitled to a new trial because of the instruction.
There is no indication why the trial judge did not use the applicable PIK instruction. Insofar as this particular objection is concerned, the substance of the PIK instruction was made known to the jury through instruction No. 10. An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility that the jury would have returned a different verdict. State v. Stafford, 223 Kan. 62, Syl. ¶ 2, 573 P.2d 970 (1977). The instruction was not clearly erroneous. Defendant has not shown the court’s failure to use PIK Crim. 2d 51.04 was clearly erroneous.
Defendant also contends that the instruction incorrectly indicated that the jury could consider as evidence an article or document marked as an exhibit. Defendant implies the instruction as given suggested that anything marked as exhibits could be considered as evidence even if the exhibits were not admitted into evidence by the judge.
The defendant either misreads or fails to understand the instruction. The instruction clearly indicates the jury “may consider as evidence whatever is admitted in the trial . . . whether it be ... an article or document marked as an exhibit, or other matter admitted.”
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The opinion of the court was delivered by
Davis, J.:
The defendant, Gregg Francis Braun, entered pleas of nolo contendere to two counts of first-degree murder, two counts of aggravated kidnapping, and two counts of aggravated robbery. In his direct appeal, he contends the court erred by sentencing him in absentia and abused its discretion in sentencing him. Finding no reversible error, we affirm.
Highly summarized, the facts are that the defendant, in order to support his cocaine habit, robbed two convenience stores in Finney County, Kansas. On both occasions and within hours of one another, he abducted the female clerk at a convenience store, took her to an isolated area, and killed her execution style with a bullet in the back of the head.
The defendant’s pleas of nolo contendere are not in issue. He personally appeared before the court and entered free and voluntary pleas to each count. In open court at the time the defendant entered his pleas, he indicated that he did not wish to be present for sentencing. Sentencing was set for April 30, 1992.
On April 15, 1992, the defendant executed a waiver of appearance for sentencing. He does not contend the waiver was anything other than his voluntary relinquishment of a known right executed with full advice of competent counsel. The waiver executed provides:
“I, Gregg Francis Braun, first being duly sworn, upon my oath state that:
1. I am executing this waiver of my right to appear at sentencing scheduled for the 30th day of April, 1992, only. This waiver shall not be construed to be a waiver as to any other matter.
2. I understand that the sentencing procedure is a part of the process of the courts wherein my right to be present is guaranteed by the Constitutions of the United States and the State of Kansas.
3. In addition to my constitutional right to be present I understand that the statutes of Kansas grant me the right, at a sentencing procedure prior to the actual pronouncement of sentence, to speak directly to the Court for purposes of mitigation or explanation. I further understand that at the sentencing procedure I have a right to allocution wherein the Court will inform me of the finding of the Court and ask if I know of any legal cause or reason why judgment and sentence should not be pronounced.
4. I understand that by waiving my right to appear at sentencing I am waiving my right to speak directly to the Court for purposes of mitigation or explanation and my right of allocution.
5. I also understand that I may revoke this waiver at any time.
6. I also warrant that I have visited with my attorney concerning this matter as much as I desire.
“I STATE NO FURTHER.”
The defendant’s attorney, on the morning set for sentencing, visited with the defendant at the county jail. The defendant again affirmed his decision not to be present at the sentencing and stated that he did not wish his attorney to make any statements on his behalf at the sentencing.
At the sentencing hearing, the following exchange took place with regard to the defendant’s absence:
“THE COURT: You may be seated.
“Mr. Bahr, your client has previously filed with this Court an Affidavit that purports to waive his right to be present at this hearing today; is that correct?
“MR. BAHR: Yes, sir. It should be in the file. It was filed on 15 April. It was executed on 15 April of 1992, this year.
“THE COURT: It should be in here. Here we go. I see you have Mrs. Daniel here also in Court, and she did according to this Affidavit notarize the statement; is that correct?
“MR. BAHR: She did, sir. Also, she administered the oath to the defendant before he signed the document. She also asked him if he understood it and if he read it, and attested that he did. Then he signed the document, and then she notarized it. That took place over in the Finney County Jail.
“THE COURT: This Affidavit also appears to waive not only his right to be present, but his right to speak in mitigation and also his right to allocution; is that correct?
“MR. BAHR: That’s true, sir, and he’s also affirmed that to me verbally. I spoke with him before I came over here this morning just to confirm that it was still his wish to waive his appearance. And then I spoke with him again Monday evening, and he indicated at that point that he did not wish me to make any statement on his behalf at the sentencing, to simply stand silent.
“THE COURT: Are you satisfied in your own mind that he is aware that he may revoke that waiver at any time?
“MR. BAHR; Yes, sir, certainly. I’ve told him that several times. And he’s always stated, I know that I can be there, but I don’t choose to be.
“THE COURT: Mrs. Daniel, you did, in fact, deliver the oath to Mr. Braun?
“MRS. DANIEL: Yes, sir.
“THE COURT: Are you satisfied in your own mind that he was of such a state that he understood the nature of that oath?
“MRS. DANIEL: Yes.
“THE COURT: Mr. Pierce, do you have any comments or statements on behalf of the State?
“MR. PIERCE: Your Honor, the State of Kansas has received a brief from the defendant quite a while back citing State v. Kelly, and I’ve looked that case over quite a few times. One important aspect is that a defendant can waive his rights to be present during the trial by coming into court in open court and making that clear to the Court that he or she does not wish to be present during trial.
“However, Your Honor, as to the matter of sentencing, there was a discussion in the Kelly case which indicated that it’s mandatory in regard to felony cases. However, it also indicates that it can again be waived.
“What has occurred in this particular case has been that defense counsel and the defendant have conversed with each other. The defendant has signed a notarized statement. The notary is present in Court. The only concern I have from reading that document is, again, that he says that at any time he has the right to revoke that waiver. We don’t have anything from the time that he signed that and it was notarized to today that says he does not except for Mr. Bahr’s comments that he has made.
“And I implicitly trust Mr. Bahr’s comments as being truthiul and accurate, and I have no problems with that. I only feel that the concerns that the State would have that he would be present in Court or at least for the Court to determine at this point in time whether he wishes to waive any further appearance before the Court for sentencing or any other future hearings in this mattter.
“THE COURT: There is law to the effect that the waiver can be done either through open court or by sworn affidavit. And State v. Fennell, 218 Kan. 177, which was a successor to State v. Kelly gives several reasons or several purposes for the defendant to be present at sentencing.
“First is that he may be taken into immediate custody to effect the execution of the sentence, which is not of a concern at this point in that he is already in custody. And the second is that so the defendant may exercise his right of allocution. And he has been at least on the face of this Affidavit and by statements of Mr. Bahr indicated to the Court that he does understand that right. The Affidavit sets forth the nature and the purpose of the allocution, and he has waived that right.
“Given the unusual circumstances of this case, and also given the fact— and quite frankly, Mr. Pierce, the fact that this case has almost risen to explosive proportion's because of your statements in public concerning your personal opinions as to Mr. Braun which have no basis in this matter, the Court is going to accept the waiver and not require Mr. Braun to be present.
“Mr. Pierce, has there been victim notification?
“MR. PIERCE: Yes, Your Honor. The State of Kansas has notified all victims that we had knowledge of. We have sent letters to them approximately three weeks ago when we first learned about this date and made sure that everybody did receive notice. We did make an announcement to the press to make sure that the press knew the date so that they could get it out to the public, and that has been done.
“THE COURT: Mr. Bahr, you have stated that your client has expressed to you his wishes that you not make any statements on his behalf?
“MR. BAHR: That’s true, your Honor.
“THE COURT: Is there anything beyond that? And I’m not certain exactly how far that statement goes. Is there anything that you’d wish to state as the attorney for Mr. Braun at this time?
“MR. BAHR: Nothing, sir, other than the normal matters that would be in issue during the sentencing or prior to the sentencing. He and I have reviewed the presentence investigation, and he has no problems with that. He is aware of the sentences that have to be imposed in these proceedings. He has no problem with that. And beyond that, he asked that I make no further comment.”
Sentence in Absentia
The defendant claims that the sentences are void because the court failed to make the requisite findings (1) that extraordinary circumstances prevailed and (2) that an injustice would occur by requiring his presence. The defendant bases this argument upon the following quotation from United States v. Brown, 456 F.2d 1112, 1114 (5th Cir. 1972), wherein the Fifth Circuit Court of Appeals stated:
“While it is not error, in some circumstances, for a defendant to be absent during trial [citations omitted], a defendant must be present at sentencing. Only in the most extraordinary circumstances, and where it would otherwise work an injustice, should a court sentence a defendant in absentia, and then only under appropriate safeguards, as where the defendant has expressly waived his right to be present either by sworn affidavit or in open court for the record.”
In State v. Fennell, 218 Kan. 170, 542 P.2d 686 (1975), this court, after recognizing that “[t]he right to be present at the time sentence or judgment is pronounced has been said to be a common-law right, separate and apart from the constitutional or statutory right to be present at the trial,” 218 Kan. at 176, asked two questions:
“Can the right be waived, and, if so, has appellant by his conduct waived the requirement?
“The authorities elsewhere as to the legal effect of the voluntary absence of an accused when sentence is pronounced are divided. One line of cases holds that an accused waives his right to be present when he willfully absents himself at the time sentence is to be pronounced. Another line holds an accused cannot waive this right, even by his voluntary or willful absence (see anno. 6 A. L. R. 2d 997, and later case service). Generally, it may be said that most rights, even those constitutional, can within limitations be waived. K.S.A. 22-3405 is modeled after rule No. 43 of the Federal Rules of Criminal Procedure. In interpreting this rule in United States v. Brown, 456 F.2d 1112 (1972) the federal court said:
. . [A] defendant must be present at sentencing. Only in the most extraordinary circumstances, and where it would otherwise work an injustice, should a court sentence a defendant in absentia, and then only under appropriate safeguards, as where the defendant has expressly waived his right to be present either by sworn affidavit or in open court for the record.’ (p. 1114.)
“The federal view appears sound. In State v. Kelly, 213 Kan. 237, 515 P.2d 1030, we recognized two purposes for a defendant’s presence at sentencing: First, so that the defendant may be taken into custody immediately for execution of the sentence—this purpose being one primarily for the state’s benefit; and, second, so that the defendant may exercise his right.of allocution—this primarily for the benefit of the accused. Therefore, the requirement for a defendant’s presence being for the benefit of both parties, we concluded ‘While the statute is “mandatory” in the sense that either party may demand compliance, it is no more jurisdictional than the many other constitutional and statutory mandates which may be waived by a party for whose benefit they were fashioned.’ ” 218 Kan. at 177.
In Fennell, we adopted the statement of Brown as sound. We also clearly concluded in Fennell that the defendant, within limitations, may waive his right to be present at sentencing.
Application of the federal test under the circumstances of this case demonstrates that the court found sufficient extraordinary circumstances and further concluded that requiring the defendant’s presence would otherwise work an injustice when it stated:
“Given the unusual circumstances of this case and also given the fact-— and quite frankly, Mr. Pierce, the fact that this case has almost risen to explosive proportions because of your statements in public concerning your personal opinions as to Mr. Braun which haye no basis in this matter, the Court is going to accept the waiver and not require Mr. Braun to be present.”
Neither Brown nor Fennell require that specific findings as to extraordinary circumstances and injustice be made on the record. The second part of the test requiring a sworn affidavit by the defendant clearly was met in this case. The trial court concluded in this case that because of the explosive proportions of the case, it would accept the waiver. Thus, we may conclude that the federal test has been met.
The defendant relies on several Kansas cases in support of his conclusion that the trial court erred in sentencing him in absentia. However, all cases cited by the defendant in support of his proposition may be distinguished.
Although in Fennell we found the sentencing in absentia void, Fennell does not require the same result here. In Fennell, the defendant fled the jurisdiction after escaping from custody following his conviction and was subsequently sentenced in absentia. The defendant expressly requested, pro se and through his counsel, the right to be present at his sentencing. There was no waiver in Fennell. Additionally, State v. Turbeville, 235 Kan. 993, 686 P.2d 138 (1984); Aeby v. State, 199 Kan. 123, 427 P.2d 453 (1967); and Roberts v. State, 197 Kan. 687, 421 P.2d 48 (1966), dealt with correcting invalid or void sentences, and there was no waiver of appearance in these cases. In none of the cases cited by the defendant did the defendant voluntarily and with advice of counsel execute a written waiver of his right to be present for sentencing and allocution.
The defendant further relies on the case of United States v. Strusberg-Gonzalez, 626 F. Supp. 899, 900-01 (D. Md. 1986), where the defendants were tried in absentia and the court refused to sentence them until they appeared in court. Both defendants were fugitives, did not appear at any stage of the proceedings, and did not file an express waiver of their right to be present during sentencing. Under these circumstances, the court properly refused to sentence them in absentia. In the present case, however, the defendant was present at arraignment and at a subsequent hearing where he changed his plea, and he executed a sworn affidavit waiving his right to be present at sentencing. The defendant’s reliance upon Strusberg-Gonzalez is misplaced.
While a trial court should encourage a defendant to execute his or her constitutional, statutory, and common-law right to be present at the sentencing stages of the trial, it is not incumbent upon the court or the prosecutor to force the defendant’s appearance for sentencing over the defendant’s objection. Here, the defendant indicated at the time he entered his pleas in open court that he did not want to be present for sentencing. Thereafter, with advice of counsel, he executed under oath an express waiver of his right to be present for allocution and sentencing. On the morning of the sentencing, he conferred with his attorney, reaffirmed his desire not to be present for sentencing, and advised his counsel to make no statement to the court on his behalf during sentencing. Under these circumstances, and given the very careful manner in which the trial judge considered on the record the defendant’s absence prior to sentencing, we conclude that the defendant waived his right to be present for sentencing. As stated in Fennell, constitutional rights “can within limitations be waived.” 218 Kan. at 177.
Sentences Imposed
The court sentenced the defendant to four life sentences on his four class A felonies: two felony-murder counts and two aggravated kidnapping counts. On his two counts of aggravated robbery, class B felonies, the court sentenced the defendant to two 15-year-to-life sentences. All sentences were ordered to run consecutively to each other and to the life sentence the defendant had received in New Mexico.
The defendant contends that the court abused its discretion by failing to follow the provisions of K.S.A. 21-4601 and K.S.A. 21-4606. The defendant contends that the sentences imposed are unduly harsh and fail to consider his severe drug addiction.
The record demonstrates that the court considered the provisions of K.S.A. 21-4601 and K.S.A. 21-4606. In addition, the court ordered and considered a report from the State Reception and Diagnostic Center prior to imposition of sentence. The sentences imposed fall within the permissible statutory limits and, in the absence of special circumstances showing an abuse of discretion, will not be disturbed on appeal. See State v. Crispin, 234 Kan. 104, 671 P.2d 502 (1983). No special circumstances are demonstrated by the defendant showing an abuse of discretion.
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The opinion of the court was delivered by
Herd, J.:
This is a declaratory judgment action. Gerald Lightner, special administrator of the estate of Jessie Lightner, appeals a judgment in favor of Centennial Life Insurance Company; Kansas Department of Revenue; and Lloyd and Vivian Lightner, co-administrators of the estate of Dale Lightner. Gerald brought suit to determine the proper payee of proceeds from six life insurance policies owned by Jessie Lightner. The district court held Centennial properly paid the proceeds to the estate of Jessie’s husband, Dale Lightner.
This dispute arose from the following facts. Dale and Jessie Lightner, husband and wife, were killed simultaneously in an automobile accident in 1980. It is undisputed that at the time of the accident, Jessie was both owner and sole beneficiary of six insurance policies on the life of her husband. The policies had been issued by Life of America, Inc., and assumed by Centennial in 1972.
The Lightners died intestate, leaving eight children to share equally in both estates. Gerald claims that by wrongfully paying the proceeds of the policies, totalling $329,075.92, to the larger estate of Dale rather than the smaller estate of Jessie, Dale’s estate is exposed to substantially greater federal estate tax liability.
The sole issue is whether the policies are ambiguous and require this court to construe their terms to determine the proper beneficiary under the facts of this case. The district court, in granting summary judgment in favor of Centennial, read the beneficiary provisions of the insurance contracts in light of K.S.A. 58-704. K.S.A. 58-704 provides that in cases of simultaneous death, policy proceeds are payable “as if the insured had survived the beneficiary.” Thus, Dale, as insured in this instance, is deemed to have survived Jessie. The court then looked to the insurance policies to see where the proceeds were to go when the sole beneficiary dies before the insured. The beneficiary clause in five of the policies provides:
“Unless otherwise provided herein, if any beneficiary dies before the Insured, the interest of such beneficiary shall vest in the surviving beneficiary or beneficiaries, if any; otherwise in the executors, administrators or assigns of the Insured.”
The sixth policy is similar:
“The interest of any Beneficiary who dies before the Insured shall vest in the Insured unless otherwise provided herein. ... If no Beneficiary shall survive the Insured, then payment of the proceeds shall be made to the executors or administrators of the Insured.”
Applying the clear language of these provisions, the district court held Dale was the insured. Thus, Centennial paid the proceeds to Dale’s estate.
The district court decided this case on the basis of documents and stipulated facts. The proper standard of appellate review in this case is thus de novo. Crestview Bowl, Inc. v. Womer Constr. Co., 225 Kan. 335, 592 P.2d 74 (1979). This gives us the power to construe the effect of the policies differently than the district court. Patrons Mut. Ins. Ass’n v. Harmon, 240 Kan. 707, 732 P.2d 741 (1987).
The confusion in this case results from the different meanings of the word insured. In life insurance, insured usually refers to the person whose death obligates the insurer to pay. 2A Couch on Insurance § 23:1 (2d ed. rev. 1984). However, the word may also refer to the applicant, the owner, or a person who is both the beneficiary and premium payor. 44 C.J.S., Insurance § 49; Black’s Law Dictionary 726 (5th ed. 1979). Jessie was all of these: applicant, owner, beneficiary, and premium payor. Both she and Dale could properly be termed the insured.
There is usually no difficulty with the term because in the typical situation the owner of the policy insures his own life for the benefit of another. In such a typical case, Dale would have applied for, paid for, and owned the policies on his life, with the proceeds upon his death going to Jessie as beneficiary.
Appellant contends the policies in question were drafted with only this typical scenario in mind. The printed provisions make no distinction between the insured and the owner; between the person whose life is insured, Dale, and the person who owns the policy, Jessie. He argues the drafter used the word insured in provisions where owner was actually meant.
Appellant agrees the first use of insured in the beneficiary clauses refers to Dale, as the person whose life is insured, but argues the second use of insured refers to the owner of the policy, Jessie. He contends the drafter intended payment to go to the owner of the policy if no beneficiary survived, not to the estate of the person whose life was insured.
Centennial says the second use of insured in the beneficiary clause indicates it has the same meaning as its first use in the clause; i.e. referring to the person whose death will make the proceeds payable. It argues it would be nonsense to assume the second use of insured means owner when the first clearly does not.
Appellant points to a later policy, not in dispute here, which was originally drafted and issued by Centennial and which has as its beneficiary clause:
“If any Beneficiary shall die before the Insured, the interest of such Beneficiary shall vest in the Owner unless otherwise provided herein.”
Appellant argues this provision differs from the earlier provisions originally drafted by Life of America only in that Centennial took care to distinguish the word insured from owner.
He contends Jessie’s intent in buying the earlier policies was the same as in buying this policy, and under the same scheme of estate planning. She took care to be owner as well as beneficiary because the proceeds would be subject to less tax in her smaller estate than if the proceeds went to her husband’s estate.
Centennial argues a later policy has no relevance in construing the language of earlier ones; all it proves is that terms can be different. It points out that in this later policy, Jessie made her children alternative beneficiaries, thus avoiding the controversy argued here. It protests appellant cannot assert all policies must be interpreted identically when Jessie herself provided for differing disposition of proceeds in these policies. Centennial also maintains the Lightners would not have died intestate if they were genuinely concerned with estate planning.
Appellant argues Centennial recognized the estate planning intentions of Jessie when she signed her application under the printed heading, “Signature of Owner, if incidents of ownership are not to be vested in the Proposed Insured.” He also maintains when Jessie added to her name, “or children in case of her death,” she evidenced her intention that the proceeds should flow to her estate so her children would obtain the maximum amount of proceeds possible. He argues Jessie’s writings conflict with Centennial’s interpretation of the printed portions. If irreconcilable conflict is found to exist, preference should be given to the hand written portions when construing the policy. Harrison v. Farmers & Bankers Life Ins. Co., 163 Kan. 277, 181 P.2d 520 (1947).
Appellant further contends Centennial failed to ensure the drafting of the policy conformed with Jessie’s application and known intent. The application for insurance is to be construed with the policy as a whole to determine the parties’ intent. Leach v. Metropolitan Life Ins. Co., 124 Kan. 584, 261 Pac. 603 (1927), reh. denied 125 Kan. 129 (1928). The terms of a policy should be construed in light of the intent of the parties. American Media, Inc. v. Home Indemnity Co., 232 Kan. 737, 658 P.2d 1015 (1983).
Appellant argues the district court’s analysis was improper in that it ignored provisions in the contract which show Centennial did not use the term insured consistently. He calls attention to six provisions in the contract which use the word insured to mean owner. They are:
1. The beneficiary clause in the first five policies states if the beneficiary dies before the insured, the proceeds are to go to the “executors, administrators or assigns of the Insured.” Emphasis added. Appellant argues this provision makes sense only when it is understood insured sometimes denotes owner in the policy. Only Jessie, as owner, had the right to assign the policies.
Centennial counters with the argument that assigns is simply a legal phrase which was used mechanically. It also argues that while Dale admittedly did not have the right to assign the policy as such, he might have assigned his estate’s contingent right to take the proceeds. The term assigns is broad, and can encompass those who take remotely. Black’s Law Dictionary 109 (5th ed. 1979); Hoffeld v. United States, 186 U.S. 273, 46 L. Ed. 1160, 22 S. Ct. 927 (1902) (assignees).
2. The parties repeat their arguments over the assignment clause in the policies: “Any assignment of this Policy by the Insured shall operate so long as such Assignment remains in force, and to the extent thereof, to transfer the interest of any revocable beneficiary.”
3. The loan provision of the policy states: “At any time while this policy shall be in force, . . . the Company, on the sole security of this policy and on receipt thereof, . . . will loan to the Insured any sum which shall not exceed the cash value of the policy . . . .”
Appellant points out Dale had no right to obtain loans against the policy. It was Jessie who had the right, and it was Jessie only who exercised that right.
4. Another loan provision guarantees that failure to repay a loan will not void the policy until notice is mailed “to the last known address of the Insured, and of the assignees on record . ...” A second clause provides for an automatic premium loan upon “written request of the Insured, made prior to default in premium payment . . . .”
Appellant argues these provisions concerning loans and payment and default clearly speak to the owner rather than the person whose life is insured. He compares the notice provision in the disputed policies with that drafted by Centennial in the later policy, which states the policy is not void for nonpayment of a loan until “notice to the last known address of the Owner and . . . any assignee of record with the Company.” Emphasis added.
5. The cash value clause states “the Insured may surrender this policy to the Company at its Home Office for its cash value . . . .” Emphasis added. Insured must refer to the owner in this clause. Centennial could not pay the cash value of policies over to debtors, small children, and others whose lives may be insured but who are not policy owners.
6. A clause headed “Cancellation by Insured” continues on to read, “This rider may be cancelled on the due date of any premium upon the written request of the owner of the policy . . . .” Emphasis added. This clearly indicates the drafter intended insured to denote owner in this instance.
Centennial complains appellant is not asking for an interpretation of the policies, but rather a reformation of the policies. It argues that, this being the case, appellant is barred from his arguments because of lack of pleading, statute of limitations, and inability to meet a clear and convincing standard of proof.
It is clear appellant is not asking for reformation, he is merely asking us to interpret the meaning of the words used in the contract. The initial question is whether the language in the policy is clear and unambiguous. The scope of appellate review limits our authority to construe the terms of the policies. We may do so only if the term insured can be reasonably deemed open to different interpretations. Girrens v. Farm. Bureau Mut. Ins. Co., 238 Kan. 670, 715 P.2d 389 (1986).
If a natural reading of a contract as a whole leaves one uncertain about the consistent meaning of a term, the contract is ambiguous. Patrons Mut. Ins. Ass’n v. Harmon, 240 Kan. at 713.
Because the term insured in the policies applies sometimes to Dale and sometimes to Jessie, it is clear the use of the term insured in these contracts of insurance is ambiguous.
Finding the insurance policies are ambiguous, we are constrained to construe the policies as a whole, rather than limiting our scrutiny to the beneficiary clause. See Kennedy v. Classic Designs, Inc., 239 Kan. 540, 543-44, 722 P.2d 504 (1986). We should also take into consideration the intent of the parties in making the contract. Crestview Bowl, Inc. v. Womer Constr. Co., 225 Kan. at 340.
The United States Supreme Court found the use of the word assured in a policy to have different meanings, requiring it to construe the meaning of the word in the beneficiary clause according to the circumstances in which the policy was made. It first stated it considers the word assured synonoymous with insured. Connecticut Mut. Life Ins. Co. v. Luchs, 108 U.S. 498, 504, 27 L. Ed. 800, 2 S. Ct. 949 (1883). See 43 Am. Jur. 2d, Insurance § 189.
The confusion over the term assured in Luchs is remarkably similar to the case presently before the court. In Luchs the plaintiff, who was applicant, beneficiary, and premium payor, insured the life of his debtor partner. He then had to argue he was the assured to whom the beneficiary clause promised the money. The court held the term assured has no fixed meaning and must be defined according to its context in the policy and by consideration of the purpose in obtaining the insurance. Luchs, 108 U.S. at 503-04. See Shapiro Bros. Factors Corp. v. Automobile Ins. Co., 40 F. Supp. 1, 3 (D.N.J. 1941). As it was the applicant’s intention to benefit from the insurance, he was in this case held to be the assured designated in the beneficiary clause. Luchs, 108 U.S. at 504.
An insurance contract is generally liberally construed against the insurer. Patrons Mut. Ins. Ass’n v. Harmon, 240 Kan. at 713. Centennial argues the “construction against insurer” rule should not apply in this case because it paid all it owed. It argues the rule is legitimately used only to ensure maximum coverage of the applicant, citing Equitable Life Assur. Soc. of U.S. v. Pinon, 344 So. 2d 880 (Fla. Dist. App. 1970), where the court refused to apply the rule because it did not find the language ambiguous.
Centennial argues an extension of the rule to cases where the insurer admittedly pays all that is owed would possibly expose insurers to inconsistent presumptions. For example, if this were a case where the heirs of both estates were not the same people, each might argue the “construction against the insurer” rule for their own benefit. The insurance company would lose no matter which estate it paid the money to.
The purpose of the “construed against the insurer” rule, however, is not to predetermine disputes but only to assist the court in determining the intent of the parties to the contract. Liberty Mutual Ins. Co. v. Allied Mutual Ins. Co., 442 F.2d 1151 (10th Cir. 1971). The basis for construing an insurance policy against the insurer in close cases is simply the rule of contracts that the drafter must suffer the consequences of not making the terms clear. See Patrons Mut. Ins. Ass’n v. Harmon, 240 Kan. at 713; Desbien v. Penokee Farmers Union Cooperative Association, 220 Kan. 358, 363, 552 P.2d 917 (1976); 2 Couch on Insurance § 15:74 (2d ed. rev. 1984).
The policies, read in their entirety, use the term insured to refer to both the one whose life is insured and the owner of the policy. The term is thus ambiguous where these entities are two different people. We hold Jessie Lightner purchased the policies of insurance on the life of her husband, Dale Lightner, for the specific purpose of preventing the proceeds of the policies from becoming a part of Dale Lightner’s estate. We therefore hold the Estate of Jessie Lightner is entitled to the proceeds from the policies of insurance on Dale Lightner’s life.
The decisions of the district court and Court of Appeals are reversed and Lloyd Lightner and Vivian Lightner, co-administrators of the Estate of Dale R. Lightner, deceased, are ordered to pay the proceeds from the life insurance policies to the Estate of Jessie M. Lightner, deceased. | [
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John A. Sparks, formerly of St. Marys, Kansas, an attorney admitted to the practice of law in the State of Kansas, has asked this court to accept the voluntary surrender of his license to practice law pursuant to Supreme Court Rule 217 (235 Kan. cxxxii).
On July 23, 1987, Thomas L. Johnson filed a complaint with the Disciplinary Administrator alleging that respondent, in the handling of the estate of L. O. Johnson, deceased, and as trustee of a testamentary trust established by the will of L. O. Johnson for the benefit of Thomas L. Johnson, had misappropriated or failed to properly account for a substantial sum of money belonging to the estate and trust. Upon being notified of the complaint, respondent elected to surrender his license to practice law in Kansas rather than participate in the disciplinary proceedings. After examining the record from the office of the Disciplinary Administrator, the court finds that the surrender of respondent’s license should be accepted and the respondent disbarred from the practice of law in Kansas.
It Is Therefore Ordered that John A. Sparks be and he is hereby disbarred from the practice of law in the State of Kansas and the Clerk of the Appellate Courts is directed to strike his name from the rolls of attorneys authorized to practice law in Kansas.
It is Further Ordered that this order shall be published in the official Kansas Reports.
It is Further Ordered that the disciplinary proceedings against the respondent pending before the Kansas Board for Discipline of Attorneys be terminated and the costs thereof assessed to the respondent. | [
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The opinion of the court was delivered by
Miller, J.:
This is an original action in mandamus, brought by the attorney general against two judges, the Honorable James J. Smith, of Garnett, a district judge of the Fourth Judicial District, and the Honorable Phillip M. Fromme, of Burlington, a district magistrate judge of the Fourth Judicial District. At issue is an order entered by Judge Smith on March 5, 1987, establishing Anderson County rules and panels for indigent defense services, and a similar order entered by Judge Fromme for Coffey County on March 9, 1987. Judge Smith has responded, and Judge Fromme has adopted that response. The matter was argued orally before the court and is now ready for resolution.
The background facts are not in dispute. Orville J. Cole, an experienced trial attorney who offices at Garnett, in Anderson County, was appointed to represent three indigent defendants in criminal cases — A. DeWayne Buckridge in Coffey County, and Ricky Dale Revelle and Kyle W. Wallace in Anderson County. Cole filed motions in each of the cases, asking the district court to discharge him as appointed attorney for each defendant. Buckridge was charged with eleven felony counts; Mr. Cole, at the time of filing the motion, had made five trips from Garnett to Burlington, a round trip of 60 miles, and had spent a total of 40 hours on the case, which at that time was only through the preliminary hearing stage. Mr. Cole alleged in his motion that the amounts allowed for compensation from the State Board of Indigents’ Defense Services are inadequate to pay even his-office overhead costs while his time was being spent on the indigent defense. He alleged that the defendant could not receive effective assistance of counsel unless counsel is adequately compensated and can thus afford to spend the time to properly represent his client. Also, in the case of State v. Bonweg, pending in the District Court of Osage County, Joseph G. Herold, an attorney whose office is in Osage City, in Osage County, had been cited for contempt by the district magistrate judge for refusing to accept an appointment to represent an indigent defendant, David Bonweg. Mr. Herold’s appeal of that contempt citation, and Mr. Cole’s motions to be discharged as attorney for indigent defendants in the three criminal cases were consolidated for hearing before Judge Smith. An evidentiary hearing was held in the consolidated matters on February 23, 1987, and the matter was continued until March 3,1987, at which time the trial court set aside the contempt conviction of Joseph G. Herold, apparently finding that Mr. Herold was incompetent in criminal law matters, and discharged Mr. Cole from his appointments as counsel for defendant Buckridge in the district court of Coffey County and for the defendant Wallace in the district court of Anderson County. The court continued the appointment of Mr. Cole as attorney for defendant Revelle in the district court of Anderson County, but set his compensation at $68 per hour for representing the indigent defendant in that proceeding. The court also ordered that the charges against Buckridge and Wallace be dismissed without prejudice, and the defendants discharged from custody within 30 days, unless during that time effective counsel agreed to represent said defendants for the rate allowed by the State Board of Indigents’ Defense Services or the State provided “reasonable compensation.”
That order and the proceedings in the four criminal cases are not the subject of this mandamus action, but are related here simply to show the background of the general orders next discussed, which form the basis of this proceeding.
On March 5, 1987, Judge Smith entered and filed an order in the office of the clerk of the district court of Anderson County, establishing Anderson County rules and panels for indigent defense services. We will refer to it as the “general order.” The general order recited, inter alia, that attorneys cannot be required to serve as counsel for indigent persons unless a reasonable compensation is provided. “Reasonable compensation” is defined in the general order to mean compensation in the amount of $68 or more per hour, allowed by the executive branch for such amount of hours as is required for effective representation of the indigent defendant. The order further states:
“If reasonable compensation is not available for an attorney and does not become so available within 30 days after a defendant is determined to be indigent and effective assistance of counsel is not available to such indigent defendant at the end of such period, the charges against such defendant shall be dismissed without prejudice.”
The order then proceeds to list six attorneys who are included on all panels, and one attorney who is included only on the care and treatment panel and the misdemeanor panel, for Anderson County.
On the following day, March 6,1987, Judge Fromme entered a general order establishing Coffey County rules and panels for indigent defense services in that county. It contained findings and orders identical to those of Judge Smith in the Anderson County order, and it listed five attorneys who are included on all panels.
On March 25, 1987, the State, on relation of the attorney general, filed a petition for mandamus. The petition sets forth the factual background and the entry of the general orders referred to above. It then recites that compensation for court appointed counsel for indigent criminal defendants is set by statute, K.S.A. 1986 Supp. 22-4507(a), and by regulation, K.A.R. 105-5-1 et seq. The State asks this court to issue a writ of mandamus compelling Judges Smith and Fromme to perform their statutory duties as directed by the Indigent Defense Services Act, K.S.A. 1986 Supp. 22-4501 et seq., and the rules and regulations promulgated by the State Board of Indigents’ Defense Services as published at K.A.R. 105-1-1 et seq., and the common law, and to make appointments of counsel to indigent defendants as directed by law, and to compel Judges Smith and Fromme to rescind their respective general orders, described above, insofar as they apply to conditions of appointment based on compensation and the rates of compensation which exceed those established by the State Board of Indigents’ Defense Services.
Judge Smith filed a response. He contends that mandamus is inappropriate; necessary parties are not included; there is no clear right to relief; appointed attorneys are entitled to reasonable compensation, based upon various constitutional provisions; indigent defendants are being denied competent counsel; and this court should hear additional evidence. The transcripts of the district court hearings of February 23 and March 3, 1987, were attached as exhibits. Judge Fromme adopted Judge Smith’s response. An additional response was filed by Orville J. Cole. Memoranda and briefs of the parties and of various amici curiae have been filed, and this court has heard oral argument. The matter is now ready for decision.
Before proceeding further, it will be helpful to review the statutes and regulations. Unless otherwise noted, all of the pertinent statutes are contained within the 1986 cumulative supplement to the Kansas Statues Annotated. The State Board of Indigents’ Defense Services was created by K.S.A. 22-4519. Its powers and duties, insofar as are here material, are described in K.S.A. 22-4522, which reads:
“The state board of indigents’ defense services may:
“(a) Provide, supervise and coordinate, in the most efficient and economical manner possible, the constitutionally and statutorily required counsel and related services for each indigent person accused of a felony and for such other indigent persons as prescribed by statute;
“(b) establish, in each county or combination of counties designated by the board, a system of appointed counsel ... for the delivery of legal services for indigent persons accused of felonies;
“(d) adopt rules and regulations in accordance with K.S.A. 77-415 et seq., and amendments thereto, which are necessary for the operation of the board and the performance of its duties and for the guidance of appointed counsel, contract counsel and public defenders, including but not limited to:
“(2) standards and guidelines for compensation of appointed counsel and investigative, expert and other services within the limits of appropriations.”
Other pertinent statutes include the following:
K.S.A. 22-4501:
“(a) The judge or judges of the district court of each county shall prepare, and file in the office of the clerk of the district court, a list of attorneys who are eligible for assignment to represent indigent persons accused of crimes, such list to be known as the panel for indigents’ defense services.
“(b) Each member of the panel for indigents’ defense services shall be available to represent indigent defendants upon the appointment of any judge of the district court of the judicial district in which such member maintains an office for the practice of law, or any adjacent judicial district. All such appointments shall be in accordance with the applicable system for providing legal defense services for indigent persons prescribed by the state board of indigents’ defense services for the county or judicial district. A judge of the district court may appoint an attorney u>ho is a member of the panel for indigents’ defense services of a county other than the county where the case is pending only after such judge of the district court has found that no member of the panel for indigents’ defense services of the county where the case is pending is eligible or qualified to represent the defendant.
“(d) The state board of indigents’ defense services shall provide by rule and regulation for the assignment of attorneys to the panel for indigents’ defense services, for the distribution of the list of panel members to the judges of the district court and law enforcement officials of the judicial district, and for the appointment, by rotation or otherwise, of counsel from the panel for indigents’ defense services to represent indigent persons charged with crimes in such cases and under such circumstances as may be required by law.” (Emphasis supplied.)
K.SA. 22-4503:
“(a) A defendant charged by the state of Kansas in a complaint, information or indictment with any felony is entitled to have the assistance of counsel at every stage of the proceedings against such defendant and a defendant in an extradition proceeding, or a habeas corpus proceeding . . . , is entitled to have assistance of counsel at such proceeding. . . .
“(b) If such a defendant appears before any court without counsel to assist and conduct the defendant’s defense, it shall be the duty of the court to inform the defendant that such defendant is entitled to counsel and that counsel will be appointed to represent the defendant if the defendant is not financially able to employ an attorney. . . .
“(c) If it is determined that the defendant is not able to employ counsel, as provided in K.S.A. 22-4504 and amendments thereto, the court shall appoint an attorney from the panel for indigents’ defense services or otherwise in accordance with the applicable system for providing legal defense services for indigent persons prescribed by the state board of indigents’ defense services for the county or judicial district.
“(d) ... It is the duty of an attorney appointed by the court to represent a defendant, without charge to such defendant, to inform the defendant fully of the crime charged against the defendant and the penalty therefor, and in all respects fully and fairly to represent the defendant in the action.” (Emphasis supplied.)
K.S.A. 22-4507:
“(a) An attorney . . . who performs services for an indigent person, as provided by this act, shall at the conclusion of such service or any part thereof be entitled to compensation for such services and to be reimbursed for expenses reasonably incurred by such person in performing such services. Compensation for services shall be paid in accordance with standards and guidelines contained in rules and regulations adopted by the state board of indigents’ defense services under this section.
“(b) Claims for compensation and reimbursement shall be certified by the claimant. In accordance with standards and guidelines adopted by the state board of indigents’ defense services under this section, all such claims shall be reviewed and approved by one or more judges of the district court before whom the service was performed .... Each claim shall be supported by a written statement, specifying in detail the time expended, the services rendered, the expenses incurred in connection with the case and any other compensation or reimbursement received. When properly certified and reviewed and approved, each claim for compensation and reimbursement shall be filed in the office of the state board of indigents’ defense services. If the claims meet the standards established by the board, the board shall authorize payment of the claim.
“(c) If the state board of indigents’ defense services determines that the appropriations for indigents’ defense services or the moneys allocated by the board for a county or judicial district will be insufficient in any fiscal year to pay in full claims filed and reasonably anticipated to be filed in such year under this section, the board may adopt a formula for prorating the payment of pending and anticipated claims under this section.
“(d) The state board of indigents’ defense services may make expenditures for payment of claims filed under this section from appropriations for the current fiscal year regardless of when the services were rendered.
“(e) The state board of indigents’ defense services shall adopt rules and regulations prescribing standards and guidelines governing the filing, processing and payment of claims under this section.” (Emphasis supplied.)
K.S.A. 22-4522 authorizes the Board to contract, in each county or combination of counties, for the services of counsel to represent indigent defendants, and to adopt and submit an annual budget. K.S.A. 22-4523 authorizes the Board to appoint public defenders and to provide for the establishment and staffing of public defender offices.
The published regulations of the State Board of Indigents’ Defense Services, pertinent here, and included in the 1984 edition of the Kansas Administrative Regulations unless otherwise noted, are as follows:
Article 1 — GENEBAL
“105-1-1. (a) Legal representation, at state expense, shall be provided to all persons who are financially unable to obtain adequate representation without substantial hardship to themselves or their families in the following cases:
“ (1) felony cases at the trial court level;
“ (2) habeas corpus cases arising out of an extradition proceeding pursuant to K.S.A. 22-2710;
“ (3) habeas corpus cases arising from a mental commitment pursuant to K.S.A. 1982 Supp. 22-3428;
(4) probation revocation hearings;
“ (5) habeas corpus cases as authorized by K.S.A. 1982 Supp. 22-4506;
(6) motions attacking sentence pursuant to K.S.A. 60-1507;
(7) motions to modify sentence pursuant to K.S.A. 21-4603;
(8) appeals from felony convictions or habeas corpus findings to the appellate courts of Kansas;
“ (9) appeals from an order of the court waiving jurisdiction of a juvenile offender to the criminal courts;
“(10) habeas corpus cases arising out of an involuntary commitment pursuant to K.S.A. 1982 Supp. 59-2917;
“(11) grand jury witnesses called to testify pursuant to K.S.A. 22-3009;
“(12) material witnesses committed to custody as authorized by K.S.A. 1982 Supp. 22-2805; and
“(13) any other cases in which legal representation at state expense is required by law.
“(c) Legal representation shall continue until final resolution of the cause for which appointed.”
Article 2. — TERMS DEFINED
“105-2-1 [1986 Supp.]. Definitions. Unless the context otherwise requires, terms used in K.A.R. 105-1-1 et seq., forms and instructions shall have the following meanings:
“(a) Board means the state board of indigents’ defense services.
“(b) Director means the state director of indigents’ defense services appointed by the board.
“(c) District means judicial district.
“(d) Legal representation means representation of indigent defendants by a qualified and effective attorney, as well as transcript preparation and other related defense services by investigators, expert witnesses and others when requested by the attorney and approved by the court.
“(e) Panel means the list of qualified attorneys in a county who are eligible for appointment to represent indigent defendants.
“(f) Public defender means an attorney selected and employed on full-time basis by the board to provide quality legal representation to indigent defendants pursuant to K.S.A. 1984 Supp. 22-4501, et seq.
“(h) Trial counsel means an attorney or public defender appointed under the terms of these regulations to provide legal representation to indigent defendants in the district courts of Kansas and as provided by K.A.R. 105-3-9.”
Article 3. — APPOINTED ATTORNEYS
“105-3-2. Eligibility to serve. All licensed attorneys engaged in private practice shall be included on the panel, with the following exceptions: (a) full-time employees of any nonprofit corporation currently providing legal services to indigents; or
“(b) those attorneys who request to be excused due to age or retirement, if there exists an adequate number of other local attorneys to handle the caseload of indigent defendants.
“The above exceptions may be waived upon application to the administrative judge and with approval of the judge and the board. Additional exceptions may be made by the administrative judge with the approval of the board.” (Emphasis supplied.)
“105-3-3. Rotation of appointments. All appointments shall be made in an orderly manner to avoid patronage, or the appearance of patronage, and to ensure fair distribution of appointments among all whose names appear on the panel. Names on the panel shall be in alphabetical order and appointments shall be made in sequence with the following exceptions: (a) When the court determines there is a conflict of interest, the next listed attorney shall be appointed.
“(b) When the court determines the attorney lacks sufficient experience in a serious felony case, the next qualified attorney shall be appointed.
“(c) When the court determines an emergency appointment of counsel is required, the first available attorney may be appointed; or
“(d) When the court determines the attorney is unavailable to promptly handle the case, the next listed attorney shall be appointed.
“Any attorney who is passed over shall be first in sequence for the next appointment.”
“105-3-4: Responsibility for appointments. Panel attorneys shall have primary responsibility for those cases to which they have been appointed.”
“105-3-6. Distribution of panels. The administrative judge of each district shall distribute the list of panel members to judges of the district court, law enforcement officials within the district and the board. The list of panel members shall be distributed annually and as it is revised.”
“105-3-10 [1986 Supp.]. Appointments generally. Each court appointment funded by the board shall be made in accordance with the rules and regulations adopted by the board for providing legal defense services for indigent persons as prescribed by the board.”
Article 4. — ENTITLEMENT TO LEGAL REPRESENTATION
“105-4-1. Determination of eligibility, (a) At the commencement of proceedings against any defendant, the defendant may make application for legal representation at state expense by submitting, to the court, an affidavit of indigency on forms provided by the board. The court shall determine if the defendant is indigent, based upon consideration of the following factors ....
“105-4-4. Finding of indigency. If the court finds a defendant who is entitled to counsel to be indigent, as defined by statute and these regulations, the court shall appoint counsel to provide legal representation. A court order authorizing legal representation at state expense shall be made on a form approved by the board.” (Emphasis supplied.)
Article 5. — ATTORNEY COMPENSATION
“105-5-1. General provisions. Subject to availability of funding, and with the approval of the appropriate judge as provided in K.S.A. 1982 Supp. 22-4507(b), attorneys appointed to represent indigent defendants pursuant to K.S.A. 22-4501, et seq., shall be compensated for time spent in case preparation and presentation in court, at the rate set forth in K.A.R. 105-5-2.
“Compensation shall be subject to maximum compensation limitations as set forth in K.A.R. 105-5-6 and K.A.R. 105-5-7.” (Emphasis supplied.)
“105-5-2. Rates of compensation. Appointed counsel shall be compensated at the rate of $30 per hour for time spent in preparing cases for trial or appeal and for in-court presentation.”
“105-5-6 [1986 Supp.]. Maximum compensation; non-tried cases, (a) Each appointed attorney shall be compensated for time expended in representing indigent defendants and other indigent persons at the hourly rate prescribed in K.A.R. 10-5-2. Except as provided in K.A.R. 105-5-8, compensation shall not exceed $400 in the following cases: . . .
“(b) Except as provided in K.A.R. 105-5-8 and K.A.R. 105-5-6(a), compensation to appointed attorneys shall not exceed $250 in the following types of cases: . . .
“(c) Except as provided in K.A.R. 105-5-8, compensation shall not exceed $100 in the following types of cases. . . .”
“105-5-7. Maximum compensation; trials. Appointed attorneys shall be compensated for time expended in representing indigent defendants at the hourly rate prescribed in K.A.R. 105-5-2. Except as provided in K.A.R. 105-5-8, compensation for felony cases tried on pleas of not guilty and submitted to a judge or jury for adjudication, including compensation for services at the preliminary hearing, sentencing and motions to modify sentence, shall not exceed $1,000. This regulation will take effect on and after July 1, 1984.”
“105-5-8. Compensation; exceptional cases, (a) Compensation for attorneys’ services in excess of the maximum amounts set out in K.A.R. 105-5-6 and K.A.R. 105-5-7 shall be approved only in exceptional cases. An exceptional case is: “(1)(A) Any case involving a Class A or Class B felony charge; or “(B) any case tried on a not guilty plea in which there have been 25 or more hours spent in court in defense of the indigent defendant; or
“(C) any case not submitted to a judge or jury in which there have been ten hours or more of in-court time spent in defense of the indigent defendant; and “(2) any such case which has been declared an exceptional case by the court due to its complexity or other significant characteristics. Such finding by the court is subject to final approval by the board.
“(b) All claims for compensation in exceptional cases shall be accompanied by a specific finding in a court order setting forth the basis for the declaration that the case is exceptional.
“(c) Compensations for attorneys’ services in exceptional cases shall not exceed $5,000 per case. However, the board may approve additional compensation if warranted by the extreme complexity of the case.”
Article 6. — REIMBURSEMENT OF EXPENSES
“105-6-1. Reimbursement generally. Appointed attorneys shall be reimbursed for expenses reasonably incurred in performance of duties when approved by the appropriate judge as provided in K.S.A. 1982 Supp. 22-4507(b). Expense reimbursements shall not be considered within the maximum amounts of compensation set out in K.A.R. 105-5-6 and K.A.R. 105-5-7.”
“105-6-2. Expenses allowed. Expense reimbursements shall include, but not be limited to, reimbursement for the following expenses: (a) the cost of photocopying prepared briefs;
“(b) the cost of binding not more than 10 appeal briefs per case;
“(c) in-state travel and subsistence by appointed attorneys not to exceed the rate set by the secretary of the department of administration for state employees (K.S.A. 75-3201, et seq., and K.S.A. 75-4601, et seq.);
“(d) expenses incurred by appointed attorneys in obtaining a computerized legal research if the court finds that the case presents a unique question of law to be researched. Such expenses shall not exceed $100;
“(e) expenses incurred by appointed attorneys in taking depositions, if found to be authorized by statute and necessary in order to provide an adequate defense and when prior approval has been obtained from the court;
“(f) costs of mailing briefs; and
“(g) expenses incurred by appointed attorneys which would otherwise have been approved and paid by the board directly to a third party in accordance with statute or rule and regulation.”
Article 9. — CLAIMS GENERALLY
“105-9-1. General provisions, (a) All claims for payment for legal representation provided to an indigent defendant by attorneys, court reporters, investigators and all others shall be submitted to the board for payment not later than 60 days after the termination of services.
“(b) Unless otherwise specified, all claims that comply with these rules and regulations shall be processed for payment by the director.
“(c) Claims not conforming with rules and regulations prescribed by the board may be denied payment.”
“105-9-2. Approval of claims, (a) Each claimant shall complete and sign the necessary claim forms and submit them to the court for approval.
“(b) The judge shall examine each claim and determine if it is reasonable and in accordance with rules and regulations adopted by the board. In determining the reasonableness, the judge shall consider the nature and complexity of the factual and legal issues involved and the time reasonably necessary to prepare and present the case.
“(c) The judge may reduce the amount of any claim submitted for approval.” “105-9-3. Claims from attorneys. Each claim from an attorney for compensation and reimbursement of allowable expenses shall be filed with the board on a voucher form approved by the board. Each claim shall be accompanied by a timesheet, in a form approved by the board, detailing:
“(a) the date of each compensable activity;
“(b) the purpose of the activity performed;
“(c) the type of activity performed;
“(d) the amount of time, in tenths of hours, spent on each activity; and “(e) the amount of compensation received for the same services from any other source.
“105-9-4. Proration. The board may prorate payment of claims in an equitable manner if the board determines that funding in any fiscal year is insufficient to pay all claims in full.” (Emphasis supplied.)
I. IS MANDAMUS A PROPER REMEDY?
The first issue facing us is whether mandamus is a proper remedy. Respondent Judge Smith, and amici Joe Herold and the Kansas Bar Association claim that mandamus is not proper in the case at bar. They rely on various authorities which note that mandamus is an extraordinary remedy which should not be used for a substitute for appeal or to control discretion, to correct errors, or revise judicial actions. See State ex rel. Stephan v. O’Keefe, 235 Kan. 1022, 1024, 686 P.2d 171 (1984); U.S.D. No. 464 v. Porter, 234 Kan. 690, 693-94, 676 P.2d 84 (1984); Gray v. Jenkins, 183 Kan. 251, 254, 326 P.2d 319 (1958).
Mandamus is defined by K.S.A. 60-801 as “a proceeding to compel some . . . person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.” Relief in the form of mandamus is discretionary. State ex rel. Stephan v. Carlin, 229 Kan. 665, 666, 630 P.2d 709 (1981). In State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 52, 687 P.2d 622 (1984), we described the circumstances in which mandamus may be appropriate:
“[MJandamus is an appropriate proceeding designed for the purpose of compelling a public officer to perform a clearly defined duty, one imposed by law and not involving the exercise of discretion. Manhattan Buildings, Inc. v. Hurley, 231 Kan. 20, Syl. ¶ 2. Numerous prior decisions have recognized 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. 231 Kan. 20, Syl. ¶ 4; Mobil Oil Corporation v. McHenry, 200 Kan. 211, 239, 436 P.2d 982 (1968), and cases cited therein. Where a petition for mandamus presents an issue of great public importance and concern, the court may exercise its original jurisdiction in mandamus and settle the question. Berst v. Chipman, 232 Kan. 180, 183, 653 P.2d 107 (1982).”
Determining whether or not an accused is indigent, whether an attorney is competent to represent the accused in a criminal proceeding, and whether an attorney has reasonably spent 10 or 100 hours representing a defendant in a criminal case are discretionary matters, not challenged here. The regulations quoted above, however, impose upon the courts several nondiscretionary duties. These include the preparation and maintenance of lists of eligible attorneys (though the determination of whether an attorney is competent to be on the list is discretionary) and the actual appointment of an attorney from that list after indigency has been determined. This action by the attorney general seeks an interpretation of the law to guide public officials; it concerns a matter of great public importance statewide.
Judge Smith also contends that the petition in the present case did not name all necessary respondents. He claims that the defendants in the four district court cases, mentioned above, are necessary parties under the provisions of Supreme Court Rule 9.01(b) (235 Kan. Ixxvii), which provides in part:
“PETITION: SERVICE AND FILING. . . . Where the relief sought is an order in mandamus against a judge involving pending litigation before such judge, the judge and all parties to the pending litigation shall be deemed respondents.”
The petition in the present case names only Judges Smith and Fromme as respondents.
The quoted portion of Rule 9.01(b) applies to orders in mandamus against a judge involving pending litigation. The district court orders challenged by the State in this action are general orders governing the appointment of counsel for indigent defendants in two Kansas counties, a part of the Fourth Judicial District. The petitioner in this action is not attempting to appeal from or affect the decision of the district court in the four pending criminal cases; one or more of those cases is the subject of a separate appeal. Here, the attorney general challenges only the general orders, not specific orders made in the criminal cases. We hold that the defendants in the four criminal cases are not necessary parties to this litigation.
Finally, Judge Smith argues that mandamus is improper because the State is not clearly entitled to relief. See State ex rel. Stephan v. O’Keefe, 235 Kan. at 1025. Respondents claim that the orders in question were entered to protect constitutional rights of attorneys and criminal defendants. It is clear, however, that respondents did not comply with the requirements of the Kansas Statutes and Regulations quoted above, and that their rulings in entering the general orders quoted above present issues of compelling public importance. The issue before us ultimately is whether the statutory and regulatory requirements are constitutional and enforceable, and our ruling herein will provide an interpretation of the law to guide judges in the performance of their duties. We conclude that mandamus is an appropriate and proper means to present the issues in this action.
II. THE ORLIGATION TO FURNISH COUNSEL.
The United States Supreme Court, in Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963), held that the Sixth Amendment’s guarantee of counsel is made obligatory upon the states by the Fourteenth Amendment; thus, the State has a duty to provide counsel to an indigent criminal defendant who is charged with a felony in a state court. In re Gault, 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967), held that counsel must be provided in juvenile proceedings which may result in commitment to an institution if the child and the parents are unable to afford an attorney. Argersinger v. Hamlin, 407 U.S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006 (1972), extended that obligation to provide counsel to accused persons charged with misdemeanors, when imprisonment is a real possibility. The court held that, absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether misdemeanor or felony, unless he or she was represented by counsel at trial. Mr. Justice Powell, in a concurring opinion, envisioned some of the difficulties and problems which are evident in the case at hand. He said:
“[I]t is said that there are presently 355,200 attorneys and that the number will increase rapidly, doubling by 1985. This is asserted to be sufficient to provide the number of full-time counsel, estimated by one source at between 1,575 and 2,300, to represent all indigent misdemeanants, excluding traffic offenders. It is totally unrealistic to imply that 355,200 lawyers are potentially available. Thousands of these are not in practice, and many of those who do practice work for governments, corporate legal departments, or the Armed Services and are unavailable for criminal representation. Of those in general practice, we have no indication how many are qualified to defend criminal cases or willing to accept assignments which may prove less than lucrative for most.
“It is similarly unrealistic to suggest that implementation of the Court’s new rule will require no more than 1,575 to 2,300 ‘full-time’ lawyers. In few communities are there full-time public defenders available for, or private lawyers specializing in, petty cases. Thus, if it were possible at all, it would be necessary to coordinate the schedules of those lawyers who are willing to take an occasional misdemeanor appointment with the crowded calendars of lower courts in which cases are not scheduled weeks in advance but instead are frequently tried the day after arrest. Finally, the majority’s focus on aggregate figures ignores the heart of the problem, which is the distribution and availability of lawyers, especially in the hundreds of small localities across the country.” 407 U.S. at 56-58.
All counsel in this case agree that the State of Kansas is required to furnish counsel to all indigent defendants charged in Kansas courts with felonies, as well as to certain. defendants charged with misdemeanors, certain habeas corpus petitioners, probationers in probation revocation proceedings, and juvenile offenders in proceedings which may lead to commitment in an institution. That duty is imposed upon the states by Gideon and its progeny. Judge Smith emphasizes that the duty to provide counsel to indigent criminal defendants is imposed upon the State. He notes that Gideon does not impose that duty on the private bar, and he argues that under the Indigent Defense Services Act, as presently administered, that duty is being borne by the private bar.
The latter argument has some merit. The evidence shows that while attorneys are being paid not to exceed $30 per hour for time spent on indigent appointments, the average office overhead of those attorneys who testified in the trial court exceeded $30 per hour. Thus, some private attorneys are actually losing money when the State pays them less than it costs to keep their offices open, and they realize nothing for their personal services. Additionally, the State was not, at the time of trial, paying in full the $30 per hour allowance or the actual out-of-pocket expenses of the attorneys. The State was cutting both fees and actual expenses by 12% at time of trial, thus requiring the appointed attorneys to pay out of their own pockets 12% of their expenditures for such things as photocopying, travel, and postage. We will treat this more fully under our discussion of the Fifth Amendment issues.
Judge Smith notes that the Sixth Amendment right to counsel is the right to effective assistance of counsel. This has been recognized by the United State Supreme Court. Strickland v. Washington, 466 U.S. 668, 686, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); McMann v. Richardson, 397 U.S. 759, 771 n.14, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970); and see State v. Walker, 239 Kan. 635, 638-39, 722 P.2d 556 (1986) (quoting Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 [1985]). The argument is advanced that the system for appointing counsel adopted by the State violates the right to effective assistance of counsel for two reasons: (1) it creates an inherent conflict of interest between the attorney and client because the more hours an attorney spends on the case, the greater the personal cost to the attorney; and (2) it requires attorneys who are without criminal law experience or expertise to represent indigent criminal defendants.
The State responds that attorneys are ethically obligated to provide full and fair representation and that it is a sad commentary on the Kansas bar to claim that compensation affects quality of representation. This oversimplifies the situation. There is evidence that the attorneys in £ie less populous counties of Anderson, Coffey, and Osage are being assigned many indigent cases annually; that the attorneys are repeatedly required to subsidize the defense of those accused of crime, and to do so at the risk of losing their regular or potential paying clients. The financial burdens thus created could well create a conflict of interest of the type proscribed by DR 5-101(A) of the Code of Professional Responsibility:
“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 problem is exacerbated if the attorney is subject to a contempt citation or disciplinary action for refusing an appointment.
The State did not specifically address respondents’ argument that the rules require attorneys without criminal law experience or expertise to represent indigent defendants in criminal cases. Orally, the attorney general argued that it does not take any special skill to defend a criminal case, and that any attorney can adequately represent one charged with criminal offenses. We do not agree. While law schools teach criminal law and procedure, and graduates who take the bar examination must have some basic knowledge about criminal law and procedure, many attorneys do not regularly practice criminal law. New developments in the area of criminal law occur frequently, and one must keep up with these changes to be competent to practice in this area. Simply because one has a license to practice law does not make one competent to practice in every area of the law. DR 6-101(A) of the Code of Professional Responsibility provides that:
“A lawyer shall not:
“(1) Handle a legal matter which he knows or should know that he is not competent to handle . . . .” 235 Kan. cxlvii.
K.A.R. 105-3-2, quoted above, requires that all licensed attorneys engaged in private practice, with certain exceptions not here material, be included on the panel. The regulation includes no requirement of competency in the practice of criminal law, and includes no specific exception for those who do not have and maintain such competency, except that the administrative judge may make additional exceptions only “with the approval of the board.” While the system thus creates the potential for ineffec tive assistance of counsel, there is no specific evidence in the record here of any deficient performance that adversely affected the outcome of a trial. See Strickland v. Washington, 466 U.S. 668, and Chamberlain v. State, 236 Kan. 650. Simply because the system could result in the appointment of ineffective counsel is not sufficient reason to declare the system unconstitutional; those rare cases where counsel has been ineffective may be handled and determined individually by the appellate courts. The judges should not put on the panel attorneys who are not competent to handle the particular litigation, nor should they appoint attorneys who are not competent to represent the indigent in the particular case. These are matters which must be handled, and we are confident will be and are being handled, by the judges in each district. The selection of attorneys for the panel or for appointment requires the exercise of judicial discretion. It is not a matter which may be handled by an administrative board, anything in the statutes or regulations to the contrary notwithstanding.
III. THE JUDGE’S DUTY TO APPOINT COUNSEL.
What is the extent of the judge’s duty to appoint counsel for indigent criminal defendants? K.S.A. 22-4503(c), quoted above, provides in substance that when the court determines that a defendant is indigent, “the court shall appoint an attorney from the panel for indigents’ defense services or otherwise in accordance with the applicable system for providing legal defense services for indigent persons prescribed by the state board of indigents’ defense services for the county or judicial district.” Thus, while the selection of counsel is discretionary, the appointment of counsel is nondiscretionary.
The attorney general argues that respondents failed to perform this duty and that they unlawfully replaced the system created by statute and regulation with one of their own design. Respondents contend (1) that they merely refused to enforce unconstitutional enactments; (2) that they did not actually rescind the present system and replace it with one of their own design; and (3) that there is support in the rulings of this court for their action. As to the constitutional arguments, we will address them later in this opinion.
Judge Smith claims that he did not rescind or replace the present system, and that he is willing to appoint attorneys at the present rate of compensation if the attorneys are willing to provide services for that compensation. He asserts that the State system remains in effect, but participation is voluntary on the part of the attorneys. He argues that he did not order the Board to pay $68 per hour, but merely determined that that amount was reasonable compensation, and that appointed counsel would not be required to serve unless they were paid at least that amount.
The general orders are not consistent with the statutory and regulatory system governing appointment of counsel. The regulations do not permit attorneys to decide whether they are willing to accept a case for the compensation fixed by the Board, nor do the regulations authorize judges to base appointments on attorneys’ willingness to accept appointments at the specified rate of compensation. K.A.R. 105-3-3 requires appointments to be made in rotation from an alphabetical list of attorneys, with limited exceptions — not including an attorney’s unwillingness to accept an appointment due to the limited compensation. The duty of the court to appoint counsel is clearly stated in the statutes and regulations; the general orders are in contravention of that mandate.
Similarly, the regulations do not permit the court to determine the rate of compensation; they require compensation at the rate of $30 per hour, subject to certain mandatory caps and subject to reduction when adequate funds are not available. K.A.R. 105-5-1; 105-5-2; 105-5-6 (1986 Supp.); 105-5-7. While the judge did not order the Board to pay $68 per hour, he did refuse to enforce what appears to be mandatory service requirements on attorneys unwilling to work for the specified rate of compensation. This circumvents the statute, and amounts to a failure to perform a nondiscretionary duty. Moreover, the impact on criminal prosecutions in the district could be severe in light of the general order that cases will be dismissed if “reasonable compensation” is not forthcoming from the Board. The object of the order is obviously to apply leverage to the State to provide “reasonable compensation” for appointed counsel.
The language relied upon by respondent to support the general order is that appearing in Clark v. Ivy, 240 Kan. 195, 204, 727 P.2d 493 (1986):
“The executive branch is not infringing herein upon the judicial branch. A judge may appoint any attorney he or she pleases who is capable of adequately representing a defendant providing, of course, the attorney accepts the appointment.” (Emphasis supplied.)
The quotation would seem to support the district court action; however, it is taken out of context. The opinion goes on:
“It is only where compensation for the services of such appointed attorney is expected to be paid from state monies that compliance with the Board’s programs, standards, and policies becomes involved. The position of petitioners that review of claims of appointed counsel by the Board and rejection thereof, if not in compliance with the programs, standards, and policies of the Board, is a violation of the separation of powers doctrine is both legally and logically untenable.” 240 Kan. at 204.
The dispute in Clark arose from the judges’ appointment of private counsel instead of available public defenders to represent indigent criminal defendants. The private counsel submitted requests for payment to the Board which were denied on the basis that the appointments were not made in compliance with statutes and regulations. In the language quoted by respondents, this court was merely explaining that the judge could still appoint any attorney he or she chose, but if the attorney were to be paid with state funds, the appointment must comply with state regulations. The court was not making a general statement that appointments could or should be made based on competence and willingness and that the Board would be obligated to foot the bill regardless of compliance with statutes and regulations.
The general orders entered by Judges Smith and Fromme contravene the statutes and regulations governing appointment of counsel for indigent defendants. The judge has a duty, under the statute and regulations, to appoint counsel for indigent defendants. The indigent defendant has a right to competent counsel, and thus the trial judge has a duty to determine that the appointee is competent to handle the matter for which he or she is appointed. The indigent defendant, however, has no right to adequately paid counsel; the defendant has no right to demand that the State provide “reasonable compensation” for his or her attorney; the level of compensation is to be determined by the judge. As the facts here illustrate, “reasonable compensation” might well vary from district to district, and from judge to judge within the same district. Under the facts contained in the record, we hold that the “general orders” issued by Judges Smith and Fromme violate the duty to appoint counsel set forth in the statutes and regulations. Whether the regulations are constitutional, however, we will address later in this opinion.
IV. THE DUTY OF KANSAS ATTORNEYS.
Do Kansas attorneys have a duty to represent indigent criminal defendants? In support of this claim, the State alleges that members of the Kansas bar have an ethical obligation and a statutory duty to represent indigent criminal defendants for little or no compensation. The source of the ethical obligation is Canon 2 of the Code of Professional Responsibility:
“A Lawyer Should Assist the Legal Profession in Fulfilling its Duty to Make Legal Counsel Available.” 235 Kan. cxxxviii.
The Model Rules of Professional Conduct, adopted by the House of Delegates of the American Bar Association on August 2, 1983, also make the obligation on the individual attorney an ethical one rather than a mandatory and enforceable duty. Model Rule 6.1 states in part: “A lawyer should render public interest legal service.” The obligation is discussed in a series of articles in Pro Bono Publico, 73 A.B.A. J. 55-73 (December 1, 1987).
The statutory duty is imposed by the Indigent Defense Services Act. Specifically, see K.S.A. 22-4501(b) and 22-4503(d), both set out above. The State also relies upon State v. Keener, 224 Kan. 100, 102, 577 P.2d 1182, cert. denied 439 U.S. 953 (1978), where we said:
“It is the moral and ethical obligation of the bar to make representation available to the public. (See, Canon 2, Code of Professional Responsibility, 220 Kan. cx.) Quite often, fulfillment of that obligation involves the representation of a client, particularly a criminal defendant, for little or no remuneration. Enactment of K.S.A. 22-4501, et seq., has served to relieve some of the hardships involved in fulfilling an attorney’s obligation to provide legal representation to the public; but it has not cancelled the attorney’s ethical responsibility to provide representation without compensation if necessary. Court appointed counsel has no constitutional right to be compensated, much less to receive full and adequate compensation which may have been received if the same time had been spent on a fee-paying client’s problems. (See, United States, v. Dillon, 346 F.2d 633 [9th Cir. 1965].)”
This language was later quoted with approval in Clark v. Ivy, 240 Kan. at 202; and City of Overland Park v. Estell & McDiffett, 225 Kan. 599, 604-05, 592 P.2d 909 (1979).
The court in Keener was not faced with the precise issues which face this court today. The issue in Keener, which was resolved with the quoted language, was whether an indigent defendant had a constitutional right to adequately compensated counsel. We held that the constitution provided no such right. Keener’s counsel had submitted to the Board of Supervisors of Panels to Aid Indigent Defendants a claim voucher for the time and expense involved in the defense of the case. The Board reduced the claim and made an award; a later attempt by counsel to obtain an additional award was denied. The ethical and constitutional questions raised in the present proceeding go far beyond the narrow issue in Keener.
Similarly, the issue in City of Overland Park was much narrower than the issues in this action. City of Overland Park concerned a dispute over the appointment and payment of counsel for indigent defendants in an appeal to the district court from the municipal court. K.S.A. 12-4405 required the municipal court to appoint counsel but was silent as to payment. It had been the custom of the municipal court to pay appointed counsel on some undisclosed basis. We held that the district court should determine a reasonable fee for the services, and that the city would ultimately be responsible for such expense.
Clark v. Ivy, 240 Kan. 195, has been previously discussed. Its primary thrust was that if the appointed attorney was to be paid from state funds, the appointment must be made in accordance with state procedures. These cases are all distinguishable from the case at bar, and we do not find the Keener language fully determinative of the issue presently before us.
Respondents argue that Canon 2 does not require attorneys in private practice to represent indigent defendants for less than a reasonable fee. Such a requirement is difficult to find in the language of the Canon. However, it is also argued that Canon 2 applies to all attorneys, yet the burden of providing a defense to indigent defendants at less than fair compensation is mandatorily imposed upon less than one-third of the Kansas bar. Also, it is argued that the language of Canon 2 is not mandatory, but voluntary. Canon 2 states that a lawyer “should,” not “shall,” assist in making legal counsel available. This court has not imposed a minimum number of hours of pro bono work upon the bar, suggesting that the requirement is voluntary by leaving the amount of pro bono work up to the individual attorney. Further, there are no disciplinary rules under Canon 2 requiring pro bono work. Casting the ABA’s Canon 2 in aspirational rather than mandatory language was apparently the product of a conscious decision following much debate and the consideration of mandatory alternatives. See Shapiro, The Enigma of the Lawyer's Duty to Serve, 55 N.Y.U. L. Rev. 735, 735-39 (1980).
Orville Cole offers two arguments: (1) the obligation imposed by the State ignores the realities of modem day criminal law practice, and (2) such an obligation has no historical basis in the American legal system. In support of the first argument, he contends that the inherent conflict of interest created between attorney and client precludes the effective assistance of counsel. His second argument is that the tradition of requiring pro bono work of attorneys originated in common-law England where attorneys who were expected to provide such representation also enjoyed special rights and privileges. They were the serjeantsat-law, the elite among all English lawyers. They had special practice privileges, they commanded higher fees, and judges were selected exclusively from their ranks. They were actually public officers and were sometimes paid by the government. See generally 55 N.Y.U. L. Rev. at 746. As officers of the court, English lawyers were exempt from suit, military service, and other compelled public service. See Cunningham v. Superior Court, 177 Cal. App. 3d 336, 345, 222 Cal. Rptr. 854 (1986). Their modern American counterparts enjoy no such special privileges. The distinction and its consequences were recognized by the Indiana Supreme Court as early as 1854: The Webb opinion proceeds to note that if a prisoner is brought into court not decently clad, and too poor to provide for himself, the court would have the power and duty to order suitable clothes for him. Similarly, a coroner is authorized to employ a physician to perform a post-mortem examination, although there was no Indiana statute authorizing such employment. The county, however, was held obligated to pay for the services of the attorney, the clothing furnished by a merchant, and the examination performed by the physician. The court noted that an attorney is under no obligation, honorary or otherwise, to volunteer his services; it devolves as much on any other citizen of equal wealth to employ counsel in the defense as on the attorney to render services gratuitously. Thus, the court concluded that the county, which bears the expense of the prisoner’s support, imprisonment, and trial, should also be chargeable with his defense.
“The legal profession having been thus properly stripped of all its odious distinctions and peculiar emoluments, the public can no longer justly demand of that class of citizens any gratuitous services which would not be demandable of every other class. To the attorney, his profession is his means of livelihood. His legal knowledge is his capital stock. His professional services are no more at the mercy of the public, as to remuneration, than are the goods of the merchant, or the crops of the farmer, or the wares of the mechanic. The law which requires gratuitous services from a particular class, in effect imposes a tax to that extent upon such class — clearly in violation of the fundamental law, which provides for a uniform and equal rate of assessment and taxation upon all the citizens.” Webb v. Baird, 6 Ind. 13, 17 (1854).
In 55 N.Y.U. L. Rev. at 756, it is found that 35 American jurisdictions had addressed the question of whether free indigent defense services is an enforceable duty upon the private bar. In a bare majority, eighteen jurisdictions, the law imposed an unqualified enforceable duty. Many of the cases cited, attributed to the eighteen majority jurisdictions, predate the turn of the century. One state, Alaska, has since overruled its former “majority” case, Jackson v. State, 413 P.2d 488 (Alaska 1966), and now holds that a private attorney cannot be compelled to represent indigent criminal defendants without just compensation. De Lisio v. Alaska Superior Court, 740 P.2d 437 (Alaska 1987). The pendulum has swung, and the “bare majority” now holds that free indigent defense services is not an enforceable duty of the private bar.
The duty of attorneys who are members of panels for indigents’ defense services is fixed by K.S.A. 22-4501(b) and K.S.A. 22-4503(d). Attorneys generally have an ethical obligation to provide pro bono services for indigents. Such services may only be provided by attorneys. The individual attorney has a right to make a living. Indigent defendants, on the other hand, have the right to the effective assistance of counsel. The obligation to provide counsel for indigent defendants is that of the State, not of the individual attorney. The adjustment of these rights and obligations presents the primary difficulty of the present statutory system. The burden must be shared equally by those similarly situated. In the final analysis, it is a matter of reasonableness.
We will further consider the duty and obligation of attorneys later in this opinion, during our discussion of the constitutional issues raised.
V. DOES THE STATE HAVE A DUTY TO COMPENSATE COUNSEL FOR INDIGENT DEFENDANTS?
What is the extent of the government’s duty to compensate attorneys who represent indigent criminal defendants? The State argues that the attorneys have a duty to provide such representation and that the government has no obligation to pay for such representation. In support of its claim that the State has no duty to pay compensation, the State relies on Clark v. Ivy, 240 Kan. at 202. Clark determined only that if attorneys are to be paid, the appointment must be made in conformity with state statutes and regulations. It did not determine generally the obligation of the State to pay compensation. The State also relies upon the decision in Case v. Board of County Commissioners, 4 Kan. *511, *513-14 (1868), where this court held that while the law made provision for the appointment of counsel by the district court, it made no provision for the payment of counsel, and there was no obligation on the part of the county to pay the attorney who had been appointed to represent an indigent defendant. The decision in Case was based upon the absence of any statute authorizing compensation. Case was decided before Gideon imposed upon the State the duty to provide counsel for indigent defendants and before the enactment of K.S.A. 22-4501 et seq. The authority to pay compensation lacking in 1868 exists today, and the entire legal and economic picture has changed.
Case was decided almost 120 years ago. There, the burden placed on one attorney to defend one larceny case without compensation may well have been reasonable under the existing circumstances. Fewer areas then required counsel; there were fewer cases; the Supreme Court had not recognized the appointment of counsel as a constitutional right in a variety of situations; the criminal law was less complex; and counsel’s overhead was no doubt minimal compared to the present day attorney’s fixed expenses which now include professional liability insurance, unheard of in the nineteenth century and even as late as the 1950’s. Whether the attorney in Case had any other appointed cases for indigent defendants is not shown. Here, attorneys in the less populous counties are required to take several indigent appointments each month. Some, such as Cole’s appointed representation of Buckridge, take an inordinate amount of time; meanwhile, counsel’s fixed expenses and overhead continue. We do not find Case persuasive today, and we specifically overrule it. We hold that the State has an obligation to compensate attorneys appointed to represent indigent defendants accused of crime. As the New York court said in Menin v. Menin, 79 Misc. 2d 285, 288, 359 N.Y.S.2d 721 (1974):
“Nowhere in the right to counsel cases does the Supreme Court state that counsel must be assigned to serve without compensation (Gagnon v. Scarpelli, 411 U.S. 778; Argersinger v. Hamlin, 407 U.S. 25; Coleman v. Alabama, 399 U.S. 1; Goldberg v. Kelly, 397 U.S. 254; Johnson v. Avery, 393 U.S. 483; Matter of Gault, 387 U.S. 1; Gideon v. Wainwright, 372 U.S. 335; Powell v. Alabama, 287 U.S. 45). Indeed, in the very recent decision in Gagnon v. Scarpelli, (supra), wherein the court considered the right to counsel in parole and revocation situations, it was noted that one factor to be emphasized in requiring assistance of appointed counsel is (p. 788) ‘the financial cost to the State’. Implicit in the above statement is the requirement of payment for assigned legal representation . . . .”
VI. THE FIFTH AMENDMENT ISSUE.
The next issue is whether the present system of appointing and compensating attorneys for indigent criminal defendants violates the Fifth Amendment of the United States Constitution, which provides in pertinent part:
“No person shall ... be deprived of . . . property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Most of the briefs characterize their Fifth Amendment arguments as a “due process” issue. Several, under the heading of due process, also argue that the State is taking private property for public use without providing just compensation. Both arguments are based on the claim that attorneys may not be required to provide legal services without just compensation.
Whether a violation of due process has occurred depends upon whether “property” has been taken and upon what kind of “process” is due. Neither question is particularly easy to answer. Many courts have struggled with the question of whether the taking of an attorney’s services amounts to a taking of property. Attorneys’ services are their livelihood, and conscripting their services is akin to taking the goods of merchants or the taking of the services of an architect, engineer, accountant, or physician. An attorney’s advice and counsel is indeed his or her stock in trade. Moreover, when attorneys are required to donate funds out-of-pocket to subsidize a defense, they are deprived of property in the form of money.
What is required by due process is even more nebulous. In 1973, this court noted:
“The term due process refers primarily to the methods by which the law is enforced; however the term has no fixed technical concept unrelated to time, place and circumstances. In Hanna v. Larche, 363 U.S. 420, 4 L. Ed. 2d 1307, 1321, 80 S. Ct. 1502, 1514, this comment was made:
“Due process” is an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts. . . . Whether the Constitution requires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding are all considerations which must be taken into account/ ” Smith v. Miller, 213 Kan. 1, 7, 514 P.2d 377 (1973).
This court has held that the essence of due process is protection against arbitrary government action. Baker v. List and Clark Construction Co., 222 Kan. 127, 134, 563 P.2d 431 (1977). The test for whether due process has been afforded is whether the legislation has a real and substantial relation to the objective sought, whether it is reasonable in relation to the subject, and whether it was adopted in the interest of the community. Manhattan Buildings, Inc. v. Hurley, 231 Kan. 20, 30, 643 P.2d 87 (1982).
The factual basis for the attorneys’ claims is briefly as follows. The overhead of four attorneys who testified ranged from $27.10 to $35.71 per hour. This figure would include the cost of office, library, equipment, supplies, professional liability insurance, and secretarial help, all of which would be utilized in serving as counsel for an indigent defendant. The statutory and regulatory system permits compensation at the rate of $30 per hour, up to a maximum of $400 if the case does not proceed to trial, and $1,000 if it does proceed to trial. Attorneys are allowed reimbursement for certain expenses reasonably incurred, and such expenses are not applied toward the maximum amounts described above. However, a 12% cut was imposed on fees and expenses at the time of trial, requiring attorneys to make up the difference out-of-pocket. The attorneys argue that they lose money on each criminal appointment because allotted fees do not cover overhead or all expenses. In addition to the out-of-pocket losses, they presumably lose fees they could be receiving from paying clients and may lose clients as a result of repeated criminal appointments. The extent of the problem is illustrated by one attorney’s testimony that he had eleven indigent appointments in six months; by other testimony that in Osage County, the average number of criminal appointments per attorney in 1986 was between 16 and 24; and by the testimony of another attorney that he was appointed in a major case and devoted 90% of his professional time to the case for three months. The payment he received was the approximate amount of his office overhead for that period. There was no testimony as to how much time was required on the average appointment.
Requiring attorneys to donate a reasonable amount of time to indigent defense work bears a real and substantial relation to the legitimate government objective sought — protection of indigent defendants’ Sixth Amendment right to counsel. Such a requirement may also be reasonable in light of the general ethical responsibility of lawyers to make legal services available. Clearly the Indigent Defense Services Act was adopted in the interest of the community. Under such an analysis, the statute on its face does not violate due process.
There are some problems with the application or administration of the present statutory system, however, which could render it unreasonable and arbitrary. One problem is with the unequal operation of the statute — it affects attorneys differently depending upon where they live. Some attorneys in the three counties here involved seem to be required to donate an unreasonable amount of time and money. While this is really an equal protection concern, it may also bear on the due process issue as it relates to arbitrariness and unreasonableness. Some of the dis parate impact is attributable to the nature of the system and some is due to the manner in which it has been applied. The Board did not consider the cost of providing services or the cost of overhead when it developed the regulatory fee schedule. Despite an increase of 19% in the caseload of court-appointed counsel over the last four years, the funds available have not kept up with inflation. Finally, the 12% cut in money for fees and expenses was applied only against the appointed counsel fund, not the fund which supports the public defender offices.
The second prong of the Fifth Amendment challenge is that the present system takes private property for a public purpose without providing just compensation. Requiring pro bono service of attorneys serves a public purpose — the State’s duty to provide counsel for indigent defendants. This clause of the Fifth Amendment has traditionally been applied to limit the State’s powers of eminent domain. In Steck v. City of Wichita, 179 Kan. 305, 313, 295 P.2d 1068 (1956), this court defined taking under this clause as “acquiring of possession and the right of possession and control of tangible property to the exclusion of the former owner.” (Emphasis added.) If the property at issue is services, then it is not tangible property and is not protected by the clause. On the other hand, if the property taken is viewed as the attorneys’ money, it is tangible property and may be protected by the clause. Under the facts presented to the district court, it appears the attorneys are required to donate at least some personal funds (12% of the actual expenses) and it costs them money in the form of overhead to provide indigent defense services.
Other courts have struggled with similar Fifth Amendment challenges. George L. Partain brought suit challenging the West Virginia state system of appointing counsel. He claimed that he was spending over 16% of his professional time in the defense of court-appointed cases; his overhead expenses allocable to that practice exceeded payments received from the state; he was required to make out-of-pocket payments without reimbursement; and the cumulative effect constituted an undue burden upon him. In response to Partain’s due process challenge, the West Virginia Supreme Court of Appeals held the system violated the attorneys’ due process rights and ordered that lawyers would no longer be required to accept appointments. State ex rel. Partain v. Oakley, 159 W.Va. 805, 808, 822, 227 S.E.2d 314 (1976). In reaching this conclusion, the court agreed with the majority of jurisdictions which have held that it is not a violation of due process to require an attorney to donate time to represent indigent defendants. The court held, however, that when the attorney has so many appointments that it interferes with his ability to “engage in the remunerative practice of law,” or the costs associated with such defenses substantially reduce the attorney’s net income, “the requirements must be considered confiscatory and unconstitutional.” 159 W.Va. at 813-14.
The court concluded that West Virginia attorneys were suffering such substantial losses. The court noted that attorneys handled an average of 6 appointments per year with substantial regional variation (from 2-4 to 13-16). Average payment was $164.00 per case, with a maximum of $200 available. The court also considered and discussed in detail several factors which contributed to the increasing demands on appointed counsel. Of particular importance were the increases in criminal activity, the breadth of the right to counsel, and the complexity of criminal defense work. The court stayed the entry of its order until the following July in order to allow the legislature to take the necessary action.
Along similar lines, two courts have held that, in particular cases, the losses borne by particular attorneys were so great as to be unconstitutional. In each case, however, the court declined to declare the system for payment unconstitutional on its face, but directed the payment of substantial fees and reimbursement of expenses. People ex rel. Conn v. Randolph, 35 Ill. 2d 24, 219 N.E.2d 337 (1966); Bias v. State, 568 P.2d 1269 (Okla. 1977).
In Bradshaw v. Ball, 487 S.W.2d 294 (Ky. 1972), the Kentucky Court of Appeals held that requiring attorneys to represent indigent defendants for no compensation constituted a substantial deprivation of property without just compensation. 487 S.W.2d at 298. Similarly, in McNabb v. Osmundson, 315 N.W.2d 9 (Iowa 1982), a case where the Iowa Constitution required the appointment of counsel but where there was no statutory authorization for appointment or compensation, the Iowa Supreme Court held that attorneys cannot constitutionally be compelled to represent indigent defendants without compensation. 315 N.W.2d at 16. The court did not, however, expressly state that counsel was entitled to reasonable compensation. The court held that fees were to be fixed in accordance with statutory guidelines applicable to statutory appointments. 315 N.W.2d at 17.
Williamson v. Vardeman, 674 F.2d 1211 (8th Cir. 1982), is cited in support of the Fifth Amendment arguments. That court held that requiring an attorney to represent indigent criminal defendants without compensation did not constitute a taking of property without just compensation. The court found a Fifth Amendment violation (implied through the Fourteenth Amendment), however, with requiring the attorney to advance and pay defense expenses out-of-pocket.
The Arkansas Supreme Court upheld an act of that state’s legislature limiting compensation of appointed attorneys to $350 plus $100 for investigation expense. State v. Ruiz & Van Denton, 269 Ark. 331, 602 S.W.2d 625 (1980). The court said: “[The] question of adequate compensation is not a matter to be addressed by the court but is within the province of the legislature.” 269 Ark. at 335.
At least two courts have held that limiting compensation to the amount allowed by the legislature, at least in the absence of extraordinary circumstances, does not violate the Fifth Amendment. Daines v. Markoff, 92 Nev. 582, 555 P.2d 490 (1976); Keene v. Jackson County, 3 Or. App. 551, 474 P.2d 777 (1970). Both courts based their decision on the finding that the professional obligation of the bar to represent the indigent accused is an incident to the privilege of practicing law and does not offend the Constitution. 92 Nev. at 587; 3 Or. App. at 553-54.
DeLisio v. Alaska Superior Court, 740 P.2d 437 (Alaska 1987), was a direct due process challenge to Alaska’s system of appointing private counsel for indigent defendants in criminal cases. Argument was made under the Fifth and Fourteenth Amendments to the United States Constitution and under Article 1, § 18 of the Alaska Constitution that requiring an attorney to represent an indigent defendant without reasonable compensation is a taking of private property for a public use. The Alaska court had previously rejected the same argument on two prior occasions. In DeLisio, it reversed its prior decisions and held that the Alaska constitutional provision that “[p]rivate property shall not be taken or damaged for public use without just compensation” prevented forcing an attorney to represent an indigent defendant for less than “the compensation received by the average competent attorney operating on the open market.” 740 P.2d at 443. In concluding its decision, the court said:
“The Model Rules [of Professional Conduct] . . . express a policy favoring public service and affirming the profession’s ethical obligation to ensure representation of those in need. We cannot emphasize too strongly our support for this position. Attorneys should be willing to undertake pro bono representation. We applaud those attorneys who voluntarily accept this obligation and deeply regret that there are those who refuse to do so. Yet we are reluctantly persuaded that this ethical obligation, important as it is, cannot justify the practice of compelled gratuitous representation.” 740 P.2d at 444.
Several courts have addressed the issue of compensation without expressly addressing constitutional challenges. The Nebraska Supreme Court has held that appointed counsel is entitled to reasonable compensation, though it did not address the precise due process arguments presented herein. In Kovarik v. County of Banner, 192 Neb. 816, 224 N.W.2d 761 (1975), the court held that attorneys appointed by county courts were entitled to reasonable compensation and expenses. 192 Neb. at 823. There was no statute governing appointment or payment of such counsel and the court based its holding on an implied obligation on the part of the recipient (i.e., the public) to pay for services rendered. 192 Neb. at 822.
Still other courts have held that appointed counsel should not have to bear the entire burden for providing counsel to indigent defendants and are entitled to something which may be described as “fair” compensation. In State ex rel. Wolff v. Ruddy, 617 S.W.2d 64 (Mo. 1981), the funds appropriated by the legislature having been exhausted, the court issued temporary guidelines until the problem of compensation could be resolved. In the final guideline, the court advised members of the bar that for a reasonable time pending resolution of the problem, the court would decline applications for extraordinary relief and expected the bar to honor its obligation to the “defenseless” and the “oppressed” with “complete confidence that this Court will do all within its power to protect the rights of indigent accused and to implement the public policy . . . that those ordered to defend the indigent accused shall be fairly compensated for their expenses and services.” 617 S.W.2d at 67-68. (Emphasis added.)
In 1985, the Missouri Supreme Court held that Missouri courts had no inherent power to appoint counsel or to compel attorneys to serve in civil actions without compensation. State ex rel. Scott v. Roper, 688 S.W.2d 757, 769 (Mo. 1985). While Roper involved appointment in a civil case, the opinion presents a comprehensive analysis of the historical basis for providing free legal services to indigents, the evolving controversy in American jurisdictions regarding the requiring of such services, the ethical obligation of attorneys to provide such services, and various changes which have affected the burden on appointed counsel. See 688 S.W.2d at 759-69. As the Alaska Supreme Court observes in DeLisio, 740 P.2d at 441, the Missouri court’s opinion in Roper “dispels many assumptions which have been frequently repeated in cases addressing this issue.”
In the case of In Interest of D.B., 385 So. 2d 83 (Fla. 1980), the Florida Supreme Court stated the bar should not bear the entire fiscal burden for the state’s responsibility to provide counsel in juvenile dependency proceedings. The court held that in the-absence of a statutory formula, attorneys should be compensated at 60% of the fee that a client of ordinary means would pay an attorney of modest financial success. This formula was based on the assumption that in the average law firm, overhead amounted to about 40% of gross income. 385 So. 2d at 92. See State v. Rush, 46 N.J. 399, 412-13, 217 A.2d 441 (1966), the source of the formula adopted by the Florida court.
The later cases reflect a definite trend toward recognizing that the historical conditions from which the duty to provide free legal services evolved no longer exists in modern America. Courts recognize that diminution of the status of the bar, increased crime, increased scope of the right to counsel, increased complexity of criminal defense work, increased specialization, and increased costs in the legal profession have substantially increased the burden on the private bar. These are the exacerbating factors.
While some jurisdictions adhere to the notion that attorneys may be required to provide free legal services, Williamson v. Vardeman, 674 F.2d 1211; and State v. Ruiz & Van Denton, 269 Ark. at 335, other jurisdictions have found that requiring attorneys to provide representation without compensation violates the Fifth Amendment. Bradshaw v. Ball, 487 S.W.2d 294; McNabb v. Osmundson, 315 N.W.2d 9. The emerging view is that the responsibility to provide the Sixth Amendment right to counsel is a public responsibility that is not to be borne entirely by the private bar.
The judiciary across the nation has struggled to find the appropriate balance between the ethical obligation of the legal profession to make legal services available and the rights of attorneys to just compensation. Some jurisdictions have determined that attorneys are entitled only to the amount allowed by the legislature. Daines v. Markoff, 92 Nev. 582; Keene v. Jackson County, 3 Or. App. 551. Other jurisdictions accept this notion generally, but permit exceptions when extraordinary conditions result in an extreme financial loss to the local bar, State ex rel. Partain v. Oakley, 159 W.Va. 805, or to attorneys in particular cases. People ex rel. Conn v. Randolph, 35 Ill. 2d 24; Bias v. State, 568 P.2d 1269. One jurisdiction holds that attorneys are entitled to reasonable compensation, but in that case there was no statute governing compensation. Kovarik v. County of Banner, 192 Neb. 816. Finally, two jurisdictions hold that attorneys are entitled to “fair” compensation. State ex rel. Wolff v. Ruddy, 617 S.W.2d 64; In Interest of D.B., 385 So. 2d 83.
Our analysis of the Fifth Amendment arguments is this: Attorneys, like the members of any other profession, have for sale to the public an intangible — their time, advice, and counsel. Architects, engineers, physicians, and attorneys ordinarily purvey little or nothing which is tangible. It is their learned and reflective thought, their recommendations, suggestions, directions, plans, diagnoses, and advice that is of value to the persons they serve. It is not the price of paper on which is written the plan for a building or a bridge, the prescription for medication, or the will, contract, or pleading which is of substantial value to the client; it is the professional knowledge which goes into the practice of the profession which is valuable.
Attorneys are licensed by the state to practice their profession; but so are other professionals, such as architects, engineers, and physicians. One who practices his profession has a property interest in that pursuit which may not be taken from him or her at the whim of the government without due process. An attorney or a physician who is the target of disciplinary proceedings is entitled to procedural due process: to prior notice of the charges made and to an opportunity to be heard, to appear, and to defend. Withrow v. Larkin, 421 U.S. 35, 43 L. Ed. 2d 712, 95 S. Ct. 1456 (1975); In re Ruffalo, 390 U.S. 544, 20 L. Ed. 2d 117, 88 S. Ct. 1222 (1968).
Attorneys make their living through their services. Their services are the means of their livelihood. We do not expect architects to design public buildings, engineers to design highways, dikes, and bridges, or physicians to treat the indigent without compensation. When attorneys’ services are conscripted for the public good, such a taking is akin to the taking of food or clothing from a merchant or the taking of services from any other professional for the public good. And certainly when attorneys are required to donate funds out-of-pocket to subsidize a defense for an indigent defendant, the attorneys are deprived of property in the form of money. We conclude that attorneys’ services are property, and are thus subject to Fifth Amendment protection.-
When the attorney is required to advance expense funds out-of-pocket for an indigent, without full reimbursement, the system violates the Fifth Amendment. Similarly, when an attorney is required to spend an unreasonable amount of time on indigent appointments so that there is genuine and substantial interference with his or her private practice, the system violates the Fifth Amendment.
VII. THE SEPARATION OF POWERS ISSUE.
The respondents contend that the system violates the doctrine of separation of powers because it allows the legislative and executive branches to infringe upon the exclusive power of the judiciary to regulate the practice of law. The State contends this court has already held to the contrary in Clark v. Ivy, 240 Kan. 195, 727 P.2d 493 (1986).
While Clark did reject a separation of powers challenge to the Indigent Defense Services Act, the argument in Clark differs significantly from the present challenge. In Clark, private attor neys who were appointed outside the procedures defined in the Act were denied reimbursement by the Board. Petitioners, district judges, sought a writ of mandamus to compel the Board to perform its mandatory duty to pay appointed counsel. Petitioners claimed that the Act violated the separation of powers doctrine by infringing upon the judges’ right to appoint counsel of their choice. This court rejected that claim, finding there was no mandatory duty to pay bills submitted by counsel who were not appointed in conformity with the Act. The court also properly found the Act did not infringe upon the judges’ discretion regarding whom to appoint, noting judges could still appoint any attorney they chose, but the State only had to pay those attorneys appointed in conformity with the law.
The present challenge is that the executive branch is infringing on judicial authority by compelling judges to use their powers of contempt and disciplinary action to require attorneys to serve involuntarily. Counsel notes that the judiciary has the exclusive power to supervise, regulate, and control the practice of law, and that statutory regulation is effective and directory only when it is in accord with the power of the judiciary. Martin v. Davis, 187 Kan. 473, Syl. ¶ 4, 357 P.2d 782 (1960); see Hanson v. Grattan, 84 Kan. 843, 846-47, 115 Pac. 646 (1911). The power to regulate the bar, including the power to discipline its members, rests inherently and exclusively with this court. State v. Schumacher, 210 Kan. 377, 382, 502 P.2d 748 (1972); In re Gorsuch, 113 Kan. 380, 384, 217 Pac. 794 (1923). The laws and regulations now in question require judges to appoint attorneys in a certain manner and require attorneys to serve when appointed. Nothing in the statute requires the judiciary to use its powers of contempt or disciplinary action against a noncompliant attorney. The matters of contempt or discipline are left exclusively for the courts. Neither the legislative nor the executive branches are infringing upon that judicial power.
It is also argued that the power to regulate the bar includes the exclusive power to determine reasonable fees, and that the determination of “reasonableness” is a judicial function, citing Lira v. Billings, 196 Kan. 726, 730-31, 414 P.2d 13 (1966). In Billings, we held that the “reasonableness” of a refusal to submit to a chemical test for blood alcohol content was the issue to be determined by a district court or a jury in a driver’s license revocation appeal. The fixing of fees for appointed attorneys, to be paid from appropriations of public funds, however, involves many considerations and is not wholly judicial. The executive branch must estimate the need and present a budget to the legislature, which appropriates the necessary funds.
Smith v. State, 118 N.H. 764, 394 A.2d 834 (1978), is also cited in support of the position that only the courts should determine reasonable compensation for court-appointed attorneys. The New Hampshire court held that the judiciary had the authority to determine reasonable fees and held the statutory limits on compensation were invalid because they infringed on the exclusive powers of the court. The relevant New Hampshire statute, however, provided that court-appointed attorneys “shall be reasonably compensated.” The court explained that absent an agreed price, it was for the court to determine what was reasonable. Significantly, however, the court found that the courts had inherent power to determine compensation for court-appointed attorneys, saying:
“Since the obligation to represent indigent defendants is an obligation springing from judicial authority, so too is the determination of reasonable compensation for court-appointed attorneys a matter for judicial determination. The power to regulate officers of the court is a power inherent in the judicial branch. Implicit in that power is the authority to fix reasonable compensation rates for court-appointed attorneys. The legislature recognized this authority in enacting RSA 604-A:4, which provides that ‘[ejach court before which the counsel represented the defendant shall fix the compensation and reimbursement to be paid the counsel.’ Thus, we hold that it is for the trial courts of New Hampshire to fix the amount of compensation due in each case hereinafter provided. The rate awarded by the court should neither unjustly enrich nor, as the present fee schedule does, unduly impoverish the court-appointed attorney.” 118 N.H. at 770. (Emphasis added.)
Contrary authority is found in State v. Ruiz & Van Denton, 269 Ark. at 335:
“We do not imply that the present statutory allowances even come close to providing adequate compensation for the services performed in this case. However, this question of adequate compensation is not a matter to be addressed by the court but is within the province of the legislature.” (Emphasis supplied.)
Under our present statutory and regulatory scheme, the system is quite flexible. The Board for Indigents’ Defense Services fixes an hourly rate, to apply statewide. We emphasize that the hourly rate should be based, at least in part, upon the average cost in terms of overhead to the attorney. The Board then submits a budget to the legislature based on past experience, estimates of the future needs for appointed counsel, and on the hourly allowance applicable in the budget year. The trial courts review counsel’s vouchers, or requests for payment, and pass upon the number of hours reasonably spent in the individual representation. The statutes of Kansas do not provide for the amount of the fee to be entirely in the hands of the trial courts, as do those of New Hampshire; the matter is left to be fixed by cooperation between the three branches of government. We do not find that the statutory scheme violates the separation of powers doctrine.
VIII. THE EQUAL PROTECTION ISSUE.
Respondents contend that the present system violates the equal protection clause in three respects: (1) it treats attorneys differently from other professionals by requiring them to subsidize indigent criminal defense; (2) it treats attorneys differently depending upon their geographic location; and (3) the quality of defense available to indigents depends on geographic location.
The traditional yardstick for measuring equal protection arguments is the “reasonable basis” test. Under this test, the constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. Ernest v. Faler, 237 Kan. 125, 129, 697 P.2d 870 (1985).
The respondents claim that the system impermissibly imposes the financial burden of representing indigent defendants on a select group of citizens — attorneys. If requiring attorneys to provide representation for the statutory rate of compensation violates the Fifth Amendment, then the legislation affects a fundamental right. As attorneys are not a suspect class, the appropriate test is whether the classification bears a rational relationship to a legitimate governmental purpose. The governmental purpose is to provide counsel to indigent criminal defendants as required by the Sixth Amendment. Assisting the indigent is a legitimate public goal, but cannot be accomplished at the expense of a particular group of people. Cunningham v. Superior Court, 177 Cal. App. 3d 336, 348, 222 Cal. Rptr. 854 (1986) (citing Norwood v. Baker, 172 U.S. 269, 279, 43 L. Ed. 443, 19 S. Ct. 187 [1898]). There was testimony at the district court hearing that no other professional group is required to give services to the poor without adequate compensation, and some testimony that doctors and pharmacists may be requested (but not compelled) to provide services to the poor at reduced rates. Also, we note that veterinarians are statutorily entitled to reasonable compensation for services which those professionals provide for the benefit of the state. K.S.A. 47-610. In discussing an equal protection challenge raised by an appointed attorney, the California Court of Appeals in Cunningham v. Superior Court, 177 Cal. App. 3d at 348-49, said:
“An attorney who is appointed to represent an indigent without compensation is effectively forced to give away a portion of his property — his livelihood. Other professionals, merchants, artisans, and state licensees, are not similarly required to donate services and goods to the poor.
“As one commentator has noted: 'it is unfair to put on any working group the burden of providing for the needy out of its stock in trade. No one would suggest that the individual grocer or builder should take the responsibility of providing the food and shelter needed by the poor. The same conclusion applies to the lawyer. The lawyer’s stock in trade is intangible — his time fortified by his intellectual and personal qualities, and burdened by his office expenses. To take his stock in trade is like stripping the shelves of the grocer or taking over a subdivision of the builder.’ Cheatham, Availability of Legal Services: The Responsibility of the Individual Lawyer and of the Organized Bar (1965) 12 UCLA L.Rev. 438, 444; see also, The Uncompensated Appointed Counsel System: A Constitutional and Social Transgression (1972) 49 Ky. L.J. 710, 715.”
While Kansas attorneys are not required to serve indigent defendants without compensation, the effect is similar if their overhead and out-of-pocket expenses are not covered by the compensation they receive. Cited are three other cases which do not expressly hold that requiring attorneys to subsidize indigent criminal defense denies the attorneys equal protection. Two of these cases held that the bar should not bear the entire burden of making counsel available. State v. Rush, 46 N.J. 399, 412-13, 217 A.2d 441 (1966); In Interest of D.B., 385 So. 2d 83, 92 (Fla. 1980). The third case involved a due process challenge to requiring attorneys to represent indigent civil litigants without compensation. Menin v. Menin, 79 Misc. 2d 285, 359 N.Y.S.2d 721 (1974).
The State’s position is that attorneys are different from other professionals or tradespeople and, therefore, there is a rational basis for imposing this burden on them. This sentiment is echoed by the Nevada Supreme Court, which held that requiring attorneys to represent indigent defendants for the limited statutory fee allowance did not violate equal protection because of the bar’s ethical obligation to provide such service. Daines v. Markoff 92 Nev. 582, 587, 555 P.2d 490 (1976).
We agree fully that the bar of this state has an ethical obligation to provide legal services to the indigent accused. That ethical obligation may justify paying attorneys a reduced fee for legal services to the poor, less than the fee an attorney might charge a financially solvent client for the same service, but not less than the lawyers’ average expenses statewide.
The next challenge is that the present system impacts disproportionately on members of the bar depending on their geographic location. Counsel note that three schemes exist for insuring the availability of counsel: public defender systems which serve some counties and relieve the private bar of the responsibility, systems in which participation on the panel is voluntary, and systems in which participation on the panel is mandatory. It is the attorneys in the latter system who complain of equal protection violations. They note the effect of the diverse systems is that only about 35% of the members of the bar are required to represent indigent criminal defendants for the rates available to appointed counsel.
The State has imposed a classification which affects two or more similarly situated groups in an unequal manner. Various Kansas attorneys in private practice are affected differently. The three systems place a different burden on attorneys depending on their geographic location. Some districts require attorneys to be on appointment panels, while participation is voluntary in the majority of counties. This is acknowledged by one member of the Board despite the Board’s rule that all licensed attorneys must participate. Attorneys in public defender districts are not subject to appointment since appointments from the private bar are unnecessary except in conflict of interest situations and in some misdemeanor and juvenile cases. Participation in the appointment panel in public defender districts is voluntary. Government-employed attorneys are not subject to appointment. As a result of these combined factors, about 65% of the attorneys in private practice are not subject to appointment. The net effect is that an attorney in private practice in a small district without a public defender bears a much greater proportion of the burden than do his or her peers in voluntary or public defender districts. The evidence discloses that of the sixteen members of the Executive Committee of the Kansas Bar Association, only three had criminal appointments in 1986. Of the eligible members of the judicial council, only one had an appointment in 1986. No members of the Board of Indigents’ Defense Services take appointments despite a determination that representation would not constitute a conflict of interest. Finally, only six out of fifteen or more of the attorney members in the legislature had appointments in 1986.
It is difficult to articulate a rational basis for requiring some attorneys to donate a considerable amount of their time and money to indigent criminal defense, and other attorneys none, simply because of their geographic location. As the California court said in Cunningham, 177 Cal. App. 3d at 349, a paternity case:
“Requiring lawyers to devote a reasonable amount of time to represent indigent defendants in paternity cases as a condition of licensing, might not offend constitutional principles if all lawyers were to bear the burden evenly. But, those lawyers who specialize in the nonlitigation aspects of such diverse areas of law as tax, corporation, entertainment, real estate, and business, may never have seen the inside of a courtroom. Although there may be some exceptions, it is not likely that members of this class of attorneys, who lack training and experience in litigation, would be selected to represent indigents in paternity cases.” (Emphasis supplied.)
A second equal protection problem arises from the differential treatment of assigned attorneys and public defenders. Most of the 3.8% budget cut mandated by Governor Hayden in early 1987 came out of the assigned counsel budget. This was passed on to appointed counsel by reduced fee and expense allowances. The Board did not cut public defenders’ salaries or overhead. The State pays the overhead in the public defenders’ offices, including rent, salaries, malpractice insurance, and the expense of some legal research materials. A 2.1% salary increase has been approved for next year.
The cumulative impact of this differential treatment on the rural Kansas attorney is obvious. Those in mandatory districts, such as Osage, Anderson, and Coffey Counties, are required to shoulder the burden of indigent criminal defense, paying part of the expense out of their own pockets, while being paid fees that average less than their fixed office overhead. Meanwhile, most Kansas attorneys are not required to participate or contribute. We hold that the present system, as administered, violates the Equal Protection Clause of the United States Constitution.
The final equal protection argument concerns alleged differences in the quality of defense provided to indigent defendants by appointed counsel and public defenders. The public defender is required to provide “quality legal representation,” and must meet certain qualifications, including “demonstrated knowledge of criminal law and effective ability to provide actual representation.” K.A.R. 105-21-1. Public defender offices have been established in the third, eighth, eighteenth, and twenty-eighth judicial districts and may serve other counties by mutual agreement with the administrative judge for that county and the Board. K.A.R. 105-10-1 (1986 Supp.).
The only qualifications of appointed counsel specified in the regulations are that they be licensed and engaged in private practice. K.A.R. 105-2-1 (1986 Supp.); 105-3-2. There has been no showing, however, that any defendants have been denied effective assistance of counsel. There has been no showing of deficient performance or that deficient performance adversely affected the outcome of any trial. The Sixth Amendment guarantees only effective assistance of counsel; it does not guarantee the best counsel available. Therefore, even if the public defenders are better able to provide a defense (which is not definitely established), equal protection is not denied if the appointed attorneys provide effective assistance of counsel. We recongnize no “specialists” in criminal law, and we do not require any special qualifications to practice criminal law in general. Special qualifications are not necessary to provide effective assistance of counsel in criminal cases. Further, as we pointed out earlier, under our discussion of THE OBLIGATION TO FURNISH COUNSEL, judges should not appoint incompent counsel, and we are confident that they do not knowingly do so. We take judicial knowledge that Mr. Orville Cole, ap pointed counsel whose motions for discharge were mentioned at the commencement of this opinion, is an able, effective, and experienced trial attorney. The evidence now before us does not demonstrate that indigent criminal defendants are being denied effective assistance of counsel.
IX. THE THIRTEENTH AMENDMENT ISSUE.
Section 1 of the Thirteenth Amendment to the United States Constitution provides:
“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
It is argued that the present system of appointing counsel for indigent defendants amounts to involuntary servitude. Shapiro characterized this argument as “one that has generally, though not universally, been rejected by the courts.” The Enigma of the Lawyer's Duty to Serve, 55 N.Y.U. L. Rev. 735, 768 (1980), and see authorities cited therein. The State responds only that this argument has been rejected by one United States Circuit Court of Appeals. See Williamson v. Vardeman, 674 F.2d 1211, 1214 (8th Cir. 1982).
Shapiro provides an interesting analysis of this argument. He says:
“In what is perhaps the best judicial analysis of the scope of the thirteenth amendment and related statutes, the Second Circuit has concluded that a condition of servitude is within the amendment’s proscription only when the individual is subjected to physical restraint or threat of legal confinement as an alternative to service. Thus, the amendment does not apply if the individual may choose freedom, even though the consequences of that choice are (or are believed to be) as grievous as deportation or heavy financial loss. For this reason, no substantial thirteenth amendment question was presented by professional baseball’s famed reserve clause: a player’s violation of the clause could lead to a complete loss of earning power, but not to confinement.
“In the case of the lawyer, then, the imposition of professional discipline, even to the point of disbarment, for refusal to accept an assignment appears to pass muster under the thirteenth amendment. But those who have reached this point with me may share my doubts about imprisonment for contempt for such a refusal. That issue, though, relates only to the question of sanction, not to the power to impose the obligation and to make it stick.” 55 N.Y.U. L. Rev. at 770.
We know of no Kansas attorney who has been imprisoned for failure to accept an appointment under the Act. Without further discussion, we hold that the system does not offend the Thirteenth Amendment.
X. DOES THE PRESENT SYSTEM VIOLATE ARTICLE 2, § 17 OF THE KANSAS CONSTITUTION?
It is argued that the Indigent Defense Services Act and its accompanying regulations violate Article 2, § 17 of the Kansas Constitution. This section provides:
“All laws of a general nature shall have a uniform operation throughout the state: Provided, The legislature may designate areas in counties that have become urban in character as ‘urban areas’ and enact special laws giving to any one or more of such counties or urban areas such powers of local government and consolidation of local government as the legislature may deem proper.”
Johnson County is designated as an “urban area.” K.S.A. 19-3524. Anderson, Coffey, and Osage Counties have not been so designated, and the proviso is of no importance to our discussion on this issue.
The parties disagree regarding the proper standard of review of this issue. The KBA argues in its brief that the typical presumption of validity and the court’s duty to uphold the statute if at all possible do not apply to this section. In support of this contention, it cites Boyer v. Ferguson, 192 Kan. 607, 389 P.2d 775 (1964). The court in Boyer stated:
“Where an Act is attacked as being violative of Article 2, Section 17 of the Kansas Constitution, the rules of statutory construction with the accompanying presumptions of validity have no application.” 192 Kan. at 614.
Immediately following the quoted portion, the opinion continues: “The third clause of Article 2, Section 17 provides: ‘. . . and whether or not a law enacted is repugnant to this provision of the constitution shall be construed and determined by the courts of the state.’ ” 192 Kan. at 614. As the State points out, the third clause of section 17 was removed in 1974.
The language of the third clause had been interpreted to impose a duty on the courts to determine a statute’s validity without regard to anything the legislature had declared. 192 Kan. at 614 (quoting Water District No. 1 v. Robb, 182 Kan. 2, 318 P.2d 387 [1957]; and State, ex rel., v. Hodgson, 183 Kan. 272, 326 P.2d 752 [1958]). Thus, the presumption of validity did not apply.
Since the third clause was removed in 1974, this court has returned to the presumption of validity analysis applicable to most constitutional challenges of legislative acts. See, e.g., Board of Riley County Comm'rs v. City of Junction City, 233 Kan. 947, 959, 667 P.2d 868 (1983), involving an Article 2, § 17 challenge. Thus, the traditional test of a statute’s constitutionality applies to statutes challenged under Article 2, § 17: The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the Constitution. Sheppard v. Sheppard, 230 Kan. 146, 148, 630 P.2d 1121 (1981), cert. denied 445 U.S. 919 (1982).
The scope of the present version of Article 2, § 17 has been interpreted by this court as follows:
“[T]he only prohibition contained in Article 2, Section 17, relates to laws of a general nature which affect the people of the state generally. Such laws must apply uniformly throughout the state and thus be geographically uniform.” Stephens v. Snyder Clinic Ass’n, 230 Kan. 115, 127, 631 P.2d 222 (1981).
The first question, then, is whether the Indigent Defense Services Act is a “law of a general nature.” The State argues that it is not because it affects only a small class — indigent criminal defendants. On the other hand, as a criminal procedure statute, it is of universal interest to the people of the state. This position seems most plausible in light of this court’s decision in Rambo v. Larrabee, 67 Kan. 634, 73 Pac. 915 (1903). The statute challenged in Rambo provided that any person convicted of murder or manslaughter in any county containing more than 65,000 inhabitants, who filed an affidavit setting forth just cause for appeal and inability to pay for a transcript and record, and who satisfies the judge that he is unable to pay, shall be entitled to have the record prepared at the expense of the county. 67 Kan. at 635. The court held the act was a law of a general nature:
“As will be seen, it is an act relating to criminal procedure and practice. It interests every person in a designated class, no matter where he may reside. . . . The nature of this act is as general as is any step in the criminal procedure, or as is any law defining crime itself. Being so, the requirement is that its operation be uniform throughout the state.” 67 Kan. at 644.
Although it applies only to indigent criminal defendants (and to the lawyers in private practice throughout the state), the Indigent Defense Services Act is a law of a general nature under the reasoning in Rambo. It is followed, and is of consequence, in all counties of the state. It is subject to the requirements of Article 2, § 17.
It is claimed that the law violates this section because it affects lawyers (and, arguably, criminal defendants) differently depending upon their geographic location. As such, its operation is not geographically uniform. This court has interpreted Article 2, § 17 to permit some classification, however, provided the classification is not arbitrary. This notion was announced in Rambo. After holding the law at issue was “of a general nature” and subject to the constitutional requirements, the court continued:
“We do not conceive this phrase to mean that an act, in order to have uniform operation throughout the state, must affect every community or individual alike. It is entirely competent for the legislature to adapt its laws general in their nature to general classifications, either of individuals, surroundings, or conditions, but such classification must always be a natural one, not an arbitrary or fictitious one. If the nature of the law is general, that is, generic, its operation must be as general throughout the state as are the genera.” 67 Kan. at 644.
The court concluded that the legislation involved applied to a given class, but only in one county, and that there was no rational basis for such a classification based solely upon population. The court added, however:
“We do not mean to hold that a classification for any purpose based upon population would be invalid. For a great many purposes, such a classification would be most reasonable and natural, but for the classification here attempted it is not. Indeed, it is very apparent that the classification attempted was only for the purpose of avoiding the constitutional inhibition.” 67 Kan. at 647.
A rational justification for treating different localities differently has continued to preserve the constitutionality of several statutes in spite of an Article 2, § 17 challenge. See Board of Riley County Comm’rs, 233 Kan. at 958-59, and authorities cited therein.
Arguably, there is a rational basis for the differential treatment of counties and judicial districts by the Indigent Defense Services Act. The installation of public defender offices in only four judicial districts may be justified by the more dense populations and the greater number of criminal cases in those districts. Similarly, a higher number of attorneys may justify the “voluntary” panels permitted in some districts. Requiring mandatory participation on indigent defense panels is the method utilized to guarantee the right to counsel in counties or districts with smaller attorney populations.
The basis of the differential treatment observed in the operation of the Act cannot lawfully rest entirely upon financial or economic considerations. Financial or economic reasons alone cannot provide a rational basis for an otherwise unconstitutional disparate treatment. As the United States Supreme Court stated in Watson v. Memphis, 373 U.S. 526, 537, 10 L. Ed. 2d 529, 83 S. Ct. 1314 (1963):
“[V]indication of conceded constitutional rights cannot be made dependent upon any theory that it is less expensive to deny than to afford them.”
There was no evidence and no testimony before the trial court regarding this issue. We take judicial notice, however, of the great disparity in the number of criminal cases between various counties and the judicial districts of this state, and of the distances involved in some of our larger judicial districts. The problem is how to provide competent counsel within a short time to indigent defendants throughout the state. Counsel must frequently be provided promptly to the accused after arrest. The problem is geographic as well as economic. Using the private bar in the less populous counties would not only be more economical, but would provide prompter representation of indigents charged there.
That does not, however, resolve the problem. As a practical matter, the majority of attorneys in private practice in the larger counties are rarely, if ever, appointed to represent indigent defendants. All attorneys in private practice in the counties here involved, however, are required to serve regardless of their desire to serve, regardless of the time they may have spent doing pro bono work for the poor or for community organizations, regardless of the demands of their respective practices, and regardless of their competence in the criminal law. In counties which have the public defender system, most indigent defendants are represented by counsel who must have “demonstrated knowledge of criminal law and effective ability to provide actual representation.” K.A.R. 105-21-1. There is no such requirement of attorneys appointed from the private bar.
The present system quite obviously does not operate uni formly throughout the state. How it works depends upon where an indigent is charged with crime, or where an attorney maintains his or her practice of law. The system, as now operated, violates Article 2, § 17 of the Kansas Constitution, as contended by Judges Smith and Fromme.
XI. CONCLUSION.
The State of Kansas has the obligation to furnish counsel for indigents charged with felonies, for indigents charged with misdemeanors when imprisonment upon conviction is a real possibility, and for other persons upon certain circumstances. The State also has an obligation 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. No one attorney must be saddled with appointments which unreasonably interfere with the attorney’s right to make a living. Out-of-pocket expenses must be fully reimbursed.
Kansas attorneys have an ethical obligation to provide pro bono services for indigents, but the legal obligation rests on the state, not upon the bar as a whole or upon a select few members of the profession.
The present system as now operated, we have held, violates certain provisions of the United States and the Kansas Constitutions. Changes are required. These may come about by both legislative and administrative action. The adoption of different bases for computing appointed counsel’s compensation, the budgeting and funding of the same, and the possible extension of public defender systems or the adoption of contracts to provide counsel for indigents in some areas, or an intermixture of those and possibly other solutions, takes time. Meanwhile, the indigent criminal defendants must have counsel, and that is a burden which the bar must continue to shoulder, at least temporarily, under the present system.
The general orders of Judges Smith and Fromme are set aside insofar as they define “reasonable compensation,” provide that attorneys cannot be required to serve unless that level of compensation is forthcoming, and provide for the dismissal of charges unless such hourly compensation is provided. Respondents are directed to comply with the present statutes and regulations until July 1, 1988, and to appoint counsel under the present system until that date, taking care to see that competent counsel are appointed and no unreasonable burden or hardship is placed upon any attorney or attorneys. As we indicated in our temporary order, entered on July 17, 1987, it is the time necessarily spent by an attorney on indigent appointments, and not the number of appointments, which is the important factor in determining reasonableness or unreasonableness, fairness or hardship.
The requested order of mandamus is denied. | [
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Per Curiam:
This is an original proceeding in discipline filed by the office of the disciplinary administrator against M. Ralph Baehr, of Wichita, an attorney admitted to the practice of law in Kansas. The facts are not disputed.
Respondent was retained by Royal Insurance Company to defend its insured, Independence Plaza, Inc., in an action seeking damages for injuries a plaintiff sustained in a fall upon property of the insured. T.G. & Y. Stores Company, a tenant upon the property, was also a named defendant and was represented by other counsel. In May 1984, the defendants negotiated a tentative agreement for settlement with the plaintiff. Each defendant was to contribute $7,000.00 toward the purchase of an annuity as part of a structured settlement. Respondent, who was the prime proponent of the settlement, was designated to complete the necessary details including the purchase of an annuity which would pay plaintiff the sum of $175.00 per month beginning in July 1984. The annuity was not forthcoming and plaintiff sought a hearing on the proposed settlement. Following a hearing, the trial court approved the proposed settlement and entered judgment in accordance with the agreement. After considerable inquiry, respondent, in December 1984, advised counsel for the plaintiff and T.G. & Y. that he had purchased the annuity. In January 1985, respondent again advised that the annuity had in fact been obtained. These representations were false. In February 1985 respondent advised that the annuity contract and a check for $1,225.00 representing payments due through January 1985 were in the mail. They were not. Royal Insurance Company, following receipt of a garnishment summons, retained other counsel. The matter was then promptly concluded by new counsel, who obtained the annuity without difficulty.
Royal Insurance Company had never been advised of the settlement terms and had had no contact with respondent since August 1, 1984. Respondent never advised his client of the settlement or the judgment entered thereon. Respondent would not accept telephone calls from representatives of his client and would not reply to their correspondence.
Following the filing of the complaint against respondent, he failed to cooperate with the representatives of the disciplinary administrator’s office although he did appear before the panel of the Board for Discipline of Attorneys when directed to do so. At that hearing, respondent did not deny the factual allegations of the complaint which have been greatly summarized herein.
The panel found that there was clear and convincing evidence that the respondent had neglected a legal matter entrusted to him in violation of DR 6-101(A)(3) (235 Kan. cxlvii), and recommended discipline by public censure. A copy of the panel report was served upon the respondent, who took no exceptions to the report. Respondent was directed to appear before the Supreme Court pursuant to Supreme Court Rule 212(d) (235 Kan. cxxx) but failed to do so.
After carefully reviewing the record in this action, a majority of the members of the Court are of the opinion that respondent should be indefinitely suspended from the practice of law in Kansas. Respondent’s actions demonstrate a total disregard of his duties to his client and the courts, and the record contains clear evidence that respondent misrepresented the existing facts to counsel for the codefendant and the plaintiff.
It is Therefore Ordered that M. Ralph Baehr be and he is hereby indefinitely suspended from the practice of law in the State of Kansas.
It is Further Ordered that the costs herein be assessed to the respondent.
It is Further Ordered that the respondent shall forthwith comply with Supreme Court Rule 218 (235 Kan. cxxxii) and that this order shall be published in the official Kansas Reports.
Effective the 30th day of October, 1987. | [
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The opinion of the court was delivered by
Holmes, J.:
Glenn O. Bair appeals from two decisions pertaining to the enforcement of a separation agreement in a divorce proceeding. The two appeals were consolidated in the Court of Appeals and subsequently transferred to the Supreme Court on motion of the appellant pursuant to K.S.A. 20-3017.
Glenn O. Bair (appellant) and Janet K. Bair, now Janet K. Rost, (appellee) were married on January 24, 1959, and five children were born to them during the marriage. On June 14, 1973, a divorce was granted to the appellee. The divorce decree ap proved and incorporated by reference a lengthy separation agreement which provided, inter alia, for a lump-sum alimony award of $360,000, payable $2,000 monthly until the entire sum was paid in full. The alimony obligation was not to terminate upon appellee’s subsequent remarriage and, although alimony payments were to be extinguished upon the death of either of the parties, the agreement required appellant to maintain sufficient life insurance to pay appellee a sum equal to the unpaid balance of the lump-sum alimony award. The agreement also provided that appellant would pay a specified amount of monthly support for each minor child and contemplated additional benefits including assistance with the cost of the children’s higher educations. The agreement also included the following general provision:
“(c) No modification or waiver of any of the terms of this agreement shall be valid unless in writing and executed with the same formality as this agreement.”
After the divorce, both parties eventually remarried, appellant in 1976 and appellee in 1980. Appellant apparently made the $2,000 per month alimony payments fairly regularly through 1983.
In early 1984, appellant failed to pay the full amount of alimony and child support for the months of February and March, and appellee immediately instituted contempt proceedings to force compliance with the separation agreement. The contempt citation was withdrawn when appellant was able to make the payments by borrowing upon his life insurance. On May 11, 1984, appellee filed another accusation in contempt when appellant informed her that he could pay only $1,000 for the month of May. Just before the court hearing on the accusation, he paid the balance due for May.
In June 1984, appellee sought an assignment of earnings pursuant to K.S.A. 60-1613 in order to enforce the alimony and child support provisions of the separation agreement. At that time, appellant was employed as a salaried medical director with Blue Cross and Blue Shield of Kansas (BC-BS) and was also operating a private medical practice. The appellee specifically sought assignment of the BC-BS salary earnings. In a memorandum decision filed July 25, 1984, Judge Adrian Allen ordered appellant to execute an assignment of his BC-BS earnings to appellee “in the maximum amount permitted by K.S.A. 60-2310(g) but not to exceed $2,400 per month,” which included $2,000 per month in alimony and $400 per month in child support for the two remaining minor children.
On July 12, 1984, appellee filed still another accusation in contempt, which alleged that appellant had not paid alimony or child support for June and July 1984. A hearing was held by Judge Allen on July 27, 1984. The court found appellant in contempt for failure to pay alimony as required by the 1973 agreemént, and set forth conditions under which appellant might purge himself of contempt. However, the journal entry was not filed until October 7, 1986, due to the appellant’s intervening bankruptcy which was filed on August 14, 1984. It is this order which is the subject of the appeal in Case No. 60,086.
On August 20, 1986, appellant filed a motion to terminate monthly child support payments because the parties’ only remaining minor child had moved to appellant’s residence in June 1986. The motion also sought an order for appellee to pay child support to appellant. On September 4, 1986, appellant filed a motion to terminate or modify his alimony obligations. A hearing on these and other motions was held December 12, 1986, with a journal entry filed March 30, 1987. The December orders of the court as set forth in that journal entry are the subject of the appeal in Case No. 60,681. The foregoing is but a brief summary of the voluminous pleadings in the district court and in no way attempts to cover the continuous legal battles waged by these two individuals over the past several years. Additional facts will be related as necessary to resolve the issues raised in the appeals.
Case No. 60,086
Appellant has appealed from the October 7,1986, journal entry which reflects the orders of the district judge made at the contempt hearing held July 27, 1984. At the outset we are faced with appellee’s contention that this appeal should be dismissed as moot. The order complained of found appellant to be in contempt of court for failure to comply with the orders contained in the divorce decree which were based upon the separation agreement. The July 27, 1984, decision of the court directed appellant to make an assignment of 50% of his BC-BS wages and to pay all of his gross income from his private medical practice in excess of $800.00 per week. That order no longer has any force or effect. Appellant is no longer employed by BC-BS and the trial court found on August 6, 1987, that appellant had “technically purged himself of contempt.” Appellee concedes in her brief before this court that appellant is no longer under the order of July 27, 1984. It appears that on July 6, 1987, the court issued a new purging order based upon new allegations of contempt. We find that the July 27, 1984, order is no longer effective and that it has been superseded by later orders of the court.
The general rule on mootness was recently restated as follows:
“ ‘[I]t is the duty of the courts to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles which cannot affect the matter in issue before the court.’ ” Kimberlin v. City of Topeka, 238 Kan. 299, 301, 710 P.2d 682 (1985) (quoting City of Roeland Park v. Cross, 229 Kan. 269, 270, 623 P.2d 1332 [1981]).
Having determined that the order appealed from is no longer valid, the appeal therefrom is moot. There is no judgment this court could make as to the July 27, 1984, order which would in any way affect the present or future rights or obligations of the parties.
The appeal in Case No. 60,086 is dismissed.
Case No. 60,681
In this appeal, appellant asserts error on the part of the trial court in not terminating or modifying his alimony obligations; in failing to stay or quash an income withholding order; in not limiting appellee’s attempts to recover past due alimony; and in failing to either enter a child support order directing appellee to pay support or to offset such support against the past due alimony. As indicated earlier, appellant, in the summer and fall of 1986, filed motions seeking relief from the alimony obligation and seeking child support for the youngest child who was living with appellant at the time. Following a hearing on December 12, 1986, the court determined there was no sufficient reason for modifying the alimony obligation, that appellee was entitled to recover alimony arrearages by whatever method the law allows, that alimony amounts due under the 1973 agreement but unpaid by appellant are judgments, that appellant was relieved of current child support obligations for the minor child residing with him, and that any claim by appellant for child support should be determined in a separate proceeding. The court also indicated that any child support which might be ordered paid by appellee should not offset alimony arrearages. All relief which appellant had requested was denied with the exception of a ruling upon whether appellee should pay child support for the minor child residing with appellant. That issue was deferred for a separate hearing.
The appellant’s first argument is that the district court erred in failing to modify or terminate alimony payable to appellee under the 1973 separation agreement. Appellant asserts at least six reasons why the court should have modified or terminated appellant’s alimony obligation. Appellant’s arguments are based largely upon his changed circumstances, including reduced income and poor health. It is asserted the court “should” have the authority, based upon changed circumstances, to modify a separation agreement notwithstanding the provisions of K.S.A. 1986 Supp. 60-1610(b)(3), which reads in part:
“Matters settled by [a separation] agreement incorporated in the decree, other than matters pertaining to the custody, support or education of the minor children, shall not be subject to subsequent modification by the court except: (A) As prescribed by the agreement or (B) as subsequently consented to by the parties.”
Appellant asserts the court should modify the parties’ agreement because (1) K.S.A. 1986 Supp. 60-1610(b)(2) now limits court determined and imposed maintenance to an initial term of 121 months; (2) appellee has been gainfully employed at certain times since the divorce; (3) appellee has remarried and her present husband is apparently a financially successful attorney; (4) appellant’s earnings have been greatly reduced; (5) as the alimony received by appellee was used, at least in part, for support of the children, the court should have authority to reduce the alimony as if it were child support; and (6) equitable powers should be utilized to grant appellant relief.
Appellant cites numerous cases from other jurisdictions in which alimony provisions in separation agreements have been modified by the courts for one or more of the reasons urged upon this court. See generally Annot., 61 A.L.R.3d 520. However, in oral argument before this court, counsel for appellant conceded that in none of those cases was the court faced with a statute precluding modification.
In Spaulding v. Spaulding, 221 Kan. 574, 561 P.2d 420 (1977), the court considered K.S.A. 60-1610(e), the forerunner of our present statute, and concluded that the trial court had no authority to modify a separation agreement which had been approved by the court and incorporated in the divorce decree. The court held:
“A party who seeks and obtains from a trial court its approval of a separation agreement and the incorporation thereof in a decree of divorce and thereafter accepts the benefits of the decree cannot avoid its disadvantages by a motion to modify except as to those matters over which the court has continuing jurisdiction.” Syl. ¶ 1.
In Carey v. Carey, 9 Kan. App. 2d 779, 689 P.2d 917 (1984), the appellant sought modification of a separation agreement which had been incorporated in the divorce decree. The court stated:
“The court retains no jurisdiction to modify alimony set by agreement except as the agreement provides or by consent of the parties.” p. 781.
Here, the separation agreement was incorporated in the divorce decree. The agreement provided that any modification or waiver of any of its terms would be invalid unless in writing and executed with the same formalities as the agreement itself. The alimony obligation set forth in the agreement has not been modified by the parties, nor have they both consented to such a modification. The district court therefore had no authority to modify the agreement, and appellant’s arguments lack merit.
Appellant’s next issue on appeal is that the trial court erred in denying his motion to stay service of an income withholding order because the order was obtained without the filing of a “sworn” affidavit as required by K.S.A. 1986 Supp. 23-4,107(b) and (f).
On December 4, 1986, while discovery was ongoing on appellant’s motions to modify child support and alimony, appellee filed a notice of delinquency pursuant to K.S.A. 1986 Supp. 23-4,105 et seq. on the basis of alimony and child support arrearages. On December 8, 1986, appellant filed a motion to stay service of the withholding order and to strike the notice of delinquency. This motion was heard by the court on December 12, 1986, along with the motions to terminate or modify alimony and child support.
K.S.A. 1986 Supp. 23-4,107(b), enacted in 1985 as a part of the income withholding act, K.S.A. 1986 Supp. 23-4,105 et seq., establishes the procedure for applying for an income withholding order and provides:
“(b) If the court has issued an order for support, with or without a conditional order requiring income withholding as provided by subsection (a), the obligee. . . may apply for an order for withholding by filing with the court an affidavit stating: (1) That an arrearage exists in an amount equal to or greater than the amount of support payable for one month; (2) that all or part of at least one payment is more than 10 days overdue; (3) that a notice of delinquency has been served on the obligor in accordance with subsection (f) and the date and type of service; (4) that the obligor has not filed a motion to stay service of the income withholding order; and (5) a specified amount which shall be withheld by the payor to satisfy the order of support and to defray any arrearage. Upon the filing of the affidavit, the court shall issue an order requiring the withholding of income without the requirement of a hearing, amendment of the support order or further notice to the obligor.” (Emphasis added.)
K.S.A. 1986 Supp. 23-4,107(f) reads:
“(f) No sworn affidavit shall be filed with the court issuing the support order pursuant to subsection (b) unless it contains a declaration that the obligee . . . has served the obligor a written notice of delinquency because an arrearage exists in an amount of support payable for one month, that all or part of one payment is more than 10 days overdue and that the notice was served on the obligor by certified mail, return receipt requested, or in the manner for service of a summons ... at least seven days before the date the affidavit is filed.”
The statute continues by listing statements which must be included in the notice of delinquency. Appellee served such a notice upon appellant.
The appellant’s argument on this issue indicates that he does not challenge the notice of delinquency, but rather the sufficiency of the affidavit which he asserts must be filed with the court pursuant to 23-4,107(b). It appears that 23-4,107(b)(3) requires a notice of delinquency must be served upon the obligor prior to instituting court action for a withholding order and, absent a motion for a stay pursuant to subsection (b)(4) of the statute, 23-4,107(b) mandates that the court shall enter the order. The statutes apparently contemplate that the obligee must first serve a notice of delinquency before filing the affidavit.
The notice of delinquency was filed December 4, 1986. Since appellant filed a motion to stay service of the income withholding order on December 8, 1986, within 7 days of service of the notice of delinquency, a hearing was held December 12,1986, in accordance with K.S.A. 1986 Supp. 23-4,110(b) at the same time as appellant’s other motions were heard. Once appellant filed a motion to stay service of the order, the procedure for obtaining an order by affidavit under 23-4,107(b) no longer could be applicable because appellee could not have accurately made the statement envisioned by 23-4,107(b)(4), “that the obligor has not filed a motion to stay service of the income withholding order.” If the obligee files a motion to stay service of an income withholding order as contemplated by 23-4,107(b)(4) and 23-4,110, the propriety of such an order is placed in issue and may be determined by the court.
While the procedures set forth in the income withholding act are confusing and somewhat inconsistent, we find no error in the trial court’s denial of appellant’s motion on any of the grounds asserted in this appeal.
The third point raised by appellant is that the trial court erred in placing no restrictions on the recovery of alimony arrearage. Appellant apparently relies on his alleged financial inability to comply with the district court’s orders in asserting that appellee should have been restricted in her attempts to collect past due alimony, which the court found amounted to “at least between $30,000 and $40,000.” The trial court found that appellee was entitled to recover the arrearage “under whatever method the law allows.” We find no abuse of discretion in the court’s refusal to limit appellee’s lawful attempts to collect the past due alimony.
For his final issue, appellant argues that the trial court erred in failing to award child support to appellant or to permit an offset against the alimony and child support arrearage. Greg Bair, the parties’ only remaining minor child, moved to the appellant’s residence on June 18, 1986. He reached age 18 on July 14, 1987. In the journal entry filed March 30, 1987, the district court granted appellant’s motion to terminate child support “only with respect to current obligations for Greg Bair.” The appellant’s motion to terminate child support was denied “in all other respects.” However, the district court’s order noted that any child support owed to appellant should be determined in a separate proceeding, and also that the parties had agreed to defer any dispute over past due child support for one year. At the hearing, appellee agreed to credit any child support payments received for Greg since July 1, 1986, toward appellant’s maintenance obligation.
While it would have facilitated matters if the court had ruled upon appellant’s motion seeking support for Greg during the period of time he resided with his father, the court determined that it would reserve that issue for a separate proceeding. Inasmuch as the court made no final determination of that portion of appellant’s motion, we have no final order before us for review.
We have carefully considered all of appellant’s various issues and arguments and find no basis for reversal of the trial court’s orders.
As a final matter, appellee seeks an allowance of costs and attorney fees, contending that the arguments and issues advanced by appellant are without merit and were advanced solely for purposes of delay. While it is true that many of appellant’s arguments border upon being frivolous, we cannot say that the entire appeal was without some merit or that an assessment of fees is justified under Rule 7.07(b) (1987 Kan. Ct. R. Annot. 35).
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The opinion of the court was delivered by
Herd, J.:
This is a criminal action. Leslie Webb appeals his sentences for aggravated robbery, K.S.A. 21-3427, and aggravated assault on a law enforcement officer, K.S.A. 21-3411.
The facts giving rise to this action are as follows: On January 4, 1986, at 3:55 a.m., Webb entered a Kwik Shop in Topeka and demanded money from the cashier. He showed her the revolver he was carrying and said he would shoot her if necessary. He escaped with $69.61.
On April 11, 1986, at 3:33 a.m., Webb entered another Kwik Shop in Topeka and again committed armed robbery. He also took $10.00 from a customer who was in the store. This time, however, police were on surveillance. They followed him as he left the store.
After a high-speed car chase, Webb left his car and ran down an alley. When he was spotted by helicopter, a police officer caught up with him. Webb started waving the gun, pointing it sometimes at his own head and sometimes at the officer. The officer repeatedly ordered Webb to drop the gun, and Webb kept yelling, “Shoot me! Go ahead and shoot me!” When Webb would not drop the gun, the officer shot him in the arm and took him into custody.
The cashier from the first Kwik Shop hold-up identified Webb. After plea negotiations, Webb pled guilty to one count of aggravated robbery and one count of aggravated assault on a police officer. The district court ordered a presentence investigation and report.
At the sentencing hearing, the court asked Webb’s counsel, A1 Bandy, if he had examined the presentence report. Bandy replied he had, and that he had discussed the report with Webb. The court then asked for and received counsels’ comments. Defense counsel made an impassioned statement in behalf of Webb. He spoke of Webb’s “severe drinking problem,” contending Webb was intoxicated while committing the crimes. He stressed that mandatory sentencing because of the gun meant Webb would spend at least three and a half years in jail. He argued it appeared Webb had been in more danger of shooting himself than anyone else. He declared the minimum sentence gave Webb plenty of time to break his drinking habit, which he contended was the major cause of Webb’s lawlessness. He asserted the shock of being shot by the police officer had given Webb the motivation to change his ways.
At the close of Bandy’s remarks, the court thanked both attorneys and then asked without specifying to whom he addressed the question, “I would ask, is there any legal reason why sentence should not be imposed?” Bandy replied there was not. Webb was silent. The transcript shows nothing further, but the journal entry states: “[T]he Court inquires if there is any legal reason why sentence should not now be imposed. The defendant replies in the negative.” Since the transcript failed to indicate a response by Webb, we conclude he made no response to the question. A silent record does not prove compliance with a statute.
The court then addressed Webb, saying:
“If you would please rise, sir. Mr. Webb, the court has checked the — read the Presentence Report in some detail in connection with this situation and others that you have had, and I’m incorporating in this sentencing that Presentence Report by this reference and making it a part hereof. Needless to say, Mr. Webb has had many problems over a very long period of time, not the least of which is his drinking.”
The court then sentenced Webb to 3 to 10 years for aggravated assault on a police officer, the sentence to run consecutive to a 10- to 20-year sentence for aggravated robbery. Both sentences were to run consecutive to any sentences previously imposed. Thus, the sentences ran consecutive to a one- to two-year sentence for forgery after Webb’s probation for that conviction was revoked. The actual sentence imposed was 14 to 32 years, although the journal entry reflects a 10- to 20-year sentence for aggravated assault and 3 to 20 years for aggravated robbery.
Webb made a motion to modify the sentence. At the hearing, the court noted the sentence as reported in the sentencing transcript, rather than in the journal entry. Mr. Bandy, apparently relying on the journal entry, stated the consecutive sentences meant Webb’s actual sentence was 14 to 42 years’ imprisonment. He pointed out Webb would not be eligible for parole until he had served almost 10 years. Bandy also noted this would be Webb’s first incarceration and that he could be rehabilitated in less time. The allocution issue was not raised.
The State noted, for the first time, that Webb had been involved in previous armed robberies of convenience stores. In one case, Webb and his partner shot into the floor to intimidate a cashier.
Mr. Bandy, relying on the sentencing transcript rather than the journal entry, asked that the minimum sentence for assault remain the same, but that the minimum term for the robbery be halved to five years. The State noted the court was authorized by statute to impose a sentence of 15 years to life. It noted the SRDC report’s recommendation of incarceration because of chronic impulsive behavior and alcoholism showed no more reason to modify a 10- to 20-year sentence than had the presen tence report. The court therefore denied Webb’s request for a 5-to 20-year sentence for aggravated robbery to run concurrently with his aggravated assault sentence.
The first issue Webb raises is whether resentencing is required because the court did not ask him personally whether he had anything to say before sentence was imposed. K.S.A. 22-3424(4) states:
“Before imposing sentence the court shall afford counsel an opportunity to speak on behalf of the defendant and shall address the defendant personally and ask him if he wishes to make a statement on his own behalf and to present any evidence in mitigation of punishment.”
The State asks that we find the statute satisfied by the detailed argument by Bandy at the sentencing hearing and by the court’s study of the presentence report which contained Webb’s explanations for his actions. It asks in the alternative that we find Webb waived his right to allocution by allowing his counsel to reply to the court’s question without claiming a right to respond personally.
If we nevertheless find error, the State asks that the error be deemed harmless, as there is no evidence Webb would have anything to say on remand in mitigation of his sentence. The record shows his counsel had made all possible arguments in his favor before the court pronounced sentence. Arguments were again made by defense counsel during the hearing on Webb’s motion for modification of sentence. Webb raises no additional points he would have raised to the sentencing court had he the opportunity.
“Allocution” is defined as the “[f]ormality of court’s inquiry of prisoner as to whether he has any legal cause to show why judgment should not be pronounced against him on verdict of conviction.” Black’s Law Dictionary 70 (5th ed. 1979). Such allocution is provided a criminal defendant under K.S.A. 22-3422. Historically, the term “allocution” has been applied also to the right to speak at sentencing. Kansas provides a defendant this right under K.S.A. 22-3424(4). The practice of allocution is so steeped in history its origin is unknown. See Barrett, Allocution, 9 Mo. L. Rev. 115 (1944). It was well established in English common law. There, the accused was not permitted counsel or to be a witness in his own behalf. Allocution was thus the only time in the proceeding the defendant could present facts supporting his innocence as well as facts supporting mitigation of his sentence. Allocution was thus extremely important, and its omission justified reversal. See Annot., 96 A.L.R.2d, 1292, 1295.
The majority of crimes under English common law were punishable by death, so it became necessary to allow some amelioration of the standard sentence. A woman who was pregnant was allowed a stay until her child was born. The clergy were exempted from death in some crimes. The “benefit of clergy” was then extended to those people who could read. Finally, anyone could plead “benefit of clergy” as a plea for mercy. See 9 Mo. L. Rev. at 120-21. It was thus important that the silent defendant be given his or her one chance to state reasons why the death sentence should not be imposed.
There was another use of allocution. In early common law, not only were convicted defendants frequently put to death, but they were “placed in a state of attainder” which meant their property was forfeited to the crown and their descendants declared “of corrupt blood” (which meant, among other things, they could not claim to be of gentle or noble blood). Before land or title were taken from descendants, however, allocution was afforded them to give reason why their ancestor (usually their father) should not have been condemned. These laws led to such odd cases as the one in which a descendant, during his allocution, proved the sentence of his already-executed ancestor should be reversed as the ancestor had been denied allocution. The descendant was thus allowed to inherit his ancestor’s title and land. See Anonymous, 3 Mod. 265,87 Eng. Rep. 175 (K.B. 1689), cited in 9 Mo. L. Rev. at 121-22.
Because of modern procedural protections of a criminal defendant’s rights, allocution is now disregarded or considered a mere technical formality in many of the jurisdictions in which allocution is not required by statute or court rule. See 96 A.L.R.2d at 1298. However, in those jurisdictions where allocution is strictly enforced, reversal of the conviction is no longer required; instead, the sentence alone is remanded for new proceedings affording allocution.
Criminal defendants are recognized as having a clear right to allocution under federal law. See Fed. R. Crim. Proc. 32(a)(1), the verbatim model for K.S.A. 22-3424(4).
The facts of the present case are very similar to those in Green v. United States, 365 U.S. 301, 5 L. Ed. 2d 670, 81 S. Ct. 653, reh. denied 365 U.S. 890 (1961). In Green, the federal court, before sentencing, asked, “Did you want to say something?” without specifying to whom the question was addressed. The defendant’s counsel replied by making a detailed argument for leniency. The United States Supreme Court noted the historical origins of the rule of allocution dated to a time when defendants were not allowed the right to counsel or to testify. The Court nevertheless said:
“But we see no reason why a procedural rule should be limited to the circumstances under which it arose if reasons for the right it protects remain. None of these modern innovations lessens the need for the defendant, personally, to have the opportunity to present to the court his plea in mitigation. The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.” 365 U.S. at 304.
The Court therefore held that affording counsel the opportunity to speak did not fulfill the requirements of the statute.
The Court nevertheless held that because of the general nature of the trial court’s question, it may have been meant for the defendant and the defendant may, by “the significant cast of the eye or the nod of the head,” have signaled he recognized his. right to speak but chose to exercise the right through his attorney. The Court therefore held the defendant had failed to meet his burden of proving he was denied his statutory right and refused to remand for sentencing.
The Court also held, however, that trial courts must, in the future, address themselves unambiguously to the defendant.
Justice Black, in a logical dissent, argued the defendant’s sentence should be remanded because the State admitted the question had been directed at counsel and the majority had no authority for asserting a defendant has the burden of proving a court-created hypothetical did not occur.
In Hill v. United States, 368 U.S. 424, 7 L. Ed. 2d 417, 82 S. Ct. 468, reh. denied 369 U.S. 808 (1962), the Court held failure to provide allocution was not grounds for collateral attack under § 2255 of Title 28, U.S.C., because the error was not of jurisdictional or constitutional dimension. In Taylor v. Hayes, 418 U.S. 488, 498-99, 41 L. Ed. 2d 897, 94 S. Ct. 2697 (1974), however, the United States Supreme Court noted that, even when summary punishment for criminal contempt is imposed during trial, the court normally first affords the defendant allocution.
The American Bar Association’s Standards for Criminal Justice § 18-6.4 (2d ed. 1980) recommends that sentencing proceedings should “afford to the defendant his or her right of allocution,” and the majority of states provide for allocution by tradition and court rules, if not by case law and statute.
However, even in states such as Kansas, in which allocution is statutorily required, the courts are generally liberal in finding compliance. See 96 A.L.R.2d at 1295, 1329. In People v. Darling, 46 Ill. App. 3d 698, 361 N.E.2d 121 (1977), the court held the trial court did not commit error even though the defendant was not allowed allocution as provided by statute because her attorney was given the opportunity to present evidence in mitigation and suggest sentencing alternatives; the defendant did not specifically make a request to speak; and allocution would not, under the circumstances of the case, have changed the sentence imposed.
Several other jurisdictions agree that allocution is satisfied by counsel’s answer. See 96 A.L.R.2d at 1331. Other jurisdictions have held a motion for new trial fulfills the purpose of allocution. See, e.g., Spigner v. State, 58 Ala. 421, 424 (1877).
Many jurisdictions have held that noncompliance with a mandatory statute is, of course, error but, unless prejudice to the defendant is shown, not reversible error. See, e.g., People v. Allen, 211 Cal. App. 2d 341, 27 Cal. Rptr. 392 (1962); State v. Gallagher, 46 Wash. 2d 570, 283 P.2d 140 (1955); and see 96 A.L.R.2d at 1306, 1335.
Often the reason given for refusing to remand the sentence is that the defendant, on appeal, offered no information which could have resulted in mitigation. See, e.g., State v. Bray, 67 N.J. Super. 340, 170 A.2d 501 (1961).
Remand was refused in Hodge v. State, 29 Fla. 500, 510-11, 10 So. 556 (1892), the court finding from the record no error for which judgment should be reversed and noting that a motion for a new trial had been made. The court stated, “[I]t does look like child’s play to send the case back for the purpose of asking a question to which there can be no answer that will change the prisoner’s fate . . .
Although courts usually refuse to find lack of allocution reversible error, they seldom do so on the grounds of waiver where the accused fails to speak though afforded the opportunity, especially when the right to allocution is mandated by statute. See 21 Am. Jur. 2d, Criminal Law § 531, p. 879; 96 A.L.R.2d at 1324.
There are jurisdictions, however, where failure to provide statutory allocution has been held to require remand of sentencing. See, e.g., Tomlinson v. State, 98 N.M. 213, 647 P.2d 415 (1982).
Several jurisdictions have held representation by counsel who makes a plea for mitigation is not an acceptable substitute for the defendant’s personal allocution rights. See, e.g., People ex rel. Williams v. Murphy, 6 N.Y.2d 234, 189 N.Y.S.2d 182, 160 N.E.2d 480 (1959); State v. Baker, 113 Ohio App. 59, 177 N.E.2d 348 (1960); and see 96 A.L.R.2d at 1331. In Mohn v. State, 584 P.2d 40, 44 (Alaska 1978), the court declared “there is no substitute for the impact on sentencing which a defendant’s own words might have if he chooses to make a statement.”
Kansas has provided a statutory right to allocution since 1868. See State v. Engberg, 194 Kan. 520, 400 P.2d 701 (1965), cert. denied 383 U.S. 921 (1966), overruled on other grounds State v. Duke, 205 Kan. 37, 468 P.2d 132 (1970). In Engberg, a defendant who pled guilty contended allocution was not given him. The statute then in effect was K.S.A. 62-1510 (Corrick), which provided: “When the defendant appears for judgment, he must be informed by the court of the verdict of the jury, and asked whether he has any legal cause to show why judgment should not be pronounced against him.” This statute is very similar to our present K.S.A. 22-3422, which reads:
“When the defendant appears for judgment, he must be informed by the court of the verdict of the jury, or the finding of the court and asked whether he has any legal cause to show why judgment should not be rendered. If none is shown the court shall pronounce judgment against the defendant.”
The court in Engberg noted the modern trend of denying reversal when the defendant was represented by counsel and failed to protest his lack of personal allocution. The court found such lack of protest constituted waiver of allocution rights (although, as discussed earlier, the majority of jurisdictions with statutory allocution actually have held it could not be waived).
The Engberg court noted we refused to remand for resentencing in State v. Lund, 51 Kan. 1, 32 Pac. 657 (1893), holding a defendant had no absolute right to allocution in a misdemeanor case (unlawful sale of liquor). Lund held the defendant was not prejudiced because he moved for a new trial after the verdict and before sentencing, at which time he had the opportunity to make all arguments on why sentence should not be imposed.
The court also discussed State v. Jennings, 24 Kan. 642 (1881), where we remanded for resentencing even though the defendant offered no grounds on appeal for why sentence should not have been imposed. But State v. Engberg noted the State v. Jennings majority stated the decision to remand was made “with great doubts and many misgivings” and was specifically confined to the facts of the case, which were as follows: The defendant was charged with first-degree murder. The jury found him guilty of murder, but failed to state of what degree. The court sentenced the defendant for first-degree murder. No motion for new trial was made, and the record showed not only lack of allocution, but that the defendant was not informed of the verdict.
Engberg held because K.S.A. 62-1510 (Corrick) was found under the procedural section of the criminal code, “failure to comply with its terms is not jurisdictional.” 194 Kan. at 525. It went on to decide the failure to comply with the statute, although of course error, was not reversible error because it did not affect a substantial right of the defendant. It then cited our former statute, K.S.A. 62-1718 (Corrick), which provided: “On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” See K.S.A. 60-2105 for the present rule.
The Engberg court did not discuss two other previous Kansas cases which had also addressed the issue of allocution. In State v. Terry, 98 Kan. 796, 161 Pac. 905 (1916), the record did not show allocution had been afforded a criminal defendant. We held the defendant’s motion for a new trial showed he had been advised of the verdict and given an opportunity to show why it should not be accepted by the court. We held the purpose of the allocution statute then in effect was to show why the judgment was in error, thus ignoring the purpose of pleading mitigation. We also held that we could not assume “from the mere silence of the record” that allocution had not been given. 98 Kan. at 799.
In Miller v. Hand, 190 Kan. 246, 372 P.2d 993 (1962), we denied a petition for habeas corpus, holding there was no showing the defendant was deprived of any constitutional right by the failure to provide allocution.
The above cases were all decided before the legislature implemented, in 1970, K.S.A. 22-3424(4), which supplements the previously discussed K.S.A. 22-3422. The statute clearly states the defendant shall be addressed personally and asked if he would like to make a statement “on his own behalf.” This mandate distinguishes the present law from those cases which have held statements by counsel to be sufficient.
K.S.A. 22-3424(4) states clearly the purpose of allocution is to provide an opportunity for the defendant to present any argument in mitigation of his sentence in addition to raising claims of error. This language supersedes the assumption in those cases such as State v. Lund, 51 Kan. 1, and State v. Terry, 98 Kan. 796, which found arguments made in a motion for new trial fulfilled the purpose of allocution.
There have been only two relevant Kansas appellate cases concerning K.S.A. 22-3424(4). In State v. Fennell, 218 Kan. 170, 542 P.2d 686 (1975), a defendant was sentenced in absentia for escaping from custody, although he at that time was incarcerated in California and evidenced his desire to be present at the sentencing hearing. He claimed error under what is now K.S.A. 1986 Supp. 22-3405 (presence of defendant required) and K.S.A. 22-3424(4). We held there were two purposes for the requirement of defendant’s presence at sentencing: so he may be incarcerated immediately after sentencing and so he may exercise his right of allocution. The court remanded for resentencing, thus implicitly finding the right of allocution to be substantial. 218 Kan. at 178.
The other case involving K.S.A. 22-3424(4) is State v. Osbey, 238 Kan. 280, 710 P.2d 676 (1985), in which the trial court failed, through oversight, to sentence a criminal defendant for her conviction of unlawful possession of a firearm when it sentenced her for first-degree murder. After a motion by the State for correction, the court sentenced defendant six months later for the second conviction. One of the claims of error in the challenge to this resentencing was that the defendant did not receive her K.S.A. 22-3424(4) right to give reasons why she should not be sentenced for unlawful possession of a firearm. Finding the resentencing did not prejudice the defendant, we affirmed the sentence without specifically addressing the issue of allocution. 238 Kan. at 288.
K.S.A. 62-1718 (Corrick) was interpreted in State v. Neff, 169 Kan. 116, 218 P.2d 248, cert. denied 340 U.S. 866 (1950), in which we said: “The statute is not permissive but mandatory. It does not say the court may give judgment without regard to technical errors or defects, etc. It says, \ . . the court must give judgment.’ ” 169 Kan. at 129. In State v. Hammon, 84 Kan. 137, 113 Pac. 418 (1911), we declared the statute to be “an expression of the sound and sensible rule that error, to be availing, must be injurious in fact as well as in theory.” 84 Kan. at 146.
We hold the provision in K.S.A. 22-3424(4) establishes the right of a defendant to allocution, which right is not waived by the defendant’s silence or by argument of counsel. In this case, however, Webb filed a motion to modify his sentence and never mentioned denial of his right to allocution in the pleadings or argument. We hold Webb’s failure to raise the issue in his motion to modify the sentence constitutes waiver of his statutory right to allocution.
The second issue on appeal is whether the sentencing court erred in not considering the factors set out by K.S.A. 21-4606(2) and not considering Webb’s individual circumstances pursuant to K.S.A. 1986 Supp. 21-4601 in imposing the lowest minimum sentence pursuant to K.S.A. 21-4606(1). The statutes read as follows:
K.S.A. 1986 Supp. 21-4601:
“This article shall be liberally construed to the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangerous offenders shall be correctively treated in custody for long terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, fine or assignment to a community correctional services program whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender, or shall be committed for at least a minimum term within the limits provided by law.”
K.S.A. 21-4606(1) and (2):
“(1) In sentencing a person to prison, the court, having regard to the nature and circumstances of the crime and the history, character and condition of the defendant, shall fix 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.
“(2) The following factors, while not controlling, shall be considered by the court in fixing the minimum term of imprisonment:
“(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.”
This court will not, except in special circumstances showing abuse of discretion, set aside a sentence which is within statutory limits. State v. Johnson, 239 Kan. 124, 125, 716 P.2d 192 (1986).
K.S.A. 1986 Supp. 21-4601 states the objectives of the corrections system, but does not require the sentencing court to specifically consider those objectives as it must the factors in K.S.A. 21-4606. See State v. Jennings, 240 Kan. 377, 381, 729 P.2d 454 (1986).
Except for mentioning Webb’s drinking problem, the court did not specify its reasons for the sentence, but instead stated it was incorporating the presentence report into the record. Webb contends this is not sufficient to show the court sufficiently considered the statutory factors set out in K.S.A. 21-4606.
The presentence report noted that Webb, at 22, had previous offenses against him which included theft, obstruction of legal process, DUI, and four counts of forgery for which he was still on probation. The report found Webb had a poor work record and a serious marijuana and alcohol abuse problem. He had been given many opportunities to change his criminal behavior and end his substance abuse, but failed to do so. The court services officer recommended a lengthy term of incarceration, finding little likelihood that Webb would discontinue his criminal conduct. He recommended the sentences imposed run consecutive to each other and to sentences imposed for prior convictions.
We held in State v. Buckner, 223 Kan. 138, 574 P.2d 918 (1977), that, when a sentence exceeds the statutory minimum, a court is well advised to give a detailed statement of those factors considered by the court in order to aid the appellate court in determining whether discretion was abused.
In Buckner, we held, based on the particular facts and circumstances of the case, including a generally favorable presentence report, that the sentencing court had abused its discretion and remanded for sentencing by a different court. However, the failure to make an original detailed report does not necessarily show an abuse of discretion. Each case must be considered on its own facts. State v. Bennett, 240 Kan. 575, 578, 731 P.2d 284 (1987).
In Jennings, we did not find an abuse of discretion where the sentencing judge did not list all the statutory factors but specifically stated he had considered them. In the present case, the court did not specifically mention the statute but did incorporate the presentence report, which itself addressed each of the seven factors given in K.S.A. 21-4606(2). Since the presentence report contained the seven factors, we find the court substantially complied with K.S.A. 21-4606.
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The opinion of the court was delivered by
McFarland, J.:
Donald A. Dillon appeals his jury trial convictions of burglary (K.S.A. 21-3715), felony theft (K.S.A. 1986 Supp. 21-3701), and transporting an open container (K.S.A. 41-804). The Court of Appeals, in an unpublished opinion filed July 9, 1987, reversed the open container conviction and affirmed the other two convictions. The matter is before us on defendant’s petition for review.
The only issues before us relate to the propriety of the district court’s setting aside, sua sponte, the defendant’s plea of nolo contendere entered on the burglary charge and requiring defendant to go to jury trial on all three charges. The facts of the offenses are of no import to the narrow issues before us. It is sufficient to say the charges arise from the May 10, 1985, burglary of and theft from the Kenneth Winslow farm home in Jewell County. As the result of a plea bargain agreement, the defendant entered a plea of nolo contendere to the burglary charge on September 5, 1985. In fulfillment of the plea bargain the two remaining charges were dismissed on motion of the State. Sentencing was set for October 7, 1985, and a presentence investigation report was ordered.
In the presentence investigation report, defendant’s version of the offense was given as follows:
“ ‘The night I got arrested I was heading to Burr Oak, Kansas. I came upon the Winslow place and saw some people around that place. So I went on up and pulled into the pasture. That’s where I made my mistake. I should of [sic] kept on going. While I was sitting there to see who would come out of the place, Windslows [sic] came up and stopped me and asked what I was doing. I said I was just cruising. They called the sheriff and the cops picked me up and the next thing I knew I was in jail. I never touched anything but they claim they saw me come out of their house. It’s my fault. I’m not denying I should of [sic] been more aware of what was going on. I should oí [sic] never even stopped. It would of [sic] cost me more money to fight it than it would to just take it (the charges).’ ”
When the case was called for sentencing, the following transpired:
“THE COURT: [Addressing the defendant.] You were before this court on September 5th, at which time you entered a plea of guilty to an information charging you with a burglary—
“MR. THULL: [Attorney for defendant.] (Interrupting) Your Honor, I believe it was a no contest plea, if I recall correctly, and he was found guilty on a no contest plea.
“THE COURT: Yes. I’m sorry. You entered a plea of no contest to the charge of burglary. I heard the statements of the State as to the evidence that would be brought against you. You did not contest that evidence. And I did then find that you were guilty. I ordered a presentence report which I have received. Have you seen a copy of it, Mr. Thull?
“MR. THULL: I have received a copy, Your Honor, and I have had a chance to review it with my client.
“THE COURT: And on the very first page of the report, Mr. Dillon, is your version of this offense. And what you’re saying in this is that you did not do it. That it would cost me more money to fight it than to just take it. So you decided to take it. Mr. Dillon, I cannot accept that. And, therefore, I am setting aside your plea of guilty — or no contest, and I am setting this matter for trial, a trial by jury. I am not going to have you or any other defendant appearing before this court and telling me that you did something and then turning around and saying you did not do it. You either did it, or you didn’t do it. And if you didn’t do it, you should not say you did. And if you did do it, you should be punished. And, therefore—
“MR. THULL: (Interrupting) Your Honor, I beg the court’s pardon, but we entered a plea of no contest—
“THE COURT: (Interrupting) I know what you did. And he is now saying that he did not do it. He also told me he did not contest the statements that the county attorney—
MR. THULL: (Interrupting) We don’t contest the fact, Your Honor, that there was in fact a burglary and a theft at that residence. We don’t contest that.
“THE COURT: There is more to the statements than that, Mr. Thull. Mr. Miller, how long would it take to try this matter?”
On the State’s motion, the felony theft and open container counts were reinstated. In a jury trial, the defendant was convicted of all three counts.
The trial court sentenced defendant to a term of one to five years for burglary, one to five years for felony theft, and six months for transporting an open container. The sentences were ordered to run concurrently but, upon defendant’s application, the court placed him on probation for a period of three years.
On appeal defendant challenges whether the court had authority to set aside sua sponte the nolo contendere plea and require him to go to jury trial on all three counts, said action being taken as a result solely of his denial of guilt to the probation officer preparing the presentence report. The open container conviction was reversed on other grounds by the Court of Appeals and the propriety of that action is not before us. Inasmuch as the sentences for the burglary and felony theft were for the same term and run concurrently, and defendant was immediately placed on three years’ probation, it is unlikely that the felony theft conviction could result in additional time being served. Nevertheless, some prejudice could arise to the defendant from having two felony convictions if he properly should have only one.
K.S.A. 1986 Supp. 22-3210 sets forth the procedures for accepting and withdrawing guilty and nolo contendere pleas:
“(a) Before or during trial a plea of guilty or nolo contendere may be accepted when:
“(1) The defendant or counsel for the defendant enters such plea in open court; and
“(2) in felony cases the court has informed the defendant of the consequences of the plea and of the maximum penalty provided by law which may be imposed upon acceptance of such plea; and
“(3) in felony cases the court has addressed the defendant personally and determined that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea; and
“(4) the court is satisfied that there is a factual basis for the plea.
“(b) In felony cases the defendant must appear and plead personally and a verbatim record of all proceedings at the plea and entry of judgment thereon shall be made.
“(c) In traffic infraction and misdemeanor cases the court may allow the defendant to appear and plead by counsel.
“(d) A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged. To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.”
Thus, before a plea of nolo contendere may be accepted, K.S.A. 1986 Supp. 22-3210 requires the trial court to inform the defendant of the consequences of the plea and the maximum penalty provided by law which may be imposed upon the acceptance of such a plea. The court must also address the defendant personally and determine that the plea is made voluntarily and with understanding of the nature of the charge and the consequences of the plea. The court must also determine that there is a factual basis for the plea. This procedure basically follows Rule 11 of the Federal Rules of Criminal Procedure, compliance with which is held to be mandatory upon the federal courts in McCarthy v. United States, 394 U.S. 459, 22 L. Ed. 2d 418, 89 S. Ct. 1166 (1969), and which procedure is fastened upon the state courts as a requirement of due process. Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969); White v. State, 222 Kan. 709, 713, 568 P.2d 112 (1977). K.S.A. 22-3210 was enacted following the Boykin decision. See Widener v. State, 210 Kan. 234, 237-38, 499 P.2d 1123 (1972).
The entering and acceptance of the plea of nolo contendere were thoroughly and carefully done and in full compliance with the provisions of K.S.A. 1986 Supp. 22-3210. The statute provides (1) a plea of guilty or nolo contendere may be withdrawn for good cause shown and within the trial court’s discretion before sentencing, and (2) the court may set aside the judgment of conviction after sentencing to correct manifest injustice.
K.S.A. 1986 Supp. 22-3210(d) does not speak of setting aside a plea but rather how a plea may be withdrawn. Webster’s New World Dictionary 1633 (2nd College ed. 1980) contains the following definition:
“withdraw - 1 a: to take back or draw back; remove b: to remove from use, consideration etc. 2: to retract or recall (a statement, etc.) . . . .”
Inasmuch as a defendant enters a plea of guilty or nolo contendere it would appear only a defendant making such a plea may seek to withdraw it under the statute.
The Court of Appeals did not hold that K.S.A. 1986 Supp. 22-3210(d) authorized the district court’s action of setting aside the plea herein. Rather, the Court of Appeals reasoned:
“We disagree with defendant’s position that the court’s authority to set aside his plea of nolo contendere was limited by K.S.A. 1986 Supp. 22-3210(d). In our view, the trial court possessed inherent authority to set aside defendant’s plea of nolo contendere after learning from the presentence report that he contested the material facts offered to establish his guilt on the burglary charge. To hold otherwise would permit a defendant to manipulate the court by pleading ‘no contest’ and, after leaving the courtroom, proclaiming his or her innocence. The court would be powerless to prevent abuse of the plea acceptance process and to uphold the integrity of its proceedings.” p. 9.
The effect of this reasoning would virtually abolish any reason to plead nolo contendere. If a defendant wishes to admit his guilt he can simply plead guilty. For a variety of reasons a defendant may wish to accept a plea bargain or not be on record as pleading guilty. In North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970), defendant was indicted for first-degree murder, the penalty for which was death unless the jury recommended life imprisonment. Defendant claimed he was innocent. He agreed, however, to plead guilty to second-degree murder because he was otherwise faced with the threat of a death penalty if the case went to trial. There was substantial evidence that indicated Alford’s guilt. He was sentenced to 30 years’ imprisonment. The Fourth Circuit Court of Appeals reversed, holding that the guilty plea was involuntary because of the defendant’s fear motivation. The U.S. Supreme Court vacated the judgment of the Fourth Circuit, holding, inter alia, there was no constitutional error in accepting a guilty plea which contained a protestation of innocence when the defendant intelligently concluded that h is interest required entry of a guilty plea and the record before the judge contained strong evidence of actual guilt. The Court said:
“The issue in Hudson v. United States, 272 U.S. 451, [71 L.Ed. 347, 47 S.Ct. 127] (1926), was whether a federal court has power to impose a prison sentence after accepting a plea of nolo contendere, a plea by which a defendant does not expressly admit his guilt, but nonetheless waives his right to a trial and authorizes the court for purposes of the case to treat him as if he were guilty. The Court held that a trial court does have such power, and, except for the cases which were rejected in Hudson, the federal courts have uniformly followed this rule, even in cases involving moral turpitude. [Citations omitted.] Implicit in the nolo contendere cases is a recognition that the Constitution does not bar imposition of a prison sentence upon an accused who is unwilling expressly to admit his guilt but who, faced with grim alternatives, is willing to waive his trial and accept the sentence.
“These cases would be directly in point if Alford had simply insisted on his plea but refused to admit the crime. The fact that his plea was denominated a plea of guilty rather than a plea of nolo contendere is of no constitutional significance with respect to the issue now before us, for the Constitution is concerned with the practical consequences, not the formal categorizations, of state law. [Citations omitted.] Thus, while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.
“Nor can we perceive any material difference between a plea that refuses to admit commission of the criminal act and a plea containing a protestation of innocence when, as in the instant case, a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt.” 400 U.S. at 35-37. (Emphasis supplied.)
Fed. R. Crim. Proc. 11(e) allows a court, upon notification that a defendant’s guilty plea is the result of a plea bargain with the government, to do one of three things: (1) accept it; (2) reject it; or (3) defer its decision until there is an opportunity to review the presentence report. United States v. Blackwell, 694 F.2d 1325, 1338 (D.C. Cir. 1982). The latter choice may be applied only if the court has defendant’s consent to review the presentence report. United States v. Sonderup, 639 F.2d 294, 295 (5th Cir.), cert. denied 452 U.S. 920 (1981); United States v. Harris, 635 F.2d 526, 528 (6th Cir. 1980), cert. denied 451 U.S. 989 (1981).
Rule 11 aside, in United States v. Cruz, 709 F.2d 111 (1st Cir. 1983), the court held that once a trial court unconditionally accepted a plea agreement, it had no authority to later reject that agreement sua sponte. In Cruz, the court was faced with the issue of whether a district court can unqualifiedly accept a bargained guilty plea and subsequently reject it on the basis of information in the defendant’s presentence investigation report. The court said:
“There is no authority for the district court’s actions in the instant case. Of course, the court initially had discretion to accept or reject the plea agreement or defer determination until, with the defendant’s permission, it had examined the presentence report. See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). But, once the court accepted the agreement, thereby binding the defendant and prosecution, it could not simply change its mind on the basis of information in the presentence report, at least where that information revealed less than fraud on the court.” 709 F.2d at 114-15.
The same issue was faced in United States v. Holman, 728 F.2d 809 (6th Cir.), cert. denied 469 U.S. 983 (1984), where the court said:
“We now turn to whether the court, having unqualifiedly accepted the plea agreement, could subsequently reject the bargain based upon information contained in the presentence report.
“In this case the subsequent rejection of the bargain was particularly inappropriate, since the court based its action on Holman’s presentence report. See Cruz, 709 F.2d at 115. As stated above, if the court desired to consider the presentence report in making its decision it should have expressly deferred its decision at the time the plea was offered.” 728 F.2d at 812-13.
In United States v. Blackwell, 694 F.2d 1325, 1338 (D.C. Cir. 1982), the court said:
“Robinson’s plea to the drug charge was expressly based on the government’s promise to dismiss the gun charge at the time of sentencing. Once she accepted that plea on the record, we believe that the trial judge was also without authority to vacate the plea and order reinstatement of the gun charge. Although, as pointed out in Santobello, 404 U.S. at 262, 92 S.Ct. at 499, there is ‘no absolute right to have a guilty plea accepted,’ and ‘[a] court may reject a plea in exercise of sound judicial discretion,’ once a judge has accepted a plea and bound the defendant to it, she cannot, except possibly for fraud, refuse to carry through on the bargain.”
The court reasoned:
“If compliance with the terms of a plea bargain were to be dependent on some implied but unannounced conditions of good behavior between the acceptance of the plea and the imposition of the sentence, the advantages to the defendant of pleading guilty would be substantially reduced. Rule 11 appears to speak unequivocally; if the plea is accepted, the judge does not announce any deferral of that acceptance, and the defendant adheres to the terms of the bargain, all parties to it are bound. Although the rule does permit deferral of the decision to accept or reject the plea, usually for the purpose of viewing the presentence report, the mere postponement of the sentencing itself to a future date does not authorize the judge to remake or vacate the plea bargain for whatever reasons later seem appropriate to her.” 694 F.2d at 1339.
We conclude that, like the federal decisions thereon, the court’s power to set aside, sua sponte, a plea of nolo contendere should be limited to a situation where a fraud has been perpetrated on the court in the plea process. There is nothing in the case before us even approaching a fraud on the court in the making or acceptance of the plea. Inasmuch as the district court lacked authority to set aside the plea and order the defendant to trial on all counts, the conviction of felony theft must be reversed. The usual course of procedure would be to remand the case for resentencing on the burglary conviction on the plea. However, defendant’s counsel has expressly requested that the jury trial conviction on the burglary charge and the sentence imposed thereon not be disturbed, thereby avoiding an exposure by the defendant to a new and, perhaps, greater sentence. The State has not objected to such a procedure and we see no reason why the request should not be granted.
By virtue of the result reached herein on the first issue, the defendant’s second issue asserting double jeopardy need not be determined.
The judgments of the district court and Court of Appeals are affirmed in part and reversed in part. | [
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In April 1987, a complaint was filed with the Disciplinary Administrator against William E. Glenn, of Topeka, an attorney admitted to practice law in the State of Kansas, asserting mismanagement of the Estate of Vergie E. Glenn, Deceased. Respondent was the executor of the estate and the initial complaint was filed by respondent’s sister, Rosie L. Neal. Subsequently, a second complaint was filed by the legal department of Merchants National Bank of Topeka asserting alteration of bank documents and fraudulent management of the affairs of the same estate by respondent.
In November 1987, respondent was convicted of four counts of forgery in connection with his handling of the Vergie E. Glenn Estate. Following an investigation by the Office of the Disciplinary Administrator, William E. Glenn advised the Court on January 27, 1988, that he desired to surrender his license and privilege to practice law in the State of Kansas pursuant to Supreme Court Rule 217 (1987 Kan. Ct. R. Annot. 115).
The Court, having reviewed the record of the Office of the Disciplinary Administrator, finds that the surrender of respondent’s license should be accepted and that respondent should be disbarred.
It is Therefore Ordered that William E. Glenn be and he is hereby disbarred from the practice of law in the State of Kansas.
It is Further Ordered that the costs herein be assessed to the respondent and that respondent forthwith comply with Supreme Court Rule 218 (1987 Kan. Ct. R. Annot. 116). | [
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The opinion of the court was delivered by
Lockett, J.:
Plaintiff, Jeffrey C. Wicina, a student athlete attending a private high school, was injured during a football game. Wicina filed a negligence action against his high school and various other defendants alleging a breach of duty for (1) failure to provide disability insurance and (2) failure to advise and inform the plaintiff of the extent of the insurance coverage provided. The district court sustained the defendants’ motion to dismiss, K.S.A. 60-212(b)(6), finding that there was no duty of the high school or any of the named defendants to provide disability insurance or to inform plaintiff of the extent of insurance coverage provided. We agree. In addition, we find that the legislature’s public policy expressed in K.S.A. 72-8416, making discretionary the purchase of insurance for students against loss resulting from sickness, bodily injury, or death by accident, also applies to private schools.
Jeffrey C. Wicina was a student at Bishop Miege High School. While competing in a sophomore football game, he received severe injuries rendering him permanently quadriplegic. The defendants’ student medical insurance policy did not provide lifetime disability coverage for student athletes.
Plaintiff alleges that, prior to 1973, an insurance policy was made available to Bishop Miege through the State High School Activities Association which would have covered lifetime care expenses for catastrophically injured student athletes. This policy was discussed and recommended to area athletic programs in the summer meetings of the Kansas State High School Activities Administrators. Having knowledge of this coverage, defendants affirmatively elected not to purchase it.
After his injury, Wicina filed a negligence suit against the high school, the Catholic Archbishop, the school superintendent, the co-principals of the school, and the insurance agent responsible for advising the school. The petition alleged that:
“The defendants, by reason of their professional capacity and by reason of their conduct, had a duty and obligation to provide for the protection and well being of the students who attended Bishop Miege High School and participated in the educational and athletic programs sponsored by the school.”
“The defendants, and each of them, were negligent in the exercise of their professional duties in failing to give proper and adequate advice with regard to insurance and failing to properly insure students for injury incurred as a result of school activities and in failing to properly advise and inform the students and their parents and guardians of the facts and circumstances surrounding insurance protection provided to the students.”
The petition further alleged that defendants’ failure to purchase disability insurance caused plaintiff financial loss.
The defendants filed a motion to dismiss, K.S.A. 60-212(b)(6), claiming that the petition stated no claim for which relief could be granted. The motion to dismiss was sustained by the district court and plaintiff appeals.
When a district judge sustains a motion to dismiss a plaintiff s petition, we are under a duty to examine the petition to determine whether its allegations state a claim for relief on any possible theory. It is not necessary for the petition to spell out a legal theory for relief so long as an opponent is apprised of the facts that entitle the plaintiff to relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim. Beck v. Kansas Adult Authority, 241 Kan. 13, 25, 735 P.2d 222 (1987).
In Kansas, negligence is never presumed. 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) that he or she was damaged by the negligence. An accident which is not to be foreseen by the exercise of reasonable care and prudence is not sufficient grounds for a negligence action. Actionable negligence must be based on a breach of duty. Whether duty exists is a question of law. Whether the duty has been breached is a question of fact. Further, whether there is a causal connection between the breached duty and the injuries sus tained is also a question of fact. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983).
In order to determine if Wicina’s petition states a negligence claim, the initial inquiry is whether, as a matter of law, the defendants owe a duty to plaintiff. The district judge sustained defendants’ motion to dismiss finding that the defendants had no duty to purchase or to advise the plaintiff about disability insurance. The district court’s decision was based in part on Friederich v. Bd. of Educ., 59 Ill. App. 3d 79, 375 N.E.2d 141 (1978), which determined the duty of a public school under an Illinois statute.
In Friederich, the Illinois Court of Appeals rejected arguments similar to those presented in this appeal. The plaintiff, a public school student athlete, was seriously injured in a football game and suffered permanent disability. He filed a tort action against the Board of Education alleging (1) that when he was required to pay a fee for an insurance premium to cover the expense of medical treatment for injury sustained through participation in the athletic program, it then became the duty of the defendant to provide “adequate” insurance; (2) that defendant was negligent in failing to advise plaintiff what the limits of coverage were; and (3) that defendant was negligent in failing to foresee that plaintiff might sustain permanent injuries. 59 Ill. App. 3d at 84.
The relevant Illinois statute provided that a school board “may, in its discretion, provide medical or hospital service, or both, through accident and health insurance.” Ill. Rev. Stat. ch 122, ¶ 22-15 (1975). The court held that, because there was no statutory authority to provide disability insurance, no duty existed since any duty to insure could not exceed the scope of the statute. 59 Ill. App. 3d at 81.
The court further held that, even if the Board were liable in tort under the common law, the Illinois Tort Immunity Act, Ill. Rev. Stat. ch. 85, ¶ 1-101 et seq. (1975), exempted the board from liability under the discretionary function exception. 59 Ill. App. 3d at 83-84.
Friederich, however, is not dispositive of our issues because: (1) Friederich attended a public school, (2) he paid a fee to obtain medical coverage, and (3) the Illinois statute did not allow the school discretion to purchase disability insurance. It is instruc tive to examine our statute regarding a public school’s purchase of insurance, K.S.A. 72-8416, which provides:
“The board of education of any school district may purchase insurance contracts to insure against loss resulting from sickness or bodily injury or death by accident, on the part of students who are injured on school premises, or during school sponsored activities.” (Emphasis supplied.)
The statute permits but does not require the board of education of any public school district to purchase insurance to cover against any loss. The boards of education are specifically authorized by the statute to purchase insurance at their discretion. We must first determine whether the policy of this legislative enactment should be extended to private schools.
Under our constitution the primary law-making body is the legislature. Courts must respect legislative expressions when determining or when forming public policy. Given the right to form public policy by the legislature, courts are faced with three different situations: (1) The legislature has clearly declared the public policy of the state; (2) the legislature, though not directly declaring public policy, has enacted statutory provisions from which public policy may reasonably be implied; or (3) the legislature has neither made a clear statement of public policy nor can it be reasonably implied.
When it enacted K.S.A. 72-8416, the legislature granted discretion to the boards of education of public school districts to determine whether or not they should expend public money to purchase insurance for students against loss resulting from sickness, bodily injury, or accidental death. We find that, when enacting K.S.A. 72-8416, the legislature stated the policy for public schools and also implied that the same public policy be extended to private schools.
In both Illinois and Kansas there is a difference in the liability exposure of a private and a public school. If Wicina had been a student of a public school, the decision of the board of education of the school district would have been within the exceptions to liability provided by the Kansas Tort Claims Act, K.S.A. 75-6101 et seq., to local government entities and their employees. Since the Kansas Tort Claims Act does not provide private schools protection, we must examine Wicina’s claims to determine if a duty existed.
Plaintiff stated in his petition that once a private school exercises its discretion and purchases insurance, the school becomes responsible for obtaining disability coverage. Plaintiffs first theory is based on K.S.A. 72-8501, which provides:
“It is the intent and purpose of the legislature that the practice of teaching and its related services, including school administration and supervisory services, shall be designated as professional services. Teaching and school administration are hereby declared to be professions in Kansas with all the similar rights, responsibilities, and privileges accorded other legally recognized professions.”
Plaintiff argues that the statute imposes a general duty on professional educators to perform their educational and related tasks according to the standard of care of reasonable persons in the same field. He contends that this statutory duty was breached and the plaintiff was injured because the defendants purchased insurance that failed to provide complete coverage for his injury and resulting disability. Plaintiff proposes to establish the statutory standard of care through expert testimony, i.e., other educators in the area. Plaintiff cites various cases in support of this argument; however, these cases focus on educational malpractice or negligence in the act of teaching and are therefore distinguishable from the duty to properly insure.
Although plaintiff concedes that the school had never specifically contracted to insure the students, he reasons that such an obligation arose when the defendants, as professionals, contracted to provide education and instruction, including extracurricular activities, to students. Plaintiff provides no supporting facts or authority for this theory. Under well-established contract principles, since the contract has no requirement for insurance, there is nothing for the court to interpret, nor can the court make a new contract for the parties under the guise of construction. Quenzer v. Quenzer, 225 Kan. 83, 85, 587 P.2d 880 (1978).
Other cases have extended the duty of teachers and schools beyond merely the practice of teaching. However, the majority of these cases involve the duty of the school to provide a reasonably safe environment for the students. In Paulsen v. U.S.D. No. 368, 239 Kan. 180, 717 P.2d 1051 (1986), where a student brought an action against a teacher and the school district for injuries suffered in a woodworking class, this court appeared to agree with the lower court’s finding that a teacher owed a student a duty to properly supervise him and that the school district owed the student the duty of providing him with a reasonably safe environment. See also Rhea v. Grandview School Dist., 39 Wash. App. 557, 560, 694 P.2d 666 (1985) (school district owes duty to its pupils to anticipate reasonably foreseeable dangers and to take precautions protecting children in its custody from such dangers).
Plaintiff cites no authority holding that a school board or teacher’s duty to insure or advise derives merely from professional status. Plaintiff does cite a number of cases where insurance agents have been held liable in tort for negligence in arranging for insurance coverage. Keith v. Schiefen-Stockham Insurance Agency, Inc., 209 Kan. 537, 498 P.2d 265 (1972); Marshel Investments, Inc. v. Cohen, 6 Kan. App. 2d 672, 634 P.2d 133 (1981). However, those cases discuss an insurance agent’s duty to provide proper insurance based on contract and agency principles. Professional educators and school administrators are not required to exercise the same standard of care as an insurance agent when obtaining medical insurance for their students.
Plaintiff s second theory is based on the duty of a volunteer and the Restatement (Second) of Torts § 323 (1963). Wicina argues that, even though there may be no duty to purchase insurance, once the school voluntarily undertook to insure, there was a duty to use reasonable care in the purchase. Plaintiff cites Maddock v. Riggs, 106 Kan. 808, 190 Pac. 12 (1920), for authority. Plaintiff s reliance is misplaced. In Maddock, the defendant Riggs volunteered to remit Maddock’s life insurance premiums to a fraternal organization. Riggs failed to remit for one month, Maddock’s policy lapsed, and Riggs failed to notify Maddock that his policy had lapsed. After Maddock’s death, his beneficiary brought suit alleging negligence in failing to properly remit. Citing agency and gratuitous bailment principles, this court found that Riggs was negligent since he had failed to do something he was required to do. 106 Kan. at 811-16. Maddock is distinguishable from this case because these defendants were not required to purchase any insurance. Further, after defendants volunteered to insure, they properly purchased the medical insurance and paid the premiums. Wicina received the benefits he was entitled to under the defendants’ insurance contract.
The Restatement (Second) of Torts § 323 provides:
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.”
This section of the Restatement was originally adopted by this court in Circle Land & Cattle Corp. v. Amoco Oil Co., 232 Kan. 482, 490, 657 P.2d 532 (1983). There, plaintiffs, owners of International Harvester irrigation machinery, contacted a product specialist for Amoco Oil for a recommendation on what type of oil should be used in the machines. Defendant International Harvester conducted a surveillance program and initially determined that the oil recommended by Amoco was suitable. Subsequently, damage resulted to the machines from the type of oil recommended. The court then reasoned that, although International Harvester had no duty to conduct the surveillance program, once it undertook to do so, it owed plaintiffs a duty of reasonable care.
This section of the Restatement was later applied in Burgess v. Perdue, 239 Kan. 473, 721 P.2d 239 (1986). Perdue, a physician, while under no duty to obtain the plaintiff s consent to an autopsy of her son, nevertheless requested consent and then failed to relay the qualified consent to the coroner. The court found that, by voluntarily undertaking to obtain consent, the physician assumed a duty to relay the plaintiff s limitation to the autopsy. 239 Kan. at 481. In both Circle Land and Burgess, however, the duty imposed by the court arose out of an affirmative undertaking by the defendant, i.e., testing the engines and obtaining the consent, upon which the plaintiff relied.
The requirements of Restatement (Second) of Torts § 323 are not met in this case. Here, the school voluntarily provided medical insurance coverage to its students. Plaintiff does not allege that the defendants were negligent when the decision was made to purchase medical insurance, but that they were negligent when they failed to obtain the additional disability coverage. We disagree. The defendants’ failure to purchase disability insurance did not increase the risk of the plaintiff being injured while playing football nor did the plaintiff rely on the defendants’ promise to purchase disability insurance when he decided to play football. Therefore, the Restatement § 323 does not apply here because plaintiff did not rely on any affirmative action taken by the defendants.
In Friederich, the Illinois court reached a similar conclusion and rejected the application of the Restatement. The court found that the risk of injury was not increased nor was the physical harm suffered by the plaintiff caused by the school’s failure to provide disability insurance. 59 Ill. App. 3d at 83.
Finally, there are important public policy considerations that forbid this court from imposing upon a private school a greater duty than that imposed by the legislature on public schools. If plaintiff s arguments were adopted, private schools that refuse to purchase any type of medical insurance would owe no duty to an injured or disabled student and would not be subject to liability. Private schools purchasing insurance would face the prospect of actions when the insurance coverage was not broad enough or the amount of coverage was not sufficient to compensate the injured student. Private schools would be forced to take the safe course and would simply refuse to purchase any insurance for their students.
Prosser has stated that “ ‘duty’ is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.” Prosser, Law of Torts § 53, pp. 325-26 (4th ed. 1971). We feel sympathy for the severe injuries suffered by this plaintiff. However, there are dangers and risks inherent in the game of football and those who play the game encounter these risks voluntarily. It is fundamental that before there can be any recovery in tort there must be a violation of a duty owed by one party to the person seeking recovery. Koplin v. Rosel Well Perforators, Inc., 241 Kan. 206, 212, 734 P.2d 1177 (1987) (citing Malone v. University of Kansas Medical Center, 220 Kan. 371, 374, 552 P.2d 885 [1976]; Black’s Law Dictionary 1660-61 [4th ed. rev. 1968]; 74 Am. Jur. 2d, Torts § 8; 86 C.J.S., Torts § 6). This duty can arise by common law, by statute, or by contract. It is clear under the facts of this case that no common-law, statutory, or contractual duty existed to properly insure or to advise the plaintiff regarding medical insurance purchased by the defendants for the plaintiff.
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The opinion of the court was delivered by
Allegrucci, J.:
The plaintiff, Kelly McKee, is a minor, suing by and through his father and next friend, Jerry McKee. The plaintiff alleges that the defendant Reiss & Goodness Engineering, Inc., was negligent in not properly inspecting the construction of the Pleasanton, Kansas, swimming pool, and that the remaining defendants were negligent for failing to properly construct the swimming pool. The petition alleges that, as a result of the negligent actions of the defendants, Kelly McKee received serious injuries in an accident at the swimming pool.
The construction of the swimming pool was authorized by the City of Pleasanton, Kansas, which owned and operated the pool after its construction. Adolph Reiss and Charles Goodness, d/b/a Reiss & Goodness Engineering, Inc., prepared the plans and specifications for the swimming pool. On March 7,1974, the City of Pleasanton contracted with Jack N. Davis, d/b/a Spartan of Wichita, and Marvin G. Allen Builders, Inc., for the construction of the swimming pool. The construction of the swimming pool was undertaken primarily by Davis until September 16, 1974, when Davis’ company, Spartan of Wichita, forfeited its corporate charter for failure to file its annual report and to pay franchise taxes; the City of Pleasanton declared Davis in default. The pool was completed by Marvin G. Allen Builders, Inc., and Davis’ bonding company, United States Fidelity and Guaranty Company (USF&G). The swimming pool was completed and turned over to the City of Pleasanton on June 2, 1976.
The plaintiff s petition alleges that, on June 13, 1980, Kelly McKee received serious injuries after slipping on the coping tile used around the edge of the swimming pool. On December 31, 1986, the Linn County District Court granted summary judgment against the plaintiff on behalf of defendants Reiss & Goodness, Marvin G. Allen Builders, Inc., and USF&G. On January 29, 1987, the district court also granted summary judgment in favor of defendant Davis, d/b/a Spartan of Wichita. Additional facts will be stated as necessary for determination of the issues raised by the plaintiff on appeal.
Summary judgment is appropriate if the facts are not in dispute and the only question is one of law. In Hunt v. Dresie, 241 Kan. 647, 740 P.2d 1046 (1987), the rules applicable to summary judgment were summarized as follows:
“Summary judgment is proper if no genuine issue of fact remains, giving the benefit of all inferences which may be drawn from the admitted facts to the party against whom judgment is sought. A trial court, in ruling on motions for summary judgment, should search the record to determine whether issues of material fact do exist. When a motion for summary judgment is filed, a mere surmise or belief by the trial court, no matter how reasonably entertained, that a party cannot prevail upon a trial will not justify refusing that party his day in court. When summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment.” 241 Kan. at 652-53.
The plaintiff on appeal contends that, as to the defendant Reiss & Goodness Engineering, his claim is not based upon design negligence but, rather, negligent inspection. The plaintiffs statement of the issues and argument are somewhat misleading. He fails to specify what material facts are at issue. He instead contends that summary judgment is not proper because the trial court failed to consider the evidence in a light most favorable to the plaintiff. He further contends that there exists a genuine issue of material fact because the defendants were negligent in not constructing the pool in compliance with the plans and specifications and in not properly inspecting the construction of the pool. Plaintiff is confusing the issues of fact with the issues of law. It is not the facts that are in dispute but, rather, the trial court’s interpretation and application of the law to the facts. Reiss & Goodness Engineering, on the other hand, argue that the plaintiff failed to present expert testimony that it had violated the architectural community standards and, therefore, failed to establish that Reiss & Goodness Engineering had committed professional negligence.
Although the district court’s ruling touched briefly upon other matters, the essence of the court’s decision was that the plaintiff had failed to present any expert evidence indicating that the defendants had negligently designed and constructed the swimming pool. During the course of the construction of the swim ming pool, red quarry tile was substituted for the concrete coping originally called for by the plans and specifications for the pool. The main issue in the present case is whether the trial court properly found that the plaintiff had failed to provide satisfactory expert evidence that the use of quarry tile was a deviation from the defendants’ obligation to use reasonable care in the design, inspection, and construction of the swimming pool.
As the trial court’s memorandum decision notes, the plaintiff retained two expert witnesses to testify regarding the use of the quarry tile coping. The first expert retained by the plaintiff was George W. Forman, a professor of mechanical engineering at the University of Kansas. Forman’s testimony was limited to a comparison of the relative slipperiness of a piece of quarry tile to a piece of concrete coping. Mr. Forman conducted no quantitative measurements and did not attempt to estimate the coefficient of friction, but testified that the tile was not as slip resistant as the concrete coping. Forman expressly refused to testify as an architect or expert on the design and construction of swimming pools.
“Q. ... I understand you are not testifying as a man who can construct pools, are you?
“A. Correct, I am not.
“Q. And you are not testifying that you are as a professional engineer for the construction of pools?
“A. Right.
“Q. And you are not testifying as a person or professional, or professional engineer who goes out and selects coping tile, or anything of that nature?
“A. Correct.
“Q. So, we’re testifying today, and what you would feel comfortable in testifying today or in the future would be the relative slickness between these two pieces of tile?
“A. Yes.
“Q. And that’s the only things that you would feel comfortable in testifying about?
“A. That’s correct.”
Forman explained the procedure he used to determine the relative slickness of the quarry tile and the concrete tile:
“A. Well, I visually observed the pieces of tile, I wet the surfaces and felt the surface characteristics of them with my bare hand, and in addition to this I applied some small drops of liquid soap, Ivory, specifically, to the tile to see what the influence of soap type material would have on frictional characteristics, and I observed that the red tile essentially lost its adhesive characteristics to my skin, whereas, the porous concrete tile continued to grab to a relatively large extent.
“I have not made an attempt to quantify this through measurements, coefficient of friction, or the like. My observation was qualitative, not quantitative.”
Forman did not attempt to determine the coefficient of friction for the two pieces of tile. He testified that he did not feel it was necessary.
The second person retained as an expert witness by the plaintiff was Dr. Alan R. Caskey. The trial court found that, although he “has experience and educational background in the area of the administration of municipal parks and recreation,” Caskey “is not experienced or trained in [swimming pool] design and construction.”
Caskey holds a Ph.D. in parks and recreation administration. The only formal education Caskey has received in the area of swimming pool construction was an undergraduate class which had “elements” of pool construction in it, in addition to aquatic skills, programming, and safety. Caskey is neither an architect nor an engineer.
During his deposition, Caskey explained the extent of his involvement with swimming pool construction.
“Q. What do you mean when you say you designed and developed swimming pool facilities?
“A. Basically, I operated under ARC Associates. I incorporated in the State of Illinois in the year of 1972. But we would take a contract with a municipality to design and oversee the construction of a swimming facility. ARC Associates would have the contract with the municipality and I would hire the appropriate individuals that I needed to put together the proper package from an electrical engineer to a mechanical engineer to an architect, whichever I needed as far as the licenses were concerned. I would — my role, basically, would be to describe the function, what I wanted and what I needed and they would provide the proper size pump, or the right electrical connection, or the proper color brick, or whatever it was.”
Caskey testified that the National Swimming Pool Institute and the American Association of Public Health had established standards requiring coping surfaces on municipal swimming pools to be “slip resistant.” Caskey defined “slip resistant” as material having a “wet coefficient of friction in excess of [0.5].” When asked how he arrived at this definition, Dr. Caskey referred to the reference book, Swimming Pools, A Guide to Their Planning, Design and Operation, p. 211 (3d ed. 1975). This publication identifies ceramic or quarry tile as material which may be used as swimming pool coping. Caskey did not perform any quantitative examination to determine the coefficient of friction of the tile coping in the present case. He testified he was not an engineer and preferred that it be done by an engineer.
The only person to perform an examination to determine the wet coefficient of friction of the quarry tile used in the Pleasanton swimming pool was Robert Weiner, an engineer retained by one of the defendants. Weiner’s tests indicated that the quarry tile used as coping on the swimming pool possesses a wet coefficient of friction of 0.60.
In Seaman U.S.D. No. 345 v. Casson Constr. Co., 3 Kan. App. 2d 289, 594 P.2d 241 (1979), the Kansas Court of Appeals stated:
“One purpose of the community medical standard and its requirement of expert testimony is to educate the fact finder as to otherwise alien terminology and technology and thus preclude his rendering judgment on something he knows nothing about. We have no qualms in applying a similar standard to the architectural profession. We agree that architectural procedures are sufficiently technical and outside the realm of ordinary knowledge to warrant application of an ‘architectural community standard’ in most instances.” 3 Kan. App. 2d at 293.
In the present case, the plaintiff has failed to meet the obligation of providing expert evidence indicating that the quarry tile used in the Pleasanton swimming pool deviated from the reasonable standards used within the appropriate architectural community. As the trial court noted, the plaintiff s first witness, George Forman, expressly refused to testify as an expert relating to the acceptability and safety of the quarry tile. The district court noted that the plaintiff s second witness, Dr. Alan Caskey, was neither an architect nor an engineer and had never personally designed and constructed a swimming pool. Moreover, in defining “slip resistant” coping as material possessing a wet coefficient of friction in excess of 0.50, Caskey expressly relied upon a reference book on swimming pool construction which expressly recognizes the use of quarry tile as coping material for swimming pools. Finally, the only quantitative examinations performed upon the quarry tile in the present case were those conducted by Robert Weiner. Weiner concluded, on the basis of his tests, that the quarry tile possessed a wet coefficient of friction of 0.60 and, thus, possessed a markedly better degree of slip resistance than that which Caskey indicated was the standard for swimming pool coping material. Thus, the trial court correctly concluded that the expert evidence in the present case indicated that the quarry tile used in the Pleasanton swimming pool exceeded the safety standards accepted by the local architectural community.
The plaintiff, however, argues the Seaman case was a design negligence case and, therefore, not applicable to the present case. The plaintiff essentially argues that he has satisfied any obligation placed upon him by proving that the quarry tile used in the present case deviated from the coping material called for in the original plans and specifications. He contends that the defendants had a duty to construct the pool in accordance with the plans and specifications and they were negligent in failing to do so and in their failure to inspect the pool to insure it was constructed in compliance with the plans and specifications. The plaintiff relies upon Talley v. Skelly Oil Co., 199 Kan. 767, 433 P.2d 425 (1967), in support of his argument. The plaintiff s reliance is misplaced.
In Talley, we observed that, as a general rule, a contractor is not liable for injuries to a party not privy to the contract when the injury occurs after the work was completed and accepted by the owner, even though the injury resulted from a breach of contract by the contractor. However, as to a contractor’s liability for negligence, we proceeded to adopt the modern rule by holding:
“A building or construction contractor is liable for an injury to a third party resulting from work negligently performed even though the injury occurs after completion of the work and its acceptance by the owner, where such work is reasonably certain to endanger third persons if negligently done.” Syl. ¶ 2.
“A general contractor has a duty to exercise reasonable care in superintending and inspecting the work called for in his contract, including work performed by his subcontractor, and when in turning work over to the owner he knew or by exercising reasonable care should have known of dangerous defects or conditions therein, he is liable for injuries occasioned thereby to persons coming in contact therewith.” Syl. ¶ 4.
As to the issue before the court in Talley, we stated:
“Measured by the modern rule of liability, . . . we have no difficulty in concluding that the evidence was amply sufficient both to submit the question of Avalon’s liability to a jury and to support the jury’s verdict against Avalon. While Mr. Sebring, president of Avalon, testified his company had hung three other heaters in the same manner that Skelly’s was hung, he further said [the installation] always spanned three ceiling joists (while the instant heater spanned but two). In addition, there was ample competent evidence tending to show the heater was installed in such a defective manner as to create a risk. The suspicion might also occur, even to a layman possessing the sketchiest acquaintance with the law of gravity, that to suspend a 265 pound heater to a couple of ceiling joists with nails alone might well entail some hazard.” 199 Kan. at 779.
In Talley, the negligent performance of the contract created a dangerously defective condition which ultimately caused injury to a third party. In the present case, there is no showing that the work was done in a negligent manner or that it created a dangerous defect or condition that should have been discovered by a proper inspection.
Although, in the present case, the material used as coping may have deviated from the type of material called for in the original plans and specifications for the swimming pool, this fact alone does not create liability on the part of the defendants as to third parties. The plaintiff must still demonstrate that the coping material actually used in the swimming pool was an unreasonable violation of the relevant architectural and engineering community standards. 65 C.J.S., Negligence § 4(6), p. 496, provides:
“The violation of a contract will not, as such, furnish a basis for liability in tort, but the act which violates the contract may be a negligent one which creates such liability, and in such a case it is the negligent act rather than the violation of contract which furnishes the basis for liability.”
In the present case, all of the expert witnesses testifying as qualified architects or engineers stated that the quarry tile used was an acceptable material for swimming pool coping. The only quantitative examinations performed upon the quarry tile indicate that it exceeds the coefficient of friction standard required for swimming pool coping material. The trial court, thus, did not err in concluding that the plaintiff had failed to present expert evidence to support the allegation that the coping material used in the Pleasanton swimming pool violated relevant architectural and engineering community standards.
The plaintiff cites no authority which either directly or indirectly supports the proposition that a deviation from the plans and specifications in a construction project automatically renders the contractor liable for negligence. While a violation of the plans and specifications may create contractual liability on the part of the contractor to persons in privity with him, something more must be shown before the contractor may be held liable for negligence.
In the present case, the use of quarry tile as a coping material in the Pleasanton swimming pool deviated from the original plans and specifications for the swimming pool. However, to recover, the plaintiff must demonstrate that the use of quarry tile constituted an unreasonable deviation from relevant architectural and engineering professional standards, or constituted a dangerous defect or condition that was known to the defendants or, by proper inspection of the pool, should have been known. In the present case, the plaintiff has clearly failed to make such a showing. All the expert testimony in the present case indicates that the use of quarry tile, while not called for in the original plans and specifications, was not a violation of the defendants’ obligation to use reasonable care in the design, inspection, and construction of the swimming pool.
There are no unresolved issues of material fact and the trial court was correct in granting summary judgment in favor of the defendants. In view of the decision reached by this court, it is not necessary to address the other issues raised on appeal.
The judgment of the trial court is affirmed. | [
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On or about the 9th day of December, 1987, Bruce Miller, Disciplinary Administrator, filed a formal complaint (#B4179) with the Kansas Board for Discipline of Attorneys in which it was alleged that Edward H. Powers, Jr., of Oskaloosa, an attorney admitted to the practice of law in Kansas, had failed for a period of over three years to account to a client for a sum in excess of $11,800.00 collected by respondent on behalf of the client.
Complaint #B4338 was filed with the Disciplinary Administrator alleging that respondent had failed to account to a business associate, Chemold Systems, Inc., for a sum in excess of $12,000.00.
Complaint #B4350 was based upon a memorandum dated December 18, 1985, in which the Hon. James A. Pusateri, Judge of the United States Bankruptcy Court for the District of Kansas, found that respondent in his personal Chapter 13 bankruptcy proceedings had concealed $50,000.00 in assets during the pendency of the confirmation of respondent’s plan filed in the action.
On the 29th day of February, 1988, two days before the scheduled hearing before a panel of the Kansas Board for Discipline of Attorneys in complaint #B4179, Edward H. Powers, Jr., voluntarily surrendered his license to practice law in the State of Kansas pursuant to Rule 217 (1987 Kan. Ct. R. Annot. 115).
The Court, being fully advised in the premises, finds that the surrender of respondent’s license and privilege to practice law in the State of Kansas should be accepted and that respondent should be disbarred.
It is Therefore Ordered that Edward H. Powers, Jr., be and he is hereby disbarred from the practice of law in the State of Kansas and the Clerk of the Appellate Courts shall forthwith strike his name from the rolls of attorneys in Kansas.
Effective this 10th day of March, 1988.
It is Further Ordered that Edward H. Powers, Jr., shall forthwith comply with Rule 218 (1987 Kan. Ct. R. Annot. 116) and that the costs herein be assessed to the respondent. | [
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Per Curiam:
This original proceeding in discipline was filed by the office of the disciplinary administrator against J. Taylor Neuschwander, of Garden City, an attorney admitted to the practice of law in the State of Kansas. The facts, as determined by a hearing panel of the Kansas Board for Discipline of Attorneys, are not seriously disputed.
In January 1984, respondent became a member of the board of directors and treasurer of the Garden City Friends of the Zoo, Inc., a not for profit corporation (hereinafter Friends), which supports and promotes the Lee Richardson Zoo in Garden City. Respondent was responsible for handling the finances of the Friends subject, of course, to its by-laws and directions from the board of directors. One of respondent’s duties was to file a monthly financial report with the board. In the summer and fall of 1984, the zoo was involved in an expansion program and the Friends board determined in October that corporate funds should be invested in liquid assets so money would be available for payment of construction costs as they became due. Respondent opened a new Friends account with the Garden National Bank on October 15, 1984, with an initial deposit of approximately $4,500.00. Prior to this time, the account was maintained with Fidelity State Bank of Garden City and all checks or withdrawals required the signatures of both the president and treasurer of the Friends. Checks and withdrawals from the new account at Garden National Bank only required the signature of the treasurer. At about this same time, respondent needed substantial cash for payment of previously incurred overhead obligations arising from his law practice. On November 1, 1984, respondent wrote a check on the Friends account for $4,000.00 and deposited it in a personal account at the Garden National Bank. The November bank statement for the Friends account reflected a balance of only $593.93. Respondent, however, submitted a treasurer’s report which reflected a cash balance of $4,593.93. Although respondent contends the $4,000.00 constituted a loan on which he intended to pay interest at the rate of 10%, none of the other board members were advised of the loan. On December 3, 1984, respondent wrote another check on the Friends account in the amount of $6,000.00 and deposited it in his personal account. This transaction was not revealed to the board or any of the other officers. On January 3,1985, respondent wrote a check for $10,000.00 and attempted to deposit it in his personal account. An officer of the Garden National Bank notified John Scheopner, president of the Friends, of the transaction and Mr. Scheopner immediately stopped payment on the check. Respondent was confronted by Mr. Scheopner and another officer of the Friends board. Respondent then paid $10,150.00 to the Friends to cover the $10,000.00 previously taken from the Friends account and $150.00 in interest.
Respondent testified that he did not advise any other officer or board member of the “loans” he made to himself nor the terms thereof, and that he prepared no notes, documents, or written memoranda of the transactions. He also conceded that his handling of the transactions gave the appearance of impropriety and that if he had it to do over again he would do it differently. Respondent contends that the Friends could only obtain 8% interest from an on-demand money market account and that as respondent would have had to pay 14% to borrow the money elsewhere, everyone was benefited by the loans to himself at 10% and no one was hurt by his actions.
The hearing panel of the Kansas Board for Discipline of Attorneys found:
“It is the unanimous finding of the panel that although in its purest form Respondent was not representing Friends in an attorney-client relationship that would make his actions, no matter his intent, a violation of DR 9-102 [235 Kan. clii] which obligates an attorney to preserve the identity of funds of his client, Respondent acquired his position of treasurer while as a practicing attorney in his community which places upon Respondent the mantle of public trust and confidence that in performing voluntary duties involving a fiduciary caretaker role of funds, his actions will be beyond reproach.
“The loaning to himself of funds by writing checks in favor of himself on accounts that Respondent holds in public trust without any evidence of any expressed definite prior approval, without any evidence of a written obligation of repayment and terms therefor and without even telling members of the board until after their independent discovery that precipitated an ugly and unnecessary confrontation, all reflect adversely on the Respondent’s fitness to practice law pursuant to DR 1-102[A](6) [235 Kan. cxxxvii].”
The panel unanimously recommended that respondent be suspended from the practice of law.
The first issue raised by respondent is whether his conduct as treasurer of the Friends adversely reflected on his fitness to practice law, in violation of DR 1-102(A)(6). Respondent essentially argues his conduct should be viewed in the light of the informal manner in which this volunteer organization was conducted, and that his “mere error in judgment” in failing to obtain specific authority for the loan transaction and in failing to document it “in more detail” is not a sufficient basis for disciplinary action.
By respondent’s own admissions, he executed loans to himself, while serving as treasurer of the corporation, in order to obtain a lower rate of interest than the 14 percent otherwise available to him. “The treasurer of a corporation is the custodian of its funds for its benefit and in trust for it, not for himself nor for any other officer or employee.” 19 C.J.S., Corporations § 754, p. 98. While K.S.A. 17-6303 authorizes corporate loans to officers and directors, as well as other employees, such loans may only be made “whenever, in the judgment of the directors, such loan . . . may reasonably be expected to benefit the corporation.” It is clear that respondent violated his fiduciary duties as treasurer of the corporation. Furthermore, the facts do not support respondent’s contention that the corporation was operated loosely, informally, and without guidelines. It operated under a set of by-laws which was periodically reviewed and amended, and, in fact, respondent participated in making certain amendments in early 1984. Regular monthly meetings of the board of directors were held, minutes were kept, and the treasurer was required to make regular reports.
The fact that its directors and officers served as volunteers without compensation does not reduce the fiduciary duty owed to the corporation. In Attorney Grievance Comm’n v. Silk, 279 Md. 345, 369 A.2d 70 (1977), an attorney was disbarred for mishandling funds of the Mount St. Joseph’s Father’s Club of Mount St. Joseph High School during the year he served as its treasurer and president. The court held:
“[T]here appears to be no sound reason for regarding misappropriations committed in a non-professional capacity more leniently than those committed in a professional capacity. Each involves a breach of trust or of a fiduciary relationship and bear equally on the fitness of a lawyer to practice his profession.” 279 Md. at 348.
The court held the attorney violated DR 1~102(A)(3) and (4). We think it is clear that respondent’s actions in the present case constitute a misappropriation of the funds of the Friends which had been entrusted to him in his capacity as treasurer and, as such, constitute a violation of DR 1-102(A)(6).
Respondent next asserts that his actions do not constitute a violation of DR 9-102 as there was no attorney-client relationship with the Friends. While the panel referred to DR 9-102 in its report, it did not find respondent in violation of it and there is no valid issue on this point before the court.
Finally, respondent asserts that the recommended discipline of suspension is too severe under all the circumstances. The findings and recommendations of the hearing panel are advisory only and are not binding on the court. Supreme Court Rule 212(f), 235 Kan. cxxx. However, the court strives for consistency in determining punishment. State v. Alvey, 215 Kan. 460, 466, 524 P.2d 747 (1974).
Misappropriation of funds, whether it occurs in an attorney-client relationship or in some other fiduciary capacity, constitutes one of the most serious offenses which an attorney may commit. In State v. Freeman, 229 Kan. 639, 629 P.2d 716 (1981), an attorney was disbarred for misuse of funds which he held in his capacity as trustee for the benefit of a cousin. In considering the appropriate discipline, we stated:
“In imposing discipline, we must consider not only the evidence of wrongdoing but also any aggravating or mitigating circumstances.” 229 Kan. at 644.
Respondent has been a respected member of the bar since 1974 and no prior complaints have been filed against him. When confronted by other officers of the Friends he promptly made full restitution of the misappropriated funds and paid interest thereon. Under all of the circumstances of this case, a majority of the court is of the opinion that respondent should be disciplined by suspension for a period of one year from the effective date of this opinion. A substantial minority of the court would impose more severe discipline.
It is Therefore Ordered that J. Taylor Neuschwander be and he is hereby suspended from the practice of law in the State of Kansas for a period of one year from the 11th day of December, 1987.
It is Further Ordered that respondent forthwith comply with the provisions of Supreme Court Rule 218 (235 Kan. cxxxii) and pay the costs of this proceeding. | [
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The opinion of the court was delivered by
Herd, J.:
This is a civil action by Judy Hoffman against realtor Lambert Haug for fraud and violation of the Kansas Consumer Protection Act (KCPA).
The evidence disclosed that Gene and Rebecca Mooney bought a house in Abilene from Railroad Savings & Loan on March 18, 1981. Appellant Lambert Haug was the sales agent for Railroad. Haug was also an insurance agent for the Marysville Mutual Insurance Company, which insured the house.
On March 19, 1981, Kenneth Cain, Abilene’s city inspector, inspected the gas furnace prior to its lighting. Cain noticed the natural gas line was buried under a portion of the house. This would have been a violation of the city building code had the house not been built prior to the code date. There was danger of gas building up beneath the house and causing an explosion. Cain also observed the electrical entrance mast above the house was bent, which might in time expose live wires, creating a fire hazard.
Despite these observations, Cain gave permission to light the furnace and tagged the meter to indicate to Kansas Power & Light (KP&L) the gas could be turned on. He informed both the KP&L gas foreman, Darrel Taylor, and the realtor, Haug, of the hazards. However, he did not require that the defects be repaired. Haug told him he would advise the new owners of the hazards.
Haug did not, however, tell the Mooneys, Railroad Savings & Loan, or Marysville Mutual about the defects. Benjamin Mosier, underwriter for Marysville, testified the company relied on its insurance agents for property inspection to decide whether to issue a policy. Mosier testified Marysville Mutual would not have insured this house had the defects been known to it.
The Mooneys soon moved to Missouri. They listed the house for sale with Haug. When no buyers were found, Railroad took the house back. Haug then listed the house for Railroad.
In July of 1982, Rosemary McDonald, a salesperson for Haug Realty, sold the house to Judy Hoffman. Railroad carried back a portion of the purchase price. Hoffman purchased home insurance from Marysville Mutual. Hoffman was never apprised of the defects by either McDonald or Haug. Neither Railroad nor Marysville Mutual knew of the hazards. Upon taking possession, Hoffman had the utilities turned on.
Hoffman lived in the house until July of 1984, when she moved to Wamego. She rented the house to a girlfriend, who paid a monthly rental which equaled the amount Hoffman was required to pay Railroad.
In December the girlfriend moved and Hoffman had KP&L shut off the gas and electricity. The house was vacant while Hoffman continued to make payments to Railroad. On May 15, 1985, she requested KP&L to turn the electricity on because she was planning to rent the house and wanted to make some repairs to the bathroom floor. As of that date, she had spent $968.95 on general repairs to the house.
The next weekend, Hoffman and her husband traveled to Abilene to look at the house and discovered the electricity had not yet been turned on. Hoffman called KP&L the next day, May 27, 1985, and asked why the lights had not been turned on. KP&L informed her neither the electricity nor the gas would be turned on until the hazards were remedied.
For the next six months after her discovery of the hazards, Hoffman made numerous attempts to have either Haug or Railroad repair the defects. Railroad finally made the repairs in November and December of 1985.
After the repairs were made, Hoffman did not have the gas and electricity turned on, nor did she attempt to rent or sell the house. On June 4, 1986, she filed suit against Railroad and Haug for damages caused by Haug’s concealment of the hazards. Hoffman agreed to dismiss Railroad from the suit following cancellation of the contract for the house. She had made all payments due on the house and she received nothing from Railroad for cancellation of the contract except the return of a portion of her prepaid taxes. She had spent an additional $861.42 in general repairs to the house from the date she found out about the hazards to the time she gave up the house. None of the repairs were related to the hazards.
The trial court granted Haug’s motion to dismiss Hoffman’s claim of fraud finding that, although there may have been an act of omission on the part of Haug, Hoffman suffered no detriment as a proximate result. The court allowed Hoffman to go to trial with respect to her claim of a deceptive act or practice by Haug under the Kansas Consumer Protection Act, specifically K.S.A. 50-626(b)(3). After Hoffman’s presentation of evidence at trial before the court sitting without a jury, Haug moved for a dismissal of Hoffman’s claim for actual damages. The court sustained the motion and then dismissed, sua sponte, Hoffman’s entire action against Haug, including her claims for civil penalties and attorney fees. Hoffman appeals.
The first issue is whether the trial court erred in dismissing Hoffman’s claim of fraud prior to trial. Hoffman alleged in her petition that Haug fraudulently concealed the defects from her, an allegation Haug denied. Haug moved to dismiss the petition pursuant to K.S.A. 60-212(b)(6) for failure to state a claim upon which relief could be granted. He presented evidence obtained during discovery to support his motion that Hoffman’s claims for damages were based on repairs unrelated to the defects and were based only on the differential between the rental value of the house and the contract payments she made. The court sustained Haug’s motion, holding Hoffman suffered no damages under common-law fraud. The court considered evidence outside the scope of the pleadings and therefore Haug’s motion to dismiss was treated as a motion for summary judgment. K.S.A. 60-212(c); Bethany Medical Center v. Knox, 10 Kan. App. 2d 192, 193, 694 P.2d 1331 (1985). We will so consider it on appeal.
The scope of appellate review on a motion for summary judgment requires all issues of material fact to be resolved in favor of the party against whom the judgment is sought. We must therefore assume Haug did commit fraud against Hoffman in failing to inform her of the defects. Barnhart v. McKinney, 235 Kan. 511, 516, 682 P.2d 112 (1984). Haug therefore would be subject to liability, based on fraudulent concealment of a defect, for the financial loss to Hoffman caused by her lack of knowledge of the defect. See U.S.D. No. 490 v. Celotex Corp., 6 Kan. App. 2d 346, 629 P.2d 196, rev. denied 230 Kan. 819 (1981).
In NL Industries, Inc. v. Gulf & Western Industries, 650 F. Supp. 1115, 1129 (D. Kan. 1986), the court held a manufacturer’s allegation that it would not have entered into a contract had it known the supplier was bribing its manager stated a cause of action for fraud under Kansas law. A party who has suffered damage by reason of fraudulent concealment of another has the option to either rescind the contract or affirm the contract and recover the damages suffered as a consequence of the fraud. Shirk v. Shirk, 186 Kan. 32, 35-36, 348 P.2d 840 (1960). See Waggener v. Seever Systems, Inc., 233 Kan. 517, 523, 664 P.2d 813 (1983).
Haug concedes that, had Hoffman elected to rescind the contract with Railroad upon becoming aware of an undisclosed material defect, she would have been entitled to recover the cost of unrelated repairs made up to that time, but claims that, when Hoffman continued to make payments and demanded repair of the hazards, she affirmed the contract. See Moore v. Farm & Ranch Life Ins. Co., 211 Kan. 10, 17-18, 505 P.2d 666 (1973). Haug claims Hoffman reaffirmed the contract when she made further general repairs to the house and accepted the repairs Railroad made on the hazards. Haug then concludes that when Hoffman surrendered the repaired house to Railroad and accepted cancellation of the contract, she acknowledged herself to have been fully reimbursed.
Cancellation of a contract is far different in effect from rescission. Rescission is the undoing of a contract from its beginning while cancellation is the interruption and termination of the contract by agreement at a time subsequent to its inception. Under rescission, Hoffman would be entitled to be restored to the position she held prior to the contract. This was not done and Hoffman is not entitled to it. Thus, we shall consider this case as one where the plaintiff affirmed the contract and sued a third party for fraud. The subsequent cancellation of the contract is irrelevant to this action.
There is no similar case in Kansas, but in Kuechle v. Springer, 145 Ill. App. 127, 137 (1908), the Illinois court held the cancellation of a contract between two parties did not prevent a plaintiff from suing a third party for damages perpetrated by the fraud. In support of her damage claim against Haug, Hoffman argues she would not have bought the house had she known of the concealed hazards, and that Haug, who concealed them, was liable for all expenses she incurred over the cost of rent. She asserts the $1,830.37 worth of repairs would not have been made to a rental house. She also claims the difference between what she paid Railroad under her contract of purchase and the fair rental value during that time was $1,214.40, and that Haug is liable for that loss. Haug argues such a differential was not caused by the hazards, but was a result of the value judgment made by Hoffman when she decided to buy a house rather than rent.
Haug points out Hoffman introduced no evidence of the fair rental value of the property and that her friend who rented the house paid as rent the Railroad payments, showing no differential. However, for purposes of appellate review of summary judgment, we must accept her evidence in the light most favorable to her. The problem is that the repairs for which reimbursement is asked have no relationship to the alleged fraud and there is no evidence of differential damages, even when we give the evidence favorable treatment.
A purchaser who has been defrauded by false representations regarding the property bought may recover as damages the difference between the actual value of the property at the time of sale and the value the property would have had if the representations had been true. Fisher v. Mr. Harold’s Hair Lab, Inc., 215 Kan. 515, 527, 527 P.2d 1026 (1974); K-B Trucking Co. v. Riss Intern. Corp., 763 F.2d 1148 (10th Cir. 1985). In this case the difference between its actual value and the value of the property if the defects were not present is the amount of money required to repair the defects. As this amount was paid by Railroad, Hoffman was not damaged. It is a fundamental principle of law that a cause of action in fraud lies only if the plaintiff was injured by the fraud. 37 Am. Jur. 2d, Fraud and Deceit § 283, pp. 377-78. Thus, this issue is without merit.
The next issue is whether the court erred in dismissing Hoffman’s action under the KCPA. The trial court dismissed Hoffman’s cause of action against Haug under the KCPA on the theory there was no evidence of a deceptive act or practice.
Under the KCPA, a consumer may recover actual damages, or civil penalties, if the court in its discretion finds civil penalties are warranted. K.S.A. 50-634(b); K.S.A. 50-636(a); see Bell v. Kent-Brown Chevrolet Co., 1 Kan. App. 2d 131, 134-35, 561 P.2d 907 (1977). One of the purposes of the KCPA is “to protect consumers from suppliers who commit deceptive and unconscionable practices.” K.S.A. 50-623(b). The Act is to be construed liberally in order to promote this purpose. Stair v. Gaylord, 232 Kan. 765, 775, 659 P.2d 178 (1983).
A “consumer” is defined under the Act as “an individual who seeks or acquires property or services for personal, family, household, business or agricultural purposes.” A “supplier” is defined as “a manufacturer, distributor, dealer, seller, lessor, assignor, or other person who in the ordinary course of business solicits, engages in or enforces consumer transactions whether or not dealing directly with the consumer.” K.S.A. 50-624(i). Hoff man fits the definition of a consumer under the Act, and Haug of a supplier. Their interaction also fits the Act’s definition of a “consumer transaction” as “a sale, lease, assignment or other disposition for value of property or services within this state . . . to a consumer or a solicitation by a supplier with respect to any of these dispositions.” K.S.A. 50-624(c). K.S.A. 50-626(a) states: “No supplier shall engage in any deceptive act or practice in connection with a consumer transaction.” We hold this transaction was covered by the Consumer Protection Act.
In the case at bar, the trial court dismissed Hoffman’s claims for civil penalties and attorney fees for failure to prove damages or a deceptive act or practice. It is within the court’s discretion to deny civil penalties. Appellee concedes actual damages are not required for a plaintiff to be awarded civil penalties under the Act. See K.S.A. 50-634(b); K.S.A. 50-636(a); Manley v. Wichita Business College, 237 Kan. 427, 439, 701 P.2d 893 (1985).
A re-examination of the evidence of damages reveals the trial court was correct in holding Hoffman had shown no proof of damages under the KCPA any more than she had under common-law fraud. She could therefore recover under the KCPA only if she proved a deceptive practice which the trial court in its discretion found would justify an assessment of a civil penalty.
K.S.A. 50-626 prohibits a supplier from engaging in deceptive acts and practices, which include “the intentional failure to state a material fact, or the intentional concealment, suppression or omission of a material fact, whether or not any person has in fact been misled.” K.S.A. 50-626(b)(3). Here, the evidence was uncontradicted that Mr. Haug failed to disclose the defective electrical mast and the hazardous gas line installation to Hoffman. The trial court, in its discretion, ruled Haug’s omission was not a deceptive act or practice. The test on appellate review of whether the trial court abused its discretion is whether no reasonable person would agree with the trial court. If any reasonable person would agree, appellate courts will not disturb the trial court’s decision.
In this case the electrical mast was not hidden. It was available for all to see who cared to look. Thus, though subject to criticism for safety, it was not an intentional concealment or omission. On the other hand, the placement of the natural gas line requires a more careful analysis. It was hidden underground, carried an explosive substance, and ran under a portion of the house. Mr. Haug was apprised of this information by Mr. Cain, the city inspector. However, Mr. Cain testified the ordinance providing houses not be constructed over gas lines had a grandfather clause which applied to this house, and he allowed the gas to be turned on. Thus, we can see reasonable persons could differ as to whether Haug had a duty to speak about this fact. The trial court did not abuse its discretion.
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The opinion of the court was delivered by
Allegrucci, J.:
This appeal arises out of a medical malpractice suit. A jury returned a verdict in favor of the defendants, and plaintiff Harrier appeals.
Only the procedural facts in the present case are germane to the issues raised on appeal. On July 6, 1981, the plaintiff, David W. Harrier, filed the present personal injury action. Plaintiff s petition alleged that he had received substantial personal injuries as a result of the negligence of medical services by defendants Joseph Gendel, M.D., and The Topeka Medical Center. During the trial of the action before a jury, the Shawnee County District Court ruled that K.S.A. 1987 Supp. 60-3403, the medical malpractice collateral source payments statute, was constitutional and permitted the introduction of evidence relating to collateral source benefits received by the plaintiff.
Upon trial of the matter, the jury returned a special verdict finding no malpractice on the part of the defendants. The plain tiff s motion for a new trial was denied on August 29, 1986, and the plaintiff filed a notice of appeal on September 4, 1986. The Court of Appeals issued a show cause order on July 28, 1987, ordering the parties to demonstrate why an order summarily affirming the trial court’s decision should not be issued. Both parties responded to the show cause order. On August 20, 1987, the Court of Appeals notified the parties of its decision in the present case: “Affirmed pursuant to Supreme Court Rule 7.041, Farley v. Engelken, Case No. 59,314, filed July 17, 1987.” The plaintiff s petition for review was granted on November 13, 1987.
The primary issue on appeal is whether the district court erred in permitting the introduction of evidence relating to collateral source benefits received by the plaintiff. The trial court ruled that K.S.A. 1987 Supp. 60-3403 was constitutional, and defendants were permitted to introduce evidence of the collateral source benefits paid to plaintiff from private insurance and social security. The issue of the constitutionality of the statute was raised by plaintiff at trial. At the time of the trial, Farley v. Engelken, 241 Kan. 663, 740 P.2d 1058 (1987), was pending before this court and was decided after this case was appealed to the Court of Appeals.
The Court of Appeals proceeded to summarily affirm the decision of the district court pursuant to Supreme Court Rule 7.041. Rule 7.041 provides for the summary disposition of appellate opinions under limited circumstances. The rule provides, in part:
“In any case in which it appears that a prior controlling appellate decision is dispositive of the appeal, the court may summarily affirm or reverse, citing in its order of summary disposition this rule and the controlling decision.” (1987 Kan. Ct. R. Annot. 33.)
The case cited by the Court of Appeals in its summary opinion, Farley v. Engelken, is not a prior controlling appellate decision which is “dispositive of the appeal.” In Farley, we held that K.S.A. 1987 Supp. 60-3403, providing for the introduction of evidence relating to collateral source benefits in medical malpractice actions, was unconstitutional. In the present case, the district court’s action in allowing the introduction of evidence relating to collateral source benefits was contrary to our holding in Farley, and clearly in error. The issue on appeal, therefore, is whether the error of the district court prejudiced the interests of the plaintiff. The Court of Appeals could only have reached its conclusion that the district court should be affirmed by concluding that Farley v. Engelken was not controlling in the present action. The decision of the district court was affirmed in spite of this court’s opinion in Farley v. Engelken and not because of it. Summary disposition of the present case, pursuant to Supreme Court Rule 7.041, was not appropriate in the present case. The Court of Appeals clearly erred in summarily affirming the district court.
We turn to the substantive issue in the present appeal which revolves around the effect of the district court’s error in permitting the introduction of evidence concerning collateral source benefits received by the plaintiff.
Prior to the legislature enacting K.S.A. 1987 Supp. 60-3403, this court recognized the common-law collateral source rule to exclude as irrelevant evidence of benefits received by a plaintiff from sources independent of and collateral to the defendant. Allman v. Holleman, 233 Kan. 781, Syl. ¶ 8, 667 P.2d 296 (1983); Ablah v. Eyman, 188 Kan. 665, 365 P.2d 181 (1961). In Farley, we said:
“The primary question presented on appeal is whether 60-3403 violates the equal protection clauses of the Kansas and United States Constitutions and Section 18 of the Kansas Bill of Rights. The statute was enacted in 1985 and abrogates the common-law collateral source rule in ‘any medical malpractice liability action.’ The collateral source rule is a common-law rule preventing the introduction of certain evidence, summarized in the Restatement (Second) of Torts § 920A (1977), as ‘[p]ayments made to or benefits conferred on the injured party from other sources [which] are not credited against the tortfeasor’s liability although they cover all or a part of the harm for which the tortfeasor is liable.’ In Allman v. Holleman, 233 Kan. 781, Syl. ¶ 8, 667 P.2d 296 (1983), we stated the rule as:
“ ‘The collateral source rule provides that benefits received by the plaintiff from a source wholly independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer.’ ” 241 Kan. at 665-66.
We proceeded to hold K.S.A. 1987 Supp. 60-3403 unconstitutional and, as a result, collateral source benefits are not admissible in a damage action.
Defendant Dr. Gendel contends that the evidence relating to plaintiff s collateral source benefits related solely to the issue of damages and that the erroneous introduction of the evidence was harmless, since the jury returned a verdict of no negligence on his part. Plaintiff argues that the introduction of the collateral source benefits evidence was prejudicial, since it might have improperly influenced the jury.
Plaintiff relies in particular upon Ayers v. Christiansen, 222 Kan. 225, 564 P.2d 458 (1977). In Ayers, we held the introduction of evidence relating to the defendant’s insurance status in regard to the issue of fault was irrelevant and prejudicial. We stated that “knowledge of the presence or absence of liability insurance may very well induce juries to decide cases on improper grounds.” 222 Kan. at 228. In Caylor v. Atchison, T. & S. F. Rly. Co., 189 Kan. 210, 368 P.2d 281 (1962), this court said:
“This court has repeatedly stressed the impropriety of injecting the question of insurance into damage actions in which insurance companies are not parties, when it is obvious that the purpose is to produce prejudice in the minds of the jurors. Where the offending party secures a verdict and the opposing party makes timely objection, and otherwise has adequately protected the right of review, the offense is regarded as so inherently prejudicial as to require reversal unless unusual circumstances are shown which justify affirmance.” 189 Kan. at 214.
The defendant, Dr. Gendel, correctly points out that Ayers dealt with the prejudice stemming from the introduction of evidence relating to the insurance status of the defendant. In the present case, the issue involves the prejudicial impact of evidence relating to collateral source benefits received by- the plaintiff. The distinction is one without a difference. In Rexroad v. Kansas Power & Light Co., 192 Kan. 343, 388 P.2d 832 (1964), this court held:
“It has been repeatedly held that a plaintiff cannot deliberately inject into a damage suit the fact that the defendant has liability insurance. (See, Caylor v. Atchison, T. & S. F. Rly. Co., 189 Kan. 210, 368 P.2d 281; and cases cited in both the court and dissenting opinions.)
“It is apparent the reason for the rule — that knowledge of the insurance of a defendant will incline the jury toward the case of the plaintiff — has application in reverse. Once it has been established that the plaintiff is a real party in interest, the trial court should exclude evidence of insurance from the case.” 192 Kan. at 355.
Defendant argues the error was harmless, since the “collateral source” evidence admitted at trial related only to the issue of damages, and plaintiff failed to show he was prejudiced as to the issue of liability. The policy concerns underlying this court’s decision in Ayers, Caylor, and Rexroad preclude the conclusion that the district court’s error in the present case was necessarily harmless. The same possibility of an improper use of the collateral source benefits evidence exists in the present case. It is impossible to say that the jury’s verdict was free from the prejudicial impact of the collateral source benefit evidence. To allow the introduction of evidence that the plaintiff received collateral source benefits is inherently prejudicial and requires reversal.
The judgments of the Court of Appeals and the district court are reversed and the case is remanded to the district court for a new trial. | [
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The 'opinion of the court was delivered by
Herd, J.:
This is a civil case by the Riley State Bank against James and Beverly Spillman for judgment on a note and to foreclose a security agreement. The Spillmans deny the allegations of the Bank’s petition and counterclaim against the Bank for unlawfully possessing their property and for conversion. The trial court bifurcated the case and granted summary judgment for the Bank on the issues raised in the counterclaim. The Spillmans appeal.
This dispute arose from the following facts: James Spillman and his former wife, Beverly, d/b/a the Old Town Coin and Gun Shop, had been commercial credit customers of the Riley State Bank of Riley since 1982. The Bank had made eight to ten loans to them during that time. On October 15, 1985, the Spillmans executed a renewal note for preexisting indebtedness to the Bank in the amount of $28,733.47. The payments were to begin on November 15, 1985, and continue on the 15th day of each month thereafter for 11 months, with a balloon of $25,077.93 due on October 15, 1986.
Incident to this loan, the Spillmans executed a security agreement in favor of the Bank which gave as collateral the following:
“All present and future inventory and stock in trade, all machinery, equipment, tools, fixtures* and supplies now owned or hereafter acquired; all present and future contract rights, accounts and notes receivable, and all as set forth on the attached Schedules ‘A’ and ‘B’, incorporated by reference herein, but not limited to.
“* Fixtures used in the business operation of Old Town Coin & Gun Shop located at 532 South 17th Street, Old Town Mall, Manhattan, Kansas.”
Schedules A and B listed the inventory of the shop, which was valued at $41,520. The Spillmans also executed financing statements to the same effect.
James Spillman claims he had been told by agents of the Bank it was the Bank’s standard practice to allow a 10-day grace period to make a payment from the date the installment was due. Spillman said he had always relied on this understanding and had never been charged a late fee for any payments made within 10 days.
The Spillmans made their first payment on November 26, 1985, 11 days after the November 15 due date. The December payment was made on January 2, 1986, 16 days after the December 15 due date. These payments were accepted by the Bank without objection.
The Bank received no payment from the Spillmans on January 15. It deemed its loan insecure and the Spillmans in default and decided to seize the remaining collateral, having heard Spillman had made an unreported bulk sale from the inventory. The Bank did not notify the Spillmans, but called the wife of the Spillmans’ landlord, Vern Osborne, and informed her of the Bank’s intention to enter the premises for the purpose of repossessing the collateral. The Bank also contacted the Manhattan Police Department and informed it of its intentions.
Agents of the Bank visited the shop and found it closed. The agents could see through the windows of the shop that most of the expected inventory was gone. At 11:45 a.m. on January 25, 1986, a locksmith hired by the Bank opened the locked doors to the unoccupied shop and removed and replaced the locks. The burglar alarm was deactivated. No one was present during the entry to the shop except the agents of the Bank and there was, therefore, no objection to their actions by anyone.
Spillman returned to the shop on Monday, January 27, 1986, and found what had happened. He had still not tendered the January payment or proceeds from the bulk sales on the note and has not offered to make any further payments on the note.
Spillman claims the shop was closed for inventory purposes and because of personal problems involving the dissolution of his marriage. Spillman admits he made at least one large bulk sale of inventory in the early part of January. The sale was made without the Bank’s consent. Spillman testified it had never been his past practice to give the Bank notice of sales during the five years in which he had operated his business and the Bank had never protested this practice. He said the inventory was no lower than it had been at times in the past.
The Bank accused Spillman of using the proceeds from the sale for his own personal use rather than to replenish inventory or make payments on his note. Spillman said he did not intend to use the money from the sale for his own personal use. He claimed had the Bank notified him it was going to accelerate the note he would have used the proceeds to make payment. He was hoping to purchase new inventory and use the proceeds from the sale of that inventory to pay the Bank within three to five days after he reopened the business. He said he only used the money for personal purposes when he was denied his livelihood by the Bank’s actions.
Rather than removing the inventory from the Spillmans’ business, the Bank kept the items in the store without selling them for over three months. The Bank did not pay any rent to the Osbornes and Spillman states he is thus liable, under the terms of his lease agreement, for the rent during the Bank’s occupancy.
The Bank brought suit against the Spillmans, and sought to “foreclose its security interest” and gain a money judgment. The Spillmans counterclaimed and sought damages for conversion and interference with contract rights. The district court granted the Bank’s motion for summary judgment on February 13, 1987, and recommended a K.S.A. 1987 Supp. 60-2102(b) appeal. The Court of Appeals denied the Spillmans’ motion for an interlocutory appeal in an order filed March 9, 1987. On March 30, 1987, the district court ordered the inventory sold, but granted a stay of judgment for the amount still owing on the note pending the results of this appeal.
Summary judgment is proper when no genuine issue as to any material fact is found, despite a reading of the evidence which gives the benefit of all inferences which may be drawn from the admitted facts to the party against whom the judgment is sought. K.S.A. 1987 Supp. 60-256(c); Professional Lens Plan, Inc. v. Polaris Leasing Corp., 238 Kan. 384, 390, 710 P.2d 1297 (1985). When summary judgment is challenged on appeal, the record is read in the light most favorable to the appellant. McAlister v. Atlantic Richfield Co., 233 Kan. 252, 662 P.2d 1203 (1983).
The first issue is whether the Spillmans were in default at the time the Bank repossessed the collateral.
The statutory guidelines regarding default in Kansas are set out in part 5 of the Kansas Uniform Commercial Code — Secured Transactions. K.S.A. 84-9-501(1) gives the secured party, with certain exceptions, those rights and remedies provided by the security agreement.
The 1983 Kansas Comment to K.S.A. 84-9-501 notes:
“[T]he creditor is given great latitude in defining ‘default’ broadly in the security agreement; normally, the definition would include not only failure to pay an installment, but other events such as failure to insure the collateral, refusal to allow inspection of the collateral upon demand, failure to pay taxes or insurance, taking collateral outside the state or selling it without permission of the secured party, death or insolvency of the debtor, failure of the debtor to make payments to other creditors, or whenever the secured party ‘deems himself insecure.’ See 84-1-208. The only limit is the creditor’s subjective ‘good faith.’ ”
The “Additional Provisions” of the security agreement signed by the Spillmans stated:
“Upon the happening of . . . (i) default in the payment . . . , the Secured Party at its option may declare all of the Obligations to be immediately due and payable and shall then have the remedies of a secured party under the Commercial Code, or other applicable law, including without limitation thereto, the right to take possession of the Collateral.”
Although admitting they did not make the January payment on the due date, the Spillmans argue the security agreement was altered by the course of dealing between the parties in that the Bank told Spillman it had a standard practice of allowing a 10-day grace period and never objected or penalized the Spill-mans for making a payment within that grace period.
The question thus before the court is whether a security agreement may be altered by the course of dealing between the parties. K.S.A. 84-1-205 states that:
“(1) A course of dealing is a sequence of previous conduct between the parties to a particular transaction which is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct.
“(4) The expressed terms of an agreement and an applicable course of dealing . . . shall be construed wherever reasonable as consistent with each other; but when such construction is unreasonable express terms control . . . .”
Official UCC Comment 2 states:
“Course of dealing under subsection (1) is restricted, literally, to a sequence of conduct between the parties previous to the agreement. However, the provisions of the Act on course of performance make it clear that a sequence of conduct after or under the agreement may have equivalent meaning.”
In Byers Transp. Co. v. Fourth Nat. Bank & Trust Co., Wichita, 333 F.2d 822 (10th Cir. 1964), a contract case, the court held the conduct of the parties changed the written contract provisions, but noted under Kansas law such modification of a written contract must be supported by consideration independent and separate from the original consideration supporting the contract. See Augusta Medical Complex, Inc. v. Blue Cross, 227 Kan. 469, 608 P.2d 890 (1980). The Spillmans make no claim to have given new consideration to support the modification of the terms of the written note.
The security agreement contained explicit limitations on the ability of the parties to modify its terms through a course of conduct. It stated: “No waiver by the Secured Party of any default shall be effective unless in writing nor operate as a waiver of any other default or of the same default on a future occasion.” The clear meaning of the language is the Bank’s lack of objection to late payments did not operate as a waiver, as there is not evidence such a waiver was given in writing, and the Bank’s tolerance of late payments did not waive its right to claim a default in the future. Plain and unambiguous language must be interpreted according to its ordinary meaning. Quenzer v. Quenzer, 225 Kan. 83, 587 P.2d 880 (1978).
The clear meaning of the security agreement establishes the Bank did not waive its right to declare default upon late payment or failure to pay in the proceeds of the bulk sale. We hold the debtor was in default on his note; summary judgment on this issue was therefore proper.
The second issue is whether the Bank was required to give notice of default to the Spillmans before attempting to repossess the collateral. The Spillmans note that the security agreement, under the section on remedies in event of default, states that the Bank may “declare all of the Obligations to be immediately due and payable and shall then have the remedies of a secured party . . . including without limitation thereto, the right to take possession of the Collateral.” (Emphasis supplied.) The Spill-mans note the commonly used term “elect” was not used and argue the terms “declare” and “then” required the Bank to give notice before foreclosing. They point out there is no language in the security agreement which states the Bank may accelerate without notification.
The term “declare” is defined in Black’s Law Dictionary 368 (5th ed. 1979), as “[t]o make known, manifest, or clear. To signify, to show in any manner either by words or acts.” The Spillmans argue the definition required the Bank to make known to them their decision; the Bank argues the definition proves that “to act” was “to declare.”
K.S.A. 84-9-503, which establishes the secured party’s right to self-help repossession, makes no requirement of notice to the debtor. The Bank therefore argues the lack of a specific statement that notification is not required only forces the conclusion that it retained its statutory right to repossess without notice. It argues a duty as onerous as a notice provision should not be imposed upon it by a problematic reading of two words in the agreement. It notes lack of intent for such a requirement to be imposed is evidenced by the lack of specifications in the agreement as to what type of declaration was required.
Under the limited circumstances of Klingbiel v. Commercial Credit Corporation, 439 F.2d 1303 (10th Cir. 1971), it was held the secured creditor must give notice or make demand upon the debtor before repossessing. The facts in Klingbiel differed from those in the instant case, however, in that the decision was based on a contradiction in terms of a contract which the court described as a “verbal wilderness.” In Klingbiel, the creditor repossessed a car before the first monthly payment was due because it felt itself to be insecure. The contract clearly indicated it could accelerate the payment of the unpaid balance without notice if it felt insecure, but other terms required Klingbiel to pay the balance or deliver the car to the creditor only upon notice or demand.
We hold the Bank had no duty to give notice of default to the Spillmans before repossessing the security under the security agreement in this case.
The next issue is whether the Bank had a security interest in the lease of Spillmans’ business. The Bank objects to the Spill-mans’ contention that it committed conversion of their leasehold interest when it seized the shop for three months and contends it had a security interest in the lease. The Spillmans object there was never any mention by the Bank of a desire to have a security interest in the lease.
Leases are specifically excluded from the scope of Article 9 of the Kansas Uniform Commercial Code under K.S.A. 84-9-104(j). The Official UCC Comment to that section states: “Except for fixtures . . . , the Article applies only to security interests in personal property.” The Kansas Comment to section (j) states:
“Perhaps the most important exclusion in 84-9-104 is ‘the creation or transfer of an interest in or lien on real estate, including a lease or rents thereunder.’ To a large extent, the exemption in this subsection is a reflection of the general scope provision in 84-9-102, that Article 9 only applies to security interests in personal property and fixtures.”
It is thus clear the Bank did not have a security interest in the lease. The security agreement did not describe the leasehold interest as collateral. All security agreements must reasonably identify the collateral covered. K.S.A. 84-9-110. The Bank notes the description need not be specific and argues the description contained in the security agreement was plainly intended to be broad and all-inclusive in its scope. Such a broad reading of the description of collateral, however, violates the requirement that such collateral must be identified. See Chanute Production Credit Assn. v. Weir Grain & Supply, Inc., 210 Kan. 181, 499 P.2d 517 (1972). A fair reading of the security agreement’s description of collateral, with its careful inclusion of fixtures, requires a finding that the parties did not intend, at the time of the original transaction between the parties, to include the leasehold as collateral.
The Bank argues, however, that it has a valid security interest in the Spillmans’ contract rights under their lease. In Garnett State Savings Bank v. Tush, 232 Kan. 447, 452, 657 P.2d 508 (1983), we rejected a creditor Bank’s argument that it had a security interest in a real estate contract under the UCC, stating “K.S.A. 1981 Supp. 84-9-104(j) makes it clear that the UCC does not apply to interests in or liens upon real estate.” Thus summary judgment was improper on this issue.
The next issue is whether the Bank committed a breach oi peace by breaking the locks and disconnecting the Spillmans’ burglar alarm.
The right to peaceful self-help repossession of collateral has a long history in the common law. The modern policy underlying the right is that if a creditor can effect repossession of collateral without resort to often expensive and time-consuming judicial procedures, debtors in general may more freely receive loans at a lower rate. The resultant freedom given creditors in repossession must be balanced with the need to avoid possibly violent confrontations between debtors and creditors. See generally Benschoter v. First National Bank of Lawrence, 218 Kan. 144, 152, 542 P.2d 1042 (1975); Morris v. Bk. & Tr. Co., 21 Ohio St. 2d 25, 50 Ohio Op. 2d 47, 254 N.E.2d 683 (1970); White, The Abolition of Self-Help Repossession: The Poor Pay Even More, 1973 Wis. L. Rev. 503.
K.S.A. 84-9-503 authorizes a secured creditor to perform self-help repossession after the debtor’s default as long as it can be done without breach of the peace. The drafters of the UCC did not define the term “breach of the peace,” purposefully leaving such definition to the courts. See White & Summers, Uniform Commercial Code § 26-6 (2d ed. 1980). White & Summers state that, to determine if a breach of the peace has occurred, courts focus their inquiry on whether the creditor entered the debtor’s premises and whether the debtor or one acting on his behalf consented to the entry. Some courts have stated that a breach of the peace requires the use of either violence or the threat of violence. See, e.g., Harris Truck & Trailer Sales v. Foote, 58 Tenn. App. 710, 436 S.W.2d 460 (1968); see generally Annot., 30 A.L.R.3d 9, 75.
There has been little caselaw in Kansas on what constitutes a breach of peace; our definition of the term is thus largely incomplete. The leading case on the issue is Benschoter v. First National Bank of Lawrence, 218 Kan. 144.
The creditor in Benschoter entered the debtor’s premises; the holding for the creditor focused on the debtor’s consent to that entry. The debtor had received repeated warnings that the property might be repossessed and had finally told the creditor he could come get the collateral if he had not delivered it to the creditor that weekend. When the creditor did not receive the collateral over the weekend, an agent went to the debtor’s farm. The debtor’s 17-year-old son opened a padlocked gate protecting the collateral and helped the agents remove the property. 218 Kan. at 145-46. We held that alleged “stealth,” in that the agent arrived at the farm when the parents were away, did not in itself constitute a breach of peace because of the debtor’s prior consent.
In Wade v. Ford Motor Credit Co., 8 Kan. App. 2d 737, 745, 668 P.2d 183 (1983), a consumer credit case, the Court of Appeals held consent of the debtor to repossession is not required. The court found no breach of peace where an agent of the creditor unlocked with his own key the debtor’s car parked in the driveway and drove it away at 2:00 a.m., despite earlier threats from the debtor she would shoot anyone attempting to repossess the car. The court held the lapse of time between the earlier threat and the repossession, and the unlikelihood the debtor would become aware of the repossession at 2:00 a.m., made the actions unlikely to produce violence.
Whether the breaking of locks by a creditor is per se a breach of the peace is a question which has not been decided by this court. There are cases in other jurisdictions supporting an answer on either side. Compare Laurel Coal Co. v. Walter E. Heller & Co., Inc., 539 F. Supp. 1006 (W.D. Pa. 1982), with Global v. Daley-Hodkin, 105 Misc. 2d 517, 432 N.Y.S.2d 453 (1980). See generally White & Summers, Uniform Commercial Code § 26-6; Annot., 30 A.L.R.3d at 74.
The 1983 Kansas Comment to K.S.A. 84-9-503 states: “Forced entry into the debtor’s premises would almost certainly be considered a breach of the peace.” White & Summers agree most courts find unauthorized entry into a debtor’s residence to be a breach of the peace, but entry into a business generally causes less concern. White & Summers, Uniform Commercial Code § 26-6; see Cherno v. Bank of Babylon, 54 Misc. 2d 277, 282 N.Y.S.2d 114 (1967), aff'd 288 N.Y.S.2d862 (1968). However, we view breaking and entering either the residence or business of a person a serious act detrimental to any concept of orderly conduct of human affairs and a breach of the peaceful solution to a dispute.
We hold the Bank breached the peace by breaking the locks to the Spillmans’ place of business. Thus, the repossession of collateral was illegal. A creditor must obtain possession of the collateral through the courts if entry to the debtor’s premises, whether residential or commercial, can only be obtained through force. This holding renders moot the issue whether the Bank had the right, under K.S.A. 9-503, to change the locks and leave the collateral in the shop for a prolonged period of time.
The final issue is whether the Bank breached its duty to exercise good faith imposed by the Uniform Commercial Code. K.S.A. 84-1-203 imposes an obligation of good faith in the performance of each duty under the act. See Wendling v. Puls, 227 Kan. 780, 784, 610 P.2d 580 (1980). Good faith is defined under K.S.A. 1987 Supp. 84-1-201 (19) as “honesty in fact in the conduct or transaction concerned.”
The Spillmans contend the Bank breached this duty by several means. It made no attempt to communicate with them before or after the repossession. Instead of removing the collateral, it changed the locks and left the collateral in the store for three months, forcing the Spillmans to incur three months of rent liability. During their ongoing relationship of over five years, there is no indication the Bank ever warned the Spillmans about the possible consequences of late payments. Instead, it accepted late payments and granted the Spillmans loan after loan. The Bank accepted the first two payments on the note presently before this court well beyond the 10-day grace period without comment.
We hold the Bank was operating in good faith in all its actions herein. The Spillmans were late in all their payments, had failed to obtain authority to make a bulk sale, and then failed to pay the proceeds thereof on the note, as required by the security agreement. The Bank’s determinations it was insecure and that the Spillmans were in default were appropriate under the circumstances of this case.
The judgment of the trial court is affirmed in part and reversed in part and this case is remanded to the district court for further proceedings consistent with this opinion. | [
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Per Curiam:
This is a disciplinary proceeding against Jeff Johnson involving four complaints numbered W3385, W3636, W3637, and W3641 which were consolidated for hearing before a panel of The Kansas Board for Discipline of Attorneys. The panel found that Mr. Johnson had committed multiple violations of the Code of Professional Responsibility and unanimously recommended that he be disbarred.
FAILURE TO GRANT A CONTINUANCE
The first issue concerns the procedural manner in which the four complaints were handled. Copies of the complaints herein were mailed to respondent at his mailing address in Hugoton. Respondent did not receive this letter as he had moved to Manhattan. On August 13,1986, respondent personally appeared in the Disciplinary Administrator’s Office and was served with copies of the four complaints and notification of the hearing date thereon which was September 26, 1986, at 9:00 a.m. Also, on August 13, 1986, respondent requested that the Disciplinary Administrator permit him to file answers to the complaints out of time. The request was granted and the answer date was set for September 12, 1986. The answers were timely filed.
On September 22, 1986, the Disciplinary Administrator received a motion dated September 8, 1986, requesting a continuance of the September 26 hearing date. On September 25, 1986, respondent telephoned John F. Stites, panel chairman, requesting a continuance of the hearing scheduled for the following day. The substance of the telephone conversation and the subsequent procedural sequence are set forth in the panel’s Final Hearing Report as follows:
“[T]he Respondent was informed that he should appear in person before the
“[T]he Respondent was informed that he should appear in person before the panel the next day. That he was further informed that the panel would listen to his arguments on his motion and request for continuance, but that since it was filed at such a late date in relation to the hearing and further since the [Disciplinary] Administrator had several witnesses coming from the western reaches of the state of Kansas who had already made plans to be at Topeka for the hearing, that the odds were against the continuance being granted, and that therefore he should be prepared to give his defense, if any, to the complaints.
“The record should further reflect that the panel did not commence the hearings until 9:30 a.m. even though the same were supposed to start at 9 a.m., and that continuously during the time of the hearing, search was made of the vicinity of the hearing room to determine if the respondent ever made his appearance and there was no appearance on behalf of respondent to the complaints as filed against him.”
Respondent argues that the panel’s failure to grant him a continuance of the hearing resulted in allowing him an insufficient time to prepare his defenses to the four complaints. We do not agree. By his own admission, respondent had 43 days after receipt of copies of the complaints and the notice of hearing in which to prepare for the hearing. There is no contention that any extraordinary circumstances existed such as to render 43 days an insufficient period of preparation. Although requested to do so, respondent did not appear at the hearing and request a continuance, stating his reasons therefor, or seek a bifurcated proceeding if additional witnesses and/or evidence would be available only at a later date. There is nothing in the record showing specifically how the failure to grant a continuance is .claimed to have prejudiced respondent’s preparation of his defenses herein. We conclude this issue is without merit.
For his next issue, respondent challenges the sufficiency of the evidence supporting the panel’s findings that respondent had violated the Code of Professional Responsibility.
W3385
THE CONSERVATORSHIP
As to this complaint, the panel found:
“[T]hat the respondent had been duly appointed as conservator to two minor children, to wit: James Woodward Lackey and Keri Renee Lackey in the District Court of Stevens County, Kansas. That the said respondent was obtaining funds by reason of a workers’ compensation case on behalf of said minor children which was being sent to the respondent each and every month. That thereafter the respondent was putting these checks in a trust account and was then supposed to mail checks each month to the mother of the minor children. That the respondent sent a check to the mother of the minor children, to wit: Christina Stroud, which check was dated July 6, 1984, in the sum of $700, which was returned by reason of insufficient funds in said account. That said check was never made good by the respondent and that one other check received by respondent on behalf of the minor children was never accounted for.
“5. That further on this complaint the District Court of Stevens County,. Kansas, thereafter requested an accounting from the respondent concerning the funds in the conservatorship account as above outlined and that the respondent has failed and/or refused to provide said accounting to said District Court.
“6. That by reason thereof the panel finds that the respondent was guilty of a violation of DR 1-102(A)(5) engaging in conduct that is prejudicial to the administration of justice and DR 1-102(A)(6) engaging in any other conduct that adversely reflects on his fitness to practice law.”
The original complaint alleged that respondent’s check No. 159, in the amount of $700.00, was returned to the mother of the minor children on the basis of insufficient funds and had never been paid, and that the proceeds received by respondent for two other months of compensation had never been accounted for. At the hearing there was testimony that the two allegedly unaccounted-for checks had been paid over to the mother, and that portion of the complaint was deleted by the Disciplinary Administrator. There was evidence that proceeds from an insurance company, received by respondent as conservator, had not been accounted for, but this claim had not been set forth in the complaint so the panel held it would not consider same. Therefore, the only matter before the panel on this complaint was the insufficient funds check — No. 159, dated July of 1984. It would appear that the portion of paragraph 4(B) of the Final Hearing Report stating “and that one other check received by respondent on behalf of the minor children was never accounted for” is not supported by the evidence.
In his brief, defendant argues that he had no knowledge of the request for an accounting filed in the conservatorship, and that is why he never appeared or filed an accounting. In his answer to the complaint, respondent stated:
“[T]his Respondent admits that he was given notice that a conservator was no longer needed, a request for an accounting and an accounting was provided.”
We conclude that the panel’s findings relative to check No. 159, and respondent’s failure to respond to the court ordered accounting, are supported by clear and convincing evidence to support its finding that respondent violated DR 1-102(A)(5) and DR 1-102(A)(6) (235 Kan. cxxxvii).
W3636 and W3637
REAL ESTATE AND AUTOMOBILE TRANSACTION The panel considered these two complaints together and found:
“7. That the peanut of the complaint involved in W3636 is that the respondent took a power of attorney from an elderly lady named Katie Bryant. That Katie Bryant had certain real estate and that respondent sold said real estate for the total sum of $47,500. That the money was then placed in respondent’s trust account and out of said sum of $47,500 there was paid a mortgage on said land owed to a bank in the sum of $34,116.54, but that there has never been an accounting to the said Katie Bryant for the balance of said funds in the approximate sum of $13,400. That there was presented into evidence receipts and expenditures from the respondent’s trust fund in which these funds were deposited and from the- said exhibits so introduced and examined by the panel the panel cannot find where any of the additional remaining funds were used for the use and/or benefit of the said Katie Bryant.
“8. That thereafter Arthur B. McKinley, attorney at law, was duly appointed as conservator for the said Katie Bryant in the District Court of Haskell County, Kansas, under the Case No. 85P9. There thereafter the respondent was ordered by Judge Rinehart, District Court of Haskell County, Kansas, to file in said guardianship and conservatorship proceedings a full and complete account of all. his acts as attorney in fact for Katie Bryant. That the respondent failed to do so and that Judge Rinehart then issued a show cause and contempt order which was personally served on the respondent which has still not caused the respondent to make an accounting in the affairs of the said Katie Bryant.
“(D) That under Complaint No. [W3637] the respondent was dealing with one Jeanie L. Hamblin as an attorney. That the respondent purchased an automobile from the said Jeanie L. Hamblin under an agreement prepared by the respondent. That the respondent was to pay for the automobile on a time basis. That Mrs. Hamblin instructed the respondent to go to the courthouse and transfer the title of the automobile to the respondent but to endorse Mrs. Hamblin’s name on said title as a lien holder since the respondent had not paid for said automobile. That respondent in violation of these instructions obtained a title in his own name without said lien holder endorsement thereon and later sold said automobile.
“9. That by reason of the complaints in W3636 and W3637 the panel finds that the respondent is guilty of conduct under DR 1-102 (A) (4) (5) & (6), to wit: Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; engaging in conduct that is prejudicial to the administration of justice; engaging in other conduct that adversely reflects on his fitness to practice law.”
Defendant contends he properly handled the proceeds re ceived from the sale of the Bryant property by disbursing same “to and/or for the benefit of Katie Bryant, her two daughters and granddaughter.” As to his failure to respond to the Haskell County proceedings seeking an accounting, respondent contends the court lacked jurisdiction over him as he was not a named party in the conservatorship proceeding.
As for the automobile transaction, respondent contends that he was not guilty of any wrong dealing. Respondent filed a general denial to this complaint. By virtue of this and respondent’s failure to appear at the hearing, respondent’s version of events surrounding the automobile transaction was not before the panel.
We conclude that the panel’s findings relative to the real estate and automobile transactions (W3636 and W3637) are supported by clear and convincing evidence and support its finding that respondent violated DR 1-102(A)(4), (5) and (6).
W3641
WORTHLESS CHECK CONVICTION
The panel found:
“(A) That the basis of the complaint under No. W3641 is as follows, to wit: That the respondent, Jeff V. Johnson was found guilty of giving two worthless checks, one in the sum Qf $38.05 and one in the sum of $24 both misdemeanors by the District Court of Stevens County, Kansas, on June 21, 1985.
“3. That thereafter the respondent appealed his convictions to the Court of Appeals of the state of Kansas on these charges, but the appeal has lapsed by reason of the fact that the respondent did nothing on these appeals.
“4. That by reason thereof, the respondent is guilty of DR 1-102(A)(4) in engaging in conduct involving dishonesty, fraud, deceit or misrepresentation and DR 1-102(A)(6) engaging in conduct that adversely reflects on his fitness to practice law.”
Respondent contends:
“That the above findings were not supported by any evidence except the Journal Entry in Stevens County Case Nos. 85CR02 and 85CR08. There was not clear and convincing evidence that the Respondent was guilty of the conduct found by the panel.”
Apparently, respondent believes that the panel was under an obligation to redetermine the question of respondent’s guilt on the check charges and could not find violations based upon records of conviction. Such contention is without merit. We conclude that the panel’s findings relative to the worthless check convictions are supported by clear and convincing evidence and support its finding that respondent violated DR 1-102(A)(4) and (6).
For his final issue, respondent contends the panel’s unanimous recommendation that he be disbarred is improper. Respondent contends the complaints should be dismissed, or, alternatively, that this court should grant a rehearing.
After having carefully reviewed the record, the court agrees with the panel that the respondent’s violations of the Code of Professional Responsibility are “serious and deep.” Like the panel herein, we are also concerned with respondent’s failure to cooperate with the Disciplinary Administrator or even appear at the hearing before the panel. Additionally, respondent’s conduct shows an attitude that he is not accountable to anyone for his actions — whether it be a client, district court, or the board of discipline. We conclude that respondent’s misconduct justifies the discipline recommended herein.
It is Therefore Ordered that Jeff Johnson be and he is hereby disbarred from the practice of law in the State of Kansas, the costs of this action are assessed to the respondent, and the Clerk of the appellate courts is directed to strike the name of respondent from the roll of attorneys admitted to the practice of law in Kansas.'
It is Further Ordered that respondent shall forthwith comply with the provisions of Supreme Court Rule 218 (235 Kan. cxxxii). | [
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The opinion of the court was delivered by
Miller, J.:
Kenneth W. Hood was charged with and was convicted by jury trial in Sedgwick County District Court of aggravated burglary, K.S.A. 21-3716; aggravated kidnapping, K.S.A. 21-3421; aggravated robbery, K.S.A. 21-3427; and rape, K.S.A. 1986 Supp. 21-3502. The trial court sustained the State’s motion to invoke the Habitual Criminal Act, K.S.A. 1986 Supp. 21-4504, and imposed sentences of 10 to 40 years for aggravated burglary; life imprisonment for aggravated kidnapping; 30 years to life for aggravated robbery; and 30 years to life for rape. The sentences for aggravated kidnapping and aggravated robbery run concurrent with each other and consecutive to the sentence for aggravated burglary, and the sentence for rape runs consecutive to the sentences for aggravated kidnapping and aggravated robbery. All sentences run consecutive to the sentence from which the defendant was on parole at the time of the commission of these offenses.
Hood appeals, raising three issues: that the State exhibited purposeful racial discrimination in removing the only two black jurors by the exercise of its peremptory challenges; that the trial court erred in continuing the trial with eleven jurors, with the defendant’s written consent but without the consent of his counsel, and without determining defendant’s competency to waive a jury of twelve; and that the evidence was insufficient to support defendant’s conviction of aggravated kidnapping. We turn first to the matter of the exercise of peremptory challenges by the State.
A review of the case and statutory law surrounding this issue will be helpful at the outset. Challenges for cause are governed by K.S.A. 22-3410. Some nine different grounds of challenge for cause are enumerated therein. Peremptory challenges, however, are not challenges for cause, but historically are challenges determined by the attorneys on each side without showing any cause. They are exercised after challenges for cause have been ruled upon and after a qualified panel has been selected. The peremptory challenges are then exercised in order to reduce the panel to the number of jurors required to try the case. The number of peremptory challenges granted to each side in a criminal prosecution is governed by K.S.A. 1986 Supp. 22-3412.
Our prior cases have held that a defendant has a right to require that the State not deliberately and systematically deny to members of his race the right to participate as jurors in the administration of justice. State v. Sanders, 225 Kan. 147, 149, 587 P.2d 893 (1978). We have also held in prior cases that a defendant does not have the right to demand that members of his race or minority group be included on the trial jury. Error would occur only if the race or group were systematically excluded from jury service. See State v. Levier, 226 Kan. 461, 466-67, 601 P.2d 1116 (1979); State v. Holloway, 219 Kan. 245, Syl. ¶ 5, 547 P.2d 741 (1976). Also, we have previously held that the fact that the State exercised its peremptory challenges to remove the only members of the accused’s race or group from the trial jury did not alone deprive the accused of a fair trial. See State v. Taylor, 225 Kan. 788, 594 P.2d 211 (1979); State v. King, 219 Kan. 508, Syl. ¶ 2, 548 P.2d 803 (1976); State v. Holloway, 219 Kan. at 249.
The rule laid down in the last three cases relating to the State’s exercise of peremptory challenges, however, is no longer the controlling law in that area. The United States Supreme Court enunciated a new rule in the case of Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). Trial in the case now before us was concluded and Hood was convicted on April 24, 1986; the Batson decision was announced on April 30, 1986; Hood was sentenced by the trial court on May 9, 1986. On January 13, 1987, the United States Supreme Court announced its decision in the case of Griffith v. Kentucky, 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987). Griffith holds that the new constitutional rule established in Batson must be applied retroactively to cases which are pending upon direct appellate review, or which were not final, at the time the new rule was established. The Court said:
“The fact that the new rule may constitute a clear break with the past has no bearing on the ‘actual inequity that results’ when only one of many similarly situated defendants receives the benefit of the new rule. [Citation omitted.]
“We therefore hold that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” 479 U.S. at 327-28.
Therefore, under Griffith, the rule established in Batson must be applied in this case, and in all Kansas cases which are pending on direct appeal, or which are not yet final, or which arose after April 30, 1986.
Batson, a black man (as is defendant Hood), was indicted in Kentucky and charged with second-degree burglary and receipt of stolen property. On the first day of trial, the prosecutor used his peremptory challenges to strike all four black persons on the venire, and a jury composed of only white persons was selected to try the case. Defense counsel moved to discharge the jury before it was sworn on the ground that the prosecutor’s removal of the black jurors violated his client’s Sixth and Fourteenth Amendment rights to a jury drawn from a cross section of the community, and his rights under the Equal Protection Clause of the Fourteenth Amendment. The trial judge ruled that the parties were entitled to use peremptory challenges to strike any juror they wished, and denied the motion. The Supreme Court of Kentucky affirmed, observing that it had recently reaffirmed its reliance on Swain v. Alabama, 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824 (1965), and consequently decided not to follow California and Massachusetts cases as suggested by Batson’s counsel. In Swain, the prosecutor exercised his six peremptory challenges by striking all of the six blacks from the panel, with the result that Swain, a black man, was convicted by a jury from which all members of his race had been removed. The Swain court held that:
“The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome ... by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it.” 380 U.S. at 222.
The Court went on to explain that a state may not exercise its challenges in controvention of the Equal Protection Clause, and also stated that a black defendant could make out a prima facie case of purposeful discrimination on proof that the peremptory challenge system was being perverted. The Court said:
“[W]hen the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries, the Fourteenth Amendment claim takes on added significance.” Swain v. Alabama, 380 U.S. at 223.
The Court in Swain concluded that the petitioner had not in troduced sufficient evidence in that case to sustain his burden of proof.
In Batson, the United States Supreme Court observed that a number of lower courts, following Swain, reasoned that proof of repeated striking of blacks by the prosecution over a number of cases, and not just in the case then being considered, was necessary to establish a violation of the Equal Protection Clause. We followed that line of reasoning and quoted Swain in State v. King, 219 Kan. at 511-12, and we followed the same rule in State v. Taylor, 225 Kan. at 794-95.
In Batson, the Court noted that the lower courts’ interpretation of Swain has placed a crippling burden of proof upon defendants. The interpretation would require the defendant to investigate the State’s peremptory challenges in a number of cases to determine the races of the persons who were excused and the manner in which both parties exercised peremptory challenges; in jurisdictions where the voir dire was not transcribed, it would present an insurmountable burden. To remedy this situation, the Court holds in Batson that to establish a prima facie case of purposeful discrimination, the accused need no longer prove the repeated striking of blacks, or other minorities, over a number of cases; a prima facie case of discrimination can be made in the jury selection process in the accused’s case. Under the Batson rule, to establish a prima facie case of purposeful discrimination:
(1) Defendant needs to show only that he or she is a member of a cognizable group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of that group.
(2) Defendant is entitled to rely upon the fact that peremptory challenges constitute a jury selection process that permits “those to discriminate who are of a mind to discriminate.”
(3) Defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race or group. Following Batson v. Kentucky, 476 U.S. at 96.
The showing required by paragraph one above is not difficult. If the defendant is black, or belongs to a minority group, and the prosecutor has used peremptory challenges to remove the member or members of the jury panel of that race or group from the trial jury, the showing required by paragraph one has been made.
The second paragraph merely states a fact upon which the defendant may rely. No evidence need be offered to establish that fact. It is one judicially noticed by the United States Supreme Court.
The third and final paragraph above indicates the defendant may, but is not required to, offer additional evidence. He or she may offer evidence that the prosecutor has similarly stricken black or minority jurors in other cases; such evidence, however, is unnecessary. The Batson court indicates in the opinion that a “pattern” of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. The manner in which the prosecutor questions minority veniremen may be considered by the court, particularly if it differs from his or her questioning of non-minority persons. The fact that -a prosecutor has, by peremptory challenge, removed all members — or the only member — of the accused’s race or minority group from the venire is in itself sufficient to raise an inference of discriminatory purpose. The trial court is then called upon to determine whether a sufficient showing has been made. In this regard the Supreme Court says:
“In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a ‘pattern’ of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges create a prima facie case of discrimination against black jurors.” Batson v. Kentucky, 476 U.S. at 96-97.
Once the defendant has made a prima facie showing of purposeful discrimination, the burden then shifts to the State to come forward with a neutral explanation for challenging black jurors. The explanation need not rise to the level justifying the exercise of a challenge for cause, but the prosecutor may not rebut a prima facie case of discrimination “by stating merely that he challenged jurors of defendant’s race on the assumption — or his intuitive judgment — that they would be partial to the defendant because of their shared race.” Nor may the prosecutor rebut the prima facie case “merely by denying that he had a discriminatory motive or ‘affirming his good faith in individual selections.’ ” Batson v. Kentucky, 476 U.S. at 97-98.
Peremptory challenges have in the past been exercised by either party without any stated cause. Batson imposes a limitation on the full peremptory character of the historic challenge. A prosecutor who exercises peremptory challenges to remove members of a minority defendant’s race from the trial jury must now be prepared to come forward and state on the record a neutral explanation of such challenges. In the case now before us, the prosecutor removed, by peremptory challenge, the only two members of defendant’s race on the panel. Defense counsel interposed a timely objection. The trial court noted that in the case of the first juror, the fact that the juror “thinks he remembers Mr. Hood from years gone by and his answer to questions concerning burden of proof [establishes that] there could be no reason to believe that his being stricken was for the purpose of racial stacking.” But the court allowed the prosecution an opportunity to address the excuse of the other juror, Mr. Richard. The prosecutor merely stated that she didn’t think it necessary to respond, but due to the nature of Mr. Richard’s responses in regard to questioning regarding the burden of proof, there was justification for use of a peremptory challenge.
The first juror, Mr. Williams, a long-time resident of Wichita, stated on voir dire, “I think I know the defendant. ... I think I knew him when he was young; a lot younger. ... I knew him when he was eight, nine. . . . [B]ut as far as recall of the exact circumstances, I can’t.” He also responded that his prior knowledge of the defendant would in no way influence his ability to be fair and impartial.
With reference to a juror’s knowledge of or acquaintanceship with the accused, it would be difficult in many judicial districts in this state to select a jury panel with members who had no acquaintanceship with the defendant. On the other hand, in the metropolitan districts, it is unlikely that many persons drawn on a jury panel would be acquainted with the accused. What the practice is with reference to striking jurors on peremptory challenge in Sedgwick County because of their slight or possible acquaintanceship with a defendant, we do not know. That may be a regular practice in the metropolitan areas. We do not find in the record any indication that other jurors were acquainted with the defendant, or what the usual practice of the prosecution in that district is with regard to striking jurors who may know the defendant.
The prosecutor spent some time with the black jurors, Mr. Williams and Mr. Richard, discussing the concept of reasonable doubt. The sum and substance of Mr. Williams’ testimony was that he would not require the State to prove the defendant guilty beyond all doubt; he would simply require the State to satisfy him of the defendant’s guilt beyond a reasonable doubt. As he expressed it:
“MR. WILLIAMS: Well, if a reasonable doubt existed in my mind, then he would be not guilty.
“MR. WILLIAMS: . . . if I didn’t have a reasonable doubt, then he would — I would, you know, consider him guilty.
“MR. WILLIAMS: Well, if you prove to me beyond a reasonable doubt then it’s guilty.”
Mr. Richard’s responses were similar.
The jury in this case was given an instruction similar to PIK Crim. 2d 52.02. The instruction given read in part as follows:
“If you have no reasonable doubt as to the truth of any of the claims made by the State, you must find the defendant guilty as charged; or 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.”
That appears to be the position of jurors Richard and Williams in response to lengthy questioning by the prosecutor with reference to reasonable doubt. Other jurors similarly responded that, unless they were personally satisfied that guilt was established by the evidence beyond a reasonable doubt, they would acquit the defendant.
As we noted earlier, this case was tried and the defendant was convicted before the decision in Batson was announced. Batson requires the trial courts initially to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors. If the court determines that a prima facie case has been made, then the State must articulate its neutral explanation, following which the trial court then will have the duty to determine if the defendant has established purposeful discrimination. Once the prima facie case is made, the burden shifts to the State; if the State does not come forward with a satisfactory neutral explanation for the exercise of its peremptory challenges, the prima facie showing of discrimination stands, and a new jury must be selected.
In the case now before us it appears that the trial court, at the time it gave the State an opportunity to explain its peremptory challenge of Mr. Richard, found that a prima facie showing had been made. We make no determination as to that, or as to whether the reasons apparent upon the record, or known to counsel or the court, for the removal of the only black jurors by the State by peremptory challenge are sufficient to counteract the defendant’s showing of purposeful discrimination. We did not see or hear the examination of the jurors. Since the Batson opinion had not been handed down, court and counsel were not aware of it, and the prosecutor may well have further “neutral reasons” or further explanation to make to the court with reference to the exercise of the prosecution’s peremptory challenges. We therefore hold that the case must be remanded to the trial court for further proceedings in this regard, not for further evidence, but for further argument before the trial court, based upon the trial record and counsel’s recollection, as to the propriety of the peremptory challenges exercised by the State. The trial court must then make the determinations required by Batson.
For his second issue, defendant contends that the trial court should have declared a mistrial after discovering that one juror was subject to a pending murder charge, instead of accepting the defendant’s stipulation to an eleven-person jury over his attorney’s objection, and without determining defendant’s competency to make such a decision. On the second morning of trial, it was discovered that Mr. Greg Chism, one of the jurors impaneled to try the case, and who sat through the voir dire and first day of testimony, was himself charged with first-degree murder, and that a preliminary examination for him was scheduled two days later in another division of the Sedgwick County District Court. Counsel and the defendant met in chambers with the judge and discussed the matter. The trial judge stated that there were three alternatives: continue with trial, with Mr. Chism serving as a juror; excuse Mr. Chism, complete the trial with eleven jurors with an admonition that the remaining jurors were not to consider, worry, or talk about why Mr. Chism was excused; or declare a mistrial. Counsel for the State was opposed to continuing with Mr. Chism as a juror. Counsel for the defendant indicated that his personal feeling was that the appropriate remedy would be for the trial court to declare a mistrial. Counsel was not inclined to proceed with just eleven members on the jury, and made that recommendation to his client. The trial court ruled that the decision was that of the accused, not of his counsel, and that the client’s decision would control. The trial court then had the following discussion with the defendant:
“THE COURT: All right. Mr. Hood, do you wish to proceed with eleven jurors or do you wish to have a mistrial and have the matter set for.—
“THE DEFENDANT: I want to go on with it.
“THE COURT: You want to go on with it?
“THE DEFENDANT: Yeah.
“THE COURT: You want to complete the trial—
“THE DEFENDANT: Yes.
“THE COURT: —with eleven jurors.
“THE DEFENDANT: Yes.
“THE COURT: Okay. All right. And for the record, you have had an opportunity to discuss this with Mr. Britton [defendant’s attorney] and he’s talked to you about it and he’s recommended to you that there be a mistrial.
“THE DEFENDANT: Yes.
“THE COURT: Okay. And he’s explained to you that if we were to proceed with eleven jurors and you were to be found guilty of one or more of the charges against you, that in all probability that would not be reversible error since you are electing to go with eleven jurors.
“THE DEFENDANT: Yes.
“THE COURT: Okay. All right.”
At that point, the trial court caused Mr. Chism to be called out from the jury room, and the court excused him from further service in the case. A recess was then taken, following which the defendant, counsel, and the trial court convened in chambers. Counsel for the defendant made a motion asking the court to consider an evaluation of his client’s competency, stating that his client was not really listening to his advice on the matter of waiving the right to a twelve-person jury, rights which counsel felt to be extremely substantive and important, and counsel expressed the belief that there might be some problem with the defendant’s ability to understand or appreciate the gravity of his predicament. The trial court denied the motion for a competency evaluation, stating in substance that his observation of Mr. Hood in the courtroom had been such that he had no reason to believe that Hood was not competent. A written stipulation was handed to the defendant which read, “We agree upon proceeding with only eleven jurors in this case.” The stipulation was signed in open court by Mr. Hood, and by the prosecutor on behalf of the State. The trial court accepted the stipulation, and counsel then reviewed and approved the trial court’s proposed instruction to the jury with reference to Mr. Chism’s being excused from further service. The jury was called and trial proceeded.
K.S.A. 22-3403(2) reads as follows:
“A jury in a felony ease shall consist of twelve members. However the parties may agree in writing, at any timé before the verdict, with the approval of the court, that the jury shall consist of any number less than twelve.” (Emphasis added.)
The defendant has the right of trial by jury. This is assured to him by sections 5 and 10 of the Bill of Rights of the Kansas Constitution and by the Sixth Amendment to the United States Constitution made applicable to the states through the Fourteenth Amendment. See Duncan v. Louisiana, 391 U.S. 145, 20 L. Ed. 2d 491, 88 S. Ct. 1444, reh. denied 392 U.S. 947 (1968); Patton v. United States, 281 U.S. 276, 74 L. Ed. 854, 50 S. Ct. 253 (1930); State v. Irving, 216 Kan. 588, 533 P.2d 1225 (1975); In re Rolfs, Petitioner, 30 Kan. 758, 1 Pac. 523 (1883). Those cases also support the rule that a defendant, personally, may waive the right to trial by jury. We find no Kansas case indicating that a defendant alone cannot waive his right to a twelve-member jury, and since the right belongs to the defendant, we conclude that the defendant personally, and not counsel for the defendant, has the right to assent to trial by less than a twelve-person jury. There is nothing in the record to indicate that the defendant did not fully understand his waiver. Though he did not take the advice of his counsel, the defendant cannot now predicate error on actions taken by him in his own defense. Bloomer v. State, 216 Kan. 469, 533 P.2d 278 (1975). Further, there is nothing in the record to indicate that the defendant was incompetent to stand trial or to make the decision to proceed with eleven jurors. We find no error.
Finally, defendant contends that there was not sufficient evidence to support his conviction of aggravated kidnapping. He argues that the movement of the victim from the kitchen to the bedroom was incidental to and inherent in the crime of rape, and thus does not meet the familiar test of the sufficiency of the taking or confinement to constitute aggravated kidnapping set forth in State v. Buggs, 219 Kan. 203, 216, 547 P.2d 720 (1976). The rule has been frequently quoted, and we need not set it out in full here. Suffice it to say that the victim in this case was forced into the back bedroom at gunpoint, thrown on the bed face down, covered with pillows, continually threatened, and kept in that position for some 30 minutes while the defendant searched for valuables. She was then raped and tied up. Her restraint began before the robbery and continued throughout the robbery, rape, and escape. Her confinement was not inherent in or incident to the crime of robbery or rape. However, her confinement made both crimes easier to commit, and substantially lessened the risk of detection of the defendant immediately after he left the dwelling. Viewed in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found the defendant guilty of aggravated kidnapping beyond a reasonable doubt. There is an abundance of competent evidence to support the conviction of aggravated kidnapping.
For the reasons stated earlier, the case is remanded to the District Court of Sedgwick County for further proceedings. If upon hearing the matter, the trial court determines that the prosecutor had a neutral reason for striking the two black jurors by peremptory challenge, no further proceedings are required and the conviction shall stand. If, however, the trial court fails to accept the prosecution’s explanation, the court shall set aside the conviction and order a new trial. | [
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The opinion of the court was delivered by
Herd, J.:
This is a workers’ compensation case. Susan Poole, surviving wife of Gary Poole, on behalf of herself and their three minor children, appeals the district court’s finding that benefits must be denied pursuant to K.S.A. 1987 Supp. 44-501(d) because death was substantially caused by Poole’s intoxication.
The relevant facts are as follows: Gary Poole was a six foot-one-inch, 180-pound, 29 year-old truck driver who was killed when his semi-truck overturned early one morning as he was returning home. Poole worked for the Earp Meat Company loading and delivering meat. Appellant’s claim for death benefits through workers’ compensation was denied because of evidence the accident was caused by Poole’s intoxication. Poole was depicted as an athletic man who was proud of his body and therefore drank very little. He had never been seen to drink more than a beer or two.
Poole had suffered a back injury on the job about six months prior to his fatal crash and complained for weeks to his wife and co-workers that the pain of his injury caused him to be physically exhausted. A few days before his death, he began passing blood in his urine. On the Wednesday before the fatal accident, a co-worker called in sick, forcing Poole to make an extra run and thus work several hours longer than usual. Poole’s Thursday shift caused him to get home around 2:00 a.m. Friday morning. He lay down next to his wife and told her, “I feel terrible — I’m so tired — I just don’t feel well.” That Friday morning he got up earlier than normal, around 7:30 a.m., to install a new washer and dryer in his home. He left for work around 12:30 that afternoon and appellant expected to see him at approximately 2:00 a.m. Saturday morning.
Poole arrived at the meat packing plant in Oklahoma City around 6:30 p.m. without incident. There was no evidence he had been drinking. He loaded his truck with 40,000 pounds of meat and headed back towards Wichita, traveling north on the four-lane Interstate Highway 35. At approximately one o’clock Saturday morning, his truck jackknifed and the weight of the trailer caused the truck to roll over on its top. Poole was thrown through the windshield, pinned under the truck, and killed almost instantly.
There were no witnesses to the accident, but officers talked to several people who came immediately upon the scene. One witness stated Poole passed his car a short time before the accident, going about 70 mph on a downhill grade. No witnesses reported Poole had been driving in an erratic or unusual manner. Poole’s speed was estimated on the accident report to be 65 mph before contact, and 40 mph at contact.
Officer Gary Brower found marks on the median which showed Poole had drifted left onto the median for about 375 feet. The tire marks showed Poole had then turned a hard right, as if he had suddenly awakened and tried to get back up on the road. The sharp turn caused the truck to jackknife and flip. The officers on the scene could find no mechanical defect to explain the accident. Nor could they find paint or any other indication that another vehicle had sideswiped Poole and caused him to go into the center median.
Inside the truck and on the ground around the truck the officers found some beer cans, both full and empty. There were three or four empty cans and about the same amount of full beers, still cool, some of them still in a sack. Poole’s hands were greasy as if he had been working on his truck or someone else’s vehicle. The officers did not notice any grease on the beer cans.
Poole should have passed the point where the accident occurred at about 7:30 p.m. Efforts to determine how he spent the six hours between the time he left the meat packing plant and the time of his accident were futile. Officer Brower concluded after his investigation that the cause of the accident was that Poole had gone to sleep.
Oklahoma has a policy of obtaining a blood alcohol reading on all fatalities to determine what percentage of fatalities are caused by alcohol. Poole’s body was therefore transported to an emergency room at about 2:42 a.m. and a coroner examined the body. He noted the body smelled of alcohol, and in talking to a patrolman, he learned there were alcohol containers around the vehicle at the time of the accident. Trooper Brower had not noticed the body smelled of alcohol. The only smell he could detect was that of spilled diesel fuel. There was a notation on the traffic report, however, which indicated one of the officers had noticed the smell of alcohol.
The coroner drew blood with a syringe used for the express purpose of withdrawing blood specimens for alcohol testing. There was no evidence the test was not performed in a proper and timely manner. The blood sample was sent to the state’s forensic toxicologist, who normally tests blood samples from traffic accidents. He found no sign of tampering and no evidence of irregularities in testing. The blood was found to contain .13% by weight/volume of ethyl alcohol. The toxicologist was of the opinion that an alcohol level of .08% and above causes almost all drivers to be impaired.
After learning of the alcohol level, Officer Brower testified the accident could have been caused by alcohol and said in his opinion a person with a .13% alcohol level would have slower reactions and impaired response. He noted the impairment would be greater if the person was not used to the effects of alcohol.
Patrick Glynn, an independent forensic chemist, testified on behalf of appellant that it was not possible for a man of Poole’s height and weight to have a .13% blood alcohol level from only three or four beers unless raw alcohol had contaminated the blood sample. His testimony was not mentioned in the briefs or at oral argument. We therefore find appellant has abandoned the use of Glynn’s theory as a possible explanation for the test results.
Appellant met her burden under K.S.A. 1987 Supp. 44-501 to establish her right to compensation. The burden of proving a defense to the claim then shifted to the employer. Earp maintains Poole was not eligible for compensation because death resulted “substantially from the employee’s intoxication . . . .” K.S.A. 1987 Supp. 44-501.
The administrative law judge denied compensation after the hearing, finding Poole’s death was substantially caused by Poole’s “excessive use of alcohol.” The findings of fact provide:
“1. At the time of his accidental injury, on September 21, 1985, the Claimant’s blood had an ethyl alcohol content of 0.13% weight per volume.
“2. The Claimant’s blood-alcohol content was a result of the Claimant’s deliberate and intentional ingesting of alcoholic liquids prior to driving.
“3. At the time of the accidental injury on September 21, 1985, and as a result of the Claimant’s alcohol consumption, the Claimant’s driving ability was very substantially impaired. This impairment included the Claimant’s inability to drive his truck in a safe manner, and the Claimant’s inability to remain fully alert while driving that truck on September 21, 1985.
“4. As indicated, the immediate cause of the Claimant’s death was the accidental injury on September 21, 1985. However, that injury on September 21, 1985, was caused by the Claimant’s intoxication [sic] of alcoholic liquid. As a result of his intoxication, the Claimant became inattentive while driving, resulting in the truck going out of control and wrecking.”
The director of the workers’ compensation division reversed the administrative law judge’s order and awarded compensation. The reasons given for reversal are as follows:
“The Director finds the claimants herein should be awarded benefits as the evidence does not show that the decedent’s injury and death was caused substantially by his intoxication. The evidence shows the decedent had a blood alcohol content of .13%, however, that does not address the question. The speculation the decedent may have fallen asleep because he was tired or because he was under the influence of alcohol does not address the question. While a blood alcohol content of . 13% may constitute intoxication for purposes of laws regarding the regulation of motor vehicle driving, that percentage of blood alcohol does not raise a presumption that the individual in a workers’ compensation case was intoxicated. The Workers’ Compensation Law does not provide for denial of benefits for consuming alcohol nor for having a blood alcohol content of .13%, but rather provides for the denial of benefits if an individual’s accident is caused substantially by his intoxication. There is no evidence in the record to show the decedent was intoxicated. There is no evidence in the record to indicate that a blood alcohol content of .13% would automatically mean that the individual was acting in an intoxicated manner or would be unable to control himself in an apparently normal manner.
“Since our law must be construed to effect the purposes of the Act and pay compensation where reasonably possible to do so, our law cannot at the same time be construed to assume that an individual’s accident is caused by his intoxication when there is no evidence of intoxication other than the arbitrary standard established for purposes of law other than workers’ compensation.”
On December 9,1986, the district court reversed the director’s findings and appellant was once again denied compensation. The district court found as follows:
“Having heard the arguments and statements of counsel, having reviewed the file and record generated below, and having considered the matter fully, the Court finds and concludes, for reasons set forth in the record of December 9, 1986, that the claimant’s accidental injury and death was substantially caused by his intoxication and compensation is hereby disallowed. The findings and conclusions of the Administrative Law Judge are hereby adopted as the findings and conclusions of this Court, and said Award of the Administrative Law Judge is attached hereto and incorporated herein by reference as though fully set out.”
The Court of Appeals affirmed the ruling of the district court in an unpublished opinion filed September 10, 1987, and we granted review.
It is a crime in Kansas for a person with an alcohol level of .10% or more to drive a vehicle. K.S.A. 1987 Supp. 8-1567. Both Kansas and Oklahoma, for purposes of criminal prosecution for violation of laws relating to operation of a vehicle while under the influence of alcohol, presume that an alcohol level of .10% or more is prima facie evidence the defendant was under the influence of alcohol to a degree that rendered him incapable of driving safely. K.S.A. 1987 Supp. 8-1005; Okla. Stat. tit. 47 § 756(c) (1988 Supp.).
Appellant contends the issue in this case is whether the presumption of intoxication for purposes of criminal prosecution can be adopted in a workers’ compensation case in order to deny benefits. Earp denies that the administrative law judge based his decision on such a presumption and argues the sole issue on appeal is whether there is substantial evidence to support the district court’s decision.
We find there is no evidence the administrative law judge based his decision on a presumption of intoxication under K.S.A. 1987 Supp. 8-1005, and therefore the issue before us is whether the district court erred in its finding that Poole’s death was caused substantially by his intoxication. The scope of appellate review for workers’ compensation cases is that applicable in other civil cases. K.S.A. 77-623. If we find, when viewing the evidence in the light most favorable to the prevailing party, that there is substantial competent evidence supporting the district court’s factual findings, we are bound by those findings. Houston v. Kansas Highway Patrol, 238 Kan. 192, 194, 708 P.2d 533 (1985), overruled on other grounds Murphy v. IBP, Inc., 240 Kan. 141, Syl. ¶ 2, 727 P.2d 468 (1986).
The foregoing rule is modified by our firm commitment to a rule of liberal construction of the workers’ compensation statutes to effect legislative intent and award compensation to a worker where it is reasonably possible to do so. Brinkmeyer v. City of Wichita, 223 Kan. 393, 396, 573 P.2d 1044 (1978); Thuillez v. Yellow Transit Freight Lines, 187 Kan. 618, 621-22, 358 P.2d 676 (1961); Matlock v. Hollis, 153 Kan. 227, 232, 109 P.2d 119 (1941). The district court is bound by the rule of liberal construction and if it fails in its application, this court has the duty to correct that failure. Bender v. Salina Roofing Co., 179 Kan. 415, 422, 295 P.2d 662 (1956).
Our Workers’ Compensation Act does not define “intoxication.” Black’s Law Dictionary 738 (5th ed. 1979), states the term comprehends that situation where,
“by reason of drinking intoxicants, an individual does not have the normal use of his physical or mental faculties, thus rendering him incapable of acting in the manner in which an ordinarily prudent and cautious man, in full possession of his faculties, using reasonable care, would act under like conditions.”
Our Alcoholism and Intoxication Treatment Act defines an intoxicated individual as “an individual whose mental or physical functioning is substantially impaired as a result of the use of alcohol.” K.S.A. 1987 Supp. 65-4003(10).
Arthur Larson in 1A Larson’s Workman’s Compensation Law § 34.10 (1985) notes that the question of what constitutes intoxication is “a very old one, and one that has never received a satisfactory answer. But when the law sets out to deny compensation on the ground of intoxication, the matter of definition becomes one of extreme gravity.”
Larson states it is well established that proof of intoxication does not follow from the sole evidence that the claimant had a few drinks, or that he smelled of liquor, or from the discovery of an empty liquor container, but that a combination of such evidence might support a finding of intoxication. Evidence of the alcohol level in the blood is generally admissible. 1A Larson, § 34.12. Blood tests taken to determine intoxication pursuant to a motor vehicle statute are generally admissible unless the statute specifically provides the results may not be used as evidence in a civil action. See Rourke v. Carl’s Drug, 56 App. Div. 2d 202, 392 N.Y.S.2d 498 (1977); R. W. Rine Drilling Company v. Ferguson, 496 P.2d 1169 (Okla. 1972).
Even if Poole was found to have been “intoxicated,” Earp must still prove his death was substantially caused by that intoxication. If, for example, Poole’s tires had exploded, that would have been the substantial cause of his death and it would not matter how intoxicated Poole was at the time. Appellant claims the substantial cause of Poole’s death was that he fell asleep and notes there is no defense under K.S.A. 1987 Supp. 44-501(d) whereby she may be denied benefits because her husband was so tired he fell asleep.
Most jurisdictions, wherever possible within the plain meaning of the statute, require the defense of intoxication to be clearly made out before finding a claim can be denied. 1A Larson’s Workman’s Compensation Law § 34.31. The only applicable Kansas case regarding the intoxication issue is Schmidt v. Jensen Motors, Inc., 208 Kan. 182, 490 P.2d 383 (1971). Schmidt was decided under K.S.A. 1970 Supp. 44-501(b), which required compensation to be disallowed if the injury was found to have resulted “solely from the worker’s intoxication.” (Emphasis added.)
The deceased in Schmidt was a traveling salesman who had appeared sober when visiting his last contact, but was killed an hour or two later in a crash in which it was estimated he was driving around 90 mph. The highway was wet and there was no evidence of intoxication except for a test which showed the deceased’s blood alcohol level to be .162%.
In Schmidt, the district court upheld compensation. Thus we were required to consider the evidence in the light most favorable to the claimant and look only for substantial evidence supporting the finding. We noted the blood sample was drawn by a mortician, rather than a physician or qualified medical technician. The chief chemist with the lab services division of the State Board of Health testified it was his opinion a .162% alcohol level would not cause everyone to be intoxicated, and a patrolman testified that, although alcohol was probably a contributing circumstance to the accident, he could not say it was the sole cause. We thus concluded the evidence was sufficient to sustain the district court’s negative finding that the death was not caused solely by reason of intoxication.
The case at bar is different in several important respects. The district court made a positive finding that Poole’s death was “substantially caused by his intoxication.” We therefore have the duty to look at the evidence supporting the employer, rather than the claimant.
In Clay v. Bituminous Cas. Co., 401 So. 2d 1257 (La. App.) writ of review denied 409 So. 2d 616 (La. 1981), a truck driver with an alcohol level of .15% was injured when he swerved off the highway. The appellate court had earlier held the presumption of intoxication, under the state’s criminal statute, when a blood alcohol level is over .10%, is inapplicable to civil cases, although evidence of the alcohol level might still be submitted. The appellate court found the district court was not in clear error in finding the plaintiff was intoxicated and the intoxication caused the accident, and affirmed denial of benefits despite testimony by the driver that he had consumed only three beers. Renefits may be denied under Louisiana statute if an accident is found to be “caused by” intoxication. La. Rev. Stat. Ann. Art. 23:1081 (West 1985).
At the time of Schmidt, under K.S.A. 1969 Supp. 8-1005, a person was not presumed to be criminally liable for driving while intoxicated unless the alcohol concentration in his blood was .15% or more. In Schmidt, the deceased’s employer argued the blood test proved intoxication was the cause of the fatal accident. Claimants did not object to the use of the criminal statute for a presumption of intoxication, but instead pointed out such a presumption was rebuttable. The issue of whether the presumption of intoxication was applicable to a workers’ compensation case was neither raised nor decided in Schmidt. It is at issue here. We hold the presumption of intoxication provided for in K.S.A. 1987 Supp. 8-1005 is inapplicable to workers’ compensation cases. However, evidence of the blood alcohol content of a claimant is relevant and thus admissible on the issue of the cause of the accident, but does not give rise to a presumption of intoxication.
In Driscoll v. Great Plains Marketing Co., 322 N.W.2d 478 (S.D. 1982), the appellate court upheld denial of a compensation claim when an employee with an alcohol level of .16% had a car accident on an icy curve of a country road, holding the hearing officer was not clearly erroneous in finding the employee’s intoxication was the “proximate cause” of the accident.
It is in the appellee’s favor that there is more evidence of intoxication in the case before us than in Schmidt. Empty beer cans were found in and around the truck. The blood test was taken by a medical doctor under approved circumstances, and he testified Poole smelled of alcohol. The deceased’s relatives testified Poole was not accustomed to the effects of alcohol, and there were no contributing factors such as bad weather or mechanical failure to explain the accident.
In Schmidt the salesman was driving much faster and with a higher alcohol level than Poole. There was testimony in Schmidt that not everyone would necessarily be intoxicated at an alcohol level of .162%. There is, however, evidence that all individuals with an alcohol level of .10% or above are impaired to some extent. See State v. Larson, 12 Kan. App. 2d 198, 202-03, 737 P.2d 880 (1987).
A major difference between the cases is that under the amended statute the employer now is required only to prove the death was caused substantially by alcohol. Schmidt indicates the evidence concerning the pain and exhaustion experienced by Poole from a previous injury on the job would probably have been sufficient to hold Poole’s death was not caused solely by intoxication. In Curtis v. Cross Bay Excavating Co., 65 App. Div. 2d 638, 409 N.Y.S.2d 279 (1978), an intoxicated employee died in an accident. Because his leg had been rendered unstable in a previous work-related injury, the New York court, under a statute requiring intoxication to be the sole cause of the accident, allowed recovery.
The word “substantial” is not defined under our workers’ compensation statute. The word is defined in Black’s Law Dictionary 1280 (5th ed. 1979), as something “[o]f real worth and importance .... Something worthwhile as distinguished from something without value or merely nominal.” Earp contends the legislature’s change of solely to substantially was a direct response to the holding in Schmidt because the burden of proof in proving an accident was caused solely by intoxication was seen to be almost insurmountable.
Arkansas had at one time a statute which required the employer to prove an accident was caused solely by intoxication. In Jones Truck Lines v. Letsch, 245 Ark. 982, 436 S.W.2d 282 (1969), the claimant truck driver ran off the road. A doctor testified that medication and an earlier head injury could have contributed to the accident by causing the claimant to have become confused. Intoxication was thus held not to be the sole cause of the accident and benefits were awarded.
The Arkansas legislature later amended the statute to read substantially instead of solely. Ark. Code Ann. tit. 11 § 9-401 (1987). In Country Pride v. Holly, 3 Ark. App. 216, 624 S.W.2d 443 (1981), the workers’ compensation commission found a claimant’s injury was “substantially occasioned” by intoxication. The claimant had a history of alcoholism and smelled of intoxicants at the time of his injury. The district court reversed, but the appellate court found substantial evidence existed to support the commission’s finding, reversed the district court, and denied compensation.
California’s workers’ compensation statute requires the injury to be “caused by” intoxication. Cal. Labor Code § 3600(a)(4) (West 1988 Supp.). This was construed in Smith v. Workers’ Compensation Appeals Bd., 123 Cal. App. 3d 763, 176 Cal. Rptr. 843 (1981), to require the injury to be “substantially” caused by intoxication. In Smith, the claimant’s husband was killed in a car accident while returning from a job site. He was found to have an alcohol level of .25% and had been observed drinking earlier in the day. The California court held that, although a blood alcohol level of .25% does not in itself establish that intoxication caused the injury, there was sufficient evidence to support the board’s finding that death was caused substantially by intoxication despite evidence that the weather was bad, the road was bad, and the deceased had appeared sober and coordinated to his coworkers.
Even though we give the Workers’ Compensation Act a liberal construction in favor of the worker as required, we find the alcohol content of Mr. Poole’s blood, coupled with the smell of alcohol, the empty beer cans, and other evidence, to be sufficient substantial competent evidence to support the district court’s finding that the fatal accident was substantially caused by Poole’s impairment due to intoxication.
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal by AT&T Technologies, Inc., (AT&T) from an order of the State Roard of Tax Appeals (ROTA) concerning assessment of state and local sales taxes upon certain of its services and a cross-appeal by the Kansas Department of Revenue from BOTA’s order setting aside the assessment of retailers’ compensating (use) tax on software programs transferred by AT&T to Southwestern Bell Telephone Company (Bell). The case was transferred from the Court of Appeals pursuant to K.S.A. 20-3018(c).
Appellant AT&T raises three issues on appeal as follows:
1) Whether state and local taxes pursuant to the Kansas retailers’ sales tax act (K.S.A. 79-3601 et seq.) are payable on gross receipts from repair services performed by appellant during calendar years 1979, 1980, and 1981, on telephones which had been provided by Bell to its telephone service customers;
2) Whether the BOTA has the authority to order a re-audit of the local sales tax assessed against appellant on gross receipts for installation services which were performed in various Kansas localities; and
3) Whether the BOTA acted unreasonably, arbitrarily, or capriciously in refusing to order abatement of sales tax allegedly assessed on repair services performed outside Kansas.
The Department of Revenue cross-appeals, raising the following issue:
1) Whether the transfer by AT&T of computer software to Bell, for purposes of operating computerized electronic switching system (ESS) equipment located in various central telephone offices, is a taxable transaction under the Kansas compensating tax act (K.S.A. 79-3701 et seq.).
The facts are set forth in great detail in the BOTA order and will be briefly summarized here. In early 1982, the Department of Revenue conducted a sales and use tax audit of AT&T, formerly known as Western Electric Company, covering the three-year period from January 1, 1979, through December 31, 1981. The audit resulted in the assessment of additional taxes in the amount of $5,001,524. Following an informal audit review conference, the assessment was amended to reflect a total liability of $3,175,372. The matter was then the subject of a hearing before the Director of Taxation where additional adjustments resulted. AT&T appealed the Director’s assessment to the BOTA, which essentially upheld the sales tax assessment on repair services but abated and set aside an assessment of compensating tax upon software developed by AT&T out of state and furnished to Bell for use in its various telephone offices. AT&T appeals from the BOTA order as to the sales tax assessment and the Department of Revenue cross-appeals from the abatement of the compensating tax assessment. Bell has joined with AT&T in asserting its appeal, presumably pursuant to K.S.A. 1987 Supp. 74-2426(c)(l). Additional facts will be detailed in connection with the various issues on appeal.
Repair Services
The first issue in the AT&T appeal is whether certain services furnished by AT&T in repairing telephones owned by Bell were subject to sales tax under the Kansas retailers’ sales tax act. AT&T asserts error by the BOTA based upon K.S.A. 79-3603(q), which provides:
“For the privilege of engaging in the business of selling tangible personal property at retail in this state or rendering or furnishing any of the services taxable under this act, there is hereby levied and there shall be collected and paid a tax as follows:
“(q) a tax at the rate of 3% upon the gross receipts received for the service of repairing, servicing, altering or maintaining tangible personal property which when such services are rendered is not being held for sale in the regular course of business, and whether or not any tangible personal property is transferred in connection therewith.” (Emphasis added.)
AT&T and Bell contend that the telephones were “being held” by Bell “for sale in the regular course of business” and that the repairs were not subject to sales tax under the statute.
The facts relating to this issue are not disputed. During the audit period AT&T furnished certain services and equipment to Bell, including the repair of telephones used by Bell in providing telephone service to its customers. Bell, during the audit period, was required under tariffs approved by the Kansas Corporation Commission to provide telephones, including maintenance of that equipment, to its telephone service customers if they so requested, although the customers could, if they wished, acquire from third-party vendors their own telephones which could in turn be connected to Bell’s lines. The customer, when using telephones provided by Bell, paid an additional sum in monthly telephone service rates which varied depending upon the number and type of telephones selected by the service customer. If the customer provided the telephones, an adjustment was made by Bell in the monthly cost of the telephone service. Title and ownership of telephones provided by Bell to its customers remained in Bell.
Bell purchased its telephones new from AT&T, and AT&T collected and remitted sales tax on those purchases. These telephones were installed in the homes and businesses of Bell telephone service customers who desired Bell provide them telephones and maintenance. When a telephone malfunctioned, Bell would repair it, if possible, on the customer’s premises. If on-site repairs could not be made, Bell would replace the malfunctioning telephone with another, and ship the malfunctioning instrument to AT&T’s Merriam, Kansas, service center to be evaluated for possible repair. The Merriam service center processed telephones received from Bell offices in Kansas, Missouri, and Oklahoma. Upon receipt of a telephone, AT&T inspected it to determine whether it could be repaired or whether it should be junked. If it could not be repaired, a nominal charge was made to Bell for the inspection. If repairable, AT&T would place the telephone in an “as new condition” and then return it to Bell. Repaired telephones were returned to Bell offices in each state in proportion to the value of telephones received by AT&T from each state. The telephones lost their individual identity while processed by AT&T, and no claim is made that a repaired telephone was returned to the specific Bell customer who had previously used the instrument. The repaired telephones were merely placed in Bell’s inventory for future use in servicing its customers. During the repair process, ownership of the telephones remained with Bell.
AT&T charged Bell a standard amount for repairs based upon the particular style or type of telephone and did not collect or remit sales tax on the repair charges. In the final adjusted assessment by the Division of Taxation, a total of $1,505,463 in state and local sales tax was assessed on the amount received for repair service receipts, of which $1,109,462 was for receipts from repairs to telephones returned to Bell offices outside Kansas, and $396,001 represented tax on repairs associated with telephones returned to Bell offices in Kansas,
The narrow issue before this court is whether these facts represent a situation contemplated by the statutory words, “service of repairing, servicing, altering or maintaining tangible personal property which when such services are rendered is not being held for sale in the regular course of business,” contained in K.S.A. 79-3603(q). The Department of Revenue contends that the telephones repaired by AT&T were “not being held for sale in the regular course of business,” and therefore the repair services were subject to sales tax. AT&T argues the telephones were being held for sale by Bell in the regular course of its business, emphasizing that the term “sale” is defined very broadly by K.S.A. 79-3602(c), and therefore the repair services were not subject to sales tax.
Sale is defined in the statute as:
“ ‘Sale’ or ‘sales’ means the exchange of tangible personal property, as well as the sale thereof for money, and every transaction, conditional or otherwise, for a consideration, constituting a sale, including the sale or furnishing of electrical energy, gas, water, services or entertainment taxable under the terms of this act and including, except as provided in the following provision, the sale of the use of tangible personal property by way of a lease or the rental thereof. The term ‘sale’ or ‘sales’ shall not mean the sale of the use of any tangible personal property used as a dwelling by way of a lease or rental thereof for a term of more than 28 consecutive days.” K.S.A. 79-3602(c).
In addressing this issue, the BOTA stated in part:
“In interpreting the provisions of the sales tax statute the Board notes that since the sales tax statutes are penal they must be strictly construed in favor of the taxpayer. This rule of strict construction, however, does not permit a disregard of manifest legislative intent appearing from plain and unambiguous language. The design of the sales tax statutes is to tax the ultimate consumer of goods when they are sold and not to tax intervening sales. Capital Electric Line Builders v. Lennen, [232 Kan. 379, 654 P.2d 464 (1982)].
“In support of its contention that Bell was not holding the handsets for sale (rent) in the ordinary course of its business but rather that the use of handsets was in its business of providing telephone services and therefore meant to be outside the exception contained in K.S.A. 79-3603(q), the Department of Revenue cites the case of Southwestern Bell Telephone Company v. State Commission of Revenue and Taxation, 168 Kan. 227, 212 P.2d 363 (1949). The issue in that case was whether Southwestern Bell Telephone Company had to pay compensating tax on the property which it purchased outside the state and brought into the state to be used by it in the operation and maintenance of its telephone system. The Court held that the equipment and property which consisted of, among other things, its central office equipment, telephone handsets, pole lines, wire, cables and the like were, when purchased, subject to the Kansas Compensating Tax. Southwestern Bell Telephone Company had asserted that those items of property became an ingredient or component part of taxable telephone services and therefore were not separately taxable as the sales tax is collected upon the provision of the telephone service.” (Emphasis in original.)
In Southwestern Bell Tel. Co. v. State Commissioner of Revenue & Taxation, 168 Kan. 227, 212 P.2d 363 (1949), Bell sought to avoid the imposition of a compensating tax upon equipment, including telephones, purchased out of state and brought into Kansas for use by Bell in furnishing its telephone service to its customers. It was Bell’s contention, inter alia, that,
“the property in question [including telephones installed in customers’ premises] is used and enters into the processing of and becomes an ingredient of the service it furnishes. In other words, it argues that its instruments, poles, wire and other similar property bears the same relation to its telephone service that a carload of hides would to one engaged in the manufacture of shoes or a carload of flour does to a baker.” 168 Kan. at 232.
After discussing the relationship between the sales tax and the compensating tax, the Court stated:
“There is one basic principle about our sales tax act. It is that the ultimate consumer should pay the tax and no article should have to carry more than one sales tax. The intention was that in the various steps between a loaf of bread and the wheat field the person who bought the wheat from the farmer should not pay a sales tax nor the mill that bought it from the elevator man nor the jobber who bought the flour from the mill nor the baker who bought the flour from the jobber. To prevent such a result as nearly as possible, G.S. 1947 Supp. 79-3602(k) was enacted. It had to be so. It should be noted that for each step from the wheat field to the bakery the title to the wheat and flour passed. It was bought each time with the idea of the title passing and there being a resale. This is not true of the property in question here. When the telephone company buys a pole and sets it in the ground the pole belongs to it and the title does not pass to anyone of the telephone company’s service. When the baker buys a new oven or the shoemaker a new machine or the shirtmaker a new sewing machine, he pays a sales tax on these purchases because they are the ultimate consumers, the title has come to rest, no further transfer of title is contemplated.” 168 Kan. at 233.
The court determined Bell was liable for payment of compensating tax upon its purchase of telephones, as well as other equipment, in that the property did not become a part of the sale of services to its customers, stating:
“Here it seems clear that the property in question is finally used by the plaintiff [Southwestern Bell].” 168 Kan. at 235.
The BOTA, in addition to Southwestern Bell, relied upon Nashville Mobilphone Co., Inc. v. Woods, 655 S.W.2d 934, 937 (Tenn. 1983), stating:
“The Department cites the Board to the Tennessee case of Nashville Mobil-phone Co., Inc. v. Woods, 665 S.W.2d 934, 937 (Tenn. 1983). That case involved the taxability of purchases made by Mobilphone. Mobilphone contended that the radiophones it purchased for use in its mobilephone service were purchased for resale (rental) to the public and therefore the sale to Mobilphone was exempt as ‘sale or sales for resale.’ The Court explained the distinction to be applied when equipment is used to provide a taxable service:
‘The trial judge relied upon and cited numerous other cases involving sales of equipment to hotels, airlines, bowling alleys and the like, where all or part of such equipment was later leased or rented to customers in exchange for charges, some of them involving maintenance fees. In the great majority of these cases purchases of such equipment were held to be taxable, as not constituting sales for resale, even though use of the facility or equipment was later made by customers who paid therefor. See, e.g., Atlanta American Motor Hotel Corp. v. Undercofler, 222 Ga. 295, 149 S.E.2d 691 (1966); Boise Bowling Center v. State, 93 Idaho 367, 461 P.2d 262 (1969); Sta-Ru Corp. v. Mahin, 64 Ill. 2d 330, 1 Ill. Dec. 67, 356 N.E.2d 67 (1976); Kentucky Board of Tax Appeals v. Brown Hotel Company, 528 S.W.2d 715 (Ky. 1975); Sine v. State Tax Commission, 15 Utah 2d 214, 390 P.2d 130 (1964).
‘The general theme of all of these cases is that when the primary function and purpose of the taxpayer is to provide services, the ownership, use and maintenance of certain types of personal property and equipment are necessary in order to enable it to furnish the services so that the taxpayer, not the customer, is the ultimate user or consumer within the meaning of the sales and use tax statute.’
“The facts in that case, as in this case, show that the taxpayer did not rent its telephone equipment to the general public, but only to its subscribers, even though a subscriber could famish its own equipment and still obtain the service. The facts in the Mobilphone case are remarkably similar to the facts of this case. The Court there found that Mobilphone was the ultimate user of the equipment. Mobilphone was not in the general business of renting radiophones or signaling equipment for general use by the public. It only rented or leased its equipment to its own subscribers who, in every instance, also utilized its service as a radio common carrier. So it was with Bell during the audit period.
“Also involved in the Mobilphone case was the issue of taxability of repairs to the Mobilphone equipment by another taxpayer corporation. In the Mobilphone case, Melrose Electronics Inc. did repair and maintenance work on equipment leased or rented to the subscribers of Mobilphone. Mobilphone contended that the repairs by Melrose Electronics to its equipment were non-taxable since it held the phones for resale. The discussion of the facts is not substantial enough for the Board to determine whether the issue is the same as presented to the Board in this case but the Board does note that the Court found the repairs to be taxable.”
In concluding that AT&T was liable for sales tax upon the services it rendered Bell in repairing Bell’s telephones, the BOTA stated:
“Applying the principles discussed above to the facts of this case, the Board therefore determines that for purposes of application of K.S.A. 79-3603(q) the handsets and other customer premises equipment owned by Bell and furnished to its customers as part of its telephone service were not, during the audit period, held by it for sale in the regular course of business. Bell used the handsets and other customer premises equipment to provide its telephone service. The repairs by the taxpayer to the Bell owned equipment are therefore taxable under K.S.A. 79-3603(q) and the taxpayer should have collected sales tax on the gross receipts from the service of repairing the equipment.”
We think Nashville Mobilphone, when read in conjunction with our opinion in Southwestern Bell, is persuasive for its holding that repair services performed on Nashville Mobil-phone, Inc., radio phones by Melrose Electronics, Inc., an independent corporation, were subject to sales tax under Tennessee’s sales tax statute. Because the court there held that Nashville Mobilphone, and not its service customers, was the primary user or consumer of the equipment, it reasoned that Melrose Electronics was not furnishing repair services on equipment held for purposes of resale, and its repair service charges were therefore subject to the sales tax on services. In Southwestern Bell we held that Bell is the final user of its equipment, including telephones, necessary to provide service to its customers. It was on that basis that Nashville Mobilphone concluded that repair services to such equipment could not avoid sales tax because the equipment was not being held for resale. We think Southwestern Bell is controlling for its holding that the telephone company is the final user or consumer of telephones and other equipment necessary to enable it to provide services to its customers. An attempt was made at oral argument to distinguish Southwestern Bell from the present case based upon the extensive technical advances and changes since 1949. While it may be conceded that the entire telecommunications industry has undergone great changes, that fact does not change the basic holding of Southwestern Bell. The telephones used here in providing services to Bell’s customers apparently were used in the same manner as the telephones in Southwestern Bell. The telephones in question were at all times the property of Bell and we conclude that the BOTA was correct in its determination that the repaired telephones were not “being held [by Bell] for sale in the regular course of business.” K.S.A. 79-3603(q). The repair of such equipment by AT&T was correctly found to be subject to the Kansas retailers’ sales tax.
Re-Audit of Local Sales Tax on Installation Services
The second issue raised by AT&T is whether the BOTA acted within its authority in ordering a re-audit on that portion of the sales tax assessment representing local sales tax on receipts from installation services performed by AT&T personnel for Bell. Whether such services were subject to sales tax is not in dispute. The Department of Revenue assessed local sales tax, however, based upon the location of AT&T’s service center in Merriam, Johnson County, Kansas. The services were actually conducted throughout the state by personnel stationed in Dodge City, Wichita, Salina, and Topeka.
On November 18, 1985, the Director of Taxation ordered a re-audit of the assessment to comply with this court’s decision in Capital Electric Line Builders, Inc. v. Lennen, 232 Kan. 379, 386, 654 P.2d 464 (1982), modified on other grounds and reh. denied, 232 Kan. 652, 658 P.2d 365 (1983), which held that services are subject to the local sales tax of the locality in which the services are actually performed. Capital Electric was decided after the assessment by the Department of Revenue in this case.
The total amount of local tax assessed on installation labor was $377,342 based upon the local sales tax rate in Merriam, Kansas. AT&T essentially argues that the BOTA should have abated the assessment in its entirety as being void, and that the BOTA had no authority to remand the assessment for a re-audit. AT&T also contends that a re-audit is barred by the statute of limitations. The Department of Revenue contends that the order for a re-audit is not a final order which is appealable. None of these arguments have merit. The BOTA disposed of this issue, stating:
“The audit disclosed that the taxpayer had performed installation services for Bell but had not paid sales tax on the receipts attributable to such services performed within the State of Kansas. The audit assessed all of the sales tax on installation services as though those services had been performed in Merriam, Johnson County, Kansas. The amount of local sales tax attributable to installation services which was included in the original sales tax assessment was $377,342.00. The Order of the Director of Taxation made November 18, 1985, directed a re-audit to conform the assessment to the findings of the case of Capital Electric Line Builders v. Lennen, 232 Kan. 379, 654 P.2d 464 (1982). In this regard, the Director of Taxation agreed with the taxpayer and recognized that the audit had improperly applied sales tax on repairs [sic] [installation services] made outside of Merriam, Kansas. This issue remains for determination by the Board because apparently the audit staff of the Department of Revenue has been unable to gather the information necessary to make the adjustments. The Department of Revenue asserts that the audit staff was denied access to information and supporting documentation. The taxpayer denies that allegation. Regardless of the reason for the inability or failure of the audit staff to re-audit, the Board believes that the audit should be performed and the assessment adjusted in accordance with the Director’s original Order and the decision of Capital Electric Line Builders. The Board does not agree that the failure of the Department of Revenue to complete a re-audit renders the assessment null and void. The Board believes that the taxpayer now bears the burden of coming forward with its records to justify an adjustment of the original assessment. The Board did not have sufficient evidence at the hearing to determine that the taxpayer had intentionally failed to provide information requested by the Department in order to complete a re-audit. The Board therefore believes that the Department of Revenue should undertake a re-audit for the purpose of determining the proper amount of sales tax to be applied and that the taxpayer must furnish whatever documentation the Department reasonably needs to determine the proper amount of local sales taxes.”
We conclude that the BOTA is vested with the power to order a remand to the Department of Revenue to properly determine the amount of the assessment. When the evidence is insufficient or additional evidence, findings, or conclusions are necessary to properly determine an issue, the BOTA has the implied, if not specific, authority to require additional proceedings. K.S.A. 74-2437 grants to the BOTA the authority to hear appeals from the director of taxation. Such authority includes appeals from assessments of sales tax and carries with it the authority to require proceedings sufficient for the BOTA to make a rational determination of the issues.
Based upon Capital Electric, the assessment of local sales tax should have been based upon the local tax where the services were rendered and not upon the local tax applicable in the City of Merriam. The BOTA acted properly in ordering the re-audit to comply with the requirements of Capital Electric. Appellant’s arguments concerning the statute of limitations have been care fully considered and we find them to lack merit. The matter must be remanded to the BOTA to carry out its directive of a re-audit of this portion of the assessment.
Sales Tax Allegedly Assessed on Out-of-State Repairs
The third and last issue raised by AT&T is whether the BOTA’s refusal to order abatement of sales tax allegedly assessed on repair services performed out of state, on telephones delivered to Bell in Kansas, was unreasonable, arbitrary, and capricious. AT&T alleges that the December 1985 final assessment included $43,669 in sales tax on services not subject to the Kansas sales tax since the services were performed outside the state. That Kansas sales tax may not be imposed on such services is not in dispute and is conceded by the Department of Revenue.
The testimony presented by AT&T before the Director of Taxation indicated that this sum had been removed in the process of amending the assessment. In testimony presented to the BOTA, however, AT&T’s witness testified that an amount of $43,669 originally assessed for repairs performed elsewhere had not been abated in the December 1985 amended assessment. The appellee’s employee who had been responsible for performing the audit also testified. When asked on cross-examination whether the disputed amount had been included in the December 1985 final assessment, he stated that he could not remember, nor could he remember deleting the amount.
On the basis of this testimony, the BOTA disposed of this issue as follows:
“The final issue for determination of the Board is whether the original sales tax assessment includes assessments for repairs made by the taxpayer to Bell equipment which repairs were performed outside of the State of Kansas. The Department of Revenue has conceded that repair operations performed outside of Kansas are not subject to Kansas Sales or Compensating Tax and that any part of the assessment based upon repairs made outside the State of Kansas should be deleted from the assessment. The taxpayer bears the burden of proof as to amounts claimed for out of state repairs. The Board is unable to determine from the exhibits or the testimony the amount of the deletions, if any, which should be made and therefore denies the taxpayer’s appeal in this regard.”
While it is true that K.S.A. 77-621(a)(l) places the burden upon AT&T to prove the invalidity of the assessment, it would appear to us that whether the $43,669 was erroneously assessed should be readily ascertainable in the records of the Department of Revenue. If sales tax was assessed upon services performed out of state, that portion of the assessment should be abated. We have carefully reviewed the record including the documents submitted by both parties and they are not conclusive either way. In the interests of justice to the taxpayer, we are of the opinion that this portion of the assessment should be remanded to the BOTA, which in turn should remand the issue to the Department of Revenue for further proceedings sufficient to make a proper determination.
Cross-Appeal
We now turn to the cross-appeal of the Department of Revenue. As a part of the 1979-1981 audit, the Department of Revenue assessed a compensating tax pursuant to K.S.A. 79-3701 et seq. against certain computer software developed by AT&T outside of Kansas for use by Bell in Kansas. As in the issues raised by AT&T in its appeal, the basic facts are not seriously in dispute.
During the audit period, AT&T developed software under contract for Bell to use in its offices located in Kansas. The software was specifically tailored according to the unique requirements specified by Bell to suit each of its different central switching offices that used computerized switching equipment. The computerized switching equipment (hardware) was manufactured and sold by AT&T to Bell. The software to be used with the hardware was developed, or programmed, in locations outside Kansas. It was provided to Bell’s Kansas offices under a nonexclusive license granting Bell the right to use the software in consideration for license fees payable by Bell to AT&T. AT&T retained ownership of and proprietary rights to the software and provided periodic updates of the software programs. The electronic switching system software is referred to throughout the record as ESS software but will be referred to in this opinion simply as software except when it is necessary to specifically identify the ESS software.
The programmed instructions comprising the software were physically transmitted to Bell central telephone offices by means of magnetic tape or magnetic cards. AT&T collected and remitted tax on the gross receipts from the magnetic media, but did not do so on the gross receipts from the license fees for the software. The Department of Revenue assessed compensating tax on the amount billed by AT&T for the software license fees, resulting in a total tax of $221,562, excluding interest.
Based upon these facts, the BOTA initially determined that the software was intangible personal property. It reasoned that a distinction was drawn between operational software and application software by this court in In re Tax Protest of Strayer, 239 Kan. 136, 716 P.2d 588 (1986), and that “[t]he facts in this case are abundantly clear that the ESS software is application software.” Next, the BOTA determined that the compensating tax statutes (K.S.A. 79-3701 et seq.) expressly apply only to the “use” of tangible personal property, and therefore found that the software fees were not subject to compensating tax, regardless of whether they would have been subject to Kansas sales tax.
In reaching its determination that the ESS software was not subject to the compensating tax, the BOTA stated, in part:
“The first issue the Board will deal with is whether the ESS software is tangible personal property or intangible personal property. The significance of this determination will become apparent later in this Order.
“K.S.A. 79-3602(f) defines ‘tangible personal property’ as ‘corporeal personal property’. Corporeal personal property is not further defined in the statute. The courts and legislatures around the country have, over the last few years, addressed the issue of whether computer software is tangible personal property or intangible personal property. In 1986, the Kansas Supreme Court addressed this issue for the first time in the case of In Re Tax Protest of Thomas D. Strayer, supra. The issue in the Strayer case arose out of a property tax assessment by the Graham County Appraiser upon computer software licensed to Thomas Strayer. The value of the software was based upon the initial fee charged for the software. This Board had made the determination that computer software was tangible personal property and subject to personal property taxation. The Supreme Court first reviewed the nature of computer software and its interaction with the computer hardware. The Court said at page 137:
‘[A] functioning computer is a combination of hardware and computer programs, sometimes called “software.” The electronic data processing industry is made up of a number of companies which offer numerous types of products and/or services to users of electronic data processing equipment. The data processing equipment is often referred to as computer hardware. Computer programs are the instructions which make the data processing equipment perform tasks and include “operational programs,” which orchestrate the basic functions of the computer, and “application programs,” which provide the particularized instructions adapted for specialized programs.’
The Court reviewed the evolution of the theory regarding taxation of computer software from the time IBM announced that it would price its hardware sepa rately from software and services. The Board will not undertake a complete review of the theories and application of the various states which were thoroughly reviewed by the Court in the Strayer case, but would note as the Court does at page 138:
‘Almost all states which have considered the nature of computer software have found that the software is intangible personal property. This is generally based on the idea that the information contained on the software is the product being sold, that this information can be transmitted in many forms, including over the telephone, and that the information often becomes outdated and must be replaced. Only one state has found that software is tangible personal property, but the appellate court noted it could not determine from the record how to apportion the purchase price between operational and application functions of the software.’ (See District of Columbia vs. Universal Computer Assoc., Inc., 465 F.2d 615 (D.C. Cir. 1972); Commerce Union Bank v. Tidwell, 538 S.W.2d 405 (Tenn. 1976); First National Bank v. Dep’t of Revenue, 85 Ill. 2d 84, 421 N.E.2d 175 (1981); James v. Tres Computer Service, Inc., 642 S.W.2d 347 (Mo. 1982); Maccabees v. Treasury Dep’t., 122 Mich. App. 660, 332 N.W.2d 561 (1983); State v. Central Computer Services, Inc., 349 So. 2d 1156 (Ala. App. 1977); Greyhound Computer v. St. Dep’t, 271 Md. 674, 320 A.2d 52 (1974).
“The Kansas Supreme Court goes on to determine that:
‘. . . Under the tax statutes, software programs which constitute the operational programs, without which a computer cannot operate, have a value that is to be considered an essential portion of the computer hardware and therefore taxable as tangible personal property in conjunction with the hardware. Application programs, which are particularized instructions adopted for special programs, are intangible property and not subject to the personal property tax for tangible personal property.’
The question then arises whether this distinction between operational programs as tangible personal property and application programs as intangible property carries over to the sales tax statutes. The Board believes that the same distinctions are applicable for sales tax purposes. The Court in Strayer looked to the definition of “tangible” contained in the sales tax statutes at K.S.A. 79-3602(f). For intangibles the Court looked at the Uniform Commercial Code at K.S.A. 84-9-106. The Board cannot find that computer software which is intangible property for purposes of property taxation can somehow become tangible property when looking to its taxability under the sales tax statutes.
“Thus, in Kansas, whether computer software is tangible property or intangible property depends upon whether it is operational software or application software. The facts in this case are abundantly clear that the ESS software is application software. It contains particularized instructions adopted for special programs unique to each central office. It is designed to meet the special needs of a single customer for a specific telephone central office and could not be used by another customer, or by Bell at another telephone central office, without major modification. The Board therefore determines that the ESS software is intangible property.
“Both the taxpayer and the Department of Revenue agree that if the right-to- use fees for the ESS software are taxable it is under the Kansas Compensating Tax provisions found at K.S.A. 79-3701 et seq. The taxpayer contends that K.S.A. 79-3701 et seq. does not tax the use of intangible personal property even if such property would have been taxed under the Sales Tax Act.
“The Sales Tax Act is incorporated by reference by K.S.A. 79-3702(b) which states:
‘(b) The meaning ascribed to words and phrases in K.S.A. 79-3602, insofar as practicable, shall be applicable herein unless otherwise provided. The provisions of K.S.A. 79-3601 to 79-3625, both inclusive, relating to enforcement, collection and administration, insofar as practicable, shall have full force and effect with respect to taxes imposed under the provisions of this act.’
K.S.A. 79-3703 imposes a tax:
‘. . . for the privilege of using, storing, or consuming within this state any article of tangible personal property. Such tax shall be levied and collected in an amount equal to consideration paid by the taxpayer multiplied by the rate of three percent (3%). All property purchased or leased within or without this state subsequently used, stored or consumed in this state shall be subject to the compensating tax if the same property or transaction would have been subject to Kansas retailers’ sales [tax] had the transaction been wholly within this state.’
The word ‘use’ is defined by K.S.A. 79-3702 as:
‘(c) The word “use” means and includes the exercise within this state by any person of any right or power over tangible personal property incident to the ownership of that property, . . .’
The taxpayer asserts that the definition of the word ‘use’ is tied to the use of tangible personal property and that the use of intangible personal property is not covered by the Kansas Compensating Tax statutes. The problem arises because the last sentence of K.S.A. 79-3703 refers to ‘all property . . .‘used’ . . .’ and then provides that the property shall be subject to compensating tax if it would have been subject to Kansas Retailers’ Sales Tax had the transaction been wholly within Kansas. The term ‘use’ contained in K.S.A. 79-3702(c) appears to be limited to use of‘tangible personal property’ but the Kansas Retailers’ Sales Tax is applicable to both tangible and some intangible personal property. The Board is unable to find any Kansas case which applies compensating tax to intangible property. Further the Board has been unable to find any legislative research materials which would assist the Board in interpreting the scope of K.S.A. 79-3703. That statute as originally passed in 1937 did not contain the definitions of K.S.A. 79-3702 and in particular the definition of‘use’ found at subparagraph (c). It also did not contain the last sentence of K.S.A. 79-3703 which states:
‘All property purchased or leased within or without this state and subsequently used, stored or consumed in this state shall be subject to the compensating tax if the same property or transaction would have been subject to
Kansas retailers’ sales tax had the transaction been wholly within this state.’ The definition of the word ‘use’ was added in 1945. The last sentence of K.S.A. 79-3703 was added in 1953, but unfortunately, there is no legislative history to indicate the reason for the addition of that last sentence.
“The Board therefore must apply the rules of statutory construction to determine whether K.S.A. 79-3703 applies to the use of intangible property.
“The first rule of construction when dealing with tax statutes is that they will not be extended by implication beyond the clear import of the language employed therein, and their operation will not be enlarged so as to include matters not specifically embraced. Director of Taxation, Department of Revenue v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 691 P.2d 1303 (1984). And in the same vein, sales tax statutes are penal, and thus must be strictly construed in favor of the taxpayer. Appeal of J.G. Masonry, Inc., 235 Kan. 497, 680 P.2d 291 (1984). Where there is reasonable doubt as to the meaning of the taxing act, it will be construed most favorably to the taxpayer. National Coop Refinery Assoc. v. Bd. of Co. Commrs. of McPherson County, 228 Kan. 595, 618 P.2d 1176 (1980). In construing the statutes, 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, and, to this end, it is the duty of the Court, so far as practicable, to reconcile different provisions so as to make them consistent, harmonious, and sensible. Wirt v. Esrey, 233 Kan. 300, 662 P.2d 1238 (1983).
“The Board believes that the term ‘using’ and the term ‘used’ found in K.S.A. 79-3703 must be interpreted by application of the definition of the word ‘use’ found in K.S.A. 79-3702(c). ‘Use’ in subparagraph (c) means ‘the exercise within this state by any person of any right or power over tangible personal property incident to the ownership of that property . . . .’ There is no dispute between the taxpayer and the Department of Revenue that if the Kansas Compensating Tax is applicable to the right-to-use fees, it is because the property is used within this state. The only compensating tax which is applicable to property used in this state is where that property is tangible personal property as ‘use’ is defined in K.S.A. 79-3702(c). It is within that definition of the word ‘use’ that K.S.A. 79-3703 imposes a tax. Clearly the first sentence of K.S.A. 79-3703 is inapplicable since it specifically states that the tax is ‘. . . for the privilege of using . . . within this state any article of tangible personal property.’ The last sentence of K.S.A. 79-3703 starts with the words ‘All property’ which would at first appear to include both tangible and intangible property, but goes on to state that it is ‘All property . . . used ... in this state.’ What does the term ‘used’ in this sentence mean? The Board believes that it means ‘used’ within the meaning of the word ‘use’ as that term is defined at K.S.A. 79-3702(c). Therefore, the Board finds that, construing the statute strictly against the Department of Revenue and in favor of the taxpayer, there is no imposition of compensating tax for the use of intangible property even if that same property or transaction would have been subject to the Kansas Retailers’ Sales Tax had the transaction been wholly within the state.”
We concur in the conclusions reached by the ROTA. The compensating tax is also popularly known as a “use” tax upon property purchased out of state and used, stored, or consumed in this state. While the Kansas retailers’ sales tax act and the Kansas compensating tax act complement each other, they are not identical. K.S.A. 79-3603 provides for a sales tax on tangible personal property and certain services set forth in the statute. K.S.A. 79-3703 provides for a compensating tax on tangible personal property purchased outside the state and brought into Kansas. It does not assess a compensating tax on intangible property or on services.
The Department of Revenue relies heavily on K.S.A. 79-3603(s), which purports to apply sales tax to computer software. Regardless of its effect upon software purchased in Kansas, it is not a definitional statute that defines software as tangible personal property, as the Department of Revenue contends. Nor does K.S.A. 1987 Supp. 79-3703 apply to intangible property. The statute is clear in assessing a compensating tax on tangible personal property, and the last sentence which refers to all property does not expand the tax to intangible property even if such property might be subject to sales tax under 79-3603.
Nowhere in the retailers’ sales tax act is “use” defined in a manner that would be applicable to the compensating tax act. The definitions in K.S.A. 79-3602 which may be applicable to the compensating tax act by reason of K.S.A. 79-3702(b) do not define “use.” Also, the definition of “tangible personal property” in K.S.A. 79-3602(f) does not purport to cover computer software. Whether K.S.A. 79-3603(s) was intended to apply the sales tax to computer software as a form of tangible personal property or as a service we need not determine here. If it had been the intent of the legislature, when it enacted K.S.A. 79-3603(s), to impose a compensating tax on computer software purchased out of state it could easily have been accomplished by amending the appropriate statutes.
We agree with the BOTA that computer software, at least to the extent that it is application software as recognized in Strayer, is intangible personal property and as such does not come within the compensating tax act which specifically applies only to tangible personal property. It is also clear that the compensating tax does not apply to services. Regardless of what the scope of K.S.A. 79-3603(s) may be in relation to the assessment of sales tax, we think it is clear that it has no application to the compensating tax. We have considered all the various arguments of the Department of Revenue and find them without merit.
In conclusion, we affirm the decision of the BOTA upholding the taxability of the AT&T repair services on Bell telephones; we affirm the authority of the BOTA to order a re-audit of the local sales tax included in the sales tax on repair services; we direct the BOTA to remand the issue of sales tax allegedly assessed on repair services performed outside Kansas to the Department of Revenue for a proper determination of the amount, if any, of the assessment which should be abated; and we affirm the decision of the BOTA that the ESS software purchased out of state was not subject to compensating tax.
The decision of the BOTA is affirmed in part and reversed in part, and the matter is remanded to the BOTA to proceed in accordance with the views expressed herein. | [
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal from a determination by the trial court that the dispositive language of an inter vivos trust instrument was unambiguous and that extrinsic evidence as to the intent of the settlors was inadmissible.
The facts are not in dispute. On March 6, 1986, Frank L. Huxtable and Lotus M. Huxtable, husband and wife, executed an inter vivos trust instrument naming as trustee the Fourth National Bank and Trust Company of Wichita (now Bank IV Wichita, N.A.). Upon the death of both settlors, the trust provided as follows for distribution of the trust corpus:
“B. Distributions Upon Death of Both Settlors. At such time as both Settlors shall have become deceased, the entire trust estate, both principal and accumulated income, shall be distributed in equal shares unto Settlors’ nieces and nephews (these being Wally Huxtable, Tom Huxtable and Beth Michaels (nephews and niece of Frank L. Huxtable) and Lorraine Nelson (niece of Lotus M. Huxtable)) and Settlors’ grand-nieces and grand-nephews, i.e., an equal share shall be distributed to each such niece, nephew, grand-niece and grand-nephew. If any niece or nephew is then deceased, the gift to such beneficiary shall lapse and shall be added equally unto the shares of the other beneficiaries; and if any great-niece or great-nephew shall then be deceased, such beneficiary’s share shall pass to her or his issue, by right of representation, or, if there be no such issue, the gift to such beneficiary shall lapse and shall be added equally unto the other shares under this Article.”
Frank L. Huxtable died May 23, 1986, and Lotus M. Huxtable died August 25, 1986. The trustee determined that there were ten nieces and nephews (eight living, two deceased) in addition to the four who were specifically named as beneficiaries in the trust instrument. Those ten nieces and nephews collectively had eighteen living children who are grandnieces and grandnephews of the settlors. The four nieces and nephews named in the trust as beneficiaries collectively have thirteen living children who are settlors’ grandnieces and grandnephews.
The trustee filed a petition seeking construction of the trust to determine whether all thirty-one grandnieces and grandnephews were to share as beneficiaries, or just the thirteen who are the children of the four named nieces and nephews. All parties apparently agree that the class of nieces and nephews is limited to the four specifically, named individuals., and. the other eight living nieces and nephews are not involved in this litigation. The parties to this appeal are a representative of the class made up of the thirteen children of the named nieces and nephews (Group A or appellant) and representatives of the class comprising the eighteen children of the nieces and nephews who were not named (Group B or appellees). If the distribution of the trust assets only includes Group A then the trust estate will be divided among seventeen persons, but if Group B is included, the trust will be divided among thirty-five persons.
The district court considered the parties’ trial briefs on the admissibility of extrinsic evidence of the settlors’ intent, consisting of testimony of the scrivener of the trust agreement. The court held that parol evidence was not admissible to construe the provision in question. It held that the provision was clear and unambiguous in directing distribution to the four named nieces and nephews and all thirty-one grandnieces and grandnephews (both Group A and Group B). The court’s order did not permit the parties to submit briefs on the question of the identity of the lawful beneficiaries of the trust, since it held that the beneficiaries were determinable “from the four corners of the instrument as same is clear and unambiguous.”
The basic issue raised on appéal is whether the provision in question contains a latent ambiguity as to the intended beneficiaries of the trust remainder. The appellant contends there is a latent ambiguity because the conceded facts concerning the settlors’ relatives raise a question whether the settlors intended to limit the term “grandnieces and grandnephews” to the thirteen children of the four named nieces and nephews. The appellees argue that the trust provision contains no latent ambiguity since it clearly and unambiguously specifies that the “Settlors’ grand-nieces and grand-nephews” are to share in the distribution, meaning all thirty-one members of that class.
When either a patent or latent ambiguity actually exists in a written instrument, parol evidence is admissible to ascertain the meaning of the words used. Roth v. Huser, 147 Kan. 433, 439, 76 P.2d 871 (1938). Whether an instrument is ambiguous is a matter of law to be decided by the court. Mobile Acres, Inc. v. Kurata, 211 Kan. 833, 839, 508 P.2d 889 (1973). The construction of a written instrument is a question of law, and the instrument may be construed and its legal effect determined by an appellate court. Peterson v. Midland Nat’l Bank, 242 Kan. 266, Syl. ¶ 1, 747 P.2d 159 (1987).
The parties have gone to great lengths in their trial briefs and appellate briefs to define the term “latent ambiguity” as distinguished from “patent ambiguity.”
“A latent ambiguity is one that is not apparent upon the face of the instrument alone and that is discovered when it is sought to identify the property, the beneficiaries, etc. . . .
. . . [A] latent ambiguity is defined as one which is not discoverable until extrinsic evidence is introduced to identify the beneficiaries or the property disposed of by will, when it is developed by such evidence, either that the description in the will is defective, or that it applies equally to two or more persons or things.” (Emphasis added.) 4 Bowe-Parker: Page on Wills § 32.7, p. 255 (rev. ed. 1961).
In contrast, a patent ambiguity is one which is apparent on the face of an instrument; for example, a will which in different clauses devises the same item of property to two different individuals. Although the modem trend is toward elimination of the distinction between the two, the terms are still helpful to iden tify those situations in which extrinsic evidence is admissible. See 4 Williston on Contracts § 627 (3rd ed. 1961); 4 BoweParker: Page on Wills § 32.7, p. 255. When there is a patent ambiguity extrinsic evidence of the intent of the settlor is clearly admissible. The same is true if there is an actual latent ambiguity. The difficulty arises in determining whether an ambiguity actually exists when it is asserted that a written instrument contains a latent ambiguity that requires extrinsic evidence as to the true intent and meaning of the language used.
The parties agree that there is no patent ambiguity in the language used by the settlors and that the trust instrument on its face is not subject to construction. However, Group A contends that the language “Settlors’ grand-nieces and grand-nephews” creates a latent ambiguity because the naming of the four nieces and nephews results in two different groups of grandnieces and grandnephews. Thus, they contend, extrinsic evidence is admissible to determine the actual intent of the settlors. We do not agree.
At the outset it must be determined whether the Huxtable trust agreement contains any ambiguity which would require the admission of extrinsic or parol evidence to explain its terms. While most of the published cases involve the construction of provisions in wills, the same rules that apply to their construction apply to trusts and most other written documents. In re Estate of Hauck, 170 Kan. 116, 119-20, 223 P.2d 707 (1950). Appellant argues that because the settlors placed a limitation upon the class of nieces and nephews by specifically naming four when there were actually twelve living, the court should have allowed extrinsic evidence to show the settlors’ intent was to limit the broad class of grandnieces and grandnephews to only the children of the four named nieces and nephews. It is clear that the language, “Settlors’ grand-nieces and grand-nephews,” standing alone, is all-inclusive. For the court to limit the extent of that language would require a construction of the trust instrument which is not required by the document itself or the language therein.
It is the general rule that if the language of a written instrument is clear and can be carried out as written there is no room for rules of construction. Numerous cases have so held. In In re Estate of Wernet, 226 Kan. 97, 596 P.2d 137 (1979), we held:
“Where a court, either trial or appellate, is called upon to determine the force and effect to be given the terms of a will, its first duty is to survey the instrument in its entirety and ascertain whether its language is so indefinite and uncertain as to require the employment of rules of judicial construction to determine its force and effect; and where from an analysis of the entire instrument no ambiguity or uncertainty is to be found in its language, the intention of the testator being clearly and unequivocally expressed, there is no occasion to employ rules of judicial construction and the will must be enforced in accordance with its terms and provisions.” Syl. ¶ 1.
“When the language of a will is clear, definite and unambiguous, the court should not consider rules of judicial construction to determine the intention of the testator.” Syl. ¶ 2.
See In re Estate of Graves, 203 Kan. 762, 768, 457 P.2d 71 (1969), and cases cited therein.
The appellant argues that since the settlors named only four of their nieces and nephews as beneficiaries, they must have intended to also limit the class of grandnieces and grandnephews to the children of the named nieces and nephews. They further argue that this intention can only be ascertained through the admission of parol evidence in the form of testimony from the scrivener of the instrument.
We find no persuasive authority for the argument that a limitation as to one group of specifically named beneficiaries may be imputed to a separate class so as to raise a latent ambiguity. If the settlors had intended to limit the class of grandnieces and grandnephews as the appellant asserts, they could have easily done so on the face of the instrument by naming specific grandnieces and grandnephews in the same way they named specific nieces and nephews or by using language to indicate that only the children of the named nieces and nephews were intended.
In Graves, we stated:
“There is nothing to indicate that the testatrix did not use the words she intended to use. Neither is there anything to indicate she did not understand the meaning of the words used. . . .
“The language of the will being clear, definite and unambiguous, we need not, and should not, consider rules of judicial construction to determine the intention of the testatrix.” 203 Kan. at 768.
“The duty of the court is to construe not to construct the will. It is without power to modify the instrument for the purpose of making it conform to the opinion of the individual judge as to what constitutes an equitable distribution of the testator’s property.” 203 Kan. at 769-70.
The court in Graves went on to quote from 4 Bowe-Parker: Page on Wills § 30.7, as follows:
“ ‘The question always before the mind of the court is not what should testator have meant to do or what words would have been better for testator to use, but what is the reasonable meaning of the words which he has actually used.
“ ‘In construing a will the court has no power to make a will for the testator or to attempt to improve upon the will which the testator actually made. The court cannot begin by inferring testator’s intention and then construe the will so as to give effect to this intention, however probable it may be; nor can it rewrite the will, in whole or in part, to conform to such presumed intention.’ ” 203 Kan. at 771.
In support of her contention that the existence of nieces and nephews in addition to the four specifically named creates an ambiguity as to whether the settlors intended to benefit only the children of the four named nieces and nephews, appellant relies on Willard v. Darrah, 168 Mo. 660, 68 S.W. 1023 (1902); Scheurer v. Tomberlin, 240 So. 2d 172 (Fla. Dist. App. 1970); and Wittmer Estate, 151 Pa. Super. 274, 30 A.2d 197 (1943). While these cases clearly involved latent ambiguities, they are of little help to appellant.
In Willard, the testator made a gift to “my well-beloved nephews, John and William Willard.” The testator had a nephew named John Willard but no nephew named William Willard. He had grandsons named John and William Willard and grandnephews by the same names. The court held that since no two individuals perfectly fit the description in the will, an ambiguity existed and parol evidence was admissible to show that the word “nephews” was a mistake. That done, further parol evidence was admissible to resolve the double identity ambiguity of whether the testator meant his grandnephews John and William or his grandsons John and William. Neither of the types of ambiguities found in the Willard case is present in the Huxtable trust.
In Scheurer, the testatrix devised the residue of her estate to her “presently-living grandchildren.” In attempting to distribute the residue, it was discovered that the testatrix had never had any children and therefore had no “grandchildren.” It was determined, however, that the testatrix had stepchildren from two marriages and therefore two groups of step-grandchildren who might have been her “grandchildren.” The court found that an ambiguity existed and parol evidence was admitted to show which group of step-grandchildren, if either, the testatrix considered to be her “grandchildren.”
Wittmer Estate involved construction of a will clause which left the testator’s residual estate to his “nephews and nieces.” The testator had no nephews or nieces, and parol evidence was allowed to show that the testator’s deceased wife did have nephews and nieces who he considered as his own, and also to show it was his intention to leave the estate to them.
In all the foregoing cases, it was impossible to carry out the apparently unambiguous language of the written instrument, and as a result a latent ambiguity was present. In the present case, no such latent ambiguity exists. The Huxtable trust agreement designates two classes of persons: one consisting of four specifically named nieces and nephews and one consisting of the settlors’ grandnieces and grandnephews. The trust provisions may be readily carried out without extrinsic evidence of the settlors’ alleged intent. If the settlors had wanted to limit the second class, they could easily have done so.
“This court has repeatedly held that extrinsic evidence is not admissible to show the intention of the testator where there is no ambiguity in the language used, or to give the language of the will a meaning different from that which the law attributes thereto.” Baldwin v. Hambleton, 196 Kan. 353, 356, 411 P.2d 626 (1966).
We agree with the trial court that the trust agreement was not ambiguous, that it can be carried into effect without the aid of extrinsic evidence, and that the agreement clearly designates a class consisting of all of the settlors’ grandnieces and grandnephews. The ruling of the trial court refusing to allow extrinsic evidence under the facts of this case was correct.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Herd, J.:
This is a personal injury action. Rachelle Childs, a minor, appeals the dismissal of her suit against Kristine Williams (Murff).
Twelve-year-old Childs sustained personal injuries when a car in which she was a passenger collided with the car driven by Williams. A settlement was negotiated between Childs’ mother and Michael Wesson, the driver of the car in which Childs was a passenger at the time of the accident.
Because a minor can disavow a contract within a reasonable time after reaching majority, it is necessary to reduce a minor’s settlement to judgment with court approval to make it binding. See K.S.A. 38-102; Railway Co. v. Lasca, 79 Kan. 311, 318, 99 Pac. 616 (1909). Childs’ mother therefore filed a negligence action against Wesson on Childs’ behalf on August 20, 1985. Wesson immediately filed his answer and a friendly hearing was held approving the settlement and awarding judgment against Wesson under the terms of the agreement. Had Childs been an adult no suit would have been necessary to complete the settlement.
No determination of comparative fault was made. The journal entry stated, however, that “all parties announce they are ready for trial and all parties herein specifically waive trial by jury and consent to a trial of this cause by the Court.” Childs made no attempt to preserve a right of action against Williams in the agreement.
On August 28, Childs’ mother filed a negligence action against Williams, which action was dismissed by the district court in reliance on our holding in Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, 371, 634 P.2d 1127 (1981), that “all parties to the occurrence shall have their rights and liabilities determined in one action.” The Court of Appeals affirmed the district court decision in an unpublished opinion filed January 29, 1988.
Williams argues there was nothing to prevent Childs from bringing suit against both parties in one action, as approved by Albertson, and then settling with Wesson. Williams would then properly remain a defendant in the action. Williams’ argument is correct. The question here, however, is what rights a plaintiff retains where all tortfeasors are not joined in a friendly suit approving a settlement but making no determination of fault.
Thus, the issue is whether Childs’ second suit is permitted by our recent decision in Mathis v. TG&Y, 242 Kan. 789, 751 P.2d 136 (1988). In Mathis, the plaintiff initiated successive tort suits arising out of the same occurrence, naming different defendants in each action. The plaintiff then settled with the defendants in the second suit and they were dismissed with prejudice. The trial court thereafter dismissed TG&Y, the remaining defendant in the first suit, on the ground the plaintiff had impermissibly split his cause of action in violation of the rules of comparative negligence laid out in Albertson. A divided court overturned the dismissal, holding Albertson did not apply because, in that case, the comparative negligence of the original defendant had actually been determined at trial. The dismissal with prejudice in Mathis, we held, did not qualify as a “judicial determination of comparative fault” precluding the plaintiffs right to bring a second suit against different defendants on the same cause of action. 242 Kan. at 794.
Williams attempts to distinguish Mathis from the case at bar on several grounds. She notes Mathis was concerned only with the dismissal of a case, whereas in the instant case the case was resolved by a judgment, albeit only for the purpose of approving the settlement. She argues the court played a substantive role in evaluating the settlement on behalf of the. minor Childs, in contrast to the dismissal in Mathis, which was routinely entered at the request of the parties. Williams notes Childs would have executed on the judgment had Wesson not given satisfaction, whereas Mathis, with his settlement pursuant to an order of dismissal, could have only brought an action for breach of the settlement agreement. Williams also attempts to distinguish Mathis on the grounds the action against defendant TG&Y was already pending when the other suit was dismissed, whereas in the instant case, suit was not brought against her until the first action was concluded.
These arguments are not persuasive. We held in Mathis that each plaintiff must be allowed a trial judicially determining comparative fault, regardless of whether the plaintiff had the opportunity to do so earlier in one action. In Anderson v. Scheffler, 242 Kan. 857, 866, 752 P.2d 667 (1988), we acknowledged that, under Mathis, a plaintiff is not barred from bringing further suits against additional defendants concerning the same cause of action until it has actually received a comparison of fault at trial.
There is no rational way to distinguish the case at bar from Mathis. There was nothing in either case to prevent the plaintiffs from joining all defendants in one suit. In Mathis, we modified the strong language of Albertson to allow a plaintiff to sue another tortfeasor after settlement with another where there was no judicial determination of comparative fault. 242 Kan. at 792-93. There was no judicial determination of comparative fault in Childs’ first action. We therefore hold the trial court erred in dismissing this action.
The judgment of the Court of Appeals affirming the trial court is reversed; the judgment of the trial court is reversed and the case is remanded for trial. | [
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The opinion of the court was delivered by
McFarland, J.:
This is a declaratory judgment action seeking a judicial determination of the effect of a “market-out” provision in a gas purchase contract. The district court held the contract was clear and unambiguous and that the defendant-purchaser’s actions in lowering the price paid for the gas were authorized by the contract. Plaintiff-seller appeals from the summary judgment entered in favor of the defendant-purchaser.
The facts pertinent to the controversy herein are not materially disputed and are set forth in the district court’s journal entry of judgment as follows:
“1. On November 6, 1980, APC [Anadarko Production Company] and KMI [Kennedy & Mitchell, Inc.] entered into the Gas Purchase and Sales Agreement (’the Contract’) in issue. Thereby APC agreed to purchase and KMI agreed to sell the natural gas produced from the Morrow formation of the Liberal No. 29-189 well located in the Southeast Quarter (SE/4) of Section 4, Township 35 South, Range 33 West, Seward County, Kansas.
“2. Article X of the Contract concerns the price to be paid and accepted for the aforesaid gas. Specifically, Section 10.3 of the Contract, the ‘market-out clause’, states that;
‘In the event Buyer finds the price of gas sold under this contract to be uneconomical and unacceptable, the Buyer shall propose to Seller a lesser and acceptable price level. Seller shall have a period of thirty (30) days following said notice to either accept or reject Buyer’s offer. If Seller rejects Buyer’s offer, then Buyer shall release Seller’s gas from the terms of this contract.’
“3. Article XIV of the Contract concerns billing and payment for gas sold and purchased under the Contract. Specifically, Section 14.6 of the Contract states;
‘Each party hereto shall have the right at reasonable times to examine the books and records of the other party to the extent necessary to verify the accuracy of any statement, charge, computation, or demand made under or pursuant to this Agreement.’
“4. By letter dated February 12, 1985, APC notified KMI that, pursuant to Section 10.3 of the Contract, the price of gas under the Contract would be adjusted t6 $2.70 per MMBTU, inclusive of adjustments, less the Cimarron River System Cost of Service (hereafter ‘CRSCOS’). KMI was allowed thirty days to either accept this redetermined price or to cancel the Contract.
“At the time it issued this letter, APC was paying KMI a contract price based on the NGPA [Natural Gas Policy Act] § 103 price. Thereafter, APC paid a contract price based on the price described in that letter until that letter was modified.
“5. By letter dated March 11, 1985, KMI notified APC that it rejected APC’s price redetermination, but reaffirmed the Contract and requested payment for the gas sold under the Contract at the published NGPA § 103 price pursuant to Section 10.1 of the Contract.
“6. By letter dated May 6,1985, APC reaffirmed its prior price redetermination as set forth in its letter of February 12, 1985, and offered KMI another thirty-day period to either accept the redetermined price or to cancel the Contract.
“7. APC received no response from KMI to its price redetermination offer and concluded that KMI had elected to terminate the Contract. By letter dated July 9, 1985, APC submitted a Cancellation Agreement to KMI for its execution.
“8. By letter dated August 5, 1985, counsel for KMI denied APC’s contractual authority to redetermine the price of gas under the Contract, demanded payment therefore at the current published NGPA § 103 price, and demanded payment for the incremental difference between the Section 103 price and the price paid to KMI since APC’s price redetermination.
“9. By letter dated August 13, 1985, counsel for KMI requested the opportunity to examine APC’s books and records to verify the accuracy of APC’s statement that gas purchased from KMI pursuant to the Contract is actually uneconomical.
“10. By letter dated September 3, 1985, APC refused to allow KMI to examine APC’s books and records as KMI had requested.
“11. By letter dated October 17, 1985, APC notified KMI that, pursuant to Section 10.3 of the Contract, the current price of gas under the Contract was uneconomical and unacceptable and would be adjusted effective December 1, 1985, to $2.25 per MMBTU, inclusive of adjustments, less the CRSCOS. KMI was allowed thirty days to either accept this redetermined price or to cancel the Contract. After its issuance of this letter, APC paid KMI a contract price based on the price described in that letter, until that letter was modified. KMI did not respond to APC’s October 17, 1985 letter.
“12. KMI filed this action on or about March 18, 1986.”
The trial court then concluded:
“1. The central issue in this matter is whether Section 10.3 of the Contract is compatible with Section 14.6, or whether the Contract should be construed [to be] ambiguous. The Court concludes: that the Contract is not ambiguous; that Section 10.3 grants APC, as the Buyer, the unilateral right to determine that a current price is uneconomical and unacceptable; and that the provisions of Section 14.6 apply to all of the other provisions of the Contract except Section 10.3, which requires the aforesaid unilateral determination. The briefs of APC are specifically incorporated into this Journal Entry.
“2. On three separate .occasions, APC determined that the price of gas under the Contract was uneconomical and unacceptable to it. APC submitted a lower price to KMI, and offered to cancel the Contract if the price [was] not acceptable to KMI.
“APC’s actions were expressly authorized by Section 10.3 of the Contract. That clause clearly grants APC the right unilaterally to lower the price paid for gas sold under the Contract. APC’s unilateral actions lawfully and effectively lowered the Contract price. APC is entitled to summary judgment as a matter of law. KMI’s Cross-Motion for Summary Judgment is denied.”
KMI appeals from the entry of summary judgment in favor of APC. KMI’s position may be summarized as follows:
1. The contract is clear and unambiguous;
2. the market-out clause grants APC the right to lower the price only if the existing price is provably uneconomical;
3. “uneconomical” means APC is losing money in its sale of the gas purchased under the contract and the burden of proof of same is on APC;
4. KMI has the right to inspect APC’s books and records pursuant to Section 14.6 of the contract to determine whether the existing purchase price is, in fact, uneconomical and, accordingly, whether or not the market-out clause has been triggered;
5. the district court erred in construing the disputed contractual provisions adversely to the position of KMI; and,
6. as a fail-back position, the contract is ambiguous and should be construed strictly against APC, its scrivener.
The construction of a written instrument is a question of law, and the instrument may be construed and its legal effect determined by an appellate court. Peterson v. Midland Natl Bank, 242 Kan. 266, Syl. ¶ 1, 747 P.2d 159 (1987). Whether an ambiguity exists in a written instrument is a question of law to be decided by the court. Holly Energy, Inc. v. Patrick, 239 Kan. 528, 534, 722 P.2d 1073 (1986). Language in a contract is “ambiguous” only when words used to express the meaning and intention of the parties are insufficient in that the contract may be understood to reach two or more possible meanings. Havens v. Safeway Stores, 235 Kan. 226, 231, 678 P.2d 625 (1984).
The district court held that the market-out clause herein granted APC the unilateral right to reduce the price paid, leaving KMI with only the option of accepting the reduction or canceling the contract. KMI argues this is an unfair, unreasonable, and improper interpretation of the contract. On first impression, this argument has some appeal. Article X of the contract spells out how the price of the gas is to be determined under controlling regulation and in the absence of such regulation. Unilateral reduction of the price to be paid under Section 10.3 would appear to be inconsistent with the entire pricing scheme contained in Article X. Closer scrutiny and our research leads us to conclude otherwise.
A number of legal treatises and commentators have discussed market-out clauses. The term “market-out clause” as applied to a gas purchase price permits a pipeline purchaser to lower its price if market conditions dictate. The well owner is allowed to reject the lower price and have the pipeline transport the gas to another buyer. 8 Williams and Meyers, Oil and Gas Law 547 (1987).
Another learned treatise states:
“ 'Market-out’ clauses allow the purchaser to reduce the price it pays whenever it determines that the market into which it sells will not bear the currently-demanded price. The ‘market-out’ clause may be tied to a price determined by the price of an alternate fuel, e.g., ‘85% of the monthly average cost of Number 2/diesel, as used in the * * * area,’ or may be subject solely to the buyer s opinion. The seller is given the options of accepting the reduced price or cancelling the contract . . . .” Hemingway, Law of Oil and Gas 362 (1983). (Emphasis supplied.)
Likewise, legal commentators place the authority to invoke the market-out clause unilaterally with the buyer, unless the market-out clause spells out specific restrictions. See Turner, “Natural Gas — Impact of Deregulation or Reregulation on Sales Contracts,” 29 Rocky Mtn. Min. L. Inst. 501, 521 (1983).
Johnson, “Natural Gas Sales Contracts”, 34th Oil & Gas Inst. 83, 104-05 (Mathew Bender 1983), discusses market-out clauses as follows:
“The basic theory of these clauses is to permit the pipeline to reduce the contract price paid the producer if the pipeline’s weighted average cost of purchased gas, plus its transportation costs and return, exceed the market price of alternate fuels in its market area. The clause takes many different forms, varying all the way from unfettered discretion in the pipeline to reduce its price, to specific parameters under which the clause can be invoked coupled with the right in the producer to cancel the contract and resell to other parties utilizing the pipeline buyer’s transportation system at standard rates. The following elements require careful consideration in such a clause:
(1) The condition precedent which allows the pipeline to invoke the clause; the better clauses should provide for comparison between the particular pipeline tariff which competes with a particular alternate fuel in a particular market area (i.e., the price of No. 6 fuel oil in Minneapolis, Minnesota). Ideally, a pipeline should not be permitted to trigger the clause to avoid fuel switching by industrial customers to some fuel, such as oil or coal, which the national interest might favor.
(2) The clause should provide assurances that it will not be invoked selectively by the pipeline to drive down some prices while leaving other higher prices intact (e.g., the prices paid to the pipeline’s affiliates). The pipeline should also be prevented from entering into new contracts at prices higher than those levels which it places in effect under the market-out clause.
(3) The producer should have the unfettered right to cancel the contract and resell the gas to another purchaser rather than accept the reduced price. This right should include:
(a) The absence of any ‘back-in’ or right of first refusal in the original purchaser;
(b) Sufficient time to look for another purchaser before electing to accept the price or cancel the contract; and
(c) The use of the pipeline’s facilities (at standard rates) to transport the gas to the new buyer.
“Strong efforts are expected in the next Congress to impose some type of ‘market-out’ clause in all contracts by legislative fiat. There is great danger that Congress will overreact and impose a ‘solution’ which will exacerbate, rather than reduce, the market ordering problem.”
Section 10.3 is iterated at this point for convenience, as follows:
“In the event Buyer finds the price of gas sold under this contract to be uneconomical and unacceptable, then Buyer shall propose to Seller a lesser and acceptable price level. Seller shall have a period of thirty (30) days following said notice to either accept or reject Buyer’s offer. If Seller rejects Buyer’s offer, then Buyer shall release Seller’s gas from the terms of this contract.”
There is nothing ambiguous in the language of Section 10.3. Clearly, provisions could have been placed in this market-out clause which would have restricted APC’s right to invoke the clause. This was not done despite the fact that the contract negotiations extended over a period of some seven months. KMI’s chief negotiator was Kenneth L. Peters, Vice-President of Operations for KMI. The parties to the contract stood on an equal footing in negotiating a contract within their field of expertise. KMI could have protected itself from the actions of APC to which it now objects. The rule of law in Kansas is that where parties have carried on negotiations, and have subsequently entered into an agreement in writing with respect to the subject matter covered by such negotiations, the written agreement constitutes the contract between them and determines their rights. Hall v. Mullen, 234 Kan. 1031, Syl. ¶ 3, 678 P.2d 169 (1984). See Wood River Pipeline Co. v. Willbros Energy Services Co., 241 Kan. 580, 582, 738 P.2d 866 (1987).
The argument of KMI that Section 14.6 operates as a restriction on APC’s right to invoke the market-out clause (Section 10.3) is without merit. Article XIV is entitled “Billing and Payment” and concerns the areas of its title — when payment for gas delivered is due and payable, how it is to be paid, etc. Section 14.6 simply authorizes each party to have access to each other’s books and records to verify the “accuracy of any statement, charge, computation, or demand made under or pursuant to this Agreement.” This clause cannot be construed as a restriction on the unfettered unilateral right of APC to determine the price of the gas is “uneconomical and unacceptable” and propose a lower price as granted in Section 10.3. We conclude that the district court correctly held: (1) the contract wás clear and unambiguous; (2) under Section 10.3 APC had the unilateral right to determine the price was “uneconomical and unacceptable” and propose a lower price; and (3) Section 14.6 is inapplicable to Section 10.3. KMI’s “fall-back” position that the contract is ambiguous and should, therefore, be strictly construed against APC, its scrivener, is without merit as the contract has been determined to be clear and unambiguous.
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The opinion of the court was delivered by
Herd, J:
This is a criminal appeal. Richard Longobardi was convicted of first-degree, murder, K.S.A. 21-3401, and aggravated robbery, K.S.A. 21-3427. He was sentenced to life imprisonment for murder and 15 years to life for aggravated robbery, to run concurrently with the sentence for murder.
This is the saga of an extended family and the consequences of its experience in drug dealing. Richard and Cindy Gitchell, with Cindy’s three children by a previous marriage, Carey, Lee, and Georgia Payne; Cindy’s father, Roscoe Stewart; and Richard Longobardi, Georgia Payne’s boyfriend, all lived as one extended family in both units of an up and down duplex in Kansas City, Kansas. Kevin Stewart, the family advisor and brother of Cindy Gitchell, was in the drug rehabilitation unit at Osawatomie State Hospital.
On June 21, 1986, Richard Gitchell asked his 19-year-old stepson Carey Payne to make arrangements for him to buy 20 pounds of marijuana for $13,000. Carey agreed to comply with the request; he knew a supplier from St. Louis. But temptation, sparked by the cash involved, raised its ugly head. Carey began to scheme of a way to steal the money from his stepfather without delivering the marijuana. Carey and Richard Longobardi discussed the opportunity and came up with a plan.
The plan was for Scott Spear, a family friend, to put his two guns in his car and pick up Longobardi, Lee, and Georgia. Spear and Longobardi would hide in some tall weeds near the rendezvous point at the Rosedale State Bank, Lee would drive the car across the street and wait in a Pizza Hut parking lot, and Carey and Gitchell would drive up and stop behind the bank. Carey would walk to the front of the bank, leaving Gitchell in the car, and Spear and Longobardi would come out of the weeds armed and wearing ski masks, and demand the drug money from Gitchell. Carey would, during the robbery, signal the getaway car, and all would escape in Spear’s car with the money.
All the preliminaries went according to plan as if all had agreed to it. However, Longobardi claimed he was in the car with Lee and Georgia, fast asleep and oblivious to what was going on, and Lee and Georgia claimed they were unaware of the plan and thought they were going to a movie.
The one hitch in execution of the plan was that before Gitchell could be robbed, he was killed. Spear testified Longobardi shot Gitchell because Gitchell started towards Spear while Spear was searching the car for the money. Spear then turned around and shot Gitchell. Carey testified when he came back behind the bank and saw his stepfather lying on the pavement, he rolled him over and took $800 from his pocket before Longobardi shot him once again in the head.
Carey then found the rest of the money in the car, and headed for Spear’s car across the street, stuffing “two grand, maybe three” in his pocket as he ran. When Carey reached the car, Lee drove back to pick up Spear and Longobardi, and all five of them drove off, leaving Gitchell lying on the pavement. They then drove to an isolated area and dumped the guns. Lee, by this time, wanted the advice of his uncle, Kevin Stewart. They drove to Osawatomie to see him, but because it was about 1:30 a.m. when they arrived, they had to talk to him by phone. Carey and Longobardi told Kevin everything that had happened.
Kevin testified Carey did not try to pretend Longobardi was the only one involved in. the shooting. Kevin said Longobardi told him he sat in the weeds while Spear was robbing Gitchell and when Gitchell “started going towards Scott,” Longobardi tried to shoot warning shots over Gitchell’s head, but instead hit him. Kevin testified Carey told him how he got the money from Gitchell’s pocket and the car, and that both Carey and Longobardi told him where they had dumped the weapons. With the help of the police, Kevin located One of the weapons in the area Carey and Longobardi had told him about.
On the way back from Osawatomie, Carey divided the money not already in his pocket among the men. He said he did not think anyone saw him put the extra money in his pocket, so he offered a little over $3,000 each to Spear and Longobardi, who accepted it. Spear agreed this is what happened. Carey said he offered some money to Lee, but Lee didn’t want “blood money,” so Carey kept it.
Several days later, on the night ofGitchell’s funeral, Carey got drunk and told his grandfather, Roscoe Stewart, what had really happened. The grandfather had already taken his daughter, Cindy, and his two grandchildren, Lee and Georgia, to the police station to give a more accurate version of events than they had previously given investigators. Cindy admitted for the first time that her husband had arranged with Carey for a drug buy behind the bank, and Lee and Georgia admitted they heard shots, saw their stepfather dead, and drove around while weapons were discarded and money counted, but denied they had known of the plan before it was executed. Neither Lee nor Georgia were charged with the death of their stepfather.
After Carey’s confession, Roscoe Stewart encouraged Carey and Longobardi to give statements to the police. The statements given by everyone eventually led to the arrest of Spear, Carey, and Longobardi. Spear’s version of events was essentially a straightforward account of events as has been described. He neither tried to shield nor implicate Longobardi. He said they had both waited to rob Gitchell, and they both shot him. Spear pled guilty to second-degree murder, armed robbery, and assault with a deadly weapon and was sentenced to 15 years to life on each count.
Carey’s statement was similar to Spear’s, except he insisted the plan was originally Longobardi’s. Longobardi testified Georgia had talked him into going to the movies with everyone that night, even though he had only had a couple of hours of sleep the night before and was very tired. He said he kept falling asleep in the back seat of the car and did not know what was going on until he heard shots and woke up in the Pizza Hut parking lot. His memory of the rest of the events of the evening generally coincided with the others’ testimony, except he said he had never been involved in the robbery or murder, and said he refused to take any of the money.
Neither Carey, Georgia, Lee, nor Spear tried solely to blame Longobardi for the crimes. Carey and Spear nevertheless testified they saw Longobardi shoot Gitchell, and Georgia and Lee agreed they left Longobardi in the weeds behind the bank with Spear and denied he was asleep in the car with them when the robbery and murder took place.
Longobardi was asked on cross-examination why, when he testified he became wide awake after he realized what had happened and could testify perfectly as to where the ammunition and guns had been dumped, he wrote a letter to Georgia saying he was so drunk and drugged he didn’t remember anything that took place that night. Longobardi said the letter wasn’t true, that he wrote it because Carey asked him to contact Georgia to help Longobardi be Carey’s alibi, and this was a signal to her how she should testify. He stated he could not explain, exactly, how the letter would help Carey.
Longobardi and Carey were charged with aggravated robbery and first-degree murder and the cases were severed. Longobardi’s first trial ended in a hung jury.
The first issue is whether the trial court erred in allowing Carey Payne to invoke the Fifth Amendment when Longobardi attempted to have him called as a hostile witness. The Fifth Amendment of the United States Constitution provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” The privilege protects both a defendant and any other witness whose answers may expose him to future criminal liability. Lefkowitz v. Turley, 414 U.S. 70, 77, 38 L. Ed. 2d 274, 94 S. Ct. 316 (1973). See K.S.A. 60-425.
Carey pled guilty to second-degree murder and aggravated robbery pursuant to plea bargaining before testifying as a State’s witness at Longobardi’s first trial. By the time of the second trial, he had been sentenced. Carey’s time for appeal, rehearing, or sentence modification had not expired. His attorney therefore advised him to assert his privilege against self-incrimination and refuse to testify. Carey had not actually filed an appeal or a motion for new hearing and he provided no explanation of how anything to which he could testify might affect such an appeal or hearing, especially as he declared no intention of challenging the validity of his plea. The court nevertheless recognized Carey’s privilege not to testily, and Longobardi made no objection. At Longobardi’s request, the court allowed the transcript of Carey’s testimony from Longobardi’s first trial to be read to the jury.
Carey had testified at the first trial that Longobardi had passed him a note in jail asking him to tell his lawyer Longobardi was asleep in the back seat of the car during the robbery and murder. Carey testified he lost the original note and admitted he forged a copy and passed it to the district attorney claiming it was the original. Longobardi now complains he might have gotten Carey to admit he forged the note at the second trial, or the jury could have discerned, had it been able to observe Carey’s demeanor, that Carey was lying about not forging the note. He argues if he had been able to show Carey was a “self-serving liar,” the jury could infer the same about Spear, Lee, and Georgia, because their stories were similar to Carey’s.
It is interesting to note that the reading of Carey’s testimony to the jury from the first trial fulfilled all of Longobardi’s objectives. Carey admitted he was a forger and that he had lied. Thus, it was unnecessary for the jury to observe Carey’s demeanor to judge his veracity. He admitted his untruthfulness. Nevertheless, Longobardi claims reversible error because Carey was not required to give live testimony of the same facts.
Longobardi also objects that, by not having Carey as a witness, he was prevented from exposing to the jury that Carey had plea bargained with the State. The court did not exclude this evidence, however. The State notes Longobardi could have proffered such evidence through a records custodian, but made no attempt to do so. Longobardi’s objection is additionally without merit since the jury learned of Carey’s plea bargain through the reading of the transcript of Carey’s testimony in the first trial.
Let us now turn to the question before us: At what point does a defendant’s Fifth Amendment privilege against self-incrimination end after his plea of guilty has been accepted? K.S.A. 1987 Supp. 22-3210 requires a trial court, before accepting a defendant’s plea of guilty to a felony, to address the defendant personally in order to determine “that the plea is made voluntarily with understanding of the nature and the consequences of the plea.” The court must be satisfied there is a factual basis for the plea. In Boykin v. Alabama, 395 U.S. 238, 243, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969), the United States Supreme Court said: “Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination.” The courts of this state customarily explain this right to defendants at the time pleas of guilty are tendered. There is no claim that Carey was not so advised. So far as the record before us discloses, the proceedings culminating in Carey’s guilty plea were regular and in full compliance with the law and the Constitution.
The Fifth Amendment operates only where a witness is asked to incriminate himself; that is, to give testimony which could possibly expose him to a criminal charge. Ullmann v. United States, 350 U.S. 422, 431, 100 L. Ed. 511, 76 S. Ct. 479, reh. denied 351 U.S. 928 (1956).
Carey’s subsequent testimony about the crime for which he had already been charged and pled guilty could not expose him to further criminal charges. Further, because he had been sentenced, his testimony could not expose him to additional punishment. We held the privilege extends until a defendant has been sentenced in State v. Anderson, 240 Kan. 695, 732 P.2d 732 (1987), because testimony before that time could have an impact on the sentence imposed. In that case, the defendant had moved to withdraw his guilty plea, but the motion had been denied. We noted his appeal time had not yet run on this denial. In the case at bar, Carey made no attempt to withdraw his guilty plea.
We hold that once a plea of guilty has been regularly accepted by the court, and no motion is made to withdraw it, the privilege against self-incrimination ends after sentence is imposed. Syllabus paragraph 2 of Anderson is hereby limited to this ruling.
Here, the trial court erred in recognizing the privilege, but under the facts of the case, the error was not prejudicial. The jury heard all evidence which Longobardi claims could have changed the verdict. Longobardi argues prejudice is shown because the jury deliberated a little over one hour before finding him guilty, whereas in the first trial the jury deliberated for a day and a half before becoming deadlocked 8-4 in favor of finding him not guilty. Length of deliberation is no indication of error. Different juries react differently.
The next issue is whether the trial court erred in failing to declare a mistrial, or at least to interview the jury, when it was informed of an exchange between defense counsel and witness Spear’s mother in the courthouse cafeteria during recess.
Nancy Roe, Longobardi’s trial counsel, while looking for a place to eat in the crowded cafeteria over the lunch break during trial, asked two women she did not recognize if she could share their table. One of the women said, not in a loud voice, but in a “conversational tone,” that she was Spear’s mother, and she could not sit with Roe because she hated her and thought she was a terrible person who was ruining her son’s life. Roe saw five jurors in the room, but did not know if any of them overheard Mrs. Spear. Only one juror was facing Spear and seemed likely to be able to overhear the conversation.
Roe told the prosecution what had happened, and when the court reconvened, the prosecutor approached the court and stated there had been a problem. Roe related the incident to the court, saying she did not know if it was a problem or not. Roe did not have a suggestion on how to handle the situation, so the court asked the prosecutor if he had an idea. The prosecutor did not know whether the incident, if overheard, would create sympathy for or against the defendant, and suggested the court could either interview the jury or do nothing unless one of the jurors asked about it. The court agreed it was difficult to tell if the incident was overheard, and whether it caused prejudice and against whom, and felt an interview with the jury might emphasize what had happened. The court decided to say nothing and see if it was contacted by a juror about the incident. Roe made no objection to the decision.
The facts are similar to those in State v. Wheaton, 240 Kan. 345, 353-54, 729 P.2d 1183 (1986), where a juror approached defense counsel and asked how she could be excused from the jury. Counsel told the juror to contact the judge and then re ported the conversation to the court. The juror never approached the judge, and counsel made no objection to the juror remaining and the trial proceeded without interruption. Only after the verdict did counsel argue the defendant was denied a fair trial because of the incident. We held the failure to object to the court’s failure to question the juror foreclosed the defendant’s right to appeal the issue.
We hold this issue is not properly before us because of defendant’s failure to make a contemporaneous objection.
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The opinion of the court was delivered by
Holmes, J.:
Edward L. Atkinson, et al., appeal from an order of the district court dismissing a medical malpractice action, based upon the doctrine of respondeat superior, against the Wichita Clinic, P.A. (the Clinic) because of a settlement entered into with the Clinic’s employee, Dr. Roger Ferreri.
The parties do not dispute the facts pertinent to the issues on appeal. Elizabeth L. Atkinson died on July 18, 1984, allegedly as a result of the negligent administration of anesthesia on June 20, 1984 by Dr. Roger Ferreri, who was then employed by the defendant professional corporation, Wichita Clinic, P.A.. The plaintiff, Edward L. Atkinson, is a son of the decedent and brought this action on behalf of all of her heirs, and also as the administrator of the decedent’s estate. He sued both Dr. Ferreri and the Clinic, seeking damages on behalf of the heirs for wrongful death, compensatory damages on behalf of the estate for the decedent’s pain and suffering, and punitive damages. The Clinic was joined as a defendant solely under the doctrine of respondeat superior.
In addition to generally denying the allegations of the petition, the Clinic filed a cross-claim against Dr. Ferreri seeking indemnification for any damages for which the corporation might be held liable under the respondeat superior theory.
On September 10,1987, four days before the trial was to begin, Judge Ron Rogg of the Sedgwick County District Court held a hearing and signed a journal entry approving a settlement agreement among plaintiffs, Dr. Ferreri, and the Kansas Health Care Stabilization Fund (the Fund). The claims against Dr. Ferreri were settled for $60,000, of which $6,000 was to be paid to the estate for pain and suffering and $54,000 to the decedent’s heirs for her wrongful death.
The journal entry approving the settlement agreement explicitly provided that plaintiffs would be permitted to proceed with their claims against the Clinic. It also specified that the agreement was not to be construed as a dismissal of the Clinic’s indemnity claim against Dr. Ferreri. The court’s order absolved the Fund of any obligations with regard to the case, including its obligation as the insurer of the Clinic for liability in excess of the statutory amount of $100,000 per occurrence that was then the individual responsibility of each health care provider. Finally, the journal entry specified that plaintiffs were to hold Dr. Ferreri and the Fund harmless for any obligations of the defendant Clinic to the plaintiffs.
On the same day, the Clinic filed a motion to dismiss plaintiffs’ claims against it. The Clinic argued that since its liability was solely predicated on the imputed negligence of its servant, Dr. Ferreri, the plaintiff could not proceed against the corporation as master after releasing or exonerating the servant from liability. On the following day, September 11, 1987, Judge Keith Anderson heard arguments by counsel and granted the motion to dismiss. The plaintiffs timely appeal. The case was transferred to this court from the Court of Appeals pursuant to K.S.A. 20-3018(c).
The agreement the plaintiffs entered into with the defendant Dr. Ferreri and the Fund was in the form of a covenant not to sue and to cease suing Dr. Ferreri. The covenant agreement did not purport to be in full satisfaction of all damages or claims of the plaintiffs and was clearly a compromise agreement in which the plaintiffs agreed not to seek any further recovery from Dr. Ferreri or the Fund regardless of the extent of the actual damages which may have been suffered by the plaintiffs. The covenant agreement was incorporated in and made a part of the journal entry and court orders approving the settlement.
While several issues are raised by the appellants on appeal, the dispositive question is whether they can continue to maintain a claim against the Clinic after having entered into a settlement with Dr. Ferreri.
The parties do not dispute that the relationship of the Clinic and Dr. Ferreri was that of master and servant or principal and agent. Under Kansas law, there is no distinction between the liability of a principal for the torts of his agent and the liability of a master for the torts of his servant. Liability in both cases is based upon the doctrine of respondeat superior. Simpson v. Townsley, 283 F.2d 743, 746 (10th Cir. 1960); Jacobson v. Parrill, 186 Kan. 467, 472-73, 351 P.2d 194 (1960).
Appellants argue first that the covenant not to sue Dr. Ferreri does not preclude assertion of the claims against the Clinic as Dr. Ferreri’s corporate employer. They contend that the settlement agreement did not constitute an unconditional release of Dr. Ferreri, but rather a covenant not to sue, explicitly reserving the right to proceed against the Clinic. Appellee contends in response that regardless of how the document is characterized, the corporation’s vicarious liability was entirely extinguished when the plaintiffs entered into the settlement with Dr. Ferreri.
Several general principles relating to the law of respondeat superior should first be reviewed.
A well-known treatise on the law of agency summarizes some of the general rules with regard to vicarious liability:
“The general rule is that the principal and agent are jointly and severally liable for the tortious conduct of the agent for whose conduct he is responsible, and that, as a result, they may be joined in a single suit and a judgment may be obtained against each. In such a situation, if the judgments on the merits are inconsistent, i.e., if there is a judgment for the agent and against the principal, the judgment against the principal must be set aside, unless there is some other ground for the principal’s liability, as where he is personally negligent. Likewise, where the third party releases the agent, the principal will also be relieved of liability. If the principal controlled the prior action, he will be bound by any judgment against the agent. In any case, the amount of compensatory damages that can be awarded against each must be the same. However, where the principal is liable for punitive damages, the amount may differ from that awarded against the agent.” Sell, Agency § 94, 83-84 (1975). (Emphasis added.)
See also 53 Am. Jur. 2d, Master and Servant § 408 (general rule is that valid release of either party to master-servant relationship operates to release the other); Annot., Release of (or Covenant Not to Sue) Master or Principal as Affecting Liability of Servant or Agent for Tort, or Vice Versa, 92 A.L.R.2d 533 § 2, 537 (in the absence of a specific statute, most cases support view that valid release of one of the parties to master-servant relationship releases the other).
In Kansas, while an unconditional release by the injured party of one joint tortfeasor will release all other joint tortfeasors, a covenant not to sue one will not release the others. Jacobsen v. Woerner, 149 Kan. 598, 601, 89 P.2d 24 (1939). On the other hand, if the principal’s alleged liability is merely imputed by virtue of the alleged tortious conduct of its agent, the principal is not a “joint tortfeasor” in terms of being an equally culpable wrongdoer. That the master is jointly liable does not make him a joint tortfeasor as the latter term is generally understood. Jacobson v. Parrill, 186 Kan. at 473-74.
Under longstanding Kansas law, the effect of a discharge or release of one tortfeasor on the liability of another party is generally to be determined by the intentions of the parties as manifested by the instrument itself. Lupton v. Torbey, 548 F.2d 316, 319 (10th Cir. 1977); St. Paul Mercury Indemnity Co. v. United States, 201 F.2d 57, 61 (10th Cir. 1952); Stueve v. American Honda Motors Co., Inc., 457 F. Supp. 740, 746 (D. Kan. 1978); Cullen v. Atchison, T. & S.F. Rly. Co., 211 Kan. 368, 377, 507 P.2d 353 (1973); Sade v. Hemstrom, 205 Kan. 514, 522, 471 P.2d 340 (1970); City of Topeka v. Brooks, 99 Kan. 643, 647, 164 Pac. 285 (1917).
“Whether an instrument . . . is to be construed as a release or a covenant not to sue is determined by the terms of the instrument, the words used, the amount shown as paid and accepted, the substance of the agreement and the intention of the parties as manifested by the instrument.” Sade v. Hemstrom, 205 Kan. 514, Syl. ¶ 5. (Emphasis added.)
If the document is silent on the matter and neither party produces evidence on the question of intent, other parties are “presumed” not released. Stueve v. American Honda Motors Co., Inc., 457 F. Supp. at 747; McCullough v. Bethany Med. Center, 235 Kan. 732, 740, 683 P.2d 1258 (1984).
In the instant case there can be no doubt as to the intent of the parties to the covenant agreement. It is clearly stated that the plaintiffs “reserve the right to proceed with their claims against the Wichita Clinic, P.A.,” and the journal entry approving the settlement also specifically reserves to the plaintiffs the right “to proceed against the Wichita Clinic, P.A., a corporation, and these covenants and indemnification agreements and the dismissal of defendant Ferreri shall in no way be a bar to plaintiffs’ right to proceed against said Wichita Clinic, P.A., a corporation.” The parties to the covenant agreement clearly intended to reserve to the plaintiffs the right to proceed against the Clinic. At this point, it should be noted that the Clinic was not a party to the agreement and apparently was not a party to, and did not participate in, the settlement hearing before Judge Rogg.
The Clinic argues that whether the agreement is construed as a release or covenant not to sue makes no difference in this case and that the intent spelled out by the parties and the court does not control the outcome of this case. It relies upon a trilogy of cases which appear to be controlling.
In Jacobson v. Parrill, 186 Kan. 467, the plaintiffs were the surviving wife and minor children of John A. Jacobson, who was killed in an automobile accident. The deceased was killed in a collision between his car and one owned by the defendant, Parrill, and driven by a Fred E. Cochran, who was also killed in the collision. The plaintiffs filed an action against Parrill based upon the doctrine of respondeat superior for the active tort of Cochran in negligently driving Parrill’s automobile. No active or independent negligence or tort of Parrill was alleged, and his liability was based solely on the alleged negligence of Cochran. Thereafter, plaintiffs filed a claim against the estate of Cochran based upon the same collision and the death of Jacobson. Plaintiffs then entered into a compromise agreement and settlement with the administrator of Cochran’s estate and Cochran’s insurance company. In the settlement agreement, the plaintiffs specifically reserved their rights against Parrill and also agreed to “indemnify and hold forever harmless the estate of Fred E. Cochran . . . from any and all . . . claims ... for the death of John Jacobson . . . .” 186 Kan. at 471. The court order and an order nunc pro tunc approving the settlement with the estate also sought to preserve the plaintiffs’ rights against Parrill. Parrill raised the settlement with Cochran’s estate as a bar to the action against him and sought dismissal of the case against him. The district court dismissed the action, and its judgment was affirmed by this court.
Justice Fatzer, writing for a unanimous court, stated:
“Basically, there is no distinction to be drawn between the liability of a principal for the tortious acts of his agent and the liability of a master for the tortious acts of his servant. While reference here is made only to the relation of master and servant, it also pertains to the relation of principal and agent. In either instance, the liability is grounded upon the doctrine of respondeat superior. [Citation omitted.] It has been held that under that doctrine the liability of the master to a third person for injuries inflicted by a servant in the course of his employment and within the scope of his authority, is derivative and secondary, while that of the servant is primary, and absent any delict of the master other than through the servant, the exoneration of the servant removes the foundation upon which to impute negligence to the master. [Citations omitted.]
“While this court has held that a master may be jointly sued with the servant for a tort of the latter committed within the scope of his authority or employment [citations omitted], they are not joint tort-feasors in the sense that they are equal wrongdoers without right of contribution, for the master may recover from the servant the amount of loss caused to him by the tort, including any sum he has been required to pay a third person on account of it [citations omitted]; such payments made by the master, in the absence of fault on his part, are not made by him as a wrongdoer, but by reason of his obligation to answer for the act of the servant. The liability of the servant, on the other hand, arises wholly because of his personal act in doing the wrong; it does not arise out of the relation of master and servant, but exists upon the common law obligation that every person must so act or use that which he controls, as not to injure another. [Citations omitted.]
“Because of the doctrine of respondeat superior, the liability of Cochran and Parrill for all of the damages allegedly sustained by the plaintiff was joint or several, and while she could have sued either separately or both jointly, she elected, during the pendency of her action against Parrill, to sue Cochran’s estate for all the damages allegedly resulting from his negligence and recovered a judgment for $5,000 and costs. No allegations were made for punitive damages in her proceeding in the probate court or in the instant case, and upon no reasonable basis could Parrill’s liability to the plaintiff for compensatory damages be any greater than Cochran’s liability for his wrongful act. Under the record presented and the rules just announced, Cochran, as the agent-driver and as the active tort-feasor, was primarily liable to the plaintiff because of his active negligence in killing the decedent, and, while Parrill was also liable, his liability was derivative or secondary, and was imputed only under the doctrine of respondeat superior. Had the petition alleged Parrill committed some independent or concurrent tortious act contributing to the death of Jacobson, his liability to the plaintiff would have been direct, and not imputed under the doctrine of respondeat superior. But, no such allegations were made.
“It does not appear this court has previously decided the question, but by the weight of authority of courts of this country which have considered the matter, a judgment against an active tort-feasor establishes the full limit of liability against other persons who are only derivatively liable as under the doctrine of respondeat superior for the active tort-feasor’s wrongful act [citations omitted], and the satisfaction of such a judgment extinguishes any right of action for derivative liability. [Citations omitted.]
“Clearly, under the allegations of the petition, Parrill did nothing to cause the plaintiff to suffer any more damages than were caused by the alleged active tort of Cochran, and the amount of those damages was established by the judgment against Cochran’s estate. The admitted full satisfaction of that judgment fully extinguished the cause of action for Cochran’s wrongful act, which is a bar to the plaintiffs prosecution of the present purely derivative liability action against Parrill. Our cases dealing with the release of joint, concurring or successive tort-feasors and the reservation of rights against the others [citations omitted] are inapplicable to the question presented in this appeal.
. “The plaintiff contends her rights to proceed against Parrill in the instant action were reserved to her by the McPherson County district court’s judgment and order nunc pro tunc. We are not persuaded. In the instant action Evelyn Jacobson specifically pleaded that, as the surviving spouse of John A. Jacobson, she had the exclusive right to recover damages for the benefit of herself and the minor children, and that no personal representative of his estate had been appointed. We think the plaintiff, because of the indemnity agreement, cannot be permitted to say she did not intend to release Parrill from the alleged derivative liability after she obtained full satisfaction of her judgment against the active tort-feasor s estate. For all damages Parrill would be compelled to pay in the instant action, he would immediately, under the doctrine of subrogation, become entitled to full indemnity and restitution against Cochran s estate and Cochran’s insurer, The Fidelity and Casualty Company of New York. [Citations omitted.] But, by the express terms of the indemnity agreement which she pleaded in her reply, the plaintiff agreed to hold harmless Cochrans estate and The Fidelity and Casualty Company of New York from all future liability. If as she contends, she did not intend to release and discharge the derivative liability of Parrill, thus permitting her to proceed with the instant action, she would ultimately be required, by virtue of her indemnity agreement, to reimburse Parrill; consequently, she would be traveling in a complete circle, and would realize no financial benefit. While the plaintiff provided in her release that ‘the undersigned specifically reserves all of her rights against Albert S. Parrill,’ the expression in the instrument to indemnify Cochran’s estate, his personal representative, and The Fidelity and Casualty Company of New York from all future claims arising out of the collision and John A. Jacobsons death, was inconsistent with the retention of such rights, and the only rational interpretation of her release and indemnity agreement is that she did intend, by accepting full satisfaction of the judgment against Cochran’s estate, to release and discharge the derivative liability which is the subject matter of the instant action.
“Moreover, the principal question is not what the plaintiff intended, but rather, whether she has a legal right to maintain the action. Assuming, arguendo, that the plaintiff s release reserved to her all the rights she possessed at that time, and that the order nunc pro tunc, which, concededly, was much broader than the reservation contained in the release, was also sufficient to reserve to her all the rights she possessed, we think when she accepted full satisfaction of the judgment against Cochran’s estate, she had no rights to reserve.” 186 Kan. at 472-76. (Emphasis added.)
Simpson v. Townsley, 283 F.2d 743, also involved an automobile collision. The plaintiff Simpson suffered personal injury in a collision between his automobile and one driven by Smith. Smith was an employee of a partnership (hereafter referred to simply as Townsley) and it was conceded that at the time of the collision Smith was acting as the employee or agent of Townsley. Simpson entered into a settlement agreement with Smith and her insurance company and executed a covenant not to sue Smith. As a part of the settlement Simpson also agreed to hold Smith and her insurance company harmless from any further claims. Following the settlement with Smith, Simpson filed suit against Townsley in the United States District Court for the District of Kansas. The action was based solely on the theory of respondeat superior with no allegations of any independent tort by Townsley. Townsley asserted as a defense the covenant not to sue given by the plaintiff to Smith and the court ultimately granted summary judgment for Townsley.
On appeal, a panel of the Court of Appeals for the Tenth Circuit upheld the district court. In reliance upon Parrill, the court stated:
“[UJnder the law of Kansas, while a master whose liability is predicated solely on the doctrine of respondeat superior and not on any wrong on his part may be sued jointly with his servant for a tort committed by the latter within the scope of his employment, they are not joint tort feasors in the sense they are equal wrongdoers. Where a master becomes liable to a third person for personal injuries caused solely by the act of his servant, under the doctrine of respondeat superior, and is required to respond to such third person in damages by reason of such liability, he will be subrogated to the rights of the injured third person and may recover over from his servant who is primarily liable.” 283 F.2d at 746.
The court went on to say:
“Counsel for Simpson assert that the covenant not to sue did not constitute a release or exoneration of Smith and that the separate agreement to hold harmless constituted a reservation of right to sue [defendants Townsley], . . .
“. . . Here, in the event of a recovery by Simpson of damages from one or more of Smith’s employers, caused by Smith’s tortious act, such employer or employers would thereupon have an action over against Smith for such damages paid by them. The covenant not to sue, standing alone and without the provision to save harmless, would have protected Smith against any action brought by Simpson against her. But, if it went no farther than that and afforded no protection to Smith against a recovery of damages by Simpson against Smith’s employers and an action over by such employers against Smith, it would be wholly abortive, we think, of its intended object and purpose. We think it clear the parties did not intend merely to relieve Smith of her direct liability to Simpson and leave her liable indirectly to Simpson for any additional damages which Simpson might recover against her employers. If the covenant not to sue were thus narrowly construed, the payment made as consideration therefor would amount to no more than a credit on the amount.of damages for which Simpson might ultimately recover a judgment and Smith would remain legally liable for the remainder. Accordingly, we think that phrase in the covenant not to sue in the instant case, ‘we hereby agree to hold . . . Smith and Meda Oneida Smith harmless from any damages to ourselves resulting from or to result from said accident,’ . . . was intended to protect Smith against liability, direct or indirect, for damages resulting or to result to Simpson from such accident.
“Accordingly, we conclude that the covenant not to sue and agreement to hold harmless constituted a complete exoneration of Smith and removed any foundation upon which to impute negligence to Smith’s employers.” 283 F.2d at 747-48.
Finally, Wilkerson v. Lawrence, 193 Kan. 92, 391 P.2d 997 (1964), involved another automobile collision and action for personal injuries. Plaintiff Wilkerson suffered injury in a collision between his automobile and one driven by Saudy Lawrence. Carl Bartelmei was an occupant of the Lawrence vehicle. Wilkerson filed suit against several employees of Robert Eugene Lawrence including Saudy Lawrence and Carl Bartelmei. He also sued Robert Eugene Lawrence on the theory of respondeat superior. While the action was pending Wilkerson entered into a covenant not to sue with Bartelmei in which plaintiff agreed to hold Bartelmei and his insurance carrier harmless from any liability resulting from the accident but expressly reserved his right to proceed with litigation against Robert Eugene Lawrence and the other defendants.
Thereafter, the defendant Robert Eugene Lawrence filed an amended answer setting up the Bartelmei settlement agreement as a bar to any imputed negligence or vicarious liability based upon the negligence of Bartelmei. At trial plaintiff dismissed as to all defendants except the employer Robert Eugene Lawrence. In his opening statement the plaintiff made it clear he was proceeding against Lawrence for the imputed negligence of Bartelmei and that of Saudy Lawrence. Following the opening statement the defendant sought dismissal of the action and it was granted. On appeal this court upheld the trial court’s determination as to any imputed liability for the acts of Bartelmei, relying upon Parrill, but reversed as to any liability based upon the separate and independent acts of the driver, Saudy Lawrence. While the case was decided upon the basis of the opening statements, the court clearly determined that the employer could not be held liable for the acts of Bartelmei after plaintiff had settled with him and given the covenant not to sue and the hold harmless agreement.
Appellants attempt to avoid the precedent of Parrill, Simpson, and Wilkerson by distinguishing the facts of the cases and by asserting an exception to the rule for medical malpractice cases. In doing so, appellants rely upon the compulsory insurance provisions of the health care provider insurance availability act (K.S.A. 40-3401 et seq.) and McGuire v. Sifers, 235 Kan. 368, 681 P.2d 1025 (1984). It appears to be the contention of the appellants that, because the Clinic was required to carry liability insurance on its corporate entity in addition to that carried by or on behalf of Dr. Ferreri, it should not be absolved of liability even though appellants settled with Dr. Ferreri. While McGuire does stand for the proposition that the insurance of the employer may be reached to satisfy claims based upon the negligence of an employee, it does not abolish the general rules of liability and law relative to the doctrine of respondeat superior. To the contrary, the court in McGuire specifically recognized that respondeat superior is applicable to health care providers and was not abrogated or limited by the provisions of K.S.A. 40-3401 et seq. 235 Kan. at 378-79.
We are of the opinion that the decisions in Parrill and Wilkerson are controlling. While the facts of the cases relied upon by the Clinic, may be distinguished from the present case, the applicable law applies equally to this case. The alleged liability of the Clinic was based solely on the acts of Dr. Ferreri in his treatment of Mrs. Atkinson, and no independent acts of negligence were asserted against the Clinic. Even though appellants’ intention was to preserve a cause of action against the Clinic by the execution of the covenant not to sue rather than a full release, we hold that the settlement with Dr. Ferreri coupled with the hold harmless agreement removed any basis for imputing liability to the Clinic for the acts of Dr. Ferreri.
In view of the result reached, we need not address other arguments of the appellants. The judgment is affirmed. | [
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The opinion of the court was delivered by
Lockett, J.:
The State of Kansas through Attorney General Robert T. Stephan filed a petition in quo warranto claiming that the respondent, Joan E. Adam, should be ousted from the position of Non-Lawyer Member, Second Congressional District, Supreme Court Nominating Commission because she has been granted a temporary permit to practice law and is no longer qualified to hold the position of a non-lawyer member of the Commission.
In 1979, Respondent was appointed to a position on the Supreme Court Nominating Commission. She was reappointed in 1984 and her current term expires on July 1, 1989.
In January 1988, after successfully completing the requirements for a Juris Doctor degree at Washburn University School of Law, respondent requested the Supreme Court to grant her “a temporary permit to practice law.” Subsequent to the respondent’s taking the attorney’s oath, the Supreme Court issued her a temporary permit to practice law in the State of Kansas.
It is the attorney general’s position that, by the acquisition of a temporary permit, respondent assumed the status of a lawyer and, therefore, must be ousted from the Commission. The respondent (1) denies that quo warranto is a proper procedure to challenge her qualifications as a member of the Commission and (2) claims that once appointed to the Commission, she is qualified to serve her term as a non-lawyer member of the Commission, so long as she continues to reside in the Second Congressional District. We disagree with both the petitioner and the respondent.
Quo warranto proceedings are specifically allowed as original actions in the Supreme Court by both the constitutional and statutory law of this state. Kansas law is clear that the proper means by which a person is to be removed from a public office is the initiation of a quo warranto action. State, ex rel. Miller v. Richardson, 229 Kan. 234, 623 P.2d 1317 (1981). When the attorney general determines that any person appointed to a commission by the governor does not possess the requisite qualifications prescribed by law for the appointment, the statutory law requires the attorney general to commence ouster proceedings against that person. K.S.A. 75-714.
We agree with the attorney general’s declaration that the Supreme Court Nominating Commission is an integral part of the process by which justices of the Kansas Supreme Court are selected and appointed. Individuals selected as justices become part of the court which is the final arbitrator of our state’s constitution and laws. The selection and appointment process by which justices are chosen is a matter of statewide concern. Questions raised as to the legality of the composition of the Commission are of great public importance and deserve to be resolved with speed and finality. Since the Kansas Constitution provides the Supreme Court with the “general administrative authority over all courts in this state” (Kan. Const. Art. 3, § 1), the issues of this case go to the very heart of the administration of justice and the court system in Kansas.
The attorney general states that the sole issue is the definition of the constitutional and statutory qualifications of the members of the Commission. Since this court is charged by statute with making rules and setting standards for the admission of attorneys to the bar, we must determine the precise definition of the term “non-lawyer.” (See K.S.A. 7-103 and Supreme Court Rule 701 et seq. [1987 Kan. Ct. R. Annot. 201-17])
In his memorandum in support of the petition in quo warranto, the attorney general correctly states the rules of constitutional interpretation:
“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 attorney general’s position is based on Moore v. Wesley, 125 Kan. 22, 25, 262 Pac. 1035 (1928), where this court stated:
“[A] person who holds a permit issued by this court authorizing him to practice law until the next bar examination is not irregularly admitted to practice law, but ad interim is a regularly qualified practicing attorney.”
The attorney general argues that (1) after Adam took the attorney’s oath she changed her status from a non-lawyer to a lawyer, and (2) allowing her to remain a member of the Commission violates the constitutional intent to balance membership of the Commission between lawyers and non-lawyers.
Article 3, Section 2 of the Kansas Constitution originally provided that the Supreme Court shall be composed of one chief justice and two associate justices elected by the electors of the state. In 1900, § 2 was amended to enlarge the court to seven justices, elected by the electors of the state. To remove the selection of the justices of the Kansas Supreme Court from partisan politics, the section was amended again in 1958, when the Supreme Court Nominating Commission was established. Article 3, Section 5(e) of the Kansas Constitution provides:
“The supreme court nominating commission shall be composed as follows: One member, who shall be chairman, chosen from among their number by the members of the bar who are residents of and are licensed in Kansas; one member from each congressional district chosen from among their number by the resident members of the bar in each such district; and one member, who is not a lawyer, from each congressional district, appointed by the governor from among the residents of each such district.”
Article 3, Section 5(f) of the Kansas Constitution requires the legislature to fix the terms of, and to provide the procedure for selection and certification of, the members of the Commission. Although Article 3 is silent as to how vacancies are to be filled, Article 2, Section 18 of the Kansas Constitution requires the legislature to provide the method of filling all vacancies not otherwise provided for in the constitution.
As required by the constitution, the legislature passed implementing statutes for the Supreme Court Nominating Commission, which include K.S.A. 20-119 through 20-138. The relevant statutory provisions are K.S.A. 20-122, K.S.A. 20-124, and K.S.A. 20-127.
K.S.A. 20-122 provides in part:
“The clerk of the supreme court may use the roster of attorneys in his office licensed to practice law in Kansas, and the edition of the Martindale-Hubbell legal directory, current at the time of mailing the ballots, for ascertaining the names and places of residence of those entitled to receive ballots and for ascertaining the qualifications of those nominated for membership on the commission.” (Emphasis added.)
Martindale-Hubbell is a national legal directory that lists individuals admitted to the practice of law in the United States and its territories. Individuals holding a temporary permitió practice law are not listed in that publication.
K.S.A. 20-124 provides in part:
“The governor shall appoint the first non-lawyer members of the commission, one (1) from each congressional district, and certify the names of such appointees to the clerk of the supreme court on or before May 15, 1959. Thereafter, as terms of office of non-lawyer members are about to expire, their successors shall be appointed by the governor and the names of such appointees certified by the governor to the said clerk before their terms of office begin.” (Emphasis added.)
K.S.A. 20-127 provides:
“If the chairman or any other members of the commission elected by the members of the bar shall cease to be a member of the bar entitled to engage in the general practice of law in Kansas, or if the chairman shall change his place of residence from the state or if any other member of the commission, whether elected or appointed, shall change his place of residence to a congressional district other than that from which he was elected or appointed, the chairman or such other member as to whom such change of condition exists, shall no longer be a member of the commission and a vacancy shall exist as to his membership.”
Each of these sections was enacted in 1959 and has not been amended.
The Supreme Court recognizes four categories of individuals who may appear in the courts of this state: (1) members of the bar who have shown that they possess good moral character and the requisite general education, and who have been examined by the Board of Law Examiners and issued their licenses to practice law; (2) individuals who have graduated from an accredited law school and have a temporary permit to practice law; (3) legal interns, who are law students assigned to attorneys, agencies, and public bodies who have requested their service and who agree to assign members of the bar to supervise and be responsible for the activities of the legal intern; and (4) non-lawyers, who may represent only themselves and not others. Both the Kansas Constitution and the implementing statutes recognize but two categories of individuals qualified to be members of the Commission, i.e., “members of the bar” and “non-lawyers.”
The issuance of a temporary permit to practice law is governed by the rules of this court. The first mention of a temporary permit to practice law is found in 100 Kan. xxi (1917), No. 24 of the Rules of the Supreme Court of Kansas, which states:
“No. 24. TEMPORARY PERMIT TO PRACTICE. Any applicant for admission to the bar who is a graduate of an approved law school, or who has been admitted to practice in the highest court of any other state, may, pending the hearing of his application, also file with the clerk of this court a request for a temporary permit to practice law until the next examination to be held by the board of law examiners. If the court shall find that the applicant has had no opportunity to take an earlier examination, and that the circumstances are such as to justify it, a temporary permit will be granted, expiring at the date of the next examination, effective upon his taking an oath to support the constitution of the United States, and the constitution of the state of Kansas, and conform to the requirements of the attorney’s oath prescribed by the rules of the court.”
The present rule, Rule 705 (1987 Kan. Ct. R. Annot. 209), was adopted in the 1970’s after Kansas began using the multistate testing service to determine the qualifications of those making application to become a member of the Kansas bar. Rule 705 provides that any applicant for admission to the bar may file for a “temporary permit to practice law.” Such application must be accompanied by a written statement from an attorney actively engaged in the practice of law in Kansas that such attorney will supervise and be responsible for the acts of the applicant during the period covered by the temporary certificate. The permit becomes effective upon the applicant taking the same oath taken by bar admittees, including that the applicant will “discharge his or her duties as an attorney and counselor of the Supreme Court and all other courts of the State of Kansas with fidelity both to the Court and to his or her cause.” Supreme Court Rule 704(i) (1987 Kan. Ct. R. Annot. 207). The permit expires when the results of the bar examination are announced if the applicant fails the examination; if the applicant passes the examination, the permit then expires on the date he or she is to be regularly admitted to the bar. Supreme Court Rule 705 (1987 Kan. Ct. R. Annot. 209).
Is the status of one issued a temporary permit to practice the same as one issued a license to practice law? “Temporary” is defined as “That which is to last for a limited time only, as distinguished from that which is perpetual, or indefinite, in its duration. Opposite of permanent.” Black’s Law Dictionary 1312 (5th ed. rev. 1979). A “permit” is a written license or warrant, issued by a person in authority, empowering the grantee to do some act not forbidden by law, but not allowable without such authority. Black’s Law Dictionary 1026 (5th ed. rev. 1979). A temporary permit to practice law is not a right of property, but is merely a “temporary permit” to do that which would otherwise be unlawful. A temporary permit is subject to revocation at any time and its revocation is not unconstitutional as an impairment of a contract right or as an unlawful divesting of property rights.
Supreme Court Rules allow applicants for admission to the bar, who receive a temporary permit, to practice law in Kansas. However, an individual issued a temporary permit to practice law has only a restricted right to represent clients. To obtain a temporary permit to practice law, an individual must be a graduate of an accredited law school and must file an application to be admitted to the bar accompanied by a written statement from an attorney actively engaged iri the practice of law that the attorney is willing to supervise and be responsible for the acts of the applicant during the period covered by the temporary permit. The holder of a temporary permit to practice law has no contractual or property right to the permit and can be divested of the permit without being afforded constitutional procedural due process. The holder of a temporary permit who successfully completes the bar examination becomes a member of the bar after that individual’s name is placed on the roll of attorneys and he or she is issued a license to practice law.
A member of the bar, licensed to practice law, does have a property right in the license. A member of the bar cannot be deprived of his or her license (right to practice law), unless he or she is afforded the constitutional procedural due process right of sufficient notice of the nature of the charge and the opportunity for a timely hearing in a meaningful manner.
Both Article 3, Section 5 of the Kansas Constitution and the implementing legislation require that lawyer members of the Commission be licensed to practice law in this state. Since this court already allowed temporary permits when the constitutional amendment and implementing statutes for selecting members of the Commission were drafted, the drafters had the opportunity to include law school graduates with temporary permits as eligible for membership on the Commission as members of the bar, had they so wished. Because the drafters did not exercise that opportunity, it is clear that all individuals who are not licensed members of the bar qualify as non-lawyers for appointment to the Commission.
Following the procedure set out in K.S.A. 20-122 to determine the qualifications of the respondent as a non-lawyer member of the Commission, a check of the roll of licensed attorneys in the clerk’s office and the Martindale-Hubbell legal directory reveals that, at this time, respondent’s name does not appear. Therefore, the respondent is qualified to be a non-lawyer member of the Commission.
Respondent argues that, once appointed to the Commission as a non-lawyer member, she is qualified to serve her term so long as she continues to reside in the Second Congressional District. We disagree.
By approving the amendment to Article 3 of the Kansas Constitution, the voters of this state gave up their right to directly elect the justices of the Kansas Supreme Court. The process by which citizens selected the members of this court by a direct election was replaced by a procedure where the Commission nominates and submits to the governor the names of three qualified individuals to fill a vacancy on this court. To insure that non-lawyers retained a voice in the selection of the nominees to the Supreme Court, the constitution requires that the nonpartisan nominating commission be composed of a chairman, who is a member of the bar, and an equal number of members of the bar and non-lawyers from each congressional district.
If the name of a non-lawyer member of the Commission is placed on the roll of attorneys licensed to practice law in Kansas, then, as a member of the bar, that individual will have the right to vote in the election of lawyer members to the Commission and the qualifications to stand for election to the Commission as a member of the bar. However, such a person, upon becoming a member of the bar, no longer qualifies as a non-lawyer member of the Commission. The Clerk of the Supreme Court, after placing the non-lawyer’s name on the roll of attorneys licensed to practice law in Kansas, will then be required by statute to notify the governor of a vacancy on the Commission of the non-lawyer member from that congressional district.
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The opinion of the court was delivered by
Lockett, J.:
Lisa Dunn, raising numerous issues, appeals (1) her convictions of two counts of felony murder, two counts of aggravated kidnapping, one count of aggravated robbery, one count of aggravated battery on a law enforcement officer, and one count of aggravated battery; and (2) the sentence imposed of four life terms, two terms of 15 to life, and one term of 5 to 15 years, all terms to run consecutively. The convictions arise from a series of crimes which ended near Colby, Kansas, in February 1985. After careful consideration of all the issues raised, we affirm Dunn’s convictions and sentence.
Lisa Dunn was born and raised in Michigan. At 15, after consistently high academic performance, her behavior became erratic and she began to associate with a peer group that introduced her to substance abuse, particularly alcohol. At 17, Dunn left home and traveled to Florida, but returned home after she alleged she was raped while hitchhiking. Because Dunn refused to cooperate with the prosecution of the accused, the Florida police were forced to dismiss the charges against her alleged attackers.
Following Dunn’s return to Michigan, a constant state of friction existed between Dunn and her parents. In December, 1984, she met Daniel Remeta. Believing Remeta to be a kind and considerate person, Dunn moved in with him in January 1985. Shortly thereafter, Dunn and Remeta, along with another friend of Dunn’s, Mark Walter, decided to travel to Florida. Before they could leave, Remeta was arrested for breaking into a car. Re-meta’s mother and Walter posted his appearance bond. Remeta decided to jump bond and leave for Florida. At Remeta’s request, Dunn took a .357 Magnum pistol from her father’s gun collection. Dunn later testified she felt she needed the gun to protect herself because of the prior rape.
Dunn claimed that it was on the way to Florida that she first learned about Remeta’s prior prison record and discovered that he could be cruel and vindictive. She testified that when she told Remeta that she should return home, he threatened her with the gun, then warned her that he would hurt her or her family if she left him. This warning was later repeated. Remeta also played Russian Roulette with Dunn, sticking the barrel of the .357 in her mouth and holding it to the side of her head. Remeta began calling Dunn his “wife,” picking out her clothes, and selling some of her possessions. Concerned about Remeta’s erratic behavior, Dunn testified that she and Walter resolved that one of them should stay awake at all times. While in Florida, the trio visited Disney World and stayed with a friend of Remeta’s mother.
In a two and one-half week crime spree, the three traveled from Florida through Texas, Arkansas, and Oklahoma to Kansas, committing a series of violent crimes, including several murders. Dunn maintained that she played no role in these crimes. It was during this period of time that Dunn sent postcards to friends in Michigan describing the good times she was having and stating she was going to marry Remeta.
On February 13, 1985, on 1-135 north of Wichita, Remeta, Dunn, and Walter picked up a hitchhiker, James C. Hunter. Dunn testified that because she was sitting between Walter, who was driving, and Remeta, who occupied the front passenger seat, Hunter got into the back seat. At the 1-70 Levant interchange, the group was stopped by a police car driven by Thomas County Undersheriff Benjamin F. Albright. Albright instructed the occupants to place their hands on the car ceiling. Dunn testified she did this. Dunn and Remeta both testified that Dunn tried to stop Remeta as he exited the vehicle with the .357. Remeta shot Albright twice. Immediately after Remeta returned to the car, Hunter accidentally shot Dunn in the hip with a .22 handgun while attempting to shoot Remeta. Dunn began screaming that she was hurt and needed to be taken to a hospital. Albright later described the person who shot him as having shoulder-length brown hair and a beard — a description which matched Hunter.
After departing from the 1-70 Levant interchange, Walter drove until the group arrived at the Bartlett Elevator in Levant, Kansas. At the elevator were eight individuals: Maurice Christie, the elevator manager; Fred Sager, the assistant manager; Dennis Tubbs; Raymond Haremza; Rick Schroeder; Glenn Moore; and two others. Schroeder and Moore were taken hostage and forced into a pickup truck. While phoning for the police, Christie was shot by Remeta. Remeta, Walter, Hunter, Dunn, and the two hostages proceeded in the pickup to a point north of Highway 24 near Colby, Kansas, where they stopped and Remeta shot both Schroeder and Moore with the .357, leaving their bodies by the side of the road.
Later, near a farmhouse in Rawlins County, police forced the fleeing pickup off the road. After a gun battle during which Walter was killed and Dunn and Remeta were wounded, Re-meta, Hunter, and Dunn were arrested. All three were charged with two counts of felony murder (Schroeder and Moore), two counts of aggravated kidnapping (Schroeder and Moore), one count of aggravated battery on a law enforcement officer (Al-bright), one count of aggravated battery (Christie), and one count of aggravated robbery. Remeta pled guilty to all counts. Hunter and Dunn were tried by a jury.
During the trial, witnesses gave conflicting testimony regarding Dunn’s participation in the events at the elevator:
STATE’S WITNESSES
Maurice Christie testified he saw a car parked between the scale house and the grain bins and that Dunn was sitting in the driver’s seat. Dennis Tubbs testified that the driver of the pickup truck had shoulder length, light or dark blond hair and he heard a female voice saying: “Get in.” Raymond Haremza described the driver of the pickup as having “long, shoulder length, dishwater blond hair.” Wesley Moore described the driver of the pickup truck as having shoulder length dishwater blond hair. (Dunn’s hair, which she had dyed while in Wichita, was shoulder length and blond; Mark Walter’s hair was ear-lobe length and brown.) Judy McKee, who was driving along Highway 24, observed the pickup and testified that the driver was Mark Walter and that the person sitting next to the driver (Dunn), was smiling and appeared to be having a good time. Kenneth Dibble, a reserve police officer, testified that the driver of the pickup had dark hair.
DEFENSE WITNESSES
Robert Blecha, Special Agent for the Kansas Bureau of Investigation, who conducted the initial interviews of witnesses in the case, testified that, at that time, neither Haremza, Tubbs, nor Sager indicated Dunn was the driver of the pickup. When asked why Dunn remained with him from January 27 - February 13, Remeta testified, “[s]he didn’t have no choice.” He said he tricked Dunn into taking her father’s gun, which he later used to threaten her. He admitted making threats against members of Dunn’s family. He said that if Dunn had tried to leave him during the trip, he would have “kept his threats.” Regarding the events on February 13, Remeta testified Walter was driving the car, while he occupied the passenger seat with Dunn between them. At the Bartlett Elevator, Remeta told Walter to put Dunn in the pickup. Walter then helped Dunn into the seat behind the driver’s seat, and drove the pickup away from the elevator.
Hunter corroborated that he accidentally shot Dunn at the Levant intersection, and that Dunn sat between Walter and Remeta until they reached the Bartlett Elevator. At the elevator, Hunter put Dunn behind the driver’s seat of the pickup. Later, when Remeta told Schroeder and Moore to get out of the pickup, Hunter suggested to Remeta, “Why don’t you let that girl out here, just leave us here and take off in this truck.” When Remeta asked Dunn if she wanted to get out, she answered: “No, I love you. I want to go with you.”
Dunn testified that she was “herded” into the pickup on the driver’s side and placed behind the jump seat. She denied that Remeta ever asked her if she wanted to be let out of the pickup. Dunn testified that her main concern from the time they reached the elevator until the time she was arrested was the fact that she had been shot. She denied ever driving the car or the pickup. She denied any involvement in the shootings and maintained she was unaware that Christie, Schroeder, and Moore had been shot. Dunn stated that she was afraid of Remeta even after they were apprehended, but admitted she had written love letters to him while in jail.
The jury found Dunn and Hunter guilty of all counts. Remeta, Hunter, and Dunn were sentenced to maximum consecutive terms of imprisonment. Hunter appealed and his conviction was reversed in State v. Hunter, 241 Kan. 629, 740 P.2d 559 (1987), on the ground that the trial judge refused to instruct the jury on his defense of compulsion. Dunn appeals her convictions and sentence raising numerous issues.
DENIAL OF FUNDS FOR EXPERT EXAMINATION BY A PSYCHIATRIST
K.S.A. 1987 Supp. 22-4508 provides for authorization of funds for expert services if the judge determines that services are necessary and that the defendant is financially unable to obtain them. The authorization of supporting services in the criminal trial of an indigent defendant is a matter which lies within the sound discretion of the trial court, whose decision to deny services will not be disturbed unless the defendant shows prejudice to his substantial rights resulting from abuse in the exercise of the court’s discretion. State v. Haislip, 237 Kan. 461, 484, 701 P.2d 909, cert. denied 474 U.S. 1022 (1985); State v. Reynolds, 230 Kan. 532, 534-35, 639 P.2d 461 (1982); State v. Burnett, 222 Kan. 162, 164-65, 563 P.2d 451 (1977); State v. Frames, 213 Kan. 113, 118, 515 P.2d 751 (1973).
Intending to defend on the basis that she was under the influence, duress, and emotional and mental restraint of Remeta, and was unable to adequately prepare her defense without the assistance of an expert in the field of forensic psychiatry, Dunn filed a motion requesting $1,800.00 to pay for the expert services. At the hearing on the motion, the only witness, the jail chaplain, testified that, after spending about 14 hours with Dunn, he believed her to be extremely impressionable, as well as capable of being easily affected and led by threats. He felt that Dunn had attempted to disassociate herself from events that occurred. In addition, Dunn’s attorney stated that he had discussed the case with a psychiatrist from the Menninger Foundation, who advised him to investigate the battered wife syndrome and disassociative response. It was the attorney’s intent “to offer these defenses to show absence of both the specific intent to commit the crimes charged and all criminal responsibility.” He further stated, “[Ojur defense is not compulsion. Our defense is what we’ve described here today, Your Honor. We were not compelled to complete crimes, we were compelled to be present.”
Judge Willoughby, noting that Dunn had not raised the issues of competence or insanity, denied the request for funds because her defense to the charge of felony murder was neither viable nor recognized in Kansas. Twice more Dunn renewed the motion for expert services, which the court denied. Immediately prior to trial, the request for funds was again renewed, when Dunn’s attorney stated that he had just received Remeta’s prior prison record and that he now intended to present a defense based on the “hostage victim syndrome.” The judge again denied the motion, finding that the evidence was not relevant.
K.S.A. 1987 Supp. 22-4508 is comparable to the federal provisions of 18 U.S.C. § 3006A (e) (Supp. IV1986). K.S.A. 1987 Supp. 22-4508 allows an indigent defendant to make an ex parte application to the court for expert services necessary for an adequate defense. If the court, during the ex parte proceeding, finds that the services are necessary to provide an adequate defense, it authorizes counsel to obtain the services. The appointment of experts is not a constitutional requirement; rather, requests for such services are to be measured by the requirements of the due process test of fundamental fairness. State v. Lee, 221 Kan. 109, 113-114, 558 P.2d 1096 (1976).
Claiming that Kansas cases do not yield a consistent test for the court to determine when expert services are necessary, Dunn suggests that we adopt the test established by the United States Supreme Court in Ake v. Oklahoma, 470 U.S. 68, 84 L. Ed. 2d 53, 105 S. Ct. 1087 (1985). The Ake test for determining whether expert psychiatric services should be provided is a three-factor test balancing the private interest in the accuracy of criminal proceedings, the State’s interest that will be affected if the psychiatric assistance is to be provided, and the probable value of the psychiatric assistance sought, and the risk of error in the proceedings if the evidence is not offered.
In Ake, the defendant met the test by communicating to the court his intent to rely on the insanity defense and his need of the evaluation of his sanity at the time the offense was committed. See United States v. Sloan, 776 F.2d 926 (10th Cir. 1985). What Dunn fails to grasp is that, before any balancing test is employed, she must first clearly show that her mental capacity is a significant issue for a defense to the charges. This Dunn failed to do.
Having no desire to raise insanity as a defense, Dunn argued that because she was influenced by threats, was under duress, and was under the emotional and mental restraint of Remeta, she had no specific intent to commit the crimes, but was compelled by Remeta to be present when the crimes were committed. She claimed that to show that her acts were compelled by Remeta, the services of the expert witness were necessary to investigate the battered wife syndrome and the hostage or captivity syndrome. Dunn maintained that evidence of either or both syndromes would bolster her claim that she was acting under compulsion and, therefore, not criminally responsible.
Where self-defense has been asserted by a woman who has committed a crime against her batterer, expert evidence of the battered woman syndrome is admissible to prove the reasonableness of the defendant’s belief that she was in imminent danger. State v. Hodges, 239 Kan. 63, 716 P.2d 563 (1986). The evidence is admitted in part to explain the woman’s inability to leave her tormentor during the time of physical or psychological battering and also to illustrate the reasonableness of her fear of imminent danger. Here, however, Dunn attempted to intertwine the battered wife syndrome with the statutory defense of compulsion either to justify crimes committed against innocent third parties or to show that she was compelled to be at the crime scenes because of the earlier threats by Remeta against her and her family.
The defense of compulsion was successfully raised on appeal by Dunn’s codefendant, Hunter, resulting in the reversal of his convictions.
K.S.A. 21-3209 provides:
“Compulsion. (1) A person is not guilty of a crime other than murder or voluntary manslaughter by reason of conduct which he performs under the compulsion or threat of the imminent infliction of death or great bodily harm, if he reasonably believes that death or great bodily harm will be inflicted upon him or upon his spouse, parent, child, brother or sister if he does not perform such conduct.
“(2) The defense provided by this section is not available to one who willfully or wantonly places himself in a situation in which it is probable that he will be subjected to compulsion or threat.”
In Hunter, we held that the statutory prohibition on the use of the compulsion defense is limited to crimes of intentional killing. Thus, where one is compelled to commit a felony and a death occurs, compulsion is a defense to the underlying felony. 241 Kan. at 642.
Although the compulsion defense is available in cases of felony murder, it is still a limited defense. In order to constitute the defense of compulsion, the coercion or duress must be present, imminent, and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. The doctrine of coercion or duress cannot be invoked as an excuse by one who had a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily harm. State v. Milum, 213 Kan. 581, 582, 516 P.2d 984 (1973). In addition, the compulsion must be continuous and there must be no reasonable opportunity to escape the compulsion without committing the crime. State v. Myers, 233 Kan. 611, 616, 664 P.2d 834 (1983).
It is important to compare Hunter’s circumstances with Dunn’s. Hunter was picked up hitchhiking along the interstate. Shortly after he entered the car, Remeta took out the .357 Magnum, fired it out the window, and began to talk about a hitchhiker he had killed. When Hunter asked to be let out of the car, Remeta refused. Remeta later fired the gun in the direction of Hunter and told Hunter he had killed a man for $40, as well as twelve other people. Remeta asked Hunter if Hunter thought a .357 Magnum could kill him. Between the time Hunter was picked up and the time that he was apprehended by police at the farmhouse, Remeta had possession of the .357 Magnum at all times. Remeta testified that he would have shot Hunter if Hunter had not followed orders. The total time Hunter spent with Remeta from the point where he was picked up by Remeta to the time he was apprehended by police was approximately two hours. Thus, Hunter could claim that he had no reasonable opportunity to escape and could argue that the jury should have been allowed to determine if he was compelled to commit the crimes.
Here, the time frame involving Dunn is far different. Dunn testified that Remeta’s threats against her and her family commenced two and one-half weeks before the crimes in Kansas occurred. Dunn testified that the only significant threat against her occurred on the way to Florida, when she told Remeta she might leave him, and he became angry, pulled the gun out, and placed it to her head.
According to Dunn’s own testimony, this was the only time Remeta actually physically threatened her. After that, his threats consisted of intermittent reminders to Dunn of the prior intimidation. Dunn testified that the threats were not continuous, stating:
“Well, he still did treat me nice at times, but he’d always make sure that threat was known to me, that he’d be nice — you know, he could be nice to me if I was behaving. But if I didn’t behave, you know, he wasn’t going to be because, you know, like if I’d smart mouth him real bad or something, I might get a slap or whatever he felt like at the time. It depends on his mood. He’s real moody.”
Did Dunn have a reasonable opportunity to escape after she was threatened while traveling to Florida? The record shows that she did. There were numerous times Dunn could have left while Remeta slept. The day prior to the murders in Kansas, while Remeta and Walter both slept, Dunn watched television all afternoon. Later, when the three went out to a Kentucky Fried Chicken restaurant, Remeta sent Dunn to get the food. Two police officers were in the restaurant. Because Walter had driven the car up over the curb in front of the restaurant, the officers approached Dunn and asked her if she and the others had been drinking. Dunn answered no, and returned to the car. These were reasonable opportunities for Dunn to have eluded Remeta. Because the intimidation by Remeta was not continuous, and Dunn had ample opportunity to escape, she could not claim she was compelled to be present when the crimes were committed.
Dunn also argues that expert evidence on the hostage syndrome would have negated the criminal intent requirement for her conviction. The hostage or captivity syndrome is a well-established psychological theory used as an explanation of an accused’s actions in criminal cases. Some courts have admitted evidence of this syndrome to negate criminal intent, most notably in United States v. Hearst, 412 F. Supp. 889 (N.D. Cal. 1976), where the federal district court held that testimony concerning the effects of kidnapping, prolonged incarceration, and psychological and physical abuse on the kidnap victim was relevant to the defendant’s claim that she had been coerced by the kidnappers to commit the offenses charged. However, that case focused on the defendant’s mental state as a kidnap victim and her alleged subsequent brainwashing — factors not present in this case.
The hostage syndrome was recendy discussed in U.S. v. Kozminski, 821 F.2d 1186, 1194 (6th Cir. 1987), where the court stated that the hostage syndrome requires ten necessary elements, which are: (1) prolonged captivity; (2) continuous round-the-clock supervision, such as guarding; (3) an isolated environment; (4) removal of all psychological supports; (5) an attack on the victim’s personality; (6) a lack of privacy; (7) an assault upon the total personality; (8) a systematic use of reward and punishment; (9) a tearing of the fabric of the personality; and (10) the building up of a new personality.
In Kozminski, victimized farm workers who claimed they were held in involuntary servitude attempted to introduce expert testimony on the captivity syndrome. The court noted the above list of conditions describes events such as the brainwashing techniques employed by the Chinese on prisoners of war during the Korean conflict. The court stated: “As bad as conditions on the Kozminskis’ dairy farm are alleged to be, they fall short of those found in a Chinese prison camp.” 821 F.2d at 1194. The court then held that, as a matter of law, the captivity syndrome was not applicable to that case because there was no evidence of actual captivity.
Similarly here, the facts do not support Dunn’s claim that she was a captive. She was not kidnapped; she went with Remeta voluntarily after stealing a gun for him. She was not guarded round-the-clock. In fact, there were many times when she was alone, or awake while Remeta was asleep. She was not isolated, but stayed with friends in Florida, went to Disney World, and stayed in a number of motels and hotels during the crime spree. She was not subject to brainwashing. The fact that Remeta chose her clothes, called her his wife, and sold some of her jewelry certainly does not approach the total breakdown of personality which occurs when captors attempt to brainwash their captives. It is apparent that Dunn’s romantic attachment to Remeta was voluntary. If she was a victim, she was a victim of her own poor judgment.
Even though the trial judge was incorrect in ruling that compulsion was not a defense to felony murder, he was correct in ruling that expert testimony on the battered woman syndrome and the hostage syndrome was not relevant to the facts of this case when he denied Dunn’s request for funds to obtain an expert witness. On appeal, the defendant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred when a trial court denies a defendant’s request for expert services pursuant to K.S.A. 1987 Supp. 22-4508. Further, we have adopted the federal rule that reversal is indicated only where a defendant has established prejudice by clear and convincing evidence. State v. Lee, 221 Kan. at 114-15. Dunn has failed in her effort to meet this standard.
CHANGE OF VENUE
In Hunter, we held that the trial court did not err in refusing to grant a change of venue and that decision is dispositive here. However, a few comments are necessary.
Dunn contends that, because Thomas County was “not capable of producing a fair and impartial jury,” the trial court made several errors by denying her motion for change of venue. K.S.A. 22-2616(1) provides:
“In any prosecution, the court upon motion of the defendant shall order that the case be transferred as to him to another county or district if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.”
Defendant points to the same factors which were alleged to be prejudicial in Hunter (media publicity, death threats, affidavits from 14 members of the community stating that defendants could not get a fair trial, a large number of signatures from Thomas County on a petition favoring the death penalty, and the fact that some of the jurors were acquainted with the victims), but places particular emphasis upon the extensive media publicity, jury selection, and trial environment.
EXTENSIVE PRETRIAL MEDIA COVERAGE OF THE CRIME
Extensive pretrial media coverage of a crime alone has never established prejudice per se. State v. Ruebke, 240 Kan. 493, 500, 731 P.2d 842 (1987); State v. Porter, 223 Kan. 114, 117, 574 P.2d 187 (1977). It is the defendant’s burden to show that the publicity has reached the community to such a degree that it is impossible to get an impartial jury. State v. May, 227 Kan. 393, 394-95, 607 P.2d 72 (1980). There is no question that the crimes committed shocked the surrounding communities, and that the local media reflected this outrage. These facts alone, however, do not entitle defendant to a change of venue. See State v. Myrick & Nelms, 228 Kan. 406, 417, 616 P.2d 1066 (1980). The news reports were factual and not inflammatory, and Dunn has not presented any evidence which shows the media attempted to influence the outcome of the trial. See State v. Sanders, 223 Kan. 273, 279, 574 P.2d 559 (1977).
Several articles in the Colby Free Press described Dunn favorably as a former honor student with no prior criminal record, who came from a respected family. The paper also publicized Dunn’s defense, specifically her claim that she was under threat the entire time she was with Remeta, and that she never had possession of a gun.
TRIAL TUDGE’S FAILURE TO CONTROL THE PRETRIAL AND TRIAL ENVIRONMENT
Dunn also complains that the trial judge violated her due process rights by not protecting her from publicity surrounding the trial. Defendant compares this case with Sheppard v. Maxwell, 384 U.S. 333, 16 L. Ed 2d 600, 86 S. Ct. 1507 (1966). In Sheppard, the United States Supreme Court reversed defendant’s conviction for second-degree murder due to the trial judge’s failure to control media publicity. Sheppard was an unusual case where a near-carnival atmosphere permeated the courtroom.
During the nine-week Sheppard trial, reporters sat at a press table inside the bar, a few feet from the jury box. Members of the press filled the courtroom and handled and photographed trial exhibits. Radio broadcasts were done next to the jury room. Private courtroom proceedings were reported by the press. In addition, before trial, the names and addresses of the jurors were published, and they received letters and phone calls concerning the case. The press was allowed to interview prospective witnesses and often disclosed their proposed testimony. The trial judge made no effort to control the release of leads, information, and gossip to the press by the prosecuting attorneys, the coroner, the police officers, or the witnesses.
The atmosphere at Dunn’s trial does not even begin to approach what occurred in Sheppard. Although the trial was broadcast locally and one of the stations had hired a legal expert to comment on the trial, the judge carefully admonished the jury not to watch television. In addition, the jury was told not to read the newspapers nor to discuss the case with anyone. The jurors were informed to only consider facts admitted into evidence and to determine the defendant’s guilt based on the evidence admitted and the judge’s instructions. The judge explained that if the jurors followed his admonitions and instructions, the defendant would obtain a fair trial.
Here, the trial judge did not fail to control the pretrial and trial environment and the jury was properly instructed to avoid being tainted by publicity during the trial.
TURY SELECTION
Defendant cites Rideau v. Louisiana, 373 U.S. 723, 10 L. Ed. 2d 663, 83 S. Ct. 1417 (1963) and Irvin v. Dowd, 366 U.S. 717, 6 L. Ed. 2d 751, 81 S. Ct. 1639 (1961), for the proposition that a court should give little weight to a juror’s expression of impartiality when the voir dire reflects a pattern of deep and bitter prejudice within the community. Dunn fails to note that, in Dowd, eight of the jurors stated that they had already formed an opinion that the defendant was guilty and one stated that he could not give the defendant the benefit of the doubt that he was innocent. In Rideau, the Court held that it was a denial of due process for a state court to deny a change of venue where an interview in jail between the defendant and the sheriff consisting of admissions by defendant was broadcast three times over a local television station and heard by a substantial number of people in the community. Here, the interview which was televised was with Remeta, not Dunn, and Remeta’s comments regarding Dunn’s conduct were exculpatory.
As stated in Hunter:
“When crimes occur in rural areas, it is inevitable that members of the jury panel will be acquainted with trial participants or victims. In such cases we must examine the jury selection process to determine whether defendant’s rights to a fair trial have been jeopardized. As we have stated, the difficulty in selecting a fair and impartial jury is an important factor in weighing a claim of prejudice. State v. Ruebke, 240 Kan. at 500; State v. Myrick & Nelms, 228 Kan. at 418. In this case, a jury panel was passed for cause after one and one-half days of voir dire. From a panel of 143 prospective jurors, 39 were excused for cause, 51 were dismissed by peremptory challenges, and 39 were excused from service; twelve jurors and two alternates served. There appears to have been no difficulty in selecting an impartial jury. Although five of the final twelve jurors stated they were acquainted with one or more of the victims, none admitted to a close friendship and each stated under oath that he or she would be able to remain fair and impartial. In order to find that defendant has established prejudice, we would have to assume that these jurors violated their oaths; this we cannot do.” 241 Kan. at 636.
Dunn has failed to establish that there existed such prejudice in Thomas County that she reasonably could not have received a fair trial. The trial court did not abuse its discretion in denying defendant’s motion for change of venue.
ADMISSION OF REMETA’S LETTER
Dunn contends the trial court erred by refusing to admit a letter written to her by Remeta while they were both in jail. In the letter, Remeta referred to Dunn as a “slave girl” whom he intended to hold for ransom. When Remeta testified during Dunn’s trial, he stated that the letter was in his handwriting and that he remembered what he wrote. He stated that the term “slave” referred to Dunn. On examination by the State, Remeta stated he did not remember exactly when he wrote the letter and refused to divulge to whom the letter was sent. The trial judge then refused to admit the letter.
Generally, a writing may be authenticated by establishing the genuineness of the writer’s signature or identity of the handwriting, or by indirect or circumstantial evidence without resort to proof of handwriting. K.S.A. 60-464, State v. Milum, 202 Kan. 196, 447 P.2d 801 (1968). Here, even if erroneous, the exclusion of the letter was harmless. Dunn offered the letter to bolster her claim that she was a hostage. However, the facts of this case did not support the existence of the hostage syndrome. In addition, Remeta testified as to the contents of the letter.
DENIAL OF CONTINUANCE
Dunn was arraigned on March 28, 1985, and trial was set for June 4, 1985. On May 13, 1985, Dunn requested a continuance for three reasons: (1) to obtain a report from Texas authorities which would show that Dunn had attempted to prevent a crime there; (2) to obtain a statement from an inmate at Lansing who might have information regarding Remeta’s threats against Dunn; and (3) to secure funds for expert psychiatric services.
In the trial of a criminal charge, the matter of a continuance is within the discretion of the trial court and its ruling will not be disturbed unless such discretion has been abused and the substantial rights of the defendant have been prejudiced. State v. Jones, 226 Kan. 503, 509, 601 P.2d 1135 (1979). Dunn notes that the trial judge, when denying her request for the continuance, commented that the victims and the families of the victims deserved consideration. While Dunn may be correct in stating that the judge should have focused on the her rights, rather than the victims’ rights, she has failed'to show any prejudice by the denial of the continuance. Dunn’s claim that she was prejudiced because the ruling prevented her from obtaining evidence to support her defense of compulsion is without merit, since she was not entitled to raise that defense. Further, Dunn did acquire an order for the release of the prisoner at Lansing, but the prisoner was not called to testify at trial. Regarding the information from Texas, one month was not shown to be insufficient time to obtain the Texas report. The trial court did not err in refusing the motion for a continuance.
SEQUESTRATION OF WITNESSES
Dunn next argues that the trial court erred in refusing her request to sequester four witnesses (Fred Sager, Raymond Haremza, Maurice Christie, and Wesley Moore) during the testimony of the events at the Bartlett grain elevator. When requested by a defendant, K.S.A. 22-2903 requires the sequestration of witnesses during preliminary hearings. At trial, sequestration is not a right, but is committed to the sound discretion of the trial court and, in the absence of any showing of prejudice to the defendant, the trial court’s decision will not be reversed on appeal. State v. Freeman, 223 Kan. 362, 373, 574 P.2d 950 (1978).
Because the only evidence of any direct participation by Dunn in the crimes came from these four witnesses, she contends the trial court’s refusal to sequester the witnesses caused severe prejudice. At trial, each witness testified that he observed a person with shoulder-length blond hair (Dunn) driving the pickup truck at the elevator. Dunn argues that, when each gave his statement to the KBI agent shortly after the crime, not one of the witnesses included this description in his statement.
After the four witnesses had testified, the defense called the KBI agent who had taken the initial statements of the four witnesses. The agent was thoroughly examined about the discrepancies between the four witnesses’ initial statements and their testimony at trial. The KBI agent admitted that witnesses may become vindictive, but stated it is not unusual for witnesses to remember additional details after the passage of time. He testified it is normal procedure for law enforcement officers to have an initial interview and to follow that interview with another a few days later. Because he was assigned to another case, he did not conduct a second interview of the witnesses.
The jury had the opportunity to judge the credibility of the four witnesses and their attempted impeachment by the defense. In addition, prior to the trial, one of the witnesses, Moore, gave the same description of the driver at the preliminary examination. The trial judge’s decision not to sequester the witnesses was not an abuse of discretion, and did not prejudice defendant’s right to a fair trial.
SUFFICIENCY OF THE EVIDENCE
Defendant contends that the evidence introduced against her at trial was insufficient to convince a rational trier of fact beyond a reasonable doubt that she was guilty of aiding and abetting in the commission of the crimes. K.S.A. 21-3205(1) provides a person is criminally responsible for a crime committed by another if he intentionally aids, abets, advises, hires, counsels, or procures the other to commit the crime. Mere association with the principals who actually commit the crime or mere presence in the vicinity of the crime are themselves insufficient to establish guilt as an aider and abettor; however, when a person knowingly associates himself with the unlawful venture and participates in a way which indicates he willfully is furthering the success of the venture, such evidence of guilt is sufficient to go to the jury. See State v. Williams, 229 Kan. 646, 661, 630 P.2d 694 (1981); State v. Payton, 229 Kan. 106, 111, 622 P.2d 651 (1981); State v. McDaniel & Owens, 228 Kan. 172, 178, 612 P.2d 1231 (1980); State v. Wilson & Wentworth, 221 Kan. 359, 367, 559 P.2d 374 (1977); State v. Edwards, 209 Kan. 681, 686, 498 P.2d 48 (1972).
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. State v. Ramos, 240 Kan. 485, 486-87, 731 P.2d 837 (1987), State v. Douglas, 230 Kan. 744, 745-46, 640 P.2d 1259 (1982).
Here, there was sufficient evidence for the jury to find that Dunn was driving the truck, and this would have been sufficient to sustain her conviction as a principal. Even without evidence that she was the driver, one who stays with a vehicle in which he or she knows that the main participants in the crime plan to make their getaway intentionally aids and abets in the commission of the crime and can be charged and convicted of the crime, although he or she did not participate at the scene of the crime. State v. Burton, 235 Kan. 472, Syl. ¶ 5, 681 P.2d 646 (1984). A review of the evidence introduced at trial substantiates a verdict of guilty.
FAILURE TO INSTRUCT ON COMPULSION
Dunn argues that, because whatever acts she may have committed were the results of threats against her and her family by Remeta, the trial court erred by refusing to instruct the jury on the defense of compulsion. We disagree. Here, the trial court’s rationale for refusing to instruct — the belief that the defense of compulsion was not available in cases of felony murder — was incorrect.
However, in State v. Hunter, 241 Kan. 629, 740 P.2d 559 (1987), we pointed out that the statutory limitation on the use of the compulsion defense is restricted to crimes of intentional killing. We held that where compulsion is a defense to an underlying felony under K.S.A. 21-3209, so that the felony is justifiable, compulsion is equally a defense to a charge of felony murder. 241 Kan. at 642.
We have previously determined the defense of compulsion was not available to Dunn. Therefore, the trial court did not err in refusing the compulsion instruction. We have long held that the judgment of a trial court, if correct, should be upheld, even though the court may have relied upon a wrong ground or assigned an erroneous reason for its decision. State v. Littlejohn, 236 Kan. 497, 694 P.2d 403 (1984).
CONSTITUTIONALITY OF CONVICTION OF AIDING AND ABETTING FELONY MURDER
Dunn contends that her conviction of aiding and abetting felony murder violates the due process guarantees of the Fourteenth Amendment of the United States Constitution. She argues that it is “fundamentally unfair” for a person who aids and abets a forcible felony to be responsible for a murder committed in perpetration of the felony and that where an aider and abettor does not know the activity involved constitutes a crime the requisite intent for felony murder'does not exist. Defendant cites State v. Thomas, 239 Kan. 457, 720 P.2d 1059 (1986), where we stated the following:
“A principal in a crime must be actually or constructively present, aiding and abetting the commission of the offense. It is not necessary that one do some act at the time in order to constitute him a principal, but he must encourage its commission by acts or gestures, either before or at the time of the commission of the offense, with full knowledge of the intent of the persons who commit the offense. He must do some act that is in furtherance of the offense.
“An aider or abettor is one who advises, counsels, procures, or encourages another to commit a crime. A person is an aider and abettor if he or she actively assists in planning and preparing for the perpetration of a crime and assumes a station with the knowledge of the perpetrators where he or she may be able to assist either in the commission of the crime or in the escape immediately following the perpetration of the crime. An aider and abettor need not know that the activity constitutes a crime. It is enough that he or. she knows facts that are essential to constitute the activity as a crime. See generally State v. Schriner, 215 Kan. 86, 523 P.2d 703 (1974).” 239 Kan. at 461.
In the complaint, the State charged Dunn as a principal. The jury was instructed under PIK Crim. 2d 54.05, which 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.”
A person is criminally responsible for the crimes of others if that person intentionally aids and abets the others in the commission of the crime. K.S.A. 21-3205. The element of intent necessary in aiding and abetting may be inferred from circumstantial evidence. State v. Goering, 225 Kan. 755, 758, 594 P.2d 194 (1979). Here, Dunn was present at the crime scene and there was evidence that she acted in furtherance of the offense. The jury concluded that Dunn was a knowing participant in the crimes of aggravated robbery and/or aggravated kidnapping. This felonious intent is sufficient for conviction of felony murder.
CONSTITUTIONALITY FOR CONVICTIONS OF FELONY MURDER AND THE UNDERLYING FELONIES
Dunn contends that her convictions for felony murder, aggravated kidnapping, and aggravated robbery violate the double jeopardy clause of the Fifth Amendment to the United States Constitution, § 10 of the Bill of Rights of the Kansas Constitution, and K.S.A. 1987 Supp. 21-3107. She reasons that the aggravated robbery and kidnapping charges are lesser included offenses of felony murder and that convictions for both murder and the underlying felonies constitute multiple punishment for the same offense.
The constitutional prohibition against double jeopardy is directed to the identity of the offense and the act. Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied when determining whether there are two offenses or only a single offense is whether each statutory provision requires proof of an element that the other does not. Where one statute provides proof of an element that the other does not, the crimes are not the same, even though proof of the separate crimes may substantially overlap.
K.S.A. 1987 Supp. 21-3107 provides:
“(1) When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment.
“(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.”
Dunn’s contention that the aggravated robbery charge merges into the homicide charge is unfounded. 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. K.S.A. 21-3401. The underlying felony of robbery is the taking of property from the person or presence of another by threat of bodily harm to his person or the person of another or by force, K.S.A. 21-3426, and becomes aggravated robbery where the robbery is committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery. K.S.A. 21-3427.
We have held that 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. If this is not true, then the felony must be a separate and distinct offense and the doctrine of merger does not apply. State v. Rueckert, 221 Kan. 727, 733, 561 P.2d 850 (1977). A more correct formulation of the proper test when considering merger is whether the elements of the underlying felony are so distinct from the homicide so as not to be an ingredient of the homicide. State v. Lashley, 233 Kan. 620, 631, 664 P.2d 1358 (1983). While the force used to commit robbery is an integral part of aggravated robbery, it is not the entire body of that offense. The essence of aggravated robbery is to deprive a person of property, which is not an element of homicide. Aggravated robbery and homicide do not merge. State v. Rueckert, 221 Kan. at 733.
The same principles apply to the offense of aggravated kidnapping as the underlying felony. K.S.A. 21-3420 defines kidnapping as the taking or confining of any person accomplished by force, threat, or deception, with the intent to hold such person (a) for ransom, or as a shield or hostage; or (b) to facilitate flight or the commission of any crime; or (c) to inflict bodily injury or to terrorize the victim or another; or (d) to interfere with the performance of any governmental or political function. K.S.A. 21-3421 provides that aggravated kidnapping is kidnapping as defined in K.S.A. 21-3420 when bodily harm is inflicted upon the person kidnapped. If there is evidence to support the elements of kidnapping and evidence to support that a homicide was committed during the perpetration of the kidnapping, then the offenses would not merge. Both of the felony convictions here are convictions for crimes independent of the homicides; therefore, they do not merge.
Dunn’s convictions of aggravated robbery, aggravated kidnapping, and felony murder require the State to prove an element in each offense that is not required in the other offenses. Dunn’s multiple convictions for the single act or transaction are constitutionally permissible.
SENTENCING
Dunn was sentenced to two life terms for the felony-murder convictions, two life terms for the aggravated kidnapping convictions, 15 years to life for aggravated battery of a law enforce ment officer, 15 years to. life for aggravated robbery, and 5-20 years for aggravated battery, all terms to run consecutively. Hunter and Remeta each received the same sentence. Dunn’s motion to modify the sentence as excessive under the facts was denied by the sentencing judge.
A sentence imposed by a trial court will not be disturbed on the ground it is excessive, provided it is within the limits set by law and within the realm of discretion on the part of the trial court, and the sentence is not the result of partiality, prejudice, oppression, or corrupt motive. State v. Richard, 235 Kan. 355, 366, 681 P.2d 612 (1984). Dunn argues that the sentencing judge was partial when he disregarded all of the testimony that favored imposition of a lenient sentence and relied on misleading and inaccurate information, particularly witness McKee’s testimony that she saw defendant laughing in the truck after the hostages were taken. Actually, the judge’s comments relating to McKee’s testimony were made at the hearing on modification for sentencing.
When sentencing Dunn, the judge commented that the fact that she was sorry did not undo the harm caused by the criminal acts. He found that Dunn had numerous opportunities to disassociate herself from Remeta prior to the crimes committed in Kansas, but instead chose to stay with Remeta and willingly participate in the taking of human lives. The judge then imposed the sentence. We have reviewed the record and find that the sentence was not the result of partiality, prejudice, oppression, or corrupt motive.
Defendant also contends that the court erred in sentencing Dunn to the same terms as Hunter and Remeta, citing State v. Goering, 225 Kan. 755. In Goering, this court held it was error to sentence the defendant, who aided and abetted in the commission of the crimes, to consecutive terms, when one of her codefendants, the principal, was given concurrent sentences. The court noted that Goering was the least culpable of the defendants involved. Here, there was no disparity in sentencing. While the judge did not expressly review each of the factors set forth in K.S.A. 21-4606, he did state that he had considered them and found many inapplicable. He then stated he placed great emphasis on the harm caused by the crimes and the lack of excuse or justification. The sentence imposed upon Dunn is within the statutory limits and no abuse of discretion has been shown.
MOTION FOR A NEW TRIAL
The final issues raised by Dunn relate to the trial court’s denial of her motion for a new trial. Subsequent to the docketing of her appeal, the case was remanded to the district court to hear Dunn’s motion for a new trial based on (1) newly discovered evidence, and (2) the State’s failure to reveal exculpatory evidence. The motion was set to be heard on April 30, 1987.
The attorney appointed to represent Dunn for her appeal attempted to issue subpoenas to both prosecuting attorneys, several KBI agents, and the attorney that had been appointed to represent her in the trial. Dunn requested to be present at the hearing, filed a motion for the production of a witness from Florida, and also planned to call a psychologist from the Menninger Foundation to testify. After a telephone conference requesting a continuance, the judge issued a prehearing order on April 17, 1987, which informed Dunn that prior to having the witnesses testify, she must submit an affidavit of the relevant' testimony of the witnesses, including any evidence that the defendant did not commit the crime. The judge stated he would not reconsider his exclusion of evidence of the battered wife syndrome and the hostage syndrome or his denial of the instruction on compulsion. In addition, he found Dunn’s presence at the hearing unnecessary.
ILLEGAL PREHEARING ORDER
Dunn claims that the prehearing order was “illegal,” since it prohibited her from presenting evidence at the hearing on the motion for a new trial in violation of her due process rights and her Sixth Amendment right to confrontation of witnesses.
Dunn based the motion for a new trial on newly discovered evidence. Part of this “new evidence” was a post-conviction evaluation by a psychologist at the Menninger Foundation, Dr. Marilyn Hutchinson. At the hearing, the psychologist’s report was admitted into evidence and considered by the judge. In addition, defendant’s counsel explained at length the methodology employed by the expert to establish a theory of “learned helplessness” and its relevance to the battered woman syndrome. Although the psychologist was not allowed to testify in person, sufficient evidence was presented for the judge to rule on whether this evidence was “newly discovered.”
Defendant also argued..that the State had failed to turn over “exculpatory evidence” prior to trial. This evidence consisted of police reports from other states concerning the crimes committed by Remeta on the way to Kansas. Defendant maintained this evidence would show that she was merely a passive observer to the crimes. Although the prosecutors and KBI agents did not testify, the judge was able to determine from their reports that the evidence was not exculpatory.
As to the presence of Dunn, we have ruled that the presence of the defendant at a hearing on post-trial motions is not a matter of right, but a matter within the discretion of the trial court. State v. Bryant, 227 Kan. 385, 607 P.2d 66 (1980). Dunn also argues that her presence and that of her trial attorney, Brooks, was necessary for a determination of the issue of ineffective assistance of counsel. An examination of the trial record reveals that the judge’s order not to require the presence of Dunn or her trial attorney did not prejudice defendant’s ability to present evidence at the hearing on the motion for a new trial.
The Sixth Amendment right to compulsory process guarantees the accused the right to obtain witnesses for his defense at the trial. The hearing on a motion for a new trial is not a trial and the judge did not deny Dunn the right to present evidence at the hearing for a new trial, but merely limited the form of the presentation of evidence to affidavits and summation by counsel. A motion for new trial based on newly discovered evidence, filed after the imposition of sentence, is comparable to the procedure provided in K.S.A. 60-1507. In proceedings under 60-1507, the trial court normally conducts a preliminary inquiry to determine whether the claims asserted in the motion are substantial before granting a full evidentiary hearing and requiring the petitioner to be present. State v. Bryant, 227 Kan. at 390-91. Here, prior to requiring the witnesses to appear at the hearing, the judge properly determined there was no substantial basis for Dunn’s claims.
RECUSAL OF TUDGE WILLOUGHBY
Defendant filed an initial motion for recusal pursuant to K.S.A. 1987 Supp. 20-311d(a), claiming that the judge could not afford her a fair trial. After Judge Willoughby refused recusal, defendant filed an affidavit pursuant to K.S.A. 1987 Supp. 20-311d(b), alleging bias because the judge ruled on the new trial motion prior to the hearing. The matter was assigned to Hon. Jack Burr, who found the motion and affidavit legally insufficient to indicate bias or prejudice. Defendant now contends that Judge Burr erred in concluding that the affidavit was insufficient.
K.S.A. 1987 Supp. 20-311d(c)(5) provides grounds which may be alleged to support a change of judge:
“The party or the party’s attorney filing the affidavit has cause to believe and does believe 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 postjudgment remedies. Such affidavit shall state the facts and the reasons for the belief that bias, prejudice or an interest exists.”
K.S.A. 1987 Supp. 20-311d(d) provides:
“In any affidavit filed pursuant to this section, the recital of previous rulings or decisions by the judge on legal issues or concerning the legal sufficiency of any prior affidavits filed by counsel for a party in any judicial proceeding, or filed by such counsel’s law firm, pursuant to this section, shall not be deemed legally sufficient for any belief that bias or prejudice exists.”
Judge Burr ruled that defendant’s affidavit referred to previous adverse rulings by the trial judge and denied defendant’s motion. This ruling was correct. We have long held that previous rulings of a trial judge are subject to correction on appeal and may not form a basis for recusal. State ex rel. Miller v. Richardson, 229 Kan. 234, 238, 623 P.2d 1317 (1981).
ERROR IN DENIAL OF MOTION FOR NEW TRIAL
Defendant contends that the trial court erred in denying the motion for a new trial based on newly discovered evidence and the failure of the State to disclose exculpatory evidence. K.S.A. 22-3501(1) permits a district court to order a new trial on the grounds of newly discovered evidence.
The granting of a new trial on the basis of newly discovered evidence is within the trial court’s discretion. A new trial should not be granted on the ground of newly discovered evidence unless the evidence is of such materiality that it will likely produce a different result upon retrial. The credibility of the evidence offered in support of the motion is for the trial court’s consideration. The defendant has the burden of proof to show the alleged newly discovered evidence could not have been produced at trial with reasonable diligence. Appellate review of an order denying a new trial is limited to determining whether the trial court abused its discretion. See State v. Johnson, 222 Kan. 465, 471, 565 P.2d 993 (1977).
An examination of the record reveals that defendant’s claim of newly discovered evidence has no merit. The “new” evidence consisted of a detailed report of the alleged rape of Dunn by two men in Florida in 1984. The defense knew of the rape prior to trial. In fact, Dunn testified at trial that the reason she wanted to take a gun along with her on the trip to Florida with Remeta and Walter was because she had been raped. Defendant has failed to carry the burden of showing that the police report could not have been obtained by due diligence.
Defendant also claims as newly discovered evidence a report by a psychologist, Dr. Hutchinson, from the Menninger Foundation. In the report, the psychologist stated that Dunn suffered from something akin to the battered woman or hostage syndrome, which explained her inability to escape from Remeta. (Hutchinson laid significant weight on the rape which, as the trial judge noted, was merely alleged and not proved.) Even if the report could be considered newly discovered evidence, it would not have produced a different result at trial, given the ruling that (1) evidence of the battered woman syndrome or the hostage syndrome was inadmissible to negate criminal intent in this case and (2) the facts in this case did not support a defense of compulsion.
Defendant also contends that a new trial was warranted because the State withheld exculpatory evidence. This evidence involved police reports from Michigan, Florida, Texas, and Arkansas which defendant contends showed that Dunn was not an active participant in Remeta’s crimes in these other states and would have bolstered her claim of passive participation in the crimes in question. In State v. Carmichael, 240 Kan. 149, 727 P.2d 918 (1986), we stated:
“A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is material to the guilt or innocence of the defendant. Suppression of such evidence is a violation of the defendant’s Fourteenth Amendment due process rights. Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). Prosecutors are under a positive duty, independent of court order, to disclose exculpatory evidence to a defendant. To justify a reversal of a conviction for failure to disclose evidence, the evidence withheld by the prosecution must be clearly exculpatory and the withholding of the evidence must be clearly prejudicial to the defendant.
“There are three classifications regarding suppression of evidence: (1) where there is a deliberate bad faith suppression for the purpose of obstructing the defense or intentional failure to disclose evidence which has high probative value and which could not have escaped the prosecutor’s attention; (2) where there is a deliberate refusal to honor a request for evidence where evidence is material to guilt or punishment, irrespective of the prosecutor’s, good or bad faith in refusing the request; and (3) where suppression was not deliberate and no request for evidence was made, but where hindsight discloses that the defense could have put the evidence to significant use. State v. Kelly, 216 Kan. 31, 34, 531 P.2d 60 (1975).” 240 Kan. at 152.
Evidence is exculpatory if it tends to disprove a fact in issue which is material to guilt. The question becomes whether the defendant was materially prejudiced by the unavailability of the evidence. There are at least three different standards for determining materiality: (1) evidence which maybe merely helpful to the defense; (2) evidence which raises a reasonable doubt as to defendant’s guilt; and (3) evidence which is of such a character as to create a substantial likelihood of reversal. State v. Carmichael, 240 Kan. at 153 (citing Comment, Materiality and Defense Requests: Aids in Defining the Prosecutor s Duty of Disclosure, 59 Iowa L. Rev. 433, 445 [1973]).
The proper standard of materiality must reflect the court’s overriding concern with the justice of a finding of guilt. We permit such a finding only if it is supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omission of the alleged exculpatory evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the record. 240 Kan. at 153 (citing United States v. Agurs, 427 U.S. 97, 112, 49 L. Ed. 2d 342, 96 S. Ct. 2392 [1976]).
Here, the trial judge implicitly determined that the evidence of crimes in other states was not exculpatory, and that defendant was not materially prejudiced by the unavailability of the evidence because the evidence would not have created a reasonable doubt as to defendant’s guilt. He was influenced in this decision by the fact that, prior to trial, defense counsel by a motion in limine prohibited the State from presenting evidence of crimes committed in other states. This was a valid choice of trial strategy. Even if it were not, it has long been the rule that a party may not invite error and then complain of that error on appeal. State v. Salton, 238 Kan. 835, 715 P.2d 412 (1986). The trial court did not err in denying defendant’s motion for a new trial.
Finally, defendant argues, in the alternative, that defense counsel’s failure to obtain clearly exculpatory reports constituted ineffective assistance of counsel. Defendant states: “Evidence that she did not participate in other crimes or was merely passively present, corroborated her compulsion defense.” As stated previously, defendant was not entitled to claim the defense of compulsion. Neither can it be said that defense counsel’s strategy to file a motion in limine regarding the prior crimes constituted ineffective assistance of counsel. Dunn’s claim that she would have been assisted in her defense by a recitation of the facts of numerous brutal crimes which occurred while she was sitting in the getaway car is not persuasive.
The standard for determining ineffective assistance of counsel, stated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), was followed by this court in Chamberlain v. State, 236 Kan. 650, 694 P.2d 468 (1985). Chamberlain requires that the defendant show that (1) counsel’s performance was unreasonably deficient and (2) the deficient performance prejudiced the defendant so as to deprive him of a fair trial. Judicial scrutiny of counsel’s performance must be highly deferential, and 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. A reviewing court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. 236 Kan. at 654.
With regard to the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. 236 Kan. 650, Syl. ¶ 3. Defendant has not shown that counsel’s failure to obtain evidence of Dunn’s participation in crimes in other states undermines confidence in the verdict.
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The opinion of the court was delivered by
McFarland, J.:
This is an appeal of the district court’s denial of plaintiff s motion to vacate the judgment entered in Johnson v. American Cyanamid Co., 239 Kan. 279, 718 P.2d 1318 (1986). The motion was brought on the ground the appellate judgment was obtained as a result of fraud on the part of counsel for defendant. The district court held that the alleged fraud was not material to the appellate decision.
On May 31, 1984, a Sedgwick County District Court jury returned a ten million dollar verdict in favor of Emil Johnson against American Cyanamid (Cyanamid) in his product liability suit against Cyanamid. Judge Nicholas Klein presided over the case. The precise nature of the claims asserted against Cyan-amid, the evidence introduced at trial, and the issues raised in the appeal, as well as our disposition- thereof, are thoroughly reported in Johnson v. American Cyanamid Co., 239 Kan. 279, and need not be repeated herein. The judgment of the district court was reversed on appeal. Thereafter, plaintiff filed an action in the United States District Court for the District of Kansas (No. 86-1943-K) against Cyanamid and the members of this court alleging that our decision in Johnson v. American Cyanamid Co. had violated her civil rights. The federal case was dismissed on April 10, 1987, for lack of subject matter jurisdiction. On May 12, 1987, plaintiff filed a motion in the Sedgwick County District Court seeking to vacate the appellate judgment under K.S.A. 60-260(b)(3) alleging the same had been procured by Cyanamid’s fraud upon this court. The motion was heard and denied by Judge Ron Rogg. Plaintiff appeals from the district court’s denial of her motion.
In order to understand the allegation of fraud and the district court’s denial of the motion to vacate, the procedural events following the return of the jury verdict must be set forth in detail. The trial of this ease extended over some two months with the verdict being returned on May 31,1984. The following day, June 1, 1984, two events occurred. Judge Klein filed an entry of judgment form and plaintiff filed a journal entry of judgment (the latter was not presented to or signed by counsel for Cyanamid as required by Rule 170 [1987 Kan. Ct. R. Annot. 90]). Judge Klein mailed copies of the entry of judgment form to counsel. Counsel for Dr. Branson, a codefendant, received their copy on June 2 and plaintiffs counsel received their copy on June 4. These copies were presumably mailed on June 1,1984, although this is the subject of certain disputed affidavits to be discussed in detail later. We do not know when counsel for Cyanamid received their copy from the court. On June 4, 1984, Mark Hutton, one of plaintiff s counsel, sent the following letter to counsel for Cyan-amid:
“Mr. Larry W. Wall
P. O. Box 997
Wichita, Kansas 67201
“Re: Johnson v. Lederle
“Dear Larry:
“Enclosed is a certified copy of the Journal Entry of Judgment in the above-captioned matter. This Journal Entry was filed on Friday, June 1,1984.1 called your office on June 1 attempting to locate you or Susan Selvidge for your approval of this Journal Entry and I was advised that both of you were out of town and unable to approve the same. Because of the accruing of interest during the pendency of the appeal from the time of the filing of the Journal Entry of Judgment, it was necessary for me to attempt to secure the Judge’s signature on the Journal Entry without your approval of same. I advised Judge Klein that I would allow you to make any changes or modifications to the Journal Entry which you deem appropriate.
“Please let me know of any changes or modifications you deem necessary and we will make the appropriate amendments to this Journal Entry.
“Very truly yours,
/s/Mark B. Hutton
Mark B. Hutton”
On June 11, 1984, the following order was signed by Judge Klein and filed:
“ORDER
“NOW on this 11th day of June, 1984, the defendant American Cyanamid Company is granted ten (10) additional days herein to file its post-trial motions and memorandums of law.
“IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the defendant American Cyanamid Company, shall have until June 21, 1984, to file its post-trial motions and memorandums of law herein.
“IT IS FURTHER ORDERED that a stay of proceedings to enforce the judgment herein is granted during the pendency of the defendant’s motion for a new trial or a directed verdict and during the pendency of the defendant’s appeal to any appellate court until such time as the appellate process is fully completed. This Order staying proceedings of execution on the judgment herein shall become effective upon the filing of this Order with the Clerk of the District Court of Sedgwick County, Kansas, and shall continue throughout the appeal upon the filing of a supersedeas bond in the form attached hereto and marked Exhibit ‘A.’
“IT IS SO ORDERED.
“/s/ Nicholas W. Klein
Nicholas W. Klein, Judge”
The order was approved by Larry Wall and Susan P. Selvidge on behalf of Cyanamid and by Mark B. Hutton on behalf of plaintiff. Cyanamid’s motions for a new trial, directed verdict, and for a remittitur were filed on June 21, 1984. Plaintiff s lead counsel, Gerald Michaud, took an extended vacation after the trial and was out of the country during these post-trial activities. Cyanamid’s motions were heard and overruled on July 20, 1984. On August 16, 1984, Cyanamid filed its notice of appeal.
On October 11, 1984, codefendant Branson (against whom the jury had found zero fault) filed a motion to dismiss Cyanamid’s appeal. The thrust of this motion was that he had not been a party to the 10-day extension of time granted on June 11, 1984, to Cyanamid to file post-trial motions, hence the clock for filing such motions and appealing was not stopped by the entry of the extension order. On October 19, 1984, plaintiff filed a motion to dismiss the appeal which is best described as a “me, too” duplicate of Branson’s motion. On October 25, 1984, Cyanamid filed a response to Branson’s motion. The response recited the sequence of events following the return of the verdict mentioning Mr. Michaud’s extended absence and the fact that the complex motion for new trial required the assistance of Cyanamid’s New York corporate counsel. Attached to and made a part of the response was an affidavit of Susan Selvidge dated October 25, 1984, which states:
“AFFIDAVIT
“STATE OF KANSAS )
) SS:
SEDGWICK COUNTY )
“I, Susan Selvidge, one of the attorneys for the appellant American Cyanamid Company/Lederle Laboratories, of lawful age, being first duly sworn upon her oath, deposes and states:
“That I have contacted Judge Nicholas Klein of the Eighteenth Judicial District Court for Sedgwick County, Kansas and he has told me that he has no recollection of sending his Order dated June 1, 1984, entering judgment in Case No. 81 C 2470 to appellant’s counsel.
“Is/ Susan P. Selvidge
Susan Selvidge”
The affidavit was properly subscribed and a copy of the response and affidavit were mailed to plaintiff s counsel on October 25, 1984. Cyanamid’s response to the plaintiff s motion to dismiss incorporated the response to the Branson motion. This affidavit lies at the heart of plaintiff s present claim of fraud as will be more fully discussed later.
On December 6, 1984, the motions to dismiss filed by plaintiff and Rranson were denied by this court with leave to renew at the time of oral argument. They were so renewed and in our opinion, filed May 19, 1986, we stated:
“The first issue before us originally arose on a motion, filed by defendant Branson, to dismiss the appeal (filed prior to the time the appeal was dismissed as to him). This motion was denied with leave to renew-and was subsequently renewed by the plaintiff rather than Branson. The issue concerns the time sequences involved in the filing of the notice of appeal and the filing and hearing of certain post-trial motions as well as irregularities in the filing of the journal entry of judgment. Little would be gained in setting forth in this opinion the complex factual and procedural history involved. It is sufficient to state that we have carefully considered the plaintiffs allegations relative to his motion to dismiss and find the same to be without merit.” 239 Kan. at 283.
Plaintiff s motion for reconsideration was denied on July 2, 1986. Plaintiff s federal civil rights action, previously mentioned, was filed on December 3,1986, and was dismissed by the federal court on April 10, 1987. The dismissal was not appealed.
On May 12, 1987, the motion to vacate involved herein was filed. Plaintiff contends that the reversal of the district court’s judgment in the original case was the result of fraud by counsel for Cyanamid. What was the fraud? The affidavit of Susan Selvidge. Plaintiff obviously had been aware of the affidavit since October of 1984 when the same was filed and served on her counsel. Plaintiff contends that the falsity of the affidavit was only discovered on or about March 2, 1987, in a conversation with Judge Klein. Attached to the motion to vacate is the following affidavit from Judge Klein:
“AFFIDAVIT
“STATE OF KANSAS )
) SS:
SEDGWICK COUNTY )
“I, JUDGE NICHOLAS KLEIN, District Judge of the Eighteenth Judicial District for Sedgwick County, Kansas, being duly sworn upon oath, do attest and state:
“That I signed a Memorandum/Docket/Entry of Judgment form on May 31, 1984, entering judgment on the jury verdict rendered in Case No. 81-C-2470, Johnson vs. American Cyanamid Company, et al. on that same date.
“That I filed said judgment form with the Clerk of Court on June 1, 1984, and mailed three (3) copies of the judgment form to all counsel of record in the case, Randall Fisher, Larry Wall and Gerald Michaud, that same date of June 1, 1984.
“That I did not enclose a transmittal letter with the judgment form, but did mail the form without cover to each of the parties in that action.
“Further, that I was subsequently contacted by Susan Selvidge, one of the counsel for American Cyanamid in the case and informed her that the judgment form had been mailed to all parties on June 1, 1984, but that no transmittal letter had been prepared or mailed. Therefore, the statements attributed to me by Susan Selvidge are false. I had no knowledge of an affidavit prepared and filed by Susan Selvidge with the Supreme Court of Kansas until I was so informed of that fact on February 25, 1987.
“FURTHER AFFIANT SAITH NOT.
“Is/ Nicholas W. Klein
NICHOLAS KLEIN
[Subscription omitted.]”
(Note: There is some inconsistency in the dates as the Klein affidavit sets the “discovery” date earlier than Michaud’s affidavit concerning discovery of the fraud — but this is not significant to any issue herein.) Plaintiff contends that the Selvidge affidavit offers the only possible legal basis for our conclusion that we had jurisdiction in the original appeal and hence was a fraud upon this court mandating vacation of our judgment. The district court, with approval of counsel for both plaintiff and Cyanamid, entered an order on June 11, 1984, granting a ten-day extension for the filing of post-trial motions. When, or if, Cyanamid had received a copy of the entry of judgment form had nothing to do with the extension granted. The allegedly fraudulent Selvidge affidavit did not come into being until October 1984. Judge Klein states in his 1987 affidavit that he mailed a copy of the entry of judgment form to Cyanamid on June 1, 1984. Let us assume that he did and that the same was received either on Saturday, June 2, 1984, or Monday, June 4,1984. The order extending the time was filed on June 11,1984 — within ten days of the entry of judgment itself without any additional time being added for service of the copy by mail. Plaintiff argues that failure to receive the copy of the entry of judgment promptly after its entry is the only valid reason for granting the extension and stopping the clock on the running of the time for appeal. For support she relies upon K.S.A. 60-2103(a), which states in part:
“(a) When and hou> taken. When an appeal is permitted by law from a district court to an appellate court, the time within which an appeal may be taken shall be thirty (30) days from the entry of the judgment, as provided by K.S.A. 60-258, except that upon a showing of excusable neglect based on a failure of a party to learn of the entry of judgment the district court in any action may extend the time for appeal not exceeding thirty (30) days from the expiration of the original time herein prescribed. The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this subsection commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: Granting or denying a motion for judgment under subsection (b) of K.S.A. 60-250; or granting or denying a motion under subsection (b) of K.S.A. 60-252 to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; or granting or denying a motion under K.S.A. 60-259 to alter or amend the judgment; or denying a motion for new trial under K.S.A. 60-259.”
In denying defendant’s motion to vacate herein, the district court ruled that the issue of fraud did not control this court’s decision to grant the appeal in the underlying case, reasoning as follows:
“It is clear from the record that the ‘Unique Circumstances Doctrine’ was argued to the Kansas Supreme Court in regard to the timeliness of the filing of the post-trial motions of the defendants. That doctrine was urged on the basis that:
“ ‘By the time of the hearing on the post-trial motions, defendants on the court’s extension and the court’s delay in hearing the post-trial motions until plaintiff s counsel returned from his vacation in Europe has caused the time for appeal to expire, if calculated from the court’s entry of judgment on the jury verdict. The actions of Judge Klein, a judge with nineteen years’ experience in disposing of the post-trial motions on the merits in spite of the appellee Branson’s objections at the hearing, further led appellee to believe that the time of its Notice of Appeal should be calculated from the ruling on the post-trial motions. If Judge Klein had taken any action to suggest that appellant’s post-trial motions might be untimely, appellant might have elected to file a motion under K.S.A. 60-2103 for an extension of time for appeal.’ (Page 14 of ‘Response to Appellee Vernon Branson, M.D.’s Motion to Dismiss Appeal’ filed in the Supreme Court of the State of Kansas.)
“Although the Kansas Supreme Court does not specifically give the basis for its denial of the motion to dismiss on the timeliness issue, it is clear that the ‘Unique Circumstances Doctrine,’ on the basis above set out, could have formed the basis for the Court to deny the motion to dismiss. Gribble vs. Harris, 625 F.2d 1173, 1174 (5th Cir. 1980) summarizes the doctrine’s application in this case:
“ ‘The “Unique Circumstances” doctrine has been used by Circuit Courts of appeal to temper the strict requirements of Rule 6(b) and to allow untimely appeal, when the appellant has reasonably relied upon the District Court’s erroneous extension of time allowed for filing Rule 52 or Rule 59 motions, or its entertaining of such motions despite their untimeliness.’
“The denial on that basis is independent of whether or not fraud was practiced by the defendants in presenting their resistance to the motion to dismiss. Therefore, I conclude that the fraud as alleged in the motion to vacate, if it occurred, was not material to the Supreme Court’s decision in denying the motion to dismiss on the timeliness issue. Therefore, the motion to vacate filed by the plaintiff is hereby denied.”
We have recently had an opportunity to discuss the “unique circumstances” doctrine in some detail and apply the same in the case of Schroeder v. Urban, 242 Kan. 710, 750 P.2d 405 (1988). By virtue of its great significance to the issue before us, it is worthwhile to include much of that opinion herein as follows:
“On February 23, 1987, the district court of Thomas County entered judgment against the Urbans, defendants and now appellants. The attorney who represented the Urbans at trial notified them of the judgment, and also declined to represent them on any appeal. On March 23, 1987, 28 days after the entry of judgment, the trial judge granted the defendants an additional 30 days to take their appeal. The ruling was made during a conference call between the judge and counsel for both plaintiffs and defendants, and was journalized on the same day. At that time, the Urbans were snowbound in their rural home, and had been unable to secure counsel to take their appeal. Within the 30-day extension, the Urbans secured new counsel and on April 22, 1987, filed their notice of appeal. On July 16, after notice, the Court of Appeals dismissed the appeal for lack of jurisdiction.
“Appeals are governed by K.S.A. 60-2103(a), which reads in part as follows:
“ ‘60-2103. Appellate procedure, (a) When and how taken. When an appeal is permitted by law from a district court to an appellate court, the time within which an appeal may be taken shall be thirty (30) days from the entry of the judgment, as provided by K.S.A. 60-258, except that upon a showing of excusable neglect based on a failure of a party to learn of the entry of judgment the district court in any action may extend the time for appeal not exceeding thirty (30) days from the expiration of the original time herein prescribed. The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this subsection commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: Granting or denying a motion for judgment under subsection (b) of K.S.A. 60-250; or granting or denying a motion under subsection (b) of K.S.A. 60-252 to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; or granting or denying a motion under K.S.A. 60-259 to alter or amend the judgment; or denying a motion for new trial under K.S.A. 60-259.
“ ‘A party may appeal from a judgment by filing with the clerk of the district court a notice of appeal.’
“Here, there was no motion to amend or make additional findings of fact or to alter or amend the judgment, nor was there a motion for new trial; thus, the running of the time for appeal was not terminated by the timely filing of such a motion. The Urbans were aware that judgment had been entered.
“Extensions of time are ordinarily governed by K.S.A. 60-206(b), which reads as follows:
“ ‘(b) Enlargement. When by this chapter or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the judge for cause shown may at any time in the judge’s discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under K.S.A. 60-250(b), 60-252(b), 60-259(b), (d) and (e) and 60-260(b) except to the extent and under the conditions stated in them.’
“In Stanton v. KCC, 2 Kan. App. 2d 228, 577 P.2d 367, rev. denied 225 Kan. 845 (1978), the Court of Appeals held that K.S.A. 60-2103(a), having been enacted subsequentto K.S.A. 60-206(b), and being a statute which deals specifically with appellate procedure, takes precedence and limits the power of the trial court to grant extensions of time to take an appeal except where there is a showing of excusable neglect based on a failure of a party to learn of an entry of judgment. The Court of Appeals dismissed the appeal, and we denied the petition for review.
“Stanton is distinguishable from the case at bar. The party seeking to appeal in Stanton did not request an extension of time within the 30-day period fixed by K.S.A. 60-2103(a), nor did the trial court grant an extension within that time. Thus, in Stanton, the party who wanted to appeal was at the mercy of the trial court to grant an extension. In the present case, motion was made for an extension within the 30 days for appeal, and had the extension been denied, a notice of appeal could have been filed within the statutory 30 days. In the present case, application for an extension was made within the 30-day period, the extension was granted, the appellants relied upon the ruling of the trial judge granting that extension, and the notice of appeal was filed within the extension granted.
“At the time the United States Supreme Court decided the case of Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 217, 9 L. Ed. 2d 261, 83 S. Ct. 283 (1962), Fed. R. Civ. Proc. 73(a) was in effect. See 12 Wright & Miller, Federal Practice and Procedure: Civil 2d § 3072 n.l (1973). That rule permitted an extension of time for taking an appeal only ‘upon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment,’ language identical to that of our K.S.A. 60-2103(a). The facts in Harris were that within the 30-day time for taking an appeal counsel moved for an additional fourteen days, the extension was granted by the trial court, and the notice of appeal was filed on the fourteenth day but after the expiration of the 30-day statutory period. The Court of Appeals for the 7th Circuit dismissed the appeal. The United States Supreme Court reversed, stating:
‘In view of the obvious great hardship to a party who relies upon the trial judge’s finding of “excusable neglect” prior to the expiration of the 30-day period and then suffers reversal of the finding, it should be given great deference by the reviewing court. Whatever the proper result as an initial matter on the facts here, the record contains a showing of unique circumstances sufficient that the Court of Appeals ought not to have disturbed the motion judge’s ruling.’ 371 U.S. at 217.
“The unique circumstances doctrine is discussed in 4A Wright and Miller, Federal Practice and Procedure: Civil 2d § 1168 (1987), as follows:
“ ‘When employed in the context of an untimely appeal, the unique circumstances concept is based on a theory similar to estoppel. The Supreme Court seems to have concluded that a party ought not be denied an opportunity to appeal because of his failure to file a timely appeal when that failure resulted from reliance on action taken by the district court that generated a reasonable belief that an appeal could be initiated at a later date.’ (pp. 501-02.)
“The District of Columbia Court of Appeals clearly and concisely explained the unique circumstances doctrine in Aviation Enterprises, Inc. v. Orr, 716 F.2d 1403, 1406 n.25 (D.C. Cir. 1983):
‘Courts long have permitted parties to maintain otherwise untimely appeals in “unique circumstances” — those in which the appellant reasonably and in good faith relies upon judicial action seemingly extending the appeal period, provided that the court’s action occurs prior to expiration of the official period and that the appellant files a notice of appeal before expiration of the period apparently judicially extended.’
“In Tobin Constr. Co. v. Kemp, 239 Kan. 430, 721 P.2d 278 (1986), we considered, but found inapplicable under the facts of that case, the unique circumstances doctrine. In Tobin, judgment for plaintiff was entered in the district court. The plaintiff, dissatisfied with the award, prepared and served a motion to alter or amend judgment. The motion was left in the trial judge’s office late on the evening of the tenth day. The trial judge was out of town and did not actually see or know of the motion for several days thereafter. We held that the motion was not timely filed, because of the procedure employed, and thus Tobin’s cross-appeal was out of time. We considered the unique circumstances doctrine stated in Harris, but we determined that the facts in Tobin did not come within that doctrine.
“Here, the Urbans requested an extension of time prior to the expiration of the original statutory period. The trial court, apparently not knowing it was without authority to do so, granted an extension of time. The Urbans relied in good faith upon the trial court’s action extending the appeal period, and they filed their notice of appeal within the extension of time granted by the trial court. Had the trial court denied the motion, counsel for the Urbans could have filed a timely notice of appeal.
“The 10th Circuit recognized and applied the unique circumstances doctrine in Stauber v. Kieser, 810 F.2d 1 (10th Cir. 1982), wherein the plaintiff had relied upon the district court’s improper granting of an extension of time to file a motion to alter or amend the judgment. The 10th Circuit stated:
‘In these “unique circumstances,” it would now work a great hardship on plaintiffs to dismiss the appeal as untimely. . . . The court is of the opinion that to do so would not be in the best interests of justice.’ 810 F.2d at 1-2.
“Here, the purported extension was for a reasonable period of time, 30 days, the same length of time as the appeal time fixed by statute. Under the facts of this case, we conclude that we should apply the doctrine of unique circumstances.” 242 Kan. at 710-14.
In Schroeder the 30-day period for filing an appeal was about to expire when the district judge extended the time therefor. Although not stated in the opinion, counsel for the appellee opposed the extension, although not on jurisdictional grounds. In the case before us, the extension did not come into being to extend, directly, the time for filing an appeal, but rather the ten-day period for filing post-trial motions. Had the court denied the motion, Cyanamid would still have had several days to appeal from the judgment by anyone’s calculation of precisely when the 30-day period commenced to run. Counsel for plaintiff not only did not object to the extension, he approved of it. The district court was presented with an order extending the time which was approved by the plaintiff, who now argues it was an invalid order of no force and effect. Yet, clearly, Cyanamid reasonably and in good faith relied upon the order extending the time for the filing of the post-trial motions. Within the time frame of the extension, Cyanamid filed its post-trial motions (June 21, 1984). The original 30-day appeal time from the entry of judgment had not yet expired when these motions were filed, but Cyanamid, in reliance on the extension, did not appeal until after its post-trial motions had been denied. The unique circumstances doctrine is particularly applicable to the facts herein.
Our original opinion in Johnson v. American Cyanamid Co., 239 Kan. 279, was a lengthy opinion involving complex issues on the merits. With the wisdom of hindsight, it is unfortunate that we did not extend that opinion even further by a full recitation therein of the complex procedural facts following the entry of judgment which have been included in this opinion, and specifically stated our reliance on the doctrine of unique circumstances in finding we had jurisdiction of the appeal.
We conclude that the district court did not err in denying plaintiff s motion to vacate on the basis that the alleged fraud was not material to our original opinion.
By virtue of the result reached herein, it is unnecessary to determine the issues raised by Cyanamid.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Allegrucci, J.:
This is the second time this case has come before the Supreme Court for review. In April 1985, the plaintiff, a former undersheriff of Osborne County, filed this action against the county, seeking compensation for overtime work pursuant to the provisions of the Kansas Minimum Wage and Maximum Hours Law (KMWMHL), K.S.A. 44-1201 et seq. The district court rejected plaintiff s claim, finding that he was excluded from the provisions of the KMWMHL. Plaintiff appealed, and, in Dollison v. Osborne County, 241 Kan. 374, 737 P.2d 43 (1987) (Dollison I), we reversed the district court and held that the exemptions from overtime pay stated in the federal Fair Labor Standards Act (FLSA), but not included in the KMWMHL, were unique to the federal law and could not serve as a basis for excluding an employee from the overtime provisions of the state statute. We found that only the administrative employee exemption contained in K.S.A. 44-1202(e)(3) could exclude an employee from both the FLSA and the KMWMHL. 241 Kan. at 384. We remanded the case to the district court for determination of whether the plaintiff was an administrative employee and therefore excluded from the provisions of the KMWMHL.
Upon remand, the district court concluded that plaintiff was not an administrative employee and, therefore, was not excluded from the overtime pay provisions of the KMWMHL. In a memorandum decision dated October 5, 1987, the district court summarized its findings:
“While employed by the Osborne County Sheriffs Department, Mr. Dollison’s official title was Undersheriff. The Sheriffs Department in Osborne County, being a small county in central Kansas, consisted of the Sheriff, Undersheriff, Deputy Sheriff, and sufficient dispatchers to man the dispatch office twenty-four (24) hours a day. There was only one other road deputy besides the Undersheriff and Sheriff.
“The evidence and exhibits clearly show that Mr. Dollison spent the majority of his time functioning as a Deputy Sheriff patrolling on the roads of Osborne County. He spent less than ten (10) percent of his time actually involved as an administrator.
“An administrator, while not defined by Kansas Statutes, is clearly set forth in Black’s Law Dictionary: ‘A manager or conductor of affairs, specifically the affairs of another in his name or on his behalf. A manager of public affairs on behalf of others.’ Being a manager constitutes an individual who organizes, sets out, and directs the activities of another.
“That was not the function of Charles Dollison in Osborne County. He primarily operated as a road deputy. It is clear then, that he was within the purviews of coverage for the law enforcement officers as provided for in K.S.A. 44-1204(b).
“The primary bulk of Mr. Dollison’s activities was patrolling the road, checking traffic, writing accident reports, and investigating crimes, none of which constitutes administrator’s work.”
Defendant Osborne County now appeals from the decision of the district court. The facts in this case are set out in Dollison I, and will be restated herein only as necessary to determine the present appeal.
The primary issue raised by the defendant in this appeal is whether the plaintiff was an administrative employee. The defendant, Osborne County, disputes the district court’s conclusion that the plaintiff fell within the overtime pay protections of the KMWMHL. The defendant argues that the plaintiff was an administrative employee and is therefore excluded from the provisions of the overtime pay statute. K.S.A. 44-1202(e)(3) excludes from the provisions of the KMWMHL “any individual employed in a bona fide executive, administrative or professional capacity or in the capacity of an outside commission paid salesman, as such terms are defined and delimited by regulations of the secretary.”
“Administrative capacity” has been defined by regulations adopted by the secreary of human resources. K.A.R. 49-30-l(j) provides:
“ ‘Administrative capacity’ means an individual employed in an administrative position, public or otherwise, when performance is of office or nonmanual work directly related to office management policies, or general business operations when: (1) such individual supervises at least two (2) other employees; and (2) does not devote more than twenty (20) percent (forty (40) percent in case of employees in retail or service establishments), of his or her hours of work in a workweek to employment activities which are included in the coverage of these regulations; (3) performs functions in the administration of a school system, educational establishment or institution, where the work is directly related to academic instruction or training; (4) an individual who exercises discretion and independent judgment regularly and directly to assist a bona fide executive or administrative person as herein defined, and is subject to the same qualifying requirements.”
Of particular relevance in the present case is subsection (j)(2) of this regulation, which excludes persons devoting more than 20% of their time during the workweek to employment activities covered by the regulations. If more than 20% of an individual’s time is devoted to manual or nonoffice work, the individual is not employed in an administrative capacity and, therefore, remains within the protections afforded by the KMWMHL. In the present case, the district court found that the plaintiff devoted over 90% of his time to manual or nonoffice work, and that he spent less than 10% of his time “actually involved as an administrator.”
The defendant argues that subsection (j)(2) of K.A.R. 49-30-1 should not be applied “inflexibly,” and offers two rationales for disregarding its application in the present case. First, the defendant repeatedly stresses that, throughout his period of employment, it paid the plaintiff an average wage approximately three times the $1.60 per hour minimum wage required by K.S.A. 44-1203(a). We note, however, that the KMWMHL contains independent provisions regarding both the minimum wage and overtime compensation. Nothing in the statute suggests that an employer, by satisfying the requirements for the payment of a minimum wage, is excused thereby from the requirements for the payment of overtime compensation.
Second, the defendant suggests that the plaintiff is excluded from the provisions of the KMWMHL because he was not an employee of the defendant. K.S.A. 44-1202(c) states: “‘Employ’ means to suffer or permit to work.” The defendant argues that it did not suffer or permit the plaintiff to work overtime, citing a pre-employment agreement with the plaintiff that he would not collect overtime pay.
We find no merit in the defendant’s argument. As the defendant concedes, K.S.A. 44-1211(a) expressly provides that an employee’s agreement to work for less than the applicable wage rate shall not be a defense to a subsequent action by the employee to recover his appropriate wages and overtime compensation. By any reasonable analysis, defendant Osborne County did suffer or permit the plaintiff to work as an undersheriff, and therefore is considered to have employed him in that capacity.
Finally, the defendant argues that the plaintiff should be considered an administrative employee, since he performed some office or nonmanual work and his base salary exceeded $250 per week. The defendant’s argument relies upon 29 C.F.R. § 541.2 (1987), which defines the term “administrative employee” as it is used in the FLSA:
“The term ‘employee employed in a bona fide . . . administrative ... capacity’ in section 13(a)(1) of the Act shall mean any employee:
“(a) Whose primary duty consists of either:
“(1) The performance of office or nonmanual work directly related to' management policies or general business operations of his employer or his employer’s customers, or
“(2) The performance of functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein; and
“(b) Who customarily and regularly exercises discretion and independent judgment; and
“(c)(1) Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity (as such terms are defined in the regulations of this subpart), or
“(2) Who performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge, or
“(3) Who executes under only general supervision special assignments and tasks; and
“(d) Who does not devote more than 20 percent, or, in the case of an employee of a retail or service establishment who does not devote as much as 40 percent, of his hours worked in the workweek to activities which are not directly and closely related to the performance of the work described in paragraphs (a) through (c) of this section; and
“(e)(1) Who is compensated for his services on a salary or fee basis at a rate of not less than $155 per week ($130 per week, if employed by other than the Federal Government in Puerto Rico, the Virgin Islands, or American Samoa), exclusive of board, lodging, or other facilities, or
“(2) Who, in the case of academic administrative personnel, is compensated for services as required by paragraph (e)(1) of this section, or on a salary basis which is at least equal to the entrance salary for teachers in the school system, educational establishment, or institution by which employed: Provided, That an employee who is compensated on a salary or fee basis at a rate of not less than $250 per week ($200 per week if employed by other than the Federal Government in Puerto Rico, the Virgin Islands, or American Samoa), exclusive of board, lodging, or other facilities, and whose primary duty consists of the performance of work described in paragraph (a) of this section, which includes work requiring the exercise of discretion and independent judgment, shall be deemed to meet all the requirements of this section.”
Under the federal regulation, an employee who does not customarily and regularly exercise discretion and independent judgment, or who devotes more than 20% of his time during a workweek to manual or nonoffice work, is not considered an employee employed in a bona fide administrative capacity. 29 C.F.R. § 541.2(b) and (d). However, subsection (e)(2) contains a superseding provision which states that such individuals are nonetheless to be considered administrative employees so long as they receive a base salary of $250 or more per week and their primary duties consist of the performance of office or nonmanual work, including some work requiring the exercise of discretion and independent judgment. Dymond v. United States Postal Service, 670 F.2d 93 (8th Cir. 1982). Subsection (e)(2) of § 541.2 is “a special proviso including within the definition of ‘administrative’ an employee who is compensated on a salary or fee basis at a rate of not less than $250 per week exclusive of board, lodging, or other facilities,” and whose primary duty consists of the performance of office or nonmanual work. 29 C.F.R. § 541.214(a). “Such a highly paid employee having such work as his or her primary duty is deemed to meet all the requirements in § 541.2(a) through (e). If an employee qualifies for exemption under this proviso, it is not necessary to test the employee’s qualifications in detail under § 541.2(a) through (e).” 29 C.F.R. § 541.214(a).
The defendant contends that, since the plaintiff was paid a base salary in excess of $250 per week, under this special proviso he should be considered an administrative employee even though he devoted more than 20% of his time to manual or nonoffice work. We do not agree. The special proviso contained within 29 C.F.R. § 541.2(e)(2) is an expansive definition of the term “administrative employee” as it is used in the federal FLSA. As we noted in Dollison I, the plaintiff s action is not grounded upon the federal law, but is instead based upon the KMWMHL. Our decision in Dollison I clearly limited the issue to the interpretation of Kansas law; the regulations adopted by the secretary of human resources defining administrative employees contain no provision comparable to the special proviso in the federal rules.
This court has recognized that, in construing a statute, “the interpretation placed upon it by an administrative agency whose duties are to carry the legislative policy into effect, should be given great weight.” Cities Service Gas Co. v. State Corporation Commission, 192 Kan. 707, 714, 391 P.2d 74 (1964). In the present case, even greater weight must be accorded the secretary’s definition of an individual employed in a bona fide “administrative capacity,” since the statute being construed expressly incorporates the secretary’s definition. K.S.A. 44-1202(e) provides that an employee “means any individual employed by an employer, but shall not include: ... (3) any individual employed in a bona fide executive, administrative or professional capacity or in the capacity of an outside commission paid salesman, as such terms are defined and delimited by regulations of the secretary [of human resources].” Thus, in interpreting the scope of the KMWMHL, this court must look to the regulations adopted by the secretary of human resources rather than the federal regulations adopted by the Department of Labor in implementing the FLSA.
Since K.A.R. 49-30-l(j) contains no provision similar to the special proviso for highly paid employees contained in 29 C.F.R. § 541.2(e)(2), the defendant’s argument must be rejected. As noted earlier, the state regulation excludes from consideration as an administrative employee a person devoting more than 20% of his time to manual or nonoffice work. The district court, finding that the plaintiff devoted less than 10% of his time to administrative activities, correctly concluded that the plaintiff could not be considered an individual employed in a bona fide administrative capacity and was not excluded from the protections of the KMWMHL.
Defendant county next takes issue with the amount of attorney fees awarded by the district court. The defendant concedes that the district court is authorized to award attorney fees pursuant to K.S.A. 44-1211(a), which provides for “costs and such reasonable attorney fees as may be allowed by the court in an action for the recovery of such wages and overtime compensation.” The defendant, however, contends that the district court’s award of $6,072.21 in attorney fees was unreasonable.
In support of its contention, the defendant offers two arguments. First, the defendant contends that the award of attorney fees of $6,072.21 is unreasonable in light of the $12,133.90 judgment for the plaintiff. The defendant contends that an award of attorney fees in excess of one-half of the judgment recovered “is prima facie unreasonable.” The defendant, however, fails to cite any. authority in support of its contention.
Second, the defendant contends that the trial court erred in accepting a post-trial request by the plaintiff for an increase of $435.50 in the amount of attorney fees to be awarded. On January 22,1986, the plaintiff s attorney filed a statement of attorney fees, listing as total fees and expenses $2,275.57. Included within this amount is a statement for 32.4 hours of pretrial work between January 17, 1985, and January 22, 1986.
On October 9, 1987, the attorney for the plaintiff filed a motion for additional attorney fees. A statement for services accompanying the motion lists total fees and expenses between January 17, 1985, and January 22, 1986, of $2,711.07. The increase reflects an additional 6.7 hours at $65 per hour, or $435.50. On December 18, 1987, the district court made a final award of attorney fees to the plaintiff in the total amount of $6,072.21, which included the additional 6.7 hours sought by the plaintiff in the October 9 motion. The defendant contends that the award of attorney fees would be reasonable only if reduced by the sum of $435.50.
When the district court follows established guidelines for determining the size of an attorney fee award, appellate review is limited to abuse of discretion. Allison v. Board of Johnson County Comm'rs, 241 Kan. 266, 279, 737 P.2d 6 (1987). The supplemental statement of services filed by the plaintiff for which recovery was sought was as detailed as the original statement of fees and was, in essence, a correction of the original estimate of attorney fees. The defendant fails to demonstrate that the district court abused its discretion in permitting the plaintiff to supplement his original statement of attorney fees.
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The opinion of the court was delivered by
Herd, J.:
This is an action by Loretta Newman, the widow of Albert Newman, by her guardian ad litem, Roy Jordan, and by Stanley Ausemus, her guardian and conservator and administrator of the estate of Albert Newman, against Jim George, the trustee of the Albert Newman Revocable Trust, and Alice Williams and Rosie Brady, two beneficiaries of the trust. Defendants George, Williams, and Brady appeal a summary judgment setting aside a revocable trust.
The facts are not in dispute by the parties. Albert Newman and Loretta Newman had been married for many years when Albert died intestate on March 19, 1983. In their later years, Albert and Loretta were cared for by Alice Williams, Albert’s sister, and Rosie Brady, Loretta’s sister. Both sisters continued to care for Albert after Loretta was placed in a rest home. Both sisters were joint owners with rights of survivorship of several of Albert’s and Loretta’s bank accounts.
On February 24, 1983, several weeks before he died, Albert created a revocable inter vivos trust, designating Jim George as trustee. All assets placed in the trust were those acquired during the marriage; most came from Albert’s and Loretta’s joint accounts. All but two of the accounts in which the sisters, Brady and Williams, had joint ownership were transferred to the trust. The two accounts were later transferred to the trust by the sisters after Albert’s death.
Under the terms of the trust, Albert retained the right to amend or terminate the trust at any time before his death. He reserved the right to withdraw any or all assets for himself. Loretta was granted no power under the trust. She did not consent to the trust, nor did she at any time waive her statutory rights to Albert’s estate.
The trust also provided that the income from the trust was to go to Albert and Loretta during their lives. The trustee was given authority to invade the corpus of the trust to provide for the care of Albert and Loretta in the event Albert was unable to act in his own behalf. Any remainder after their death was to be divided between Williams and Brady. From the commencement of the trust, George has distributed an average of $1,622.00 a month for the care of Loretta.
After Albert’s death, the total estate of Albert Newman consisted of the following:
a. Albert Newman Trust — $112,560.36.
b. Certificate of deposit No. 5014, titled Albert Newman or Loretta Newman or Rosie Brady, as joint tenants with right of survivorship — $10,000.00 (paid by Rosie Brady to the trustee on April 29, 1983).
c. Accrued interest on certificate of deposit No. 5014 — $434.91 (paid by Rosie Brady to the trustee on April 29, 1983).
d. Checking account No. 301450, titled Albert Newman or Loretta Newman or Rosie Brady, as joint tenants with the right of survivorship — $6,500.00 ■ (paid to the trustee by Rosie Brady).
e. Checking account No. 301450 was kept open with balance of $554.36 after the payment in paragraph d above.
£ Life insurance of $2,616.68, beneficiary — Loretta Newman. Funds were deposited in checking account No. 301450 July 7, 1983, for the benefit of Loretta Newman, together with her social security benefits.
Albert and Loretta had no children during their marriage, but Loretta had a son from a previous marriage. Loretta’s son petitioned the court for the appointment of Ausemus as guardian and conservator for Loretta and administrator of Albert’s estate. Ausemus filed suit, claiming Loretta was entitled to the entire estate under Ackers v. First National Bank of Topeka, 192 Kan. 319, 387 P.2d 840 (1963), reh. denied 192 Kan. 471, 389 P.2d 1 (1964). The trial court agreed and held Loretta was entitled to judgment as a matter of law. George was thus ordered to deliver the trust corpus to Ausemus. George and the sisters appeal.
Summary judgment is proper where there is no issue of material fact and the movant is entitled to judgment as a matter of law. K.S.A. 1987 Supp. 60-256(c); Richardson v. Northwest Central Pipeline Co., 241 Kan. 752, 756, 740 P.2d 1083 (1987). The parties agree that summary judgment was appropriate. They disagree as to whom it should have been granted. The parties also agree that the rule enunciated in Ackers applies. They disagree only on the interpretation of Ackers.
Appellants argue Ackers shows the rights of a spouse who survives an intestate decedent and has not consented to a revocable trust are governed by K.S.A. 59-602(2) and K.S.A. 59-603 rather than K.S.A. 59-504. Appellants argue the rule of election properly applies, making Loretta entitled to only half of Albert’s estate, rather than the entire estate as the district court ordered.
Appellees reply that Ackers clearly states the law of intestate succession applies, and Loretta is thus entitled to the entire trust because Albert left no child or issue.
Let us examine Ackers. It is a case similar to the one at bar in that a widow protested a revocable trust created without her consent. The widow, Bessie, married Frank Ackers in 1942 but did not return with him from California when he moved back to his home in Kansas. The couple had no children, but Frank had a daughter from a previous marriage. Except for one visit Bessie made, husband and wife did not see each other again until 1958, when Bessie traveled to Kansas to sue Frank for separate maintenance. Frank cross-petitioned for divorce, but died while the suit was pending.
Frank had created a trust in 1955 consisting of a one-fourth interest in Kansas real estate he had inherited from his father during the marriage. He conveyed the balance of his property, consisting of stocks and bonds, to the trust before he died. Under the terms, the income from the trust was to be paid to Frank for life, then to his daughter for life, then to her daughter for life, with the corpus going to charity. Frank reserved the right to revoke or amend the trust and to invade the corpus.
Bessie and the administrator of Frank’s estate sued to set aside the trust. Frank’s daughter, granddaughter, and the beneficiary charity joined the trustee as additional parties defendant. The trial court upheld the trust in its entirety.
Several questions were presented on appeal. The first was whether the revocable trust was void. Prior to 1949, the statute pertaining to personal property trusts decreed: “All gifts and conveyances of goods and chattels, made in trust to the use of the person or persons making the same, shall be void and of no effect.” G.S. 1935, 33-101. We construed this to mean that a power to revoke made a trust “to the use of’ the grantor, and such a trust was therefore void. 192 Kan. at 323.
In 1949, however, the statute was amended, providing:
“All gifts and conveyances of goods and chattels, made in trust to the use of the person or persons making the same shall, to the full extent of both the corpus and income made in trust to such use, be void and of no effect, regardless of motive, as to all past, present, or future creditors; but otherwise shall be valid and effective.” G.S. 1949, 33-101.
See K.S.A. 33-101.
The Ackers court noted the amendment had not been previously interpreted, but found the intent and purpose of the legislature to be clear: “If the settlor retained the control over the corpus of the trust such as the right to remove the trust assets or the right to revoke the trust, it was void as to creditors regardless of motive but otherwise it was valid.” It held since there were no creditors the trust was valid and could not be challenged “unless for or by the wife in defense of her rights under the provisions of G.S. 1949, 59-504, 59-505, or 59-602.” (Emphasis supplied.) 192 Kan. at 325.
The court thus agreed to entertain Bessie’s arguments that public policy, prior law, and the legislative intent behind the three statutes overcame the clear language of G.S. 1949, 33-101. The statutes were then analyzed without regard to the effect of the trust.
This court noted that, under G.S. 1949, 59-505, Bessie, had she ever been a resident of Kansas during the marriage, would have been entitled to one-half the real estate owned by Frank, as she did not consent to its disposition. However, under the facts of the case, G.S. 1949, 59-505 did not apply because Bessie had never been a resident of Kansas. 192 Kan. at 326-27.
G.S. 1949, 59-602(2) was determined to not distinguish between resident and nonresident spouses, and thus could apply to Bessie. We also noted that while the statute ensured a spouse would receive at least as much as he or she would have received had the deceased died intestate, it did not extend such protection to the children of the deceased. Thus, children of an intestate parent would receive half the estate, but could not challenge a will which left them nothing. Only a spouse was protected from unbridled testamentary discretion.
We held Bessie did not have a right to half the estate under G.S. 1949, 59-602(2), since this statute applies to testamentary power. Frank died intestate. There is no right of election in an intestate estate. Election applies only to a will. See K.S.A. 59-603. G.S. 1949, 59-602(2) did not apply under the facts of Ackers. The court made the following statement which is controlling:
“We conclude that the husband of a nonresident wife may, by absolute sale, gift or other transfer made in good faith during his lifetime, deprive the wife of her distributive share. However, if the transfer is colorable only and the husband retains the power of revocation, it is fallacious, illusive and deceiving, and will be considered as fraud on the rights of the widow where she is deprived of her distributive share.
“The trust instrument in question reserved to the donor the power of revocation. The donor did not part with dominion over the trust res and the widow is not barred from claiming her distributive share of the corpus of the trust under the law of intestate succession. (G.S. 1949, 59-504).” 192 Kan. at 333.
Frank Ackers was survived by a wife and a daughter. Thus the wife was entitled to only one-half his property under G.S. 1949, 59-504. Had Frank had no children, his wife would have been entitled to the entire estate. The Ackers court arrived at the foregoing conclusion by following Poole v. Poole, 96 Kan. 84, 89, 150 Pac. 592 (1915), which held:
“[Where] there is a voluntary transfer or conveyance by which the husband reserves to himself an interest in or a power to dispose of the property, it may be declared void as against the widow and she may participate in its distribution upon the theory that the title still remained in the husband.”
The Ackers decision created an additional exception to G.S. 1949, 33-101, holding a revocable trust valid but subject to challenge by creditors and “by the wife in defense of her rights under the provisions of G.S. 1949, 59-504, 59-505, or 59-602.” 192 Kan. at 325.
Turning now to the case at bar, K.S.A. 59-505 does not apply because no real estate was transferred. K.S.A. 59-602(2) and 59-603 do not apply because Albert, like Frank, died intestate and those statutes apply only to testate estates. Therefore, K.S.A. 59-504 is the applicable law and Loretta should take by intestate succession the entire estate since the deceased left no issue.
Appellants claim if the court in Ackers really meant 59-504 to apply, it would have granted Frank’s daughter the other half of the trust. This argument is incorrect. Children do not have the same protection as a surviving spouse. Frank Ackers’ daughter had no right to challenge the trust arrangement. This court’s exception to 33-101 extended only so far as to include a nonconsenting spouse within the protection afforded a creditor from the consequences of a revocable trust.
Appellants next argue the district court erred in failing to make a finding of fraudulent intent on the part of the decedent, contending such a finding is dictated by Ackers. They point out the widow in Ackers was deprived of any property by the terms of the trust, and that the trial court found this was one of the purposes of the trust. Loretta, on the other hand, is provided for by her husband’s trust, to the extent that the trustee may invade the corpus if necessary for her care.
It is true that the facts of this case are much more difficult than those in Ackers. But the rule of law there enunciated is the same. There, the court held if'one spouse transfers property without consent of the other spouse and retains the power of revocation, the transfer is “fallacious, illusive and deceiving, and will be considered as fraud.” 192 Kan. at 333. Thus, there was no need to prove fraud. It was implied from the creation of the revocable trust without consent.
The difficulty in this case is that Loretta Newman was under disability and could not consent. Under these circumstances, Albert Newman should have made a will rather than use the trust technique. The rule of Ackers has been the law of this state since 1963. Thus, it is a part of the body of law utilized by estate planners since that time. To reverse Ackers to serve the needs of this estate and carry out the intent of Albert Newman would be a bad precedent which would compromise the spousal protection set out in Ackers.
We hold the Albert Newman Trust invalid. The joint tenancy property placed in the trust by Rosie Brady after the death of Albert Newman should be returned to the joint tenancy accounts for determination of ownership. All other property in the estate is inherited by Loretta Newman by intestate succession.
The judgment is affirmed. | [
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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. Respondent settled a lawsuit for his clients, Richard Dansel and David Dansel. The settlement draft dated July 31, 1985, in the amount of $12,500.00, was endorsed by the respondent and deposited in an account which respondent maintained for business and personal use. Respondent’s clients were aware of the setdement, but did not immediately request payment of the settlement proceeds due to problems with other creditors. Respondent used the proceeds from the settlement for his business and personal use without the permission or authorization of his clients. On or about November 21, 1985, Richard Dansel went to respondent’s office and requested payment of the settlement proceeds. While Mr. Dansel waited in the office, respondent obtained and delivered to his client a cashier’s check in the amount of $12,500.00, being the full amount of the settlement proceeds. The foregoing facts, although summarized, are not disputed by the respondent.
The Kansas Board for Discipline of Attorneys held a hearing on the complaint and on January 13, 1988, 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 clients, Richard Dansel and David Dansel, in that he deposited funds belonging to them in his personal and business account along with funds belonging to Respondent, and not in a separate account designated for clients’ funds, in violation of DR 9-102(A) [1987 Kan. Ct. R. Annot. 123].
“2. Respondent engaged in conduct involving dishonesty in utilizing his clients’ funds for his personal and business purposes without the consent of his clients, in violation of DR 1-102(A)(4) [1987 Kan. Ct. R. Annot. 123].”
The panel then recommended that the respondent be suspended from the practice of law for a period of one year, pursuant to Rule 203(a)(2) (1987 Kan. Ct. R. Annot. 102), and that respondent’s suspension run concurrently with the suspension ordered by the Supreme Court in Case No. 61,068 (In re Smith, 242 Kan. 334, 747 P.2d 118 [1987]).
After a careful review of the record, this court concurs with the panel that the respondent should be suspended from the practice of law in Kansas for a period of one year. We feel, however, that the suspension should not run concurrently with the suspension ordered in Case No. 61,068.
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.
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.
Effective the 29th day of April, 1988. | [
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The opinion of the court was delivered by
Holmes, J.:
Maurice G. Barnhart appeals from a decision of the Thomas County District Court which upheld the suspension of his driver’s license by the appellee Kansas Department of Revenue, Division of Vehicles (Department). Appellant’s driver’s license was suspended pursuant to K.S.A. 8-1001 et seq. for refusal to take a breath alcohol test. The Court of Appeals upheld the district court ruling in an unpublished opinion filed December 23, 1987. We granted appellant’s petition for review.
The facts are not in dispute. On January 24, 1986, appellant was involved in a two-car collision. The other vehicle was driven by appellant’s son. Following the collision, appellant was located at a nearby hospital where he was interviewed by a deputy sheriff. The officer administered field sobriety tests to appellant and then arrested him for driving under the influence of alcohol (K.S.A. 1985 Supp. 8-1567).
The officer transported appellant to the sheriff s office and asked him to undergo a breathalyzer test. Appellant refused, stating that he was under stress and that he believed such testing would violate his constitutional rights. The officer proceeded to give appellant oral and written notice in accordance with procedures adopted by the Department for compliance with K.S.A. 1985 Supp. 8-1001(f)(l). Appellant again refused to submit to testing and, pursuant to K.S.A. 1985 Supp. 8-1002, the officer initiated procedures for suspension of appellant’s driver’s license. Appellant’s plastic driver’s license had been taken from him by the officer at the hospital. At the sheriff s office he was given a notice of suspension and a paper temporary license effective for 15 days, as provided by K.S.A. 1985 Supp. ¿-1002(b).
The deputy sheriff forwarded a copy of the notice of suspension to the Division of Vehicles. Appellant submitted a timely written request for an administrative hearing pursuant to K.S.A. 1985 Supp. 8-1002(d) and his temporary license was extended for 45 days. At the administrative hearing, the examiner determined that the appellant’s license should be suspended. Appellant sought and obtained de novo review by the district court as provided by K.S.A. 1985 Supp. 8-259. The district court upheld the administrative determination and granted summary judgment to the Department.
The first issue is whether the suspension of appellant’s driver’s license for refusing to take a breath alcohol test (BAT) must be invalidated, due to an alleged deficiency in the oral and written notice given to appellant. K.S.A. 1985 Supp. 8-1001(f)(l) provides:
“(f)(1) At the time a test or tests are requested under this section, the person shall be given oral and written notice that: (A) There is no right to consult with an attorney regarding whether to submit to testing; (B) refusal to submit to testing will result in six months’ suspension of the person’s driver’s license; (C) refusal to submit to testing may be used against the person at any trial on a charge involving driving while under the influence of alcohol or drugs, or both; (D) the results of the testing may be used against the person at any trial on a charge involving driving while under the influence of alcohol or drugs, or both; and (E) after the completion of the testing, the person has the right to consult with an attorney and may secure additional testing, which, if desired, should be done as soon as possible and is customarily available from hospitals, medical laboratories and physicians. After giving the foregoing information, a law enforcement officer shall again request the person to submit to the test or tests. The selection of the test or tests shall be made by the officer. If the person refuses to take and complete a test as requested, additional testing shall not be given and the person’s driver’s license shall be subject to suspension as provided in K.S.A. 8-1002 and amendments thereto. The person’s refusal shall be admissible in evidence against the person at any trial arising out of the alleged operation or attempted operation of a motor vehicle while under the influence of alcohol or drugs, or both.” (Emphasis added.)
It is undisputed that appellant was given oral and written notice as set forth on preprinted forms developed by the Department specifically for that purpose. Appellant contends, however, that the Department’s form notice was deficient as to the information required by K.S.A. 1985 Supp. 8-1001(f)(l)(E). The pertinent part of the notice relating to subsection (E) of the statute and given to appellant read:
“If you decide to submit to testing, after testing is completed you have the right to consult with an attorney and you may have additional testing done as soon as possible and as available.”
The Court of Appeals in affirming the suspension relied upon its decision in State v. Doeden, 12 Kan. App. 2d 245, 738 P.2d 876, rev. denied 242 Kan. 904 (1987). In Doeden the court held that the notice provisions of K.S.A. 1985 Supp. 8-1001(f) were merely directory and not mandatory. In the present case, the Court of Appeals, relying upon Doeden, summarily disposed of appellant’s claim that the notice provisions were mandatory and we granted review in order to further consider the holding in Doeden. The Court of Appeals also found that, in any event, the notice given in the present case was in substantial compliance with the statute.
In Doeden the arresting officer failed to give the defendant the notices listed in K.S.A. 1985 Supp. 8-1001(f)(l). A majority of the panel of the Court of Appeals, after discussing the intent of the legislature, found the notice provisions of the statute to be directory. Judge Meyer, in a dissenting opinion, reviewed the language and purpose of the statute, concluded the statute was mandatory, and then stated:
“But there is yet another reason why I differ, specifically, with the majority. In a careful study of K.S.A. 1985 Supp. 8-1001,1 can reach no conclusion but that that statute is ultimately clear and not ambiguous. The statute thus means what.it says and must be interpreted according to the Legislature’s language. The majority has undertaken to define and explain what they feel the Legislature means by this statute but, again the law is most clear that we do not have the prerogative of looking behind the legislative scenes to interpret what the Legislature meant in enacting a statute which is itself clear and unambiguous on its face. ‘Where a statute is plain and unambiguous, this court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be.’ State v. Sleeth, 8 Kan. App. 2d 652, 655, 664 P.2d 883 (1983) (quoting Arduser v. Daniel International Corp., 7 Kan. App. 2d 225, Syl. ¶ 1, 640 P.2d 329, rev. denied 231 Kan. 799 [1982]). We are not called upon to address the wisdom, or lack thereof, of enacting the statute before us.” 12 Kan. App. 2d at 254.
The clear language of the statute indicates that the legislature intended to ensure that a person arrested for driving under the influence was made aware, by the required notice procedure, of his statutory rights. Those rights include the right to obtain independent testing of his blood alcohol level following testing by or under the direction of a law enforcement officer. K.S.A. 1985 Supp. 8-1004 both establishes this right to an independent test, and enforces compliance by law officers. It provides that if the law enforcement officer refuses to permit the person tested to obtain such additional testing, the results of the test administered under the direction of the officer are inadmissible in evidence.
K.S.A. 1985 Supp. 8-1001(f)(2) states in part:
“It shall not be a defense to any prosecution [for driving under the influence] . . . that the person did not understand the written or oral notice required by this section . . . .” (Emphasis added.)
See also similar language in K.S.A. 1985 Supp. 8-1002(c)(l)(B) and 8-1002(d)(3).
The statute in question clearly requires that certain procedures shall be followed and certain notices shall be given to a defendant arrested for driving under the influence. K.S.A. 1985 Supp. 8-1001(f) was enacted as part of a comprehensive revision of the statutes pertaining to driving under the influence of alcohol or drugs. The language of the statute is clearly manda tory. For additional discussion of the distinction between mandatory and directory, as applied to statutes, see Wilcox v. Billings, 200 Kan. 654, 657, 438 P.2d 108 (1968); 2A Sutherland Statutory Construction §§ 57.01-57.26 (Sands 4th ed. 1984); 73 Am. Jur. 2d, Statutes §§ 14-27. We conclude the notice provisions of K.S.A. 1985 Supp. 8-1001(f) are mandatory and not merely directory. The holding in Doeden to the contrary is overruled. The holding of the Court of Appeals in this case that the statute is directory and not mandatory is erroneous.
However, the foregoing does not necessarily dispose of the case before us. As with any notice required by statute, the provisions of K.S.A. 1985 Supp. 8-1001(f) need not be given in the exact words of the statute. While using the statutory language would have negated the issue now before us, it is generally recognized that substantial compliance with statutory notice provisions will usually be sufficient. To substantially comply with the requirements of the statute, a notice must be sufficient to advise the party to whom it is directed of the essentials of the statute.
Here, it is undisputed that the notice provisions of subsections (A) through (D) in the Department’s form notices, although not identical with the statute, contained language sufficient to comply with the statute. As to subsection (E), the notice advised appellant of his right to consult with an attorney after taking the test and that he had the right to have additional testing done “as soon as possible and as available.” Appellant contends the failure to advise that the testing “should be done as soon as possible” and where the testing is customarily available precludes suspension of his license. While it would be advisable for the Department to include the statutory language in its form notices, we are of the opinion that the notice as given conveyed the essentials of the statute and did not mislead the appellant. He was fully advised of his right to additional testing. Appellant did not refuse to take the BAT because of any deficiency in the notice but because he felt he was under stress and thought his constitutional rights were being violated. Appellant made no inquiry of the officer about additional testing, its availability, or when it should be done. We conclude that under the facts of this case, there was substantial compliance with the mandatory no tice requirements of K.S.A. 1985 Supp. 8-1001(f)(l)(E). Absent any showing of prejudice by appellant, the point lacks merit. Cf. Howard v. Cofer, 150 Ga. App. 579, 258 S.E.2d 195 (1979); Wimmer v. MVD, 75 Or. App. 287, 706 P.2d 182 (1985).
Next, the appellant contends that the statutory procedure utilized to suspend his driving privilege constituted a denial of his right to due process of law. At the time of his arrest, appellant’s plastic driver’s license was taken by the officer and he was given a combination paper license and notice of suspension which provided, inter alia, “This Notice is valid as a temporary license for fifteen (15) days from the date shown above [January 24, 1986]. Carry this Notice with you as a driver’s license.” The paper license also stated there were no restrictions on appellant’s driving privilege and advised him of his rights to an administrative hearing before any actual suspension. On January 31, 1986, appellant mailed his request for an administrative hearing. K.S.A. 1985 Supp. 8-1002. On February 10, 1986, the Department mailed to appellant a notice that his requested hearing was set for February 27, 1986. The notice also provided that appellant’s driving privilege was extended for an additional 45 days beyond February 10, 1986. Although appellant did not have written proof of his right to drive from February 8 to February 11, his privilege to drive was not suspended at any time prior to the administrative hearing.
Appellant asserts numerous arguments to support his claim that the statutes and the procedure utilized in his particular case violated his due process rights. The Court of Appeals addressed all his arguments at length, stating:
“Barnhart contends that the procedure set out in K.S.A. 8-1001 et seq. violates due process because it allows the plasticized driver’s license to be taken by an arresting officer without a prior hearing.
“When legislation is challenged as violative of due process, the challenger must demonstrate that the legislation bears no reasonable relation to a permissible legislative objective. Brown v. Wichita State University, 219 Kan. 2, 21, 547 P.2d 1015 (1976).
“In Mathews v. Eldridge, 424 U. S. 319, 335, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976), the United States Supreme Court set forth the factors which must be considered:
‘First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.’
“In applying the Eldridge factors, the U. S. Supreme Court, in Dixon v. Love, 431 U. S. 105, 113, 52 L. Ed. 2d 172, 97 S. Ct. 1723 (1977), stated:
‘The private interest affected by the decision here is the granted license to operate a motor vehicle. Unlike the social security recipients in Eldridge, who at least could obtain retroactive payments if their claims were subsequently sustained, a licensee is not made entirely whole if his suspension or revocation is later vacated. On the other hand, a driver’s license may not be so vital and essential as are social insurance payments on which the recipient may depend for his very subsistence. [Citation omitted.]’
“It is important to note that the United States Supreme Court cases regarding driver’s licenses involved the question of due process where post-suspension hearings were provided. In the instant case, although Barnhart’s driver’s license was kept by the arresting officer, he was given a temporary license and had the opportunity to request a presuspension hearing. Because the U.S. Supreme Court has held that an evidentiary hearing is not required prior to driver’s license revocation (see Dixon 431 U.S. 105, and Mackey v. Montrym, 443 U.S. 1, 61 L. Ed. 2d 321, 99 S. Ct. 2612 [1979]), the procedure utilized by the Kansas statute does not require a hearing prior to deprivation of the plasticized driver’s license.
“The second factor to consider is the risk of an erroneous deprivation. In Mackey v. Montrym, 443 U.S. at 13, the U. S. Supreme Court held that:
‘[W]hen prompt postdeprivation review is available for correction of administrative error, we have generally required no more than that the predeprivation procedures used be designed to provide a reasonably reliable basis for concluding that the facts justifying the official action are as a responsible governmental official warrants them to be. [Citations omitted.]’
“The Kansas statute, which allows for a full evidentiary hearing before driving privileges are suspended, does not violate due process merely because the plastic driver’s license is taken and a paper license substituted in its place.
“The third factor in the Eldridge test is the identification of the governmental function involved. In addressing this factor in Mackey, the United States Supreme Court, in upholding the summary procedure for suspension of driving privileges for those who refuse the breathalyzer test, stated:
‘The Commonwealth’s interest in public safety is substantially served in several ways by the summary suspension of those who refuse to take a breath-analysis test upon arrest. First, the very existence of the summary sanction of the statute serves as a deterrent to drunken driving. Second, it provides strong inducement to take the breath-analysis test and thus effectuates the Commonwealth’s interest in obtaining reliable and relevant evidence for use in subsequent criminal proceedings. Third, in promptly removing such drivers from the road, the summary sanction of the statute contributes to the safety of public highways.’ 443 U.S. at 18.
“Barnhart argues that (1) the plastic driver’s license itself was taken without any prior administrative review; (2) his driving privileges were interfered with, altered, and reduced, and an inferior right substituted therefor; (3) the statute places the burden on the driver to obtain administrative review; and (4) the officer's certification of form is not sworn under penalties of perjury.
“With regard to the first and second arguments, his driving privileges were not suspended until after the hearing held February 27, 1986. Through the temporary driver’s license issued on January 24, 1986, and the 45-day continuation of his driving privileges following his request for an administrative hearing, Barn-hart’s driving privileges were protected prior to administrative review.
“Barnhart argues that an inferior right was substituted, following the taking of his class A-D driver’s license. His argument seems to be based on the fact that the temporary driver’s license does not indicate the class of license he held. K.S.A. 1986 Supp. 8-1002(b) provides, in relevant part, that: ‘A temporary license issued pursuant to this subsection shall bear the same restrictions and limitations as the license for which it was exchanged.’ Thus, a driver holding a class A-D license would be allowed to operate, pursuant to the temporary license, the same class of vehicles his plastic Kansas driver’s license indicates he is permitted to operate. It would be better practice for the Department of Revenue to indicate the class of license on the temporary license, but the failure to do so is not a denial of due process.
“With regard to Barnhart’s argument that due process is violated because the burden is placed on the driver whose license is suspended to seek administrative review, the same was apparently true in the cases of Mackey, Dixon, and Illinois v. Batchelder, 463 U.S. 1112, 77 L. Ed. 2d 1267, 103 S. Ct. 3513 (1983). The driver had the right to ask for a hearing, and no due process violation was found on that basis. It also appears that requiring the driver to request the hearing could reduce the administrative and fiscal burden on the state. See Mackey, 443 U.S. at 18, and Dixon, 431 U.S. at 114. All drivers may not elect to fight the suspension, and to mandate some sort of automatic presuspension hearing would have a detrimental effect on administrative efficiency.
“Finally, Barnhart contends that, because the officer only certifies his report and does not swear to it under penalty of peijury, due process is violated. As pointed out in Mackey, ‘the risk of erroneous observation or deliberate misrepresentation of the facts by the reporting officer in the ordinary case seems insubstantial.’ 443 U.S. at 14.
“In Wilcox v. Billings, 200 Kan. 654, 438 P.2d 108 (1968), a case decided when K.S.A. 8-1001 provided that the refusal to take the test must be indicated in a sworn report of refusal, the court held that the provision calling for a sworn report was mandatory. The court stated: ‘We doubt if the legislature ever intended such drastic action should be taken on an unsworn averment alone.’ 200 Kan. at 659. Since that time, K.S.A. 8-1001 et seq. has been amended to provide, specifically, that an officer’s certification is sufficient and that ‘certification shall be complete upon signing, and no additional acts of oath, affirmation, acknowledgment or proof of execution shall be required.’ K.S.A. 1986 Supp. 8-1002(c)(2). It appears to us that the risk of an erroneous deprivation is not substantial here because the information in the officer’s certification can be verified by testing under oath in the presuspension hearing provided in the statute.
“In Illinois v. Batchelder, an Illinois implied consent statute provided for suspension following the refusal to submit to a breathalyzer test, unless a hearing was requested within 28 days of the mailing of the suspension notice. The United States Supreme Court held:
‘The driver’s right to a hearing before he may be deprived of his license for failing to submit to a breath-analysis test accords him all of, and probably more than, the process that the Federal Constitution assures.’ 463 U.S. at 1119.
“Barnhart also argues that he was deprived of a driver’s license for three days because the stated expiration period on the temporary driver’s license was three days prior to his receipt of an extension of his driving privileges.
“Barnhart stipulated that no actual suspension of his driving privileges occurred during the three-day period. He was aware that if he requested an administrative hearing within ten days, that his driving privileges would be extended to the date of the administrative hearing.
“Thus, the issue is whether Barnhart’s due process was violated where he did not, for three days, have a temporary license indicating on its face that he had current driving privileges.
“K.S.A. 1986 Supp. 8-1002(d) provides that the 45-day extension runs from the date of the written request, not the date the extension is granted. It states, in pertinent part:
‘If, within 10 days after notice was served, the person mails a written request for a hearing, the division shall stay action on the suspension, [and] extend the temporary license for 45 days beyond the date of the written request.’
“Once Barnhart requested a hearing, the timeliness of which is not disputed, the 45-day extension began on the date of the written request. He was not deprived of his driving privileges for the period from February 8 to February 10.”
The Court of Appeals concluded that none of appellant’s due process arguments had merit. We concur in the Court of Appeals’ decision on this issue. Neither the statutes nor the procedure in this case constitute a denial of appellant’s right to due process of law.
The judgment of the district court is affirmed. The judgment of the Court of Appeals is affirmed. The holding in State v. Doeden, 12 Kan. App. 2d 245, 738 P.2d 876, rev denied 242 Kan. 904 (1987), that the notice requirements of K.S.A. 1985 Supp. 8-1001(f)(1) are directory rather than mandatory is overruled. | [
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Caplinger, J.:
Adam Tuanloc Tran was a passenger in a minivan driven by Quang Hong Nguyen when Nguyen collided with another vehicle. Tran sued the owners of the minivan, Steven and Xuan Hong Hohensee (husband and wife) (the Hohensees), for negligendy entrusting their minivan to Nguyen. The district court granted the Hohensees’ motion for summary judgment, and Tran now appeals. Finding no error in the district court’s ruling, we affirm.
Factual and Procedural Background
In 2005, Tran and Xuan Hohensee were passengers in a minivan driven by Nguyen and owned by the Hohensees when Nguyen drove his vehicle into the path of a vehicle driven by Sarah Shockey. Nguyen was an experienced driver who had previously driven the Hohensees’ van on multiple occasions, and he had not been involved in any prior vehicle accidents.
Before the accident, the Hohensees had removed the minivan’s middle seat and, in the space created, had placed the spare tire, a rug, and other loose items. At the time of the accident, Tran was seated in the back seat of the van. Tran was wearing his seat belt and had not noticed any problems with the seat belt. After the accident, the seat belt appeared frayed.
When emergency crews arrived after the accident, Tran was lying on the floor of the minivan with his head on the spare tire. Tran had a seizure after the accident and does not remember the details of the accident.
Tran subsequently brought this negligence action against Nguyen, the Hohensees, Sarah Shockey, Dale Shockey (Shockeys father), and the Board of County Commissioners of Leavenworth County. Tran alleged Nguyen was negligent in that he was inattentive, failed to yield the right of way, failed to maintain proper control of the vehicle, and failed to maintain a proper lookout. According to the petition, Shockey was negligent in failing to maintain proper control of her vehicle, failing to maintain a proper lookout, driving at an excessive speed for the conditions, and being inattentive. Tran also brought a negligent entrustment action against Dale Shockey, alleging he knew or had reason to know that his minor daughter was an incompetent and careless driver.
Regarding the Hohensees, Tran alleged they “negligently entrusted their 1992 van to defendant Nguyen by furnishing the van to defendant Nguyen, knowing, or having reason or cause to know, defendant Nguyen to be an incompetent, careless driver.”
Finally, Tran asserted the Board was negligent in the design, construction, and maintenance of the intersection where the accident occurred.
Pursuant to a joint motion filed by Tran and the Shockeys, the Shockeys were subsequently dismissed from the lawsuit with prejudice.
The Hohensees moved for summary judgment, asserting there was no evidence that Nguyen was an incompetent or careless driver and, thus, there was no evidence to support Tran’s claim of neg ligent entrustment. Tran responded, arguing Nguyen was a careless driver because he knew or should have known the van was unsafe because its middle seat had been removed, the spare tire was unsecured, and the seat belt was frayed. Nguyen claimed the Hohensees negligently entrusted the van to Nguyen because they knew the van was unsafe and permitted Nguyen to drive it despite his knowledge of the unsafe conditions.
The district court granted the Hohensees’ motion for summary judgment, finding there were no genuine issues of material fact and the facts alleged by Tran were legally insufficient to support his negligent entrustment claim. Further, although the district court had not resolved Tran’s claims against the remaining defendants, the court expressly entered final judgment under K.S.A. 60-254(b) against Tran and in favor of the Hohensees, thus permitting this appeal.
Analysis
On appeal, Tran argues the district court erred in granting summary judgment because material issues of fact remain as to whether the Hohensees’ negligently entrusted the vehicle to Nguyen.
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The district court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009).
Summary judgment should be granted with caution in negligence actions. See Esquivel v. Watters, 286 Kan. 292, 296, 183 P.3d 847 (2008). However, summary judgment is proper in a negligence action if the defendant shows there is no evidence indicating negligence. Edwards v. Anderson Engineering, Inc., 284 Kan. 892, 904, 166 P.3d 1047 (2007).
Negligent entrustment is “knowingly entrusting, lending, permitting, furnishing, or supplying an automobile to an incompetent or habitually careless driver. [Citations omitted.]” McCart v. Muir, 230 Kan. 618, 620, 641 P.2d 384 (1982); see also Grimmett v. Burke, 21 Kan. App. 2d 638, 650, 906 P.2d 156 (1995), rev. denied 259 Kan. 927 (1996) (“[Negligent entrustment occurs when the owner of an automobile allows a third party to drive it while knowing that the driver is incompetent, careless, or reckless.”). Thus, to avoid summary judgment on this claim, Tran was required to present evidence that the Hohensees entrusted their minivan to Nguyen with knowledge, or with reasonable cause to know, that Nguyen was an incompetent driver. See PIK Civ. 4th 121.92. “An incompetent driver is one, who by reason of age, experience, physical or mental condition, or known habits of recklessness, is incapable of operating a vehicle with ordinary care.” McCart, 230 Kan. at 620.
Significantly, in his petition, Tran characterized his negligent entrustment claim as consistent with Kansas law — i.e., he alleged the Hohensees entrusted their vehicle to Nguyen knowing him to be an incompetent or careless driver. However, in response to the Hohensees’ summary judgment motion, Tran did not directly argue that Nguyen was an incompetent or careless driver. Instead, as the district court noted, Tran attempted to rely upon a “creative” interpretation of Kansas’ negligent entrustment law. Essentially, Tran reasoned that Nguyen knew or should have known the Hohensees vehicle was unsafe and, consequently, Tran was a “careless” driver. Tran then concludes that because the Hohensees knew their vehicle was unsafe and entrusted the vehicle to a driver who knew or should have known the vehicle was unsafe, they negligently entrusted their vehicle to a careless driver.
Tran claims the minivan was unsafe in several respects: (1) the middle row of seats had been removed; (2) a spare tire and other loose items were stored in the area created by the removed seats; and (3) the shoulder harness of Tran’s seat belt was frayed. It is unclear whether Tran claims Nguyen knew, or should have known, of these conditions.
For instance, Tran repeatedly argues that Nguyen failed to inspect the minivan before driving it. Further, he points out that Xuan Hohensee, who was a passenger in the vehicle, knew that Nguyen had failed to inspect the vehicle. However, in his appeal brief, Tran also inconsistently suggests that Nguyen “knew of the alleged dangerous conditions and elected to drive and transport passengers despite these numerous unsafe conditions.” He further suggests that “[t]he dangerous conditions were open and obvious, the unsecured metal wheel was lying in the open.”
Regardless of Tran’s inconsistent positions regarding Nguyen’s knowledge of the alleged dangerous conditions, we cannot agree with Tran’s premise that driving an allegedly unsafe car renders a driver incompetent, careless, or reckless and renders the car’s owners Hable for the negligent entrustment of the vehicle. Negligent entrustment requires that the owner of the vehicle be aware of characteristics of the driver, not the vehicle, that render it unsafe for the owner to entrust the driver with the vehicle. See McCart, 230 Kan. at 620; Fogo, Administratrix v. Steele, 180 Kan. 326, 328, 304 P.2d 451 (1956); Grimmett, 21 Kan. App. 2d at 650.
Tran does not allege that Nguyen was an unsafe driver by reason of his age, experience, physical or mental condition, or known habits of recklessness. Nor did Tran present any evidence to show that the Hohensees knew or should have known that Nguyen was an unsafe driver based upon any personal characteristics. Rather, Tran relies entirely upon evidence which he suggests shows that the minivan was unsafe.
In suggesting that the trial court should have found material questions of fact remaining as to whether Nguyen stated a claim of negligent entrustment pursuant to Restatement (Second) of Torts § 389 (1964), the dissent suggests that “it would seem that the trial court ignored plaintiff s additional allegations of uncontroverted facts” and instead accepted the defendants’ contention that “no such negligent entrustment theory could be made under those allegations.”
The flaw in the dissent’s analysis is that the plaintiff never made a claim of negligent entrustment pursuant to Restatement § 389. Instead, it is uncontroverted that the only claim the plaintiff pled was that the Hohensees negligently entrusted their van to Nguyen knowing, or having reason or cause to know, Nguyen was an incompetent or careless driver.
The dissent places great emphasis upon the trial court’s finding that Tran claimed the Hohensees’ vehicle was unsafe. The problem is that the trial court’s reference to the allegation clearly recognized its tie to Tran’s claim that Nguyen was a careless driver. As the trial court pointed out, the only basis for Tran’s negligent entrustment claim was that a “reasonably prudent driver would have inspected the van and found it to be unsafe.” The court then summarized Tran’s negligent entrustment claim as follows: “Nguyen knowingly operated the van in its existing condition, quote, Displayed the fact that he is a careless driver, end quote.”
The dissent would find that the district court erred in ruling upon what the dissent terms the plaintiff s “initial negligent entrustment theory that plaintiff seemed to rely on.” In fact, this “initial” theory was the “only” theory that plaintiff relied upon throughout the summaiy judgment pleadings and hearing. The dissent fails to note that in Tran’s response to the summary judgment motion, Tran reiterates his “theory” of liability — i.e., that the Hohensees “negligently entrusted an unsafe vehicle to a careless driver.” This theory is reiterated throughout the response, and Tran never suggested that he was asserting a different theory of negligent entrustment, much less Restatement §389.
Significantly, the dissent also fails to note that the only possible new theory Tran referred to in response to summary judgment was an unspecified claim regarding vehicles and laws “designed to avoid causing the injuries which occurred on the day of this accident.” In support of this argument, Tran asserted:
“In the alternative and without waiving the above, modem motor vehicle manufacturers by regulation and on their own initiative taire many precautions to prevent drivers from placing dangerous objects in the open where they can harm passengers in a vehicle. Vehicles have a compartment for spare tires to be placed either at tire rear of the car or under the car, completely away from causing harm to a passenger. Vehicles come with trunks or space in the rear of larger vehicles to put rugs, boxes, and other loose items than can contribute to harmful conditions. There are strict regulations on safety devices and restraints ensuring that they operate properly. All of these measures are incorporated by the manufacturers to prevent injuries to passengers such as Mr. Tran suffered.” (Emphasis added.)
While the nature of this “alternative” claim is not at all clear to the court, we can say with certainty that it does not appear to state anything close to an alternative theory of liability based on Restatement § 389. At best, it seems to attempt to preserve a strict liability claim against the vehicle’s manufacturer, although the manufacturer was not a party to the action.
Further, Tran’s counsel reiterated at the summary judgment hearing that Tran’s claim was based on the drivers failure to “inspect the vehicle and to not drive it if it’s unsafe” and the Hohensees’ knowledge of the drivers failure. Moreover, after the Hohensees’ counsel pointed out that Tran had failed to establish that the driver was incompetent, careless, or reckless, the district court gave Tran’s counsel an opportunity to respond. In response, Tran’s counsel not only failed to assert a negligent entrustment theory under Restatement § 389, he once again reiterated that Tran’s negligent entrustment claim relied upon Tran’s “failure to inspect the vehicle” and his assertion that Tran was an “unsafe driver.” Finally, Tran’s counsel pointed out, “Well, the PIK [PIK Civ. 4th 121.92] I think really hits it. It defines common drivers and unsafe drivers.”
Thus, Tran had multiple opportunities to assert an alternative theory of liability. At every opportunity, Tran reasserted his theory of liability based upon the carelessness and negligence of the driver. We decline to devise and apply a new theory at the appellate stage of these proceedings.
Additionally, even if we were willing to unilaterally declare that Tran somehow pled an alternative theory of negligent entrustment, we would nevertheless have to conclude as a matter of law that the theory did not apply here. As the dissent points out, Restatement § 389 bases liability upon supplying an unsafe chattel to a third person while knowing or having reason to know the chattel is un likely to be made reasonably safe before being put to a use which the supplier should expect it to be put. The dissent fails to point out what this theory clearly implies — i.e., that the owner actually supplies the chattel to a third person and the third person then uses the chattel absent the owners presence.
Here, it is uncontroverted that one of the owners of the vehicle, Xuan Hohensee, was a passenger in the vehicle driven by Nguyen. She did not supply the vehicle to Nguyen expecting him to use it in a particular manner. She was present and “using” the vehicle herself, albeit as a passenger, not a driver.
In conclusion, we refuse to apply an alternative theory of negligent entrustment under Restatement (Second) of Torts § 389 because that theory was never pled or asserted by the plaintiff despite multiple opportunities to do so. Further, even if we; were willing to apply that alternative theory, we would find the facts of this case do not fit within it.
Because the district court correctly held that the facts as alleged by Tran were insufficient to support his claim of negligent entrustment as pled, we affirm the district court’s grant of summary judgment in favor of the Hohensees.
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Pierron, J.:
CLASS Homes I, L.L.C. (CLASS), petitions for review from an order of the Court of Tax Appeals (COTA) finding that CLASS does not qualify for a tax exemption under K.S.A. 2009 Supp. 79-20lb Sixth. CLASS sought the exemption for group housing properties located in Labette, Crawford, and Cherokee counties, and COTA found that because CLASS received low income housing tax credits, which were allocated to its majority owner, the exemption did not apply as the properties were not used exclusively for the purpose of group housing of mentally ill or retarded and other handicapped persons.
CLASS is a Kansas limited liability company with three members: (1) managing member CLASS LTD, a not-for-profit Kansas corporation with a .01% interest in CLASS; (2) investor member Kansas Equity Fund IV, L.P. (KEF), which has a 99.99% interest in CLASS; and (3) special member Midwest Housing Assistance Corporation. The CLASS operating agreement states that its purpose is to acquire, finance, construct, own, maintain, improve, op erate, and lease housing units consistent with Section 42 of the Internal Revenue Code for the benefit of low income, developmentally disabled individuals and in a manner that addresses their unique needs.
CLASS’S housing units are four-plex apartments. To construct and operate the apartments, KEF agreed to contribute $1,022,020.35 to CLASS. KEF bought the majority interest in CLASS in return for allocation of the tax credit benefit because not-for-profit entities’ have no tax liability to offset so their projects under Section 42 cannot use the corresponding tax credits. CLASS expects to receive $1,087,890 in tax credits in the years 2007-2017 and intends to allocate this amount to KEF, which, under which CLASS’S operating agreement, is not entitled to any interest on its contribution as long as the tax credits are properly allocated. If the full $1,087,890 is not allocated, or a recapture of credits occurs, CLASS has to pay KEF the difference. CLASS expects to operate at a net-income loss for the years 2007-2017.
Pursuant to the operating agreement, KEF has limited involvement in CLASS because management and control of CLASS’S business, assets, and affairs is vested with CLASS LTD, which is not obligated to take action to maximize profits for CLASS or its members. CLASS LTD cannot be removed except upon certain conditions constituting default or malfeasance. KEF is prohibited from taking any part in the management, control, conduct, or operation of CLASS; is not authorized to act on CLASS’S behalf; and cannot bring an action for partition or dissolution of CLASS if it complies with Section 42. When the period of compliance with Section 42 expires, CLASS LTD has a 1-year right of first refusal to purchase the apartments for the greater of (1) any offer price, (2) $100, or (3) outstanding secured debt, plus tax liability owed, plus any amount owed to KEF.
CLASS filed tax-exemption applications with COTA on March 22, May 15, and May 23, 2007, respectively. In November 7,2007, COTA held a hearing on the applications, and on October 24,2008, it issued an order denying the exemptions. CLASS filed a motion for reconsideration on November 7,2008, which COTA denied on November 25, 2008.
COTA found that CLASS failed to qualify for the exemption under K.SA. 2009 Supp. 79-20lb Sixth, because KEF’s involvement meant the properties were not used exclusively for an exempt purpose. COTA found that KEF was an investor that kept the property operating in the Section 42 program to maintain its flow of tax credits and that an investor’s use of property must be considered when determining whether it is used exclusively for tax-exempt purposes. In the present case, COTA found that reaping tax credits created a simultaneous use of the property as group housing and an investment tool for KEF.
CLASS filed this timely petition for review.
COTA is considered the paramount taxing authority in Kansas, as it exists to decide taxation issues. Therefore, its decisions made within its area of expertise are given great weight and deference. The party challenging a COTA decision has the burden of proving the decision was erroneous, but if COTA’s legal interpretation is erroneous as a matter of law, the appellate court must take corrective steps. In re Tax Appeal of Western Resources, Inc., 281 Kan. 572, 575, 132 P.3d 950 (2006); see also In re Tax Protest of United Ag Services, 37 Kan. App. 2d 902, 906, 159 P.3d 1050, rev. denied 285 Kan. 1174 (2007). Taxexemption statutes are interpreted strictly in favor of imposing the tax and against allowing an exemption for one who does not clearly qualify. In re Tax Appeal of Western Resources, Inc., 281 Kan. at 575.
The present appeal focuses on whether CLASS’S group housing properties were used exclusively for group housing. COTA ruled that the properties were not used exclusively for group housing because CLASS’S transfer of low-income housing tax credits to KEF constituted a separate or intervening use as an investment vehicle. CLASS makes a number of arguments in alleging COTA erred as a matter of law.
In relevant part, K.S.A. 2009 Supp. 79-201b states:
“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:
“Sixth. All real property and tangible personal property actually and regularly used exclusively for the puipose of group housing of mentally ill or retarded and other handicapped persons
Although the Kansas appellate courts have not addressed the specific investment arrangement present here, they have addressed the question of exclusivity in Board of Wyandotte County Commrs v. Kansas Ave. Properties, 246 Kan. 161, 170, 786 P.2d 1141 (1990), and in In re Board of Johnson County Comm’rs, 225 Kan. 517, 518, 592 P.2d 875 (1979). In Johnson County Comm’rs, the court found that property owned by a non-tax-exempt entity then leased for profit to a quahfying tax-exempt entity is not being used exclusively for tax-exempt purposes and is subject to ad valorem and property taxes. 225 Kan. at 522-23. In Wyandotte County Comm’rs, the court examined the inverse situation and found that property owned by a qualifying tax-exempt entity then leased to a non-tax-exempt entity is also not being used exclusively for tax-exempt purposes and is subject to ad valorem and property taxes. 246 Kan. at 170, 176.
In both Wyandotte County Comm’rs and Johnson County Comm’rs the court stressed the importance of interpreting tax-exemption statutes strictly in favor of imposing the tax and defined “used exclusively” as that which is used only, solely, and purely for the purposes stated, and without participation in any other use. Wyandotte County Comm’rs, 246 Kan. at 166; Johnson County Comm’rs, 225 Kan. at 519. Of equal importance is that both courts stated that taxation is the rule, that exemption is the exception, and that all doubts are resolved against exemption and in favor of taxation. Wyandotte County Comm’rs, 246 Kan. at 166; Johnson County Comm’rs, 225 Kan. at 519. In the present case, resolving all doubts in favor of taxation appears fatal to CLASS’S arguments.
CLASS attempts to distinguish Wyandotte County Comm’rs and Johnson County Comm’rs, suggesting that in both cases, the crucial fact was that the property owner leased the property in an attempt to make rental income, creating an economic benefit separate from the exempted use of the properly. CLASS suggests the present case is different because it does not concern a lease but instead a tax credit. COTA recognized this distinction but found it incon sequential and stated the premise is the same because KEF reaps a financial investment benefit from the properties and is therefore not entitled to the exemption.
CLASS argues there is a distinction between a lease and the financial investment benefit in the present case because KEF is not the property owner and because COTA’s interpretation means that income received from an exempt use would create a lack of exclusivity when used to pay employee salaries or mortgage interest. In this sense, CLASS argues that its relationship is most analogous to that of a lender-borrower. CLASS admits that the present case creates a financial arrangement “outside the norm” for a tax-exempt enterprise but asserts that KEF is in the same position as a lender.
There are a number of problems with CLASS’S analogy. First, as explained by COTA, CLASS has to pay KEF $1,087,890 in full either through allocation of the tax credits or otherwise, and KEF possesses ultimate control over the properties because it has a 99.99% interest in CLASS. Unlike a lender-borrower scenario, and contrary to CLASS’S assertions, KEF’s contractual interest means it is essentially an owner. CLASS attempts to undercut this distinction by pointing out that KEF must abide by certain contractual restrictions and that it is not the operator of the property. In fact, COTA did find that KEF was not the operator, but CLASS did not argue, nor did COTA find, that KEF was not the owner. Although in practice under the CLASS operating agreement, KEF’s rights are limited, its majority interest in CLASS is distinguishable from a lender’s, in that a lender is merely owed an obligation.
KEF is also distinguishable from employees of a not-for-profit enterprise, as employees are paid in return for personal services rendered to the enterprise, whereas KEF is a majority owner with a direct financial stake. There is no evidence or argument that the tax exemption provisions of K.S.A. 2009 Supp. 79-201b Sixth were intended to function as an investment vehicle for entities with an ownership interest.
This point is reinforced by In re Tax Appeal of Univ. of Kan. School of Medicine, 266 Kan. 737, 766-67, 973 P.2d 176 (1999), in which the court analyzed K.S.A. 2009 Supp. 79-201 Ninth, a pro vision similar to K.S.A. 2009 Supp. 79-201b Sixth concerning tax exemptions for community service organizations providing humanitarian services. In finding that a lease of property between two tax-exempt organizations did not necessarily preclude exemption as in Wyandotte County Comm’rs, the court stated that pursuant to the language of K.S.A. 2009 Supp. 79-201 Ninth, no part of the income generated by the lease could inure to the benefit of any private shareholder or individual. 266 Kan. at 766-67. In the present case, KEF is not a tax-exempt organization and it is a private shareholder-owner that would derive income generated by die tax-exemption credits CLASS expects to accrue through its operations. Therefore, even if we analogize KEF’s position to that of a lessor, its ownership interest and contractual financial benefit create a position that is anathema to exemption under K.S.A. 2009 Supp. 79-201b Sixth.
CLASS fails to satisfy its burden to show it clearly qualifies for an exemption. Although this particular contractual relationship between an otherwise tax-exempt operator (CLASS) and a for-profit shareholder-owner (KEF) is not discussed in K.S.A. 2009 Supp. 79-201b Sixth or Kansas case law, the resolution of doubt against exemption, coupled with the standards set forth in Wyandotte County Comm’rs, Univ. of Kan. School of Medicine, and Johnson County Comm’rs, suggest that CLASS does not qualify for the exemption under K.S.A. 2009 Supp. 79-201b Sixth, given its current arrangement with KEF, and that COTA did not err as a matter of law.
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Leben, J.:
A few months after purchasing their home, Jason and Phyllis Eastham stopped making their monthly mortgage payments, and Wells Fargo, which had obtained rights to their loan and mortgage by assignment, received a foreclosure judgment against them. The Easthams filed a counterclaim against Wells Fargo seeking to hold Wells Fargo hable for their initial lender’s failure to comply with the Truth in Lending Act’s disclosure requirements. The district court granted summary judgment in Wells Fargo’s favor, and the Easthams have appealed.
But even though the Eastham’s initial creditor did violate the Truth in Lending Act’s disclosure requirements, another party who later receives the initial lender’s rights by assignment is not hable for such violations unless they are apparent upon facial examination of a required document called the disclosure statement. Here, the initial creditor violated a timing requirement: it didn’t give the Easthams the disclosure statement when it was supposed to. But a timing violation does not fall within the situations that Congress has deemed to be facially apparent violations — incorrect or incomplete disclosures or disclosures that don’t use the required terms or format — so Wells Fargo is not hable for the violation.
Factual and Procedural Background
Jason Eastham borrowed $228,000 from Intervale Mortgage Corporation to buy the house that he and his wife, Phyllis Eastham, had been renting. The Easthams signed a mortgage on the property as collateral for the loan. Jason was negotiating interest rates until the day of closing. At closing, held July 5,2005, Jason signed a new loan application with an interest rate that was higher than he had expected so that he could close that day, which the seller demanded. The loan application included a Truth in Lending Act disclosure statement that both he and Phyllis then signed. Shortly after that, the Easthams signed the mortgage documents.
In October 2005; Jason was hospitalized for a ruptured benign brain tumor; he suffered a stroke after the surgery that removed the tumor. Soon after that, the Easthams stopped paying their monthly mortgage payments, and the mortgage went into default.
By then, the loan and mortgage had been assigned to Wells Fargo. Wells Fargo petitioned for foreclosure in April 2006. The Easthams answered and filed a counterclaim against Wells Fargo, but the district court entered a judgment of foreclosure against Jason; the court directed that the counterclaim’s allegations proceed to trial.
The counterclaim alleged that Wells Fargo, as Intervale’s assignee, engaged in predatory lending practices and didn’t comply with provisions of the Federal Trade Commission Act, the Truth in Lending Act, the Equal Credit Opportunity Act, and the Fair Credit Reporting Act. During pretrial discussions, the Easthams refined their counterclaim into three main contentions: (1) that Wells Fargo is liable for Intervale’s failure to give them the required Truth in Lending Act disclosures sooner than minutes before closing; (2) that they were forced into the loan and mortgage by the seller s threats that they wouldn’t get the properly since he was being foreclosed on; and (3) that they’re entitled to rescind the mortgage because Intervale did not give them the proper notice of their right to rescind within 3 days.
After the claims were refined, Wells Fargo moved for summary judgment. The district court granted the motion, concluding that Wells Fargo could not be liable as an assignee for Intervale’s alleged Truth in Lending Act disclosure violations; that Wells Fargo could not be liable for the seller’s alleged duress to get the East-hams to buy the properly; and that the Easthams waived their right to seek rescission under the Truth in Lending Act because they brought their rescission claim more than 3 years after closing. The district court granted the summary judgment motion.
The Easthams appeal and insist that genuine issues of material fact exist to preclude summary judgment on the alleged violation of the Truth in Lending Act’s disclosure requirements. The East-ham’s brief on appeal does not argue the other bases presented to the district court in support of the counterclaim, so those issues have been waived. See Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009) (issues not briefed are waived). Our review is thus limited to the appropriateness of summary judgment on the Easthams’ claim that Wells Fargo can be held hable for Truth in Lending Act violations of the original lender, Intervale Mortgage Corp.
Standard of Review and Admitted Facts on Appeal
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that no genuine issue as to any material fact exists and that the moving parly is entitled to judgment as a matter of law. Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009). Although the Easthams contend that factual disputes do exist, the facts relevant to the legal issue before us — and determinative of this appeal — are undisputed. Wells Fargo asserted in the district court, based on the Easthams’ own testimony, that the Easthams received and signed the Truth in Lending Act disclosure statement at closing. The Easthams presented no contrary evidence, and the district court properly found those facts uncontroverted. Neither party disputes the content of the disclosure document. Because there are no disputed facts that are important to the legal issue before us, we review the grant of summary judgment without any required deference to the district court. See Smith v. Kansas Gas Service Co., 285 Kan. 33, 39, 169 P.3d 1052 (2007); Davis v. Allstate Insurance Co., 36 Kan. App. 2d 717, 720, 143 P.3d 413 (2006).
In this case, Wells Fargo is entitled to judgment as a matter of law unless Intervale violated TILA’s disclosure requirements and Wells Fargo is liable for Intervale’s actions as the assignee of the mortgage. We reference the statutory provisions as they existed when the Easthams closed on their home in July 2005. While some statutory changes have been made since that time regarding the timing of disclosures, no changes have been made that relate to whether the failure to comply with the timing rules would be apparent on the face of the disclosure statement.
Analysis
The Truth in Lending Act requires that the “creditor” make certain disclosures to the debtor in a covered transaction, 15 U.S.C. § 1631(a) (2006), but these requirements only apply to the initial lender, not a party to whom the creditor’s rights are later assigned, a party called the assignee. The Truth in Lending Act specifically provides that the “creditor,” which has these disclosure duties, is limited to the person or entity “to whom the debt arising from the consumer credit transaction is initially payable on the face of the indebtedness.” (Emphasis added.) 15 U.S.C. § 1602(f) (2006).
The Act has a separate provision providing liability for an assignee. So long as the assignment occurs through a voluntary transaction, the assignee has liability only for violations that are “apparent on the face of the disclosure statement.” 15 U.S.C. §§ 1641(a), (e)(1)(A) (2006). Our case turns, then, on whether any Truth in Lending Act violation was apparent on the face of the disclosure statement given to the Easthams at closing.
The Easthams contend that it should have been apparent to Wells Fargo that the disclosure statement wasn’t given to the East- hams 3 days before closing; without citation to any statutory provisions, the Easthams contend that the Act required that the disclosure statement be given to the Easthams at least 3 days before closing. Since the disclosure statement was dated the same day as the loan agreement and mortgage, the Easthams contend that it was obvious from the face of the document that the lender had violated its disclosure requirements.
The Easthams’ argument breaks down when we review the statutory provisions because there is no requirement in all cases that the final disclosure document be given to the borrower 3 days before closing. If the requirement doesn’t exist in all cases, then a violation wouldn’t be apparent even if the face of the disclosure document suggested that there might be a violation: an assignee has no “duty to seek out additional information before it makes its own decision ... to accept the assignment with the protection afforded by § 1641(a).” Taylor v. Quality Hyundai, Inc., 150 F.3d 689, 694 (7th Cir. 1998). This is because Congress has plainly determined through the statutory language that the violation must be “apparent on the face of the disclosure statement” itself, not something disclosed only by information determined from the face of the document plus investigation. See Taylor, 150 F.3d at 694-95.
Congress has made this quite clear by defining what is “apparent on the face of the disclosure statement.” For consumer credit transactions secured by a home mortgage, “a violation is apparent on the face of the disclosure statement” only if “the disclosure can be determined to be incomplete or inaccurate by a comparison among the disclosure statement, any itemization of the amount financed, the note, or any other disclosure of disbursement” or “the disclosure statement does not use the terms or format required to be used by” the Truth in Lending Act. 15 U.S.C. § 1641(e)(2). The Easthams have not suggested that the disclosure could be determined inaccurate merely by comparison to other documents; nor have they suggested that the document failed to comply with legal requirements for its terms or format.
Instead, the Easthams’ claim is premised on their assertion that the original lender had to provide the disclosure statement at least 3 days before the transaction closed. But that’s not a requirement in all transactions covered by the Truth in Lending Act. The disclosures must be made before the credit is extended and where, as here, the loan is secured by the debtor s residence, the creditor must also give the debtor good-faith estimates of the disclosures no later than 3 days after receipt of the credit application. 15 U.S.C. §§ 1638(b)(1), (b)(2) (2000). The final disclosures must be given when the transaction occurs. 15 U.S.C. § 1638(b)(2). A further disclosure requirement kicks in no later than 3 days before the transaction only if the interest rate set out in the good-faith estimate is no longer accurate. 15 U.S.C. § 1638(b); Regulation Z, 12 C.F.R. 226.19(a)(2)(ii) (2005). This is presumably the requirement the Easthams are referring to, although they have not provided a citation to such a requirement in their appellate briefs.
Wells Fargo had no way to know from the face of the disclosure statement or any other documents referenced in 15 U.S.C. § 1641(e)(2) whether the interest rate in the final disclosure document differed from what had been provided in the good-faith estimate. That knowledge could only come through investigation of facts beyond what Congress has defined as those that are apparent on the face of the disclosure statement. Without that knowledge, Wells Fargo had no reason to know that the original lender may have violated the Truth in Lending Act by providing the disclosure statement on the same day as the transaction closing. Accordingly, Wells Fargo, as the assignee, has no liability for such a violation. See Crowe v. Joliet Dodge, 2001 WL 811655, at *5 (N.D. Ill. 2001) (unpublished opinion) (assignee is not liable for potential violation regarding timing of the furnishing of disclosure statement because such a violation is not apparent on the face of the disclosure statement).
The Easthams cite one other part of the Truth in Lending Act, 15 U.S.C. § 1641(d), which they claim subjects an assignee to any claim that could have been brought against the creditor. The East-hams fail to note that this liability is limited and applies only to “a mortgage referred to in section 1602(aa)” of the Act. Those are high-interest-rate mortgages in which “the annual percentage rate at the consummation of the transaction will exceed by more than 10 percentage points the yield on Treasury securities having com parable periods of maturity” or in which total “points and fees payable by the consumer at or before closing” exceed specified limits. 15 U.S.C. § 1602(aa)(l). The Easthams have not presented any factual basis to suggest that this is a high-interest-rate mortgage covered by section 1602(aa), which leaves the general rule for assignee liability — in which there is no liability for the initial lender’s violations unless they are apparent on the face of the disclosure statement.
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Pierron, J.:
Robin Robert Galyardt appeals his conviction for aggravated burglary. Galyardt argues the trial court erred in denying both his motions to suppress because the officer was out of his jurisdiction during the vehicle search and the eyewitness identification was impermissibly suggestive. He also contends the eyewitness instruction was outdated and clearly erroneous.
When Harold Windholtz went to work at the Barron Theatre in Pratt at 6 a.m. on June 15, 2008, he found the front door unlocked and heard noise in the office. Windholtz realized there was an intruder and left to call the police. Windholtz met Steve Cross outside in his truck and told him of the intrusion. As the two talked, the intruder came out the front door. Windholtz was not wearing his glasses, but he described the intruder as having long hair, gray clothing, and gloves. Cross indentified the intruder as wearing a gray shirt, black pants, black gloves, and black cap. Cross followed the intruder’s vehicle for several blocks and observed the license plate number of “103AUD.” Cross returned to the theatre.
Officer Nathan Humble of the Pratt Police Department responded to Windholtz’ call and investigated the break-in. He arrived at the scene at 6:11 a.m. and spoke with Windholtz and Cross. Officer Humble issued an alert for a gold car with license plate number 103AUD. Cross left for work after giving his statement. As the officers investigated the burglary, Stafford County law enforcement reported they had stopped a gold car with license plate number “103AHD.” Office Humble immediately called Cross and asked if he would be available to see if the car and driver were the same he witnessed at the theatre. Officer Humble picked up Cross and they drove into Stafford County. At approximately 7:30 a.m., in a one-man show-up, Cross identified Galyardt as the person he saw leaving the theatre.
Officer Humble arrested Galyardt and in a search of his vehicle discovered instruments that would later be described as specialized burglary tools. The State charged Galyardt with burglary but later amended the charge to aggravated burglary. Galyardt filed a motion to suppress the evidence found during the search of his car, based on the officer’s lack of territorial jurisdiction, and a motion to suppress the eyewitness identification testimony based on an unconstitutional identification procedure. The trial court ultimately denied both motions. The jury convicted Galyardt as charged. The trial court sentenced him to a presumptive term of 49 months’ incarceration.
An appellate court reviews the district court’s decision on motions to suppress using a bifurcated standard. Without reweighing the evidence, the district court’s findings are reviewed to determine whether they are supported by substantial competent evidence. Then, the ultimate legal conclusion regarding the suppression of evidence is reviewed using a de novo standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007).
Fresh Pursuit
Galyardt first contends his arrest and the search of his car were unlawful because Officer Humble, of Pratt County, was acting out side his jurisdiction, in Stafford County, in violation of K.S.A. 22-2401a. At the hearing on Galyardt’s motion to suppress, the trial court granted the motion, finding the arrest was improper, and consequently suppressed all items seized from the car subject to the State offering authority that a private citizen could make a search incident to an arrest. At a motion for reconsideration, the court reversed its prior ruling and held that Officer Humble was in fresh pursuit of Galyardt at the time of the arrest and search, and the motion to suppress was therefore denied.
The extraterritorial jurisdiction of municipal police officers is governed by K.S.A. 22-2401a(2)(b), which provides that law enforcement officers employed by any city may exercise their powers as law enforcement officers “in any other place when a request for assistance has been made by law enforcement officers from that place or when in fresh pursuit of a person.” “Fresh pursuit” is defined in the same statute as “pursuit, without unnecessary delay, of a person who has committed a crime, or who is reasonably suspected of having committed a crime.” K.S.A. 22-2401a(10)(d).
The interpretation of a statute is a question of law. This court’s review of questions of law is unlimited. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (1010). The issue raised in this case is whether Officer Humble was in “fresh pursuit” of Galyardt as defined by K.S.A. 22-2401a(2)(b) when he arrested Galyardt and searched his vehicle outside of the jurisdiction of Pratt law enforcement.
In State v. Green, 257 Kan. 444, 901 P.2d 1350 (1995), Ottawa police officers received a report that a robbery had just taken place in Ottawa and that the suspects had proceeded north out of town. The officers drove north out of the city and later apprehended the suspects. The court, in holding that the officers were in fresh pursuit, noted that “the criminal activity that prompted the pursuit originated in Ottawa.” 257 Kan. at 455; see City of Junction City v. Riley, 240 Kan. 614, 731 P.2d 310, cert. denied 482 U.S. 917 (1987) (finding that K.S.A. 1985 Supp. 22-2401a gave Junction City police officer authority to arrest suspect on military reservation for crime committed within officer’s jurisdiction, when in fresh pursuit). The Green court noted that Kansas courts had not specifically addressed whether an officer must chase a fleeing suspect over a jurisdictional border to be in fresh pursuit. The issue in Green was whether the Kansas definition of fresh pursuit required that the actual visual pursuit of the person sought originate within the officer s territorial jurisdiction. In finding fresh pursuit existed, the Green court stated:
“Here, the criminal activity drat prompted the pursuit originated in Ottawa. Although the Ottawa officers did not chase the defendants over the jurisdictional boundary, the pursuit was continuous, uninterrupted, and without delay. The officers immediately began pursuing the defendants upon receiving a report of the robbery and a description of the suspects and their direction of flight. The officers located the vehicle within seven minutes and chased it until it stopped. The officers continuously pursued the vehicle during the entire 28-minute period between the initial report of the crime and the ultimate stop and arrest of the defendants. There was no bréale in the officers’ efforts to apprehend the defendants or the defendants’ efforts to escape.” 257 Kan. at 455.
Several other cases outside of Kansas, cited in Green, are instructive on this issue. In Com. v. Magwood, 503 Pa. 169, 469 A.2d 115 (1983), city police officers received a report of an attempted robbery. An officer sought the suspect after receiving his description and direction of flight. The officer located and arrested the suspect outside the officer s jurisdictional boundary. The court held that the Pennsylvania statute, which authorized extraterritorial arrests when the officer continues in pursuit, contemplated fresh pursuit. The court found the police continuously pursued the defendant from the time of the initial report and upheld tire arrest after concluding the pursuit was fresh, continuous, and uninterrupted. 503 Pa. at 175-76.
In Charnes v. Arnold, 198 Colo. 362, 600 P.2d 64 (1979), the Colorado Supreme Court, interpreting language identical to the Kansas fresh pursuit statute, upheld an extraterritorial warrantless arrest where the suspect was not followed across the jurisdictional boundary. In Chames, a Lakewood police officer responded to a report of a hit and run accident and, upon arriving at the scene, learned that the vehicle was registered to the defendant, who lived in Denver. The officer promptly drove to the defendant’s Denver address, observed tire defendant pulling into his driveway, and ar rested him. The court concluded that although fresh pursuit obviously includes high-speed, Hollywood-style automobile chases, it also includes less dramatic police action. 198 Colo, at 364-65.
In determining if the officer was in fresh pursuit, the Chames court recognized three factors: (1) whether the officer acted without unnecessary delay; (2) whether the pursuit was continuous and uninterrupted, although there need not be continuous surveillance of the suspect or uninterrupted knowledge of the suspect’s whereabouts; and (3) the relationship in time of the commission of the offense, the commencement of the pursuit, and the apprehension of the suspect. Because the police responded immediately to the call and promptly pursued the only lead available, the Chames court held that the officer was in fresh pursuit. 198 Colo, at 365. The Green court adopted these three factors for its determination of whether an officer was in “fresh pursuit.” 257 Kan. 444, Syl. ¶ 5.
Galyardt contends that unless his motion to suppress is granted, all that would be needed for fresh pursuit would be an officer’s broadcast or alert for a license plate. Galyardt claims this would be too broad an interpretation of the statute. We disagree with Galyardt’s focus on this single fact. Galyardt fails to consider the Green factors and the totality of the situation. Officer Humble arrived at the theater at 6:11 a.m. The license plate and vehicle description was issued at 6:16 a.m. Officers continued to search the area for suspects. Stafford County law enforcement stopped Galyardt at 6:46 a.m. Officer Humble immediately contacted Cross, picked him up, and the identification was made at approximately 7:30 a.m. Officer Humble arrived at the Pratt County Jail with Galyardt at 8:01 a.m. In this case, Officer Humble was continuously working on this case until the time he made contact with Galyardt in Stafford County. He acted without unnecessary delay in pursuing the identification and arrest of Galyardt as the perpetrator of the aggravated burglary. His actions in this case in pursuing Galyardt amounted to less than an hour and a half from the time of the police alert to Cross’ positive identification of Galyardt as the perpetrator.
We find the trial court did not err in denying Galyardt’s motion to suppress his arrest and the discovery of the criminal instrumentalities during the search of his vehicle.
Since we find there was fresh pursuit, we need not address the issue of whether Officer Humble had been requested by Stafford County law enforcement to assist.
Eyewitness Identification
Galyardt next argues the trial court erred in denying his motion to suppress Cross’ eyewitness identification testimony because the one-man show-up used for Cross’ identification was unnecessarily suggestive and led to a substantial likelihood of misidentification.
Review of a denial of a motion to suppress an eyewitness identification involves a mixed question of fact and law. The factual basis of the trial court’s denial of the suppression motion and admission of the eyewitness identification evidence is reviewed using a substantial competent evidence standard. State v. Corbett, 281 Kan. 294, 304, 130 P.3d 1179 (2006). Substantial evidence is defined as “such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.” State v. Luna, 271 Kan. 573, 575, 24 P.3d 125 (2001). In reviewing for substantial evidence, this court does not reweigh the evidence or pass on the credibility of witnesses. See State v. Combs, 280 Kan. 45, 50, 118 P.3d 1259 (2005). The ultimate legal conclusion that the eyewitness identification is admissible in fight of the factual findings is reviewed de novo. Corbett, 281 Kan. at 304.
A two-step analysis is used to determine the reliability of Cross’ eyewitness identification. First, this court must determine whether the procedure used to elicit Cross’ identification of Galyardt was unnecessarily suggestive. If so, the second step requires consideration of certain factors in assessing whether the unnecessarily suggestive procedure led to a substantial likelihood of misidentification. See Corbett, 281 Kan. at 304.
Galyardt argues the one-man show-up identification procedure was unnecessarily suggestive because Cross was told that the police wanted him to go see a possible suspect and then drove him to a place where he identified the only person in the vicinity other than uniformed police officers. In denying Galyardt’s motion, the trial court found that although show-up identifications are not favored, “the general ruling that the benefits of a prompt resolution outweigh the inherent prejudice of being the only person observed would appear to apply here.” The trial' court also stated that the additional identification of Galyardt’s license plate added to the substantial credibility of the identification.
Here, aspects of the identification procedure were somewhat suggestive. These include: (1) Humble telling Cross that they thought they had found the car and suspect and asking him to see if he could identify the perpetrator; (2) other than die officers, Galyardt was the only person observed by Cross in the same vicinity of the car they identified; and (3) this was a one-man show-up identification. However, these factors do not cause the identification procedure to be unnecessarily suggestive.
In State v. Alires, 246 Kan. 635, 640, 792 P.2d 1019 (1990), our Supreme Court held that a show-up identification procedure was not unnecessarily suggestive, noting that it had previously “approved one-on-one confrontations shortly after the commission of an offense, recognizing that time is crucial when there is an eyewitness who can identify a suspect and that any delay in identification could impede the police investigation. [Citation omitted.]” The court in State v. Trammell, 278 Kan. 265, 270, 92 P.3d 1101 (2004), suggests that our appellate courts reach the second stage of the analysis only if the procedure used for making the identification is found to be unnecessarily suggestive. See Corbett, 281 Kan. at 306. We agree with the trial court that in light of the multiple identification details provided by Cross at the scene and the close similarity in the license plate identification, the identification procedure, although suggestive, was not unnecessarily suggestive. Therefore, we need not determine whether the procedure led to a substantial likelihood of misidentification. Nevertheless, we move to the second step of the analysis only to further support our conclusion and in case of further review.
The second step of the analysis requires the court to consider the reliability of the eyewitness identification based on the totality of the circumstances surrounding the identification by application of what are now known as the “Hunt” reliability factors. See Trammell, 278 Kan. at 270-71; State v. Hunt, 275 Kan. 811, 817-18, 69 P.3d 571 (2003). Applying the following listed and described Trammell/Hunt factors, we conclude that the evidence supports the trial court’s conclusion that there was not a substantial likelihood of misidentification.
Opportunity to view/Degree of attention-. Cross had the opportunity to view Galyardt after Galyardt got into his car near the theater. Cross testified that he was paying close attention and he got a good look at Galyardt. Cross testified that he and Galyardt made eye contact as Galyardt was trying to start his vehicle. Cross followed Galyardt and got his license plate number, although one letter was misidentified as a “U” instead of an “H.”
Level of certainty-. Cross was 100% certain of his identification of Galyardt as the man that came out of the theater.
Length of time between crime and confrontation: Cross confronted and identified Galyardt within an hour and a half of the time Cross witnessed the commission of the crime.
Capacity to observe the event-. Galyardt did not challenge Cross’ mental or physical capacity or acuity for observing the perpetrator exiting the theater. Cross’ identification of the vehicle and Galyardt were both spontaneous.
Aside from the basic nature of the one-man show-up identification procedure discussed above, nothing in the record indicates Cross’ identification of Galyardt was the result of police prompting or suggestion, and his identification of Galyardt never wavered.
Having analyzed the identification procedure, we conclude the district court did not err in refusing to suppress Cross’ identification of Galyardt at trial.
Last, Galyardt argues the trial court erred in giving an outdated eyewitness identification jury instruction, citing Hunt, 275 Kan. 811. Galyardt did not object to the instruction at trial and now claims it was clearly erroneous. Under K.S.A. 22-3414(3), no party may assign as error the giving or failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict unless die instruction or the failure to give an instruction was clearly erroneous. Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. State v. Carter, 284 Kan. 312, 324, 160 P.3d 457 (2007).
The trial court gave the jury an eyewitness identification instruction identical to PIK Crim. 3d 52.20, which includes “[t]he degree of certainty demonstrated by the witness at the time of any identification of the accused” as a factor in weighing the reliability of an eyewitness identification. This factor had its genesis in an eyewitness identification reliability model adopted by the United States Supreme Court in Neil v. Biggers, 409 U.S. 188, 199-200, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972). This model was adopted by our Supreme Court in State v. Warren, 230 Kan. 385, 397, 635 P.2d 1236 (1981).
Galyardt argues this “witness certainty factor” was criticized and rejected as an indicator of reliability by the Utah Supreme Court in State v. Ramirez, 817 P.2d 774 (Utah 1991), which was cited by our Supreme Court as the basis for a reliability model that excluded the witness certainty factor. See Hunt, 275 Kan. at 817-18. Nevertheless, Galyardt acknowledges that our Supreme Court has explicitly stated that the pre- Hunt (Biggers) model (which includes the witness certainty factor) has not been rejected but rather “refined” by the Ramirez model. See Trammell, 278 Kan. at 270-71 (Hunt court enhanced reliability analysis by adding Ramirez factors to Biggers factors); Hunt, 275 Kan. at 818.
The Hunt and Trammell opinions were not entirely clear whether the inclusion of a witness certainty factor in an eyewitness identification instruction should be considered error. Until our Supreme Court squarely addresses the issue, we must decline to hold that the inclusion of the witness certainty factor as an indicator of reliability of eyewitness identifications is clear error. See State v. Reid, 286 Kan. 494, 514-18, 186 P.3d 713 (2008). This conclusion is consistent with that of other panels of our court that have addressed this argument. See, e.g., State v. Aguilera, No. 101,590, unpublished opinion filed June 18, 2010; State v. Marshall, No. 101, 641, unpublished opinion filed February 5, 2010, slip op. at 15-20, aff'd 294 Kan. 850 (2012). We reject Galyardt’s challenge to the eyewitness identification instruction employed in the present case.
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Green, J.:
Newcastle Homes, LLC (Newcastle), appeals from the trial court’s decision granting summary judgment to Dennis Thye and Dianna Thye on Newcastle’s breach of contract, fraud, and tortious interference claims. For the following reasons, we affirm the trial court’s grant of summary judgment to the Thyes: (1) Newcastle failed to provide the May 2005 sales contract and the May 2005 builders contract on which Newcastle’s claims centered; (2) Newcastle and the Thyes entered into cancellation and mutual release agreements that rescinded the May 2005 sales contract on which Newcastle’s causes of action were based and released the parties from any liability and claims for damages arising from the contract; (3) Newcastle did not properly plead its fraudulent inducement claim with particularity, as required by K.S.A. 60-209(b); (4) Newcastle’s evidence did not establish a genuine issue of material fact as to the elements of fraud; and (5) Newcastle did not manifest its intention to avoid the cancellation and mutual release agreements to the Thyes within a reasonable time. Accordingly, we affirm.
On May 17, 2005, the Thyes entered into a residential new construction sale contract with Newcastle for the purchase of land and the construction of a house at 2250 Valley View Drive in Tonganoxie, Kansas, for the price of $215,900. The Thyes put down $5,000 as earnest money towards the purchase price of the home. The initial closing date for the contract was set for September 30, 2005.
John W. Barnes, Sr., was the principal and owner of Newcastle. Barnes started Newcastle to function as a general contractor for the sales and construction of custom-built homes. In May 2005, Newcastle entered into a contract with Alpha Homes, LLC (Alpha Homes), to provide and oversee the personnel and manpower necessary to construct custom-built homes, including the construction of the house at 2250 Valley View Drive.
Thomas Dressier was the managing partner and authorized agent of Alpha Homes at all times relevant to the contract with Newcastle. According to Barnes, Dressier drew the construction plans and front elevation drawings for the home at 2250 Valley View Drive. Moreover, Dressier compiled a handwritten materials list and identified and provided quotes for costs and allowances to be included in the agreement for the house at 2250 Valley View Drive. Barnes stated in his affidavit that in Newcastle’s contract with Alpha Homes, Alpha Homes reserved for itself the exclusive authority to direct, control, and supervise the working assignments for personnel necessary for construction purposes. In addition, Barnes stated that Dressier made all of the decisions concerning the assignment of the workers for the construction of the house at 2250 Valley View Drive.
According to Barnes, as construction began on the house at 2250 Valley View Drive, questions immediately arose concerning the adequacy of the lot. After testing was done on the property, it was determined that the property was unstable and unsuitable for construction purposes in its present condition. According to Barnes, because a contractor was called in to compact the subsoil to achieve the appropriate structural integrity necessary to support the foundation for the house, the extension of the original closing date became necessary.
According to Barnes, during the second and third week of December 2005, he began noticing that individual and overall phases of construction for the house at 2250 Valley View Drive were taking longer than anticipated and many of them were not being completed. Barnes stated that he discussed this issue repeatedly with Dressier, but that Dressier always made excuses. According to Barnes, he believed that the Thyes had apparently struck an agreement with Dressier for changes in the design and additions to the house. Barnes asserted that there were material changes made, without his knowledge or consent, during the construction period for the house, which required a substantial amount of time and included a new backyard fence, a deck roof, sheet rock and insulation installation in the basement, stereo wiring throughout the house, alteration of the deck design, additional windows installed, and additional bricking of the front elevation of the house.
According to Dressler’s affidavit, however, during the construction of the house, Newcastle constantly shifted Alpha Homes’ employees from house to house, which led to delayed completion dates for the house at 2250 Valley View Drive. Dressier further stated that Barnes would initiate discussions with him about increasing costs on the property and attempted on several occasions to unnecessarily increase labor costs.
On August 29, 2005, the Thyes and Newcastle agreed to extend the closing date to December 30, 2005. In December 2005, Newcastle requested and obtained an agreement by the Thyes to extend the closing date to January 23, 2006.
According to the Thyes, in November 2005, they started D & D Homes, LLC (D & D Homes), for the purpose of paying for the expenses of construction and improvements on the property at 2250 Valley View Drive. The Thyes paid approximately $21,000 in expenses and improvements on the property out of D & D Homes’ checking account and their own personal accounts. The Thyes stated that they painted the inside of the property at 2250 Valley View Drive in order to speed up the completion date. According to Dressier, the Thyes were greatly involved in attempting to complete the property by the closing dates. Dressier stated that the Thyes did not attempt to delay or influence the delays in the completion of the property.
According to affidavits filed by the Thyes, in January 2006 they formed the opinion that the property would not be completed by January 23, 2006. The Thyes asserted that Barnes came to the property in January 2006 while they were painting and loudly complained that the property would not be completed by the January 23, 2006, closing date. The Thyes then decided that if the property was not completed by January 23, 2006, they would cancel the contract and find another property.
According to Barnes’ affidavit, Dressier approached Barnes around January 17, 2006, and demanded his scheduled payment under his contract with Newcastle, even though the required work had not been completed. Barnes stated that Dressier told him that Alpha Homes did not have the money to pay its employees and that if Barnes did not make the scheduled payment, he would pull all of his employees off the project. According to Barnes, he paid Alpha Homes the requested payment, but Dressier still pulled all of his employees from the construction project on January 18, 2006.
On January 21, 2006, Newcastle requested a third extension of the closing date to February 8,2006, but the Thyes would not agree to the extension. On January 23, 2006, the property was not completed, and closing did not occur. According to Dianna, Newcastle began to show the property to other buyers in January 2006. Nevertheless, Barnes stated in his affidavit that the realtors, on their own initiative, showed the property and that they had never contacted him or requested permission to show the property. On January 24, 2006, the Thyes entered into a real estate contract with Donal Dominick for the purchase of an unimproved lot in Jarbalo Estates in Tonganoxie.
According to Barnes, around January 19,2006, the Thyes’ realtor contacted him and said that if Newcastle did not let the Thyes out of their contract because of Newcastle’s unwillingness or inability to complete the construction of the home, then they would place a hen on the property for the expenses that they had incurred in relation to the construction of the home. Barnes stated that he met with Dennis Thye and the Thyes’ realtor around January 20, 2006, and declined to rescind the contract. Instead, Barnes offered the Thyes a $3,000 reduction in the contract price for the house.
On February 13, 2006, Newcastle, Barnes, and the Thyes signed two cancellation and release agreements that cancelled and rescinded the rights, duties, and obligations under the Residential New Construction Contract. Specifically, Newcastle, Barnes, and the Thyes agreed that the contract for the sale and purchase of the property at 2250 Valley View in Tonganoxie, Kansas, “is canceled and the parties release all of their rights and interest in the Contract.” The other agreement stated that the Thyes had paid others besides the seller to make upgrades, additions, and improvements to the home that the seller had built at 2250 Valley View Drive in an amount the Thyes claimed to be $21,916.84, including $5,000 in earnest money that was paid when the Residential New Construction Contract was signed.
One of the cancellation and release agreements contained the following provisions relating to the rescission of the Residential New Construction Contract and the payment of $20,000 to the Thyes:
“1. The Residential New Construction Contract and any additions, addendums and extensions thereto are hereby cancelled and rescinded.
“2. Each party hereby releases the other from any liability, claim for damages and damages, that they now have or may in the future have against any party to this Agreement arising out of the Residential New Construction Contract dated May 17, 2005, and any additions, addendums or extensions thereto and for any items the Buyers added to said house.
“4. The Seller will pay to the Buyers the sum of $18,000 $20,000.00 [amended/ initialed by parties] upon execution of this Agreement by all parties. All upgrades, additions and other improvements to the home located at 2250 Valley View Drive, Tonganoxie, Leavenworth County, Kansas 66086, shall remain with the real property and become the property of the Seller. This includes the wooden fence that fences a portion of the yard at 2250 Valley View Drive, Tonganoxie, Leavenworth County, Kansas 66086.”
On February 13, 2006, Newcastle presented a $20,000 check to the Thyes as payment in full for the Thyes’ interest in the property.
The construction of the home at 2250 Valley View Drive was completed in March 2006 by C.J. McDaniel. According to Barnes, he did not take any steps to secure the property at 2250 Valley View Drive to the exclusion of Dressier until March 3, 2006, after receiving a letter from an attorney on behalf of Alpha Homes making certain demands against Newcastle. Barnes stated that by the terms of the subcontractor’s agreement with Dressier, the agreement did not terminate until completion of the construction by Alpha Homes, a condition that never occurred. Thus, according to Barnes, Alpha Homes never severed its contractual ties with Newcastle because it never completed its obligations under the subcontractor’s agreement.
According to Barnes, the Thyes never completed the painting at the house, and the painting that they did complete on the interior of the house was of such a shoddy condition that the entire interior of the house had to be professionally repainted. Newcastle sold the home on March 16, 2006, for $229,950. Barnes alleged that as a result of rescinding the contract, he sustained damages in excess of $63,300 that were used “to pay for the extras that had been improperly included in the construction of the Newcastle home and to pay contractors to come in and finish the work that Alpha [H]omes and/or Thomas Dressier failed to complete.”
According to the Thyes, Dressier came to them in February 2006 and stated that he was no longer under contract with Newcastle and that he had been locked out of the property. Dianna stated in her affidavit that Dressier requested that he be allowed to construct another house for them personally. According to both the Thyes and Dressier, although they had many conversations before being released from their contract with Newcastle, they never discussed the construction of a separate house aside from the property at 2250 Valley View Drive.
According to Dominick, however, he had a conversation on January 14, 2006, with Dennis about purchasing the lot in Jarbalo Estates. Dominick stated in his affidavit he told Dennis that in order to purchase the lot, the Thyes needed to be prepared to close on the lot within 30 days from when they entered into a contract. Dominick further stated that Dennis assured him that they would be able to close on the lot within 30 days, that they already had a builder, whom Dennis identified as Dressier, that they had contracted with Dressier to build the house, and that they needed only to contact their mortgage company to finalize the paperwork.
According to affidavits filed by the Thyes, in February 2006, after being released from their contract with Newcastle, they entered into an oral contract with Dressier for the construction of a new house on the lot purchased in Jarbalo Estates. The Thyes closed on the property in Jarbalo Estates on March 3,2006. Dressier began construction on the house in Jarbalo Estates in March 2006, and the Thyes moved into the house in October 2006.
In June 2007, Newcastle sued the Thyes, Dressier, and Alpha Homes. In an amended petition, Newcastle asserted claims of breach of contract, fraud, tortious interference with a contract, and tortious interference with expected business relations against the Thyes. In addition, Newcastle asserted claims of breach of contract, fraud, tortious interference with a contract, breach of fiduciary duty, and violation of the Kansas Consumer Protection Act against Dressier and Alpha Homes. Although Newcastle moved to file an amended complaint in November 2008, the trial court never granted Newcastle’s motion. The Thyes filed an answer to Newcastle’s petition and asserted counterclaims of breach of contract and negligent misrepresentation against Newcastle.
In October 2008, the Thyes moved for summary judgment on all of Newcastle’s claims. The Thyes asserted the following arguments as to why Newcastle had not established a genuine issue of material fact on the claims against them: (1) Newcastle had can-celled the May 2005 contract with the Thyes and released the Thyes from all liability stemming from the contract; (2) Newcastle suffered no damages as a result of the alleged breach of contract by the Thyes and in fact sold the property for $14,050 more than was due under the contract; (3) Newcastle failed to plead its fraud claim with particularity; (4) Newcastle could not prove its fraud claim because the Thyes never made a false representation of material fact or attempted to induce Newcastle to rely upon any of their statements; and (5) the Thyes did not tortiously interfere with any existing or future contracts of Newcastle.
In responding to the Thyes’ motion for summary judgment, Newcastle did not respond specifically to each of the Thyes’ 43 contentions of uncontroverted facts. Instead, the Newcastle made its own statements of fact, some of which were additional statements of fact and some of which allegedly controverted various paragraphs of the Thyes’ uncontroverted facts. Newcastle argued that it had created genuine issues of material fact as to all of its claims against the Thyes.
At the hearing on the Thyes’ motion for summary judgment, the trial court inquired and the parties agreed that Newcastle’s claims centered on whether there were tortious acts committed by the Thyes, Dressier, and Alpha Homes that caused a breach of the May 2005 contract. The trial court discussed in detail the facts set forth by the Thyes and Newcastle and set forth which facts were uncontroverted and which facts were immaterial. The trial court ultimately determined that there was no evidence to support tortious conduct by the Thyes in their relationship with Newcastle or with Dressier and Alpha Homes and that the parties had settled their issues concerning the breach of contract by the February 2006 cancellation and mutual release agreement. As a result, the trial court granted summary judgment to the Thyes on all of Newcastle’s claims against them. In addition, the trial court granted summary judgment to Newcastle on all of the Thyes’ counterclaims.
A. Standard of Review
On appeal, Newcastle argues that the trial court erroneously granted summary judgment to the Thyes. This court’s review of a trial court’s decision on a motion for summary judgment is well established. When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to fhe conclusions drawn from the evidence. Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009).
B. No Contract in the Record
When determining that the Thyes were entitled to summary judgment in this case, the trial court went into a detailed analysis of the facts and circumstances set forth by the parties and determined which facts were uncontroverted and which facts were immaterial. In arguing that the trial court erroneously granted summary judgment to the Thyes, Newcastle similarly goes through the particular facts and circumstances and argues that it has brought forth direct and circumstantial evidence to demonstrate genuine issues of material fact to support its claims against the Thyes.
Nevertheless, a review of the appellate record reveals that one of the main problems in this case is that Newcastle has not provided the actual May 2005 contract between it and the Thyes. The contract was not attached to Newcastle’s petition, and Newcastle has not quoted any language from the May 2005 contract in its petition. As a result, this court is unaware of the actual provisions of the May 2005 contract.
Newcastle’s claims against the Thyes were all based upon the Thyes’ alleged breach of the May 2005 contract. For example, Newcastle’s attorney conceded at the summary judgment hearing that Newcastle’s claims centered on whether there were tortious acts committed by the Thyes, Dressier, and Alpha Homes that caused a breach of the May 2005 contract. Newcastle’s attorney agreed that its allegations were that there were delays in completing the construction of the house that prevented tire closing on the contract closing date and that the Thyes, Dressier, and Alpha Homes had engaged in a deliberate course of action to delay the completion of the home so that the Thyes could escape from their obligation under the May 2005 contract. Newcastle further agreed that it was alleging that the Thyes had made changes to the construction plans, which caused the delays in constructing the house and a breach of the contract.
In order to determine whether there was a genuine issue of material fact established on any of Newcastle’s claims centering on the breach of the May 2005 contract, this court would need to see the actual contract and determine whether a breach did occur under the terms of the contract. Without a contract, it is unknown whether the Thyes were authorized to make changes to the construction plans under the contract or whether they were responsible for certain aspects of the construction and additions to the house. Moreover, it is unknown whether, under the May 2005 contract, the Thyes had an absolute right to obtain rescission of the contract under certain circumstances, such as when the builder failed to meet the second extension of the contract deadline. In short, without the May 2005 contract, it would be sheer speculation to determine that the Thyes’ actions were not authorized under the contract and that a breach of the May 2005 contract had occurred.
Further, in order to evaluate whether there was a genuine issue of material fact established as to Newcastle’s claims against the Thyes of tortious interference with a contract and tortious interference with a business relationship, this court would need to evaluate the May 2005 contract that existed between Newcastle and Alpha Homes. Based on the pleadings and the evidence produced at the summary judgment stage, Dressler’s and Alpha Homes’ business relationship with Newcasde stemmed from Newcastle’s May 2005 contract with Alpha Homes to construct custom built homes, including the house at 2250 Valley View Drive. Without being able to construe the terms of that May 2005 contract, this court is unable to determine whether the Thyes’ alleged actions in requesting additions to the construction plans constituted tortious interference with the contract or with Alpha Homes’ and Dressler’s business relationship with Newcasde.
As an appellant, Newcastle had the burden to designate a record sufficient to establish the claimed errors. In the absence of such a record, the claims of error fail. See Kelly v. VinZant, 287 Kan. 509, 526, 197 P.3d 803 (2008). Here, where Newcastle’s claims against the Thyes were based on a breach of the May 2005 sales contract and the May 2005 construction contract between Alpha Homes and Newcasde, the failure of Newcasde to provide those May 2005 contracts at the summary judgment stage was fatal to its claims. Without the May 2005 sales contract between the Thyes and Newcasde and the May 2005 construction contract between Alpha Homes and Newcasde, Newcasde has failed to establish a genuine issue of material fact that there was a breach of the May 2005 sales contract or that the Thyes had tortiously interfered with the May 2005 construction contract or Dressler’s and Alpha Homes’ business relationship with Newcastle.
C. Rescission Agreements
In addition, the undisputed facts in this case establish that Newcasde and the Thyes executed two cancellation and release agreements that cancelled and rescinded the May 2005 contract and any additions, addendums, and extensions. Moreover, under the cancellation and release agreements, the Thyes and Newcastle agreed to release each other from any liability or claims for damages arising out of the May 2005 contract and any additions, addendums, or extensions to that contract.
By rescinding the May 2005 contract and any additions, addendums, and extensions, the Thyes and Newcastle agreed to discharge each other’s duties under the contract. An agreement of rescission is an agreement where “each party agrees to discharge all of the other party’s remaining duties of performance under an existing contract.” Restatement (Second) of Contracts § 283(1) (1979). Thus, an agreement of rescission “discharges all remaining duties of performance of both parties.” Restatement (Second) of Contracts § 283(2). Restatement (Second) of Contracts § 283, comment a, further explains as follows:
“Nature of agreement of rescission. Sometimes the parties to a contract that is at least partly executory on each side make an agreement under which each party agrees to discharge all of the other parly’s duties of performance. Such an agreement is called an ‘agreement of rescission’ in this Restatement. Consideration is provided by each party’s discharge of the duties of the other. This is so even though one or both parties have partly performed their duties or one or both have a claim for damages for partial breach.”
Thus, under an agreement of rescission, the parties can agree to discharge the duties of the other under the contract, even though one or both parties have partly performed their duties or one or both parties have a claim of damages for partial breach.
Our Supreme Court has recognized that “a contract may be discharged at any time before performance is due by a new agreement with the effect of altering the terms of the original agreement or of rescinding it altogether. (17 C.J.S., Contracts, § 394.)” State, ex rel, v. Board of Education, 155 Kan. 754, 758, 129 P.2d 265 (1942), overruled on other grounds Singer v. City of Topeka, 227 Kan. 356, 607 P.2d 467 (1980). “The promise of one party to forego his [or her] rights under a contract is sufficient consideration for the promise of the other party to forego his [or her] rights. (3 Williston on Contracts, § 1826.)” State, ex rel., 154 Kan. at 758.
Here, there was sufficient consideration for the agreements of rescission because both the Thyes and Newcastle agreed to release their rights and interests in the contract and to release each other from any liability under the contract. In addition, Newcastle provided consideration by promising to pay $20,000 to the Thyes for the improvements, upgrades, and additions made to the property, and the Thyes agreed that such improvements, upgrades, and additions would remain with the property and become the property of Newcastle.
Once the Thyes and Newcastle executed the agreements of rescission, neither party owed any other duties under the May 2005 contract or under any additions, addendums, or extensions to the contract. Moreover, the Thyes and Newcastle agreed to
“release} the other from any liability, claim, for damages and damages, that they now have or may in the future have against any party to this Agreement arising out of the Residential New Construction Contract dated May 17, 2005, and any additions, addendums or extensions thereto and for any items the [Thyes] added to said house.” (Emphasis added.)
Under the plain terms of the cancellation and release agreements, the Thyes owed no further duties under the May 2005 contract and could not be held hable for any claim for damages arising out of the May 2005 contract and any items that the Thyes added to the house. Thus, the Thyes could not be held hable by Newcastle for any alleged breach of the May 2005 contract or for any additions that they made to the construction of the house at 2250 Valley View Drive.
D. Fraudulent Inducement
In an apparent attempt to get around the rescission agreements, Newcastle argued before the trial court, at the summary judgment stage, that the Thyes had fraudulently induced it to enter into the rescission agreements. There are two problems with this argument. First, Newcastle did not properly plead this cause of action for fraudulent inducement. Second, the evidence presented by Newcastle at the summary judgment stage failed to establish a genuine issue of material fact as to the elements of fraud.
1. Failure to Plead Fraudulent Inducement with Particularity
Early on in the case, in its answer to Newcastle’s amended petition, the Thyes asserted the defense that Newcastle had failed to adequately state a claim for fraud with particularity against them. Later, at the hearing on the motion for summary judgment, the Thyes again asserted that Newcastle never met the specificity in pleading requirements for fraud. This same argument is made by the Thyes in their appellate brief.
Generally, the Kansas Rules of Civil Procedure permit notice pleading. In other words, a pleading is sufficient if it contains “[a] short and plain statement of the claim showing that the pleader is entitled to relief’ and “a demand for judgment.” K.S.A. 60-208(a). Notwithstanding the general liberality of notice pleading, a plaintiff alleging fraud as a cause of action must state the circumstances constituting fraud with particularity. K.S.A. 60-209(b).
Kansas case law demonstrates that the statutory requirement to plead fraud with particularity is strictly enforced. See Palmer v. Brown, 242 Kan. 893, 901, 752 P.2d 685 (1988) (upholding dismissal of fraud claim for failure to plead fraudulent inducements with particularity); McGill v. Kuhn, 186 Kan. 99, 104, 348 P.2d 811 (1960) (holding that fraud claim was insufficiently pled because it did not allege knowledge by plaintiffs of alleged intent to defraud defendant); Vondracek v. Mid-State Co-op, Inc., 32 Kan. App. 2d 98, 103, 79 P.3d 197 (2003) (where petition stated pled only two elements of fraud with particularity, trial court did not err in granting summary judgment for failing to plead fraud with particularity).
According to the Pattern Instructions for Kansas, PIK Civ. 4th 127.40, the essential elements required to sustain an action for fraud are:
“1. That false (or untrue) representations were made as a statement of existing and material fact.
“2. That the representations were known to be false (or untrue) by the party making them, or were recklessly made without knowledge concerning them.
“3. That the representations were intentionally made for the purpose of inducing another party to act upon them.
“4. That the other party reasonably relied and acted upon the representations made.
“5. That the other party sustained damage by relying upon them.
“A representation is material when it relates to some matter that is so substantial as to influence the party to whom it was made.”
In alleging its action for fraud against the Thyes, Newcastle made conclusory statements that merely set forth the elements of fraud and did not state with particularity the circumstances constituting fraud. Specifically, Newcasde outlined its fraud claim as follows:
“31) Newcastle adopts by reference, all allegations contained in paragraphs 1 through 30, above, as though fully set forth herein.
“32) That false or untrue representations were made by the Thyes as a statement of existing and material fact to Newcastle concerning the Thyes Agreement.
“33) That the representations made by the Thyes concerning the Newcastle were known by them to be false or untrue . . . when they made them.
“34) That the representations were intentionally made by the Thyes for the purpose of inducing Newcastle to act upon them.
“35) That Newcastle reasonably relied and acted upon the representations made [by] the Thyes concerning the Thyes Agreement.
“36) That Newcastle sustained damage by relying upon the representations made by the Thyes concerning their agreement with Newcastle.”
Although Newcastle specifically adopted by reference the allegations contained in paragraphs 1 through 30, none of those allegations even mention the February 2006 cancellation and release agreements, which are what Newcastle now seeks to avoid with its fraudulent concealment claim. There are no allegations within Newcastle’s fraud claim or the previous paragraphs as to what false or untrue representations were made by the Thyes. In addition, there are no particular facts or circumstances alleged regarding what representations induced Newcastle to enter into the February 2006 cancellation and release agreements. Finally, Newcastle has not set forth particular facts or circumstances as to how it justifiably relied on the Thyes’ representations or as to its damages in this case. As a result, Newcastle failed to meet the specificity in pleading requirements for its fraudulent concealment claim.
2. No Genuine Issue of Material Fact as to Fraudulent Inducement
In addition, based upon Newcastle’s argument before the trial court and the evidence presented at the summary judgment stage, Newcastle failed to establish a genuine issue of material fact as to some of the elements of fraudulent concealment, including that a false or untrue representation was made by the Thyes, and that Newcastle sustained damages by reasonably relying and acting upon the false or untrue representation made.
a No False or Untrue Representation Made
Newcastle apparently argued before the trial court that the Thyes had made a false or untrue representation that they wanted to rescind the contract because the construction had not been completed by the second extension date of January 23, 2006. The evidence presented at the summaiy judgment stage, however, failed to show that the Thyes had made a false or untrue representation.
Based on the evidence presented by the parties, the Thyes had agreed to two extensions of the construction completion date, but they refused to agree to a third extension of the construction completion date. The Thyes’ realtor contacted Barnes and requested that Newcastle let them out of the contract based on Newcastle’s unwillingness or inability to complete the home. The construction completion date, January 23, 2006, came and went without the construction being completed. The Thyes and Newcastle later entered into the rescission agreements to cancel and rescind the May 2005 sales contract and its additions, addendums, and extensions.
Newcastle points to no false or untrue representations that were made by the Thyes. The facts presented by the parties were that the Thyes would not agree to a third extension date, that the construction was not completed by the second extension date of January 23,2006, and that the Thyes wanted out of the May 2005 sales contract. Under those facts, Newcastle has not shown any false or untrue representations made by the Thyes.
b. No Reasonable Reliance to Newcastle’s Detriment
Additionally, Newcastle has not shown that it sustained damages by reasonably relying upon any representations made by the Thyes.
In Barnes’ affidavit, he alleged that as a result of rescinding the contract, he had sustained damages in excess of $63,300. Barnes asserted that this money had been used “to pay for the extras that had been improperly included in the construction of the Newcastle home and to pay contractors to come in and finish the work that Alpha Home and/or Thomas Dressier failed to complete.” Further, in arguing before the trial court, Newcastle’s attorney contended that the Thyes’ additions to the construction plans constituted a breach of the May 2005 sales contract. Newcastle’s attorney also contended that the $20,000 it paid to the Thyes under the second rescission agreement was part of its damages in the case.
Nevertheless, upon signing tire rescission agreements, Newcastle (through Barnes) had notice that the Thyes had made additions to the property at 2250 Valley View Drive. Specifically, the second cancellation and release agreement provided as follows:
“4. The Seller will pay to the Buyers the sum of $-18,000 $20,000.00 [amended/ initialed by parties] upon execution of this Agreement by all parties. All upgrades, additions and other improvements to the home located at 2250 Valley View Drive, Tonganoxie, Leavenworth County, Kansas 66086, shall remain with the real property and become the property of the Seller. This includes the wooden fence that fences a portion of the yard at 2250 Valley View Drive, Tonganoxie, Leavenworth County, Kansas 66086.”
Moreover, there was also evidence that Barnes had been at the property at 2250 Valley View Drive during January 2006 when the Thyes were painting the property. Indeed, Barnes exclaimed that the home could not be completed by the second extended closing date of January 23, 2006.
With this information, Barnes had the knowledge that the Thyes had allegedly gone outside of the contract and made additions to the construction plans. Barnes cannot now argue that the Thyes were not allowed, under the contract, to make the additions to the contract when he signed off on the rescission agreement that specifically stated that he was paying $20,000 for the improvements to the property. Moreover, as discussed previously, Newcastle has not even brought forth the May 2005 sales contract to show that the Thyes went outside of the terms of the contract.
Further, as an experienced contractor for the sales and construction of custom-built homes, Barnes, as the principal and agent of Newcastle, would have been able to inspect the property and determine that additional work and repair of the Thyes’ additions to the construction plans would need to be done before the property could be sold. See Katzenmeier v. Oppenlander, 39 Kan. App. 2d 259, 268, 178 P.3d 66, rev. denied 286 Kan. 1178 (2008) (in determining that the plaintiff purchasers could not reasonably rely on the representations of the defendant seller, this court considered the fact that the plaintiffs were experienced owners and managers of multifamily dwellings); Boegel v. Colorado Nat'l Bank of Denver, 18 Kan. App. 2d 546, 549-52, 857 P.2d 1362, rev. denied 253 Kan. 856 (1993) (in case involving fraudulent concealment claim, this court determined that it would have been -reasonable for plaintiff, who was experienced irrigation farmer and experienced businessman in seed and fertilizer business and custom farming business, to inspect irrigation equipment while it was operating and to ask questions about wells before purchasing property).
Based on the uncontroverted evidence in this case, Barnes would have had complete access to the property by January 23, 2006, to determine what additional work would need to be done to complete the construction. Barnes’ affidavit established that Dressier pulled his workers from the construction project on January 18, 2006. Further, Barnes apparently concedes that the construction was not completed by January 23, 2006, and that the closing did not occur. Barnes maintained in his affidavit that the painting done by the Thyes to the interior of the house was of such a shoddy condition that the entire interior of the house had to be professionally repainted. If this were true, Barnes should have been put on notice that additional work would need to be performed on the house in order to sell it to another purchaser. As an experienced contractor of the construction of the house, Barnes should have been able to ascertain what had been done to the house, what had been done in contravention of the Thyes’ and Alpha Homes’ contracts with Newcastle, and what still needed to be completed or repaired before he entered into the rescission agreements.
In summaiy, any reliance by Barnes was unreasonable. As stated earlier, he had no right to rely that no improper upgrades had been made to the house when the alleged upgrades were within his knowledge before he signed the rescission agreements on Februaiy 13, 2006, and paid the Thyes $20,000 for the alleged upgrades. Under the circumstances present in this case, Newcastle has not established a genuine issue of material fact that it sustained damages by reasonably relying upon any representations made by the Thyes.
E. Avoidance
Finally, it is apparent that the doctrine of avoidance, as set forth in Restatement (Second) of Contracts § 381 (1979), would bar Newcastle’s attempts to avoid the February 2006 rescission agreements.
Under Restatement § 381(2), “[t]he power of a party to avoid a contract for misrepresentation or mistake is lost if after he knows of a fraudulent misrepresentation or knows or has reason to know of a non-fraudulent misrepresentation or mistake he does not within a reasonable time manifest to the other party his intention to avoid it.” Restatement § 381, comment a, further explains: “A party who has the power to avoid a contract may lose that power by delay alone, even without such conduct as amounts to affirmance (§ 380). Under the rule stated in this Section the power is lost if it is not exercised within a reasonable time.”
The application of this doctrine to contracting parties is contained in an example set forth in Illustration 1 to Restatement § 381:
“1. A is induced by B’s misrepresentation to contract in January to sell B 1,000 shares of stock in the X Corporation for $100,000, delivery and payment to be on Mayl. A discovers the fraud in February but does not manifest his intention to avoid tire transaction until April. In view of the extent to which A’s delay of two months enabled him to speculate at B’s expense, A has lost his power of avoidance, and his manifestation is not effective to avoid the transaction.”
Here, similar to the above illustration, Newcastle claims that it was induced by the Thyes’ misrepresentations to contract in February 2006 to rescind the May 2005 sales contract. Newcastle should have discovered the alleged fraud and damages at the very latest when it was doing the extra work on the property, which would have occurred between the time when Barnes signed the February 2006 rescission agreements and when Newcastle sold the property on March 16, 2006. Newcastle, however, did not file suit and manifest its intention to avoid the February 2006 rescission agreements until June 2007. In view of Newcastle’s delay of 16 months in attempting to avoid the rescission agreements, Newcastle lost its power of avoidance. As a result, its attempt to avoid the rescission agreements were not effective.
If Newcastle wanted to avoid the February 2006 rescission agreements, it could have contacted the Thyes in February or March 2006 when it was doing all the extra work on the property to sell it. At that point, Newcastle would have been aware of the extra money that it had “to pay contractors to come in and finish the work that Alpha homes and/or Thomas Dressier failed to complete” and of any additions that the Thyes had made that were not authorized by the contract. Newcastle could have offered to tender the custom-built home back to the Thyes and place them in the same position that they had been in before the rescission agreements were signed. Nevertheless, it seems that Newcastle chose to make the improvements and to speculate on getting a better sale price for the property, which, in fact, it ultimately did receive. As a result, Newcastle should not be allowed, 16 months after the February 2006 rescission agreements were signed, to avoid the agreements and claim that the Thyes breached the May 2005 sales contract. See Hoke v. Stevens-Norton, Inc., 60 Wash. 2d 775, 778-79, 375 P.2d 743 (1962) (where defendant failed to make demand upon defendant for rescission when he learned true character of transaction, he waived any right to rescind or for damages).
F. Reinstatement of Appeal
Next, the Thyes contend that Newcastle’s appeal, after being dismissed by the trial court, was never properly reinstated under Supreme Court Rule 5.01 (2009 Kan. Ct. R. Annot. 33) and Rule 5.051 (2009 Kan. Ct. R. Annot. 36). Therefore, the Thyes argue that the present appeal should be dismissed for lack of jurisdiction.
The right to appeal is purely statutoiy, and if the record shows that the appellate court does not have jurisdiction, the appeal must be dismissed. Alliance Mortgage Co. v. Pastine, 281 Kan. 1266, 1271, 136 P.3d 457 (2006). Whether jurisdiction exists is a question of law over which an appellate court’s scope of review is unlimited. Shipe v. Public Wholesaler Water Supply Dist. No. 25, 289 Kan. 160, 165, 210 P.3d 105 (2009). An appellate court has a duty to question jurisdiction on its own initiative. When the record discloses a lack of jurisdiction, it is the duty of the appellate court to dismiss the appeal. State v. Gill, 287 Kan. 289, 294, 196 P.3d 369 (2008).
Here, Newcastle filed its notice of appeal from the trial court’s March 17, 2009, written decision granting summary judgment to the Thyes on April 20, 2009. On July 15, 2009, the Thyes moved to dismiss Newcastle’s appeal based on Newcastle’s failure to timely file the docketing statement. The Thyes argued that as of the date of the filing of their motion to dismiss, Newcastle’s docketing statement was over 2 months out of time. On October 8, 2009, the trial court filed a journal entry in which it dismissed Newcastle’s appeal based on its failure to timely file a docketing statement.
On September 23, 2009, Newcastle filed a second notice of appeal from the trial court’s March 17, 2009, decision. On October 14, 2009, Newcastle filed its docketing statement. On November 20, 2009, the Thyes moved for an involuntary dismissal of Newcastle’s appeal. The Thyes argued that this court should dismiss Newcastle’s appeal because Newcastle had not objected to the dismissal of its appeal and had not moved for reinstatement of its appeal under Rule 5.051.
In its written response to the Thyes’ motion for involuntary dismissal, Newcastle contended that when it filed its April 2009 notice of appeal, such notice was premature as there were still claims pending against Dressier and Alpha Homes in the case. Indeed, Dressier was not dismissed from the action until May 13, 2009. The remaining claims against Alpha Homes were resolved by default and were reduced to a judgment on August 28, 2009.
This court denied the Thyes’ motion to dismiss and determined that this court did not obtain jurisdiction until a final judgment was entered on August 28, 2009. This court further noted that the Thyes’ motion to dismiss was unsigned.
K.S.A. 2009 Supp. 60-2102(a)(4) gives this court jurisdiction to review “[a] final decision in any action, except in an action where a direct appeal to the supreme court is required by law.” A final decision generally disposes of the entire merits of the case and leaves no further questions or the possibility of future directions or actions by the court. Varney Business Services, Inc. v. Pottroff, 275 Kan. 20, 29, 59 P.3d 1003 (2002). In addition, in any appeal or cross-appeal from a final decision, any act or ruling from the beginning of the proceedings shall be reviewable. See K.S.A. 2009 Supp. 60-2102(a)(4).
K.S.A. 2009 Supp. 60-2102(c) sets out a procedure for making application for an interlocutory appeal, and this court has the discretion to permit or deny the application. Rodriguez-Tocker v. Estate of Tocker, 35 Kan. App. 2d 15, 24-25, 129 P.3d 586, rev. denied 281 Kan. 1379 (2006). Nevertheless, no application for an interlocutory appeal was made in this case. Moreover, although the trial court has the option of granting a K.S.A. 60-254(b) certificate, that is, “the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment,” the court did not issue a K.S.A. 60-254(b) certificate in this case. As a result, the time for Newcastle to file an appeal in this case was 30 days from the entry of the final judgment.
Here, the final judgment disposing of all claims in the case was not entered until August 28, 2009, when the trial court entered a default judgment against Alpha Homes. Thus, when Newcastle filed its first notice of appeal on April 2009, there was no final judgment from which to appeal.
Under Rule 2.03 (2009 Kan. Ct. R. Annot. 10), a premature notice of appeal is to be treated as if the notice of appeal had been filed simultaneously with the entry of judgment:
“A notice of appeal filed subsequent to an announcement by the judge of the district court on a judgment to be entered, but prior to the actual entry of judgment as provided in K.S.A. 60-258, shall be effective as notice of appeal under K.S.A. 60-2103 if it identifies the judgment or part thereof from which the appeal is taken with sufficient certainty to inform all parties of the rulings to be reviewed on appeal. Such advance fifing shall have the same effect for purposes of the appeal as if the notice of appeal had been filed simultaneously with the actual entry of judgment, provided it complies with K.S.A. 60-2103(b).”
Our Supreme Court has extended Rule 2.03 to hold that “if a judgment is entered disposing of all claims against one of multiple parties, and a premature notice of appeal has been filed and has not been dismissed, then a final judgment disposing of all claims and all parties validates the premature notice of appeal concerning the matters from which the appellant appealed.” Honeycutt v. City of Wichita, 251 Kan. 451, 462, 836 P.2d 1128 (1992). Thus, under Honeycutt, Newcastle’s April 2009 notice of appeal, if it had not been dismissed by the trial court, would have been validated when the trial court filed its final judgment that finally disposed of all claims in the case on August 28, 2009.
Because the trial court in this case dismissed Newcastle’s April 2009 notice of appeal, it was proper for Newcastle to file a new notice of appeal after the trial court entered a final judgment in the case. Newcastle’s September 2009 notice of appeal was properly filed within 30 days from “entry of the judgment” as required by K.S.A. 60-2103(a) and adequately satisfied ihe requirements of K.S.A. 60-2103(b). Under such circumstances, this court had jurisdiction over Newcastle’s appeal.
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Leben, J.:
David Karson’s pickup truck was searched in 2007 after a police officer arrested him on a warrant. At the time, pretty much all courts in the United States — and certainly those with jurisdiction over Kansas police officers — said it was legal to search the passenger compartment of a car any time one of its occupants was arrested. Drugs and drug paraphernalia were found in Karson’s truck, and he was convicted of drug charges.
But in 2009, the United States Supreme Court concluded that a vehicle could not be searched merely because an occupant had been arrested when, as was true in Karson’s case, the defendant was already handcuffed and in the back of a patrol car. Karson now argues that the evidence against him should have been excluded because his constitutional rights were violated. But the purpose of the exclusionary rule is not served here: we cannot fault law-enforcement officers for following the law as it was being uniformly interpreted by the courts at the time. The purpose of the exclu sionary rule is to deter wrongful conduct by police, not to suggest that they should be leery of following what courts have told them is the law. We therefore conclude that the good-faith exception to the exclusionary rule applies here, and we affirm the defendant’s convictions.
The facts of Karson’s case are simple and undisputed. Karson parked his pickup at a Quik Trip, where an officer performed a routine check on the license plate. During that check, the officer found that it was registered to Karson and that Karson had an outstanding arrest warrant for a traffic violation. After securing Karson in the back of the officer’s patrol car, the officer searched Karson’s pickup.
Let’s review the legal landscape at the time of the search. The Fourth Amendment protects our right to be secure in our persons, houses, papers, and effects against unreasonable searches and seizures. Caselaw interpreting the Fourth Amendment tells us that a search without a warrant is unreasonable unless it falls within one of several limited, well-defined exceptions to the warrant requirement. State v. Thompson, 284 Kan. 763, Syl. ¶ 11, 166 P.3d 1015 (2007). Because Section 15 of the Kansas Constitution Bill of Rights has been interpreted to provide the same protection as the Fourth Amendment, Thompson, 284 Kan. 763, Syl. ¶ 15, we are primarily guided by United States Supreme Court decisions when determining the somewhat subjective question of what is an unreasonable search. As of 2007, there were three United States Supreme Court decisions relevant to Karson’s situation: Chimel v. California, 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034 (1969); New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860 (1981); and Thornton v. United States, 541 U.S. 615, 158 L. Ed. 2d 905, 124 S. Ct. 2127 (2004).
In Chimel, the Court ruled that officers couldn’t search an entire home when arresting the owner on a burglary charge. The Court held that a search incident to arrest was limited to a search of the person “to remove any weapons” and “to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.” 395 U.S. at 763. Under the same rationale of officer safety and preserving evidence, an officer could also search the area around an arrestee for weapons or evidence because those items could easily be reached. But the Court held that an officer could not justify “routinely searching any room other than that in which an arrest occurs — or, for that matter, searching through all the desk drawers or other closed or concealed areas in that room itself.” For that sort of search, a warrant would be required. 395 U.S. at 763.
In Belton, an officer stopped a car for speeding and smelled burnt marijuana when he approached the car to check the driver’s license and registration. The officer had all four men.in the car step out, and he then searched the passenger compartment of the car, including a closed pocket in Belton’s jacket, where he found cocaine. Much as Chimel had held that an officer arresting a person in a home couldn’t open a drawer searching for evidence, the New York Court of Appeals held that an officer couldn’t search the contents of a car — or the pocket of a jacket found there — without a warrant after the occupants had been removed. But the Supreme Court didn’t agree, even though it also didn’t overrule Chimel. 453 U.S. at 457-58, 460.
The Court noted that lower courts had split on whether an officer could search a car incident to an arrest when the arrestee was no longer in the car. The Court concluded that both citizens and police needed a “workable definition of ‘the area within the immediate control of the arrestee.’ ” 453 U.S. at 460. In order to create a workable guide, the Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” 453 U.S. at 460. The Court also ruled that the officer could search “any containers found within the passenger compartment, for if the passenger compartment is within the reach of the arrestee, so also will containers in it be within his reach. [Citations omitted.]” 453 U.S. at 460. Thus the Court approved the search of Belton’s zippered jacket pocket, even though Belton was no longer in the car. 453 U.S. at 459-61.
In Thornton, two justices criticized the theoretical tension between Chimel, which based its exception to the warrant requirement on the needs either to protect officer safety or to preserve evidence that might easily be concealed or destroyed. 541 U.S. at 625-33 (Scalia, J., concurring, joined by Ginsburg, J.). But a five-member majority applied Belton and decided that even when the person arrested was outside the car when the officer first approached him, the Belton rule allowed search of the car after the arrest. The Court said that “[t]he need for a clear rule, readily understood by police officers and not depending on differing estimates of what items were or were not within reach of an arrestee at any particular moment, justifies the sort of generalization which Belton enunciated.” Therefore, “[s]o long as an arrestee is the sort of ‘recent occupant’ of a vehicle such as petitioner was here, officers may search that vehicle incident to the arrest.” 541 U.S. at 622-24.
So as of 2007, when an officer searched Karson’s pickup, the Court had announced a rule in Belton that allowed the search of the passenger compartment, including containers found there, whenever an occupant had been arrested. And in Thornton, the Court had applied that rule even when the person arrested had first been approached by an officer outside the car, given the need for a clear rule police officers could follow.
How was the Belton rule understood in 2007 by courts below the United States Supreme Court? Both the Kansas Supreme Court and the United States Court of Appeals for the Tendí Circuit, the two courts whose decisions effectively govern the work of police officers in Kansas, concluded that Belton set out a clear rule. As our Supreme Court reported in 1995, 14 years after Belton, “Kansas courts have consistendy applied Belton to allow an officer to search the passenger compartment of an automobile when its occupant is arrested.” State v. McClain, 258 Kan. 176, 184, 899 P.2d 993 (1995). Similarly, the Tenth Circuit routinely upheld automobile searches incident to arrest even when the defendant had been secured outside the vehicle before the search and without regard to the nature of the offense for which the defendant had been arrested. E.g., United States v. Humphrey, 208 F.3d 1190, 1202 (10th Cir. 2000); United States v. Lacey, 86 F.3d 956, 971 (10th Cir.), cert. denied 519 U.S. 944 (1996).
So far we have discussed only cases about the reasonableness of an automobile search incident to arrest under the Fourth Amendment or its Kansas counterpart. But there’s also one statutory issue that was in play for a time in Kansas that we must mention. A year after our Supreme Court had noted in McClain the consistent application of Belton to allow car searches incident to arrest, the court recognized that a Kansas statute, K.S.A. 22-2501, contained some limits on police authority not found in Belton. See State v. Anderson, 259 Kan. 16, 19-23, 910 P.2d 180 (1996). That statute limited the permissible scope of searches incident to arrest to ones needed for officer protection, to prevent escape, or to discover “the fruits, instrumentalities, or evidence of the crime.” (Emphasis added.) The driver in Anderson was stopped for a traffic infraction but arrested on an outstanding warrant for another traffic offense. The officer who searched the vehicle had no safety concerns and wasn’t looking for any evidence related to the traffic offense. Therefore, the court held that the search was outside the officer’s statutory authority and thus illegal because it related neither to officer safety nor to “the crime” of arrest. 259 Kan. at 19-20, 24. Later cases confirmed that searches incident to arrest were statutorily limited, when officer safety or prisoner escape weren’t at issue, to “the crime” for which the person had been arrested. E.g., State v. Conn, 278 Kan. 387, Syl. ¶ 2, 99 P.3d 1108 (2004) (search of car not authorized on arrest for driving without valid license or insurance).
The 2006 Kansas Legislature addressed that statutory hurdle to the search for evidence in a car unrelated to an occupant’s specific crime of arrest. It amended K.S.A. 22-2501 to allow search for “evidence of a crime” rather than “evidence of the crime.” (Emphasis added.) L. 2006, ch. 211, sec. 8. Before the Supreme Court’s decision in Arizona v. Gant, 556 U.S. 332, 173 L. Ed. 2d 485; 129 S. Ct. 1710 (2009), no issue involving the amended K.S.A. 22-2501 had reached the Kansas Supreme Court. But our court had concluded that the legislature intended to change the rule in Anderson so that searches incident to an arrest would extend to searches for evidence of any crime, as allowed under Belton. State v. Henning, 38 Kan. App. 2d 706, 171 P.3d 660 (2007), rev’d 289 Kan. 136, Syl. ¶ 6, 209 P.3d 711 (2009) (reversed in light of Gant). Accord State v. Jones, 2009 WL 248100, at *3 (Kan. App. 2009) (unpublished opinion), rev'd and remanded based on Gant and Henning (Kan. October 5, 2009) (unpublished summaiy order); State v. Cannizzo, 2008 WL 4850003, at *4 (Kan. App. 2008) (unpublished opinion).
Thus, as of 2007 when Karson s car was searched, the Belton rule had been recently reaffirmed by the United States Supreme Court in Thornton. Both the Kansas Supreme Court and the Tenth Circuit had consistently apphed Belton, and the Kansas Legislature had amended K.S.A. 22-2501 so that the statute would allow a search to the extent allowed by Belton. Any officer in Kansas would have reasonably understood that he or she could search a car incident to arrest.
Later, in 2009, the United States Supreme Court decided Gant, which is for all practical purposes indistinguishable from Karson’s case. The Court held that, with one exception, you can’t search a car merely because an occupant has been arrested when the arrestee has already been secured outside the car. The single exception is when it’s reasonable to expect that evidence relevant to the crime of arrest may be found in the car. 556 U.S. at 341-43. Under Gant, the search of Karson’s car can’t be upheld under the search-incident-to-lawful-arrest exception to the warrant requirement: Karson had been secured in a police car before his vehicle was searched, and there was no reason to believe that any evidence would be found in the vehicle that was related to the crime for which he was arrested (a preexisting traffic warrant).
Karson argues that the Gant holding must be apphed to all other cases that, like his, were still pending on appeal when Gant was decided. Karson is right about that. See Griffith v. Kentucky, 479 U.S. 314, 327-28, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987). But that only answers whether the officer’s conduct was unreasonable under the Fourth Amendment: It was. That doesn’t tell us the answer to a second question: Must the evidence found from this illegal search be excluded at trial?
The United States Supreme Court has made clear in several cases that even though a search may have been constitutionally impermissible, the evidence may yet be admissible. In United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984), the Court established the good-faith exception to the exclusionary rule, declining to exclude evidence when police reasonably relied upon a warrant later declared invalid. The rationale? The exclusionary rule “cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity.” 468 U.S. at 919. In its exclusionary-rule cases, the Court has applied the rule and allowed the admission of evidence obtained in violation of the defendant’s constitutional rights when police relied upon:
• an apparently valid search warrant that was later held not to have been based on sufficient probable cause for its issuance by a magistrate, Leon, 468 U.S. at 926;
• an apparently valid search warrant that was later held invalid due to the magistrate’s failure to cross out extraneous language on the warrant when the magistrate had told the officer executing the warrant that the magistrate would conform the draft warrant presented to him to legal requirements, Massachusetts v. Sheppard, 468 U.S. 981, 82 L. Ed. 2d 737, 104 S. Ct. 3424 (1984);
• an erroneous record entered by a court employee stating that a warrant was outstanding for a person’s arrest, Arizona v. Evans, 514 U.S. 1, 131 L. Ed. 2d 34, 115 S. Ct. 1185 (1995);
• an erroneous record entered by a police record keeper stating that a warrant was outstanding for a person’s arrest, Herring v. United States, 555 U.S. 135, 172 L. Ed. 2d 496, 129 S. Ct. 695 (2009); and
• an apparently valid statute that was later held unconstitutional, Illinois v. Krull, 480 U.S. 340, 349-53, 94 L. Ed. 2d 364, 107 S. Ct. 1160 (1987).
In the most recent of these decisions, Herring, the Court extended its earlier holding in Evans, in which police reliance on negligent record keeping by a court employee was held objectively reasonable, to police reliance on negligent record keeping by a fellow law-enforcement employee. The Court noted that the benefits of deterrence must outweigh the cost of excluding evidence for the exclusionary rule to be applied. Herring, 555 U.S. at 141. Of course, what we’re trying to deter is future constitutional violations, an objective the Court has said is furthered only when officers either have knowledge that their conduct is unconstitutional or may properly be charged with that knowledge. 555 U.S. at 143. Thus, when the police record-keeping error resulted from a single negligent act, with no evidence of systematic record-keeping errors, the Court concluded that the police error was not sufficiently culpable to merit the exclusion of evidence to deter similar mistakes in the future: “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” 555 U.S. at 144.
The essence of the Court’s good-faith cases is that the exclusionary rule is based on its deterrence of misconduct, and when officers are acting in an objectively reasonable manner, there’s no misconduct to deter by excluding evidence in criminal trials. Surely police reliance on settled caselaw is objectively reasonable.
The Court’s cases have also made clear that it ordinarily makes no sense to apply the exclusionary rule to mistakes of those outside law enforcement, whether it’s a judicial officer, Leon and Sheppard, a judicial employee, Evans, or the legislature, Krull. When, as was the situation for caselaw interpreting Belton, there is a well-settled, established understanding within which officers have acted, “excluding evidence based on judicial error would serve no deterrent purpose.” United States v. McCane, 573 F.3d 1037, 1045 (10th Cir. 2009).
Beyond the bright-line rule of Belton, we noted previously that there was for a time a statutory limitation on police authority to perform searches in Kansas. But that was resolved — as of 2007— with a 2006 statutory amendment to K.S.A. 22-2501 that broadened an officer’s search authority to the constitutional limit set out in Belton. Our court so held, Henning, 38 Kan. App. 2d at 716, 719-20, 722-23, and Krull counsels that the good-faith exception to the exclusionaiy rule applies when an officer relied on a facially valid statute that was later held unconstitutional.
We conclude that a police officer who conducts a search in reasonable reliance upon the settled caselaw of the Kansas Supreme Court and the United States Court of Appeals for the.Tenth Circuit has not engaged in misconduct even if a later United States Supreme Court decision deems the search invalid. Accordingly, under the good-faith exception to the exclusionary rule, evidence found in such a search is not excluded based on the search’s invalidity.
On this issue, we are in accord with the majority of courts, which have concluded that the good-faith exception applies to searches conducted in accordance with the prevailing understanding of the Belton rule before Gant was decided. Compare McCane, 573 F.3d at 1045 (applying good-faith exception); United States v. Davis, 598 F.3d 1259 (11th Cir. 2010) (same); United States v. Allison, 637 F. Supp. 2d 657 (S.D. Iowa 2009) (same); United States v. Lopez, 2009 WL 3112127 (E.D. Ky. 2009) (unpublished opinion) (same); United States v. Schuttpelz, 2010 WL 200827 (E.D. Mich. 2010) (unpublished opinion); United States v. Lee, 2009 WL 3762404 (W.D. Mo. 2009) (unpublished opinion) (same); United States v. Gray, 2009 WL 4739740 (D. Neb. 2009) (unpublished opinion); United States v. Southerland, 2009 WL 5149263 (E.D.N.C. 2009) (unpublished opinion); United States v. Grote, 629 F. Supp. 2d 1201 (E.D. Wash. 2009) (same); People v. Henry, 184 Cal. App. 4th 1313, 110 Cal. Rptr. 3d 85 (2009) (same); Brown v. State, 24 So. 3d 671 (Fla. Dist. App. 2009) (same); Meister v. State, 912 N.E.2d 412, 418 n.l (Ind. App. 2009) (same); State v. Baker, 229 P.3d 650 (Utah 2010) (same); State v. Riley, 154 Wash. App. 433, 225 P.3d 462 (2010) (same); State v. Dearborn, 786 N.W.2d 97 (Wisc. 2010), with United States v. Gonzalez, 578 F.3d 1130 (9th Cir. 2009) (declining to apply good-faith exception); United States v. Peoples, 668 F. Supp. 2d 1042 (W.D. Mich. 2009) (same); United States v. Buford, 623 F. Supp. 2d 923 (M.D. Tenn. 2009) (same); People v. McCarty, 229 P.3d 1041 (Colo. 2010) (same); United States v. Debruhl, 993 A.2d 571 (D.C. 2010) (same); Valesquez v. Com., 2010 WL 567325, at *3 (Ky. App. 2010) (unpublished opinion) (same); People v. Mungo, 792 N.W.2d 763 (288 Mich. App. 167) (same); State v. Johnson, 2010 WL 2730593, at *6-13 (Mo. App. 2010) (unpublished opinion) (same); State v. Harris, 154 Wash. App. 87, 100-01, 224 P.3d 830 (2010) (same). We find the majority's approach (exemplified by the Tenth Circuit’s opinion in McCane) squarely in fine with the Supreme Court’s application of the good-faith exception — and certainly with the rationale for that rule set out in Herring.
Karson has argued that we must rule in his favor to uphold the retroactive application of Supreme Court decisions to cases then pending, and we acknowledge that some courts have agreed with his position. E.g., Gonzalez, 578 F.3d at 1132-33; Johnson, 2010 WL 2730593, at *6-8. But as the Court noted in Herring, “The fact that a Fourth Amendment violation occurred — i.e., that a search or arrest was unreasonable — does not necessarily mean that the exclusionary rule applies.” 555 U.S. at 140. There are two issues to be considered here, not just one. We agree with Karson that the search of his car was unreasonable under Gant — and thus contrary to the Fourth Amendment. We do not agree, however, that the evidence the officer found there should be excluded under the Court’s exclusionary-rule jurisprudence. See Krull, 480 U.S. at 360, 368-69 (applying good-faith exception to allow admission of evidence obtained in reliance on statute declared unconstitutional over dissenting opinion arguing for application of retroactivity doctrine).
The judgment of the district court is affirmed. | [
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McAnany, J.:
This appeal arises out of a dispute between brothers Paul and Earl Kopp over the terms of a contract for the sale of Blackbob Corners, a parcel of commercial real estate in Olathe. Paul, the owner of Blackbob Comers, extended an option to purchase the property to Eagle Management and Investment Co. (Eagle). Eagle assigned its option to Earl and Earl’s wife, Carolyn.
When Earl sought to exercise the option, Paul refused to honor it. Litigation followed. Eventually, the brothers participated in a settlement conference in which they appeared to have setded their differences. Earl, a licensed real estate broker, was to draft the settlement agreement in the form of a real estate contract. Earl prepared the agreement, but Paul disagreed with some of its terms.
The brothers were unable to reconcile their differences over the agreement, so Paul moved to enforce the settlement agreement. The district court determined that an agreement had been reached with respect to all material terms; and those material terms are contained in Earl’s draft of the Contract For Purchase Of Real Estate, the Memorandum For Contract Of Sale, and a red-lined version of the contract. The court then resolved the nonmaterial discrepancies in a manner consistent with what the brothers contemplated at the time of their setdement. The court incorporated a copy of the agreement, as resolved by the court, into the court’s journal entry and concluded that “the sale contract attached hereto reflects the agreement of the parties.” The contract contained the following arbitration provision:
“25. ARBITRATION. If any part of this Agreement is disputed in anyway, or there are any other disputes between the parties arising out of the subject property or any other matter, the parties agree to resolve such disputes by arbitration under the laws of the State of Kansas. If the parties can not agree to an arbitrator, then either party may request the Chief Judge of the Johnson County District Court to appoint an arbitrator. Prior to requesting the appointment of the Arbitrator, the party alleging breach of this Agreement by the other party shall have made written demand for compliance and the other party shall have had at least ten days to take the correcting action, unless such alleged breaching party refuses in writing to comply with the written demand. Each party shall tender one half of the first day’s fees to the Arbitrator before the hearing commences, and meet any other requirements of the Arbitrator. The Arbitrator may award damages, equitable relief, the entire arbitrator’s fees and costs (the same as what would be eligible to be court costs if it was [filed] in Court) to either party as part of the resolution of the matter. However, each party shall be responsible for paying its own attorney fees.”
The contract also contained a provision in which both buyer and seller covenant, represent, and warrant that “[t]his Contract is a valid and binding agreement, enforceable in accordance with its terms.”
Notwithstanding this covenant, representation, and warranty, the parties failed to carry out the terms of the settlement agreement embodied in the real estate contract. The dispute appears to center on provisions in the contract regarding the seller s obligation not to extend or modify the terms of any existing leases to tenants of Blackbob Comers without the written consent of the buyer. The provision in the real estate sales contract prohibits any such changes by the seller “following the execution of this Contract.” Apparently, Earl was concerned that Paul had modified or extended, or intended to modify or extend, the leases of current tenants in a way that would detrimentally affect the rental income stream from the property.
Earl moved to compel arbitration. The court granted the motion and appointed an arbitrator. In doing so the court noted:
“The court does not determine whether the real estate contract embodied in the Order has been effectuated. The court notes that generally a commercial real estate contract is signed by the parties and thereafter the buyer provides an earnest money deposit to effectuate the same. In this case, the parties have neither signed the real estate contract and, more importantly, Plaintiffs have failed to provide the earnest money deposit. Despite this fact, Plaintiffs argued to the court that the contract became effective on the date of the Order. Defendant disagrees. A dispute has arisen between the parties with respect to the effective date of the real estate contract. Moreover, as revealed during the hearing, the parties have numerous disputes involving the real estate contract, its implementation, and the obligations of the parties thereunder.”
The court made no mention of the fact that this was not a typical commercial real estate contract, but rather the embodiment of a settlement reached in a particularly hotly disputed matter that, on at least one occasion, required the presence of sheriff s deputies at a hearing because of threats of violence. Nevertheless, the court also observed:
“By ordering arbitration, the court is not suggesting that the real estate contract is effective as of the date of the Order. Rather, the court is merely recognizing the parties’ prior agreement to submit any disputes to arbitration. Under the arbitration clause, the Arbitrator shall determine the effective date of the real estate contract, if any, as well as all other disputes in this matter.”
The court did not explain its reference to “the parties’ prior agreement.” It is unclear whether this refers to some agreement other than the settlement agreement embodied in the real estate contract that contains an arbitration provision. On appeal, the parties do not direct us to any agreement in the record other than the real estate sales contract which embodies the parties’ setdement agreement.
The arbitrator issued a preliminary ruling. He observed that the district court “prepared the sale contract consistent with all of the terms of the settlement. This is the law of the case.” Nevertheless, the arbitrator found that that the contract was not enforceable because it was not signed by the parties. In the final arbitration order, issued 4 months later after Earl moved for reconsideration, the arbitrator ruled, without explanation, that the real estate contract was “part” of the settlement. The arbitrator found that the contract would not come into being until it was executed by the parties.
Earl moved to vacate the arbitrator’s decision. The court denied the motion, and Earl’s appeal follows.
Earl raises two issues in this appeal which we paraphrase as follows: (1) did the district court err in assigning to the arbitrator an issue the court had already resolved — that the parties had a valid, enforceable agreement; and (2) did the district court err in affirming the arbitrator’s award which found the agreement not to be enforceable, contrary to the district court’s earlier ruling?
As a general rule, when the parties have agreed to submit disputes to arbitration, claims of errors of law and fact or an erroneous decision on matters submitted to the arbitrator are insufficient to invalidate an award fairly made. Nothing relating to the merits of the controversy in the award, even though incorrectly decided, is grounds for setting aside the award absent fraud, misconduct, or other valid objections. In addition, when an award made under the Kansas Uniform Arbitration Act, K.S.A. 5-401 et seq., is attacked by one of the parties, it is not the function of the court to hear the case de novo and consider the evidence presented to the arbitrator. An arbitrator’s award ordinarily will not be subject to judicial re vision unless such award is tainted or based on an irrational interpretation of the contract. Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. 683, 689, 751 P.2d 122 (1988).
Paul relies on the decision of a panel of this court in Packard v. Credit Solutions of America, Inc., 42 Kan. App. 2d 382, 213 P.3d 437 (2009), to support his contention that it was proper for the arbitrator to determine whether the parties had a valid and enforceable agreement. Packard was resolved in reliance upon Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 163 L. Ed. 2d 1038, 126 S. Ct. 1204 (2006). Neither of these cases controls, given the distinctly different posture of the case now before us.
Packard involved a claim by clients against the debt reduction/ resolution service with which they had contracted. The plaintiffs claimed the defendant engaged in deceptive consumer transactions. The defendant moved for arbitration pursuant to the contracts signed by the parties. The plaintiffs resisted, claiming the contracts were void pursuant to the Kansas Consumer Protection Act. Whether the contract was illegal and therefore void and unenforceable turned on resolution of the validity of the very conduct that the plaintiffs challenged, which conduct was a proper issue for arbitration.
In Buckeye, which involved claims that a check-cashing business engaged in usurious and other illegal conduct, the Court was similarly called upon to decide “whether a court or an arbitrator should consider the claim that a contract containing an arbitration provision is void for illegality.” 546 U.S. at 442. The Court explained:
“Challenges to the validity of arbitration agreements ‘upon such grounds as exist at law or in equity for the revocation of any contract’ can be divided into two types. One type challenges specifically the vahdity of the agreement to arbitrate. [Citation omitted.] The other challenges the contract as a whole, either on a ground that directly affects the entire agreement (e.g., the agreement was fraudulently induced), or on the ground that the illegality of one of the contract’s provisions renders the whole contract invalid. . . . [Here,] [t]he crux of the complaint is that the contract as a whole (including its arbitration provision) is rendered invalid by the usurious finance charge.” 546 U.S. at 444.
In a footnote, the Court observed:
“The issue of the contract’s validity is different from the issue whether any agreement between the alleged obligor and obligee was ever concluded. Our opinion today addresses only the former, and does not speak to the issue decided in the cases cited by the respondents (and by the Florida Supreme Court), which hold that it is for the courts to decide whether the alleged obligator ever signed the contract.... [Citations omitted].” 546 U.S. at 444 n.l.
Unlike in Packard and Buckeye, neither party here challenges the validity of the contract or its arbitration provision. Neither party contends that the other has engaged in some illegal conduct which thereby renders the contract illegal and unenforceable. The parties reached a setdement agreement. The court resolved some minor, nonmaterial disputed elements of the setdement agreement and found that the real estate contract attached to the court’s journal entry memorialized the setdement agreement of the parties. In its later arbitration order, the court noted that the journal entry memorializing the settlement agreement “created” the contract between the parties. In Packard, the arbitrator was asked to determine if postcontracting deceptive consumer transactions voided the contracts. In Buckeye, the arbitrator was asked to determine if postcontracting usurious transactions voided the contract. Here, however, the arbitrator was not asked to determine whether conduct of a party after creation of the contract rendered it void and unenforceable. Neither Packard nor Buckeye controls.
This logically leads to Earl’s first issue on appeal — whether the district court erred in assigning to the arbitrator an issue the court had already resolved: whether the parties had a valid, enforceable agreement.
In Chastain v. Robinson-Humphrey Co., Inc., 957 F.2d 851, 854 (11th Cir. 1992), which was specifically cited with approval in Buckeye, the court determined that it was for the district court to determine whether there existed a contract in which the contracting parties agreed to submit disputes to arbitration. Thus, “ ‘the first task of a court asked to compel arbitration of a dispute is to determine whether the parties agreed to arbitrate that dispute.’ ” 957 F.2d at 854 (quoting Mitsubishi Motors v. Soler Chrysler-Plymouth, 473 U.S. 614, 626, 87 L. Ed. 2d 444, 105 S. Ct. 3346 [1985]).
This is consistent with the Kansas Uniform Arbitration Act, K.S.A. 5-401 et seq. Arbitration is predicated upon the existence of an agreement to arbitrate. K.S.A. 5-401. “[I]f the [party opposing a motion to compel arbitration] denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party, otherwise, the application shall be denied.” K.S.A. 5-402(a).
Here, the existence of an arbitration agreement had already been determined by the court when it memorialized the settlement agreement of the parties, which included the arbitration provision, in the court’s revised real estate sales contract. As Paul acknowledges in his appellate brief, the court’s order for arbitration stated that “ ‘the parties’ voluntaiy agreement to arbitrate places directly before the Arbitrator all disputes involving the [September 12, 2006, journal entiy] and the real estate contract it created,.’ ” (Emphasis added.)
In submitting the issue of whether the parties had an enforceable contract, the court created an illogical feedback loop: (1) the parties have a valid contract which contains an arbitration provision; (2) pursuant to the arbitration provision in that enforceable contract, the parties must submit their disputes to arbitration; and (3) in that arbitration, the arbitrator must decide whether the parties have an enforceable contract.
The arbitration agreement is part of the settlement agreement. If the parties have no valid and enforceable settlement agreement, then the parties have no valid and enforceable agreement to arbitrate, and the court had no authority to order arbitration. However, there is no dispute that the parties entered into a setdement agreement which includes the arbitration provision. Unlike in Packard and Buckeye, neither party claims that the other party engaged in some conduct which voided the arbitration agreement they entered into.
The settlement agreement created a valid and enforceable contract. The fact that neither party signed the contract form that was revised by the court to memorialize the agreement of the parties is of no moment.
In In re Marriage of Takusagawa, 38 Kan. App. 2d 401, 409, 166 P.3d 440, rev. denied 285 Kan. 1174 (2007), die court determined that “a signature is unnecessary when there is a court transcript providing the terms of the agreement and the oral assent of the party to be charged with the agreement that has been fairly stated on the record of that proceeding.” The court also noted:
“As a leading contract treatise explains, the ‘signature requirement should be held to be satisfied if the writing contains any sign or symbol identifying its maker so as persuade the court that there is no serious risk of fraud in the . . . allegation that the memorandum was made or adopted by the party charged.’ 4 Corbin on Contracts § 23.4, at 788 [(rev. ed. 1997)].” 38 Kan. App. 2d at 409-10.
Here, in ordering arbitration the court specifically referred to the court’s earlier journal entry of September 12, 2006, as “the Order and the real estate contract it created.” There is no doubt that the court was satisfied that the parties had settled their differences in accordance with the terms of the contract incorporated into the court’s order. The parties affirmed this finding by agreeing to arbitration pursuant to the agreement the court found they had made. Under the circumstances, the lack of signatures on the contract which embodies the settlement reached by the parties does not vitiate the agreement.
We stray from the appellate briefs of the parties only to consider a provision in the real estate sales contract which neither party mentions or discusses, but which we must address. The settlement agreement was drafted in the form of a typical real estate sales contract. The contract contains a number of standardized “boilerplate” provisions, including the following oft-found language preceding the signature lines: “Upon approval of the Contract by both Seller and Buyer, evidenced by their respective signatures hereto, a valid and binding contract of sale shall exist and be effective as of the date this Contract is last executed.” We conclude that this provision does not require the parties to sign the document before a valid and enforceable contract is created, because:
• The court found otherwise when it found that a real estate contract had been created. Neither party has appealed from this conclusion.
• The arbitration agreement which the court enforced is contained only in the contract which was the product of the parties’ settlement agreement. If the arbitration provision is valid and enforceable, the contract which contains it is too.
• The law favors settlements of litigated disputes. Settlements need not be in writing to be effective. Lewis v. Gilbert, 14 Kan. App. 2d 201, 202, 785 P.2d 1367 (1990). The purpose of a negotiated settlement is to end the uncertainty of the prospective outcome, end the cost of litigation, and end the strife that attends a trial. We should, and do, construe settlements in a manner that effectuates these objectives. It is wholly at odds with these objectives to conclude that the parties did not reach a settlement, but rather reached an agreement that at some future date they might enter into a settlement, if they chose to do so, by signing the contract. They either had a deal or they did not. The district court found that they did.
We conclude that the district court erred in assigning to the arbitrator an issue the court had already resolved: the existence of a valid and enforceable agreement between the parties.
We turn to Earl’s second claim of error: that the district court erred in affirming the arbitrator’s award. Absent limited circumstances which do not apply here, the court was obliged to affirm the arbitrator’s award if the arbitrator was acting within the scope of the arbitrator’s authority. City of Coffeyville v. IBEW Local No. 1523, 270 Kan. 322, 336, 14 P.3d 1 (2000).
K.S.A. 5-411 requires the court to confirm an arbitrator’s award unless a timely motion to vacate or modify is filed, in which case either K.S.A. 5-412 (vacating the award) or K.S.A. 5-413 (modifying the award) controls. Here, Earl moved to vacate the award, so we turn to K.S.A. 5-412, which provides five bases for vacating an award. Earl relies on K.S.A. 5-412 (3), as the basis that the arbitrator exceeded his power.
The arbitrator had the power to resolve disputes with respect to the parties’ rights and obligations under the real estate sales contract which embodied the parties’ settlement agreement. Notwithstanding the district court’s directions to the contrary, the arbitrator did not have the power to determine whether the contract (which was the basis for the arbitrator’s power to act) was in force. As discussed earlier, that was a matter for the district court. In ruling on the enforceability of the parties’ contract, the arbitrator exceeded his power. Accordingly, the district court erred in failing to vacate the arbitrator’s award.
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Leben, J.:
Eveiyone agrees that Christopher spanked his daughter, L.E.H., but not everyone agrees that the spanking was child abuse. Her mother, Donna, sought a determination that he had abused L.E.H. The hearing officer who heard the testimony of the mother, father, daughter, and a physician determined that the father had committed abuse, but an agency appeals committee ruled that the evidence was insufficient because (1) the medical doctor “did not testify with 100 percent certainty” that the father s actions had caused the daughter s substantial bruising and (2) no one had shown that the father was a danger to other children. We find that the appeals committee applied a too rigid burden of proof and misread the statute and regulation at issue here; we therefore send this case back to the administrative agency for further proceedings that will apply the proper legal standards.
Factual and Procedural Background
L.E.H. is the daughter of Donna and Christopher, and she lives primarily with Donna. In May 2005, while L.E.H. was on a weekend visit with Christopher when she was 7 years old, she used nail polish while riding in Christopher s car, which was not allowed. Eveiyone agrees that Christopher spanked L.E.H. when they got home. According to the girl, her father spanked her on her bare bottom many times in punishment. Christopher said he spanked her through her clothing more than once but that he couldn’t remember how many times.
After L.E.H. returned to her mother’s home, Donna noticed bruising on the daughter’s buttocks. She took the child to her pediatrician, Dr. Harold Parr, who determined that the bruising was consistent with a spanking and not with an accidental trauma. Dr. Parr reported the incident to law-enforcement authorities, stating: “These bruises could only have been caused by someone using significantly excessive force in the spanking and this type of injury represents child abuse by any definition that I know of.”
The Kansas Department of Social and Rehabilitation Services (SRS) conducted an investigation. Within 2 months, SRS mailed a notice to Donna advising that the allegation of child abuse was unsubstantiated. Donna requested an evidentiary hearing (what SRS refers to as a “fair hearing”), but SRS denied that request. Donna appealed that decision to the Shawnee County District Court, which ordered SRS to hold the requested hearing.
At that hearing, L.E.H. testified that after she had returned home that day, Christopher had spanked her on her bare bottom with his hand “[l]ots” of times. She said she had cried and asked him to stop. She testified that her bottom hurt when she sat down — even when wearing underwear. During cross-examination, though, she said that after the spanking she had played outside on “some big rocks” and slides. But she denied that she had slid down the rocks or fallen down.
Christopher testified that although he couldn’t recall how many times he spanked her, L.E.H. was fully clothed and he only used his hand. He agreed that L.E.H. had cried during the spanking but did not remember her asking him to stop. Christopher said that L.E.H. played with the kids next door later in the day and drat she never complained she had been hurt. Christopher said that the spanking couldn’t have caused the bruising and that the most likely explanation was that she injured herself while playing outside.
Dr. Parr testified that he had examined L.E.H. 3 days after the spanking. He observed no other injuries beyond the bruising to her buttocks. Dr. Parr said he determined that the bruises were consistent with a hand spanking done with excessive force and that they were not consistent with any sort of accidental trauma, such as falling down. But Dr. Parr declined on cross-examination to agree with SRS counsel’s characterization that the doctor had testified on direct examination that the bruising could only have been inflicted by a spanking.
Kolissa Tate, a former SRS employee who had investigated this abuse allegation, said that she had found the allegation unsubstantiated after she and her supervisor concluded that it didn’t meet the criteria for physical abuse under an SRS regulation. She said that she’d seen more significant bruising in other cases and that the photographs of the bruises did not show a hand print or “anything that’s clear and convincingly the result of a spanking.” She said that because no one was with L.E.H. “every minute of the day,” there was no way to know what else had occurred after the spanking. She also said that for abuse to be substantiated, there must be clear and convincing evidence that the perpetrator is a danger to all children, not just the one involved in the allegation.
The administrative hearing officer who heard this testimony entered an initial order finding that the alleged abuse against L.E.H. by Christopher had been established by clear and convincing evidence. But SRS sought review before the agency’s state appeals committee, as provided for in K.S.A. 75-37,121 and 77-527. Based on its review of the record and without oral argument, the com mittee reversed the decision. While it found that L.E.H. had physical injuries to her buttocks and that Dr. Parr s testimony was sufficient to support the position that the injuries were caused by nonaccidental trauma, the committee found that it couldn’t attribute the injuries to an act by Christopher because “Dr. Parr did not testify with 100 percent certainty that the bruising was caused from a spanking.”
The appeals committee concluded that the SRS regulation governing the substantiation of a “perpetrator” of abuse, K.A.R. 30-46-10(j), requires that two things be proven by clear and convincing evidence: (1) that an act of abuse was committed and (2) that the perpetrator is a danger to children generally. See K.A.R. 30-46-10(a) (defining abuse). The committee found that there was clear and convincing evidence that Christopher had spanked L.E.H. and that tire child had bruising on her buttocks. But the committee found that the evidence was insufficient to meet either of the required tests under the regulation. First, the committee found the evidence wasn’t sufficient to conclude that the bruising was caused by the spanking. Second, the committee found that the evidence wasn’t sufficient to conclude that Christopher is a threat to children in general: “One cannot assume that because one child was spanked on one occasion, the perpetrator of the spanking is a danger to all children.” The committee thus found the abuse allegation unsubstantiated.
Donna appealed to the district court, which affirmed the agency finding. The district court noted that the agency’s conclusion that there was insufficient proof that the spanking had caused the bruising was what’s considered a “negative” finding, which meant that it had to be upheld by the court unless tire agency had disregarded undisputed evidence or the agency had been motivated by bias, passion, or prejudice. See General Building Contr., LLC v. Board of Shawnee County Comm’rs, 275 Kan. 525, 541, 66 P.3d 873 (2003). The court said that it was “likely that this Court would not have reached the same conclusion” had it reviewed the matter independently but that it could not overturn the agency’s order under the negative-findings standard. The district court did not determine whether proof that a perpetrator was a danger to all children was required to substantiate an abuse allegation; the court concluded that because the appeals committee “would have reached the same conclusion” whether the test had one part (abuse of one child) or two (abuse of one child plus danger to all children), it did not need to address that legal issue.
Standard of Review
We review the decision of a state agency under the Kansas Judicial Review Act, K.S.A. 77-601 et seq. Donna has the burden to show agency error, which on the facts of this case is argued on primarily three bases: (1) that the agency misinterpreted the law, K.S.A. 77-621(c)(4); (2) that the agency has made a factual finding central to its decision that substantial evidence does not support, K.S.A. 77-621(c)(7); and (3) that the agency’s action is otherwise unreasonable, arbitrary, or capricious. K.S.A. 77-621(c)(8). We are obligated to make an independent determination without any required deference to the district court. See Jones v. Kansas State University, 279 Kan. 128, 140, 106 P.3d 10 (2005).
After appellate briefs were filed, the Kansas Legislature made some changes to the Kansas Judicial Review Act, which were effective July 1,2009. See L. 2009, ch. 109, sec. 28 (amending K.S.A. 77-621). But we must review the administrative action under the statute as it existed when the agency action was taken. Redd v. Kansas Truck Center, 291 Kan. 176, Syl. ¶ 1, 239 P.3d 66 (2010). We therefore review the record to determine whether the agency’s determination was supported by evidence “that is substantial when viewed in light of the record as a whole.” K.S.A. 77-621(a)(7). Thus, we look to determine whether relevant evidence of substance supports the decision, even if there may be some contrary evidence. Redd, 291 Kan. at 183-84. “Substantial evidence . . . furnishes a basis of fact from which an issue can be resolved reasonably.” Graham v. Dokter Trucking Group, 284 Kan. 547, 553, 161 P.3d 695 (2007).
Whether abuse occurred is determined based on the statutes and regulations in effect at the time it allegedly happened. We therefore generally cite in this opinion to the statutes and regulations in effect at that time. Some of the duties of SRS to handle reports of child abuse were then found in the Kansas Code for Care of Children, K.S.A. 38-1501 et seq., which was recodified effective January 1, 2007, as the Revised Kansas Code for Care of Children, K.S.A. 2009 Supp. 38-2201 et seq. For the sections we reference in this opinion from those codes, the newer provisions are essentially the same as their predecessors; we have provided citations to both for the convenience of the reader.
I. SRS Wrongly Interpreted Its Own Regulation to Require that a Person Be a Danger to All Children Before the Person Could Be Substantiated for Committing an Act of Physical Child Abuse.
This case revolves around a series of related statutes and administrative regulations, and one of those regulations is at the center of the dispute. Before we discuss the specific statutes and regulations, we note the role of regulations adopted by an administrative agency and our rules for interpreting them. When an administrative agency adopts a regulation within the agency’s statutory authority, that regulation has the force and effect of law. See K.S.A. 77-425; Tonge v. Werholtz, 279 Kan. 481, 483-84, 109 P.3d 1140 (2005). The parties agree that SRS adopted the regulations at issue in this case within its statutory authority. Courts generally give deference to an agency’s interpretation of its own regulation unless it’s clearly wrong or inconsistent with the regulation. Winston v. Kansas Dept. of SRS, 274 Kan. 396, Syl. ¶ 3, 49 P.3d 1274, cert. denied 537 U.S. 1088 (2002). But when a regulation’s meaning is clear from the plain language used in it, a court generally should give the regulation its plain-language meaning. See Ussery v. Kansas Dept. of SRS, 258 Kan. 187, 194, 899 P.2d 461 (1995).
SRS is charged with the responsibility to receive and investigate reports of child abuse for the purpose of determining whether the report is valid and whether action is required to protect a child. K.S.A. 38-1523(a); see K.S.A. 2009 Supp. 38-2226(a). Moreover, there are ramifications of an SRS finding of abuse beyond determining whether action is required to protect a specific child; thus, these interrelated statutes must be considered when interpreting K.S.A. 38-1523(a). The Kansas Legislature has separately provided that no person running a child-care facility may knowingly let any person who has committed an act of physical, mental, or emotional abuse against a child reside, work, or volunteer at that facility. K.S.A. 65-516(a)(3).
The legislature has also defined what is “[p]hysical, mental or emotional abuse,” which “means the infliction of physical, mental or emotional harm or the causing of a deterioration of a child.” The term includes “maltreatment or exploiting a child to the extent that the child’s health or emotional well-being is endangered.” K.S.A. 38-1502(b); see 2009 Supp. 38-2202(x).
None of these statutes indicate that a person cannot commit abuse unless the person is a danger to all children. Nor does the statute that prevents those who have abused children from involvement in child-care facilities indicate that the person must separately be found to be a danger to all children before the prohibition on child-care involvement kicks in.
SRS contends that this requirement comes from one of its regulations, which has the force of law as we have noted. SRS points to its regulations providing the procedural steps under which it determines whether abuse has occurred. One regulation, K.A.R. 30-46-10(i), provides that a “ ‘[substantiated abuse or neglect’ ” is a report of abuse or neglect that “has been confirmed by clear and convincing evidence.” A separate provision, K.A.R. 30-46-10(j), then defines a “ ‘[substantiated perpetrator’ ” to mean a person who has “committed an act of substantiated abuse or neglect.” That provision goes on to mention “a danger to children,” which SRS cites as the source of a separate legal requirement that a person be found to be a danger to all children before that person may be substantiated as a perpetrator of child abuse:
“ ‘Substantiated perpetrator and ‘perpetrator’ mean a person who has been validated by the secretary or designee, using clear and convincing evidence, to have committed an act of substantiated abuse or neglect, regardless of where the person resides and, consequently, to pose a danger to children. These terms shall replace the term ‘validated perpetrator.’ ” K.A.R. 30-46-10(j).
But the SRS interpretation of this regulation makes no sense under either its plain language or under the statutory framework. SRS ignores the key term: “consequently,” which means “as a re- suit.” American Heritage Dictionary 391 (4th ed. 2006). Replacing “consequently” with “as a result,” the regulation provides, in essence: Substantiated perpetrator means a person who has been validated to have committed an act of substantiated abuse or neglect and, as a result, to pose a danger to children. Under the words used in this SRS regulation, no separate factual element is required that would prove the person is a danger to all children; a person who abuses one child is presumed a risk or danger to other children.
That makes sense under the statutory framework of K.S.A. 65-516(a)(3). We have already noted that the statute provides that a child-care provider may not knowingly allow a person who “has committed an act of physical, mental or emotional abuse or neglect or sexual abuse” to have any involvement with the child-care facility. The statute also has a second requirement, but it is ministerial, not substantive: the person s name must also be “listed in the child abuse and neglect registry” maintained by SRS. The listing requirement suggests nothing more than that SRS has determined by clear and convincing evidence that the person has committed an act of abuse. See K.A.R. 30-46-15; K.A.R. 30-46-16. SRS does not suggest otherwise. The listing requirement also allows a person to obtain removal from the list through expungement after the passage of at least 3 years or upon the discovery of new information. See K.A.R. 30-46-17(a)(l). Nothing in the language used by our legislature in K.S.A. 65-516(a)(3) even hints that a person may be involved with a child-care facility — despite having committed at least one act of child abuse — so long as there hasn’t been a separate finding that the person is a danger to all children.
Of course, SRS does not base its claim on the statutory language. It relies on the language of K.A.R. 30-46-10(j). That language (“consequently, to pose a danger to children”) simply does not support the SRS position for the reasons we’ve already discussed. The district court also considered the provisions of some policy manuals used internally by SRS. We have not relied upon them because they have not been adopted under the procedures used to adopt rules and regulations and thus have no legal effect. See K.S.A. 77-425; Bruns v. Kansas State Bd. of Technical Professions, 255 Kan. 728, Syl. ¶¶ 1-4, 877 P.2d 391 (1994).
We are unable to give any deference to the SRS interpretation of K.A.R. 30-46-10(j) because we find no support for it either in the regulation’s wording or in the related statutory provisions. SRS may have misinterpreted the regulation based on earlier regulations. Before a 2004 amendment, a person could be “substantiated” as having committed abuse if it was more likely true than not that the person had committed abuse (a lesser standard of proof than the present clear-and-convincing-evidence requirement), K.A.R. 30-46-10(e) (2003), and such a person then could be separately “validated” by a separate finding “that a substantiated perpetrator poses a danger to children and should not be permitted to operate, reside in, be employed by, or volunteer” in a child-care facility. K.A.R. 30-46-10(f) (2003). The current version of K.A.R. 30-46-10(j), adopted prior to the alleged abuse against L.E.H., ehminates the separate requirement of validation, explicitly replacing the former term “validated perpetrator” with the terms “substantiated perpetrator” and “perpetrator.” Because no statute or regulation presently in effect supports the SRS position, we find that the agency erred as a matter of law when it ruled that a person must be shown to be a danger to children generally before the person may be substantiated for having committed an act of child abuse.
II. SRS Appears to Have Applied an Incorrect Legal Standard for what Constitutes Clear and Convincing Evidence, So We Remand for Reconsideration Under the Proper Standard.
SRS had to determine whether Christopher committed abuse against L.E.H. K.S.A. 38-1502(b) provides that abuse includes “the infliction of physical, mental or emotional harm,” and an SRS regulation, K.A.R. 30-46-10(a)(2), provides that abuse includes “any act. . . that results in . . . physical injury.” The SRS appeals committee concluded that L.E.H. sustained “physical injuries to her buttocks,” a finding that has not been appealed. Thus, the only factual matter at issue on appeal is whether that physical injury was caused by the spanking Christopher gave her.
To find that substantiated abuse has occurred, SRS requires that the evidence be clear and convincing. See K.A.R. 30-46-10(j). After the SRS appeals committee made its decision in this case, our Supreme Court decided In re B.D.-Y., 286 Kan. 686, 187 P.3d 594 (2008), which set out a new standard for determining when evidence meets the level of clear and convincing proof. Under B.D.Y., clear and convincing evidence shows that the truth of the facts asserted is highly probable. 286 Kan. 686, Syl. ¶ 3. The SRS appeals committee did not provide any description of the way it understood the clear-and-convincing-evidence standard. In its brief on appeal, SRS argues for a very high standard, citing a definition from a decades-old edition of Black’s Law Dictionary, which defined “clear and convincing proof’ as “proof beyond a reasonable, i.e., a well-founded doubt.” Black’s Law Dictionary 317 (rev. 4th ed. 1968). But the Kansas Supreme Court held in B.D.-Y. that the clear-and-convincing-evidence standard is an intermediate standard of proof between the preponderance standard (more likely than not) and the beyond-a-reasonable-doubt standard used in criminal cases and cited in SRS’s appellate brief. See 286 Kan. 686, Syl. ¶ 2.
It thus appears likely that the SRS appeals committee applied a more difficult standard than is required by B.D.-Y. Dr. Parr said in his written report that “these bruises could only have been caused by someone using significantly excessive force in the spanking.” He then testified that he observed bruising, but no scratches, when he examined L.E.H. He concluded that the injuries weren’t caused by accidental trauma, like falling on rocks: “I can’t think of a scenario where this could occur in an accidental trauma.” Dr. Parr also testified about how he believed the marks shown in a photograph matched what would have occurred through a spanking.
The SRS appeals committee emphasized in its decision that “Dr. Parr did not testify with 100 percent certainty that the bruising was caused from a spanking.” That conclusion is based upon a portion of the cross-examination of Dr. Parr, in which he refused to accept the SRS attorney’s characterization of his earlier testimony:
“Q. I was not able to see the demonstration that you made, so I’m going to walk you through it again. And it’s your contention that you believe that these injuries were caused by a hand print or a hand spanking?
“A. A hand spanking, yes.
“Q. Where do you see a palm and the fingerprints in this particular picture?
“A. Well, I don’t see a palm or fingerprints. What I see is these two parallel lines here (indicating) which, as I said before, if her buttocks [were] clenched could approximate somewhat and the palm of the hand could have produced that sort of an injury. And then these linear marks here (indicating) would be consistent with the fingers.
“Q. So you think these are finger marks?
“A. Correct.
“Q. Not a palm print?
“A. Correct.
“Q. Where’s the palm print? Here in the middle?
“A. I think the palm did that. I’m not saying that’s a palm print.
“Q. Then what are these over here (indicating)?
“A. Well, those could also be caused by the palm of a hand.
“Q. And these were approximately how old? When did the injuries—
“A. A few days. Less than a week.
“Q. Now, in your testimony before the Court previously you were not as— you said that there are other circumstances that could have caused these. Do you remember your testimony?
“A. I can’t say that I do.
[Objection omitted.]
“Q. So you’re unequivocal in your position that these could only have been inflicted by a spanking to the buttocksP
“A. No, that’s not what I said.
“Q. Okay. Then what did you say?
“A. I said that the injuries are consistent with the — with the little girl’s testimony, what she told me. It wasn’t testimony, what she — her history that she gave to me.” (Emphasis added.)
In context, Dr. Parr appears to have testified that it was highly probable that L.E.H.’s bruising was caused by a spanking. AH parties agreed she had been spanked, and everyone agreed that Christopher had spanked her. Dr. Parr did not rule out all other possibilities, but he could not even think of a way in which the bruising could have been caused in a nonaccidental manner. No one suggested anyone other than Christopher who could have intentionally caused any physical injury or harm to L.E.H.
The SRS appeals committee did not provide any indication either how it understood the clear-and-convincing-evidence standard or why it concluded that the evidence was insufficient to meet it. Based on our review of the entire record, see K.S.A. 77-621(c)(7), we think it likely that the committee applied a higher, more difficult burden of proof than called for under B.D.-Y. We do not believe we should analyze that issue further, however, without a better understanding of the position of the appeals committee. After all, it is the responsibility of the administrative agency, not this court, to make the factual findings in this case. When we perceive that the agency’s factual findings have been made under an incorrect standard, however, we may remand the matter to the agency for reconsideration under the correct standard. E.g., In re Tax Appeal of Colorado Interstate Gas Co., 270 Kan. 303, 321, 14 P.3d 1099 (2000); see Frick v. City of Salina, 289 Kan. 1, 24, 208 P.3d 739 (2009); State v. Toevs, 2008 WL 5401488, at *2 (Kan. App. 2008) (unpublished opinion); Berberich v. U.S.D. No. 609 S.E. Ks. Reg. Educ. Center, 2007 WL 3341766, at *2 (Kan. App. 2007) (unpublished opinion). Without a better understanding of the basis for the agency’s conclusion in this case, we are unable to analyze fully whether the agency’s factual findings are supported by substantial evidence in light of the whole record, K.S.A. 77-621(c)(7), or whether the agency’s action is “otherwise unreasonable, arbitraiy, or capricious.” K.S.A. 77-621(c)(8).
III. No Other Issues of Merit Require Our Ruling.
Donna has raised several other issues on appeal, but no issue of potential merit requires a ruling from us at this time. First, she claims that SRS limited the scope of the record before the hearing officer but then expanded the record to other matters before the appeals committee. But she has not provided a citation to the documents that she claims were wrongly supplied to the appeals committee; her claim fails in the absence of a citation to the record estabhshing the error. See Kelly v. VinZant, 287 Kan. 509, 526, 197 P.3d 803 (2008).
Second, she claims that the members of the SRS appeals committee lacked the competence and expertise appropriate for their task. But she did not present that issue to the district court, and issues not raised before the district court generally cannot be raised on appeal. Miller v. Bartle, 283 Kan. 108, 119, 150 P.3d 1282 (2007). She has not claimed the application of any exception to that general rule. See In re Estate of Broderick, 286 Kan. 1071, 1082, 191 P.3d 284 (2008), cert. denied 129 S. Ct. 1320 (2009).
Last, she claims that the district court failed to award her costs and fees. Of course, the district court did not rule in her favor; instead, it said that Donna could request relief after the appeal was completed in the event this court ruled in her favor. We will send the case back to the district court with directions to consider any award of fees and costs that may be appropriate. We express no opinion about whether that issue would be properly considered before a further ruling on the merits by the agency in response to our decision. We also note that because Donna has been successful on this appeal, she is entitled to recover the docket fee and any transcript expenses incurred in the appeal under Supreme Court Rule 7.07(a) (2009 Kan. Ct. R. Annot. 61).
Conclusion
The SRS appeals committee refused to find substantiated child abuse for two reasons. We have found that its first reason — that the perpetrator must first be shown a danger to all children — was based on an incorrect understanding of the law. We are unable to determine whether its second reason — that it had not been shown by clear and convincing evidence that L.E.H.’s physical injuries were caused by Christopher’s spanking — was based on the proper evidentiary standard. We therefore reverse the district court’s judgment affirming the agency decision, vacate the agency’s decision, and remand the case for further consideration. We remand the case first to the district court to consider any issues of the award of fees or costs that may properly be before it; we then direct the district court to remand the case to the agency for further consideration in light of the clear-and-convincing evidence standard set out in B.D.-Y. and the rulings made in this opinion. | [
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Green, J.:
In this declaratoiy judgment action, we must determine whether a written declaration entered into between two adjoining landowners created an easement or a license for a 15-foot tract of land adjacent to a party pond. The trial court determined that based upon a specific paragraph in the declaration, the landowners intended to create a license and not an easement. Alternatively, the trial court determined that even if an easement had been created, the landscaping done by the servient tenement owners, Gerard Blocks and Sandra Ullah, did not unreasonably obstruct the use of the easement by the dominant tenement owners, John and Nancy Gilman. The trial court further determined that an irrigation or sprinkler system on the 15-foot tract of land did not unreasonably obstruct the easement and, thus, rejected Blocks and Ullah’s request that the Gilmans pay for the cost of removing the system.
The Gilmans now appeal from the trial court’s ruling that the declaration created a license and not an easement and its ruling that the landscaping done by Blocks and Ullah did not unreasonably obstruct the Gilmans’ use of the property. We determine that the plain and unambiguous language of the declaration demonstrates the previous landowners’ intent to create an easement over the 15-foot tract of land. Moreover, even if the language in the declaration created an ambiguity as to whether the previous landowners intended to create an easement or a license, we determine that the surrounding circumstances show that the landowners intended to create an easement over the tract in question. In addition, we hold that Blocks and Ullah’s landscaping on the 15-foot tract of land unreasonably obstructed the Gilmans’ use of the easement. As a result, we reverse the trial court’s rulings that the declaration created a license and that Blocks and Ullah were not required to remove the landscaping on the tract in question and we remand for further consideration of the issue of removal of the obstruction created by Blocks and Ullah.
In addition, Blocks and Ullah cross-appeal from the trial court’s ruling rejecting Blocks and Ullah’s request that the Gilmans pay for the cost of removing the irrigation or sprinkler system, which they allege encroaches on their property. Nevertheless, because Blocks and Ullah failed to present any evidence to the trial court regarding the encroachment of the sprinkler system on their property, we determine that the trial court properly denied their request for a declaratory judgment on this issue. Although Blocks and Ullah contend that their attorney and the Gilmans’ attorney had an agreement to litigate this issue separately from the other issues in this case, they never told the trial court of this agreement before the trial occurred in this case. Such conduct amounted to invited error, and Blocks and Ullah cannot now complain that the trial court failed to rule on an issue that they never properly presented to the trial court and never preserved for later consideration. As a result, we affirm the trial court’s judgment on Blocks and Ullah’s counterclaim regarding the sprinkler system. Accordingly, we affirm in part, reverse in part, and remand on the issue of removal of the obstruction created by Blocks and Ullah.
John and Margaret Nash owned contiguous lots 1, 2, 3, and 4 of certain residential real estate in Johnson County, Kansas. A pond was located on part of lots 2,3, and 4. Based on the pond’s location, part of lot 3’s land was on the back side of the pond and could be accessed by land by going around the pond, which meant going onto the property of lot 2 or lot 4.
Apparently, in 1976, the Nashes began negotiating with J & J Development Co., Inc. (J & J Development) regarding the sale of the Nashes’ property. On March 3, 1976, the Nashes and J & J Development filed a declaration of record that reserved the benefits and the obligations to maintain the pond on lots 2, 3, and 4 as follows:
“WHEREAS, said three lots have in common a pond and dam for which this declaration is made in order to provide for the ownership and use of such pond and dam, as well as the maintenance thereof;
“NOW, THEREFORE, in consideration of these premises, John E. Nash and Margaret E. Nash, husband and wife, and J & J Development Co., Inc. for themselves and for their heirs, executors, successors and assigns, and for their future grantees, hereby declare that the above described real estate shall be and the same hereby is, subject to the following declaration:
“1. Persons bound. All persons and corporations who now own or shall hereafter acquire any interest in the property subject to this instrument shall be taken to hold and agree and covenant with the owner of said lots, and with their successors and assigns, to conform to and observe these covenants, restrictions and agreements as to the use and maintenance of the pond and dam thereon. The benefits and obligations of this instrument shall run with the land herein described .so long as the pond and dam continues to exist.
“2. Use of pond and dam. The pond and dam shall be a party pond and dam, and the owners of each of the lots hereinabove described shall have the right to use the same jointly with each of the other owners. None of the said owners may erect any dock, platform or other structure, or deposit any organic or inorganic article or substance in or upon the pond and/or dam without the consent of all of the other owners.
“3. Contribution to cost. In consideration of these premises, should it become necessary or desirable, in the opinion of the owners of two or more of the aforedescribed lots, to repair or rebuild the whole or any part of the [pjond and dam, the repairing or rebuilding expense shall be borne equally by the three lot owners. Any such repairing or rebuilding of the pond and dam shall be on the same location and of the same size as the original, and of the same or similar material of the same quality as that used in the original.
“4. Easements. The owners of each of the lots hereinabove described hereby grants to each of the other owners license to enter upon his or its property in order to gain access to the pond and dam by the most direct route, and further grants license to enter upon and use that portion of his or its property which is within fifteen (15) feet of the water’s edge.”
The Nashes ultimately conveyed lots 1, 2, and 4 to J & J Development by warranty deeds filed in June 1976, November 1977, and July 1976, respectively. The Nashes conveyed lot 3 to Michael and Susan Gangel by warranty deed filed in April 1976. In August 1998, the Gangels conveyed lot 3 to the Gilmans by warranty deed.
Based on the limited appellate record before this court, it appears that J & J Development later conveyed lot 2 to Leo and Carolyn Hovenkamp by warranty deed. The Hovenkamps then conveyed lot 2 to William and Barbara Eidt in September 2001. William Eidt later died, and Barbara Eidt conveyed lot 2 to Blocks and Ullah by warranty deed filed of record in September 2005. The warranty between Eidt and Blocks and Ullah clearly stated that it was “[s]ubject to easements, reservations, restrictions, and covenants, if any, of record.” The title report, which was provided to Blocks and Ullah before the conveyance of lot 2, references the declaration filed March 3, 1976, between the Nashes and J & J Development.
J & J Development conveyed lot 4 to Marlin and Marvel Constance by warranty deed in August 1976. The Constances in turn conveyed lot 4 to Kenneth and Bonnie Ellington by warranty deed in August 1979.
Thus, the chain of title for Lots 2, 3, and 4 can be represented as follows:
Lot 2:
Nashes —> J & J Development —> Hovenkamps —> Eidts —> Blocks and Ullah
Lot 3:
Nashes —» Gangels —> Gilmans
Lot 4:
Nashes —> J & J Development —> Constances —> Ellingtons
After Blocks and Ullah bought lot 2, the situation between them and the Gilmans quickly became unpleasant. In September 2007, Blocks and Ullah constructed a berm and did landscaping work to establish a boundary between lot 2 and lot 3. The berm and landscaping work was within the 15-foot area surrounding the party pond. In November 2007, Blocks and Ullah sent the Gilmans a cease and desist letter. Within the letter, Blocks and Ullah told the Gilmans that they had no right to cross Blocks and Ullah’s property and that Blocks and Ullah would call the police if they persisted in traveling across the property. Shortly after the Gilmans received the cease and desist letter, Blocks and Ullah put up “No Trespassing” signs pointing directly at the Gilmans’ property.
In a certified letter sent in December 2007, the Gilmans’ attorney sent Blocks and Ullah the March 1976 declaration filed of record and told them that the Gilmans had the right to use the property that was within 15 feet from the edge of the pond. The Gilmans’ attorney further stated that Blocks and Ullah were in violation of the declaration by planting shrubs and bushes to prevent the Gilmans’ use of the easement and requested that they remove the landscaping within 30 days. Blocks and Ullah responded with an 11-page letter in which they conceded that the declaration allowed for a 15-foot easement around the pond. In April 2008, the Gilmans sent another letter to Blocks and Ullah requesting removal of the landscaping within the easement surrounding the pond.
In June 2008, the Gilmans filed a declaratory judgment action against Blocks and Ullah. The Gilmans asked that the trial court issue a declaratory judgment finding the existence of an easement; ordering Blocks and Ullah to remove the obstruction to the Gil-mans’ access; and making any further orders, including costs and attorney fees, as were just and equitable.
Blocks and Ullah filed counterclaims against the Gilmans. Blocks and Ullah asked the trial court for a declaratory judgment that the right to gain access contained in paragraph 4 of the declaration was a license that did not run with the land. Alternatively, Blocks and Ullah asked the trial court to find that if paragraph 4 was intended to create an easement, then the description of the easement was so vague or undefined as to be unenforceable. Blocks and Ullah further argued that if the trial court determined that an easement existed, then the Gilmans should be required to remove obstructions placed within the easement, which would include a dock and any irrigation-related devices. For their second counterclaim, Blocks and Ullah asked for a judgment against the Gilmans for the cost of the removal of an in-ground sprinkler system on Blocks and Ullah’s property and the restoration of their property.
The case proceeded to a bench trial without a case management or pretrial conference. At trial, Ullah acknowledged that the berm and landscaping work were within 15 feet of the water’s edge. According to Ullah, when the berm was put in, it was approximately 6 inches from the water’s edge. Nevertheless, when the trial occurred, the berm was approximately 18 inches from the water’s edge. Ullah testified that the berm was approximately 22 inches high and that there were two trees planted in the berm area. Although Ullah indicated that there were a 48-inch and 57-inch access areas within the berm, she conceded that John Gilman’s larger mower could not get through the access areas.
John Gilman testified that the berm and landscaping prevented him from passing through the 15-foot easement with his mower. According to Gilman, Blocks and Ullah had put up a sign that says “Mower across easement” on their property but that path was approximately 25 to 30 feet from the water’s edge.
The Gilmans presented testimony from Kenneth Ellington, the owner of lot 4. Ellington testified that he had moved onto lot 4 in September 1979 with the understanding that there was a 15-foot access easement around the perimeter of the pond granted to the property owners of lots 2, 3, and 4. According to Ellington, he had never consented to Blocks and Ullah’s construction of the berm and landscaping work, and he objected to the placement of the berm and landscaping within the 15-foot easement.
Ellington further testified that when he moved onto the property in 1979, there was already a dock built on lot 3 and a couple of pumps that provided irrigation to lots 3 and 4. Consistent with Ellington’s testimony, John Gilman testified that the dock, irriga tion pumps, and irrigation system were already on his property when he purchased it in 1998.
At the conclusion of the trial, the trial court determined that the declaration created a license and not an easement under Kansas law. The court further found that the berm and plantings did not create an unreasonable obstruction and that, even if the declaration created an easement, “there is sufficient room for persons to pass and there is sufficient room for all equipment.” Finally, the court held that the irrigation system and dock did not create unreasonable obstructions.
As a result, the trial court entered judgment in favor of Blocks and Ullah on the Gilmans’ declaratory judgment action. The trial court entered judgment in favor of the Gilmans on Blocks and Ullah’s request for relief regarding the sprinkler system.
Did the Trial Court Err in Determining That the Declaration Created a License?
On appeal, the Gilmans first argue that the trial court erred in determining that the March 1976 declaration created a license instead of an easement in the 15-foot area surrounding the party pond.
The interpretation and legal effect of written instruments are matters of law over which an appellate court exercises unlimited review. Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009). Regardless of the trial court’s construction of a written instrument, an appellate court may construe a written instrument and determine its legal effect. City of Arkansas v. Bruton, 284 Kan. 815, 828-29, 166 P.3d 992 (2007).
“Generally, if a written instrument has clear language and can be carried out as written, rules of construction are not necessaiy. [Citation omitted.]” Bruton, 284 Kan. at 829. A court must examine all four comers of a written instrument and analyze particular language in consideration of the entire instrument and not with a critical analysis of a single or isolated provision. Marquis v. State Farm Fire & Cos. Co., 265 Kan. 317, Syl. ¶ 3, 961 P.2d 1213 (1998); T.R. Inc. of Ashland v. Brandon, 32 Kan. App. 2d 649, Syl. ¶ 2, 87 P.3d 331 (2004).
A written instrument is ambiguous, however, when the application of rules of interpretation to the whole fails to ascertain which one of two or more meanings is conveyed by the parties’ words. Central Natural Resources v. Davis Operating Co., 288 Kan. 234, 245, 201 P.3d 680 (2009). “The question of whether a written instrument is ambiguous is a question of law subject to de novo review.” Bruton, 284 Kan. at 829.
Differences between Easements and Licenses
In addressing the parties’ arguments as to whether the declaration created an easement or a license, we find it helpful to outline the differences between an easement and a license. An easement is a permanent interest in real property and must be created by deed or prescription. Stanolind Pipe Line Co. v. Ellis, 142 Kan. 102, 105, 45 P.2d 846 (1935). But see Railroad Co. v. Railway Co., 9 Kan. App. 281, 60 Pac. 541 (1900) (It is not necessary for the creation of an easement that there be an executed, witnessed, acknowledged, and recorded deed; a writing is sufficient.). Moreover, a declaration that is filed of record can create an easement in real property. See Chancy v. Chancy Lake Homeowners Ass’n, Inc., 55 So. 3d 287, 296 (Ala. Civ. App. 2010); Avery Dev. v. Village by the Sea Condo., 567 So. 2d 447, 448 (Fla. Dist. App. 1990) (determining that declaration filed of record created access easement).
On the other hand, a license is a personal privilege to do some act or series of acts upon the land of another without possessing any estate in the land. A license may be created by parol and is generally revocable at the will of the owner of the land in which it is to be enjoyed, by the death of the licensor, by conveyance of the lands to another, or by whatever would deprive the licensee of doing the acts in question or giving permission to others to do them. Stanolind Pipe Line Co. v. Ellis, 142 Kan. at 105.
Quoting 2 Tiffany Real Property 1202 (2d ed. 1920), our Supreme Court in Stanolind further outlined the distinctions between license and an easement as follows:
“ ‘In so far as an easement involves, as it ordinarily does, the privilege of doing or not doing a certain class of act on or in connection with another’s land, there is a superficial resemblance between an easement and the privilege created by a license. The distinction between such an easement and a license privilege lies primarily in the fact that the licensee has a privilege and nothing more, while the holder of an easement has not only a privilege but also rights against tire members of the community in general, including the owner of the land, that they refrain from interference with the exercise or enjoyment of the privilege.’ ” 142 Kan. at 105.
Plain Language of Declaration
Here, in determining that the declaration created a license for the use of the 15-foot area of land surrounding the pond, the trial court looked only to the language of paragraph 4 and focused on the word “license” within that provision:
“The Declaration itself is a contract between these parties. And, as a contract, it is to be interpreted according to the plain meaning of the language that is used. It is not to be interpreted by any rules of interpretation unless it is ambiguous. And the Court finds that this Declaration is not ambiguous. It uses quite plainly and clearly the word license on two occasions in Paragraph 4. The Court is not to look at other areas of the contract and create an ambiguity when none otherwise exists.
“So, the Court feels that, under the circumstances of this case, the Court needs to look squarely at the language of Paragraph 4, and specifically of the use of the word ‘license’ in two separate occasions.
“ ‘License,’ as the Court has quoted from the cases that the Court has directed our attention to, a license does not convey an interest in land and is not assignable. And, as such, it is not an easement as such which can be enforced as aor can be enforced as an estate in land.
“So, the Court finds that Paragraph 4, and the Declaration itself, under the law of our State, creates a license and not an easement.” (Emphasis added.)
Inconsistent with the principles of contract interpretation, the trial court isolated the language in paragraph 4 of the declaration to determine the intent of the parties. Nevertheless, as set forth previously, we must examine all four comers of the written instrument and analyze the language of paragraph 4 in consideration of the entire declaration and not with a critical analysis of a single or isolated provision. See T.R., Inc. of Ashland, 32 Kan. App. 2d at 653.
Moreover, there is abundant authority that the label given by the parties to the right created (a license or a lease) does not dictate its legal effect. See Bmce & Ely, The Law of Easements & Licenses in Land § 1:5, p. 1-13 (2010); 25 Am. Jur. 2d, Easements and Licenses § 117, pp. 612-13 (“In making its determination as to whether a transaction is a license or a lease, a court is not bound by characterization of the parties.”). Here, the fact that the parties to the declaration specifically used the word “license” twice within paragraph 4 does not definitively establish that the parties intended to create a license.
Bruce & Ely, The Law of Easements & Licenses in Land § 1:5, pp. 1-12 to 1-17, has set forth the following five factors to be considered in ascertaining whether the intent of the parties was to create an easement or a license:
“1. Manner of creation of right (oral or written). The mere granting of a right in writing does not automatically render it an easement.... The existence or absence of words that are ‘ordinarily used in the conveyances of real estate’ is an important factor. The label that the parties give the right, however, does not dictate its legal effect. For example, a right called a lease may in reality be an easement or a license.
“2. Nature of right created. The creation of a right to be used in a particular portion of the servient estate indicates that an easement was intended. Likewise, the existence of authority in the holder of the right to maintain or improve the burdened property suggests an easement.
“3. Duration of right. A set duration indicates an easement. A grant in perpetuity also indicates an easement. Further, an express provision that the right benefits its holder’s successors and assigns supports the conclusion that an easement was intended. Similarly, an easement is indicated if the right expressly binds the servient landowner’s successors and assigns. Conversely, the deletion of words of succession may indicate a license. Finding an easement, however, does not depend upon the existence of ‘magic words such as “successors and assigns.’ ”
“4. Amount of consideration, if any, given for right. Substantial consideration indicates an easement. In this regard, it is necessary to distinguish consideration given for the right from money expended in reliance upon the right. An ‘irrevocable license’ may result from expenditures made in reliance on an existing license.
“5. Reservation of power to revoke right. An express reservation of the power to cancel, revoke, or terminate the right may be considered to indicate a license. However, a power to terminate in the landowner does not necessarily mean that a license was created. Specifying a power to terminate for a particular reason or in limited circumstances may be seen as inconsistent with the unabridged right to revoke retained by one who grants a license. Moreover, an easement may be expressly subject to termination by the servient owner upon the occurrence of a specified event.”
Here, an application of the above five factors to the March 1976 declaration leads to the conclusion that the parties to the declaration intended to create an easement in the 15-foot tract of land surrounding the pond. Specifically, we note that the property right was embodied in a written document that was filed of record. The right was created in a particular portion of the land (the 15-foot tract of land surrounding the pond). Moreover, the holders of the right had the authority to maintain the tract of land subject to the easement (“this declaration is made in order to provide for the ownership and use of such pond and dam, as well as the maintenance thereof’).
In addition, the March 1976 declaration expressly binds the parties’ successors and assigns: “John E. Nash and Margaret E. Nash, husband and wife, and J & J Development Co., Inc. for themselves and for their heirs, executors, successors and assigns, and for their future grantees, hereby declare that the above described real estate shall be and the same hereby is, subject to the following declaration . . . .” (Emphasis added.) The parties further ensured that their intent to bind their successors and assigns was clear by including the following provision in the declaration:
“Persons bound. All persons and corporations who now own or shall hereafter acquire any interest in the property subject to this instrument shall be taken to hold and agree and covenant with the owner of said lots, and with their successors and assigns, to conform to and observe these covenants, restrictions and agreements as to the use and maintenance of the pond thereon.” (Emphasis added.)
The parties then included the following language, which further emphasizes their intent that the rights contained in the declaration were not personal to the parties but instead were to run with the land: “The benefits and obligations of this instrument shall run with the land herein described so long as the pond and dam continues to exist.’’ (Emphasis added.) Such language binding a landowner’s successors and assigns and creating a right that runs with the land is contradictory to the right created by a license. See 25 Am. Jur. 2d, Easements and Licenses § 117, pp. 612-13 (“Generally, a license in respect of real property, since it is a mere personal privilege, cannot be assigned or transferred by the licensee. A license does not pass with the title to the property, but is only binding between the parties, expiring upon the death of either party.").
In applying the fourth factor to the March 1976 declaration, we note that the only specific recitation of consideration is the phrase “[i]n consideration of these premises.” It is apparent from the declaration, however, that the consideration given by each party was the right to enter upon and use the 15-foot tract of land which was part of the party’s property. Such consideration would be substantial in light of the fact that each party’s property would be burdened by the right granted within the 15-foot tract of land from the water’s edge.
Finally, the declaration contains no express reservation of the power to cancel, revoke, or terminate the right in the 15-foot tract of land. In fact, the only express limitation on the right in the 15-foot tract of land surrounding the pond is the continued existence of the pond and dam: “The benefits and obligations of this instrument shall run with the land herein described so long as the pond and dam continues to exist.”
Although the March 1976 declaration uses the term “license” within paragraph 4, a reading of the entire document shows that the parties intended to create an easement in the 15-foot tract of land surrounding the party pond. The declaration is a written document, filed of record, that creates rights in neighboring landowners’ real property that run with the land and are binding on the landowners’ heirs, successors, and assigns. In addressing the particular question before this court, we conclude that the declaration created an easement in the 15-foot tract of land surrounding the pond on lot 2 in favor of the owners of lot 3, which are currently the Gilmans.
Ambiguity in Declaration
Nevertheless, even if the use of the term “license” within paragraph 4 of the March 1976 declaration created an ambiguity as to whether the parties intended to create a license or an easement, the evidence presented at trial establishes that the parties’ intent was to create an easement and not a license.
Where ambiguity or uncertainty of contract is involved in a written instrument, the intention of the parties is not ascertained by resort to literal interpretation, but by considering all language employed, the circumstances existing when the agreement was made, the object sought to be attained, and other circumstances, if any, which tend to clarify the real intention of the parties. Amoco Production Co. v. Wilson, Inc., 266 Kan. 1084, 1088, 976 P.2d 941 (1999). “To determine whether an easement is the intention of the parties, courts will examine the language of the grant, the circumstances surrounding its creation and the property involved, with construction in favor of the grantee.” 7 Thompson on Real Property § 60.03(a)(7), p. 485 (2d ed. 2006); see Lago v. Guerrette, 592 A.2d 939, 942 (Conn. 1991).
We are required to construe any ambiguities against the party drawing up the March 1976 declaration. See Berns v. Standish Pipe Line Co., 152 Kan. 453, 459, 105 P.2d 893 (1940) (contract granting right to lay pipeline through land was construed against the party drawing up the contract). The parties drawing up the March 1976 declaration who actually granted the right in the 15-foot tract of land surrounding the pond were the previous landowners of lots 2, 3, and 4. Assuming that there was an ambiguity in the declaration, we note that the previous landowners are the ones who created the ambiguity by referring to the right in paragraph 4 as a license but titling it as an easement. “[I]f there was an ambiguity in the terms used [by the drafter of the contract], it must be construed liberally in favor of the other party.” 152 Kan. at 459.
As discussed at length previously, the language used by the parties throughout the March 1976 declaration is language that is used in the creation of an easement. The parties made clear that the declaration was to extend to their successors and assigns and that the benefits and obligations of the declaration were to run with the land as long as the pond and dam continued to exist. Such language is contrary to the right created by a license. See 7 Thompson on Real Property § 60.03(a)(7)(iv), p. 493 (“A license is terminable at the will of either party, cannot be assigned, does not pass at death, terminates upon conveyance of the land, is an agreement binding only upon the parties.”).
Additionally, the fact that the parties filed the March 1976 declaration of record indicates that the parties intended to create an easement and not a license. An easement is subject to the Statute of Frauds and must be recorded in order to protect oneself from losing one’s easement to a bona fide purchaser of the servient tenement. 7 Thompson on Real Property § 60.03(a)(7)(iv) and (8), p. 492-93. On the other hand, there is no written or recording requirement for licenses and, thus, they are often oral and created by parol. See Stanolind Pipe Line Co. v. Ellis, 142 Kan. at 105.
Further, the location of the party pond on the three tracts of land indicated that the parties had intended to create an easement by the 1976 declaration. Based on the location of the pond on lots 2, 3, and 4, lot 3’s land was separated by the pond. The owners of lot 3 (now Gilmans) would be able to access their property on the back side of the pond if they were allowed to go around the pond, requiring access onto a small portion of either lot 2 or 4. If the owners of lot 3 were not allowed to go onto lot 2 or 4, it would be extremely difficult, if not impossible, for the owners of lot 3 to access and maintain their land on the back side of the pond. Moreover, because it was a party pond, the owners of lots 2, 3, and 4 would conceivably need access to a limited land area around the pond in order to deal with maintenance issues concerning the pond and dam. In fact, under paragraph 3 of the declaration, the grant of the easement gave the right “to repair or rebuild the whole or any part of the [pjond and dam” if the owners of two or more of the previously mentioned lots agreed.
Finally, the testimony of Kenneth Ellington, who was the owner of lot 4 and not a party to the proceedings, established that his understanding was that there was an easement in the 15-foot tract of land surrounding the pond. Ellington, who had been the owner of lot 4 since August 1979, testified that he was “told that there was an easement” when he moved to the property. He further testified as to his understanding of the easement as follows: “Well, each party that was connected to the pond could have access to all the way around the pond for 15-foot easement.”
Based on the evidence presented to the trial court, we determine that the previous landowner parties’ intent, as shown in the lan guage of the declaration and the circumstances surrounding its creation, was to create an easement in the 15-foot tract of land surrounding the party pond.
Unreasonable Interference with Use of Easement
The question now turns to whether Blocks and Ulla’s construction of the berm and landscaping work within the 15-foot easement unreasonably interfered with the Gilmans’ use of the easement. “It is well settled that the owner of the servient tenement may use the land over which the way extends in any manner which does not [unreasonably interfere with its use. (Potter v. Northern Natural Gas Co., 201 Kan. 528, 441 P.2d 802 [1968]; 25 Am. Jur. 2d, Easements and Licenses § 89, p. 494; 28 C.J.S. Easements § 91, pp. 770-71).” Aladdin Petroleum Corporation, v. Gold Crown Properties, Inc., 221 Kan. 579, 586, 561 P.2d 818 (1977).
In this case, we have determined that there is an easement created by declaration, which in express terms gives the owners of lots 2, 3, and 4 the privilege of entering upon each other’s property in order to gain access to the pond and dam and “for the ownership and use of such pond and dam, as well as the maintenance thereof’ “which is within fifteen (15) feet of the water’s edge.” When one has such an affirmative appurtenant easement, as have the owners of lots 2, 3, and 4 in this case, such easement carries with it the right to do such affirmative acts on the servient lot as are necessary to the enjoyment of the property. See Bruce & Ely, The Law of Easements & Licenses in Land § 8:3, pp. 8-12 to 8-13 (“[T]he parties are deemed to have contemplated the easement holder’s right to do whatever is reasonably convenient or necessary in order to enjoy fully the purposes for which the easement was granted.”). This right includes the right to repair, maintain, and improve the pond and dam and to enter upon and use the property within 15 feet of the water’s edge, as set forth in paragraph 4 of the March 1976 declaration.
We recognize that the owners of the servient tenement, lot 2, have the right to make the maximum use of their property as long as such use is not inconsistent with the rights which they have granted to the tenants of the dominant estate (the Gilmans) under the March 1976 declaration. Nevertheless, the construction of a berm and landscaping work that at times has been within 6 inches of the water’s edge cannot be held to be consistent with the rights granted to the tenants of the dominant estate. As tenants of the dominant estate, the Gilmans have the right to repair, maintain, and improve the pond and dam and enter upon and use the property on lot 2 within 15 feet of the water’s edge. Although Blocks and Ullah contend that they have provided a path for the Gilmans to use, the exhibits entered at trial show that the Gilmans are unable to get close to the pond in the area where the berm and landscaping is located. Additionally, they must traverse over a berm and through mulch and plantings to access the rest of the easement area on lot 2.
Moreover, Blocks and Ullah admitted that John Gilman must travel around the pond and enter onto either their lot or the Ellingtons’ lot in order to maintain the Gilmans’ property on the back side of the pond. Ullah conceded, however, that the space between their plantings is not large enough for the Gilmans’ mower. The berm and the landscaping work thus unreasonably interfered with the Gilmans’ right to maintain and improve the pond and dam. See Carson v. Elliott, 111 Idaho 889, 891, 728 P.2d 778 (1986) (raised garden placed by landowner in circular area of driveway unreasonably interfered with easement because it occasionally interfered with operation of vehicles). As a result, Blocks and Ullah, as the servient tenants of lot 2, are subject to the expense of removing the obstruction that unreasonably interferes with the use by the Gilmans, the dominant tenants of lot 2, of the easement. See Potter v. Northern Natural Gas Co., 201 Kan. 528, 531, 441 P.2d 802 (1968) (“[T]he dominant tenement easement is not subject to the will of the possessor of the land.” As a result, the court construed a pipeline easement to require the servient owner to bear the expense of lowering the pipeline.).
In their appellate brief, the Gilmans have requested that this court remand the case to the trial court for a decision on the issue of the removal of the obstructions. Presumably, the remand would be to address the extent that Blocks and Ullah would be required to remove the obstructions around the pond, especially since the testimony indicated that the waterline does rise and fall, and to set the timeline for such removal.
We point out that Blocks and Ullah have argued that if an easement does exist, the Gilmans should be required to remove a dock and irrigation system that is on lot 3 within the 15-foot area surrounding the pond. Nevertheless, the testimony at trial established that the dock and irrigation system were already on the property when the Ellingtons moved onto lot 4 in 1979. There is no indication that any objection had been made to the dock and pumps before Blocks and Ullah moved onto lot 2 in 2005, and it is apparent that the previous landowners of lots 2, 3, and 4 had consented to those obvious improvements on the land surrounding the pond, pursuant to paragraph 2 of the March 1976 declaration. As a result, the Gilmans should not be required to remove the dock and irrigation system on lot 3.
Did the Trial Court Err in Denying Blocks and Ullah’s Request for Declaratory Relief with Respect to the Sprinkler System?
Finally, in their cross-appeal, Blocks and Ullah contend that the trial court erred in denying their claim for trespass by the Gilmans’ sprinkler system without hearing evidence on the matter. Apparently, the parties had an agreement to litigate the issue regarding the sprinkler system separately from the other issues in the case.
The problem here is that the parties never told the trial court of their agreement before the trial occurred and never requested before trial that the trial court hear Blocks and Ullah’s claim regarding the sprinkler system at a separate proceeding. A trial judge, as the presiding officer of a court, has control over the proceedings in a case. The parties do not control the court’s calendar. The parties easily could have requested a pretrial or scheduling conference and asked for a bifurcated trial. Their failure to request separate trials amounts to invited error, and we will not require the trial court to hear additional evidence on the issue of the sprinkler system. See Butler County R.W.D. No. 8 v. Yates, 275 Kan. 291, 296, 64 P.3d 357 (2003) (“A party may not invite error and then complain of that error on appeal. [Citation omitted.]”); Catholic Housing Serv ices, Inc. v. State Dept. of SRS, 256 Kan. 470, 476, 886 P.2d 835 (1994) (extending the invited error rule to encompass procedural problems caused by movant in administrative proceedings).
Based on the evidence presented at trial, we determine that the trial court properly granted judgment in favor of the Gilmans on Blocks and Ullah’s counterclaim.
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Malone, J.:
Kenneth Brown appeals his convictions of aggravated burglary, burglary, and theft of property of a value of more than $1,000. Brown claims the district court violated K.S.A. 60-455 and committed reversible error by admitting evidence at trial of his prior conviction of attempted burglary and by giving an erroneous limiting instruction to the jury.
On January 12, 2006, at approximately 10:30 p.m., 5-year-old Tanielle Ford was lying awake in her bed at 2200 N. 34th Street, in Kansas City, when she heard kicking noises coming from the kitchen. Tanielle opened her bedroom door and, although the lights were off in the house, she saw a male intruder in the kitchen wearing a grey hoodie, blue jeans, and white shoes. Tanielle was not very close to the intruder, and she could not see his face. Tanielle tried to wake her brother, Kevion, and when she turned back around the intruder was running out the back of the house. Tanielle then awakened her mother, Jacinda Ford, and told her that someone broke into their house. Ford entered the kitchen and saw the kitchen door was open and damaged, so she called the police. Officer Scott Kirkpatrick responded to Ford’s call, and upon arriving at the residence he noticed the south side door was forced open. Kirkpatrick spoke with Ford and later filed a report about the incident.
Days later, while Tanielle was playing outside with Kevion, she saw a man she believed was the intruder, wearing substantially the same clothes the intruder was wearing on the night of the break-in. Tanielle pointed the man out to Ford. Upon further investigation, Ford learned that the man often visited the house across the street and discovered that his name was Kenneth Brown. Ford did not immediately report this information to the police.
On March 31, 2006, at approximately 8:30 a.m., Ford walked Kevion and Tanielle to the bus stop and noticed a green Plymouth with Johnson County license plates at her neighbor Lovie Finley s house at 2125 N. 34th Street. Ford knew that Finley was not home at the time and that the Plymouth was not Finley’s car, as Ford was friendly with Finley and familiar with her habits. When Ford returned home from walking the children to the bus stop, she continued to watch Finley’s house. Ford saw a man she recognized as Brown walk out of the house carrying a television, which he put in the Plymouth before reentering the house. Ford called the police and stayed on the line while watching Brown for 20 to 30 minutes, but he left before the police arrived. When the police finally arrived, Ford provided Officer Scott Hammons with Brown’s name, clothing and vehicle description, and license plate number.
Officer Jackie Green later visited Finley’s residence after she returned home. Finley told Green that she left for work around 6:30 a.m., locked her doors, and returned around 12:15 p.m. Finley noticed that her patio door was open and that her lamps, tables, televisions, microwave, and assorted other possessions had been stolen. She estimated the value of the stolen property at over $1,000.
On April 12, 2006, Ford again called the police when she saw Brown at another neighbor’s house with the same green Plymouth. During this call, she again positively identified Brown as the perpetrator of the Finley burglary. Officer Lariy MacArthur responded to die call and contacted Brown at 2416 N. 34th Street, where he saw Brown exiting a green Plymouth Duster. When MacArthur and other police officers approached Brown, he jerked away from the officers and struggled, removed his wallet from his pocket, and then threw it towards a female bystander. Officers recovered the wallet and verified Brown’s identity.
The State charged Brown with aggravated burglary of the Ford residence in Count I, burglary of the Finley residence in Count II, and theft of Finley s property of a value of more than $1,000 in Count III. At the prehminary hearing, Tanielle identified Brown as the intruder in the Ford residence even though she admitted that she did not really see his face on the night of the break-in. Prior to the jury trial, the State filed a motion to admit Brown’s three prior convictions of burglary and/or attempted burglary as evidence of plan and/or identity pursuant to K.S.A. 60-455. The district court granted the State’s motion, but only as it related to one of the three prior convictions, a 2002 conviction of attempted burglary. The district court initially stated that evidence of the 2002 conviction would not be allowed unless the State first established through independent evidence that Brown was in the Ford residence on January 12, 2006. After hearing testimony from Tanielle identifying Brown as the intruder, the district court determined that evidence of the 2002 attempted burglary conviction could be presented to prove intent on Count I of the complaint.
At trial, the State presented evidence consistent with the above-described facts. When the State offered into evidence the journal entiy of Brown’s 2002 conviction of attempted burglary, the district court gave an oral limiting instruction that “the evidence is solely for the purpose of the motive or intent of the person who was in the house on count one.” Brown testified in his own defense. He generally denied the charges and claimed he was being identified as the perpetrator only because he was often seen driving his car around the neighborhood. Prior to jury deliberations, the district court gave the following written instruction: “Evidence has been admitted tending to prove that the defendant committed a crime other than the present crime charged. This evidence may be considered solely for the purpose of showing the defendant’s motive and intent.” The written instruction did not limit the jury’s consideration of the evidence to Count I. During closing argument, however, the State reminded the jury that the 2002 journal entry of conviction was only relevant for determining Brown’s intent as he was inside Ford’s residence.
The jury found Brown guilty on all three counts. Based on Brown’s criminal history, the district court imposed a presumptive sentence of 130 months’ imprisonment on Count I, 12 months’ imprisonment on Count II, and 6 months’ imprisonment on Count III. The sentences on Counts II and III were ordered to run concurrently with each other but consecutive to the sentence on Count I, for a controlling sentence of 142 months’ imprisonment. Brown timely appealed.
Brown claims the district court violated K.S.A. 60-455 by admitting evidence at trial of his prior conviction of attempted burglary. Brown first argues that the evidence failed to identify Brown as the intruder in the Ford residence, which the district court had ruled was necessary before the State could present evidence of the prior conviction to prove intent on Count I. Brown also argues that evidence of his prior conviction was not admissible to prove intent or motive, because his intent and motive were not in dispute at trial. Finally, Brown argues that the district court erred by failing to limit the evidence of his prior conviction to Count I of the complaint.
The State responds that there was sufficient identification of Brown as the intruder in Count I in order to admit the evidence of the prior conviction. Although the State concedes that motive was not substantially disputed at trial, the State argues that evidence of the prior conviction was admissible under K.S.A. 60-455 in order to prove intent and plan. Finally, the State argues that any error in the admission of the evidence of the prior conviction was harmless and the district court’s limiting instruction to the jury was not clearly erroneous.
When reviewing a district court’s decision concerning the admission of evidence, an appellate court first determines whether the evidence is relevant. All relevant evidence is admissible unless prohibited by statute. State v. Riojas, 288 Kan. 379, 382, 204 P.3d 578 (2009). Evidence is relevant if it has any “tendency in reason to prove any material fact.” K.S.A. 60-401(b). Thus, in order for any type of evidence to be considered relevant, it must be probative to establishing some material fact (i.e., a fact significant under the substantive law of the case). State v. Vasquez, 287 Kan. 40, 49-50, 194 P.3d 563 (2008); State v. Reid, 286 Kan 494, 504-05, 186 P.3d 713 (2008). The standard of review for whether evidence is material is de novo. Reid, 286 Kan. at 505. The standard of review for whether evidence is probative is reviewed under the abuse of discretion standard. 286 Kan. at 509. Finally, even if evidence is material and probative, the district court must decide whether the evidence is unduly prejudicial. The appellate court reviews the determination of whether evidence is unduly prejudicial under the abuse of discretion standard. 286 Kan. at 512; see K.S.A. 60-445.
Once relevance is established, the district court must then apply the statutory rules governing the admission and exclusion of evidence. These rules are applied either as a matter of law or in the exercise of the district court’s discretion, depending on the rule in question. Therefore, the standard of review that is applicable on appeal will depend upon which rule the court applied to determine the admissibility of the evidence at issue. Riojas, 288 Kan. at 383.
The controlling statute, K.S.A. 60-455, states:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
We are aware that K.S.A. 60-455 was amended in 2009. However, the amendment is not applicable to Brown’s case.
The analysis of evidence under K.S.A. 60-455 involves several steps: (1) a reviewing court must determine whether the evidence in question is relevant to prove a material fact; (2) the court must determine whether the particular material fact that forms the basis of the admission is in dispute; (3) the court must determine whether the probative value of the evidence outweighs its potential for undue prejudice; and (4) the court must provide a hmiting instruction informing the jury of the specific purpose for admission of the evidence. State v. Roggs, 287 Kan. 298, Syl. ¶ 4, 197 P.3d 441 (2008). Error in the admission of or instruction upon K.S.A. 60-455 evidence is not automatically reversible. Rather, it is to be evaluated on appeal under either K.S.A. 22-3414 or K.S.A. 60-261. State v. Gunby, 282 Kan. 39, Syl. ¶ 4, 144 P.3d 647 (2006).
Brown first argues that the district court erred by admitting the evidence of his prior conviction because the State failed to first establish his identity as the intruder in Ford’s residence. The district court initially ruled that Brown’s prior conviction would not be admitted into evidence unless the State first established through independent evidence that Brown was in the Ford residence. Absent an independent identification, Brown argues the evidence of his prior conviction was not relevant to prove any material fact in dispute.
After hearing testimony from Tanielle, the district court determined that her testimony sufficiently identified Brown as the intruder at the Ford residence. The district court then ruled that evidence of Brown’s 2002 attempted burglary conviction could be presented to prove intent on Count I of the complaint. The district court’s finding that Tanielle’s testimony sufficiently identified Brown as the intruder may be viewed as a finding of fact. An appellate court reviews the district court’s findings of fact to determine if they are supported by substantial competent evidence. Substantial evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion. Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009). The appellate court does not reweigh evidence, assess the credibility of the witnesses, or resolve conflicting evidence. State v. Gant, 288 Kan. 76, 80, 201 P.3d 673 (2009).
Here, Brown points out that the only evidence of identification came from Tanielle’s testimony, which was inconsistent and unreliable. Tanielle testified at the preliminaiy hearing that she did not see the intruder’s face on the night of the break-in. Tanielle did not positively identify Brown as the intruder until days later when she was playing outside with Kevion and she saw Brown across the street wearing substantially the same clothes as the intruder had worn on January 12.
Despite Tanielle’s youth and somewhat inconsistent testimony, her positive eyewitness identifications furnish sufficient evidence to establish that Brown was the intruder in the Ford residence. TanieUe identified Brown as the intruder on three occasions. First, she pointed Brown out to Ford in the days following the burglary. Second, she identified Brown at the preliminary hearing. Third, she identified Brown during trial, stating she was “very sure” he was the intruder. Brown’s argument requires a reweighing of Tanielle’s testimony and credibility, something the appellate court will not do. Gant, 288 Kan. at 80. We conclude substantial competent evidence supports the district court’s finding that Tanielle identified Brown as the intruder.
Next, Brown argues that the district court erred by admitting his prior conviction as evidence of intent because intent was not in dispute at trial. The State responds that on the charge of aggravated burglary in Count I, the State was required to prove beyond a reasonable doubt that Brown was inside Ford’s residence with the specific intent to commit a theft and that Brown disputed this element of the crime by pleading not guilty.
Under K.S.A. 21-3716, aggravated burglary is:
“[K]nowingly and without authority entering into or remaining within any budding, manufactured home, mobile home, tent or other structure, or any motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property in which there is a human being, with intent to commit a felony, theft or sexual battery therein.”
Therefore, aggravated burglary is a specific intent crime, and here the State elected to prove that Brown intended to commit a theft while inside Ford’s residence. The State argues that the actions of the intruder in the Ford residence did not clearly establish that the intruder intended to commit a theft, and so the evidence of Brown’s prior conviction of attempted burglary was relevant to prove this material fact.
However, the State’s analysis under K.S.A. 60-455 is only partially complete. The State is correct that the evidence of Brown’s prior conviction was relevant to prove a material fact, i.e., that Brown intended to commit a theft while inside Ford’s residence. However, in order for evidence of Brown’s prior conviction to be admissible under K.S.A. 60-455 to prove intent, the court must also determine whether Brown’s intent is in dispute at trial. See Boggs, 287 Kan. 298, Syl. ¶ 4.
In Boggs, the Kansas Supreme Court stated that the crucial distinction in admitting other crimes evidence under K.S.A. 60-455 on the issue of intent is not whether the crime is a specific or general intent crime but whether the defendant has claimed that his or her actions were innocent. When the defendant’s acts are susceptible to two interpretations — one innocent and one criminal — then the intent with which the actions were committed becomes the critical element in determining their character. However, when a defendant does not assert that his or her actions were innocent but rather presents some other defense, there is no reason to admit evidence of other crimes or civil wrongs to prove intent. 287 Kan. 298, Syl. ¶ 7.
Here, Brown did not assert an innocent explanation for being inside the Ford residence on January 12, 2006. To the contrary, Brown testified at trial and generally denied entering the residence for any reason. Thus, although Brown’s intent to commit a theft inside the residence was a material fact that the State was required to prove beyond a reasonable doubt, Brown did not dispute this particular material fact by asserting an innocent explanation for his actions as required in Boggs. Brown’s not guilty plea was insufficient to place his intent in dispute at trial for purposes of admitting K.S.A. 60-455 evidence. See also State v. Davidson, 31 Kan. App. 2d 372, Syl. ¶ 4, 65 P.3d 1078, rev. denied 276 Kan. 971 (2003) (defendant is required to assert an innocent explanation for charged conduct before intent will be considered a disputed material issue).
The State acknowledges that generally intent is only in dispute when the defendant asserts an innocent explanation for his or her actions. Nevertheless, the State argues in its brief that “this Court should broaden the requirements for admissibility of K.S.A. 60-455 evidence relevant to intent in burglary and/or aggravated burglary cases, even if prior jurisprudence does not currently demand the same.” We decline the State’s request to broaden the requirements for admissibility of evidence under K.S.A. 60-455. Intent becomes a disputed issue only when the defendant asserts an innocent explanation for his or her actions. Because Brown did not offer an innocent explanation for his actions, we conclude the dis trict court erred by admitting evidence of his prior attempted burglary conviction in order to prove intent.
As previously indicated, the State concedes that motive was not substantially disputed at trial. However, the State argues that evidence of Brown’s prior conviction should have been admitted to prove plan. In fact, this was the State’s primary argument in district court. The State points to several similarities between the current charges and Brown’s prior convictions, including the fact that all the instances involved the burglary of dwellings instead of businesses, theft of common household electronics, forced entry, and targeting of residences in the same community.
In State v. Prine, 287 Kan. 713, 735, 200 P.3d 1 (2009), the Kansas Supreme Court held that to admit evidence of prior bad acts to prove plan under K.S.A. 60-455, the evidence must be “so ‘strikingly similar’ in pattern or so distinct in method of operation as to be a ‘signature.’ ” (Citing State v. Jones, 277 Kan. 413, 423, 85 P.3d 1226 [2004].) Here, there are some similarities between the burglary of the Ford residence and Brown’s prior convictions, but they do not appear to satisfy Prine’s requirement that they be so strikingly similar as to be a signature. 287 Kan. at 735. In fact, the similarities asserted by the State are common to most residential burglaries. We reject the State’s assertion that the evidence of Brown’s prior convictions was admissible to prove plan.
The State also argued in district court that evidence of Brown’s prior convictions should have been admitted to prove identity, but the State does not argue this position on appeal. An issue argued by a party in district court but not briefed on appeal is deemed abandoned. State v. Walker, 283 Kan. 587, 594, 153 P.3d 1257 (2007).
We conclude the district court erred by admitting evidence of Brown’s prior attempted burglary conviction under K.S.A. 60-455. The error is compounded by the fact that the evidence was supposed to be limited to the aggravated burglary in Count I, but the district court’s written jury instruction failed to include that limitation. Brown failed to object to the district court’s written jury instruction. Furthermore, we note that when the State offered into evidence the journal entry of conviction, the district court gave an oral limiting instruction stating that the evidence was admissible only on Count I. Also, during closing argument, the State reminded the jury that the 2002 journal entry of conviction was only relevant for determining Brown’s intent as he was inside Ford’s residence.
As previously stated, error in the admission of or instruction upon K.S.A. 60-455 evidence is not automatically reversible. Rather, it is to be evaluated on appeal under either K.S.A. 22-3414 or K.S.A. 60-261. Gunby, 282 Kan. 39, Syl. ¶ 4. Under K.S.A. 60-261, no error in the admission of evidence is ground for granting a new trial unless refusal to take such action appears inconsistent with substantial justice. The statutory harmless error test requires examination of the trial record as a whole, not just an examination of the error in isolation. State v. Shadden, 290 Kan. 803, Syl. ¶ 19, 235 P.3d 436 (2010). Under K.S.A. 22-3414(3), no party may assign as error the giving or failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict unless the instruction or the failure to give an instruction is clearly erroneous. Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. State v. Carter, 284 Kan. 312, 324, 160 P.3d 457 (2007).
Thus, we must evaluate the evidence presented at trial against Brown in order to determine if the error in the admission of the evidence of Brown’s prior conviction was harmless and to determine if the error in the jury instruction was clearly erroneous. In evaluating the evidence and the effect of the jury instruction, we must keep in mind that each crime charged against Brown constituted a separate and distinct offense, and the jury was instructed to decide each charge separately. Depending on the circumstances, a trial error may be harmless as to one count but not as to a separate count against the same defendant. State v. Clark, 11 Kan. App. 2d 586, 592, 730 P.2d 1104 (1986).
The evidence against Brown on Count I, aggravated burglary of the Ford residence, was far from overwhelming. Tanielle was the only eyewitness to the crime, and her identification of Brown was tenuous when she admitted at the preliminary hearing that she did not see his face on the night of the break-in. Tanielle was never asked to identify Brown in a lineup or even a photo lineup. Furthermore, there was no physical evidence such as fingerprints to support the charge and Brown did not make any incriminating statements to the police. We are unable to conclude that the district court’s error in admitting evidence of Brown’s prior conviction was harmless as to Count I.
The State’s evidence supporting Counts II and III, the burglary of Finley’s residence and theft of her property, was substantially more compelling than the evidence supporting Count I. Ford observed a green Plymouth vehicle at Finley’s house on March 31, 2006, at approximately 8:30 a.m. She knew that Finley was not at home and that the Plymouth did not belong at the residence. Ford continued to watch Finley’s house, and she saw a man she recognized as Brown walk out of the house carrying a television, which he put in the Plymouth before reentering the house. Ford immediately called the police, and she continued watching Brown/or 20 to 30 minutes while she stayed on the line with the police. When Officer Hammons finally arrived, Ford provided him with Brown’s name, clothing and vehicle description, and license plate number.
On April 12, 2006, Ford again called the police when she saw Brown at another neighbor’s house with the same green Plymouth. During this call, she again positively identified Brown as the perpetrator of the Finley burglary. This time the police arrived while Brown was still in the neighborhood. When the police approached Brown, he jerked away from the officers and struggled, removed his wallet from his pocket, and then threw it towards a female bystander. At trial, Brown’s only explanation for these actions was that he was attempting to give his identification to the police.
Ford positively identified Brown to the police on two occasions as the man who burglarized Finley’s residence. She observed Brown carrying a television out of Finley’s residence in broad daylight, and she continued to watch Brown for 20 to 30 minutes while she was on the fine with the police. Ford positively identified Brown at the prehminary hearing and at trial as the man who burglarized Finley’s residence, and her in-court identifications were not impeached. Ford’s pretrial statements to the police and her testimony at the preliminary hearing and the trial always remained consistent. Finley’s testimony that the value of the stolen property exceeded $1,000 was unchallenged. We conclude that the district court’s error in admitting evidence of Brown’s prior conviction was harmless as to Counts II and III of the complaint. See K.S.A. 60-261.
As for the limiting instruction, we note that when the State offered into evidence the journal entry of conviction, the district court gave an oral limiting instruction stating that the evidence was admissible only on Count I. Also, during closing argument, the State reminded the jury that the 2002 journal entry of conviction was only relevant for determining Brown’s intent as he was inside Ford’s residence. Although the district court failed to limit the evidence to Count I in the subsequent written instruction, we are not firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. See Carter, 284 Kan. at 324. Thus, we conclude that the district court’s written limiting instruction was not clearly erroneous. See K.S.A. 22-3414(3).
Accordingly, we affirm Brown’s convictions in Counts II and III. We reverse Brown’s conviction of the primary offense of aggravated burglary in Count I and remand for a new trial. Brown will need to be resentenced depending on the ultimate disposition of Count I.
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BüSER, J.:
This is an appeal from the trial court’s initial custody determination in a paternity case. The biological mother, Monica Harrison, now Mitchell, filed this action as the next friend and natural guardian of her son, J.D.H. The biological father, Adiel W. Tauheed, was the named respondent. After a bench trial, the district court ordered Monica and Adiel to share joint legal custody of J.D.H. The court also awarded residential custody to Monica with substantial parenting time to Adiel.
Adiel appeals, claiming the trial court generally applied an incorrect legal standard in evaluating which parent should have been awarded legal and residential custody of J.D.H. We conclude the trial court applied the correct legal standard — the best interests of the child — in evaluating this custody matter.
Of particular note, Adiel also asserts the trial court applied an incorrect legal standard, which resulted in the court’s failure to consider evidence about Monica’s religious beliefs and practices as a Jehovah’s Witness. Adiel claims these religious beliefs and practices have adversely affected or could adversely affect J.D.H. in the future. As discussed more fully below, we review Kansas law regarding the legal standard a trial court should apply to evidence of a parent’s religious beliefs and practices in a child custody case. We hold that a parent’s religious beliefs and practices may not be considered by the trial court as a basis to deprive that parent of custody unless there is a showing of actual harm to the health or welfare of the child caused by those religious beliefs and practices. We conclude the trial court correctly applied this legal standard in making its custody determination. Accordingly, we affirm.
Factual and Procedural Background
Monica and Adiel first met in Wichita in 1999. Two years later, Monica became pregnant with J.D.H. Adiel acknowledges that J.D.H. is his biological son. About 6 months after J.D.H.’s birth in February 2002, Adiel left Wichita to attend graduate school in California. He later resided in Lenexa. During J.D.H.’s lifetime, Monica has resided in Wichita with her son, where she has provided for his care. Monica is a Jehovah’s Witness and Adiel is a Muslim. Monica has raised J.D.H. in the Jehovah’s Witness faith. The couple did not marry each other.
Monica filed this paternity action on June 30,2006, when J.D.H. was 4 years old. On February 17, 2009, when J.D.H. was almost 7 years old, the district court issued its custody ruling that is the subject matter of this appeal. Prior to the temporary order which gave Monica residential custody during this litigation, no orders regarding custody had been issued by any court. During the 4 years following the temporary order, Monica and Adiel informally and amicably cooperated regarding both support and custody of J.D.H.
During the litigation, David N. Johnson, an attorney, was appointed as a limited case manager to prepare recommendations to the district court regarding custody issues. Johnson prepared two comprehensive reports. The first report was dated April 19, 2007. A second report, dated May 16, 2008, updated Johnson’s original recommendations. Both reports recommended that Monica and Adiel share joint legal custody of J.D.H., with Monica designated the primary residential parent.
On January 14, 2008, the district court approved and filed Monica and Adiel’s proposed pretrial conference orders. Notably, Adiel did not contend that he should be awarded sole legal custody of J.D.H. Rather, Adiel only sought primary residential custody of his son. Moreover, in Adiel’s submission of issues of fact or law to be determined by the district court at trial there was no mention of Monica’s religious beliefs or practices.
A 2-day bench trial was held in October 2008. Adiel’s counsel made clear in his brief opening statement that, with regard to his case, Monica’s religion would be the focus of the trial:
“There is an issue, Judge, in this case about [J.D.H.’s] well-being, his adaptation to the teachings that his mother is espousing through die Jehovah’s Witnesses. And you’re going to hear testimony about some of that and how that’s affecting [J.D.H.]; how it, as a belief system, they alienate the child from the nonbelieving spouse — from father.”
At trial, Adiel testified that Monica was an “unfit” parent, but he relied entirely on nonreligious grounds, such as Monica leaving J.D.H. “alone at home” and “not cleaning him.” On cross-examination Adiel explicitly denied that Monica was unfit because she is a Jehovah’s Witness. When pressed on this point, he stated: “I don’t think religion has [sic] an issue here. You’re like identifying the custody with the religion. I don’t think religion is the issue here. It’s really what’s in the best interests of the child.”
Nevertheless, when Monica testified, Adiel’s counsel began to extensively cross-examine her about Jehovah’s Witnesses, and her religious faith and practices. Monica’s counsel promptly objected “to any further questions regarding Jehovah’s Witness. It has no basis on my direct examination nor on the custody of this child.” Adiel’s counsel responded:
“Well, Judge, this would bear upon, not only the fact that she has this child engaged in certain activities .... I think it’s relevant, her beliefs, as to how she approaches parenting and co-parenting, what she’s telling this little boy about Adiel. All of this is relevant. You can weigh all this, Judge.”
The trial court overruled the objection, finding the inquiry was “fair cross.”
Extensive evidence was presented to the trial court. There was testimony by Monica, her mother, Johnson, Sonya Atencio (a daycare provider), and Shane Vondracek, (J.D.H.’s first grade teacher). Additionally, there was testimony by Adiel, his wife, Adiel’s mother and father, and Meighan Peifer (an early childhood special education teacher).
On February 17, 2009, the district court issued a detailed, 14-page memorandum decision. In this decision the court summarized the key issues Adiel had raised in the custody trial:
“[T]he primaiy issues raised in this litigation pertain to the Mother’s religious practices as a Jehovah’s Witness. Father contends that the Mother’s religious practices are alienating him from his son. Father further contends that Mother’s religious practices are creating problems for his son’s social interactions with other children. Next, Father contends that the Jehovah’s Witness prohibition on blood transfusion, and the Mother’s reluctance to disavow this prohibition as it relates to tire possible future medical needs of [J.D.H.], creates an unacceptable risk that [J.D.H.] would not receive medically necessary healthcare. Finally, Father contends that [J.D.H.] is being forced to participate in activities associated with the Jehovah’s Witnesses which are not in his best interests.”
After a thorough discussion of the law and evidence, the district court concluded:
“This has been a difficult case for the Court. Both parents are capable and loving parents, and both naturally want to be the primary residential custodian for [J.D.H.]. The Court has struggled with this issue .... The Court agrees with the assessment of the limited case manager that this is an ideal case for shared custody — however, that is not an option due to the geographic separation of the parents____[T]he Court has concluded that [J.D.H.] is well adjusted to his current living arrangements, and although the Father has raised legitimate concerns, the Court has concluded that it [is] in [J.D.H.’s] best interests to retain primary residential custody with the Mother.”
The district court adopted Johnson’s recommendations made in his updated limited case manager report of May 16, 2008. In particular, these recommendations included: “The parties should continue to have pint’ legal custody of [J.D.H.], meaning generally that each party should have equal access to all records and information and equal input on all major decisions pertaining to [J.D.H.] including, but not necessarily limited to, educational, healthcare, extra-curricular and daycare matters.” Additionally, Adiel was awarded significant parenting time, including every spring break, summer, and alternating weekends and holidays.
Adiel filed a timely appeal.
Appellate Standard of Review
An appellate court will reverse a trial court’s child custody determination only upon an affirmative showing by the appellant that the trial court abused its sound judicial discretion. In re Marriage of Rayman, 273 Kan. 996, 999, 47 P.3d 413 (2002) (abuse of discretion standard); see also Harsch v. Miller, 288 Kan. 280, 293, 200 P.3d 467 (2009) (burden of proof on party asserting abuse of discretion). In reviewing a trial court’s custody determination for an abuse of discretion, our Supreme Court has advised:
“[An appellate court’s] function is not to delve into the record and engage in the emotional and analytical tug of war between two good parents over [their child]. The district court [is] in a better position to evaluate the complexities of the situation and to determine the best interests of the child. Unless we were to conclude that no reasonable judge would have reached the result reached below, the district court’s decision must be affirmed.” In re Marriage of Bradley, 258 Kan. 39, 45, 899 P.2d 471 (1995).
Our Supreme Court has explained judicial discretion in this way:
“Judicial discretion will vary depending upon the character of the question presented for determination. Generally, the trial court’s decision is protected if reasonable persons could differ upon the propriety of the decision as long as the discretionary decision is made within and takes into account the applicable legal standards. However, an abuse of discretion may be found if the trial court’s decision goes outside the framework of or fails to properly consider statutory limitations or legal standards. [Citation omitted.]” State v. Shopteese, 283 Kan. 331, 340, 153 P.3d 1208 (2007).
To the extent we must determine the proper framework, statutory limitations, or legal standards, our review is unlimited. See Owen Lumber Co. v. Chartrand, 283 Kan. 911, 915-16, 157 P.3d 1109 (2007).
Propriety of the Legal Standard Used by the Trial Court to Determine Custody
For his first issue on appeal, Adiel states:
“This was an initial custody determination. The district court ruled that the fadrer had a burden of proof to alter die status quo. The burden was described as ‘a compelling reason’ to have the de facto living arrangement of the minor child changed. The district court ruled the father failed to prove a ‘compelling reason.’ Did the trial court err?”
Adiel also claims the trial court “improperly overlaid a ‘material change of circumstances’ analysis that arises in post judgment cases,” when this was an initial custody determination. Adiel never raised this multifaceted issue before the district court.
Importantly, Adiel does not provide any reference in the record to support his claims that the trial court issued the specific rulings of which he now complains. Our appellate rules require facts to be keyed to the record on appeal, and “[a]ny material statement made without such a reference may be presumed to be without support in the record.” Supreme Court Rule 6.02(d) (2009 Kan. Ct. R. Annot. 38). Moreover, our independent review of the record does not reveal any such rulings by the trial court. In fact, the trial court’s memorandum decision did not use the words “burden of proof,” “status quo,” or “material change of circumstances.” Accordingly, Adiel has not provided a sufficient factual record on appeal to support his allegation that the trial court used an improper legal standard in its determination of custody.
Trial courts presented with child custody and residency decisions are required by Kansas statute to use the following legal standard: “Child custody or residency criteria. The court shall determine custody or residency of a child in accordance with the best interests of the child.” K.S.A. 2009 Supp. 60-1610(a)(3). To guide the trial court in the determination of the best interests of the child, K.S.A. 2009 Supp. 60-1610(a)(3)(B) provides a nonexclusive list of 11 factors that, if relevant, the trial court must consider. See State ex rel. Secretary of SRS v. Clubb, 30 Kan. App. 2d 1, Syl. ¶ 3, 39 P.3d 80 (2001).
Our review of the trial court’s memorandum decision convinces us the correct legal standard and statutory factors were applied in this case. In particular, in its “Summary of the Court’s ruling,” the trial court explicitly stated that after weighing the evidence it had reached a conclusion to award Monica residential custody based on “[J.D.H.’s] best interests.” This is the correct legal standard. Moreover, the trial court prefaced its detailed findings of fact and conclusions of law by stating: “The factors the Court is required to consider when deciding custody or residency of a child are set forth in K.S.A. 60-1610(a)(3)(B).” Once again, the trial court explicitly identified the proper statutory factors to be considered in the determination of the best interests of J.D.H. The trial court then proceeded to discuss the relevant evidence and its legal conclusions by focusing on each particular statutory factor for which the parties presented evidence. This was an appropriate application of the proper legal standard and statutory factors in this initial custody and residency matter.
Adiel’s claims are predicated on the trial court twice using the phrase “compelling reason” when discussing its findings that J.D.H. was “doing well under the current custodial arrangement” and was “well adjusted to his current living environment.” Given these findings, the trial court saw no “compelling reason” to change an “arrangement that was working well for [J.D.H.]” and “has existed all of [his] fife.”
The trial court’s choice of words which Adiel challenges was never made in the context of referencing a legal standard. These words were used in the trial court’s general discussion of the case. Moreover, K.S.A. 2009 Supp. 60-1610(a)(3)(B)(v) identifies “the child’s adjustment to the child’s home, school and community” as a proper factor to consider regarding custody and residency, and the trial court gave “great weight” to the evidence pertaining to this factor. That evidence regarding J.D.H.’s adjustment to his home, school, and community arose from the fact that Monica had primarily resided with, educated, and cared for J.D.H. his entire life. Thus, the “compelling reason” phrase referred to the weight of the evidence in favor of maintaining the existing residency arrangement, not any legal standard itself.
We also find Adiel’s claim that the trial court erroneously used a “material change of circumstances” standard that is set forth in K.S.A. 2009 Supp. 60-1610(a)(2)(A), and is employed in those cases wherein a petitioner seeks to “change or modify any prior order of custody, residency, visitation and parenting time,” to be without merit. (Emphasis added.) As noted earlier, the trial court never mentioned the phrase “material change of circumstances” or intimated that Adiel had the burden to prove that such a material change had occurred in this case in order for Adiel to obtain custody of J.D.H.
We note that when the trial court considered the “[Ijength of time [J.D.H.] has spent with each parent,” it apparently conflated the child’s adjustment to home under K.S.A. 2009 Supp. 60-1610(a)(3)(B)(v) with the “length of time that the child has been under the actual care and control of any person other than a parent” under K.S.A. 2009 Supp. 60-1610(a)(3)(B)(i). (Emphasis added.) Adiel contends the trial court thereby impermissibly created a “super factor with a built in presumption in favor of defacto residency.”
To the contrary, the trial court never referenced any such presumption. Moreover, the K.S.A. 2009 Supp. 60-1610(a)(3)(B) factors are not exclusive, and a child’s adjustment to home could include the length of time the child spent there — in this case, 6 years. Adiel, for example, repeatedly asserted below that he had spent more time with J.D.H. than Monica alleged. Finally, assuming any error, it was technical and may be disregarded on appeal. See K.S.A. 60-2105 (“The appellate court shall disregard all mere tech nical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining, where it appears upon the whole record that substantial justice has been done by the judgment or order of the trial court.”).
For the first time on appeal, Adiel also complains, in passing, that Johnson’s limited case manager reports also “applied a change of custody analysis with a compelling reason factor.”
At the outset, Adiel never raised this issue with the trial court. Issues not raised before the trial court may not be raised on appeal. Miller v. Barde, 283 Kan. 108, 119, 150 P.3d 1282 (2007). Second, the contested language which Adiel claims was used by Johnson in his two reports was known to Adiel prior to trial, yet he never raised this issue in the pretrial order or during trial. In fact, Johnson testified at trial and Adiel’s counsel never questioned him about referencing improper legal standards in his reports. Third, we note that in the April 19, 2007, report Johnson stated: “Beyond the application of the Statutory factors, the paramount consideration is always what custody/parenting-time arrangement will best serve the interests of the minor child.” This is the correct legal standard. Finally, as discussed earlier, we are convinced the trial court used the proper legal standard and statutory factors in this case and there is no showing the trial court relied on Johnson for any legal standards. Accordingly, this issue is not properly before us on appeal and is also without merit.
Propriety of the Legal Standard Applied to Evidence of Religious Beliefs and Practices
Adiel’s next two issues relate to the propriety of the legal standard the trial court applied to the evidence of Monica’s religious beliefs and practices as a Jehovah’s Witness. Adiel first contends the trial court erroneously “erased from the custody consideration all evidence having anything to do with religion.” He then focuses on Monica’s religious beliefs regarding blood transfusions, claiming the trial court “refused to consider [Monica’s] position on refusal to consent to medical treatment for [J.D.H.] because it was motivated by her religious beliefs.”
The trial court analyzed the evidence of Monica’s religious beliefs and practices based on its understanding of the law as discussed in three Kansas cases, Jackson v. Jackson, 181 Kan. 1, 309 P.2d 705 (1957), Beebe v. Chavez, 226 Kan. 591, 602 P.2d 1279 (1979), and Anhalt v. Fesler, 6 Kan. App. 2d 921, 636 P.2d 224 (1981). As a general proposition, these three cases illustrate the fundamental point that a trial court should not allow “the matter of religion to become an integral part of its determination [in a] custody matter.” Jackson, 181 Kan. at 8. In all three cases, a Kansas appellate court reversed the trial court because it had changed custody based, in whole or in part, on its judgment about one parent’s religious beliefs and practices. See Beebe, 226 Kan. at 601-02; Jackson, 181 Kan. at 2, 8; Anhalt, 6 Kan. App. 2d at 922-24.
In Jackson, the father sought a change of custody for his children because the mother was a Jehovah’s Witness and “ ‘by subjecting the children to such teachings, they will tend to become overtired and emotionally upset, and compelled to give attention to religious instruction, within the precepts of said Jehovah’s Witness organization, to the end that their physical well being will be adversely affected.’ ” 181 Kan. at 5.
As in the present case, in Jackson “[t]he evidence in the trial was replete with testimony and exhibits as to the tenets of Jehovah’s Witnesses and the possible effect of such beliefs upon the children.” 181 Kan. at 5. In Jackson, this evidence included the mother’s refusal to teach the children to salute the American flag, and not allowing the children to exchange gifts at Christmas or participate in Easter egg hunts and other modem day observances. In particular, the trial court noted the 7-year-old son stated that he admired Gene Harvey, described as a Jehovah’s Witness who was sentenced to prison for failing to register for military service. The 5-year-old daughter also indicated her opposition to military service by relating teachings from a Jehovah’s Witness that graphically described sexual violence that male soldiers inflicted on women.
Our Supreme Court colloquially observed, “In this custody case, the record affirmatively shows religion was in it from the beginning to end.” 181 Kan. at 11. The trial court “may have had other good and sufficient reasons for changing custody,” but the Supreme Court concluded “they cannot be distinguished from those of religion.” 181 Kan. at 11.
Jackson is noteworthy for setting forth the following constitutional tenet in child custody cases:
“Religious freedom, as guaranteed by our Constitution, should be faithfully upheld, and religious teachings to the children by a parent or parents, regardless of how obnoxious the same might be to the Court, the other parent or the general public should not and must not be considered as [the] basis of making child custody orders.” 181 Kan. 1, Syl. ¶ 6.
Our Supreme Court also stated:
“[T]he question of religion cannot be regarded by the court in determining the care, custody and control of minor children. The courts have no authority over that part of a child’s training which consists in religious discipline, and in a dispute relating to custody, religious views afford no ground for depriving a parent of custody who is otherwise qualified.” 181 Kan. 1, Syl. ¶ 5.
Over 20 years later, in 1979, our Supreme Court issued Beebe, another precedent relied upon by the trial court in the present case. In Beebe, the father of a 12-year-old boy sought to obtain custody from the mother, who was described as a “non-sectarian religious sermonizer” who alternatively lived in Mexico and the United States. 226 Kan. at 595-96. Mother was a believer in an “ ‘unorthodox religion.’ ” 226 Kan. at 597. Among other findings, the district judge determined that mother “ ‘believes God will take care of her and Robert and that she does not believe in medical treatment.’ ” 226 Kan. at 596. Moreover, “ ‘[mother] interpreted her religion as barring medical treatment for her son.’ ” 226 Kan. at 596. In Beebe, the trial court held: “ ‘This court is of the opinion that the interests of [the son] be best served if he remained in the United States where he could obtain proper medical treatment and proper schooling and such other advantages as available to a citizen of this countiy.’ ” 226 Kan. at 597.
Importantly, our Supreme Court found an insufficient factual basis for the father’s concerns that the son had been harmed as a result of inadequate medical care. In particular, the father alleged his son had vision and hearing problems, and inadequate immunizations. The Supreme Court concluded, however, there was no basis to find the son “was ever neglected” because he did not receive “proper medical treatment.” 226 Kan. at 602. In fact, the Supreme Court specifically found the son was “in good physical health.” 226 Kan. at 602.
The Supreme Court in Beebe then addressed its own rhetorical question:
“[Mother] was not questioned as to her religious beliefs concerning medical treatment, and the evidence of her beliefs is sparse. Assuming, however, that her religion does discourage or prohibit the use of drugs or medications, or treatment by physicians, is that a valid reason to change custody? Christian Science, a denomination with wide membership, has similar teachings; it discourages as unnecessary the use of drugs or treatment by physicians; yet though such beliefs may be unorthodox’ to the trial judge, they are constitutionally protected and form no basis for denying or changing custody.” 226 Kan. at 602.
The Supreme Court then cited Jackson as supporting precedent.
Three members of the Supreme Court dissented. Chief Justice Schroeder, writing the dissenting opinion, observed: “The question in this case goes beyond religious freedom. Here the trial court was concerned that [mother s] religious beliefs had led to neglect of [the son’s] health. He had vision, hearing and speech impairments . . . .” 226 Kan. at 606 (Schroeder J., dissenting). The Chief Justice concluded: “If the religious beliefs of a parent threaten a child’s health or well-being, or would lead to neglect of the child, the adverse effects upon the child may be considered in making a change of custody.” Beebe, 226 Kan. at 606.
The Court of Appeals decision in Anhalt was the third Kansas case relied on by the trial court in the present litigation. In Anhalt, the mother was initially awarded custody of the minor children. The father later sought a change of custody. The trial court granted the father’s motion in part because the children
“ ‘have always been raised in the church. They went to the church. Been down there now since March, April, May, June, and they just hadn’t got time to get into the church ....
“ ‘I’ll tell you. I want them both to be in church, the children and tire man. . . .
“ ‘. . . I’d like to have them go to church or Sunday school when the/re^ — when they haven’t at their mother’s ....’” 6 Kan. App. 2d at 922.
Our Court of Appeals reversed, finding the trial court “erroneously allowed the matter of religion to be an integral part of its decision to change custody.” 6 Kan. App. 2d at 922-23. Citing Jackson and Beebe, our court concluded that the order changing custody “based primarily on the matter of religion is not proper.” Anhalt, 6 Kan. App. 2d at 924.
Jackson, Beebe, and Anhalt demonstrate Kansas appellate courts’ reluctance to deprive a parent of one constitutionally protected right — the care, custody, and control of children — based on the parent’s exercise of another constitutionally protected right — the free exercise of religion. See In re J.D.C., 284 Kan. 155, 166, 159 P.3d 974 (2007) (“A parent’s right to make decisions regarding the care, custody, and control of his or her child is a fundamental liberty interest protected by the Fourteenth Amendment. [Citations omitted.]”); State ex rel. Pringle v. Heritage Baptist Temple, Inc., 236 Kan. 544, Syl. ¶ 1, 693 P.2d 1163 (1985) (“The First Amendment to the United States Constitution and Section 7 of the Kansas Bill of Rights prohibit governmental establishment of religion and guarantee the free exercise of religion by all persons.”). In the present case, the trial court’s memorandum decision properly showed the same thoughtful disinclination to deprive Monica of her fundamental liberty interest in having care, custody, and control of J.D.H. because she exercised her fundamental right to the free exercise of religion.
Nevertheless, “[t]he welfare of children” is also “a matter of State concern.” In re J.D.C., 284 Kan. at 166. Although the First Amendment guarantees “freedom to believe,” the corresponding “freedom to act is subject to governmental regulation for the protection of society.” State ex rel. Pringle, 236 Kan. 544, Syl. ¶ 2. This principle was best articulated by our Supreme Court in the context of a custody case, Sinclair v. Sinclair, 204 Kan. 240, 461 P.2d 750 (1969).
Sinclair was decided 12 years after Jackson and 10 years prior to Beebe. It was a divorce action wherein the father sought custody of the couple’s two children, 13 and 18 years of age. The Sinclairs’ 20-year marriage was described as “reasonably tranquil” until the mother “became interested in the teachings of Jehovah’s Witnesses and began studying the Bible.” 204 Kan. at 241. Subsequently, the mother “became inattentive to the children and lost interest in their school activities” and “completely neglected her duties” as a mother. 204 Kan. at 242. Ultimately, the mother abandoned the home, moved to Montana, and upon her return to Kansas lived apart from the family. In particular, our Supreme Court noted, the mother “maintained little or no contact” with the family and “did not so much as attend [her oldest son s] graduation exercises.” 204 Kan. at 241. The trial court granted the father custody of his sons. 204 Kan. at 244.
On appeal, the mother claimed error because, contrary to Jackson, the trial court’s “decision was based solely on the ground of religion.” 204 Kan. at 244. Our Supreme Court disagreed, however, and clarified Jackson: “The import of our holding in Jackson was that religious views alone afford no ground for depriving custody to a parent who is otherwise qualified. Here, the religious beliefs of [mother] precipitated a course of action on her part of utter disregard and indifference to her children and their activities.” 204 Kan. at 244. In this regard, the Supreme Court highlighted evidence that “after [the mother] left home in February 1967 she did not contact the boys for nearly six months, and thereafter no more than three times until the time of the divorce in February 1968.” 204 Kan. at 244. Emphasizing the “paramount consideration of the court in custody cases between parents is always the welfare and best interests of the children,” our Supreme Court affirmed the change in custody. 204 Kan. at 244.
Sinclair teaches that while religious views and practices alone may not be considered in a child custody case, Kansas courts may consider the parent’s “utter disregard and indifference” to children where religious beliefs “precipitated” that parent’s neglect of the children. 204 Kan. at 244. Sinclair is an example of a court making the distinction between State disapproval of religion, which is improper under our constitution, and State disapproval of actual harm suffered by children as a result of religious beliefs and practices.
This understanding of Sinclair is consonant with Jackson, Beebe, and Anhalt. In Jackson, the Supreme Court’s focus was on one parent’s religious beliefs and teachings. Although the noncustodial parent claimed the children’s “well being will be adversely affected” by unorthodox religious teachings, there was no evidence the children had sustained any actual harm to their health or welfare. 181 Kan. at 5. Similarly, in Anhalt, there was no evidence of harm because the children did not regularly attend church. Both of these factual scenarios, however, obviously pale in significance compared to Sinclair, wherein the Supreme Court found obvious harm to the children given their mother’s abandonment of them as a result of her religious beliefs.
We view Beebe, the latest opinion issued by our Supreme Court to address this issue, as similarly in accord with Sinclair. In Beebe, although the trial court had found otherwise, our Supreme Court concluded there was no evidence the child was neglected by his mother’s alleged failure to provide proper medical treatment. Beebe, 226 Kan. at 602. Indeed, the Supreme Court concluded that the son was “ ‘in good physical health.’ ” 226 Kan. at 602. Significantly, in Beebe, the majority’s focus was on the fact that, contrary to the dissent’s view, it believed the son’s health had not been harmed by his mother’s religious beliefs and practices. Again, this factual context was wholly unlike Sinclair, where the harm of maternal abandonment was obviously egregious.
In summary, Kansas law provides that a parent’s religious beliefs and practices may not be considered by the trial court as a basis to deprive that parent of custody unless there is a showing of actual harm to the health or welfare of the child caused by those religious beliefs and practices.
Adiel contends the trial court, which did not cite to Sinclair, misinterpreted Jackson, Beebe, and Anhalt and, as a consequence, improperly “rejected all evidence from the custody consideration that had anything to do with religion.” Adiéis contention is overstated and without merit.
We conclude the trial court appropriately followed the Jackson, Beebe, and Anhalt line of precedent and properly applied that precedent to the evidence admitted at trial. Moreover, our review of the trial court’s factual findings and record evidence convinces us that, unlike Sinclair, Adiel failed to make a showing that J.D.H. was actually harmed by Monica’s religious beliefs and practices. To the contrary, there was substantial competent evidence to support the trial court’s discretionary judgment that it was in the best interests of J.D.H. for Monica and Adiel to share joint legal custody, and to award Monica primary residential custody.
On appeal, Adiel focuses on four subject areas wherein he alleges the trial court erroneously disregarded any evidence related to Monica’s religious beliefs and practices, and the harm or possible harm to J.D.H. which accrued as a result of those beliefs and practices: (1) religious activities; (2) social alienation; (3) parental alienation; and (4) blood transfusions. We will address each of these subject areas in order.
Religious Activities
At trial, Adiel argued that Monica’s door-to-door proselytizing with J.D.H. was injurious to his welfare. The trial court made the following factual findings:
“[J.D.H.] reports that he does not like to go with Mother on weekends when she goes door to door to visit with others about her faith. Evidence presented at trial was that these weekend exercises sometimes last up to five hours.
“It is understandable that [J.D.H.] would be reluctant to participate with Mother in these activities. However, Kansas case law prohibits the Court from considering these factors. It is not unusual for children to want to do other things than those associated with church. The fact that [J.D.H.] would rather do something he considers to be more fun than walking door to door with his mother on behalf of the Jehovah’s Witnesses is normal. Despite the fact that [J.D.H.] does not like to participate in certain church related activities, he is still bonded to his mother, and these activities do not appear to have any adverse impact on\J.D.H.].” (Emphasis added.)
The trial court’s findings show its disinclination to consider an established religious practice of Jehovah’s Witnesses, especially when the court found there was no showing of any harm to J.D.H. Contrary to Adiel’s claims, the italicized portion of the trial court’s findings would have been superfluous if the trial court believed that under Kansas law actual harm caused by religious beliefs and practices was beyond its consideration. These findings support our conclusion that the trial court applied the appropriate legal standard in considering the evidence of Monica’s religious beliefs and practices and the lack of evidence of any actual harm to J.D.H. caused by those beliefs and practices.
Social Alienation
Adiel alleges “[t]he evidence rejected by the trial court demonstrated that [Monica’s] beliefs caused or contributed to [J.D.H.] becoming increasingly dysfunctional and abnormal . . . .” Additionally, Adiel describes J.D.H. as “almost catatonic when certain circumstances presented themselves.” Given the trial court’s factual findings and the supporting record evidence, Adiel’s claims are more hyperbole than an accurate characterization of the evidence.
The trial court found J.D.H. was “experiencing some anxiety at school in connection with school related celebrations of certain holidays.” In this regard, Monica testified that Jehovah’s Witnesses do not celebrate holidays such as birthdays, Thanksgiving, Christmas, Veterans Day, and Presidents Day, and that they may not pledge allegiance to the United States or salute a flag.
The evidence on this issue was conflicting. Meighan E. Peifer, an administrator of a child-care facility J.D.H. attended while in Adiel’s care, testified that J.D.H. (who was then 5 years old) became highly anxious when directed to participate in a Fourth of July parade in 2007. J.D.H. refused to participate, saying that “my mom said it was wrong.” Peifer also testified that J.D.H. “froze” twice, once when he was in a play and another time when he was invited to a sleepover. J.D.H. was only 3 or 4 years old at the time, and Peifer admitted J.D.H.’s reactions could have been stage fright or uncertainty caused by new social situations.
On the other hand, Shane Vondracek, J.D.H.’s first grade teacher in the fall of 2008, testified that J.D.H. and two other students who do not celebrate holidays are separated during the celebrations and given other activities. Vondracek testified that when these celebrations occurred at school J.D.H. had never acted in a manner that caused him any concern.
The trial court observed: “While this is a concern to the Court, ultimately the Court must respect [Monica’s] religious practices. Case law which is binding precedent on this Court prohibits consideration of matters directly associated with decisions a parent malíes in an effort to put into practices the teachings of that parent’s faith.” Clearly the trial court’s “concern” indicates that it considered the evidence of anxiety. Ultimately, however, the trial court determined that J.D.H. “is well adjusted to his school, and is a very successful student. He is participating in the gifted program at Adams Elementary School, and is involved in various after school activities.” In short, the trial court found J.D.H.’s incidental instances of apprehension did not adversely affect his education or social interaction.
These were not Sinclair-type facts. The evidence of J.D.H.’s occasional anxious moments at daycare or school was insignificant in comparison to the sort of actual harm which our Supreme Court found was sufficient in Sinclair to override the parent’s liberty interest in having the care, custody, and control of her child. It is understatement to observe that any 3-, 4-, or 5-year-old child might react similarly if he or she were faced, perhaps for the first time, with refusing participation in an event outside the home for which other children were participating. Moreover, if a very young child’s occasional anxiety was a factor in custody determinations, adherents of minority religions (or even of a majority religion with different values than those held by the participants in such celebrations) would be at a permanent disadvantage in custody and residency determinations. Given the minimal and controverted nature of this particular evidence — especially in light of the overwhelming evidence that J.D.H. was well-adjusted and excelling in school — the trial court properly opted to respect Monica’s religious freedom.
Parental Alienation
Adiel next complains of the following exceipt from the trial court’s memorandum decision: “The teachings of the Jehovah’s Witnesses, including those that teach non-Jehovah’s Witnesses will suffer annihilation, may not be considered by this Court in deciding custody issues.” Based on this statement, Adiel claims the trial court ignored evidence that these religious doctrines were harming J.D.H., specifically, “the alienating affect [sic]” of the “teaching” that Adiel is “ ‘God’s foe’ and a ‘non-believer’ who will eventually have his head chopped off.”
The trial court did not make specific findings on this evidence Adiel cites in support of his argument. Where a party has failed to object to inadequate findings — as Adiel failed to do — an appellate court ordinarily presumes the trial court found the facts necessary to support its judgment. See Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009). Still, we will briefly set out the evidence for purposes of our discussion.
The reference to heads being chopped off was found in a report by Twila S. Hindery, a social worker. Adiel had retained Hindery during this litigation to interview J.D.H. without Monica’s knowledge or consent. The trial court first ruled the report was hearsay and would not be considered unless Hindery testified. Hindexy did not testify and Johnson was unable to personally contact Hindery about her report, but the trial court eventually admitted it because Johnson had considered it in preparing his report.
Hindery’s report stated J.D.H., who was 5 years old at the time, “talks calmly about people getting their heads chopped off in the ‘end times.’ ” The report did not provide the source of J.D.H.’s belief, but Hindexy seemed to attribute it to Monica. Adiel’s counsel cross-examined Monica on this topic:
"Q. And don’t the Jehovah’s Witness teachings, don’t they teach that nonbelievers will die in cataclysmic event [sic]?
“A. No.
“Q. And they don’t teach that the unbeliever is gonna [sic] have their heads cut off[?]
“A. No.
“Q. So, if [J.D.H.] said this, you have no idea where he would have come up with that idea[?]
“A. If [J.D.H.] said it, then, no.”
Another exchange between Monica and Adiel’s counsel was similar: Adiel’s counsel asked, “But, as a teaching, [Adiel’s] an unbeliever; right?” Monica replied, “As a teaching, he’s [J.D.H.’s] father.”
With respect to the “God’s foe” label, Monica defined the term as someone who “intentionally tries to persecute Jehovah’s Witnesses.” Adiel’s counsel, however, never established that Adiel ever attempted to persecute Jehovah’s Witnesses or that Monica considered Adiel to be “God’s foe.” To the contrary, during Monica and Adiel’s relationship, on at least two occasions, Adiel attended the Jehovah’s Witnesses’ Kingdom Hall. And Adiel testified he had never tried to prevent J.D.H. from having a belief in the Jehovah’s Witness faith. Finally, there was no evidence Monica taught J.D.H. that his father should be thought of as “God’s foe.”
Significantly, when Adiel testified at trial, he was asked the following by his counsel: “[H]as [J.D.H.] ever told you that you’re not a believer, or you’re going to hell or annihilated, or ... I mean, has he ever said any of those things to ya [sic], that you can recall?” Adiel responded:
“You know, years ago — this is^ — around 2007, that’s when I started to ldnda hear a little bit about kind of what he’s learning. Umm, he doesn’t — he believes that I’m gonna be in trouble if I celebrate birthdays, umm, things like that. I mean. But not — you know, not in those words, you know, you gonna be annihilated, you know, or something like that.”
After considering this evidence the trial court observed:
“[A]lmost all religions are exclusive of other religions. The fact that Jehovah’s Witnesses believe that only they will survive annihilation is not a doctrine unique to that religion. If a parent wants to raise a child as a Jehovah’s Witness, it is reasonable to expect that child to believe that bad things happened to people who are not Jehovah’s Witnesses when they die.”
Critical to the issue of parental alienation, the trial court found: “It is not clear from the evidence whether [J.D.H.’s] comments about his father are coming from things he is taught at church, or whether they are coming from [Monica].” In short, the trial court specifically considered but was unable to find that Monica used her religious beliefs in an attempt to alienate J.D.H. from his father.
In discussing the proper legal standard to be applied, the trial court also noted: “While the right of a parent to guide and train their children in matters of religion has been zealously protected by the court, a parent may not hide behind the curtain of religion to alienate a child from the other parent.” (Emphasis added.) We would not expect this statement if the trial court thought, as Adiel asserts, that Jackson, Beebe, and Anhalt stood for the proposition that “anything to do with religion,” regardless if there is actual harm to a child (such as parental alienation), may not be considered by the trial court in custody determinations.
With regard to allegations that Monica’s religious teachings and other conduct alienated J.D.H. from his father, the trial court ultimately determined that “[J.D.H.] has a healthy relationship with his father. . . . [J.D.H.] loves his father, he looks forward to spending time with him, and he has no hesitation communicating with his father over the telephone (despite the fact that such conversations are being recorded).” Of course, these findings would have been superfluous if the trial court believed, as Adiel alleges, that under Kansas law actual harm caused by religious beliefs and practices was beyond its consideration.
Once again, these were not Sinclair-type facts. The evidence supported only what the trial court found: J.D.H. had internalized some of Monica’s religious beliefs regarding the afterlife, and the son was concerned about his father because of those beliefs. Until the courts decide what awaits after death, we know of no basis to weigh such doctrines against a parent in custody determinations. The trial court correctly applied the legal standard established in Beebe, Jackson, and Anhalt.
Blood Transfusions
Adiel complains that Monica “expressed a position about the medical treatment of [J.D.H.] which was that in the future she would not consent to lifesaving treatment for [J.D.H.] if it involved a blood transfusion.” Adiel believes the trial court committed error in not considering Monica’s “philosophy about the future medical treatment of [J.D.H.]” Monica advises, in her appellate brief, that “Jehovah’s Witnesses refuse blood transfusions as the Bible commands to abstain from blood. See Acts 15:29; see also Genesis 9:3, 4; Leviticus 7:26, 27; 17:1, 2, 10-12; Deuteronomy 12:23-25.”
The trial court observed that “the practice by Jehovah’s Witnesses prohibiting the use of blood products” was a “greater concern” than Monica’s other religious beliefs and practices. The trial court found that “if [J.D.H.] is ever involved in a car accident or some other traumatic event, [Monica’s] religious beliefs would pre vent her from approving a blood transfusion or the use of blood products that may be necessary to save [J.D.H.’s] life.” Moreover, the trial court found that Monica “was not going to disavow the teachings of the Jehovah’s Witnesses on the use of blood products.”
Preliminarily, there was no evidence that J.D.H. was ever denied a blood transfusion, was in need of a blood transfusion, or had a health condition that predisposed him to blood transfusions as a necessary medical procedure. Indeed, the hypothetical nature of this issue is conceded by Adiel: “This is a future issue because there was no evidence presented to the trial court that [J.D.H.] now needed a blood transfusion or had any special medical condition that would immediately warrant such a transfusion.”
Adiel presented no testimony, expert or otherwise, that established the indispensible necessity for blood transfusions under certain circumstances. On the other hand, the only evidence presented at trial regarding the use of blood transfusions was Monica’s repeated testimony that, to her knowledge, there are “bloodless therapies” available in lieu of blood transfusions. In this regard, at the time of trial Monica was a licensed practical nurse employed at Galichia Heart Hospital and was also studying for her bachelor’s degree in nursing.
When pressed, on cross-examination, about a hypothetical circumstance involving J.D.H. needing a blood transfusion, however, Monica testified, “[W]hat I would do is talk to his father. Me and Adiel would have a conversation regarding it.” Monica was then asked by Adiel’s counsel: “[I]f you wouldn’t consent, what would be the use of talking to Adiel, his father? What would you talk about?” Monica responded: “That would be the use. He’s [J.D.H.’s] father.”
In discussing the legal standard to be applied in evaluating Monica’s religious beliefs regarding the use of blood products, the trial court stated that it considered a Vermont case cited by Adiel, Meyer v. Meyer, 173 Vt. 195, 789 A.2d 921 (2001), to be “very persuasive” and yet inconsistent with Kansas law as enunciated by Beebe.
In Meyer, the parents had joint custody of two daughters after a divorce. Four years later, the mother moved for sole custody. The father was a Jehovah’s Witness, and “[m]other presented extensive evidence that the conflicting practices and rules in each household that stemmed from her and father’s disparate religious beliefs were causing [the children] to experience extreme confusion and anxiety.” 173 Vt. at 199. In particular, one of the children was experiencing symptoms of anxiety, including nightmares, stomach aches, and a constricted throat. The Supreme Court of Vermont rejected father’s argument that consideration of his religion was “unconstitutional per se.” 173 Vt. at 198. It ruled “courts may take into account a parent’s religious practices when making a custodial determination if there is evidence that the practices have a direct and negative impact on the child’s physical or mental health. [Citations omitted.]” 173 Vt. at 198.
The trial court in the present case contrasted Meyer with Beebe based on a statement made by the Kansas Supreme Court that beliefs which discourage or prohibit medical treatment “are constitutionally protected and form no basis for denying or changing custody.” Beebe, 226 Kan. at 602. The trial court then stated: “If, under the Beebe case, the Court is not allowed to take into consideration a religious practice that discourages treatment by physicians, the Court does not believe that it may consider in this case [Monica’s] religious views which prohibit the use of blood products.” The trial court then added the following footnote:
“With all respect to the appellate courts, perhaps it is time to revisit this rule. While judges understandably wish to avoid becoming entangled in religious disputes between the parents, ultimately the duty of the trial court in a child custody case is to protect the best interests of the child. Clearly, if a child is denied necessary medical care for reasons having nothing to do with religion the Court could, and should, consider this when making custody decisions. If a child is denied, or would be denied, life saving medical treatment, should it matter why?”
Of course, in this case, there was no showing that J.D.H. had ever been denied any form of medical treatment — lifesaving or otherwise. It is also unnecessary to revisit the rule from Beebe in those circumstances — unlike the present case — where lifesaving medical care is denied, because Sinclair remains good law.
With regard to lifesaving medical care which “would be denied,” in the future, this possibility of harm is not addressed by either Sinclair or Meyer, which dealt with existing, actual harm to children. Beebe then comes into play, and where — as in J.D.H.’s situation — a child is “in good health,” is “not neglected,” and needs “no medical care,” our Supreme Court held that a parent may not be denied custody simply because he or she may deny medical care to his or her children in the future based on religious reasons. Beebe v. Chavez, 226 Kan. 591, 602, 602 P.2d 1279 (1979); see also Osier v. Osier, 410 A.2d 1027, 1031 n.6 (Me. 1980) (where Jehovah’s Witness parent would withhold blood transfusions, court may not deny custody unless the religious practice poses “an immediate and substantial threat to the temporal well-being of the child”).
We do not view the trial court’s ruminations in its footnote as indicative of misunderstanding Kansas law. The trial court’s apparent wish that the rule from Meyer (a case where actual harm to children was shown) would be applied in cases like Beebe or the present case (where actual harm was not shown) does not show it misunderstood Kansas law. Rather, it shows the trial court understood Kansas law but would expand its reach to allow trial courts to consider those instances wherein a parent’s religious beliefs prohibiting the use of blood products in the future may be considered by the trial court without the necessity of showing actual harm to the child. We decline the trial court’s invitation to expand upon Kansas law because we are bound by the precedent of our Supreme Court. See Buchanan v. Overley, 39 Kan. App. 2d 171, 175-76, 178 P.3d 53, rev. denied 286 Kan. 1176 (2008).
We are left, then, with the trial court’s finding that “there is no evidence that [J.D.H.] is suffering from neglect. He is in good health, he is being well fed, he is appropriately attired, and there is no evidence that any of his teachers have expressed any concern about his physical health or appearance.” In short, this issue was controlled by Beebe, not Sinclair, and the trial court, therefore, applied the correct legal standard in its consideration of the issue of blood transfusions.
Adiel’s Request for Sole Legal Custody
In conclusion, it is important to notice the relief which Adiel now seeks in this litigation and the relief which was ordered by the trial court. In Adiefs proposed pretrial order which the trial court adopted, Adiel did not request sole legal custody of J.D.H. Rather, Adiel sought “primary residential custody.” Similarly, in his opening statement at trial, Adiel’s counsel sought residential custody. For the first time during trial, however, Adiel’s counsel established through direct examination of Adiel that he was now seeking sole legal custody because it was important for him “to have the ability to try to make the general decisions.” Adiel maintains this position on appeal, although the Kansas Legislature has clearly indicated a “preference” for joint legal custody rather than sole legal custody. K.S.A. 2009 Supp. 60-1610(a)(4).
While Adiel seeks sole legal custody, under the trial court’s order from which he appeals, Adiel now has “equal rights to malee decisions in the best interests of the child.” K.S.A. 2009 Supp. 60-1610(a)(4)(A). In particular, the trial court specifically ordered that both Monica and Adiel “have equal access to all records and information and equal input on all major decisions pertaining to [J.D.H.] including, but not necessarily limited to, educational, healthcare, extra-curricular and daycare matters.” (Emphasis added.)
Kansas law providing for joint legal custody, as implemented in the current custody order, provides Adiel with the identical valuable rights which Monica possesses to make joint decisions in the best interests of their son. Herein is the significance of Monica’s answer to the question posed by Adiefs counsel regarding blood transfusions when he asked: “[I]f you wouldn’t consent, what would be the use of talking to Adiel, his father?” Monica replied, “That would be the use. He’s [J.D.H.’s] father.” Indeed, and under the current custody order, Adiel should be consulted because as J.D.H.’s father the trial court has afforded him with an equal right to decide whether J.D.H. should receive a blood transfusion or any other medical procedure. Moreover, K.S.A. 38-122 provides that “[a\ny parent . . . whether married or unmarried, may consent to the performance upon his or her child of a medical, surgical or post mortem procedure by a physician licensed to practice medicine or surgery.” (Emphasis added.)
Importantly, if Adiel cannot agree with Monica on a major decision involving, among other things, J.D.H.’s medical care, education, extracurricular activities, or daycare, Adiel may seek a specific remedy in court. See Yordy v. Osterman, 37 Kan. App. 2d 132, 133-35, 149 P.3d 874 (2007) (district court has authority to decide between secular and religious schools, based on best interests of child, where parents with joint legal custody cannot agree). District courts are frequently called upon to make important decisions when divorced parents are unable to agree on their child’s best interests.
Finally, the trial court concluded that “[b]oth parents are capable and loving parents.” Undoubtedly, this finding was made because there was substantial competent evidence that J.D.H. is a healthy, happy, well-adjusted, and intelligent 6-year-old boy who obviously loves both his parents. Under these circumstances, we conclude the trial court’s order of joint legal custody with residential custody awarded to Monica was not arbitrary, fanciful or unreasonable, or a decision in which no reasonable person would take the view adopted by the district court. See Harsch v. Miller, 288 Kan. 280, 293, 200 P.3d 467 (2009); In re Marriage of Bradley, 282 Kan. 1, 7, 137 P.3d 1030 (2006). To the contrary, we hold the trial court’s order was an appropriate exercise of judicial discretion.
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Malone, J.:
Billy White appeals his felony convictions of possession of marijuana and possession of a controlled substance without a tax stamp. White claims the district court erred by denying his motion to suppress the evidence. Specifically, White argues that he was unlawfully detained at a traffic stop and his consent to a vehicle search was involuntary. He also argues that a subsequent pat-down was unlawful because there was no reasonable concern for officer safety.
Factual and Procedural Background
On July 22, 2008, between 7 and 7:30 p.m., Kansas City, Kansas, Police Officer Jeff Bell was on routine patrol. Bell saw a vehicle stop at a stop sign with the left turn signal on and then proceed straight through the intersection without turning. Bell initiated a traffic stop. White was the driver and sole occupant of the vehicle. After some discussion about the turn signal, Bell took White’s identification and proof of insurance back to the police car and ran a warrant check over the radio. There were no active warrants, but Bell learned that White had a record for a prior unspecified narcotics offense. Bell decided to ask for White’s consent to search the vehicle. Bell wanted to search “just to make sure that there was nothing illegal in the vehicle.”
At this point, Officer Christopher James arrived at the scene. James had not been dispatched, but he stopped to assist Bell if necessary. Bell reapproached White and asked for his consent to search the vehicle, and White agreed to the search. At Bell’s request, White walked to the rear of the vehicle where James was standing. Bell acknowledged that White was cooperating fully with the investigation. The search of the vehicle did not uncover any evidence.
When White walked to the rear of the vehicle, James performed a pat-down. James did not engage in any conversation with White before performing the pat-down, nor did he recognize White from a prior encounter. When asked why he performed the pat-down, James testified, “It’s officer safety. That’s just what I’ve done since I’ve started out here. Just make sure nobody has weapons on them when I’m talking to them.” James did not provide any further explanation for the pat-down. During cross-examination, James acknowledged that he “routinely” performs a pat-down in every traffic stop where a person is asked to step out of the car. The pat-down of White did not produce any weapons, but during the pat-down a clear plastic bag containing marijuana and drug paraphernalia fell out of White’s waistband. White testified that the pat-down maneuver caused the bag to fall from his waistband, and James did not dispute this testimony. There was no drug tax stamp on the bag containing the marijuana. At that point, Bell took White into custody. James conducted a more thorough search of White’s person incident to the arrest and found $1,432 and several empty plastic baggies in White’s pocket.
The State charged White with possession of marijuana with the intent to sell, possession of a controlled substance without a tax stamp, and possession of drug paraphernalia. White filed a motion to suppress the evidence. In the motion, White argued that he was illegally detained beyond the scope of the traffic stop and as a result his consent to the vehicle search was involuntary. White also argued that the pat-down was unlawful because there was no reasonable concern for officer safety. The district court held a hearing on the motion to suppress, and Bell, James, and White testified. After hearing the evidence, the district court denied the motion.
The case proceeded to a bench trial on stipulated facts, and White renewed his motion to suppress the evidence. By agreement of the parties, the district court found White guilty of felony possession of marijuana and possession of a controlled substance without a tax stamp, and the district court dismissed the possession of drug paraphernalia charge. The district court imposed a presumptive sentence of 30 months’ imprisonment but placed White on probation for 12 months. White timely appealed his convictions.
On appeal, White claims the district court erred by denying his motion to suppress the evidence. In district court, the State has the burden of proving that a search and seizure was lawful. State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). An appellate court reviews the district court’s decision on a motion to suppress using a bifurcated standard. Without reweighing the evidence, the district court’s factual findings are reviewed to determine whether they are supported by substantial competent evidence. Then the ultimate legal conclusion regarding the suppression of evidence is reviewed using a de novo standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007). Here, the material facts are not in dispute. When the material facts to the district court’s decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Fitzgerald, 286 Kan. 1124, 1126, 192 P.3d 171 (2008).
We will begin by setting forth the applicable constitutional provisions. The Fourth Amendment to the United States Constitution provides: “The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Section 15 of the Kansas Constitution Bill of Rights contains similar language and “provides protections identical to that provided under the Fourth Amendment to the United States Constitution.” State v. Morris, 276 Kan. 11, 17, 72 P.3d 570 (2003).
This case involves a car stop based on a traffic infraction followed by a pat-down of the driver for officer safety. The controlling statute is K.S.A. 22-2402, which provides in part:
“(1) Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand of the name, address of such suspect and an explanation of such suspect’s actions.
“(2) When a law enforcement officer has stopped a person for questioning pursuant to this section and reasonably suspects that such officer’s personal safety requires it, such officer may frisk such person for firearms or other dangerous weapons.”
This statute is a codification of the Fourth Amendment search and seizure principles expressed in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). In Terry, the United States Supreme Court determined that a law enforcement officer, without making an arrest, is authorized to stop an individual whom the officer reasonably suspects is involved in criminal activity. Furthermore, when an officer is justified in believing that the individual is armed and presently dangerous to the officer or to others, the officer may pat down the individual’s outer clothing to determine whether the person is in fact carrying a weapon. 392 U.S. at 22-24.
Here, White challenges both the car stop and the subsequent pat-down. Although White acknowledges that the initial car stop was justified based on a traffic infraction, he claims that his detention exceeded the scope of the initial stop and that his consent to the vehicle search was involuntary. White further claims that the subsequent pat-down was unlawful because there was no reasonable concern for officer safety. We will examine each of these claims in turn.
Car Stop
White argues that Bell improperly extended the scope of the traffic stop by requesting to search White’s vehicle. White contends that the encounter never became consensual, as opposed to a detention, and that Bell had no reasonable suspicion that White was engaged in illegal activity. Therefore, White argues that both the continuing detention and the subsequent search were illegal.
The State argues that the encounter between Bell and White was at first a proper investigatory detention that lasted only long enough for Bell to carry out the purpose of the traffic stop. The State further maintains that when White consented to the vehicle search, the car stop ceased being a detention and became a voluntary encounter.
There are four types of police-citizen encounters: (1) voluntary or consensual encounters, which are not considered a seizure; (2) investigatory detentions or Terry stops; (3) public safety stops; and (4) arrests. Thompson, 284 Kan. at 772. A traffic stop is considered a seizure of the driver and all the passengers even though the purpose of the stop is limited and the resulting detention is brief. 284 Kan. at 773. The Kansas Supreme Court has previously described the reasonable scope of a routine traffic stop:
“A law enforcement officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer check, and issue a citation. When the driver has produced a valid license and proof that he or she is entitled to operate the car, the driver must be allowed to proceed on his or her way, without being subject to further delay by the officer for additional questioning.” State v. Mitchell, 265 Kan. 238, 245, 960 P.2d 200 (1998).
The Kansas Supreme Court has further indicated that when the original purpose of a traffic stop has been completed, further questioning is permissible only if (1) the encounter between the officer and the driver ceases to be a detention, but becomes consensual, and the driver voluntarily consents to additional questioning, or (2) during the traffic stop the officer gains a reasonable and articulable suspicion that the driver is engaged in illegal activity. Thompson, 284 Kan. at 775.
White does not dispute that the traffic stop was justified at its inception. The parties apparently agree that White committed a turn signal violation which justified the stop. White also acknowledges that Bell was authorized to take his identification back to the police car to run a warrant check. There were no active warrants, but when Bell learned that White had a record for a prior unspecified narcotics offense, Bell decided to ask for White’s consent to search the vehicle. Searching White’s vehicle was beyond the scope of the initial traffic stop for a turn signal violation. In order to justify the extended detention, Bell needed reasonable suspicion of illegal activity beyond the traffic infraction or Bell needed to terminate the traffic stop and then inquire whether White was willing to engage in a consensual encounter. Thompson, 284 Kan. at 775.
The State does not argue that Bell’s discovery of White’s prior unspecified narcotics offense raised a reasonable and articulable suspicion of illegal activity. Rather, the State contends that when Bell requested White’s consent to search the vehicle, the purpose of the traffic stop had been completed and at that point the encounter became voluntaiy.
To determine whether an encounter between a law enforcement officer and a citizen is a seizure or a voluntary encounter, a court must apply a totality of the circumstances test. Under this test, the interaction between a law enforcement officer and a citizen is consensual and not a seizure if, under the totality of the circumstances, the officer’s conduct would convey to a reasonable person that he or she is free to refuse the officer’s requests or otherwise end the encounter. 284 Kan. at 775. Because this analysis is fact-driven and specific to each individual case, there is no exclusive or definitive list of factors that should be considered when determining if an encounter was consensual or a seizure. 284 Kan. at 811. Factors tending to establish that an encounter was consensual include “knowledge of the right to refuse, a clear communication that the driver is free to terminate the encounter or refuse to answer questions, return of the driver’s license and other documents, and a physical disengagement before further questioning.” 284 Kan. at 811. On the other hand, factors which tend to indicate a detention include
“the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person, the use of aggressive language or tone of voice indicating that compliance with an officer’s request is compulsory, the prolonged retention of a person’s personal effects such as identification, a request to accompany the officer somewhere, interaction in a nonpublic place, absence of other members of the public, or the display of emergency lights. [Citations omitted.]” 284 Kan. at 811.
Here, in ruling on the motion to suppress, the district court stated:
‘Well, based upon the evidence presented, the Court finds that the initial stop of the defendant was permissible, that there was — that the officer observed the traffic stop — or, I mean, a traffic infraction, that he immediately turned around and stopped the vehicle.
“He then made contact with the vehicle, identified the defendant, or what turned out to be the defendant, that the defendant remained cooperative throughout the proceedings, that he was notified through dispatch that this defendant had been involved in narcotic activity before, that gave rise to him asking if he could search the vehicle.
“There was no evidence presented that the defendant did anything but consent to that. There was no evidence of any coercion or repeated questioning or anything. The defendant immediately cooperated and gave consent [but] before that search, as would be custom, the defendant exited the vehicle and that it was customajy to conduct a pat-down of the defendant for officer safety, and that during that pat-down, the — what’s purported to be the drugs fell out from the defendant’s waistband
The district court did not malee a specific finding that the investigatory detention became a voluntary encounter. However, when the judge said, “There was no evidence presented that the defendant did anything but consent to [the search]. There was no evidence of any coercion or repeated questioning or anything,” it appears that fhe district court agreed with the State that the investigatory detention became a voluntary encounter.
We disagree. Based on the record, it appears there was no resolution to the traffic infraction that initially justified the stop, either through a verbal warning or a written citation. There is no evidence that Bell ever returned White’s identification and other documents. The record does not establish whether the emergency lights were displayed on any police vehicles, whether there was any disengagement between Bell and White, or whether Bell ever communicated to White that the traffic stop had ended and he was free to go. There is insufficient evidence in the record to establish that the investigatory detention evolved into a voluntary encounter. The State has the burden of proving that a search and seizure was lawful. Thompson, 284 Kan. at 772.
Bell could have attempted to achieve his goal of obtaining consent to search White’s vehicle by following proper law enforcement procedure. The first step would have been for Bell to return White’s identification and other documents. Then Bell should have resolved the initial purpose of the stop by giving White either a verbal warning or a written citation for the traffic infraction. Next, Bell should have conveyed to White in some manner, either verbally or by his conduct, that the traffic stop had ended and White was free to go. Although not required by law, Bell could have simply stated, “Have a nice day. You are free to go.” Then, after pausing for a brief moment or stepping back from the car, Bell could have inquired whether White was willing to submit to additional questioning. If White agreed to respond to additional questioning, Bell could have proceeded to ask for his consent to search the vehicle. In order to clearly establish that the consent was voluntary, the better practice would have been for Bell to inform White that he was not required to consent to the search.
Bell did not follow any of these steps. As a result, we must conclude that White was still detained as part of the traffic stop when Bell asked for his consent to search the vehicle. In this instance, Kansas law is clear that White’s consent cannot be considered voluntary. In State v. Smith, 286 Kan. 402, 184 P.3d 890 (2008), a law enforcement officer stopped a vehicle to investigate a broken taillight. Both the driver and the passenger were detained. Another officer recognized the passenger and suspected, based on information received prior to the stop, that she had drugs in her purse. The officer asked for and received consent to search the purse, in which he found a bag containing drugs. The district court found the defendant’s consent was given during the period of her detention and granted the motion to suppress.
After examining United States Supreme Court jurisprudence, the Kansas Supreme Court found that the request for consent and the subsequent search of the passenger exceeded the scope and purpose of her detention. The court held that law enforcement officers may not
“expand the scope of a traffic stop to include a search not related to the purpose of the stop, even if a detainee has given permission for the search. Rather, we continue to adhere to our longstanding rule that consensual searches during the period of a detention for a traffic stop are invalid under the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights.” 286 Kan. at 419.
Following the analysis in Smith, the record here shows a traffic stop that exceeded its initial scope. There is no evidence of Bell having a reasonable and articulable suspicion of illegal activity beyond the traffic infraction, and there is no evidence that the detention had ended and the encounter became consensual. The vehicle search was not related to the purpose of the stop for the traffic signal violation. We must therefore conclude that White’s consent to the vehicle search cannot be considered voluntary and that Bell violated White’s constitutional rights by searching the vehicle. However, this conclusion is not dispositive of the appeal because the vehicle search did not uncover any evidence. The marijuana and drug paraphernalia were found when Officer James patted down White for weapons. Accordingly, we will proceed with our analysis of whether the pat-down was justified for officer safety.
Officer-safety Pat-down
White argues that the officer-safety pat-down, sometimes called a frisk, was an illegal search and all the evidence found as a result of that search should have been suppressed. Specifically, White argues that James had no reasonable suspicion that White was armed and dangerous or that James’ safety or the safety of others might have been in jeopardy.
The State maintains again that the encounter was consensual and, therefore, a Terry analysis is unnecessary. As discussed above, however, the State failed to prove the encounter became voluntary. The State further argues that “the officers, by their testimony demonstrated that they were acting as reasonably prudent men in the circumstances” when James conducted tire pat-down.
To restate the pertinent facts, James arrived on the scene without being dispatched and saw Bell talking to White. White then stepped out of his car and walked toward James, who was standing near the rear bumper of White’s car. White appeared to be cooperating fully with the investigation. At that point, James performed the pat-down. James did not engage in any conversation with White before performing the pat-down, nor did he recognize White from a previous encounter. When asked why he performed the pat-down, James testified, “It’s officer safety. That’s just what I’ve done since I started out here. Just make sure nobody has weapons on them when I’m talking to them.” James did not provide any further explanation for the pat-down. During cross-examination, James acknowledged that he “routinely” performs a pat-down in eveiy traffic stop where a person is asked to step out of the car.
In order to justify a pat-down, Terry requires that the State must show that “a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” 392 U.S. at 27. The United States Supreme Court recently addressed the requirements for a permissible pat-down of a driver during the course of a traffic stop: “To justify a pat-down of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.” Arizona v. Johnson, 555 U.S. 323, 327, 172 L. Ed. 2d 694, 129 S. Ct. 781 (2009).
The Terry requirements for an officer-safety pat-down are codified in Kansas at K.S.A. 22-2402(2), which states: “When a law enforcement officer has stopped a person for questioning . . . and reasonably suspects that such officer’s personal safety requires it, such officer may frisk such person for firearms or other dangerous weapons.” Generally, a pat-down maneuver only allows an officer to pat down a person’s outer clothing without placing the officer’s hands inside any pockets or under the outer surface of any gar ment, unless or until a weapon is found. State v. Golston, 41 Kan. App. 2d 444, 455, 203 P.3d 10 (2009). Consent is not a necessaiy prerequisite to an officer-safety pat-down for weapons. As long as the officer reasonably suspects that his or her personal safety requires it, the officer may conduct a pat-down without the consent of the suspect. 41 Kan. App. 2d at 455.
For a Terry stop and frisk to meet constitutional requirements, a law enforcement officer must be able to point to specific, articulable facts to support reasonable suspicion for both the stop and the frisk. State v. Dean, 42 Kan. App. 2d 558, Syl. ¶ 2, 214 P.3d 1190 (2009). In determining whether a Terry frisk was based on reasonable suspicion that the individual was armed and dangerous, the State need not establish that the officer was absolutely certain that the individual was armed. Rather, the issue is whether a reasonably prudent person in the circumstances would be warranted in the belief that his or her safety or that of others was in danger. 42 Kan. App. 2d 558, Syl. ¶ 5.
In State v. Burton, 37 Kan. App. 2d 916, 922, 159 P.3d 209 (2007), this court found that an officer was not justified in frisking the defendant where the officer failed to articulate any concern for his safety when questioned at the suppression hearing. The officer testified that he always conducted pat-downs for his safety, but that he had no particular reason to fear for his safety in this instance. Similarly, in the instant case, James testified that he always conducted pat-downs for officer safety, but pointed to no particular reason to suspect White posed a threat. The United States Supreme Court has long disapproved of such routine searches for weapons without any reasonable suspicion that the person subjected to the pat-down is dangerous: “Nothing in Terry can be understood to allow a generalized ‘cursory search for weapons’.... The ‘narrow scope’ of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked.” Ybarra v. Illinois, 444 U.S. 85, 93-94, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979).
Here, the evidence established that White was cooperating fully with the car stop and Bell’s investigation. There is nothing in the record to indicate that the car stop was in a high-crime area. The stop occurred on July 22 between 7 and 7:30 p.m., so it was not dark outside. Bell had learned through dispatch that White had a record for a prior unspecified narcotics offense, but there was no information that the prior offense involved a weapon. In any event, the record does not show whether Bell communicated the information about the prior offense to James. James did not talk with White before performing the pat-down, nor did he recognize White from a previous encounter. He testified candidly that it was his routine practice to perform a pat-down every time he conducted a traffic stop and someone stepped out of the car. Based on United States Supreme Court precedent and this court’s reasoning in Burton, we conclude that James was not justified in frisking White because James failed to articulate any concern for his safety, nor would a reasonable person have believed that White was armed and dangerous under the circumstances.
We recognize that law enforcement officers have dangerous jobs, and traffic stops are especially perilous. As a result, officers must be allowed to take reasonable steps to protect their safety and the safety of others. Courts will uphold a pat-down for officer safety as long as the officer articulates any reasonable suspicion that the officer’s personal safety requires it. See, e.g., In re L.A., 270 Kan. 879, 892-93, 21 P.3d 952 (2001) (frisk of juvenile suspects was justified where officers were investigating a possible car burglaiy, it was dark, and the suspects were located in a tent); State v. Wonders, 263 Kan. 582, 584-85, 952 P.2d 1351 (1998) (frisk was permitted where passenger was known to the officer from prior contacts); Golston, 41 Kan. App. 2d at 455 (officer reasonably feared for his safety because defendant was a documented gang member). But a law enforcement officer cannot “routinely” perform a pat-down eveiy time the officer personally encounters a citizen and expect the courts to sanction such a blatant constitutional violation.
Under the facts of this case, James had no reasonable suspicion that White posed a danger to his safety or the safety of others. Therefore, the pat-down violated White’s constitutional rights. The marijuana and drug paraphernalia seized as a result of the unlawful pat-down were inadmissible evidence under the exclusionary rule. The currency and plastic baggies seized in the search incident to White’s arrest were inadmissible evidence as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 493, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). We conclude the district court erred by denying White’s motion to suppress the evidence.
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Greene, J.:
Doug and Carol Sumner appeal the district court’s dismissal of their claims under the federal Truth in Lending Act (TILA) and the Kansas Consumer Protection Act (KCPA), which they had filed as counterclaims in response to a foreclosure action by Deutsche Bank National Trust Company (Deutsche Bank) on their residence in Hutchinson. They argue that the district court erred in ruling their TILA claims were barred either by the statute of limitations or equitable estoppel and that the court erred in dismissing their remaining claims under the KCPA due to discovery abuse. We hold that some of the Sumners’ claims were erroneously dismissed but all were subject to dismissal as an appropriate discovery sanction. Accordingly, we affirm the district court.
Factual and Procedural Background
On September 23, 2004, the Sumners closed on a home loan with Ameriquest Mortgage Company (AMC) for the principal amount of $180,000 at 9.5% variable interest secured by a mortgage on their home on Obee Road in Hutchinson, Kansas. Later, the Sumners would claim that AMC’s employee, Gwendolyn Creel, told them the loan would be a 30-year fixed rate mortgage with a 6.5% interest rate. The Sumners also claimed Creel promised to provide insurance on the home as part of the mortgage package.
The Sumners’ loan was assigned by AMC to Deutsche Bank in June 2006. The servicing of the Sumners’ loan was later assigned, sold, or transferred from AMC to Citi Residential Lending, Inc.
In March 2005, AMC began sending the Sumners notices that their account was overdue, and in July 2005, suit was filed to foreclose on the mortgage. The Sumners filed individual answers and counterclaims pro se to the petition in September 2005, claiming slander, slander per se, libel, libel per se, and fraud (these claims were all abandoned upon the filing of an amended counterclaim). Notably, the answers included a request for payment of money damages, a count entitled “set-off,” and a demand for “an Order requiring plaintiff to reinstate plaintiff s note and mortgage.”
Deutsche Bank replied to Doug Sumner s answer and counterclaim in October 2005, but served the answer only on Doug at his joint address with Carol. She then moved for default judgment because of Deutsche Bank’s failure to answer her separate, albeit identical, answer and counterclaim. Deutsche Bank’s counsel admitted that “[d]ue to inadvertence and/or excusable neglect,” Carol’s answer and counterclaim was “misplaced and Plaintiff failed to timely file its Answer thereto.” Deutsche Bank subsequently filed an answer to Carol’s counterclaim, and Deutsche Bank substituted new counsel in the case.
The Sumners objected to Deutsche Bank’s substitution of counsel and belated answer, and the parties held a telephonic conference on the Sumners’ objection. Even though Carol was not joined in the phone conference, the district court ruled that the Sumners could file their counterclaims out of time; the Sumners’ motion for default judgment based on the belated answer to Carol’s counterclaim was denied; and the Sumners’ objection to substitution of Deutsche Bank’s counsel was also denied.
In June 2006, Doug filed a motion for leave to file an amended answer, counterclaim, and third-party petition. He requested a hearing be held on June 29,2006. The Sumners then filed a motion to continue the requested hearing “for at least ninety (90) days, and or until such time as this defendant has retained legal representation.” Doug wrote to Deutsche Bank’s counsel that “I believe that with counsel, the Court and yourself will definitely benefit greatly, by fewer delays caused by our no longer moving pro se in this action.” The Sumners eventually retained counsel, who then requested the scheduled hearing be continued.
Counsel for the Sumners then filed an amended answer with a counterclaim and cross-claims. The amended filing was made in August 2006; it included a counterclaim against Deutsche Bank, AMC, and Creel, based on violations of the TILA, and the KCPA, and sought damages, statutory penalties, rescission, and other relief.
Deutsche Bank responded to the counterclaim with a motion to dismiss, which was granted by the district court as to the TILA claims because they were filed outside of TILA’s 1-year statute of limitations. The court found that only the Sumners’ KCPA claims survived Deutsche Bank’s motion to dismiss.
Mediation was attempted in October 2006. According to the Sumners, the parties “made progress in the mediation but Ameriquest [AMC] insisted upon an inspection and appraisal of the house prior to completion of the mediation.” The inspection did not take place as scheduled, in part because Carol wanted to “put the house in better order.” After that, mediation apparently broke down, with the Sumners claiming “Ameriquest has failed and refused to continue negotiations in good faith and has misled the Sumners regarding their willingness to negotiate.”
In January 2007, the district court allowed the Sumners’ counsel to withdraw from the case. The Sumners said that it would take them at least 90 days to obtain new counsel, and in April 2007, Bariy L. Arbuckle entered his appearance as the Sumners’ new counsel. Arbuckle subsequently requested an additional 90 days to complete discovery and a continuance in the trial setting until September 2007. Notably, the Sumners’ previous counsel filed an attorney’s hen against the Sumners for $10,897.55.
Deutsche Bank first attempted to depose the Sumners on July 12, 2006. They were never deposed despite numerous attempts. When they sought to continue their depositions after the seventh formal notice in March 2008, the district court ordered them to submit to depositions by March 20, 2008, and to file documentary evidence to support their most recent alleged inability to be sworn for deposition. These orders went unheeded.
The perpetual delay caused Deutsche Bank to file a motion to compel discovery and several motions for sanctions against the Sumners for their failure to comply with discovery requests. When the court finally ruled on Deutsche Bank’s motion for sanctions, Judge Timothy J. Chambers stated that “[t]he continual course of conduct of the Defendants [the Sumners] in this case is found by the Court to be willful and deliberate, interfering in the efficient administration of justice.” Chambers wrote:
“It is with reluctance the Court makes its ruling, but after careful consideration of the appropriate standards to be applied and pursuant to K.S.A. 60-237, the Court grants the motion for sanctions of the Plaintiff and dismisses with prejudice the remaining claim of the Defendants as well as granting summary judgment on the claim of the Plaintiff.”
Judge Chambers issued the order imposing sanctions against the Sumners after they moved to disqualify him, but he later recused himself from the case. Judge Joseph L. McCarville, III, was assigned to the case after Chambers’ recusal.
McCarville held a telephone conference on May 23, 2008, to discuss Chambers’ order of sanctions against the Sumners. Mc-Carville noted that Chambers’ “conclusions are supported in the record. They’re logical.” Chambers’ ruling, McCarville stated, “was not based upon merely what happened in the first part of March of 2008, but it was as a result of that being more or less the final straw.” McCarville adopted Chambers’ decision effectively upholding the grant of summary judgment to Deutsche Bank and dismissing the Sumners’ remaining claims with prejudice, as well Chambers’ decision to dismiss the Sumners’ TILA claims.
The Sumners then moved to have McCarville disqualified from the case. The motion was denied, and the court ordered the foreclosure and sale of the Sumners’ home.
The Sumners timely appeal.
Did the District Court Err in Dismissing the Sumners’ Purported Claims for Recoupment and Setoff?
The Sumners argue the district court improperly dismissed their claims under the TILA. In dismissing the TILA claims, the court noted: “Truth in Lending Act claims have a 1-year statute of limitations. . . . The claims were filed well in excess of the one-year limitation. Even if the claims related back to the original counterclaim, the claims would still fall outside the one-year statute of limitations.”
Both parties agree that the district court’s interpretation of the TILA’s statute of limitations is subject to unlimited review because it involves a question of law. See Law v. Law Company Building Assocs., 42 Kan. App. 2d 278, 283-84, 210 P.3d 676 (2009), rev. granted on other grounds 290 Kan. 1094 (2010).
The Sumners argue their claims for recoupment or setoff are not barred by the 1-year statute of limitations under the TILA. They rely on 15 U.S.C. § 1640(e) (Supp. III 2009), which states:
“Any action under this section may be brought . . . within one year from the date of the occurrence of the violation .... This subsection does not bar a person from asserting a violation of this subchapter in an action to collect the debt which was brought more than one year from the date of the occurrence of the violation as a matter of defense by recoupment or set-off in such action, except as otherwise provided by State law.”
This language “makes it clear that one sued to collect a debt may assert, as recoupment or set-off, any counterclaim for violation of the Federal Truth in Lending Disclosure Law regardless of the one year limitation.” First State Bank of Crossett v. Phillips, 13 Ark. App. 157, 161, 681 S.W.2d 408 (1984) (citing United Missouri Bank of Kansas City v. Robinson, 7 Kan. App. 2d 120, 638 P.2d 372 [1981]). This is consistent with federal common law, which has long acknowledged that a defense which is termed recoupment is never barred by a statute of limitations so long as the main action is timely. United Missouri Bank, 7 Kan. App. 2d at 123. Noting the broad remedial purpose of the TILA, the United Missouri Bank court concluded that a claim of recoupment is not barred by the 1-year statute of limitations. 7 Kan. App. 2d at 125. It would certainly circumvent the TILA and the policy of prompt vindication of contractual rights if a creditor could simply sit on its claim for a year until the applicable statute of limitations runs on any and all violations under the TILA. 7 Kan. App. 2d at 125.
Under 15 U.S.C. § 1640(a), if Deutsche Bank violated the TILA’s disclosure requirements, the Sumners could potentially recoup (1) any actual damage sustained and (2) twice the amount of any finance charge. The Sumners amended counterclaim sought to recover statutory damages, actual damages, twice the finance charge, and reasonable attorney fees based on the TILA disclosure violations. Although the claims may not be artfully pled, they are set forth in enough detail to be recognized as TILA claims intended to cut down the debt owed by the Sumners to Deutsche Bank.
We conclude that the Sumners’ claims for recoupment or setoff were improperly dismissed by the district court based on the statute of Mmitations. These claims should have survived, at least until the dismissal of their entire action for discovery abuse. We address that eventuality below.
Did the District Court Err in Dismissing the Sumners’ Rescission Claims Due to Equitable Estoppel?
The Sumners next claim that the district court erred in dismissing their TILA rescission claims due to equitable estoppel. There remains, however, a factual question whether the Sumners actually sought to rescind the agreement at all. The Sumners claim they sent a notice of rescission to Deutsche Bank on September 26, 2004. It was not until May 2006 that the Sumners apparently remembered that they had attempted to rescind the agreement. Doug wrote to Deutsche Bank’s counsel:
“[By die way], I want to thank you for asking for past records. It was during this search that I found our Notice Of Cancellation Of Transaction to Ameriquest. Coupled with our claims against Ameriquest Mortgage Company, which also pass through to DEUTCHE, our TILA claims will no doubt bear fruit.”
Prior to this discoveiy, none of the communications between the parties and none of the pleadings filed in this litigation referenced the Sumners’ September 26, 2004, rescission letter. The claimed letter of rescission is written, signed, and dated by Doug and Carol Sumner. There is no corroborating evidence that the letter was actually sent to AMC or that it was even written in 2004. The only copy of the rescission letter in the record is one that the Sumners sent to their counsel after they claimed to have found it in their archives. Most importantly, the Sumners certainly did not act at any time consistent with an attempt to rescind the transaction in their subsequent communications with Creel or in their initial pleadings in this litigation.
In any event, the Sumners argue on appeal that the district court improperly found that equitable estoppel precluded them from pursuing their TILA claims for rescission. The application of equitable estoppel rests within the sound discretion of the district court. Shaffer v. City of Topeka, 30 Kan. App. 2d 1232, 1236, 57 P.3d 35 (2002). “Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. [Citation omitted.]” Unruh v. Purina Mills, 289 Kan. 1185, 1202, 221 P.3d 1130 (2009).
After the Sumners moved to have the original dismissal of their TILA claims reconsidered, the district court found that equitable estoppel barred their claim:
“The Truth in Lending and all rescission-related claims are further barred by the doctrines of equitable estoppel and waiver, the Court having found that Wilson v. Homeowners Loan Corp., 263 F.Supp.2d 1212 (E.D. Mo. 2003) to be persuasive authority and that die Sumners have admitted demanding disbursement of their loan proceeds after allegedly sending a rescission notice.”
Indeed, in Wilson v. Homeowners Loan Corp., 263 F. Supp. 2d 1212, 1219 (E.D. Mo. 2003), the court noted: “[T]here is nothing in the TILA that precludes applying the equitable principles of estoppel and waiver.”
For equitable estoppel to bar their claims, the Sumners, by their acts, representations, admissions, or silence when they had a duty to speak, must have induced Deutsche Bank to believe certain facts existed. See Cosgrove v. Young, 230 Kan. 705, 717, 642 P.2d 75 (1982). Deutsche Bank must show that it rightfully relied and acted upon such belief and would now be prejudiced if the Sumners were permitted to deny the existence of such facts. See 230 Kan. at 717. In other words, for equitable estoppel to apply, “the party asserting it must at least show: (1) misrepresentation; and (2) detrimental reliance.” 230 Kan. at 718.
Deutsche Bank argues that the Sumners committed several acts that induced its belief that the Sumners sought to enforce the mortgage contract. First, the Sumners sent e-mails “and made several phone calls insisting that the loan be funded, all after their alleged rescission[.]” On September 30, 2004 — 4 days after allegedly rescinding the mortgage — Doug Sumner e-mailed Creel and said:
“I tried to get back to you several times yesterday, as you know... .
“By now, you know what the exact amount of funds are available. Please let me know, and when I can verily completion of the wire transfer. . . .
“Please do not leave me hanging.”
Then, on October 1, 2004, Doug e-mailed Creel again: “Have not heard from your insfurance] agent. Is the 14,854.48 the amount they will be wiring to our business account?” Later on October 1 in another e-mail, Doug asked Creel if the loan disbursement would hit their bank account that day; Doug said: “I do NOT want to be a pest. So, tell me plainly, is this going to hit our account today, or not?” Doug sent another e-mail on October 20, 2004, saying: “Your ‘gal’ still has not contacted us concerning the homeowners ins[urance]. Please have her get with us right away. This was part of our agreement with you and Ameriquest.... So, I want to getthis [sic] taken care of, . . . pretty please?”
The record does not show that either of the Sumners contacted Creel or AMC to discuss or confirm their rescission, nor does it contain a mention of any attempt to rescind the transaction until Doug says he “found” their rescission notice 2 years after sending it. Further, as Deutsche Bank notes, the Sumners “accepted the proceeds, made loan payments without protest, and voluntarily acted in accordance with normal protocol for a non-rescinded loan.” Finally, the Sumners original answers and counterclaims sought to reinstate the mortgage transaction. These acts no doubt induced Deutsche Bank to believe that the Sumners had no interest whatsoever in rescinding the transaction.
Based on the acts by the Sumners, Deutsche Bank rightfully relied on its belief that no rescission was sought by the Sumners, thus closing the transaction and disbursing the loan proceeds. Deutsche Bank argues it would be prejudiced if the Sumners were now permitted to assert their rescission claim. We agree with Deutsche Bank, that “a party with full knowledge of the facts, [that] accepts the benefits of a transaction or contract, may not subsequently take an inconsistent position to avoid corresponding obligations or effects,” citing Levi Strauss & Co. v. Sheaffer, 8 Kan. App. 2d 117, 650 P.2d 738 (1982). In Levi Strauss, this court held:
“The doctrine of equitable estoppel requires consistency of conduct, and a litigant is estopped and precluded from maintaining an attitude with reference to a transaction involved wholly inconsistent with his previous acts and business connection with such transaction.” [Citations omitted.]’ ” 8 Kan App. 2d at 122.
The Sumners rely on Semar v. Platte Valley Federal S & L Ass’n, 791 F.2d 699, 706 (9th Cir. 1986), and Rachbach v. Cogswell, 547 F.2d 502, 505 (10th Cir. 1976). Neither case has application to these facts. In fact, these cases are so clearly inapplicable that neither case merits further discussion by this court.
The Sumners also argue that Deutsche Bank’s alleged unclean hands should preclude it from claiming estoppel. As proof of Deutsche Bank’s unclean hands, the Sumners rely on a class action allegedly pending or resolved in Alameda County, California. The Sumners claim this case established misconduct by AMC on a nationwide scale between 1999 and 2005. The Sumners cite to a journal entiy in that case but did not provide it to the district court or to this court. At one point, the Sumners’ counsel told the court:
“I’ve got a copy of that journal entry, but judge, I shouldn’t have to do that. I’ve given the court the case number, the county, I’m sure the court has better research facilities than I do. That’s there for you to see what Ameriquest, this innocent plaintiff, has done to people throughout this country. If you were to do a computer search, Your Honor, you would find literally scores of cases all around the country dealing with Ameriquest over these same types of activities.”
To the extent the Sumners expect this court to consider the alleged class action, they were obligated to include such evidence in the record. Moreover, the Sumners have never indicated whether they were members of the purported class, whether the class was certified, whether liability was established, and whether principles of collateral estoppel would apply. For all these reasons, we decline to consider the argument. See Adams v. Via Christi Regional Med. Center, 270 Kan. 824, 838, 19 P.3d 132 (2001). (“An appellant . . . has the duty to designate a record sufficient to establish the claimed error. Without an adequate record, the claim of alleged error fails.”).
We conclude that the district court did not err in applying equitable estoppel and barring the Sumners’ rescission claims under TILA.
Did the District Court Err in Dismissing the Sumners’ Claims Due to Discovery Abuse?
Finally, the Sumners argue on appeal that the district court erred in dismissing the Sumners’ remaining counterclaims due to discovery abuse under K.S.A. 60-237. Generally, we review a district court’s imposition of discovery sanctions for an abuse of discretion. Canaan v. Bartee, 272 Kan. 720, 726, 35 P.3d 741 (2001). The factual predicate for the court’s imposition of its sanction award and the basis for the court’s ultimate conclusion is best stated in the district court’s order:
“The present foreclosure action has now been on file for well over two years with the depositions of the Defendants still not having been taken by Plaintiff s counsel. The depositions were first scheduled in July of2006. The Sumners sought continuances of their respective depositions with Plaintiff s counsel agreeing to reschedule the depositions.
“The depositions were rescheduled on March 19 and 20, 2007. The day before the depositions, the Sumners indicated by fax they were not going to appear and failed to do so.
“The depositions were next set March 29 and 30, 2007. The Defendant’s filed motions for continuance of the depositions. The Court did not grant the motions. Counsel for the Plaintiff drove to Hutchinson from Kansas City and spent one night in a local hotel/motel with neither Defendant appearing for their respective deposition.
“The depositions were rescheduled for August 23 and 24, 2007. The day before the depositions, counsel for the Defendants indicated the Defendants would not appear for the depositions. Counsel for the Defendants indicated the Defendant had been called out of State on a business emergency and that counsel had failed to formally advise the Defendants of the date of the depositions.
“The depositions were rescheduled for March 6, 2008. Defendant Doug Sumner appeared at the deposition under the influence of a prescription drug. This Court was contacted by telephone where it was indicated to the Court by Defendants’ counsel that Mr. Sumner was unable to testify truthfully in response to questions propounded by Plaintiff s counsel. The depositions were continued.
“The depositions were reset to March 18 and 19, 2008. On March 14, 2008, counsel for the Sumners filed a motion for continuance of the March 18 and 19 depositions. It was indicated Mr. Sumner remained on pain medication for a tooth extraction occurring on March 5,2008. It was indicated the dentist was on vacation and an affidavit could not be provided before March 16, 2008. Also, it was indicated Mr. Sumner needed to be out of State for work related activities. As of March 19 the affidavit has not been supplied the Court, neither has the report from Mr. Sumner’s treating physician as to the effect of Mr. Sumner’s medications.
“Initially, both Defendants appeared in this action pro se. The Petition was originally filed in July of 2005. In June of 2006 Elizabeth Carson entered her appearance as legal counsel on behalf of the Defendants.
“In Februaiy 2007 Elizabeth Carson was allowed to withdraw as counsel for the Defendants. The Court notes that the Defendants made accusations against Ms. Carson that if had been made by legal counsel the Court would have been compelled to file an ethics complaint against the individual making the claims.
“Present counsel for the Defendants entered his appearance initially in April of 2007. Mr. Sumner has indicated the Court’s previous statements in regards to the positive effect of the Sumners obtaining counsel and not proceeding pro se. The Court’s comments were directed to having the assistance of counsel in seeing the matter was proceeded with in a timely matter. The situation has not improved with the entry of appearance of counsel. As the Court has previously indicated, the Sumners have experience in pro se litigation having in excess of thirty entries in the Court’s computer system. The Sumners have been involved in litigation as both plaintiff and defendants including the filing of a medical malpractice action pro se.
“The Sumners have represented themselves in four previous foreclosure actions involving die same property. In each of the cases the Sumners filed extensive pleadings on their own behalf.
“In 98 C 292 the Sumners filed counterclaims alleging lack of service, fraud, extortion and forced insurance coverage among other claims. Counsel for the Plaintiff sought sanctions when he flew to Wichita and the Sumners did not appear for properly noticed depositions. In 99 C 334 the Sumners filed counterclaims alleging extortions, fraud, libel, slander, [and] forced insurance coverage among other claims. The Sumners sought and obtained recusal of Judge Rome and Judge Lyle. In 02 C 516 the Sumners alleged lack of service and fraud among other claims.
“In 03 CV 412 the Sumners counterclaimed alleging lack of service, fraud, and forced insurance among other claims. The Sumners, as in one of the earlier foreclosure cases, sought default judgment on their counterclaims when counsel, as in the previous case, indicated no notice of the counterclaims was attempted by the Sumners.
“The present action was filed in July of 2005. The court file now contains four volumes. In their original answers and counterclaims the Sumners allege failure of the Plaintiff to maintain insurance, slander, libel per se, and fraud among other claims.
“In August of 2006 Ms. Carson filed an amended answer and counterclaim on behalf of the Sumners in essence starting the case over again. The relationship between Ms. Carson and the Sumners deteriorated to the point Ms. Carson was allowed to withdraw which necessitated more delay. Ms. Carson withdrew January 31, 2007.
“Mr. ArbucHe entered his appearance in April 2007. The Court has continued the trial of the matter after indicating the trial would not be continued to allow the Sumners and counsel to prepare. As of March 19, 2008 the Defendants’ depositions have not been taken.
“The Court in this opinion lists primarily the efforts dealing with the taking of tlie depositions of the Defendants. The Plaintiffs various motions for sanctions and renewal of motions for sanctions list out difficulties in proceeding in general.
“K.S.A. 60-237 allows sanctions to be ordered for failing to comply with discovery. In addition to findings of contempt, assessment of costs and attorney fees, the Court is authorized to dismiss claims of a party or to render judgment by default against the noncompliant parly.
“The Court is aware of the consideration that must be given before sanctions of dismissal and or granting of summary judgment are ordered. Default judgment as a sanction should be imposed only as a last resort when lesser sanctions are clearly insufficient to accomplish the desired end. CANAAN v. BARTEE, 272 Kan. 720 (2001). The following tests are identified in determining whether the district court has abused its discretion in granting a default judgment for failure to comply with discovery orders: (1) whether the discoverable material goes to a dispositive issue in the case; (2) whether alternative sanctions sufficient to protect the parly seeking discovery were available; and (3) whether the requested information was merely cumulative or corroborative. SUPRA.
“The Court finds the actions of the Defendants demonstrate a deliberate course of delay. The Court finds based upon the cross-claims and various allegations made by the Defendants at various junctures throughout the course of litigation that the discoverable material sought goes to the dispositive issues of the case. The Court finds alternative sanctions sufficient to protect lire Plaintiff are not available and the requested information is not cumulative or corroborative. The Court does note Defense Counsel has now filed a motion to quash subpoenas against the Defendants that require their presence at their depositions.
“The Court finds the failure to comply with discovery is not a result of inability, nor reckless indifference or negligence. The continual course of conduct of the Defendants in this case is found by the Court to be willful and deliberate, interfering in the efficient administration of justice.
“The Court finds under die unique facts of this case including repeated attempts by the Court during the course of the litigation to accommodate the Sumners that lesser sanctions would not be appropriate. It is with reluctance die Court makes its ruling, but after careful consideration of the appropriate standards to be applied and pursuant to K.S.A. 60-237, the Court grants the motion for sanctions of the Plaintiff and dismisses with prejudice the remaining claim of the Defendants as well as granting summary judgment on the claim of the Plaintiff.”
We begin our analysis by examining K.S.A. 60-237(b)(2), which provides in material part;
“If a party . . . fails to obey an order to provide or permit discovery . . . , the judge before whom the action is pending may malee such orders in regard to the failure as are just, and among odiers the following:
“(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.”
There is apparently no dispute that the district court had made specific orders for the Sumners to provide or permit discovery. In its telephonic hearing on March 6, 2008, the court ordered that the Sumners file a formal motion to continue the depositions and include “an affidavit provided from the dentist indicating what he believes the effects of the medication are, and if he believes there’s any time between now and the end of the month in which Mr. Sumner will not be required to be on medication.” The court also ordered that the depositions “be reset according to Mr. Norkey’s schedule at a location of his choice prior to the end of discovery, which is still set on March 20th . . . .” Before the telephone conference ended, the court reiterated its order that “the Sumners will make themselves available for a deposition at a location of Mr. Norkey’s choosing within that 45 day period [before discovery was to close].” None of these orders was obeyed.
Where the evidence shows that a party has acted in deliberate disregard of reasonable and necessary court orders and the party is afforded a hearing and an opportunity to offer evidence of excusable neglect, the imposition of a stringent sanction will not be disturbed. Shay v. Kansas Dept. of Transportation, 265 Kan. 191, 194, 959 P.2d 849 (1998). Both Kansas appellate courts have recognized the severity of judgment by default as a sanction for failure to comply with discovery orders, and each court has emphasized the importance of careful exercise of judicial discretion before imposition of that sanction. Dismissal of a lawsuit should only be used as a last resort when other lesser sanctions are clearly insufficient to accomplish the desired end. See Burkhart v. Philsco Products Co., 241 Kan. 562, 576-77, 738 P.2d 433 (1987); Field v. Stauffer Publications, Inc., 2 Kan. App. 2d 323, 327-29, 578 P.2d 1138, rev. denied 225 Kan. 843 (1978).
Our Supreme Court has identified the following factors in determining whether the district court has abused its discretion in granting default judgment for failure to comply with discovery orders: (1) Does the discoverable material go to a dispositive issue in the case? (2) Are alternative sanctions sufficient to protect the party seeking discovery available? and (3) Is the requested information merely cumulative or corroborative? Canaan, 272 Kan. at 727; Hawkins v. Dennis, 258 Kan. 329, 341, 905 P.2d 678 (1995); see also Wenger v. Wenger, 239 Kan. 56, 59-61, 716 P.2d 550 (1986) (counterclaims dismissed and default judgment entered for continued failure to make discovery); Binyon v. Nesseth, 231 Kan. 381, 383-85, 646 P.2d 1043 (1982) (default judgment entered after repeated unsuccessful attempts to force defendant to comply -with discovery orders).
The United States Court of Appeals for the Tenth Circuit has outlined five factors to be considered before ordering dismissal as a sanction under parallel Rule 37 of the Federal Rules of Civil Procedure. That court discussed the need for the aggravating factors to outweigh the judicial system’s strong predisposition to resolve cases on their merits to justify dismissal as an appropriate sanction:
“Before choosing dismissal as a just sanction, a court should ordinarily consider a number of factors, including: ‘(1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process;... (3) the culpability of the litigant,’ Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1465 (10th Cir.1988) (quoting Meade [v. Grubbs], 841 F.2d [1512,] 1521 n. 7 (10th Cir.1988)); (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance, see, e.g., Willner v. University of Kansas, 848 F.2d 1023, 1030 (10th Cir.1988) (per curiam), cert. denied, 488 U.S. 1031, 109 S. Ct. 840, 102 L.Ed.2d 972 (1989); [In re] Standard Metals, 817 F.2d [625,] 629 [10th Cir. (1987)]; Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.), cert. denied, 493 U.S. 863, 110 S. Ct. 180, 107 L.Ed.2d 135 (1989); Spiller v. U.S.V. Labs., Inc., 842 F.2d 535, 538 (1st Cir.1988); and (5) the efficacy of lesser sanctions. See Ocelot Oil, 847 F.2d at 1465; Meade, 841 F.2d at 1520; Taylor v. Medtronics, Inc., 861 F.2d 980, 986 (6th Cir.1988). ‘Only when the aggravating factors outweigh the judicial system’s strong predisposition to resolve cases on their merits is dismissal an appropriate sanction.’ Meade, 841 F.2d at 1521 n. 7 (citations omitted).” Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992).
The court recognized that “[tjhese factors do not constitute a rigid test; rather, they represent criteria for the district court to consider prior to imposing dismissal as a sanction,” and also that the district court “should ordinarily evaluate these factors on the record.” 965 F.2d at 921.
Applying the factors suggested by our Supreme Court, we are convinced the dismissal sanction was appropriate. First, we note that the depositions of the Sumners went to a dispositive issue in this case. Second, alternative sanctions were not sufficient to protect Deutsche Bank from further delay and harassment given the severity and persistence of the Sumners’ misconduct. Third, the request to depose the Sumners was not cumulative of other evidence, but rather the depositions were critical to understanding and testing the counterclaims made against Deutsche Bank.
If we apply the Tenth Circuit factors here, we remain convinced that the dismissal sanction was appropriate. First, we note that Deutsche Bank had suffered significant prejudice due to the delays in deposing the Sumners, including the inability to obtain relief on the foreclosure action for more than 2 years and the enormous cost of prolonged and vigorous litigation throughout this period. Second, we consider the failure of the Sumners to make themselves available to be deposed after at least eight genuine attempts over this period as a significant interference with the judicial process. Third, we deem the Sumners to be culpable for the delays; counsel may share some of this culpability, but the Sumners were culpable in the first instance. Fourth, the only factor weighing in favor of the Sumners was the district court’s failure to issue a specific warning to the Sumners that their failure to obey the discovery orders would result in a dismissal. Fifth, we agree with the district court in concluding that lesser sanctions would not serve to adequately protect Deutsche Bank from further delay and harassment.
The Sumners argue on appeal that dismissal was not appropriate because they did not have the ability to comply with the court’s orders because their dentist was out of town and the need for medication continued until the court’s deadline for discovery completion. The problem with this argument is that the Sumners conduct between March 6 and 20, 2008, must be viewed in context with their conduct throughout the litigation. As the district court noted, the Sumners had exhibited a “deliberate course of delay” throughout the litigation, and the conduct in March 2008 must be viewed as the proverbial “straw that broke the camel’s back.” Of particular interest, however, is that the order to provide the dentist’s affidavit has never been obeyed, not only during the dentist’s alleged vacation, but at any time thereafter. Because of this non compliance, the Sumners have also never supported their excuse for failure to comply with the court’s order for their depositions prior to March 20, 2008.
The Sumners also argue on appeal that dismissal was not appropriate because they were not afforded a hearing on the matter. Yet, this court has confirmed within the record on appeal that the Sumners were afforded not one but several hearings on the matter, beginning with Judge Chambers’ telephone conference on March 6, 2008, and ending with the final hearing before Judge McCarville on August 8, 2008. Moreover, tire Sumners submitted numerous briefs and affidavits in opposition to the original sanctions’ motion filed by Deutsche Bank, all of which went to the underlying failure of the Sumners to submit to depositions.
Finally, the Sumners argue that the dismissal sanction was an abuse of discretion because it sought to penalize rather than accomplish the objects of discovery. We disagree. From our extensive review of the entire record of proceedings in the district court, it is abundantly clear that the Sumners’ litigation conduct was based upon a deliberate strategy to delay the foreclosure action. They remained in the residence that was the subject of this action from February 2005 until late 2008 without a single payment on their mortgage obligations. As partially reflected in this court’s factual statement above, they filed motions, objections, extensions, requests for continuances, requests for hearing, motions to revise journal entries, and requests for reconsideration, often in duplicate for Doug and Carol, until the record exceeded 2,000 pages, and yet never submitted to a deposition within the court-imposed discoveiy period to explain and be tested on their claims of numerous TILA violations and KCPA violations including misrepresentations, deceptive trade practices, and associated statutoiy violations. As only one example of their conduct, the Sumners consumed scores of pages in the record in the attempt to have the court revise a journal entry to reflect a purported error in a single digit of a phone number recited in the order. And to top off this conduct, in furtherance of their delay tactics, they sought to disqualify every judge assigned to their case, both in this action and in previous foreclosure actions. We agree with Judge McCarville, who suggested that the Sumners “have chosen by their voluntary acts not to allow the claims in the case to be decided on the merits.” Frankly, after our review of the record on appeal, we believe that the sanction of dismissal may not have been severe enough to match the misconduct.
Having concluded that there was no abuse of discretion here, we note that the better practice is for the trial judge to warn the litigants and counsel that a failure to obey a discovery order may lead to the ultimate sanction of dismissal of any claims before invoking this extreme sanction. Although such a warning was not offered here, our evaluation of all other potential factors supports the court’s sanction order and such a notice is not a prerequisite to the dismissal sanction. See Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1149-50 (10th Cir. 2007); Archibeque v. Atchison, Topeka & Santa Fe Ry. Co., 70 F.3d 1172, 1175 (10th Cir. 1995).
We take a page from the United States Court of Appeals for the Second Circuit in stating that we intend our decision today in this case as a sharp warning that litigants and counsel may not engage in an obvious pattern of delay and harassment with impunity in Kansas courts. See Peart v. City of New York, 992 F.2d 458, 463 (2d Cir. 1993).
In summary, we hold that the district court erroneously dismissed the Sumners’ TILA disclosure claims for recoupment or setoff, but even if those claims had survived as a matter of law, they were clearly subject to dismissal thereafter, along with the other remaining claims, due to the discovery abuse of the Sumners.
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Bukaty, J.:
Cornerstone Homes, LLC (Cornerstone), is a seller of mobile homes, sometimes referred to as manufactured homes. It sold such a home to Gary, Alberta, and Shawn Skinner, who made a cash down payment. They signed a note and gave a mortgage on certain real estate they owned in favor of Cornerstone for the remainder of the purchase price. The Skinners later defaulted in their payments, and Cornerstone filed suit to foreclose its mortgage. The Skinners never denied signing the mortgage or defaulting on their payment obligations. In their defense, they argued that Cornerstone was guilty of fraud for failing to deliver to them the manufacturer’s statement of origin (MSO) for the mobile home and this precluded Cornerstone from obtaining judgment for the amount due and for foreclosure of its mortgage. The Skinners also counterclaimed for damages on various theories all based essentially on Cornerstone’s failure to deliver the MSO. They also sued Jack Hunt, a principal in Cornerstone on these same claims. That suit was consolidated with Cornerstone’s foreclosure action. The district court granted Cornerstone the judgment it requested and denied all of the Skinners’ claims.
All the arguments of the Skinners in this appeal raise as their core issue the question of whether the failure of a seller of a new mobile home to deliver the MSO to the buyer as required by statute is fraudulent as a matter of law and voids the sale. We answer the question, “No.” This finding, in essence, defeats the Skinners’ defense to Cornerstone’s foreclosure petition and all of their claims against Cornerstone and Hunt. We affirm.
After negotiations with Cornerstone’s principals, Jack and Vicki Hunt, the Skinners agreed to purchase the home. According to the bill of sale, the total sales price including tax was $48,258. The Skinners made a down payment of $4,700, and Cornerstone agreed to finance the remainder of the purchase price at 12% interest. As collateral, Cornerstone took a 30-year mortgage on the Skinners’ real property where the home would be placed.
The parties closed on the purchase on May 10, 2004. Hunt represented Cornerstone at the closing. At that time, Hunt did not have in his possession the MSO for the mobile home. The MSO is required for the Kansas Department of Revenue to issue an initial certificate of title. See K.S.A. 58-4204(e). According to notes taken by the closing representative of the title insurer, First American Title/Columbian Title (First American), Hunt stated: “ ‘He should have [it] in a couple of weeks.’ ” The home was delivered to the Skinners’ property within 3 days of closing. Cornerstone recorded its mortgage on the Skinners’ real property on May 13.
The Skinners made full, timely payments to Cornerstone for the next year. However, they were unable to malee their full July 2005 payment after Gary Skinner suffered a heart attack. The Skinners contacted Cornerstone and made a partial payment for that month. Hunt reacted negatively to this, and the Skinners sought to refinance the property with another lender as a result.
The Skinners never obtained any alternate financing. First American became involved, apparently, at the Skinners’ request. It was soon discovered that Cornerstone had never provided the MSO for the mobile home, and, consequently, no certificate of title had ever been issued. On July 28, 2005, First American sent Cornerstone a letter requesting information on the status of the mobile home’s title. Cornerstone did not respond to the letter. The Skinners never obtained alternative financing and did not make any payments to Cornerstone after August 2005. They apparently continued to five in the home, at least up to the time of the trial.
Cornerstone filed suit to foreclose on the mortgage on March 7, 2006. On April 12, 2006, the Skinners filed a one-page, handwritten response in which they summarily denied the petition’s allegations and stated they were refinancing the property and would be able to pay in full. On May 1, the district court granted Cornerstone default judgment and ordered a Sheriffs sale of the mortgaged property to satisfy the judgment.
In October 2006, the district court set aside the default judgment on the Skinners’ motion and allowed them to file an answer. The Skinners filed an answer and argued that the transaction with Cornerstone was fraudulent and void under K.S.A. 58-4204 because Cornerstone never provided them with the MSO or a certificate of title. They claimed the sale was void and demanded return of their monthly payments, the down payment, and closing costs plus cancellation of the mortgage.
The Skinners also filed a number of counterclaims against Cornerstone relating to Cornerstone’s failure to provide the MSO. The first claim alleged statutory fraud under K.S.A. 58-4204. The second alleged that Cornerstone violated the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq., by fading to provide them with the MSO, by fifing a false lawsuit, and by acting in an unconscionable manner.
Prior to trial, the district court disposed of the Skinners’ claims for statutory fraud in its ruling on a summary judgment motion filed by Cornerstone. It found that Cornerstone did not provide the Skinners with the MSO within 30 days of closing. However, the court agreed with Cornerstone that the Skinners were relying on the wrong section of K.S.A. 58-4204 as the basis for their fraud claim. Specifically, the court concluded that K.S.A. 58-4204(e) applied, rather than the section relied upon by the Skinners — K.S.A. 58-4204(h) — and that the applicable subsection did not provide that failure to deliver the MSO amounted to a fraudulent act or would it void the transaction between Cornerstone and the Skinners. The court declined to grant Cornerstone summary judgment on the Skinners’ KCPA claims.
At the time it ruled on the summary judgment motion, the district court also orally announced a number of factual findings relevant to the foreclosure claim of Cornerstone. The court found the Skinners had agreed to purchase and Cornerstone had agreed to sell the manufactured home, Cornerstone did not have possession of the MSO at the time the purchase was closed, the purchase was financed with a note and mortgage on real estate the Skinners owned, and the Skinners were in default for nonpayment of amounts due Cornerstone. The Skinners did not object to these findings.
The parties then proceeded to trial in June 2008 on the remaining claims. Prior to hearing evidence on the Skinners’ KCPA claims, the district court indicated that based upon the prior record in the case including the pretrial order and previous findings entered by the court, it appeared there was no dispute the Skinners had signed the note and mortgage and they had defaulted on their payment obligations contained in them. The court further indicated that since there had been a determination that Cornerstone’s failure to deliver the MSO was not a fraudulent act that voided the transaction, Cornerstone was then entitled to judgment on its foreclosure claim.
Then, as to the Skinners’ KCPA claims, the court heard the testimony of Vicki Hunt. She described the procedures normally taken relative to the procurement of the MSO for a new mobile home. She testified that the MSO was typically sent directly from the supplier to the title company after Cornerstone paid the supplier for the unit. She stated that Cornerstone paid the supplier and had no reason to believe that it would not issue the MSO for the mobile home. She admitted that no one at Cornerstone followed up to confirm whether the MSO had in fact been sent. She stated that she had not read First American’s July 28, 2005, letter and was not aware the Skinners had never been provided with the MSO until October 2006, after Cornerstone had initiated the foreclosure action against the Skinners. Then once she became aware that the Skinners did not have the MSO, Cornerstone obtained a duphcate MSO from the mobile home supplier and offered it to Skinner. The Skinners apparently refused to accept it.
The district court granted Cornerstone’s petition for judgment in the amount of $61,066.33 and for foreclosure of its mortgage. It also granted Cornerstone judgment as a matter of law on the Skinners’ KCPA claims, finding that the Skinners failed to prove by a preponderance of the evidence that Cornerstone violated the KCPA in not delivering the MSO as required in K.S.A. 58-4204(e).
Statutory Fraud
The parties argue this issue on appeal as they did in the district court. The Skinners contend that the district court erred in not applying the statutory fraud provision of K.S.A. 58-4204(h) (2007/ 2008 amendments not applicable) in denying the counterclaim based upon statutory fraud. Cornerstone counters that under the plain language of the statute, K.S.A. 58-4204(h) does not apply and the district court properly applied K.S.A. 58-4204(e).
Where there is no factual dispute, appellate review of an order regarding summary judgment is de novo. Central Natural Resources v. Davis Operating Co., 288 Kan. 234, 240, 201 P.3d 680 (2009). Furthermore, this case requires the court to interpret the relevant statutes, which is an issue over which an appellate court has unlimited review. Double M Constr. v. Kansas Corporation Commn, 288 Kan. 268, 271, 202 P.3d 7 (2009). An appellate court’s first task is to “ ‘ascertain the legislature’s intent through the statutoiy language it employs, giving ordinary words their ordinary meaning.’ [Citation omitted.]” State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009).
The sale of mobile homes in this state is governed by the Kansas Manufactured Housing Act. K.S.A. 58-4201 etseq. K.S.A. 58-4204 sets out the procedural requirements for transferring title to such a home. Subsection (e) of that statute governs the transfer of title of a new mobile home. That section states:
“Dealers shall execute, upon delivery to the purchaser of every new manufactured home, a manufacturer’s statement of origin stating the liens and encumbrances thereon. Such statement of origin shall be delivered to the purchaser at the time of delivery of the manufactured home or at a time agreed upon by the parties, not to exceed 30 days, inclusive of weekends and holidays. The agreement of the parties shall be executed on a form approved by the director. In the event delivery of title cannot be made personally, the seller may deliver the manufacturer’s statement of origin by restricted mail to the address of the purchaser shown on the purchase agreement. The manufacturer’s statement of origin may include an attachment containing assignment of such statement of origin on forms approved by the director. Upon the presentation to the division of a manufacturer’s statement of origin, by a manufacturer or dealer for a new manufactured home, sold in this state, a certificate of title shall be issued.” K.S.A. 58-4204(e).
The Skinners contend that another part of K.S.A. 58-4204 applies here, subsection (h):
“In the event of a sale or transfer of ownership of a manufactured home or mobile home for which a certificate of title has been issued, which certificate of title is in the possession of the transferor at the time of delivery of the manufactured home or mobile home, the holder of such certificate of title shall endorse on the same an assignment thereof, with warranty of title in a form prescribed by the director and printed thereon, and the transferor shall deliver the same to the buyer at the time of delivery to the buyer of the manufactured home or mobile home, or at a time agreed upon by the parties, not to exceed 30 days, inclusive of weekends and holidays, after the time of delivery. The sale of a mobile home or manufactured home by a manufactured home dealer without such delivery of an assigned certificate of title is fraudulent and void, and it shall constitute a violation of the Kansas manufactured housing act. The agreement of the parties shall be executed on a form provided by the division. The requirements of this subsection concerning delivery of an assigned title are satisfied, if the transferor mails to the transferee, by restricted mail, the assigned certificate of title within the 30 days, and if the transferor is a dealer, as defined by K.S.A. 58-4202, and amendments thereto, such transferor shall be deemed to have possession of the certificate of title, if die transferor has made application therefore to the division.” (Emphasis added.) K.S.A. 58-4204.
Clearly, K.S.A. 58-4204(e) applies to the sale of new manufactured homes and requires that die MSO for such a home be delivered by the seller to the buyer within 30 days of delivery of the home. When that MSO is then presented to the Kansas Department of Revenue, a certificate of tide is issued. Nowhere in the section, however, is there any mention that failure to deliver the MSO is a fraudulent act or that it voids the sale of the new manufactured home. In contrast, K.S.A. 58-4204(h) which the Skinners rely on obviously applies to the sale of manufactured homes for which a certificate of title has already been issued, such as a preowned home. This section provides that the sale or transfer of such a home without delivery of the certificate of title is fraudulent and void. In this case we are concerned with the sale of a new manufactured home for which no certificate of tide has yet been issued. Subsection (h) of the statute has no relevance and is not applicable.
Clearly, subsection (e) of K.S.A. 58-4204 that is applicable to this case is silent as to whether the failure to comply with delivery of the MSO constitutes fraud. In applying the plain and ordinary meaning to the words of the subsection, we believe it would read too much into the statutory subsection to construe it to mean that the failure to deliver the MSO in the sale of a new home constitutes fraud and voids the transaction. This is particularly apparent since another subsection specifically provides that failure to deliver an assigned certificate of title in the sale or transfer of a preowned mobile home for which a certificate of title has already been issued is fraudulent and void. The absence of a reference to fraud in the first situation is significant. Had the legislature intended to make it fraudulent to not timely deliver the MSO in that instance, it very easily could have done so.
The Skinners’ argument that Cornerstone’s failure to provide them with the MSO was fraud is based almost entirely on a 1968 case in which our Supreme Court interpreted the predecessor statute to K.S.A. 58-4204. In Wilcox Trailer Sales, Inc. v. Miller, 200 Kan. 315, 323, 436 P.2d 860 (1968), the court affirmed a district court’s ruling that the failure of a dealer to provide a buyer of a mobile home with a “bill of sale” at the time of purchase of a new home rendered the transaction fraudulent and void. The statute in effect at that time which governed the sale of mobile homes was the same statute that governed the transfer of other motor vehicles. It required a dealer to provide the buyer with a bill of sale at the time of purchase. See K.S.A. 8-135 (Corrick 1964). The court reasoned that because a certificate of title had not yet been issued, this bill of sale “is the origin of the purchaser’s title to the vehicle.” Wilcox, 200 Kan. at 320. The court then equated a bill of sale with a certificate of title. And, because it was unlawful to buy or sell any vehicle without transferring a certificate of title and any such sale was fraudulent and void under the applicable statute, the sale of the mobile home in that case was deemed fraudulent and void. 200 Kan. at 320-23.
While the facts of Wilcox are very similar to those in this case, the statutes in effect now that govern the sale and transfer of mobile homes are different. Primarily, the relevant sections of K.S.A. 8-135 (Corrick 1964) applied to every vehicle transfer whether it involved a new vehicle or a vehicle for which a certificate of title had previously been issued. Subsection (c)(3) of the statute re quired the execution of a bill of sale “upon delivery to the purchaser of every vehicle” and subsection (c)(6) of K.S.A. 8-135 (Cor-rick 1964) made it unlawful “for any person to buy or sell in this state any vehicle” without the transfer of a certificate of tide. K.S.A. 2009 Supp. 8-135 contains this same language today, but the statute no longer applies to the sale of mobile homes. The applicable statutory subsections today are K.S.A. 58-4204(e) and (h) which, as we have pointed out, treat the failure to deliver the MSO for a new home and the failure to deliver an already issued certificate of title on a preowned mobile home differently as to whether they constitute fraud. As a result, while K.S.A. 8-135(c)(3) and (c)(6) (Corrick 1964) could be read together because they both applied to every vehicle transaction, K.S.A. 58-4204(e) and (h) are distinct and different in their application. They apply to transactions involving different classifications of manufactured homes, new ones and ones that have previously been issued a certificate of title.
We are not persuaded by the Skinners’ argument that the relevant subsections of K.S.A. 58-4204 are a mere continuation of K.S.A. 8-135 (Corrick 1964) and that Wilcox should still control. They cite a number of decisions in support of the argument. None, however, explain how or why the newer statutory scheme is a mere continuation of the older one in light of the significant differences in language that we have pointed out.
Even though this case involves the sale of a new manufactured (mobile) home, the Skinners further argue that we should treat the MSO as the equivalent to a certificate of title because the two documents are both primaiy evidence of ownership and the failure to provide either should result in the same remedy for the purchaser: avoidance of the transaction. Again, however, the plain language of the applicable statutory subsections treat the failure to deliver the required documents differently depending on the type of mobile home involved.
While clearly Cornerstone did not comply with the statutory requirement that it deliver the MSO to the Skinners, the district court correctly found Cornerstone’s failure to do so did not amount to fraud under the controlling statute and did not void the transaction. It is the legislature that established in plain language the requirement that a seller of a new manufactured home deliver the MSO to the buyer and that the seller of a preowned manufactured home for which a certificate of title has been issued must deliver the assigned certificate of title to the buyer. It is the legislature that omitted any reference to fraud when a seller in the first instance fails to deliver the MSO but then specified that it would constitute fraud when a seller in the second instance fails to deliver the assigned certificate of title as required. The intent of the legislature is expressed through the plain language of the applicable statutory subsections and we will not inquire into its intent in not mentioning a remedy or consequence for failure to deliver the MSO in the first instance. See Double M Constr., 288 Kan. at 271-72.
Cornerstone’s Judgment on Its Foreclosure Claim,
The Skinners next argue that the district court erred in sua sponte granting Cornerstone’s petition to foreclose on their real estate prior to commencement of trial. They argue that because they never received title to the mobile home, they received no consideration for signing the purchase agreement. They further argue that Cornerstone breached the sales contract by failing to provide the MSO.
The Skinners’ argument is simply an attempt to reframe their argument that Cornerstone’s failure to provide the Skinners with the MSO should void the sale. Also, they never raised defenses of failure of consideration and breach of contract to the district court. They cannot now raise them on appeal. See Miller v. Bartle, 283 Kan. 108, 119, 150 P.3d 1282 (2007).
In any event, the Skinners’ arguments on this issue are without merit. We note that evidence of the Skinners’ debt is attached to Cornerstone’s amended petition. As we stated, the district court entered findings at the beginning of the trial, based upon the record in the case, that Cornerstone had proven the parties had executed the relevant documents creating the Skinners’ debt and mortgage, the Skinners never denied they had defaulted, and the Skinners never disputed these crucial facts. The Skinners do not challenge on appeal the sufficiency of those factual findings. Those facts along with the ruling on summary judgment that failure of delivery of the MSO did not void the transaction clearly establish that Cornerstone was entitled to judgment on its foreclosure claim as a matter of law even prior to the court hearing evidence on the Skinners’ counterclaims in the case.
Furthermore, although not raised by either party, it appears that valid title did vest with the Skinners even though they were not provided with a document of title. This court has previously held that a sale or purchase of a mobile home is a transaction for the sale of goods that is governed in part by the Kansas Uniform Commercial Code (UCC). Linscott v. Smith, 3 Kan. App. 2d 1, 3, 587 P.2d 1271 (1978); see K.S.A. 84-2-102. Under K.S.A. 84-2-401(2), title to the goods purchased passes to the buyer on delivery “even though a document of title is to be delivered at a different time or place.” Here, title passed to the Skinners when the manufactured home was delivered to their property, even though they had not yet received the MSO.
The district court correctly determined that Cornerstone was entitled to judgment on its foreclosure claim based upon the record before it.
Claims Under the Kansas Consumer Protection Act
After hearing evidence, the district court denied the Skinners’ claims brought under the KCPA and granted Cornerstone judgment on all of them as a matter of law. The Skinners claim the court erred in each instance. The parties do not dispute the relevant facts. Consequently, we have de novo review of the district court’s entiy of judgment. See Deal v. Bowman, 286 Kan. 853, 858, 188 P.3d 941 (2008).
The Skinners first argue that Cornerstone’s failure to provide the MSO amounted to a per se deceptive act which is prohibited under two subsections of K.S.A. 50-626, specifically, (b)(1)(A) and (b)(8) (2009 amendments not applicable). Under K.S.A. 50-626(b)(1)(A), it is a deceptive act to make a representation “knowingly or with reason to know” that “[p]roperty or services have sponsorship, approval, accessories, characteristics, ingredients, uses, benefits or quantities that they do not have.” Under K.S.A. 50-626(b)(8), a supplier is prohibited from “falsely stating, knowingly or with reason to know, that a consumer transaction involves consumer rights, remedies or obligations.”
In essence, the Skinners argue that the failure to comply with a requirement in another separate and distinct statute to provide the MSO constitutes a violation of these KCPA sections. They provide no persuasive authority that is on point for this position. Nor have they established that Cornerstone’s failure to deliver the MSO constitutes the type of violation described in the subsections they cite.
As to the Skinners’ claim under K.S.A. 50-626(b)(l)(A), the undisputed facts contain no mention or reference to any misrepresentation Cornerstone made knowingly or with reason to know of its falsehood. It is true that if a supplier commits a “deceptive act” under the subsection, the buyer does not have to prove it relied upon the representation to obtain relief under the KCPA. However, the buyer still must establish that there was a misrepresentation of the type described in the subsection. While Cornerstone did not comply with the requirement that it deliver the MSO, it made no misrepresentations that can be construed as deceptive under this statute.
The Skinners contend that Cornerstone, as the seller of the manufactured home, represented as a matter of law it would comply with the law governing the sale and deliver the MSO and that its subsequent failure to do so renders the prior representation a falsehood. The Skinners base this argument on the proposition that the statutory law governing transactions are a part of those transactions. The Skinners extend this argument to imply that the supplier makes an affirmative statement that it already had or would comply with that statutoiy law and its failure to comply would then subject it to liability under the KCPA. However, none of the cases they cite in support of this argument are on point as they all involve actual misrepresentations made in addition to violations of a separate statute. The Skinners provide no other authority to support their argument, and we are not persuaded by it. To conclude otherwise would render any consumer transaction that involved noncompliance with a separate statute a violation of the KCPA. With no statutory basis to do so, we cannot make that stretch.
In addition, even if we imputed an affirmative statement in these circumstances to a supplier to the effect that it had or would timely deliver the MSO, such a statement is not the type described in K.S.A. 50-626(b)(l)(A) which would then subject it to liability under the KCPA. To aid in the application of this subsection, the Kansas comment to the section states that it “forbids such conduct as misrepresenting the durability or components of a product, or the efficacy of a service.” K.S.A. 50-626, comment 2. Both the plain language of the subsection and its accompanying comment indicate that it refers to misrepresentations relating to the physical or qualitative properties of the subject matter of the transaction.
The Skinners also argue that Cornerstone’s failure to provide the MSO violated K.S.A. 50-626(b)(8). That statute prohibits a supplier from “falsely stating, knowingly or with reason to know that a consumer transaction involves consumer rights, remedies or obligations.” The Kansas comment for this subsection states that it “proscribes statements such as one asserting that an installment contract must be paid in full irrespective of a defense, or that a supplier can [garnish] exempt wages.” K.S.A. 50-626, comment 2. The Skinners have not established how Cornerstone’s failure to provide the MSO somehow constitutes a statement about the their rights which would bring the statement within the proscriptions of this subsection. The Skinners’ claim here is without merit.
The Skinners also argue that Cornerstone violated K.S.A. 50-626(b)(8) by filing and maintaining its foreclosure action against the them. They claim that because the transaction was void under K.S.A. 58-4204(h), Cornerstone had no legal basis to pursue foreclosure and, in doing so, engaged in an impermissible debt collection practice allegedly prohibited by K.S.A. 50-626(b)(8).
Obviously, this argument is based on the fact the sale of the manufactured home was void as a matter of law. We have concluded otherwise in our analysis of the first issue discussed in this opinion. Additionally, we have previously set out the provisions of K.S.A. 50-626(b)(8). They make no mention of debt collection practices or the manner in which a seller might exercise its remedies. This claim of the Skinners is also without merit.
Finally, the Skinners argue that Cornerstone’s failure to provide the MSO was an unconscionable act under K.S.A. 50-627. Subsection (a) of the statute prohibits unconscionable acts or practices by a suppher in connection with a consumer transaction. Subsection (b) then provides a nonexclusive list of seven circumstances which, if the district court finds are present in a transaction and the suppher knew or had reason to know of them, may result in a determination that the transaction was unconscionable and subject to remedy under the KCPA. The Skinners argue that five of the factors are relevant, but they discuss only three of them.
We first note generally that the failure to deliver the MSO does not appear to be of the type of conduct this statute is intended to protect against. The Kansas comment to the subsection states that it “forbids unconscionable advertising techniques, unconscionable contract terms, and unconscionable debt collection practices.” K.S.A. 50-627, comment 1. The statute also protects against the limitation of implied warranties, but application of the statute is generally limited to conduct that fits under one of tírese categories. See State ex rel. Stovall v. ConfiMed.com., 272 Kan. 1313, 1320-21, 38 P.3d 707 (2002). Cornerstone’s actions do not involve any of the above types of conduct, and the Skinners fail to explain how or why the conduct here should be treated as such.
Against the backdrop of this general observation, we turn to the factors under the statute that the Skinners urge us to apply.
They first claim that Cornerstone took advantage of the their inability to reasonably protect their interests because of the Skinners’ “physical infirmity, ignorance, illiteracy, inability to understand the language of an agreement or similar factor” as recognized by K.S.A. 50-627(b)(l). They claim that Cornerstone’s failure to deliver the MSO was somehow unconscionable because Cornerstone was an experienced mobile home dealer. However, the statute does not mention the status of the suppher as a factor in determining unconscionability. It refers instead to the supplier’s wrongful capitalization of a buyer’s weakness. The record here lacks any claims or evidence relating to any infirmity that would put the Skinners in a disadvantageous bargaining position that was different from any other “average” buyer who was making a purchase from an experienced seller of manufactured homes.
The Skinners assertion under K.S.A. 50-627(b)(2) is also unfounded. That subsection protects against the sale of property at a grossly excessive price when similar property can otherwise be obtained. The Skinners claim that Cornerstone sold them the mobile home at a 63% markup and over-collateralized the loan. Most importantly, the purchase price bears no relation to Cornerstone’s failure to provide the MSO. Also, the Skinners provided no evidence that the price or the value of the collateral were unreasonable or that they were excessive in comparison to other mobile home sales.
The Skinners argument under subsection K.S.A. 50-627(b)(3) also falls short. It protects consumers who are “unable to receive a material benefit from the subject of the transaction.” K.S.A. 50-627(b)(3). They claim that Cornerstone’s failure to provide the MSO resulted in their inability to title the mobile home as a real property and, thus, they did not receive a material benefit of the transaction. Again, the Kansas comment to the subsection is informative. It states that this subsection “includes such conduct as the sale of two expensive vacuum cleaners to two poor families whom the salesman knows, or has reason to know, share the same apartment and the same rug.” K.S.A. 50-627, comment 2. The comment indicates that the statute applies to the practical use of property as opposed to legal rights surrounding it. Here, the Skinners clearly had the benefit of owning the manufactured home and living in it as long as they continued to make the payments they agreed to.
The district court correctly ruled that the Skinners’ claims against Cornerstone for violations of the KCPA were without merit and that Cornerstone should have judgment against the Skinners.
In conclusion, we do not trivialize or render meaningless the requirement that a supplier of a new mobile home must provide the buyer with the MSO under K.S.A. 58-4204(e). Under the language of the statute, the fact that a supplier fails to do so does not alone void the sale and allow the purchaser to avoid his or her obligations to pay for the home. Nor does that failure to deliver the MSO alone constitute violations of the KCPA subsections as claimed by the buyers here. The requirement is not without significance, however. It may be that a buyer who proves he or she incurred specific and identifiable damages directly related to the failure of a supplier to provide the MSO has a cause of action based upon the seller s noncompliance with the statutory requirement. But that is not the situation present in this case, and we offer no opinion in that regard.
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Green, J.:
Jim and Sue Byers appeal from a summary judgment granted in favor of Dennis Snyder and Snyders’ Marina Corpora tion (Snyder) in their breach of contract claim. On appeal, the Byers contend that they are entitled to a boat slip for their houseboat under Snyder s concessionaire’s agreement with the Kansas Department of Wildlife and Parks (Department). The concessionaire’s agreement vested Snyder with the obligation to furnish boat slips to park patrons of the Cheney State Park Marina and Concession. On the Byers’ contract law claim, the threshold question is whether the Byers have standing to enforce the contract that was entered into by Snyder and the Department. The Byers, not being a party to the contract, contend that they have standing as third-party beneficiaries.
We determine that because the Byers have previously paid mooring fees for the right to moor their houseboat at the marina, they ceased to be a member of the general public. Moreover, the Concession Agreement imposed an obligation on Snyder, arising from his possession, control, and ownership of the boat slips, to furnish sufficient boat slips to satisfy the demands of park patrons. We determine that the Concession Agreement conferred a benefit on park patrons who intended to moor their boats at the marina. As a result, the Byers can be classified as third-party beneficiaries of the Concession Agreement between Snyder and the Department. We further determine that the Byers have standing on their contract claim. Accordingly, we reverse and remand for trial.
Next, the Byers contend that the trial court wrongly concluded that it lacked authority to order reinstatement of the boat slip agreement between the Byers and Snyder. We agree. Accordingly, we reverse and remand for trial.
Turning next to Snyder’s cross-appeal, we note that Snyder appeals from a summary judgment granted in favor of the Byers in Snyder’s counterclaims for tortious interference with existing contractual relations and intentional private nuisance. Finding no error, we affirm. In addition, Snyder contends that the trial court erred in dismissing his counterclaim for invasion of privacy. We disagree. Accordingly, we affirm. Finally, Snyder asserts that the trial court erred in dismissing his counterclaim for defamation. We agree. Accordingly, we reverse and remand for trial.
On January 25,1991, the Department entered into a Concession Agreement with Wynn Robert Bailey. Under the terms of the Concession Agreement, Bailey was to furnish concession services and facilities on Cheney Reservoir “to the general public” and “park patrons,” beginning March 15, 1991, and ending on October 1, 2015. As concessionaire, Bailey was to provide, at a minimum, a floating dock and 141 boat slips with 68 of them covered. In exchange, Bailey was granted the exclusive right to provide concession services on the premises. He was also required to pay the Department an annual rental fee of $1,000 and 2% of all gross receipts.
On July 19, 1999, Bailey assigned the Concession Agreement to Damien Bailey and Dennis C. Snyder. Later, on August 19, 2005, the Concession Agreement was assigned completely to Snyder. Snyder operated the marina in the name of his company, Snyder Marina Corporation.
On August 24, 2007, the Byers sued Snyder for breach of contract and Snyder and the Department for promissory estoppel and declaratory judgment. They asked for a judgment requiring the defendants to allow the Byers to use their houseboat at the Cheney Reservoir Marina and to rent them a boat slip at the marina under the customary terms offered to other park patrons. Snyder answered and asserted several counterclaims, alleging defamation, invasion of privacy, tortious interference with existing contractual relations, and intentional private nuisance.
The Department moved to dismiss the Byers’ claims against it for lack of jurisdiction and judgment on the pleadings. The trial court denied the Department’s motion and gave the Byers leave to amend their petition to comply with the Kansas Act for Judicial Review and Enforcement of Agency Actions. See K.S.A. 77-601 et seq. After the Byers filed their first amended petition, the Department moved to transfer venue and bifurcate and stay proceedings, which the trial court granted. The court transferred all claims against the Department to Shawnee County District Court.
The Byers moved for partial summary judgment on their claims for a declaratory judgment and for an order requiring Snyder to allow the Byers to moor their houseboat at the Cheney Reservoir Marina. Moreover, the Byers moved for summary judgment on all of Snyder’s counterclaims. Snyder also moved for summary judgment on the Byers’ claim that Snyder breached his Concession Agreement with the Department.
The trial court granted the Byers’ motion for summary judgment as to Snyder’s counterclaims for tortious interference with contractual relations and nuisance. The trial court found no facts showing a breach of contract by the Department. Moreover, the court found no facts indicating that the Byers intended to create a nuisance or to harm Snyder. The trial court denied the Byers’ motion for summary judgment as to Snyder’s counterclaims for defamation and false light invasion of privacy, finding genuine issues of material fact precluded summary judgment.
As to the Byers’ claim for declaratory judgment, the trial court determined that it lacked standing to enforce the Concession Agreement between Snyder and the Department as third-party beneficiaries because the Concession Agreement was intended to benefit the general public. Consequently, the trial court granted Snyder’s motion for summary judgment on the Byers’ breach of contract claim.
In addition, the trial court ruled, sua sponte, that as a matter of law it had no authority to require Snyder to furnish the Byers a mooring slip for their houseboat. It also ruled, sua sponte, that Snyder’s claims for defamation and false light invasion of privacy failed as a matter of law. The trial court stated that the Byers’ words were not highly offensive to an ordinary person going about his or her business at the marina as a matter of law. Therefore, the only remaining issues were whether the Byers were entitled to recover damages based on a theory of promissory estoppel and, if so, the extent of the damages for relocating their houseboat. Later, the Byers dismissed without prejudice their remaining claim for damages associated with the cost to relocate their houseboat.
Standard of Review for All Issues
When the pleadings, depositions, answers to interrogatories, admissions, and affidavits show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. The trial court must resolve all facts and inferences reasonably drawn from the evidence in favor of the adverse party opposing summary judgment. The adverse party must present evidence to establish a disputed material fact. To preclude summary judgment, the disputed fact must be material to the case’s conclusive issues. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. Miller v. Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009). Where there is no factual dispute, appellate review of a summary judgment order is de novo. Central Natural Resources v. Davis Operating Co., 288 Kan. 234, 240, 201 P.3d 680 (2009).
Did the District Court Err in Granting Snyders Motion for Summary Judgment on the Breach of Contract Claim Based on the Byers’ Lack of Standing?
The Byers argue that the trial court erred in granting Snyder’s motion for summary judgment on their breach of contract claim because they are intended third-party beneficiaries of the Concession Agreement under the identifiable class called park patrons. Snyder responds that the Byers are merely incidental third-party beneficiaries as members of the general public and that they do not enjoy the necessary privity of contract.
In the present case, the trial court granted Snyder’s motion for summary judgment because it ruled the Byers did not have standing to sue. Standing implicates the court’s jurisdiction to hear a case, so the existence of standing is a question of law over which an appellate court’s scope of review is unlimited. Board of Sumner County Comm’rs v. Bremby, 286 Kan. 745, 751, 189 P.3d 494 (2008). Furthermore, this lack of standing was based on the Concession Agreement, and interpretation and legal effect of written instruments are matters of law over which appellate courts exercise unlimited review. Miller, 288 Kan. at 32. Regardless of the trial court’s construction of a written contract, an appellate court may construe it and determine its legal effect. City of Arkansas City v. Bruton, 284 Kan. 815, 829, 166 P.3d 992 (2007).
In the present case, the standing issue turns on whether Snyder and the Department intended to create an identifiable class of third-party beneficiaries, called park patrons, whom Snyder and the Department intended to benefit by the Concession Agreement and to which the Byers belong.
In determining whether a particular person is an intended beneficiary of a contract, the court applies the general rules for construction of contracts. Gray v. Manhattan Med. Center, Inc., 28 Kan. App. 2d 572, 580-81, 18 P.3d 291 (2001) (finding that uniformity among leases did not necessarily imply tenants were third-party beneficiaries of each other s leases). When interpreting written contracts, the primary rule is to ascertain the parties’ intent. If the contract terms are clear, the parties’ intent is determined from the contract language without applying rules of construction. Anderson v. Dillard’s Inc., 283 Kan. 432, 436, 153 P.3d 550 (2007). Contracts should not be interpreted by isolating one particular sentence or provision, but by construing and considering the entire instrument. Bruton, 284 Kan. at 832-33. Reasonable interpretations are favored, and results vitiating the purpose of the terms of the agreement to an absurdity should be avoided. Wichita Clinic v. Louis, 39 Kan. App. 2d 848, 853, 185 P.3d 946, rev. denied 287 Kan. 769 (2008).
Whether a written instrument is ambiguous is a question of law subject to de novo review. Bruton, 284 Kan. at 829. A written instrument is ambiguous when the application of rules of interpretation to the whole fails to ascertain which one of two or more meanings is conveyed by the parties’ words. Central Natural Resources, 288 Kan. at 245. Where ambiguity or uncertainty is involved, the parties’ intentions are ascertained by considering the language employed, the circumstances existing when the agreement was made, the object sought, and other circumstances tending to clarify the parties’ real intentions. Amoco Production Co. v. Wilson, Inc., 266 Kan. 1084, 1088, 976 P.2d 941 (1999).
Third-party beneficiaries of a contract are divided into intended beneficiaries and incidental beneficiaries, and only intended beneficiaries have standing to sue for damages resulting from the breach of a contract. See State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 795-96, 107 P.3d 1219 (2005) (finding the State was not an intended third-party beneficiary of a subcontract); Gray, 28 Kan. App. 2d at 580-81. The burden of establishing standing to bring suit as a third-party beneficiary rests with the party asserting it; see Stovall, 278 Kan. at 793.
Intended beneficiaries of contracts may maintain an action to enforce a contract even if they had no knowledge of the contract when it was made and paid no part of the consideration. Fosse v. Lower Heating & Air Conditioning, Inc., 241 Kan. 387, 388-89, 393, 736 P.2d 930 (1987) (finding employees had standing to sue a contractor as third-party beneficiaries of a contract between the contractor and owner when the contract incorporated wage rates for the employees). Nevertheless, parties are presumed to contract for themselves, and their intent that a third person receive a direct benefit must be clearly expressed in the contract. See Stovall, 278 Kan. at 794-95; Gray, 28 Kan. App. 2d at 580. But cf. Hawkinson v. Bennett, 265 Kan. 564, 594, 962 P.2d 445 (1998) (stating the intent to benefit a nonparty need not be expressly recited in the contract but must be apparent from the terms of the agreement, the surrounding circumstances, or both). Furthermore, knowledge by the contracting parties that a contract will benefit a third party does not necessitate the contracting parties’ intent to benefit the third party; see Stovall, 278 Kan. at 795; Gray, 28 Kan. App. 2d at 580.
A third-party beneficiary does not need to be personally named in the contract to have standing, as long as he or she is a member of a designated class or identifiable as a benefitted person. Hartford Fire Ins. Co. v. Western Fire Ins. Co., 226 Kan. 197, 210, 597 P.2d 622 (1979). Nevertheless, when one of the contracting parties is a government entity and the contract is made for the general public benefit, members of the public are generally not considered third-party beneficiaries with standing to sue. See Roher Transfer & Storage Co. v. Hutchinson Water Co., 182 Kan. 546, 549-50, 322 P.2d 810 (1958); but see Anderson v. Rexroad, 175 Kan. 676, 266 P.2d 320 (1954) (Where a city makes a contract with defendant contractor for the express benefit of its citizens and inhabitants, the latter are third-party beneficiaries and can sue the building contractor directly.).
In the present case, the trial court cited Roher in finding that the Concession Agreement only benefitted the general public and not an identifiable subgroup or designated class. In Roher, 182 Kan. at 548-50, our Supreme Court held that a contract between a water company and the city, in which the water company agreed to furnish water to the city for extinguishing fires, was not enforceable by city residents as third-party beneficiaries. Therefore, the residents did not have standing to sue for fire losses sustained in part because of the water company’s failure to furnish the water pressure required by the contract. See 182 Kan. at 547-50. Snyder supports this interpretation, arguing that the Byers are merely incidental beneficiaries as members of the general public.
The Byers, however, argue that the trial court erred by relying on Roher because the only provision in the Roher contract that could be construed as supporting the existence of an intentional third-party beneficiaiy was one that stated the water company would hold the city harmless for any liability it incurred as a result of the water company’s mistakes. See 182 Kan. at 548-49. A further distinction between the facts in Roher and this case is that the contract in Roher did not identify third parties by name. On the other hand, the Byers point out that the Concession Agreement in the present case specifically designates a class of person called park patrons in Section 1.1 and requires that the services and facilities Usted in Section l.A, including moorage, be provided in sufficient quantify to satisfy tire park patrons’ demand at all times.
Nevertheless, .the trial court reasoned that the Concession Agreement could not have created a designated class of third-party beneficiaries with standing to sue because it would create an onerous burden on Snyder if the number of park patrons dramatically skyrocketed and increased demand or if Snyder failed to adequately stock sufficient gasoUne or bait. The Byers argue, however, that the trial court should not have ignored the plain language of the Concession Agreement because some hypothetical scenarios might be burdensome to Snyder.
In section l.D of the Concession Agreement, entitled “Services,” it states that “[concessionaire shall provide, at a minimum, the following marina facilities on the premises: floating dock to include fuel sale capabilities as well as 141 boat slips with 68 of these covered.” In section 1.1, it clearly states that the concessionaire will “supply and have ready for sale each and every vendible article specified in Section 1.A,” which includes “moorage,” “in sufficient quantify to satisfy demands of park patrons at all times that the concession is operated under the terms of this agreement.” Further, section 4.A of the Concession Agreement, entitled “Breach,” makes the failure to satisfy a demand a material breach of the contract: “Each term of this agreement is material and Concessionaire’s failure to remedy a breach of this agreement within (30) days of receiving written notice of the breach shall be grounds for termination of the entire agreement by the Department.”
In addition, under section 19 of the Concession Agreement, entitled “Hold Harmless,” the parties agreed that it was the specific intent of the parties for the concessionaire to assume full control and responsibility for the operation and maintenance of the marina and concession and for the concessionaire to assume all risks attendant to the “operation of the premises.” For example, paragraph 19 states:
“Concessionaire shall hold the Department, its officers, agents, and employees harmless from and shall defend and indemnify the Department from and against all liability for injuries to or death of persons or damage to property or damages arising from liens or claims of any nature resulting from the use and operation of the premises, or the construction, modification, alteration, or repair of any improvements by Concessionaire upon the premises.”
See also section 8.A. of the Concession Agreement, entitled “Ownership of Property,” wherein the concessionaire is given the ownership of “the 141 boat slips and floating dock.”
Here, the Concession Agreement contains provisions dealing with liability for damages emanating from “claims of any nature resulting from the use and operation of the premises.” Moreover, the Concession Agreement makes the concessionaire liable for any claims resulting from the use and operation of the premises. In addition, the Concession Agreement calls for the concessionaire to rent boat slips, which the concessionaire owns, to park patrons. The park patrons who lease a boat slip must pay a rental fee approved by the Department. See section l.G (“Prices charged by Concessionaire for supplies, services and facilities shall be subject to prior written approval of the Department.”). Further, the Concession Agreement requires the concessionaire to “keep a schedule of such prices posted at all times in a conspicuous place on the premises.” Thus, an argument can be made that the Department is contracting for the express benefit of its park patrons by contract provisions intended to be enforced by park patrons as occasion should arise.
In addition, because renters of the boat slips pay a rental fee to the concessionaire, they are unlike members of the general public who benefit from other provisions of the Concession Agreement without payment of a fee for a boat slip. Moreover, some of the park patrons who are renting boat slips at the marina will have their boats moored at the marina during the boating season — from March 15 to October 15. See Section l.F. As a result, park patrons will spend overnights and weekends on their boats. These are further distinctions from members of the general public.
As a result, we determine that once a park patron pays a fee for a rental boat slip, the park patron ceases to be a member of the general public; see Mangieri v. City of New York, 174 Misc. 2d 843, 847, 667 N.Y.S.2d 201 (1997) (Unlike members of the general public, users of the golf course pay a fee to the concessionaire. As a result, the court held that once golf customers paid their fee to use the golf course, they ceased to be a member of the general public.); Bush v. Upper Valley Telecable Co., 96 Idaho 83, 85, 524 P.2d 1055 (1974) (Television cable service subscriber was a third-party beneficiary of a franchise contract between the city and the cable service and was entitled to enforce the contract as a member of a limited class for whose benefit the contract was made and was entitled to recover damages for violation of the rate schedule contained in the franchise contract with the city.). Thus, in this case, an obligation was imposed upon Snyder, arising from the possession, control, and ownership of the boat slips, to furnish sufficient boat slips to satisfy the demands of park patrons at the marina. The benefit conferred on the Byers by the Concession Agreement was “primary and immediate in such a sense and to such a degree as to bespeak the assumption of a duty to make reparation directly [to the Byers] if the benefit is lost.” See Moch Co. v. Rennselaer Water Co., 247 N.Y. 160, 164, 159 N.E. 896 (1928). Consequently, the trial court erred when it determined that the Byers lacked standing on their contract claim.
Did the Trial Court Err When It Concluded It Lacked Authority to Order Reinstatement of a Boat Slip Agreement Between the Byers and Snyder?
The Byers argue that the trial court erred in finding, sua sponte, during a hearing on motions in hmine, that it lacked the authority to order reinstatement of the boat slip agreement between the Byers and Snyder. Snyder, however, argues that the trial court did not err because promissory estoppel is inapplicable to the present case.
In the present case, the trial court did not address whether the Byers could succeed on a claim of promissory estoppel. It merely opined that even if the Byers were able to prove tibe elements of promissory estoppel, the court would not have the authority to order reinstatement of the boat slip agreement between the Byers and Snyder. Later, the Byers voluntarily dismissed their request for damages associated with their claim of promissory estoppel.
Under a theory of promissory estoppel, a promise which the promisor should reasonably expect to induce action on the part of the promisee and which does induce such action is binding if injustice can be avoided only by enforcement of the promise; see Decatur County Feed Yard, Inc. v. Fahey, 266 Kan. 999, 1010, 974 P.2d 569 (1999). Generally, the remedy in a promissory estoppel action can be modified as justice demands and may include specific performance of a contract. See, e.g., 266 Kan. at 1011 (discussing execution of a deed); Texas Co. v. Sloan, 171 Kan. 182, 182-85, 231 P.2d 255 (1951) (discussing the signing of a lease); Owasso Dev. Co. v. Associated Wholesale Grocers, Inc., 19 Kan. App. 2d 549, 551, 873 P.2d 212, rev. denied 255 Kan. 1003 (1994) (discussing specific performance of a lease).
In the present case, the Byers sought specific performance of a boat slip agreement based on a theory of promissory estoppel. There were genuine issues of material fact surrounding this theory, including why the original boat slip agreement was terminated, the extent to which the Byers relied on any assurances made by Snyder, and whether there was an agreement supported by consideration on either side under which both parties adequately performed. See Miller, 288 Kan. at 32; Decatur County Feed Yard, Inc., 266 Kan. at 1011. Therefore, the trial court erred when it determined that it did not have the authority to order specific performance of a boat slip agreement under a theory of promissory estoppel.
Did the Trial Court Err in Granting the Byers’ Motion for Summary Judgment on Snyders Counterclaims for Tortious Interference with Existing Contractual Relations and Intentional Private Nuisance?
Summary judgment should be granted with caution in negligence actions, but it is proper if the adverse party shows there is no evidence indicating negligence or if the only questions presented are questions of law. Esquivel v. Watters, 286 Kan. 292, 296, 183 P.3d 847 (2008); Smith v. Kansas Gas Service Co., 285 Kan. 33, 39, 169 P.3d 1052 (2007); Edwards v. Anderson Engineering, Inc., 284 Kan. 892, 904, 166 P.3d 1047 (2007).
Snyder argues that the trial court erred in granting the Byers’ motion for summary judgment on his claims for tortious interference with existing contractual relations and intentional private nuisance, but does not explain why. The Byers counter that Snyder attempts to recharacterize the claim of tortious interference with existing contractual relations into a claim for tortious interference with existing contractual relations or tortious interference with prospective business advantage or relationship. Moreover, the Byers contend that Snyder’s claim for intentional private nuisance lacks support.
Intentional private nuisance is a tort relating to the intentional and unlawful interference with a person’s use or enjoyment of his or her land. Smith, 285 Kan. at 47. It requires that the actor act with the purpose or intent of causing a nuisance or to know it is substantially certain to result from his or her conduct; it is not sufficient to make invasion intentional if the actor merely realizes or should realize that his or her conduct involves a serious risk or likelihood of causing an invasion. United Proteins, Inc. v. Farmland Industries, Inc., 259 Kan. 725, 732-33, 915 P.2d 80 (1996).
The Byers point out that in his trial court response to the Byers’ motion for partial summary judgment, Snyder claimed that the Byers’ failure to immediately remove their houseboat from the marina parking lot amounted to a private nuisance. Nevertheless, Snyder did not offer any evidence that the Byers’ alleged failure to immediately remove their houseboat from the marina parking lot interfered with the use or enjoyment of the land, or caused damages of any kind. Claims for damages that are conjectural and speculative cannot form a sound basis for an award. McKissick v. Frye, 255 Kan. 566, 591, 876 P.2d 1371 (1994); see Kendrick v. Manda, 38 Kan. App. 2d 864, 871, 174 P.3d 432 (2008).
Moreover, Snyder does not offer any factual support, legal support, or substantial argument for his contention that the trial court erred in granting the Byers’ motion for summary judgment on his claim for intentional private nuisance. An issue not briefed by an appellant is deemed waived or abandoned. Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009). A point raised incidentally in a brief and not argued there is also deemed abandoned. Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008). Similarly, failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority is akin to fading to brief the issue. State v. Conley, 287 Kan. 696, 703, 197 P.3d 837 (2008). In his brief, Snyder does no more than mention intentional private nuisance in passing, which amounts to waiver of his claim.
Next, as the Byers pointed out in their brief, Snyder has recharacterized the claim for tortious interference with existing contractual relations as one for tortious interference with prospective business advantage or relationship. “Tortious interference with a contract seeks to preserve existing contracts, while tortious interference with a prospective business advantage or relationship seeks to protect future or potential contractual relations.” Cohen v. Bat taglia, 41 Kan. App. 2d 386, 396, 202 P.3d 87 (2009), rev'd on other grounds 296 Kan. 542, 293 P.3d 752 (2013). Despite these differences, the torts are similar in that they are predicated on malicious conduct by a defendant. 41 Kan. App. 2d at 396 (citing Burcham v. Unison Bancorp., Inc., 276 Kan. 393, 423-25, 77 P.3d 130 [2003]).
Tortious interference with an existing contract requires: (1) a contract; (2) knowledge of the contract by the wrongdoer; (3) intentional procurement of a breach of contract; (4) absence of justification; and (5) damages resulting from the wrongful interference. See Dickens v. Snodgrass, Dunlap & Co., 255 Kan. 164, 168-69, 872 P.2d 252 (1994).
Alternatively, tortious interference with a prospective business advantage or relationship requires: “(1) the existence of a business relationship or expectancy with the probability of future economic benefit to the plaintiff; (2) knowledge of the relationship or expectancy by the defendant; (3) that, except for the conduct of the defendant, plaintiff was reasonably certain to have continued the relationship or realized the expectancy; (4) intentional misconduct by defendant; and (5) damages suffered by plaintiff as a direct or proximate cause of the defendant’s misconduct.” Turner v. Halliburton Co., 240 Kan. 1, 12, 722 P.2d 1106 (1986).
Snyder first mentions the new claim for tortious interference with prospective business advantage or relationship in the brief on appeal, although the trial court’s agreed pretrial conference order clearly outlines Snyder’s claim as one of tortious interference with the existing Concession Agreement between Snyder and the Department. Issues not raised before the trial court cannot be raised on appeal. Miller v. Bartle, 283 Kan. 108, 119, 150 P.3d 1282 (2007).
Moreover, in Snyder’s failed attempt to recharacterize its claim of tortious interference with existing contractual relations, Snyder essentially fails to brief it and does not offer any factual or legal support for the contention that the trial court erred in dismissing it. An issue not briefed by the appellant is deemed waived or abandoned. See Kingsley, 288 Kan. at 395; Conley, 287 Kan. at 703; Cooke, 285 Kan. at 758.
Furthermore, even assuming arguendo that Snyder did not waive the issue, Snyder does not offer any genuine issues of material fact concerning the third and fifth elements of a claim for tortious interference with existing contractual relations. More specifically, Snyder does not offer any evidence that the Byers intentionally procured a breach of the Concession Agreement and does not offer any evidence of damages resulting from such an alleged wrongful interference. In fact, Snyder does not offer any evidence of a breach of the Concession Agreement at all, which is fatal to the claim.
Alternatively, assuming arguendo that Snyder may be allowed to recharacterize the claim as one for tortious interference with a prospective business advantage or relationship, Snyder still fails to set forth any genuine issues of material fact that would preclude summary judgment. Snyder fails to offer any evidence concerning the third or fifth elements of a claim for tortious interference with a prospective business advantage or relationship. More specifically, Snyder does not offer any evidence beyond speculation or conjecture that, except for the Byers’ conduct, Snyder was reasonably certain to have a continued relationship or realized expectancy, nor does Snyder offer any evidence of damages suffered as a direct or proximate cause of the Byers’ alleged misconduct. As stated earlier, claims for damages that are conjectural and speculative cannot form a sound basis for an award. McKissick, 255 Kan. at 591; Kendrick, 38 Kan. App. 2d at 871.
Therefore, the trial court properly granted the Byers’ motion for partial summary judgment as to Snyder’s claims for tortious interference with existing contractual relations and intentional private nuisance.
Did the Trial Court Err in Dismissing Snyders Counterclaims for Defamation and Invasion of Privacy P
Snyder argues that the trial court erred in dismissing the counterclaims for defamation and invasion of privacy because genuine issues of material fact precluded summary judgment. On the other hand, the Byers contend that the statements forming the basis for Snyder’s counterclaims were not defamatory, as a matter of law, and that Snyder has not provided any evidence of damage to Snyder s reputation.
Although defamation and false light invasion of privacy are often treated the same in Kansas, Snyder lists them as separate causes of action. See Dominguez v. Davidson, 266 Kan. 926, 938, 974 P.3d 112 (1999). The elements of a claim for false light invasion of privacy are as follows: (1) that publication of some kind must be made to a third party; (2) that the publication must falsely represent the person; and (3) that representation must be highly offensive to a reasonable person. 266 Kan. at 937.
On appeal, Snyder makes passing mention of the invasion of privacy claim. An issue that is not briefed by an appellant, or that is raised incidentally in a brief and not argued, is deemed waived or abandoned. Kingsley, 288 Kan. at 395; Cooke, 285 Kan. at 758. Also, failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority is akin to failing to brief the issue. Conley, 287 Kan. at 703. Therefore, the trial court properly granted the Byers’ motion for summary judgment on Snyder’s false light invasion of privacy claim.
In Kansas, the elements of defamation are as follows: (1) false and defamatory words; (2) communication to a third person; and (3) harm to the reputation of the person defamed. Droge v. Rempel, 39 Kan. App. 2d 455, 459, 180 P.3d 1094 (2008). On appeal, Snyder states the alleged defamation in the present case occurred when the Byers told the Department employees and other unidentified third parties that Snyder had staggered down the deck at the marina on Memorial Day and that Snyder strongly smelled of alcohol. Snyder originally alleged defamation concerning statements made by the Byers during die trial court proceedings, but the Byers point out that those statements enjoy absolute privilege under Froelich v. Adair, 213 Kan. 357, 360, 516 P.2d 993 (1973), and Snyder does not contest this fact on appeal.
Concerning the alleged defamatory statements made outside the context of the judicial proceedings, the Byers argue that Snyder’s claim fails because the alleged statements were personal opinion or hyperbole. Moreover, the Byers contend that Snyder’s claim fails because Snyder has not presented any evidence of harm to Sny der’s reputation. First, the Byers argue that when they told the Department employees and other unidentified third parties that Snyder staggered down the deck at the marina on Memorial Day and strongly smelled of alcohol, it was merely a recounting of observations and opinions made by their son, Kevin Fischer. In suggesting these statements were merely opinion or hyperbole, the Byers cite Gatlin v. Hartley, Nicholson, Hartley & Arnett, P.A., 29 Kan. App. 2d 318, 320, 26 P.3d 1284 (2001).
The allegedly defamatory statement in Gatlin: “ ‘ “[The husband] isn’t . . . totally innocent in all this, there are things about him you don’t know,” ’ ” was made to a third party by the wife’s divorce attorney. 29 Kan. App. 2d at 320. The Gatlin court found this was personal opinion and hyperbole (citing Liqui-Box Corp. v. Stein, 98 Ohio App. 3d 481, 484, 648 N.E.2d 904 [1994], finding personal opinion and hyperbole instead of defamation where the defendant described allegations against him as “ ‘[t]he worst that I’ve seen, short of rape’ ”). Gatlin, 29 Kan. App. 2d at 320. The statements in the present case do not mirror those in Gatlin or Liqui-Box Corp., where the defendants were clearly giving a personal opinion reflecting subjectivity. Telling third parties that Snyder staggered down the deck at the marina and strongly smelled of alcohol was a recounting of objective observations, not opinion or hyperbole.
Second, the Byers maintain that Snyder’s defamation claim fails because he has not presented any evidence of damages. Nevertheless, Snyder’s wife furnished an affidavit stating that Snyder has lost customers at least in part because of the Byers alleged defamatory comments to third parties. In addition, Snyder suggested at the in limine conference that there may be testimony from an independent witness concerning his view of Snyder and the marina after hearing the allegedly defamatory comments.
When the evidence is viewed in the light most favorable to Snyder, there are genuine issues of material fact which preclude summary judgment. Namely, questions of fact remain as to whether the Byers’ words were false and whether they harmed Snyder’s reputation. Therefore, the trial court erred when it granted the Byers’ motion for summary judgment on Snyder’s defamation claim.
Affirmed in part, reversed in part, and remanded for further proceedings. | [
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McAnany, J.:
Peerless Manufacturing Co. (Peerless) challenges the district court’s dismissal of its third-party action against Controls International, Inc. on jurisdictional grounds. It also contends that the district court erred in not permitting it to conduct discovery on the jurisdiction question.
This case arises out of a fire at a power plant in Florida. Martin-Manatee Power Partners, LLC (MMPP), contracted with Florida Power & Light Company to design and construct a natural gas-fired power plant in Martin County, Florida. Peerless supplied and installed four gas heater skids in the plant. The purchase order for the skids specified that any litigation regarding the skids would occur in Kansas and be governed by Kansas law.
In September 2005, one of the gas heater skids supplied by Peerless allegedly overheated, ruptured, and caused a fire at the plant. MMPP claimed that components in a gas valve in the skid were incorrectly installed, thereby causing the release of gas and the resulting fire. MMPP claimed it cost over $5.7 million to repair the damage to the plant. MMPP sued Peerless in Johnson County on various legal theories.
Jurisdiction
In May 2008, Peerless asserted a third-party claim against Controls International, Inc. (Controls), a Texas corporation, asserting that Peerless purchased the claimed defective valve from Controls. Peerless sought indemnity from Controls for the claims asserted by MMPP. While the transaction was an intra-Texas sale (Controls shipped the valve from its Texas office to Peerless’ Texas office), Peerless claims that Kansas courts can exercise jurisdiction over Controls because of its business activities in Kansas.
Controls responded with its motion to dismiss, asserting that the court lacked jurisdiction under Kansas’ long-arm statute, K.S.A. 2009 Supp. 60-308(b). Further, it contended, extending in personam jurisdiction over Controls would deny it due process because Controls has not purposefully availed itself of the privileges and benefits of Kansas law, because the claim does not arise out of forum-related activities, and because jurisdiction over Controls would be unreasonable. Controls attached to its motion an affidavit from its chief financial officer, Ed Watkins. Watkins stated in his affidavit that Controls is not registered to do business in Kansas, does not have an authorized agent in Kansas, is not obligated to pay taxes in Kansas, does not have any offices in Kansas, and does not lease or own any real property in Kansas.
Discovery
In June 2008, Peerless moved for leave to conduct limited discovery on the personal jurisdiction issue. Without any ruling on its motion, Peerless proceeded with discovery on the jurisdiction issue. When the parties were at loggerheads over discovery issues, the court conducted a hearing in September 2008. No journal entry was prepared to memorialize the court’s ruling. It is difficult to determine exactly what was ordered by the court from the colloquy between court and counsel at the hearing. However, we have the benefit of the court’s bench note which provides in part:
“1. Jurisdiction issue taken under advisement.
“2. 3rd party def discovery limited to:
A. How many times this particular gauge was produced & delivered within the U.S. from September 2003 to present.
B. does the 3rd party defendant do business in all 50 states & to what extent.”
It is unclear how discovery on these two points would help resolve the issue of whether Controls had transacted business in Kansas to the extent necessary to justify the Kansas court exercising jurisdiction over it. In any event, Controls responded to Peerless’ outstanding discovery by stating that it had not produced or shipped any orders of the particular valve in question to Kansas during the relevant time period. Peerless objected, claiming that Controls’ answers were inadequate because it limited its response to transactions involving the type of valve involved in the Florida fire.
In October 2008, the court held a conference call hearing on the ongoing discovery dispute. The court stated that it was expecting discovery on the number (but not dollar volume) of sales of, and orders for, all products in Kansas, but not service calls in Kansas, for the period beginning September 2003.
In December 2008, Controls filed its responses to Peerless’ discovery requests. The invoices in the record produced by Controls show the following for the relevant 5-year period:
• Three direct sales by Controls to customers located in Kansas (two in 2004 and one in 2005).
• Seven sales by Controls to customers outside of Kansas for delivery to entities located in Kansas (one in 2004, one in 2005, one in 2006, three in 2007, and one in 2008).
• Twelve sales to Power Specialties in Missouri for delivery to entities in Kansas (one in 2004, six in 2005, three in 2006, one in 2007, and one in 2008).
• One sale by Type K to a Kansas customer (2004).
• One sale by Type K to Power Specialties in Missouri for delivery to an entity in Kansas (2006).
• Four sales by K-Tork to Kansas customers (three in 2007 and one in 2008).
Ruling on Motion to Dismiss
On February 2, 2009, the district court held a telephone conference hearing on Controls’ motion to dismiss for lack of personal jurisdiction. Peerless renewed its objections to Controls’ discovery responses and the limitations placed on discovery regarding the jurisdiction issue. Peerless complained that Controls failed to provide information on business in other states in order to gauge whether the Kansas transactions represent a significant or insignificant portion of its overall business. It renewed its request for additional discovery on the issue of jurisdiction. Controls argued that this additional information is irrelevant under the jurisdictional analysis set forth in Merriman v. Crompton Corp., 282 Kan. 433, 146 P.3d 162 (2006).
The district court refused to permit any further discovery on the issue and ruled that it lacked personal jurisdiction over Controls. In reaching this determination, the district court relied on the relative paucity of sales transactions during the relevant 5-year period, as well as tíre fact that Controls had no office, registered agent, designated employee, or property within Kansas. Based on tírese facts, the court applied Merriman to determine that Kansas lacked personal jurisdiction. The court concluded that Peerless failed to establish that Controls has had continuous and systematic contacts with Kansas. The district court further noted that no amount of additional discovery would change the information already provided or result in a different legal conclusion.
Peerless appeals, claiming the district court erred in denying its motion for limited discovery and in granting Controls’ motion to dismiss.
Discussion
I. Jurisdiction
On appeal, Peerless first argues that the district court erred in granting Controls’ motion to dismiss for lack of personal jurisdiction. The statute by which Peerless seeks to invoke jurisdiction is K.S.A. 2009 Supp. 60-308(b)(2). It argues in its brief: “The facts and reasonable inferences to be drawn therefrom demonstrate Controls’ substantial, continuous and systematic contact with the state of Kansas under K.S.A. 60-308(b)(2) supporting jurisdiction consistent with due process.”
Whether jurisdiction exists is a question of law which we review de novo. Merriman, 282 Kan. at 439 (citing Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 185, 106 P.3d 483 [2005]). Peerless bears the burden of establishing jurisdiction over Controls. Merriman, 282 Kan. at 439. However, Peerless need only make a prima facie showing of jurisdiction. Because the district court’s ruling on the jurisdiction issue was based on the pleadings, affidavits, and other written materials, any factual dispute must be resolved in favor of Peerless. See 282 Kan. at 439.
Peerless claims that Controls is subject to the jurisdiction of the courts in Kansas by reason of our long-arm statute, K.S.A. 2009 Supp. 60-308(b). Kansas courts liberally construe the long-arm statute to the full extent permitted by the Due Process Clause of the United States Constitution when asserting personal jurisdiction over a nonresident defendant. If the statutory predicate for extending personal jurisdiction to Controls is established, we must then determine whether the exercise of personal jurisdiction complies with the due process requirements of the Fourteenth Amendment to the United States Constitution. Kluin v. American Suzuki Motor Corp., 274 Kan. 888, 894, 56 P.3d 829 (2002).
The Kansas long-arm statute, K.S.A. 2009 Supp. 60-308(b), was amended in 2006. L. 2006, ch. 49, sec. 1-3. Prior to the 2006 amendments, the statute only expressly allowed personal jurisdiction in actions arising from fhe defendant’s contacts with Kansas, such as transacting business in Kansas, committing a tort in Kansas, or entering into a contract with a Kansas resident to be performed at least in part in Kansas. K.S.A 60-308(b).
The 2006 amendments to K.S.A. 60-308(b) added section (b)(2), which provides express authority for extending personal jurisdiction to defendants for acts committed elsewhere:
“A person may be considered to have submitted to the jurisdiction of the courts of this state for a cause of action which did not arise in this state if substantial, continuous and systematic contact with this state is established that would support jurisdiction consistent with the constitutions of the United States and of this state.” K.S.A. 2009 Supp. 60-308(b)(2).
The statute as amended borrows language from the United States Supreme Court’s minimum contacts test for general jurisdiction expressed in Helicopteros Nacionales de Columbia v. Hall, 466 U.S. 408, 416, 80 L. Ed. 2d 404, 104 S. Ct. 1868 (1984), which requires “continuous and systematic general business contacts” with tire forum state. The statute now allows Kansas courts to assert in personam jurisdiction consistent with the breadth of federal due process. See 4 Gard and Casad, Kansas C. Civ. Proc. 4th Annot. § 60-308 (2009-10 Supp.). “The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful ‘contacts ties, or relations.’ ” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985).
Our first step involves determining whether Controls had substantial, continuous, and systematic contact with Kansas so as to invoice the provisions of K.S.A. 2009 Supp. 60-308(b)(2). Peerless claims that Controls’ aggregate sales activity, website, and general business contacts with Kansas satisfy the requirements of the statute. In evaluating the extent of Controls’ contacts with Kansas, we examine the factors enunciated in Kuenzle v. HTM Sport-UND Freizeitgerte, 102 F.3d 453, 457 (10th Cir. 1996):
“(1) Whether the corporation solicits business in the state through a local office or agents; (2) whether the corporation sends agents into the state on a regular basis to solicit business; (3) the extent to which the corporation holds itself out as doing business in the forum state through advertising, listings or bank accounts; and (4) the volume of business conducted in the state by the corporation.” (Citing Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1524, 1533 [10th Cir. 1996]).
Excluding sales to Power Specialties, Inc., which we will discuss further, the record discloses a total of 20 transactions in Kansas involving Controls in the relevant 5-year time period, including transactions involving what appear to be two divisions of the company named Type K and K-TORK. There is no indication that Type K and K-TORK have separate corporate existences. To provide some perspective, Peerless points out that Controls represents through its website that it “has become the leading seller, manufacturer and distributor for valves, valve automation, actuators, and other control products to users in all industries,” with sales and service in the United States and abroad.
Peerless seeks to expand Controls’ presence in Kansas beyond these 20 transactions over 5 years by including the sales activities of two other entities. One of them is ABZ Manufacturing, Inc. Peerless argues that one of Controls’ product fines, ABZ Valves, is manufactured by a division of ABZ Manufacturing, Inc. (ABZ), which is a Kansas corporation located in Madison, Kansas. According to ABZ’s website, ABZ distributes its products in all 50 states as well as over 17 foreign nations. Apparently, Controls is one of its distributors.
Controls fists on its website products from about 25 suppliers. One of them, for example, is Siemens; apparently referring to Siemens, AG, the global supplier of products for industry, energy, health care, and consumers headquartered in Munich, Germany. If selling ABZ’s products is evidence of Controls’ presence in Kansas, does selling Siemens products evidence Controls’ presence in Germany? Obviously not.
ABZ sells its products through Controls, not the other way around. The issue is not whether ABZ has a presence in Texas where Controls is located, but whether Controls has a presence in Kansas where ABZ is located. The fact that ABZ sells Kansas products through a distributor in Texas may possibly tell us something about ABZ’s presence in Texas, but it tells us nothing about Controls’ presence in Kansas.
Incidentally, the existence of Controls’ website does not of itself significantly add to the concept of systematic, substantial, and continuous contact with Kansas. Controls’ website is passive; that is, it provides information about the company and its products but does not permit customers (from Kansas or elsewhere) to place orders for products via the website. See Kluin, 274 Kan. at 901-02.
The other entity through which Peerless seeks to expand Controls’ presence in Kansas is Power Specialties, Inc. Type K, which apparently is a division of Controls, has its own website on which it states that its products are sold “through a network of exclusive, highly trained manufacturer’s representatives.” One such representative is Power Specialties, Inc. (Power Specialties), located in Wichita, Kansas. Type K is on the list of companies represented by Power Specialties on the Power Specialties’ website. Controls is not.
Power Specialties is headquartered in Missouri, with offices in Nebraska, Iowa, and Kansas. It represents about 14 different manufacturers of industrial controls and instruments. As noted earlier, Controls made sales to Power Specialties for delivery to entities in Kansas. According to the invoices in the record, during the relevant 5-year time period Power Specialties was involved in only 13 transactions involving Controls or Type K products. In each of these transactions, the buyer was identified as Power Specialties in Ray-town, Missouri. In each transaction the customer number was identified as “00-POWE004,” apparently referring to Power Specialties and not an end user in Kansas. Though purchased by Power Specialties, the product identified in each invoice was shipped to a customer in Kansas.
Because Controls is not fisted by Power Specialties as one of the companies it represents, it is unclear whether Power Specialties acted as a sales representative for Controls in these transactions or as a reseller of goods purchased from Controls. For the purpose of our analysis, we construe the evidence so as to favor Peerless and assume the former. Nevertheless, this level of activity in Kansas by an independent manufacturers’ sales representative on behalf of Controls does not substantially add to the existing evidence by which we measure the extent of Controls’ presence in Kansas.
Including the sales in which Power Specialties acted as the intermediary, Controls engaged in only 28 transactions in Kansas during the relevant 5-year period. It is also important to note that Controls is not registered with the Kansas Secretary of State as a foreign corporation doing business in Kansas, is not obligated to pay taxes in Kansas, does not maintain a bank account in Kansas, does not have an office or registered agent in Kansas, and does not own or lease any real property in Kansas.
Peerless’ assertion that Controls holds itself out as “the leading seller, manufacturer and distributor for valves,” with sales and service in the United States and abroad, does not seem to advance Peerless’ position. To the contrary, it suggests the relative insignificance of 28 sales in Kansas over a 5-year period.
The issue was addressed in a similar context in Benton v. Cameco Corp., 375 F.3d 1070, 1081 (10th Cir. 2004), an action in Colorado for breach of contract and tortious interference following the collapse of a planned joint venture to conduct uranium trading activities. The court determined that two dozen transactions in Colorado over a period of 8 years (the last one being 4 years before suit was filed) were insufficient to meet the high burden of showing continuous and systematic general business contacts to support personal jurisdiction over the defendant in Colorado.
In Trierweiler, 90 F.3d at 1533, plaintiff brought an action for fraud and negligent misrepresentation in federal court in Michigan against a Colorado law firm and others. The appellate court determined that Michigan lacked personal jurisdiction over the Colorado law firm under general jurisdiction principles. The law firm had no office in Michigan and represented only 24 Michigan residents in 104 different legal matters during the relevant time period. The court found these contacts insufficient to warrant exercising personal jurisdiction in Michigan over the firm.
In Capitol Federal Sav. Bank v. Eastern Bank Corp., 493 F. Supp. 2d 1150 (D. Kan. 2007), Capitol Federal claimed that Eastern Bank misappropriated Capitol Federal’s TRUE BLUE service marks. The district court determined that the court in Kansas lacked personal jurisdiction over Eastern Bank and transferred the case to Massachusetts for further proceedings. Eastern Bank operated primarily in the Boston area and serviced customers primarily in Massachusetts and the adjoining states in New England. However, it had 64 customers in Kansas for whom it provided ongoing banking services. Nevertheless, the court found these contacts insufficient to support the court in Kansas exercising jurisdiction over it.
Peerless believes Scharff v. CRST, Inc., 2002 WL 922131 (D. Kan. 2002) (unpublished opinion), is helpful to its cause. We do not. CRST, an interstate trucking company, conceded that it picked up, transported, and delivered goods throughout the state. From this, the court concluded that the plaintiff had made the necessary showing of continuous and systematic contacts. CRST’s physical presence in the state was absolutely essential in order for it to carry out its business. The conduct of Controls’ business is not predicated on the same physical presence in the state.
Our analysis leads us to conclude that Controls has not engaged in a level of business activity in Kansas to warrant our courts extending jurisdiction over it for a transaction that occurred beyond our borders. Controls’ contacts with Kansas have not been sufficiently “substantial, continuous and systematic” so as to “support jurisdiction consistent with the constitutions of the United States and of this state.” K.S.A. 2009 Supp. 60-308(b)(2). The district court did not err in sustaining Controls’ motion to dismiss for lack of jurisdiction.
II. Discovery
Peerless asserts that the district court abused its discretion in denying further discoveiy on the issue of jurisdiction. Peerless bears a heavy burden on this issue because the district court’s control over discoveiy is a matter within its sound discretion. Appellate courts do not disturb a district court’s order regarding discovery absent a showing of a clear abuse of discretion. See Kluin, 274 Kan. at 891. Judicial discretion is abused when no reasonable person would take the position adopted by the district court. See In re Marriage of Bradley, 282 Kan. 1, 7, 137 P.3d 1030 (2006). Further, whether discovery is warranted to resolve a dispute over jurisdiction is an issue of fact to be resolved on a case-by-case basis. “[Ljeave for jurisdictional discovery is properly denied where the plaintiff does not show that facts exist which would warrant the denial of the defendant’s motion to dismiss for lack of [personal] jurisdiction.” Kluin, 274 Kan. at 892.
It is important to note that Peerless was not denied discovery on the jurisdiction issue. Peerless asked for limited discovery. It was afforded the opportunity to conduct limited discovery. The court ordered: “All other discovery is put on hold.” The court hoped to expedite the disposition of this issue which concerned only the third-party action. The court encouraged the parties to set up telephone conferences with minimal briefing to enable the court to promptly resolve any discovery disputes. In addition to formal discovery, the parties had the use and benefit of information on the internet that related to the relevant business activities. It was only after discovery had been ongoing for about 7 months that the district court ended it and ruled on the motion to dismiss.
Diligent trial counsel always feel compelled to turn over one more rock in discovery. Admittedly, there are many rocks that could be turned over on this issue. However, the district court pointed out that additional discovery is unlikely to change the central facts disclosed so far. Those facts include Controls not being domiciled in Kansas; its lack of ties to Kansas through the ownership of property, the payment of taxes, the maintenance of a bank account, or the presence of any employees within the state; and its small number of product sales during the relevant time period. These factors, taken together, indicate the lack of a substantial, continuous, and systematic presence in Kansas.
The district court recognized that “it’s always a balance between how much discovery should be done at this point in time on a motion to dismiss.” Thus, it is certainly true that a different judge could have extended discovery further. But this is not to say that the district court abused its discretion in ending it. To justify further discovery, Kluin teaches us that Peerless needed something more than speculation that Controls might be lying in its discovery responses, that there may be more sales out there, or that there may be evidence of more contacts out there. We are satisfied that there is ample basis for the court saying, as the district judge did here, that enough’s enough. We find no abuse of discretion in ending discovery on this issue.
Affirmed. | [
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Leben, J.:
Inmate Tyron Hardaway was convicted administratively for taking a cup of soda that apparently belonged to a prison food-service employee and then drinking that soda without permission. A hearing officer ordered that he lose 30 days of good-time credit and serve a 15-day disciplinary segregation, but both sanctions were suspended — not to be imposed at all if he received no further reprimands in the next 120 days. He didn’t, and the sanctions weren’t imposed.
Hardaway has nonetheless filed a lawsuit under K.S.A. 60-1501, contending that he wasn’t given a fair hearing — thus denying him due process — on the charge of taking and drinking the soda without permission. The district court dismissed his claim on the merits after finding no due-process violation, and Hardaway appealed.
The State argues on appeal that Hardaway has not shown that he has any protected liberty interest giving rise to due-process protections. We agree.
Prison officials don’t have to provide due-process hearings for most of the decisions they must make in determining the daily activities of inmates. You couldn’t run a prison that way. To gain court review of a prison disciplinaiy sanction, the inmate’s claim under K.S.A. 60-1501 must assert the deprivation of some constitutionally protected interest. Otherwise, the petition may be summarily dismissed. Anderson v. McKune, 23 Kan. App. 2d 803, 806-07, 937 P.2d 16, rev. denied 262 Kan. 959, cert. denied 522 U.S. 958 (1997); see Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974); Hogue v. Bruce, 279 Kan. 848, 850, 113 P.3d 234 (2005). We must begin, then, by determining whether a constitutionally protected interest was implicated in Hardaway’s punishment.
A disciplinary segregation doesn’t rise to the level of a constitutionally protected interest. The Kansas Supreme Court has held that a prisoner has no protected liberty interest in remaining in the general prison population rather than being separated for a time. Murphy v. Nelson, 260 Kan. 589, Syl. ¶ 9, 921 P.2d 1225 (1996); see also Sandin v. Conner, 515 U.S. 472, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995); Anderson, 23 Kan. App. 2d at 807.
Nor does the good-time-credit sanction against Hardaway implicate a constitutionally protected interest. While a sanction that removes good-time credits already earned does implicate a protected liberty interest, Kesterson v. State, 276 Kan. 732, Syl. ¶ 2, 79 P.3d 1074 (2003), a prisoner has no protected liberty interest in good-time credits not yet earned or awarded. In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, Syl. ¶ 8, 24 P.3d 128 (2001). Thus, an inmate has no protected interest when, due to prison rule violations, he or she loses good-time credit that has not yet been earned or awarded. Henry v. McKune, 2009 WL 863354, at *2 (Kan. App. 2009) (unpublished opinion), rev. denied 289 Kan. 1278 (2009).
Nothing even that substantial has happened here. Under the disciplinary sanctions order, Hardaway hadn’t even lost an ability to earn good-time credits during the time period in which he violated this prison rule: he never lost any good-time credit for this violation. The sanctions were suspended, and the State contends that they were never imposed. Hardaway has not provided anything to show that any sanction was ever imposed upon him. Punishments never imposed do not implicate a protected liberty interest. Davis v. Ward, 92 Fed. Appx. 634, 635, 2004 WL 233302 (10th Cir. 2004) (unpublished opinion).
We acknowledge that one federal court has found a protected liberty interest in a similar situation. See Cochran v. Buss, 381 F.3d 637, 640 (7th Cir. 2004) (finding a constitutionally protected interest in the possibility that good-time credits will be taken if suspended disciplinary sentence is later imposed). We find the Davis case more persuasive. Cochran relied upon an analogy to cases broadly interpreting the statutory requirement that a state prisoner be “in custody” to obtain federal habeas relief, a situation in which federal courts have held that “custody” includes, for example, a defendant free on parole but subject to parole revocation. 381 F.3d at 639-40. We do not believe that those statutory-interpretation cases are relevant in determining whether a constitutionally protected interest is at stake. We also do not believe that this is akin to a suspended prison sentence ordered as a court judgment after a conviction. See Cochran, 381 F.3d at 640. In those cases, the not-yet-convicted defendant at trial has much greater constitutional due-process protections than the inmate has in a prison disciplinary case.
But many cases, like this one, have needed to determine whether a constitutionally protected interest was at stake, and those malee a closer parallel than the situations that the Cochran court found persuasive. Those cases have looked at the sanctions actually imposed, not ones that could have been but were not. E.g., Sandin, 515 U.S. at 487 (determining whether inmate had a protected liberty interest based on the “regime to which he was subjected as a result of the misconduct hearing”); Murphy, 260 Kan. at 603 (finding no protected interest based on the sanction imposed, which was administrative segregation within the prison); Henry, 2009 WL 863354, at °1 (determining whether protected liberty interest was at stake based on sanctions imposed).
Despite Hardaway’s prison-misconduct conviction, he has not suffered any deprivation that would implicate a protected liberty interest. We therefore do not consider whether the prison disciplinary hearing on this charge met all of the normal standards of due process. Davis, 92 Fed. Appx. at 636-37.
The district court’s order summarily dismissing Hardaway’s K.S.A. 60-1501 petition is therefore affirmed. | [
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Hill, J.:
Introduction
This appeal involves a declaratory judgment action between a corporation and one of its former officers. Westar Energy, Inc. agreed to advance attorney fees and expenses reasonably incurred by any of its officers charged with a crime that related to that officer s employment. David C. Wittig, a former officer of Westar, was charged in federal court with crimes arising from his conduct during his time as an officer of Westar. Westar is now responsible for advancing fees and expenses reasonably incurred in Wittig’s defense.
Persuaded by cases from Delaware, an historical source of corporate law in Kansas, we hold that Westar must reserve any action seeking recoupment, such as setoff, until after it is determined whether Wittig must pay any of the money advanced back to Westar. To rule otherwise would destroy the right of advancement entirely and thus rewrite the parties’ contract, something a court cannot do. Therefore, we uphold the district court’s denial of declaratory relief to Westar on this point.
Finally, a district judge in Kansas is considered an expert on attorney fees and must use the factors found in Kansas Rule of Professional Conduct 1.5(a) (2009 Kan. Ct. R. Annot. 460) to measure the reasonableness of an attorney fee request. Here, after taking testimony on the subject and methodically considering all eight factors in Rule 1.5(a), the district court determined that the fees requested by Wittig for a Washington, D.C., law firm were unreasonable and lowered the hourly rate that Westar is to advance in Wittig’s defense. The two questions that must be answered by a court in an advancement action are the entitlement of the officer to the advancement and the reasonableness of the fees and expenses requested. There is no dispute that Wittig is entitled to advancement. Even so, the district court here was obliged to determine the reasonableness of the fees Wittig requested. Because the findings of the district court were supported by substantial competent evidence, we find no abuse of discretion on this point and uphold the district court’s ruling. Therefore, we deny Wittig’s cross-appeal.
We give a brief review of the facts.
In December 2003, a federal grand jury indicted David C. Wittig for allegedly defrauding Westar Energy, Inc., a Kansas corporation. The United States began his prosecution for the crimes alleged in the indictment in United States v. Wittig and Lake, 03-40142-JAR, a case that is awaiting a new (third trial). When he was indicted, Wittig was the former Chief Executive Officer and Chairman of the Board of Directors of Westar. Wittig hired two law firms to help in his defense, Piper Rudnick, LLP from Washington, D.C. and Berkowitz, Oliver, Williams, Shaw & Eisenbrandt, from Kansas City, Missouri. For purposes of brevity, we will refer to the Washington, D.C. law firm as Piper Rudnick and the Kansas City, Missouri, law firm as Berkowitz Oliver. We must point out that this prosecution was not the only legal problem Wittig was experiencing at the time, because in an unrelated case, in November 2002, he was indicted for bank fraud. In that prosecution, Wittig retained James L. Eisenbrandt of the Berkowitz Oliver firm as his defense counsel. Therefore, Wittig had already established a client-attorney relationship with Berkowitz Oliver before his second indictment.
As his prosecution continued, Wittig’s legal bills mounted and he sought advances from Westar to cover these expenses. He based these claims on Article XVIII (2)(a) of Westar’s Articles of Incorporation. In his view, that article amounted to a contract, a view not disputed by Westar.
“Each person who was or is made a party ... to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative ... by reason of the fact that he or she ... is or was a director or officer, of the Corporation . . . shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the Kansas General Corporation Law . . . against all expense, liability and loss (including attorneys’ fees . . .) reasonably incurred or suffered by such person in connection therewith.... The right to indemnification . . . shall be a contract right and shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition: provided, however, that, if the Kansas General Corporation Law requires, the payment of such expenses ... in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of an undertaking ... to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Section or otherwise.”
Therefore, Wittig signed and delivered to Westar the following “Undertaking”:
“I, David C. Wittig, hereby agree that I will immediately repay Westar Energy, Inc. (“Westar”) any payment it has advanced to me to cover my reasonable attorney’s fees and other expenses in connection with cases brought against me ... in the event it is ultimately determined . . . that I am not entitled to be indemnified by Westar. . . .”
In response to the “Undertaking,” Westar paid all accrued bills to Piper Rudnick in September 2004. But that was just the beginning.
Again, in September and October 2004, Westar received a second and third round of Piper Rudnick bills. Westar did not review them but paid the bills in October and December 2004. But that did not end the matter. Soon after the next billing, Westar’s counsel sent a letter in March 2005 telhng Piper Rudnick that its bills were unreasonable and Westar did not want to advance further fees to the firm. By this time, Westar had paid a little more than $1.8 million to Piper Rudnick. Nonetheless, the parties explored a possibility of compromise.
Instead of going to court, Westar and Wittig settled the matter. Westar agreed to pay all Piper Rudnick bills for legal services through January 2005. Both parties agreed to not go to court over these bills and, in return, Wittig would give up his rights to any Westar assets if he was convicted. However, Westar made it clear it was not waiving any right the company had to challenge the reasonableness of any future Piper Rudnick bills:
“Therefore, and without conceding that any of the fees or expenses incurred are reasonable, the Company will advance unpaid legal fees and expenses to Mr. Wittig for your bills through January 31, 2005. Furthermore, the Company expressly reserves all of its rights to object to any future advancements requested by Mr. Wittig on any grounds, including the reasonableness of the bills, and Mr. Wittig agrees that any advancements toward his legal fees and expenses in the criminal case that have been made or may be made in the future by Westar shall not be considered a waiver of Westar’s right to challenge the reasonableness of such legal fees and expenses in the future for purposes of advancement or indemnification.”
After that, Westar paid more than $1.5 million in Piper Rudnick fees. But Wittig’s legal expenses kept mounting.
Westar sues Wittig for declaratory judgment and breach of contract.
After advancing more than $3.6 million for legal fees, Westar sought relief in Shawnee County District Court. In this declaratory judgment action, Westar wanted the district court to decide the reasonableness of the fees and expenses that Wittig wanted them to advance. In a second count, Westar brought a breach of contract claim against Wittig, alleging the fees and expenses the company had already advanced were unreasonable and, therefore, Wittig had breached their contract.
The district court was thorough in its handling of this case. First, the court appointed Jack Focht, a respected member of the Wichita bar, to act as Special Master under K.S.A. 60-253(c). The district court reasoned that Focht, who has extensive experience in defending those accused of white-collar crimes, could use his expe rience to sort out the many questions arising from the extensive documentation associated with the legal bills from both firms. The court directed Focht to review all the legal fees and expenses using the factors set up by Kansas Rule of Professional Conduct (KRPC) 1.5(a). Focht diligently tackled the job and reported to the court in November 2007.
Focht advised the court that the fees Wittig sought for advancement were reasonable. Focht considered all the factors found in KRPC 1.5(a) in making his report to the court. (However, he did advise certain expenses claimed by Piper Rudnick were not reasonable. Those amounts are not relevant to this appeal.) Both parties objected to Focht’s conclusions.
So, the district court accepted added documentation from both sides in support of their positions. And, in March 2008 it entertained additional evidence on the matter through the testimony of James L. Eisenbrandt, one of the senior partners in the Berkowitz Oliver firm. After considering the matter for some time, the court issued a declaratory judgment in July 2008.
The district court grants Westar a part of what it wanted.
In granting declaratory relief to Westar, the district court decided Westar had agreed to advance “reasonable fees,” not “all fees.” Then, the court, focusing on bills incurred between February 2005 and June 2005, ruled the number of hours and the hourly rates charged by Berkowitz Oliver were reasonable and Westar should advance them to Wittig. Going further, the court declared the hours billed by Piper Rudnick were reasonable, but their hourly rates were not. Therefore, the court declared Westar should advance fees to Wittig at a lower hourly rate for Piper Rudnick. (The court reduced some expenses sought by Piper Rudnick, but they are not part of this appeal.) The court moved on then to the breach of contract claim brought by Westar.
After granting relief to Westar on the issue of advancement of the Piper Rudnick bills, the district court decided a breach of contract claim for bills already paid by Westar was premature. The court reasoned that because an advancement action is forward-looking, thus insuring a defense, and the policy of corporate in demnification, which means the alleged wrongdoer may or may not have to repay, the remedy for any unreasonable charges already paid should come later:
“Since this is an advancement action, the Court finds that it would be premature to determine whether David Wittig will ultimately be entitled to indemnification from Westar Energy, Inc. Likewise, the Court finds that it would be premature to determine whether Westar is entitled to recoupment or an offset for the legal fees and expenses which the corporation has previously advanced on behalf of Mr. Wittig. Rather, tire Court finds that these issues can only be determined after the underlying criminal case has been finally resolved.”
After making this ruling, the court asked the parties to confer about the issue of fees already paid. Because the parties could not settle the matter, the court made its ruling.
On this point, the court ruled that any breach of contract remedies such as “recoupment” or “setoff’ for fees and expenses already paid by Westar could not be resolved until after the criminal case against Wittig ends. So, the court dismissed Westar’s breach of contract claim against Wittig.
Since the district court’s ruling, we have been told at oral argument that fees and expenses are still flowing from Westar to Wittig, but at the adjusted rates. No one has any idea when the criminal case against Wittig will end.
Here is a brief review of corporate indemnity and advancement law.
With the passage of K.S.A. 17-6305, the Kansas Legislature created a public policy to encourage worthy individuals to accept positions of responsibility with corporations as directors and officers. By providing those officers indemnity from the costs associated with civil, criminal, and administrative actions as well as investigations, such officers and directors are free to make good-faith decisions without fear of penalty. The expenses that are refundable under this law are those incurred from a legal action taken against an officer or director because that person is or was a director, officer, employee, or agent of the corporation. See K.S.A. 17-6305(a). Concurrent with indemnity is the right of advancement.
Advancement of expenses, including attorney fees, incurred by a director or officer in defending a civil, criminal, administrative, or investigative action is sanctioned by K.S.A. 17-6305(e). The corporation may pay those expenses before the legal action involving the director or officer ends. But before any such advance is made, the officer or director must give the corporation an “undertaking” to repay any advances made on his or her behalf if it is later determined that officer or director is not entitled to indemnity. The statute does not allow the corporation to decide first the merits of the director’s or officer’s defense before advancing the costs. Chiefly, the advances are a separate right that must be honored by the corporation. Besides these discretionary statutory rights of indemnity and advancement, corporations may, by contract, offer mandatoiy rights of indemnity and advancement.
Such a mandatory right was created here by Westar in Article XVIII(2)(a) of its Articles of Incorporation. Therefore, Wittig is entitled to advancement of attorney fees and expenses reasonably incurred by him in his prosecution. Clearly, K.S.A. 17-6305(f) allows a corporation to make an agreement for both indemnity and advancement. Therefore, we must interpret this contract between Westar and Wittig. But we do not do so in a vacuum. Although there are no Kansas cases reported on the subject, we turn to the reports from Delaware courts because Delaware is the wellspring of Kansas corporate law. Our Supreme Court has a long history of looking to Delaware for guidance when applying the Kansas General Corporation Code. See Kansas Heart Hospital v. Idbeis, 286 Kan. 183, 197, 184 P.3d 866 (2008). A review of Delaware cases dealing with indemnity and advancement issues is informative.
First, we examine Homestore, Inc. v. Tafeen, 888 A.2d 204 (Del. 2005). In Homestore, a former corporate officer, Tafeen, sued for advancement of expenses and attorney fees arising from several civil lawsuits and an investigation by the Securities and Exchange Commission and the Department of Justice. The Delaware Supreme Court explained, “[indemnification encourages corporate service by capable individuals by protecting their personal financial resources from depletion by the expenses they incur during an investigation or litigation that results by reason of that service.” 888 A.2d at 211. The court went on to point out that, “[t]he right to indemnification cannot be established, however, until after the defense to legal proceedings has been "successful on the merits or otherwise.’ ” 888 A.2d at 211. But the court carefully contrasted advancements.
Advancement, according to the Delaware Supreme Court in Homestore, “is an especially important corollaiy to indemnification as an inducement for attracting capable individuals into corporate service. Advancement provides corporate officials with immediate interim relief from the personal out-of-pocket financial burden of paying the significant on-going expenses inevitably involved with investigations and legal proceedings.” 888 A.2d at 211. Even though advancement and indemnification are corollary, under Delaware law they involve separate and distinct legal actions. The right to advancement is not dependent on the right to indemnification. 888 A.2d at 212. In fact, “[t]he limited and narrow focus of an advancement proceeding precludes litigation of the merits of entitlement to indemnification for defending one self in the underlying proceedings.” 888 A.2d at 214.
Next, in Citadel Holding Corp. v. Roven, 603 A.2d 818 (Del. 1992), the Delaware Supreme Court ruled, in a case involving an agreement similar to the contract found in Westar’s Articles of Incorporation and involving a statute from Delaware’s general corporation law identical with the Kansas advancement statute, “the corporation’s obligation to pay expenses is subject to a reasonableness requirement.” 603 A.2d at 823. The corporation in Citadel was not required to advance unreasonable expenses but was required to advance reasonable ones. 603 A.2d at 823-24. A right to advancement is not a corporate blank check. See also Fasciana v. Electronic Data Systems Corp., 829 A.2d 160, 175 (Del. Ch. 2003) (an advancement is best thought of as a credit advanced to a director of a corporation). Also, the Supreme Court of Delaware ruled the burden of proving the reasonableness of the charges is on the officer seeking advancements. Citadel, 603 A.2d at 825.
After that, we examine the ruling of the Chancery Court of Delaware in Sun-Times Media Group, Inc. v. Black, 954 A.2d 380 (Del. Ch. 2008). After advancing more than $77 million to the defen dants over 5 years (including $60 million for criminal defense fees and expenses), Sun-Times brought an action to foreclose any further advancements and also sought to recoup some of the funds already advanced. The defendants had been convicted of some of the crimes charged, and the criminal cases were working their way through the federal appeals courts. The Chancery Court decided that indemnity can only be determined after the final disposition of the underlying case (or cases). Therefore, in the criminal context, an appeal of a conviction is a final shot at defeating the prosecution. 954 A.2d at 398 n.69. The corporation was contractually obliged to continue to advance fees and expenses until the last nonappealable order was issued in the underlying case. As a result, Sun-Times could not evade its contractual responsibility to advance attorneys fees and expenses connected with the former officers’ criminal appeals. Finally, the court dismissed the two counts filed by Sun-Times seeking repayment or setoff. The court stated, “Performing such an allocation analysis on a provisional basis could turn out to be [a] waste of the parties’ and the court’s resources if the criminal convictions are overturned. If that happens, an allocation would be unnecessary. [Those Counts] are dismissed as not yet ripe.” 954 A.2d at 409.
Finally, the Delaware Supreme Court held in Kaung v. Cole Nat Corp., 884 A.2d 500, 509 (Del. 2005), the scope of an advancement action made under the general corporation law of Delaware is limited to the issue of entitlement and not to issues about the alleged wrongdoer’s conduct in the underlying litigation. Again, the court stressed that an advancement action is a summary proceeding. Then, in Kaung, the Supreme Court ruled the Chancery Court appropriately determined that some of the time billed was not reasonably incurred and therefore the corporation need not make advancements for die unreasonable bills. But, in the Supreme Court’s view, the Chancery Court went too far when it “prematurely decided Kaung’s liability for sums previously advanced” by the corporation were unreasonable requests and the former officer was hable for their repayment. Put simply, the court stated, “[We] hold that an advancement proceeding is summary in nature and not appropriate for litigating indemnification or recoupment. The de tailed analysis required of such claims is both premature and inconsistent with the purpose of a summary proceeding.” 884 A.2d at 510.
To summarize, Delaware cases provide useful instruction on the law of indemnity of corporate officers and directors and the law of advancement of defense expenses and attorney fees. First, even though they are corollary rights, indemnity and advancement are not identical. In fact, advancement is independent of indemnity and — by contract — a corporation may grant a greater right of advancement than indemnity. Second, advancement proceedings should be summary in nature, with the court deciding whether a corporation should make reasonable advancements because the underlying legal action (or investigation) arises from the person’s corporate actions. Advancement is not a corporate blank check. The burden of proving the reasonableness of the expenses rests with the party seeking advancements. Swift resolution of these questions preserves the right of advancement. Finally, a day of reckoning will come. Either the parties or a court must decide if the person receiving the advancements must repay or not. But that day will come only after the final nonappealable action is taken in the underlying legal action or investigation. Until that time, the corporation must make reasonable advancement of expenses and legal fees. Essentially, an advancement action is a determination of entitlement and reasonableness. These precepts are reasonable and persuasive and we will apply them to this appeal.
We state our standards of review about the partial denial of declaratory relief.
We will use two standards of review while deciding this appeal. For the question of the district court denying declaratoxy judgment, we will employ an abuse of discretion standard, and a de novo standard when interpreting the parties’ contract. Our reasons for using both standards follow.
In this case, the district court refused to make a declaratory judgment on the reasonableness of legal fees and expenses already advanced by Westar because that determination was “premature.” The denial of such relief for being premature is consistent with fundamental principles of declaratory judgment law because declaratory relief is only available when there is an actual controversy between the parties. See In re Estate of Keller, 273 Kan. 981, 984-85, 46 P.3d 1135 (2002). An actual controversy exists when the parties can assert rights that have developed or will arise against each other. And, one of the four requirements for a declaratory judgment action is that the issue to be determined must be ripe for judgment. See State ex rel. Morrison v. Sebelius, 285 Kan. 875, 896-97, 179 P.3d 366 (2008).
Whether this issue was ripe for judgment is the basic question in this appeal. We must decide then whether the district court erred by holding a part of Westar’s claim was not ripe for judgment. We review such questions for an abuse of discretion. See T.S.I. Holdings, Inc. v. Jenkins, 260 Kan. 703, 721-22, 924 P.2d 1239 (1996). A court abuses its discretion when judicial action is arbitrary, fanciful, or unreasonable. State v. Reed, 282 Kan. 272, 280, 144 P.3d 677 (2006). Further, an abuse of discretion standard includes a review to discover if the discretion was guided by any erroneous conclusions of law. See State v. Skolaut, 286 Kan. 219, Syl. ¶ 3, 182 P.3d 1231 (2008).
Also, we are mindful that interpreting a contract is a question of law subject to unlimited review. Wichita State Univ. Intercollegiate Athletic Ass’n v. Marrs, 29 Kan. App. 2d 282, 283, 28 P.3d 401 (2001). Therefore, the district court’s interpretation of a contract is not binding on this court. We will independently construe the Articles of Incorporation and decide the legal effect of the parties’ agreement. For the denial of declaratory relief, after checking the ruling of the district court for any erroneous conclusions of law, we review the matter for an abuse of discretion.
Summary of arguments raised in Westar s appeal.
This case started in 2005 when Westar filed a two-count petition against Wittig in Shawnee County District Court, seeking declaratory relief and damages for a breach of contract. As we have previously stated, the district court granted Westar declaratory relief and ruled that Westar should advance all unpaid Piper Rudnick bills at a lower hourly rate. On the other hand, the court denied Westar any declaratory relief for fees and costs already paid and dismissed the corporation’s breach of contract claim. Westar now contends that ruling denying declaratory relief for the advances already paid is wrong. Also, Westar contends the court should not have dismissed its breach of contract claim. First, we will examine the question Westar raises about the denial of declaratory relief and will point out the district court had good reasons for denying Westar relief on this point. Then, we move on to the breach of contract claim and hold the court correctly ruled that claim was premature. After that, we will focus on and deny Wittig’s cross-appeal.
But we must first deal with Wittig’s claim that Westar has not properly raised this issue about advances already paid. Wittig argues that since Westar has already paid all legal fees and expenses he incurred before February 1, 2005, the court cannot now consider those payments as advances. This argument arises from a show-cause order we issued. We ordered the parties to explain why we should not dismiss this appeal for want of jurisdiction, after we noted the district court had held Westar’s claim about expenses already paid was not justiciable until the end of the federal court proceedings. On review of the parties’ responses to our order, we kept Westar’s appeal but limited the appeal to “advancement issues.” Wittig now argues Westar presents no advancement issue in this appeal because the legal fees and expenses at issue have already been advanced. He cites as support the following cases: Westar Energy, Inc. v. Lake, 552 F.3d 1215, 1229-30 (10th Cir. 2009); Sun-Times, 954 A.2d 380 and Kaung, 884 A.2d 500.
His argument fails to persuade us. First, the issue raised by Westar results from the fact the corporation paid advances. Second, in all the cases cited by Wittig, the various courts ruled on the propriety of advances and addressed recoupment and setoff claims resulting from previous advances. That is factually similar to this case. Here, the district court denied Westar declaratory relief for any payments made before February 2005. Certainly, the propriety of that denial by the district court is a valid subject of this appeal no matter what the parties call the payments. Regardless of the status (i.e., paid or unpaid) of the legal fees and expenses at issue, Westar s appeal generally raises issues of advancement and therefore is properly before this court. We will continue with the arguments raised by Westar.
The district court properly denied declaratory relief to Westar.
We find no abuse of discretion in this case when the district court denied declaratory relief to Westar for fees and expenses already advanced by Westar to Wittig. Corporate advancement of defense costs and fees is a fit subject for a declaratory judgment. For many years, Kansas district courts have used declaratory judgments granted by authority of K.S.A. 60-1701 et seq., to declare the rights, status, and legal relationships of parties seeking resolution of many different types of conflicts. In fact, the law specifically directs, “Any person having an interest under a . . . written contract or other writings constituting a contract . . . may seek determination of any question of construction or validity arising under that. . . agreement and may obtain a declaration of rights, status or other legal relations thereunder.” See K.S.A. 60-1704. In our view, a declaratory judgment action is the proper vehicle for judicially dealing with the various issues arising from any corporate indemnity and advancement case such as this case. The court can decide whether Wittig is entitled to advancement and, if so, whether the defense expenses and fees are reasonably incurred.
Further, declaratory judgment actions are not mere academic pursuits. “Declaratory relief is not to be entertained for the purpose of settling abstract questions, however interesting or important to the public generally, but is limited to correct errors injuriously affecting the appellant.” In re Estate of Keller, 273 Kan. at 984. The appellate opinions dealing with this subject speak of declaratory relief in cases of “actual controversy.” Cf. Cady v. Cady, 224 Kan. 339, 345, 581 P.2d 358 (1978). Here, we deal with interpreting “other writings constituting a contract,” namely, Article XVIII(2)(a) of Westar’s Articles of Incorporation. Here, because of Westar’s Articles of Incorporation, Wittig, as a former Westar officer, has a mandatory right of advancement of reasonably incurred costs and fees, and Westar claims the fees are not reasonably in curred; there is an actual controversy ripe for declaratory judgment.
Actually, both parties agree that Westar’s Articles of Incorporation form a contract. Clearly, the Articles grant the officers and directors a mandatory right to indemnity. And Westar promises to advance defense costs, including attorney fees, to the alleged wrongdoer if the costs and fees are reasonably incurred and if the accused signs an undertaking to repay if Westar later decides he or she is not entitled to indemnity. We look now at Westar’s arguments.
Westar focuses only on a small portion of the district court’s ruling.
Westar contends the district court has misinterpreted its Articles of Incorporation. In the corporation’s view, nothing in their Articles prevent it from seeking declaratory relief on payments already made. Westar bases this contention on an isolated comment the court made on posttrial motions written several months after the court initially granted some declaratory relief to Westar. The court wrote: “Thus, the court finds the limited scope of proceedings to determine the rights and obligations of the parties to a contractual advancement provision is not based on a particular statute but is based on the voluntary agreement of a corporation to provide ‘immediate interim relief to its officers or directors by advancing ‘ongoing’ legal fees and expenses in a prompt manner.” Just before this statement, the court was examining a Delaware case dealing with Del. Code Ann. tit. 8 § 145(k) (2009) of the Delaware general corporate code, a statute dealing with the summary nature of advancement proceedings in Delaware (with no equivalent in the Kansas corporate code). A fair reading of the quoted passage in context with the prior rulings of the court leads us to infer the court was holding as it did because advancement actions, by their nature, provide immediate interim relief to the accused wrongdoer. And, the court is saying that since Westar had made this contract for advancement, the rights of the parties depended on the contract and not on some provision of the Delaware corporate code. We see nothing in the court’s statement suggesting the district court somehow ruled the Articles of Incorporation barred Westar from seeking declaratory relief about payments already made. Westar has stretched the district court’s statement out of proportion to fit its argument.
No appellate court in this state has addressed the issue raised by Westar. Thus, the district court based its ruling on Delaware, Maryland, New York, and United States Tenth Circuit Court of Appeals case law. Tenth Circuit Court of Appeals decisions are persuasive authority, but our courts are not bound to follow them. State v. Thompson, 284 Kan. 763, 801, 166 P.3d 1015 (2007).
In our view, there are two justifications for a court to refuse to make a declaratoiy judgment regarding legal fees and expenses previously advanced. First, in order for such a judgment to have any meaning other than perhaps settling an abstract question, the court must then permit an offset or some form of recoupment if it determines fees and expenses were improperly advanced. But advancement is meant to alleviate an officer from personally providing the enormous resources required to litigate against corporate charges. Many of the reported cases speak of millions of dollars advanced by corporations for defense fees and expenses. Permitting an offset or recoupment during this process undermines that objective of refieving the accused wrongdoer from making the expenditures. Thus, it makes sense to hold that fees and expenses previously advanced must be dealt with later at the indemnification stage. Second, it is more efficient to deal with the repayment of fees and expenses at the indemnification stage — when the officer may or may not be deemed liable for all fees and expenses. Determining the reasonableness of the fees and expenses could turn out to be a waste of time and resources if it is ultimately determined that an officer is not entitled to indemnification and must repay all funds. See Fasciana, 829 A.2d at 177 (noting challenge to reasonableness of fees may not matter because officer may be obligated to repay all funds). These two reasons impel us to affirm the district court’s denial of declaratory relief to Westar seeking a determination of whether amounts already paid to Wittig were not reasonably incurred.
We look at three cases used hy the district court: Lake, Kaung, and Fasciana.
Three cases are at the heart of this controversy: Westar Energy, Inc. v. Lake, 552 F.3d 1215; Kaung v. Cole National Corporation, 884 A.2d 500; and Fasciana v. Electronic Data Systems Corp., 829 A.2d at 175. The parties argue about their meaning, and they were central to the court’s ruling. We therefore review them in detail.
We first examine a lawsuit involving Wittig’s criminal case codefendant — Douglas Lake. Because that case dealt with similar issues, we look at both the district court and Court of Appeals rulings. The United States District Court in Westar v. Lake, 493 F. Supp. 2d 1126 (D. Kan. 2007), ruled Westar’s refusal to advance any more legal fees and expenses was wrong. 493 F. Supp. at 1147. Basing its calculations on a lower rate of compensation consistent with attorney rates customarily charged in Kansas, Westar contended in this declaratory judgment action it had already advanced more than enough money to cover reasonable fees and expenses for Lake. Westar wanted to advance no more money. Westar also asked for setoff of past overpayments against any future advancement obligation owed to Lake. The court rejected Westar’s argument that out-of-state attorneys fees were per se unreasonable. The court based its decision on its own expertise as well as its knowledge of the underlying criminal case, since both trials had been held in that court. The court concluded, “[T]here are sufficiently unusual circumstances in the Criminal Case to warrant the hourly fees sought by Lake’s New York and Washington D.C. counsel.” 493 F. Supp. at 1146.
Then, relying on the holding of the Delaware Supreme Court in Kaung, the court rejected Westar’s claim for recovery via setoff against future advances because such relief exceeded the narrow scope of an advancement proceeding. The court specifically ruled that Westar’s request to “set-off of future advancement funds is both inappropriate and premature.” 493 F. Supp. at 1147. The court declared that Westar should pay the advances at the hourly rates set by the law firms. 493 F. Supp. at 1148.
These rulings were then reviewed by the 10th Circuit Court of Appeals in Westar Energy, Inc. v. Lake, 552 F.3d 1215. First, the Court of Appeals held the district court’s ruling that out-of-state attorney fees were not per se unreasonable was sound, given the complexity of the criminal trials. The appellate court recognized that Kansas case law had held trial courts are experts on attorney fees and this district court was well acquainted with the difficulty of the case after presiding over two full trials. Thus, the Court of Appeals ruled there was no abuse of discretion in that ruling. 552 F.3d at 1229. Then, also relying on Kaung, the Court of Appeals ruled, “[i]f corporations cannot make recoupment claims until the indemnification stage, they should not be permitted to achieve the same result by setting off current payments against past ones.” 552 F.3d at 1229. The Court of Appeals remanded the case to die district court with the direction that Lake had to prove the reasonableness of any future request for advances. 552 F.3d at 1230. The Court of Appeals concluded that Westar contracted for the risk that it might advance fees in excess of its indemnity obligation. 552 F.3d at 1229.
We must now turn to Kaung. In Kaung, 884 A.2d 500, the Delaware Supreme Court provided important insight into indemnity and advancement law. The Chancery Court had ruled that Kaung, a former corporate officer of Cole who was a subject of a SEC investigation and a defendant in a class action lawsuit, was not entitled to receive advancement of any part of his counsel’s fees that related to any time spent with a consultant. It is important to note that Cole paid all of the requested fees the day after the advancement action was filed, but Kaung wanted to proceed with the lawsuit anyway. The Chancery Court refused to grant any more advances to the lawyers and granted Cole an offset for those charges against any future requests of Kaung for advancement. In reversing the Chancery Court, the Delaware Supreme Court held an advancement action is a summary proceeding. 884 A.2d at 509. The court did approve the Chanceiy Court’s finding that the time billed by the lawyers for time spent with the consultant was not reasonably incurred and that the lawyers were not entitled to advancement of the firm’s unpaid legal fees. But the court held the Chanceiy Court’s determination of Kaung’s liability for sums previously advanced was premature. “We hold that an advancement proceeding is summaiy in nature and not appropriate for litigating indemnification or recoupment. The detailed analysis required of such claims is both premature and inconsistent with the purpose of a summaiy proceeding.” 884 A.2d at 510.
To us, Westar argues that in Lake, both federal courts have misinteipreted Kaung. The coiporation bases this argument on a footnote in the unpublished opinion of the Chancery Court in Delaware, written after Kaung had been remanded to that court. That footnote states: “But that reversal does nothing to disturb both courts’ conclusions that Kaung was not entitled to further advancement as an offset of amounts earlier advanced with respect to [the attorney’s dealings with the consultant].” 2005 WL 3462250, at ®3 n.ll. We are not persuaded by this argument.
First, the language used by the Delaware Supreme Court in Kaung is clear and unequivocal, an advancement proceeding is not suitable for the detailed analysis required to resolve claims of indemnity. That makes as much sense in Kansas as it does in Delaware. In order to protect the contract right of advancement, the fees must be paid. Obviously, any underlying investigation or criminal action is not going to wait for the resolution of a lengthy legal battle over advancements. Any unreasonable delay in deciding entitlement would deny the right altogether. Second, the footnote in question supports the Chancery Court’s ruling that Kaung was not entitled to “fees on fees” just because he claimed a partial victory since the Delaware Supreme Court reversed the Chanceiy Court’s prior recoupment order. That is a far different set of facts than those confronting the district court here. Finally, we point out that in Kaung, Cole paid all of the requested fees the day after Kaung filed the advancement action. The Delaware Supreme Court did not have to deal with future advances because that was left to the Chancery Court to sort out after remand.
We agree with the 10th Circuit Court of Appeals. Setoff, an equitable remedy, should not be permitted in a Kansas advancement proceeding. If Westar’s view of Kaung is correct, we choose not to follow that ruling. Such remedies as setoff should be em ployed only after a determination of indemnity, when the competing rights of the parties can be properly assessed.
In this same vein, Westar goes on to argue that advancement actions are more summary in nature under Delaware law because of § 145(k) of title 8 of the Delaware general corporate code, a section that has no equivalent in Kansas. We reject this argument as well. The United States District Court correctly pointed out in Lake, that from its legislative history, “subsection (k) is a jurisdictional provision intended to vest the Delaware Chancery Court with jurisdiction over indemnification claims.” 493 F. Supp. 2d at 1140. Prior to the enactment of subsection (k), Delaware Superior Courts decided such matters in a summary fashion through motions for summary judgment. See Citadel Holding Corp. v. Roven, 603 A.2d 818, 821 (Del. 1992). Advancement actions have always been treated in a summary way by Delaware courts.
The decision that best supports the district court’s ruling in this case is Fasciana v. Electronic Data Systems, Corp., 829 F.2d 160 (Del. Ch. 2003). In Fasciana, Electronic Data Systems claimed Fasciana failed to establish the reasonableness of his attorney fees because the attorney’s time records were incomplete and insufficient. The Chancery Court held only a portion of Fasciana’s fees and expenses were reasonably incurred in connection with his representation of Electronic Data Systems business; therefore, apportionment of the fees was an issue before that court. Since the underlying investigation concerning Fasciana was continuing, the court established a method for dealing with future advancements. The court instructed Fasciana to submit a good-faith estimate of his expenses. The court stated, “With this procedure in place, EDS should have adequate protection so that it can reserve any ultimate fight about the precise amounts until a later indemnification proceeding.” 829 A.2d at 177. Like the Chanceiy Court in Fasciana, the district court here established a method for the parties to continue the advancement of defense costs for Wittig, with any fight over precise amounts to be decided when indemnity would be determined.
Finally, Westar contends that if we affirm the district court’s denial of declaratory relief, we will establish a precedent that would in the future force corporations dealing with advancement controversies to come to court before making any advances, thus causing a delay in their payment. We doubt the significance of this problem. First, federal prosecutions are not often resolved overnight. In Sun-Times, 954 A.2d 380, the corporation had advanced $77 million over a 5-year period. In this case, Wittig’s prosecution started in 2003, with two full trials, subsequent appeals, and a third trial is scheduled. Second, a swift determination of entitlement and reasonableness is possible in these types of cases, especially through the use of declaratory judgments. While it is true that some time did elapse between the filing of this petition and the district court’s ultimate ruling, much of that time was expended with proceedings before the Special Master, but the district court did assure that advances would continue to flow from Westar to Wittig (although it was at a rate that he did not like).
The public policy of encouraging worthy individuals to accept positions of corporate responsibility created by the legislature in K.S.A.17-6305 was not thwarted in this case. District courts dealing with such controversies must resolve two competing interests, the need of the accused officer or director for advances to be made and the need of the corporation to advance only expenses reasonably incurred. The district court did so in this case. Even though we might not agree with all the court ruled, we find no abuse of discretion by the district court when it denied Westar declaratory relief for advances already paid.
Consistency compels us to affirm the dismissal of Westar s breach of contract claim.
The district court granted Wittig’s motion to dismiss Westar’s breach of contract claim in April 2004, after the court had, in July 2003, denied Westar relief for fees already advanced. To us, Westar contends that its Articles of Incorporation do not prohibit it from making this claim. Essentially, this is the same argument raised in its issue concerning the district court’s denial of declaratory relief that we have previously addressed. We need not repeat our prior observations concerning this. We incorporate them by reference into this ruling. But we must point out that this claim is an obvious attempt at recoupment. If recoupment is not permitted until a determination is made concerning indemnity, then this claim cannot be prosecuted now.
The Articles of Incorporation, that forms the contract of the parties, states expressly:
“The right to indemnification conferred in this section shall be a contract right and shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition . . . upon delivery to the Corporation of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified
We recognize, along with the district court, the contract between the parties conditions repayment upon a determination of indemnity.
Additionally, all of the reasoning employed to deny relief for declaratory judgment for advances already paid applies here. To attempt to resolve this matter now would be a waste of time and effort if it is ultimately determined that Wittig may have to pay all advances back or none of it back.
We turn to Wittig’s cross-appeal.
In his cross-appeal, Wittig argues the district court ignored Westar s own interpretation of the term “reasonable” when concluding Piper Rudnick’s hourly rates were unreasonable. He claims Westar’s actions defined “reasonable” to include nonlocal rates by paying Piper Rudnick’s initial bills without objection. Also, Wittig claims the district court failed to consider the benefit of the parties’ bargain, ignored the conduct of the parties, and should not have focused solely on KRPC 1.5(a) (2009 Kan. Ct. R. Annot. 460).
We recognize that the parties here have a contract. However, once it is determined that the district court had authority under an agreement to grant attorney fees, the district court’s decision is reviewed under an abuse of discretion standard. Tyler v. Employers Mut. Cas. Co., 274 Kan. 227, 242, 49 P.3d 511 (2002). The district court has wide discretion to determine the amount and recipient of attorney fees. In re Marriage of Burton, 29 Kan. App. 2d 449, 454, 28 P.3d 427, rev. denied 272 Kan. 1418 (2001). An award of attorney fees will not be set aside on appeal when supported by substantial competent evidence. The district court abuses its discretion when no reasonable person would take the view adopted by the district court. State v. Moses, 280 Kan. 939, 945, 127 P.3d 330 (2006). In this case, this court has unlimited review over the district court’s interpretation of the phrase “reasonably incurred,” a contract term. We will then evaluate the district court’s decision to reduce the amount of Piper Rudnick’s attorney fees for an abuse of discretion.
We offer a brief summary of what the district court ruled on this point.
The district court held that the hourly rates charged by Piper Rudnick were unreasonable in light of KRPC 1.5(a). The court therefore assigned a reasonable hourly rate to each Piper Rudnick attorney and nonattomey who represented Wittig. The court explained that it considered each attorney’s skill and experience while doing so. Based on tírese hourly rates, the district court reduced the amount of Piper Rudnick’s attorney fees due and thereby lowered the amount Westar was required to advance.
KRPC 1.5(a) lists eight factors a court must consider when determining the reasonableness of a fee:
“(1) the tíme and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
“(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
“(3) the fee customarily charged in the locality for similar legal services;
“(4) the amount involved and the results obtained;
“(5) the time limitations imposed by the client or by the circumstances;
“(6) the nature and length of the professional relationship with the client;
“(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
“(8) whether the fee is fixed or contingent.” 2009 Kan. Ct. R. Annot. 461.
The district court looked at all eight factors when making its ruling:
First, the court found Wittig’s criminal case was clearly complex in nature and continued to require a significant amount of time and labor. The court found that although the case did not involve a federal tax charge, it still involved difficult questions and required a substantial amount of skill.
Second, the court noted two jury trials were conducted and a third trial was set. The court concluded the attorneys working on the case were therefore precluded from working on other matters.
Third, the court defined “locality” as the greater Kansas City metropolitan area. The court concluded — based on its knowledge and the evidence presented by the parties — that local attorneys with expertise in white-collar criminal defense charge substantially lower hourly rates than those charged by attorneys with similar experience in Washington, D.C. The court noted the hourly rate of James Eisenbrandt, a “well respected member of the white collar criminal defense bar in the greater Kansas City area,” was $295. The court compared this to the $450 hourly rate charged by a Piper Rudnick attorney with 22 years’ less experience. The court acknowledged the cost of living and economic differences and its belief that an attorney and sophisticated client should have freedom to contract for higher fees than those customarily charged in Kansas, but stated it could not ignore this factor when it was only reviewing tire agreement between Westar and Wittig.
Fourth, the court found the criminal case against Wittig involved significant penalties and the outcome was extremely important to Wittig. The court also recognized the importance of the outcome to the employees, shareholders, and ratepayers of Westar and the United States of America. The court stated that because Wittig’s first trial ended in a mistrial and the admonishment of his attorneys for their misconduct during the first trial— and Wittig was convicted of all charges in his second trial — -the results obtained were mixed.
Fifth, the court found Wittig’s attorneys were required to meet deadlines set by the judge but did not appear to be limited in time or expense by Wittig. The court noted that it was unknown whether Wittig would have set such limits had Westar not contractually agreed to advance fees and expenses.
Sixth, the court noted Wittig had a lengthy relationship with Berkowitz Oliver. The court also noted that Wittig’s relationship with Piper Rudnick did not begin until December 2002 but that two Piper Rudnick attorneys would represent Wittig in his third trial.
Seventh, the court commented on the expertise the attorneys had in white-collar criminal defense and noted all had a good professional reputation. Nevertheless, the court considered the inappropriate behavior displayed by nonlocal counsel during the proceedings.
Finally, the court noted the case was neither a fixed fee nor a contingency fee case.
Based on the findings above, the court concluded that (1) the number of hours billed by both Berkowitz Oliver and Piper Rudnick (with some exceptions) were reasonable; (2) the hourly rates charged by Berkowitz Oliver attorneys and paralegals were reasonable; and (3) the hourly rates charged by Piper Rudnick attorneys were unreasonable in light of KRPC 1.5(a).
The district court did not need evidence of the conduct of the parties.
Wittig’s argument fails because the contract of the parties is not ambiguous. The district court correctly held the language of Article XVTII(2)(a), “reasonably incurred,” was plain and unambiguous. Therefore, we see no need for the district court here to consider the conduct of the parties in order to interpret this contract. Although the parties may have different views of what was reasonable, the district court — an expert in determining reasonable attorney fees — was well within its discretion to make this determination and use KRPC 1.5(a) as the methodology to resolve this dispute. See Johnson v. Westhoff Sand Co., 281 Kan. 930, 940-41,135 P.3d 1127 (2006). Because the court found no ambiguity in the contract, it was not required to look to extrinsic evidence such as the parties’ course of conduct to determine reasonableness.
The law on this point is well settled. When a contract is determined to be unambiguous, the district court may look only to the four comers of the agreement to determine the parties’ intent. Brown v. Lang, 234 Kan. 610, 614-15, 675 P.2d 842 (1984). Contract language is ambiguous when the words used to express the intent of the parties are insufficient and have two or more possible meanings. It is only when a contract is deemed ambiguous that facts and circumstances existing prior to and contemporaneously with its execution may clarify the intent and purpose of the contract. When construing an ambiguous contract, the court may consider the interpretation placed upon the contract by the parties themselves. First Nat'l Bank of Olathe v. Clark, 226 Kan. 619, 624, 602 P.2d 1299 (1979).
Wittig cites several cases to support the idea that contracting parties’ acts and conduct must be considered in order to ascertain the intent of an agreement, but we note that all of them involve the interpretation of an ambiguous contract. See Universal Motor Fuels, Inc. v. Johnston, 260 Kan. 58, 63, 917 P.2d 877 (1996) (noting where ambiguity or uncertainty of contract is involved, intent of the parties is not ascertained by resort to literal interpretation); Akandas, Inc. v. Klippel, 250 Kan. 458, 464-65, 827 P.2d 37 (1992) (stating general principle that intent of the parties is primary, but that meaning should be ascertained by examining four corners of document); Heyen v. Hartnett, 235 Kan. 117, 123-24, 679 P.2d 1152 (1984) (court construed ambiguous deed); First Nat’l Bank of Olathe v. Clark, 226 Kan. at 624-25 (where contract is ambiguous, district court properly permitted introduction of parol evidence to explain ambiguities); Embree v. Koelsch, 154 Kan. 570, 573, 119 P.2d 533 (1941) (where contract was ambiguous in terms, mode adopted by parties was properly used as guide in construing contract); Fire Association v. Taylor, 76 Kan. 392, Syl. ¶ 2, 91 Pac. 1070 (1907) (stating where language is susceptible of two or more meanings — i.e., ambiguous — court must ascertain the intent of parties); Sun-Times, 954 A.2d at 398 (stating when terms of agreement are ambiguous, “ "any course of performance accepted or acquiesced in without objection is given great weight in the interpretation of the agreement’ ”).
In our view, the evidentiary basis for Wittig’s argument is rendered irrelevant in light of the district court’s refusal to make a declaratory judgment about the reasonableness of pre-February 1, 2005, fees and expenses and his argument on this point has no force. Wittig argues that Westar defined “reasonable” to include nonlocal rates. In his deposition, a former Westar executive — Larry Irick — testified that Wittig was not limited to hiring local counsel Irick testified Westar did not object when it learned that Wittig hired Piper Rudnick. He also testified that when Westar received the initial Piper Rudnick bills (for April 2004, September 2004, and October 2004), it did not object to the counsel chosen by Wittig, the rates charged, or the reasonableness of the bills. Irick stated the bills were not reviewed for reasonableness. But Irick stated that at the time, “the impression was that the fees were not completely out of the ball park.” Then, Irick testified that a review for reasonableness was commenced (which led to Westar’s March 2005 letter) because the legal fees began to skyrocket. He explained that at some point, counsel focused on the hourly rates that were being charged and made a decision about whether they were reasonable. Any evidence that Westar paid fees without objection prior to that time is irrelevant to the issue confronting the district court, which was the reasonableness of the fees requested for future advances. Moreover, Irick never testified that Westar deemed the initial fees and expenses reasonable. Instead, he testified the bills were not reviewed for reasonableness and that no objection was made.
In this case, the district court determined that Piper Rudnick’s hourly rates were unreasonable in light of KRPC 1.5(a). Our Supreme Court has urged consideration of the KRPC 1.5(a) factors to determine the reasonableness of attorney fees. See Davis v. Miller, 269 Kan. 732, 751, 7 P.3d 1223 (2000). The district court analyzed and discussed each factor at length. Wittig does not dispute the district court’s analysis or factual basis as it relates to any of these factors. There is no basis for concluding the district court abused its discretion in this regard.
On appeal, Wittig argues that in resolving this matter as it did, the court itself looked to an extrinsic source — the KRPC — because the Articles neither define nor provide guidance on the meaning of the phrase “reasonably incurred.” Therefore, the court erred by not considering the extrinsic evidence of the conduct of the parties. The Kansas Rules of Professional Conduct are not extrinsic evidence. They are simply a reference the court may consider to aid in its analysis. Their use is the methodology recognized by the Supreme Court as proper for a district court to use in making a reasonableness determination. The conduct of the parties is, however, evidence extrinsic to the Articles.
The district court did consider the benefit of the parties’ bargain.
Going on, the record contradicts Wittig’s claim that the district court failed to consider the benefit of the bargain. Instead, the record reflects that the court simply reached a conclusion contrary to Wittig’s liking. The court held that the language of the “Undertaking” and Articles made clear that the benefit of the bargain was for Westar to advance reasonable attorney fees and expenses — and that Westar did not contract to pay all fees or grant an unconditional right to advancement. Although the district court did not discuss whether its benefit of the bargain analysis would differ where the agreement to pay attorney fees was based only in contract, the court (1) explained that the purpose of a contractual attorney fee agreement is to give the parties the benefit of the bargain and acknowledged the courts’ responsibility to enforce that bargain; and (2) acknowledged that an attorney and sophisticated client should have freedom to contract for higher fees than those customarily charged in Kansas.
Wittig argues a benefit of the bargain analysis applies when an agreement to pay fees is based in contract as opposed to a fee-shifting statute. Relying primarily on the Tenth Circuit opinion in C.J.C., Inc. v. Western States, 834 F.2d 1533 (10th Cir. 1987), Wittig claims the court should not independently calculate a reasonable fee or closely scrutinize fees when an agreement is based in contract. Notably, the federal district court in Lake used a benefit of the bargain analysis when holding Westar failed to contractually limit Lake’s fees to in-state counsel rates. Westar Energy, Inc. v. Lake, 493 F. Supp. 2d 1126, 1144 (D. Kan. 2007).
We agree with the analysis performed by the 10th Circuit Court of Appeals in Lake when it accurately predicted the Kansas Supreme Court would look to the various factors listed in KRPC 1.5(a) to assess the reasonableness of attorney fees arising from an agreement to pay them. 552 F.3d at 1229. Because the Articles provide only for the advancement of attorneys fees reasonably incurred, the cases dealing with fee-shifting statutes are inapplicable. Therefore, just as the 10th Circuit ruled, there is no reason to follow the ruling in Western States on this point. Even so, we note the court in Western States makes clear that the district court should not “simply award the full amount billed” but clearly had discretion to adjust a contractual award of fees if an award is inequitable or unreasonable. 834 F.2d at 1548. The court further explained:
“In considering whether a fee is unreasonable or excessive, the trial court need not wholly disregard the familiar factors from the federal cases awarding fees in a statutory context. [Citation omitted.] The district court may choose to use these factors, not to compute a reasonable fee, but to assist in determining if the fees claimed are unreasonable or inequitable. In addition, it remains important for the district court to provide a ‘concise but clear explanation’ of its reasons for any adjustments to the fee award.” 834 F.2d at 1550.
Further, we agree also with the 10th Circuit’s ruling that the burden to prove the reasonableness of the fees and expenses requested is upon the party making the request. This ruling is consistent with the ruling in Delaware courts and should be applied here.
It is true that the district court in this case did compute a reasonable hourly rate and adjusted Piper Rudnick’s attorney fees on this basis, and the court considered each KRPC 1.5(a) factor and clearly explained its rationale for an adjustment based on its findings. This court cannot say the district court abused its discretion in doing so. In fact, it was Wittig who initially urged the district court to consider KRPC 1.5 to determine whether his attorney fees were reasonable.
Although the federal court in Lake reached an entirely different conclusion than that reached here, we cannot say the district court committed reversible error under the applicable standard of review. See 493 F. Supp. 2d at 1142-46. The Lake court was dealing with a fundamentally different problem. Westar was arguing that it need not advance any more fees and expenses in Lake’s defense because of all of the money it had already advanced. That differs from this case where Westar was seeking to advance fees at a lower rate. The district court here was not confronted with the problem of no more advances but rather how much to advance. The Lake court was confronted with a party wanting to make no more advances, thereby ehminating the contract right of advancement altogether. The fundamental emphasis of advancement law is that to preserve the right, advances must be paid, because hesitation and great delay destroys the right altogether. Also, the Lake court did not make a detailed analysis of the evidence using KRPC 1.5(a), as the district court did here. We cannot say it is an abuse of discretion for a district court to be more thorough than a federal court.
We reject Wittig’s claim that the district court created a new standard.
In addition, Wittig argues on appeal that the district court’s decision somehow created a legal standard that makes nonlocal attorney rates unreasonable per se when a court decides sua sponte that local attorneys could have been used. Wittig argues the court set such a standard despite “undisputed” evidence that no local attorneys could offer the legal services Wittig required.
Turning first to the standard of review for such a question, Wittig claims this court has unlimited review over the issue because it involves the construction of a written instrument and the court had no opportunity to evaluate the credibility of witnesses or trial conduct. To the contrary, Wittig’s claim can be resolved entirely on the basis of witness testimony. When reviewing an award of attorney fees, this court does not reweigh the testimony or evidence presented or reassess the credibility of witnesses. An appellate court will review an award of attorney fees with an abuse of discretion standard. See Tyler, 274 Kan. at 242. An award of attorney fees will not be set aside on appeal when supported by substantial competent evidence.
We review the testimony offered on the reasonableness of the fees requested.
The district court did not determine sua sponte that local attorneys could have been used. Eisenbrandt testified to this fact. Contrary to Wittig’s argument, the district court did not set a new standard but simply found nonlocal rates unreasonable in these circumstances. Moreover, there was not “undisputed” evidence that no local attorneys could offer the legal services Wittig required.
On direct examination, Eisenbrandt testified that he recommended that Wittig retain Washington, D.C. counsel because information indicated the case was an extremely complex tax case. Eisenbrandt told Wittig it would be necessary to associate with a firm that had expertise with complex criminal tax matters. Eisenbrandt explained that a subject of a tax investigation has the right to a hearing at the United States Department of Justice before an indictment can be returned. He felt it was important to retain a firm that had expertise and contacts in the Tax Division in order to get a meaningful review. Wittig suggested Piper Rudnick.
Then, Eisenbrandt testified that when the indictment was actually issued, no federal tax charges were included. He stated that the remaining conspiracy count did, however, involve extremely complex tax issues. Eisenbrandt stated that once no federal tax charges were brought, he did not recommend discontinuing Piper Rudnick because Wittig was comfortable with Piper Rudnick; Piper Rudnick was putting time, energy, expertise, and investigation into the case; and the issues were complex. Further, Eisenbrandt believed there was no one in the Kansas City area without a conflict that could have handled the case. Eisenbrandt testified also that it was possible for the government to intervene and issue federal tax charges after the indictment was issued. He also testified he did not think any law firm or lawyer in the Kansas City area could have provided the same expertise and connections that Piper Rudnick brought.
On cross-examination, however, Eisenbrandt admitted there were firms in the Kansas City area that had both the manpower and ability to handle complex white-collar criminal matters. Although Eisenbrandt believed these firms had conflicts, he admitted he did not contact any firm to see whether a conflict did, in fact, exist or could be waived. Eisenbrandt explained that after the indictment was issued, it was decided that Berkowitz Oliver would only serve as local counsel. Eisenbrandt testified that Jeff Morris (a Berkowitz Oliver attorney) became more involved in the second trial and will try the third trial.
It is quite clear that Eisenbrandt’s testimony suggesting there were no local attorneys who could provide the legal services required by Wittig was very much disputed by his own admissions made during his cross-examination. Eisenbrandt plainly admitted on cross-examination that there were firms in the Kansas City area that had both the manpower and ability to handle complex white-collar criminal matters and that he did not verily whether these firms actually had conflicts. Eisenbrandt testified that he did not recommend discontinuing Piper Rudnick because Wittig was comfortable with Piper Rudnick and Piper Rudnick had contributed to the case. It appears to us the district court took these apparent conflicts in testimony into account when it rendered its decision. The court created no new standard but, instead, after weighing the testimony, decided what was reasonable. The district court was never critical of the choice of Piper Rudnick, just their rates considering all of the factors.
We examine Wittig’s additional arguments.
Wittig also claims the district court ignored the complexity of his case. In reaching the conclusion that Piper Rudnick’s hourly rates were unreasonable, the district court acknowledged that Wittig’s criminal case was clearly complex, required a significant amount of time and labor, involved difficult questions, and required a substantial amount of skill. The district court did not ignore the complexity of Wittig’s case but simply gave less weight to this factor than Wittig would have preferred. Moreover, the district court likely considered this factor in light of Eisenbrandt’s testimony that there were firms in the Kansas City area that had both the manpower and ability to handle complex white-collar criminal matters.
The additional factors the court considered to reach its conclusion are supported by the record. The court noted that Jeff Morris moved from the role of local counsel to trial counsel for Wittig’s second trial — and that he would be active in the third trial. This is supported by Eisenbrandt’s testimony. The court observed that Wittig voluntarily kept the Washington, D.C., law firm after he knew the indictment did not include federal tax charges. This is supported by the record. The court found it “significant” that Berkowitz Oliver anticipated it would play a primary role in Wittig’s defense after the indictment was returned. Wittig does not dispute this finding on appeal. The court recognized that Wittig did not attempt to find attorneys from Kansas or Missouri to perform the role performed by Piper Rudnick. This is generally supported by Eisenbrandt’s testimony that he merely believed there was no one in Kansas City without a conflict that could have handled the case and that he did not think any law firm in Kansas City could have provided the expertise and connections of Piper Rudnick. The court noted it was Wittig who suggested Piper Rudnick. This is supported by the record.
The district court’s decision to reduce Piper Rudnick’s hourly rates (and therefore its overall attorney fees) was not an abuse of discretion. The court weighed the evidence it heard on the subject, considered the report of the Special Master, and took into account the arguments from both sides. This was no spur-of-the-moment ruling made offhand from the bench. The findings that support the court’s decision are supported by substantial competent evidence. Reasonable minds could rule as the district court did here. If we were to rule as Wittig wants, that fees must be paid without regard to their reasonableness, then advancement is reduced to a corporate blank check. If Delaware case law teaches anything, it is that advancement requires a reasonableness determination by the court as well as an entitlement decision.
Conclusion
This case presents issues of first impression in Kansas. We summarize our holdings:
• Declaratory judgment actions are a proper vehicle to determine the entitlement and reasonableness of advancements.
• Indemnity and advancement are corollary rights but not identical.
• Parties can, by contract, extend advancement rights greater than rights of indemnity.
• Advancement proceedings must be summary in nature, with a court determining the entitlement of the officer or director and the reasonableness of the fees and expenses requested. Quick resolution of these questions preserves the right of advancement.
• Any attempt at recoupment of money advanced must come after a determination of indemnity.
• A corporation obligated to make advancements must continue to make reasonable advances until indemnity is decided.
• Indemnity can only be determined after the final nonappealable action is taken in the underlying legal action or investigation.
Therefore, we affirm the district court in Westar s appeal and deny Wittig’s cross-appeal.
Affirmed; cross-appeal denied. | [
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Marquardt, J.:
Michelle Graham and David Martinez appeal the partial summary judgment granted to Mortgage Electronic Registration Systems, Inc. (MERS), on MERS’s petition to foreclose Graham and Martinez’ mortgage. Graham and Martinez also appeal the summary judgment granted in favor of Countrywide Home Loans, Inc. (Countrywide), and the denial of their Kansas Consumer Protection Act (KCPA) and fraud claims. We affirm in part, reverse in part, and dismiss in part.
In August 2002, Graham executed a mortgage and promissory note for $140,000 with Countrywide for the purchase of a house. MERS, “acting solely as nominee for Countrywide,” held the mortgage on the property. The property is titled in Graham’s name, and she is the sole signatory on the promissory note. According to Graham’s appellate brief, she and Martinez “have long considered themselves to be common law spouses, and accordingly, each recognizes that the other has an interest in this property.”
Graham stopped malting monthly payments on the promissory note in June 2004. MERS filed a petition to foreclose the mortgage in September 2004. MERS and Countryside named Martinez as a defendant in the foreclosure action “by virtue of his marital interest in the property.” The district court dismissed the petition without prejudice after learning that Graham and Martinez had filed for Chapter 13 bankruptcy in August 2004. The bankruptcy was dismissed in February 2005 for lack of feasibility; however, Graham and Martinez filed another Chapter 13 bankruptcy in May 2005. Because of the bankruptcy filing, MERS, as nominee for Countrywide, filed a motion for relief from the automatic stay placed on the foreclosure action under 11 U.S.C. § 362 (2000).
While this second bankruptcy case was pending, Countrywide contracted with the law firm of McCalla, Raymer, Padrick, Cobb, Nichols & Clark, LLC, in Roswell, Georgia, (McCalla Raymer), to analyze their troubled loans and identify borrowers who might qualify for a loan modification. On August 16, 2005, McCalla Raymer sent Michael Brunton, Graham and Martinez’ attorney, a letter notifying him that a loan modification was possible. They also sent a consent form requesting authorization for them to communicate directly with Graham and Martinez. In compliance with the letter’s request, Graham and Martinez provided McCalla Ray mer with various financial documents. Brunton signed the consent form.
On October 26, 2005, McCalla Raymer sent another letter to Brunton stating that Graham and Martinez were conditionally preapproved for a loan modification. The letter stated:
“Please be advised that our office represents [Countiywide] in your client’s above referenced bankruptcy. Based upon a review of your client(s) financial package received and bankruptcy schedules, your client’s loan has been conditionally pre-approved by the Investor for a loan modification. The conditions are as follows:
• Approval of motion for relief from the bankruptcy (or)
• Dismissal of the bankruptcy (if chapter 13)
“Please be advised that final terms of the loans [sic] modification will be determined when the loan is released out of bankruptcy.
“If your client is interested in a loan modification with our client, please contact our office immediately to discuss further. Please be advised that if your client is interested in a loan modification that the debtor would be required to consent to relief from the stay or dismiss their bankruptcy.”
It is undisputed that Brunton informed Graham and Martinez about the letter, but neither Graham nor Martinez contacted McCalla Raymer. Graham and Martinez claimed they were not required to contact McCalla Raymer to obtain the loan modification.
On November 9, 2005, Graham and Martinez allowed Brunton to consent to an order lifting the automatic bankruptcy stay placed on MERS’s foreclosure action. The bankruptcy court noted that an “[agreement has been reached and the debtor has no objection to relief from stay being granted.” The bankruptcy order was filed on November 30, 2005.
On November 14, 2005, McCalla Raymer sent another letter to Brunton, which included the following sentence: “Please note that if we do not hear from your office regarding this matter by 11/21/ 05, we will be forced to close our file.” It is undisputed that neither Graham nor Martinez contacted McCalla Raymer concerning the November 14 letter.
On January 18, 2006, after the bankruptcy court dismissed Graham and Martinez’ case for failure to make payments under the bankruptcy plan, MERS filed a second petition to foreclose on the property. In response, Graham and Martinez added Countrywide as a third-party defendant. They filed a counterclaim against MERS and a cross-claim against Countrywide alleging that both committed fraud when MERS and Countrywide knowingly made false and misleading statements through their agent, McCalla Raymer, in the October 26, 2005, letter. Additionally, Graham and Martinez alleged MERS and Countrywide violated K.S.A. 50-626 and K.S.A. 50-627 of the KCPA, K.S.A. 50-623 etseq., because the false promise to modify their loan enticed them to lift the automatic bankruptcy stay.
On July 23, 2007, MERS filed a motion for partial summary judgment and Countiywide filed a motion for summary judgment contending that the claims filed by Graham and Martinez failed as a matter of law because they provided: (1) no evidence the offer was false or misleading; (2) no evidence of deceptive or unconscionable acts or practices; (3) no evidence of actual damages; and (4) they could not be hable for any offer made by an employee of McCalla Raymer, an independent contractor.
In response, Graham and Martinez argued that they detrimentally relied on McCalla Raymer’s fraudulent letter stating they had been preapproved for a loan modification and summaiy judgment was not appropriate because: (1) the existence of fraud is a question of fact; (2) whether a person engaged in deceptive acts or practices is also a question of fact; (3) MERS and Countrywide presented a “lame argument” that suggested McCalla Raymer “suddenly and magically appeared” widrout Countrywide’s guidance; and (4) the loss of their $150,000 home was evidence of their damages.
On February 25, 2008, the district court granted MERS’s and Countrywide’s motions for summary judgment, focusing on Graham and Martinez’ lack of evidence supporting their claims that (1) the loan was automatically modified after they agreed to lift the bankruptcy stay; (2) they were ready to proceed with the loan modification; or (3) MERS or Countrywide lacked good faith in offering the loan modification.
Additionally, the district court stated that Graham and Martinez failed to provide evidence they detrimentally relied on McCalla Raymer’s alleged misrepresentations. Although Graham and Martinez maintained that merely agreeing to lift the stay supported detrimental reliance, the district court determined that “Ms. Graham is in gross default of the terms of her note and mortgage,” and the involuntary dismissal of their bankruptcy 2 months after lifting the stay was insufficient to establish detrimental reliance. Further, the district court noted Graham and Martinez failed to show they suffered a causal injury. They suggested that the foreclosure might have been delayed, but Graham and Martinez presented no evidence that the foreclosure would have been prevented.
The district court also determined that Graham and Martinez failed to support their KCPA claims because they neglected to offer any evidence that MERS or Countrywide intended to deceive or engage in deceptive acts or practices. Without evidence of a willful falsehood or ambiguity, or a willful failure to state a material fact, the district court concluded Graham and Martinez KCPA claims failed. Graham and Martinez timely appeal.
MERS’s Petition to Foreclose the Mortgage
As a preliminary matter, after the parties filed their appellate briefs, Graham and Martinez submitted a letter of additional authority pursuant to Supreme Court Rule 6.09(b) (2009 Kan. Ct. R. Annot. 47) suggesting Landmark Nat’l Bank v. Kesler, 289 Kan 528, 216 P.3d 158 (2009), pertains to the arguments which appellants made at pages 24 through 26 of their brief.
“Standing is a question of whether the plaintiff has alleged such a personal stake in the outcome of a controversy as to warrant invocation of jurisdiction and to justify exercise of the court’s remedial powers on his or her behalf. A party must have a sufficient stake in the outcome of an otherwise justiciable controversy in order to obtain judicial resolution of that controversy. [Citations omitted.] The party must have personally suffered some injury and there must be a causal connection between the injury and the challenged conduct.” Moorhouse v. City of Wichita, 259 Kan. 570, 574, 913 P.2d 172 (1996) (citing Harrison v. Long, 241 Kan. 174, 176-77, 734 P.2d 1155, appeal dismissed 484 U.S. 804 [1987]).
In Kansas, standing is a component of subject matter jurisdiction, which any party, or the court on its own motion, may raise at any time. Vorhees v. Baltazar, 283 Kan. 389, 397, 153 P.3d 1227 (2007).
In their letter of additional authority, Graham and Martinez contend MERS did not have standing to bring a foreclosure action because MERS is only the holder of the mortgage. Countrywide, as the lender, holds the promissory note.
In its response, MERS attempts to distinguish Landmark by claiming it stands for the sole proposition that MERS was not a necessary party following an entry of default judgment in a foreclosure action. MERS claims the underlying facts in this case differ markedly from the facts in Landmark and that Graham and Martinez admitted in their pleadings that “MERS acted as an agent of the note owner, Countrywide, and are bound by their admissions.” However, “parties cannot confer subject matter jurisdiction by consent, waiver, or estoppel. Nor can parties convey jurisdiction on a court by failing to object to its lack of jurisdiction. [Citation omitted.]” Kansas Bd. of Regents v. Skinner, 267 Kan. 808, 814, 987 P.2d 1096 (1999).
In Landmark, our Supreme Court determined that a nonlender is not a contingently necessary party in a mortgage foreclosure action. 289 Kan. at 542-44. In its analysis, the Landmark court provided a detailed discussion of MERS as a “nominee” for the lender and determined the legal status of a nominee “depends on the context of the relationship of the nominee to its principal.” 289 Kan. at 539. After examining the relationship between MERS and the lender, the Landmark court stated:
“The relationship that MERS has to [the lender] is more akin to that of a straw man than to a party possessing all the rights given a buyer. A mortgagee and a lender have intertwined rights that defy a clear separation of interests, especially when such a purported separation relies on ambiguous contractual language. The law generally understands that a mortgagee is not distinct from a lender: a mortgagee is ‘[o]ne to whom property is mortgaged: the mortgage creditor, or lender.’ Black’s Law Dictionary 1034 (8th ed. 2004). By statute, assignment of the mortgage carries with it the assignment of the debt. K.S.A. 58-2323. Although MERS asserts that, under some situations, the mortgage document purports to give it the same rights as the lender, the document consistently refers only to rights of the lender, including rights to receive notice of litigation, to collect payments, and to enforce the debt obligation. The document consistently limits MERS to acting ‘solely as the nominee of the lender.
“Indeed, in the event that a mortgage loan somehow separates interests of the note and the deed of trust, with the deed of trust lying with some independent entity, the mortgage may become unenforceable.
“ ‘The practical effect of splitting the deed of trust from the promissory note is to make it impossible for the holder of the note to foreclose, unless the holder of the deed of trust is the agent of the holder of the note. [Citation omitted.] Without the agency relationship, the person holding only the note lacks the power to foreclose in the event of default. The person holding only the deed of trust will never experience default because only the holder of the note is entitled to payment of the underlying obligation. [Citation omitted.] The mortgage loan becomes ineffectual when the note holder did not also hold the deed of trust.’ Bellistri v. Ocwen Loan Servicing, LLC, 284 S.W.3d 619, 623 (Mo. App. 2009).” 289 Kan. at 539-40.
Likewise, in the instant case, this mortgage states that MERS acts “solely as nominee” for Countrywide. There is no mention of MERS in the promissory note, and there is no evidence that Countrywide assigned the note to MERS. Thus, there is no evidence that MERS has suffered any injury caused by Graham and Martinez’ failure to make payments on the promissory note. The note does not obligate Graham and Martinez to make payments to MERS. Further, there is no indication that MERS possesses any interest in the promissory note, and given Landmark’s “straw man” characterization of MERS’s relationship to lenders, 289 Kan. at 539, there is no evidence that MERS received permission to act as an agent for Countrywide.
Having suffered no injuiy, MERS lacks standing to bring a foreclosure action. Accordingly, the district court did not have jurisdiction to grant MERS’s petition to foreclose the mortgage. The summary judgment in favor of MERS is reversed, and the foreclosure action is dismissed.
Summary Judgment on the Fraud Claim
An appellate court’s standard of review in summary judgment cases is well established:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The [district] court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summaiy judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply die same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summaiy judgment must be denied.” Miller v. Westport Ins. Corp., 288 Kan. 27, Syl. ¶ 1, 200 P.3d 419 (2009).
The elements required to sustain an action for fraud include:
“ ‘[1] an untrue statement of fact, [2] known to be untrue by the party making it, [3] made with the intent to deceive or with reckless disregard for the truth, [4] upon which another party justifiably relies and [5] acts to his or her detriment.’ ” Bomhoff v. Nelnet Loan Services, Inc., 279 Kan. 415, 422, 109 P.3d 1241 (2005); PIK Civ. 4th 127.40.
Although the existence of fraud is normally a question of fact, when a plaintiff presents no evidence of an essential element of his or her claim, “ ‘there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.’ ” Crooks v. Greene, 12 Kan. App. 2d 62, 64-65, 736 P.2d 78 (1987) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 [1986]).
Here, the district court concluded Graham and Martinez simply failed to present evidence to support the essential elements of their fraud claim. Thus, when a plaintiff lacks evidence to establish an essential element of his or her claim, summaiy judgment is appropriate. See Saliba v. Union Pacific R.R. Co., 264 Kan. 128, 131, 955 P.2d 1189 (1998).
In its response to MERS’s and Countrywide’s motions for summaiy judgment, Graham and Martinez claimed that McCalla Raymer made false and misleading statements in its October 26, 2005, letter when it stated that they had been preapproved for a loan modification. According to Graham and Martinez, they assumed “the loan modification would go through” once they agreed to lift the stay in their bankruptcy case. However, Graham and Martinez’ assumption is not supported by the evidence and does not show that any statement in McCalla Raymer s October 26 letter was untrue.
The October 26 letter contains two sentences that refute Graham and Martinez’ fraud claim. First, after the letter’s two conditions, McCalla Raymer stated, “Please be advised that final terms of the loans [sic] modification will be determined when the loan is released out of bankruptcy.” Consequently, the terms of the loan modification would have had to be determined after the bankruptcy stay was lifted.
Second, and more importantly, Graham and Martinez repeatedly omit a crucial sentence in the October 26 letter: “If your client is interested in a loan modification with our client, please contact our office immediately to discuss further.” Neither Rrunton, Graham, nor Martinez contacted McCalla Raymer concerning an interest in a loan modification.
Contraiy to Graham and Martinez’ claim, the October 26 letter clearly requested that Graham and Martinez contact McCalla Raymer to communicate their interest in a loan modification. As evidence of McCalla Raymer’s intent, it sent another letter on November 14, 2005, which stated, “Please note that if we do not hear from your office regarding this matter by 11/21/05, we will be forced to close our file.” Thus, Graham and Martinez presented no evidence McCalla Raymer intended to deceive them.
Graham and Martinez claim that the consent form allowing McCalla Raymer to communicate directly with them mandated that McCalla Raymer initiate contact with Graham and Martinez about the preapproved loan. However, the consent form merely allowed McCalla Raymer to contact Graham and Martinez directly, it did not require direct contact, nor did it prohibit sending correspondence through Rrunton, their attorney.
In their response to the motions for summary judgment, Graham and Martinez claimed their damage was the loss of their home, which, in their opinion, is worth $150,000. Although Graham and Martinez claim on appeal they “voluntarily gave up valuable protections that were in place by virtue of the existence [of] the automatic stay order,” the record on appeal indicates MERS did not file its second foreclosure action until January 18, 2006, more than 1 week after the bankruptcy court involuntarily dismissed Graham and Martinez’ second bankruptcy case for failure to resume the plan payments.
Even if McCalla Raymer’s statements were untrue and made with the intent to deceive, Graham and Martinez did not suffer any damage from consenting to lift the automatic bankruptcy stay. See Vondracek v. Mid-State Co-op, Inc., 32 Kan. App. 2d 98, 102-03, 79 P.3d 197 (2003).
Therefore, after review of the record on appeal in the light most favorable to Graham and Martinez, there is no genuine issue as to any material fact. Graham and Martinez clearly failed to provide evidence to support the essential elements of their fraud claim. Thus, summary judgment was appropriate. See Saliba, 264 Kan. at 131.
Kansas Consumer Protection Act Claims
Graham and Martinez claim that under the KCPA, whether a person has engaged in a deceptive act or practice is a question of fact and not appropriate for summary judgment. However, summary judgment is appropriate on claims under K.S.A. 50-626 and K.S.A. 50-627 if there is no evidence of deceptive or unconscionable conduct. Bomhoff, 279 Kan. 415, Syl. ¶ 4. The same standard of review for summary judgment applies to this issue as noted above. Miller, 288 Kan. 27, Syl. ¶ 1.
In their appellate brief, Graham and Martinez specifically allege MERS and Countrywide violated K.S.A. 50-626(b)(2) and (b)(3) of the KCPA. Under K.S.A. 50-626(b)(2) and (b)(3), a supplier shall not engage in deceptive acts or practices, including the willful use of “exaggeration, falsehood, innuendo or ambiguity as to a material fact” in any written or oral representation, the willful failure to state a material fact, or the willful concealment of a material fact. This conduct may constitute a deceptive act regardless of whether it actually misled the consumer. K.S.A. 50-626(b).
Again, Graham and Martinez point to McCalla Raymer’s statements in its October 26, 2005, letter conditionally preapproving them for a loan modification. However, as noted above, Graham and Martinez failed to present any evidence that McCalla Raymer intended to deceive them, willfully failed to state a material fact, or willfully concealed a material fact. Intent is required for a violation of K.S.A. 50-626(b)(2) and (b)(3). See Crandall v. Grbic, 36 Kan. App. 2d 179, 196, 138 P.3d 365 (2006).
Here, the district court stated: “The best that can be shown is a miscommunication, not a willful falsehood or ambiguity ... or a willful failure to state a material fact or the willful concealment of one.” Thus, summary judgment is appropriate.
Graham and Martinez also allege MERS and Countrywide violated the KCPA by engaging in unconscionable acts or practices under K.S.A. 50-627(b)(l), (3), (5), and (6). Whether acts are unconscionable under the KCPA is a legal question for the district court, for which appellate review is unlimited. State ex rel. Kline v. Berry, 35 Kan. App. 2d 896, 907, 137 P.3d 500 (2006).
While the KCPA has no definition of “unconscionable,” the statute provides nonexclusive examples of unconscionable acts. See K.S.A. 50-627. When determining whether certain conduct was unconscionable, the district court is to consider whether a supplier knew or had reason to know any of the following circumstances:
“(1) The supplier took advantage of the inability of the consumer reasonably to protect the consumer’s interests because of the consumer’s physical infirmity, ignorance, illiteracy, inability to understand the language of an agreement or similar factor;
“(3) the consumer was unable to receive a material benefit from the subject of the transaction;
“(5) the transaction the supplier induced the consumer to enter into was excessively onesided in favor of the supplier; [and]
“(6) the supplier made a misleading statement of opinion on which the consumer was likely to rely to the consumer’s detriment.” K.S.A. 50-627(b)(l), (3), (5)-(6).
Notably, in their amended counterclaim, their response to the motions for summary judgment, and their appellate brief, Graham and Martinez fail to present any facts to support an allegation that MERS and Countrywide engaged in any unconscionable acts. Instead, Graham and Martinez broadly suggest that “[i]f the District Court had considered the facts shown by the discovery record,” it would have denied MERS’s and Countrywide’s motions for summary judgment. Issues not briefed are deemed abandoned. See Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008).
Graham and Martinez simply failed to present any evidence that MERS and Countrywide, through McCalla Raymer’s October 26 letter, engaged in any unconscionable acts as described in K.S.A. 50-627(b). Accordingly, the district court did not err in granting MERS’s and Countrywide’s motions for summary judgment concerning Graham and Martinez’ fraud and KCPA claims.
Next, Graham and Martinez claim the equitable doctrine of clean hands bars MERS’s motion for summary judgment concerning its foreclosure action. Because we find that the district court did not have jurisdiction to grant summary judgment on MERS’s foreclosure action, the question of whether they acted with “clean hands” is not an issue.
The district court’s order granting partial summary judgment in favor of MERS’s foreclosure action is reversed, and the foreclosure action is dismissed. The order granting summary judgment in favor of MERS and Countrywide on Graham and Martinez’ fraud and KCPA claims is affirmed.
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The opinion of the court was delivered by
Moritz, J.:
We granted Bryan Sprung’s petition for review of the Court of Appeals’ decision affirming his jury convictions of one count of aggravated criminal sodomy, two counts of aggravated indecent liberties with a child, and one count of criminal threat. Sprung seeks reversal of one of his aggravated indecent liberties convictions, arguing the convictions are multiplicitous. Further, Sprung claims the prosecutor committed misconduct during closing argument by commenting on the credibility of the victim as well as an expert witness and investigator hired by Sprung. Sprung also contends the district court abused its discretion in denying his motion to compel a psychological examination of the victim. Finally, Sprung argues the district court violated his constitutional rights by imposing an aggravated presumptive sentence for his conviction of aggravated criminal sodomy without a jury determination of the aggravating factors.
We affirm tire Court of Appeals’ decision in part, and we reverse in part. We conclude Sprung’s aggravated indecent liberties convictions are multiplicitous because (1) the charges arose from the same act or transaction; and (2) the plain language of the charging statute, K.S.A. 21-3504(a)(3)(A), provides only one unit of prosecution rather than two. Accordingly, we reverse the Court of Appeals’ decision affirming both convictions, we reverse one conviction, and we vacate Sprung’s sentence, in part. Regarding Sprung’s claim of prosecutorial misconduct, we agree with the Court of Appeals’ conclusion that the State has demonstrated beyond a reasonable doubt that the prosecutor’s statements regarding the credibility of the victim, Sprung’s expert witness, and Sprung’s investigator — even if improper — did not affect the outcome of the trial in light of the entire record. We also find that the district court did not abuse its discretion in denying Sprung’s motion to compel a psychological examination of the victim. Finally, we affirm the Court of Appeals’ dismissal of Sprung’s sentencing claim for lack of jurisdiction.
Factual and Procedural Background
Sprung’s convictions arose from offenses he committed against K.M., a 10-year-old girl. In early 2006, K.M. attended a weekly youth group, “Friends Club,” at the church where Sprung was pastor, and she occasionally attended Sunday services at the church. Sprung sometimes gave K.M. rides to and from church. If no one answered the front door at K.M.’s home on Sunday mornings when he came to pick her up, Sprung sometimes knocked on K.M.’s bedroom window. Once or twice, Sprung asked for a key to the house so he would not wake the rest of the family on Sunday mornings.
In April 2006, K.M. disclosed to her mother several incidents of abuse that she said had occurred in the previous several weeks in Sprung’s office after Friends Club. During the first incident, Sprung motioned for K.M. to sit on his lap and rubbed K.M.’s crotch area on the outside of her clothing. A few weeks later, while K.M. was waiting for a ride home, Sprung told K.M. to sit on his lap. Sprung pulled down K.M.’s pants and his own pants and he digitally penetrated K.M.’s vagina, causing pain to K.M. Several weeks later as K.M. waited for a ride home from Friends Club, Sprung called her into his office. Sprung shut the door, sat down, and motioned for K.M. to sit on his lap. After K.M. did so, Sprung pulled down her pants, then pulled down his own pants, and digitally penetrated K.M.’s vagina and anus.
Several weeks later, as K.M. waited for a ride home, Sprung again called her into his office and shut the door. Sprung motioned for K.M. to sit on his lap and after she did so, he pulled down K.M.’s pants and then pulled down his own pants. Sprung digitally penetrated K.M.’s vagina and anus. He then pushed K.M. off his lap, placed her hand on his erect penis, and moved her hand up and down. Sprung also asked K.M. to put his penis in her mouth but K.M. refused.
After this last incident, K.M. reported the abuse to her mother. K.M. decided to report the abuse because she was afraid that Sprung would “go all the way,” which K.M. explained meant Sprung would “[p]ut his body part inside of [hers].”
Fran Garrison, the former director of Friends Club, offered testimony corroborating K.M.’s testimony. Garrison testified that one evening after Friends Club in January 2006, she found the door to Sprung’s office closed. Garrison knocked on the door but did not wait for an answer before walking into Sprung’s office. There, she observed Sprung sitting at a chair at his desk with K.M. on his lap. According to Garrison, Sprung sat “straight as a board, leaning back with his head back and legs straight out forward,” while K.M. sat on Sprung’s lap facing away from Sprung. Garrison told K.M. to get off Sprung’s lap and asked Sprung what he was doing, to which he responded, “ ‘Giving hugs.’ ” Garrison noticed Sprung using his hands to adjust himself in his genital area, where Garrison could see a bulge about the size of her fist.
Garrison further testified that as she locked up tire church one evening after Friends Club in February 2006, she again found K.M. and Sprung alone in Sprung’s office. Just before she entered Sprung’s office, Garrison heard the door being unlocked. K.M. was playing a game on Sprung’s computer but was not sitting on his lap, and Sprung had his arm around K.M.’s chair. Garrison offered to give K.M. a ride home, but Sprung told Garrison he would take K.M. home.
Susan Reinert, a sexual assault nurse examiner, testified at trial that she examined K.M. after K.M. reported the abuse. During the exam, K.M. told Reinert that Sprung touched K.M.’s vaginal area on more than one occasion and that Sprung had forced K.M. to touch his penis. K.M. also reported to Reinert that she found blood on her panties and toilet paper after some of the incidents. Reinert found no signs of scarring or injuries in K.M.’s vaginal or anal areas.
K.M.’s mother (Mother) testified that in January 2006, as K.M. used the bathroom, she told Mother she had started her period. Mother saw light blood on the toilet paper used by K.M., but did not believe K.M. had started her period. Mother asked K.M. if someone had touched her and K.M. said no. A few days later, as Mother did laundry, she found light blood in K.M.’s panties.
Mother also testified that Friends Club usually ended at about 8 p.m. and, on some occasions, Sprung did not bring K.M. home until 10 p.m.
Sprung testified at trial that he never inappropriately touched K.M. He maintained that he had a “close relationship” with K.M.’s family and that he gave K.M. several rides to Friends Club in the first few months of .2006. However, Sprung recalled taking K.M. home after Friends Club only once during that time period.
Sprung admitted that he sometimes knocked on K.M.’s bedroom window to get her attention when he picked her up at her home for Sunday services and that this practice was unique to K.M.’s family. Sprung also admitted that he asked for, but never received, a key to K.M.’s home. Sprung explained that he asked for a key because K.M.’s parents, who had requested he pick up their children for Sunday services, complained that his knocking woke them up on Sunday mornings.-
Sprung recalled Garrison walking into his office in January 2006 as K.M. sat on his lap. But according to Sprung, he was not acting inappropriately towards K.M; instead he was just “giving [K.M.] a hug goodbye.” Sprung testified that Garrison told him it was inappropriate for him to have children on his lap, but Sprung responded that by welcoming children to sit on his lap, he was simply following Jesus’ example.
The jury convicted Sprung as charged of one count of aggravated criminal sodomy, two counts of aggravated indecent liberties with a child, and one count of criminal threat. The sentencing court imposed a controlling prison sentence of 241 months with 36 months’ postrelease supervision.
On direct appeal, a panel of the Court of Appeals affirmed Sprung’s convictions and dismissed his sentencing challenge for lack of jurisdiction. State v. Sprung, No. 99,704, 2009 WL 1591397 (Kan. App. 2009) (unpublished opinion). We granted Sprung’s petition for review.
Analysis
Sprung’s aggravated indecent liberties convictions are multiplicitous.
In the Court of Appeals, Sprung sought reversal of one of his two convictions for aggravated indecent liberties with a child, claiming the convictions were multiplicitous. He argued the charges arose from the same conduct and, by statutoiy definition, his conduct constituted only one violation of K.S.A. 21-3504(a)(3)(A). Sprung also raised a juiy unanimity issue. The Court of Appeals panel rejected both the multiplicity and jury unanimity arguments.
On review, Sprung renews his multiplicity argument but does not seek review of the panel’s unanimity ruling; therefore, we will not address that issue on review.
Multiplicity is the charging of a single offense in several counts of a complaint or information. Multiplicity creates the potential for multiple punishments for a single offense in violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section 10 of the Kansas Constitution Bill of Rights. State v. Schoonover, 281 Kan. 453, 475, 133 P.3d 48 (2006).
Whether convictions are multiplicitous is a question of law subject to de novo review. State v. Sellers, 292 Kan. 117, 127, 253 P.3d 20 (2011).
In resolving a multiplicity claim, we first determine whether the convictions arose from the same conduct. If so, we then determine whether, by statutory definition, that conduct constitutes one offense or two. Schoonover, 281 Kan. at 496. If the conduct consti tutes only one offense, then both components are met and there is a double jeopardy violation. 281 Kan. at 496.
1. Sprung’s convictions arose from the same conduct.
The first component of the multiplicity inquiry requires us to determine whether the conduct is discrete or unitary. 281 Kan. at 496. If the conduct is discrete, the convictions do not arise from tire same offense and there is no double jeopardy violation. But if the charges arose from the same act or transaction, then the conduct is considered unitary and we move to die second component of the inquiiy. 281 Kan. at 496.
In determining whether Sprung’s convictions arose from the same conduct, we consider several factors, including whether: (1) the acts occurred at or near the same time, (2) the acts occurred at the same location, (3) a causal relationship existed between the acts, in particular whether an intervening event separated tire acts, and (4) a fresh impulse motivated some of the conduct. See 281 Kan. at 497. We note that these factors are the same factors we utilize in determining whether there are multiple acts requiring a jury unanimity instruction. 281 Kan. at 497.
The parties agree that the aggravated indecent liberties charges, Counts II and III, were based on the final incident described by K.M. The trial court specifically instructed the jury that Count II related to Sprung’s touching of K.M. and Count III related to K.M.’s touching of Sprung’s penis. The jury verdict form reflected that same distinction.
According to K.M.’s trial testimony regarding that incident, Sprung digitally penetrated her vagina and anus, pushed her off his lap, and placed her hand on his penis. All of these events occurred on the same night in Sprung’s office and at or near the same time. Further, there is no evidence of an intervening event or suggestion that a fresh impulse motivated Sprung’s act of placing K.M.’s hand on his penis. Instead, Sprung’s acts of touching K.M. and then placing her hand on his penis were unitary rather than factually separate and distinct. Compare Sellers, 292 Kan. at 130-31 (concluding defendant’s conduct was not unitary when defendant touched victim, left the room for 30 to 90 seconds to check on a barking dog, returned to the room, and touched the victim a second time, with State v. Colston, 290 Kan. 952, 964, 235 P.3d 1234 (2010) (determining that defendant’s digital penetration and penile penetration of the victim that occurred at or near the same time, in the same location, and with no suggestion of an intervening event were not “factually separate and distinct” acts).
Because we have concluded Sprung’s two aggravated indecent liberties convictions arose from the same act or transaction, we now move to the second component of Schoonover s multiplicity analysis.
2. By statutory definition, Sprung’s conduct comprised one violation of K.S. A. 21-3504(a)(3)(A).
Under the second Schoonover component, we must determine whether, by statutory definition, Sprung’s conduct constitutes one offense or two. See 281 Kan. at 497. Because Sprung’s convictions are based on multiple violations of the same statute, the unit-of-prosecution test applies. See 281 Kan. at 497. This test requires that we interpret the statutory definition of the crime to determine the allowable unit of prosecution intended by the legislature. 281 Kan. at 497. Only one conviction can result from each allowable unit of prosecution. 281 Kan. at 497-98.
In Schoonover, 281 Kan. at 472, we pointed out that the determination of the appropriate unit of prosecution is not necessarily dependent upon whether there is a single physical action or a single victim. Instead, the key is the scope of the course of conduct proscribed by the statute.
The statute at issue here, K.S.A. 21-3504(a), prohibits:
“(3) engaging in any of the following acts with a child who is under 14 years of age:
(A) 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 tire offender, or both; or
(B) soliciting the child to engage in any lewd fondling or touching of the person of another with the intent to arouse or satisfy the sexual desires of the child, the offender or another.”
In rejecting Sprung’s multiplicity argument, the Court of Appeals reasoned that K.S.A. 21-3504(a)(3)(A) proscribes lewd acts “with respect to the child or the offender, therefore either conduct constitutes a unit of prosecution.” Sprung, 2009 WL 1591397, at *5. The panel further noted that the jury instructions and the verdict form clearly distinguished the units of prosecution for the jury by specifying that Count II related to Sprung’s act of touching K.M. and Count III related to Sprung’s act of submitting to K.M.’s touching of Sprung’s penis. 2009 WL 1591397, at *5. The panel’s reasoning mirrored that of another panel in State v. Cramer, No. 96,166, 2008 WL 4416022, at *4 (Kan. App. 2008) (unpublished opinion) (noting that several of the incidents underlying the charges for aggravated indecent liberties involved multiple touchings, but concluding that the language of K.S.A. 21-3504[a][3][A] “clearly states that either touching the child or the offender is enough to constitute an offense. The unit of prosecution, thus, is one such touching of either party.”).
In arguing the panel’s rationale is faulty, Sprung points out that the legislature in K.S.A. 21-3504(a)(3) chose to prohibit “engaging in any of the following acts.” The statute then sets out two separate subsections in which those “acts” are defined. The first subsection, which is at issue here, defines the criminal “act” as “[a]ny lewd fondling or touching of the person of either the child or the offender.” (Emphasis added.) K.S.A. 21-3504(a)(3)(A). The second subsection makes the criminal “act” the soliciting of the child to fondle or touch another person. K.S.A. 21-3504(a)(3)(B). That subsection is not at issue here.
Sprung argues that if the legislature intended for each separate instance of touching or fondling to constitute a violation of K.S.A. 21-3504(a)(3), it could have defined aggravated indecent liberties with a child as “any act of lewd fondling or touching.” Instead, the legislature chose to define the criminal “act” as “any lewd fondling or touching,” suggesting that any number of touchings or fondlings could constitute only one violation of K.S.A. 21-3504.
The State maintains that K.S.A. 21-3504(a)(3) “provides different ways in which the crime can occur” and maintains that Sprung committed two distinctive acts against K.M. which may be prosecuted in different counts. The State also notes that the jury instructions listed “veiy different and distinctive elements.”
But in considering the unit of prosecution test, the key is the nature of the conduct proscribed, not the number of acts or the number of victims. Schoonover, 281 Kan. at 472. As Sprung persuasively argues, the nature of the conduct proscribed by K.S.A. 21-3504(a)(3) is engaging in “any of the following acts.” Subsection (A) then defines one of those “acts” as “[a]ny 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.” K.S.A. 21-3504(a)(3)(A).
We are persuaded by Sprung’s argument that K.S.A. 21-3504(a)(3)(A) creates only a single unit of prosecution. Had the legislature intended to create one unit of prosecution when the offender touches the child and a separate unit of prosecution when the child touches the offender, the legislature could have separated subsection (A) into two subsections, i.e., one subsection proscribing any lewd fondling or touching of a child by the offender and one subsection proscribing any lewd fondling or touching of the offender by the child. Instead, tire legislature defined aggravated indecent liberties as “engaging in any of the following acts,” and tiren provided only two defining subsections, (A) and (B). See Schoonover, 281 Kan. at 472; see also State v. Thompson, 287 Kan. 238, 246-47, 200 P.3d 22 (2009) (finding that had legislature intended to make possession of each substance listed in K.S.A. 65-7006[a] a separate offense, legislature could have explicitly stated as much in the statute).
Further, like the statute at issue in Thompson, K.S.A. 21-3504(a)(3)(A) possesses a unifying intent — “to arouse or to satisfy the sexual desires” — with the object of that intent being the child, the offender, or both. See 287 Kan. at 248-52 (discussing the unitary intent to manufacture methamphetamine specified in K.S.A. 65-7006[a]). The legislature’s inclusion of a unitary intent in subsection (A) lends additional support to our conclusion that the legislature intended to create a single unit of prosecution for that subsection.
Moreover, even if we were to find the legislature’s intent to be unclear as to the unit of prosecution defined by K.S.A. 21- 3504(a)(3)(A), the rule of lenity would mandate that we construe the statute in favor of the defendant. Under that rule, statutory silence and ambiguity regarding the unit of prosecution is construed in favor of the defendant. See Thompson, 287 Kan. at 248-49.
Here, the jury convicted Sprung of the unitary conduct of Sprung’s lewd fondling or touching of K.M. and K.M.’s fondling or touching of Sprung. Further, the plain language of the applicable subsection of the charging statute for both counts, K.S.A. 21-3504(a)(3)(A), creates a single unit of prosecution. We conclude Sprung’s convictions for aggravated indecent liberties with a child are mulüphcitous, and we reverse the Court of Appeals’ ruling finding otherwise. Accordingly, we affirm one of those convictions, reverse the second conviction, and vacate the sentence for the second conviction.
The prosecutors statements, if improper, did not affect the outcome of the trial in light of the entire record.
Next, Sprung claims the prosecutor committed reversible misconduct when he commented in closing argument on the credibility of K.M. as well as an expert witness and an investigator hired by Sprung. Although the Court of Appeals panel found the prosecutor’s comments improper, it affirmed Sprung’s convictions because it concluded the comments were not so prejudicial as to deny the defendant a fair trial. Sprung, 2009 WL 1591397, at *7-8.
During closing argument, the prosecutor commented on K.M.’s credibility in the following context:
“You know, as you go by, it’s like falling off a ladder. You fall off the ladder two or three years ago, you may not remember, as you think back on it, why I was on a ladder in the first place, or what I was wearing, what time of day it was, may not remember all that, but you’re going to remember when you started to slip, and you’re going to remember how you felt when you’re falling, and you’re going to remember that fall when you hit. Those things, you’re not going to forget. That’s etched in your memory. And what [K.M.] told you is etched in her memory. And she’ll go on past today, but they — will she ever forget that? She will never forget that, so what she told you, that is the most credible witness you’re going to have.” (Emphasis added.)
Immediately after this comment, the prosecutor discussed the testimony of Sprung’s expert witness, Katliie Nichols, Ph.D., and a private investigator hired by Sprung, Daniel Jablonski. In arguing that “trials are searches for truth,” the prosecutor commented that Nichols had an agenda and wasn’t there to tell the truth but “to get [Sprung] off.” The prosecutor also stated Nichols “came up with the purpose of getting paid, she’s paid, and try to get [Sprung] off, and what does she say?”
Next, the prosecutor discussed Jablonski’s interview of Sprung, essentially characterizing it as a sham. The prosecutor reminded the jury that Jablonski testified he generally recorded “important interviews,” hut failed to record his interview with Sprung. The prosecutor then commented that Jablonski was “following instructions from defense counsel” and that in doing so, his goal was “not to get to the truth, [but to] tiy to get [Sprung] off.” The prosecutor also reminded jurors that Sprung hired Jablonski, and, “You could just about disregard anything [Jablonski] said.”
Sprung argues the prosecutor improperly commented on the credibility of the witnesses when he commented: (1) K.M. was the “most credible witness”; (2) Nichols and Jablonski were paid to he on Sprung’s behalf; (3) the juiy could “just about” disregard anything Jablonski said. The State argues the prosecutor’s comments on K.M.’s credibility, when placed in context, were not improper. However, the State concedes the impropriety of the prosecutor’s comments regarding the expert witness and investigator.
We apply a two-step analysis to allegations of prosecutorial misconduct involving improper comments to the jury. First, we decide whether tire comments were outside the wide latitude allowed the prosecutor in discussing the evidence. If so, we must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the juiy against the defendant and denied the defendant a fair trial. State v. McCaslin, 291 Kan. 697, 715, 245 P.3d 1030 (2011).
This second step requires consideration of three factors: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor’s part; and (3) whether the evidence was of such a direct and overwhelming na ture that the misconduct would likely have had little weight in the minds of the jurors. 291 Kan. at 715. The third factor of the second step of the prosecutorial misconduct test may not override the first two factors unless the State proves “ ‘beyond a reasonable doubt that the error complained of did not affect the outcome of the trial in light of the entire record/ ” State v. Naputi, 293 Kan. 55, 58, 260 P.3d 86 (2011) (quoting State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 [2011]).
Given the State’s concession as to the impropriety of the prosecutor’s comments regarding Nichols’ and Jablonski’s credibility, we will assume without deciding that the prosecutor also improperly commented regarding K.M.’s credibility. But because we find the improper comments did not constitute plain error, Sprung’s claim ultimately fails.
Sprung suggests the prosecutor’s comments demonstrated ill will and bad faith and that the comments were crucial because witness credibility was the key issue in the case and the evidence against him was not overwhelming.
But the record simply lacks circumstances supporting Sprung’s suggestion that the prosecutor’s comments were so egregious as to demonstrate ill will or bad faith. Further, we note that die prosecutor recognized in closing argument that credibility was a key issue in the case and reminded the jury that it would make the final decision regarding credibility.
And the testimony against Sprung was substantial. Significantly, K.M.’s version of events remained largely consistent from her initial disclosures through trial. And while no physical evidence corroborated K.M.’s allegations of anal and vaginal penetration, K.M. and K.M.’s mother both testified that K.M. experienced some light bleeding in January 2006. K.M.’s mother also testified that Sprung often brought K.M. home several hours after Friends Club was over.
Moreover, other evidence strongly corroborated K.M.’s version of events. Specifically, Garrison testified that in January 2006 she walked in on Sprung and K.M. alone in Sprung’s office, where K.M. was seated on Sprung’s lap facing away from Sprung and Sprung was sitting “straight as a board, leaning back with his head back and legs straight out forward.” After Garrison ordered K.M. off Sprung’s lap, Sprung stood up and adjusted his genital area, revealing a fist-sized bulge in his pants. Sprung avoided talking to Garrison and walked into the bathroom.
Although Sprung denied K.M.’s allegations, he admitted Garrison walked into his office and saw K.M. seated on his lap. But Sprung claimed Garrison merely observed him “giving hugs” to K.M. and that his practice of “welcoming” children to sit on his lap was consistent with Jesus’ example. Further, Sprung conceded that he sometimes knocked on K.M.’s bedroom window when he came to pick her up, that he asked for a key to the house, and that this behavior was unique to K.M. and her family.
Under tírese circumstances, we are convinced that the State has demonstrated beyond a reasonable doubt that the prosecutor’s statements regarding the credibility of K.M., Nichols, and Jablon-sld — even if improper — did not affect the outcome of the trial in light of the entire record.
The district court did not abuse its discretion in denying Sprung’s motion to compel a psychological examination of KM.
Next, Sprung argues the district court abused its discretion in denying his motion to compel a psychological examination of K.M. because there was “ample evidence” of K.M.’s lack of veracity and “little or no” corroborating evidence to support K.M.’s allegations. The State argues the district court appropriately denied the motion based on Sprung’s failure to present compelling reasons for the examination.
Because a district court judge has discretion to order a psychological examination of the complaining witness in a sex crime case, we review the district court’s denial of such a motion for an abuse of discretion. State v. Berriozabal, 291 Kan. 568, 580, 243 P.3d 352 (2010); State v. Price, 275 Kan. 78, 83, 61 P.3d 676 (2003); State v. Gregg, 226 Kan. 481, 489, 602 P.2d 85 (1979); see Ward, 292 Kan. at 550 (stating abuse of discretion standard of review).
A defendant is entitled to a psychological examination of a complaining witness if the defendant can demonstrate compelling circumstances that would justify such an examination. See Berrioza- bal, 291 Kan. at 581; Gregg, 226 Kan. at 489. In Berriozabal, we stated:
“A determination of whether such compelling circumstances exist requires examination of the totality of the circumstances in the case, with the following nonexclusive list of factors to be considered:
“(1) whether there was corroborating evidence of the complaining witness’ version of the facts,
“(2) whether the complaining witness demonstrates mental instability,
“(3) whether the complaining witness demonstrates a lack of veracity,
“(4) whether similar charges by the complaining witness against others are proven to be false,
“(5) whether the defendant’s motion for a psychological evaluation of the complaining witness appears to be a fishing expedition, and
"(6) whether the complaining witness provides an unusual response when questioned about his or her understanding of what it means to tell the truth.” 291 Kan. at 581.
Here, in support of his motion to compel a psychological examination of K.M., Sprung cited: (1) tire lack of physical evidence to support K.M/s allegations, (2) evidence that K.M. had a reputation for lying and had exhibited behavioral problems at school, and (3) evidence that K.M. made inconsistent statements about blood found in her underwear.
At the motion hearing, the district court heard testimony from two of K.M/s teachers, the elementary school secretary, and one of K.M/s friends. Karen Reedy, K.M/s fourth- and fifth-grade teacher, testified that K.M. had anger problems, would often lie about her homework, would lie “to keep herself out of trouble,” and sometimes used foul language in the classroom or on the playground. Reedy sent K.M/s parents a letter regarding K.M/s anger problems, but testified she did not believe that K.M/s anger problems required professional intervention. Jolana Perkins, the school secretary, testified K.M. was in the principal’s office for behavioral problems on 5 to 10 occasions during the 2005-2006 school year.
Janet Fuller, a Title I teacher, who regularly attended the church where Sprung was pastor and who admitted she and Sprung were very good friends, testified K.M. was the most ill-behaved and dishonest student in the school. Although Fuller never worked with K.M. specifically, she offered several instances of conduct to sup port her characterization of K.M, including that K.M.: (1) lied about a damaged libraiy book; (2) tried to hide food in a milk carton at lunch; and (3) became angry at lunch when other lads would not pass the ketchup. Fuller also said K.M. frequently used foul language. Fuller opined that K.M. needed psychiatric help for her anger and lying problems. However, Fuller admitted she never referred K.M. to the school psychologist, but she stated that several teachers had informally discussed K.M.’s behavior.
Finally, K.M.’s friend and classmate, C.E., testified she recalled talking with K.M. regarding “blood being in some panties.” But C.E. then testified that sometime during the girls’ fourth-grade school year, K.M. “said that [K.M.’s] mom found bloody — a bloody sock in the bathroom, and [that the sock belonged to K.M.’s] sister [N.M.].” C.E. was sure the conversation was about a sock and not panties. C.E. denied that K.M. told her the blood was from K.M. rather than N.M. C.E. testified K.M. told her their conversation about the bloody sock was a “secret.”
Ultimately, the district court found no compelling reasons to justify an examination and denied the motion. Specifically, the court reasoned that the use of vulgar language generally is not considered evidence of mental instability, that K.M.’s anger and lying problems generally related to homework and incidents on the playground, and that there was no evidence K.M. lied about sexual acts or about her contact with Sprung.
We have generally upheld the denial of motions to compel psychological examinations of victims under similar circumstances. See, e.g., Berriozabal, 291 Kan. at 582 (finding evidence of unstable home environment insufficient to support allegation of mental instability; one possible incident of lying about defendant’s former stepdaughter’s virginity insufficient to support lack of veracity); Price, 275 Kan. at 88 (finding no compelling reasons to justify examination when evidence indicated victim made untruthful statement to a friend but statement was unrelated to contact with defendant, victim made no other false allegations of abuse, victim had engaged in prior sexual contact with her stepbrother, and victim referred to herself as a liar in a letter to her mother but later testified she was not lying about her contact with defendant); State v. McIntosh, 274 Kan. 939, 946, 58 P.3d 716 (2002) (finding victim’s bedwetting, diagnosis of attention-deficit disorder, behavioral problems at school, and resentment for absence of biological father insufficient to support mental instability).
Here, defendant presented no evidence that K.M. was mentally unstable. And while there was some evidence K.M. may have made untruthful statements or engaged in dishonest conduct in the past, those statements did not relate to her contact with the defendant or to any matter material to the allegations here. Nor is there any evidence that K.M. made similar charges against others that were later proven to be false. Based on the totality of the circumstances, we conclude the district court did not abuse its discretion when it denied Sprung’s motion to compel a psychological evaluation of K.M.
Sprung s sentencing claim fails for lack of appellate jurisdiction.
Finally, Sprung challenges the constitutionality of the aggravated presumptive sentence on his sodomy conviction, arguing the district court improperly imposed the sentence without requiring the aggravating factors be proven to a juiy beyond a reasonable doubt. Sprung recognizes that State v. Johnson, 286 Kan. 824, Syl. ¶ 5, 190 P.3d 207 (2008), controls this issue, but he nevertheless includes the issue to preserve it for federal review.
Under K.S.A. 21-4721(c)(l), appellate courts lack jurisdiction to review challenges to presumptive sentences. See Johnson, 286 Kan. at 851-52. Therefore, we affirm the Court of Appeals’ dismissal of Sprung’s sentencing challenge.
The judgment of the Court of Appeals is affirmed in part and reversed in part. The judgment of the district court is affirmed in part and reversed in part, and the sentence is vacated in part. | [
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The opinion of the court was delivered by
Luckert, J.:
Alesia Warrior (Warrior) was convicted by a jury of the premeditated first-degree murder of her husband, in violation of K.S.A. 21-3401(a), and conspiracy to commit first-degree murder, in violation of K.S.A. 21-3302 and K.S.A. 21-3401. Warrior received a controlling hard 50 life sentence. In this direct appeal, she argues: (1) statements she made to law enforcement officers while she was hospitalized were the result of a custodial interrogation and should have been suppressed because she had not been read her rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, reh. denied 385 U.S. 890 (1966); (2) the trial court abused its discretion in denying Warrior’s motion for new trial in which she alleged the State failed to disclose exculpatory evidence that pertained to a prior juvenile adjudication of a key prosecution witness; (3) the trial court erred in allowing the State to present hearsay testimony regarding statements made by the victim, Warrior’s husband, indicating his belief that his marriage was in trouble; (4) the trial court erred in giving a deadlocked jury instruction prior to deliberations; (5) Kansas’ hard 50 sentencing scheme under K.S.A. 21-4635 is unconstitutional; and (6) cumulative error requires reversal of Warrior’s convictions and remand for a new trial.
We reject each of these contentions and affirm Warrior’s convictions and sentence.
Facts and Procedural Background
The State’s theory was that Warrior, Darell Rodgers, and Jamar Moore conspired to murder Warrior’s husband, Jeremy Warrior (Jeremy). As evidence of motive, the State presented testimony regarding marital discord between Warrior and Jeremy and established that Warrior and Rodgers were having an extramarital affair. Financial gain was an additional motive; after Jeremy’s death, Warrior received benefit payments in excess of $335,000 from life insurance policies she took out a few months before the murder.
The murder occurred in the predawn hours of April 23, 2005, as Warrior drove Jeremy to work. Typically, Jeremy would drive himself to work, but Warrior drove him that day. The reason for the change of routine, according to Warrior, was that Jeremy’s car needed a new headlight, and she planned to take his car to a Firestone store to have the light replaced. The State cast doubt on this explanation through the testimony of the manager of the Firestone store. The manager told the jury that his store employees had broken the car’s headlight when it had been in for repairs before Jeremy’s death. The store had ordered a part and was planning to replace the headlight at no charge, but the part had not arrived before the day of Jeremy’s murder.
Warrior told the jury she had no part in planning the murder and did not know who committed the crime. According to Warrior between 5 a.m., and 5:30 a.m., the couple got into Warrior’s car, a dark blue Nissan Altima, with Jeremy in the passenger seat and Warrior in the driver’s seat. As they were about to crest a hill, the driver of the vehicle ahead of them, a sport utility vehicle (SUV), applied the brakes. Then, as Warrior and Jeremy drove up slowly, “someone came running towards the car” and fired a gun. Warrior testified she only heard one shot. The next thing she knew, she was in the hospital. As a result of the shooting, Warrior’s spinal cord was damaged, and she was paralyzed from the waist down. Jeremy received multiple gunshot wounds, at least two of which could have caused his death.
Officers were dispatched to the crime scene around 5:34 a.m. Officers came upon the blue Nissan crashed into a ditch in tire neighborhood, not far from the home Warrior shared with Jeremy. Jeremy was still and unresponsive, and Warrior was injured and moaning. Officers found bullet holes in the passenger window. There were no bullet holes in the drivers side door, but a bullet went into the right side of the driver’s headrest near the passenger’s seat and exited through the back of the driver’s headrest. Two bullets entered the passenger’s side of the car and exited out the rear door on the driver’s side. A forensic pathologist testified that the bullets that hit Jeremy entered the right side of his body and that the shooter would have been outside and in front of the passenger’s side window.
Neighbors testified to seeing Warrior’s car and an SUV, which was described as a light-colored vehicle. One neighbor testified the car’s lights were off when he first saw it, but the lights later came on. Another neighbor saw a person with a gun running up to the SUV and getting inside. He was able to describe what the person wore.
Moore, a codefendant in this case, testified pursuant to plea negotiations. Moore was not arrested for Jeremy’s murder until 3 years after Jeremy died, when Moore confessed. Up to that point, when officers questioned him, Moore generally denied any involvement. In his earliest statements to officers during the initial investigation, he relayed various versions of events, including a version in which Rodgers was involved in the attack, but the shooter was a person named “Syan Crawford." Moore even identified Crawford in a photo lineup. Years later, when Moore decided to confess, he explained he was coming forward because Warrior and Rodgers had promised to pay him from the insurance proceeds, but they never did. “[I]t was on my conscience and I got tired of protecting people that never really cared about me,” he explained.
Moore’s testimony provided details regarding the planning of the murder and the shooting. He testified that he had brown Rodgers for 8 or 9 years and first met Warrior in February 2005. In late March or early April 2005, Warrior asked Moore if he wanted to “kill somebody to make a couple thousand dollars.” Neither Rodgers nor Warrior mentioned the identity of the intended victim, and no other details were discussed at that time. But a few weeks later, on the night before Jeremy’s murder, Rodgers explained that Jeremy, Warrior’s husband, was to be the victim. Moore testified that Rodgers and Warrior went over “how it was supposed to be done.” The plan was to kill Jeremy and shoot Warrior in the leg. Rodgers persuaded Moore to drive what Moore described as a “cream-colored” SUV, which previously had been rented by Warrior, to the place where Rodgers would commit the murder.
Moore testified that between 2 a.m. to 3:30 a.m., Warrior drove to her home in her car while Rodgers and Moore followed in the SUV. When they arrived in Warrior’s neighborhood, Moore parked down the block from Warrior’s home to wait until it was time for Jeremy to leave for work.
After waiting about 15 to 20 minutes, Rodgers used his cell phone to call Warrior and to ask her “what was taking so long.” Moore heard Warrior’s reply, in which she said, “I am trying to hurry it up.” Five minutes later, Rodgers got out of the SUV and hid behind some trees in a yard, holding the gun at his right side.
After another 5 or 10 minutes, Moore saw Warrior driving her car up the street, and as she got closer to them, she “hit tire lights,” turning off the headlights. According to Moore, this was a prearranged signal. At that point, Rodgers ran up to Warrior’s car and fired six gunshots into it. Moore immediately drove the SUV up the street a little way, as Rodgers came running and jumped inside.
Much of the other incriminating evidence presented in the trial came from Warrior’s statements to law enforcement officers. After the shooting, officers questioned Warrior on four occasions during her hospitalization. Warrior did not receive Miranda warnings at any of these interviews. Greg Lawson, a detective for the Kansas City, Kansas, Police Department, testified about several statements made by Warrior, and the jury heard audio recordings of the interviews.
The first meeting with Warrior occurred in the intensive care unit at the hospital on April 26, 2005. Warrior explained she was driving Jeremy to work when they came upon a red SUV with its taillights on. She said two Hispanic men jumped out of the SUV— one out of each side of the back seat — and approached her car on opposite sides. Warrior described the men as short in stature and about the same age as her and Jeremy — late 20’s or early 30’s. Warrior did not remember seeing or hearing any gunshots. She denied having an affair or experiencing any major problems in her marriage.
During this first interview, Warrior also indicated she had been at a friend’s apartment the night before the incident, and Rodgers and Moore were there as well. Warrior only casually mentioned Rodgers, claiming he was a close friend of the person who lived at the apartment. Warrior told the officers she left her friend’s around 1 a.m. and called Jeremy to tell him she was on her way home.
After the first interview, Detective Lawson inspected Warrior’s telephone records and discovered numerous calls between Warrior and Rodgers. Of particular interest, on April 23, 2005, there were calls from Rodgers to Warrior just minutes before Jeremy’s murder. Also, the records reflected calls from Warrior to Rodgers that morning at 4:57:00 a.m., 4:57:17 a.m., and 4:57:28 a.m. Between February 1, 2005, and April 23, 2005, there had been 52 calls between Rodgers and Warrior at Warrior’s work telephone number. In addition, during Warrior’s hospital stay after tire shooting, there were three telephone calls from her hospital room to Rodgers’ mother’s telephone.
Officers returned a second time to the hospital on April 30,2005, and questioned Warrior in her hospital room. They told her to tell them if she got tired during the interview and wanted them to leave. Detective Lawson testified that this interview only lasted 30 minutes and was not recorded. They indicated to Warrior that there were “things that we needed to get through in order to find a motive” and cover “all of our bases.” The officers told Warrior that they did not want to embarrass her, but they had information indicating the possibility she was having an affair with Rodgers. She denied having an affair, and the officers left the room at Warrior’s request.
The officers continued their investigation, speaking with other witnesses and gathering more information. In addition to discovering telephone calls between Rodgers and Warrior both before and after the shooting, the officers also learned that Rodgers had visited Warrior in the hospital. According to Detective Lawson, the officers had “strong cause” to believe Rodgers was somehow involved and wanted to hear the truth from Warrior. Thus, on May 3, 2005, the officers returned to the hospital to interview Warrior a third time. Warrior s sister, mother, and aunt were periodically present in the hospital room while officers conducted the interview.
During this third interview, which was recorded, Warrior admitted to the officers she had an affair with Rodgers. She said that she was falling in love with Rodgers and that it caused problems with her husband because she was staying out late at night. Jeremy did not know about the affair, but he had his suspicions. Warrior told the officers that Rodgers got angry when Jeremy called her cell phone; on one occasion, about a month before the shooting, Rodgers got so angry he broke Warrior’s cell phone with his hands. In the month before the shooting, Warrior would routinely pick up Rodgers in the morning at his mother’s apartment and would drive him to her place of employment, where Warrior would get out and leave the car with Rodgers for the day. Rodgers would pick up Warrior at the end of the work day, they would spend some time together, and Warrior would return home alone.
Warrior indicated that on the day before the shooting, she went to pick up Rodgers, but Rodgers had somehow acquired a gold SUV from a friend and wanted to drive her to work in it. After work, Rodgers also picked her up in the SUV. Later, Rodgers dropped Warrior off at her car, and she returned home alone around 7 p.m. Then, Warrior told Jeremy she was going out with friends, and she went to a friend’s apartment. Rodgers and Moore arrived in the gold SUV. Warrior said she left tire apartment after 1 a.m., but before she left, Jeremy had tried to call her several times. This upset Rodgers, who told her not to answer her cell phone. Nevertheless, Warrior talked to Jeremy and told him she was on her way home. Warrior told the officers she had not wanted Jeremy to know about Rodgers because she loved Jeremy and had not wanted to hurt him.
Warrior told the officers that when she got home, she and Jeremy talked for 30 to 40 minutes. In the morning, they showered and had sex before getting into Warrior’s car. When they drove up the street, Warrior saw brake lights ahead on a gold SUV. Then, she saw Rodgers exit the passenger’s side of the SUV and run to the passenger’s side of her car. In this version of events, Warrior indicated she did not see a gun, but she heard one gunshot. After that gunshot, she felt pain and experienced a “floating” sensation.
Warrior told the officers that Rodgers had called her in the hospital to see how she was doing. He had also asked if he could visit Warrior, who said, “Yes.” Warrior’s sister brought Rodgers up to the hospital room. When the sister left the couple alone for a short time, Rodgers apologized for shooting Warrior. Warrior told the officers that Rodgers did not explain why he shot Jeremy, but he told her not to talk to police. When asked about Rodgers’ telephone call to Warrior on the morning of tire shooting, Warrior explained she had not answered his incoming call, but she had immediately called Rodgers back. She said Rodgers called because he wanted to know whether she was coming to see him that day.
As the officers were leaving the hospital room, Warrior asked Detective Lawson to come back in. She then told Lawson she had rented the SUV for Rodgers. According to Warrior, she wanted to tell the officers about the SUV because she did not want them to think she was involved in the attack.
This revelation prompted officers to check car rental records, which confirmed that Warrior rented the gold or champagne SUV, a Ford Explorer, from Hertz at the Kansas City International Airport, on April 21, 2005, and paid for the rental with her credit card. This information led to the fourth interview on May 5, 2005. During this fourth interview, Warrior explained she rented the SUV for Rodgers 2 days before the shooting because he wanted to take his children to Worlds of Fun in Kansas City, Missouri, on April 22, 2005. When asked what she had planned to do when Jeremy saw the credit card bill, Warrior told the officers that she was going to tell him about Rodgers. Warrior then identified Rodgers as the shooter.
After Warrior made this last recorded statement, the officers had her moved to a different hospital room. The next day, Warrior called Detective Lawson and told him that Rodgers had called her at the new location. She was concerned that Rodgers had somehow learned of her room change.
Sometime after this, in 2005, Rodgers was arrested in connection with the attack on Warrior and Jeremy. These charges were dismissed by the State when, just before Rodgers’ preliminary hearing, Warrior recanted her identification of Rodgers as the shooter. Thereafter, officers continued to investigate the case.
On February 2, 2006, Warrior gave a deposition at the district attorney’s office. During the deposition Warrior, for the most part, reverted back to -her first statement to officers and indicated that she could not identify the shooter. Warrior indicated her first statement about the two Hispanic attackers was accurate. Upon clarification, however, she said she had only “seen one” perpetrator. According to Warrior’s deposition, the SUV at the scene was gold or champagne, not red, but she was “not for sure if it was the one I rented.” When asked about her relationship with Rodgers at the time of the shooting, Warrior characterized it as a “friendship.” She admitted that Rodgers had visited her in the hospital, but he simply “[ajpologized for seeing me hurt.” She denied having further contact with Rodgers and denied that he had made any threats to her.
In 2008, upon Moore’s confession, charges were filed against Warrior, Rodgers, and Moore. After Warrior was arrested, officers interviewed her again. She denied that either she or Rodgers was involved in the shooting. Warrior indicated to officers that at the time of her 2008 arrest, she was living with Rodgers. According to Warrior, she had previously identified Rodgers as the shooter because officers had pressured her to do so, and she was trying to help the police. Warrior claimed one Hispanic man had committed the crimes.
Similar to her 2006 deposition, Warrior basically repeated much of her first version of events when she testified at her trial. Warrior explained she did not initially disclose the affair to officers because she did not want that information to come out. She no longer claimed that there was a red SUV involved in the attack; instead, a gold or champagne SUV was involved. When asked whether the SUV at the shooting was the same one she had rented from Hertz, Warrior said, “I believe so, I’m not for sure.” She denied talking to Moore or anybody else about shooting Jeremy and claimed she did not know the identity of the shooter. Warrior also denied that there was any connection between Jeremy’s murder and Warrior’s acquisition of life insurance. She testified that it was Jeremy’s idea to obtain life insurance after a family member had died and the family had to raise money for the burial.
A juiy convicted Warrior of premeditated first-degree murder and conspiracy to commit first-degree murder. The court imposed a hard 50 life sentence for the murder conviction and a concurrent sentence of 160 months’ incarceration for the conspiracy conviction. Warrior now makes a timely appeal. This court’s jurisdiction is under K.S.A. 22-3601(b)(l) (appeal of murder conviction; off-grid crime; life sentence).
Suppression of Hospital Interviews
Warrior’s first argument on appeal is that the trial court erred by admitting into evidence certain statements made by Warrior to law enforcement officers who questioned her while she was a patient in the hospital. Specifically, Warrior contends the third and fourth hospital interviews conducted on May 3, 2005, and May 5, 2005, were custodial interrogations, and her statements should have been suppressed because she was not Mirandized. Warrior acknowledges officers had previously interviewed her at the hospital on April 26, 2005, and April 30, 2005, the first and second interviews, but she does not dispute the admissibility of her statements made during those encounters.
Warrior objected to tire admission of the statements before and during the trial, arguing she was considered to be a “suspect” early in the investigation of the case and that, although officers did not arrest Warrior at the hospital, she “certainly was not able to leave” at the time of the hospital interviews because of her physical condition. Therefore, she argued, the interrogations were custodial.
After considering counsel’s arguments, the testimony of both Warrior and Detective Lawson, and the transcript of Warrior’s indictment proceeding held before a grand jury, the judge, at a pretrial hearing, found that the interviews were not custodial, stating:
“[T]liis brings to mind a quote from a famous detective, Inspector Clouseau, who indicated, ‘I suspect everyone and I suspect no one,’ and I think that was probably tire case here,... is this defendant was never a non-suspect. I guess because she was a spouse and because information that came in early, but she certainly remained possibly only a victim all the way through this investigation, I guess up through her third statement. But the key here is she was never in custody. I think clearly this was not a custodial investigation, even by her own admission. She could have told [Detective Lawson] to leave, in fact, did so and he did leave.”
Custodial Interrogations
The trial court appropriately focused on whether the interviews were custodial interrogations because law enforcement officers are not required to administer Miranda warnings to everyone questioned, only to tiróse who are (1) in custody and (2) subject to interrogation. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, reh. denied 385 U.S. 890 (1966); State v. Warledo, 286 Kan. 927, 935, 190 P.3d 937 (2008). A custodial interrogation is defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way.” Miranda, 384 U.S. at 444. A custodial interrogation is distinguished from an investigatory interrogation, which occurs as a routine part of the fact-finding process before the investigation has reached the accusatory stage. State v. Jacques, 270 Kan. 173, 185-86, 14 P.3d 409 (2000).
Factors to be considered in determining if an interrogation is investigative or custodial include: (1) the time and place of the interrogation; (2) the duration of the interrogation; (3) the number of law enforcement officers present; (4) the conduct of the officers and the person subject to the interrogation; (5) the presence or absence of actual physical restraint or its functional equivalent, such as drawn firearms or a stationed guard; (6) whether tbe person is being questioned as a suspect or a witness; (7) whether the person being questioned was escorted by the officers to die interrogation location or arrived under his or her own power; and (8) the result of the interrogation, for instance, whether the person was allowed to leave, was detained further, or was arrested after the interrogation. State v. Morton, 286 Kan. 632, 640, 186 P.3d 785 (2008), cert. denied 555 U.S. 1126 (2009). “No one factor out weighs another, nor do the factors bear equal weight. Every case must be analyzed on its own particular facts. [Citation omitted.]” State v. Schultz, 289 Kan. 334, 341, 212 P.3d 150 (2009).
An appellate court reviewing a trial court’s determination of whether an interrogation is custodial, makes two discrete inquiries. Under the first inquiiy, the court determines the circumstances surrounding the interrogation, employing a substantial competent evidence standard of review. In determining if there is substantial competent evidence supporting the existence of the circumstances found by the trial court, an appellate court does not reweigh evidence, assess the credibility of tire witnesses, or resolve conflicting evidence. State v. Edwards, 291 Kan. 532, 545, 243 P.3d 683 (2010); State v. Gant, 288 Kan. 76, 80, 201 P.3d 673 (2009). The second inquiry employs a de novo standard of review to determine whether, under the totality of those circumstances, a reasonable person would have felt free to terminate the interrogation and disengage from the encounter. Schultz, 289 Kan. at 340-41; State v. James, 276 Kan. 737, 751, 79 P.3d 169 (2003).
As we apply these principles to the circumstances in this case, nearly all the factors indicate the third and fourth hospital interviews conducted on May 3, 2005, and May 5, 2005, were investigatory, not custodial.
1. Time and Place. The investigations occurred while law enforcement officers were still tracking down information and were prompted by new information disclosed through that investigation. With regard to die location of the questioning, the interviews occurred in Warrior’s hospital room, a neutral location. The neutral atmosphere is further evidenced by the fact that Warrior’s family members were present during the May 3 interview. Generally, other things being equal, a person questioned in familiar, or at least neutral, surroundings does not face the same pressures as one questioned in a police-dominated atmosphere and this factor weighs against a conclusion that an interview was custodial. See 2 LaFave, Criminal Procedure § 6.6(e), pp. 738-39 (3d ed. 2007) (discussing locations of interrogations in determining whether they are custodial). Additionally, “a hospital room does not produce the aura of police authority that a police department interview room does.” People v. Vasquez, 393 Ill. App. 3d 185, 191, 913 N.E.2d 60 (2009).
2. Duration of Interrogation. The interviews were short in duration and dealt with Warrior’s accounting of events and the identification of the shooter. Warrior had been told she could ask the officers to leave; in other words, she was in control of the length of the interviews.
3. The number of law enforcement officers present. There were two officers present in the room. We do not see this number as influencing our analysis.
4. The conduct of the law enforcement officers and the person subject to the interrogation. The officers did not use coercive threats or employ a hostile or accusatory tone. Instead, they used a conversational tone, asked for the truth, and offered protection for Warrior, if needed. Warrior was not arrested at the end of either of these interviews. As for Warrior’s conduct during the interviews, although she had experienced a traumatic event and was prescribed pain medication, there was no evidence she suffered from any mental, intellectual, or emotional problems that would have affected her perception of whether she was free to terminate the questioning.
5. The presence or absence of actual physical restraint or its functional equivalent, such as drawn firearms or a stationed guard. Warrior contends she was in custody because she “was not at the hospital voluntarily and was paralyzed, effectively being medically restrained.” While there is no dispute that Warrior’s injuries prevented her from leaving her hospital room, physical incapacity resulting from forces outside the control of law enforcement does not amount to custody.
Restraint, as contemplated by Miranda, is the interference with a person’s freedom which is imposed by law enforcement officers. Consequently, this court has held that a law enforcement interview of an accident victim at a hospital is not a custodial interrogation unless the victim’s confinement is instigated by law enforcement or controlled for custodial purposes. State v. Louis, 240 Kan. 175, 181, 727 P.2d 483 (1986); State v. Brunner, 211 Kan. 596, Syl. ¶ 3, 507 P.2d 233 (1973), disapproved in part on other grounds by State v. Murry, 271 Kan. 223, 21 P.3d 528 (2001); see State v. Canaan, 265 Kan. 835, 847, 964 P.2d 681 (1998) (defendant was not in custody where he was alone for significant periods of time and was not arrested at hospital; purpose of officers’ presence at hospital was to determine when defendant would be released so they could later question him); see generally, What Constitutes “Custodial Interrogation” at Hospital by Police Officer Within Rule of Miranda v. Arizona Requiring that Suspect Be Informed of His or Her Federal Constitutional Rights Before Custodial InterrogationSuspect Hospital Patient, Annot. 30 A.L.R.6th 103, 120.
There is nothing in the record to indicate that the officers exercised any control over Warrior’s hospitalization before her interviews. After the fourth interview, officers had Warrior moved to another hospital room. Warrior seemed to understand this was for her safety because she contacted Detective Lawson and told him Rodgers had called her at the new location. More significantly, the room change occurred after the final interview. Also, the officers allowed Warrior to leave the hospital once she was discharged.
Warrior argues another factor must be considered. Specifically, she contends the “repeated interviews” effectively put Warrior under police custody. According to Warrior, the “repeated intrusions gave the impression that although [Warrior] could terminate an interrogation, the police would return and tire interrogation would resume.” However, as the State notes, each hospital interview was prompted by new information. Between the first and second interviews, officers obtained Warrior’s telephone records. Then, during the third interview Warrior revealed Rodgers was the shooter and — after calling Detective Lawson back into the room as he was leaving — that she had rented the SUV for Rodgers. Following that revelation, the officers investigated the car rental and called on Warrior for some follow-up information. In light of the fact the ongoing investigation raised new issues to be discussed with Warrior, we do not find the serial nature of the interviews to necessarily mean the interviews were custodial.
Further, it is noteworthy that at die beginning of the fourth hospital interview, the officers asked Warrior how she was feeling, made sure she was up to talking to them, and told her this would be a short visit. The officers had demonstrated that all Warrior had to do was ask to terminate the interview. Warrior asked to terminate the second interview, and the officers did so. This demonstrates that Warrior was aware she could terminate the interviews at any time. At the beginning of the fourth interview, Warrior agreed to speak with the officers and indicated they had been very helpful in this situation. She indicated she wanted to explain she had no role in the shooting. She then volunteered information. At no point were the officers openly accusatory or threatening, and, as we have repeatedly noted, they did not arrest Warrior after these hospital interviews. Compare Effland v. People, 240 P.3d 868, 874-76 (Colo. 2010) (hospitalized defendant was in custody for Miranda purposes, even though he was informed that he was not under arrest and his mobility was limited for medical reasons; officer was posted outside hospital room; officers ignored defendant’s repeated statements that he did not wish to speak with them; officers sat between defendant and the closed door; defendant was emotionally distraught; officers’ questions provided details of the incident and were designed to elicit agreement from defendant); and Louis, 240 Kan. at 183-84 (hospitalized defendant was in custody where defendant was notified that his blood was being drawn for law enforcement purposes while three officers were present, and defendant was arrested immediately upon release from hospital), with United States v. Robertson, 19 F.3d 1318, 1320-21 (10th Cir.), cert. denied 513 U.S. 906 (1994) (defendant was not in custody where federal agent testified the FBI did not intend to take defendant into custody at time of interview, and defendant was free to check himself out of hospital), and United States v. Martin, 781 F.2d 671, 673 (9th Cir. 1985) (defendant, who had been making bombs in his apartment, had been injured in explosion, and had gone to hospital for treatment, was not in custody when officers went to hospital and questioned him, and thus, Miranda warnings were not required), and James, 276 Kan. at 751-52 (defendant was not in custody when officers questioned him in a hospital waiting room and at the police station regarding the deaths of two dependent adults in his care).
We conclude Warrior was neither actually restrained by law enforcement nor under the functional equivalent of custody.
6. Whether the person is being questioned as a suspect or a witness. Warrior also contends she was being questioned as a suspect. Detective Lawson testified that he did not begin to think of Warrior as a suspect until the time of Rodgers’ 2005 preliminary hearing— well after Warrior’s May 3, 2005, and May 5, 2005, interviews— when Warrior recanted her identification of Rodgers as the shooter. The trial judge apparently did not find this testimony entirely credible, as shown by the judge’s finding that Warrior “certainly remained possibly only a victim all the way through this investigation, I guess up through her third statement.” (Emphasis added.)
Also, Warrior points out that in the time period between the second and third hospital interviews, officers talked to Warrior’s sister about information indicating that Rodgers had called the sister’s telephone sometime after the shooting. The officers told Warrior’s sister she needed to be truthful in order to avoid possible obstruction charges. Warrior does not contend she was made aware of the officers’ communications with her sister before her interviews, however. Consequently, we do not consider this as a factor in our analysis.
Nevertheless, in the time period between Warrior’s second and third hospital interviews, the officers did express to Warrior their doubts about her truthfulness regarding the possible affair with Rodgers. They told Warrior that if she was afraid to relay information about Rodgers, they could provide protection from him. In encouraging Warrior to be truthful, the officers further stated that if it was later discovered Rodgers was involved in the shooting, “it would be hard to justify she wasn’t involved.” It was after this interaction with officers that Warrior admitted, during the third interview, that she was having an affair with Rodgers and identified him as the shooter. Warrior indicated she had not previously disclosed this information to officers because she was fearful of Rodgers. But she also called Lawson back into her room to report her rental of the SUV.
Because the officers focused on her potential culpability during this third interview, Warrior argues she was an accused. She cites State v. Hewes, 558 A.2d 696 (Me. 1989), to support her contention that she was in custody at the time of tire May 3, 2005, and May 5, 2005, hospital interviews. Besides the fact that Hewes is not binding precedent, it is not helpful to our analysis. In Hewes, a case involving a charge of manslaughter in the shooting death of a boarding house resident, the Maine Supreme Court concluded that the evidence supported the trial court’s finding that the defendant, who was interrogated at the police station, was in custody, and the defendant’s statements made to officers during two interviews were suppressible in the absence of Miranda warnings. Hewes was driven twice to the police station in a police cruiser, was questioned by officers for 50 minutes and 45 minutes respectively, and was asked for detailed and specific information about the victim’s death. The Hewes court mentioned the fact that the interrogating officer told the defendant he could terminate the second interview and leave at any time “does not compel a finding that Hewes was not in custody.” Hewes, 558 A.2d at 699 n.6. Also, the court focused on the specific and lengthy questioning. These factors are also present in this case, Warrior argues.
However, the facts and circumstances in Hewes are too dissimilar to be of any assistance here. While Hewes was told he could terminate the interview, there was no suggestion he was free to leave, a possibility that would seem unlikely to a reasonable person who had been transported to the police station in a police car. In contrast, the officers did not exercise control over Warrior’s ability to leave the hospital and never gave her any indication she was in their custody. Further, on the one occasion when she asked to terminate the interview, the officers did so.
Nevertheless, this factor gives at least some support to Warrior’s position that she was in custody.
7. Whether the person being questioned was escorted by officers to the interrogation location or arrived under his or her own power. Warrior was taken to the hospital for treatment, not by order of law enforcement.
8. The result of the interrogation, for instance, whether the person was allowed to leave, was detained further, or was arrested after the interrogation. As the State points out, this was an ongoing investigation, where Warrior was seriously injured, and the officers wanted to learn the truth about Warrior’s relationship with Rodgers and what motive Rodgers might have had to kill Jeremy. The officers did not arrest Warrior after any of these hospital interviews.
Conclusion. At most, the only factor favoring Warrior’s argument would be that the officers considered Warrior to be a possible suspect by the time they conducted the May 3, 2005, and May 5, 2005, the third and fourth interviews. But the fact a suspect is the focus of an investigation, standing alone, does not trigger the need for Miranda warnings. State v. Costa, 228 Kan. 308, 312, 613 P.2d 1359 (1980); State v. Bohanan, 220 Kan. 121, 129, 551 P.2d 828 (1976); see Minnesota v. Murphy, 465 U.S. 420, 431, 104 S. Ct. 1136, 79 L. Ed. 2d 409 (1984) (mere fact that investigation has focused on suspect does not trigger need for Miranda warnings in noncustodial settings); Beckwith v. United States, 425 U.S. 341, 347-48, 96 S. Ct. 1612, 48 L. Ed. 2d 1 (1976) (same); 2 LaFave, Criminal Procedure § 6.6(a) (3d ed. 2007) (discussing differences between custody and focus).
The totality of the circumstances in this case shows that the investigation had not reached the custodial or accusatory stage. See Jacques, 270 Kan. 173, Syl. ¶ 7; State v. Gooden, 22 Kan. App. 2d 271, 276, 915 P.2d 169, rev. denied 260 Kan. 998 (1996). Consequently, we conclude that substantial competent evidence supports the trial court’s finding that Warrior was not in custody at the time of the May 3, 2005, and May 5, 2005, hospital interviews. Further, under the totality of the circumstances, a reasonable person would have felt free to terminate the interviews and disengage from these encounters.
Failure to Disclose Exculpatory Evidence
Next, Warrior argues the trial court abused its discretion in denying her motion for new trial on the basis that the State failed to disclose exculpatory evidence which pertained to a juvenile burglary adjudication of Moore, a key prosecution witness. Warrior contends the State violated its disclosure obligations under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and, consequently, Warrior s due process rights under the United States Constitution were violated.
Procedural Posture and Trial Court Findings
Before trial, Warrior filed a discovery request, seeking, in part, the State’s production of the “criminal record[s] of all non-police and non-medical witnesses for the State” and “[a]ll evidence exculpatory to the defendant.” Sometime after the jury reached its verdict, the State informed defense counsel about its discovery of Moore’s 1994 juvenile adjudication for burglary, an adjudication of which the State was previously unaware. One of the arguments in Warrior’s posttrial “Motion for Acquittal or in the Alternative for New Trial” claimed that because the State failed to provide information of this adjudication before or during trial, Warrior was prejudiced because she was not able to use this “conviction involving dishonesty or false statement as a means of impeaching [Moore’s] credibility as a witness.” The exact timing of the State’s discovery of this information is not clear from the record. The State simply asserted in its response to Warrior’s motion for new trial that “[t]he State disclosed this information to Defendant upon receiving a copy of Moore’s Pre-Sentence Report.”
At the hearing on Warrior’s motion for new trial, the prosecutor explained that before trial the State had entered Moore’s name into two national computer databases available to law enforcement, the National Crime Information Center (NCIC) and the Interstate Identification Index (Triple I). (NCIC is a computerized index of criminal justice information. United States v. McKenzie, 779 F. Supp. 2d 1242, 1243 [D.N.M. 2011]. Triple I is a criminal histoiy database. Dempsey v. City of Baldwin, 143 Fed. Appx. 976, 980 n.7 [10th Cir. 2005] [unpublished opinion].) Unfortunately, Moore’s juvenile adjudication, which occurred approximately 14 years earlier, did not show up on the computer search.
The trial judge made the following findings regarding this evidence:
“I think Mr. Moore was a substantial witness here, and he testified at length that he had lied to the police on several occasions. He was very forthcoming about that, as he pretty much had to be. Of course, he was as most people do when they are charged with a crime . . . not going to tell the police that he was involved in this case.... [According to the evidence that the Court heard and this jury heard, he was the least culpable of the three people involved in this by a long shot and he was the logical person for the State to make a deal with. They made that deal. He was cross-examined at length about the deal. I don’t believe that the prior conviction from 14 years back as a juvenile was withheld by the State. I think it was in actual likelihood overlooked by the State, and I don’t believe that it would have had any impact, given tire other instances of him being untruthful. So I don’t believe it is a basis, given the total weight of tire evidence here, to grant a new trial. So tire motion will be denied.”
Standard of Review
K.S.A. 2011 Supp. 22-3501(1) permits a trial court to grant a new trial to tire defendant “if required in the interest of justice.” Appellate courts review a trial court’s ruling on a motion for mistrial for an abuse of discretion. Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, in other words, if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, in other words, if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, in other words, if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). “In some cases, this three-part standard may narrow the broad discretion previously allowed when this court routinely applied only the no-reasonable-person-would-take-the-same-view standard.” Ward, 292 Kan. at 550-51 (citing State v. Ransom, 288 Kan. 697, 715, 207 P.3d 208 [2009]) (mistrial abuse of discretion standard “does not change even if legal error prompted consideration of a mistrial”; applying standard of whether any reasonable person would take the same view).
Brady Violations: General Principles of Law
In Brady, the United States Supreme Court held that prosecutors have a positive duty to disclose evidence favorable to the ac cused when “the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87; see Giglio v. United States, 405 U.S. 150, 153, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); accord State v. Gonzalez, 290 Kan. 747, 766, 234 P.3d 1 (2010); State v. Francis, 282 Kan. 120, 150, 145 P.3d 48 (2006); see also United States v. Bagley, 473 U.S. 667, 678-81, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985) (discussing discovery, after trial, of information favorable to the accused that had been known to the prosecution but unknown to the defense); In re Jordan, 278 Kan. 254, 261, 91 P.3d 1168 (2004) (discussing prosecutor’s duty to disclose negating and mitigating evidence under Kansas Rules of Professional Conduct [KRPC]); KRPC 3.8(d) (2011 Kan. Ct. R. Annot. 578). Further, because law enforcement’s knowledge of evidence is imputed to the State, a Brady violation can occur when the prosecutor withholds material evidence that is not known to the prosecutor but is known to law enforcement. See Francis, 282 Kan. at 150 (citing Kyles v. Whitley, 514 U.S. 419, 438, 115 S. Ct. 1555, 131 L. Ed. 2d 490 [1995]).
Evidence that is favorable to the defendant encompasses both exculpatory and impeachment evidence. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999). For Brady purposes, there is no distinction between these two types of evidence that are “favorable to accused”; thus, impeachment evidence is considered exculpatory. Strickler, 527 U.S. at 281; see Bagley, 473 U.S. at 676.
There are three components or essential elements of a Brady violation claim: (1) “ ‘The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching’ [citation omitted]”; (2) “ ‘that evidence must have been suppressed by the State, either willfully or inadvertently [citation omitted]”; and (3) the evidence must be material so as to establish prejudice. Wilkins v. State, 286 Kan. 971, 989, 190 P.3d 957 (2008); Haddock v. State, 282 Kan. 475, 506, 146 P.3d 187 (2006); see Banks v. Dretke, 540 U.S. 668, 691, 124 S. Ct. 1256, 157 L. Ed. 2d 1166 (2004); see also Strickler, 527 U.S. at 290 (prejudice encompasses the materiality requirement of Brady).
In the present case, the first two Brady elements are not at issue. It is undisputed that the evidence in question was exculpatoiy in the sense that it bore upon the credibility of Moore, a key witness for the prosecution. Further, it is undisputed that the State, for whatever reason, failed to timely produce the evidence of Moore’s juvenile burglary adjudication. Thus, our analysis requires the consideration of only the third element, materiality.
Reasonable Probability Materiality Test
In their appellate briefs, both parties cite to a sliding scale materiality analysis, which this court has endorsed in past cases. See State v. Adams, 280 Kan. 494, 501, 124 P.3d 19 (2005); State v. Aikens, 261 Kan. 346, 381, 932 P.2d 408 (1997). This analysis was derived from the United States Supremé Court’s materiality analysis in United States v. Agurs, 427 U.S. 97, 103-07, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976), which varied depending upon the type of Brady violation, in other words, the level of intent behind the prosecutor’s conduct and the specificity of the defendant’s discovery request. See Adams, 280 Kan. at 501 (“sliding scale” applies as “the level of intent supporting the State’s conduct decreases”).
What the parties fail to recognize is that after Agurs the Supreme Court adopted a more narrow, uniform test for materiality governing all categories of Brady violations: “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.” Bagley, 473 U.S. at 682; accord Cone v. Bell, 556 U.S. 449, 470, 129 S. Ct. 1769, 173 L. Ed. 2d 701 (2009). The Bagley Court emphasized that this reasonable probability test for materiality is “sufficiently flexible to cover the ‘no request,’ ‘general request,’ and ‘specific request’ cases of prosecutorial failure to disclose evidence favorable to the accused” that had previously served as the fines of demarcation for applying the Agurs sliding scale test. Bagley, 473 U.S. at 682. The Bagley Court did not specifically overrule Agurs, but it clearly rejected the use of a sliding scale analysis. Bagley, 473 U.S. at 682; see Stacy, The Search for the Truth in Constitutional Criminal Procedure, 91 Colum. L. Rev. 1369, 1392-93 (1991) (noting that Bagley adopted the narrowest of three potential materiality standards).
Subsequently, the Supreme Court has explained that the reasonable probability test does not require a demonstration that disclosure of the evidence would have resulted in the defendant’s acquittal. Instead, it must be shown that “ ‘die favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’ [Citation omitted.]” Youngblood v. West Virginia, 547 U.S. 867, 870, 126 S. Ct. 2188, 165 L. Ed. 2d 269 (2006).
Despite these rulings of die United States Supreme Court, which control our analysis of a due process issue brought under the United States Constitution, some Kansas cases decided after Bagley have continued to refer to the abandoned Agurs sliding scale materiality test. See, e.g., Adams, 280 Kan. at 501; Aikins, 261 Kan. at 381; State v. Carmichael, 240 Kan. 149, 152, 727 P.2d 918 (1986). These cases applying the sliding scale materiality test have not cited an independent Kansas basis for continuing to use die test and have failed to recognize the Supreme Court’s disapproval of the test. Other cases have appropriately applied the reasonable probability test. Francis, 282 Kan. at 151; Haddock, 282 Kan. at 507; Ludlow v. State, 37 Kan. App. 2d 676, 685, 157 P.3d 631 (2007). To reconcile these conflicting lines of cases, we clarify that die Agurs sliding scale test no longer applies and disapprove those cases utilizing the test.
In our past cases applying the sliding scale test, this court reviewed the trial court’s application of the test under an abuse of discretion standard. E.g., Adams, 280 Kan. at 501; Aikens, 261 Kan. at 381. In contrast, this court typically conducts a de novo review of materiality, at least in other contexts. E.g., State v. Inkelaar, 293 Kan. 414, 424, 264 P.3d 81 (2011) (determining materiality of evidence under K.S.A. 60-455); State v. Berriozabal, 291 Kan. 568, 586, 243 P.3d 352 (2010) (determining materiality of evidence as part of relevancy equation). Our treatment of materiality determinations in these other contexts raises the question of whether an abuse of discretion standard should be applied when reviewing a trial court’s ruling regarding an alleged Brady violation under the reasonable probability test. Consistent with our general treatment of materiality determinations, federal courts uniformly hold that the determination of a Brady violation is a legal question. Consequently, that question is reviewed de novo with deference to any factual findings. E.g., United States v. Turner, 674 F.3d 420, 428 (5th Cir. 2012). Some of these federal courts have explained that a de novo review of materiality does not conflict with the application of the abuse of discretion standard to the question of whether the trial court erred in ruling on a request for new trial. As one federal court explained:
“The district court’s determination as to the existence of a Brady violation is reviewed de novo, United States v. Miller, 161 F.3d 977, 987 (6th Cir. 1998), but the district court’s denial of [the defendant’s] motion for new trial is reviewed under an abuse of discretion standard. United States v. Jones, 399 F.3d 640, 647 (6th Cir. 2005). ‘ “A district court abuses its discretion when it applies an incorrect legal standard, misapplies tire correct legal standard, or relies upon clearly erroneous findings of fact.” ’ [Citation omitted.]” United States v. Holder, 657 F.3d 322, 328 (6th Cir. 2011).
See also, e.g., Turner, 674 F.3d at 428 (“We review the denial of a motion for a new trial for abuse of discretion but consider alleged Brady violations de novo. This de novo review ‘must proceed with deference to the factual findings underlying the district court’s decision.’ ”); United States v. Pelisamen, 641 F.3d 399, 408 (9th Cir. 2011) (“While the standard of review for a trial court’s denial for a motion for a new trial is generally abuse of discretion, review is de novo when the asserted basis for a new trial is a Brady violation.”); United States v. Wilson, 624 F.3d 640, 661 n.24 (4th Cir. 2010) (“[Mjotions for a new trial based on an alleged Brady violation are reviewed for abuse of discretion. It is an abuse of discretion for the district court to commit a legal error — such as improperly determining whether there was a Brady violation — and that underlying legal determination is reviewed de novo.”); United States v. Graham, 484 F.3d 413, 416-17 (6th Cir. 2007), cert. denied 552 U.S. 1280 (2008) (The appellate court “reviews denial of a motion for a new trial based on Brady violations under an abuse of discretion standard,” but reviews “the district court’s determination as to the existence of a Brady violation... de novo.”); United States v. Pelullo, 399 F.3d 197, 202 (3d Cir. 2005), cert. denied 546 U.S. 1137 (2006) (An appellate court ordinarily reviews “a district court’s ruling on a motion for a new trial on the basis of newly discovered evidence for abuse of discretion.” But, where “the motion for a new trial is based on a Brady claim, which presents questions of law as well as questions of fact,” the appellate court “ ‘will conduct a de novo review of the district court’s conclusions of law as well as a “clearly erroneous” review of any findings of fact.’ ”).
These decisions are consistent with one part of our three-part abuse of discretion standard, specifically, the one prong under which judicial discretion is abused if judicial action is based on an error of law. Ward, 292 Kan. 541, Syl. ¶ 3. Consequendy, we hold that a trial court’s determination as to the existence of a Brady violation is reviewed de novo with deference to a trial court’s findings of fact, but the trial court’s denial of the defendant’s motion for new trial is reviewed under an abuse of discretion standard.
As a final note of clarification, we address the role of the harmless error standard in a Brady analysis because the State has cited to this standard, although it has done so in the context of the sliding scale test. The United States Supreme Court has explained that “once a reviewing court applying Bagley has found constitutional error, there is no need for further harmless-error review.” Kyles v. Whitley, 514 U.S. 419, 435, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995). Although Kyles was a habeas action — in other words, a collateral attack — the federal courts and commentators have recognized there is no need to conduct a harmless error analysis if a Brady violation is found in a direct appeal. E.g., United States v. Kohring, 637 F.3d 895, 902 (9th Cir. 2011); Kahn, Presumed Guilty Until Proven Innocent: The Burden of Proof in Wrongful Conviction Claims under State Compensation Statutes, 44 U. Mich. J.L. Reform 123, 160 n.164 (Fall 2010) (noting that Brady violations are exempt from harmless error analysis); see United States v. Snipes, 751 F. Supp. 2d 1279, 1288 n.9 (M.D. Fla. 2010) (“The ‘reasonable probability’ standard is substantially the same as the classic ‘harmless error’ standard.”).
With these principles in mind we turn to application of the reasonable probability test to the facts of this case.
Application of Reasonable Probability Test
Again, in applying the reasonable probability test we must make a de novo review, giving deference to the trial court’s factual findings, of whether there is a reasonable probability that, had Moore’s juvenile burglary adjudication been disclosed to the defense before the end of Warrior’s trial, the result of the proceeding would have been different. In other words, does the evidence put the whole case in such a different light as to undermine confidence in the verdict? Although not stating the test in these terms, the trial judge answered the question by stating, “I don’t believe that it would have had any impact.”
Our de novo review leads us to the same conclusion. Certainly, as Warrior points out in her appellate brief, Moore was a key witness for the prosecution in that Moore provided “first-hand knowledge” of Warrior’s involvement in Jeremy’s murder, detailing the plan and the execution of the plan. Yet, as the State observed, the credibility of Moore on the question of dishonesty was thoroughly attacked at trial. During defense counsel’s extensive cross-examination of Moore, Moore admitted to initially naming a person other than Rodgers as the shooter and identifying that person in a photo lineup, changing his versions of events, repeatedly lying to officers, and “making up stuff.” Moore also admitted to testifying in exchange for a plea agreement with the State. He was significantly impeached on his motive for testifying and his capacity for truthfulness — the very factors that, according to Warrior, make this juvenile adjudication evidence prejudicial. See State v. Armstrong, 240 Kan. 446, 452, 731 P.2d 249, cert. denied 482 U.S. 929 (1987) (impeachment evidence not material where witness had been impeached at trial with his prior inconsistent statements and with alleged “concessions” made to his son); see also, e.g., Morris v. Ylst, 447 F.3d 735, 741 (9th Cir. 2006), cert. denied 549 U.S. 1125 (2007) (indicating that if suppressed evidence is merely cumulative, then the failure to disclose is not a violation); United States v. Trujillo, 136 F.3d 1388, 1394 (10th Cir.), cert. denied 525 U.S. 833 (1998) (stating undisclosed impeachment evidence is immaterial where it was cumulative of evidence of bias or partiality already presented “and thus would have provided only marginal additional support for [the] defense”); Spence v. Johnson, 80 F.3d 989, 995 (5th Cir.), cert. denied 519 U.S. 1012 (1996) (stating information is not material under Brady if it is merely cumulative of other evidence already before the factfinder).
Moreover, the undisclosed adjudication was for an offense committed by Moore as a juvenile and 14 years before the trial. Given that, evidence of the adjudication added little to the impeachment evidence presented to the jury.
Therefore, it cannot be concluded that there was a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. The confidence of the jury’s verdict has not been compromised.
Hearsay Regarding Marital Strife
Next, Warrior argues the trial court erred in allowing the State to present hearsay testimony regarding statements made by Jeremy indicating his belief that his marriage was in trouble. This testimony came from two witnesses — Jeremy’s uncle and a friend who was also a coworker of Jeremy’s. Jeremy’s uncle testified that Jeremy was considering a divorce. The uncle described a telephone conversation several weeks before Jeremy’s death in which Jeremy complained about Warrior being out all night. The uncle asked, “ ‘Well, do you think she is messing around?’ ” Jeremy did not give him an answer but said he was going to wait a couple of weeks to malee a decision. About a week later, Jeremy reported tilings had improved. But Jeremy’s uncle testified, “[T]he night before he got shot, he had called me and said that she had been gone all of that night, most of that night.”
The other witness, Jeremy’s friend and coworker, testified Jeremy had confided about trouble in his marriage and suspected Warrior was not working as many hours as she claimed to be. The day before Jeremy was lolled, the friend suggested Jeremy check Warrior’s pay stub to see if her pay correlated with her claims of working late and then he should confront her.
During the testimony of both witnesses, Warrior objected on the basis of “hearsay.” Although the trial court found that tire statements did not constitute hearsay because they were not offered for the truth of the matter asserted, it also found the statements showed Jeremy’s “impressions” and “feelings” at the time he made them, implying they fit into a hearsay exception. In making these rather ambiguous findings, the trial court did not explicitly reference any statutory exceptions to hearsay. Although the State notes that the trial court found the statements were not offered for the truth of the matter asserted, it did nothing more to advance this argument on appeal. Even if it had, the evidence of Jeremy’s growing suspicions and discussions of divorceindeed, the truth that those existedimpacted the State’s evidence of motive. All but conceding this, the State offers suggestions for hearsay exceptions under which the trial court’s rulings might fall.
Despite the State’s suggestions, it is impossible from the record to determine which, if any, exceptions the trial court might have contemplated as a basis for admitting the evidence. We need not attempt to divine the trial court’s rationale, however, because even if the evidence was erroneously admitted, tire admission was harmless.
In making that determination in the context of a violation of evidentiary limitations proscribed by the Kansas Code of Evidence, as opposed to a violation of a constitutional right, we apply the statutory harmless error standard of K.S.A. 60-261 and K.S.A. 60-2105 to determine if there is a reasonable probability the error affected the outcome of the trial in light of the record as a whole. The State, as the party benefitting from the introduction of the evidence, has tire burden of persuasion. State v. McCullough, 293 Kan. 970, 270 P.3d 1142 (2012) (citing Ward, 292 Kan. at 568-69).
Here, the State has met that burden, primarily because the evidence from these two witnesses regarding Jeremy’s suspicions added little to the considerable evidence from Moore and from Warrior herself about Warrior’s and Rodgers’ relationship. Moore testified that Rodgers and Warrior were having an affair. Warrior admitted to an extramarital affair and explained the when, where, and how aspects of the two spending time together on an almost daily basis. The jury heard the recording of Warrior s statements in her third hospital interview, in which she said she was falling in love with Rodgers and that her behavior caused problems with Jeremy because she was staying out late at night. Jeremy did not know about the affair, but he had his suspicions, she stated. These statements by Warrior are essentially the same as the hearsay statements to which she objects. The hearsay evidence added litde or nothing to the issue.
Hence, we find the admission of the evidence, assuming it was error, to have been harmless.
Deadlocked Jury Instruction
Next, Warrior challenges language found in an instruction given to the jury before deliberations that stated “[ajnother trial would be a burden on both sides.” This instruction mirrored a prior version of PIK Crim. 3d 68.12 (2005 Supp.), commonly known as the “deadlocked jury” instruction or Allen-type instruction. See Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). Warrior admits she did not object to tire instruction and that the clearly erroneous standard of review applies as a result. See K.S.A. 22-3414(3). Nevertheless, she argues the trial court clearly erred in giving tire instruction in light of our disapproval of this language in State v. Salts, 288 Kan. 263, 265-66, 200 P.3d 464 (2009).
Subsequent to Salts, this court has consistently confirmed its holding, which means that the instruction in this case was erroneous. But in numerous cases applying this holding, we have concluded that giving the instruction with the challenged language was not clear error. See, e.g., State v. Burnett, 293 Kan. 840, 270 P.3d 1115 (2012); State v. Washington, 293 Kan. 732, 740, 268 P.3d 475 (2012) (listing cases). Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. Salts, 288 Kan. at 265-66.
Warrior attempts to distinguish the long list of cases that hold the instructional error was not clearly erroneous by arguing the evidence against her “was largely circumstantial and not overwhelming.” This argument is not persuasive. There was ample ev idence, both circumstantial and direct, of Warrior s guilt. There was evidence Warrior was having an affair with Rodgers, she plotted her husband’s death with Rodgers and Moore, she offered to pay Moore out of the proceeds from her husband’s life insurance policies, she rented the SUV used by Rodgers and Moore in the attack, she led Rodgers and Moore to her house on that fateful morning, she had at least one telephone conversation with Rodgers just moments before the shooting, and she signaled to Rodgers as she drove down the street. In addition to Moore’s testimony, independent evidence corroborated many of these details.
Moreover, Warrior’s argument does not suggest why the misleading nature of the instruction might have made a difference in the juiy’s deliberations. Nothing in the record demonstrates the jury was near deadlock, deadlocked, pressured to reach a verdict, or concerned about the implications of another trial.
Consequently, we conclude there was not a real possibility that the jury would have rendered a different verdict had the error not occurred. The trial court’s giving the Allen-type jury instruction was not clearly erroneous.
Constitutionality of K.S.A. 21-4635
Next, Warrior contends that because a jury does not determine the facts that increase the penalty beyond a reasonable doubt, Kansas’ hard 50 sentencing scheme under K.S.A. 21-4635 is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999).
This court has previously rejected the same challenge in numerous cases. See, e.g., State v. McCaslin, 291 Kan. 697, 729-30, 245 P.3d 1030 (2011); State v. Ellmaker, 289 Kan. 1132, Syl. ¶ 11, 221 P.3d 1105 (2009), cert. denied 130 S. Ct. 3410 (2010); State v. Martinez, 288 Kan. 443, 451, 204 P.3d 601 (2009); State v. Conley, 287 Kan. 696, 700-01, 197 P.3d 837 (2008); State v. Warledo, 286 Kan. 927, 954, 190 P.3d 937 (2008); State v. Reid, 286 Kan. 494, Syl. ¶ 23, 186 P.3d 713 (2008). Warrior does not present any grounds for reconsidering our prior holdings, and based on those holdings, her argument fails.
Cumulative Error
Finally, Warrior argues that cumulative error requires reversal of her convictions and remand for a new trial. She contends that even if die errors alleged on appeal do not individually require this court to reverse her convictions, the cumulative impact of the alleged errors denied her a fair trial. As discussed, the trial court erred in giving an erroneous deadlocked jury instruction and we have assumed die court erred in admitting the hearsay evidence regarding Jeremy’s statements about his deteriorating marriage. Two other points of error must also be discussed.
The first of these is one diat Warrior points to in her brief. She states in passing that during trial testimony a witness expressed his personal opinion that Warrior was involved in the shooting. Defense counsel objected to this statement, and the trial court ordered the witness’ response to be stricken. Warrior fails to cite any authority or make any argument to support the contention that this incident, which was immediately dealt with by the trial court, contributes to “cumulative error.” Moreover, we see no basis to believe the jury did not follow the court’s instruction to disregard the evidence. Consequently, any harm caused by this error is extremely minimal, if not nonexistent. But the error did occur, even if immediately remedied.
The second point relates to the alleged Brady violation. The State admits it failed to provide exculpatory evidence that was within the State’s control. Nevertheless, we have determined diere was not a Brady violation because die evidence was not material. The role of a failure to disclose evidence that is not a Brady violation in a cumulative error analysis seems to be a matter of some debate with federal courts adopting different approaches. For example, one panel of the Ninth Circuit Court of Appeals recently held that the failure to provide exculpatory evidence that was not material does not factor into a cumulative error analysis. See United States v. Wilkes, 662 F.3d 524, 543 (9th Cir. 2011). On the other hand, a different Ninth Circuit panel combined die materiality analysis of the Brady violation and a prosecutorial misconduct analysis, although it noted that “[i]t is unclear whether we should em ploy Brady’s prejudice standard to evaluate the cumulative effect of the prosecutorial misconduct and the non-disclosure.” Hein v. Sullivan, 601 F.3d 897, 914 (9th Cir. 2010). Because of this uncertainty, we reserve the determination of the question for another day when the parties in a case have argued the question. For our purposes, we will give Warrior the benefit of considering the failure to disclose in our cumulative error analysis. Nevertheless, because we have held that there was not a Brady violation, we will not consider the State’s failure to disclose the information as a constitutional error.
Hence, we consider the cumulative effect of four nonconstitu-tional errors — the Salts error, the assumed hearsay error, the witness’ statement regarding his belief in Warrior’s guilt, and the failure to disclose Moore’s 14-year-old juvenile adjudication.
“In a cumulative error analysis, an appellate court aggregates all errors and, even though those errors would individually be considered harmless, analyzes whether their cumulative effect on the outcome of the trial is such that collectively they cannot be determined to be harmless. [Citation omitted.] In other words, was die defendants right to a fair trial violated because the combined errors affected the outcome of the trial?” State v. Tully, 293 Kan. 176, 205, 262 P.3d 314 (2011).
Where, as here, the only errors we have found or assumed are not constitutional in nature, we examine whether there is a reasonable probability the aggregated errors would have affected the outcome of the trial. See State v. Ward, 292 Kan. 541, 578, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (February 21, 2012). In making the assessment of whether the cumulative errors are harmless error, an appellate court examines the errors in the context of the record as a whole considering how the trial court dealt with the errors as they arose, including the efficacy, or lack of efficacy, of any remedial efforts; the nature and number of errors committed and their interrelationship, if any; and the strengh of the evidence. See Ward, 292 Kan. at 578.
As we have discussed, none of these errors or presumed errors were independently significant. The hearsay was cumulative of statements made by Warrior herself, the court immediately told the jury to disregard the witness’ opinion regarding Warrior’s guilt, Moore’s juvenile adjudication was cumulative, and there is no reason to believe the Salts error had any impact. Further, these errors were not related. Finally, the evidence against Warrior, while largely circumstantial or based on a codefendant who had entered a plea, was strong. Although Warrior’s statements were inconsistent, in some of her interviews she implicated Rodgers as the shooter. And the telephone records show her contact with Rodgers just before the murder thereby providing circumstantial evidence impheating her. Furthermore, a neighbor identified the vehicle Warrior had rented as the vehicle at the scene, and another testified to seeing her fights off and then onthe prearranged signal, according to Moore. Moore, whose statements and testimony must be viewed in the fight of our knowledge that he had a plea agreement with the State, provided details that were consistent with the telephone records, the neighbor’s accounts of what they saw, the pathologist’s opinion, and Warrior’s own statements.
In fight of the record as a whole, we conclude there is not a reasonable probability the combined errors affected the outcome of the trial.
Affirmed. | [
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The opinion of the court was delivered by
Moritz, J.:
Roy L. Long, Jr., appeals his sentence, arguing the sentencing court erred in including lifetime electronic monitoring in the journal entry of judgment. We dismiss this issue as moot because, as Long concedes, this error was corrected in an amended journal entry of judgment.
Long also argues that once the sentencing court pronounced sentence, it lacked jurisdiction to order restitution. Further, he contends the sentencing court erred in ordering restitution without securing his presence at a restitution hearing. We reject both of these arguments and affirm the district court’s restitution order.
Long pleaded guilty to two counts of aggravated indecent liberties with a child and was sentenced to life imprisonment with a mandatory minimum term of 25 years on each count to run concurrently. The court did not order restitution at sentencing, but instead noted the file indicated the victim’s parents had made one $90 payment for counseling for the victim. The court indicated it would leave the issue of restitution open for 30 days to allow the prosecutor to check with the victim’s parents regarding restitution. Further, the court directed that the parties discuss restitution “and if you can’t agree upon it, we can set it for hearing.”
Long neither objected to the court’s decision to leave restitution open nor requested a hearing. Within 10 days after sentencing, Long filed this direct appeal.
After Long filed his notice of appeal, the district court entered an order establishing restitution in the amount of $90. The order indicated there were no appearances and it was signed and “approved by” both the prosecutor and Long’s counsel.
Preliminarily, the State suggests Long’s notice of appeal failed to indicate he was appealing from the court’s order of restitution and consequently this court lacks jurisdiction over the restitution issues. See State v. Huff, 278 Kan. 214, 217, 92 P.3d 604 (2004) (appellate court obtains jurisdiction only over rulings identified in the notice of appeal). But we conclude Long’s notice of appeal, which stated “his intention to appeal the sentence and all adverse rulings,” was sufficiently broad to include Long’s restitution issues. See K.S.A. 22-3606; K.S.A. 60-2103(b); State v. Boyd, 268 Kan. 600, 604-08, 999 P.2d 265 (2000).
Proceeding to the merits, Long first contends the plain language of K.S.A. 2011 Supp. 22-3424(d) requires that restitution be ordered before imposition of sentence. That statute provides: “If the verdict or finding is guilty, upon request of the victim or the victim’s family and before imposing sentence, the court shall hold a hearing to establish restitution.” (Emphasis added.) Long argues that because the district court in this case imposed sentence before imposing restitution, the district court lacked jurisdiction to impose restitution.
But we rejected this argument in State v. McDaniel, 292 Kan. 443, 254 P.3d 534 (2011), an opinion filed after Long filed his appeal brief in this case. In McDaniel, we held that while K.S.A. 2011 Supp. 22-3424(d) “clearly states that a court ‘shall’ hold a hearing to establish restitution before imposing sentence,” that language is limited to situations in which the crime victim or the victim’s family has requested restitution. 292 Kan. at 446.
Further, in McDaniel we rejected the defendant’s argument that the district court’s failure to establish restitution before sentencing deprived the court of jurisdiction. Instead, we reasoned that the district court’s order establishing restitution merely completed the sentence it had earlier imposed. See 292 Kan. at 448. Similarly, in this case, the restitution order, which was agreed to and signed by defense counsel, did not modify Long’s sentence, but completed it. See 292 Kan. at 447-48.
Long points out that in McDaniel, neither the victim nor the victim’s family requested restitution. But here, because the victim’s parents requested restitution, Long argues K.S.A. 2011 Supp. 22-3424(d) mandated that the district court conduct a restitution hearing before sentencing. However, in McDaniel we concluded that even when the victim or the victim’s family has requested a hearing, the language of K.S.A. 2011 Supp. 22-3424(d) providing that the “court ‘shall’ hold a hearing to establish restitution” is directory, not mandatory. 292 Kan. at 446-47.
In a related argument, Long argues the district court violated his constitutional right to be present at sentencing, a critical stage in his criminal proceeding, by imposing restitution without securing his presence. But Long’s argument ignores the provision in K.S.A. 2011 Supp. 22-3424(d) permitting a defendant to “waive the right to the hearing and accept the amount of restitution as established by the court.”
Clearly, in this case, Long waived his right to a hearing by failing to object to the district court’s postponement of the restitution determination and by failing to request a restitution hearing, which was specifically offered by the district court.
Affirmed in part and dismissed in part. | [
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The opinion of the court was delivered by
Beier, J.:
Defendant Roger Collins appeals his conviction for unlawful possession of hydrocodone under K.S.A. 65-4160(a), a severity level 4 drug felony. Collins argues that eight Lortab pills in his possession were schedule III rather than schedule II drugs and that K.S.A. 65-4160(a) was therefore inapplicable.
Factual and Procedural History
Collins was a passenger in a car stopped for failure to signal. During the stop, Officer C.J. Clark observed a plastic baggie in Collins’ hand.
Clark ran a records check and determined that Collins had two bench warrants outstanding. Clark then arrested Collins and performed a search incident to the arrest. Clark confiscated the baggie, which held eight white pills, each marked with the number “3594.” Clark contacted a local pharmacy for identification of the pills and learned that they were a generic brand of hydrocodone, specifically, Lortab. Each pill contained 7.5 milligrams of hydrocodone, verified by later laboratory testing, and 500 milligrams of acetaminophen.
The State charged Collins with one count of felony possession of “a controlled substance, to-wit: hydrocodone,” in violation of K.S.A. 65-4160(a).
Collins filed a motion to dismiss, arguing that the pills were not schedule II drugs under K.S.A. 65-4107(b)(l) but were instead schedule III drugs under K.S.A. 65-4109(d)(4). In his view, K.S.A. 65-4160(a) did not prohibit possession of a limited amount of schedule III hydrocodone, and thus no criminal offense had occurred.
The State responded that the designation of the Lortab in Collins’ possession as a schedule II or schedule III drug made no difference under the version of K.S.A. 65-4160(a) in effect at the time. That statute prohibited possession of “any opiates, opium or narcotic drugs,” making such possession punishable as a drug severity level 4 felony. Because the hydrocodone in Collins’ possession qualified as an opiate under K.S.A. 65-4107(b)(l)(J) for which Collins had no prescription, see K.S.A. 65-4116(c)(3), the State argued that he had violated K.S.A. 65-4160(a).
District Judge Joseph Bribiesca rejected Collins’ argument and denied the motion to dismiss.
Collins then waived his right to a jury and was convicted after a bench trial to District Judge Rebecca Pilshaw. Judge Pilshaw’s verdict rested entirely on the parties’ stipulation to the facts recited in a probable cause affidavit signed by Detective Heather Bach-man. Bachman described the traffic stop, the discovery of the baggie and its contents in Collins’ possession, the submission of the pills for laboratory testing, and the lab’s result.
District Judge Eric Yost handled Collins’ sentencing, at which Collins received a 40-month prison sentence with 12 months of postrelease supervision. Yost placed Collins on probation.
On appeal to the Court of Appeals, Collins again argued that the charge against him should have been dismissed because the Lortab in his possession was only a schedule III drug that he could possess lawfully. The Court of Appeals panel rejected the argument, relying on State v. Surowski, 42 Kan. App. 2d 304, 212 P.3d 229 (2009), to hold that possession of hydrocodone — regardless of whether it qualifies as a schedule II drug or a schedule III drug — is a felony under K.S.A. 65-4160(a). See State v. Collins, No. 101,092, 2010 WL 596996 (Kan. App. 2010) (unpublished opinion).
We granted Collins’ petition for review on his single appellate claim.
Discussion
The outcome of this case rises and falls on statutoiy interpretation, which raises an issue of law reviewable de novo on appeal. See State v. Inkelaar, 293 Kan. 414, 433, 264 P.3d 81 (2011).
“The fundamental rule of statutory construction is to ascertain the legislature’s intent. The legislature is presumed to have expressed its intent through the language of the statutoiy scheme. Ordinary words are given their ordinaiy meanings. A statute should not be read to add language that is not found in it or to exclude language that is found in it. When a statute is plain and unambiguous, die court must give effect to die legislature’s intent as expressed radier than determining what die law should or should not be.” State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006) (citing State v. McCurry, 279 Kan. 118, 121, 105 P.3d 1247 [2005]).
The version of K.S.A. 65-4160(a) under which Collins was prosecuted provided in pertinent part:
“Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to possess or have under such person’s control any opiates, opium or narcotic drugs, or any stimulant designated in subsection (d)(1), (d)(3) or (f)(1) of K.S.A. 65-4107 and amendments thereto. Any person who violates diis subsection shall be guilty of a drug severity level 4 felony.” K.S.A. 2007 Supp. 65-4160(a).
Under the Kansas Controlled Substances Act, hydrocodone is listed as both a schedule II drug and a schedule III drug, depending on its formulation. The schedule II list labels hydrocodone in its pure form an opiate. K.S.A. 65-4107(b)(l)(J). The schedule III list identifies hydrocodone up to 300 milligrams or up to 15 milligrams in combination with one or more active, nonnarcotic ingredients in recognized therapeutic amounts as a “narcotic drug[].” K.S.A. 65-4109(d)(4). It therefore appears that Collins is correct when he argues that the formulation of the Lortab in his possession in this case qualified it as a schedule III rather than a schedule II drug. Cf K.S.A. 65-4101(p) (narcotic drug includes opiate).
The problem for Collins is that victory in the schedule Ill-schedule II batde does not win the war.
K.S.A. 65-4160(a)’s prohibition of possession is not limited to drugs on one or the other of these schedules or on any schedule. Its dependence on K.S.A. 60-4107, which sets out the drugs that are classified as schedule II, is limited to defining certain stimulants not at issue here. See K.S.A. 65-4160(a) (referencing K.S.A. 60-4I07[d][l], [d][3], [f][l]). Possession of opiates — including but not limited to schedule II pure hydrocodone or schedule III considerably less-than-pure hydrocodone — is generally and plainly forbidden. It is not this court’s function to add to or amend clear statutory language. Bryan, 281 Kan. at 159.
We share the legal conclusions at which we arrive in this case with those of the Court of Appeals panel that decided Surowski, 42 Kan. App. 2d 304.
In that case, on the State’s appeal after dismissal, defendant Katherine Surowski made the same argument that Collins makes here: She asserted that she could not be convicted and punished for felony possession under K.S.A. 2006 Supp. 65-4160(a) because she possessed only schedule III Lortab and not a schedule II drug. The charging document had specifically alleged that Surowski possessed “an opiate drug [to wit: hydrocodone, a schedule II substance identified at K.S.A. 65-4107(b)(l)(N)].” Surowski, 42 Kan. App. 2d at 304-05.
The panel agreed that Lortab was a schedule III controlled substance, but that fact did not make Surowski bulletproof under K.S.A. 2006 Supp. 65-4160(a). Surowski, 42 Kan. App. 2d at 306. “[U]nder the plain language of K.S.A. 2006 Supp. 65-4160(a), possession of narcotics is a felony. Because neither party disputes that Lortab, which Surowski is alleged to have possessed, contains a narcotic, the district court erred in finding that possession of Lor-tab is not a proscribed felony under K.S.A. 2006 Supp. 65-4160(a).” Surowski, 42 Kan. App. 2d at 308.
One final point on Surowski bears brief mention: The panel closed its opinion by admonishing the State to amend its complaint to charge “the appropriate crime .... [Ajssuming the charge remains the same, tire complaint must charge Surowski with felony possession of the narcotic drug Lortab, a schedule III substance identified at K.S.A. 65-4109(d)(4).” 42 Kan. App. 2d at 308. We believe this language was intended merely to correct the specific wording of the complaint in that case and not to set up a requirement of similar specificity for all charging documents alleging a violation of K.S.A. 65-4160(a). Collins’ complaint/information alleged only that Collins possessed “a controlled substance, to-wit: hydrocodone,” in violation of K.S.A. 65-4160(a). It did not mention whether the drug was schedule II or schedule III, and thus there is nothing to correct. Moreover, because this case is in the opposite procedural posture of Surowski, which arose on the State’s appeal, our decision to affirm the district court ruling means this case will not be remanded.
The Court of Appeals is affirmed; the district court is affirmed. | [
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The opinion of the court was delivered by
Beier, J.:
This is an appeal from an award of compensation in an eminent domain action. Kansas City Mall Associates, Inc. (KC Mall), the owner of what was once the Indian Springs Shopping Center in Kansas City, argues that the district court erred by admitting evidence from a 2005 tax appeal as well as certain testimony and reports from appraisal experts for the condemning authority, the Unified Government of Wyandotte/County, Kansas City, Kansas (Unified Government). We are not persuaded by KC Mali’s arguments and affirm the judgment of the district court.
Factual and Procedural Background
KC Mall initiated review of the court-appointed appraisers’ award of $7.5 million for the subject property, renamed Park West Business Center by KC Mall. The date of the taking was June 20, 2007. The 57.38-acre property underlies the main mall structure and four outbuildings, including a dental office that once housed Brotherhood Bank, an old Franklin Bank building, and two auto repair shops.
KC Mall filed a motion in limine to exclude 2005 tax appeal documents filed by Joseph Kashani, the president of KC Mall, for four of five parcels that malee up the subject property. In the tax appeal, Kashani estimated the value of die main mall at $1.5 million, the value of die former Dillard’s that was part of the main mall at $1 million, the former Franklin Bank building at $100,000, and the former Brotherhood Bank building at $50,000. KC Mali’s motion argued that it had filed the 2005 appeal only to force the Unified Government to abide by a Neighborhood Revitalization Plan. The plan was supposed to freeze property taxes for 10 years, starting in 1998; but the Unified Government raised the tax on the property in 2005. In the alternative, KC Mall argued that the “unit rule” prohibited admission of die tax appeal documents because they addressed only components of the property and not the entire tract.
In its response to KC Mali’s motion, the Unified Government argued that die 2005 tax appeal documents constituted admissions against interest needed to combat Kashani’s anticipated testimony that he believed the value of the property to be $30 million to $35 million. In addition, the Unified Government contended that the tax appeal had nothing to do with the revitalization plan; rather, it was prompted by a reduced income stream from the subject property. Finally, the Unified Government argued that admission of the tax appeal documents would not violate the unit rule, because evidence of the separate values of pieces of the entire tract could be considered, as long as the award of just compensation did not ultimately assign separate values to component parts.
The district court denied KC Mall’s motion in limine.
After this ruling, the Unified Government asked the district court to clarify whether the documents were admissible as substantive evidence as well as impeachment, in the event Kashani testified about his opinion of value. The Unified Government also argued that it should be entitled to call Kashani during its case-in-chief to impeach his valuation testimony. In response to these arguments, District Judge Philip L. Sieve held that the tax appeal documents were admissible as substantive evidence as well as for purposes of impeachment, relying on City of Wichita v. Sealpak Co., 279 Kan. 799, 112 P.3d 125 (2005). Judge Sieve also granted KC Mall a continuing objection on the issue of the documents’ admission. KC Mall’s lawyer stated that he would put Kashani on the witness stand at trial and that Kashani would testify about his opinion on value only because of Judge Sieve’s ruling.
When trial began, Kashani was KC Mall’s first witness. He testified that the Kashani family owned KC Mall and that he was the president and chief financial officer of the company. The Kashanis formed KC Mall to purchase the Indian Springs Shopping Center in 1995 with the intention of rehabilitating it. KC Mall brought in governmental agencies to lease some of the mall space, as well as die dental office and a telemarketing company. To cement the deal with the telemarketing company, KC Mall negotiated the tax rebate that was part of the revitalization plan.
In 2005, KC Mall applied to the Unified Government to change the zoning of the property from retail to business park, and the application was granted. By late 2006, KC Mall had changed the signage on the subject property to read: Park West Business Center.
Kashani concluded his direct examination without giving his opinion on the value of the property. On cross-examination, however, he testified that he beheved the value of the property was $30 million to $35 million. Kashani also was cross-examined about 2005 tax appeal documents, which the court admitted. The information in the documents included botíi the assessed value and Kashani’s statements of value for purposes of the appeal. Kashani also admitted that the total 2005 value he placed on the parcels for the tax appeal was $2.65 million, and he admitted that, during an earlier bankruptcy proceeding, he had given a high vacancy rate as the reason for the tax appeal.
On redirect, Kashani described several motives for the tax appeal: damage to an old Montgomery Ward space; a high vacancy rate; and a 96 percent increase in property taxes from 2004 to 2005, which he believed to be contrary to the agreement for a tax rebate under the revitalization plan. He also testified that he pursued the tax appeal without the benefit of legal advice.
KC Mall next called two appraisal experts. Peter D. Burgess, MAI, testifying that the highest and best use for the subject property was as a business park, stated that the land alone was worth $7.5 million and that he estimated the fair market value of the whole property at $15 million. Douglas L. Harris testified that the value of the subject property was $16.765 million.
KC Mall called four other experts in support of its plan to develop the subject property under business park zoning. The witnesses included an appraiser who discussed the conversion of “dead” malls to other uses, an architect who worked with KC Mall to come up with the business park idea and assisted with its successful rezoning effort, a broker who discussed KC Mall’s leasing efforts, and a landscape architect who testified that recycling the retail space into a business park was consistent with industry practice.
For its part, the Unified Government called two witnesses: Robert E. Marx and Kevin Nunnick, both appraisal experts. The district court admitted their appraisal reports as well as their testimony about their methods and conclusions.
Marx first testified that the steps to determine the highest and best use of tire subject property should include examination of whether a use was physically possible; legally permissible, that is, properly zoned; financially feasible; and maximally productive, that is, likely to generate the highest possible return on investment for the owner. He further testified that the determination of the highest and best use affects the type of comparable properties an appraiser considers in his or her valuation.
According to the record before us, Marx’s testimony about the highest and best use for the subject property was inconsistent. On direct examination, he opined that the highest and best use was to maintain the existing buildings on the property and use them as parts of a business park. When KC Mall objected to Marx’s testimony based on use of operating malls as comparable properties, Marx testified on voir dire — outside the presence of the jury — that the highest and best use of the subject property was part office, part retail. On cross-examination, once again before the jury, Marx conceded that none of the mall properties he had used as com-parables had been converted to business parks, and he said that he had not sought sales of business parks for purposes of comparison. He then contradicted himself, first testifying that he considered the highest and best use for the subject property to be a mall and tiren that he believed it to be a business park.
Marx’s report stated that the highest and best use for die property was as “vacant (business park of mixed-commercial use)” and “as improved (enclosed mall and 4 outbuildings, maintain current use).”
Marx valued the land alone at $4.4 million, comparing it to other land sold in Wyandotte County. Marx said that he considered all three statutory valuation methods for the entire tract — cost, capitalization of income, and comparable sales — but he arrived at values only under the capitalization of income and comparable sales approaches.
Under the capitalization of income approach, Marx concluded that the fair market value of the subject property at the time of the taking was $4 million. He used data on operating expenses from Bannister Mall and Blue Ridge Mall.
Under the sales comparable sales approach, Marx testified that he had found comparable sales of four malls outside the Kansas City area. The four sales prices ranged from $2.5 million to $8.8 million, and Marx calculated the price per square foot at $4 to $5. This gave him an ultimate fair market value for the entire subject property of $3.7 million to $4.5 million.
On the subject of zoning, Marx’s report indicated that the zoning of the subject property was “planned limited business” and that the development of the site was consistent with the zoning ordinance. Marx testified that the zoning of a property should not affect demand. For example, a tenant looking for office space would not look at a retail building. On cross-examination at trial, Marx admitted that retail was not a permitted use for property zoned as a business park. He also conceded that none of the malls from which he drew data were later converted to business parks and that he had sought comparable sales of old malls rather than business parks.
Nunnick testified consistently that, in his opinion, the highest and best use for the subject property was retail and redevelopment. Specifically, Nunnick testified that it was legally possible at the time of the taking to use the property as a business park, given its zoning. But it was not physically possible or economically feasible to use the property as a business park, because the buildings were still set up for and operating as retail; tenants did not want to use retail space for office space. Nunnick opined that the question was not whether the propexiy could be used as a business park, just whether it was worth more redeveloped or as retail space. He also testified that he believed the Unified Government would “play ball” to rezone the property for retail; a zoning change was likely, depending on plans for redevelopment.
Nunnick testified that he valued the subject property as vacant land at $5 million. The cost method of valuation also led him to a value of $5 million, as did the comparable sales method. His analysis under the capitalization of income method led to a fair market value of $4.7 million.
The juiy returned a verdict of $6.95 million.
Discussion
An eminent domain proceeding is statutory in nature. Miller v. Bartle, 283 Kan. 108, 114, 150 P.3d 1282 (2007). The only factual issue in dispute at the trial of a condemnation action is the fair market value of the property being taken by the government. Miller, 283 Kan. at 115 (citing K.S.A. 2005 Supp. 26-508).
K.S.A. 26-513(e) defines fair market value as:
“[T]he amount in terms of money that a well informed buyer is justified in paying and a well informed seller is justified in accepting for property in an open and competitive market, assuming that the parties are acting without undue compulsion. The fair market value shall be determined by use of the comparable sales, cost or capitalization of income appraisal methods or any combination of such methods.”
In City of Wichita v. Eisenring, 269 Kan. 767, 774, 7 P.3d 1248 (2000), this court noted that, before the legislature’s addition of subsection (e) to K.S.A. 26-513 in 1999, the favored approach to valuation in Kansas was the market data approach, i.e., a comparable sales method. Now the statute recognizes three methods— comparable sales, replacement cost, or income method — and permits any combination of the three to value the property taken. 269 Kan. at 775. “[A]ll three methods stand on equal footing,” and this court no longer gives preference to one method. 269 Kan. at 775.
The district court “ ‘has broad discretion in determining what evidence will be allowed in an eminent domain proceeding.’ ” Mooney v. City of Overland Park, 283 Kan. 617, 619, 153 P.3d 1252 (2007) (citing U.S.D. No. 464 v. Porter, 234 Kan. 690, 694, 676 P.2d 84 [1984]).
“ ‘Generally, when considering a challenge to a district judge’s admission of evidence, an appellate court must first consider relevance. Unless prohibited by statute, constitutional provision, or court decision, all relevant evidence is admissible. K.S.A. 60-407(f). Evidence is relevant if it has any tendency in reason to prove any material fact. K.S.A. 60-401(b). To establish relevance, there must be some material or logical connection between the asserted facts and the inference or result they are intended to establish. [Citation omitted].’ ” Mooney, 283 Kan. at 620 (quoting State v. Gunby, 282 Kan. 39, 47, 144 P.3d 647 [2006]).
The question of whether evidence is probative is judged under an abuse of discretion standard; materiality is judged under a de novo standard. See State v. Reid, 286 Kan. 494, 507-09, 186 P.3d 713 (2008).
“ ‘Once relevance is established, evidentiaiy 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.’ ” Mooney, 283 Kan. at 620 (quoting Gunby, 282 Kan. at 47). We must then consider whether the admitted evidence was unduly prejudicial, and our review on the prejudice question is for abuse of discretion. Reid, 286 Kan. at 512 (citing Gunby, 282 Kan. at 48-49).
Finally, under K.S.A. 60-261, no error in the admission of evidence is ground for granting a new trial or for setting aside a verdict unless refusal to take such action is inconsistent with substantial justice. This court must disregard any trial court error that does not affect the substantial rights of the parties. K.S.A. 60-261; State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011) (no reasonable probability error will affect outcome of trial). The burden of demonstrating K.S.A. 60-261 harmlessness for a nonconstitutional error is on the party benefitting from the error. See State v. McCullough, 293 Kan. 970, Syl. ¶ 9, 270 P.3d 1142 (2012).
Admission of Kashani Opinion of Value During 2005 Tax Appeal
KC Mall advances four arguments in support of its contention that the district judge erroneously admitted evidence of Kashani’s opinion of value during the 2005 tax appeal: (1) Kashani filed the tax appeal for the specific purpose of enforcing the 10-year tax abatement, which means his opinion in the tax proceeding does not qualify as a previous inconsistent statement; (2) Kashani did not testify to value on direct examination and could not be impeached with his tax appeal opinion; (3) the appraisers used by KC Mall in this case were not involved in the 2005 tax appeal and were not subject to the rule permitting admission of prior inconsistent statements; and (4) the tax appeal was limited to four component parts of the subject property and thus admission of the Kashani values for those components violated the unit rule.
The essence of the Unified Government’s response to all of these arguments can be stated succinctly: This issue is controlled by our decision in Sealpak, 279 Kan. at 799, which reconciled earlier competing rules and requires us to uphold the district court.
In Sealpak, property owner Sealpak Company, Inc., was subject to a 2002 taking. Sealpalc’s owner was Donald Smith. Condemnor City of Wichita wanted to admit evidence of a 2000 tax appeal Smith filed on behalf of the company, in which he opined that the property was worth $150,000. The district court excluded the evidence, ruling that evidence of tax assessments was inadmissible at trial and that necessary evidence of the difference in value between 2000 and 2002 was lacking.
During the city’s proffer, Smith had testified that the county’s valuation for the property had been $150,000 for several years leading up to 2000. In 2000, the county raised the appraised value for the property to $185,560. Smith’s appeal form indicated that the “Value [was] over market value.” Smith also testified that he believed the tax value should remain at $150,000 because of flooding the City had caused. At trial, Smith took the position that the property was worth $1,102,729. 279 Kan. at 800-01.
This court first recited the general principles that a landowner is competent to testify to the value of his or her property and that his or her opinion is relevant to the issue of value. 279 Kan. at 802. In addition, “out-of-court statements made by the owner which are inconsistent with his or her valuation position at trial are relevant and can be admissible as admissions against him or her.” 279 Kan. at 802 (citing 5 Nichols on Eminent Domain § 18.12[1] [3d ed. 2003]; K.S.A. 2004 Supp. 60-460[g] [admissions by parties]; Le Roy & W. Ry. Co. v. Butts, 40 Kan. 159, 19 Pac. 625 [1888]).
We also recognized, however, that “ ‘assessed valuation of property for tax purposes is not admissible to establish the value of the property.’ ” 279 Kan. at 803 (quoting Metee v. Urban Renewal Agency, 213 Kan. 787, 789, 518 P.2d 555 [1974]). Part of the underlying rationale for this rule was that a tax valuation is prepared by a third party unavailable for cross-examination. Love v. Common School District, 192 Kan. 780, Syl. ¶ 1, 391 P.2d 152 (1964). An exception to this rule was identified in Avery v. City of Lyons, 181 Kan. 670, 673, 314 P.2d 307 (1957), which held that tax assessment documents were admissible in an eminent domain action because the value of the property was directly at issue and the documents had been signed and filed by one of the property owners.
We decided in Sealpak-.
“[A]n owner’s valuation of his own property, or a valuation in which he has participated, for tax purposes, is usually held admissible in proceedings other than tax proceedings where the value of the property is in issue, in most instances on the ground that the owner’s valuation constitutes an admission against interest, where he seeks to establish a higher value for a purpose other than taxation.” ’ ” 279 Kan. at 805 (quoting Avery v. City of Lyons, 181 Kan. 670, 674, 314 P.2d 307 [1957] [citing 39 A.L.R.2d 209, p. 230]).
“ ‘Statements made by or attributable to the oumer which are inconsistent with his valuation position at trial are admissible as admissions. They are thus considered exceptions to the hearsay rule of exclusion, and may be introduced by the condemning authority as substantive evidence of value.
“ ‘Statements of the owner, which may become admissions . . . [include]
“ ‘(6) a statement made to the tax assessor that his property is not as valuable as the assessment.’ ” (Emphasis added.) 279 Kan. at 805 (quoting 5 Nichols on Eminent Domain § 18.12[1] [3d ed. 2003]).
We specifically rejected a simplistic rule of exclusion from Metee v. Urban Renewal Agency, 213 Kan. 787, 518 P.2d 555 (1974), or Love v. Common School District, 192 Kan. 780, 391 P.2d 152 (1964), to the facts of Sealpak, in which the valuations at issue were not made by third parties unavailable for cross-examination. 279 Kan. at 805. We also recognized that, because an owner’s prior statement related to a tax appeal could come into evidence as an admission against interest, the owner would have the right in an eminent domain action to offer an explanation for the value he or she placed on the property in a tax proceeding. 279 Kan. at 807.
Most of the particulars of this case are not meaningfully distinguishable from those before us in Sealpak. Like Smith for Sealpak, Kashani is the representative of his company, KC Mall. His statements on behalf of KC Mall in the tax appeal, like Smith’s on behalf of Sealpak, were attributable to the company. They were not statements of a third-party taxing authority, and Kashani was available at trial of this eminent domain proceeding for explanation and cross-examination.
We also note that there is a further fact in this case not present in Sealpak, and it favors admission of Kashani’s representations during the tax appeal: the taxing authority and the condemning authority are one and the same, the Unified Government. This fact ameliorates any concern over surprise or confusion that may arise when the taxing and condemning authorities are two different governmental bodies. Compare Metee, 213 Kan. at 788-89.
Sealpak also tells us that a landowner’s admissions against interest are admissible as substantive evidence in the eminent domain proceeding, regardless of whether the landowner testifies live about value. Sealpak, 279 Kan. at 805. Nichols on Eminent Domain supports this proposition:
“Statements made by or attributable to the owner which are inconsistent with his valuation position at trial are admissible as admissions. They are thus considered exceptions to the hearsay rule of exclusion, and may be introduced by the condemning authority as substantive evidence of value.
“As with any nonjudicial admission, an admission against interest by the owner is not conclusive but, rather, constitutes substantive evidence of value. This being the case, die owner is free to introduce evidence in explanation of the circumstances attending the admission or its adoption. In addition to serving as substantive evidence of value, the owner’s admissions may be tendered for impeachment purposes should the owner testily on the issue of valuation.” 5 Nichols on Eminent Domain § 18.12[1], pp. 18-75, 18-87 (3d ed. 2009).
The Kansas hearsay statute is likewise in harmony:
“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:
“(g) Admissions of parties. As against a party, a statement by the person who is die party to the action in the person’s individual or representative capacity and, if the latter, who was acting in such representative capacity in making the statement.” K.S.A. 60-460(g).
Our discussion of Sealpak demonstrates its foreclosure of the first three of KC Mall’s four arguments.
Specifically, KC Mall’s first argument — that the tax appeal was filed only to enforce the 10-year tax freeze — goes to the weight of the evidence, not its admissibility. It is merely Kashani’s explanation for why he filed the tax appeal, and he was afforded the opportunity to explain his rationale to the jury. This is all that Sealpak requires. Sealpak, 279 Kan. at 807.
KC Mall’s second and third arguments are in conflict with Seal-pak’s recognition that Kashani’s statements in the tax appeal were admissible as substantive evidence as well as impeachment. See 279 Kan. at 805. It was not necessary that Kashani personally take a position on value at the eminent domain trial. It would have been enough that the landowner sponsored testimony of a valuation expert with an opinion different from that expressed by Kashani in the 2005 tax appeal. The tax appeal evidence was relevant to — both material to and probative of — the fair market value of the subject property. See State v. Magallanez, 290 Kan. 906, 920-21, 235 P.3d 460 (2010) (materiality concerns whether fact to be proved has legitimate and. effective bearing on decision of case; probativeness concerns whether offered evidence has any tendency in reason to prove disputed material fact). For these reasons, we hold that the 2005 tax appeal evidence was admissible for purposes of impeachment as well as substantive evidence.
Beyond Sealpak, we also must reject KC Mali’s fourth argument that admission of the evidence of Kashani’s position on four parcels in the tax appeal violated the unit rule. The rule requires that the total value of condemned real estate be determined and limits consideration of the value of buildings and improvements to tire extent they enhance the value of the land taken. Creason v. Unified Government of Wyandotte County, 272 Kan. 482, 485-86, 33 P.3d 850 (2001) (citing Ellis v. City of Kansas City, 225 Kan. 168, 171, 589 P.2d 552 [1979]). It stands in contrast to a “summation method” of appraisal, rejected in Kansas, under which contributing items of real estate and improvements are added up for a total value. Creason, 272 Kan. at 486 (citing City of Manhattan v. Kent, 228 Kan. 513, 518, 618 P.2d 1180 [1980]). In other words,
“an award of compensation must reflect the value of the property as a whole. There is an important distinction between the measure of value and the evidence admissible to prove it. The award of just compensation cannot assign separate values to component parts of tire property. In other words, one value cannot be given to the land, another value to the water rights, and another [value] to the mineral rights. However, to demonstrate how the value of the property as a whole is enhanced by a natural asset, evidence can be introduced of its separate value.” (Emphasis added.) Creason, 272 Kan. at 490.
Here, tire four parcels that were the subject of the 2005 tax appeal include the main mall structure, the former Dillard’s building, the former Franklin Bank building, and the former Brotherhood Bank building. At trial, the Unified Government specifically reviewed the individual values Kashani assigned each of the four parcels subject to the tax appeal. And Kashani acknowledged those values added up to $2.65 million.
While it may superficially appear that the Unified Government added up the Kashani-assigned values of separate parcels to arrive at a total value, that total was not the fair market value of the subject property for which the Unified Government advocated. The range for fair market value that it encouraged was the $3.7 million to $5 million supported by its two appraisal experts, Marx and Nunnick. The Unified Government merely used the $2.65 million total of Kashani’s tax appeal values to cast doubt on Kashani’s assertion at trial that the whole of tire subject property was worth $30 to $35 million. This use of the $2.65 million did not violate the unit rule.
For all of die reasons discussed above, we reject KC Mali’s appellate challenge to Judge Sieve’s admission of evidence regarding Kashani’s valuations from the 2005 tax appeal. Kashani’s statements were admissible as both substantive and impeachment evidence because they qualified as admissions against interest of his company, KC Mall.
Admission of Unified Government’s Experts’Appraisal Reports and Testimony
At trial, KC Mall objected to Marx’s testimony, arguing that the subject property was zoned as a business park rather than as a mall at the time of the taking and that Marx should have used data from business parks rather than malls in transition to other uses. Judge Sieve permitted KC Mall to voir dire Marx outside the jury’s presence on the issue but overruled the objection, reasoning that KC Mali’s argument went to the weight rather than admissibility of Marx’s opinions. KC Mall also lodged the same objection to Nun-nick’s testimony, but Judge Sieve again overruled it, stating that Nunnick’s methods were within accepted limits for valuation experts.
KC Mall renews its argument on appeal that the Unified Government’s experts’ appraisal reports and testimony were inadmissible because the witnesses compared the subject property to retail malls, even though it was zoned at the time of the taking as a business park. The Unified Government responds that the property had not been altered physically since its days as a shopping mall, with the exception of updated signage, which made its experts’ methods appropriate.
In ruling on KC Mali’s objections at trial, Judge Sieve reviewed our decision in Board of Johnson County Comm’rs v. Smith, 280 Kan. 588, 123 P.3d 1271 (2005). On this appeal, KC Mall argues that Smith stands for the proposition that any appraisal presuming a use inconsistent with zoning leads to an erroneous determination of highest and best use and that employment of comparable data based on an incorrect highest and best use is legally flawed. We disagree with KC Mall’s interpretation of our Smith opinion.
In Smith, the parties asked this court to determine the subject property’s zoning classification because that would “largely determine the just compensation.” 280 Kan. at 596. We first observed that the zoning classification of the subject property was not dis-positive of the issue of value: “ ‘[I]n determining, for condemnation purposes, the most profitable use to which land can reasonably be put in the reasonably near future, the existing zoning restrictions or other restrictions should be considered, but they are not determinative.’ (Emphasis added.) 29A C.J.S., Eminent Domain § 148(d).” 280 Kan. at 597.
We noted the consistency between this language and K.S.A. 26-513(d)(1), which sets out 15 nonexclusive factors to be used to ascertain the proper amount of compensation in an eminent domain proceeding. See Smith, 280 Kan. at 596. Those factors include:
“(1) The most advantageous use to which the property is reasonably adaptable.
“(4) Productivity, convenience, use to be made of the property taken, or use of the property remaining.
“(9) Destruction of a legal nonconforming use.
“(13) That the property could be or had been adapted to a use which was profitably carried on.” K.S.A. 26-513(d).
Smith recognized that PIK Civ. 3d 131.05 addressed the first of these factors (the most advantageous use to which the property is reasonably adaptable) and stated:
“ ‘In determining fair market value, you should consider all of the possible uses to which the property could have been put, including the best and most advantageous use to which the property was reasonably adaptable, but your consideration must not be speculative, conjectural, or remote. The uses which may be considered must have been so reasonably probable as to have had an effect on the fair market value of the property at the time of the taking.’ (Emphasis added.)” 280 Kan. at 597 (quoting PIK Civ. 3d 131.05).
We then went on to recognize that a determination of the uses to which a property was reasonably adaptable included consideration of a reasonable probability of zoning changes. 280 Kan. at 597. This court looked to 5 Nichols on Eminent Domain § 18.05[3] (3d ed. 2003):
“ ‘Admissibility of a proposed use requires a showing that the property is both physically adaptable for that use and that there is a demand for such use in the reasonably near future. Even if the asserted use is prohibited by zoning or other land use designations or requires the issuance of governmental permits, evidence of such use is admissible upon a showing that it is reasonably probable that the zoning or other designations would be changed or that permits would be issued.’ (Emphasis added.)” 280 Kan. at 597.
Finally, we observed that the issue of rezoning probability was a jury question, as evidenced by PIK Civ. 3d 131.06:
“ ‘If you find that the best use to which the land could have been put at the time of the taking was a use other than that for which it was zoned at the time, and that there was a reasonable probability of its being later rezoned to permit such use, then you may consider such use in determining the market value.’ (Emphasis added.)” 280 Kan. at 597 (quoting PIK Civ. 3d 131.06).
The concept of “best and most advantageous use” or “highest and best use” is a factor for the juiy to consider when awarding just compensation. See K.S.A. 26-513(d); PIK Civ. 4th 131.05. “The essential inquiry must be: what is the property worth in the market, viewed not merely with reference to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted.” 4 Nichols on Eminent Domain §12B.12, p.12B-96 (3d. ed. 2011).
The crucial question arising from our interpretation of Smith is whether there was any evidence presented to the jury about tire probability of rezoning. We see some evidence in the record before us to support an inference that rezoning was reasonably probable, given the state of the property and its current use. At the time of the taking, none of the buildings on the subject property had been altered to conform to business park use. Although architects had been hired to draw plans for an office park, the plans had not yet been pursued. The tenants occupying the buildings after rezoning as a business park were the same tenants that occupied the buildings before that rezoning. Nunnick also testified that he believed the Unified Government would “play ball” with a retail redevelopment plan. Finally, Marx testified that a change in zoning would not alter demand.
Given this evidence and Smith’s holding that zoning is but one factor to consider in determining highest and best use, the district court did not err by admitting the testimony and reports of the Unified Government’s expert appraisers.
Conclusion
Because Kashani’s statements in the 2005 tax appeal were admissible both substantively and for impeachment as admissions against interest of his company, KC Mall, and because zoning at the time of a taking is only one of the factors to be considered in determining highest and best use of a property subject to eminent domain, we see no reversible error in this proceeding. The judgment of the district court is, therefore, affirmed. | [
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The opinion of the court was delivered by
Nuss, C.J.:
The State appeals a trial court’s temporary injunction. The injunction prevents the State from enforcing a statute that essentially exempts certain private liquor-serving clubs from a statewide prohibition against indoor smoking. Downtown Bar and Grill, LLC (Downtown Bar) is not one of those exempt clubs and obtained the injunction on equal protection grounds. We transferred the State’s appeal from the Court of Appeals under K.S.A. 20-3018(c).
We reverse and remand to the trial court because Downtown Bar is unable to establish an element essential to issuance of a temporary injunction: a substantial likelihood of eventual success on the merits. See Steffes v. City of Lawrence, 284 Kan. 380, 394, 160 P.3d 843 (2007).
Facts
The material facts are not in dispute. In Kansas any organization serving alcohol by tire drink must possess a liquor license. See K.S.A. 41-2601 et seq. The organization may be licensed as a drinking establishment, as a Class B club, or as another entity such as a Class A club under K.S.A. 41-2606. A simple drinking establishment is any “premise[] which may be open to the general public, where alcoholic liquor by the individual drink is sold.” K.S.A. 2010 Supp. 41-2601(i). But a Class B club is a “premise[] operated for profit by a corporation, partnership or individual, to which members of such club may resort for the consumption of food or alcoholic beverages and for entertainment.” K.S.A. 2010 Supp. 41-2601(f).
Downtown Bar is a Class B club in Tonganoxie that acquired its Class B club license on May 4, 2009. Previously it operated as simply a drinking establishment.
Approximately 1 year after Downtown Bar acquired its Class B license, the 2010 legislature enacted House Bill 2221, otherwise known as the Kansas Indoor Clean Air Act, L. 2010, ch. 8, secs. 2-8; K.S.A. 2010 Supp. 21-4009 et seq. Effective July 1, 2010, the Act generally prohibits smoking in public places and places of employment. K.S.A. 2010 Supp. 21-4010(a). But the Act exempts Class B clubs as long as the club (1) was so licensed as of January 1, 2009, and (2) notifies the Secretary of the Kansas Department of Health and Environment in writing, not later than 90 days after July 1, 2010, that it wishes to continue to allow smoking on its premises. The Act states in relevant part:
“(d) The provisions of this section shall not apply to:
“(8) a class A or class B club defined in K.S.A. 41-2601, and amendments thereto, which (A) held a license pursuant to K.S.A. 41-2606 etseq., and amendments thereto, as of January 1, 2009; and (B) notifies the secretary of health and environment in writing, not later than 90 days after the effective date of this act, that it wishes to continue to allow smoking on its premises.” K.S.A. 2010 Supp. 21-4010(d)(8).
Because Downtown Bar was licensed simply as a drinking establishment on January 1, 2009 — and not as a Class B club — it is ineligible for a smoking ban exemption under the Act.
The 2010 session was not the legislature’s first effort to pass House Bill 2221 for enacting a statewide smoking ban. One year earlier, the 2009 legislature failed to pass this legislation, which included the January 1, 2009, “cut-off’ or grandfathering date.
Downtown Bar brought this declaratory judgment action asking the trial court to declare that K.S.A. 2010 Supp. 21-4010(d)(8) and (9) violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and § 1 of the Kansas Constitution Bill of Rights and to accordingly issue temporary and permanent injunctive relief. It argued tire statute differentiates— without a “rational basis connected to its legislative purpose”— between Class B clubs organized before January 2,2009, and Class B clubs like itself that organized after January 1, 2009. The trial court agreed, holding that the cut-off date was arbitrary, which therefore meant it could not be rational. It issued a temporary injunction prohibiting the State’s enforcement of the statute. The State appeals.
More facts will be added as necessary to the analysis.
Analysis
Standard of review
Downtown Bar correctly acknowledges that we ultimately review the granting or denial of an injunction under an abuse of discretion standard. Steffes, 284 Kan. 380, Syl. ¶ 6. And the parties correctly agree that five factors are necessary for issuing a temporary injunction: (1) a substantial likelihood of eventually prevailing on the merits; (2) a reasonable probability of suffering irreparable future injury; (3) the lack of obtaining an adequate remedy at law; (4) the threat of suffering injury outweighs whatever damage the proposed injunction may cause the opposing party; (5) and the impact of issuing the injunction will not be adverse to the public interest. 284 Kan. at 395.
The State argues the trial court erred in finding Downtown Bar had established the first factor: a substantial likelihood that Downtown Bar would eventually prevail on the merits. Reviewing this factor requires us to examine whether the Act may violate Downtown Bar’s rights to equal protection under the law. Our review of this particular question is de novo. See Steffes, 284 Kan. at 388-89 (unlimited review of constitutional challenge to law); see also State v. Gonzalez, 290 Kan. 747, 755, 234 P.3d 1 (2010) (unlimited review of legal conclusions upon which a district court judge’s discretionary decision is based).
We acknowledge that the Fourteenth Amendment to the United States Constitution guarantees equal protection of the laws, and the Kansas Constitution Bill of Rights § 1 provides essentially the same protection. State v. Limon, 280 Kan. 275, 283, 122 P.3d 22 (2005). In reviewing whether K.S.A. 2010 Supp. 21-4010(d)(8) may violate Downtown Bar’s equal protection rights and therefore be unconstitutional, we also consider that
“under the separation of powers doctrine, this court presumes statutes are constitutional and resolves all doubts in favor of a statute’s validity. Courts must interpret a statute in a way that makes it constitutional if there is any reasonable construction that would maintain the legislature’s apparent intent.” Brennan v. Kansas Insurance Guaranty Ass’n, 293 Kan. 446, 450, 264 P.3d 102 (2011) (citing State v. Laturner, 289 Kan. 727, 735, 218 P.3d 23 [2009]).
As a result, we have held that the burden on the party claiming unconstitutionality such as Downtown Bar is a “weighty” one. See Steffes, 284 Kan. at 388. Our analysis will not address the constitutionality of subsection (d)(9) because Downtown Bar has abandoned that argument in its brief. See Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008) (A point raised only incidentally in a party’s brief but not argued in the brief is deemed abandoned.).
Discussion
We recently reiterated our stair-step analysis of an equal protection claim in Board of Miami County Comm'rs v. Kanza Rail-Trails Conservancy, Inc., 292 Kan. 285, 315-16, 255 P.3d 1186 (2011):
“The first step of an equal protection analysis is to determine the nature of the legislative classifications and whether the classifications result in arguably indistinguishable classes of individuals being treated differently. . . .
“After determining the nature of the legislative classifications, a court examines the rights which are affected by the classifications. The nature of the rights dictates the level of scrutiny to be applied. [Citations omitted.] . . .
“The final step of the analysis requires determining whether the relationship between the classifications and the object desired to be obtained withstands the applicable level of scrutiny. [Citation omitted.]”
Each of the three steps will be analyzed in turn.
Issue 1: Class B clubs formed before January 2, 2009, are similarly situated to Class B clubs formed after January 1, 2009.
The parties do not dispute, and we agree, that a Class B club formed before January 2, 2009, is similarly situated to a Class B club such as Downtown Bar formed after January 1,2009. All Class B clubs are subject to the same directives of liquor sale regulation, regardless of their date of formation. See K.S.A. 41-2601 et seq. (regulation of liquor sales entities not based on date of formation).
Issue 2: The Act does not implicate fundamental rights or suspect classes.
Both federal and Kansas law identify three levels of scrutiny that may be applied in equal protection claims:
“(1) the rational basis standard to determine whether a statutory classification bears some rational relationship to a valid legislative purpose; (2) the heightened or intermediate scrutiny standard to determine whether a statutory classification substantially furthers a legitimate legislative purpose; and (3) the strict scrutiny standard to determine whether a statutory classification is necessary to serve some compelling state interest.” Miami County, 292 Kan. at 316 (citing Limon, 280 Kan. at 283-84).
Which particular level of scrutiny will apply depends upon the nature of the rights involved.
The State contends the trial court was correct to apply the rational basis test. Downtown Bar essentially agrees: its petition exclusively alleged a lack of rational basis. But it asks us to apply the test with a twist. It specifically contends that the “rational basis is appropriate, but that standard is not a bright-line rule. There are nuances in any equal protection analysis, even under rational basis.” It proceeds to assert that “rational” means “logical,” and not just “any speculative zany idea that the legislature may have had in mind.” Downtown Bar further argues that “as demonstrated in [Farley v.] Engelken [241 Kan. 663, 740 P.2d 1058 (1987)], rational basis is not a 'toothless remedy.’ If it is interpreted to mean just any basis at all, it is a meaningless concept.” (Emphasis added.)
We agree that the appropriate standard is the rational basis test. Class B clubs are not a suspect class. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 326, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003) (strict scrutiny test for discrimination by race as suspect class); United States v. Virginia, 518 U.S. 515, 532-33, 116 S. Ct. 2264, 135 L. Ed. 2d 735 (1996) (heightened scrutiny test for discrimination by gender as quasi-suspect class). And as the State notes, smoking is not a fundamental right. See Dunn v. Blumstein, 405 U.S. 330, 342, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972) (strict scrutiny test for discrimination involving fundamental rights of voting and interstate travel). As we said in State v. Stallings, “if the legislative classification does not target a suspect class or burden a fundamental right, the court applies a rational basis test.” 284 Kan. 741, 751, 163 P.3d 1232 (2007) (citing Limon, 280 Kan. at 284).
Furthermore, Downtown Bar effectively acknowledges that the ban concerns social legislation when its brief concedes that “health concerns motivated the legislature to adopt the general statewide smoking ban.” And we observe that “[t]he rational basis test has traditionally been applied where equal protection challenges have been brought against social . . . legislation.” KPERS v. Reimer & Koger Assocs., Inc., 261 Kan. 17, 42, 927 P.2d 466 (1996).
For several reasons, we must also reject Downtown Bar’s specific suggestion that we apply a nuanced rational basis test. First, the analysis in Farley, 241 Kan. 663, is inapplicable. Farley involved the right to a remedy for medical malpractice victims — who the principal opinion held were as politically powerless as the traditional “suspect” and “semi-suspect” classifications, “e.g., minorities, women, illegitimates, and aliens.” 241 Kan. at 672. The principal opinion reasoned that because those traditional classifications were entitled to a more rigorous scrutiny than the rational basis test, tiren the malpractice victims were similarly entitled. But this “heightened scrutiny” standard was adopted only by the two justices in the principal opinion. It was specifically rejected by the two justices in the concurring opinion and by the three remaining justices in the dissent. And second, despite Downtown Bar’s con- cems, our rational basis calculus discussed below does not approve as constitutional “any speculative zany idea” or “just any basis at all.”
Issue 3: The distinction between Class B clubs formed before January 2,2009, and those formed after January 1,2009, has a rational relationship to the statewide smoking ban.
We have recognized that the rational basis standard is a “very lenient standard.” Peden v. Kansas Dept. of Revenue, 261 Kan. 239, 258, 930 P.2d 1 (1996), cert. denied 520 U.S. 1229 (1997). And we defined the limits of this very lenient standard in Miami County, 292 Kan. at 316-17:
“Where, as in this case, a party attacks a statute as facially unconstitutional under the Equal Protection Clause for failing to satisfy the rational basis standard, the party must demonstrate that ‘no set of circumstances exist’ that survive constitutional muster. Injured Workers of Kansas [v. Franklin], 262 Kan. [840,] 850[, 942 P.2d 591 (1997)]. For this reason, it is not enough to ‘[s]imply point[ ] out that [a statute] might not be rationally related to the state objectives sought under one set of facts.’ Injured Workers of Kansas, 262 Kan. at 851. Instead, a party ‘asserting the unconstitutionality of a statute under the rational basis standard “ha[s] the burden ‘to negative every conceivable basis which might support [the classification].’ ” ’ [Citations omitted.]” (Emphasis added.)
As the United States Supreme Court has succinctly explained: “A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” McGowan v. Maryland, 366 U.S. 420, 426, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961). So “[i]t is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature. [Citation omitted.]” In re Tax Appeal of Weisgerber, 285 Kan. 98, 108-09, 169 P.3d 321 (2007).
At oral argument before this court, counsel for Downtown Bar conceded that if we apply a rational basis test without his requested nuances, he cannot meet his burden. In other words, he cannot “negative every conceivable basis which might support the statutory classification” in the smoking ban. See Miami County, 292 Kan. at 316. As explained below, we agree.
We continue our analysis by acknowledging that Downtown Bar presents the issue for our resolution as simply whether it was de nied equal protection of the law by the Act’s cut-off or grandfathering date of Januaiy 1, 2009. Downtown Bar does not challenge the objective of the bill, i.e., the State may promote its interest in the health and safety of its citizens by reducing exposure to secondhand smoke. Nor does it challenge the fact of grandfathering.
Given this narrowing, the State suggests two conceivable bases support the Januaiy 1, 2009, cut-off or grandfathering date. First, it alleges this date is rationally related to the State’s legitimate interest in protecting the reliance interest of older clubs, citing New Orleans v. Dukes, 427 U.S. 297, 96 S. Ct. 2513, 49 L. Ed. 2d 511 (1976). Second, it contends tire date is rationally related to the State’s legitimate interest in preventing mere drinking establishments from circumventing the smoking ban. The State alleges that absent this cut-off date, they could circumvent by (1) reorganizing as Class B clubs during the pendency of the legislation, i.e., before the ban took effect on July 1, 2010, and then (2) electing to continue to allow smoking on their premises.
We start with the second conceivable basis alleged by the State. The State points out that the 2009 legislature tried to pass the same legislation — a statewide smoking ban (including drinking establishments) that nevertheless allowed exemptions for Class B clubs in existence before January 1, 2009. The Januaiy 1 cut-off therefore could have prevented drinking establishments from circumventing the ban by converting to Class B club status during the pendency of the 2009 legislation. The State reasons that drinking establishments therefore would know that such legislation could be revived during the 2010 legislative session. So the State contends that such drinking establishments, essentially given a reprieve by the legislative failure in 2009, could try to circumvent the anticipated ban by converting to Class B club status before the legislature did pass such a law in 2010. According to the State’s logic, the 2010 legislature’s retention of the January 1, 2009, cut-off continued to prevent that circumvention.
In support of this purported conceivable basis, the State first points out that as of June 23, 2010, Kansas had 1,814 “drinking establishments.” And as of 1 week later, all of them would be statutorily required to be smoke-free. The State next points out that by June 23, 2010, Kansas had 127 Class B clubs, an increase of nearly 30 percent from January 1, 2009. The State concludes that the increase demonstrates its point: The 2010 legislature conceivably could have kept the January 1, 2009, date to prevent those 1,814 drinking establishments from reorganizing as Class B clubs and thus circumventing the smoking ban before it could ever take effect.
In granting Downtown Bar injunctive relief, the trial court first made a ruling consistent with the State’s position. It held that the January 1, 2009, date arose during the 2009 legislative session as an attempt to prevent entities like drinking establishments from rushing to seek club status:
“What more likely seems to be the case is that the occurrence arises from a history of the substance of the text for H.B. 2221, which text was inserted in H.B. 2221 by the Senate in 2009 and passed. . . . Thus, in a bill drafted ... for passage in 2009 to carry a cut-off date for the grandfathering of class A and class B clubs as of the beginning of that year [2009] when the bill was intended to be passed that year seems rational in assuring or preventing a rush to club status by, for example, ‘drinking establishments.’ ” (Emphasis added.)
But the court then disagreed with the State’s other principal point. It held that because the January 1, 2009, date was simply left over from the failed legislative attempt in 2009, the date was wholly arbitrary and therefore unable to provide a rational basis for the 2010 Act.
“However, as noted, the bill was not passed in 2009, but rather was resurrected and reenrolled on February 26, 2010. Counsel associated with Intervenors indicated it then passed the Kansas House of Representatives on a procedure providing for no amendments. Thus, what had been intended in 2009 and had ‘died’ and which provided a short window for grandfathering class A and class B club status became one of over one year by the 2010 passage.
“While citizens are deemed to know the law, they are not deemed to know what their legislature is doing. Thus, to consider the basis for the distinction, represented by the exemption date, as justifiable as a more or less ‘put on notice’ provision is not a fair or rational assumption. The result is that January 1, 2009, cut off for class A and class B exemption from the state wide smoking ban seems, at best, an unintended consequence, and nevertheless, wholly arbitrary because this particular date, other than by its existence, finds no rational basis for its selection. Accordingly, until this aspect of the ban is further examined, a temporary injunction should issue in favor of Plaintiff, Downtown Bar and Grill.” (Emphasis added.)
In agreeing with the trial court that the cut-off date was arbitrary and therefore could have no rational basis connected to the smoking ban, Downtown Bar contends the State has produced no evidence that the 2010 legislature actually chose the January 1, 2009, date to prevent drinking establishments from circumventing the ban. But no such evidence is necessary. “ ‘[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.’ ” (Emphasis added.) Peden, 261 Kan. at 263 (quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 315, 113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993). And instead of a State obligation to provide evidence, it was Downtown Bar’s obligation to negative every conceivable basis for the cut-off date of January 1, 2009. See Miami County 292 Kan. at 316-17.
Turning to the trial court’s holding, we start with its conclusion that the January 1,2009, cut-off date in the 2009 legislation “seems rational in assuring or preventing a rush to club status by, for example, ‘drinking establishments’ ” so they could not seek exemption from the smoking ban during the pendency of the legislation. A cut-off date earlier tiran the effective date of the 2009 bill becoming law — typically upon its publication in the Kansas Register or on July 1 of the year the bill is passed by the legislature — was apparently acceptable to the trial court. And we agree.
We disagree, however, with the trial court’s next conclusion that the January 1, 2009, cut-off date stopped being rational merely because it was not independently — or deliberately — -“selected” by the 2010 legislature. If the 2009 legislature conceivably chose the January 1, 2009, date as a cut-off — which would eliminate any incentive to rush to Class B club status during tire pendency of the 2009 legislation — then it is exceedingly difficult, if not impossible, to conclude that the 2010 legislature could not conceivably have retained that same cut-off date for the same reason during its own session. See Peden, 261 Kan. at 263 (legislative choice may be based on rational speculation). And under these circumstances, courts certainly do not ask whether they would have chosen that particular date for the 2010 Act. See Beach Communications, Inc., 508 U.S. at 313 (“[E]qual protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.”)- As the Supreme Court has stated, such “restraints on judicial review have added force where the legislature must necessarily engage in a process of line-drawing.’[Citation omitted.]” 508 U.S. at 315.
Under these circumstances, we must conclude tire trial court erred in holding that Downtown Bar established a substantial likelihood that it would eventually succeed on the merits of its equal protection claim. Miami County, 292 Kan. at 317 (burden to negative every conceivable basis which might support the classification). Because this element is an essential predicate for a temporary injunction, the trial court erred in its issuance. See Steffes v. City of Lawrence, 284 Kan. 380, 394, 160 P.3d 843 (2007). Given this analysis, we need not review any other conceivable bases for the cut-off date, e.g., protecting reliance interests of older clubs.
We therefore reverse and remand to the trial court for proceedings consistent with this opinion. Cf. Augusta Medical Complex, Inc. v. Blue Cross, 227 Kan. 469, 473, 608 P.2d 890 (1980) (held an abuse of discretion for trial court to grant temporary injunction requiring appellant to continue to carry out contract terms when under agreed facts, as a matter of law, appellant had right to terminate the contract and did so; reversed and remanded). | [
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The opinion of the court was delivered by
Rosen, J.:
Mark Frecks pleaded guilty to two counts of off-grid aggravated indecent liberties with a child, pursuant to a plea agreement in which the State agreed to dismiss a third count and stand silent at sentencing. Frecks asked that the Jessica’s Law life sentences with 25-year mandatory mínimums run concurrently, but the district court judge imposed two consecutive life sentences with no possibility of parole for 50 years. We first consider whether this court has jurisdiction to review the imposition of consecutive life sentences for the aggravated indecent liberties. Because this court has jurisdiction, we review whether the district court abused its discretion in imposing consecutive life sentences in this case.
Factual Background
On November 26, 2009, Mark Frecks engaged in the lewd fondling and touching of K.C., a child under the age of 14, with the intent to arouse himself. In February of 2010, Frecks engaged in similar acts with D.K., a child under the age of 14. Both victims were cousins of Frecks. On November 2, 2010, Frecks entered a guilty plea to two counts of aggravated indecent liberties. Pursuant to the plea agreement, the State dismissed a third count of aggravated indecent liberties against a third child, which alleged similar conduct.
At sentencing, Frecks requested that the sentences run concurrently. The State was silent regarding the recommendation for sentence, as provided in the plea agreement. The victims’ parents made statements to the court regarding the impact of the crimes on their children. The court imposed two consecutive life sentences without possibility of parole, for a total of 50 years.
Did the District Court Abuse Its Discretion When It Ordered Frecks to Serve Consecutive Sentences?
Frecks argues that the district court abused its discretion by ordering that the sentences run consecutively. The State urges this court to follow State v. Ware, 262 Kan. 180, Syl. ¶ 4, 938 P.2d 197 (1997), and State v. Flores, 268 Kan. 657, 999 P.2d 919 (2000), and hold that this court is without jurisdiction to consider this issue. If this court has jurisdiction, the State argues that the district court did not abuse its discretion.
Jurisdiction
Generally, consecutive sentences imposed under the Kansas Sentencing Guidelines are presumptive sentences which are not subject to review by this court. This court conducts a de novo review of the governing statutes to determine whether this court has jurisdiction to consider an issue. State v. Ortega-Cadelan, 287 Kan. 157, 163, 194 P.3d 1195 (2008).
The State acknowledges that this court held that it had jurisdiction to consider whether the trial court abused its discretion in denying a criminal defendant’s motion to depart from the life sentence with a 25-year mandatory minimum imposed pursuant to K.S.A. 2006 Supp. 21-4643(a) in Ortega-Cadelan, 287 Kan. at 164. In Ortega-Cadelan, this court held that such a life sentence was not a presumptive sentence within the meaning of K.S.A. 21- 4721(c)(1) and was, therefore, renewable by the appellate courts. The court explained it this way:
“The Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 etseq., defines a defendant’s right to appeal from his or her sentence and, as applicable to this issue, provides that ‘the appellate court shall not review: (1) Any sentence that is within the presumptive sentence for the crime.’ K.S.A. 21-4721(c)(l). The KSGA defines ‘presumptive sentence’ as ‘the sentence provided in a grid block for an offender classified in that grid block by the combined effect of the crime severity ranking of the current crime of conviction and die offender’s criminal history.’ K.S.A. 21-4703(q). Ortega-Cadelan’s sentence does not meet the K.S.A. 21-4703 definition of ‘presumptive sentence,’ as his sentence was not issued'pursuant to a number in a grid block. Under tíre circumstances of this case, dre KSGA grid was inapplicable. Moreover, K.S.A. 2006 Supp. 21-4706(d) characterizes Ortega-Cadelan’s offense as an ‘off-grid [crime] for the puiposes of sentencing.’ Thus, dre State’s jurisdictional argument is misguided; we hold that this court has jurisdiction to review a sentence imposed pursuant to K.S.A. 2006 Supp. 21-4643(a).” 287 Kan. at 163-64.
Without addressing the jurisdiction question, this court has reviewed consecutive life sentences imposed for other off-grid crimes. In State v. Vanderveen, 259 Kan. 836, 843, 915 P.2d 57 (1996), the court held that the trial court did not abuse its discretion in imposing consecutive life sentences for two counts of first-degree premeditated murder. This court recently reviewed the imposition of consecutive life sentences that resulted from felony-murder convictions in State v. Morris, No. 102,051, 2010 WL 2816241 (Kan. 2010) (unpublished opinion). In Morris, the court stated that “[tjhis court has jurisdiction under K.S.A. 22-3601(b)(1) (conviction for an off-grid crime; life sentence).” 2010 WL 2816241, at *2:
Certain of our cases holding that this court has no jurisdiction to review consecutive sentences have included one off-grid life sentence among the sentences run consecutively. In Ware, the court held that it did not have jurisdiction to review the defendant’s consecutive sentences of life (for felony murder) and 49 months (for aggravated robbeiy). 262 Kan. at 184. Similarly, in Flores, the court held that it did not have jurisdiction to review the defendant’s consecutive sentences of fife (for felony murder) and 34 months (for attempted voluntary manslaughter). 268 Kan. at 658, 660; see also State v. Jacobs, 293 Kan. 465, 466, 263 P.3d 790 (2011) (in context of rejecting appellate jurisdiction over consecutive combination of grid sentence and sentence arrived at after departure from Jessica’s Law mandatory minimum, Jessica’s Law sentence described as “presumptive”); State v. Whetstone, No. 104,413, 2012 WL 1253204 (Kan. 2012) (unpublished opinion) (same). The State’s reliance on these combination cases is misplaced here, because the only consecutive sentences under review in this case are off-grid hfe sentences.
Here, Frecks was sentenced to two life sentences pursuant to K.S.A. 21-4643(a). Like the crimes considered in Ortega-Cadelan, both of Frecks’ convictions are for off-grid offenses. Following Ortega-Cadelan, this court has jurisdiction to consider whether the district court abused its discretion in running these off-grid hfe sentences consecutively.
Standard of Review
“Generally, it is within the trial court’s sound discretion to determine whether a sentence should run concurrent with or consecutive to another sentence.” State v. Jamison, 269 Kan. 564, 576, 7 P.3d 1204 (2000). In State v. McMullen, 290 Kan. 1, 10, 221 P.3d 92 (2009), we held that the district court had the authority to impose consecutive sentences for two counts of off-grid aggravated indecent liberties with a child under age 14. In State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012), this court gave the standard of review for an abuse of discretion as:
“Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” 292 Kan. at 550.
Analysis
The sentencing judge did not provide specific reasons for imposing consecutive hfe sentences in this case, saying only: “Based upon the plea negotiations and the allegations involving and sur rounding the plea and the filing documents, these will run consecutive to one another.” But the plea agreement provided that the State would stand silent at sentencing, while Frecks reserved his right to request concurrent sentences.
The State argues that the sentencing judge was particularly affected by the fact that there were two separate victims who had been molested on different dates and that a third count, involving a third victim, had been dismissed during plea negotiations. Frecks argues that the following factors supported concurrent sentencing: (1) He took responsibility for his actions and entered guilty pleas; (2) he prevented the victims from being traumatized by a trial; (3) he saved the State the expense of a trial; and (4) he had no criminal history.
“It is the sentencing judge alone who determines the appropriate sentence to be imposed or other disposition of the case by exercising his or her best judgment, common sense, and judicial discretion after considering all of the reports, the defendant’s background, the facts of the case, and the public safety. A sentence imposed within tire statutory guidelines will not be disturbed on appeal if it is within the trial court’s discretion and not a result of partiality, prejudice, oppression, or corrupt motive.” Vanderveen, 259 Kan. at 842-43.
While it is certainly the better practice for the district court to include an explanation of its reasons when it imposes consecutive life sentences, a sentencing judge’s failure to engage in a lengthy colloquy does not amount to an abuse of discretion. Here, the sentencing judge did provide minimal justification for the decision to impose the life sentences consecutively. Reasonable people may disagree as to whether the sentences should have been imposed consecutively or concurrently; however, under the facts of this case, it was not an abuse of discretion to impose the life sentences consecutively.
Aifirmed. | [
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The opinion of the court was delivered by
Nuss, C.J.;
Douglas Heronemus appeals the district court’s summary denial of his motion to correct an illegal sentence filed 18 years after his convictions were affirmed on direct appeal. Our jurisdiction is under K.S.A. 22-3601(b)(3) (maximum sentence of life imprisonment imposed). The issues on appeal, and our accompanying holdings, are as follows:
1. Did the district court err in summarily denying Heronemus’ motion without appointing counsel and conducting an evi-dentiary hearing? No.
2. Did Heronemus receive an illegal sentence? No.
Accordingly, the district court is affirmed.
Facts
In 1989 J.M. responded to an ad for a part-time secretarial position with defendant Douglas Heronemus’ telemarketing business. She was hired and asked to begin work that same night. She testified that while at work in the early evening, Heronemus removed her clothes and forced her to have sexual intercourse. He then forced her to remain naked while working and eventually subjected her to anal intercourse. Heronemus testified that all these acts were consensual.
A jury convicted Heronemus of one count of rape and one count of aggravated criminal sodomy, both class B felonies. See K.S.A. 21-3502(2) (Ensley 1988); K.S.A. 21-3506(2) (Ensley 1988). Under the indeterminate sentencing scheme then in effect, class B felonies required a minimum prison term of between 5 and 15 years and a maximum term of 20 years to life. See K.S.A. 21-4501(b) (Ensley 1988). At the time of these 1989 crimes, Heronemus was on parole for a 1984 aggravated batteiy conviction. Because of this prior conviction, the State requested application of the Habitual Criminal Act (HCA), K.S.A. 21-4504 (Ensley 1988), which granted the district court certain discretionary authority to increase the sentences.
The court agreed. Per the HCA, it doubled the highest minimum term (15 years) of Heronemus’ sentence for his 1989 rape conviction, resulting in a sentence of 30 years to life. It also doubled the lowest minimum term (5 years) and maximum term (20 years) for his 1989 aggravated sodomy conviction, resulting in a sentence of 10 to 40 years. See K.S.A. 21-4504(a)(l), (2) (Ensley 1988). The court additionally ordered these two 1989 sentences to run consecutively per its discretionary authority granted by K.S.A. 21-4608(a) (Ensley 1988). The court further ordered those two sentences to run consecutive to the sentence in Heronemus’ 1984 conviction, as required by K.S.A. 21-4608(3) (Ensley 1988). We affirmed Heronemus’ convictions on direct appeal. State v. Heronemus, No. 64,464, unpublished opinion filed April 12, 1991.
After pursuing various habeas corpus remedies, in April 2009 Heronemus filed a pro se motion to correct an illegal sentence under K.S.A. 22-3504. The district court summarily denied the motion without holding an evidentiary hearing or appointing counsel. Heronemus now appeals.
Analysis
Issue 1: The district court did not err in its summary procedures.
When, as here, a district court summarily denies a motion to correct an illegal sentence under K.S.A. 22-3504, our standard of review is de novo “because appellate courts have the same access to the motion, records, and files as the district court.” State v. Howard, 287 Kan. 686, 691, 198 P.3d 146 (2008). Like the district court, we are then asked to determine if these same documents “conclusively show that he is entitled to no relief.” State v. Neal, 292 Kan. 625, 629, 258 P.3d 365 (2011).
Additionally, K.S.A. 22-3504 only applies when a sentence is illegal. State v. Pennington, 288 Kan. 599, 601, 205 P.3d 741 (2009). The question of whether a sentence is illegal is a question of law over which this court has unlimited review. Neal, 292 Kan. at 630. A sentence is illegal if it is a sentence imposed by a court without jurisdiction; a sentence that does not conform to statutory provisions, either in the character or the term of the punishment authorized; or a sentence that is ambiguous with respect to the time and manner in which it is to be served. Howard, 287 Kan. at 691.
Heronemus argues that the district court erred as a matter of law in denying his motion without first appointing counsel and conducting an evidentiary hearing. He contends that the plain language of K.S.A. 22-3504 unambiguously grants a defendant these rights, i.e., it bars any summary disposition of a motion to correct an illegal sentence. We have previously, and explicitly, rejected this pure legal argument, and Heronemus presents no new arguments persuading us to revisit those decisions. See State v. Conley, 287 Kan. 696, 703, 197 P.3d 837 (2008); State v. Hoge, 283 Kan. 219, 223-24, 150 P.3d 905 (2007); State v. Edwards, 281 Kan. 1334, 1342-43, 135 P.3d 1251 (2006). Because he does not argue that his particular motion raises any other substantial questions of law or fact, we need not further determine whether the district court was wrong to hold otherwise. See Howard, 287 Kan. at 690 (if district court determines that motion to correct an illegal sentence does not raise substantial issues of law or fact, motion maybe summarily denied).
Issue 2: Heronemus received a legal sentence.
Heronemus next argues that the district court erred in denying his motion to correct an illegal sentence on the merits because the 1989 court impermissibly used his 1984 aggravated battery conviction to twice enhance his sentences. He does not elaborate but would appear to contend his sentence was illegal because it does not conform to statutoiy provisions, either in the character or the term of the punishment authorized. See Howard, 287 Kan. at 691.
Heronemus’ brief concedes that because he committed felonies while on parole, the district court “was required to . . . run” his sentences for the 1989 rape and aggravated sodomy convictions consecutive to the sentence for his 1984 conviction. We agree because K.S.A. 21-4608(3) (Ensley 1988) clearly provides that “[a]ny person who is convicted and sentenced for a crime committed while on . . . parole ... for a felony shall serve the sentence consecutively to tire term or terms under which the person was on . . . parole.” (Emphasis added.) He characterizes this action as a sentence enhancement and contends that the court’s additional use of the 1984 conviction to increase his sentences under the HCA (K.S.A. 21-4504 [Ensley 1988]) ran afoul of “the prohibition against using a single conviction to enhance or increase a defendant’s sentence multiple times.” He does not provide any citations in support.
The State suggests, however, that Heronemus may be referring to the prohibition against enhanced sentences for conviction of second and subsequent felonies — otherwise allowed by the HCA— that is contained in K.S.A. 21-4504(d) (Ensley 1988). Subsection (d) provides:
“(d) “The provisions of this section shall not be applicable to:
(1) Any person convicted of a felony of which a prior conviction of a felony is a necessaiy element;
(2) any person convicted of a felony for which a prior conviction of such felony is considered in establishing the class of felony for which the person may be sentenced.”
The State then essentially argues that this statutory prohibition is inapplicable to Heronemus’ situation:
“Contrary to defendant’s position, his sentence in the instant case was not ‘enhanced’ merely because it was ordered consecutive to his prior conviction [under K.S.A. 21-4608(3) (Ensley 1988)]. Nothing in K.S.A. 21-4504[d] [Ensley 1988] restricts the application of the Habitual Criminal Act where a sentence is ordered consecutive to a prior conviction.”
We reject the prohibition argument made by Heronemus for several reasons. First, Heronemus certainly has not cited any authority to support his allegation of the prohibition’s existence or otherwise provided any argument on why the prohibition should be adopted. See State v. Gleason, 277 Kan. 624, 655, 88 P.3d 218 (2004) (simply pressing a point without pertinent authority, or without showing why it is sound despite a lack of supporting authority, is akin to failing to brief an issue; where appellant fails to brief an issue, that issue is waived or abandoned).
Second, subsection (d) of K.S.A. 21-4504 (Ensley 1988) — as helpfully suggested and then abruptly rejected by the State — is of no support to Heronemus. None of its prohibitory scenarios apply to him. He was not convicted of a felony in 1989 “of which a prior conviction of a felony is a necessary element,” and the 1984 conviction was not considered in establishing the class of felony for his 1989 convictions. Contrast State v. LaBelle, 290 Kan. 529, 534-36, 231 P.3d 1065 (2010) (sentencing court used same conviction to compute criminal history score and to classify defendant as persistent sex offender, which also increased his sentence; we held this violated K.S.A. 21-4710[d][ll], which prohibits counting prior convictions in calculating criminal history when they have also been used to enhance applicable penalties).
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The opinion of the court was delivered by
Beier, J.:
This appeal and cross-appeal concern a dispute over retail pricing practices by a fashion accessories company.
Named plaintiff Sue O’Brien and a class of similarly situated consumers (O’Brien) sued the maker of Brighton handbags, other accessories, and luggage, defendant Leegin Creative Leather Products, Inc. (Brighton), alleging violations of the Kansas Restraint of Trade Act (KRTA), K.S.A. 50-101 et seq. We understand O’Brien to contend that Brighton’s practices as a wholesale supplier and retailer constituted illegal price-fixing in violation of K.S.A. 50-101 and K.S.A. 50-112, entitling her and other class members to recovery under K.S.A. 50-108, K.S.A. 50-115, K.S.A. 50-147, and K.S.A. 50-161.
Brighton moved for summary judgment in the district court. In the alternative, it sought partial summary judgment and moved to decertify the class. District Judge Jeffrey E. Goering granted Brighton’s motion for summary judgment, granted its motion for partial summary judgment in part, and did not reach the issue of decer-tification.
O’Brien appealed, and Brighton cross-appealed. We transferred this matter from our Court of Appeals on O’Brien’s unopposed motion. We reverse and remand to the district court for further proceedings consistent with the rulings below.
Issues
We have reformulated and reorganized the questions presented by the parties for ease and flow of analysis. The six questions are:
(1) Did the district judge correctly interpret the KRTA on the issue of “antitrust injury”?
(2) Did the district judge err in relying on a “rule of reason” to evaluate whether there has been a violation of the KRTA?
(3) Does this case involve a claim for horizontal price-fixing as well as vertical price-fixing, and, if so, was summary judgment on that claim properly granted by the district judge?
(4) Did the district judge identify the correct statute of limitations applicable to a treble damages claim and to a full consideration claim under the KRTA?
(5) Did the district judge correctly determine that an explicit written agreement with each retailer was not a necessary prerequisite to liability under the KRTA?
(6) Did the district judge properly evaluate predominance when granting class certification?
Introduction
Before we set forth the pertinent factual and procedural background, a brief review of basic principles governing the relationship between Kansas and federal antitrust law and the types of price-fixing that can occur is in order.
Although there are federal antitrust statutes, e.g., the Sherman Act, 15 U.S.C. § 1 (2006) et seq., and a large body of interpreting caselaw, antitrust law has traditionally been the province of the states. McShares, Inc. v. Barry, 266 Kan. 479, 488-89, 970 P.2d 1005, cert. denied 526 U.S. 1158 (1998) (citing California v. ARC America Corp., 490 U.S. 93, 109 S. Ct. 166, 104 L. Ed. 2d 86 [1989]). In addition, we have noted in the past that federal antitrust law is intended to supplement the remedies available under Kansas law, not to replace Kansas antitrust provisions. 266 Kan. at 488-89.
Kansas antitrust law under the KRTA, originally enacted in 1897, remains largely undeveloped; very few cases have reached this court. See Bergstrom v. Noah, 266 Kan. 829, 843, 974 P.2d 520 (1999). We have observed generally that the KRTA is broad in scope but that the bulk of its provisions have not been meaningfully interpreted by Kansas courts. 266 Kan. at 843.
While the KRTA and federal antitrust statutes share some similarities, they are not, in fact, the same. 266 Kan. at 844. Thus, “[w]hile . . . cases [interpreting federal antitrust statutes] may be persuasive authority for any state court interpreting its antitrust laws, such authority is not binding upon any court in Kansas interpreting Kansas antitrust laws.” 266 Kan. at 845.
In relation to price-fixing practices specifically, this court concluded more than 50 years ago that it “may not substitute [its] judgment for that of the legislature as to whether price fixing is good or bad for the economic life of the state.” Quality Oil Co. v. du Pont & Co., 182 Kan. 488, 495, 322 P.2d 731 (1958). It is the role of the legislature, not this court, to set antitrust policy.
This case concerns allegations that defendant engaged in price-fixing. Price-fixing maybe either “vertical” or “horizontal.” Vertical price-fixing involves participants at different rungs of the distribution ladder, e.g., a wholesaler and a retailer. Horizontal price-fixing involves participants who are at the same rung of the distribution ladder, e.g., two or more retailers. See Black’s Law Dictionary 1227-28 (8th ed. 2004).
Factual and Procedural Background
The bulk of the following facts are taken from District Judge Goering’s findings of uncontroverted fact. Neither party challenges these facts on this appeal, making them conclusive for our purposes. See McShares, Inc., 266 Kan. at 480.
Brighton’s Business
Brighton is a designer, manufacturer, and retailer of fashion accessories and luggage. It primarily markets its accessories to independent retailers, but it also maintains retail stores of its own called “Brighton Collectibles.” The first Brighton Collectibles store opened in 1999, and there are now more than 100 stores nationwide. A substantial portion of Brighton’s profits come from its own retail stores.
Brighton’s Pricing Practices
Since April 1997, Brighton has provided its retailers with copies of its suggested pricing and promotional policy. Brighton’s policy calls for retailers to sell Brighton products at “keystone,” which is an amount equal to twice wholesale plus a small amount that varies by product. Under the policy, retailers may discount out-of-season products and products that are not selling well that the retailer will not reorder. Brighton ships its products to its retailers with tags displaying the manufacturer’s suggested retail price (MSRP). For at least 1 year, Brighton required its retailers to initial and sign an acknowledgement that a violation of its pricing policy was grounds for dismissal.
According to Jerry Kohl, Brighton’s owner and president, Brighton’s pricing policy was not adopted to thwart competition from other manufacturers of similar products. When asked if he had thought about how the pricing policy affected the profitability of retail sales of the Brighton line, Kohl responded that he had not thought about it. Further, Laura Young, Brighton’s second-in-command, said that prices were set without regard to retailers’ profits. Brighton admits that its pricing policy was not created in response to any problem with retailers failing to provide desired service to customers. It has made certain of its decisions about its pricing policies after consulting with its retailers, such as when “birthday club” discounting was approved.
Many retailers of Brighton products have advertised discounts of Brighton products, but it is unclear which, if any, of these advertisements violated Brighton’s pricing policy. Young stated in her affidavit:
“Since the promulgation of the universal retail price policy, Brighton has never undertaken any systematic, comprehensive effort aimed at determining whether its retailers are following that policy. But Brighton from time to time has acquired information from various sources (e.g., consumers, other retailers, advertisements, and Brighton’s sales force), to the effect that some Brighton retailers are or might be violating the suggested retail price policy, and Brighton has occasionally enforced that policy against retailers in states other than Kansas by refusing to deal with retailers believed to have intentionally violated Brighton’s policy.”
Kohl also testified in his deposition that Brighton sometimes becomes aware of retailers selling products at prices other than the MSRP. Kohl further testified that Brighton keeps reports documenting customer inquiries, including those about Brighton’s pricing policies. Kohl testified:
“Q: . . . And one of tire things you do with the reports is keeping [sic] track of whether or not the particular retailer is complying with the pricing policy of [Brighton]?
“A: Well, that’s a big stretch. I surely wouldn’t call it that. We keep comments regardless of what they might be, everything from talk to Joe about a handbag was damaged. So we keep comments that people give us.
“Q: Those comments include whether or not the retail customer of [Brightonj’s is discounting or is not following the pricing policy; is that a fair statement?
“A: Well, again, I wouldn’t put it the way you did. You know, there are times when there’s comments about pricing policies, but to say they include them implies that it’s a regular situation. And the answer is no, it isn’t.
“Q: Well, if a retailer was abiding by the pricing policy, there wouldn’t be any need to put information like that in an inquiry report.
“A: That’s correct.
“Q: And your point is most of die retailers comply witii the retail pricing policies of [Brighton]?
“A: As far as I know, yes.
“Q: And diose who don’t, when you find out about it, are terminated, correct?
“A: Those who don’t and who are aware of our pricing policy and is [sic] willfully disregarding our pricing policy, yes, they are terminated or I should say put on hold until we malee a decision on what we’re going to do.”
In the past, Brighton has rejected at least one promotion for violating its retail price maintenance policy. When rejecting the promotion, a proposed shoe trade-in, Young stated in an email:
“. . . . Did someone tell you it was ok to do this?
“The reason I ask is this will spread like cancer . .. one person does it. .. sells more shoes tiran normal. And they and you tell more people and before you know it the world will be holding their own shoe trade in.
“It cannot be an individual store authorize [sic] event. We have a very clear SRP (Suggested Retail Pricing Policy) and this would be in violation of it. . . .
“SO, please no matter what/who said its ok, it’s not.”
Young also expressed the following in another email:
“[W]hen one store begins to lure customers in with an incentive for purchasing . . . the next store thinks they need to ‘one up’ the competition, and then the third customer needs to ‘two up them both’ and so on . . . and after a while it’s out of control. What happens is the customers then get confused on if they need to wait for the best offer to purchase Brighton.
“Our Suggested Retail Pricing and Promotional Policy basically was designed to create an environment for the consumer to shop with confidence that they were being treated fairly. We have always wanted consumers to be able to feel that wherever Brighton is sold — authorized dealers — they can buy now! And not worry if they’re getting the ‘best deal.’ ”
One of O’Brien’s experts was Gregory T. Gundlach, Professor of Marketing and Senior Fellow at the American Antitrust Institute. He asserted in his prepared report that there was no evidence that a cartel existed among Brighton’s retailers in Kansas or elsewhere and that there was no evidence that Brighton’s pricing policy was instituted by Brighton at the request of its retailers. Gundlach also concluded, however, that Brighton engaged in vertical price-fixing and in horizontal price-fixing. Gundlach further concluded that Brighton’s price-fixing necessarily raised the price at which consumers may purchase its products. In addition, Gundlach concluded that Brighton’s price-fixing limited price competition between retailers and that, as a result of the suppression of competition, consumers were denied potential savings.
Gundlach also opined that the higher prices faced by consumers were not offset by benefits to competition or to consumers, stating that no facts supported various theories advanced by Brighton’s experts to support a pro-competitive explanation of the company’s price-fixing. According to him, the more compelling scenario was that Brighton’s price-fixing shielded its own stores and those of its retailers from competition by more efficient forms of retailing to the detriment of consumers.
Christopher Charles Pflaum, Ph.D., an economist specializing in business and financial economics and the other expert for the plaintiff class, testified about class certification and the measure of damages.
Brighton s Heart Store and Luggage Applications
Since 1998, Brighton has offered a “Heart Store” program to retailers, which offers incentives for retailers to expand their business with Brighton. In exchange for these incentives, Heart Stores are expected to maintain certain levels of Brighton inventory, to display Brighton products in a dedicated section of the store, and to service Brighton products regardless of where they were purchased.
A retailer becomes a Heart Store by signing an application, which is then approved by Brighton. Less than 5 percent of Brighton’s retailers are Heart Stores.
Applications for Heart Store status must be submitted each calendar year. The Heart Store applications for the years 2001 and 2002 included language that the applicant would maintain minimum inventory, showcase Brighton products in dedicated spaces, “[s]ell Brighton products for the suggested price every day, 365 days a year,” and “close out markdown styles you do not plan to reorder.” The Heart Store applications for 2003 and later do not include that language, but they do include a statement that “Brighton reserves the right to withdraw Heart Store benefits from any store that does not represent Brighton in a positive and quality-manner.”
To sell Brighton luggage, a separate agreement must be signed by the retailer. As with the Heart Stores, a retailer must apply to become a Brighton luggage retailer. Luggage retailers must maintain a certain inventoiy of products. About 5 percent of Brighton retailers sell Brighton iuggage.
The application to sell Brighton luggage for calendar year 2003 included language that the applicant agreed to display a certain number of pieces and agreed to “sell the luggage at the suggested retail price.” The luggage applications for prior and subsequent years did not include such language.
Brighton never made any express or explicit promise to enforce its retail pricing policy against other Brighton retailers as an incentive for a retailer to become a Heart Store or luggage store.
Brighton in Kansas
In the relevant time period for this lawsuit, after April 12, 2001, Brighton has sold to more than 100 independent retailers in Kansas. Most of Brighton’s retailers in the state are small boutiques or specialty stores, but Brighton also sells to certain department stores and specialty chains. The independent retailers typically carry products from both Brighton and other brands. There is only one Brighton Collectibles store in Kansas; it opened in December 2006.
O’Brien, the class representative, testified that she owns numerous other brands of accessories and that she made purchases of these accessories in both department stores and specialty stores. O’Brien testified that she shops in all different types of retail establishments.
Several of Brighton’s Kansas retailers have sworn that they generally sell at the MSRP and do not discount unless an item is out of season or selling poorly. Further, the retailers swore that this is true for both Brighton and non-Brighton products.
Ten Brighton retailers in Kansas who submitted affidavits in this case have sworn that they generally price products at keystone. These retailers also swore that their pricing of Brighton products would have been the same in the absence of Brighton’s pricing policy. Four Kansas Brighton retailers have stated in affidavits that they voluntarily follow Brighton’s pricing policies and that they had no agreement with Brighton to sell Brighton products at the suggested retail price.
Since adopting its pricing policy, Brighton has not determined that any Kansas retailer violated the policy and has not refused to deal with or taken other adverse action against any Kansas retailer for an actual or suspected violation. However, Brighton did follow up on a report that one of its Kansas retailers may have been dis counting. It concluded that the reported discounting had not occurred.
Six independent retailers in Kansas submitted Heart Store applications for the years 2001 and 2002, and Brighton accepted tire six as Heart Stores for those years. Three Kansas Heart Stores, as well as three other Brighton Kansas retailers, submitted luggage applications for 2003 and were accepted as luggage stores for that year.
The Accessories Market
Products of a quality and price similar to Brighton’s are sold in department stores, specialty chains, and over the Internet. According to figures arrived at by using Accessories magazine, an industry trade publication relied on by the experts on both sides, the value of retail sales of Brighton’s products in 2005 was approximately $357 million. Accessories magazine reports that the total amount of retail sales in the accessories industry in 2005 was $30.2 billion. Based on these figures, Brighton’s sales accounted for less than 2 percent of total sales in the accessories market in 2005. Accessories magazine also reported that 2005 retail sales of accessories in specialty boutiques totaled $4.1 billion. If all of Brighton’s sales had occurred in specialty boutiques, which was not the case, Brighton’s retail sales would constitute 6.2 percent of the sales in specialty boutiques in 2005. From 2001 to 2004, Brighton’s estimated sales as a percentage of retail sales were in the 1 percent to 2 percent range; and Brighton’s estimated sales as a percentage of specialty boutique sales were in the 5 percent to 7 percent range.
Gundlach drew conclusions about the relevant market and Brighton’s market dominance. He defined the relevant market for this case as women’s accessories distributed through specialty boutique dealers. He further defined boutique retailers as those who generally are independent and provide an intimate experience for shoppers. Gundlach recognized that Brighton seeks to focus its retail distribution on small, independent specialty retailers or boutique retailers. He also determined that the specific characteristics of consumers who shop often in boutique retail outlets are important to understanding whether products generally distributed through boutique retailers compete with products not distributed through boutique retailers. Gundlach concluded that these characteristics are important in defining the market in this case. In addition to his analysis of the relevant market, Gundlach also concluded that Brighton was the dominant vendor in women’s accessories distributed through specialty boutique retailers. He stated that Brighton’s dominant power was derived from its extensive retail distribution network, its broad product Unes, and its differentiated product.
This Lawsuit
The class in this case consists of named plaintiff O’Brien and “[a]ll persons who, in the period from Januaiy 1, 1997, ... to the date of trial, have purchased any Brighton product from any Brighton retailer.”
In the petition that launched this litigation, an earlier named plaintiff alleged that Brighton engaged in pricing practices prohibited by K.S.A. 50-101, K.S.A. 50-102, and K.S.A. 50-112. Specifically, plaintiff alleged that “[t]he arrangements made between [Brighton] and its retailer dealers are made with the purpose of controlling the price of Brighton goods to the customer, and are prohibited trust arrangements outlawed in Kansas.”
Plaintiff further alleged that plaintiff and the class were entitled to damages pursuant to K.S.A. 50-108, K.S.A. 50-137, and K.S.A. 50-161, including full consideration damages, treble damages, and attorneys fees and costs. We note that the statutory citations on damages appear to be in error in two respects. First, K.S.A. 50-115 is omitted, even though it is the support for the full consideration claim. Second, K.S.A. 50-137 does not apply, as it deals exclusively with unlawful restraints by grain dealers. It is obvious that the citation was intended to be K.S.A. 50-147 instead. Neither of these errors appears to have confused the parties, so we will address the class damages claims on this appeal as though the petition’s citation errors did not occur.
The district judge held that O’Brien’s claims that Brighton’s resale price maintenance (RPM) agreements and RPM policy violate the KRTA were to be evaluated under a “rule of reason” frame work The district judge cited both K.S.A. 50-101 and K.S.A. 50-112 in this portion of his summary judgment decision, but he failed to address the statutory language in either statute or any potential differences between the two provisions. Although the district judge ruled that genuine issues of material fact remained on whether Brighton’s RPM policy or agreements were unreasonable, the district judge also ruled that O’Brien would be unable to prove antitrust injury. The judge therefore granted Brighton’s summary judgment motion.
Judge Goering also determined that O’Brien did not make out a claim of horizontal price-fixing. District Judge William Sioux Woolley held that O’Brien’s claim for treble damages was subject to a 1-year statute of limitations, while O’Brien’s full consideration claim was subject to a 3-year statute of limitations. Judge Goering did not reach Brighton’s motion to decertify the class.
On this appeal by O’Brien and cross-appeal by Brighton, in addition to the parties’ briefs, we have received and reviewed amici briefs from tire State of Kansas and from Quin Jackson, a plaintiff in a separate Kansas antitrust class action. Brighton submitted briefs responding to tire amici briefs, which we have also considered.
Discussion
Three standards of appellate review are influential in this case. First is our familiar standard for summary judgment:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summaiy judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summaiy judgment, the facts subject to the dispute must be material to tire 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, summaiy judgment must be denied. [Citations omitted.]” Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009).
We have also emphasized that “ ‘ “[s]ummary judgment should not be used to prevent the necessary examination of conflicting testimony and credibility in the crucible of a trial.” ’ [Citations omitted.]” Esquivel v. Watters, 286 Kan. 292, 296, 183 P.3d 847 (2008).
The second relevant standard of review affects interpretation of statutes, such as the KRTA. Statutory interpretation raises a question of law over which this court has unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). The most fundamental rule is that the intent of the legislature governs if that intent can be ascertained. 290 Kan. at 47. An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. State v. Raschke, 289 Kan. 911, 914, 219 P.3d 481 (2009).
“When a statute is plain and unambiguous, we must give effect to its express language, rather than determine what the law should or should not be. We will not speculate on die 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 statutory construction. [Citations omitted.]” Graham v. Dokter Trucking Group, 284 Kan. 547, 554, 161 P.3d 695 (2007).
Only if the statute’s language or text is unclear or ambiguous does the court employ canons of construction, legislative history, or other background considerations to divine the legislature’s intent and construe the statute accordingly. State v. Trautloff, 289 Kan. 793, 796, 217 P.3d 15 (2009).
Our third relevant standard of review applies to questions about class action certification:
“ ‘Trial judges are afforded substantial discretion in determining whether a class should be certified.’ [Citation omitted.]... “ ‘[T]he amount and degree of judicial discretion will vary depending on the character of the question presented for determination.’ ” [Citations omitted.]... In general, when a discretionary decision is made within the legal standards and takes the proper factors into account in the proper way, the [trial court’s] decision is protected even if not wise. [Citation omitted.] . . . However, ‘abuse is found when the trial court has gone outside the framework of legal standards or statutory limitations, or when it fails to properly consider the factors on that issue given by the higher courts to guide the discretionary determination.’ [Citations omitted.]” Dragon v. Vanguard Industries, Inc., 277 Kan. 776, 779, 89 P.3d 908 (2004).
“While the trial court has substantial discretion in determining whether a class should be certified, the provisions of K.S.A . . . 60-223 must be applied and rigorously analyzed.” 277 Kan. at 780. In conducting its analysis, the trial court “should consider evidence when submitted by the parties and make those factual determinations necessary to a determination of whether the prerequisites for a class action are met.” 277 Kan. at 783. “[T]he presence of individual questions, while tending to diminish the weight of class facts, does not necessarily defeat a prima facie showing the class prerequisites are satisfied, [citation omitted,] or mean that there has been an abuse of discretion in certifying the class. [Citation omitted.]” 277 Kan. at 793.
KRTA Provisions
K.S.A. 50-101, one of the KRTA sections setting out elements of O’Brien’s cause of action, provides in pertinent part:
“A trust is a combination of capital, skill, or acts, by two or more persons, for either, any or all of the following purposes:
“Second. To increase or reduce the price of merchandise, produce or commodities, or to control the cost or rates of insurance.
“Fourth. To fix any standard or figure, whereby such person’s price to the public shall be, in any manner, controlled or established, any article or commodity of merchandise, produce or commerce intended for sale, use or consumption in this state.
“Fifth. To make or enter into, or execute or carry out, any contract, obligation or agreement of any land or description by which such person shall: (a) Bind or have to bind themselves not to sell, manufacture, dispose of or transport any article or commodity, or article of trade, use, merchandise, commerce or consumption below a common standard figure;
(b) agree in any manner to keep the price of such article, commodity or transportation at a fixed or graded figure;
(c) in any manner establish or settle the price of any article or commodity or transportation between them or themselves and others to preclude a free and unrestricted competition among themselves or others in transportation, sale or manufacture of any such article or commodity; or
(d) agree to pool, combine or unite any interest they may have in connection with the manufacture, sale or transportation of any such article or commodity, that such person’s price in any manner is affected. Any such combinations are hereby declared to be against public policy, unlawful and void.”
K.S.A. 50-102 denies “[a]ll persons within this state” the right to form “or be in any manner interested, either directly or indirectly, as principal, agent, representative, consignee or otherwise,” in any trust as defined in K.S.A. 50-101.
K.S.A. 50-112, the KRTA section setting out elements of what appears to be O’Brien’s alternative statutory cause of action, provides in pertinent part:
“All arrangements, contracts, agreements, trusts, or combinations between persons made with a view or which tend to prevent full and free competition in the importation, transportation or sale of articles imported into this state, or in the product, manufacture or sale of articles of domestic growth or product of domestic raw material, . . . , and all arrangements, contracts, agreements, trusts or combinations between persons, designed or which tend to advance, reduce or control the price or the cost to the producer or to the consumer of any such products or articles, . . ., are hereby declared to be against public policy, unlawful and void.”
K.S.A. 50-108 provides for a private right of action against those who violate K.S.A. 50-101 and K.S.A. 50-102:
“[A]ny person that may be damaged by any such agreement, trusts or combinations described in K.S.A. 50-101 and 50-102, and amendments thereto, may sue for and recover in any court of competent jurisdiction in this state, of any person operating such trust or combination, such damages sustained, together with reasonable attorney fees.”
K.S.A. 50-115 does likewise but applies to K.S.A. 50-112:
“[A]ny person injured or damaged by any such arrangement, contract, agreement, trust or combination, described in K.S.A. 50-112 and 50-113, and amendments thereto, may sue for and recover in any court of competent jurisdiction in this state, of any person, the full consideration or sum paid by such person for any goods, wares, merchandise and articles included in or advanced or controlled in price by such combination
K.S.A. 50-147 speaks to the cumulative nature of rights and remedies under the KRTA:
“The rights and remedies given by this act shall be construed as cumulative of all other laws in force in this state, and shall not affect, change or repeal any other remedies or rights now existing in this state for the enforcement, payment or collection of fines, penalties and forfeitures.”
K.S.A. 50-161 defines certain terms, again authorizes a private right of action, and discusses remedies:
“(a) As used in this section, the term ‘person’ means any individual, corporation, partnership, firm, company or other association of persons ....
“(b) . . . [A]ny person who may be damaged or injured by any agreement, monopoly, trust, conspiracy or combination which is declared unlawful by any of the acts contained in chapter 50 of the Kansas Statutes Annotated, relating to unlawful acts, agreements, monopolies, trusts, conspiracies or combinations in restraint of trade, shall have a cause of action against any person causing such damage or injury. Such action may be brought by any person who is injured in such person’s business or property by reason of anything forbidden or declared unlawful by this act, regardless of whether such injured person dealt directly or indirectly with the defendant. The plaintiff in any action commenced hereunder in the district court of the county wherein such plaintiff resides, or the district court of the county of the defendant’s principal place of business, may sue for and recover treble the damages sustained. In addition, any person who is threatened with injury or additional injury by reason of any person’s violation of such acts may commence an action in such district court to enjoin any such violation, and any damages suffered may be sued for and recovered in the same action in addition to injunctive relief....
“(c) . . . The remedies provided herein shall be alternative and in addition to any other remedies now provided by law.”
Antitrust Injury
In this case, the district judge concluded that O’Brien was vulnerable to summary judgment in favor of Brighton because “[pjlaintiff has to have some concrete evidence that she personally paid higher prices for Brighton products as a result of Defendant’s RPM Policy” and, viewing the evidence in the record in the light most favorable to O’Brien, “[pjlaintiff has not demonstrated that she paid higher prices for the Defendant’s products than she would have paid absent Defendant’s RPM policy.” Thus, in the district judge’s view, O’Brien was unable to prove “antitrust injury.”
The concept of antitrust injury invoked in the district court comes from federal antitrust jurisprudence. See, e.g., Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S. Ct. 690, 50 L. Ed. 2d 701 (1977) (“Plaintiffs must prove antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful. The injury should reflect the anticompetitive effect either of the violation or of anticompetitive acts made possible by the violation.”). Essentially, it equates to the Kansas con cept of causation, or the “require[ment] that a plaintiff s theory of damages . . . correspond to an economic effect that the statute or case law rule invoked as the basis for liability aims to prevent.” See Davis, Standing on Shaky Ground: The Strangely Elusive Doctrine of Antitrust Injury, 70 Antitrust L.J. 697, 698 (2003).
Under the plain language of K.S.A. 50-101, there are several optional theories under which a KRTA plaintiff may proceed. Under the most forgiving of those theories, a plaintiff must prove the existence of a trust “for . . . the . . . purpose[]” [t]o fix any standard or figure, whereby . . . price to the public shall be, in any manner, controlled or established.” K.S.A. 50-101 Fourth. As defined in K.S.A. 50-101, to establish the existence of a trust, a plaintiff need only show a “combination of capital, skill, or acts, by two or more persons.” A plaintiff need not show a relationship rising to the level of an agreement. Furthermore; it is enough to demonstrate that the combination is “for the . . . purpose[] . . . [t]o fix prices; a plaintiff does not have to show that the combination actually succeeds in increasing prices. “For the purpose” contemplates a subjective standard, one that requires examination of the intent behind a defendant’s behavior.
Under the plain language of K.S.A. 50-112, there are alternate theories under which a KRTA plaintiff may proceed: A plaintiff may prove the existence of an arrangement, contract, agreement, trust, or combination “designed to” advance, reduce, or control price, or one that “tend[s] to” advance, reduce, or control price. Mere arrangements between persons are within the scope of the statute; again, a plaintiff does not have to show a relationship rising to the level of an agreement. In addition, it is enough to show that the arrangement is “designed to” or “tends to” control prices; again, a plaintiff does not have to show that the arrangement actually succeeds in increasing prices. Like “for the purpose” in K.S.A. 50-101, the phrase “designed to” contemplates a subjective standard. On the other hand, “tend to” contemplates an objective standard, one that requires examination of the defendant’s behavior to discern whether it would reasonably be expected to produce a particular result, regardless of the defendant’s intention.
In addition, under the plain language of K.S.A. 50-108, K.S.A. 50-115, and K.S.A. 50-161, a plaintiff must show that the plaintiff was injured or damaged by the defendant’s forbidden behavior.
The language in Brighton’s pricing policy and written Heart Store and luggage store applications and agreements is probative on whether Brighton’s pricing policy and pricing agreements were for the purpose of fixing prices or designed to control prices and on whether they tended to control prices.
Brighton’s 1997 “Brighton Retail Pricing and Promotional Policy” sets the “Suggested Brighton Retail Pricing” for each Brighton product. Although limited discounting is permitted by the policy for items that will not sell and that the retailer will not reorder, the policy explicitly states that Brighton “stand[s] firm on [its] Suggested Retail Prices” and that “[exceptions are not favored, should not be assumed, and will be granted only in extraordinary circumstances as determined independently by Brighton.” The policy also states that “[consumers are confused by the ever popular sale, sale, sale, etc.,” i.e., discounting by retailers, and that one purpose of the policy is to seek to reassure customers that prices are always “consistent.” Pricing policies promulgated for subsequent years are nearly identical.
The language of Brighton’s pricing policy certainly is subject to an inference that it was for the purpose of fixing prices and was designed to and tended to control the prices of Brighton’s goods. While some discounting is allowed under the policy, it is permitted only under terms set by Brighton. Moreover, discounting is intended to be the exception rather than the rule, and discounting approval must be granted in advance by Brighton. Ensuring that prices are the same each day and at each store where Brighton goods are sold is a part of Brighton’s business strategy to build consumer confidence by letting the customers know that they do not need to hunt for deals.
Further, for the relevant years of 2001 and 2002, Brighton’s Heart Store applications included an explicit agreement between Brighton and its retailers that retailers agree to “[s]ell Brighton products for the suggested price eveiy day, 365 days a year.” The Heart Store agreements also allowed retailers to close out styles they would not reorder, but advertising of such closeouts was not permitted. No other discounting appears to have been permissible under the Heart Store agreements.
The 2003 luggage application is similar. It required the same agreement by retailers to sell at the price suggested by Brighton, stating that applicants “also agree that you will sell the luggage at the suggested retail price.” The luggage agreement did not appear to allow for any discounting.
Both Heart Store and luggage store applications required applicants’ signatures.
The Heart Store and luggage applications explicitly required retailers who wished to qualify for Heart Store or luggage store status to sell Brighton products at the same amount each and eveiy day. The language of the agreements gives an even stronger indication that they were “for . . . die . . . purpose!] . . .[t]o fix any standard or figure, whereby . . . price to the public shall be, in any manner, controlled or established,” “designed to . . . control the price or the cost... to die consumer of any such products or articles,” and would “tend to advance, reduce or control the price or the cost to the . . . consumer” by explicitly limiting discounting.
Evidence of Brighton’s enforcement practices also is relevant to Brighton’s subjective intention, intention logically necessary if the plaintiff s theory is that Brighton’s arrangements were “for . . . the . . . purpose!]” or “designed to” fix prices. O’Brien came forward with probative evidence of Brighton’s enforcement of its pricing policy.
Although Brighton insisted that it has “never undertaken any systematic, comprehensive effort aimed at determining whether its retailers are following th[e] [suggested retail price] policy,” it does maintain a file titled “Pending Pricing Issues,” in which it keeps complaints from retailers and customers, as well as advertisements offering discounts of Brighton products. In addition, it maintained a specific filé on a particular Kansas retailer. It contains one entry stating that Brighton received a tip on the retailer’s discounting and a later entry stating that, after a Brighton representative visited the store, it determined that no discounting was occurring. Also, logs produced by Brighton show a notation that one of Brighton’s Kansas retailers reported another for discounting; the log also shows that a Brighton representative would be notified of the report.
In addition to tracking potential violations, Brighton’s management actively discouraged departures from Brighton’s pricing policy and pricing agreements. On this point, Young emphatically rejected a retailer’s proposed promotional event, reminding the retailer of the pricing policy and stating that the rejected promotion was to be avoided because it would “spread like cancer.” Kohl said that Brighton would rather retailers not pursue such promotions because “the other retailers in the area feel they have to compete and before long [it’s] chaos.” Kohl also said that “[t]hose who don’t [follow the pricing policies] and who are aware of our pricing policy . . . are terminated.”
The above-described evidence of Brighton’s enforcement practices is circumstantial support for O’Brien’s assertion that Brighton’s written pricing policy and written pricing agreements were “for. . . the . . . purpose[]” or “designed to” at least control, if not advance, the prices at which defendant’s products were sold to consumers and that they “tend[ed] to” do the same. If controlling prices was not at least part of Brighton’s intent, tiren enforcement would be unnecessary.
It is true that Brighton attempted to counter O’Brien’s evidence on purpose or design and tendency with testimony from certain Kansas retailers who would charge the same price for Brighton products regardless of Brighton’s pricing policy. But such evidence makes summary judgment less appropriate, not more. It translates to the existence of a genuine issue of material fact on a dispositive issue — here, one of the essential components of O’Brien’s cause of action.
To avoid summary judgment, however, O’Brien must also come forward with evidence that the class has been injured or damaged by Brighton’s pricing combination or arrangement. See K.S.A. 50-108 (“damaged”); K.S.A. 50-115 (“injured or damaged”); K.S.A. 50-161 (“damaged or injured”).
The district judge followed Brighton’s lead and established a “concrete evidence” standard for injury, requiring O’Brien to prove actual Brighton consumer purchases at prices higher than they would have been absent Brighton’s unlawful pricing practices. Again, the district judge based his decision on federal law.
The district judge cited federal antitrust cases for the proposition that market studies are the proper bases for determining whether prices have been higher because of a defendant’s alleged violation of the antitrust laws. See American Seed Co., Inc. v. Monsanto Co., 238 F.R.D. 394, 400 (D. Del. 2006); Weisfeld v. Sun Chemical Corp., 210 F.R.D. 136, 144 (D. N.J. 2002); In re Aluminum Phosphide Antitrust Litigation, 905 F. Supp. 1457, 1462 (D. Kan. 1995). The federal cases strongly favor this approach, although they appear to stop short of stating that a market study is the only way to demonstrate a difference in prices. See, e.g., In re Aluminum Phos-phide Antitrust Litigation, 905 F. Supp. at 1462 (“In order for plaintiffs to make a submissible case on damages, they must provide evidence which would allow the juiy to compare actual prices during the conspiracy period with reasonably estimated prices that would have prevailed during that same period, absent the conspiracy.”); Proving Antitrust Damages: Legal and Economic Issues, Section of Antitrust Law, American Bar Association, pp. 31-39 (1996).
Brighton argued, in particular, for use of what is known as a “benchmark analysis” under federal law, positing that this was the only way O’Brien could show cognizable injury. Under this approach, O’Brien would have needed: (1) to conduct a benchmark analysis comparing the actual retail prices of Brighton products before and after Brighton allegedly crossed the line between a lawful pricing policy and unlawful pricing agreements, (2) to compare the prices of Brighton accessories against the prices of similar accessories from manufacturers who did not impose price restraints, or (3) to collect affidavits from Kansas retailers who were prevented from discounting. In Brighton’s view, the methodology and opinion of Gundlach, based on academic theory and economic literature rather tiran an empirical analysis of the Kansas market, was not a suitable substitute. In addition, O’Brien’s other expert, Pflaum, was inadequate because he was “asked to simply assume the fact of injury” in order to calculate damages. This same expert admitted that, absent defendant’s conduct, “there could be [the] possibility” that prices would increase and some class members might have paid more, and it was not his testimony that eveiy Brighton retailer would lower prices. Brighton also relied upon its affidavits from certain Brighton retailers in Kansas who swore that their pricing practices would be the same absent Brighton’s policy.
O’Brien argued to this court that the language of Brighton’s written pricing policy, its written pricing agreements, and its enforcement practices — plus the testimony of Gundlach — created a genuine issue of material fact on injury and thus precluded summary judgment. Gundlach opined that Brighton’s practices fixed the prices of Brighton’s products, which severely limited discounting, and he observed that retailers who willfully failed to comply with the pricing arrangement were terminated or their shipments put on hold. He further concluded that, as a result, Brighton’s price-fixing limited price competition by retailers selling Brighton goods. Gundlach based his conclusions on information from Brighton regarding its practices, a survey of “authoritative opinion” on the effects of vertical price-fixing in general, and “empirical evidence” of the impact of price-fixing documented by other scholars, studies that were not specific to Brighton.
Brighton’s demand that O’Brien come forward with proof of injury or damage in the form of a benchmark analysis sets too high a bar. It over-interprets federal law, which, at best, is persuasive rather than controlling. It also is contrary to this court’s usual posture of hospitality to circumstantial evidence. See Dieker v. Case Corp., 276 Kan. 141, 160, 73 P.3d 133 (2003) (circumstantial evidence can serve as proof of the elements of a theory of liability even though other reasonable theories are not excluded by such evidence). Neither the KRTA nor our limited caselaw interpreting it, see, e.g., Bergstrom v. Noah, 266 Kan. 829, 974 P.2d 520 (1999); United Artists Corp. v. Mills, 135 Kan. 655, 11 P.2d 1025 (1932); Mills v. Ordnance Co., 113 Kan. 479, 215 P. 314 (1923); requires this particular form of “concrete evidence” to avoid summary judgment on antitrust injury. O’Brien has directed the court’s attention to adequate circumstantial evidence that consumers actually paid prices for Brighton goods inflated by its pricing combinations or arrangements with retailers, and the district judge erred in ruling otherwise. Summaiy judgment in favor of Brighton based on the nonexistence of “antitrust injuiy” as a matter of law must be reversed.
“Rule of Reason” Violation Standard
Brighton’s next line of defense — raised as a contingent issue in the appeal of the plaintiff class — is its insistence that only price-fixing that violates a “rule of reason” can subject it to liability under the KRTA. In essence, Brighton argues that the district judge’s decision to grant it summaiy judgment can be upheld as right for the wrong reason. See, e.g., State v. Robinson, 293 Kan. 1002, 1025, 270 P.3d 1183 (2012). We must therefore reach the merits of this issue.
As with the issue of antitrust injuiy, Brighton references federal law, in particular, the United States Supreme Court’s employment of “rule of reason” analysis in an earlier case involving at least some of the same pricing practices at issue here, Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877, 127 S. Ct. 2705, 168 L. Ed. 2d 623 (2007).
In Leegin, a case brought under the Sherman Act, 15 U.S.C. 1 et seq., by PSKS, Inc., operator of Kay’s Kloset, a Texas women’s apparel store, the Court stated that the goal of the required federal rule of reason is to distinguish between “restraints with anticom-petitive effect that are harmful to the consumer and restraints stimulating competition that are in the consumer’s best interest.” 551 U.S. at 886.
The district judge in this case followed Brighton half as far as it would have had him go. He accepted Brighton’s argument that reasonableness or a rule of reason sets tire standard for violation of the KRTA, invoking language in two Kansas restraint-of-trade cases: Heckard v. Park, 164 Kan. 216, 223-24, 188 P.2d 926 (1948) (“The real question is never whether there is any restraint of trade but always whether tire restraint is reasonable in view of all the facts and circumstances and whether it is inimical to the public welfare.”), and Okerberg v. Crable, 185 Kan. 211, 217, 341 P.2d 966 (1959) (quoting same language from Heckard). But he stopped short of granting summary judgment on this issue to Brighton because he believed there were genuine issues of material fact on whether Brighton’s pricing policies could pass muster under a reasonableness standard. Brighton challenges this part of the district judge’s ruling on its cross-appeal — arguing that O’Brien cannot show that it had market power within a properly defined market or that its pricing practices had anticompetitive effects. We need reach these cross-appeal issues only if we first agree with the district judge’s decision that reasonableness sets the standard for when price-fixing violates the KRTA.
Neither K.S.A. 50-101 nor K.S.A. 50-112 mentions reasonableness or a rule of reason. Rather, K.S.A. 50-101(d) provides that “[a]ny such combinations are hereby declared to be against public policy, unlawful and void,” (emphasis added) and K.S.A. 50-102 denies “the right to form or to be in any manner interested, either directly or indirectly, as principal, agent, representative, consignee or otherwise, in any trust as defined in K.S.A. 50-101. K.S.A. 50-112 provides that “[a]ll arrangements, contracts, agreements, trusts or combinations between persons, designed or which tend to advance, reduce or control the price or the cost to the producer or to the consumer of any such products or articles . . . are hereby declared to be against public policy, unlawful and void.” (Emphasis added.)
This clear statutory language draws a bright fine. The question is therefore whether Heckard and Okerberg or federal antitrust rulings invoking a rule of reason compel its erosion.
We address the federal antitrust rulings first and briefly: We conclude that they compel nothing. O’Brien is correct in arguing that federal precedents interpreting, construing, and applying federal statutes have little or no precedential weight when the task is interpretation and application of a clear and dissimilar Kansas statute. See Bergstrom, 266 Kan. at 845 (Kansas courts not bound by federal approach in interpreting antitrust laws); see also State v. Sellers, 292 Kan. 117, 128, 253 P.3d 20 (2011) (court will give effect to plain language of unambiguous statute); State v. Raschke, 289 Kan. 911, 914, 219 P.3d 481 (2009) (court must first attempt to ascertain legislative intent through statutory language enacted, giv ing common words ordinary meanings); Graham v. Dokter Trucking Group, 284 Kan. 547, 554, 161 P.3d 695 (2007) (“If the statute’s language is clear, there is no need to resort to statutory construction.”). Brighton’s scholarly exegesis on the holdings and reasoning of federal cases, though impressive, is inapposite.
Pronouncements in our Kansas precedents are another matter. Although stare decisis is not an “inexorable command,” see Hall v. Dillon Companies, Inc., 286 Kan. 777, 787, 189 P.3d 508 (2008) (doctrine of stare decisis does not compel perpetuation of incorrect analysis of the law); see also Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 610, 214 P.3d 676 (2009) (citing Coleman v. Swift-Eckrich, 281 Kan. 381, 388, 130 P.3d 111 [2006] [“This court is not inexorably bound by precedent; it will reject rules that were originally erroneous or are no longer sound.”]), we do not lightly overrule this court’s prior cases. See Rhoten v. Dickson, 290 Kan. 92, 112, 223 P.3d 786 (2010) (court of last resort will follow rule of law established in earlier cases unless clearly convinced rule was originally erroneous, no longer sound because of changing conditions, more good than harm will come by departing from precedent). Thus it is necessaiy for us to conduct a careful examination of the development of the antitrust violation standard in Kansas to discern whether any reasonableness gloss that has been read into the KRTA is first, sound, and, second, applicable to the vertical or horizontal price-fixing claims here.
The first case to address vertical price-fixing in our state was 1923’s Mills v. Ordnance Co., 113 Kan. 479. In that case, this court considered a contract for the purchase of tractors that required the purchaser to maintain tire seller’s fist prices when reselling the tractors to consumers. This qualified as a vertical price-fixing agreement, although the opinion did not use that description. At the time, the governing provision was Section 6409 of the General Statutes of 1915, the legislative ancestor of today’s K.S.A. 50-101. Section 6409 provided in part:
“A trust is a combination of capital, skill, or acts, by two or more persons, firms, corporations, or associations of persons, or either two or more of them, for either, any or all of the following purposes:
“Fifth, To make or enter into, or execute or carry out, any contract, obligation or agreement of any land or description by which they shall bind or have to bind themselves not to sell, manufacture, dispose of or transport any article or commodity, or article of trade, use, merchandise, commerce or consumption below a common standard figure; or by which they shall agree in any manner to keep the price of such article, commodity or transportation at a fixed or graded figure; or by which they shall in any manner establish or settle the price of any article or commodity or transportation between them or themselves and others to preclude a free and unrestricted competition among themselves or others in transportation, sale or manufacture of any such article or commodity; or by which they shall agree to pool, combine or unite any interest they may have in connection with the manufacture, sale or transportation of any such article or commodity, that its price may in any manner be affected. And any such combinations are hereby declared to be against public policy, unlawful and void.” (L. .1897, ch. 265, sec. 1.)
This court held that the tractors purchase contract violated Section 6409 and was therefore unenforceable:
“[The parties] tried to have the contract apply to a restricted territory and apparently attempted to give to the plaintiff the exclusive right to sell tractors in that territory. In doing so, the parties fixed the price at which the tractors should be sold by tire plaintiff after they had been purchased from the defendant. They could not make such a contract because it violated the law of tins state." Mills, 113 Kan. at 481.
Nine years later, this court decided United Artists Corp. v. Mills, 135 Kan. 655, another vertical price-fixing case. By that time, the Revised Statutes of 1923 had replaced the General Statutes of 1915, see State, ex rel., v. Davis, Governor, 116 Kan. 663, 229 P. 757 (1924); and R.S. 1923, 50-101, the predecessor to todays K.S.A. 50-101, precisely mirrored Section 6409, as quoted above.
This court examined a contract between a photoplay distributor and exhibitor, which included a provision requiring the exhibitor to charge a minimum admission fee to customers, and concluded that the provision “plainly . . . violate[d] the inhibition against price[-]fixing contained in . . . R.S. 50-101.” United Artists Corp., 135 Kan. at 656.
In 1936, this court again refused to enforce a contract that included a vertical price-fixing agreement, this time concerning ice, in Joslin v. Steffen Ice & Ice Cream Co., 143 Kan. 409, 54 P.2d 941 (1936). Again, we relied on R.S. 1923, 50-101, as well as R.S. 1923, 50-112, which provided that
“all arrangements, contracts, agreements, trusts, or combinations between persons or corporations made with a view or which tend to prevent full and free competition in the importation, transportation or sale of articles imported into this state, or in the product, manufacture or sale of articles of domestic growth or product of domestic raw material, or for the loan or use of money, or to fix attorneys’ or doctors’ fees, and all arrangements, contracts, agreements, trusts or combinations between persons or corporations, designed or which tend to advance, reduce or control the price or the cost to the producer or to the consumer of any such products or articles, or to control the cost or rate of insurance, or which tend to advance or control the rate of interest for the loan or use of money to the borrower, or any other services, are hereby declared to be against public policy, unlawful and void.” (L. 1889, ch. 257, sec. 1.)
We concluded: “A manufacturer of ice may fix the price at which he may sell his product, but the law will not permit him and his buyer to agree as to the price the latter will charge when he in turn sells that product to third parties.” 143 Kan. at 411. The vertical price-fixing arrangement in the ice contract was “in plain violation” of the statutes. 143 Kan. at 411-12 (citing Mills, 143 Kan. at 481).
The following year, the legislature enacted the Kansas Fair Trade Act (KFTA), R.S. 1937, 50-301 et seq. See Quality Oil Co. v. du Pont & Co., 182 Kan. 489, 493, 322 P.2d 731 (1958) (citing to KFTA in L. 1937, ch. 165, secs. 1-10). It specifically permitted contracts controlling resale prices, G.S. 1949,50-302, and explicitly authorized private suits to punish deviation from them. G.S. 1949, 50-306. Such suits could be brought against not only a reseller who was party to the newly legal price-fixing contract, but also against a third-party retailer who had never agreed to the price control. G.S. 1949, 50-306; see Quality Oil, 182 Kan. at 493-94 (discussing KFTA provisions).
In 1958, this court struck down the third-party provision as “statutory price[-]fixmg by compulsion,” in conflict with the Kansas Constitution. Quality Oil, 182 Kan. at 495-96. This court stated:
“[W]e conclude the nonsigner clause of the Fair Trade Act is an unconstitutional attempt to delegate legislative power to private persons in violation of Art. 2, § 1 of die Kansas Constitution. The statute, beyond permitting voluntary contracts or agreements between a trade-mark owner and a retailer to fix a minimum resale price binding upon the signing retailer, gives legislative sanction to the trade-mark owner to fix minimum resale prices binding upon nonsigners.
“. . . The legislature is powerless to clothe a private person with power to fix minimum resale prices, binding upon all who acquire and sell his trade-mark commodity with whom he has no direct contractual relation. An attempt to confer such power is an attempt to delegate legislature power, which is futile.” 182 Kan. at 495-96.
The legislature repealed the KFTA in 1963. This repeal, in theory, returned Kansas to the simple, per se rule developed by Mills, United Artists, and Joslin: Vertical price-fixing arrangements again were always impermissible in Kansas. None of the pre-KFTA cases or the statutory provisions they applied had imposed a threshold judicial evaluation of the reasonableness of the subject contract’s trade restraint before a violation preventing enforcement could be recognized.
If anything about that simple, per se rule changed between 1937 and 1963, that is, while the KFTA was in effect, it had to have changed because of Heckard and Okerberg, the only two relevant cases decided during the period.
In 1948’s Heckard, Bessie B. Heckard and singer Lucile Jeannie Park entered into a vocal training contract. Under the contract, Park agreed to certain restrictive covenants, including: “[n]ot to employ or accept tutelage from any musical instructor without plaintiffs written consent”; “[t]o engage plaintiffs services as defendant’s exclusive manager and agent”; and “[t]o pay plaintiff 10% of all, if any, professional earnings equal or exceeding $100.00 per week which defendant might obtain during, but only during, the next seven years following the execution of the written agreement.” 164 Kan. at 221. Heckard sued Park for an accounting and for specific performance of the written contract under G.S. 1935, 50-101 and G.S. 1935, 50-112, which were identical in all relevant respects to today’s K.S.A. 50-101 and K.S.A. 50-112. There was no allegation that die contract contained any vertical price-fixing provisions.
This court held in favor of Heckard and said Üiat “[t]he real question is never whether there is any restraint of trade but always whether the restraint is reasonable in view of all the facts and circumstances and whether it is inimical to the public welfare.” 164 Kan. at 223-24. Because the court viewed the contract as reasonable under all of the circumstances, it could be enforced despite the covenants. 164 Kan. at 224 (citing Mills v. Cleveland, 87 Kan. 549, 125 P. 58 [1912] [contract “limiting the right of a physician to practice a specialty and limiting his right to sell or disclose certain formulas used in such practice” upheld as valid because “reasonable[] under all the circumstances”]; Kent Oil Co. v. Waddill, 127 Kan. 704, 274 P. 1113 [1929] [contract limiting former employee “not to engage in that kind of work [for which employee was employed] for himself or any other person within the city for a period of two years after the termination of the employment” upheld as reasonable; order granting temporary restraining order to enforce the contract affirmed]; Berkey v. Smith, 138 Kan. 792, 796, 28 P.2d 763 [1934] [contract in which apprentice “promisefdj not to enter into competition with undertaker within radius of ten miles in consideration of undertaker’s instructing apprentice in art of embalming and funeral directing” upheld as reasonable; injunction affirmed]; Southwest Kan. Oil & G. Co. v. Argus P. L. Co., 141 Kan. 287, 39 P.2d 906 [1935] [reasoning that “[a] bargain in restraint of trade is illegal, not if there is restraint, but if the restraint be unreasonable” and upholding “[c]ontract whereby producers agreed to sell, at fixed price, and distributor to buy, all gas produced from producers’ well up to requirements of distributor”]).
In 1959’s Okerberg, diis court upheld contracts regulating milk routes against an antitrust challenge under G.S. 1949, 50-101 and G.S. 1949, 50-112. 185 Kan. at 219. The contracts set territories, required approval from a committee of the milk producers for route changes, required haulers to serve all producers within their territories who sold to a specific creamery, protected haulers against encroachment on their routes, and provided for sale or transfer of tank hauling rights. 185 Kan. at 218-19. Vertical price-fixing was not in issue.
We quoted Heckard with approval, treating reasonableness as a threshold inquiry when an antitrust violation was alleged, and ex amined “ ‘fundamental elements of common fairness in view of the facts and circumstances of the parties.’ ” 185 Kan. at 217 (quoting Heckard, 164 Kan. at 224). As with the vocal training contract in Heckard, because this court viewed the Okerberg milk route contracts as reasonable, they also were enforceable. The contracts’ limiting effect on the parties’ market behavior did not make them illegal under the ostensibly governing statutes. 185 Kan. at 219.
Careful examination of Heckard and Okerberg demonstrates that the “reasonableness” rubric they instituted had and has nothing to do with evaluation of an alleged price-fixing arrangement. This is also true of the cases upon which Heckard, and, in turn Okerberg, relied. The restraints of trade at issue — for example, covenants not to compete and a requirements contract — are factually and legally distinct from the vertical and horizontal price-fixing alleged in this case under K.S.A. 50-101 and K.S.A. 50-112.
There is another, more basic reason not to apply the reasonableness rubric of Heckard and Okerberg to this price-fixing case: Under the pattern for interpretation of statutes that this court has now firmly established, we are loathe to read unwritten elements into otherwise clear legislative language. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010) (“ The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted.’ ”). We take the legislature at its word, unless there is ambiguity, because the legislature, unlike the judiciary, is one of the branches of government charged with development of public policy on behalf of the electorate and because our deference to clear statutory language leads to long-term predictability and stability in Kansas law. See Quality Oil, 182 Kan. at 495 (decision on whether K.S.A. 50-112 reflects sound economic policy not the court’s to make). This means that, if the Heckard and Okerberg contracts were to come before us now, it is all but certain we would not append a requirement that an antitrust plaintiff demonstrate the unreasonableness of a defendant’s trade restraint to show a statutory violation, because the clear language of the governing statutes does not require it. See K.S.A. 50-101 (“\a]ny such combinations are hereby declared to be against public policy, unlawful and void.”) (Emphasis added.); K.S.A. 50-112 (“[a]ll arrangements, contracts, agreements, trusts or combinations between persons, designed or which tend to advance, reduce or control the price or the cost to the producer or to the consumer of any such products or articles . . . are hereby declared to be against public policy, unlawful and void.”) (Emphasis added.). If the legislature had wanted to make such a showing part of an antitrust action, it certainly was capable of doing so. In the absence of the policy message such a legislative addition would send, we have no confidence in the soundness of the Heckard language — “The real question is never whether there is any restraint of trade, but always whether the restraint is reasonable in view of all the facts and circumstances and whether it is inimical to the public welfare” — at the time it was written and today.
As K.S.A. 50-101 and K.S.A. 50-112 now read, the proper approach is not to determine “whether the restraint is reasonable in view of all of the facts and circumstances,” or to attempt to distinguish between restraints with anticompetitive effect and restraints that stimulate competition. Cf. Heckard, 164 Kan. at 223-24; Leegin, 551 U.S. at 886. The clear statutory language of K.S.A. 50-101 and K.S.A. 50-112 leaves no room for such an approach. The simple, per se rule of Mills, United Artists, and Joslin survives. The reasonableness rubric of Heckard and Okerberg is overruled.
Because we decide that reasonableness does not set the antitrust violation standard in Kansas, we need not reach Brighton’s cross-appeal arguments that O’Brien’s claims are blocked by the rule of reason.
Horizontal Price-fixing
O’Brien has also contended that Brighton’s ownership of stores that sell Brighton products qualifies it as a competitor to the retailers with which it entered into pricing agreements; this, in turn, would support a claim for horizontal price-fixing. Brighton has one retail store in Kansas and more than 100 such stores nationwide. Brighton has countered that its status as a dual-distributor, i.e., both a wholesale supplier and a retailer of its own products, does not support a horizontal price-fixing claim because dual-distribution systems are treated as vertical arrangements under federal law.
On appeal, Brighton has asserted that O’Brien raised any challenge to the district judge’s rejection of any horizontal price-fixing claim too late to preserve it for our review. Our review of the record and briefs in this matter indicates otherwise, and we therefore consider the merits of the challenge.
The district judge concluded in a one-paragraph footnote to his Memorandum Decision on summaiy judgment that “the claims made do not involve horizontal price-fixing.” He reasoned that the Heart Store agreements at issue were between Brighton as the wholesale supplier of Brighton products and its retailers, and that the RPM policy set forth the relationship between Brighton as the wholesale supplier of Brighton products and its retailers. In other words, both had vertical rather than horizontal structure and impact.
We have not previously evaluated a dual distribution price-fixing case. The governing KRTA provisions, K.S.A. 50-101 and K.S.A. 50-112, neither differentiate between vertical and horizontal price-fixing nor outline a particular approach to a dual-distribution situation. Rather, as fully discussed above, they forbid all price-fixing combinations or arrangements, regardless of the applicable label. Were this case in federal court, flawless labeling would have more bite, because horizontal price-fixing is still subject to a per se prohibition while vertical price-fixing — held to include dual-distribution situations by every circuit to examine the question — is analyzed under the rule of reason. See Leegin, 551 U.S. at 893 (vertical price-fixing subject to rule of reason analysis); AT&T Corp. v. JMC Telecom, LLC, 470 F.3d 525, 531 (3d Cir. 2006) (dual-distribution treated like vertical price-fixing); EEC v. Toshiba America Consumer Products, Inc., 129 F.3d 240, 243 (2d Cir. 1997) (same); Smalley & Co. v. Emerson & Cuming, Inc., 13 F.3d 366, 368 (10th Cir. 1993) (same); Illinois Corporate Travel v. American Airlines, 889 F.2d 751, 753 (7th Cir. 1989) (same); International Logistics Group v. Chrysler Corp., 884 F.2d 904, 906 (6th Cir. 1989) (same); Ryko Mfg. Co. v. Eden Services, 823 F.2d 1215, 1230 (8th Cir. 1987) (same); Donald B. Rice Tire Co. v. Michelin Tire Corp., 638 F.2d 15, 16 (4th Cir. 1981) (same); compare Red Diamond Supply, Inc. v. Liquid Carbonic Corp., 637 F.2d 1001, 1004-1007 (5th Cir. 1981) (same); Glacier Optical, Inc. v. Optique du Monde, 1995 WL 21565 (9th Cir. 1995) (unpublished opinion) (same).
Because this state court case arises under the KRTA rather than federal law, die rule of reason does not apply. To the extent O’Brien’s horizontal price-fixing claim rests on conduct identical to that supporting her vertical price-fixing claim, horizontal price-fixing is an alternative theory of liability. Proof of an alternative theory does not entitle a plaintiff to additional damages, but it gives a factfinder another way to get to judgment in the plaintiff s favor. O’Brien, like any civil plaintiff, could pursue an alternative theory of liability if it is supported by evidence. The district judge erred in ruling that the class “claims do not involve horizontal price-fixing.” They do. Because the district judge did not, evidently, reach the next question of whether O’Brien has come forward with enough evidence to avoid summary judgment on horizontal price-fixing, we do not reach it either.
Statute of Limitations on Full Consideration and Treble Damages Claims
For persons injured or damaged by price-fixing prohibited under K.S.A. 50-101 and K.S.A. 50-112, recovery of damages sustained, full consideration damages, and treble damages are permitted. See K.S.A. 50-108 (applying to K.S.A. 50-101; “such damages sustained”); K.S.A. 50-115 (applying to K.S.A. 50-112; “full consideration or sum paid”); K.S.A. 50-161(b) (applying to all of KRTA; “treble the damages sustained,” “any damages suffered”); see also K.S.A. 50-147 (“The rights and remedies given by this act shall be construed as cumulative of all other laws in force in this state, and shall not affect, change or repeal any other remedies or rights now existing in this state for the enforcement, payment or collection of fines, penalties and forfeitures.”). The parties disagree on tire applicable statute of limitations and the attendant downward pressure it may exert on any eventual full consideration or treble damages award. We now address the merits of this disagreement.
O’Brien argues in favor of application of the 3-year statute of limitations in K.S.A. 60-512(2). It provides that “[a]n action upon a liability created by a statute other than a penalty or forfeiture” must be brought in 3 years. O’Brien argues that both the full consideration and the treble damages provisions are civil remedies, not penalties, designed to encourage consumers to exercise their rights under the KRTA.
Brighton advocates for application of the 1-year statute of limitations in K.S.A. 60-514(c), which governs “[a]n action upon statutory penalty or forfeiture.” Brighton argues that both the full consideration and treble damages provisions are statutory penalties because they award more than actual damages and are cumulative with actual damages.
We also note as an initial matter that amicus Quin Jackson, in addition to supporting O’Brien’s argument for application of the 3-year statute of limitations, states that the discovery rule of K.S.A. 60-510 applies and that “fraudulent concealment and other tolling issues may be raised as well.” Neither of the parties has ever made an issue of either the discovery rule or any tolling doctrine, and we therefore do not address their merit or lack of merit. See State ex rel. Six v. Kansas Lottery, 286 Kan. 557, 561, 186 P.3d 183 (2008) (court will not address arguments raised only by nonparty amici curiae).
District Judge Woolley split the baby. He ruled that the full consideration claim under K.S.A. 50-115 was not a claim for a penalty and was, therefore, subject to the 3-year statute of limitations under K.S.A. 60-512(2). He also ruled that the treble damages claim under K.S.A. 50-161 was a claim for a penalty and was, therefore, governed by the 1-year statute of limitations under K.S.A. 60-514(c).
The KRTA explicitly established a cause of action for individuals to sue and recover general “damages” as well as specific types of damages. See K.S.A. 50-102; K.S.A. 50-108; K.S.A. 50-115; K.S.A. 50-161. It thus creates not only a new procedure for relief, but also new substantive rights. See Wright v. Kansas Water Office, 255 Kan. 990, 997, 881 P.2d 567 (1994); see also Four B Corp. v. Daicel Chemical Industries, Ltd., 253 F. Supp. 2d 1147, 1155-56 (D. Kan. 2003) (concluding plaintiff s antitrust claims under Kansas law arise out of antitrust statute). In addition, we note that the remedies for persons under the KRTA are separate and distinct from the civil penalties the attorney general is empowered to seek. See K.S.A. 50-103(a)(5); see also K.S.A. 50-160(a) (“The commission of any act or practice declared to be a violation of the Kansas restraint of trade act shall render the violator liable to the state for the payment of a civil penalty in a sum set by the court of not less than $100 nor more than $5,000 for each day such violation shall have occurred.”); K.S.A. 50-160(b) (“Any person who willfully violates the terms of any court order issued pursuant to the Kansas restraint of trade act shall forfeit and pay a civil penalty of not more than $10,000 per violation, in addition to other penalties that may be imposed by the court .... [T]he district court issuing an order shall retain jurisdiction, and in such cases, the attorney general may petition for recovery of civil penalties.”).
In the words of K.S.A. 60-512(2), an action based on the KRTA is “upon a liability created by statute.” See Alexander v. Certified Master Builders Corp., 268 Kan. 812, 821, 1 P.3d 899 (2000) (quoting Wright, 255 Kan. at 997) (liability “ ‘created by statute’ ” when “ ‘liability for resultant damages would not arise but for the statute’ ”). Likewise, an action based on the KRTA qualifies for the one-word description of K.S.A. 60-514(c): It is “statutory.” The rest of the relevant language from the two statutes of limitation requires construction. See Brennan v. Kansas Insurance Guaranty Ass’n, 293 Kan. 446, 450, 264 P.3d 102 (2011) (when legislative intent not clear from statutory language court moves to applying canons of construction or legislative history). Although an action seeking a “penalty or forfeiture” is plainly excluded by K.S.A. 60-512(2) and plainly included by K.S.A. 60-514(c), “penalty or forfeiture” is not clearly defined. And we have not previously construed “penalty or forfeiture” as applied to either full consideration damages or treble damages under the KRTA. In the only one of our cases in which the KRTA statute of limitations was in issue, we did not decide the question because the plaintiff s action would have been barred by either limitations provision under consideration. McCue v. Franklin, 156 Kan. 1, 131 P.2d 704 (1942).
Judge Carlos Murguia of the federal District of Kansas did reach the issue of the statute of limitations applicable to the KRTA treble damages remedy in Four B Corp., 253 F. Supp. 2d at 1155-56, deciding the 3-year statute of limitations in K.S.A. 60-512(2) applied. Judge Murguia cited this court’s decision in Alexander, 268 Kan. at 820, in support of the proposition that “[a] claim which arises from a statute does not automatically constitute a 'penalty’ or ‘forfeiture’ so as to trigger a one-year statute of limitations period, even if a plaintiff is entitled to recover more than his actual damages.” Four B Corp., 253 F. Supp. 2d at 1154-55. The question of which statute of limitations should apply to KRTA full consideration damages was not before the court in Four B Corp.
In an action brought under the Kansas Consumer Protection Act (KCPA), we stated that “in many instances where a statute gives accumulative damages to the party grieved, it is not a penal action.” Alexander, 268 Kan. at 824 (citing Huntington v. Attrill, 146 U.S. 657, 667-69, 13 S. Ct. 224, 36 L. Ed. 1123 [1892]). We observed that under the KCPA a consumer had the option to seek either damages or a civil penalty, not both. 268 Kan. at 823. But we said that the key question was whether a statutory provision was more remedial or punitive in nature. 268 Kan. at 823.
In Alexander, we examined the KCPA statutory scheme and concluded that “the KCPA provides a private remedy to consumers in the hope that they will enforce the KCPA as ‘private attorneys general,’ ” and that consumer suits allowed individuals to gain “reimbursement for the private wrong done.” 268 Kan. at 822, 824. We ultimately determined that both an action seeking a civil penalty and one seeking actual damages should be subject to die 3-year statute of limitations because treating the two differently would frustrate the intent of the statute to create an effective remedy for Kansas consumers. 268 Kan. at 823-24. We said that a 1-year statute of limitations would be appropriate “if the legislature had provided for a separate penally in addition to a damage recovery.” 268 Kan. at 824.
As Brighton has noted, both the full consideration damages and treble damages recoverable under the KRTA would exceed actual damages, and it makes sense to subject both provisions to the same statute of limitations analysis. See 268 Kan. at 824 (under KCPA, applying “two different statutes of limitation would force the consumer to file within 1 year, or find his or her options for recovery reduced to merely actual damages”)- But, otherwise, we regard O’Brien’s statute of limitations argument as generally more consistent with our reasoning in Alexander.
The 3-year statute of limitations in K.S.A. 60-512(2) gives a greater incentive to consumers to exercise their statutory rights by bringing private actions under the KRTA. Like the KCPA, the KRTA enables individuals to gain “reimbursement for the private wrong done.” See 268 Kan. at 824. Also like the KCPA, the KRTA’s provisions allowing private suits permit consumers to act as “ private attorneys general’ ” to enforce the provisions of the statute and prevent further wrongdoing. See 268 Kan. at 822. We also are persuaded that both full consideration damages and treble damages under the KRTA are “more remedial in nature than punitive.” See 268 Kan. at 823. They are chiefly, if handsomely, designed to compensate an individual who has been injured by a trade restraint, while the Attorney General is explicitly empowered to seek civil penalties to punish a violation on behalf of the rest of the citizens of the state. K.S.A. 50-103(a)(5); K.S.A. 50-160.
We therefore hold that neither O’Brien’s claim for full consideration damages nor her claim for treble damages qualifies as an action for a statutory penalty or forfeiture. They are both subject to the 3-year statute of limitations under K.S.A. 60-512(2). This holding compels us to affirm the district judge’s partial summary judgment ruling on the question of full consideration damages and to reverse his summary judgment ruling on the question of treble damages.
Necessity of Explicit Written Agreement
Brighton argues on its cross-appeal that it was entitled to partial summary judgment against O’Brien on any purchases made at Kansas retailers that were not Heart Stores in 200lor 2002 and/or luggage stores in 2003, that is, for any purchases made at all but nine Kansas stores during tire specified years. Brighton asserts that the KRTA, like federal law, demands that a plaintiff alleging vertical price-fixing come forward with proof of “agreement and concerted action” between each specific retailer and Brighton. In its view, the evidence O’Brien has gathered cannot possibly demonstrate that there was the necessary meeting of the minds between Brighton and the overwhelming majority of Kansas retailers subject only to Brighton’s pricing policy and not designated a Heart Store nor authorized to sell luggage.
O’Brien responds that the written agreements between Brighton and nine of its Kansas retailers were merely the clearest evidence of a larger, unwritten price-fixing arrangement between Brighton and all of its Kansas retailers. She urges us to consider all of her evidence and the reasonable inferences a jury may be permitted to draw from it in context, arguing there is plenty in the record to enable her to escape summaiy judgment on the issue of whether Brighton acted unilaterally or in unlawful conjunction with its Kansas retailers.
Judge Goering denied partial summaiy judgment to Brighton on this issue. He determined that “[t]he KRTA requires concerted action by two or more persons or entities to fix prices,” without citation to a specific KRTA provision. The district judge reasoned that O’Brien established the existence of a genuine issue of material fact on the scope of any arrangement or agreement. He noted, in particular, evidence of Brighton’s enforcement practices and the dispute between the parties over the purpose of Brighton’s RPM policy.
As we observed above, K.S.A. 50-101 and K.S.A. 50-112 prohibit more than “agreements” to fix prices. But even a “combination” under K.S.A. 50-101 must be “by two or more persons” and an “arrangement” under K.S.A. 50-112 must be “between persons.” Both requirements demand something more than merely a unilateral pricing policy adopted by a wholesale supplier in the position of Brighton.
Because K.S.A. 50-112 and § 1 of the Sherman Act share the “between persons” language, and the language of K.S.A. 50-101 is equivalent, we look to interpreting United States Supreme Court precedent for assistance in understanding what, short of an express agreement, qualifies as more than merely unilateral behavior. Has O’Brien mustered enough evidence to avoid summaiy judgment on those purchases made at Brighton retailers who were not parties to Heart Store or luggage store applications or agreements?
In Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 763, 768, 104 S. Ct. 1464, 79 L. Ed. 2d 775 (1984), the Court ruled that, under § 1 of the Sherman Act, a price-fixing case must include “evidence that tends to exclude the possibility of independent action by the manufacturer and distributor.” “[T]here must be direct or circumstantial evidence that reasonably tends to prove that the manufacturer and others had a conscious commitment to a common scheme designed to achieve an unlawful objective,” and neither communication between a manufacturer and its retailers nor tire existence of complaints about discounting would be enough alone for a plaintiff in a price-fixing action to sustain its burden of proof. 465 U.S. at 768. The,Court acknowledged that evidence of complaints about discounting can be probative; however, there must be additional evidence of unlawful conduct. 465 U.S. at 764.
In this case, Brighton emphasizes evidence from several retailers who said that they independently decided to charge the suggested price for Brighton products. It reminds us that Brighton’s officers testified that Brighton had not actually terminated any Kansas retailer for a pricing policy violation and that Brighton had not made explicit promises to Heart Stores or luggage stores that it would enforce its pricing policy against other retailers.
But the record contains ample conflicting evidence in support of O’Brien’s claim that an unlawful pricing arrangement existed between Brighton and Kansas retailers beyond the nine Heart Stores and/or luggage sellers.
Brighton’s pricing policy was distributed to all retailers. And for at least 1 year, Brighton required all of them to initial an acknowledgment stating that violation of the policy was grounds for dismissal. Brighton’s owner testified that the company “require[d] everybody to charge the same price.” Unauthorized promotions were not allowed because they would “spread like cancer.” Brighton maintained a “Pending Pricing Issues” file, and it conducted investigations into at least two Kansas retailers suspected of discounting. One of those investigations was launched when one retailer who was not a Heart Store or luggage seller reported another in the same category.
All of this evidence provides relevant context for the written agreements Brighton entered into with Heart Stores and luggage sellers and at least circumstantially supports a reasonable inference of more than a unilateral policy or action by Brighton.
This evidence also is reminiscent of that before the United States Supreme Court in Monsanto Co. In that case, a manager testified that the company advised distributors who were discounting that they were in danger of receiving less than their desired amount of company product. A company representative contacted a distributor’s parent company, which then told the subsidiary distributor to comply with the pricing plan. The Court recognized such evidence as “relevant and persuasive as to a meeting of minds.” 465 U.S. at 765. In addition, one distributor sent a newsletter to his customers, in which he discussed the company’s efforts to “ ‘get [t]he “marketplace in order” ’ ” and emphasized the company’s efforts to maintain minimum prices. 465 U.S. at 765-66.
The Court ultimately stated in Monsanto Co. that it was reasonable to conclude that the termination of a noncomplying distributor was pursuant to a pricing agreement rather than unilateral pricing policy because it was “necessaiy for competing distributors contemplating compliance with suggested prices to know that those who do not comply will be terminated.” 465 U.S. at 767. The Court decided that the plaintiff had marshaled enough evidence to raise a juiy issue. 465 U.S. at 768.
We reach a similar conclusion here. There is more than enough evidence in the record before us to hold that the district judge was correct in denying Brighton partial summary judgment on the issue of whether there was an unlawful combination “by two or more persons” under K.S.A. 50-101 or an arrangement “between persons” under K.S.A. 50-112 with an effect on the prices paid for purchases at retailers other than Heart Stores and luggage sellers. This is not a case in which the plaintiff can show only a unilateral pricing policy or action. A genuine issue of material fact remains for trial, and weighing of evidence by this court or by tire district judge reviewing a summary judgment motion would be improper. See Underhill v. Thompson, 37 Kan. App. 2d 870, 878, 158 P.3d 987, rev. denied 285 Kan. 1177 (2007).
Certification of the Plaintiff Class
The last issue raised in Brighton’s cross-appeal concerns class certification. We address its status to provide guidance to the district court on remand.
Class actions are governed by K.S.A. 60-223, which was modeled after and has traditionally been interpreted like Fed. R. Civ. Proc. 23. Dragon v. Vanguard, Industries, Inc., 277 Kan. 776, 778, 89 P.3d 908 (2004) (Dragon I). The class in this case is composed of named plaintiff O’Brien and “[a]ll persons who . . . from January 1, 1997, ... to the date of trial, have purchased any Brighton product from any Brighton retailer.”
At the time this case was filed, K.S.A. 60-223(b)(3), the subsection of the statute that is relevant here, stated that a class should be certified if
“the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) The interest of members of die class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.”
District Judge Richard T. Ballinger ordered certification of the class, Brighton filed an interlocutory appeal challenging that certification. The appeal was denied by the Court of Appeals without explanation. Brighton also moved to decertify the class in the district court, but, given Judge Goering’s summary judgment ruling in favor of Brighton on antitrust injury, the judge never ruled on the motion to decertify.
On its cross-appeal, Brighton challenges only Judge Ballinger’s analysis of K.S.A. 60-223(b)(3), the predominance requirement. It seeks a ruling from us that the district judge abused his discretion in certifying the class.
Brighton makes two arguments: (1) O’Brien and the class lack a method of common proof for showing injury, i.e., payment of a price higher than the price that would have been paid absent an unlawful restraint; and (2) O'Brien and the class lack a common method of proof for showing each Kansas retailer entered into an illegal arrangement with Brighton.
In response to Brighton’s first point, O’Brien asserts that there is common proof that every purchase was made at a fixed price in a distorted market. In response to Brighton’s second point, O’Brien asserts that there is common proof of Brighton’s written agreements, its pricing policy, and its monitoring and enforcement activities — all of which, taken together, establish the extent of the arrangement.
Under Dragon I, we do not judge “ ‘tire propriety of a class certification by hindsight’ ” but rather to ensure that the district judge applied and “ ‘rigorous[ly] analysed]’ ” the requirements of K.S.A. 60-223 in its decision to certify the class. 277 Kan. at 780; see also Critchfield Physical Therapy v. Taranto Group, Inc., 293 Kan. 285, 292, 263 P.3d 767 (2011). If a district judge evaluates the proper factors, his or her decision will be granted deference on appeal. See 277 Kan. at 779.
Here, the district judge incorporated the transcript of the oral argument on the motion for class certification into his decision in this case. During the oral argument, the judge stated that he had reviewed all of the documents filed by the parties, and he concluded that “the requirements of 223(a)(1) through 4 are clearly met” because “[tjhere’s no factual issue. The legal issues are really common, whether or not there is one person or there are a thousand people who have bought belts from [Brighton].” Specifically regarding the factors to be considered on predominance, the judge said:
“The interest of the members, the extent and nature of the litigation controversy, the desirable concentration in the litigation, certainly the judicial economy comes into play in there, too, but of course that’s not determinative, and the difficulties likely to be encountered in the management of the class action, those are all considerations and clearly tend to show that a class action is appropriate in tills case.”
In his journal entry, the judge repeated that he had
“considered and carefully examined the evidence in relation to:
“(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions;
“(B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
“(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; [and]
"(D) the difficulties likely to be encountered in the management of the class action.”
But, as at oral argument, the judge did not make factual findings or explain how he had considered or applied the statutory factors to arrive at his legal conclusions. He said merely that he had reached its ultimate conclusions regarding predominance “in light of the evidence.”
After the district judge’s certification ruling, we handed down our decision in Dragon v. Vanguard Industries, 282 Kan. 349, 144 P.3d 1279 (2006) (Dragon II.). In that case, we determined that K.S.A. 60-252(a) and Supreme Court Rule 165 (2011 Kan. Ct. R. Annot. 246) — which require that a district court judge “find, and either orally or in writing state, the controlling facts and the judge’s conclusions of law thereon” and “state the controlling facts required by K.S.A. 60-252, and the legal principles controlling the decision” — apply to a district judge’s class certification decision. 282 Kan. at 356. Generally litigants and their counsel bear the responsibility of objecting to inadequate findings of fact and conclusions of law
“to give the trial court the opportunity to correct them, and in the absence of an objection, omissions in findings will not be considered on appeal. [Citation omitted.] Where no objection is made, this court will presume the trial court found all facts necessary to support its judgment. However, this court may still consider a remand if the lack of specific findings precludes meaningful review. [Citation omitted.]” Dragon II, 282 Kan. at 356.
In this case, it does not appear that Brighton objected specifically to inadequate findings and conclusions on certification, but it did attempt to pursue a timely interlocutory appeal. When the Court of Appeals rebuffed that effort, Brighton filed a motion to decertify the class. And it included the predominance issue in its prophylactic cross-appeal.
Because Brighton made a consistent effort to keep its challenge to certification alive, both in the district court and before this court, and because the district judge’s insufficient factual findings and legal conclusions preclude meaningful appellate review of class certification at this procedural juncture, we merely observe that Brighton’s motion to decertify the class remains pending. It will, on remand, be ripe for decision. When that motion is heard and decided, the parties and the district judge will have tire opportunity to ensure creation of a record adequate to support any future appropriate appellate review.
Conclusion
After a thorough review of the record and the parties’ extensive arguments on this appeal and cross-appeal, we hold that the district judge erred in his demand for proof of a “concrete injury” in this price-fixing case under K.S.A. 50-101 and K.S.A. 50-112. This holding requires reversal of the district judge’s summaiy judgment in favor of defendant Brighton, and this case must be remanded to district court.
Brighton also was not entitled to summary judgment under a “rule of reason,” which is not applied in a price-fixing action brought under K.S.A. 50-101 and K.S.A. 50-112 of the KRTA.
The district judge erred in ruling that the claims of the plaintiff class do not involve horizontal price-fixing. The named plaintiff and class have made an alternative allegation of unlawful horizontal restraint.
We affirm in part and reverse in part on the district judge’s statute of limitations rulings. The limitations provision applicable to the class claims for both full consideration damages and treble damages is tire 3-year statute of K.S.A. 60-512(2).
We hold that the district judge correctly determined that a genuine issue of material fact remained for trial on the issue of whether there was an unlawful combination or arrangement under K.S.A. 50-101 and K.S.A. 50-112 between Brighton and its retailers who had no express agreements as Heart Stores or luggage sellers.
And, finally, the insufficiency of the district judge’s findings of fact and conclusions of law on class certification preclude meaningful appellate review of the predominance issue raised in Brighton’s cross-appeal. On remand, Brighton’s motion to decertify the class will be ripe for decision under the guidance of this court’s opinions in Dragon I, 277 Kan. at 778-93, and Dragon II, 282 Kan. at 360-64.
Reversed and remanded to the district court for further proceedings consistent with this opinion.
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Per Curiam:
This is a contested original proceeding in discipline filed by the office of the Disciplinaiy Administrator against the respondent, Kimberly J. Ireland, an attorney admitted to the practice of law in Kansas in 2005.
On October 22, 2009, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on November 23, 2009. On September 9, 2010, a hearing was held on the complaint before a panel of the Kansas Roard for Discipline of Attorneys where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 8.2(a) (2011 Kan. Ct. R. Annot. 615) (false statements concerning qualifications or integrity of judicial and legal officials). After the hearing’s conclusion, the hearing panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“2. On March 19, 2007, the Respondent filed an action in divorce against Kevin Ireland, Johnson County District Court case number 07CV02121. Aaron McKee represented the Respondent until he was disqualified from the representation. Edward Bryne represented Mr. Ireland. The Honorable Allen Slater, Judge of the Johnson County District Court, presided over the Respondent’s divorce.
“3. The divorce was bitterly contested and caused the Respondent to suffer physically and emotionally. The Respondent suffered heart trouble, was hospitalized on approximately six occasions, and had a pacemaker inserted. Additionally, the Respondent has been diagnosed with an acute stress disorderdepression and an adjustment disorder with mixed anxiety and depression.
“4. Judge Slater assigned Judge Kevin Moriarty to attempt to mediate the divorce. On September 26, 2007, Judge Moriarty held a mediation session in the Respondent’s divorce.
“5. Shortly after 9:00 a.m., the mediation commenced. Initially, the parties, their attorneys, and Judge Moriarty met in his courtroom. After meeting and discussing general issues related to the divorce with both parties and attorneys, Judge Moriarty met separately with the Respondent and her counsel and Mr. Ireland and his attorney. Finally, the Judge met with the Respondent and Mr. Ireland without the presence of counsel. During this portion of the mediation, Judge Moriarty sat behind the bench.
“6. Subsequent to the mediation, on October 1,2007, the Respondent sought the counsel of Judge Slater. The Respondent informed Judge Slater that Judge Moriarty used profanity and threats to intimidate and harass her during the mediation. Judge Slater advised the Respondent of her option to file a complaint with the Commission on Judicial Qualifications.
“7. On October 3,2007, the Respondent filed a complaint against Judge Moriarty with the Commission on Judicial Qualifications concerning her issues with the mediation. In the complaint, the Respondent made the following allegations:
‘On Wednesday, September 26, 2007, all parties in the above referenced case attended mediation with Judge Moriarty in Division 14, Johnson County District Court. Due to the highly adversarial nature of this case Judge Slater ordered the parties to mediation with Judge Moriarty; however, Judge Moriarty’s behavior during the mediation was unacceptable and inexcusable and has caused the parties additional problems. Judge Moriarty tried to force me into resolving this case by using profanity, threats, intimidation and humiliation.
Trior to separating the parties, Judge Moriarty began the mediation by proposing an “equal” distribution of the assets and debts while refusing to consider any factors, such as who incurred the debt, when the debt was incurred, income disparity, financial misconduct, etc. Shockingly, the “equal” distribution proposed by Judge Moriarty was worse than what my ex-husband had already agreed to in the pleadings. When I tried to explain that I could not afford his proposal he yelled that I was “wasting his fucking time.”
‘After finding a solution he believed was equitable, Judge Moriarty separated the parties to discuss maintenance. In March 2007, my ex-husband was ordered to pay $1,070 per month in maintenance. On or about June 6, 2007, a hearing was held and Judge Slater denied my ex-husband’s motion to modify maintenance and child support. He talked to my ex-husband and his attorney first. Upon his return, Judge Moriarty proposed $250 per month in maintenance claiming that I would be lucky to get tirat much from Judge Slater.
‘More specifically, Judge Moriarty refused to listen to my side of the case. Although the case is more than six months old, and the respondent had never argued, orally or in writing, to impute income, Judge Moriarty unilaterally decided drat I should be imputed with an annual income of $60,000. He further decided tirat my ex-husband’s income was only $93,000 per year, even though prior to separating the parties Judge Moriarty was told by my ex-husband drat he received a monthly bonus tirat he expects to total $5,000 annually. I pointed out drat it was increasing my income so much was wrong [sic], but at dre same time ignoring his bonus was unfair. Judge Moriarty responded by saying “it’s what Judge Slater will order” and “he said he only got a $500 bonus last mondr.” Judge Moriarty then used my ex-husband’s $13,000 credit card bill to further justify dre drastic reduction in maintenance. Judge Moriarty refused to listen when I pointed out drat my ex-husband had admitted in tire pleadings tirat the debt is solely his, that the card is solely in my ex-husband’s name, I am not a responsible party and drat I was not aware of the card until dre divorce.
‘Not only did Judge Moriarty ignore my position, but he never even gave me an opportunity to make a counter offer. When I said drat I would only agree to resolve the entire case, including custody, Judge Moriarty told me that I was “sabotaging” the mediation and settlement process.
‘Again, without any other offers to consider, Judge Moriarty immediately began discussing child custody. This time, however, Judge Moriarty had me return to the courtroom witirout my attorney. Judge Moriarty sat at tire bench while my ex-husband and I sat at the tables. He made it crystal clear that his role was that of judge and not of mediator. He asked questions and demanded yes or no responses from me. When I tried to say I don’t know or that I’d like to think about it, he accused me of being evasive or that I did not have my children’s best interests in mind. He dren proceeded to enter “orders” witir respect to tire children and marital property.
‘Although Judge Moriarty’s “orders” and refusal to listen to me were bad, his behavior was much worse. The majority of the time we were in dre courtroom, it appeared as if Judge Moriarty was masturbating under dre bench. He used profanity repeatedly, and continually used and directed the word “fuck” to me. He talked about my “panties,” discussed my sex life and who I was “boinldng.” All of these drings he did outside the presence of my attorney and in front of my ex-husband. I was extremely uncomfortable, and I felt trapped in a courtroom with a Judge who was intentionally intimidating and sexually harassing me.
‘At one point when my ex-husband was complaining about a pair of bicycles, worth several thousand dollars, Judge Moriarty compared these two bikes to my “panties”. Although a protection of abuse order had been in place that I had to dismiss because the police would not enforce it, Judge Moriarty “ordered” that my ex-husband go to my house and take the bicycles in exchange for me getting to keep my “panties”. I tried to argue that the bikes were marital property, not personal property and were extremely expensive, but he again said they were just like my “panties”. He further said that Judge Slater would order that my ex-husband could pick up tire bikes and that if I refused he would tell Judge Slater that I refused to cooperate.
‘In addition, my ex-husband has made very false and very public allegations that I physically abused our children. Accordingly, a guardian ad litem was appointed. I have told my ex-husband on many occasions that unless and until he withdraws these false allegations and apologizes I will not deal with him directly. My ex-husband complained to Judge Moriarty that I refused to talk, text, and/or email with him. Instead of addressing these allegations, again without counsel and in front of my ex-husband, Judge Moriarty blamed me for causing problems with the children because I refuse to communicate with my ex-husband. He then “ordered” that I talk with my ex-husband at least every two days on the phone and, most shockingly, he “ordered” that my ex-husband and I take the children out to dinner like one big happy family.
“When the mediation finally concluded, I spoke to my attorney and explained what had occurred. When my attorney requested clarification, Judge Moriarty stated that he was going to send an email to Judge Slater and the parties claiming that I was uncooperative and unable to make decisions without my attorney.
‘During the voluntary mediation process, I was intimidated, threatened and sexually harassed by a Johnson County District Court Judge. Judge Moriarty’s behavior was more than unacceptable and unprofessional. The behavior of Judge Moriarty has impacted me both personally and professionally.’
The Respondent had no basis to allege that Judge Moriarty was masturbating during the mediation. Judge Moriarty’s administrative assistant and his court reporter were in the courtroom during the mediation. Both women provided factual statements to the Commission on Judicial Qualifications refuting the Respondent’s allegations.
“8. On November 15, 2007, Judge Robert Fleming, Chairman of the Commission on Judicial Qualifications, sent a letter to the Respondent. Judge Fleming’s letter provided:
“While Judge Moriarty was acting as a mediator in this situation, he is, at all times, a district court judge. With regard to Judge Moriarty using profanity during mediation, Judge Moriarty did admit to using profanity and advised he often repeats statements made by parties to confirm that he is listening. He has been cautioned that such conduct is inappropriate for a judge, even when acting as a mediator.
‘The Commission’s investigation revealed, however, no support for the remaining conclusory allegations in your complaint. Given the serious nature of your allegations and the lack of support for them, the Commission determined to refer your complaint to the Disciplinary Administrator for investigation.’
“9. On January 2, 2008, the Respondent filed a response to the complaint filed by Judge Fleming with the Disciplinary Administrator’s Office. In her response, the Respondent stated:
‘As an initial matter, the complaint filed by Mr. Fleming is improper and retaliatory and should be dismissed because truth is an absolute defense and complainants are absolutely immune from prosecution. Subject to and without waiving, I offer the following response.
‘As I [sic] licensed Kansas attorney, I have certain rights, responsibilities and obligations. I have always done my best to uphold tire laws, rules and regulations of this state. I have also always made a conscious effort to perform my duties in an ethical manner. Unfortunately, others do not always share my perspective, and it is these very people that have now required me to respond. I can assure the judicial committee, Judge Moriarty and you that I do not intend on taking this retaliation lying down.
‘My complaint against Judge Moriarty stems from a mediation he conducted in my divorce case. During the mediation Judge Moriarty used profanity and threats to intimidate and harass me. He attempted to enter orders in my divorce matter even though he was only serving as the mediator and he was not the judge assigned to the divorce. Now, after being assured that I would not be retaliated against, a bar complaint has been filed against me and I am being forced to defend myself for filing a complaint. If, however, I would have simply walked away and allowed Judge Moriarty to continue his behavior I would have neglected my duties as a Kansas attorney and violated my ethical obligations to the citizens of this state.
‘You have already received and reviewed the complaint that I filed against Judge Moriarty, and I continue to stand by each and eveiy allegation. However, I only filed my complaint at die request of Judge [Allen] Slater. My decision to file a complaint against Judge Moriarty was not easy. Because I was fearful of retaliation I discussed the situation with Judge Slater. Not once did he say it was unbelievable; to the contrary, he was visibly shaken, he apologized profusely for assigning Judge Moriarty to conduct the mediation and, most importandy, he walked me through the procedure for filing a complaint against Judge Moriarty. Judge Slater, using his own rule books in his office, looked up and directed me to the pertinent statutes and gave me as much information as he could for filing a complaint.
‘Based upon Judge Slater’s request and KRPC 8.3(b) I had no choice but to file a complaint against Judge Moriarty. After I filed die complaint, Ms. Carol Green assured me on several occasions that no retaliation would be taken against me for filing. In addition, a careful review of die laws of the State of Kansas makes it quite clear that I am absolutely immune from any action for filing a complaint.
‘. . . During my discussion with Judge Slater, he made a comment that epitomizes the purpose of immunity in this situation, Judge Slater specifically said “my daughter is an attorney and I would hate to see her treated this way.” ’
“10. Despite the Respondent’s statement above that she filed the complaint with the Commission on Judicial Qualifications after speaking with Judge Slater, she failed to acknowledge that she never mentioned to Judge Slater that Judge Moriarty ‘appeared to be masturbating’ during the mediation.
“11. On September 25,2009, the Respondent filed a Complaint in the United States District Court for the District of Kansas, Ireland v. Moriarty and the Johnson County, Kansas, Board of Commissioners, case number 09-CV-2506 JWL/JPO. In tire Complaint, the Respondent made the following allegations:
T3. On September 26, 2007, the plaintiff Ireland attended voluntary mediation conducted by defendant Moriarty.
T4. Defendant Moriarty used profanity during the mediation. . . .
T5. Defendant Moriarty used the word “fuck” during the mediation.
T6. Defendant Moriarty discussed plaintiff Ireland’s female undergarments and referred to the same as “panties” during the mediation. . . .
T7. Defendant Moriarty discussed plaintiff Ireland’s sex life during the mediation. . . .
T8. Plaintiff Ireland’s sex life was irrelevant to the divorce matter.. . .
T9. Defendant Moriarty appeared to be masturbating during the mediation. . . .
‘20. Plaintiff Ireland’s ex-husband testified during the trial of the divorce that defendant Moriarty’s behavior during the mediation may have been offensive to others.
‘21. Most, if not all, of defendant Moriarty’s inappropriate behavior during the mediation occurred while only defendant Moriarty, plaintiff Ireland and Kevin Ireland were in the room. . . .
‘22. On October 1, 2007, plaintiff Ireland complained about defendant Moriarty’s behavior to District Court Judge Allen Slater.’
“12. The allegations made by the Respondent have been reported in the Kansas City area in the Pitch Weekly.
“13. On December 15, 2009, the Respondent voluntarily dismissed her federal court action against Judge Moriarty and Johnson County Kansas Board of Commissioners and issued a press release that provided:
‘On Tuesday, December 15, 2009, Kimberly J. Ireland dismissed her federal court action and publicly apologized to Johnson County Judge Kevin Moriarty, his family and other Johnson County District Court personnel for alleging wrongful conduct that she mistakenly believed took place in the midst of her highly contentious divorce action. The divorce action, still pending after two years, has caused Ms. Ireland to suffer heart ailments and extreme anxiety. After further reflection, Ms. Ireland believes her perceptions regarding Judge Moriarty’s conduct and the conduct of other court personnel involved in her divorce action were the product of extreme stress, and she has now determined that her claims were untrue.
‘Ms. Ireland regrets the ridicule, embarrassment and harm her allegations caused to Judge Moriarty, his family, and other Johnson County District Court personnel.’
“14. On March 1, 2010, the Respondent agreed to a temporary suspension of her law license. Thereafter, on March 31,2010, the Kansas Supreme Court issued an order temporarily suspending the Respondent from the practice of law. As a result of the Respondent’s temporary suspension, she left the firm she formed with Aaron McKee.
“CONCLUSIONS OF LAW
“1. Based upon the Respondent’s stipulation and the above findings of fact, tire Hearing Panel concludes as a matter of law that the Respondent violated KRPC 8.2(a).
“2. KRPC 8.2(a) provides:
‘A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.’
The Respondent violated KRPC 8.2(a) when she repeatedly asserted that Judge Moriarty ‘appeared to be masturbating’ when she had no basis for making the statement. Additionally, the Respondent violated KRPC 8.2(a) when she asserted in the federal lawsuit that Judge Moriarty used his authority as a district court judge to request that his administrative assistant and court reporter falsely state in letters to the Commission on Judicial Qualification that he had done nothing wrong. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 8.2(a).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated her duty to the public, the legal system, and the legal profession to maintain her personal integrity.
“Mental State. The Respondent knowingly violated her duty.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual, serious, injury to Judge Moriarty and to the legal profession.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Dishonest or Selfish Motive. The Respondent’s misconduct involved making false allegations against Judge Moriarty.
“A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct by making serious false allegations against Judge Moriarty in three separate forums over a period of 2 yearsthe letter of complaint to the Commission of Judicial Qualifications, the response to the disciplinary complaint, and the Complaint in the federal law suit.
“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:
“Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. The Respondents conduct occurred while she was amidst her extreme stressful, highly contentious divorce action, which caused her extreme anxiety and physical heart ailments requiring hospitalizations. The Respondent has sought and continues psychological counseling and treatment from Dr. James Ryabik.
“Inexperience in the Practice of Law. At the time the misconduct began, the Respondent was inexperienced in the practice of law.
“Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends and Lawyers in Support of the Character and General Reputation of the Attorney. According to letters received by the Hearing Panel, the Respondent was an active and productive member of the bar in Johnson County, Kansas, and enjoyed a good reputation.
“Imposition of Other Penalties or Sanctions. Since March 1, 2010, the Respondent has been temporarily suspended from the practice of law as a result of the instant complaint. For a period of time following the suspension, the Respondent was able to find employment. However, she lost that job after an article was published in die Pitch Weekly regarding the Respondent’s allegations against Judge Moriarty.
“Remorse. The Respondent expressed remorse at the hearing. However, when given the opportunity to testify regarding what she regrets about this matter, she discussed the impact on herself and her professional status. Only after prompting by counsel did the Respondent address the effects of her conduct on her children, Judge Moriarty, and his family. It appears that the Respondent’s only apology to Judge Moriarty came in the form of a press release written by her attorney. To call a press release an apology is disingenuous. The Hearing Panel concludes that, to date, the Respondent has only a limited recognition of the impact of her actions.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered die following Standards:
‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.’
“RECOMMENDATION
“The Disciplinary Administrator recommended that the Respondent be indefinitely suspended from die practice of law. Counsel for die Respondent recommended diat die Respondent be censured by die Kansas Supreme Court and that the censure be published in the Kansas Reports. Counsel for the Respondent further recommends that the temporary suspension be lifted.
“The Hearing Panel is concerned diat, to date, the Respondent does not have a clear understanding of her wrongdoing. The Respondent’s failure to truly understand the misconduct was highlighted by the following exchange during the hearing on the Formal Complaint, when the Respondent was questioned by the Presiding Officer:
‘Q. I guess what I’m most curious about is what you would do differently today if confronted with a situation like die one that you believed you found yourself in, in 2007 at the mediation?
‘A. It’s difficult to say because I would like to say that I would not file a complaint at all and that would be a very easy answer. But thesome of the behavior that occurred, like the profanity, I believe was something that was inappropriate. But in hindsight with all of the trouble that it’s caused I don’t know that I would file another judicial complaint.
‘Q. But you make that response based upon the consequences of what you did three years ago or because you now believe that what you did was wrong?
‘A. I believe my word choice in my complaint was wrong. That and I would never do diat again and I would never advise anyone to do that ever. And I do believe that it affected the integrity of Judge Moriarty and I would never do tiiat again. I do believe diat it was wrong.
‘Q. You’ve talked about several events in this case, most of which occurred during the mediation but some afterwards as well, including die judicial counsel’s disposition of the matter as being something that you felt affected or impugned your side of the story or your personal integrity. Do I understand correctly that tiiat’s how it made you feel?
A. It made me feel that way at the time and it may have just been that I did not understand the judicial commission s role that they were to play in thatthat I did not understand what their role was.
‘Q. What do you understand differently today?
A. That they may not be there to investigate every judicial complaint that comes in and that they may not call and talkspeak to everybody. That they may not come down and investigate and talk to and ask for letters and do a full what I think of as an investigation. And that I should have taken it upon myself to gather letters, such as Judge Moriarty did, and to complete my story so that they had the full story in front of them.’
“Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be suspended from the practice of law for an indefinite period of time. The Hearing Panel further recommends that the indefinite suspension be made retroactive to the date of the temporary suspension.
“Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Respondent’s Exceptions
On December 27, 2010, the respondent filed exceptions to the final hearing report. See Supreme Court Rule 212(e) (2011 Kan. Ct. R. Annot. 352). Specifically, she took exception to the hearing panel’s conclusion concerning her violation of KRPC 8.2(a) (2011 Kan. Ct. R. Annot. 615) (judicial and legal officials). She also took exception to the hearing panel’s findings of facts 2, 7, 8, and 10. Finally, with regard to the subject of the appropriate discipline, the respondent took exception to the hearing panel’s recommendation of discipline and costs.
The respondent did not argue all of these exceptions in her brief, however. She instead raises only one issue for this court’s consideration: whether indefinite suspension for a violation of KRPC 8.2(a) is too severe a sanction in this matter. Because she did not argue the other exceptions that she had raised, the respondent has abandoned those exceptions. See In re Johanning, 292 Kan. 477, 486, 254 P.3d 545 (2011) (a respondent who does not advance arguments in a brief to this court that support exceptions to the final hearing report is deemed to have abandoned the exceptions).
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the hearing panel, and the arguments of the parties and determines whether violations of the KRPC exist, and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009); see Supreme Court Rule 211(f) (2011 Kan. Ct. R. Annot. 334). Clear and convincing evidence is “ 'evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. at 505 (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
This court considers the hearing panel’s findings of fact, conclusions of law, and recommendations to be advisory but gives the final hearing report the same dignity as a special verdict by a jury or the findings of a trial court. In re Frahm, 291 Kan. 520, 525, 241 P.3d 1010 (2010).
With respect to the discipline to be imposed, the hearing panel’s recommendation that the respondent be suspended from the practice of law for an indefinite period of time and that the indefinite suspension be made retroactive to the date of the temporary suspension is “advisory only and shall not prevent the Court from imposing sanctions greater or lesser than those recommended by the panel or the Disciplinary Administrator.” Supreme Court Rule 212(f) (2011 Kan. Ct. R. Annot. 353); see In re Depew, 290 Kan. 1057, 1073, 237 P.3d 24 (2010). The disciplinary sanction must be based on the specific facts and circumstances of the violations and the aggravating and mitigating circumstances presented in the case. Johanning, 292 Kan. at 490.
The respondent requests that this court find indefinite suspension too harsh and recommends instead that her self-imposed 1-year suspension be deemed sufficient discipline and that any additional discipline be limited to published censure. Reprimand or censure is generally appropriate when a lawyer engages in negligent conduct that causes injury or potential injury. In re Swanson, 288 Kan. 185, 215, 200 P.3d 1205 (2009); ABA Standards 4.43, 4.63, 7.3.
KRPC 8.2(a) reads:
“A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.” (2011 Kan. Ct. R. Annot. 615).
The stipulated facts demonstrate a knowing violation of the respondent’s professional duties. Granting that she was in great emotional distress during her divorce and the related physical suffering, writing letters and filing federal lawsuits surely are intentional, not negligent, acts. The respondent suggests that her behavior was “reckless” but that she did not intend to cause harm to Judge Moriarty or the legal system. It is not credible, however, to maintain that an attorney could file a disciplinary complaint and a civil law suit against an individual without understanding that those actions would cause harm to the individual.
The respondent submits that prior cases support imposition of a lighter sanction. Each disciplinary sanction is based on the specific facts and circumstances of the violations and the aggravating and mitigating circumstances presented in the case. Because each case is unique, past sanctions provide little guidance. In re Bishop, 285 Kan. 1097, 1108, 179 P.3d 1096 (2008). When an attorney’s misconduct is clearly intentional, some length of suspension from the practice of law is the appropriate sanction. Swanson, 288 Kan. at 215; Bishop, 285 Kan. at 1109.
As mitigating factors, the respondent emphasized her precarious emotional and physical health during the pendency of her divorce, her lack of other ethical misconduct, her relative professional inexperience, her retraction of the accusations and her apology to Judge Moriarty, and her self-imposed suspension and cooperation with the Disciplinaiy Administrator.
We note, however, that the respondent’s professional misconduct was not limited to a single instance but consisted of repeatedly making false accusations against a judge. These allegations became a matter of public concern when they were set out in a lawsuit and were discussed in the media. The respondent subsequently acknowledged that most of her accusations were false, yet she con tinued to suggest that the real problem was her failure to document her accusations adequately. While we recognize that certain factors operate to mitigate the intentional nature of the misconduct, we deem the misconduct to have been of sufficient magnitude to warrant suspension.
Conclusion and Discipline
It Is Therefore Ordered that Kimberly J. Ireland be suspended from the practice of law in the state of Kansas for a period of 2 years and that the suspension be retroactive to the initial date of the respondent’s temporary suspension, March 31, 2010.
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 219 (2011 Kan. Ct. R. Annot. 380) in the event respondent seeks reinstatement.
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Johnson, J.:
Reno County law enforcement officers made a traffic stop of Dinah Sanchez-Loredo’s vehicle, detained her at the scene for approximately 75 minutes while obtaining a search war rant, and recovered a large quantity of methamphetamine and some drug paraphernalia during the ensuing automobile search. Sanchez-Loredo seeks review of the Court of Appeals’ decision which reversed the district court’s suppression of the seized drugs and drug paraphernalia based upon the district court’s determination that exigent circumstances did not exist to support a war-rantless search and seizure. Sanchez-Loredo’s petition for review states the following narrow issue upon which review is sought: “Does the mobility of a vehicle provide exigent circumstances to search the vehicle regardless of the circumstances?” We hold that, for Fourth Amendment purposes, the mobility of a vehicle fulfills the requirement of exigent circumstances, so that a warrantless vehicle search is permitted based solely on probable cause. Accordingly, we affirm the Court of Appeals’ reversal of the district court’s suppression order.
Factual and Procedural Overview
Reno County law enforcement officers had information that Dinah Sanchez-Loredo was transporting money to Dodge City and returning to Hutchinson with methamphetamine on behalf of drug distributors. Part of that information flowed from an investigation that ensued after a May 11, 2007, residential search in Hutchinson yielded a large quantity of methamphetamine and a large amount of money. Sanchez-Loredo’s alleged connection to that drug operation made her the subject of law enforcement surveillance.
On July 26, 2007, Reno County officers followed Sanchez-Loredo’s vehicle around the city of Hutchinson, observing her meet briefly with persons known to be involved with drugs. The vehicle left Hutchinson with Sanchez-Loredo driving and Amber Moore as a passenger. The officers followed the vehicle to Dodge City.
In Dodge City, the officers followed the vehicle for a time, until it appeared as though the vehicle driver was attempting to discern whedier the vehicle was being followed. The officers discontinued the tail for fear of detection but recommenced following Sanchez-Loredo after she left Dodge City and was en route back to Hutch inson. When the vehicle crossed into Reno County, the officers stopped it and conducted an unsuccessful K-9 sniff of the vehicle.
During the course of their observation of Sanchez-Loredo, the law enforcement officers had been in contact with a Reno County assistant district attorney. After the drug dog failed to aleit, the officers requested that the prosecutor obtain a warrant to search Sanchez-Loredo’s vehicle. An officer was able to obtain the executed search warrant and return to the scene of the detained vehicle in approximately 75 minutes from the time of the initial vehicle stop. The ensuing search produced, inter alia, a large quantity of methamphetamine and drug paraphernalia. Both Sanchez-Loredo and Moore were charged, in separate cases, with drug crimes.
Both Sanchez-Loredo and Moore filed motions to suppress the evidence obtained from the search of the vehicle. The district court conducted a hearing on the motions and issued a joint opinion, explaining its rationale for granting the suppression motions. First, the court rejected the defendants’ challenge to the validity of the vehicle stop, specifically finding that, using the totality of the circumstances test, the officers had probable cause to stop the vehicle and detain the occupants. Further, the court summarily declared that the drug dog’s inability to alert on the vehicle did not destroy the probable cause that existed at the time of the canine sniff.
Nevertheless, the district court opined that the principle that a person has less expectation of privacy in a motor vehicle than a residence does not negate the rule of law that warrantless searches are the exception, not the rule. Citing to United States v. Cantu, 405 F.3d 1173, 1179 (10th Cir. 2005), the district court declared that, by its terms, the Fourth Amendment intimates a strong preference for warrants. Accordingly, the district court held that a war-rantless automobile search based upon probable cause can only be conducted “where it is not practicable to secure a warrant.”
The district court then found that the law enforcement officers had sufficient information to establish probable cause when Sanchez-Loredo’s vehicle left Dodge City and that they had more than adequate time to obtain a warrant through the standby prosecutor prior to the time of the vehicle stop. Moreover, the court could not find any exigent circumstances that would have required law enforcement officers to stop the vehicle when they did. The ultimate rationale given for suppressing the evidence was that, “[ujnder the unique circumstances of this case, the Court finds it was practicable to obtain the search warrant prior to the stop and detention of the Defendants.”
The State appealed the suppression order. The Court of Appeals reversed the district court, holding that a “search without a warrant is allowed when probable cause is combined with exigent circumstances; in the case of potential evidence in a car, the mobility of the car provides the exigent circumstances.” State v. Sanchez-Loredo, 42 Kan. App. 2d 1023, Syl., 220 P.3d 374 (2009). Sanchez-Loredo then sought and was granted review with this court.
Before proceeding, we pause to clarify the issues we will not be addressing. Sanchez-Loredo did not cross-appeal the district court’s rulings that were adverse to her, such as the finding that the officers had probable cause to stop and detain her. See State v. Adams, 283 Kan. 365, 367, 153 P.3d 512 (2007) (as a general rule, absent exceptional circumstances, appellate courts do not consider issues on appeal that were not raised by the parties); see also Douglas v. Lombardino, 236 Kan. 471, 490, 693 P.2d 1138 (1985) (appellee’s failure to cross-appeal deprived court of jurisdiction to consider appellee’s briefed issues). Nevertheless, the Court of Appeals gratuitously observed that “[wjithout a doubt,” the district court was correct in finding that the officers had probable cause to search tire vehicle and that “doubtlessly, the officers had sufficient grounds to stop her vehicle.” 42 Kan. App. 2d at 1029. Further, tire opinion agreed with the district court’s declaration that the failure of the drug dog to alert to possible contraband did not eliminate the previously established probable cause. 42 Kan. App. 2d at 1029. But Sanchez-Loredo’s petition for review did not challenge these holdings. See Supreme Court Rule 8.03(a)(5)(c) (2011 Kan. Ct. R. Annot. 69); State v. Allen, 293 Kan. 793, Syl. ¶ 2, 268 P.3d 1198 (2012) (under Supreme Court Rule 8.03[g][l], a party must allege an issue was decided adversely by the Court of Appeals to get Supreme Court review); State v. Ward, 292 Kan. 541, 580, 256 P.3d 801 (2011) (issue not raised before the Court of Appeals or in petition for review deemed abandoned).
Accordingly, this opinion will not address the district court’s finding of probable cause or the effect on probable cause of an unsuccessful olfactory search by a drug dog. Further, we will not consider the reasonableness of the length of detention or the validity of the search warrant. Likewise, no one has discussed whether the issuance of the search warrant could attenuate the taint of any prior unlawfulness. Rather, as noted above, the narrow question presented for our review is whether the Court of Appeals erred in finding, as a matter of law, that the mobility of a vehicle provides the exigent circumstances to support a warrantless vehicle search based on probable cause. We will confine our opinion to that issue.
Vehicle Mobility as Exigent Circumstance
A. Standard of Review
The general standard of review for an issue of evidence suppression is bifurcated. First, without reweighing the evidence, the appellate court reviews the district court’s findings for supporting substantial competent evidence. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007). Then, the ultimate legal conclusion is reviewed de novo. State v. Fitzgerald, 286 Kan. 1124, 1126, 192 P.3d 171 (2008). But if there are no disputed material facts, only a question of law is presented, over which an appellate court exercises unlimited review. 286 Kan. at 1126. Here, the Court of Appeals found exigent circumstances as a matter of law, which presents us with a legal question subject to unlimited review.
B. Analysis
Applying the law to the facts of this case is complicated by the ambiguities in the trial court’s rulings. On the one hand, the district court’s written opinion recited that “when the Court considers the evidence in its totality, the Court does find probable cause existed to stop the vehicle and detain the occupants,” suggesting a lawful investigatory detention, if not a lawful arrest. With that finding, one would expect the inquiry to proceed to a determination of whether the length of the detention awaiting the search warrant transformed the investigative stop into a de facto arrest, i.e., did the seizure become unlawful. See United States v. Sharpe, 470 U.S. 675, 685, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985). Instead, the district court discussed why a warrantless search of the automobile could not be justified due to an absence of exigent circumstances and the practicability of obtaining a warrant. But the officers did obtain a warrant, albeit after the vehicle stop. The actual search of the vehicle was effected pursuant to a judge-executed search warrant, which should obviate the need for the State to prove, or tire trial court to find, the existence of an established exception to the warrant requirement. In other words, here, there was no warrant-less search and the issuance of a valid search warrant met tire warrant requirement of the Fourth Amendment. It would appear that the only possible question is whether Sanchez-Loredo was unlawfully seized at any time prior to the execution of the search warrant. However, all concerned have focused on the district court’s determination of the need for exigent circumstances beyond mobility and a determination of that issue will resolve this case. We will proceed accordingly.
We pause to quickly review certain fundamental constitutional principles. We start with the premise that a warrantless search by a police officer is per se unreasonable under the Fourth Amendment unless the State can fit the search within one of the recognized exceptions to the warrant requirement. Those recognized exceptions are: “consent; search incident to a lawful arrest; stop and frisk; probable cause plus exigent circumstances; the emergency doctrine; inventory searches; plain view or feel; and administrative searches of closely regulated businesses.” Fitzgerald, 286 Kan. at 1127. In this case, the only possible exception that could be applicable is the probable-cause-plus-exigent-circumstances scenario.
“Probable cause” to search a vehicle can be established if the totality of the circumstances indicates there is a “fair probability” that the vehicle contains contraband or evidence. State v. Davis, 31 Kan. App. 2d 1078, 1084, 78 P.3d 474 (2003), rev. denied 277 Kan. 925 (2004). Here, the district court found that the information gathered by law enforcement officers by the time that Sanchez-Loredo’s vehicle left Dodge City established probable cause, i.e., there was a fair probability that Sanchez-Loredo’s vehicle contained drugs and other evidence of drug offenses. As indicated, that holding stands unchallenged in this appeal.
But probable cause must be accompanied by exigent circumstances to permit a circumvention of the Fourth Amendment’s warrant requirement. This court has previously explained and illustrated the concept as follows: “ ‘Exigent circumstances exist where the police officer reasonably believes there is a threat of imminent loss, destruction, removal, or concealment of evidence or contraband.’ ” State v. Fewell, 286 Kan. 370, 384, 184 P.3d 903 (2008) (quoting State v. Houze, 23 Kan. App. 2d 336, 337, 930 P.2d 620, rev. denied 261 Kan. 1088 [1997]).
Frequently, the State meets the exigency requirement by relying on a subclass of the probable-cause-plus-exigent-circumstances exception referred to as the “automobile exception.” See California v. Carney, 471 U.S. 386, 390, 105 S. Ct. 2066, 85 L. Ed. 2d 406 (1985); State v. Conn, 278 Kan. 387, 395, 99 P.3d 1108 (2004). The automobile exception originated with the case of Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925), where law enforcement officers, who had probable cause to believe a vehicle contained illegal liquor, stopped and searched the vehicle, discovering whiskey inside. In upholding the search, the United States Supreme Court opined:
"On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid.” Carroll, 267 U.S. at 149.
The Supreme Court further clarified the scope of the automobile exception in Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970). In Chambers, police had probable cause to believe that a station wagon contained contraband or evidence of a robbery, but they arrested the occupants and took the vehicle to the police station before conducting the search. The Chambers majority upheld the warrantless search, relying on Car roll to conclude that exigencies still exist in situations where both the vehicle and its occupants are in police custody. 399 U.S. at 51-52. Further, closely related to this case, tire Chambers majority declared that it could “see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on die odrer hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.” 399 U.S. at 52.
The Supreme Court has developed two rationales for the automobile exception, i.e., two reasons for treating automobiles differently: (1) the mobility of an automobile; and (2) the lower expectation of privacy people have in their automobile, as opposed to their homes or offices. 3 LaFave, Search and Seizure § 7.2, p. 538 (4th ed. 2004). This court has recognized the exception and noted the joint rationale of vehicle mobility and reduced expectation of privacy. Conn, 278 Kan. at 395; see also State v. Boyd, 275 Kan. 271, 274, 64 P.3d 419 (2003) (“[T]he Kansas Supreme Court [has] recognized that exigent circumstances may allow the warrantless search of a vehicle when probable cause has been established to justify a search.”); State v. Jaso, 231 Kan. 614, 622, 648 P.2d 1 (1982) (“We hold that when police officers have made a lawful stop of a vehicle and have probable cause to believe that contraband is in the vehicle the officers may search every area of the vehicle and its contents which might reasonably contain the contraband . . . .”); State v. Hays, 221 Kan. 126, 130, 557 P.2d 1275 (1976) (recognizing the exception as delineated in Chambers).
What the district court relied upon was qualifying language in some of our opinions, such as the statement in Fitzgerald that “[a]s long as probable cause exists, automobiles and other vehicles may be searched without warrants where it is not practicable to secure a warrant; their mobility fulfills the additional requirements of the existence of exigent circumstances.” (Emphasis added.) 286 Kan. at 1127. The district court reasonably read the additional language as including within the automobile exception the requirement that the State establish the additional exigency that a warrant cannot be practicably obtained. But the United States Supreme Court, to which we must defer in matters of interpreting the Fourth Amendment to the United States Constitution, has rejected that notion.
In Pennsylvania v. Labron, 518 U.S. 938, 116 S. Ct. 2485, 135 L. Ed. 2d 1031 (1996), the high court reviewed holdings from the Pennsylvania Supreme Court in two cases. In one of the cases, the state court had held that tire automobile exception requires an additional showing of exigent circumstances and that where police had time to secure a warrant, the warrantless search of an automobile was unconstitutional. Com. v. Labron, 543 Pa. 86, 100-01, 669 A.2d 917 (1995). The state court also opined that the automobile exception is limited to situations where “unforeseen circumstances involving the search of an automobile [are] coupled with the presence of probable cause.” Labron, 543 Pa. at 100. The United States Supreme Court disagreed, declaring that “[i]f a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more.” Labron, 518 U.S. at 940.
In Maryland v. Dyson, 527 U.S. 465, 119 S. Ct. 2013, 144 L. Ed. 2d 442 (1999), the Supreme Court reviewed a Maryland Court of Special Appeals holding that “in order for the automobile exception to the warrant requirement to apply, there must not only be probable cause to believe that evidence of a crime is contained in die automobile, but also a separate finding of exigency precluding the police from obtaining a warrant.” 527 U.S. at 466. Again the high court disagreed, holding that the automobile exception has no separate exigency requirement beyond a showing of mobility of the vehicle. 527 U.S. at 466-67.
We pause to note that some states have rejected the Labron/ Dyson rationale when interpreting their state constitutions and require their police to demonstrate both probable cause and exigent circumstances before searching a vehicle without a warrant. See, e.g., State v. Elison, 302 Mont. 228, 244, 14 P.3d 456 (2000) (requiring police officers to show exigent circumstances under the automobile exception); State v. Harnisch, 114 Nev. 225, 228-29, 954 P.2d 1180 (1998) (“[T]he Nevada Constitution requires both probable cause and exigent circumstances in order to justify a war-rantless search of a parked, immobile, unoccupied vehicle.”); State v. Sterndale, 139 N.H. 445, 449-50, 656 A.2d 409 (1995) (declining to adopt the automobile exception because the New Hampshire Constitution provides greater privacy protections than the Fourth Amendment); State v. Cooke, 163 N.J. 657, 670, 751 A.2d 92 (2000) (declining to apply the holding of Labron to evaluate cases under the New Jersey Constitution); State v. Gomez, 122 N.M. 777, 788, 932 P.2d 1 (1997) (holding that “[warrantless searches of automobiles require a showing of exigent circumstances”); Com. v. Rosenfelt, 443 Pa. Super. 616, 646-47, 662 A.2d 1131 (1995) (holding that officers must have both probable cause and some additional exigency to search a vehicle without a warrant). Here, however, the defendant has not made a separate argument based on the Kansas Constitution.
It is abundantly clear that Sanchez-Loredo’s vehicle was mobile, which inherently creates the possibility that evidence which an officer has probable cause to believe is contained in the vehicle could be lost. Applying mandatory Fourth Amendment jurisprudence, we need look no further than the district court’s finding that law enforcement officers had probable cause to believe the vehicle contained contraband or evidence of drug crimes. The district court erred in requiring the State to prove anything more. The Court of Appeals’ reversal of the district court’s suppression of evidence should be affirmed.
Reversed and remanded.
Moritz, J., not participating.
Thomas H. Sachse, District Judge, assigned. | [
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The opinion of the court was delivered by
Moritz, J.:
In this State appeal of a question reserved pursuant to K.S.A. 22-3602(b)(3), the State contends the district court erred in expunging Allen F. Jaben’s 1977 convictions for attempted rape, rape, aggravated sodomy, aggravated kidnapping, and aggravated battery. The State urges us to find that the district court should have applied the expungement statute in effect at the time Jaben filed his expungement petition, K.S.A. 21-4619(c), which prohibited expungement of those convictions. Instead, the district court applied the statute in effect at the time Jaben committed his crimes of conviction, K.S.A. 21-4617 (Weeks), which permitted expungement of Jaben’s convictions.
We answer the question reserved by concluding that because the legislature did not clearly indicate an intent to retrospectively apply the statute in effect at tihe time Jaben filed his petition, K.S.A. 21-4619, it applies only prospectively. Thus, in determining whether expungment of Jaben’s convictions is permitted, the district court in this case correctly applied the expungement statute in effect at the time the crimes underlying the convictions sought to be expunged were committed.
Factual and Procedural Background
In 1977, Jaben pleaded guilty to two counts of rape and one count each of attempted rape, aggravated sodomy, aggravated kidnapping, and aggravated battery for crimes he committed in 1974 and 1975. Jaben received a controlling maximum sentence of life imprisonment from which he was paroled in 2001.
Jaben was released from parole in 2004 and, in June 2008, he filed two separate petitions seeking to expunge his 1977 convictions. The State objected to Jaben’s petitions, arguing his convictions for rape and aggravated sodomy could not be expunged under K.S.A. 21-4619(c), the expungement statute in effect at the time Jaben filed his petitions. Citing State v. Anderson, 12 Kan. App. 2d 342, 744 P.2d 143 (1987), the district court applied the expungement statute in effect at the time the offenses were committed, K.S.A. 21-4617(a) (Weeks), and expunged Jaben’s convictions.
After consolidating Jaben’s petitions for purposes of appeal, the State initially appealed on a question reserved pursuant to K.S.A. 22-3602(b)(3). However, the State later filed an amended notice of appeal adding “K.S.A. 60-2103” as an additional basis for appeal. The appeal was transferred to this court on the court’s own motion under K.S.A. 20-3018(c).
Discussion
The State’s appeal is permissible only on a question reserved.
The State suggested at oral argument that because it filed its notice of appeal both from a question reserved and as a direct civil appeal, this court can directly consider the district court’s decision granting expungement instead of ruling only on a question reserved. We disagree.
A petition for expungement must be docketed in the original criminal action. K.S.A. 21-4619(d)(6). Thus, K.S.A. 60-2103, which governs appellate procedure in civil actions, does not apply. Instead, K.S.A. 22-3602(b)(3), which permits an appeal on a question reserved, provides the only basis for the State’s appeal in this case.
Moreover, we do not entertain questions reserved by the prosecution merely to show that the district court erred in its ruling. Instead, questions reserved “generally presuppose that the case on appeal has concluded but that an answer to an issue of statewide importance is necessary for proper disposition of future cases.” State v. Masterson, 261 Kan. 158, 161, 929 P.2d 127 (1996). See also State v. Berreth, 294 Kan. 98, 273 P.3d 752, 767 (2012) (questions reserved by State in criminal prosecutions must be issues of statewide interest important to the correct and uniform administration of criminal law and will not be entertained merely to determine whether error was committed by the district court in its rulings adverse to the State; appellate courts’ answers to questions reserved have no effect on the criminal defendant in the underlying case).
Here, the question reserved is whether, when faced with a petition for expungement, the district court applies the expungement statute in effect at the time of the filing of the petition, in this case K.S.A. 21-4619, or the expungement statute in effect at the time the crimes were committed. We agree with the State that this presents a question of statewide importance, resolution of which will further the uniform administration of the law.
The expungement statute in effect at the time Jaben filed his petition, KS.A. 21-4619, does not apply retrospectively to his petition for expungement.
Because resolution of this issue involves interpretation of statutes and prior cases, our review is unlimited. Johnson v. Brooks Plumbing, 281 Kan. 1212, 1213, 135 P.3d 1203 (2006).
Before considering tire question reserved by the State in this case, we first note that the expungement statute in effect at the time Jaben filed his expungement petition, K.S.A. 21-4619, has been renumbered and amended and can now be found at K.S.A. 2011 Supp. 21-6614c. We caution that our discussion below of the issue of whether K.S.A. 21-4619 has retrospective application should not be read or interpreted to apply to the statute currently in effect or any other future amended version of the statute.
K.S.A. 21-4617 (Weeks), the expungement statute in effect at the time Jaben’s crimes were committed (and the statute applied by the district court in this case to expunge his convictions) provided, in relevant part:
“(a) Every offender who was twenty-one (21) years of age or older at the time of die commission of the crime for which he was committed and who has served die sentence imposed or who has fulfilled the conditions of his . . . parole for the entire period thereof . . . may petition die court five (5) years after die end of such sentence, the fulfilling of such conditions of . . . parole or such discharge from . . . parole and may request that his record be expunged of such conviction if during such five (5) year period such person has exhibited good moral character and has not been convicted of a felony.” K.S.A. 21-4617 (Weeks).
In 1978, the legislature repealed K.S.A. 21-4617 and replaced it with K.S.A. 21-4619. See L. 1978, ch. 120, sec. 28. In June 2008, when Jaben petitioned to expunge his convictions, K.S.A. 21-4619 provided, in relevant part:
“(b) Except as provided in subsection (c), no person may petition for expungement until five or more years have elapsed since the person satisfied the sentence imposed ... or was discharged from . . . parole,... if such person was convicted of a class A, B or C felony, or for crimes committed on or after July 1, 1993, if convicted of an off-grid felony or any nondrug crime ranked in severity levels 1 through 5 or any felony ranked in severity levels 1 through 3 of the drug grid, or: [specifically listed crimes].
“(c) There shall be no expungement of convictions for the following offenses or of convictions for an attempt to commit any of the following offenses: (1) Rape as defined in K S.A. 21-3502, and amendments thereto;... (5) aggravated criminal sodomy as defined in K.S.A. 21-3506, and amendments thereto; ... or (22) any conviction for any offense in effect at any time prior to the effective date of this act, that is comparable to any offense as provided in this subsection.
“(e) At the hearing on the petition, the court shall order the petitioner’s arrest record, conviction or diversion expunged if the court finds that:
(1) The petitioner has not been convicted of a felony in the past two years and no proceeding involving any such crime is presently pending or being instituted against the petitioner;
(2) tire circumstances and behavior of the petitioner warrant the expungement; and
(3) the expungement is consistent with the public welfare.” (Emphasis added.)
Thus, while the expungement statute in effect when Jaben filed his petition in 2008 prohibited expungement of Jaben’s convictions, the expungement statute in effect at the time Jaben committed his crimes of conviction in 1974 and 1975 permitted expungement of those crimes if certain other conditions were met.
In granting Jaben’s petitions, the district court relied on State v. Anderson, 12 Kan. App. 2d 342. There, the defendant sought expungement of his conviction under K.S.A. 21-3511 for aggravated indecent solicitation of a child. As in the present case, at the time of Anderson’s conviction in 1974 the law permitted a defendant to petition for expungement 5 years after fulfilling the terms of his or her probation. 12 Kan. App. 2d at 343; K.S.A. 21-4617(a) (Weeks).
Nevertheless, in Anderson the district court applied the statute in effect at the time the defendant filed his expungement petition, K.S.A. 1986 Supp. 21-4619(c)(6), which prohibited expungement of convictions for violations of K.S.A. 21-3511. The sole issue in Anderson was whether the district court’s retrospective application of K.S.A. 1986 Supp. 21-4619(c)(6) violated the Ex Post Facto Clauses of the United States Constitution. 12 Kan. App. 2d at 343. See U.S. Const. Art. I, § 9 (“No Bill of Attainder or ex post facto Law shall be passed.”); U.S. Const. Art. I, § 10 (“No State shall . . . pass any ... ex post facto Law.”).
As the Anderson panel recognized, the Ex Post Facto Clauses prohibit the enactment of any law “ ' “which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.” ’ ” 12 Kan. App. 2d at 344 (citing Weaver v. Graham, 450 U.S. 24, 28, 101 S. Ct. 960, 67 L. Ed. 2d 17 [1981]). The panel held:
“For a criminal law or penal law to be ex post facto, two elements must be present: the law ‘must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage tire offender affected by it.’ Weaver, 450 U.S. at 29; Stokes v. Orr, 628 F. Supp. 1085, 1086 (D. Kan. 1985).” Anderson, 12 Kan. App. 2d at 344.
Regarding the first element in the ex post facto analysis — i.e., whether the law in question was retrospective — the panel in Anderson appeared to decide without analysis that because the district court applied the law retrospectively that the statute was intended to apply retrospectively. 12 Kan. App. 2d at 344 (holding that application of the 1986 statute to defendant’s T974 conviction “clearly [met] the first element of an ex post facto law”). The panel further concluded the retroactive application of K.S.A. 1986 Supp. 21-4619(c)(6) satisfied the second element of an ex post facto law because it disadvantaged the defendant by eliminating the defendant’s opportunity to apply for expungement of his conviction. Accordingly, the panel reversed and remanded the case “for consideration of defendant’s motion based upon the law in effect at the time the defendant committed tire offense of which he was convicted.” 12 Kan. App. 2d at 345.
The State urges us to reconsider tire second prong of Anderson s ex post facto analysis in light of Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997), and decisions from other jurisdictions finding that retroactive application of an amended expungement statute does not constitute an ex post facto violation. But we need not reach that issue as our consideration of the first element of the ex post facto analysis leads us in a different direction.
It is a well-established rule that a statute operates prospectively unless its language clearly indicates a legislative intent to apply it retrospectively or the statutory change is procedural or remedial in nature and does not prejudicially affect the parties’ substantive rights. See State v. Martin, 270 Kan. 603, 608-09, 17 P.3d 344 (2001). Thus, in considering the first prong of the ex post facto analysis, we must determine whether our legislature indicated a clear intent for K.S.A. 21-4619 to apply retrospectively.
K.S.A. 21-4619 does not expressly state that the statute applies retrospectively to convictions for crimes occurring before its enactment. Nor can we ascertain any clear legislative intent that the expungement statute be applied retrospectively. The only provision of the statute that even appears to address prior offenses is K.S.A. 21-4619(c)(22), which prohibits expungement of “any conviction for any offense in effect at any time prior to the effective date of this act, that is comparable to any offense as provided in this subsection.” But we do not interpret this “catch all” provision as a clear expression of legislative intent for retrospective application of the statute. Compare State v. T.P.M., 189 N.J. Super. 360, 362, 460 A.2d 167 (1983) (finding New Jersey expungement statute that applied “ ‘to arrests and convictions which occurred prior to, and which occur subsequent to, the effective date of this act’ ” made expungement statute retrospective “in all respects”); and State v. Burke, 109 Or. App. 7, 10, 818 P.2d 511 (1991) (finding that amendment to Oregon expungement statute which applied to “ ‘convictions and arrests which occurred before, as well as those which occurred after’ ” effective date of act, unambiguously expressed legislative intent to have statute apply retrospectively).
Because K.S.A. 21-4619 contains no clear language indicating a legislative intent for retrospective application, we conclude the statute applies only prospectively. Thus, at least under the statutory scheme in effect at the time Jaben filed his petition, a district court faced with a petition to expunge convictions was required to apply the expungement statute in effect at the time of the commission of the crimes underlying the convictions sought to be expunged. In light of this conclusion, we need not reach the issue decided by Anderson — i.e., whether retrospective application of the statute disadvantaged Jaben and thus violated the prohibition against ex post facto laws.
Appeal denied. | [
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Tracy D. Weaver, of Overland Park, an attorney admitted to the practice of law in Kansas in 1999.
On January 27,2011, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed his answer on February 18, 2011, and subsequently consented to an amended formal complaint. On July 26, 2010, the respondent voluntarily agreed to the temporary suspension of his license to practice law.
A panel of the Kansas Board for Discipline of Attorneys conducted a hearing on June 7, 2011, where the respondent was personally present and was represented by counsel. Following the presentation of evidence, the hearing panel determined that respondent had violated KRPC 1.3 (2011 Kan. Ct. R. Annot. 433) (diligence); 1.4(a) (2011 Kan. Ct. R. Annot. 452) (communication); 1.15(a) (2011 Kan. Ct. R. Annot. 519) (safekeeping property); 1.16(d) (2011 Kan. Ct. R. Annot. 535) (termination of representation); 4.1(a) (2011 Kan. Ct. R. Annot. 581) (truthfulness in statements to others); 5.3 (2011 Kan. Ct. R. Annot. 591) (responsibilities regarding nonlawyer assistants); 5.4 (2011 Kan. Ct. R. Annot. 593) (professional independence of a lawyer); 5.5(b) (2011 Kan. Ct. R. Annot. 594) (unauthorized practice of law); 7.1 (2011 Kan. Ct. R. Annot. 602) (communications concerning a lawyers services); 8.1(b) (2011 Kan. Ct. R. Annot. 609) (failure to respond to lawful demand for information from disciplinary authority); and 8.4(c) (2011 Kan. Ct. R. Annot. 618) (engaging in conduct involving misrepresentation) and (g) (engaging in conduct adversely reflecting on lawyers fitness to practice law).
Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“6. On October 5,1999, the Kansas Supreme Court admitted the Respondent to tire practice of law in the State of Kansas. During the pendency of the disciplinary case, the Respondent agreed to a temporary suspension and on July 26, 2010, the Kansas Supreme Court entered an order of temporary suspension of the Respondent’s license to practice law. The Respondent is not licensed to practice law in any other state.
“7. The Respondent established a law practice, named Weaver Law Firm, Inc. [Footnote: The Respondent’s law firm was also referred to as the Weaver Law Group, the Weaver Law Firm, LLC, and the Law Depot.]
“8. In approximately 2007, the housing market in California and across the United States declined and many homeowners were unable to continue to malee their mortgage payments. A number of companies were formed to provide loan modifications for home owners as a result of the housing market decline.
“9. Through his law practice, the Respondent began doing business as Loss Mitigation Legal Network (hereinafter ‘LMLN’) to modify home mortgage loans nation-wide. The Respondent’s business plan for LMLN included a plan to establish a nation-wide network of lawyers.
“10. While the Respondent had some experience in real estate transactions, a bachelor’s degree in finance and economics, a juris doctor degree, and a master’s degree in business administration, the Respondent did not have any specific education, training, or experience in modifying home mortgages.
“11. The Respondent became associated with eBizware, a company owned by Mark DeFoor and Mike Burns, non-lawyers. Mr. DeFoor and Mr. Bums were in die business of loan modification, had developed loan modification software, and had hired employees who were performing loan modifications.
“12. In addition to their loan modification business, Mr. DeFoor and Mr. Burns had other businesses. The Weaver Law Firm, LMLN, eBizware, and Mr. DeFoor and Mr. Burns’ other businesses were all physically located in the same office space.
“13. The Respondent prepared a variety of documents, describing the services that LMLN provided. In a document titled, ‘Mortgage Assistance Program’ on LMLN’s stationary, the Respondent stated:
‘Mortgage Assistance Program
“Who We Are
‘The Loss Mitigation Legal Network is a Law Firm specializing in loss mitigation and'headquartered in Overland Park, KS. We specialize in assisting consumers in all 50 states attain an affordable mortgage payment or retain their homes by means of the loss mitigation process. We are comprised of a nationwide network of attorneys which oversee your loss mitigation case. Our mission is to SAVE THE AMERICAN DREAM by negotiating affordable mortgage payments or repayment plans so that our clients can continue to live in their homes with a reasonable payment. We have rescued home owners from foreclosure, adjustable mortgages, lack of equity and delinquent payments. Our volume and proven track record gives us credibility with your lender, and our volume of clients gives us leverage.
‘Established Contacts
‘Our contract processors work daily with key negotiators and decision makers at lending institutions across the country on a daily basis. They speak the language and understand what it takes to break through the bureaucracy so that you can succeed. Our experience and strategic relationships with over 1000 lending institutions allow us to out-perform our competition. We will use our experience and relationships to your advantage throügh aggressive negotiations. We are committed to providing excellent customer service and fast closings.
‘Technology
‘Loss Mitigation Legal Network is committed to technology and developing better solutions to assist our clients throughout the negotiation process. We provide all of our clients with access to our “back office” allowing them to monitor their individual account online. Once you sign up for our services you will receive your unique username and password granting you access to real time status updates, progress reports, and comment logs.
‘Our Goal Is Solely To Assist You
We have no interest in owning your home or prospering from your misfortune. As professionals who understand die mortgage industry from years of experience, we know how to help. Put our expertise into action and you could become another one of our coundess satisfied clients. Let our caring staff help you! If we are unable to help you, we may have other solutions that will. We all know life is unpredictable, and circumstances often arise that can prevent you from making your mortgage payments. Even hard-working people can encounter unforeseen situations which may affect their ability to pay their mortgage in a timely manner. Many issues can be contributing factors such as temporary job loss, medical illness or injury, marital difficulties, unforeseen repairs or high utility rates, tenant problems, or even a death in the family. Just one of these situations can have a direct bearing on making home mortgage payments. Don’t Let Time Run Out!
“What Comes Next
‘Take some time to review our Mortgage Assistance Program, and if you are interested in moving forward please complete, sign, and initial where indicated, and provide ALL of the documentation requested. Our goal is to negotiate with your lender as much as possible, and in order to accomplish this we need to gather as much information as possible. Some examples of information that we are interested in providing include, but are not limited to: financial hardships, medical bills, loss of joh, decrease in home value, adjustable mortgage payments increasing, home repairs needed, delinquent property taxes, etc. Once we receive your commitment to enroll in the program you will be engaged by an attorney in your state to oversee the entire process. Your file will be reviewed by our underwriting department and then our contract processors will package properly and submitted [sic] to our contacts at the lender. You will be provided regular updates, and can access your account online at anytime. Please complete all of the disclosures included and provide all documentation requested on the Documentation Checklist. Fax everything back to tire number listed on the fax cover sheet. If you have any questions during the process please log in to your account for updates at www.lossmitigationlegalnetwork.com. If you still have questions please feel free to contact your LM Consultant. E-mail usually receives the fastest response.’
“14. Despite the Respondent’s statement in his literature, LMLN did not have a network of attorneys across the country. In fact, the Respondent and LMLN associated with only one other attorney, a California attorney, Kent Van-derschuit. The Respondent’s association with Mr. Vanderschuit lasted for only a portion of die time LMLN was in business.
“15. Other than becoming associated with Mr. Vanderschuit for a period of time, the Respondent’s attempt at developing a nation-wide network of attorneys consisted of running an advertisement for attorneys and maintaining a list of attorneys who responded to die ad. Plowever, the Respondent did not contact the attorneys who responded to the ad. The Respondent explained that if a client needed an attorney in another state, he would find an attorney.
“16. The Respondent’s statement that he had a nation-wide network of attorneys and the Respondent’s statement that the clients would be ‘engaged’ by an attorney in their state are false statements.
“17. Additionally, the Respondent prepared and distributed a document which provides:
‘The Weaver Law Firm, Inc., dba the Loss Mitigation Legal Network, is a law firm specializing in consumer financial legal services. We specialize in assisting consumers in all 50 states to attain a solution to their current situation. We are not a cookie cutter provider of services, but a law firm dedi cated to providing quality legal services for your needs in areas such as: bankruptcy, debt settlement, foreclosure advice, loan modification, lender disputes, etc.
‘I appreciate your interest in our services and look forward to working with you in the near future. By completing the following information requests, you acknowledge that our office will be contacting you to discuss your particular needs and help you determine an appropriate course of action.
‘Regards,
‘Tracy Weaver, JD/MBA
‘Managing Director’
(Emphasis added.) The Respondent admitted that the statement emphasized above is a false statement as he had no intention of providing those legal services.
“18. The Respondent prepared and distributed another document which provides:
‘Loss Mitigation Legal Network (LMLN)
• Network of Attorneys across the country — specializing in Consumer Finance
• Focused on assisting clients who are overwhelmed with debt or have experienced a financial hardship which has hindered their ability to meet financial obligations
• Pledge to review each case independently to recommend the best suited solution for each client
‘Services
• Forensic Loan Audit Recourse
• Loss Mitigation
• Debt Settlement
• Bankruptcy
• Credit Repair
‘Technology
• Best-in-Class transaction and workflow software licensed by eBizware.com
• Commitment to continuous improvement through process refinements and industry leading technology’
“19. The Respondent’s two selling points for his loan modification business were (1) the involvement of a licensed attorney and (2) a guaranteed refund. LMLN’s refund agreement provided:
‘LMLN, INC. pledges to work diligently to secure a home loan resolution for our valued clients. We guarantee 100% Refund [sic] of our collected Services Fees, if after underwriting, processing, and negotiating with your lender on your behalf; we are unable to secure resolution as defined by obtaining a lender agreement for any of the following:
• Loan Modification
• Forbearance Agreement
• Reinstatement
• Repayment Plan
• Loan Restructure
• Deed in Lieu of Foreclosure
• Negotiating tire Principal Balance/Delinquent Debt’
“20. The Respondent, through eBizware, solicited the services of agents working through Home Loan Preservation (hereinafter ‘HLP’) to market loan modifications to California residents.
“21. The Respondent charged loan modification clients an attorney fee ranging from $1,900.00 to $3,495.00 for each loan modification. Of the fee, the Respondent retained $150.00 and transferred the remainder of the fee to eBizware. The Respondent paid Mr. Vanderschuit $50 of the $150 retained by the Respondent for each of the loan modification files that Mr. Vanderschuit reviewed. The HLP agents were paid $950.00 for each file by eBizware from funds transferred from the Respondent’s accounts to eBizware’s accounts.
“22. From November, 2008, through June, 2009, the Respondent did not have an attorney trust account. The Respondent deposited unearned fees, including the attorney fees generated by the loan modification business, during that time period, into his attorney operating account, commingling his money with clients’ money.
“23. Thereafter, die Respondent opened a trust account. After that time, the Respondent deposited unearned fees, including attorney fees generated by the loan modification business, into his attorney trust account.
“24. After the Respondent deposited the loan modification fees into his account, an employee of eBizware instructed the Respondent to transfer certain amounts of the fees into eBizware’s accounts. The Respondent did not have any access to or control of the fees once tire fees were transferred to eBizware’s accounts.
“25. Between November, 2008, and September, 2009, LMLN had approximately 1,200 loan modification clients. Additionally during that same time period, over $1,000,000.00 of client money was transferred out of the Respondent’s accounts into eBizware’s accounts, while the Respondent retained approximately $100,000.00.
“26. Many of tire home loan mortgages that the Respondent attempted to modify were for California clients regarding California real estate. In addition to attempting to modify loans for property located in California, the Respondent also attempted to modify loans for property located in Arizona, Nevada, Texas, Washington, Washington, D.C., and other states.
“27. The Respondent believed that he could perform legal services outside tire State of Kansas under a California attorney exception provision to avoid the regulatory requirements, if the services he provided were not legal services. The Respondent’s belief was misplaced.
“28. Specific California code provisions are relevant to the instant case. First, Cal. Bus. & Pro. Code § 10131 provides a definition of ‘real estate broker.’
‘A real estate broker within the meaning of this part is a person who, for a compensation or in expectation of a compensation, regardless of the form or time of payment, does or negotiates to do one or more of the following acts for another or others:
(d) Solicits borrowers or lenders for or negotiates loans or collects payments or performs services for borrowers or lenders or note owners in connection with loans secured directly or collaterally by hens on real property or on a business opportunity.’
“29. Next, Cal. Bus. & Pro. Code § 10131.1 expands the definition of real estate broker’ to include the following:
‘(a) A real estate broker within the meaning of this part is also a person who engages as a principal in the business of making loans or buying from, selling to, or exchanging with the public, real property sales contracts or promissory notes secured directly or collaterally by liens on real property, or who malees agreements with the public for the collection of payments or for the performance of services in connection with real property sales contracts or promissory notes secured directly or collaterally by liens on real property.’
“30. Cal. Bus. & Pro. Code § 10133(a) provides that certain individuals, who are not real estate brokers, are also allowed to perform acts described in § 10131, ‘The acts described in Section 10131 are not acts for which a real estate license is required if performed by .. . (3) [a]n attorney at law in rendering legal services to a client.’ While the Respondent never intended to provide the loan modification clients with any legal advice or legal services, he did intend to form an attorney/ client relationship. However, in order to fall within the exemption of Cal. Bus. & Pro. Code § 10133(a)(3), he would have to be ‘rendering legal services to a client.
“31. The attorney exemption does not apply to lawyers who are doing business as a loan modification company, rather, the attorney exemption applies only for the benefit of lawyers who were rendering legal services in their own law practice. An attorney who is engaged in a business assisting clients with loan modifications in California must also be a licensed real estate broker.
“32. Finally, Cal. Bus. & Pro. Code § 10133.1 provides, in pertinent part, as follows:
‘(a) Subdivision (d) and (e) of Section 10131 ... do not apply to any of the following:
(5) Any person licensed to practice law in this state, not actively and principally engaged in the business of negotiating loans secured by real property, when that person renders services in the course of his or her practice as an attorney at law, and the disbursements of that person, whether paid by the borrower or other person, are not charges or costs and expenses regulated by or subject to the limitations of Article 7 (commencing with Section 10240), and the fees and disbursements are not shared, directly or indirectly, with the person negotiating the loan or the lender.’
“33. The Respondent interpreted the California code provisions to allow him to perform the work of a real estate broker without a California real estate license or without the assistance of a licensed California attorney.
“34. However, tire Respondent’s interpretation was misplaced. In order to assist clients with loan modifications in California, one must either be licensed to practice law in California or a licensed real estate broker in California. The Respondent was neither.
“35. Through the Respondent, LMLN entered into a contract with the loan modification clients. The first client contract contained the following relevant provisions:
‘The undersigned homeowner (“Homeowner”, refers to one or more) engaged tire Law Depot, Inc., a law firm dba the Loss Mitigation Legal Network, and its appointees (referred to as “LMLN”), to act as Homeowner’s agent in assisting homeowner widi problems resulting from mortgage delinquency and/ or foreclosure situations. This engagement is for participation in a lawyer supervised loss mitigation program with LMLN (“Program”). You understand that Florida residents will be engaged exclusively by a practicing attorney located in Florida. LMLN agrees to act as such agent faitíifully and to the best of its ability, but in no way guarantee the success of its efforts to avoid the possible loss of die mortgagee’s home ....
‘CONTRACT PARTS
‘The contract for participation in the loss mitigation program includes this document as well as the Notice of Cancellation, Authorization Form and Financial Worksheet. It will become effective as of the date it is executed by you (and or your spouse if you are married as well as any odier co-signor on the loan) and approved by a lawyer admitted to practice in your state of residence. LMLN will not be bound until this contract and you have been approved by a lawyer admitted to practice in your state of residence for participation in the Program and you have paid the Non Refundable Evaluation Fee described below.
‘LAWYER EVALUATION AND ACCEPTANCE IS REQUIRED
You fully understand and agree that LMLN will not accept you as a client until it completes an evaluation which has been signed off and reviewed by a lawyer admitted to practice in your state of residence.
‘SCOPE: NO TAX OR BANKRUPTCY ADVICE
‘You are engaging the specific legal service of LMLN to provide attorney oversight of your loss mitigation case. Homeowner understands and acknowledges having been informed that LMLN is not being retained for any legal advice nor does LMLN screen Homeowner’s situation for a need for legal advice. LMLN encourages Homeowner to make an independent analysis about whether to seek legal counsel as may be necessary.
‘FEES & CHARGES AND USE OF NON-LAWYERS
‘Homeowners shall pay to LMLN the TOTAL FEE OF ... to be held in client Trust account. Fees shall be earned and deducted from the Trust account per die following schedule:
‘You further understand that even though LMLN is a law firm, loss mitigation services may be provided by agents and subcontractors who are not lawyers, but who wiñ operate under supervision of a lawyer licensed to practice in your state of residence and their fees and costs will be paid as services are rendered. You acknowledge that anyone not a lawyer will operate pursuant to written guidelines and there will be no deviation from those guidelines without the express authorization of a lawyer licensed to practice in your state of residence.
‘ADDENDUM
‘Client shall receive FULL REFUND IF LMLN is unable to provide ANY solution described in this contract. Client understands that LMLN cannot guarantee which solution will be offered. Additionally, if LMLN is unable to provide a solution described in this contract a short-sale may be offered. A refund will not be granted if client accepts a short-sale offer.’
“36. The advance fees paid by LMLN’s California clients under this contract were in violation of California law.
“37. Other than Mr. Vanderschuit, no lawyer licensed to practice in the client’s state of residence participated in the loan modification process for LMLN. Thus, for all of the loan modification cases that arose from states other than California, no lawyer licensed to practice in the client’s state of residence reviewed or approved the contracts. Further, it is unclear whether Mr. Vanderschuit ever reviewed or approved the contracts for California clients.
“38. When the Respondent discussed the loan modification process with clients, he did not insure that the clients knew that he was licensed only in Kansas and that his office was located in Kansas City.
“39. At some point, Mr. Vanderschuit informed the Respondent that the Respondent could not do business in California without having either a licensed California attorney or a licensed California real estate broker working on the client files.
“40. On March 12, 2009, the California Department of Real Estate issued an order to desist and refrain to Homeloan Preservation, New Loan Solutions, Inc., Loss Mitigation Legal Network, LLC, Allan Mallory, Donna Porter, Eric Conner, and Dean Holley. All the individuals listed in the order were agents who directly or indirectly solicited California clients for LMLN. The order provided:
‘The Real Estate Commissioner of the State of California has caused an investigation to be conducted and is of the opinion that you HOMELOAN PRESERVATION, NEW LOAN SOLUTIONS, INC., LOSS MITIGATION LEGAL NETWORK, LLC, ALLAN MALLORY, DONNA PORTER, ERIC CONNER, and DEAN HOLLEY (hereinafter collectively referred to as “you”) have violated Sections [sic] 10130 of the Business and Professions Code (hereinafter “the Code”).
‘1
‘At no time mentioned have HOMELOAN PRESERVATION, NEW LOAN SOLUTIONS, INC., OR LOSS MITIGATION LEGAL NETWORK, LLC been licensed by the Department of Real Estate of the State of California (hereinafter “Department”) as a real estate broker.
‘2
‘At no time mentioned have ALLAN MALLORY, DONNA PORTER, and ERIC CONNER been licensed by the Department either as a real estate broker or a real estate salesperson.
‘3
‘At all times mentioned DEAN HOLLEY has been licensed by the Department as a real estate salesperson with no broker affiliation.
‘4
‘At all times mentioned, you engaged in the business of, acted in the capacity of, advertised, or assumed to act as a real estate broker in the State of California, within the meaning of Section 10131(d) of the Code, including the operation and conduct of a mortgage loan brokerage business with the public wherein you, for or in expectation of compensation, for another or others, solicited lenders and borrowers and/or performed services for borrowers or lenders or note owners for loans secured directly or collaterally by hens on real property.
‘5
‘On or about February 28, 2009, in connection with the real estate activities described in Paragraph 4, ALLAN MALLORY on behalf of HOMELOAN PRESERVATION and/or LOSS MITIGATION LEGAL NETWORK, LLC, solicited and/or performed services for borrowers, in connection with loans secured directly or collaterally by liens on real property or on a business opportunity, for or in expectation of compensation. Such activities include, but are not limited to, soliciting individuals for loan modification services at the “Project Homeowners” workshop being offered at 525 North Center Street, Stockton.
‘6
‘On or about Februaiy 28, 2009, in connection with the real estate activities described in Paragraph 4, ERIC CONNER on behalf of DEAN HOLLEY and/or HOMELOAN PRESERVATION, solicited and/or performed services for borrowers, in connection with loans secured directly or collaterally by liens on real property or on a business opportunity, for or in expectation of compensation. Such activities include, but are not limited to, soliciting individuals for loan modification services at the “Project Homeowners” workshop being offered at 525 North Center Street, Stockton.
7
‘On or about February 28, 2009, in connection with real estate activities described in Paragraph 4, DONNA PORTER on behalf of HOMELOAN PRESERVATION and/or NEW LOAN SOLUTIONS, INC., solicited and/or performed services for borrowers, in connection with loans secured directly or collaterally by hens on real property or on a business opportunity, for or in expectation of compensation. Such activities include, but are no [sic] limited to, soliciting individuals for loan modification services at the “Project Homeowners” workshop being offered at 525 North Center Street, Stockton.
‘8
‘In February 2009, in connection with tire real estate activities described in Paragraph 4, DEAN HOLLEY on behalf of HOMELOAN PRESERVATION, solicited and/or performed services for borrowers, in connection with loans secured directly or collaterally by liens on real property or on a business opportunity, for or in expectation of compensation.
‘9
‘Your acts and omissions described in Paragraphs 4, 5, 6, 7, and 8 violated Section 10130 of the Code.
‘NOW, THEREFORE, YOU ARE HERERY ORDERED TO DESIST AND REFRAIN from performing any and all acts within the State of California for which a real estate broker license is required, within the meaning of Code Section 10131 unless and until you are in compliance with Section 10130 of the Code.’
The order to desist and refrain was served on March 14, 2009.
“41. On March 15, 2009, the Respondent called John Van Driel, Assistant Chief Counsel for the California Department of Real Estate. The Respondent asked Mr. Van Driel to remove LMLN from the desist and refrain order. Mr. Van Driel informed the Respondent that in order for LMLN’s name to be removed from the desist and refrain order, the Respondent would have to appear at a hearing and establish that LMLN did not violate the law as alleged in the desist and refrain order. The Respondent did not request a hearing and did not establish that LMLN had not violated the law as alleged in the desist and refrain order.
“42. During the telephone conversation, Mr. Van Driel informed tire Respondent that anyone conducting real estate business in California must be licensed as a real estate broker and advanced fees cannot be collected in loan modification cases.
“43. Despite its inclusion in the order, the Respondent did not believe that the order applied to LMLN. The Respondent stated:
‘My conversations focused solely around how HLP could become compliant with the DRE. LMLN’s compliance was not in question since I was a law firm. LMLN was not the focal point of the Desist and Refrain, only an additional named party due to its inclusion on the advertising piece.’
“44. Mr. Vanderschuit terminated his relationship with the Respondent because the State Bar of California informed Mr. Vanderschuit that the Respondent’s business was in violation of California regulations.
“45. Despite tire inclusion of LMLN in the order to desist and refrain, the Respondent determined that because his company was a law firm, he was operating outside the purview of the California Department of Real Estate. The Respondent concluded that if he terminated his relationship with HLP and associated himself with licensed individuals, he could continue operations.
“46. Following the issuance of the desist and refrain order, the Respondent made changes to his client contract. The second client contract contained the following relevant provisions:
‘The undersigned homeowner (“Homeowner”, refers to one or more) engages the Weaver Law Firm, Inc., a law firm dba the Loss Mitigation Legal Network, (referred to as “LMLN”), to act as attorney in assisting homeowner with problems resulting from mortgage delinquency and/or foreclosure situations. This engagement is for participation in a lawyer supervised law mitigation program with LMLN (“Program”). LMLN engages attorneys and other professionals to assist in the loan modification process in areas such as; customer service, marketing, document gathering and lender negotiations. LMLN agrees to act faithfully and to the best of its ability, but in no way guarantees the success of its efforts to avoid the possible loss of the mortgagee’s home.
‘CONTRACT PARTS
‘The contract for participation in die loss mitigation Program includes this document as well as the Notice of Cancellation, Audiorization Form and Financial Worksheet. It will become effective as of the date it is executed by you (and or your spouse if you are married as well as any other co-signor on the loan) and approved by licensed attorney. LMLN will not be bound until this contract and you have been approved by a licensed attorney.
‘LAWYER EVALUATION AND ACCEPTANCE IS REQUIRED
‘You fully understand and agree diat LMLN will not accept you as a client until it completes an evaluation which has been signed off and reviewed by a licensed attorney.
‘LIMITED SCOPE:
‘You are engaging the specific legal service of LMLN to provide attorney supervision of your loan modification. Homeowner understands, has spoken to an attorney with our firm and acknowledges having been informed that LMLN is not being retained for any other legal advice, tax, bankruptcy or otherwise, nor does LMLN continuing screen Homeowner’s situation for a need for other legal services outside the scope of services described in this agreement.
TEES & CHARGES AND USE OF NON-LAWYERS
‘Homeowner shall pay to LMLN the TOTAL RETAINER FEE OF ... To be deposited in attorney Trust account. Fees shall be deducted from the retainer upon the commencement of services and shall be earned/non-refundable based on the following processes and activities:
‘Refund of Retained Fees Until Earned. The retained fee paid by the Principal is fully refundable until earned in each Phase by LMLN. If this agreement is terminated by the Principal before the agreed upon completion date and before die agreed upon next Phase of services are completed, the unearned retained fees will be refunded to the Principal within 5 business days.
‘You further acknowledge that even though LMLN is a law firm, portions of diese loss mitigation services will be provided by agents and subcontractors who are not lawyers, but whose work will be reviewed by a licensed attorney and tiieir fees and costs will be paid at the onset of services. You understand that anyone not a lawyer will operate pursuant to written guidelines and no deviation from those guidelines will be allowed without the express authorization of licensed attorney.
‘REFUND POLICY. LMLN strives to provide exemplary customer satisfaction while providing quality services. Our fees are “earned” in Phases as indicated above. Should Principal have any issue or desire to cancel services he/ she will be entitled to any funds that have not been earned at such time.’
“47. According to tire Respondent, he made the changes to the client contract, reflected in the second contract quoted above, in an attempt to comply with the desist and refrain order issued in March, 2009.
“48. Again, the advance fees paid by LMLN’s California clients under this contract were in violation of California law.
“49. On March 16, 2009, the Respondent wrote to Mr. Van Driel. The Respondent stated:
‘Thanks for your time tonight. I greatly appreciate your willingness to talk and work with me through these issues. I had some discussions with the team over at HLP and wanted to verify with you that the following scenario would be acceptable to the DRE:
1. In some manner, acquisition/dba/etc, HLP becomes a licensed broker and obtains an AFA
2. HLP affiliates/sale people continue to solicit consumers in the same manner. NOTE: These “sales” people will not hold a license, but simply work under the broker, (is this ok?)
3. Per the AFA, HLP is now engaging the consumer and holding funds in trust accounts and legal services will be retained separately/directly with local counsel should the client choose.
‘I think turning this around in this manner cleans up the legal piece as well, which I am all too happy to do :)
‘Can we chat in the morning (Tue) to get your thoughts? I am just trying to get moving in the right direction asap
“50. On March 17, 2009, Mr. Van Driel responded to the Respondent’s message. Mr. Van Driel stated:
‘In answer to your questions below.
1. Licenses are issued by DRE to individuals and corporations. The applications and information concerning licensing can be obtained on the DRE website — www.dre.ca.gov. I don’t know what “AFA” means.
2. If HLP becomes licensed as a corporate real estate broker, it would have one individual real estate broker assigned to be its “designated officer” on DRE records. That person would be responsible for assuring that both HLP and its agents were compliant with the Real Estate Law (California Business & Professions Code sec. 10000, et seq.) and the Commissioner’s Regulations (Title 10 California Code of Regulations). The DRE website has a downloadable version of the law and regulations. HLP’s affiliates or agents would not be able to solicit consumers to sign up for loan modification services unless they are also licensed as real estate salespersons (or real estate brokers working for a real estate corporation or for another real estate broker). Those licensed agents of HLP would be supervised by HLP’s designated officer/ broker. Agents can not “simply work under the broker” without also being licensed by DRE.
3. If HLP were properly licensed in California by the DRE, it could solicit consumers by its licensed agents (licensed real estate salespersons) to provide loan modification services for that consumer. If HLP has an “advance fee agreement” for which the DRE has issued a “no objection” letter, it could claim and collect an advance fee from those consumers, subject to the rules on how to handle advance fees and trust funds, AS LONG AS A NOTICE OF DEFAULT HAS NOT YET BEEN RECORDED. Once a NOD has been recorded, a real estate licensee can not charge or collect an advance fee for any reason. When HLP begins its association with a California licensed attorney on behalf of the consumer who has already paid the advance fee; problems arise. Rather than try to spell out all of those potential issues, I will simply state that attorneys can not legally share legal fees with non-lawyers in California; or use non-lawyers to provide legal services. In our experience, one or the other is usually the case. I will advise you, however, that there will be a “webinar” put on by the California State Bar in which Wayne Bell, who was recently with me when we spoke on the phone yesterday, will participate. . . .
‘It might be helpful for you to listen to this webinar. I believe the connection between attorneys and real estate licensees or unlicensed persons will be discussed in detail.’
“51. On March 17, 2009, the Respondent forwarded a memo to ‘all affiliates and agents.’ The memo provided as follows:
‘As you are aware, the Loss Mitigation Legal Network (LMLN) continuously strives to offer “best in class” services and to comply fully with all Federal and State guidelines, laws and regulations. Under this important management objective, we work constantly to improve our compliance procedures, controls and visibility. As part of our process of continuous improvement, we recently held detailed discussions with the California Department of Real Estate (DRE) regarding our business model for obtaining and providing 3rd party Loan Modification services in the State of California. These discussions have resulted in several compliance suggestions by the DRE that will serve to bolster our overall regulatory compliance and enhance the quality of service that we all work hard to deliver.
“We have chosen to act on the DRE’s recommendations immediately and we are currently in the process of adding these compliance enhancements to our end-to-end service model. We expect to have these improvements implemented within 7 business days (by 3/24/09). During this timeframe (EFFECTIVE IMMEDIATELY) we are requiring all Affiliates to suspend from soliciting or adding any new customers from California, or from other states regarding property within California. It is imperative that this request is adhered to. Customers who have already been submitted for service will continue to receive services in accordance with our normal operating procedures.
‘Once these changes are in place, we will be able to resume new business in California with greater confidence that we are meeting and exceeding all compliance guidelines. Additional information will be provided to you in the near future regarding these changes to the process.
‘Please feel free to call or email me with any questions or concerns.’
‘Best Regards,
‘Tracy Weaver
‘Loss Mitigation Legal Network’
“52. On March 18, 2009, the Respondent listened to a seminar put on by the State Bar of California in order to understand the legal requirements of completing loan modifications in California. Mark Mellor presented material during the seminar held over the Internet that the Respondent attended. Additionally, on March 20, 2009, the Respondent met with Mr. Mellor by telephone for an hour regarding proper business models in the loan modification business.
“53. On March 26, 2009, the Respondent informed Mr. Van Driel that he was setting up an office in California and hiring California attorneys. The Respondent did not set up a California office, nor did he hire California attorneys, other than Mr. Vanderschuit. Further, by this time, Mr. Vanderschuit had already terminated his relationship with tire Respondent.
“54. After tire order to desist and refrain was issued, the Respondent contracted directly with the HLP agents. The Respondent failed to verify that the agents were properly licensed with the California Department of Real Estate. Verifying whether a person is a licensed real estate broker in California is a simple matter. The California Department of Real Estate has a searchable listing of all licensed real estate brokers on the Internet. Additionally, tire Respondent directed the HLP agents to not reveal that they were marketing services of LMLN or were affiliated with LMLN.
“55. After the California Department of Real Estate issued the desist and refrain order, the Respondent moved the attorney review process ‘in-house.’ The Respondent did not attempt to locate local counsel to review any loan modification cases. Rather, the Respondent hired a suspended Kansas attorney, Darrin Patterson, and a Missouri attorney, Kendra White, to work in LMLN’s Kansas office, reviewing loan modification cases. Additionally, the Respondent contracted with Kansas attorney, Jim Arnett. Despite die status of Mr. Patterson’s license to practice law in the State of Kansas, die Respondent allowed Mr. Patterson to meet with clients.
“56. At no time, did die Respondent inform his clients that he did not have a nation-wide network of attorneys.
“57. In July and August, 2009, and months after the desist and refrain order was issued, the Respondent held a sales contest in California to generate more clients.
“58. On July 22, 2009, the Respondent sent an electronic mail message to ‘All LMLN Professionals.’ In the message, the Respondent stated:
‘Thanks again for the exceptionally good response to our July-August program/ contest. We look forward to working witii you and to your success.
‘Additionally, I just wanted to drop you a note to cover a few quick items:
1. WE ARE HERE TO STAY. There appears to be some misinformation out there that we may be calling it quits. THIS IS ABSOLUTELY INCORRECT. We are in for die long haul for you and your clients, and we will remain an industiy leader by providing excellent customer service, solid technology enablement and proven results.
2. WE ARE READY FOR YOUR RUSINESS. Please Log into www.lossmitigationIegalnetwork.com (In the professional section - 24/7 to access our system free of charge.
3. WE WANT TO MAKE YOU SUCCESSFUL. We know Loss Mitigation and Debt Settlement is an ancillary sale to your customer base, we treat each customer as our own.
4. WE WOULD LIKE TO SAY THANKS. We feel as though we have two customers, You and the Client! Keep the deals coming, we appreciate it.
‘Keep up the good work and let us know if there is anything we can do to help you and your clients.
‘Sincerely,
‘Tracy Weaver’
“59. Two days later, on July 24, 2009, the Respondent sent the following message to ‘LMLN Users.’
‘Good morning LMLN Users.
This morning we learned that Home Loan Preservation is in a joint venture with Green Credit and has subsequently removed the LMLN Login from their website.
‘In light of this development, please be assured of the following:
— LMLN is committed to working hard on all submitted and active cases for all clients.
•— We have many branches who have decided to continue doing business with LMLN.
— Even if you are primarily a user of Green, we welcome your business referrals any time you want to submit a case to LMLN.
‘Please reconfirm to your Professionals and Clients how to continue accessing the LMLN system 24/7:
‘Go directly to: www.lossmitigationlegalnetwork.com (either “Client” or “Professional” login).
‘Also, please know that since 5/1 we have agreements directly with the Professionals and that our Service Fees are paid directly to them upon cleared payment +5 days. This model works and continues to pay out on a weekly basis. Also understand that LMLN has already paid HLP for all deals submitted prior to 5/1.’
“60. In August 2009, the California Attorney General’s office contacted the Respondent. The California Attorney General’s office informed the Respondent that he was going to be required to obtain a bond to be able to continue to do business in California. In light of the California Attorney General’s requirement, die Respondent decided to terminate his loan modification business. The Respondent sought someone to purchase the business.
“61. On September 30, 2009, the Respondent entered into an asset purchase agreement with T. Thaddeus Marshall of the Marshall Law Group, Inc., a Florida corporation, whereby the Mr. Marshall purchased the assets of LMLN.
“62. The Respondent did not allow his clients to retrieve their files, seek alternate counsel, or receive a refund. Rather, the Respondent simply transferred the files to Mr. Marshall and the clients were provided with new authorization forms to allow Mr. Marshall to speak with the lenders.
“63. After selling the assets of LMLN to Marshall Law Group, in early January, 2010, Mr. Marshall wrote to the Respondent requesting a list of attorneys assigned to specific loan modifications.
‘First and foremost, I need the list of attorneys who were in place for the contracts in states I listed in my most recent letter at a minimum.
‘If you have such a list, please send it first and we can talk about the other issues late today or tomorrow. The bottom line is if it doesn’t exist, I need to know that once and for all before we can come to any other agreement to resolve any of these issues.’
“64. The Respondent responded on January 2, 2010, by stating:
“We need to talk about the attorneys ... my model shifted to where I operated in states with counsel available should a need for co counsel arise ie [sic] . . . matter of state law interpretation needed ... my intent was to always help you retain an attorney from my database should a specific need arise but the contracts are with my firm alone ... so if I gave you a “list” it may not be accurate as some folks may no longer be interested in the work . . it was always on a case by case basis
T recently heard from New York regarding my work there . . . perhaps that is whom you have talked to recently?
T really want to flush this out with you and make tilings as right as possible . . . can we set a time to talk tomorrow? Perhaps right after lunch time?’
“65. On January 4,2010, Mr. Marshall wrote to the Respondent. In the letter, Mr. Marshall formally cancelled the agreement with the Respondent.
T am in receipt of your most recent email wherein you admitted that you actually have not had a network of attorneys retained and in place to ensure compliance in those states wherein Weaver Law Firm clients are located despite your previous claims to the contrary. I can’t speak to your claim that you have shifted your model but you certainly have changed your story and I am not going to play games with you at this point. It is clear you have made material misrepresentations, including your claimed existence of a network of attorneys that supposedly rendered your representation of Weaver Law Firm clients compliant with applicable regulations in numerous states. This and other intentional misrepresentations on your part led to the contract between our firms and have now exposed me and my law firm to significant legal and financial liabilities for which I reserve the right to pursue all available remedies.
‘Consider this to be my formal and final notice that the contract between the Weaver Law Group and the Marshall Law Group is hereby cancelled/ rescinded based upon a material failure of consideration, based upon your intentional and fraudulent misrepresentations and based upon the other reasons that I have stated in writing previously. As a result of the cancellation/ rescission of our contract and tire lack of any of-counsel network that you previously claimed existed, the Marshall Law Firm has no choice but to im mediately cease providing any further assistance to or on behalf of any Weaver Law Firm Clients.
‘Consequently, I am requesting that you contact all Weaver Law Firm clients in writing and advise them of the cancellation/rescission of our contract and instruct them to contact your firm for further assistance. I am also requesting that you copy our firm on those communications. Since time is of the essence in ensuring the interests of Weaver Law Firm clients are protected, our firm intends to notify them regarding the cancellation/rescission of our contract, as well. Of course, since the Weaver Law Firm charged, received and retained the money you collected from Weaver Law Firm clients, you are responsible for providing refunds to those clients who do not desire your assistance any longer or who your firm cannot assist for any reason. For the record, if you fail or refuse to take immediate and appropriate action to protect the interests of Weaver Law Firm clients at this point, you will be responsible for any/all negative consequences that occur as a result.
‘The account that you originally established with Go Daddy to host the Loss Mitigation Legal Network CRM is being returned to you at this time due to the cancellation/rescission of our contract. However, I am requesting continued access to the LMLN CRM for a reasonable period of time so that your efforts to protect the interests of Weaver Law Firm clients can be confirmed.
‘If you refuse to cooperate and immediately notify Weaver Law Firm clients that you are either providing services or refunds to them at this point, I will take necessary steps to seek assistance from relevant legal authorities to resolve this matter. If you have anything to say, I demand that you say it in writing. Either way, it is time for you to step up and take responsibility for your actions and take steps to protect the interests of the Weaver Law Firm clients so as to avoid causing further damage.’
“66. The Respondent, through LMLN, provided some clients requesting refunds with refunds. However, many clients did not receive any assistance from LMLN, requested refunds from the Respondent, but did not receive refunds. The Respondent was unable to provide the Disciplinary Administrator with a list of the clients who were eligible for a refund, requested a refund, but did not receive a refund.
“67. Between October 5, 2009, and January 6, 2011, 36 individuals filed complaints with the Disciplinary Administrator against the Respondent for his conduct in loan modification matters.
“68. During the course of the disciplinary investigation, the Deputy Disciplinary Administrator and the Special Investigator repeatedly requested that the Respondent provide certain documentation pertaining to the loan modification cases. The Respondent failed to provide the requested documents despite the repeated requests to do so.
“69. At the hearing on the formal complaint, six clients testified. Each of the six clients hired the Respondent through LMLN to provide, loan modification services. The testimony of the six clients was intended to be a representative sample of the thirty-six complainants in this case.
“Representative Complainants
“DA11036
“70. On March 4, 2010, [R.S.] of Antioch, California, filed a complaint against the Respondent, case number DA11036.
“71. Mr. [S.] retained LMLN to modify the loan on his home located in Antioch, California. Mr. [S.] believed drat he was retaining a group of people who were educated in loan modification. Mr. [S.] hoped to be able to retain his home as a result of hiring LMLN.
“72. Initially it appeared that progress was being made on his loan modification request. However, after some time, the progress ended. The Respondent telephoned Mr. [S.] and requested permission to perform a ‘forensic audit’ of his mortgage. Mr. [S.] agreed. Thereafter, Mr. [S.] did not hear from the Respondent again.
“73. After Mr. [S.] filed the complaint with the Disciplinary Administrator, die Deputy Disciplinary Administrator provided Mr. [S.] with a copy of die report of the forensic audit. Mr. [S.] had not previously received a copy of die report.
“74. Mr. [S.’s] loan was not modified and he did not receive a refund of the fees paid. Mr. [S.] predicted diat he would lose his home by the end of 2011.
“DA11050
“75. On March 29, 2010, [C.G.] of Port Orchard, Washington, filed a complaint against the Respondent, case number DA11050.
“76. Mr. [G.] retained LMLN to perform a loan modification on his home mortgage. Mr. [G.] paid LMLN $2,999.00. Initially, someone at LMLN by the name of Josh Lentz, assured Mr. [G.] that his loan modification was progressing. Mr. Lentz directed Mr. [G.] and his wife to refrain from contacting the lender.
“77. Based upon Mr. Lentz’ direction, Mr. [G.] did not contact his lender. However, he was served with foreclosure documents. Mr. [G.] called his lender and he was informed that his lender had had no contact with LMLN and was not familiar with LMLN.
“78. Mr. [G.’s] home mortgage was not modified. Mr. [G.] withdrew thousands of dollars from his 401K and is currently only one month past due on his first mortgage. However, Mr. [G.] is significantly past due on his second mortgage.
“79. Mr. [G.] did not receive a loan modification or a refund of the $2,999.00 paid to LMLN.
“DAI 1063
“80. On April 2, 2010, [D.P.] of Phoenix, Arizona, filed a complaint against the Respondent, case number DA11063.
“81. Mr. [P.] received a direct mail advertisement from LMLN. Mr. [P.] called the telephone number listed and was told that LMLN’s attorneys would negotiate a principal reduction or an interest rate reduction in his behalf. Mr. [P.] retained LMLN because an attorney was going to work on his behalf and because he was assured that he would receive a full refund if LMLN was unable to modify his loan.
“82. Initially, LMLN was responsive to Mr. [P.’s] inquiries. However, after some period of time, Mr. [P.] was unable to contact anyone at LMLN. Mr. [P.’s] case was transferred to the Marshall Law Group without Mr. [P.’s] permission. Mr. [P.] contacted Mr. Marshall and was told that Mr. Marshall rescinded his contract with the Respondent because the Respondent provided inaccurate information to Mr. Marshall.
“83. Mr. [P.] did not receive a loan modification nor did he receive a refund. Mr. [P.] is in the process of making a short sale of his home.
“DA11062
“84. On April 12, 2010, [L.R.] of Washington, D.C., filed a complaint against the Respondent, case number DA11062.
“85. Mr. [R.] suffered a mild stroke and was unable to pay the mortgage on his home in Washington, D.C., as well as the mortgage on a house he owned in San Antonio, Texas in which his mother resided. He researched sources for loan modifications on the Internet. Mr. [R.] discovered LMLN.
“86. Mr. [R.] decided to retain LMLN because it was a network of lawyers and specialized in loan modification. Mr. [R.] contacted LMLN by telephone with some questions. When Mr. [R.] called LMLN by telephone, he was assured that the Respondent was a member of the Kansas bar and was trustworthy. Mr. [R.] paid LMLN $1,900.00 for a loan modification on his home in Washington, D.C. Additionally, Mr. [R.] paid LMLN $3,495.00 for a loan modification of his home in San Antonio, Texas, where his mother resided.
“87. After some period of time, Mr. [R.] was unable to contact LMLN at their telephone numbers or electronic mail addresses. Thereafter, Mr. [R.] was notified that his case was transferred to the Marshall Law Group in Florida. Mr. [R.] did not authorize the transfer of his file from the Respondent to Mr. Marshall.
“88. Because Mr. [R.] did not receive the assistance for which he paid the Respondent, he retained a lawyer in Washington, D.C. to assist him with the loan modification. Mr. [R.] was able to modify his loan in approximately four months.
“89. LMLN did not provide loan modifications or any other services to Mr. [R.]. Mr. [R.] requested a refund, but did not receive a refund.
“DA11080
“90. On April 26, 2010, [P.F.] of Brentwood, California, filed a complaint against the Respondent, case number DA11080.
“91. On May 20,2009, Mr. [F.] retained LMLN to modify his home mortgage located in California and the mortgage on a rental property located in Arizona. Mr. [F.] retained LMLN because he believed it to be an attorney group with specific expertise in loan modifications. Mr. [F.] paid LMLN $3,995.00 to modify his home mortgage and $3,495.00 to modify his rental property in Arizona.
“92. The Respondent did not inform Mr. [F.] that die California Department of Real Estate had issued an order to desist and refrain to LMLN and HLP.
“93. At first, LMLN informed Mr. [F.] as to the activity on his loan modification. However, in June or July, 2009, Mr. [F.] was unable to receive any information regarding his loan modification. LMLN failed to return Mr. [F.’s] telephone calls.
“94. Mr. [F.] received notice in early October, 2009, that his file was being sold to die Marshall Law Group in Florida. The Marshall Law Group performed some work on the modification of his home mortgage. However, before die loan modification was complete, Mr. Marshall ceased communicating witíi Mr. [F.j. Mr. [F.] was able to complete die loan modification on this residential mortgage himself.
“95. However, no work was completed on the loan modification of his Arizona rental property. Mr. [F.] requested a refund of the fee paid for die modification of his rental property. Mr. [F.] never received a refund of the fee paid for die modification of his rental property.
“DA11101
“96. On April 29, 2010, [L.M.] of Reno, Nevada, filed a complaint against the Respondent, case number DA11101.
“97. Mr. [M.] retained HLP to modify loans on four rental properties. Mr. [M.] retained HLP because he was informed fiiat attorneys would be working on achieving the modification of die loans and because there was a money back guarantee if they were unable to modify die loans. Mr. [M.] paid $2,995 for each of the four requested loan modifications, for a total paid of $11,980,00. Each of the loans were with different lenders.
“98. Mr. [M.] was directed to not contact die lenders. Mr. [M.’s] contact person at HLP informed Mr. [M.] that as long as he was current on the mortgages, nothing would happen. Based upon that statement, Mr. [M.] stopped paying the four mortgages.
“99. About July 1, 2009, Mr. [M.] was notified that one of die mortgages had been sold to a different lender. Mr. [M.] contacted diat lender to inform die lender that he was working dirough HLP to modify the loan. The lender informed Mr. [M.] that it would not even talk with a diird party about a loan modification.
“100. Mr. [M.] attempted to contact die Respondent to discuss die situation. However, Mr. [M.] was unable to get in contact widi the Respondent.
“101. Later, Mr. [M.] learned that his loan modification cases has been transferred to die Marshall Law Group. Mr. [M.] attempted to contact Mr. Marshall. However, the facsimile telephone number was disconnected and' die letter that Mr. [M.] sent to Mr. Marshall was returned.
“102. Mr. [M.] contacted the four lenders to determine the status of each of the four loan modifications. None of the lenders had received any information from LMLN or HLP. Thereafter, Mr. [M.] modified the loans on his own.
“103. Mr. [M.] requested a refund of the fees paid. However, he never received a response or his money back.
“CONCLUSIONS OF LAW
“104. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.15, KRPC 1.16, KRPC 4.1, KRPC 5.3, KRPC 5.4, KRPC 5.5, KRPC 7.1, KRPC 8.1, and KRPC 8.4, as detailed below.
“KRPC 1.3
“105. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The Respondent failed to diligently and promptly represent his clients in this case. The Respondent failed to take any steps to ensure that the loan modification clients received timely representation. The six representative clients presented a clear picture that the Respondent failed to provide any representation to them. Because the Respondent failed to act with reasonable diligence and promptness in representing his clients, the Hearing Panel concludes that the Respondent repeatedly violated KRPC 1.3.
“KRPC 1.4
“106. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ In this case, the Respondent failed to return telephone calls and failed to respond to letters and electronic mail messages. Because the Respondent failed to provide his clients with reasonable communication, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“KRPC 1.15
“107. Lawyers must deal properly with the property of their clients and must keep the property of their clients safe.
‘A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state of Kansas. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.’ KRPC 1.15(a).
The Respondent violated KRPC 1.15(a) when he deposited unearned fees into his operating account, thereby commingling his funds with those of his clients. Further, the Respondent admits to his misconduct in this regard. As such, the Hearing Panel concludes that the Respondent violated KRPC 1.15(a).
“KRPC 1.16
“108. KRPC 1.16 also requires lawyers to take certain steps to protect clients after the representation has been terminated. Specifically, KRPC 1.16(d) provides the requirement in this regard:
‘Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.’
The Respondent violated KRPC 1.16(d) when he transferred his cases to Mr. Marshall without obtaining permission from his clients. Additionally, the Respondent violated KRPC 1.16(d) when he failed to provide refunds to clients of unearned fees. The Hearing Panel concludes that the Respondent repeatedly violated KRPC 1.16(d).
“KRPC 4.1
“109. KRPC 4.1(a) provides that ‘[i]n the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.’ The Respondent repeatedly violated KRPC 4.1(a). The Respondent violated KRPC 4.1(a) when he informed Mr. Van Driel that he was opening an office in California. The Respondent also violated KRPC 4.1(a) when he informed Mr. Marshall and clients that LMLN consisted of a nation-wide network of attorneys. Additionally, the Respondent violated KRPC 4.1(a) when he informed his clients that their cases would be reviewed by an attorney licensed in their state of residence. Finally, the Respondent violated KRPC 4.1(a) when he stated in the advertising material that he would provide bankruptcy and other legal services when he had no intention of ever providing such services. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 4.1(a).
“KRPC 5.3
“110. Attorneys, in supervisory positions, must properly supervise nonlawyer assistants. In the stipulation, the Respondent admitted that he failed to properly supervise nonlawyer assistants. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 5.3.
“KRPC 5.4
“111. Attorneys are prohibited from splitting fees with nonlawyers. See KRPC 5.4. In this case, the Respondent violated KRPC 5.4 on approximately 1,200 occasions. The Respondent shared the fees paid by the loan modification clients with nonlawyers at eBizware and HLP. The Respondent admits to his misconduct in this regard. As such, the Hearing Panel concludes that the Respondent violated KRPC 5.4.
“KRPC 5.5
“112. KRPC 5.5(b) prohibits attorneys from ‘assist[ing] a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.’ The Respondent hired Mr. Patterson to work for LMLN after Mr. Patterson’s license to practice law in the State of Kansas was suspended. Mr. Patterson engaged in the practice of law by meeting with clients. Thus, the Hearing Panel concludes that the Respondent violated KRPC 5.5(b) by assisting Mr. Patterson in the unauthorized practice of law.
“KRPC 7.1
“113. KRPC 7.1 provides:
‘A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it:
(a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.’
The Respondent violated KRPC 7.1 when he issued the advertising material that LMLN consisted of a nation-wide network of attorneys. Other than the Respondent, only one other attorney was in the ‘nation-wide network of attorneys.’ The Respondent’s statement was materially false. Additionally, the Respondent violated KRPC 7.1 when he stated in the advertising material that he would provide bankruptcy and other legal services when he had no intention of ever providing such services. As such, the Hearing Panel concludes that the Respondent violated KRPC 7.1.
“KRPC 8.1
“114. Lawyers must cooperate in disciplinary investigations. KRPC 8.1(b) provides the requirement in this regard. ‘[A] lawyer in connection with a . . . disciplinary matter, shall not: . . . knowingly fail to respond to a lawful demand for information from [a] . . . disciplinary authority.’ KRPC 8.1(b). The Deputy Disciplinary Administrator and the Special Investigator repeatedly requested that the Respondent provide certain documentation. The Respondent repeatedly failed to do so. As a result, tire Hearing Panel concludes that the Respondent violated KRPC 8.1(b).
“KRPC 8.4
“115. ‘It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). The Respondent engaged in conduct involving dishonesty when he informed Mr. Van Driel that he was opening an office in California. The Respondent also engaged in dishonest conduct when he informed Mr. Marshall and clients that LMLN consisted of a nation-wide network of attorneys. Additionally, the Respondent engaged in conduct that involved dishonesty when he informed his clients that their cases would be reviewed by an attorney licensed in their state of residence. Finally, the Respondent engaged in dishonest conduct when he stated in the advertising material that he would provide bankruptcy and other legal services when he had no intention of ever providing such services. As such, the Hearing Panel concludes that tire Respondent violated KRPC 8.4(c).
“116. ‘It is professional misconduct for a lawyer to . . . engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’ KRPC 8.4(g). The Respondent engaged in predatory conduct with regard to the loan modification clients. Many of the loan modification clients were in dire financial straits. The Respondent preyed on their vulnerability by assuring them that a licensed attorney would be assisting them with their loan modification and by guaranteeing that their money would be refunded if their loan was not modified. Predatory conduct of this sort adversely reflects on the Respondent’s fitness to practice law. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(g).
“AMERICAN BAR ASSOCIATION
“STANDARDS FOR IMPOSING LAWYER SANCTIONS
“117. 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 injuiy caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“118. Duty Violated. The Respondent violated his duty to his clients to provide diligent representation and adequate communication. The Respondent violated his duty to his clients to properly safeguard his clients’ property. The Respondent violated his duty to his clients, the public, and the legal profession by fading to maintain his personal integrity.
“119. Mental State. The Respondent knowingly and intentionally violated his duties.
“120. Injury. As a result of the Respondent’s misconduct, the Respondent caused actual serious injury to the loan modification clients.
“121. 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:
“122. Dishonest or Selfish Motive. The Respondent’s misconduct was motivated by dishonesty and selfishness. The Respondent’s scheme was to get something for nothing. By lending his law license to eBizware and HLP, the Respondent received money. Accordingly, the Hearing Panel concludes that the Respondent’s misconduct was motivated by dishonesty and selfishness.
“123. A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct. Over a period of approximately one year, the Respondent solicited loan modification clients. The Respondent assured the clients that they would receive their money back if their loan was not modified. While the Respondent provided some refunds, many clients did not receive their money back.
“124. In addition to the pattern of misconduct of failing to refund the fees, the Respondent also engaged in a pattern of misconduct by failing to diligently work on the loan modification cases, by failing to communicate with his clients, and by failing to properly terminate the representation.
“125. Thirty-six individuals filed complaints alleging the same or similar misconduct. Accordingly, the Hearing Panel finds that tire Respondent’s pattern of misconduct is a significant aggravating factor in this case.
“126. Multiple Offenses. The Respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.15, KRPC 1.16, KRPC 4.1, KRPC 5.3, KRPC 5.4, KRPC 5.5, KRPC 7.1, KRPC 8.1, and KRPC 8.4. Accordingly, the Hearing Panel concludes that file Respondent committed multiple offenses.
“127. Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. The Deputy Disciplinary Administrator and the Special Investigator requested that the Respondent provide specific documentation regarding the loan modification cases. The Respondent failed to do so. As such, the Hearing Panel concludes that the Respondent intentionally failed to comply with the rules or orders of the disciplinary process.
“128. Vulnerability of Victim. Many of the loan modification clients were vulnerable. Many of them were significantly past due on their mortgages and faced losing their homes. The Hearing Panel concludes that the victims of the Respondent’s misconduct were vulnerable.
“129. 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:
“130. Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“131. Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent introduced a number of letters of support. The authors of the letters expressed their opinion regarding the Respondent’s character.
“132. Remorse. The Respondent expressed remorse for having engaged in the misconduct.
“133. In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘4.11 Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client.
‘4.61 Disbarment is generally appropriate when a lawyer knowingly deceives a client with the intent to benefit the lawyer or another, and causes serious injury or potentially serious injury to a client.
‘5.11 Disbarment is generally appropriate when:
(a) a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses;
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that serious adversely reflects on the lawyer’s fitness to practice.
‘7.1 Disbarment is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injuiy to a client, the public, or the legal system.’
“RECOMMENDATION
“134. The Disciplinary Administrator recommended that the Respondent be disbarred. Counsel for die Respondent recommended that die Respondent be indefinitely suspended from the practice of law.
“135. Based upon the findings of fact, conclusions of law, and the Standards listed above, die Hearing Panel unanimously recommends that the Respondent be disbarred.
“136. Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and die arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2011 Kan. Ct. R. Annot. 334). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.’” ” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
Respondent was given adequate notice of the formal complaint, to which he filed an answer, and adequate notice of both the hearing before the panel and the hearing before this court. The respondent filed no exceptions to the hearing panel’s final hearing report. As such, the findings of fact are deemed admitted. Supreme Court Rule 212(c), (d) (2011 Kan. Ct. R. Annot. 352). Moreover, the hearing panel’s findings are supported by clear and convincing evidence. Further, the panel’s factual findings support its conclusions of law. We therefore adopt the panel’s findings and conclusions. Thus, the only issue before us is the appropriate discipline to be imposed.
At the hearing before this court, the office of the Disciplinary Administrator supported the hearing panel’s recommendation that the respondent be disbarred. The respondent, through counsel and personally, continued to request indefinite suspension. Respondent personally professed to the court that his troubles were born of good intentions and that his overarching desire was simply to help people with their mortgage problems. We are unpersuaded by that argument. Respondent took money from thousands of distressed and vulnerable mortgagors; he gave most of that money to non-lawyers and did nothing on behalf of the mortgagors; and then respondent refused to refund the fees to the dissatisfied clients as his advertisement had promised. Disbarment is the appropriate sanction.
Conclusion and Discipline
It Is Therefore Ordered that Tracy D. Weaver be disbarred from the practice of law in the state of Kansas, effective on the filing of this opinion, in accordance with Supreme Court Rule 203(a)(1) (2011 Kan. Ct. R. Annot. 280).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2011 Kan. Ct. R. Annot. 379).
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas reports. | [
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The opinion of the court was delivered by
Moritz, J.:
Stan Szczygiel, acting pro se, appeals the district court’s denial of his motion to withdraw his plea and motion to correct illegal sentence. We have jurisdiction under K.S.A. 2011 Supp. 21-3601(b)(3) (maximum sentence of life imprisonment imposed). We affirm the district court’s denial of both motions.
Factual and Procedural Background
Szczygiel was charged in 1980 with rape, burglary, and aggravated kidnapping with intent to commit rape. He pleaded guilty to an amended charge of kidnapping with the intent to facilitate flight and was sentenced to a term of 5 years to life in prison.
Szczygiel signed a petition to enter a plea of guilty which indicated as the “terms” of the agreement: “Reduce charges to kid napping K.S.A. 21-3420.” In the petition, Szczygiel verified that he entered the plea knowingly and understanding^ and without threats or promises.
While Szczygiel failed to include a transcript of die plea hearing in the record on appeal, we note that in the journal entiy of judgment, the sentencing court found that Szczygiel freely and voluntarily pleaded guilty to the crime charged in the amended information.
In March 2010, Szczygiel moved to withdraw his guilty plea, and in June 2010, he moved to correct an illegal sentence. Following a nonevidentiary hearing, the district court denied both motions.
Analysis
Motion to Withdraw Plea
In support of his assertion that the district court abused its discretion in refusing to permit him to withdraw his plea, Szczygiel contends: (1) The State violated the plea agreement when the Kansas Department of Corrections (KDOC) labeled him a sex offender; (2) the State failed to disclose exculpatory documents prior to the entry of his plea; and (3) he was denied effective assistance of counsel because his counsel failed to conduct discovery prior to the entry of his plea.
When a defendant files a motion to withdraw a plea after sentencing, the court may permit withdrawal of the plea only “[t]o correct manifest injustice.” K.S.A. 2011 Supp. 22-3210(d)(2). Absent an abuse of discretion, we will not disturb a district court’s denial of a postsentence motion to withdraw plea. State v. Flores, 292 Kan. 257, 258, 252 P.3d 570 (2011); see State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011) (stating abuse of discretion standard of review), cert. denied 132 S. Ct. 1594 (2012).
Timeliness of Motion to Withdraw Plea
On appeal, Szczygiel challenges the district court’s finding that his motion to withdraw his plea was untimely as it was filed beyond the 1-year period provided in K.S.A. 2011 Supp. 22-3210(e)(l). Because we hold that a 1-year grace period applies to preexisting claims under that statute, we conclude the district court erred in finding the motion untimely.
The legislature amended K.S.A. 22-3210 in 2009 to require that a motion to withdraw plea be brought within 1 year of:
“(A) The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction; or (B) the denial of a petition for a writ of certiorari to the United States [Sjupreme [Cjourt or issuance of such court’s final order following the granting of such petition.” K.S.A. 2011 Supp. 22-3210(e)(l).
However, the statute did not specify how it applies to preexisting claims.
Recently, in State v. Benavides, 46 Kan. App. 2d 563, Syl. ¶ 3, 263 P.3d 863 (2011), a panel of tire Court of Appeals considered this issue and concluded the 1-year statute of limitations did not begin to run for preexisting claims until tire date the amended statute became effective — April 16, 2009. See L. 2009, ch. 61, secs. 1, 5. We concur with Benavides’ well-reasoned analysis and the panel’s analogy to K.S.A. 60-1507 jurisprudence. See Benavides, 46 Kan. App. 2d at 566-568 (discussing Hayes v. State, 34 Kan. App. 2d 157, 115 P.3d 162 [2005], which applied a 1-year grace period to preexisting claims under K.S.A. 60-1507[f]).
Here, Szczygiel filed his motion to withdraw plea on March 10, 2010, within the 1-year grace period for preexisting claims. Therefore, we conclude Szczygiel timely filed his motion to withdraw his plea, and we move on to the merits of his appeal.
Violation of Plea Agreement
Szczygiel claims he had no written plea agreement with the State, but that pursuant to an oral plea agreement, the State agreed not to label or treat him as a sex offender. He contends the State breached this agreement when the KDOC later served him with a sex offender override order and that the State’s breach of the plea agreement entitles him to withdraw his plea.
Contrary to Szczygiel’s assertion, the record on appeal includes a written plea agreement signed by Szczygiel. In that agreement, Szczygiel verified that no promises were made to him other than those stated in the agreement. Further, tire agreement contains no reference to the State’s alleged promise not to label or treat Szczy-giel as a sex offender. Therefore, we reject Szczygiel’s claim that he was entitled to withdraw his plea on the ground that the State breached the plea agreement.
Failure to Disclose Exculpatory Documents
Szczygiel next contends his plea was not knowingly or understandingly made because he was denied “the ability to make an accurate calculus of the evidence and facts of the case to determine whether the best option . . . was to go to trial or to enter into the plea agreement.” . He asserts his constitutional due process rights and his Kansas statutory discovery rights were violated by the State’s failure to disclose to him prior to the entry of his plea the victim’s (1) affidavit, (2) medical records from her physical examination following the rape, and (3) “[p]re-testimony interview transcription.” Each of these items is considered separately below.
First, the record on appeal indicates the victim’s affidavit was filed on September 9,1980, but Szczygiel did not plead guilty until March 1981. Thus, we find no support for Szczygiel’s claim that the State failed to provide the affidavit prior to his plea.
Second, regarding the medical records and interview transcript, Szczygiel appears to assert that these records constituted potential impeachment evidence and the government’s failure to provide those records violated his due process rights. See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). But even assuming Szczygiel can establish the materiality of these records, his constitutional claim fails because the government was not required to disclose material impeachment evidence prior to the plea. See United States v. Ruiz, 536 U.S. 622, 633, 122 S. Ct. 2450, 153 L. Ed. 2d 586 (2002) (The United States Constitution does not require the government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant.).
Szczygiel also asserts that the State violated its statutory duty to disclose the victim’s medical records and interview transcript under K.S.A. 22-3212 (Ensley 1981), which governed discovery and inspection. But that statute does not support either of Szczygiel’s claims. Regarding the medical records, K.S.A. 22-3212(1) (Ensley 1981) required the prosecutor, upon request, to permit inspection and copying of the results or reports of physical or mental examinations. But Szczygiel’s claim fails because tire record does not indicate he ever requested the victim’s medical records prior to the entiy of his plea.
Further, the State would have been specifically prohibited from providing the victim’s interview transcript under K.S.A. 22-3212(2) (Ensley 1981). That statute prohibited discovery or inspection of “reports, memoranda, or other internal government documents made by officers in connection with the investigation or prosecution of the case, or of statements made by state witnesses or prospective state witnesses (other than the defendant) except as may be provided by law.” K.S.A. 22-3212(2) (Ensley 1981).
Thus, Szczygiel’s claims of constitutional and statutory violations do not support his claim that his plea was not knowingly and understandingly made.
Ineffective Assistance of Counsel
Next, Szczygiel contends he was denied effective assistance of counsel because his counsel failed to request or conduct discovery. “Defendants have a Sixth Amendment right to counsel, a right that extends to the plea-bargaining process. [Citations omitted.] During plea negotiations defendants are ‘entitled to the effective assistance of competent counsel.’ McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970).” Lafler v. Cooper, 566 U.S. _, 132 S. Ct. 1376, 1384, 182 L. Ed. 2d 398 (2012).
To demonstrate manifest injustice that would warrant setting aside his plea based on ineffective assistance of counsel, Szczygiel must show that (1) counsel’s performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel’s errors, Szczygiel would not have pleaded guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 57-59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985); State v. Sanchez-Cazares, 276 Kan. 451, 457-58, 78 P.3d 55 (2003).
Even if we assume his counsel’s performance fell below an objective standard of reasonableness, Szczygiel fails to establish he was prejudiced by counsel’s ineffective performance, i. e., that there is a reasonable probability that, but for counsel’s errors, Szczygiel would not have pleaded guilty and would have insisted on going to trial. See Hill, 474 U.S. at 59. In the context of Szczygiel’s claim that counsel failed to investigate or discover potentially exculpatory evidence, our decision turns on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. See 474 U.S. at 59.
While Szczygiel insists he would not have pleaded guilty had he been aware of the contents of the victim’s affidavit, medical records, and pre-testimony interview transcript, Szczygiel’s argument conveniently ignores the risks associated with trial. See Sanchez-Cazares, 276 Kan. at 458. Had he proceeded to trial, Szczygiel would have faced charges of rape, burglary, and aggravated kidnapping with intent to commit rape instead of one charge of kidnapping with the intent to facilitate flight.
Moreover, Szczygiel concedes his attorney advised him to enter into a plea agreement because “there was no evidence to support Szczygiel’s claim of innocence and that the case would be decided on the credibility of the witness [J.B.] versus Szczygiel.” But, the medical records and pre-testimony interview transcript ultimately do not appear to support Szczygiel’s claim of innocence. Thus, we conclude any potential error by counsel in failing to request discovery did not prejudice Szczygiel.
Motion to Correct Illegal Sentence
Szczygiel next contends the district court erred in dismissing his claim that his sentence is illegal because it fails to conform to K.S.A. 21-4606(2) (Ensley 1981). Specifically, he suggests the victim’s perjured preliminary hearing testimony misled the sentencing court “as to the factual evidence relied on to establish the factors required by K.S.A. 21-4606” to impose a life sentence.
Whether a sentence is illegal is a question of law over which we exercise unlimited review. State v. LaBelle, 290 Kan. 529, 532, 231 P.3d 1065 (2010).
“ ‘An illegal sentence is a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in character or the term of the punishment authorized, or a sentence which is ambiguous with regard to the time and manner in which it is to be served.’ ” 290 Kan. 529, Syl. ¶ 1.
K.S.A. 21-4606(2)(b) (Ensley 1981) directed the sentencing court to consider, as one of seven noncontrolling factors, the extent of the harm caused by the defendant’s criminal conduct, when fixing the minimum term of imprisonment. Szczygiel argues his sentence did not conform to this statutory provision. Specifically, he maintains the sentencing court improperly considered perjured testimony in determining the extent of the harm caused by his criminal conduct.
But because Szczygiel does not argue that his sentence did not conform to the statutory provision in character or the term of the punishment authorized, his challenge to the legality of his sentence is fatally flawed. See LaBelle, 290 Kan. 529, Syl. ¶ 1. The district court properly denied Szczygiel’s motion to correct an illegal sentence.
Affirmed. | [
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The opinion of the court was delivered by
Beier, J.:
This direct appeal challenges defendant Periy Parks’ convictions and his consecutive hard 20 life and 247-month sentences for the first-degree felony murder and aggravated robbery of Everett Suits in Kansas City in May 2008.
Parks raises eight questions on this appeal: (1) Did the district judge err in admitting evidence of Parks’ post-Miranda silence? (2) Did violation of an order in limine prohibiting reference to Parks’ possession of illegal drugs violate Parks’ right to fair trial? (3) Was Parks’ right to confrontation violated by limitation of his counsel’s cross-examination of a State’s witness about the witness’ immigration status? (4) Was the district judge’s inclusion of an Allen-type instruction reversible error? (5) Did cumulative error deprive Parks of a fair trial? (6) Did the district judge err in sentencing Parks for both first-degree felony murder based on the underlying felony of aggravated robbery and for aggravated robbery? (7) Did the district judge err in sentencing Parks to the term of imprisonment at the upper limit of the applicable Kansas Sentencing Guidelines Act grid box without requiring a juiy to find the existence of an aggravating factor beyond a reasonable doubt? and (8) Did the district judge err by sentencing Parks based on criminal history that was not proved to a juiy beyond a reasonable doubt?
We affirm Parks’ convictions and consecutive sentences.
Factual and Procedural Background
Before trial, Parks’ counsel filed a motion in limine seeking to prevent the State from introducing evidence that marijuana was found at Parks’ residence when he was arrested. The district court judge granted the motion.
At trial, Parks admitted to killing Suits but argued he did so in self-defense. The State’s theory was that Parks shot and robbed Suits over a debt. Four eyewitnesses to the shooting and the argument that led to it testified at trial.
Jeff Aleksaites testified that he observed a confrontation between Parks and Suits from his apartment window. Aleksaites saw the men standing in a parking lot by a pickup truck where they were arguing about money. When Suits attempted to leave in his truck, Parks prevented him from doing so and brandished a weapon. There was a brief struggle over the gun, and then Parks shot Suits. Aleksaites testified that Suits had a briefcase at the beginning of the argument; and, although Aleksaites never saw Parks with the briefcase, he saw him reach for it at one point and knew tire briefcase was missing after tire shooting.
Kara Krenzer testified that she witnessed the argument that led to the shooting from her car in the parking lot. Krenzer said she had seen Parks once before when he tried to get Suits’ attention for something related to work. Krenzer saw Suits come down a set of stairs to the lot, saw Parks greet him, and saw the men walk to Suits’ truck. Krenzer, with her passenger, Christine Enfield, pulled her car near to Suits’ truck. Krenzer overheard Parks asking for money and heard Parks say, “You are going to give me something,” as he reached for Suits’ briefcase. Suits pulled back on the briefcase. At that point, Parks reached into his pocket for a gun and pointed it at Suits through his shirt. Parks then looked at Krenzer and said, “Do you want to make this your problem?” Krenzer heard Suits say, “If you are going to shoot me, shoot me.” Enfield then urged Krenzer to leave and call 911. Krenzer heard gunshots fired as she drove out of the lot. She proceeded around a comer to another parking lot and pushed an emergency call button to notify police. When she returned to the scene, she saw Parks walking away. At trial, she could not remember at trial if Parks was carrying anything with him. Krenzer had been unable to identify Parks in a photographic lineup pretrial, but she identified him as the shooter at trial.
Enfield also testified about what she saw and heard at the scene of the shooting. Her testimony largely repeated Krenzer’s, and she identified Parks as the man who argued with Suits.
Pedro Morales testified at trial through the aid of an interpreter. Morales first testified outside of the presence of the juiy that he was not promised anything with regard to his immigration status in exchange for his testimony. Before the juiy, Morales said he was returning from work and heard a gunshot when he got out of his car. He ran toward the fence separating his apartment’s parking lot from that of a neighboring building, looked into the other parking lot, and saw the man he later identified as Parks shooting Suits. Morales said he heard Suits yell, “Don’t shoot!” Morales then saw Parks carrying a briefcase away from the scene. Morales wrote down the license plate number of the truck Parks drove away; and, when police arrived, Morales approached them and gave them the license plate number.
Other trial witnesses for the State included Morris Dwayne Erwin, Suits’ cousin, who testified about Suits’ construction business. Erwin knew Parks from Parks’ work for Suits on two different job sites. Erwin testified that Parks repeatedly called Suits, because Suits had written Parks a bad check and owed him money.
Pathologist Erik Mitchell, M.D., testified that Suits had a gunshot entry wound on the outside of his right arm and had two abrasions below his knees. Mitchell testified that Suits’ arm had to have been raised at the time he was shot, but it was not possible for Mitchell to tell whether Suits was standing, on his knees, or lying down then.
Several members of law enforcement testified for the State.
One of the detectives who responded to the scene, Darren Ko-berlein, said he spoke with witnesses Aleksaites, Krenzer, Enfield, and Morales. Koberlein said that both Krenzer and Enfield reported that Suits had had a briefcase with him, and Krenzer told him she had observed Parks take the briefcase from the scene. Aleksaites told Koberlein he had seen a struggle over the briefcase. Morales told Koberlein that he saw the shooter take the briefcase. No briefcase was recovered from the scene. Nor were any spent cartridges or shell casings. Crime scene investigators did not examine or record findings about their observations of the bottom surface of Suits’ truck.
Parks’ vehicle was identified from the license plate number given to police by Morales, and Parks was arrested at his house early in the morning on the day after the shooting.
At the time of Parks’ arrest, police collected ammunition, clothing, and cleaning solution from Parks’ house. During questioning by the prosecutor at trial, Detective Bryan Block mentioned that “some marijuana” was found at Parks’ house. Parks’ counsel objected and told the district judge during a conference at the bench, “I don’t know that the jury can set that aside,” because the testimony placed “a negative stigma [on] the defendant.” The judge asked whether Parks was seeking a mistrial; Parks’ counsel first conferred with Parks and then said, “No, Judge, but I would just ask the jury to be instructed . . . [t]o disregard the statement that there were any illegal drugs found in the defendant’s residence. I don’t know how to cure it. That’s my only problem.” Parks’ counsel also made clear that he was not requesting a specific written in struction on the issue. The district judge then orally announced to the jury that the defense objection was sustained and directed jurors to disregard the last question and answer.
Both Koberlein and Block testified about their interview of Parks after his arrest.
Block testified that Parks signed an advice of rights form before beginning his interview. Block also testified about the police department’s interview protocol, which, he explained, consisted of a “preinterview” to “get to the meat of the matter” and then an attempt to get a taped statement. The prosecutor asked Block whether he was able to get a taped statement from Parks, and Block said, “No.” The prosecutor asked Block why, and Block responded, “He did not want to go on tape.”
At that point, Parks’ counsel objected and said at a bench conference:
“It is fine for the State to say that he voluntarily gave a statement. It is fine for him to discuss the statement, but when they say he refused to give a statement, and asked for an attorney is what happened here, they are switching the burden to the defendant. They are saying he is responsible if he refuses, so we would object to him talking about refusing to give a further statement.”
The prosecutor responded to this argument by saying that Parks “declined to go on the record with a formal taped statement” and “[tjhat’s why we have a partial videotape instead of a full, because the defendant ultimately refused to go on tape, didn’t refuse to give a statement, did ask for a lawyer towards the end, and that’s where the questioning is halted.” Parks’ counsel acknowledged that Parks had given a “voluntaiy statement” but said tire police stopped recording when Parks invoked his right to counsel. The district judge asked, “If you have an explanation on what tire video is, why don’t you just play it without any reference to him refusing!?]” The prosecutor said again that the State wanted to be able to “explain why this tape doesn’t start at the beginning,” and the district judge said, “Yeah, that’s fine.” Parks’ counsel then agreed, stating, “If she just wants to get out of them, they did a video of part of the interview, that’s fine.”
Parks’ counsel did not request that Block’s earlier testimony about Parks not wanting to “go on tape” be stricken or that the jury be instructed to disregard it. The district judge did neither sua sponte.
The videotaped portion of Parks’ interview played to the jury at trial ended shortly after one of the two detectives conducting the interview asked, “So you don’t want to give us a taped statement, is that what you’re saying?” and Parks responded, “No. I think I should have a lawyer[. Tjhen we’ll tell the story again.”
Block also testified that Parks told the detectives his side of the story on the shooting. According to Block, Parks admitted that he had been involved in the shooting but said that Suits attacked and he defended himself. Parks also stated that he went to the parking lot to collect money Suits owed him. His confrontation with Suits took place between two pickup trucks. Parks had brought a gun with him and moved it to his pocket, but he claimed that Suits struck him in the face and kicked him. Then the two men “got into a tussle” and were under one of the trucks. When Suits stood up and began trying to kick Parks, Parks shot Suits.
Koberlein described Parks as “forthcoming” during his interview by the detectives. Parks told them that he went to Suits’ apartment to confront him about the debt, and Suits attacked him. Parks said he did not usually carry a gun but took one with him to the scene. Parks told the detectives that Suits struck him in the face and chest, and Parks dropped to the ground under a truck. When Suits tried to kick him, Parks fired two shots. Parks told Koberlein that Suits had a briefcase with him, but Parks did not take it.
Defense witnesses at trial included Parks’ son, Patrick, and Parks himself
Patrick said that he had introduced Suits to his father, and Patrick and his father completed two jobs for Suits. On the day of the shooting, Patrick and his father discussed bounced checks from Suits. Patrick told his father he needed to “watch out” for Suits because Suits had offered Patrick drugs and Patrick believed Suits was a drug dealer.
Parks’ own testimony confirmed that he worked on two jobs for Suits and that Suits’ checks bounced. On the day of the shooting, Parks said, Patrick warned him that Suits had tried to sell him drugs and told him to be careful. Parks had visited Suits before at his apartment after the first job. On the day of tire shooting, after the second job, Parks went to collect his money from Suits. Two “girls” would not let Parks into Suits’ apartment building, but he saw Suits come outside. Parks said that Suits told him he had the money and that they shook hands and then went to Suits’ truck. The two girls then pulled up, and Parks told them to go away because he and Suits “were trying to have a little bit of business.” After they left, Parks said, Suits “sucker punched” Parks in the temple when Parks was expecting Suits to hand him the money. Parks said that he and Suits then started wrestling and that he got under the truck while Suits was kicking him. When Suits reached down and tried to pull Parks from under the truck, Parks said, Parks shot Suits because he was afraid for his life.
Parks also testified that he was upset but not angiy when he went to see Suits. He said he had never pointed a gun at anyone before and conceded that he could have filed a lawsuit to try to collect the debt from Suits. Parks testified that he did not normally carry a gun, but he took one with him on the day of the shooting because he was afraid of Suits. Parks admitted that he had never told the police that his son warned him about Suits, and he conceded that he never saw a weapon on Suits the day of the shooting.
Parks also testified about his interview by Koberlein and Block, saying the detectives “went over and over the same tiling over and over.” Parks’ counsel then asked, “And then ultimately you asked for an attorney and they terminated the interview?” Parks answered, “Yes.”
The written instructions given to Parks’ jury before deliberations began included a direction to “disregard any testimony or exhibit which [the court] did not admit into evidence.” They also included a modified Allen-type instruction, see Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896), which read:
“Like all cases, this is an important case. If you fail to reach a decision on some or all of the charges, that charge or charges are left undecided for the being. It is then up to die state to decide whether to resubmit the undecided charges to a different juiy at a later time. Anotiier trial would be a burden on botíi sides.
“This does not mean that those favoring any particular position should surrender dieir honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision.
“This does mean that you should give respectful consideration to each other’s views and talk over any differences of opinion in a spirit of fairness and candor. If at all possible, you should resolve any differences and come to a common conclusion.
“You may be as leisurely in your deliberations as the occasion may require and take all the time you feel necessary.”
Discussion
Evidence of post- Miranda silence
Parks argues that the State committed reversible error by introducing evidence of what he contends was his post-Miranda silence, citing Doyle v. Ohio, 426 U.S. 610, 618-19, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). Specifically, Parks asserts, the State elicited “testimony that Mr. Parks asked to remain silent when the police wanted him to give a taped statement.” The State responds that the testimony to which Parks points — Block’s reference to Parks not wanting to “go on tape” — -was merely an explanation for why there was no videorecording of the entire interview. The State argues that the detective’s testimony about Parks’ refusal to be taped is not equivalent to testimony about Parks’ invocation of his right to remain silent.
We review this legal issue de novo. State v. Tully, 293 Kan. 176, 185, 262 P.3d 314 (2011).
Doyle established that when a defendant invokes his or her right to remain silent, the State may not use that silence against the defendant at trial. State v. Kemble, 291 Kan. 109, 123, 238 P.3d 251 (2010). As we have said:
“The familiar recitation set forth in Miranda . . . advises a defendant that he or she has the right to remain silent and warns that if he or she chooses not to exercise the right to remain silent, then anything that he or she says can and will be used against the person in a court of law. The corollary is that if a duly warned person does exercise the right to remain silent, then anything that the person did not say, i.e,, the person’s silence, cannot and will not be used against them in a court of law.” Kemble, 291 Kan. at 122.
“ ‘A Doyle violation occurs when the State attempts to impeach a defendant’s credibility at trial by arguing or by introducing evidence that tire 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).’ ” State v. Drayton, 285 Kan. 689, 707, 175 P.3d 861 (2008) (quoting State v. Edwards, 264 Kan. 177, 195, 955 P.2d 1276 [1998]).
Even if a defendant has “already spoken at length with the police,” a Doyle violation can occur. “[A] defendant ‘should be afforded the same right [under Doyle] after some discussion with the police when he remains silent as to matters later asserted at trial.’ ” State v. Murray, 285 Kan. 503, 521, 174 P.3d 407 (2008) (quoting State v. Clark, 223 Kan. 83, 89, 574 P.2d 174 [1977]).
Parks points to this court’s decisions in State v. Brinkley, 256 Kan. 808, 820, 888 P.2d 819 (1995), and State v. Gadelkarim, 256 Kan. 671, 685, 887 P.2d 88 (1994), as well as the Court of Appeals’ decision in State v. DuMars, 33 Kan. App. 2d 735, 748, 108 P.3d 448, rev. denied 280 Kan. 986 (2005), as support for his characterization of Block’s statement as a Doyle violation. But nothing in Brinkley, Gadelkañm, or DuMars makes the link necessaiy for Parks’ argument to succeed. None of these cases held that testimony about a defendant’s refusal to make a statement memorialized in a particular way — for example, by means of the videore-cording at issue here — -to be an impermissible comment on the defendant’s invocation of his or her right to remain silent. See Brinkley, 256 Kan. at 820-21 (defendant initially refused to speak to police on advice of counsel); Gadelkarim, 256 Kan. at 684 (defendant stated he wanted to speak with his attorney before answering questions); DuMars, 33 Kan. App. 2d at 747 (defendant stated she would not answer any more questions).
In other jurisdictions, there is conflicting authority on the question of whether a refusal to be videotaped or otherwise recorded implicates the right to silence protected by the Doyle rule.
In Strickland v. Lee, 471 F. Supp. 2d 557, 623 (W.D.N.C. 2007), one federal district court held that testimony about a defendant’s refusal to write his statement was permissible:
“This Court finds that when [defendant/petitioner] indicated that he did not want to write out a statement going over the same information that he had just told the officers, Petitioner was not invoking his right to silence. Instead, [Petitioner] merely was declining to repeat in writing what he had just said out loud . . . . This does not imply that [Petitioner] was no longer willing to talk to officers about the shooting. Therefore, Agent Underwood’s trial testimony that Petitioner declined to convert his oral statement to a written one was a description of the conclusion of Petitioner’s voluntary conversation with police and not a comment on Petitioner’s ‘silence.’ ”
Cf. State v. Smith, 107 Conn. App. 746, 753, 746 A.2d 926 (2008) (defendant did not refuse to speak to police, “conditioned his silence,” stating preference to speak to State’s attorney; Doyle inapplicable”).
On the other hand, other courts have held such a refusal to memorialize a statement in a certain way implicates Doyle. See, e.g., Arnold v. Runnels, 421 F.3d 859, 864 (9th Cir. 2005) (noting that a defendant can “invoke [] his Miranda rights selectively, with respect to a tape-recorded interrogation”); United States v. Jenkins, 499 F. Supp. 2d 1268, 1276 (M.D. Fla. 2007) (“To be sure, there is a distinction here in that defendant did not invoke a right to discontinue making verbal statements. Rather, he declined to memorialize his verbal statements in a sworn written statement. However, this is not a distinction which diminishes [defendant’s] Doyle position.”).
We are persuaded by the reasoning of those courts that hold that a defendant’s refusal to memorialize his or her statement in a particular form is not equivalent to an invocation of the right to silence implicating Doyle. In this case, Parks did not invoice his right to remain silent. In the words of one of the detectives, he was forthcoming in his interview. He merely refused to commit all of the same information he had already relayed orally to videotape. Under these circumstances, we conclude that the district judge’s admission of Block’s reference to Parks’ unwillingness to “go on tape” was not error.
Violation of Order in Limine
Parks argues he is entitled to reversal of his convictions because Block’s testimony about marijuana seized from Parks’ house violated the court’s pretrial order in limine. The State concedes the violation but insists that the violation was “an isolated incident”; “the court took immediate corrective action”; and the evidence against Parks was overwhelming. Thus, in the State’s view, no prejudice resulted from the error.
“Where the trial court sustains an objection and admonishes the jury to disregard the objectionable testimony, reversal is not required unless the remarks are so prejudicial as to be incurable.” State v. Angelo, 287 Kan. 262, 285, 197 P.3d 337 (2008) (citing State v. Gleason, 277 Kan. 624, 642, 88 P.3d 218 [2004]).
We agree with the State. In context, the violation was very brief; its vagueness limited its persuasive power; and the misbehavior it implied — possession of marijuana — was minor when compared to the seriousness to the crimes charged. In addition, the evidence amassed against Parks was strong. He admitted he brought a gun to the scene and shot Suits. Four eyewitnesses described the argument leading to the shooting and the shooting itself. And their largely consistent observations stood in contrast to Parks’ self-defense explanation. Finally, the district, judge reacted swiftly and appropriately to the violation of the limine order, and the curative oral instruction he gave was precisely that requested by the defense. Under these circumstances, reversal is not compelled.
Limitation of Cross-Examination on State Witness’ Immigration Status
On this issue, Parks argues that he should have been allowed to cross-examine Morales “regarding his status as an undocumented alien to show that he had a very strong incentive to provide trial testimony consistent with that previously given to the police.” Parks maintains that in this way Morales’ immigration status was relevant to Morales’ credibility, a subject Parks had a right to pursue under K.S.A. 60-420 and the Confrontation Clause of the Sixth Amendment to the United States Constitution.
The State responds that Morales testified outside of the presence of the juiy that he was not promised anything in exchange for his testimony. This question — not whether Morales was in the United States illegally — was the only relevant inquiry. The State also argues that Parks’ allegation that Morales was being untruthful was “unsubstantiated” and that Parks could have cross-examined Morales about his denial of an immigration-related incentive but did not. In the event we hold that the district judge erred in limiting cross-examination of Morales, the State argues that any error was harmless because Morales knew “details that could not have been fabricated,” including Parks’ license plate number and the fact that Parks’ left the crime scene with Suits’ briefcase.
“The scope of cross-examination is subject to reasonable control by the trial court.” State v. Corbett, 281 Kan. 294, 307, 130 P.3d 1179 (2006) (citing State v. Atkinson, 276 Kan. 920, 925, 80 P.3d 1143 [2003]). And a district court judge’s “decision to limit cross-examination is reviewed using an abuse of discretion standard.” Corbett, 281 Kan. at 307-08; see U.S.D. No. 232 v. CWD Investments, 288 Kan. 536, 568, 205 P.3d 1245 (2009); Atkinson, 276 Kan. at 924; State v. Albright, 271 Kan. 546, 550, 24 P.3d 103 (2001). “Discretion is abused when judicial action is arbitrary, fanciful, or unreasonable.” State v. Gonzalez, 290 Kan. 747, 755, 234 P.3d 1 (2010). This court has “unlimited review of legal conclusions upon which a district court judge’s discretionary decision is based,” and a district judge’s error of law constitutes an abuse of discretion. Gonzalez, 290 Kan. at 755. Further, “even if a decision is entrusted to the discretion of a district court judge, and he or she correctly understands and applies the controlling legal standards, the facts upon which the discretionary decision must depend may still be challenged on appeal as unsupported by substantial competent evidence in the record.” Gonzalez, 290 Kan. at 755-56.
However, a party who chooses to limit questioning on cross-examination cannot complain of error on appeal. See State v. Herbert, 277 Kan. 61, 78, 82 P.3d 470 (2004). Because we conclude, after careful review of the entire record before us, that Parks got exactly what he requested from the district judge, we do not reach the issue of whether there was legal error — and therefore an abuse of discretion — in the judge’s limitation of Morales’ cross-examination.
Before trial, the State filed a motion in limine for “an order prohibiting defendant counsel from referencing or eliciting testimony concerning witness Pedro Morales’ immigration status.” The State argued: “In support of such motion, the State contends that Mr. Morales’ immigration status is irrelevant to thése proceedings and any exploration thereof could improperly imbue racial bias concerning his testimony.”
During a pretrial hearing on the motion and other matters, prosecutor Robbin L. Wasson, defense counsel Gary Stone, and the district judge engaged in the following colloquy:
“MR. STONE: Judge, also there is an individual in this case we believe is not a citizen of the United States and I want to verify for the record that there has been no assurances or other promise made to him that he is immune from INS or any other proceeding because he is testifying.
“MS. WASSON: Who is drat?
“MR. STONE: Pedro Morales.
“MS. WASSON: Again, if there were any conversations of drat nature, Judge, I am unaware of them, but I can track that down.
“THE COURT: Alright.”
No pretrial order in limine on this issue appears in the record on appeal.
At trial, Morales’ immigration status again was the subject of discussion among the court and counsel outside of the jury’s presence. The prosecutor argued:
“I am concerned that Mr. Stone would reference his immigration status. Per our prior hearing, I did inquire of Mr. Morales, ‘Did you discuss that with the detectives, did anyone make you any promise or anything like drat?’ He said no. In the process of responding to me, and I didn’t ask him, What is your immigration status,’ but in the process of responding, he happened to mention to me that he is here illegally. Judge he, you know, I can’t imagine how that would impact his testimony, I mean, he wasn’t approached, wasn’t threatened. There is certainly nothing of that sort to be found here, and I think his immigration status could unduly prejudice members of dre jury against his testimony, and I would ask that counsel be limited and prohibited from mentioning tiiat.”
In response, Parks’ counsel argued:
“Judge, we would object. You know, he is living here illegally, and I understand the Court’s initial reaction to that, but he has come to the State and he has told them, 1 am here illegally,’ and die State has said ‘You are subpoenaed and you need to appear in Court and you need to testify,’ and I would assume that is, ‘Testify truthfully according to what yciu have told the police in the past.’ The problem is that I should be entitled to inquire if he has been promised that immigration is not going to be contacted. Implicitiy I would assume that’s what he has been told. ‘Come here and testify, nodiing is going to happen to you, nobody is to be contacted.’ ” (Emphasis added.)
Parks' counsel then sought the district’s judge’s permission to ask Morales:
“ ‘You are here, you are illegal in our country,’ just very limited. ‘You are here illegality] in our country, correct, and you have talked to the State and you have told them you are here illegally, correct, and my question to you, sir, is have you been told that nothing will happen to you as long as you provide truthful testimony?’ If he says, °We haven’t discussed it,’ then I am done with my question.” (Emphasis added.)
The district judge determined, “Well, we can do that outside the presence of the jury, if you want before he testifies, that would take care of your problem, and that way the jury doesn’t hear it.” Parks’ counsel responded, “That would be fine,” and the State agreed to the suggested procedure. (Emphasis added.)
As mentioned in the factual background section above, before Morales testified at trial before Parks’ jury, he was subjected to voir dire by counsel. When questioned by the State, Morales said that he had not been promised anything with regard to his immigration status by the police, the District Attorney’s office, the Immigration and Naturalization Service, Immigration and Customs Enforcement, or any other governmental agency. When asked by Parks’ counsel if he had conversations with the prosecutor regarding his immigration status, Morales responded, “No.” Morales also responded no when asked if he ever told the prosecutor that he was in the country illegally. When Parks’ counsel asked directly if Morales was legally in the country, Morales responded, “No comment.”
This exchange prompted the district judge to suggest that Morales’ immigration status was not relevant in Parks’ case. Parks’ counsel was permitted further argument on the point, asserting Morales’ testimony on voir dire contradicted what the prosecutor had said earlier about Morales’ admission to her about his undocumented immigration status. The prosecutor denied having said that Morales made such an admission; rather, she said that, when she spoke to Morales, she merely “was under the impression and picked up on the fact that he is here illegally” and that she had been “trying to be honest with [Parks’ counsel] about that.” The prosecutor repeated her argument that it would be improper to question Morales about his immigration status before the jury. The district judge again suggested that Morales’ immigration status was irrelevant, and defense counsel responded, “Now I am asking this witness under oath whether he has at all informed [the State] that he is here illegally. I understand that may not be relevant.” Parks’ counsel continued:
“Your Honor, under oath he is saying that he has not been led to believe or promised anything for his testimony, in our opinion, and this is why I am objecting, is not right. He knows he is not going to get in trouble if he comes here and testifies. He has been told, as long as you come here and testify, not maybe threatened or promised, but he knows implicitly that he is not going to be arrested or taken into custody if he comes here and testifies.”
Finally, tire district judge said that counsel had made a sufficient record of the issue and called the jury back into the courtroom.
The motion and hearing and trial transcripts demonstrate that Parks’ counsel did not argue before the district judge that Morales’ undocumented immigration status inevitably demonstrated his general dishonesty and therefore was admissible to impeach him as a matter of law. Instead, the defense argument was limited to the need for discovery and exposure of any assurances Morales received from law enforcement or the federal government regarding Morales’ immigration status. Once Morales testified on the limited voir dire defense counsel successfully sought that Morales had received no promises and was subjected to no threats based on his immigration status, the inquiry came to its natural end. Defense counsel may not have believed Morales, but, as defense counsel had set the terms of the debate, there was nothing uncovered on the voir dire that merited placement before the jury. The decision of the district judge on this point was correct.
Allen-type Instruction
Parks did not object to the giving of the modified Allen-type instruction at trial, and thus he must meet a clearly erroneous standard on appeal. K.S.A. 22-3414(3); see State v. Magallanez, 290 Kan. 906, 925, 235 P.3d 460 (2010) (citing State v. Ellmaker, 289 Kan. 1132, 1145, 221 P.3d 1105 [2009]). Under this standard, the question is “whether [the court is] firmly convinced there is a real possibility the jury would have rendered a different verdict if the error had not occurred.” State v. Salts, 288 Kan. 263, 265-66, 200 P.3d 464 (2009).
In particular, Parks argues that the jury would have rendered a different verdict absent the Allen-type instruction error because the evidence that Parks took Suits’ briefcase was weak. The State counters that the evidence regarding the taking of the briefcase was not weak and that the brevity of the jury’s deliberations and its lack of questions demonstrate its decisions to convict were not difficult.
This court has examined challenges to this type of instruction in many earlier cases. See, e.g., Magallanez, 290 Kan. at 925-26; Salts, 288 Kan. at 264-67. Although we have concluded that the language “ '[a'Jnother trial would be a burden on both sides” is error because it is “misleading and inaccurate,” as well as “confusing,” see Salts, 288 Kan. at 266, reversal is not automatic.
In this case, we are not firmly convinced that, had the error not occurred, there is a real possibility the jury would have rendered a different verdict. Despite Parks’ insistence that he did not take Suits’ briefcase, multiple witnesses placed the briefcase with Suits at the beginning of the altercation and with Parks after the shooting. On this record, the giving of the Allen-type instruction does not require reversal.
Conviction and Sentencing for Both Aggravated Robbery and Felony Murder
Parks’ next argument on appeal challenges his conviction and sentencing for both aggravated robbery and felony murder. He asserts that, because the underlying felony for the felony murder was the aggravated robbery, aggravated robbery was also a lesser included offense of felony murder; he thus argues he cannot be convicted and sentenced for both the greater and lesser crimes.
Parks concedes that he did not make this argument before the district judge but argues that he may mount this challenge on appeal “in order to serve the ends of justice and prevent a denial of fundamental rights.” State v. Nguyen, 285 Kan. 418, 433-34, 172 P.3d 1165 (2007) (citing State v. Simmons, 282 Kan. 728, 743, 148 P.3d 525 [2006]; State v. Dubish, 234 Kan. 708, 718, 675 P.2d 877 [1984]). Accepting for purposes of argument that this exception excuses the requirement of issue preservation in the district court, we move to discussion of the merits of Parks’ argument.
The question of whether a crime is a lesser included offense is a question of law over which this court has unlimited review. State v. Sandifer, 270 Kan. 591, 599, 17 P.3d 921 (2001).
K.S.A. 21-3107(2) states: “Upon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both.” It defines a lesser included crime as, among other things, “a crime where all the elements of the lesser crime are identical to some of the elements of the crime charged.” K.S.A. 21-3107(2)(b).
Parks acknowledges that this court has nevertheless held “that the legislature intended separate convictions and punishments for the felony murder and the collateral felony.” He argues that K.S.A. 21-3107(2)(b) and K.S.A. 21-3436 do not support this earlier conclusion. Specifically, he asserts that “the provisions of K.S.A. 21-3436 only describe when felony murder results in conjunction with certain underlying felonies — it does not state when multiple convictions and multiple punishments can be imposed for felony murder and die underlying felony.” According to Parks’ reading, K.S.A. 21-3436(a) “merely states when felony murder can be charged”; the statute “does not discuss whether convictions ‘merge’ for purposes of multiplicity — it discusses when offenses merge for purposes of the felony murder doctrine.” Parks argues that the current version of K.S.A. 21-3107(2)(b) requires his aggravated robbery conviction to be reversed as a lesser included offense of felony murder.
The State, in turn, relies upon our precedents that Parks now argues were arrived at in error. Quoting State v. Holt, 260 Kan. 33, 37, 917 P.2d 1332 (1996), the State argues that the “felony-murder doctrine is a distinct legal theory from the doctrine of lesser included offenses.” The State also cites State v. Mims, 264 Kan. 506, 517, 956 P.2d 1337 (1998), and State v. Rueckert, 221 Kan. 727, 733, 561 P.2d 850 (1977), for the more specific holding that the crimes of aggravated robbery and felony murder do not merge. See generally State v. Appleby, 289 Kan. 1017, 1032-33, 221 P.3d 525 (2009) (inherently dangerous felony statute, K.S.A. 21-3436, applies to felony-murder statute, K.S.A. 21-3401(b); K.S.A. 21-3436 “provides that the homicide and the inherently dangerous felony are distinct and do not merge”).
The first-degree murder statute, K.S.A. 21-3401, defines felony murder as “the ldlling of a human being committed ...(b) in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A 21-3436.” K.S.A. 21-3436(a)(4) provides that “aggravated robbery, as defined in K.S.A. 21-3427,” is “deemed an inherently dangerous felony whether or not such felony is so distinct from the homicide alleged to be a violation of subsection (b) of K.S.A. 21-3401 ... as not to be an ingredient of the homicide alleged to be a violation of subsection (b) of K.S.A. 21-3401.” In other words, an inherently dangerous felony such as aggravated robbery does not merge into felony murder, and a defendant may be convicted and sentenced for both offenses, even when the aggravated robbery is the underlying felony for the felony murder.
One of our most recent rejections of Parks’ interpretation of the statutory scheme came in State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006), an exhaustive review of multiplicity law in Kansas and the tandem double jeopardy concerns it can exacerbate or alleviate. We observed there: “The United States Supreme Court has stated that if the legislature has explicitly authorized multiple punishment, the judicial inquiry is at an end; multiple punishment is authorized and proper,” including in the specific context of conviction “of robbery and felony murder with robbery as the underlying felony.” Schoonover, 281 Kan. at 468, 469 (citing Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S. Ct. 673, 74 L. Ed. 2d 535 [1983]).
We are not persuaded that we should revisit and revise our Schoonover analysis today. We also note that Parks’ argument on this issue implicitly — and erroneously — assumes that proof of a completed aggravated robbery is necessary to the sufficiency of proof of a felony murder. The felony-murder statute clearly does not require this. Rather, a killing committed “in commission of, attempt to commit, or flight from an [underlying] inherently dangerous felony” such as aggravated robbery is sufficient to support a felony-murder conviction. See K.S.A. 21-3401(b).
Parks is not entitled to reversal of his aggravated robbery conviction on his argument that aggravated robbery was a lesser included offense of the felony murder on which he stands convicted.
Cumulative Error
Cumulative error requires reversal of a conviction “when the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial.” State v. McCaslin, 291 Kan. 697, 732, 245 P.3d 1030 (2011) (citing State v. Sharp, 289 Kan. 72, 106, 210 P.3d 590 [2009]).
“In a cumulative error analysis, an appellate court aggregates all errors and, even though those errors would individually be considered harmless, analyzes whether their cumulative effect on the outcome of tire trial is such that collectively they cannot be determined to be harmless. [Citation omitted.]” State v. Tully, 293 Kan. 176, 205, 262 P.3d 314 (2011).
“In making-the assessment of whether the cumulative errors are harmless error, an appellate court examines the errors in the context of the record as a whole considering how the district court dealt with tire errors as they arose (including the efficacy, or lack of efficacy, of any remedial efforts); the nature and number of errors committed and their interrelationship, if any; and the strength of the evidence. [Citations omitted.]” Tully, 293 Kan. at 205-06.
Reversal for cumulative error is not required if the evidence against a defendant is overwhelming. McCaslin, 291 Kan. at 732 (citing State v. Reid, 286 Kan. 494, 523-24, 186 P.3d 713 [2008]).
Parks argues in his brief that the multiple trial errors he asserted deprived him of a fair trial. We have now rejected three of his assertions of error — -admission of evidence of post-Miranda silence, limitation of cross-examination on a State witness’ immigration status, and conviction and sentencing for both aggravated robbery and felony murder. The question is therefore whether the two acknowledged instances of trial error — violation of the limine order and the giving of the Allen-type instruction — require application of the cumulative error rule and compel reversal of Parks’ convictions.
They do not. Examining the two errors in the context of the record as a whole persuades us that they were relatively insignificant and bore no relationship to each other.
With regard to the limine order violation, the district judge dealt efficiently and as effectively as possible with the error as soon as it occurred, directing the jury to disregard the improper brief reference to the seizure of “some marijuana” from Parks’ home. Although defense counsel observed at the time that it would be difficult to unring the drug-possession bell, the defense got the contemporaneous admonition it sought and, per its clear expressed preference, did not get any undue reemphasis of the particular error at the time the jury was instructed before deliberations. Rather, at that point, the judge merely gave a general instruction that testimony not admitted into evidence by him was to be disregarded. The Allen-type instruction error also appears to have been minor in the context of the entire record, especially in view of the State’s strong evidence. It is rare for the State to have four eyewitnesses to a fatal shooting and likely that the strength of this line-up contributed to the juiy’s speedy disposition of the charges. In such circumstances, the erroneous language in the instruction about the burden of another trial is unlikely to have had much impact. For all of these reasons, Parks is not entitled to reversal and a new trial.
Sentencing to Upper Term in Grid Box
Parks challenges the imposition of the upper term in the grid box under the Kansas Sentencing Guidelines Act for his aggravated robbery conviction without a finding of fact on an aggravating factor made by a jury, citing Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). This court has repeatedly rejected Parks’ argument, see, e.g., State v. Johnson, 286 Kan. 824, 842, 848-51, 190 P.3d 207 (2008); and we do so again today. There was no error on this ground.
Sentencing Based on Criminal History
Parks also argues that the district judge’s use of his prior convictions to enhance.his sentence without requiring the State to prove his prior convictions to a jury beyond a reasonable doubt was prohibited under Apprendi. This court has repeatedly rejected Parks’ argument, see, e.g., State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002); and we do so again today. There was no error on this ground.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Luckert, J.:
Phillip Baptist pleaded no contest to the off-grid crime of rape of a child under the age of 14. The district court imposed a hard 25 life sentence under Jessica’s Law, K.S.A. 21-4643(a)(1)(B), meaning Baptist would only be eligible for parole after serving 25 years in prison, and also imposed lifetime post- release supervision. Now, on direct appeal, Baptist raises three sentencing issues.
First, he argues he should be eligible for parole after serving 20 rather than 25 years in prison — a hard 20 rather than a hard 25 life sentence. He points to two statutory parole provisions that apply to off-grid crimes and argues the rule of lenity, which requires ambiguous statutoiy provisions be construed in favor of a criminal defendant, requires the court to apply the more lenient 20-year provision. This issue presents a legal question that this court has recently decided; we held that the statutory provision providing for a hard 25 life sentence is the only provision that applies when a defendant is sentenced under Jessica’s Law. Therefore, the district court did not err in sentencing Baptist to a hard 25 life sentence.
Second, Baptist argues the district court should have imposed lifetime parole rather than lifetime postrelease supervision. Again, this presents a recently decided legal issue. We held that a defendant, such as Baptist, who is sentenced under Jessica’s Law is subject to lifetime parole rather than lifetime postrelease supervision. Therefore, the district court erred in sentencing Baptist to lifetime postrelease supervision, and this portion of Baptist’s sentence must be vacated.
Finally, Baptist argues an issue unique to his appeal by contending the district court abused its discretion when it denied his motion to depart from the sentence provided for in Jessica’s Law. Under the facts of this case, we hold the district court did not abuse its discretion in denying the motion because reasonable people could have agreed with the district court’s decision that the aggravating circumstances of the crime — the forcible rape of Baptist’s 10-year-old stepdaughter — outweighed the mitigating factor— Baptist’s lack of a prior criminal record.
Facts and Procedural Background
The specific crime to which Baptist pleaded no contest — rape of a child under the age of 14 — is a violation of K.S.A. 21-3502(a)(2). The sentence for the crime is primarily governed by K.S.A. 21-4643, known as Jessica’s Law. Jessica’s Law enhances the severity level of specified crimes, including rape of a child under the age of 14, if the defendant is over 18 years of age. K.S.A. 21-4643(a)(1)(B). In this case, the district court informed Baptist that if he entered a plea he would be found guilty and would receive a mandatory life sentence without possibility of parole for 25 years (hard 25 life sentence) because Jessica’s Law applied.
After the plea hearing and before sentencing, Baptist filed a motion for a departure sentence in which he requested a departure from a Jessica’s Law life sentence to the lowest sentence allowed in the applicable Kansas Sentencing Guidelines Act (KSGA) grid box — 147 months’ imprisonment. See K.S.A. 2008 Supp. 21-4704(a). In his written motion, he argued the departure was justified by several mitigating factors, including his lack of criminal history and the positive side-effects of his no contest plea, which are that it “prevented tire victim from having to testify in front of jurors and conserved judicial resources.” At the sentencing hearing, defense counsel pointed again to Baptist’s lack of criminal history and also to Baptist’s age, 52, at the time of sentencing. Counsel noted that even if the district court departed to the KSGA grid box, “[i]t would be not until his 60’s before he would be released. The victim in this case would certainly be an adult by then.”
The State argued in opposition to a departure sentence. The prosecutor noted that Baptist committed the rape “forcibly,” and he committed this crime against his 10-year-old stepdaughter with whom he was “supposed to have a fiduciary relationship.”
After considering the evidence and counsel’s arguments, the district judge denied Baptist’s departure motion, stating:
“Mr. Baptist, you have been convicted of a serious personal felony. [The] Kansas [L]egislature has specifically addressed crimes such as this, and they have proscribed statutoiy sentence of life in prison with no parole eligibility until the expiration of 25 years.
“I have considered the evidence in the case and the arguments presented, and it is my decision that you receive imprisonment for life for your crime in this case. Again, that comes with the bar to parole until the expiration of 25 years.
“Your post-release supervision is lifetime.”
Baptist now brings a timely appeal. This court has jurisdiction under K.S.A. 22-3601(b)(l) (maximum sentence of life imprisonment imposed; appeal docketed prior to July 1, 2011).
Issue 1: Did the District Court Err in Sentencing Baptist to a Hard 25 Life Sentence under K.S.A. 21-4643(a)(l)(B) and K.S.A. 2008 Supp. 22-3717(b)(5) Rather Than a Hard 20 Life Sentence under K.S.A. 2008 Supp. 22-3717(b)(2)?
First, Baptist argues the rule of lenity requires him to be sentenced to a hard 20 life sentence rather than a hard 25 life sentence because his parole eligibility fits within the statutory language of two provisions: K.S.A. 2008 Supp. 22-3717(b)(2) and K.S.A. 2008 Supp. 22-3717(b)(5).
We have considered essentially the same argument in two recent decisions filed after Baptist’s brief was prepared: State v. Cash, 293 Kan. 326, 327-29, 263 P.3d 786 (2011), and State v. Chavez, 292 Kan. 464, 465-69, 254 P.3d 539 (2011). In these cases, we noted that the parole eligibility provision on which Baptist relies — K.S.A. 2008 Supp. 22-3717(b)(2) — is a general provision allowing for parole after an inmate convicted of an off-grid crime has been in prison for 20 years. Yet, K.S.A. 22-3717(b)(5) was contained in the same legislation, see L. 2006, ch. 212, secs. 2, 19 (H.B. 2576), that established a more specific 25-year mandatory minimum prison term for sentences governed by Jessica’s Law, K.S.A. 21-4643. See Cash, 293 Kan. at 328-29; Chavez, 292 Kan. at 468. Accordingly, this court concluded that the general rule of strict construction of criminal statutes must give way to the constraint that statutoiy interpretation “must be reasonable and sensible to effect legislative design and intent,” and that “the rule of lenity is subject to the existence of ‘any reasonable doubt’ as to the statute’s meaning.” Chavez, 292 Kan. at 468; see Cash, 293 Kan. at 329 (citing Chavez with approval). Applying these principles, in Chavez this court held:
“Given the specific language of subsection (b)(5) as compared to the more general language of subsection (b)(2), together with the concurrent adoption of the mandatory minimum sentences in K.S.A. 21-4643 and the parole eligibility provision in K.S.A. 22-3717(b)(5), there can be no reasonable doubt that the legislature intended for a person convicted of aggravated indecent liberties with a child to be parole eligible only after serving tire mandatory minimum sentence specified in K.S.A. 21-4643.” Chavez, 292 Kan. at 468.
Even so, according to Baptist, the two subsections — K.S.A. 2008 Supp. 22-3717(b)(2) and K.S.A. 2008 Supp. 22-3717(b)(5) — can be read in harmony and, therefore, the rule that a specific statute prevails over a more general statute is inapplicable. His argument is based on the assertion that “the fact that an inmate is eligible for parole after 25 years does not mean that the inmate is not also eligible after 20 years.” This court specifically rejected both this argument and the assertion upon which the argument is based in Cash. We stated: “We are particularly unmoved by the argument that the two subsections can be read in harmony and, therefore, tire rule that a specific statute prevails over a more general statute is inapplicable.” Cash, 293 Kan. at 329; see State v. Pace, 292 Kan. 937, 938, 258 P.3d 381(2011) (following Chavez; K.S.A. 21-4643[a] is more specific statute and, therefore, hard 25 sentence prevails). Baptist has not presented any argument that persuades us to retreat from our holdings in Cash and Chavez.
Notwithstanding the overlap in the parole eligibility rules contained in K.S.A. 2008 Supp. 22-3717(b)(2) and K.S.A. 2008 Supp. 22-3717(b)(5), an inmate, such as Baptist, sentenced to an off-grid, indeterminate hard 25 fife sentence pursuant to K.S.A. 21-4643 is not eligible for parole until that inmate has served the mandatory 25 years in prison. Baptist’s hard 25 life sentence is affirmed.
Issue 2: Did the District Court Err in Imposing Lifetime Postrelease Supervision Rather Than Lifetime Parole?
Next, Baptist contends the district court erred in imposing lifetime postrelease supervision rather than lifetime parole. The district court imposed a mandatory hard 25 life sentence which means Baptist received a life sentence (indeterminate life sentence) without possibility of parole for 25 years. See K.S.A. 21-4643(a)(l); K.S.A. 2008 Supp. 22-3717(b)(5).
As the State concedes, this court has previously decided this issue in Baptist’s favor, concluding that “ ‘[a]n inmate who has received an off-grid indeterminate life sentence can leave prison only if the [Kansas Prisoner Review] Board grants the inmate parole. Therefore, a sentencing court has no authority to order a term of [lifetime] postrelease supervision in conjunction with an off-grid indeterminate life sentence.’ ” State v. Summers, 293 Kan. 819, 832, 272 P.3d 1 (2012) (quoting Cash, 293 Kan. 326, Syl. ¶ 2); see State v. Harsh, 293 Kan. 585, 590, 265 P.3d 1161 (2011) (parole is separate and distinct from sentence; if defendant with hard 25 life sentence ever leaves prison, it will be because parole was granted).
Consequently, the district court erred in imposing lifetime post-release supervision. We, therefore, vacate the lifetime postrelease supervision portion of Baptist’s sentence.
Issue 3: Did the District Court Abuse its Discretion in Denying Baptist’s Motion for a Departure Sentence under K.S.A. 21-4643(d)?
Finally, Baptist argues that the district court abused its discretion in denying his departure motion. In his appellate brief, he contends that one statutory mitigating circumstance alone — no prior criminal history — should have prompted the district court to find a substantial and compelling reason to depart from the Jessica’s Law life sentence to the KSGA sentencing grid. This contention lacks merit.
As Baptist argues, Jessica’s Law allows for a departure sentence and recognizes the lack of significant criminal history as a basis that can potentially justify a departure. Several portions of Jessica’s Law support this conclusion.
First, Jessica’s Law provides that a first-time offender convicted of raping a child under the age of 14 must be sentenced to life imprisonment with a minimum term of not less than 25 years “unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.” K.S.A. 21-4643(d). This situation is in contrast to that of a defendant who has a more substantial criminal history; some defendants with an extensive criminal history may be subject to a minimum sentence of more than 25 years, unless the district court finds substantial and compelling reasons to depart. See K.S.A. 21-4643(a)(2) (A 25-year minimum sentence shall not apply if the court finds the defendant is an aggravated habitual sex offender or “the defendant, because of the defendant’s criminal history classification, is subject to presumptive imprisonment pursuant to the sentencing guidelines grid for nondrug crimes and the sentencing range exceeds 300 months. In such case, the defendant is required to serve a mandatory minimum term equal to the sentence established pursuant to the sentencing range.”).
Next, Jessica’s Law, in allowing for a departure for substantial and compelling reasons, provides a nonexclusive list of mitigating circumstances a district court may consider when deciding whether to depart from the statutorily prescribed sentence. See K.S.A. 21-4643(d). One of those circumstances is the one on which Baptist relies in his appellate brief: “The defendant has no significant history of prior criminal activity.” K.S.A. 21-4643(d)(l).
Even though the lack of significant criminal histoiy is a stated basis for departure, a district court is not obligated to depart simply because a mitigating factor exists. Rather, a district court has the discretion to either grant or deny the request. In exercising this discretion, a district court first reviews the mitigating circumstances and then weighs tiróse circumstances against any aggravating circumstances, ultimately determining whether substantial and compelling reasons warrant a departure. Harsh, 293 Kan. at 586; State v. Plotner, 290 Kan. 774, 780, 235 P.3d 417 (2010). This court has defined the term “ ‘substantial’ as ‘something that is real, not imagined; something with substance and not ephemeral,’ while the term ‘ “compelling” implies that the court is forced, by the facts of a case, to leave the status quo or go beyond what is ordinary.’ ” State v. Seward, 289 Kan. 715, 722, 217 P.3d 443 (2009) (quoting State v. McKay, 271 Kan. 725, 728, 26 P.3d 58 [2001]). In this situation, the status quo is that the legislature has provided that someone without a prior criminal history who is convicted of the same crime as Baptist will receive a hard 25 life sentence. To justify a more lenient sentence, Baptist must establish a substantial and compelling reason.
When considering whether a defendant has established, a substantial and compelling reason to depart from an off-grid sentence, the district court does not “simply add together the total number of mitigating circumstances and then contrast them with the total number of aggravating circumstances.” State v. Ballard, 289 Kan. 1000, 1009, 218 P.3d 432 (2009). Nor is each mitigating circumstance required to sufficiently justify a departure by itself, so long as the collective circumstances constitute a substantial and com pelling basis for departure. State v. Spencer, 291 Kan. 796, 815, 248 P.3d 256 (2011).
Consistent with the discretion inherent in this weighing and evaluation, the standard of review on an appeal from the district court’s decision on a departure motion is tire abuse of discretion standard. Spencer, 291 Kan. at 807. Under this standard an appellate court can find an abuse of discretion under three circumstances:
“[I]f judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012) (citing State v. Gonzalez, 290 Kan. 747, 755-56, 234 P.3d 1 [2010]).
The second and third prongs of this abuse of discretion standard do not apply to our review of the district court’s decision in this case. This is true even though the district court did not engage in a weighing of the mitigating and aggravating factors on the record. Jessica’s Law does not require a district court to state the reasons a departure motion is denied; the statute only requires the district court to state on the record the substantial and compelling reasons for departure. See K.S.A. 21-4643(d); see Harsh, 293 Kan. at 587 (“ ‘Specificity by the district court judge when making his or her determination is not statutorily required’ unless the court decides a departure is warranted.”); State v. Mendoza, 292 Kan. 933, 936, 258 P.3d 383 (2011) (upholding denial of departure where district court did not expressly consider mitigating factors on tire record because it was difficult to conclude that no reasonable person would take the view adopted by the court); Plotner, 290 Kan. at 780-81 (specificity by district court when making its determination is not statutorily required unless the court decides a departure is warranted).
Without the second or third prongs of the abuse of discretion standard at issue, Baptist essentially asserts no reasonable person would have agreed with the district court’s decision in light of the mitigating factors he asserted in support of his departure motion. In addition to the criminal history factor he solely relies upon in his appellate brief, in his motion Baptist also cited his age as a factor for the district court’s consideration and the fact that his no contest plea “prevented the victim from having to testify in front of jurors and conserved judicial resources.”
The State urged the district court to deny the departure, noting that Baptist committed the rape “forcibly,” and he committed this crime against a 10-year-old girl, his stepdaughter, with whom he was “supposed to have a fiduciary relationship.”
In several recent cases, this court has upheld a district court’s denial of a departure motion based on grounds similar to those asserted by Baptist. See, e.g., Plotner, 290 Kan. at 780-81 (upholding district court’s decision to deny departure motion despite defendant’s claim he took responsibility for his actions, purposefully pleaded guilty to save his victims from testifying at trial, and lacked prior sexually motivated convictions); State v. Trevino, 290 Kan. 317, 322-23, 227 P.3d 951 (2010) (holding district court did not abuse its discretion in denying departure when defendant’s relationship to the victim “was one of great trust,” even though defendant had little criminal history); State v. Robison, 290 Kan. 51, 55-57, 222 P.3d 500 (2010) (affirming district court’s denial of departure despite defendant’s presentation of mitigating factors, including insubstantial criminal history, acceptance of responsibility, and demonstration of remorse); State v. Spotts, 288 Kan. 650, 655-56, 206 P.3d 510 (2009) (upholding district court’s determination that none of the mitigating circumstances asserted by defendant justified departure, including his lack of prior sexually motivated convictions, his acceptance of responsibility, his demonstration of remorse, and his no contest plea that saved the victim from testifying at trial); State v. Ortega-Cadelan, 287 Kan. 157, 162-66, 194 P.3d 1195 (2008) (affirming district court’s denial of departure when the extent and impact of defendant’s crime outweighed the mitigating factors of defendant’s admission of guilt, “ Very little previous criminal history,’ ” and sex offender evaluator’s conclusion that defendant was good candidate for sex offender treatment).
Here, the district court considered the mitigating factors offered by Baptist, heard statements from Baptist’s mother, and heard the arguments asserted by counsel. After considering the evidence and arguments, the district court found a hard 25 life sentence was appropriate. The court’s decision — in essence a determination that Baptist’s lack of criminal history was not a substantial and compelling reason to depart from the sentence prescribed by the legislature — is one with which other reasonable people would agree in light of the facts of this case, where the crime was the forcible rape of Baptist’s 10-year-old stepdaughter. Hence, the district court did not abuse its discretion in denying Baptist’s motion to depart from Jessica’s Law to the KSGA.
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The opinion of the court was delivered by
Malone, J.:
Daniel Perez, Jr., appeals his convictions of first-degree felony murder, criminal discharge of a firearm at an occupied dwelling, and conspiracy to commit criminal discharge of a firearm at an occupied dwelling. Perez claims: (1) the district court violated his constitutional rights by deciding the State’s motion for adult prosecution without using a jury to determine the facts; (2) the district court erred by instructing the jury at trial that “another trial would be a burden on both sides;” and (3) the district court erred by failing to instruct the jury at trial on unintentional but reckless second-degree murder as a lesser included offense of felony murder. This court has jurisdiction under K.S.A. 22-3601(b) based on Perez’ conviction of an off-grid crime.
Factual and Procedural Background
In the spring of 2007, rival street gangs Florencia and Familia Loca (FL) were engaged in a series of violent confrontations in Kansas City. Carlos “Papa” Moreno was a leader of the Florencia gang. Valentino Hernandez, known as Listo, and Jos Franco, known as Filero, were two leaders of FL. Perez, bom on August 17, 1990, and Luis Gonzalez, also a juvenile, were lower ranking “soldiers” of FL.
On April 1, 2007, Filero’s house was the target of a street-side shooting. Filero believed that Florencia was responsible for the shooting and wanted revenge. Two days later, on April 3, 2007, Perez and Gonzalez went to Filero’s house to check in with the gang leaders. When they arrived, Listo indicated they were being sent on “a mission” to shoot up Moreno’s house. Perez initially refused the mission, resulting in an argument with Listo. Filero then entered the room with a pistol-grip shotgun and told Gonzalez to do the shooting. Gonzalez responded that he was too small to handle the shotgun. Eventually Filero and Listo left the room. When they were alone, Perez told Gonzalez that he did not want to get into trouble with the gang leaders for failing to follow orders. Perez then informed Listo and Filero that he would complete the mission. Gonzalez also agreed to help.
Perez, Gonzalez, and Filero went on a dry run of the shooting mission and Filero showed Perez and Gonzalez where Moreno lived. When they returned to Filero’s house, Listo was wiping down a shotgun with oil in order to remove fingerprints. Perez put on black gloves and took the shotgun from Listo. About 8:30 p.m., Perez and Gonzalez drove to Moreno’s house in Gonzalez’ car. Gonzalez stopped the car in a nearby alley and Perez got out and walked toward Moreno’s house. Gonzalez was unable to see Moreno’s house from the alley, but he heard four or five gunshots coming from the direction of the house. Perez then ran back to the car, threw the shotgun in the backseat, and jumped into the passenger seat. Perez and Gonzalez then left the alley and returned to Filero’s house.
Moreno later testified that on April 3, 2007, he was watching television in his bedroom when he heard several gunshots. He stated that he crawled out of the bedroom and picked up his 2-year-old niece, Yelena Guzman, who was playing in the front room near the door. Moreno noticed that Yelena was bleeding and he carried her toward the back of the house. Yelena later died of a gunshot wound to the head. Kansas City police officers recovered four shotgun shells and one shotgun slug at Moreno’s house. Three of the shots had penetrated the front door.
On July 19, 2007, the police interviewed Gonzalez and he implicated Perez in the shooting. Gonzalez later agreed to testify against Perez in exchange for being prosecuted as a juvenile for his involvement in the crimes.
The State charged Perez with first-degree felony murder, criminal discharge of a firearm at an occupied dwelling, and conspiracy to commit criminal discharge of a firearm at an occupied dwelling. On September 11, 2007, the State moved to try Perez as an adult. After hearing the evidence and considering the factors enumerated in K.S.A. 38-2347, tire district court authorized adult prosecution. Perez raised no procedural objections in district court to the State’s motion for adult prosecution.
At the jury trial, Gonzalez testified against Perez. Gonzalez described the events leading up to the shooting on April 3,2007, and he testified that Perez intended to hit “Papa” in the shooting. Cory Cisneros, another FL gang member, also testified that he was at Filero’s house on April 3,2007. Cisneros testified that he overheard Filero order Perez and Gonzalez to shoot Moreno’s house. He testified that he saw Perez, Gonzalez, and Filero leave to do a dry run of the mission. Cisneros testified that later that evening he witnessed Perez and Gonzalez return from the shooting and overheard them say, “we got 'em.” The State also introduced into evidence the transcripts of recorded telephone calls Perez made to his mother while he was in jail. During one telephone call, his mother asked Perez if he was guilty and he replied, “of course, yes.” In another telephone call, his mother asked Perez if Gonzalez’ story was accurate and he replied, “more or less.”
Perez did not testify at trial but his defense was that he was not the shooter and that he was being set up to take the fall for higher ranking gang members, Filero and Listo. Perez called three witnesses who testified that Perez was trying to distance himself from gang activity. Perez challenged Gonzalez’ credibility and pointed out his testimony was in exchange for a favorable plea agreement. At the conclusion of the evidence, the district court instructed the jury without objection on the charge of felony murder without any lesser included offenses. The juiy found Perez guilty as charged. He timely appealed his convictions.
Motion for Adult Prosecution
Perez first claims that because the district court’s decision to authorize adult prosecution substantially increased the penalty for die offenses, he was entitled to have a jury make this determination under the principles recited in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). This argument raises a question of law and our standard of review is unlimited. See State v. Jones, 273 Kan. 756, 770, 47 P.3d 783, cert. denied 537 U.S. 980 (2002).
We note diat the same argument Perez is making already has been rejected by this court in four prior cases: State v. Tyler, 286 Kan. 1087, 1095-96, 191 P.3d 306 (2008); State v. Mays, 277 Kan. 359, 367-68, 85 P.3d 1208 (2004); State v. Kunellis, 276 Kan. 461, 465, 78 P.3d 776 (2003); and Jones, 273 Kan. at 770-78. Moreover, Perez acknowledges that he presents this argument for the first time on appeal. In district court, Perez raised no objection to the court deciding the motion for adult prosecution without using a jury to determine the facts. In a single sentence in his brief, Perez asserts that an issue can be raised for the first time on appeal in “exceptional circumstances where the asserted error involves a strictly legal question that will be determinative of the case or where consideration of the new issue is necessary to serve tire interests of justice or to prevent a denial of fundamental rights.”
Generally, constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. State v. Leshay, 289 Kan. 546, 553, 213 P.3d 1071 (2009). However, an appellate court may consider a constitutional issue raised for the first time on appeal if the issue falls within one of three recognized exceptions: (1) the newly asserted claim involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; or (3) the judgment of the district court may be upheld on appeal despite its reliance on the wrong ground or reason for its decision. State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010).
Supreme Court Rule 6.02(e) (2010 Kan. Ct. R. Annot. 39) provides that if an issue was not raised in district court, the appellant must “explain why” the issue should be considered for the first time on appeal. Perez presents no explanation for why the issue should be considered for the first time on appeal other than a general statement that “this circumstance fits within the exceptions” recognized by case law. We note that in Kunellis, this court refused to address the defendant’s argument that the State’s motion for adult prosecution should have been decided by a jury because the issue was being raised for the first time on appeal and already had been resolved in a prior case against the defendant’s position. 276 Kan. at 465. For the same reasons we stated in Kun-ellis, we decline Perez’ request to consider this constitutional issue for tire first time on appeal.
Allen-Type Instruction
Perez next claims that the district court committed reversible error when it gave an Allen-type instruction to the jury before deliberations began. See Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). Perez did not object to the instruction when it was given to the jury; therefore, this court reviews the instruction under a clearly erroneous standard. K.S.A. 22-3414(3). “An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” State v. Martinez, 288 Kan. 443, 451-52, 204 P.3d 601 (2009).
The district court provided the jury with Instruction No. 15 which stated in relevant part:
“Like all cases, this is an important case. If you fail to reach a decision on some or all of the charges, that charge or charges are left undecided for the time being. It is then up to the state to decide whether to resubmit the undecided charges to a different jury at a later time. Another trial would be a burden on both sides.” (Emphasis added.)
The language from Instruction No. 15 came from a prior version of PIK Crim. 3d 68.12, commonly known as the “deadlocked jury” instruction. In the current pattern instruction, the language “another trial would be a burden on both sides” has been removed. Otherwise, the district court’s Instruction No. 15 tracks almost identically with the current pattern instruction.
This court has specifically addressed the language at issue in several recent cases. In State v. Salts, 288 Kan. 263, 266, 200 P.3d 464 (2009), this court held that the language “[a]nother trial would be a burden on both sides” is erroneous because it is misleading and inaccurate; however, it was not reversible error. In Salts, the instruction was given before the jury deliberated and was included with all the other jury instructions. The defendant did not object to the instruction. The Salts court found that, under the clearly erroneous standard, there was no real possibility that the jury would have rendered a different verdict if the error had not occurred. 288 Kan. at 267; see also State v. Brown, 291 Kan. 646, 660, 244 P.3d 267 (2011) (same challenged language in jury in struction was erroneous, but not clearly erroneous); State v. Colston, 290 Kan. 952, 976-78, 235 P.3d 1234 (2010) (same result); State v. Ellmaker, 289 Kan. 1132, 1146-47, 221 P.3d 1105 (2009) (same result), cert. denied 130 S. Ct. 3410 (2010).
Perez argues that the language “another trial would be a burden on both sides” is reversible error in his case because there is a real possibility the jury would have rendered a different verdict without that language. Specifically, Perez points out that the most damaging trial testimony identifying him as the shooter came from Gonzalez, whose credibility was undermined as a result of his favorable plea agreement. However, the State points out drat Gonzalez’ testimony was corroborated by the testimony of Cisneros, who overheard Filero order Perez to do the shooting. Cisneros also witnessed Perez and Gonzalez return from the shooting and •overheard them say, “we got 'em.” The State also introduced into evidence the transcripts of recorded telephone calls Perez made to his mother while he was in jail. During one telephone call, his mother asked Perez if he was guilty and he replied, “Of course, yes.” In another telephone call, his mother asked Perez if Gonzalez’ story was accurate and he replied, “more or less.”
Instruction No. 15 was given before the juiy deliberated and was included with all the other juiy instructions. Perez did not object to the instruction. After the verdicts were read, the district court polled the jury and each juror stated he or she agreed with the verdicts. The evidence against Perez was substantial. This case is similar to Salts, Ellmaker, Colston, and Brown regarding the effect of the Allen-type instruction, and die result should be the same. We are not firmly convinced there is a real possibility the juiy would have rendered a different verdict if tire trial error had not occurred. Accordingly, we conclude that Instruction No. 15 was not clearly erroneous.
Lesser Included Offense of Felony Murder
Finally, Perez claims the district court erred by failing to instruct the jury at trial on unintentional but reckless second-degree murder as a lesser included offense of felony murder. Perez acknowledges that he did not request a lesser included offense instruction at trial. Therefore, this court reviews the district court’s failure to give the instruction under the clearly erroneous standard. K.S.A. 22-3414(3). “An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” Martinez, 288 Kan. at 451-52.
Perez was charged with felony murder arising from the shooting death of Guzman. K.S.A. 21-3401(b) defines felonymurder as “the killing of a human being committed ... in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436.” Here, the underlying felony predicating the felony-murder charge was criminal discharge of a firearm at an occupied dwelling in violation of K.S.A. 21-4219, which constitutes an inherently dangerous felony. See K.S.A. 21-3436(a)(15) (any felony offense as provided in K.S.A. 21-4219).
On appeal, Perez argues that this court should reconsider its traditional approach to lesser included offense instructions in felony-murder cases. Perez acknowledges that under longstanding precedent, lesser included offense instructions for felony murder are not required unless “the evidence of the underlying felony is weak, inconclusive, or conflicting.” State v. Hoffman, 288 Kan. 100, 105, 200 P.3d 1254 (2009). However, Perez argues that there is “[n]o statutory or common law authority” for this approach and that this court should follow the general rule under K.S.A. 22-3414(3) in determining whether jury instructions should be given for lesser included offenses. Perez contends that under this statute, the juiy should have been instructed on unintentional but reckless second-degree murder because firing a shotgun into an occupied house is “extreme indifference to the value of human life.” See K.S.A. 21-3402(b) (“Murder in the second degree is the killing of a human being committed . . . unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.”).
Perez’ argument was addressed by this court in State v. Berry, 292 Kan. 493, 254 P.3d 1276 (2011). In Berry, the defendant struck and killed another motorist during a high-speed getaway from a traffic stop. He was apprehended, and cocaine was discovered in his possession. The defendant was charged with first-degree felony murder based on the underlying felony of possession of cocaine. At trial, the defendant requested lesser included offense instructions for unintentional but reckless second-degree murder, involuntary manslaughter, and vehicular homicide. Because the evidence supporting the possession of cocaine charge was substantial, the district court denied the request for lesser included offense instructions pursuant to the judicially created felony-murder instruction rule. The defendant was convicted of first-degree felony murder.
On appeal, this court observed that lesser included offense juiy instructions are governed by K.S.A. 22-3414(3), which directs that instructions must be given when there is some evidence that would reasonably justify a conviction of some lesser included crime. 292 Kan. 493, Syl. ¶ 2. This court noted that when a party claims K.S.A. 22-3414(3) requires giving an instruction on a lesser included crime, the analysis focuses on the evidence supporting the lesser offense. 292 Kan. 493, Syl. ¶ 3. This court traced the histoiy of the judicially created felony-murder instruction rule which requires lesser included offense instructions only when evidence of the underlying felony is weak, inconclusive, or conflicting and noted that the analysis under the judicially created rule focuses on the evidence supporting the underlying felony and not the evidence supporting lesser offenses. 292 Kan. 493, Syl. ¶ 4.
This court further observed that K.S.A. 22-3414(3) does not exclude felony murder from its mandate and makes no exception for the felony-murder instruction rule regarding lesser included offense instructions. 292 Kan. 493, Syl. ¶ 5. After determining that the rationale for adopting the felony-murder instruction rule was flawed, this court concluded the rule must be abandoned. This court held that K.S.A. 22-3414(3) should be applicable to felony murder. Under this statute, instructions on the lesser degrees of homicide are proper in felony-murder cases when there is some evidence reasonably justifying a conviction of some lesser included crime beyond a reasonable doubt. 292 Kan. 493, Syl. ¶ 6.
Although this court has now embraced the analysis advocated by Perez, this does not mean we agree with Perez that the district court erred by failing to instruct the juiy at trial on unintentional but reckless second-degree murder as a lesser included offense of felony murder. Under K.S.A. 22-3414(3), instructions on the lesser degrees of homicide are proper in felony-murder cases when there is some evidence reasonably justifying a conviction of some lesser included crime beyond a reasonable doubt. Perez advances a hypothetical situation and argues the jury should have been instructed on unintentional but reckless second-degree murder because firing a shotgun into an occupied house is “extreme indifference to the value of human life.” K.S.A. 21-3402(b). However, Perez cites to no evidence presented at trial which would have reasonably justified a conviction of this crime beyond a reasonable doubt.
The State’s evidence at trial established that Perez went to Moreno’s house with a shotgun and intentionally fired four or five shots into the front of the house. This act was to seek revenge for an earlier shooting at Filero’s house. Perez, Gonzalez, and Filero went on a dry run of the shooting mission to make sure that Perez and Gonzalez knew where Moreno lived. Perez and Gonzalez later drove to Moreno’s house in Gonzalez’ car. Perez knew Moreno’s house was occupied when he fired the shots. According to Gonzalez, Perez intended to hit Moreno in the shooting. Instead, one of the shots fired by Perez struck Guzman in the head. When Perez and Gonzalez returned from the shooting, Cisneros overheard them say, “we got 'em.” Perez did not testify at trial, but his defense was that he was not die shooter and that he was being set up to take the fall for higher ranking gang members.
K.S.A. 21-3402(b) defines murder in the second degree as the killing of a human being committed unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life. Here, the State’s evidence established that Perez intended to hit Moreno when he discharged the firearm at the occupied dwelling, but he hit Guzman instead. Nevertheless, the State’s evidence established that the killing was intentional and not reckless. Thus, K.S.A. 21-3402(b) does not apply. See State v. Jones, 257 Kan. 856, 859, 896 P.2d 1077 (1995) (Under doctrine of transferred intent, the fact that a homicidal act was directed against one other than the person tolled does not relieve the slayer of criminal liability, and the guilt of the perpetrator of the crime is exactly what it would have been had the assault been upon the intended victim instead of another.).
Perez cites State v. Cordray, 277 Kan. 43, 82 P.3d 503 (2004), to support his argument that the evidence in his case reasonably justified a conviction of unintentional but reckless second-degree murder. In Cordray, this court affirmed the defendant’s conviction of unintentional but reckless second-degree murder when the evidence showed that the defendant fired shots into a moving car filled with people, and one shot struck and killed a passenger. The defendant testified that he was aiming at the ground behind the car and that he never intended to hit the car or anyone inside the car. 277 Kan. at 45-46. Perez argues that his case is similar to Cordray with the only exception being that Perez fired his gun into an occupied dwelling and not an occupied car.
We disagree. Unlike the defendant in Cordray who testified that he was only firing warning shots at the car, Perez did not testify that he fired the shotgun at Moreno’s dwelling with the intent to frighten or threaten anyone inside the house. Based on his defense, Perez was not at the scene of the shooting. To the contraiy, Gonzalez testified for the State that Perez intended to hit Moreno when he fired the shotgun into the occupied dwelling. Cordray provides a good example of a conviction under K.S.A. 21-3402(b) where the tolling of a human being was committed unintentionally but recklessly under circumstances manifesting extreme indifference to human life. But the facts of Cordray are clearly distinguishable from the facts herein.
Although unintentional but reckless second-degree murder may be a lesser included offense of felony murder in some situations, in this instance there was no evidence presented at trial that would have reasonably justified a conviction of tire lesser crime beyond a reasonable doubt. Accordingly,-we conclude the district court did not err by failing to instruct tire jury at trial on unintentional but reckless second-degree murder as a lesser included offense of felony murder.
Affirmed.
Malone, J. assigned. | [
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The opinion of the court was delivered by
Biles, J.:
Frederick Martin directly appeals from the distiict court’s summary denial of his pro se motion to correct an illegal sentence. He was convicted in 1986 of felony murder, aggravated kidnapping, and an unlawful weapons violation, and sentenced to two consecutive life sentences and a concurrent 3- to 10-year sentence on the weapons conviction. His motion alleges tire district court imposed cumulative punishments for the felony murder and aggravated kidnapping convictions because both arose from the same act of violence. We affirm the district court’s summary denial of his motion because Martin has unsuccessfully argued the identical issue previously.
Factual and Procedural Background
Martin’s convictions were affirmed on direct appeal in State v. Martin, 241 Kan. 732, 740 P.2d 577 (1987). One of the issues Martin raised was whether he was subjected to double jeopardy when he was prosecuted for both felony murder and the underlying felony of aggravated kidnapping. Martin claimed he could not be prosecuted for both. This court rejected that claim, citing its earlier decision in State v. Crump, 232 Kan. 265, Syl. ¶ 4, 654 P.2d 922 (1982), in which a similar argument was addressed and denied. Martin, 241 Kan. at 741.
Martin filed numerous subsequent appeals and motions. Notably, Martin raised the exact issue he raises in his current motion before the United States Court of Appeals for the Tenth Circuit in Martin v. Roberts, No. 91-3028, 1992 WL 120195 (10th Cir. 1992) (unpublished opinion) (affirming Martin v. Roberts, No. 87-3273, 1991 WL 3134 [D. Kan. 1991] [unpublished opinion]). The Tenth Circuit treated Martin’s attack on his sentence the same as his earlier attack on his convictions in his direct appeal. It noted the Kansas statute providing for multiple prosecutions carries with it multiple sentences, which in the court’s view meant consecutive sentences. Martin, 1992 WL 120195, at *5 (citing K.S.A. 21-3107).
In 1994, Martin filed a motion in Wyandotte County District Court claiming his sentence was illegal because the convictions were multiplicitous. The district court summarily denied that motion because it was a challenge Martin had raised previously in both state and federal court. In 1995, the district court denied another of Martin’s motions to correct an illegal sentence, holding that the issue was previously determined against him in prior proceedings.
In 2001, Martin filed a K.S.A. 60-1507 motion, again raising this exact issue. Martin v. State, No. 91,503, 2004 WL 2848881 (Kan. App. 2004) (unpublished opinion), rev. denied 279 Kan. 1007 (2005). The Kansas Court of Appeals denied his argument based on its finding the issue had been raised and rejected in his 1987 direct appeal. The court also referenced a 2001 motion to correct illegal sentence Martin filed alleging the same errors, which the district court also denied. 2004 WL 2848881, at *1. The court further said that even if Martin had not been precluded from raising the issue, his claim was meritless. 2004 WL 2848881, at *1 (citing State v. Ramos, 271 Kan. 520, 24 P.3d 95 [2001]) (consecutive sentences proper because felony murder did not merge with underlying felony of criminal discharge of a firearm).
In 2005, Martin filed yet another motion to correct an illegal sentence raising the same issue. The district court summarily denied that motion because the identical issue was raised and rejected on direct review as well as in K.S.A. 60-1507 motions. Later in 2005 and again in 2007, Martin filed two more motions to correct an illegal sentence raising the exact issue, but the record does not contain a ruling from the district court on either motion.
Martin filed the current motion to correct an illegal sentence under K.S.A. 22-3504, claiming the district court imposed “cumulative punishments” for felony murder and aggravated kidnapping based on the same act of violence. He contends this was contrary to the statute in effect at the time the offense was committed. The State responds by noting that Martin had previously raised tire issue. The district court summarily denied Martin’s motion as having been previously determined. Martin filed a timely notice of appeal. This court has jurisdiction under K.S.A. 22-3601(b)(l) (appeal from life sentence).
Analysis
This court reviews de novo the district court’s summary denial of a motion to correct an illegal sentence because it has before it the same motion, record, and files as the district court. State v. Jones, 292 Kan. 910, 913, 257 P.3d 268 (2011).
Martin claims the district court erred in denying his motion to correct an illegal sentence because it did not hold a hearing in which Martin had the benefit of counsel. He is mistaken. After preliminary review, a district court may dismiss a motion to correct illegal sentence without a hearing or appointment of counsel — if the district court determines the motion, files, and records conclusively show the defendant is not entitled to relief. Jones, 292 Kan. at 913.
We hold that no new issues of law or fact were raised in Martin’s motion. See State v. England, 45 Kan. App. 2d 33, Syl. ¶ 2, 245 P.3d 1076 (2010) (if motion to correct illegal sentence raises no substantial issues of law or fact, it may be summarily denied). Martin’s underlying argument is barred by res judicata, which applies when issues were previously raised and decided on the merits, or could have been presented but were not. See State v. Conley, 287 Kan. 696, 698, 197 P.3d 837 (2008) (citing State v. Neer, 247 Kan. 137, Syl. ¶ 2, 795 P.2d 362 [1990]). Res judicata consists of four elements: “(1) same claim; (2) same parties; (3) claims were or could have been raised; and (4) a final judgment on the merits.” Winston v. Kansas Dept. of SRS, 274 Kan. 396, 413, 49 P.3d 1274, cert. denied 537 U.S. 1088 (2002). A motion to correct an illegal sentence cannot be used as a vehicle to “breathe new hfe” into an appellate issue previously determined against the defendant. Conley, 287 Kan. at 698 (finding res judicata applies to K.S.A. 21-3504 motion to correct illegal sentence).
The identical issue in the present appeal was raised previously at least six times — once in a K.S.A. 60-1507 motion and in five motions to correct an illegal sentence, two of which were categorically denied by the district court as having been resolved by Martin’s 1987 direct appeal. Martin’s current claim is barred by the doctrine of res judicata.
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Sean E. Shores, of Wichita, an attorney admitted to the practice of law in Kansas in 2004.
On May 16, 2011, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC) and filed a supplement to the formal complaint on August 4, 2011. The respondent filed an answer to the formal complaint on September 13, 2011, and a document titled “answer” on October 12, 2011. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on October 27, 2011, where the respondent was personally present and was not represented by counsel. The hearing panel determined that respondent violated KRPC 1.3 (2011 Kan. Ct. R. Annot. 433) (diligence); 1.4(a) (2011 Kan. Ct. R. Annot. 452) (communication); 1.16(d) (2011 Kan. Ct. R. Annot. 535) (termination of representation); 8.4(b) (2011 Kan. Ct. R. Annot. 618) (commission of a criminal act reflecting adversely on the lawyer s honesty, trustworthiness or fitness as a lawyer); 8.4(d) (engaging in conduct prejudicial to the administration of justice); and Kansas Supreme Court Rule 211(b) (2011 Kan. Ct. R. Annot. 334) (failure to file answer in disciplinary proceeding).
Upon conclusion of the hearing, the hearing panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“Complaint of the Honorable Timothy G. Lahey, DA9788
“6. [D.M.] retained the Respondent to represent her son, [B.M.], in a criminal case. The Respondent negotiated a plea agreement with the prosecution. Mr. [M.] entered the plea and the Court scheduled sentencing for October 19, 2005.
“7. The day before the sentencing healing, the Respondent’s assistant contacted Judge Lahey’s administrative assistant, April Kemner, seeking a continuance of the sentencing hearing. Previously, Donna Longsworth, the prosecutor, had agreed to the Respondent’s request for a continuance. Ms. Kemner informed the Respondent’s assistant that she did not have the authority to grant the Respondent’s request for a continuance. The Respondent took no additional steps to get Mr. [M.’s] sentencing hearing continued.
“8. On October 19, 2005, Mr. [M.] and Ms. Longsworth appeared for sentencing. The Respondent did not appear. Judge Lahey called the Respondent’s office. The Respondent’s assistant told Judge Lahey that the Respondent was in a preliminary hearing in a different division. Judge Lahey told the Respondent’s assistant to have the Respondent call Judge Lahey personally to arrange for a new date for sentencing. The Respondent failed to call Judge Lahey.
“9. From October 20, 2005, through November 9, 2005, Ms. Longsworth called the Respondent’s office and left messages for the Respondent to call the court and reschedule the sentencing hearing. The Respondent failed to call the court to reschedule the sentencing hearing.
“10. On November 10, 2005, the court held a hearing on Mr. [M.’s] case. Mr. [M.] and Ms. Longsworth appeared for the hearing. The Respondent did not appear at the hearing. Mr. [M.] told Judge Lahey that he had not heard from the Respondent. Subsequently, the Court appointed the public defender to represent Mr. [M.].
“11. On December 5, 2005, Judge Lahey contacted Marc Davis, a member of the impaired lawyer’s committee of the Wichita Bar Association, seeking assistance for the Respondent. On December 6, 2005, the Respondent and Mr. Davis met with Judge Lahey. The Respondent apologized for his conduct. Judge Lahey told the Respondent that he had a duty to represent Mr. [M.] unless Mr. [M.] requested otherwise. Judge Lahey advised the Respondent that he needed to take action. Judge Lahey and the Respondent agreed that the Respondent would participate in the mentoring program of the Wichita Bar Association and report to the Court regarding his participation in the mentoring program: The Court rescheduled Mr. [M.’s] sentencing for December 14, 2005.
“12. The Respondent failed to participate in the mentoring program.
“13. On December 14, 2005, Mr. [M.] appeared for sentencing. The Respondent again failed to appear. Mr. [M.] informed the Court that he had not heard from tire Respondent. The Respondent did not inform the Court that he had been discharged by Mr. [M.]. During the December 14, 2005, hearing, Mr. [M.] expressed that tire Respondent’s representation has been inadequate and that he washed to withdraw his plea. The Court allowed Mr. [M.] to withdraw his plea. Mr. [M.’s] ease proceeded to trial with replacement counsel.
“Complaint filed by [K.T.], DA10418
“14. On December 7, 2007, [K.T.] retained the Respondent to assist her with purchasing a business. Ms. [T.] paid the Respondent $500.00 for the representation. Ms. [T.] understood that the Respondent would review the franchise agreement over the weekend and contact her tire following week to advise her. [Footnote: At the hearing on the Formal Complaint, the Respondent testified that Ms. (T.) was to call him the following week and she failed to do so. The Respondent testified that he had no record of Ms. (T.) calling his office. The Hearing Panel concludes that the Respondent’s testimony lacks credibility on this subject.]
“15. The following week, tire Respondent did not contact Ms. [T.]. After approximately two weeks, Ms. [T.] called the Respondent’s office and left messages for the Respondent to call her. The Respondent failed to return the telephone calls.
“16. Ms. [T.] asked a business consultant, [C.R.], to contact the Respondent in her behalf. Mr. [R.] called the Respondent’s office several times but was also unable to contact the Respondent. The Respondent did not return Mr. [R.’s] telephone calls.
“17. On January 28, 2008, Ms. [T.] filed a complaint with the Disciplinary Administrator’s office. On May 7,2008, while the disciplinary complaint was pending, the Respondent refunded Ms. [T.’s] $500.00 advanced fee.
“Complaint filed by [D.T.], DA10979
“18. On April 24, 2009, [D.T.] retained the Respondent to represent her daughter, [L.H.], regarding tire custody of Ms. [H.’s] minor child. Ms. [T.] paid the Respondent $750.00 for the representation.
“19. Ms. [T.] also requested that the Respondent advise Ms. [T.] regarding a possible wrongful termination of employment case against Wesley Medical Center. The Respondent agreed to review Ms. [T.’s] employment records and write the hospital a demand letter. The Respondent explained, however, that he would have to refer tire matter to a different attorney as his wife was currently employed by the hospital. Thereafter, the Respondent sent Ms. [T.] a draft of the demand letter via electronic mail. Ms. [T.] made corrections to the letter and returned the letter to the Respondent.
“20. On June 11, 2009, Ms. [T.] retained the Respondent to represent her in a divorce action. Ms. [T.] paid the Respondent an additional $750.00 for that representation. Ms. [T.] provided tire Respondent with the requisite personal information to prepare the pleadings. During this meeting, the Respondent provided Ms. [T.] with draft pleadings relating to the representation of Ms. [H.]. Further, the Respondent informed Ms. [T.] that Wesley Medical Center had not responded to the demand letter.
“21. On July 9, 2009, Ms. [T.] and her estranged husband, [J.T.], met with the Respondent. The Respondent provided them with the original divorce petition. Ms. [T.] and Mr. [T.] reviewed and signed the divorce petition. The Respondent informed them that he would be filing the divorce petition the following day.
“22. Also at tire July 9, 2009, meeting, Ms. [T.] returned the pleadings related to Ms. [H.’s] custody case. Ms. [T.] noted changes that needed to be made to Ms. [H.’s] pleadings.
“23. Finally, at the July 9, 2009, meeting, Ms. [T.] asked the Respondent about the status of the wrongful termination of employment matter. The Respondent told Ms. [T.] that he was still looking for an attorney to refer Ms. [T.] to.
“24. Thereafter, tire Respondent failed to remain in contact with Ms. [T.]. Ms. [T.] repeatedly called the Respondent regarding the status of the three matters. The Respondent failed to return the telephone calls. Eventually, Ms. [T.] sent the Respondent a text message threatening to file a complaint with tire Disciplinary Administrator’s office.
“25. The Respondent finally contacted Ms. [T.]. The Respondent told Ms. [T.] that he filed the divorce petition in October, 2009. Ms. [T.] called tire courthouse and learned that tire Respondent had not filed the divorce petition.
“26. On November 2, 2009, the Respondent again spoke with Ms. [T.] and Mr. [T.J. The Respondent told them that he had just taken tire divorce petition to the courthouse and filed it. However, the Respondent had not filed tire divorce petition for Ms. [T.].
“27. On December 15, 2009, Ms. [T.] wrote to the Respondent demanding the return of her records and a refund of the $1,500.00. The Respondent failed to return the papers and the advanced fee. On the day of tire hearing on the Formal Complaint, the Respondent provided Ms. [T.] with a check in the amount of $1,500.00. The Respondent failed to return Ms. [T.’s] personal papers.
“Complaint filed by the Honorable Bryce Abbott, DA11001
“28. On March 31, 2009, the Respondent entered his appearance in behalf of [A.C.], in the Wichita, Kansas, Municipal Court. That day, tire Respondent informed the Honorable Bryce Abbott that Ms. [C.] would be applying for tire diversion program.
“29. The Respondent secured a number of continuances to allow Ms. [C.] to raise the funds necessary to apply for diversion. Eventually, Judge Abbott scheduled Ms. [C.’s] case for trial on January 11, 2010.
“30. On January 11, 2010, Ms. [C.] appeared for trial. However, tire Respondent did not appear at that time. Ms. [C.] informed Judge Abbott that the Respondent had the paperwork necessary for her to file her diversion application. Judge Abbott called tire Respondent from the bench. The Respondent did not answer the telephone. A recording informed Judge Abbott that the Respondent’s mail box was full. Judge Abbott rescheduled Ms. [C.’s] case for trial on February 8, 2010.
“31. On February 8, 2010, Ms. [C.] again appeared for trial. The Respondent failed to appear again. Judge Abbott again called the Respondent from the bench and again received only a recording that the Respondent’s mail box was full. Judge Abbott wrote to the Respondent informing him that the case was again set for trial, on March 5, 2010. Judge Abbott also sent a copy of his letter to the Respondent to the Disciplinary Administrator. The Disciplinary Administrator docketed Judge Abbott’s letter as a complaint.
“32. On March 5, 2010, Ms. [C.] again appeared for trial. The Respondent failed to appear at Ms. [C.’s] scheduled trial time for the third time. The Respondent never returned Ms. [C.’s] paperwork.
“Complaint filed by [M.R.], DA11088
“33. At trial, a jury convicted [M.R.] of aggravated robbery. The Court sentenced the Respondent to 380 months in prison. Mr. [R.] is serving his sentence at the El Dorado Correctional Facility. Mr. [R.] took a direct appeal of his conviction and sentence. The Kansas Court of Appeals affirmed Mr. [R.’s] conviction and sentence.
“34. On December 4, 2009, [C.R.] and [L.R.], [M.R.’s] parents, retained tire Respondent to represent [M.R.] in a post conviction matter based upon theories of prosecutorial misconduct, juror misconduct, and illegal sentence. [C.R.J and [L.R.] paid the Respondent $1,350.00 for the representation. Additionally, the Respondent was provided with a transcript pertaining to Mr. [R.’s] criminal case.
“35. Juanita Blackmon, a member of ‘Justice Keepers of Wichita’ also provided the Respondent with a $150.00 check for the representation. The Respondent agreed not to cash Ms. Blackmon’s check until he visited Mr. [R.] in prison and provided a final draft of the motion.
“36. On December 28,2009, the Respondent visited Mr. [R.j in prison. However, the Respondent had not prepared any documents for Mr. [R.’s] review. Mr. [R.] told the Respondent that if he did not have time to attend to Mr. [R.’s] case, he could simply refund the advanced fee. The Respondent told Mr. [R.] that he was still researching the issue and that he planned to assert a motion claiming manifest injustice.
“37. Between December 29, 2009, and January 2, 2010, [C.R.] and [L.R.] and Ms. Blackmon repeatedly attempted to contact the Respondent. The Respondent failed to return the telephone calls.
“38. On January 3, 2010, the Respondent returned Ms. Blackmon’s telephone calls and apologized for the lack of action on Mr. [R.’s] behalf. The Respondent promised to provide Mr. [R.J with a final draft of a motion to correct an illegal sentence on January 6, 2010.
“39. On January 6, 2010, the Respondent did not visit Mr. [R.] in prison. Further attempts to reach the Respondent by Ms. Blackmon went unanswered.
. “40. On May 3, 2010, Mr. [R.] filed a complaint with the Disciplinary Administrator’s office. Mr. [R.] requested that the Respondent refund the advanced fees. Additionally, Mr. [R.] would like to have the transcript returned to him. While the Respondent never cashed or deposited Ms. Blackmon’s check for $150.00, Ms. Blackmon requested that tire Respondent return her check to her so that it cannot be cashed or deposited in the future.
“Complaint filed by the Disciplinary Administrator, DA11118
“41. On April 8,2010, tire Sedgwick County District Attorney’s office charged the Respondent in a one count complaint/information, charging tire Respondent with the crime of aggravated indecent liberties, an off-grid person felony. The victim listed in the complaint/information was 12 years of age.
“42. Pursuant to a plea agreement, on December 10, 2010, the Sedgwick County District Attorney’s office amended the information to include three counts of battery, class B person misdemeanors. The victim listed in the information was 12 years of age.
“43. The Respondent entered a plea of no contest to the three charges in the amended information. The Court sentenced the Respondent to a controlling sentence of 12 months in jail. The Court granted the Respondent probation from the jail time. The Respondent agreed to submit to an alcohol and drug evaluation and a psychological evaluation.
“44. At the time of the hearing on the Formal Complaint, the Respondent remained on probation for the misdemeanor convictions.
“Respondent’s Failure to Timely File an Answer to the Formal Complaint
“45. On May 16, 2011, the Disciplinary Administrator filed a Formal Complaint in the instant case. The Respondent failed to timely file an Answer to the Formal Complaint. Thereafter, on August 4, 2011, the Disciplinary Administrator filed a Supplement to the Formal Complaint, alleging that the Respondent failed to timely file an Answer to the Formal Complaint.
“46. On September 13, 2011, the Respondent filed an Answer to the Formal Complaint. Then, on October 12, 2011, the Respondent filed a second document titled Answer, which answered the allegation that the Respondent failed to timely file an Answer to the Formal Complaint.
“CONCLUSIONS OF LAW
“47. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.16, KRPC 8.4, and Kan. Sup. Ct. R. 211, as detailed below.
“48. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The Respondent failed to diligently and promptly represent his clients. The Respondent failed to provide diligent representation to Mr. [M.], Ms. [K.T.], Ms. [D.T.], Ms. [A.C.], and Mr. [R.]. Because the Respondent failed to act with reasonable diligence and promptness in representing his clients, the Hearing Panel concludes that the Respondent repeatedly violated KRPC 1.3.
“49. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ In this case, the Respondent violated KRPC 1.4(a) when he failed to return telephone calls and otherwise remain in contact with Mr. [M.], Ms. [K.T.], Ms. [D.T.], Ms. [A.C.], and Ms. Blackmon in Mr. [R.’s] behalf. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“50. KRPC 1.16 also requires lawyers to take certain steps to protect clients after the representation has been terminated. Specifically, KRPC 1.16(d) provides the requirement in this regard:
‘Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.’
The Respondent violated KRPC 1.16(d) when he failed to return personal items and unearned advanced fees to Ms. [D.T.], when he failed to return Ms. [A.C.’s] paperwork, when he failed to return the unearned advanced fees to Mr. [R.’s] parents, and when he failed to return Mr. [R.’s] transcript. The Hearing Panel concludes that the Respondent violated KRPC 1.16(d).
“51. ‘It is professional misconduct for a lawyer to . . . commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.’ KRPC 8.4(b). In this case, the Respondent was convicted by bis plea to three counts of misdemeanor battery on a 12 year old. Accordingly, the Hearing Panel concludes that tire Respondent committed criminal acts and those criminal acts reflect directly on tire Respondent’s fitness as a lawyer, in violation of KRPC 8.4(b).
“52. ‘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 appear in Court as directed by Judge Lahey. As such, the Healing Panel concludes that the Respondent violated KRPC 8.4(d).
“53.The Kansas Supreme Court Rules require attorneys to file Answers to Formal Complaints. Kan. Sup. Ct. R. 211(b) provides tire requirement:
‘The Respondent shall serve an answer upon tire Disciplinary Administrator within twenty days after tire service of the complaint unless such time is extended by the Disciplinary Administrator or tire hearing panel.’ Kan. Sup. Ct. R. 211(b).
In this case, the Respondent violated Kan. Sup. Ct. R. 211(b) by failing to timely file a written Answer to the Formal Complaint and by failing to timely file a written Answer to tire Supplement to the Formal Complaint. Accordingly, tire Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 211(b).
“AMERICAN BAR ASSOCIATION
“STANDARDS FOR IMPOSING LAWYER SANCTIONS
“54. In making this recommendation for discipline, the Hearing Panel con sidered 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.
“55. Duty Violated. The Respondent violated his duty to his clients to provide diligent representation and adequate communication. Additionally, the Respondent violated his duty to the public by failing to maintain his personal integrity. Finally, the Respondent violated his duty to the legal profession by failing to comply with Court orders and rules.
“56. Mental State. The Respondent knowingly and intentionally violated his duties.
“57. Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to his clients and the legal profession.
“58. 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:
“59. Dishonest or Selfish Motive. The Respondent’s misconduct related to the representation of Ms. [D.T.] was motivated by dishonesty. On more than one occasion, the Respondent informed Ms. [D.T.] that he had filed her divorce petition when he had not done so. Accordingly, the Hearing Panel concludes that die Respondent’s misconduct was motivated by dishonesty.
“60. A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct. In five of the six complaints, the Respondent failed to provide diligent representation and adequate communication. In three of the six cases, the Respondent failed to properly terminate his representation of his client. As such, the Hearing Panel concludes that the Respondent engaged in a pattern of misconduct.
“61. Multiple Offenses. The Respondent committed multiple offenses. The Respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.16, KRPC 8.4, and Kan. Sup. Ct. R. 211.
“62. Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Bides or Orders of the Disciplinary Process. The Respondent failed to comply with rules of the disciplinary process by failing to timely file an Answer to the Formal Complaint and by failing to timely file an Answer to file Supplement to the Formal Complaint.
“63. Refusal to Acknowledge Wrongful Nature of Conduct. While the Respondent stipulated to many facts and rule violations, he failed to completely acknowledge his wrongdoing. The Respondent’s refusal to acknowledge the full extent of his wrongdoing is an aggravating factor in this case.
“64. Vulnerability of Victim. The Respondent’s clients were vulnerable to his misconduct. Ms. [D.T.] remains married because she could not afford to retain replacement counsel. Mr. [R.] was in prison waiting for the Respondent to seek relief. Finally, the victim in tire criminal case was 12 years old. Thus, the Hearing Panel concludes that the victims of the Respondent’s misconduct were vulnerable.
“65. Indifference to Making Restitution. While the Respondent provided Ms. [K.T.] a refund in May, 2010, and while tire Respondent provided Ms. [D.T.] a refund at tire hearing on the Formal Complaint, the Respondent has taken no steps to refund [C.R.] and Mrs. [L.R.] for the attorney fees paid in behalf of their son.
“66. Illegal Conduct. The Respondent engaged in illegal conduct and, as a result, was convicted of three counts of battery on a 12 year old.
“67. Mitigating circumstances are any considerations or factors that may justify a reduction in tire degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“68. Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“69. Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. The Respondent provided some information that he had a nervous breakdown and abused alcohol for a period of time. The Respondent’s mental health and abuse of alcohol may have contributed to some of the violations in this case.
“70. The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. The Respondent stipulated to many facts and rule violations included in tire Formal Complaint.
“71. Inexperience in the Practice of Law. The Kansas Supreme Court admitted tire Respondent to the practice of law in 2004. The Respondent is inexperienced in tire practice of law. However, the Respondent’s inexperience does not significantly mitigate the misconduct in this case.
“72.Imposition of Other Penalties or Sanctions. In the sixth complaint, the Respondent was placed on probation and was required to comply with certain court orders.
“73. In addition to the above-cited factors, tire Hearing Panel has thoroughly examined and considered tire following Standards:
‘4.12 Suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client.
‘4.41 Disbarment is generally appropriate when:
(a) a lawyer abandons the practice and causes serious or potentially serious injury to a- client; or
(b) a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or
(c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client.
‘4.42 Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.
‘5.12 Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.
‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, tire public, or the legal system.’
“RECOMMENDATION
“74. The Disciplinary Administrator recommended that the Respondent be suspended from the practice of law for an indefinite period of time. The Respondent requested that he be placed on probation, pursuant to Kan. Sup. Ct. R. 211(g)(1). That rulé provides:
‘If the Respondent intends to request that the Respondent be placed on probation for violating the Kansas Rules of Professional Conduct or the Kansas Supreme Court Rules, the Respondent shall provide each member of the Hearing Panel and the Disciplinary Administrator with a workable, substantial, and detailed plan of probation at least ten days prior to the hearing on the Formal Complaint. The plan of probation must contain adequate safeguards that will protect the public and ensure the Respondent’s full compliance with the disciplinary rules and orders of tire Supreme Court.’
The Respondent failed to comply with Kan. Sup. Ct. 211(g). First, he failed to timely provide a copy of his plan of probation to the Disciplinary Administrator and the Hearing Panel. Additionally, the Respondent’s plan of probation is not workable, substantial, and detailed. The Respondent’s plan of probation is inadequate to protect the public from the Respondent’s misconduct. The misconduct in the sixth complaint cannot be corrected by probation. Finally, placing the Respondent on probation is not in the best interests of the citizens of the State of Kansas.
“75. Rased upon the findings of fact and conclusions of law, the Hearing Panel was inclined to recommend that the Respondent be disbarred. However, based upon the recommendation of tire Disciplinary Administrator and the ABA Standards, the Hearing Panel unanimously recommends that the Respondent be suspended from the practice of law for an indefinite period of time. Given the severity of the misconduct and the pattern of misconduct by the Respondent, the suspension should be for a substantial period of time. In the event the Respondent applies for reinstatement in the future, the Respondent should be required to provide credible medical evidence demonstrating a sustained period of recovery from his mental health problems and alcohol abuse.
“76. Finally, the Respondent should be ordered to refund $1,350.00 to Mr. and Mrs. Ridge for the unearned advanced fee paid on Mr. Ridge’s behalf. If the Respondent continues to possess Mr. Ridge’s transcript and Ms. Troxell’s personal papers, the Respondent should be ordered to return those items immediately.
“77. Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, the discipline to be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2011 Kan. Ct. R. Annot. 334). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
Respondent was given adequate notice of the formal complaint, to which he filed an answer, and adequate notice of both die hearing before the panel and the hearing before this court. He filed no exceptions to the hearing panel’s final hearing report. The panel’s findings of fact are thus deemed admitted, and we adopt them. See Supreme Court Rule 212(c), (d) (2011 Kan. Ct. R. Annot. 352).
The evidence before the hearing panel establishes the charged misconduct of the respondent by clear and convincing evidence and supports the panel’s conclusions of law. We therefore also adopt the panel’s conclusions.
The only remaining issue before us is the appropriate discipline. At the hearing before this court, the respondent did not appear. Due to respondent’s failure to appear, the office of the Disciplinary Administrator recommended that the respondent be disbarred. The hearing panel recommended that respondent be suspended indefinitely from the practice of law; that the suspension be for a substantial period of time, and that, should respondent apply for reinstatement, he be required to provide credible medical evidence demonstrating a sustained period of recovery from his mental health problems and alcohol abuse; he refund $1,350 to [C.R.] and [L.R.]; and that he return Mr. [R.’s] transcript and Ms. [D.T.’s] personal papers if he still has them.
We also note that respondent appeared before this court on April 16,2012, to show cause why his license to practice law should not be temporarily suspended. Supreme Court Rule 203(b) (2011 Kan. Ct. R. Annot. 280). As a result of that hearing, on April 17, 2012, respondent’s license was temporarily suspended based on multiple allegations of continued misconduct similar to those at issue in this proceeding. Further, at that hearing, respondent stated he was going to voluntarily surrender his license prior to the oral argument set on this matter. The office of the Disciplinary Administrator has had no further contact with respondent since that proceeding.
Conclusion and Discipline
It Is Therefore Ordered that Sean E. Shores be disbarred from the practice of law in the state of Kansas, effective on the filing of this opinion, in accordance with Supreme Court Rule 203(a)(1) (2011 Kan. Ct. R. Annot. 280).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2011 Kan. Ct. R. Annot. 379).
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Nuss, C.J.:
The issue in this case is whether a trial court constitutionally erred in denying a father s last-minute request to provide his testimony by telephone from Georgia in a Kansas hearing to terminate his parental rights. The trial court held that without this testimony, the father then failed to rebut the presumption of his parental unfitness established by the State’s evidence. His parental rights therefore were terminated.
A majority of the Court of Appeals panel agreed with the father’s claim that the trial court’s ruling denied him procedural due process, so it reversed the trial court and remanded for further proceedings. We granted the State’s petition for review under K.S.A. 20-3018(b). We now reverse the panel majority and affirm the trial court, albeit for slightly different reasons.
Facts
The relevant facts are not in dispute. Minors K.E. and S.D.E. entered into State custody on April 2008. Their father (Father) has been imprisoned in Georgia for cocaine-related reasons for most of their lives. In 1989, he was sentenced to life in prison, and in 2002 he received a 30-year sentence. While Father was still in prison, the trial judge terminated Father’s parental rights on February 16, 2010. The children were then 10 and 8 years old, respectively. But the Court of Appeals reversed and remanded the case with instructions to vacate the termination order.
After remand, the State again filed motions to terminate Father’s parental rights. The State perfected service on him on November 26, 2010, and the termination hearing was scheduled for 12 days later: December 8.
By the day of the termination hearing, Father had been out of prison for approximately 4 months and was serving lifetime parole in Georgia. That morning Father called his attorney, Mark Doty, and informed Doty that he was unable to personally attend the hearing. At the start of the 1:30 p.m. hearing, the trial judge was on the telephone with a man — identifying himself as Father — who said he was in a church in Atlanta, Georgia. The judge told the man that he had been given notice of the proceeding “and I understand through your attorney you were unable to be here or just told him today you couldn’t be here.” The judge asked him to listen to the parties’ arguments in order to “make some determination as to whether [he would be] allowed to participate or not.”
Doty made three arguments on Father’s behalf. First, he requested a continuance. Second, he requested permission for Fa ther to testify by telephone via administration of an oath by a notary public — if the church had one. Third, he requested that the judge bifurcate the proceedings: hearing all other testimony that day and hearing Father s testimony later.
Both the State and the children’s guardian ad litem opposed Father’s request for a continuance, primarily because the children already had been in state custody for 32 months and a continuance was not in their best interests. The judge then asked Doty if Father had explained to Doty why he was unable to be present. Doty replied, “He was unable to arrange transportation. I think probably a lot was financial issue.” Doty tiren agreed with tire judge’s statement that “It didn’t come to [sic] some surprise that he [Father] received this [notice of hearing to terminate parental rights] on the 26th of November.”
The judge told Doty he was “also wondering if he [Father] had led you somehow or other to believe that he would in fact be here today.” Doty replied, “He [Father] had told me he would be here today. I did not learn until midmorning today that he [Father] would not.”
The judge found that conducting the hearing on that scheduled day was in the best interests of the children and that while Father received proper notice, he failed to appear. The judge therefore denied Father’s request for a continuance. He stated:
“I think he [Father] has been aware that there would be this proceeding and should have thought in advance about making arrangements for transportation and the monetary issue of getting here and staying here throughout the proceeding prior to just these last few days, so it’s my decision not to continue this, we’ll proceed. Now, I guess the question is to decide how he might be allowed to participate and to what extent.” (Emphasis added.)
The following telephone colloquy then occurred between the judge in Kansas and Father in Georgia:
“Q: Is there a notary public in the church there where you’re at?
“A: No. No, sir.
“A: No, sir. I can get one. There’s one down tire street.
“Q: Well... do you suppose you could get somebody to come down there to you [at the church]?
“A: No, sir. I know I can’t get anybody come down here. There’s a funeral home that’s just a block away.
“Q: Well, I’m not gonna — you know, they need to come and administer tire oath to you there so we can hear it.”
After this exchange, the State and the guardian ad litem also opposed Father’s request to testify by telephone. They emphasized the problems with the administration of the oath in Georgia for a Kansas court proceeding. They also pointed out their inability to effectively cross-examine Father on documents admitted into evidence that he would be unable to see on the telephone. The guardian ad litem further contended that without the opportunity to observe Father’s demeanor, counsel and the court, as fact finder, would be unable to determine Father’s credibility as a witness — • an important factor in a proceeding that considered the children’s best interests.
After these arguments, the judge denied Father’s request to present sworn testimony via telephone. But Father was allowed to listen to the remainder of the proceeding:
“THE COURT: [Father], my decision’s going to be that I’ll let you listen in but not participate. I’m not going to let you participate by providing unsworn testimony or anydiing in this matter, but you may listen in, and through I guess your attorney anyway he’ll present your position in this case. So that’s going to be my decision.”
The judge then provided his three-pronged rationale for denying Father’s request to testify other dian in open court:
“I’ll deny the request drat you be allowed to present sworn testimony by telephone since first of all we don’t have a simple process to get you sworn, but furthermore, that the court has decided that you were given the option to appear in person, chose not to do so, and in fact the right of confrontation and participation is severely limited by your not being here in person to view exhibits and be observed as far as demeanor and such. All right, that’s the court’s decision.”
Following this decision, the judge heard testimony from three witnesses. These were first a social worker who doubled as case manager; then the supervisor of the first witness; and then the children’s therapist. They generally testified that it was not in the best interests of the children to reintegrate with Father.
The judge ruled that the State had presented clear and convincing evidence that Father was presumed to be an unfit parent under K.S.A. 60-414(a) and K.S.A. 2010 Supp. 38-2271(a). Accordingly, Father now had the burden of proof under K.S.A. 2010 Supp. 38-2271(b) to rebut the presumption of unfitness. Without Father s telephonic testimony, he had no real rebutting evidence to present. Without such rebutting evidence, the State requested the termination of his parental rights, and the judge agreed. After holding that Father did not rebut the statutory presumption, the judge then concluded that it was in the best interests of the children that Fathers parental rights be terminated so the children would be eligible for adoption.
After announcing his ruling, the judge asked Father if he had any questions:
“[Father:] Yes. I have [a] question for the State. I have been trying to get in contact with my lads. Why was I not allowed to get in touch with my lads at all?
“[Father:] How can you get to know your lads when they refuse to let you even talk to the lads?”
The judge then stopped the questioning, advised Father to speak with his attorney, and concluded the proceedings.
A divided Court of Appeals panel reversed the trial judge. The majority held “that Father’s due process rights were violated when he was deprived of the opportunity to be heard prior to the termination of a fundamental liberty interest.” In re K.E., 46 Kan. App. 2d 218, 226, 261 P.3d 934 (2011).
Analysis
Issue: The trial judge did not deny Father due process of lato when refusing his last-minute request to testify by telephone.
Neither Father nor the State asked either the Court of Appeals or this court to consider the threshold question of whether Father had an interest worthy of constitutional protection, i.e., requiring due process of law before its deprivation. Nevertheless, we can resolve this case by addressing the question actually raised on appeal: whether Father’s due process rights were indeed violated.
Standard of review
“Whether a right to due process has been violated is a question of law, over which an appellate court exercises unlimited review.” Davenport Pastures v. Board of Morris County Comm'rs, 291 Kan. 132, Syl. ¶ 2, 238 P.3d 731 (2010).
Discussion
The fundamental due process requirement is “the opportunity to be heard at a meaningful time and in a meaningful manner.” In re J.D.C., 284 Kan. 155, 166, 159 P.3d 974 (2007) (citing Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 [1976]. But “[a] due process violation exists only when a claimant is able to establish that he or she was denied a specific procedural protection to which he or she was entitled.” 284 Kan. at 166.
The specific procedural protection to which the Court of Appeals majority apparently found Father was entitled was the opportunity to be heard through testimony by telephone. In the past K.S.A. 60-243 and Supreme Court Rule 145 generally prohibited telephone testimony. See In re Estate of Broderick, 286 Kan. 1071, 191 P.3d 284 (2008); 2005 Kan. Ct. R. Annot. 214. But effective July 1, 2010, the Kansas Legislature revised K.S.A. 60-243(a) and added language allowing testimony from outside of open court in certain limited instances. It states:
“At trial, the witness’ testimony must be taken in open court, unless otherwise provided by law. For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.” K.S.A. 2010 Supp. 60-243(a).
The revised version of the statute clearly was in effect at the time of the parental rights termination hearing on December 8, 2010.
In Father s brief he argues that the revised statute grants “the trial court discretion to relax the requirement of in person testimony.” (Emphasis added.) He similarly contends that ‘While the bar on testimony by telephone serves important and legitimate purposes it is not an absolute rule.” Father therefore reasons that “[i]n order to determine if the trial court in this matter erred in barring the father from testifying by telephone this court must determine if the circumstances warranted relaxation of the rule. The father was unable to appear due to lack of transportation.” (Emphasis added.)
The State’s brief and petition for review essentially agree with these points. The statutory “requirement” Father acknowledges is that “the witness’ testimony must be taken in open court.” See K.S.A. 2010 Supp. 60-243(a). The State then emphasizes that any “relaxation of the rule” acknowledged by Father specifically requires a showing of three different elements: “[1] good cause [2] in compelling circumstances [3] and with appropriate safeguards.” K.S.A. 2010 Supp. 60-243(a). Finally, the “discretion” acknowledged by Father for judicial relaxation of the rule is also contained in the statute: “[T]he court may permit testimony in open court by contemporaneous transmission from a different location.” (Emphasis added.) K.S.A. 2010 Supp. 60-243(a).
In addition to these points, our analytical structure must include concessions correctly made by Father’s counsel in oral argument to this court. He first candidly conceded that a movant generally bears the burden of proof on a motion. See, e.g., Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 412, 681 P.2d 1038 (1984) (“burden of proof is upon the party asserting the affirmative of an issue”); Vorhees v. Baltazar, 283 Kan. 389, Syl. ¶ 2, 153 P.3d 1227 (2007) (party who asserts abuse of discretion bears burden of showing it); In re Care & Treatment of Sipe, 44 Kan. App. 2d 584, 592, 239 P.3d 871 (2010) (“[A]s a general rule tire burden of proof lies with the moving party or the party asserting the affirmative of an issue.”); In re GMA, 30 Kan. App. 2d 587, 594, 43 P.3d 881 (2002) (burden of proof generally falls upon the party seeking a change in the status quo [citing 29 Am. Jur. 2d, Evidence § 158]). And counsel further conceded Father was the party asking the trial judge to relax the statutory requirement that all testimony be taken in open court.
At the December 8, 2010, hearing, however, no one directly acknowledged awareness of the revision to tire statute, i.e., that under certain circumstances testimony outside of open court could be permitted. This included the judge. So the judge could not have knowingly applied tire appropriate statutory standard when he denied Fathers request to testily telephonically. A district court abuses its discretion when it fails to apply the appropriate law, i.e., the controlling legal standards. See State v. Gonzalez, 290 Kan. 747, 756, 234 P.3d 1 (2010). But as explained below, any abuse of discretion is harmless error under the particular facts of this case.
In his own fashion, the trial judge did find no “good cause in compelling circumstances ... with appropriate safeguards” to allow Father to present sworn testimony by telephone. He articulated three specific reasons for denying Father’s request.
First, and most persuasive, there essentially was no “good cause in compelling circumstances” because Father was “given the option to appear in person, [yet] chose not to do so.“ (Emphasis added.) Accordingly, the State argues in its brief, “[D]ue to the fact that the father was voluntarily absent from the termination hearing, there was no good cause or compelling circumstances to allow the father to testify by phone. See K.S.A. 60-243 (2010).” This court finding is supported by uncontroverted evidence in the record that shows Father had been served with notice well in advance of the hearing. Although not evidence, it is also supported by his attorney’s informing the judge that Father previously had told counsel that Father would be attending that day but then told counsel the morning of the hearing that he would not attend. And while his attorney also told the judge that Father did not attend because he was unable to find transportation, the rest of the explanation is counsel’s speculation: “I think probably a lot was financial issue.”
Second, tire judge essentially found there were no “appropriate safeguards” because, “We don’t have a simple process to get [Father] sworn.” This finding is supported in the record by Father’s admission that he could not get a notary public, particularly one from the neighborhood funeral home, to come to the church in Atlanta and ostensibly administer an oath that the judge could hear for Father to testify by telephone in a Kansas proceeding.
Third, when the judge stated “the [Father’s] right of confrontation and participation is severely limited by [Father] not being here in person to view exhibits and be observed as far as demeanor and such,” he conceivably found no statutory “good cause” or no “compelling circumstances” or no “appropriate safeguards.” This finding is supported in the record both by specific objections of the State and the guardian ad litem and by the acknowledgment that Father was on the telephone in Atlanta at the time of the hearing in Kansas.
Inherent in all these trial judge determinations is a conclusion that Father simply did not meet his burden to convince the judge to allow his telephone testimony. See Sipe, 44 Kan. App. 2d at 592 (“as a general rule the burden of proof lies with the moving party or the party asserting the affirmative of an issue”)- Indeed, the only grounds possibly offered by Father were mentioned above: simply his counsel’s unsworn statement that “[Father] was unable to arrange transportation” and counsel’s speculation: “I think probably a lot was financial issue.”
Any trial judge failure to acknowledge and consciously follow the revised statute is harmless here because his analysis was the functional equivalent of what was technically required by the statute. Consequently, any failure was harmless under either standard expressed in State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011) (explaining differing harmlessness standards when error infringes upon constitutional right and when error does not infringe upon constitutional right).
This analysis reveals our fundamental disagreement with the Court of Appeals majority’s interpretation of the trial judge decision. While the panel did review the decision under the revised statute, it held that the trial court “made no finding either way as to compelling circumstances, but it appears that the court was prepared to accept Father’s testimony by phone if it could have been sworn. Thus, compelling circumstances or the lack thereof does not appear to be dispositive here.” In re K.E., 46 Kan. App. 2d at 224.
But the panel’s conclusion overlooks the trial judge’s critical finding — and one of his three bases for denying Father’s motion— that Father was “given the option to appear in person, [yet] chose not to do so.“ It also does not consider the trial judge’s finding that Father’s absence would cause a problem because he could not view exhibits and because counsel and the judge could not view Father’s demeanor, i.e., for credibility purposes. Moreover, the panel makes no mention of the statutory need for a showing of “good cause” to allow testimony other than in open court.
The panel majority instead seemed to focus on the “appropriate safeguards” factor in the revised statute and effectively declared the trial judge should have done more to consider, and perhaps supply, “substitute procedural safeguards.” It stated, for example, that “[i]t is unclear to this court why the district court did not further explore what appeared to be a viable alternative [a notary “down the street” to administer the oath] under the circumstances.” In re K.E., 46 Kan. App. 2d at 224. The panel majority also held “it does not appear that tire court considered [its own] telephonic administration of the oath.” 46 Kan. App. 2d at 224. But this detailed appellate analysis of appropriate safeguards becomes unnecessary once it is determined the trial judge essentially has found no “good cause in compelling circumstances” had been established by Father.
In conclusion, we hold that Father was given appropriate notice of the time, place, and purpose of his parental rights termination hearing, and an opportunity to appear there and be heard in a meaningful manner. He then simply failed to cany his burden to meet the standards provided in K.S.A. 2010 Supp. 60-243(a) to establish that his testimony by telephone was warranted. Due process was afforded.
Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnson, J.:
Jose A. Portillo directly appeals his conviction for one count of rape of a child under age 14. At sentencing, recognizing that it had failed to properly charge Portillo with the off-grid version of the crime, the State filed a motion to amend the presentence investigation report (PSI) to indicate that Jessica’s Law applied and that Portillo was subject to a mandatory minimum hard-25 life sentence. Ultimately, the district court found that the State’s failure to charge Portillo with the off-grid offense version of the crime was mere clerical error and did not prejudice his defense. As a result, the district court held that Portillo had been convicted of an off-grid felony. Nevertheless, the district court departed from the mandatory minimum sentence and imposed a prison term of240 months. Portillo appeals, claiming his conviction and sentence violate due process and that his conviction was not supported by sufficient evidence. We find sufficient evidence to support a conviction for the on-grid version of the crime but remand for resentencing.
Factual and Procedural Overview
Portillo was accused of the forcible rape of D.B., the daughter of a woman with whom Portillo had been having an affair. In an initial interview with the police on the date of the incident, D.B. said that Portillo had come to the house as usual that morning but then had asked D.B. to go into her bedroom. She said that when they were inside the bedroom and Portillo had closed the door, he pulled down her pants, covered her mouth, pushed her onto the bed, pulled off his pants, got on top of D.B., and “tried to put his thing in her.” When asked whether Portillo had “put it in all the way,” D.B. responded, ‘Tes, but not all the way in.”
D.B.’s mother opened the bedroom door to discover Portillo on top of D.B. and D.B.’s underwear and pants below her knees. The mother scuffled with Portillo, before calling the police. After the police interviewed D.B., her mother took her to the hospital emergency room.
At the hospital, Dr. Hite performed a sexual assault and gynecological examination. The doctor testified to finding blood in the general area inside the labia majora, albeit she could not pinpoint the source of the blood except to rule out that it was coming from the vaginal canal or the rectum. The doctor could not see any tearing, lacerations, or scratches with her naked eye, but did notice a “duskiness in the posterior fourchette,” which was consistent with bruising as a result of direct blunt trauma. The swabs collected from D.B. during the examination and from D.B.’s bedding all tested negative for Portillo’s DNA.
D.B. was forensically interviewed at Sunflower House the day after the incident. Her recollection of events was consistent in most respects with her statements to the police the day before, except for her description of penetration. When asked what Portillo was doing while on top of her, D.B. said that he was “pushing back and forth” with his private part on top of her private part, which felt “weird.” She said that Portillo tried to get his private part “inside [her] body but [she] kept on moving so he couldn’t.” At trial, D.B. testified that Portillo “put his private thing on [her] private thing,” but not inside. When asked about her initial statement to law enforcement, D.B. said that she did not remember telling the officer that Portillo “got it partway in.”
Portillo’s theory of defense was that D.B.’s.mother had fabricated the rape because she was mad at Portillo for refusing to commit to their relationship. At trial, the defense objected to the admission of the videotape of D.B.’s Sunflower House interview as cumulative, arguing that it constituted the “fourth hearsay telling of what [D.B.] has said.” The trial court admitted the videotape as being probative of the victim’s state of mind.
The jury was instructed on both rape and attempted rape. The juiy found Portillo guilty on the rape charge.
The initial sentencing hearing was scheduled for March 11, 2009, albeit the transcript of that hearing is not in the record on appeal. According to a subsequent pleading, entitled “State’s Motion to Amend Presentence Investigation Report,” the State discovered at tire initial sentencing hearing that the information had charged Portillo with severity level 1 rape, rather than the off-grid version. Apparently, the district court continued the initial sentencing hearing to allow the parties to brief the issue. Ultimately, the district court agreed with the State’s argument that its charging of the on-grid version of the offense could be considered a clerical error and that the erroneous charging instrument had not prejudiced Portillo’s defense in any way. Accordingly, the district court determined that it could sentence Portillo for the off-grid version of the crime.
Nevertheless, the district court advised tire parties that it had decided sua sponte to impose a departure sentence. The aggravated term in the appropriate guidelines grid-box for the severity level 1 version of rape was 165 months. The district court told the parties that it was “looking at a number between 165 [months] and 25 years.” After giving the parties an opportunity to be heard, the court ultimately imposed a sentence of 240 months.
On June 17, 2009, Portillo obtained leave to docket this appeal out of time. We have jurisdiction pursuant to K.S.A. 22-3601(b)(l).
Portillo’s brief raises three issues: (1) The State’s failure to charge and prove the defendant’s age at trial, along with the district court’s failure to instruct the jury on the element of defendant’s age, violated Portillo’s Sixth Amendment right to a jury trial when the district court imposed a sentence as if Portillo had been convicted of an off-grid offense; (2) the district court erred in permitting the admission of the Sunflower House interview videotape; and (3) the evidence was insufficient to support the penetration element of rape. We take the liberty of addressing the issues in reverse order.
Sufficiency of the Evidence of Penetration
Standard of Review
To avoid any suggestion that we might be altering our standard of review, we will resist the temptation to paraphrase the familiar standard and will set forth a complete recitation:
“ ‘When sufficiency of evidence is challenged in a criminal case, our standard of review is whether, after review of all the evidence, examined in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ State v. Prine, 287 Kan. 713, 738, 200 P.3d 1 (2009) (citing State v. Vasquez, 287 Kan. 40, 59, 194 P.3d 563 [2008]; State v. Morton, 283 Kan. 464, 474, 153 P.3d 532 [2007]). ‘In reviewing the sufficiency of the evidence, this court will not reweigh the evidence. It is the jury’s function, not ours, to weigh the evidence and determine the credibility of witnesses.’ State v. Doyle, 272 Kan. 1157, 1162-63, 38 P.3d 650 (2002) (citing State v. Aikens, 261 Kan. 346, 391-92, 932 P.2d 408 [1997]).” State v. Cosby, 293 Kan. 121, 133-34, 262 P.3d 285 (2011).
Analysis
The version of rape for which Portillo was convicted simply required the State to prove that Portillo had “sexual intercourse with a child who is under 14 years of age.” K.S.A. 21-3502(a)(2). “Sexual intercourse” is defined as “any penetration of the female sex organ by a finger, the male sex organ or any object. Any penetration, however slight, is sufficient to constitute sexual intercourse.” K.S.A. 21-3501(1). This court has further refined the analysis of penetration by stating that “actual penetration of the vagina or rupturing of the hymen is not required; penetration of the vulva or labia is sufficient.” State v. Borthwick, 255 Kan. 899, 914, 880 P.2d 1261 (1994).
Here, the evidence of penetration was conflicting. D.B.’s initial statement to the investigating officer suggested that Portillo achieved partial penetration. Her Sunflower House interview suggests that Portillo was moving his penis back and forth on the top of D.B.’s genitalia, and her trial testimony denied that penetration occurred because her movements had prevented it. The results of D.B.’s medical examination — blood on the inside of the labia and blunt force injuiy bruising — were consistent with penetration, but not conclusive on that point. Portillo’s DNA was not found on the vaginal swabs.
Naturally, Portillo focuses on D.B.’s trial testimony that penetration did not occur. He “contends that there must be irrefutable medical evidence of penetration or at least clear and convincing evidence that the victim does not comprehend the legal definition of sexual intercourse before a jury’s rejection of the complaining [witness’] testimony denying penetration can be upheld on appeal.” But, of course, that newly manufactured standard is nowhere close to our historical test for evidence sufficiency. The trial attorneys are free to argue which of the victim’s statements are more credible, and it is the jury’s function, not ours, to make the final assessment of credibility. Indeed, one might question whether the criminal defense bar would embrace a rule that would have us assessing the victim’s testimony as always absolutely credible absent “irrefutable evidence” to the contrary.
Moreover, this court has previously addressed the circumstance of a victim’s inconsistent statements regarding penetration. In State v. Prine, 287 Kan. 713, 200 P.3d 1 (2009), the victim told an investigating detective that the defendant placed his fingers on both the inside and outside of her vagina. But at trial, the victim repeatedly testified that the defendant only touched her on the outside. Based on this conflict, the defendant argued on appeal that there was insufficient evidence of penetration to support a rape conviction. 287 Kan. at 738. Despite the victim’s denial at trial, this court upheld the sufficiency of the evidence to support the element of penetration, relying on the overall consistency of the victim’s various statements detailing the alleged events and on other evidence that allowed for a “common-sense inference of penetration.” 287 Kan. at 739-40.
As in Prine, D.B.’s various statements were consistent, except for the question of penetration. Even then, D.B.’s Sunflower House statement that Portillo was on top of her, pushing his penis back and forth, which she said felt weird, would support a common-sense inference that at least the labia were being penetrated. That inference was bolstered to some extent by the medical evidence of blood and bruising. Further, Dr. Hite opined that girls D.B.’s age often do not know particular terms for genitalia so they generalize, i.e., D.B. might not have known the difference between penetration of the labia and penetration of the vaginal canal.
On appeal, we are required to give due deference to the jury’s factfinding. Without reweighing the evidence or reassessing tire victim’s credibility, and viewing the evidence in a light most favorable to the State, we are constrained to find that a rational jury could have found beyond a reasonable doubt that Portillo completed the crime of rape by effecting penile penetration. In other words, the evidence was sufficient to support the rape conviction.
Admission of Forensic Interview Videotape
Portillo also complains that the district court should not have permitted the State to admit the videotape of D.B.’s sexual abuse interview at the Sunflower House. He claims that the videotape was cumulative hearsay evidence that the trial court admitted for the irrelevant purpose of showing the victim’s state of mind.
Standard of Review
“ ‘ “When a party challenges the admission or exclusion of evidence on appeal, the first inquiry is relevance. Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in die exercise of the district judge’s discretion, depending on the contours of die rule 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. Walters, 284 Kan. 1, Syl. ¶ 2, 159 P.3d 174 (2007).’ State v. Richmond, 289 Kan. 419, 426, 212 P.3d 165 (2009).
“When die more discretionary aspects of an admissibility determination are challenged, ‘die district court’s decision will not be overturned on appeal if reasonable minds could disagree as to the court’s decision.’ State v. Boggs, 287 Kan. 298, 307, 197 P.3d 441 (2008).” State v. McMullen, 290 Kan. 1, 7, 221 P.3d 92 (2009).
Analysis
At the time of Portillo’s trial, K.S.A. 22-3433 was in effect and expressly authorized the admission of the recorded oral statement of a victim under the age of 13 under certain circumstances. Specifically, the statute provided:
“(a) In any criminal proceeding in which a child less than 13 years of age is alleged to be a victim of the crime, a recording of an oral statement of the child, made before the proceeding began is admissible in evidence if:
(1) The court determines that the time, content and circumstances of the statement provide sufficient indicia of reliability;
(2) no attorney for any party is present when tire statement is made;
(3) the recording is both visual and aural and is recorded on film or videotape or by other electronic means;
(4) the recording equipment is capable of making an accurate recording, the operator of the equipment is competent and the recording is accurate and has not been altered;
(5) the statement is not made in response to questioning calculated to lead the child to make a particular statement or is clearly shown to be the child’s statement and not made solely as a result of a leading or suggestive question;
(6) every voice on the recording is identified;
(7) the person conducting the interview of the child in the recording is present at the proceeding and is available to testify or be cross-examined by any party;
(8) each party to the proceeding is afforded an opportunity to view the recording before it is offered into evidence, and a copy of a written transcript is provided to the parties; and
(9) the child is available to testify.
“(b) If a recording is admitted in evidence under this section, any party to the proceeding may call the child to testify and be cross-examined, either in the courtroom or as provided by K.S.A. 22-3434 and amendments thereto.” K.S.A. 22-3433.
Here, D.B. was age 11, and Portillo does not challenge any of the prerequisites set forth in the statute. Pointedly, the statute does not require the recorded oral statement to be noncumulative. To the contrary, under K.S.A. 22-3433(b), the child must testily in person if requested by either party. Accordingly, the statute contemplates that the recorded statement could well be cumulative to live testimony.
Further, the statute states that if the prerequisites are met, the recorded statement “is admissible in evidence.” (Emphasis added.) K.S.A. 22-3433(a). That language suggests that the legislature has declared such statements to be relevant. Nevertheless, we will address Portillo’s relevancy argument.
When the State was responding to the defense objection to the admission of the Sunflower House videotape, the prosecutor argued that the videotape was probative of D.B.’s “state of mind very recent to the attack” and said the consistency of the statement countered the defense claim that D.B. was lying. The point tire State appeared to be making was that the timing of the statement, i.e., the day after the attack, would have memorialized tire victim’s fresh recollection of events, which in turn was consistent with her later statements. Unfortunately, when the court admitted the videotape, it parroted the prosecutor’s poor word choice and said the evidence was probative of “the state of mind of the victim in this case.”
Portillo pounces on the court’s stated rationale, contending that the victim’s state of mind was not a disputed material fact in this case. We agree with that assessment to the extent that “state of mind” refers to what D.B. was thinking during the alleged crime. However, to the extent the phrase refers to D.B.’s recollection of events during the Sunflower House interview, it does describe hotly contested matters. Portillo categorically denied that anything happened, directly contradicting the statements of both D.B. and her mother. D.B.’s statements during the Sunflower House interview, being consistent with other statements she made, together with D.B.’s demeanor during the interview, were probative on the issue of which version of events the jury would believe — the defendant’s or the victim’s.
Additionally, Portillo argues that, even if the interview videotape was relevant, its probative value was outweighed by its prejudicial effect. One might ruminate on just how prejudicial a cumulative statement can be. If the juiy has already heard the statement, how earth-shattering could a repeat version be? Nevertheless, here we have part of the statement’s probative value being the fact that it repeats the same version of events that is given at other times, including at trial. In other words, the statement’s probativeness emanates from its cumulative nature. In short, the district court did not abuse its discretion in admitting the Sunflower House interview videotape.
Off-Grid Sentencing for On-Grid Conviction
Although Portillo received a departure sentence, he contends that the district court erred in finding that the starting point was the mandatory hard-25 life sentence under Jessica’s Law, K.S.A. 21-4643. Instead, he believes that the district court should have departed downward from his grid-based presumptive sentence for a severity level 1 offense, which listed a mid-term sentence of 155 months. Portillo argues that the off-grid sentencing was precluded for three reasons: (1) The State did not include the element of defendant’s age in the complaint; (2) the State did not introduce evidence of defendant’s age during the jury trial; and (3) the district court did not instruct the jury on the element of the defendant’s age. Although Portillo refers to a complaint, the applicable charging document in this case is an information, albeit the distinction does not affect our analysis.
Standard of Review
We will focus on the content of the charging document, or more accurately, the lack of content in the information. Recently, we suggested that a district court derives its jurisdiction to convict an accused through the charging document:
“ ‘The Sixth Amendment to the United States Constitution gives an accused the right to “be informed of the nature and cause of the accusation”; the Kansas Constitution Bill of Rights, § 10 mandates that “the accused shall be allowed ... to demand the nature and cause of die accusation against him.” Generally, if a complaint fails to include an essential element of a crime charged, it is “fatally defective, and the trial court lacks jurisdiction to convict the defendant of the alleged offense.” ’ ” (Emphasis added.) State v. Inkelaar, 293 Kan. 414, 433-34, 264 P.3d 81 (2011) (quoting State v. Gonzales, 289 Kan. 351, 366, 212 P.3d 215 [2009]).
To the extent we are called upon to determine the existence of jurisdiction, we are presented with a question of law subject to unlimited review. State v. Ellmaker, 289 Kan. 1132, 1147, 221 P.3d 1105 (2009), cert. denied 130 S. Ct. 3410 (2010).
Analysis
K.S.A. 21-3502 is the statute that defines rape, thereby setting forth the essential elements of the crime. Portillo was charged under the subsection (a)(2) definition of rape, i.e., “sexual intercourse with a child who is under 14 years of age.” The statute also states that “rape as described in subsection (a)(1) or (2) is a severity level 1, person felony,” except that “[r]ape as described in subsection (a)(2), when the offender is 18 years of age or older, is an off-grid person felony.” K.S.A. 21-3502(c). In other words, the statute defining rape makes a defendant’s age — 18 years or older — an element of the off-grid version of the crime. See State v. Reyna, 290 Kan. 666, 676, 234 P.3d 761, cert. denied 131 S. Ct. 532 (2010) (“the defendant’s age at the time of the offense is an element of the crime if the State seeks to convict the defendant of tire more serious, off-grid enhanced offense”). Likewise, Jessica’s Law’s mandatoiy minimum sentencing is only applicable to “a defendant who is 18 years of age or older.” K.S.A. 21-4643(a)(l).
Since the enactment of Jessica’s Law, K.S.A. 21-4643, a number of defendants sentenced under that provision have challenged their charging documents based on the omission of defendant’s age as an element of the crime. See, e.g., Inkelaar, 293 Kan. at 433-35; State v. Huerta-Alvarez, 291 Kan. 247, 254-56, 243 P.3d 326 (2010); State v. Kemble, 291 Kan. 109, 125-30, 238 P.3d 251 (2010); Reyna, 290 Kan. at 674-76; State v. Gonzales, 289 Kan. 351, 365-69, 212 P.3d 215 (2009); State v. Gracey, 288 Kan. 252, 254-57, 200 P.3d 1275 (2009). In each of those cases, this court examined the entire charging instrument to locate some indicia of defendant’s age or an indication that the State intended to charge the off-grid version of the crime. See Inkelaar, 293 Kan. at 433-34; Huerta-Alvarez, 291 Kan. at 254-55 (all three complaints contained defendant’s year of birth in the caption and alleged that at least one of the counts was an off-grid offense); Reyna, 290 Kan. at 678 (defendant’s year of birth in caption and stated charges were for off-grid felonies); Gonzales, 289 Kan. at 369 (listed date of birth and listed crime as off-grid); Gracey, 288 Kan. at 254-55 (same).
Portillo contends, the State concedes, and the record confirms that the information filed in this case specifically alleged that Por-tillo violated “K.S.A. 21-3502. (Rape, Severity Level 1, Person Felony).” There is no dispute that the information contains nothing anywhere on the document that would indicate Portillo’s date of birth or age. Further, the information makes absolutely no reference to Jessica’s Law, to the provisions of K.S.A. 21-4643, to an off-grid classification or off-grid sentence, or to a mandatory minimum sentence of a hard-25 life sentence. In fact, the prosecutor informed the district court that the document was generated by a computer macro designed to charge the pre-Jessica’s Law version of the offense.
The State argued below that the error was merely clerical, because the 2006 statutory provisions had clearly changed the rape that Portillo was alleged to have committed from a severity level 1 offense to an off-grid felony. The apparent suggestion was that Portillo knew his own age and should have known that the State really intended to charge the newly created off-grid version of the offense. What the State fails to appreciate is that we have said that a prosecutor has essentially unfettered discretion to ignore a fact that would support a prosecution for a more serious offense and, instead, can merely choose to prosecute the defendant for a lesser offense. See State v. Sandberg, 290 Kan. 980, 987, 235 P.3d 476 (2010) (quoting State v. Campbell, 279 Kan. 1, 14, 106 P.3d 1129 [2005]) (“nothing ‘ “foreclose^] the prosecutor from deciding in a particular case that, notwithstanding the presence of one of the aggravated facts, the defendant will still be prosecuted for the lesser offense” ’ ”). Here, that would mean that the prosecutor had discretion to ignore the fact that Portillo was age 18 or older and prosecute him for the severity level 1 version of the offense, which the charging instrument purported to do. The State does not explain how Portillo should have known that the prosecutor here was not exercising his or her prosecutorial discretion to intentionally charge the on-grid version of rape.
If one were to take a straightforward approach, there is no way in which to view the charging document in this case as having informed Portillo that the nature and cause of the accusation against him was an off-grid felony, i.e., the information would not pass constitutional muster. However, we have chosen to resolve these cases by utilizing a version of the defective complaint test created in State v. Hall, 246 Kan. 728, 764-65, 793 P.2d 737 (1990).
In Hall, the court took the “opportunity to express [its] concern relating to the number of appeals in Kansas in which the allegation of a defect in the information is raised for the first time on appeal.” 246 Kan. at 753. The court noted that it appeared that prosecutors were engaging in “the practice of drawing an information without having at hand the current statute defining the offense.” 246 Kan. at 753. Moreover, Hall related that the number of appeals claiming defects in informations “suggests that certain prosecutors need to exercise more care in the initial preparation of the charging document.” 246 Kan. at 753. The Hall court then effectively rewarded tire State for employing careless scriveners by creating a rule that makes it more difficult for a defendant to obtain relief when a prosecutor drafts a defective charging instrument.
Hall opined that “[t]he proper procedure for a defendant who contends either that the information does not charge a crime or that the court was without jurisdiction of the crime charged is to utilize the statutory remedy extended by the legislature for these two specific situations — a K.S.A. 22-3502 motion for arrest of judgment.” 246 Kan. at 760. The opinion clarified that if a defendant files a timely motion for arrest of judgment, the district court is to apply the rationale of the pre-Hall cases. That prior rationale included the bright-line rale “that an information which omits one or more of the essential elements of tire crime it attempts to charge is jurisdictionally and fatally defective and a conviction on that offense must be reversed. [Citation omitted.]” 246 Kan. at 747. Further, “the citation to the statue cannot substitute to supply a missing element of the charge, and . . . incorporations by reference cannot be implied and will not be inferred but must be explicit. [Citation omitted.]” 246 Kan. at 746.
But for “[i]nformation defect challenges raised for the first time on appeal,” i.e., where the defendant did not file a motion for arrest of judgment, Hall crafted a new rale to be applied prospectively. 246 Kan. at 765. The rule has been carried forward and applied in Jessica’s Law cases. See, e.g., Inkelaar, 293 Kan. at 434; Reyna, 290 Kan. at 678. The Hall language which is sometimes paraphrased reads as follows:
“Of paramount importance, we shall look to whether the claimed defect in the information has: (a) prejudiced tire defendant in tire preparation of his or her defense; (b) impaired in any way defendant’s ability to plead the conviction in any subsequent prosecution; or (c) limited in any way defendant’s substantial rights to a fair trial under the guarantees of the Sixth Amendment to the United States Constitution and the Kansas Constitution Bill of Rights, § 10. If a defendant is able to establish a claim under either (a), (b), or (c), the defective information claim, raised for the first time on appeal, will be allowed.” 246 Kan. at 765.
It gives one pause to look closely at how the Hall rule works. During the jury trial, the charging document would be jurisdic-tionally and fatally defective if it omitted an essential element and the trial court would not have jurisdiction to enter any resulting conviction. However, if the defendant later failed to file a motion for arrest of judgment, the charging document and resulting conviction would somehow acquire retroactive validity. That notion appears to run counter to the rule that subject matter jurisdiction cannot be created by waiver, estoppel, or consent. See Ellmaker, 289 Kan. at 1151. Likewise, the constraint on raising the jurisdictional issue for the first time on appeal is inconsistent with our holdings that allow a challenge to the district court’s subject matter jurisdiction to be raised at any time. See State v. Sales, 290 Kan. 130, 135, 224 P.3d 546 (2010). Moreover, we recently declared that appellate courts have “no authority to create equitable exceptions to jurisdictional requirements.” Board of Sedgwick County Comm’rs v. City of Park City, 293 Kan. 107, Syl. ¶ 3, 260 P.3d 387 (2011). Hall dealt with this conundrum by suggesting that a defective charging instrument is not really an issue of subject matter jurisdiction. However, we have not been asked to revisit Hall and our ultimate resolution will not require the application of that case’s restrictive rule.
In its brief, the State argues that, because Portillo did not file a motion for arrest of judgment, we must apply the post-Hall test, as we did in Reyna. This case poignantly illustrates the logistical problem of requiring the defendant to file a motion for arrest of judgment in a circumstance where the State charges and prosecutes the on-grid version of a crime, but then asks for the off-grid sentence. Indeed, here, the first indication on the record that the State really had intended to charge the off-grid version of rape was when it filed a motion to amend the PSI, well after the deadline for a motion for arrest of judgment had passed. Apparently, the Hall court did not address the potential problem with timing be cause it was confused about when the defendant was required to file a motion for arrest of judgment. The opinion related that the remedy was “available for 10 days after disposition at the trial court level.” (Emphasis added.) 246 Kan. at 760. However, the two-decades-old statute at the time required the defendant to file the motion “within 10 days after the verdict or finding of guilty, or after a plea of guilty or nolo contendere, or within such further time as the court may fix during the 10-day period.” L. 1970, ch. 129, § 22-3502. Ordinarily, then, a defendant could not wait until the disposition of the case was complete at the trial court level because sentencing is usually scheduled more than 10 days after the guilty verdict. Yet, the defendant, as in this case, might not know that the charging document was defective, i.e., know that a motion for arrest of judgment is needed, until the State shows its hand and convinces the court to sentence defendant for an uncharged, but more severe, version of the crime.
Fortunately, we can avoid the problem of requiring a defendant to file a motion before he or she knows it is required by looking at the rationale for the Hall rule and applying the provisions of K.S.A. 22-3503. Hall noted that its requirement of a K.S.A. 22-3502 motion for arrest of judgment “would allow the district court to pass on the defendant’s contentions in timely fashion and to comply with what we deem to be the procedure intended by the legislature.” 246 Kan. at 760. What Hall did not discuss is that K.S.A. 22-3503 allows the trial court to arrest judgment without a motion by defendant and without the time constraints of K.S.A. 22-3502. Specifically, K.S.A. 22-3503 provides: “Whenever tire court becomes aware of the existence of grounds which would require that a motion for arrest of judgment be sustained, if filed, the court may arrest the judgment without motion.”
At sentencing, the State asked the district court to amend the PSI to reflect that Portillo should be sentenced under Jessica’s Law for an off-grid felony. While that maneuver was ineffective to remedy the fact that the information omitted an essential element of the off-grid version of rape, it did provide the opportunity for the parties to make the arguments which would have been presented upon a motion for arrest of judgment. Both parties argued their respective interpretation as to the applicability of this court’s holding in Gracey. The State, after conceding that its information failed to charge off-grid rape, also argued that the trial court should apply the post-Hall prejudice test because Portillo had not timely filed a motion for arrest of judgment. Through the parties’ arguments, the district court was made aware of the existence of grounds which would require that a motion for arrest of judgment be sustained. Accordingly, tire district court could have ruled on defendant’s contentions in a timely fashion and complied with the procedure intended by the legislature in K.S.A. 22-3503, as Hall envisioned. Therefore, we will not view the charging document challenge as being raised for the first time on appeal and will test the information in this case under the pre-Hall standards.
As noted, the State conceded that its information did not charge Portillo with the off-grid version of rape, and we agree with that concession. The defendant’s age being 18 or older is an essential element of the off-grid version of the crime. See K.S.A. 21-3502(c); Reyna, 290 Kan. at 676. The information did not contain that essential element. That omission rendered the information fatally defective and deprived the trial court of jurisdiction to convict Por-tillo of the off-grid version of rape. See State v. Sanford, 250 Kan. 592, 600-01, 830 P.2d 14 (1992).
The district court’s sentence, based upon a conviction for the off-grid person felony, must be vacated. But Portillo did not challenge the validity of the information with respect to the on-grid, severity level 1, person felony version of rape. Accordingly, we remand for resentencing based upon the appropriate grid-box for the severity level 1 person felony. In the event the district court again considers a departure, the provisions of the sentencing guidelines will govern that procedure.
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The opinion of the court was delivered by
Luckert, J.:
Vernon Ray Gilliland was convicted by a jury of one count of aggravated criminal sodomy with a child under 14 years of age. Because Gilliland was over the age of 18 at the time of the offense, his conviction was for an off-grid person felony. K.S.A. 21-3506(a)(l), (c). On direct appeal, Gilliland seeks reversal of his conviction by arguing the trial court erred in; (1) denying his motion to suppress his statements to tire law enforcement officer at the scene; (2) denying his motion to suppress the recordings of jailhouse telephone conversations; (3) excluding evidence under K.S.A. 21-3525(b), commonly known as the Kansas rape shield statute, regarding the victim’s previous sexual conduct; (4) denying his motion to hold a pretrial taint hearing to determine the reliability of the victim’s testimony and statements to law enforcement officers; and (5) giving an Allen-type jury instruction. Gilliland also argues that cumulative errors deprived him of a fair trial. We reject these arguments and affirm his conviction.
Gilliland additionally raises several sentencing issues. Under Jessica’s Law, K.S.A. 21-4643(a), the prescribed sentence for Gil-liland’s conviction was life imprisonment. Although the sentencing court denied Gilliland’s motion for a departure sentence, the court did not impose a life sentence. Instead, the court imposed a sentence under the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq., for a specific term. Thus, the effect of the sentence was contrary to the explicit finding of the sentencing court. Because of the ambiguity created by a finding that contradicts the sentence, creating an illegal sentence, we vacate the sentence and remand for resentencing. As a result, no other sentencing issues are ripe.
Facts and Procedural Background
Since the end of 2002, Gilliland lived in Salina, Kansas, with his girlfriend Charlotte and her two children, D.N. and C.E. On the morning of June 9, 2007, Gilliland woke up and went to the liquor store to purchase a bottle of liquor. He drank the contents and then returned to the store to buy another bottle of liquor, which he also drank. Gilliland subsequently walked to a local bar, where he stayed a “couple hours” and drank some more — according to Gilliland as many as 15 more drinks — such as “Jack and Cokes,” “mixed drinks,” and “beer.” He played some video games and games of pool and then walked home.
When Gilliland got home from the bar, it was early in the afternoon. Charlotte was sleeping, and her two children were eating breakfast. D.N., Charlotte’s son, eventually went back to his bedroom to take a nap. Gilliland laid down on the couch in the living room and watched sports on the television. C.E., Charlotte’s 12-year-old daughter, sat in a nearby chair. At some point, according to Gilliland’s trial testimony, he felt a tingling sensation in the back of his head. Then, he said he either fell asleep or “passed out” on the couch and woke up to the feeling of Charlotte pulling his hair. He opened his eyes and found C.E. straddling him with her bare buttocks near his face. Gilliland said he felt “[kjind of out of it.”
Gilliland related the tingling sensation in the back of his head to a seizure. Gilliland suffers with epilepsy and, since approximately 1997, experiences seizures. Although he takes a daily anti-seizure prescription medication for epilepsy, he continues to have occasional seizures. Gilliland’s seizures become more frequent with alcohol use. He has also experienced alcohol-withdrawal seizures. A seizure can cause an episode of unconsciousness, and Gilliland is disoriented for a short time when coming out of a seizure.
Another account of the June 9 events was given by Charlotte, whose statements changed over time. In her initial police interview, Charlotte said that around 3 p.m., she walked out into tire living room where she saw C.E., with her skirt pulled up and bare buttocks exposed, “sitting” on Gilliland’s face. Charlotte reported that Gilliland was fully clothed and lying on his back, and C.E. was positioned so she was facing his feet. Charlotte approached them from behind and could see C.E.’s bare buttocks and Gilliland’s forehead. She told officers that Gilliland’s “mouth was on the genitals.” Charlotte yelled at C.E. and told her to go to her room and then “yanked” Gilliland’s hair. She initially told officers, “I just remember grabbing a handful of hair and [C.E.] jumped and he jumped and [C.E.] went to her room.” Charlotte then yelled at Gilliland and hit him with a telephone.
Subsequently, when Charlotte recounted the events, she claimed Gilliland’s left hand was hanging “limp” off the edge of the couch, and she had to yank on Gilliland’s hair a second time before he “woke up.” During trial, Charlotte testified that Gilliland had a “glassy look in his eyes,” was “searching for words,” and was “bumping into things.” “[It was] like talking to someone who’s not there.” These details were not mentioned in her initial statements to officers.
At some point, Charlotte sent the children outside and called her friend Gina Fletcher, who came over to the house right away. After hearing what happened, Fletcher called 911.
Law enforcement dispatch advised Officer Anthony Fontanez that a 12-year-old girl was possibly molested in the preceding 30 minutes. When Fontanez arrived at the residence around 3:45 p.m., Gilliland was standing on the front porch, and Charlotte and Fletcher were nearby. He initially talked to Fletcher, who told him that Charlotte had walked in on Gilliland giving C.E. “oral sex.” Based on this information, the officer approached Gilliland and asked him, “Is that what happened?” to which Gilliland responded, “Yeah, that’s what happened.” At that point, the officer immediately Mirandized Gilliland. Then, the officer asked some clarifying questions — “Let me get this right — you and the 12 year old?” Gil-liland answered, “Yes.” The officer asked, “What were you doing?” and Gilliland responded, “Oral sex.” Then, the officer placed Gil-liland into custody. As he was placing handcuffs on Gilliland, he smelled the faint odor of alcohol.
Gilliland filed several pretrial motions. In two motions, he sought to suppress evidence. One of these motions related to his statements to Fontanez and another officer who interviewed him on the day of the alleged incident, and the second related to jailhouse recordings of telephone conversations between himself and Charlotte. Both motions were denied. Several other motions related to the victim, C.E. Specifically, Gilliland requested a psychological evaluation of C.E.; sought the admission of evidence of C.E.’s previous sexual conduct under the Kansas rape shield statute, K.S.A. 21-3525(b); and sought to exclude from trial C.E.’s testimony and evidence of her statements to officers. The trial court allowed the psychological examination of C.E. but denied all other motions.
At the jury trial, Gilliland presented the defense that he was unconscious during the alleged incident and could not have performed the charged crime. In making this claim, he did not assert a defense of voluntary intoxication. (Indeed, he could not have because he was charged with a general intent crime, see State v. Prine, 287 Kan. 713, 727, 200 P.3d 1 [2009], and voluntary intoxication is not a defense to general intent crimes under K.S.A. 21-3208[2], State v. Brown, 291 Kan. 646, 654, 244 P.3d 267 [2011]). Rather, at least on appeal, his claim of unconsciousness is based on his history of epilepsy.
The defense presented the testimony of Dr. William Logan as an expert witness. Dr. Logan is board certified in psychiatry, neurology, and forensic psychiatry. Based on Dr. Logan’s evaluation of Gilliland, Dr. Logan testified Gilliland had a history of two dif ferent conditions that “could have affected him” during the incident. One condition was a seizure disorder, “which could have produced an episode of unconsciousness.” The other condition was alcoholism, which could involve “episodes of intoxication that produced blackouts.” Dr. Logan explained that a “blackout” is not necessarily a “time of unconsciousness but it is a time when the individual may not have a memory later of what transpired and during that time when they’re intoxicated their judgment might be impaired and they might be inclined to show unusual behavior that they wouldn’t if they were sober.” This type of “alcoholic manifesto event” is different from a seizure in that a person “perform[s] some sort of behavior and it may be very well organized behavior but afterwards you do not remember it.” Dr. Logan admitted that while it was possible that Gilliland was either (1) unconscious or (2) blacked out at the time of the incident, that is, he acted knowingly but had no memory of his actions, it was also possible that he simply (3) feigned memory loss and knowingly pulled C.E. on top of him and knowingly licked her vagina.
The jury apparently rejected the claim that Gilliland was having a seizure because it convicted him of aggravated criminal sodomy. On direct appeal, he attacks his conviction and sentence. More facts, including more details related to the various motions, will be discussed below, as needed.
Issue 1: Suppression of Statements
Gilliland’s first issue on appeal is that the trial court erred in denying his motion to suppress his statements to Fontanez, the first responding law enforcement officer at the scene. Gilliland makes two arguments based on separate legal theories.
In one argument, he seeks to suppress his pr e-Miranda statement to the officer — his affirmative response to the officer’s question, “Is that what happened?” Gilliland argues he was in custody when the officer asked the question and therefore he had a right to receive his Miranda warnings before tire officer began the interrogation. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, reh. denied 385 U.S. 890 (1966).
In the second argument, Gilliland focuses on his post-Miranda statements to the officer. Gilliland argues his answers, in which he verified that he had oral sex with a 12 year old, should have been suppressed because he was under the influence of alcohol and, as a result, his waiver of Miranda rights was not voluntary.
Standard of Review
An appellate court uses a well-known bifurcated standard when reviewing the suppression of a defendant’s statements:
“In reviewing a trial court’s ruling on a suppression issue, the appellate court reviews the factual underpinnings of tire decision under a substantial competent evidence standard. The ultimate legal conclusion drawn from those facts is reviewed de novo. The appellate court does not reweigh evidence, assess the credibility of the witnesses, or resolve conflicting evidence. [Citations omitted.]” State v. Stone, 291 Kan. 13, 21, 237 P.3d 1229 (2010).
a Pre- Miranda Statement
The State argues that Gilliland failed to preserve the question of whether his pre-Miranda statements must be suppressed.
For an evidentiary issue to be preserved for appeal under K.S.A. 60-404, “the trial court must be provided the specific objection so it may consider as fully as possible whether the evidence should be admitted and therefore reduce the chances of reversible error.” State v. Richmond, 289 Kan. 419, 429, 212 P.3d 165 (2009). Thus, a defendant may not object to the introduction of evidence on one ground at trial and then assert a different objection on appeal. State v. McCaslin, 291 Kan. 697, 707, 245 P.3d 1030 (2011); State v. Engelhardt, 280 Kan. 113, 127, 119 P.3d 1148 (2005); State v. Goseland, 256 Kan. 729, Syl. ¶ 1, 887 P.2d 1109 (1994).
Our independent review of the record confirms the State’s assertion: Gilliland did not assert a specific objection regarding a Miranda violation. At oral argument before this court, Gilliland’s attorney argued the motion to suppress was sufficiently broad to incorporate the objection. We reject this contention. Gilliland’s motion to suppress and his arguments at the suppression hearing did not distinguish between pr e-Miranda and post-Miranda statements and solely focused on his post-Miranda statements. He contended these “statements to police on June 9, 2007,” should be suppressed because he was “under the influence of an intoxicant at the time of questioning” and he “did not knowingly and voluntarily waive” his constitutional rights. Thus, the focus was on his mental acuity and whether his “statements to police were involuntary.” This is a distinct legal theory from the question of whether a person is in custody and, therefore, entitled to be advised of his or her rights under Miranda.
When defense counsel renewed Gilliland’s objection to the admission of the statements at trial, there was no mention of the pre-Miranda custody issue or a Miranda violation. Thus, the trial court never had the opportunity to rule on the pre-Miranda issue that Gilliland asserts for the first time on appeal.
Because Gilliland failed to object to the pre-Miranda statements at trial, he failed to preserve the issue for appeal.
b. Tosí-Miranda Statements
Immediately after Gilliland’s statement, “Yeah, that’s what happened,” Fontanez notified Gilliland of his Miranda rights, received Gilliland’s waiver, and asked, “Let me get this right — you and the 12 year old?” Gilliland answered, “Yes.” The officer asked, “What were you doing?” and Gilliland responded, “Oral sex.” Gilliland was handcuffed and officially placed into custody. Gilliland argues these statements were not voluntary.
To determine whether an accused’s confession is voluntary, a court looks at the totality of the circumstances. The prosecution bears the burden of proving that a confession is admissible by a preponderance of the evidence. Nonexclusive factors include: (1) the accused’s mental condition; (2) the duration and manner of the interrogation; (3) the ability of the accused on request to communicate with tire outside world; (4) the accused’s age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused’s fluency with the English language. State v. McMullen, 290 Kan. 1, 4, 221 P.3d 92 (2009); State v. Johnson, 286 Kan. 824, 836, 190 P.3d 207 (2008).
In State v. Sharp, 289 Kan. 72, 81, 210 P.3d 590 (2009), this court described the weight an appellate court should give these factors:
“ ‘[T]hese factors are not to be weighed against one another . . with those favorable to a free and voluntary confession offsetting tiróse tending to the contrary. Instead, the situation surrounding tire giving of a confession may dissipate the import of an individual factor that might otherwise have a coercive effect. [Citation omitted.] Even after analyzing such dilution, if any, a single factor or a combination of factors considered together may inevitably lead to a conclusion that under the totality of circumstances a suspect’s will was overborne and the confession was not therefore a free and voluntary act.’ [Citations omitted.]”
In this appeal, Gilliland only addresses one factor, his mental condition as impacted by his intoxication. “ ‘The fact that an accused had been drinking and using drugs does not per se establish involuntariness.’ ” State v. Norris, 244 Kan. 326, 334-35, 768 P.2d 296 (1989) (quoting State v. Baker, 4 Kan. App. 2d 340, 343, 606 P.2d 120 [1980]). All circumstances surrounding the giving of the statement must be examined to determine if the intoxication prevented the accused from voluntarily making a statement. See State v. Swanigan, 279 Kan. 18, 23-40, 106 P.3d 39 (2005) (court will look at all circumstances surrounding the giving of statement to determine whether statement, was product of free and independent will of the accused).
To make this assessment, in past cases we have noted a variety of factors that provide substantial competent evidence regarding a trial court’s determination that drug or alcohol use did or did not prevent an accused from making a voluntary statement. These factors have included such things as whether there were manifestations of intoxication, the opinions of those who interacted with the accused about whether the accused seemed intoxicated, the trial court’s independent evaluation based on observing or hearing the accused in a video or audio recording of the- statement, the accused’s familiarity with the police’s interview procedures, and the accused’s familiarity with the Miranda rights. Courts have noted markers such as whether an accused’s answers were precise, normal, rational, or responsive; whether the accused was coherent and wide awake; and whether there was a detectable odor, swaying, bloodshot eyes, slurred speech, or other physical signs of intoxication. If the trial court has relied on some of these factors in ruling a statement was voluntary, an appellate court examines only whether there is substantial competent evidence to support tire trial court’s findings; an appellate court does not reweigh the evidence or independently reach our own determination of voluntariness. See, e.g., State v. Harris, 293 Kan. 798, 807-09, 269 P.3d 820 (2012) (at time of statement, defendant said nothing about drug or alcohol consumption and did not appear impaired to officers); State v. Bogguess, 293 Kan. 743, 752-53, 268 P.3d 481 (2012) (defendant told officers of drug use but that effect had worn off, and he appeared lucid); State v. Cofield, 288 Kan. 367, 370-72, 203 P.3d 1261 (2009) (although defendant reported using drugs, he gave detailed statement with explicit descriptions in response to open-ended questions); State v. Kirkpatrick, 286 Kan. 329, 341-42, 184 P.3d 247 (2008) (defendant answered questions normally and appeared to be tracking, no detectible odor of alcohol or marijuana, and officer did not suspect intoxication); State v. Bell, 280 Kan. 358, 364, 121 P.3d 972 (2005) (trial court observed defendant’s demeanor on videotape was similar to his demeanor in the courtroom); State v. Donaldson, 279 Kan. 694, 713-14, 112 P.3d 99 (2005) (detective testified defendant responded appropriately and did not appear intoxicated); State v. Jacques, 270 Kan. 173, 188-89, 14 P.3d 409 (2000) (defendant answered questions coherently, followed the conversation, had experience with the Miranda form, and had been questioned by officers on previous occasion); State v. McCorkendale, 267 Kan. 263, 271, 979 P.2d 1239 (1999) (defendant appeared “coherent” when speaking with officers, understood his Miranda rights, rationally responded to officers’ questions, and did not have slurred speech), overruled on other grounds by State v. King, 288 Kan. 333, 204 P.3d 585 (2009).
In this case, conflicting evidence was presented regarding many of these factors or markers. Some evidence supports that Gilliland was highly intoxicated. In Charlotte’s and Fletcher’s testimony, they said things like: Gilliland’s speech was “[sjlurred and land of slow”; he was “staggering, like he was having problems walking a little bit”; “[h]is eyes were kind of closed”; and “he didn’t seem like he was completely coherent.” Charlotte also testified that she later found two empty liquor bottles under the couch. Gilliland reported a high alcohol intake and claimed he could not remember “much” about the day of the incident. He said he remembered a “little bit” of what the officer was saying to him. On cross-examination, when asked if he knew he had a right “not to talk to” Fon-tanez, Gilliland said, “Well, yeah, I know my Miranda rights, but, hell, at the time I didn’t know nothing” because of the alcohol. Gilliland further claimed that he was still “buzzed” when he spoke to officers at the police station.
On the other hand, contrary to Gilliland’s claim that he could not remember much about the day, he was able to recount considerable detail regarding his two trips to the liquor store; his visit to a bar, including the number and types of drinks he consumed while there; his return home where he remembered watching sports on television and that C.E. was eating cereal and D.N. was having waffles; his awakening when Charlotte pulled his hair; his arrest; his trip to the police station; and his interrogation at the police station. He testified he remembered Fontanez as the officer who was on tire scene, and he admitted he had been Mirandized on past occasions.
Additionally, Fontanez and Officer Shawn Moreland, who transported Gilliland to the police station and later interviewed him, testified on behalf of the State at the suppression hearing. The record shows that Fontanez made an audio recording of his contact with Gilliland, Charlotte, and Fletcher, and the recording was played for the judge at the suppression hearing. Fontanez testified Gilliland was standing freely, not swaying or staggering, never stumbled, was able to respond quickly and coherently to his questions, and needed no assistance getting into the patrol car. The officer also thought Gilliland’s speech was clear and understandable. It was not until the officer was placing handcuffs on Gilliland that he smelled the odor of alcohol. According to Fontanez, nothing about Gilliland’s demeanor made him appear to be under the influence of alcohol or unable to understand the officer’s questions. In fact, before telling Gilliland to get into the patrol car, Fontanez asked him if he had anything sharp or illegal in his pockets, and Gilliland reported there was a knife in his pocket.
Moreland’s interview of Gilliland occurred at the police station a couple hours later. Moreland testified at the suppression hearing that before questioning Gilliland, he advised Gilliland of his Miranda rights, and Gilliland signed a written waiver. When asked about Gilliland’s activities during the day, Gilliland answered in considerable detail. When questioning turned to the alleged incident, Gilliland said he did not want to answer any other questions without his attorney present. The interview was then terminated.
After hearing this evidence, the trial court denied the motion to suppress. The court applied the correct standard, noted the evidence it had heard, and concluded that while Gilliland’s “[v]ery self-serving testimony and selective recall of events . . . may be indicative of some degree of intoxication[, they] also would belie such intoxication that would prevent the defendant from having made a voluntary statement.”
There is substantial competent evidence to support this conclusion. Gilliland was coherent, responsive to questions, and able to remember many details about the day. According to Fontanez, Gil-liland did not exhibit any physical signs of intoxication, except an odor of alcohol that could be detected only when the officer was close enough to place Gilliland in handcuffs. And he was familiar with Miranda warnings from past encounters and demonstrated his right to exercise his right to remain silent by cutting off Mo-reland’s interview. Furthermore, there are no other factors suggesting that the statement was involuntary.
The trial court did not err in denying Gilliland’s motion to suppress his -post-Miranda statements.
Issue 2: Suppression of Recorded Jailhouse Telephone Conversations
Next, Gilliland argues the trial court erred in denying his motion to suppress the recordings of his jailhouse telephone conversations with Charlotte. The same standard of review applies to this issue.
The conversations at issue occurred while Gilliland was being held in the Saline County Jail on the charges in this case. During that time, his telephone conversations with Charlotte were recorded as part of jail policies and procedures. At the beginning of each conversation, the recording system sent out an audio warning to the participants, stating, “This call is subject to monitoring or recording.” Gilliland had multiple conversations with Charlotte about his defense strategy, his hopes that C.E. would not testily, and the possibility that Charlotte might be called to testify against him and how they could avoid it. Several recordings were entered into evidence at trial and played in open court, presumably to attack the credibility of Gilliland’s defense that he was unconscious during the incident in question.
In Gilliland’s motion to suppress, he argued the interception of these telephone calls violated his reasonable expectation of privacy in violation of two criminal statutes, K.S.A. 21-4001 (eavesdropping) and K.S.A. 21-4002 (breach of privacy).
The basic premise of Gilliland’s argument — that he had a reasonable expectation of privacy in his jailhouse conversations — fails to recognize the limits on a prisoner’s right to privacy. The right to privacy under the Fourth Amendment to the United States Constitution is measured by a two-part test: (1) The person must have a subjective expectation of privacy; and (2) that expectation must be one that society recognizes as reasonable. Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring). Generally, a jail or prison inmate’s right of privacy, at least outside the context of communications with an attorney, fails both prongs of the Katz test. First, an inmate’s privacy interest is severely limited by the status of being a prisoner and by being in an area of confinement that “shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room.” Lanza v. New York, 370 U.S. 139, 143, 82 S. Ct. 1218, 8 L. Ed. 2d 384 (1962). Second, “society would insist that the prisoner’s expectation of privacy always yield to what must be considered the paramount interest in institutional security.” Hudson v. Palmer, 468 U.S. 517, 528, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984). Therefore, “the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell.” Hudson, 468 U.S. at 526.
Similar limitations have been found to apply to telephone conversations of prisoners. These limitations rest on the doctrine that the Fourth Amendment prevents the government from tapping a person’s telephone or otherwise eavesdropping on private conver sations without good cause and a proper search warrant; if a conversation is not private, the Fourth Amendment protections do not apply. See Katz, 389 U.S. at 357-59. Hence, the reduced expectation of privacy in a jail or prison setting necessarily defeats an inmate’s claim of a reasonable expectation that his or her calls are private under the Fourth Amendment. See, e.g., United States v. Van Poyck, 77 F.3d 285, 291 (9th Cir.), cert. denied 519 U.S. 912 (1996) (holding that individuals who are incarcerated while awaiting trial do not have any expectation of privacy in outgoing telephone calls that are made on jail telephones); Romo v. Champion, 46 F.3d 1013, 1017-18 (10th Cir.), cert. denied 516 U.S. 947 (1995) (recognizing that prison authorities must be afforded wide-ranging discretion in adopting policies designed to preserve institutional security); Jackson v. State, 18 So. 3d 1016, 1030 (Fla. 2009), cert. denied 130 S. Ct. 1144 (2010) (defendant was aware through automated warnings that jail would record and monitor his communication and, thus, implicitly consented to the interception; defendant did not have a legitimate, reasonable expectation of privacy under tire circumstances; interest in institutional security allowed jailhouse conversations to be monitored); State v. Maass, 275 Kan. 328, 335, 64 P.3d 382 (2003) (convicted persons have diminished expectation of privacy in the penal context).
Furthermore, the State argues that Gilliland’s statutory argument also fails because, through his actions, he consented to having his calls monitored, and tire statutes he cites — K.S.A. 21-4002 and K.S.A. 21-4001(a)(3) — contain a consent exception. Gilliland does not disagree with this interpretation of the statutes but contends he did not consent.
One of the statutes on which Gilliland relies, K.S.A. 21-4002(a)(1), prohibits “[intercepting, without the consent of the sender or receiver, a message by telephone ... or other means of private communication.” (Emphasis added.) The other statute, K.S.A. 21-4001(a)(3), deals with violations of personal rights and prohibits, in part, the use of “any device or equipment for the interception of any telephone ... or other wire communication without the consent of the person in possession or control of the facilities for such wire communication.” (Emphasis added.) In this appeal, the parties have not discussed the meaning of the phrase “the person in possession or control of the facilities for such wire communication” and whether Gilliland would qualify. Because the parties have assumed Gilliland is in possession or control, we will proceed on this assumption, even though this point seems subject to debate, and will consider the parties’ arguments regarding whether Gilliland consented.
Gilliland, in arguing that he did not give adequate consent to the recordings, asserts the “simple warning that the calls are being monitored or recorded is insufficient to put the jail inmate on notice that those calls may ultimately be utilized in his or her prosecution.” Gilhland acknowledges a similar argument was rejected in State v. Andrews, 39 Kan. App. 2d 19, 176 P.3d 245 (2008), in the context of Kansas’ wiretapping statutes, K.S.A. 22-2514 et seq. Nevertheless, Gilliland contends, without citing any supporting authority, that Andrews was wrongly decided.
In Andrews, the defendant filed a motion to suppress recordings of his jailhouse telephone conversations. Citing the wiretap statutes, Andrews contended the Johnson County Sheriffs Department was required to get judicial approval before it could record or listen to his outgoing telephone calls.
At the suppression hearing, testimony established that a prisoner’s telephone calls were monitored as a way to assist in maintaining the security of the jail. The jail policy handbook, which was available to inmates, discussed the telephone monitoring system and advised that calls were recorded. During all conversations, the system sent out an audio warning informing both parties that the call was being recorded.
The trial court denied Andrews’ motion to suppress and ruled that Andrews, by using the jail telephones, consented to his conversations being monitored and recorded. The court concluded that fair warnings were given to inmates and there was no reasonable expectation of privacy. Consequently, there was no violation in light of the valid consent.
The Court of Appeals affirmed, noting that Andrews’ consent meant the wiretapping statute did not prevent the recording. Andrews, 39 Kan. App. 2d at 25. The Andrews court quoted K.S.A. 22-2515(c), which allows the contents of a conversation to be disclosed in court if the information was received “by any means authorized by this act or by chapter 119 of title 18 of the United States code.” Chapter 119 of Title 18 of the United States Code includes 18 U.S.C. § 2511(2)(c) (2006), which states: “It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given 'prior consent to such interception.” (Emphasis added.)
The Andrews court reiterated the various warnings that were given and concluded: “[B]ased on all the warnings in the case,” Andrews gave consent. Andrews, 39 Kan. App. 2d at 24. In support of this conclusion, the Andrews court looked to a decision of the Wisconsin Court of Appeals in State v. Riley, 287 Wis. 2d 244, 704 N.W.2d 635 (2005), where the Wisconsin Electronic Surveillance Control Law (WESCL), a statute mirroring the language of 18 U.S.C. § 2511(2)(c), was applied to hold that a prisoner consented to a recording when he used the phone after hearing a recording that stated the call may be recorded.
The Riley court reviewed federal circuit court cases applying the consent exception of 18 U.S.C. § 2511(2)(c) in prison settings because the WESCL, like K.S.A. 22-2514 et seq., was patterned after Title III of the federal Omnibus Crime Control and Safe Streets Act of 1968. Riley, 287 Wis. 2d at 251; see generally State v. Farha, 218 Kan. 394, 398, 544 P.2d 341 (1975), cert. denied 426 U.S. 949 (1976). Summarizing these cases, the Riley court noted that the federal circuit courts “have overwhelmingly concluded that an inmate has given implied consent to electronic surveillance when he or she is on notice that his or her telephone call is subject to monitoring and recording and nonetheless proceeds with the call. [Citations omitted.]” Riley, 287 Wis. 2d at 251.
The Wisconsin court spoke of the notice requirement as one of “meaningful notice.” In discussing what “meaningful notice” meant for purposes of providing implied consent to surveillance of institutional telephone calls, the Wisconsin court stated:
“Meaningful notice may include a signed acknowledgment form, an informational handbook or orientation session, a monitoring notice posted by the outbound telephone, or a recorded warning that is heard by the inmate through the telephone receiver, prior to his or her making the outbound telephone call. See [United States v.] Footman, 215 F.3d [145,] 154 [1st Cir. 2000] (signed form, notices on phones and prerecorded messages played when phone calls placed); [United States v.] Amen, 831 F.2d [373,] 379 [2d Cir. 1987] (federal prison regulations, orientation lecture, informational handbook and signs posted); [United States v.] Willoughby, 860 F.2d [15,] 20 [2d Cir. 1988] (orientation lecture, signs posted, signed form); [United States v.] Workman, 80 F.3d [688,] 693 [2d Cir. 1996] (posted signs, orientation handbook and signed form); [United States v.] Hammond, 286 F.3d [189,] 191-92 [4th Cir. 2002] (handbook, consent form, orientation lesson, and notices posted near phones); [United States v.] Horr, 963 F.2d [1124,] 1126 [8th Cir. 1992] (orientation handbook and lesson, consent form, posted signs); [United States v.] Van Foyck, 77 F.3d [285,] 292 [9th Cir. 1996] (posted signs, consent form and prison manual); People v. Kelley, [103 Cal. App. 4th 853, 858-59,] 127 Cal. Rptr. 2d 203, 206-07 (Ct. App. 2002) (citing federal cases for proposition that meaningful notice would include a monitoring notice posted by a phone ‘or a recorded warning that is heard by the inmate’) (emphasis added; citation omitted) [, overruled on other grounds by People v. Windham, 145 Cal. App. 4th 881, 51 Cal. Rptr. 3d 884 (2006)].” Riley, 287 Wis. 2d at 253-54.
See also United States v. Faulkner, 323 F. Supp. 2d 1111, 1117-18 (D. Kan. 2004) (discussing other cases and holding notice before use of phone was sufficient to satisfy consent exception to federal wiretapping act).
In Andrews, our Court of Appeals applied tírese authorities and held that Andrews knowingly consented to the monitoring of his telephone calls by using the phone after hearing the recording. Andrews, 39 Kan. App. 2d at 24-25. Because of this consent, the federal wiretap laws allowed the recording of the conversation. And, the Andrews court concluded, because the recording was allowed under the federal law, the Kansas statute allowed the introduction of the recordings into evidence.
This conclusion is not directly applicable in this case because Gilliland does not rely on the wiretap statute, as Andrews did, but on K.S.A. 21-4001 (eavesdropping) and K.S.A. 21-4002 (breach of privacy), and neither of these statutes are mentioned in Andrews. Nevertheless, the analysis is applicable because K.S.A. 21-4001 and K.S.A. 21-4002, like Kansas’ criminal procedure wiretapping stat utes, closely parallel the federal Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2511 (2006). See State v. Wigley, 210 Kan. 472, 474, 502 P.2d 819 (1972). And K.S.A. 21-4002(a)(l) provides for an exception to the statutory right of privacy if one party to the communication consents. Likewise, K.S.A. 21-4001(a)(3) does not apply if there is consent from the person in control or possession of the facilities for the wire communication, who the parties interpret to be Gilliland.
Gilliland argues we should not adopt the Andrews reasoning and should impose a Miranda-like requirement notifying an inmate that anything he or she says can be used in court. Gilliland cites no support for this contention, however. Nor does he explain a reason such a warning would be required, and we can discern no doctrinal basis for extending the right in this circumstance. The Miranda rights are designed to protect constitutional rightsrights tlrat are not at issue here. But an inmate does not have a constitutional right to privacy in a jail settingthe only constitutional right mentioned by Gilliland. See Faulkner, 323 F. Supp. 2d at 1118 (use of phone in jail a privilege; neither pretrial detainee nor sentenced prisoner have full range of freedoms of unincarcerated individual). Consequently, we find no basis to impose the Miranda-style warning in tire situation of a jail or prison recording an inmate’s telephone conversation.
We adopt the analysis in Andrews and apply it to the statutes relied upon by Gilliland. Under the Andrews analysis, reasonable notice was given to Gilliland. Testimony from a surveillance officer at the county jail established that the jail telephones were wall-mounted and were not located in any type of privacy enclosure. Further, the officer testified Gilliland and the other inmates were warned that telephone calls they made from the county jail were being recorded. The same audio warning was played when inmates and visitors communicated by telephone through glass panels inside the jail. Additionally, the jail’s written policies made it clear that conversations were recorded except for conversations between inmates and their attorneys, which are not recorded due to the attorney-client privilege.
Given the warnings at the beginning of a telephone conversation that telephone conversations would be monitored and might be recorded, Gilliland knowingly consented to the recording of his phone conversations through his action of using the phone, and whatever rights he had under K.S.A. 21-4001 and K.S.A. 21-4002 were not violated.
The trial court did not err in denying Gilliland’s motion to suppress the recorded jailhouse conversations.
Issue 3: Exclusion of Evidence under Rape Shield Statute
Next, Gilliland argues that die trial court erred by excluding evidence under K.S.A. 21-3525, commonly known as the Kansas rape shield statute. At trial, Gilliland sought to introduce evidence of C.E.’s histoiy of exhibiting sexual behavior, including evidence of C.E. masturbating with dolls at a young age; “humping” the arm of the living room couch on a couple occasions; infringing on the personal space of others; touching both men and’women in places, such as their inner thigh, that made them uncomfortable; being “clingy”; and grabbing the groin area of men. Gilliland argues the evidence should have been admitted because it went to the element of Gilliland’s intent or lack thereof. In other words, the evidence supported the defense theory that Gilliland was unconscious at the time of the incident and it was C.E. who, of her own volition, climbed on top of Gilliland. He argues that without evidence of C.E.’s prior behavior and tendencies, his argument that she climbed on top of him was implausible.
In making this argument, Gilliland not only focuses on the ultimate admissibility of the evidence, he also takes issue with the legal standard used by the trial court in ruling that the evidence was inadmissible. He essentially contends the trial court determined relevance based on whether C.E.’s statements were corroborated, instead of simply considering whether the evidence of C.E.’s previous sexual conduct was relevant.
This argument questions the adequacy of the legal basis for the trial court’s decision to exclude the evidence, which is a question an appellate court reviews de novo. State v. Reid, 286 Kan. 494, 503, 186 P.3d 713 (2008) (quoting State v. Gunby, 282 Kan. 39, 47-48, 144 P.3d 647 [2006]).
The legal basis for determining the admissibility of all evidence is relevance. See State v. Berriozabal, 291 Kan. 568, Syl. ¶ 7, 243 P.3d 352 (2010); Reid, 286 Kan. at 507-09. Relevance, in addition to being the focus of general considerations regarding the admission of evidence, is the key consideration when applying the rape shield statute, K.S.A. 21-3525, which prohibits the admission of evidence of an aggravated criminal sodomy victim’s “previous sexual conduct with any person including the defendant!,]” unless the trial court first determines the evidence to be relevant and otherwise admissible. K.S.A. 21-3525(a)(5), (b).
K.S.A. 60-401(b) defines relevant evidence as evidence that is probative and material. Berriozabal, 291 Kan. 568, Syl. ¶ 7. In determining whether the evidence is “material,” the analysis focuses on whether the fact to be proved is “ ‘a fact. . . [that] has a legitimate and effective bearing on the decision of the case and is in dispute.’ [Citation omitted.]” Reid, 286 Kan. at 505. Evidence is probative if it has “ 'any tendency to prove any material fact.’ ” State v. Houston, 289 Kan. 252, 261, 213 P.3d 728 (2009) (quoting K.S.A. 60-401[b]).
Thus, the question Gilliland raises is whether tire trial court applied the correct test of determining whether C.E.’s prior behavior was material and probative and, therefore, relevant. The focus of this inquiry is on the following statements by the judge:
“I’m finding it real difficult to understand — to find in this case that the rape shield should be penetrated. If this were an uncorroborated allegation by the victim herself, perhaps at least limited evidence with regard to the prior unfounded allegation might be relevant, but I think it’s an awfully large jump from testimony of her being [a] clingy, and not only with men but with women, child [who was] obviously . . . raised in an extremely dysfunctional household]. It] doesn’t seem to be relevant to the issues in this case where . . . there is direct corroboration of the incident itself and I think it would be unduly intrusive to the victim and not in violation of any of the defendant’s due process rights to enforce the rape shield in this act [sic]. The Court would, at least in the present context, deny the defense’s motion under 21-3525 and prohibit the introduction of any prior sexual conduct attributed to the victim.”
There is no mention of whether the evidence was material or probative in these conclusions. And, as Gilliland argues, when the court mentioned relevance it was tied to corroboration. According to the trial court, if the evidence had been uncorroborated it would have been relevant and because it was corroborated it was not relevant. Yet, relevance is not determined by corroboration or the lack thereof. The trial court tied two unrelated concepts together and, in doing so, failed to apply the correct standard.
Nevertheless, an “appellate court shall disregard all mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the parly complaining, where it appears upon the whole record that substantial justice has been done by the judgment.” K.S.A. 60-2105; see K.S.A. 60-261 (“The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”). To determine if substantial justice has been done an appellate court must determine whether the error affected
“the outcome of the trial in light of the entire record. The degree of certainty by which the court must be persuaded that the error did not affect the outcome will vary depending on whether die fundamental failure infringes upon a right guaranteed by the United States Constitution. If it does not, the trial court should apply K.S.A. 60-261 and determine if there is a reasonable probability that the error will or did affect the outcome of the trial in light of the entire record. If the fundamental failure does infringe upon a right guaranteed by the United States Constitution, the trial court should apply the constitutional harmless error analysis defined in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967), in which case the error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt diat the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., proves there is no reasonable possibility that the error affected the verdict. ... An appellate court reviewing the second step for an injustice will review the entire record and use the same analysis, applying K.S.A. 60-261 and K.S.A. 60-2105 or else Chapman, depending on the nature of the right allegedly affected.” State v. Ward, 292 Kan. 541, 569-70, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
Gilliland argues tire Chapman harmless error standard applies because he was denied his constitutional right to present a defense. We disagree, even though the State does not dispute his assertion. The reason we do so is because Gilliland was able to present his defense. Evidence in support of the defense was presented through the testimony of Gilliland; Charlotte; Fletcher; Andrew Massey, a physician who evaluated Gilliland in 2006 regarding his epilepsy; Dr. Logan, as his expert witness; and others. Gilliland was only limited by the exclusion of some evidence relating to this defense, and that evidence was excluded based on an evidentiary ruling under the rape shield statute. “ ‘[T]he right to present a defense is subject to statutory rules and case law interpretation of the rules of evidence and procedure.’ [Citation omitted.]” Houston, 289 Kan. at 261. And, when the issue relates to the application of a rule of evidence or procedure and not to a complete denial of a defense, we conclude the harmless error standard of K.S.A. 60-2105 and K.S.A. 60-261 applies, rather than the Chapman constitutional standard.
Under the harmless error standard of K.S.A. 60-2105 and K.S.A. 60-261, we must determine if there is a reasonable probability that the error affected the outcome of the trial in light of the entire record. Ward, 292 Kan. at 569-70; see State v. McCullough, 293 Kan. 970, 981-82, 270 P.3d 1142 (2012). The State, as the party seeking the exclusion of the evidence and therefore as the party presumably benefitting from the error, has the burden of persuading us that the error was harmless. McCullough, 293 Kan. at 983.
In applying this standard, we are first faced with the question of whether the evidence would have been admissible if the trial court had applied the correct standard. As an appellate court we are hampered in this assessment because our typical role is to determine if the trial court abused its discretion in determining whether evidence is probative. Reid, 286 Kan. at 509. Without any findings of fact or conclusions of law to review, we would have to make a de novo review of probativeness, which is outside the role of an appellate court. Rather than step outside our role, we will assume, without determining probativeness, that the evidence was admissible and assess whether there is a reasonable probability that the outcome of the trial would have been different if the evidence had been admitted.
In making this determination, it is important to place the evidence in its legal context. Legally, the evidence has little bearing. Even if C.E. had climbed on Gilliland and begged for the sexual contact, her consent — as a child younger that 14 — has no legal bearing on guilt. Gilliland had to establish that he was unconscious and presumably incapable of participating in the charged offense; in other words, he was incapable of having oral contact with C.E.’s female genitalia. See K.S.A. 21-3501(2) (defining sodomy); K.S.A. 21-3506 (aggravated sodomy). In other words, the juiy would have had to believe that C.E. chose to sit on an unconscious person’s mouth — Charlotte admitted at trial that she saw Gilliland’s mouth “line[d] up [with C.E.’s genitalia], but I mean, I can’t say anything was moving or anything like that.” Further, the jury would have had to conclude Gilliland did not react in anyway and that it took Charlotte pulling on his hair to bring him to consciousness.
Gilliland argues the evidence of C.E.’s past behaviors would have made all of these conclusions more plausible because the jury would have believed C.E. climbed on his face of her own volition. Gilliland’s argument ignores his confession to Fontanez that he was having “[o]ral sex” with a 12 year old. This contemporaneous admission and showing of awareness regarding what had occurred causes us to conclude it is more likely than not a jury would have found Gilliland’s defense implausible even if the evidence of C.E.’s prior behaviors had been introduced. This is especially true in light of other evidence in the record. In particular, Charlotte made contemporaneous statements to Fletcher, which Fletcher repeated to Fontanez, telling him that Charlotte had said Gilliland had “oral sex” with C.E.
In making these contemporaneous reports of the crime, Charlotte and Fletcher did not report to any law enforcement officer that they were concerned that Gilliland had suffered a seizure or that he seemed unaware of what was going on. And the officers did not observe any behavior that made them draw this conclusion. Gilliland never made such a suggestion to the interviewing officers. And, although C.E. had previously observed Gilliland during a seizure, when asked if it looked to her like Gilliland was having a seizure on the day of the incident, she replied, “No.” When asked if he was sleeping, C.E. replied, “No.” C.E.’s statements, at least in all major respects, remained consistent throughout the interview and various court proceedings. Although she was never very forth coming with details, at trial she testified clearly to feeling Gilliland’s tongue, not just his mouth, on her genitals.
In light of the record as a whole, the exclusion of the evidence regarding C.E.’s past behavior was harmless. Even if the jury had heard the evidence and had believed C.E. was so troubled she would have invited the contact, there is not a reasonable probability the outcome of the trial would have been different.
Issue 4: Pretrial Taint Hearing Regarding C.E.’s Statements
Next, Gilliland argues the trial court erred in denying his motion to hold a pretrial taint hearing to determine the reliability of C.E.’s trial testimony and statements to law enforcement officers due to allegedly suggestive interviewing techniques. This issue requires some explanation of what occurred before trial.
Gilliland filed a motion to exclude the testimony of C.E. from the trial and to suppress her statements to officers. Gilliland questioned C.E.’s competency and argued that many of the interviewing techniques used by investigators were “prone to produce misleading and unreliable information” from C.E. In support of his motion, Gilliland stated that the officers’ decisions to provide C.E. with a description of her mother’s observations of the incident, together with the “leading and suggestive interrogation” techniques, C.E.’s mental “limitations,” and the officers’ “questioning of negative or exculpatory responses and reinforcement of incul-patory responses,” rendered C.E.’s statements involuntary, tainted, and unreliable.
At the pretrial motions hearing, die trial court heard extensive testimony pertaining to C.E.’s previous sexual conduct and her competency. In regard to C.E.’s statements, the court heard the testimony of the two interviewing officers and C.E. In addition, the court listened to the audio recording of C.E.’s interview.
Despite this evidentiary hearing, Gilliland insisted the trial court should conduct a separate, designated pretrial taint hearing on whether C.E.’s statements to officers were unreliable and, therefore, inadmissible due to tire officers’ interviewing techniques. Gil-liland indicated he would present the testimony of Dr. Kathie Nichols, a licensed clinical psychologist, on the issue of taint due to police interviewing techniques, including her criticism of the “Finding Words” protocol used by the officers in this case. The judge refused, stating:
“[I]f you’re asking me to rule on the interview techniques, I didn’t hear anything inappropriate from the officers yesterday or listening to the tape. The Finding Words is a tool, it’s not carved in stone, it’s not a formula, it’s just something— it’s just. . . training for the interviewers but I mean there’s no statutory requirement or due process requirement that they have to follow Finding Words to the letter. I mean you yourself introduced or referred to a notebook about six inches thick and I’m quite sure that every word in that notebook is not followed in every interview by every interviewer. Every interview is different, every person is different and I didn’t find anything unduly suggestive or unduly leading. In fact the victim witness was quite ready to disagree with the . . . interviewers.
“[I]f there’s some question as to the victim’s ability to communicate and that sort of thing, that can be raised by appropriate cross-examining of the defense at the trial, but the victim is competent to testify, she clearly and consistently testified and is able to communicate to the jury ....
“. . . If the witness’ testimony is subject to cross-examination, subject to questioning, that’s die puipose of a trial, not of some pretrial hearing.”
Gilliland argues the trial court’s limitations — refusing to hear the testimony of Dr. Nichols and refusing to otherwise hold a pretrial taint hearing on the alleged suggestive nature of the officers’ interviewing techniques — violated his due process rights.
Although we generally review motions to suppress under a bifurcated standard of review, reviewing the factual underpinnings of the trial court’s decision under a substantial competent evidence standard and reviewing the ultimate legal conclusion drawn from those facts under a de novo review, the underlying due process question here is solely one of law that we review de novo. See State v. Stone, 291 Kan. 13, 21, 237 P.3d 1229 (2010); State v. Hall, 287 Kan. 139, 143, 195 P.3d 220 (2008).
This issue appears to be one of first impression in that Kansas does not formally recognize pretrial taint hearings. One state— New Jersey — does, and Gilliland relies on the New Jersey case adopting the procedure, State v. Michaels, 136 N.J. 299, 642 A.2d 1372 (1994), to support his contention. Gilliland also cited this case to the trial court, which refused to adopt it because it was not binding precedent in Kansas.
In Michaels, the New Jersey Supreme Court held that the trial court should have held a pretrial taint hearing concerning the admission of the child victims’ statements and testimony after the defendant showed “ ‘some evidence’ ” that the victims’ statements were the result of suggestive or coercive interviewing techniques. Michaels, 136 N.J. at 320. In such circumstances, the burden then shifts to the State to prove the reliability of the proffered statements and testimony by clear and convincing evidence. Michaels, 136 N.J. at 321. If the trial court determines that a child’s statements or testimony do retain sufficient reliability for admission at trial under factors the court defined, then the jury must determine the probative worth and assign the weight to be given to such statements or testimony as part of their credibility assessment. Michaels, 136 N.J. at 323.
The Michaels court acknowledged that “assessing reliability as a predicate to the admission of in-court testimony is a somewhat extraordinary step.” Michaels, 136 N.J. at 316. But it likened this situation to those involving the pretrial determination of the admissibility of eyewitness identification testimony, see Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), or those involving tire pretrial determination of the vol-untariness and admissibility of a defendant’s statements to officers, see Jackson v. Denno, 378 U.S. 368, 377-78, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). The Michaels court stressed drat the effects of suggestive pretrial identification procedures, as with suggestive or coercive interview practices, are “exceedingly difficult to overcome at trial.” Michaels, 136 N.J. at 319. “Competent and reliable evidence remains at the foundation of a fair trial, which seeks ultimately to determine the truth about criminal culpability. If crucial inculpatory evidence is alleged to have been derived from unreliable sources due process interests are at risk. [Citatioxr omitted.]” Michaels, 136 N.J. at 316.
The judge in the present case, while rejecting the request for a separate hearing, made the ultimate finding mandated by the holding in Michaels, stating, “I didn’t find anything unduly suggestive or unduly leading. In fact the victim witness was quite ready to disagree with the . . . interviewers.” Because the court made this finding, we decline to issue an advisory opinion on the question of whether a trial court must take on a gate-keeping role and determine reliability before allowing a child’s statement to be presented to a jury, and our discussion of the issue should not be read to imply that outcome. (We note this question is controversial; a majority of jurisdictions have rejected the holding in Michaels. See, e.g., State v. Karelas, 28 So. 3d 913, 915 [Fla. Dist. App. 2010] [“Like the majority of jurisdictions that have considered Michaels, we reject its conclusion.”]). Rather, the limited question that we will resolve is whether the trial court erred by not conducting a separate hearing and by not allowing Gilliland to present an expert’s testimony before ruling C.E.’s interview was not unduly suggestive.
Regarding the need for a separate hearing, we conclude the trial court did not err in determining the issue in the context of the competency hearing, especially after the court had heard evidence regarding C.E.’s statements and had an opportunity to view a video recording of the statements. Few, if any, jurisdictions other than New Jersey have strictly imposed a procedural requirement for a separate taint hearing. In fact, some courts have rejected the idea of a separate pretrial taint hearing even though they have followed the Michaels lead and found the idea of taint relevant in a pretrial assessment of the admissibility of the proffered testimony of a child witness. These courts have permitted an inquiry into suggestiveness through the use of competency hearings, as was done here. See Com. v. Delbridge, 578 Pa. 641, 664, 855 A.2d 27 (2003) (“[A] competency hearing is the appropriate venue to explore allegations of taint.”); Dependency of A.E.P., 135 Wash. 2d 208, 230, 956 P.2d 297 (1998) (‘We decline to adopt a pretrial taint hearing as a requirement for the reason that the existing state of the law adequately addresses Petitioner’s concerns. As to the reliability of a child’s testimony, a defendant can argue memory taint at the time of the child’s competency hearing.”); English v. State, 982 P.2d 139, 146 (Wyo. 1999) (“While we agree with the reasoning of the New Jersey Supreme Court, we conclude that there is no void in Wyoming law which a Taint hearing’ procedure would fill.”).
The main reason Gilliland argues for a taint proceeding is to separate the competency finding from a reliability finding. Granted, in this case, the trial court moved between the two concepts and ultimately based the ruling on competency. But the court explicitly found the interview was not unduly suggestive or unduly leading. The court also noted that C.E. pushed back when she disagreed with the interviewer. Further, Kansas law grants the necessary discretion to consider whether a witness is incapable of telling tire truth because of outside influences, such as a suggestive interrogation. See K.S.A. 60-408 (granting trial court discretion in conducting proceedings to determine if witness is qualified); see also K.S.A. 60-417 (witness is disqualified “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”).
The other reason Gilliland seeks a separate hearing is intertwined with his attempt to present his expert’s testimony. He does not present any authority suggesting that a trial court would not have discretion during a Michaels hearing to determine whether specific witnesses would be allowed to testify. Moreover, Gilliland does not establish any harm. The court’s comments indicate a familiarity with the Finding Words protocol, and a notebook of information was admitted. The court invited the defense to present evidence at trial. Gilliland decided not to and did not to make a proffer so that an appellate court could determine the evidence that might have been submitted. Without this proffer, we cannot assess whether the expert’s testimony probably would have changed the trial court’s ruling.
In light of tire record before us, we conclude the trial court did not err in denying the motion for a separate taint hearing or in denying the defense’s request to present Dr. Nichols’ testimony during the competency hearing. Gilliland’s due process argument fails.
Issue 5: Allen-type Jury Instruction
Next, Gilliland argues that the trial court committed reversible error when it gave a “deadlocked jury” instruction, or Allen-type charge, before deliberations began, indicating that “[a]nother trial would be a burden on both sides.” See Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). Gilliland admits he did not object to the instruction and that the clearly erroneous standard of review applies as a result. See K.S.A. 22-3414(3). Nevertheless, he argues the trial court clearly erred in giving the instruction in light of our disapproval of this language in State v. Salts, 288 Kan. 263, 265-66, 200 P.3d 464 (2009), which was decided 1 month after the trial in this case.
Subsequent to Salts, this court has consistently confirmed its holding, which means that the instruction in this case was erroneous. Yet, in numerous cases applying this holding, we have concluded giving the instruction with the challenged language was not clear error. See, e.g., State v. Burnett, 293 Kan. 840, 855, 270 P.3d 1115 (2012); State v. Washington, 293 Kan. 732, 740-42, 268 P.3d 475 (2012) (listing cases). Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. Salts, 288 Kan. at 265-66.
In attempting to distinguish the long list of post-Salts cases, Gil-liland argues the jury in his case could have been misled because the evidence against him was not overwhelming. Specifically, he points to testimony about his seizure disorder and the increased frequency of those seizures during alcohol use and testimony by Charlotte indicating that Gilliland appeared to be “out” when she walked in on the incident in the living room.
This argument does not address how the misleading nature of the instruction might have made a difference in the jury’s deliberations; nothing in the record demonstrates the jury was near deadlock, deadlocked, pressured to reach a verdict, or concerned about tire implications of another trial. Moreover, as we discussed in determining the harmlessness of the error to exclude evidence of C.E.’s prior-sexual behavior, there was substantial evidence of guilt presented to the jury. Under these circumstances, we conclude there is no real possibility that the jury would have rendered a different verdict if the offending wording had been omitted from the jury instructions.
Issue 6: Cumulative Errors
Next, Gilliland unpersuasively argues that even if one of the trial court’s errors alone does not require reversal, then the cumulative effect of the errors denied him a fair trial, requiring reversal.
“In a cumulative error analysis, an appellate court aggregates all errors and, even though those errors would individually be considered harmless, analyzes whedier their cumulative effect on the outcome of the trial is such that collectively drey cannot be determined to be harmless. [Citation omitted.] In otiier words, was the defendant’s right to a fair trial violated because die combined errors affected tire outcome of tire trial?” State v. Tully, 293 Kan. 176, 205, 262 P.3d 314 (2011).
Where, as here, the errors found by this court are not constitutional in nature, we examine whether there is a reasonable probability the aggregated errors would have affected the outcome of the trial. Ward, 292 Kan. at 569-70. In making the assessment of whether the cumulative errors are harmless, an appellate court examines tire errors in the context of the record as a whole considering how the trial court dealt with the errors as they arose (including the efficacy, or lack of efficacy, of any remedial efforts); the nature and number of errors committed and their interrelationship, if any; and the strength of the evidence. See Tully, 293 Kan. at 205-06; Ward, 292 Kan. at 569-70.
In this appeal, we have found two errors: (1) The trial court applied the wrong standard in determining if evidence within the ambit of the rape shield statute was inadmissible and (2) the trial court erred in giving an erroneously worded Allen-type juiy instruction. These errors were unrelated and unlikely to have impacted one another. See State v. Martinez, 290 Kan. 992, 1017, 236 P.3d 481 (2010) (two trial errors were harmless, unrelated, and were not, in combination, so prejudicial as to deny the defendant a fair trial). And, as we have already stated, we find nothing in the record to suggest the Allen-type instructional error had any impact. Even factoring in the potential of some impact, we do not believe that potential changes the harmless error analysis we conducted as part of our discussion of the error regarding the rape shield statute.
Consequently, we conclude the cumulative errors were harmless and did not have an effect on the jury’s verdict.
Issue 7: Departure Sentence
Gilliland also attacks his sentence on several grounds, including an argument that the sentencing court erred in denying his motion for departure. The record regarding whether the court departed and the reasons for the departure are veiy confusing. The sentencing court stated it was denying the motion to depart, and both parties take that position in their appellate briefs. But the court did not impose the statutorily defined sentence. Rather, the court departed from the life sentence to be imposed under Jessica’s Law, K.S.A. 21-4643, and imposed a sentence under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., of 586-months’ incarceration.
As we held in State v. Jolly, 291 Kan. 842, 846-47, 249 P.3d (2011), a sentencing court departs from Jessica’s Law if it does not impose a life sentence. If a different sentence is imposed, the sentencing court must state the substantial and compelling reasons for departure and must depart to the applicable KSGA grid box. Once the sentence becomes a guidelines sentence, the court is free to depart from the sentencing grid. However, departure findings must justify both steps. “[T]he requirements of neither the first step into the guidelines nor the second step away from the presumptive guidelines sentence can be ignored, and all departure procedures must be followed. [Citation omitted.]” Jolly, 291 Kan. at 847. Those requirements and procedures were not followed here.
In the appellate briefs filed in this case, neither party mentioned the departure from the life sentence. At the oral argument, when members of the court asked for help in understanding the record, tire State suggested the sentencing court had meant that Gilliland had a life sentence but must serve 586 months of his sentence before he would be eligible for parole. See K.S.A. 21-4643(a)(2)(B) (minimum mandatory sentence under Jessica’s Law is 25 years un less the defendant’s guidelines sentence would be longer than 25 years, in which case the minimum sentence is equal to the guidelines sentence). But the court’s statements and the journal entry are not consistent with this suggestion.
This leaves us in an unusual situation. The State did not object to the sentencing court’s procedure and did not cross-appeal and argue there was a departure without accompanied findings. Yet, we cannot sensibly talk about Gilliland’s contention that the sentencing court erred when it failed to grant a departure motion when, in effect, it appears the court departed. We conclude under these unusual circumstances — where the sentence is ambiguous because it is contrary to the law and to the explicit finding of the sentencing court — we must vacate the illegal sentence and remand for resentencing. See State v. Anthony, 273 Kan. 726, 730, 45 P.3d 852 (2002) (finding appellate court has authority pursuant to K.S.A. 22-3504 to sua sponte correct an illegal sentence and remand for imposition of corrected sentence).
Issues 8 to 10: Other Sentencing Issues
In addition, Gilliland argues his sentence is cruel and unusual punishment, a no-contact order was illegal, and his constitutional right to trial was violated by the reliance on his prior criminal history at sentencing without a jury finding. Because we have ordered a remand for resentencing and the basis for these claims of error may not apply under the new sentence, we do not address these questions as they are no longer ripe.
In conclusion, we affirm Gilliland’s aggravated criminal sodomy conviction, vacate his sentence, and remand for resentencing.
Conviction affirmed, sentence vacated, and case remanded with directions. | [
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In a letter signed on June 7, 2012, addressed to the Clerk of the Appellate Courts, respondent William Bruce Day, of Kansas City, Missouri, an attorney licensed in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2011 Kan. Ct. R. Annot. 371).
At the time the respondent surrendered his license, a complaint had been docketed by the Disciplinary Administrator’s office in accordance with Supreme Court Rule 211 (2011 Kan. Ct. R. Annot. 334). The complaint concerns allegations that the Respondent violated Supreme Court Rule 207 (2011 Kan. Ct. R. Annot. 314) (duties of the Bar); and Rules 1.3 (2011 Kan. Ct. R. Annot. 433) (diligence); 1.4 (2011 Kan. Ct. R. Annot. 452) (communication); 3.2 (2011 Kan. Ct. R. Annot. 552) (expediting litigation); 8.1 (2011 Kan. Ct. R. Annot. 609) (bar admission and disciplinary matters) and 8.4(g) (2011 Kan. Ct. R. Annot. 618) (misconduct) of the Kansas Rules of Professional Conduct.
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that William Bruce Day be and is hereby disbarred from the practice of law in Kansas, and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of William Bruce Day from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2011 Kan. Ct. R. Annot. 379).
Dated this 8th day of June, 2012. | [
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The opinion of the court was delivered by
Nuss, C.J.:
This case requires us to consider appellate jurisdiction. Ten years after Rolland Berreth was convicted and sentenced for one count of aggravated kidnapping and three counts of aggravated criminal sodomy with a child under 14 years of age, he filed a pro se motion to correct an illegal sentence under K.S.A. 22-3504. His appointed counsel later filed motions citing K.S.A. 60-1507, which expanded Berreth’s pro se motion. All motions argued multiplicity. The district court ruled Berreth’s aggravated kidnapping conviction was multiplicitous with the aggravated criminal sodomy convictions, reduced Berreth’s aggravated kidnapping conviction to kidnapping, and therefore reduced his sentence.
The State filed its notice of appeal and docketing statement, each specifically describing the appeal as one taken upon a question reserved under K.S.A. 22-3602(b)(3). The Court of Appeals reversed the district court and ordered reinstatement of Berreth’s original sentence. After the district court complied, Berreth appealed, and a different panel of the Court of Appeals affirmed.
We granted Berreth’s petition for review under K.S.A. 20-3018 to reexamine the jurisdictional basis for the State’s appeal and to examine the correctness of the Court of Appeals’ rulings. Because we hold the Court of Appeals failed to properly treat the State’s appeal as a question reserved, we reverse, remand, and order reinstatement of Berreth’s reduced sentence.
Facts
The sometimes confusing events, and resultant arguments, are best understood when presented in the following detailed chronology:
1994: After a jury convicted Berreth of one count of aggravated kidnapping and three counts of aggravated criminal sodomy of a child under 14 years of age, the district court sentenced Berreth to 254 months’ imprisonment with 24 months’ postrelease supervision. The convictions and sentences were later affirmed on direct appeal. State v. Berreth, No. 73,929, unpublished opinion filed January 10, 1997.
May 25, 2004: In Berreth’s original criminal action, 93 CR 354, he filed a pro se motion to correct an illegal sentence under K.S.A. 22-3504. He contended that his aggravated kidnapping conviction was multiplicitous with at least one of the three convictions of aggravated criminal sodomy. So he requested the aggravated kidnapping conviction be reduced to one for simple kidnapping, the orig inal sentence be vacated, and a reduced sentence be imposed for this less severe crime.
November 4, 2004: After Berreth was appointed counsel, his attorney filed a motion to correct sentence. Despite being submitted “pursuant to K.S.A, 60-1507,” it too was filed in Berreth’s original criminal action: 93 CR 354. This motion incorporated all the arguments and issues of Berreth’s earlier pro se motion under K.S.A. 22-3504. But it now emphasized that Berreth’s convictions of aggravated kidnapping and aggravated criminal sodomy were multiplicitous under State v. Robbins, 272 Kan. 158, 32 P.3d 171 (2001). It renewed his request to vacate the aggravated kidnapping sentence.
December 7, 2004: At the hearing on the defense motions, the judge was handed an amended motion to correct sentence submitted “pursuant to K.S.A. 60-1507.” Although identified in the motion’s body as an “Amended 60-1507,” it too was filed in 93 CR 354. The amended motion repeated verbatim his counsel’s November 4 arguments on multiplicity. So it appeared to have been filed primarily for counsel to elaborate on Berreth’s second issue: while Berreth conceded his sentence was not illegal, he argued it was the result of partiality, oppression, and corrupt motive. Berreth’s counsel argued for correction through a lower presumptive sentence on all four counts and asked that the judge “resentence for the illegal sentence of aggravated kidnapping to plain kidnapping.”
January 14, 2005: After an apparent rescheduling, the State now filed its response in 93 CR 354 to the defendant’s motion to correct sentence pursuant to K.S.A. 60-1507. It argued that Berreth was attempting an improper collateral attack, e.g., a 60-1507 motion, on a multiplicity issue that should have been raised on direct appeal. It further argued that the 1507 motion was time barred. The State additionally argued that under State v. Groves, 278 Kan. 302, 95 P.3d 95 (2004), the convictions were not multiplicitous.
March 9, 2005: The district court filed its order and ruling on defendant’s motion to correct sentence in 93 CR 354. After setting forth the chronology of the three defense motions, it declared that they were properly before the court. But it did not decide, or otherwise clarify, their procedural basis:
“Consistent with K.S.A. 22-3504, a motion to correct an illegal sentence may be made and ruled upon at any time. Further, fundamental fairness dictates that the defendant’s original pro se motion be construed as one under K.S.A. 60-1507 (motion attacking sentence). Whether the defendant’s motion is construed as a KS.A. 22-3504 motion, or is liberally construed as a motion under K.S.A. 60-1507, the Court will consider the issues raised by the Defendant The State’s assertion that Mr. Berreth’s original motion (if construed as a K.S.A. 60-1507 motion) is untimely is without merit, as Berreth filed his motion within one year of the statutory change to such statute. ... As the Defendant’s motion was filed less than one year from July 1, 2003, his motion was timely.” (Emphasis added.)
The court agreed that Berreth’s aggravated kidnapping conviction was multiplicitous with one of his aggravated criminal sodomy convictions under State v. Robbins, 272 Kan. 158. In retroactively applying the 2001 Robbins decision to Berreth’s 1993 convictions, the court “noted that there is long-standing precedent supporting the vehicle of K.S.A. 60-1507 to be utilized to retroactively correct claims of duplicitous convictions, e.g., Jarrell v. State, 212 Kan. 171, 510 P.2d 127 (1973).” Consequently, the court vacated the aggravated kidnapping conviction, replaced it with a conviction for the lesser offense of kidnapping, and set resentencing for simple kidnapping on March 29.
March 18, 2005: Before actual resentencing could occur, the State filed its notice of appeal in the district court, again in Ber-reth’s criminal case: 93 CR 354. Its notice recited that “[o]n May 25, 2005, [sic] and by amendment on November 4 and December 7, 2004, the defendant filed a motion to correct his sentence under K.S.A. 60-1507 and 22-3504.” Despite this two-pronged acknowledgment, the notice then expressed the State’s apparent choice among three possible jurisdictional bases: “This appeal is pursuant to K.S.A. 22-3602(b)(3).” This statute allows the prosecution to take appeals to the Court of Appeals as a matter of right “upon a question reserved by the prosecution.”
The State’s notice further stated that Berreth’s situation presented a question of “statewide interest important to the uniform administration of criminal law.” More specifically, the notice suggested that Berreth’s case demonstrated a conflict between State v. Robbins (the case the district court relied upon) and the case the State principally relied upon: State v. Groves. The State ex pressly requested the court’s reconsideration of Robbins in light of Groves.
The notice did not cite, among other appellate jurisdictional bases, K.S.A. 60-1507(d). This statute allows “an appeal ... as provided by law from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.”
March 29, 2005: Per the district court’s prior scheduling, it re-sentenced Berreth. It decreased his term of imprisonment from 254 to 192 months and increased his postrelease supervision from 24 to 60 months. Before actual resentencing occurred, however, the prosecutor advised the court of the State’s appeal and its exclusive “question reserved” basis:
“[T]he state lias filed an appeal. When I did research, however, aside from an interlocutory appeal, which this is not, the only basis for our appeal — which of course could be denied just because we haven’t stated a sufficient basis for a prosecution appeal — is a question of reserve — of importance. And that’s also— there was no hearing at the time the court issued its written opinion, when it was taken under advisement. So I wasn’t able to object to the court’s ruling or make proper objections. That’s also why I chose to file the notice of appeal alter the order, to make sure that I reserved the issue on appeal." (Emphasis added.)
April 25, 2005: The State filed its docketing statement with the clerk of the appellate courts. Consistent with both the prosecutor’s statement at the March 29 resentencing hearing and with the State’s even earlier notice of appeal, the docketing statement provided under Paragraph 3, “Jurisdiction,” that the “Statutory authority for appeal [is] Question reserved, K.S.A.” And consistent with the State’s notice of appeal, the statement provided under Paragraph 7, “Concise Statement of the issues proposed to be raised,” that “[t]he Court should reconsider its opinion in State v. Robbins [, 272 Kan. 158, 32 P.3d 171 (2001),] based on State v. Groves, 278 Kan. 302, 95 P.3d 95 (2004).” Finally, just like the State’s notice of appeal, its docketing statement bore the district court’s criminal case number of 93 CR 354.
August 24, 2005: In the State’s brief to tire Court of Appeals 4 months later, it argued that Berreth’s 1507 motion was untimely but conceded that “[i]t is unclear whether his [Berreth’s] motions were actually pursuant to K.S.A. 22-3504 or 60-1507.” No mention was made, however, of the basis of appellate jurisdiction per a question reserved under K.S.A. 22-3602(b)(3). Instead, the State’s brief concluded that “[t]he defendant’s convictions should be reinstated. The district judge’s decision of March 9, 2005, [finding multiplicity under Robbins] should be reversed and the original sentence [of 254 months] should be reimposed.”
March 1, 2006: In Berreth’s response brief to the Court of Appeals, no mention was made of the State’s invocation of appellate jurisdiction per a question reserved under K.S.A. 22-3602(b)(3).
April 28,2006: Approximately 2 months after Berreth’s brief was filed, this court released its decision in State v. Schoonover, 281 Kan 453, 133 P.3d 48 (2006). There, we substantially revised our approach to analyzing multiplicity claims and essentially rejected Robbins — the case upon which the district court based its decision to vacate the aggravated kidnapping conviction and sentence on multiplicity grounds.
May 31, 2006: The Court of Appeals issued an order to show cause. More specifically, it ordered the parties to file a written response by June 19 explaining why, per the newly released Schoonover decision, the panel should not summarily reverse the district court and reinstate Berreth’s conviction and sentence for aggravated kidnapping.
Tune 16, 2006: Before the parties’ responses to the Court of Appeals’ show cause order were due, this court released its decision in State v. Edwards, 281 Kan. 1334, 135 P.3d 1251 (2006). There, in syllabus paragraph 3, we held that “[a] claim that sentences are multiplicitous is not a claim that the sentences were imposed by a court without jurisdiction as is necessary to come within the narrow definition of illegal sentence under K.S.A. 22-3504(1).”
Tune 27, 2006: The Court of Appeals noted the filing of the parties’ responses to its May 31 order to show cause. But it further ordered them to file supplemental briefs on three questions:
1. “Did the district court, and does this court, have jurisdiction pursuant to State v. Edwards, 281 Kan. 1334 (2006) (Multiplicity is not a claim that can be raised in a motion to correct an illegal sentence.).”
2. “Why State v. Schoonover, 281 Kan. 453, 133 P.2d 48 (2006), does not control.”
3. “Why is this not an attempt at a second appeal and what exceptional circumstances [e.g., per Supreme Court Rule 183 for motions under K.S.A. 60-1507] are present to justify allowing this challenge to appellant’s conviction?”
August 1, 2006: In the State’s supplemental brief, it argued that Edwards prohibited use of a motion to correct illegal sentence as a vehicle to challenge multiplicity. It further argued that Schoon-over overruled Robbins. The supplemental brief, like the State’s original, made no reference to appellate jurisdiction per a question reserved under K.S.A. 22-3602(b)(3). Rather, also like the State’s original brief, it concluded that “[t]he defendant’s collateral attacks should be denied and the modification of his sentence reversed reinstating his original sentence(Emphasis added.)
September 5, 2006: In Berreth’s supplemental brief, he contended that under a case cited by the district court — Jarrell v. State, 212 Kan. 171, 510 P.2d 127 (1973), — his counsel’s motion arguing multiplicity was raised in the proper procedural vehicle of K.S.A. 60-1507. Because Edwards only barred multiplicity claims raised in the procedural vehicle of a motion to correct illegal sentence, Edwards therefore did not bar relief. He further argued that his pro se motion’s reference to correct an illegal sentence under K.S.A. 22-3504 should be liberally construed as a 1507 motion— presumably so he could survive Edwards’ procedural bar.
On the merits, Berreth contended that while Schoonover overruled Robbins, it did not apply retroactively to his 1993 crimes. His supplemental brief concluded that the district court’s resentencing order for simple kidnapping should be affirmed. As in his original brief, Berreth made no reference to appellate jurisdiction per a question reserved.
September 6,2006: The day after Berreth filed his supplemental brief, he completed his reduced sentence of 192 months’ incarceration and was released from custody to begin his increased post-release supervision of 60 months.
March 16, 2007: The Court of Appeals panel released its decision in State v. Berreth, No. 94,310, 2007 WL 806002 (Kan. App. 2007) (unpublished opinion) (Berreth I). The panel first held Edwards barred the use of a motion to correct an illegal sentence as a vehicle for raising a multiplicity claim. It observed, however, that “the district court did not specifically state whether it was considering Berreth’s motion as a motion to correct an illegal sentence under K.S.A. 22-3504(1) or as a K.S.A. 60-1507 motion.” Berreth I, 2007 WL 806002, at *2. Nevertheless, it stated that Berreth’s pro se pleadings were to be liberally construed, acknowledged that appointed counsel had filed a motion under 60-1507, and further acknowledged that Berreth argued that his motion should be liberally construed as a 1507 motion. It held that “Berreth’s initial pro se motion to correct an illegal sentence should have been construed as a K.S.A. 60-1507 motion.” (Emphasis added.) Berreth I, 2007 WL 806002, at *3. The panel ultimately cited the general appellate standard for reviewing a 60-1507 motion. It made no reference, however, to the only appellate jurisdictional basis tire State had expressly asserted: a question reserved under K.S.A. 22-3602(b)(3).
Turning to the merits, the panel relied upon Schoonover to rule the district court erred in determining Berreth’s convictions were multiplicitous and in resentencing. So it reversed and remanded tire case to tire district court “with directions to reinstate Berreth’s original sentence [of 254 months], including the 24 months’ post-release supervision.” Berreth I, 2007 WL 806002, at *5.
October 11, 2007: Because Berreth had been released from custody approximately 1 year earlier — during the pendency of the State’s appeal — the State obtained a bench warrant for his arrest to comply with the Court of Appeals opinion.
October 18, 2007: After Berreth’s arrest while on postrelease supervision, he filed in his original criminal case — 93 CR 354 — a five-page pro se motion to correct an illegal sentence pursuant to K.S.A. 22-3504(1). He essentially argued the mandated resentenc-ing was illegal because the panel had no jurisdiction to order the district court to restore his original sentence. Among other things, he reminded everyone that the only appellate jurisdictional basis the State ever had expressly asserted was as a question reserved under K.S.A. 22-3602(b)(3), and therefore the panel’s decision only “applies to future cases and not the case at hand.”
November 1, 2007: At resentencing, the district court denied Berreth’s motion. Per the panel’s direction, the court resentenced Berreth to his original sentence of 254 months’ imprisonment with 24 months’ postrelease supervision. Berreth was then again placed in the custody of the Department of Corrections.
September 2008: In Berreth’s brief to the Court of Appeals, counsel elaborated on the arguments in Berreth’s pro se motion:
1. The State expressly filed its notice of appeal solely under K.S.A. 22- 3602(b)(3),which meant the jurisdiction and accompanying rules of procedure were limited to a question reserved. And the Court of Appeals had erred in not recognizing the appeal was so limited.
2. Even if the panel had properly recognized that the exclusive basis for the appeal was a State’s question reserved, it still erred in actually hearing — and in not simply dismissing — the matter because the question was not of statewide import, citing, e.g., State v. Tremble, 279 Kan. 391, 109 P.3d 1188 (2005) (declining -jurisdiction and dismissing State’s appeal for this reason); State v. Long, 274 Kan. 1095, 58 P.3d 706 (2002) (same). More particularly, the panel never deemed the multiplicity issue to be of statewide import — as partly evidenced by its failure to publish its decision. Because this determination is an essential prerequisite to answering a question reserved, the panel had no jurisdiction over the State’s appeal.
3. Even if jurisdiction existed as a question reserved and the matter was indeed of statewide import, a question reserved means that the panel’s determinations can only operate prospectively and cannot affect Berreth, citing e.g., State v. Murry, 271 Kan. 223, 21 P.3d 528 (2001).
October 2008: In the State’s brief, its five pages of argument are devoted almost exclusively to discussing how it meets tibe caselaw requirements to proceed under a question reserved in K.S.A. 22-3602(b)(3). While it contended that die State’s failure to cite the proper appellate statute is not a jurisdictional prerequisite — citing State v. Grimes, 229 Kan. 143, 622 P.2d 143 (1981), and State v. Whorton, 225 Kan. 251, 598 P.2d 610 (1979) — it also argued that its notice of appeal nevertheless was sufficient to establish a ques tion reserved, citing State v. Mountjoy, 257 Kan. 163, 891 P.2d 376 (1995). It also argued that the panel had been authorized to consider jurisdiction issues on its own initiative. The brief malees no reference to K.S.A. 60-1507(d).
May 15, 2009: The Court of Appeals rejected Berreth’s argument. State v. Berreth, No. 99,937, 2009 WL 1393752, at *2 (Kan. App. 2009) (unpublished opinion) (Berreth II). Despite the State’s notice of appeal requesting review solely under K.S.A. 22-3602(b)(3), the panel held that the State’s designating its appeal as a question reserved did not deprive the panel of jurisdiction to order reimposition of the sentence.
The panel first observed that “[t]he law permitting appeals, K.S.A. 60-2103(b) and Supreme Court Rule 2.02 (2008 Kan. Ct. R. Annot. 9), [does not] require that the grounds for appeal be stated in the notice of appeal.” It noted instead that tire rules only required that the notice of appeal state the parties and the order being appealed — which it ruled were sufficiently contained in the State’s notice. We independently note these sources state as follows:
K.S.A. 60-2103(b) states in relevant part that “[t]he notice of appeal shall specify the parties taking the appeal; shall designate the judgment or part thereof appealed from, and shall name the appellate court to which the appeal is taken.”
Similarly, Rule 2.02 states that the notice of appeal shall be in substantially the following form: “Notice is hereby given that (specify the party or parties taking the appeal) appeal(s) from (designate the judgment or part thereof appealed from) to the Court of Appeals of the State of Kansas.”
The Berreth II panel determined that the Berreth I panel had implicitly — and properly — treated the matter as a State appeal of a final judgment on a 60-1507 motion via the authority contained in K.S.A. 60-1507(d). Berreth II, 2009 WL 1393752, at *2. Subsection d provides that “[a]n appeal may be taken to the Court of Appeals from tire order entered on the [1507] motion as in a civil case.” See Supreme Court Rule 183(k) (2011 Kan. Ct. R. Annot. 259) (same); see also Moll v. State, 41 Kan. App. 2d 677, 682, 204 P.3d 659 (2009) (State may appeal an unfavorable disposition of a 60-1507 motion in the same manner as a final judgment in a civil proceeding). Accordingly, the Berreth II panel affirmed the Ber-reth I panel’s decision and the district court’s reimposition of the original sentence of 254 months’ incarceration.
October 5, 2009: After approval by this court to file a pro se supplemental brief, Berreth filed a late one. He additionally argued that the Berreth II panel had violated his rights to receive due process and to be free from ex post facto and double jeopardy problems.
Tanuary 8, 2010: We granted Berreth’s petition for review. Initially he had argued that grounds for jurisdiction not identified in a notice of appeal may not be considered by the court, citing State v. Verge, 272 Kan. 501, 521, 34 P.3d 449 (2001). Because K.S.A. 60-1507(d) had not been so cited, he contended the panel in Ber-reth I had no authority to consider the State’s appeal on that basis. No supplemental briefs were filed by counsel.
October 28, 2010: At oral arguments before this court, the State conceded that it had not argued K.S.A. 60-1507(d) as the basis of appellate jurisdiction at the Court of Appeals but rather argued jurisdiction existed per K.S.A. 22-3602(b)(3) as a question reserved. When the State was specifically asked if it were requesting this court to give relief that it did not seek and did not argue at the Court of Appeals, the State answered affirmatively. It contended, however, that the panel had de novo review of the issues once tire State had perfected its appeal. According to the State, the panel was correct in deciding jurisdiction sua sponte and correct in recognizing that 60-1507(d) was the better jurisdictional basis.
Additional facts will be added as necessary.
Analysis
Jurisdiction is a question of law over which we exercise unlimited review. State v. Ballard, 289 Kan. 1000, 1005, 218 P.3d 432 (2009); Harsch v. Miller, 288 Kan. 280, Syl. ¶ 1, 200 P.3d 467 (2009). To the extent this appeal involves statutory interpretation, we also exercise unlimited review. Ballard, 289 Kan. at 1010.
Issue 1: The jurisdictional basis for the State’s appeal toas a question reserved.
It is uncontroverted that the right to appeal is entirely statutory and that tire limits of appellate jurisdiction are imposed by the legislature. Harsch v. Miller, 288 Kan. at 287 (Kansas appellate courts may exercise jurisdiction only under circumstances allowed by statute); State v. Crozier, 225 Kan. 120, 122, 587 P.2d 331 (1978) (“[I]n the absence of a statute which authorizes an appeal, an appeal is not available to the losing party in the district court.”).
It is further uncontroverted that the State’s statutory authority to appeal, when compared to the criminal defendant’s, is very limited. “While the State only has limited appeal rights, a criminal defendant has a nearly unlimited right of review.” State v. Boyd, 268 Kan. 600, 605-08, 999 P.2d 265 (2000); see also State v. Walker, 260 Kan. 803, 806, 926 P.2d 218 (1996) (noting that appeals by the State in criminal cases are tightly restricted by statute).
It is even further uncontroverted that the only statutory jurisdictional basis ever asserted by the State for its appeal of tire district court’s March 9, 2005, order essentially reducing Berreth’s conviction for aggravated kidnapping to simple kidnapping was K.S.A. 22-3602(b)(3): a question reserved. Indeed, the prosecutor effectively conceded to this court at oral argument that K.S.A. 22-3602(b)(3), and not 60-1507(d), had been the State’s only cited jurisdictional basis.
This candid concession is amply supported by the facts, e.g., both by the explicit statutory citation in the State’s original notice of appeal and the notice’s express recitation of the essential prerequisite for an appellate court to answer a question reserved: a “question of statewide interest important to the uniform administration of criminal law.” See State v. Skolaut, 286 Kan. 219, 225, 182 P.3d 1231 (2008) (“appellate courts will accept appeal of questions reserved when the issues are ‘matters of statewide interest important to the correct and uniform administration of tire criminal law and the interpretation of statutes’ ”).
The point was reinforced 5 weeks later by the State’s docketing statement — which per Supreme Court Rule 2.041(b) (docketing statement, criminal) (2011 Kan. Ct. R. Annot. 18) is “used by the court to determine jurisdiction.” There, the State wrote only that jurisdiction existed under a “question reserved.” Consistent with the predicate of answering a question reserved that it involve matters of statewide interest important to the correct and uniform administration of the criminal law, the State wrote: “The Court should reconsider its opinion in State v. Robbins based on State v. Groves, 278 Kan. 302, 95 P.3d 95 (2004).” And the prosecutor expressly stated that “a question reserved” was the “only basis for our appeal” at the district court’s March 29, 2005, resentencing hearing. (Emphasis added.)
Indeed, many of the parties’ other actions are simply inconsistent with K.S.A. 60-1507(d) as a jurisdictional basis. While Berreth properly filed his first pro se motion to correct an illegal sentence in his criminal case, 93 CR 354, his counsel twice filed purported 1507 motions under that case number. Counsel’s failures to file them as independent civil matters were contrary to Supreme Court Rule 183(a) (2011 Kan. Ct. R. Annot. 259), which states:
“A motion challenging the validity of a sentence [under K.S.A. 60-1507] is an independent civil action which should be separately docketed, and tire procedure before the trial court and on appeal to the Court of Appeals is governed by the Rules of Civil Procedure insofar as applicable.”
See State v. Thomas, 239 Kan. 457, 459, 720 P.2d 1059 (1986) (60-1507 creates a new case, not a criminal case, and proceeding is in the nature of a civil action); Hickson v. State, 39 Kan. App. 2d 678, 680, 182 P.3d 1269 (2008) (same). Similarly, the State’s notice of appeal in the district court, and its later docketing statement in the appellate courts, also incorrectly bore the criminal case number.
As an aside, we observe that after the State’s filing of its April 25, 2005, docketing statement, it apparently was forgotten that the State was appealing solely on a question reserved. For example, both of the State’s briefs in Berreth I asked for reimposition of the defendant’s original, harsher sentence, which is generally inconsistent with an appeal of a question reserved. See, e.g., State v. Stallings, 284 Kan. 741, 163 P.3d 1237 (2007); State v. Roderick, 259 Kan. 107, 116, 911 P.2d 159 (1996) (Questions reserved presup pose that the case at hand has concluded but that an answer to an issue of statewide importance is necessary for disposition of future cases.). In Berreth’s pro se October 18, 2007, motion, he appears to be the first one to point out since the filing of the State’s notice of appeal and its docketing statement 2 1/2 years earlier — and as confirmed by the prosecutor’s statement at the March 2005 sentence reduction hearing — that the State had expressly appealed strictly on a question reserved. .
Consequently, the question becomes whether the sole statutory jurisdictional basis asserted — and relied upon — by the State in its appeal can be changed to another ostensibly correct jurisdictional basis. This appears to be a question of first impression in Kansas. Under the circumstances of this case, and for tire reasons expressed below, we answer this question “no.”
1. The State cannot change its elected statutory basis for appellate jurisdiction — at least without notification, if not formal amendment.
We begin our analysis by observing that while the State’s statutory rights to appeal are quite limited (see State v. Boyd, 268 Kan. at 605), the State has the ability to elect from these limited jurisdictional bases. In State v. Muck, 262 Kan. 459, 939 P.2d 896 (1997), this court acknowledged that the State could have appealed as a question reserved under K.S.A. 22-3602(b)(3), “but presumably chose 22-3602(b)(l) [dismissal of complaint] to pursue prosecution of Muck if the appeal is successful. The alternative selected by the State is appropriate.” (Emphasis added.) 262 Kan. at 463. We described one rationale for the State’s choices in State v. Woodling, 264 Kan. 684, 687, 957 P.2d 398 (1998), where we summarized Muck as “recognizing that the State can elect to appeal under different subsections in order to acquire different rights upon a successful appeal.” (Emphasis added.)
The differences in the rights acquired upon successful appeals when the State proceeds on a question reserved and when it proceeds on die dismissal of a complaint — as pointed out by the Muck court — are as dramatic as the differences in the rights acquired upon successful appeals when the State proceeds, on a question reserved and when it proceeds under K.S.A. 60-1507(d). Successfully appealing a complaint dismissal under K.S.A. 22-3602(b)(l) allows the State to resume prosecution of a defendant. Muck, 262 Kan. at 463. Similarly, a successful State appeal under 60-1507(d) can negatively affect the defendant.- Subsection (a) of K.S.A. 60-1507 allows the defendant to move the court to actually “vacate, set aside, or correct the sentence,” but subsection (d) allows the State to appeal an unfavorable ruling on the motion like a final judgment in a civil proceeding. See Supreme Court Rule 183(k) (2011 Kan. Ct. R. Annot. 259); Moll v. State, 41 Kan. App. 2d 677, 682, 204 P.3d 659 (2009).
By contrast, as Muck intimates in its comparison to appeals of dismissal, the State’s successful appeal on a question reserved does not affect the defendant in the underlying case. The court’s decision typically operates only prospectively. See, e.g., State v. Roderick, 259 Kan. 107. So when the State successfully appeals, its prior election of jurisdictional bases can have dramatic consequences for the defendant, or none at all.
With this background, we turn to examining whether the State can expand its elected, and repeatedly asserted, statutory basis for appellate jurisdiction — at least without notification, if not a formal amendment. Although caselaw is not directly on point, the answer appears to be “no” when examining the analogous case of State v. Taylor, 262 Kan. 471, 939 P.2d 904 (1997). There, the court observed that the State had appealed on a question reserved pursuant to K.S.A. 22-3602(b)(3). The court refused to allow an expansion of the “question reserved” basis to incorporate the State’s argument that an illegal sentence could be raised at any time, apparently so that K.S.A. 22-3504 could serve as an appellate jurisdictional basis. The Taylor court held that “[although K.S.A. 22-3504 provides that the court may correct an illegal sentence at any time, this ches not relieve the State of its obligation to file an appeal pursuant to K S.A. 22-3504 and raise the issue." (Emphasis added.) 262 Kan. at 475.
Taylor admittedly concerned a notice of appeal in a direct appeal to the Supreme Court, while Berreth’s case involves an appeal to the Court of Appeals. And the requirements for reciting the stat- utoiy grounds — under which the appeal should be permitted — in the notices of appeal to each court are different. As we explained in State v. Hurla, 274 Kan. 725, 56 P.3d 252 (2002), Supreme Court Rule 2.01 (2011 Kan. Ct. R. Annot. 9) requires assertion of a specific ground in the notice of appeal for direct appeals to the Supreme Court, but Rule 2.02 (2011 Kan. Ct. R. Annot. 9) does not so require for the Court of Appeals.
Nevertheless, there is a difference between (1) putting nothing in the notice of appeal to the Court of Appeals (which, per Hurla, an appellant need not do) and (2) as here, reciting the sole statutory basis the appellant specifically elected for appeal, i.e., a question reserved. Once elected by the State, that information can conceivably be used by the appellate clerk and other court personnel — in conjunction with the docketing statement — to determine the existence, and resultant extent, of appellate jurisdiction. See Supreme Court Rule 2.041 (docketing statement is used by appellate courts “to determine jurisdiction”)- Moreover, there must be some point in the appellate process with the Court of Appeals by which the appellant is required to expressly declare its elected basis for jurisdiction. This is particularly true when the appellant is the State because its mere election can determine whether the defendant will be affected by the court’s decision. Muck, 262 Kan. 459.
In Berreth’s case — except as a question reserved — the State has never asserted at any stage of the process any statutory appellate jurisdictional basis in other documents, e.g., the docketing statement that is expressly used by the appellate courts “to determine jurisdiction.” This inactivity contrasts with the State’s actions in State v. Craig, 254 Kan. 575, 867 P.2d 1013 (1994). There, in an apparent direct appeal to the Supreme Court by the State, its notice of appeal’s alleged jurisdictional basis was K.S.A. 22-3602(b)(l) (order dismissing complaint, information or indictment). But the court was “informed by the State’s docketing statement . . . that the instant appeal is upon a question reserved by the prosecution.” 254 Kan. at 576. In those circumstances, the court accepted die latter assertion; it considered the appeal as a question reserved and then denied the State’s appeal.
The State has certainly made no effort to formally amend its elected statutory appellate jurisdictional basis in Berreth’s case. The case of State v. Kerby, 259 Kan. 104, 105, 910 P.2d 836 (1996), provides some guidance. In Kerby, on a direct appeal to the Supreme Court which required recitation of the statutoiy appellate authority in the notice of appeal, the State “failed to amend” its incorrect basis in the notice. The court dismissed for lack of jurisdiction. As this court later described it, the Kerby court “dismiss [ed the] case for lack of jurisdiction as [the] State had failed to amend [its] notice of appeal to reflect it was appealing under K.S.A. 22-3602(b) [question reserved] rather than K.S.A. 22-3603 [interlocutory appeal].” State v. Woodling, 264 Kan. at 687.
Kerby, unlike Berreth’s case, admittedly concerned a defective notice of appeal in a direct appeal to the Supreme Court. But its rationale and holding are persuasive for documents submitted after tire notice of appeal in the Court of Appeals, e.g., the docketing statement. Cf. State v. Craig, 254 Kan. 575 (allowed docketing statement to change grounds asserted in State’s notice of appeal). Here, the State’s docketing statement contained the same jurisdictional election as its notice of appeal.
As part of the analysis above reveals, some caselaw interpreting our rules has characterized as jurisdictional a failure in the notice of appeal to the Supreme Court to correctly cite the statutory authority under which the appeal should be permitted. But instead of a characterization of the failure as jurisdictional, it might be considered procedural and therefore justify dismissal simply due to a substantial failure to follow the rules of this court. See, e.g., Supreme Court Rule 5.05 (2010 Kan. Ct. R. Annot. 36) (appellate court may dismiss an appeal because of substantial failure to comply with court rules); Crumpacker v. Crumpacker, 239 Kan. 183, 184, 718 P.2d 295 (1986) (distinction between procedural requirements of rules which may be waived and jurisdictional requirements of statutes which may not be waived).
Regardless of how these appellate dismissals are characterized, this caselaw generally supports our decision in Berreth’s case. Under the circumstances here, we conclude the State was unable to expand its elected, and repeatedly asserted, statutory basis for jurisdiction in the Court of Appeals.
As for the dissent, it believes that the State’s specific identification of its sole statutory jurisdictional basis — in both its notice of appeal and docketing statement — was of no consequence. For example, the dissent would strike the State’s elected statutory basis in die notice of appeal as “superfluous.” And it would hold that die State later “elected and sufficiendy announced” a much different jurisdictional basis by its request for relief in its brief in Berreth I.
But this particular brief fails to identify any statutory jurisdictional basis for the State’s appeal. As a result, die dissent apparently would obligate die appellate court to infer from the brief which of the potential statutory jurisdictional bases for appeal the State has possibly chosen. This shift in responsibility — from the appellant who should know to die appellate court that can only infer — is particularly problematic because different jurisdictional bases for the State can have widely different effects on a criminal defendant. See Muck, 262 Kan. 459 (different jurisdictional bases can have dramatic consequences for die defendant, or none at all). The dissent seemingly would then require the appellate court to determine whether the statutes it tried to infer from the State’s brief would provide jurisdiction under the facts of the case.
Equally important, the dissent’s position has never been argued by the State. From at least the time of remand by the Court of Appeals in Berreth I, die State clearly has been on notice of Ber-reth’s principal argument: The only appellate jurisdictional basis the State ever had asserted was as a question reserved. Despite this clear opportunity for the State to dispute Berreth’s assertion, it did not. And the State certainly has never contended that the brief it wrote in Berreth I asserted any jurisdictional basis other than the one stated in its notice of appeal and docketing statement. Instead, it has clung to the position it has consistently taken throughout the case. The State’s brief to the Court of Appeals in Berreth II — and to this court — clearly and almost exclusively contends that die State’s notice of appeal sufficiently articulated a question reserved under K.S.A. 22-3602(b)(3) and that the appro priate standards for such an appeal have been met. It suggests in the alternative that the panel sua sponte had the authority to change the State’s elected basis in its notice of appeal and docketing statement.
Indeed, at oral argument before this court, the State conceded that it had not argued K.S.A. 60-1507(d) as the basis of appellate jurisdiction at the Court of Appeals. Rather, it argued jurisdiction existed solely per K.S.A. 22-3602(b)(3). When the State was specifically asked if it was requesting this court to give relief that it did not seek and did not argue at the Court of Appeals, the State answered affirmatively. It then repeated the alternative argument suggested in its brief: that the panel was correct in deciding jurisdiction sua sponte. It also argued the panel was correct in recognizing that 60-1507(d) was the better jurisdictional basis. In short, the State itself agrees that the panel changed the State’s elected basis for appeal. According to the State, it did not express, in any brief it wrote, a basis different than the one it first elected. As a result, the State is not, as the dissent suggests, erasing or eviscerating its own Berreth I jurisdictional argument with the jurisdictional argument contained in its Berreth II brief.
2. The Court of Appeals cannot sua sponte change the State’s election of its statutory basis for appellate jurisdiction.
The State specifically contended at oral argument that appellate courts not only have the right to sua sponte raise the issue of jurisdiction but also the right to sua sponte select the best jurisdictional basis for an appeal despite the State’s earlier explicit election of another. We agree that appellate courts have a duty to question jurisdiction on their own initiative. See State v. Gill, 287 Kan. 289, 196 P.3d 369 (2008). We disagree, however, with the remainder of the State’s proposition. This court’s recent trend has been to hold the State to its jurisdictional election.
The case of State v. Verge, 272 Kan. 501, 34 P.3d 449 (2001), is illustrative. There, this court held that the State’s notice of appeal contained a jurisdictional deficiency. Instead of asserting a question reserved under K.S.A. 22-3602(b)(3), the State incorrectly asserted the general statute of K.S.A. 22-3601(b)(l), which “only expresses what appeals are to be taken to the Kansas Supreme Court and provides no statutory authority for the appeal taken by the prosecution in this case.” 272 Kan. at 521. The court quoted State v. Woodling, 264 Kan. 684, Syl. ¶ 2: “Grounds for jurisdiction not identified in a notice of appeal may not be considered by the court.” The Verge court then concluded it had no jurisdiction to consider the State’s cross-appeal. It was therefore dismissed. Most important to the State’s specific contention at oral argument to this court in Berreth’s case, the Verge court did not sua sponte supply a jurisdictional basis different from the one elected by the State.
Three years before Verge, the Woodling court had held that the State could not claim that jurisdiction existed on the ground it was arguing — K.S.A. 22-3602(b)(l) (dismissal of complaint) — because this ground was not identified in the notice of appeal. The State’s notice instead asserted the grounds of an order arresting judgment (22-3602[b] [2]) or a question reserved (22-3602[b][3]). Woodling in turn cited the 1996 opinion in State v. Kerby, 259 Kan. 104. As mentioned earlier, the Kerby court “dismissed the] case for lack of jurisdiction as [the] State had failed to amend [its] notice of appeal to reflect it was appealing under K.S.A. 22-3602(b) rather than K.S.A. 22-3603.” Woodling, 264 Kan. at 687. Most important to tire State’s specific assertion at oral argument in Berreth’s case, the Woodling court did not sua sponte provide a jurisdictional basis different from the one elected by the State so the appeal could be saved.
Cut from the same basic cloth is State v. G.W.A., 258 Kan. 703, 705-07, 906 P.2d 657 (1995). In G.W.A., we dismissed the State’s appeal for lack of jurisdiction because its notice of appeal cited only the general statute, K.S.A. 22-3602 — not its subsection (b)(3) — to claim a question reserved. We stated:
“Here, the State’s notice of appeal referred solely to an appeal from the judgment of acquittal. It contained no general reference which could be liberally construed to include an appeal on a question reserved. . .. The notice of appeal was limited and specific and cannot be read to include an appeal on a question reserved.. . . We are unpersuaded by the State’s argument that its mention of K.S.A. 1994 Supp. 22-3602 in the notice of appeal gives the court jurisdiction.” 258 Kan. at 707.
In dismissing, we obviously did not sua sponte supply a jurisdictional basis different from the one elected by the State in order to save the appeal. The same is true for State v. Taylor, 262 Kan. 471, 939 P.2d 904 (1997), which as previously mentioned we dismissed because of the State’s failure to elect the proper appellate statutory jurisdictional basis.
Admittedly, Verge, Woodling, Taylor, Kerby, and G.W.A. are all direct appeals to the Supreme Court. By Supreme Court Rule 2.01 their notices of appeal are required to state the ground on which the appeal is allegedly permitted, including citation of statutory authority. By contrast, Berreth’s case is an appeal to the Court of Appeals and by Rule 2.02 such notices of appeal are not required to so state (see Hurla, 274 Kan. 725). Nevertheless, these recent cases demonstrate that this court has been strict with the State on asserting jurisdictional bases. And whether the appeal dismissals are characterized as definitely jurisdictional, or possibly procedural for failure to follow court rules, we clearly have not sua sponte supplied appellate bases in addition to, or in place of, those cited by the State.
In earlier years, however, this court apparently took a more lenient approach. In State v. Martin, 232 Kan. 778, 658 P.2d 1024 (1983), the State appealed the trial court’s decision under K.S.A. 22-3603. The Martin court held this statute could not be utilized as the basis for appeal because none of the appealable orders enumerated in it were made by the trial court. Nevertheless, the court sua sponte considered the appeal as a question reserved under 22-3602(b)(3) and sustained the appeal. It expressly held that “the failure to cite the proper appellate statute [is not] a jurisdictional prerequisite,” citing State v. Grimes, 229 Kan. 143, 622 P.2d 143 (1981), and State v. Whorton, 225 Kan. 251, 589 P.2d 610 (1979). 232 Kan. at 780.
Seven years later in State v. Harpool, 246 Kan. 226, 788 P.2d 281 (1990), the State took an interlocutory appeal under K.S.A. 22-3602. In the court’s more lenient posture, it held: “This is not properly an interlocutoiy appeal but is clearly meant to be an appeal on a question reserved by the State, K.S.A. 22-3602(b)(3), as stated orally by the prosecutor in argument at the sentencing hear- mg.” (Emphasis added.) 246 Kan. at 227. The Haiyool court sua sponte declared it had jurisdiction to hear the case as a question reserved, citing State v. Martin. The 22-year-old Harpool case appears to be the last time this court gave such a full assist to die State on this issue. Cf. State v. Craig, 254 Kan. 575 (allowed State’s docketing statement to change grounds asserted in notice of appeal).
The Whorton decision of 1979, cited by tire court in Martin and by the State in Berreth’s case, supports the general proposition that the State’s failure to designate the proper statutory jurisdictional basis does not doom its appeal. Although the text is not clear, Whorton apparently involved an undesignated jurisdictional basis by the State. This court did not simply dismiss the appeal as in Verge 22 years later. But it analyzed whether the appeal was proper under K.S.A. 22-3602(b) as a question reserved or as an order of dismissal — or improper as an unappealable order of acquittal under State v. Crozier, 225 Kan. 120, 587 P.2d 331 (1978).
The Grimes decision of 1981, also cited by the court in Mai~tin and by the State in Berreth’s case, is of less support to the State than Whorton. In Grimes, the State appealed the district court’s grant of defendant’s motion for new trial and argued it was a question reserved under K.S.A. 22-3602(b)(3). The court held that because the order was issued before the case terminated, the appeal was interlocutory. But this particular type of order was not authorized as a basis for an interlocutory appeal under K.S.A. 22-3603. And under caselaw the State could not use 22-3602(b)(3) as a form of interlocutory appeal but only for cases that had been terminated.
In addition to citing our 20-year trend to hold the State to its own jurisdictional election, another reason exists to prohibit the appellate courts from unilaterally altering a declared jurisdictional basis for appeal. Specifically, assisting the State with its jurisdictional designation in criminal appeals is inconsistent with our acknowledgment that the legislature tightly restricts the State’s statutory rights to appeal. State v. Walker, 260 Kan. 803, 806, 926 P.2d 218 (1996) (appeals by the State in criminal cases are tightly restricted by statute); see State v. Boyd, 268 Kan. 600, 605, 999 P.2d 265 (2000) (“While the State only has limited appeal rights, a criminal defendant has a nearly unlimited right of review.”); City of Lyons v. Wellman, 56 Kan. 285, 43 P. 267 (1896) (“the right of the State to appeal in criminal cases is quite limited”).
3. A defendant has no authority to change the appellate jurisdictional basis elected by the State.
In Berreth I, defendant’s counsel asked die Court of Appeals panel to construe tire defense motions as being filed under K.S.A. 60-1507. This request was apparently made to avoid the effect of our recent decision in State v. Edwards, 281 Kan. 1334, 135 P.3d 1251 (2006). That decision held drat motions to correct illegal sentences under K.S.A. 22-3504(1) were inappropriate vehicles to argue multiplicity of convictions. But a criminal defendant has no statutory authority to change the appellate jurisdictional basis elected by the State. See State v. Muck, 262 Kan. 459, 463, 939 P.2d 896 (1997) (State chose between appeal on a question reserved and appeal of dismissal of complaint); cf. State v. Mountjoy, 257 Kan. 163, 167, 891 P.2d 376 (1995) (“When the prosecution appeals on a question reserved, the defendant has no statutory right to expand the question reserved by the prosecution.”).
Issue 2: Appellate courts do not answer questions resemed unless the matter is of statewide importance.
Now that we have established the State’s elected appellate jurisdictional basis was a question reserved under K.S.A. 22-3602(b)(3), we proceed to die next step of our analysis. More particularly, did the State’s appeal actually qualify throughout as a question reserved? We answer this question “no.”
We have repeatedly stated that to be considered on appeal, questions reserved by the prosecution must be issues of statewide interest important to the correct and uniform administration of criminal law. Questions reserved by the State in a criminal prosecution will not be entertained on appeal merely to determine whether error has been committed by the trial court in its rulings adverse to the State. State v. Adee, 241 Kan. 825, 826, 740 P.2d 611 (1987); State v. Willcox, 240 Kan. 310, Syl. ¶ 1, 729 P.2d 451 (1986); State v. Holland, 236 Kan. 840, Syl. ¶ 1, 696 P.2d 401 (1985); State v. Glaze, 200 Kan. 324, Syl. ¶ 1, 436 P.2d 377 (1968). We have uniformly declined to entertain questions reserved, the resolution of which would not provide helpful precedent. State v. Hudon, 243 Kan. 725, 726, 763 P.2d 611 (1988); State v. Holland, 236 Kan. at 841. Mountjoy, 257 Kan. at 167-68.
Here, the State’s repeatedly given reason for seeking appeal of the district court’s order declaring the convictions multiplicitous was to seek clarification regarding Robbins and Groves: The court should reconsider Robbins in light of Groves. While Berreth’s case was on appeal, this court provided that requested clarification in State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006). As the Court of Appeals in Berreth I was to hold, “it appears the district court’s reliance on Robbins no longer stands up under Schoonover’s analysis.” Berreth I, 2007 WL 806002, at *5. The panel ruled Schoonover controlled and the district court erred in determining Berreth’s convictions were multiplicitous and in resentencing. But this determination could have been made after the panel’s receipt of the parties’ responses to Question Two in its show cause order, i.e., "Why State v. Schoonover does not control.” And if not then, it could have been made after oral arguments.
It is unlikely a written judicial opinion was required on this issue. The State’s appeal of this issue could easily have been dismissed because “the resolution of tire question would not provide helpful precedent.” State v. Skolaut, 286 Kan. 219, 225, 182 P.3d 1231 (2008) (appellate courts will not accept appeal of questions reserved in cases “in which the resolution of the question would not provide helpful precedent.”).
More to the point are several Court of Appeals opinions. One panel has specifically held that on a question reserved, if an issue on appeal is no longer of statewide importance because the court has already addressed it in prior case, the appeal should be dismissed. In re E.F., 41 Kan. App. 2d 860, 861-62, 205 P.3d 787 (2009). See also State v. Sanderson, No. 104,052, 2011 WL 1377073, at °2 (Kan. App. 2011) (unpublished opinion) (“Because clear precedent has already been established ... we decline jurisdiction on the question reserved by tire State and, accordingly, dismiss the appeal.”); State v. Hudson, No. 103,360, 2011 WL 1344730, at *3 (Kan. App. 2011) (unpublished opinion) (dismissing appeal because the “legal authority cited by the State only serves to indicate that the question reserved by the prosecution in this appeal has already been addressed by Kansas courts”).
Issue 3: An appellate court answer to the State’s question reserved does not affect Berreth.
We hold that (1) tire State’s elected appellate jurisdictional basis was solely a question reserved, (2) State v. Schoonover meant the State’s question reserved was no longer of statewide interest, and (3) the State’s appeal therefore could have simply been dismissed. As a result, we need not address further panel error. The matter is resolved. Nevertheless, we take this opportunity to clarify Kansas caselaw on the effect on a criminal defendant when an appellate court answers the State’s question reserved in his or her case.
To state it clearly and simply, an appellate court’s answer to a State’s question reserved has no effect on the criminal defendant in the underlying case. See, e.g., State v. Stallings, 284 Kan. 741, 163 P.3d 1232 (2007) (on question reserved in a case involving defendant’s conviction of five counts of capital murder, held trial court erred in allowing defendant to address the sentencing jury on punishment mitigation; juiy then could not agree on death penalty so court sentenced to five consecutive hard-50 life sentences on capital murder convictions; rather than reverse and remand, State’s appeal simply sustained); State v. Murry, 271 Kan. 223, 21 P.3d 528 (2001) (on question reserved, held trial court erred in ruling defendant’s blood sample was taken in violation of his Fourth Amendment rights; rather than reverse and remand, State’s appeal simply sustained); State v. Johnson, 32 Kan. App. 2d 619, 86 P.3d 551 (2004) (State appealed as question reserved whether defense counsel can call witness liar; held trial court erred in overruling State’s objection and State’s appeal simply sustained, i.e., without reversal and remand).
The rationale for this rule appears to be stated as follows:
“ ‘An appeal on a question reserved is permitted to provide an answer which will aid in the correct and uniform administration of the criminal law. This court will not entertain a question reserved merely to demonstrate errors of atrial court in rulings adverse to die State. Questions reserved presuppose Üiat die case at hand has concluded but that an answer to an issue of statewide importance is necessary for disposition of future cases.’ City of Wichita v. Basgall, 257 Kan. 631, Syl. ¶ 1, 894 P.2d 876 (1995).” (Emphasis added.) State v. Roderick, 259 Kan. 107, 108, 911 P.2d 159 (1996).
See State v. Ruff, 252 Kan. 625, 630, 847 P.2d 1258 (1993) (“questions reserved presuppose that the case at hand has concluded but than an answer is necessary for proper disposition of future cases which may arise”); State v. Puckett, 227 Kan. 911, 610 P.2d 637 (1980); State v. Reed, 145 Kan. 459, 65 P.2d 1083 (1937). The question reserved is akin to a purely academic question in tire case in which it arrives on appeal.
Some of our opinions, however, have appeared to stray from this purely academic path, particularly on sentencing issues. See, e.g., State v. Reason, 263 Kan. 405, 951 P.2d 538 (1997) (“Although remands are infrequent on questions reserved under K.S.A. 22-3602[b][3], we have remanded to correct an illegal sentence, or to correct other district court action concerning sentencing, when the matter is not moot”); State v. Taylor, 262 Kan. 471, 480, 939 P.2d 904 (1997) (sustained State’s appeal on question reserved and remanded for resentencing of defendant using increased criminal history score); State v. Miller, 260 Kan. 892, 904, 926 P.2d 652 (1996) (on question reserved for defendant Douglas, State’s appeal was sustained, the modified sentence was vacated, and case remanded for reinstatement of the original harsher sentence); City of Wichita v. Lucero, 255 Kan. 437, 874 P.2d 1144 (1994) (on question reserved, after reversing district court’s decision that ordinance was unconstitutional and violated defendant’s rights, case remanded with directions to resentence defendant); State v. Harpool, 246 Kan. 226, 227, 788 P.2d 281 (1990) (after determining appeal was not an interlocutory appeal as State asserted but “is clearly meant to be an appeal on a question reserved,” court reversed and remanded for imposition of a lawful, longer sentence upon defendant); see also State v. Meredith, 236 Kan. 866, 696 P.2d 403 (1985) (holding on a question reserved that the in-patient alcohol treatment received by defendant did not satisfy K.S A. 1983 Supp. 8-1567(d)’s requirement that second time DUI offenders spend 5 days in prison; reversed and remanded for resentencing); State v. Ashley, 236 Kan. 551, 693 P.2d 1168 (1985) (holding on a question reserved that the district court erred in imposing concurrent sentences and reversed and remanded for resentencing).
We reemphasize our rule to keep future courts from straying from it. An appellate court’s answer to a question reserved by the State has no effect on the criminal defendant in the underlying case.
Before closing, it should be noted that the State had recourse in Berreth’s case. Instead of choosing to appeal the multiplicity order of March 9, 2005, as a question reserved, it could have chosen to appeal under K.S.A. 22-3504 on the basis that Berreth’s pro se motion to correct illegal sentence should not have been granted. See State v. Taylor, 262 Kan. 471. Or as the panel inferred for the State, the State could have chosen to appeal under K.S.A. 60-1507(d) on the basis that Berreth’s purported 1507 motions should not have been granted. Under either statute, Berreth’s sentence could have been affected by a successful State appeal. See Moll v. State, 41 Kan. App. 2d 677, 204 P.3d 659 (2009) (State may seek reversal of an unfavorable 1507 ruling); cf. State v. McCarley, 287 Kan. 167, 195 P.3d 230 (2008) (State filed motion to correct illegal sentence; after trial court denial of motion, Supreme Court held sentence was illegal and reversed and remanded for imposition of correct, harsher sentence).
CONCLUSION
The Court of Appeals panels in both Berreth I and Berreth II failed to properly treat the State’s appeal as a question reserved as the State had elected. And had such a treatment occurred, any decisions on a question reserved would not affect Berreth. The decision of the panel in Berreth II, which is before us on Berreth’s direct appeal of that decision, is therefore reversed.
We denied Berreth’s petition to review the panel’s decision in Berreth I. But as a practical matter Berreth I cannot stand given today’s reversal of the Berreth II decision — which had essentially affirmed both the rationale and holding of Berreth I. Indeed, the Berreth II court stated that defendant:
“contends that in a prior appeal of this case by the State, we had no authority to order the district court to reimpose his original sentence. In his view, the case has no statewide importance and therefore we should not have entertained the State’s appeal. . . . We hold the State did not deprive this court of jurisdiction by calling the matter in its notice of appeal a question reserved. We affirm Berreth’s sentence.” 2009 WL 1393752, at *1.
Consequently, the decision in Berreth I is vacated. See K.S.A. 60-2101(b) (Supreme Court shall have jurisdiction to vacate any judgment of Court of Appeals to assure it is just, legal, and free of abuse). As a result, the case is remanded to the district court with instructions to reimpose the sentence it originally imposed on March 29, 2005.
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The opinion of the court was delivered by
Beier, J.:
Defendant Antwan T. Peppers appeals his convictions of one count of first-degree premeditated murder and one count of attempted first-degree murder.
Peppers alleges reversible error in the district judge’s admission of gang affiliation evidence; the content of instructions given to the jury on the gang affiliation evidence and on the burden of another trial; and the prosecutor’s closing argument because of what he views as a comment on facts not in evidence, an endorsement of a victim’s credibility, a shifting of the burden of proof, and expres sions of a personal opinion on guilt. As fully discussed in this opinion, we conclude that, none of Peppers’ challenges to his convictions warrants reversal.
Peppers also challenges his consecutive hard 50 life sentence for first-degree murder and 272 months’ imprisonment for attempted first-degree murder as unconstitutional, because they were based on criminal history not proved to a jury beyond a reasonable doubt. We have rejected this argument in numerous cases, starting with our opinion in State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002), and we are not inclined to revisit or revise this holding. Our opinion will not further discuss Peppers’ argument on this sentencing issue.
Factual and Procedural Background
Peppers stands convicted by a jury of the first-degree premeditated murder of Jermaine E. Cunningham and the attempted first-degree murder of Terrell Dontae Hayes-Osby. The charges stem from a July 2006 late-night shooting outside of Terry’s Bar and Grill (Terry’s) in Topeka.
Before trial, Peppers filed a motion in limine to prohibit improper comments by the prosecutor. Peppers requested that the court “instruct the prosecutor... to refrain from making improper, misleading, inflammatoiy or irrelevant statements, comments or insinuations at any time during the voir dire or trial of this matter.” At the motion hearing, the prosecutor agreed to the admonition, as long as the same admonition applied to the defense. The district judge granted the motion, noting that “[c]ertainly, defendant is required to follow the same or similar rules although I think the large majority of the cases apply to prosecutors and not to defense counsel.”
Also, before trial, Peppers filed a motion in limine to exclude “[a]ny references to prior criminal history and/or alleged prior criminal activity or conduct, charged or uncharged . . . , [and a]ny reference to alleged gang affiliation of Mr. Peppers, . . . Hayes-Osby, . . . Cunningham or any witnesses in this matter.”
At the hearing on the motion, Peppers argued that the prejudicial effect of the gang affiliation evidence would outweigh its probative value and would deny Peppers his right to a fair trial. Peppers also argued that this was not a case of “gang warfare” and that the evidence was not needed to explain any witness bias. Peppers asserted that, instead, this was a case of “[fjriend shoots friend and there’s payback.”
The State responded that the admission of gang evidence did not fall within K.S.A. 60-455 and was not confined by it. It also argued that evidence of gang affiliation was material and relevant to motive. The State contended that its theory of the case was gang retaliation and, therefore, gang affiliation evidence was relevant to explain an otherwise inexplicable shooting.
The district judge granted Peppers’ motion as to evidence of any prior criminal activity. The district judge took the question of gang affiliation evidence under advisement, and Peppers filed additional argument in support of his motion, arguing that the State’s theory of tire case was not supported by tire State’s witnesses.
After a second hearing, the district judge denied Peppers’ motion as to tire gang affiliation evidence. The district judge reasoned that “ ‘[ejvidence of gang membership is admissible if relevant,’ ” quoting State v. Ross, 280 Kan. 878, 885, 127 P.3d 249 (2006), cert. denied 548 U.S. 912 (2006). She further cited State v. Goodson, 281 Kan. 913, 922, 135 P.3d 1116 (2006), for the proposition that gang evidence may be material if the evidence “provides a motive for [an] otherwise inexplicable act,” “shows witness bias,” or explains “part of the chain of events.” The district judge concluded that the gang evidence at issue in this case provided a reason for a meeting between Peppers and victim Hayes-Osby and provided an alternative motive for the shooting.
Peppers renewed his objection to the introduction of gang affiliation evidence after opening statements at trial. The district judge again denied the motion, but she granted Peppers a continuing objection.
Detective Biyan Wheeles of the Topeka Police Department testified in Peppers’ trial about a homicide that occurred earlier in the same day as the shootings of Cunningham and Hayes-Osby. Hayes-Osby was the suspect in the earlier crime, and the victim was Trevor Antwan Harness. Wheeles became peripherally in volved in tine investigation of the later Cunningham and Hayes-Osby shootings because it overlapped with the investigation of the Harness homicide. The gun used to shoot Harness was recovered at tire scene of the later crimes. Hayes-Osby eventually confessed to killing Harness.
Hayes-Osby also testified in Peppers’ trial. He said that he knew Harness from an “organization” called the “Four Corner Hustlers,” also known as the “Solids 4.” The Solids 4 associated with the “Traveling Vice Lords” or “TVLs.” Hayes-Osby testified that the Solids 4 and the TVLs were part of the same larger organization.
As a member of the Solids 4, Hayes-Osby said he was responsible for following certain rules and regulations. “Chiefs” of such organizations imposed sanctions and penalties for violations. The Topeka chief of the TVLs was Peppers. Because Harness was a member of the TVLs and owed Hayes-Osby money and crack cocaine, Hayes-Osby had gone to TVL Chief Peppers to seek payment. Peppers, Hayes-Osby said, eventually told Hayes-Osby to “[chalk] it up as a loss.”
On the morning of the homicides, Hayes-Osby and Harness were involved in an incident during which Hayes-Osby pointed a gun out of the car Harness was driving after a third person had pointed a gun at their car. No shots were fired. Harness drove away from the incident while arguing with Hayes-Osby about drawing and pointing the gun. Hayes-Osby testified that, when he and Harness got out of the car, “I pulled a gun out on him and I told him to pay me my money. . . . He was acting like he didn’t want to pay me so I told him to empty his pockets. He acted like he was going to go into his pockets and then he reached for the gun. I shot him.”
After he shot Harness, Hayes-Osby went to his cousin’s house in Johnson County. While he was there, Peppers called and said that he had heard Hayes-Osby shot Harness. Harness was also known as “Little Twan” because he was a close friend and TVL associate of Peppers. Hayes-Osby agreed to come back to Topeka and meet with Peppers to discuss the organizational rule violation Hayes-Osby had committed by killing Harness. Hayes-Osby then called his friend Cunningham, a member of the Bloods, to drive him.
Once back in Topeka, Hayes-Osby again talked to Peppers by telephone, and die two planned to meet at Terry’s. Cunningham and Hayes-Osby went inside Teriy’s but left when, according to Hayes-Osby, “people was acting like they didn’t want to serve me.” While walking back to their car, Hayes-Osby recognized Peppers walking toward him on the street with two other people. Hayes-Osby testified: “I told [Cunningham], let’s get out of here. I ain’t tiying to fool with these men right now.” Hayes-Osby got into the passenger side of the front seat and Cunningham got into the driver’s side. Then the three men on the street ran up behind the car and started shooting.
Hayes-Osby saw two bullets go through Cunningham’s head, and Hayes-Osby was shot once in the arm and three times in the back. Hayes-Osby said he then took Cunningham’s gun, which Hayes-Osby had used earlier in the day to kill Harness, and got out of the car. As he emerged, he said, he looked back to see who was shooting at him and saw part of the face of the man standing behind the car on the driver’s side. He identified this man as Peppers. Hayes-Osby said he tried unsuccessfully to return fire and then threw Cunningham’s gun under a nearby truck. When Hayes-Osby was refused readmission to Terry’s, he began walking toward a liquor store. Police then arrived on the scene.
The State charged Hayes-Osby with the murder of Harness, and Hayes-Osby eventually entered into a plea agreement under which he would testify against Peppers and receive a recommendation of a 75-month rather than a 154-month sentence. It took more than a year to reach the plea agreement. In the intervening time, Hayes-Osby exchanged letters with Peppers in which the two discussed an alternate deal between themselves: Peppers would testify that Cunningham murdered Harness, in exchange for Hayes-Osby refusing to testify against Peppers. This correspondence, Hayes-Osby said, included one letter in which Peppers warned Hayes-Osby not to testify and said that doing so would be an organizational rule violation punishable by death.
On cross-examination at Peppers’ trial, Hayes-Osby testified that the shootings of Harness, Cunningham, and himself were not gang-related. He also testified that he did not remember exactly what he had originally told police. Hayes-Osby said that Cunningham was buying marijuana on the night of the shootings and that he and Cunningham had already smoked some before they went into Terry’s. He also testified that he had used Ecstasy, “wet,” and drunk Hennessy on the day of the crimes. Hayes-Osby acknowledged that the man he identified as Peppers had his face covered except for his eyes. He also admitted that part of a statement he had given to police a year and a half after the crimes was false.
On redirect examination, Hayes-Osby testified that he did not believe the Solids 4 or the TVLs were gangs, but that the shootings were in fact related to the Solids 4 and TVLs “associations.” He identified Peppers’ telephone number as appearing on his own telephone’s log three times before the shooting.
Three police officers testified that, while Hayes-Osby was in the hospital after the crimes, he told them that Peppers was the man who shot him.
Two other State witnesses in Peppers’ trial also identified Peppers as the shooter.
One, LaTiseia Stano, acknowledged that she had been smoking marijuana and crack cocaine and had been drinking on the night of the shooting. She testified: “I was sitting in a car [outside of Teny’s] getting high and I heard shots and I turned around and I seen people running and I, I left.” Stano identified Peppers as one of the men she saw shooting. She admitted that she had previously testified she was not present at the scene because she was scared. Stano said she was incarcerated at the time of trial, but she denied having any agreement with the State for more favorable treatment in exchange for her testimony.
The other witness who identified Peppers, Stacey Lewis, acknowledged that she had been drunk on the night of the shooting. She testified that she was in an alley across the street from Terry’s to buy crack cocaine when she saw a parked car with “Little Man” and “Cream” inside. “Little Man” and “Cream” were street names for Cunningham and Hayes-Osby. Lewis returned her attention to her drug transaction and then heard gunshots. When she looked back toward the car, she saw two shooters, one of whom she recognized as Peppers by “the way he moved.” Lewis then ran from the scene. When Lewis was arrested about a month later, she asked law enforcement “if they had ever caught the person who lulled Little Man.” When the police told her no, she told them she knew the murderer was Peppers. Lewis testified that she was given immunity from drug charges for her purchase of crack cocaine on the night of the shooting in exchange for her testimony at Peppers’ preliminary hearing. She said she did not want to testify because she was frightened for her life.
Other State witnesses at Peppers’ trial testified to hearing or seeing the shooting but could not identify Peppers as a shooter. Teresa Stormann testified to seeing two men in Terry’s and then hearing gunshots shortly after they left. Candelario Marquez, who was sitting on a bench across the street, saw three people walk up and start shooting at tire car. Felipe Reyes Marquez, who was with Candelario, saw two “blacks” with guns start shooting from behind the car. Oscar Mendoza, who was with Candelario and Marquez, heard gunshots and saw a man run past him as Mendoza fled the scene.
State witness Jesse Hall corroborated the State’s case in other particulars. He testified that he saw Cunningham at Cunningham’s grandmother’s apartment in Topeka earlier on the evening of the shooting. When Cunningham left, he said he was going to Terry’s with Hayes-Osby. Hall also left and went to get a friend to go to Terry’s. On his way there, he heard five or six gunshots.
Sued White, Cunningham’s cousin, testified that two cars came by his house with people looking for Hayes-Osby on the afternoon of the shooting. White first testified that he could not remember identifying Peppers but was recalled to the witness stand and testified that he did see Peppers and said he had testified otherwise before because he “didn’t want to be killed.”
Dawn Diggins, Peppers’ ex-girlfriend, testified that officers came to her residence on the day after the shooting to look for Peppers. Three phone calls were made late on the night of the shooting to Hayes-Osby’s number from a cell phone owned by Diggins but used by Peppers.
Paul Kelley also provided testimony during the State’s case over a defense objection. Kelley met Peppers in federal prison in Flor ence, Colorado. Before Peppers left Colorado, he told Kelley: “I hope they don’t bring up this body I got in the State.” Kelley said he sought additional information: “I asked him what body are you talking about and he said he got into it with a dude, him and his little homie got into it with a dude about some money and I guess the dude seen his homie earlier and killed him” and “later on towards the night, they seen the dudes pull up and — he said they seen the dudes pull up and he dumped on” them, meaning shot at them, killing one and wounding the other. Kelley testified that he had no connection to the state of Kansas. Specifically, he said he had not read Kansas newspapers or watched Kansas television, including Kansas news. Kelley also testified that he did not enter into an agreement with the State in exchange for his testimony, but he admitted that he was attempting to obtain a reduction in his federal sentence.
Peppers did not testify at his trial, and defense counsel called no other witnesses.
During discussion of jury instructions at the conclusion of trial, the district judge reiterated that she allowed admission of gang affiliation evidence because it “showed motive” and because “it formed parts of the events surrounding the commission of the crime.” Peppers sought a limiting instruction but objected to language permitting the jury to consider the evidence where it formed “part of the events surrounding the commission of the crime.” The State took the position that no instruction was necessary but assented to the judge’s wording. The district judge rejected the defense objection and gave the following limiting instruction:
“Evidence has been introduced that the defendant is a member of a particular gang. Such evidence, if believed, was not received and may not be considered by you to prove that he is a person of bad character or that he has a disposition to commit crimes. Such evidence was received and may be considered by you only for the purpose of determining if it tends to show part of the events surrounding the commission of the crime or the motive of the person who committed the crimes, if any, of which the defendant is accused. For the purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. You are not permitted to consider such evidence for any other purpose.”
The district judge also gave the jury an Allen-type instruction including tire language “Another trial would be a burden on both sides.” Before doing so, she asked counsel for both sides: “[D]o you want an Allen instruction? I just decided that if both counsel, sets of counsel want it; I give it. If anybody objects, I don’t give it.” The State responded “Sure” to the instruction. The district judge then went on: “Defense, do you wish to have one?” Peppers’ counsel reviewed the instruction and concluded: “We don’t have any objection.”
During closing argument, the prosecutor told the jury that the “only way” Hayes-Osby would get the benefit of his bargain with the State — “the reduction of 75 months’ recommendation” — -was to “speak the truth when he takes that stand.” He also said that Kelley must have received the information about the crimes that he relayed during his testimony from Peppers. If the information had been published, “we would have seen a copy of it. That information wasn’t out there, Ladies and Gentlemen.” The prosecutor also said that the jury should find Peppers guilty “because he did it” and said, “The point is, is there any evidence otherwise that tells you something different about what [Hayes-Osby] told you happened?” The prosecutor asked jurors if they believed the police and the district attorney’s office conspired to convict Peppers of crimes he did not commit and then said, “No, that’s not what happened.” The prosecutor also said during the concluding portion of his closing argument: “When you come back in after your deliberation after reviewing the evidence, you need to come in, you need to look at the defendant, and you need to tell him he’s guilty and you need to look him in the eye and say you are guilty of murder and you are guilty of attempted murder because he is.”
Discussion
Admission of gang affiliation evidence
Gang affiliation evidence is admissible if relevant. State v. Brown, 285 Kan. 261, 297, 173 P.3d 612 (2007) (citing State v. Conway, 284 Kan 37, 47, 159 P.3d 917 [2007]; State v. Ross, 280 Kan. 878, 885, 127 P.3d 249 [2006]). Relevant evidence is defined by statute as evidence that is both material and probative. K.S.A. 60-401(b). We review whether evidence is material under a de novo standard. State v. Shadden, 290 Kan. 803, 817, 235 P.3d 436 (2010). Materiality addresses whether “ ‘a fact. . . has a legitimate and effective bearing on the decision of the case and is in dispute.’ ” State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008) (quoting State v. Garcia, 285 Kan. 1, 14, 169 P.3d 1069 [2007]). In other words, a fact is material if it is “ ‘significant under the substantive law of the case and properly at issue’ ” Reid, 286 Kan. at 505 (quoting Goodson, 281 Kan. 913, 922, 135 P.3d 1116 [2006]). We review whether evidence is probative under an abuse of discretion standard. Shadden, 290 Kan. at 817-18. Evidence is probative if it has “ ‘any tendency in reason to prove any material fact.’ ” State v. Houston, 289 Kan. 252, 261, 213 P.3d 728 (2009) (quoting K.S.A. 60-40l[b]). “For evidence of gang affiliation to be admissible there must be sufficient proof that gang membership or activity is related to the crime charged.” State v. Tatum, 281 Kan. 1098, Syl. ¶ 3, 135 P.3d 1088 (2006). Even if evidence is deemed relevant, it may be excluded if it is more prejudicial than probative. See State v. Inkelaar, 293 Kan. 414, 424, 264 P.3d 81 (2011). We review a district judge’s weighing of prejudice and probative value for an abuse of discretion. 293 Kan. at 424.
Peppers first challenges this court’s previous rulings that admission of gang affiliation evidence is not subject to further analysis— including possible exclusion or limiting instruction — under K.S.A. 60-455 on other crimes and civil wrongs. See Conway, 284 Kan. at 48, 50 (“The legislature specifically limited the admissibility of evidence of crimes and civil wrongs in K.S.A. 60-455; no similar legislative statement exists with regard to evidence of gang affiliation.”); see Ross, 280 Kan. at 886; State v. Gholston, 272 Kan. 601, 614, 35 P.3d 868 (2001); State v. Hooks, 251 Kan. 755, 765-66, 840 P.2d 483 (1992); State v. Bailey, 251 Kan. 156, 166, 834 P.2d 342 (1992), modified on other grounds hy State v. Willis, 254 Kan. 119, 864 P.2d 1198 (1993). He argues that jurors naturally associate gang membership with criminal activity, and thus evidence of gang affiliation needs to be treated like other evidence likely to be used by jurors as irrelevant proof of a defendant’s general propensity for wrongdoing. In support, Peppers cites cases from other jurisdic tions in which courts have noted the connection between gangs and criminal activity. See United States v. Cavera, 550 F.3d 180, 204 (2d Cir. 2008); Castenada v. Olsher, 33 Cal. Rptr. 3d 827, 836 (Cal. App. 4th Dist. 2005); Medina v. Hillshore Partners, 40 Cal. App. 4th 477, 481 (Cal. App. 2nd Dist. 1995), K.S.A. 2010 Supp. 21-4704(k), which allows enhancement of a sentence for a felony connected to gang activity.
We are unpersuaded that we should depart from our precedent on this point. As we said in Conway, 284 Kan. at 50, the legislature has demonstrated no inclination to treat gang affiliation evidence in the same way it treats evidence of other crimes and civil wrongs. Although evidence of a defendant’s gang affiliation certainly may be prejudicial, so is most evidence sponsored by the State in any criminal trial. If the evidence is nevertheless relevant — i.e., material and probative — and not unduly prejudicial, it may be admitted. See, e.g., State v. Dixon, 289 Kan. 46, 70, 209 P.3d 675 (2009) (not all inculpatory evidence qualifies as unduly prejudicial).
Peppers next challenges the gang affiliation evidénce in this case as forbidden res gestae. Peppers cites State v. Ventris, 289 Kan. 314, 315, 212 P.3d 162 (2009), which, in turn, relied upon our decision in State v. Gunby, 282 Kan. 39, 59-63, 144 P.3d 647 (2006), for tire statement that “res gestae is no longer a valid independent legal basis for admitting evidence.”
Peppers over-reads Gunby, and therefore Ventris.
In Gunby, this court departed from its previous practice of employing res gestae to circumvent the rules for admission of other crimes and civil wrongs evidence under K.S.A. 60-455 as well as the prohibition on hearsay. With regard to evidence of other crimes and civil wrongs, we said: “Having explained the correct intexpre-tation of K.S.A. 60-455, we . . . reject res gestae as a legitimate independent basis for the admission of other crimes and civil wrongs evidence in Kansas. Any other crimes and civil wrongs evidence that may be characterized as res gestae should henceforth be analyzed under K.S.A. 60-455.” 282 Kan. at 59-60. More generally, Gunby stands for the principle that the admission of res gestae evidence should be governed by the same rules of evidence controlling admission of other evidence: “The concept of res gestae is dead as an independent basis for admissibility of evidence in Kansas. That evidence may be part of the res gestae of a crime demonstrates relevance. But that relevance must still be measured against any applicable exclusionary rules.” 282 Kan. at 63; see Ventris, 289 Kan. at 315.
Peppers extrapolates from Gunby that the admission of gang affiliation evidence to explain events surrounding the commission of a crime violates this court’s prohibition on res gestae. This is incorrect. Our decision in Gunby eliminated res gestae as an independent basis for the admission of evidence. It did not eliminate the admission of evidence of events surrounding a commission of the crime under the applicable rules of evidence. In fact, as noted by the State, this court has determined that gang-related evidence can be admissible when the evidence “forms a part of the events surrounding the commission of the crime” in post-Gunby cases. See Brown, 285 Kan. at 297 (citing Goodson, 281 Kan. at 922); see also Tatum, 281 Kan. at 1109; Winston, 281 Kan. at 1135.
Peppers next challenges the district judge’s determination that the gang affiliation evidence was relevant, i.e., both material and probative. He relies on statements in earlier cases that suggest admissible gang evidence is limited to certain categories. See, e.g., Goodson, 281 Kan. at 922-23 (“[G]ang evidence may be material, and, therefore, relevant when the evidence provides a motive for an otherwise inexplicable act, forms a part of the events surrounding the commission of the crime, or shows witness bias.”). Again, we have been misunderstood. Although certain of our earlier cases on gang evidence arose in particular circumstances, a list of those circumstances does not exhaust the possibilities when gang evidence is relevant and permissible. See Brown, 285 Kan. at 297-300.
In Peppers’ case, the district judge determined that the gang affiliation evidence provided a reason for the proposed meeting between Peppers and Hayes-Osby and provided an alternative motive for die shooting. The district judge later reiterated diat the gang affiliation evidence was admissible because it “showed motive” and because “it formed parts of the events surrounding the commission of the crime.”
The district judge correctly determined that the gang affiliation evidence was material. Because Peppers defended only by holding the State to its high burden of proof beyond a reasonable doubt, as a matter of law, Peppers’ identity and opportunity and motive had a “ legitimate and effective bearing on the decision of the case’ ” and were in dispute. See Reid, 286 Kan. at 505 (quoting Garcia, 285 Kan. at 14), 507 (motive per se material fact); see also State v. Carapezza, 286 Kan. 992, 999, 191 P.3d 256 (2008) (State may admit evidence of motive even though motive not element of offense).
We also see no abuse of discretion in the district judge’s determination that the gang affiliation evidence was probative. Gang affiliation, hierarchy, and rules explained why Cunningham, Hayes-Osby, and Peppers ended up outside of Terry’s simultaneously. Hayes-Osby had agreed to meet Peppers there because Peppers knew that Hayes-Osby had killed Harness. Hayes-Osby also knew that gang protocol made him subject to sanctions for the killing, to be decided by Peppers as chief of the TVLs. The necessity of the meeting arose out of gang life, and it was probative of Peppers’ identity and opportunity to shoot at Hayes-Osby and the person with him, Cunningham. Gang rule enforcement or retaliation also provided potential explanation for why Peppers, in particular, would shoot Hayes-Osby and Cunningham, i.e., it demonstrates motive. This conclusion is consistent with several cases from this court in which we explained that gang evidence may be admissible if it is relevant to motive. See, e.g., Brown, 285 Kan. at 266; Conway, 284 Kan. at 50-51; Tatum, 281 Kan. at 1108-09; Winston, 281 Kan. at 1129; Lowe, 276 Kan. at 963; Gholston, 272 Kan. at 614-15. Peppers argues that the evidence supported another motive— the close friendship between Peppers and Harness and thus Peppers’ compulsion to avenge his friend’s murder — which means the crimes were not “otherwise inexplicable.” See Gholston, 272 Kan. at 615. Again, gang evidence need not fall into specific categories that happened to arise in previous cases in order to be relevant and admissible. The probative value of the gang evidence admitted here for the motive advanced under the State’s theory was not lessened or erased by its probative value for the motive under an alternate theory. Evidence can be relevant to establish motive even if more titan one theory or motive is presented. State v. Hughes, 286 Kan. 1010, 1022, 191 P.3d 268 (2008).
The record before us also demonstrates that the shootings were gang-related. Despite Hayes-Osby s effort to distance himself from die term “gang,” he admitted that the shootings were related to the “associations” he described. Hayes-Osby’s testimony revealed that he was a member of the Solids 4, which associated with the TVLs. Peppers was the “chief’ of the TVLs, while Harness was a member. Hayes-Osby also testified that Harness owed him money and crack cocaine, which he had attempted unsuccessfully to collect through Harness’ superior, Peppers. Even if Peppers had determined that Hayes-Osby would receive a punishment for killing Harness other than summary execution, other testimony by Hayes-Osby demonstrated that the punishment for certain other gang violations carried a penalty of death.
We now turn to the final step in the analysis of the admission of gang affiliation evidence or, for that matter, any evidence: undue prejudice.
The probative value of gang affiliation evidence must be weighed against its potential for prejudice. K.S.A. 60-445; Shadden, 290 Kan. at 817-18. “[T]he prejudicial effect of such evidence may be cured by a limiting jury instruction,” although a district court is not required to sua sponte give a limiting instruction on gang affiliation evidence. Brown, 285 Kan. at 300 (citing Ross, 280 Kan. at 887-88; Conway, 284 Kan. at 51). The giving of a limiting instruction in the context of gang affiliation evidence is “one of many factors,” not the sole factor, that a court ought to consider in determining prejudice. Conway, 284 Kan. at 47-48 (discussing Ross, 280 Kan. at 888). A district judge’s balancing of probative value and prejudice is reviewed for an abuse of discretion. Shadden, 290 Kan. 817-18.
Here, the prejudicial effect of the gang evidence was limited by the district judge’s jury instruction. The court instructed the jury not to consider the gang affiliation evidence to prove “that [Peppers] is a person of bad character or that [Peppers] has a disposition to commit crimes” and instead to consider the evidence “only for the purpose of determining if it tends to show part of the events surrounding the commission of the crime or die motive of the person who committed the crimes, if any, of which the defendant is accused.” “The district judge’s . . . admonition to the jury emphasized the legitimate purpose of the admission.” State v. Race, 293 Kan. 69, 77, 259 P.3d 707 (2011). This court “generally presume^] jurors follow the instructions given them in the district court.” Race, 293 Kan. at 77 (citing State v. Becker, 290 Kan. 842, 856, 235 P.3d 424 [2010]).
Assuming that the juiy properly followed the judge’s instructions in this case, tire risk of undue prejudice was greatly reduced. And the probative value side of the balance on the gang affiliation evidence had substantial weight. The evidence supported Peppers’ identity and opportunity by tying him to the scene of the crime and supported at least one of his possible motives. The district judge did not abuse her discretion by admitting the gang evidence with a limiting instruction.
Content of Limiting Instruction on Gang Affiliation Evidence
“[A]bsent a request for a limiting instruction concerning gang evidence and absent any objection for the failure to give a limiting instruction on gang evidence, a trial court is not obligated to give such an instruction.” Conway, 284 Kan. at 50. If a party objects to an instruction at trial,
“ ‘the instruction will be examined on appeal to determine if it properly and fairly states the law as applied to the facts of the case and could not have reasonably misled the jury. In making this determination an appellate court is required to consider the instructions as a whole and not isolate any one instruction.’ State v. Appleby, 289 Kan. 1017, 1059, 221 P.3d 525 (2009).” State v. Bailey, 292 Kan. 449, 455, 255 P.3d 19 (2011).
Peppers objected to the limiting instruction on gang evidence because of its language permitting consideration “for the purpose of determining if it tends to show part of the events surrounding the commission of the crime.” Peppers repeats his argument on appeal that “this is essentially the definition of ‘res gestae’ ” and, therefore, the instruction did not “ ‘properly and fairly’ state the law.” Peppers also argues that “because the phrase ‘to show part of the events surrounding the commission of the crime’ is incredibly broad and extremely vague, the instruction likely misled the jury.”
As addressed in the preceding section, Peppers’ res gestae objection is without merit. Although the instruction’s wording could have been smoother, it was not incorrect or misleading. We applaud the district judge’s effort to contain undue prejudice and see no error when the instruction is read in the context of this case.
Instruction that Another Trial Would he a Burden on Both Sides
Including the language “another trial would be a burden on both sides” in an Allen-type instruction constitutes error, because the language is misleading, inaccurate, and confusing, State v. Salts, 288 Kan. 263, 266, 200 P.3d 464 (2009), and Peppers argues that his conviction should be reversed because “the evidence against [him] was hardly overwhelming, and the erroneous instruction veiy likely had an impact on the jury’s verdict.”
But a defendant cannot challenge an instruction, even as clearly erroneous under K.S.A. 22-3414(3), when there has been on-the-record agreement to the wording of the instruction at trial. See, e.g., State v. Angelo, 287 Kan. 262, 278-79, 197 P.3d 337 (2008). The defendant has invited the error and cannot complain. State v. Adams, 292 Kan. 151, 164, 254 P.3d 515 (2011) (citing State v. Cramer, 17 Kan. App. 2d 623, 632-33, 841 P.2d 1111 [1992]).
Peppers cannot complain in this case because the district judge explicitly stated that she would not give the instruction if either side objected. After reviewing the instruction, Peppers’ counsel stated that counsel had no objection to the giving of the instruction. This on-the-record agreement to the wording of the instruction was invited error, and we need not further analyze Peppers’ argument on this issue.
Prosecutorial Misconduct During Closing Argument
Peppers’ last challenge to his convictions concerns several instances of what he believes to have been prosecutorial misconduct during closing argument.
“[A]n objection is not required for alleged prosecutorial misconduct during opening and closing argument.” State v. Miller, 293 Kan. 535, 550, 264 P.3d 461 (2011). Claims of prosecutorial misconduct are analyzed under a familiar two-step analysis. Miller, 293 Kan. at 550.
“First, the appellate court decides whether the remarks were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, if misconduct is found, the appellate court must determine whether the improper remarks prejudiced the juiy against the defendant and denied the defendant a fair trial. State v. Adams, 292 Kan. 60, 6667, 253 P.3d 5 (2011); State v. Huerta-Alvarez, 291 Kan. 247, 261, 243 P.3d 326 (2010); State v. McReynolds, 288 Kan. 318, 323, 202 P.3d 658 (2009).” Miller, 293 Kan. at 550.
Peppers argues that the State committed prosecutorial misconduct during its closing argument by: (1) commenting on facts not in evidence; (2) endorsing the credibility of Hayes-Osby; (3) attempting to shift the burden of proof to Peppers; and (4) expressing the prosecutor s personal opinion of Peppers’ guilt. Peppers argues that the comments by the prosecutor were outside the latitude given a prosecutor in discussing the evidence and constituted plain error entitling him to reversal.
1. Comments on Facts Not in Evidence
Prosecutors are prohibited from arguing facts not in evidence, but they are given wide latitude during closing argument to argue reasonable inferences based on the evidence presented at trial. State v. Tahah, 293 Kan. 267, 277, 262 P. 3d 1045 (2011) (citing State v. Richmond, 289 Kan. 419, 440-41, 212 P.3d 165 [2009]; State v. Pabst, 268 Kan. 501, 507, 996 P.2d 321 [2000]). Prosecutors also are given a certain amount of leeway when responding to defense counsel statements or arguments. See, e.g., Miller, 293 Kan. at 551 (court “may consider whether the prosecutor’s remark is . . . made in response to defense counsel’s remarks”); State v. Anthony, 282 Kan. 201, 212, 145 P.3d 1 (2006) (prosecutor’s remarks permissible because “the analogy was responsive to the defense argument regarding the thoroughness of the investigation of this crime”).
Peppers argues the prosecutor twice commented inappropriately on facts not in evidence. The first statement was:
“If it was in the Topeka Capital-Journal back in ‘07, we would have seen a copy of it. That information wasn’t out there, Ladies and Gentlemen. What else did tire defendant tell Mr. Kelley? Two dudes I jumped on, shot 'em. Two. One dead, one alive. They couldn’t get out because of the position they were in. Well, what do you think that meant? I thought they were in some sort of cul-de-sac, like they were in a car and they were pinned in and that’s why we shot them up that way. Well, guess what? They were pinned in. They were in a car facing a brick wall. Where would he have gotten that information? Where would he have gotten any of that information? What’s the most logical, reasonable source? The person he’s in that jail with, the defendant, in Florence, Colorado.”
At trial, Kelley testified that Peppers told him about the shooting while they were incarcerated together in Colorado. Kelley testified that he had no connection to the state of Kansas. Specifically, Kelley testified that he did not read Kansas newspapers, watch Kansas television, or watch Kansas news. Kelley said that he knew “a few” people from Kansas while he was incarcerated, but none of them ever mentioned any crime occurring in Topeka. He reaffirmed on cross-examination that the only information he knew about Kansas he got from Peppers. Kelley denied that he could have gotten the information from a newspaper.
Peppers is correct that the State did not show at trial that the information regarding the homicide “wasn’t out there” in the Topeka Capital-Journal in 2007. But Kelley did testify extensively that Peppers was the source of his information, not any Kansas news outlet. The prosecutor made the comment during his explanation of the “logical source” of Kelley’s information about the crime. Taken in context, the comment can fairly be considered an “argument that includes reasonable inferences based on the evidence adduced at trial.” Tahah, 293 Kan. at 277. The prosecutor did not exceed the wide latitude afforded him in discussing the evidence.
The second statement about which Peppers objects was:
“Unless you are to believe that somehow there is this conspiracy that law enforcement, the district attorney’s office or someone is telling [the State’s witnesses], well, that’s all well and good but you need to say it was Antwan Peppers, that’s what we really need. That would be a terrible thing if law enforcement was doing that. That would be a terrible tiring if the district attorney’s office did that.
“Is that what happened here? Do you believe that law enforcement and die DA’s office took Ms. Stano, Ms. Lewis, Mr. White, and told them say it’s Antwan for us. We need that because we really want him. Is that what you truly believe took place in this courtroom over tire last nine days? No, that’s not what happened”
Before this statement by tire prosecutor, Peppers’ counsel had argued that tire police had “fail[ed] to do their job” and that they did not conduct “a thorough investigation,” which resulted in “an innocent person” being charged and tried. Peppers’ counsel also had argued extensively that the State’s witnesses were not credible. Peppers’ counsel had not explicitly argued that there was a law enforcement conspiracy.
We read defense counsel’s precipitating argument to suggest incompetence more than malfeasance on the part of police and prosecutors, as well as an unsurprising challenge to obvious Achilles’ heels of the State’s witnesses. And the prosecutor may have overreacted slightly by denying any nefarious plot to convict Peppers. But the denial was exceptionally brief, actually only a five-word reassurance after setting out a series of questions he could appropriately encourage jurors to ask themselves. In essence, this passage in the prosecutor’s argument boiled down to an assertion that multiple largely consistent versions of events, even from less than solid-gold witnesses, should lead to conviction, not to a conspiracy theory. His skepticism countered defense counsel’s, and it did not qualify as misconduct.
2. Endorsement of Hayes-Osby’s Credibility
Peppers also argues that the prosecutor impermissibly commented on the credibility of Hayes-Osby.
“Generally, prosecutors cannot offer juries their personal opinions on the credibility of witnesses. State v. Stone, 291 Kan. 13, 19, 237 P.3d 1229 (2010). We prohibit the prosecutor from expressing personal opinions on the credibility of a witness because such comments are unsworn, unchecked testimony, not commentary on the evidence of the case.’ State v. Pabst, 268 Kan. 501, 510, 996 P.2d 321 (2000).” State v. Duong, 292 Kan. 824, 830, 257 P.3d 309 (2011).
But mere reference to the terms of a witness’ plea agreement does not constitute misconduct. See State v. Kraus, 271 Kan. 810, 821- 22, 26 P.3d 636 (2001); State v. Edwards, 39 Kan. App. 2d 300, 310-11, 179 P.3d 472, rev. denied 286 Kan. 1181 (2008).
Here the prosecutor said:
“You have got to step up, you have got to swear under oath and, yes, you are going to be 15 feet away from that man and you have got to do it. What is it? It is tell the truth. Whatever that is. The only way he gets the benefit of the bargain, the reduction of 75 months[] recommendation, the only way is to speak the truth when he takes the stand. That’s it. Whatever the truth was.”
In this passage the prosecutor did not impermissibly give his personal opinion of Hayes-Osby’s credibility. Rather, the prosecutor referred to the terms of the plea agreement mentioned during the testimony and said twice that the agreement required Hayes-Osby to tell the truth “whatever that was.” The prosecutor did not tell the jury what the truth was or characterize Hayes-Osby’s degree of success in abiding by the agreement’s terms. In addition, we note that, at another point during closing argument, the prosecutor emphasized to the juiy: “[Y]ou are the one that judges credibility, not me and most certainly not [Peppers’ counsel]. You do and that’s why the whole transcript has been admitted for you to consider.” Again, we see no misconduct in the prosecutor’s discussion of Hayes-Osby’s plea agreement.
3. Attempting to Shift the Burden of Proof
Peppers next argues that the prosecutor impermissibly attempted to shift the burden of proof to the defense.
“Kansas courts deem it Improper for the prosecutor to attempt to shift the burden of proof to the defendant or to misstate the legal standard of the burden of proof.’ [Citation omitted.] But we grant prosecutors considerable latitude to address the weaknesses of the defense. [Citations omitted.]” Duong, 292 Kan. at 832. Moreover, this court “may consider whether the prosecutor’s remark is ... made in response to defense counsel’s remarks.” Miller, 293 Kan. at 551. The prosecutor’s comment must be evaluated in context and can be mitigated by juiy instructions regarding the burden of proof. State v. Cosby, 293 Kan. 121, 137, 262 P.3d 285 (2011). When a prosecutor’s comment “constitute^] only a general question about the absence of evidence to rebut the State’s wit nesses . . . not an impermissible remark about the defendant’s failure to testily or an attempt to shift the burden of proof to the defense,” the comment is within the wide latitude afforded to the prosecution. 293 Kan. at 136 (citing State v. McKinney, 272 Kan. 331, 346, 33 P.3d 234 [2001], overruled on other grounds by State v. Davis, 283 Kan. 569, 158 P.3d 317 [2006]); see also Duong, 292 Kan. at 833 (“[I]n this case, we read the statements at issue as mere comment on the weakness of Duong’s defense.”).
Here the prosecutor stated:
“Now, like I told you before and I think I have been consistent through the trial all the way through the trial, the people that witnessed this crime, the people we presented for your consideration are who they are. There’s no doubt about it. Ms. Lewis was a drug addict. Is she now? I don’t know. She was then. She was in the alley buying crack. Ms. Stano, same thing. They are who they are.
“But I think [Peppers’ counsel] misses the point. The point is is there any evidence otherwise that tells you something different about what Mr. Hayes told you happened!?] Now these people given who they are could have said something else. They could have said no, it’s not this guy. They could have said another name, but they didn’t.”
This passage in the prosecutor’s argument came after Pepper’s counsel had urged the jury to tell the State:
“We want better evidence than from people like Terrell Iiayes-Osby. We want better evidence than from people like a jailhouse snitch. We want more credible evidence than from people like Latiseia Stano and Stacey Lewis. Tell him in the best way you can, tell him in the best way that our system allows, tell him with pride and tell him with integrity, not guilty.”
When read in context, we again see no misconduct in the prosecutor’s comment. The prosecutor needed to acknowledge weaknesses in his own case, which he did, and he did not call upon Peppers to present specific evidence, such as his own testimony, or to contradict the evidence presented by the State. Rather, the prosecutor pointed out that the State’s witnesses, such as they were, said nothing to contradict Hayes-Osby version of events. See Cosby, 293 Kan. at 136. We also note that the jury was correctly instructed: “[T]he State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty.” We conclude that the prosecutor permissibly “argue[d] inferences based on the balance or lack of evidence.” 293 Kan. at 136 (citing McKinney, 272 Kan. at 346).
4. Expressions of Personal Opinion About Peppers’ Guilt
Peppers argues that the prosecutor committed misconduct twice by giving a personal opinion about Peppers’ guilt.
“Prosecutors must not state a personal opinion regarding the ultimate guilt or innocence of the defendant. The reason for prohibiting prosecutors from commenting on their opinion of the defendant’s guilt is that such expressions of personal opinion are a form of unsworn, unchecked testimony, not commentary on the evidence of the case.” State v. Corbett, 281 Kan. 294, 315, 130 P.3d 1179 (2006).
See also State v. Hall, 292 Kan. 841, 852, 257 P.3d 272 (2011); State v. Gonzalez, 290 Kan. 747, 766, 234 P.3d 1 (2010); State v. Miller, 284 Kan. 682, 717, 163 P.3d 267 (2007). But this court has allowed a “directional” statement by a prosecutor that can “best be characterized” as serving “as an opening for the prosecutor’s upcoming summation of the evidence.” State v. Mann, 274 Kan. 670, 689, 56 P.3d 212 (2002). This court also has stated that a “prosecutor’s comments asking the jury not to let the defendant get away with the crime is in most instances permissible comment.” State v. Finley, 273 Kan. 237, 244-45, 42 P.3d 723 (2002) (citing State v. Cravatt, 267 Kan. 314, 332, 979 P.2d 679 [1999]).
The first statement Peppers challenges as an expression of personal opinion about guilt was:
“Now, when [Peppers’ counsel] finishes up, I’m going to have an opportunity to come talk to you again and when I do, I’m going to ask that you find this defendant, Antwan Peppers, guilty of murder in the first degree and guilty of attempted murder in the first degree. Why? Because he did it.”
Second, Peppers objects to the prosecutor’s statement during the second segment of his closing argument:
"When you come back in after your deliberation after reviewing the evidence, you need to come in, you need to look at the defendant, and you need to tell him he’s guilty and you need to look him in the eye and say you are guilty of murder and you are guilty of attempted murder because he is.”
It is permissible for a prosecutor to argue that the evidence demonstrates a defendant’s guilt. For example, in Mann, 274 Kan. at 688-89, we approved of a prosecutor s statement near the beginning of closing argument that “[t]he [S]tate believes that [the victim] was killed with premeditation intentionally, first degree, and this is why,” which led into discussion of the evidence pointing to guilt. State v. Bennington, 293 Kan. 503, 530-31, 264 P.3d 440 (2011) (prosecutors statement — “That’s what he did” — did not exceed wide latitude afforded prosecutor — when the prosecutor “relating the facts” to elements of crime). It is necessary, however, for a prosecutor to say something akin to “the evidence shows defendant’s guilt” in order to make a statement merely directional and not an expression of the prosecutor’s personal opinion.
The prosecutor failed to include any directional language in this case, and we, therefore, hold that the two comments challenged by Peppers strayed into impermissible expressions of prosecutor’s personal opinion on Peppers’ guilt. This was misconduct and must be evaluated for plain error necessitating, reversal.
Under the second step of the prosecutorial misconduct analysis, this court must consider whether the remarks prejudiced the juiy against Peppers and denied him of a fair trial. Three questions guide our analysis: Was the misconduct gross and flagrant? Does the misconduct show ill will? Was there a reasonable possibility that the misconduct affected the verdict? See State v. Chanthaseng, 293 Kan. 140, 148, 261 P.3d 889 (2011).
“In assessing whether gross and flagrant conduct has occurred, appeHate courts should look to whether the prosecutor ‘ “repeated or emphasized the misconduct.” ’ State v. Simmons, 292 Kan. 406, 417-18, 254 P.3d 97 (2011) (quoting State v. Madkins, 42 Kan. App. 2d 955, 961, 219 P.3d 831 [2009]). Similarly, a prosecutor’s ill will is usually ‘reflected through deliberate and repeated misconduct or indifference to a court’s rulings.’ Madkins, 42 Kan. App. 2d 955, 961, 219 P.3d 831 (citing State v. Bunyard, 281 Kan. 392, 407, 133 P.3d 14 [2006]).” Chanthaseng, 293 Kan. at 148-49.
“Gross and flagrant” conduct may also be demonstrated by “an accumulation of comments that would not individually be cause for reversal.” Miller, 284 Kan. at 719. Ill will may be found “when the prosecutor’s comments were ‘intentional and not done in good faith.’ [Citation omitted.]” 284 Kan. at 719.
Peppers argues that the prosecutor s misconduct in this case was repeated and that it violated the district judge’s pretrial order in limine. In Peppers’ view, this demonstrates that the improper comments by the prosecuting attorney were both gross and flagrant and the product of ill will.
We disagree with these answers to the first two questions. The two comments were very brief and virtually identical. When seen as the minor component of argument that they were, they do not evidence indifference to the district judge’s limine ruling. This is not a situation in which a prosecutor persisted in bad behavior after being warned or admonished contemporaneously by the trial judge. See, e.g., Inkelaar, 293 Kan. at 430 (quoting Madkins, 42 Kan. App. 2d at 961) (“a prosecutor’s ill will is usually ‘reflected through deliberate and repeated misconduct or indifference to a court’s rulings’ ”).
The remaining question is whether the State has demonstrated that “there is no reasonable .possibility that the error affected [the defendant’s] substantial rights, i.e., that there is no reasonable possibility the error affected the verdict.” Chanthaseng, 293 Kan. at 149. Peppers argues that the evidence was not direct and overwhelming because “the State had no physical evidence that linked Mr. Peppers to the crime, and the witnesses who testified against Mr. Peppers were hardly credible.”
Although it is true that there was no physical evidence against Peppers, there was ample direct and circumstantial evidence in the form of eyewitness accounts that included multiple identifications and a detailed explanation of his possible motive. There was corroboration of Hayes-Osby’s description of telephone calls and Kelley’s account of Peppers’ self-incrimination. We do not re-evaluate credibility a jury has already determined. See State v. Ward, 292 Kan. 541, 543, Syl. ¶ 12, 256 P.3d 801 (2011).
The relative weakness of Peppers’ allegations of prosecutorial misconduct, combined with the cumulative magnitude of the evidence presented against him at trial, persuades us that there is no reasonable possibility the prosecutor’s expressions of personal opinion about Peppers’ guilt affected the juiy’s verdict. Chanthaseng, 293 Kan. at 149-50.
Conclusion
None of the arguments advanced by defendant Antwan T. Peppers entitles him to reversal of his convictions for first-degree premeditated murder or for attempted first-degree murder or to vacation of his consecutive hard 50 life sentence and 272-month term of imprisonment. The judgment of the district court is therefore affirmed. | [
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The opinion of the court was delivered by
Luckert, J.:
This case arose as an interpleader action to settle the rights to one-half of a brokerage commission resulting from a residential real estate transaction. Reece & Nichols Realtors, Inc. (RAN), the listing broker, refused to split the brokerage commission with Patrick E. McGrath, who acted as the broker for the buyer. McGrath is a licensed Kansas attorney but is not licensed under the Kansas Real Estate Brokers’ and Salespersons’ License Act (KREBSLA), K.S.A. 58-3034 et seq. RAN contended it is statutorily prohibited from paying a commission to any person not licensed under the KREBSLA. McGrath, on the other hand, maintained that, as an attorney, he is exempt from the requirements of the KREBSLA. Both parties filed summary judgment motions arguing their respective positions. The district court granted RAN’s motion for summary judgment, and McGrath appeals.
We affirm, holding that an attorney is exempt from the provisions of the KREBSLA, including the prohibition in K.S.A. 2011 Supp. 58-3062(a)(10) against splitting a fee with a nonlicensee, only to the extent he or she is performing activities that are encompassed within or incidental to the practice of law, are within the context of an attorney-client relationship, and are consistent with the attorney’s professional duties. This attorney exemption does not create an exception to the commission-splitting prohibition of KREBSLA because: (1) a brokerage commission is earned by producing a ready and willing buyer or seller and not by primarily performing services encompassed within the practice of law and (2) splitting a brokerage commission is inconsistent with several provisions of the Kansas Rules of Professional Conduct governing attorneys and, therefore, is inconsistent with an attorney’s professional duties. Consequently, an attorney who is not licensed under the KREBSLA cannot share in a real estate brokerage commission.
Facts and Procedural Background
RAN’s and McGrath’s motions for summary judgment were based on the following joint stipulation of facts:
“1. This case began as an interpleader action filed by Plaintiff Stewart Title... . As a title company, it held in escrow a portion of a commission earned in a residential real estate contract in tire sum of $13,802.91 (the ‘Funds’).
“2. The Funds represent one-half of the commission paid by Defendant J-Right, Inc. (‘J-Right’) on the sale of a lot and residence to Gregory J. Lausier (‘Lausier’). The property is located at 21311W. 96th Terrace, Lenexa, Kansas (the ‘Property’).
“3. The total commission, or six percent (6%) of the Property’s sales price, was calculated pursuant to the terms of an Exclusive Right to Sell Contract (the ‘Listing Agreement’) and was $27,605.82. The Listing Agreement is attached as Exhibit 1 and incorporated by reference.”
The Listing Agreement states, in part:
‘‘a) Seller agrees to pay Reece & Nichols Realtors a Broker’s Administrative Commission of $175.00 and a sales commission of 6% of the selling price. . . . The commission is due and payable if BROKER or anyone else, including SELLER, produces or finds a purchaser ready, willing, and able to purchase the Property at the price and terms offered now or at the price and terms acceptable to SELLER at a later date. Seller authorizes the payment of the commission to BROKER from SELLER’S proceeds at closing.
“b) BROKER shall offer a commission split of 3% listing side and 3% selling side.”
RAN and McGrath further stipulated:
“4. The full amount of the commission was paid to Stewart Title for distribution in accordance with the real estate transaction documents and Kansas law.
“5. As the listing broker, RAN was paid one-half of the commission or $13,802.91. RAN objected to the release of the remaining commission to McGrath and it was held by Stewart Title.”
In June 2007, Stewart Title of the Midwest, Inc., d/b/a Stewart Title of Kansas City (Stewart Title) filed in district court an inter-pleader action asking tire court to require McGrath and RAN to be interpleaded in the action and to settle the rights to the funds. The district court ordered Stewart Title to deposit the funds with the clerk of tire district court. The order stated:
“6. Stewart Title has paid the Funds into Court. See Journal Entry filed June 29, 2007.
“7. Following the deposit of the Funds, Plaintiff Stewart Title was dismissed. Defendant J-Right has also been dismissed from this action. Defendant McGrath and Defendant RAN are the only remaining parties.
“8. Both Defendant McGrath and Defendant RAN claim a right to the Funds.”
The parties’ joint stipulation then set out the legal basis for each party’s claim to the funds and their agreements about how the case should be resolved depending on which legal argument was accepted by the district court. Specifically, the parties stipulated:
“13. In tire event that KREBSLA does not preclude RAN from paying the commission to McGrath, then RAN admits that McGrath is entitled to the funds held by tire Court in full satisfaction of tire commission due and owing for his services as a buyer’s agent.
“14. In the event that KREBSLA does preclude RAN from paying tire remaining commission to McGrath, dren McGraÜr admits that RAN is entided to the funds held by the Court in full satisfaction of tire commission due and owing under tire Listing Agreement.
“16. McGradr is an attorney licensed to practice in tire State of Kansas. For the purposes of this case, McGrath acted as an agent for Lausier and rendered legal professional duties and services as an attorney to Lausier (said legal professional duties and services included negotiating and contracting for the purchase and construction of Lausier’s new home; as well as tire rendition of professional services requiring tire knowledge and application of legal principles and technique to serve tire interests of'Lausier at Lausier’s request). McGrath and Lausier had an attorney-client relationship and it was contemplated between McGrath and Lau-sier that McGrath’s professional services would be compensated solely out of tire 3% commission. Lausier is, and has always been, extremely satisfied with the services McGrath provided with respect to this real estate transaction.
“17. RAN’s only objection to paying McGrath the 3% commission at issue in this case is that RAN believes it is barred from doing so under KREBSLA.”
The district court adopted the parties’ Joint Stipulation of Facts. The court noted that prior to McGrath’s involvement in the transaction, RAN was already acting as the listing broker for the property; thus, McGrath was aware that a brokerage was involved in the real estate transaction. The court found the attorney exemption contained in K.S.A. 2011 Supp. 58-3037(c) is limited to those professional activities that are encompassed within and incidental to the practice of law in the context of an attorney-client relationship. The court ruled that this limited exception does not permit McGrath to act as a “ licensed real estate agent’ ” thereby entitling him to a commission.
The district court also found that the language of K.S.A. 2011 Supp. 58-3062(c)(l) clearly and unambiguously provides that RAN, as a broker, shall not pay a commission to a nonlicensee. Further, tire court quoted K.S.A. 2011 Supp. 58-3062(a)(10) and ruled: “There is nothing in the language of the KREBSLA that would exempt RAN from this requirement and permit it to pay a commission to a non-licensee regardless of whether the non-licensee is an attorney.” Accordingly, the court entered summary judgment in favor of RAN.
McGrath timely appeals. This court transferred the appeal from the Court of Appeals pursuant to K.S.A. 20-3018(c).
Standard of Review
This court has de novo review of cases decided on the basis of documents and stipulated facts. In re Trust D of Darby, 290 Kan. 785, 790, 234 P.3d 793 (2010); see Thomas v. Benchmark Ins. Co., 285 Kan. 918, 921, 179 P.3d 421 (2008) (appellate review of an order granting summary judgment is de novo where there is no factual dispute).
In addition, where the parties’ arguments require the interpretation of various statutes, this court has unlimited review. In re Trust D of Darby, 290 Kan. at 790. Interpretation of the KREBSLA is the focus of our analysis in this case. Our standards for interpreting statutes are well defined. The most fundamental rule is that the intent of the legislature governs if that intent can be ascertained. An appellate court must first attempt to derive legislative intent from the language of the statute, giving common words their ordinary meanings. When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it or ignore what was written by the legislature. Redd v. Kansas Truck Center, 291 Kan. 176, 188, 239 P.3d 66 (2010).
These rules must be applied to the various statutes within the KREBSLA that are the focus of the parties’ arguments. RAN focuses on the fee-splitting prohibitions under the KREBSLA, K.S.A. 2011 Supp. 58-3062(a)(10) and (c)(1), to argue it is absolutely prohibited from “paying a commission to any person not licensed under KREBSLA.” McGrath, on the other hand, focuses on K.S.A. 2011 Supp. 58-3037(c), which he argues absolutely exempts an attorney from tire provisions of the KREBSLA, including the fee- splitting prohibitions, or alternatively exempts him under the stipulated facts because he performed legal services for tire buyer Gregory Lausier.
Fee-Splitting Prohibitions
We begin our analysis with RAN’s contention that K.S.A. 2011 Supp. 58-3062(a)(10) and (c)(1) absolutely prohibit it from paying a commission or fee of any kind to anyone not licensed under the KREBSLA. In 58-3062, the legislature describes activities that are prohibited under the KREBSLA, with subparagraphs (a)(10) and (c)(1) being the portions that specifically address payment of commissions. Under the first of tírese two provisions, K.S.A. 2011 Supp. 58-3062(a)(10), no “licensee” shall “[p]ay a commission or compensation to any person, not licensed under the act, for performing any activity for which a license is required under this act.” The second provision, K.S.A. 2011 Supp. 58-3062(c)(l), provides that no “broker” shall “[p]ay a commission or compensation to any person for performing the services of an associate broker or salesperson unless such person is licensed under this act and employed by or associated with the broker.” A separate statute, K.S.A. 58-3065(a), provides that a violator of any provisions of the KREBSLA faces statutory penalties of fines or imprisonment.
In support of its argument that the KREBSLA absolutely prohibits fee splitting with a nonlicensee, RAN relies on Burchfield v. Markham, 156 Tex. 329, 294 S.W.2d 795 (1956). In Burchfield, the issue was whether tire Texas Real Estate Dealers License Act, Article 6573a, as it existed in 1951, prohibited payment of a real estate commission to a Texas attorney who did not have a real estate license. Section 20 of the Texas Act provided that it is “ ‘unlawful for any real estate dealer or salesman to... pay directly or indirectly any part or share of his commission or compensation arising or accruing from any real estate transaction to any person who is not a licensed dealer or salesman ....’” Burchfield, 156 Tex. at 332. The Texas court reasoned this wording was absolute, without exemptions or exceptions. Reconciling this provision with an attorney exemption similar to tire provision in Kansas, the Texas court concluded the attorney exemption meant only that an attorney did not need to have a real estate license to perform the same duties as would a real estate licensee. Nevertheless, because the fee-splitting prohibition was absolute, a real estate dealer or salesman could not pay an attorney any portion of the commission unless the attorney had a real estate license. Burchfield, 156 Tex. at 333.
RAN argues the same conclusion applies to the Kansas provisions, and the district court agreed. In making this argument, RAN ignores critical differences between the Texas and Kansas statutes. Specifically, in contrast to the Texas fee-splitting provision that applies to anyone who is not licensed under the act regardless of the iype of activity the person performs, both of tire Kansas fee-splitting provisions contain qualifying language that defines a limited group to whom tire provisions apply.
One of the Kansas provisions, K.S.A. 2011 Supp. 58-3062(c)(l), prohibits a broker from paying another “for performing the services of an associate broker or salesperson unless such person is licensed under this act and employed by or associated with the broker.” (Emphasis added.) The statutory definitions of “associate broker” and “salesperson" require the person to be employed by or associated with a broker and to have “participatefd] in any activity described in subsection (f),” which defines “broker” by, in part, listing activities a broker would perform. K.S.A. 2011 Supp. 58-3035(c), (f), (o).
RAN focuses solely on the “activity” component of this provision, discussing the nature of the services provided by McGrath. According to the stipulated facts, these services included “negotiating and contracting for the purchase and construction of Lau-sier’s new home; as well as the rendition of professional services requiring the knowledge and application of legal principles and technique to serve the interest of Lausier at Lausier s request.” Negotiating a contract is an activity listed in K.S.A. 2011 Supp. 58-3035(f)(3) as an activity a broker would perform. In other words, in order for K.S.A. 2011 Supp. 58-3062(c)(l) to be as broad as RAN argues, it would have to prohibit payment for any activity listed in subsection (f) of 58-3035 regardless of whether performed by a broker, associate broker, or a salesperson. Yet, the actual lan guage of 58-3062(c)(l) limits application to the services of an “associate broker or salesperson.”
Applying this provision to the facts of this case, nothing in the stipulated facts suggests McGrath was employed by or associated with anyone else who was acting as a broker; in other words, there is no suggestion that he functioned as an associate broker or a salesperson. Therefore, K.S.A. 2011 Supp. 58-3062(c)(l) does not apply in this case.
The second provision on which RAN relies is broader in scope but still contains a critical limitation not found in the Texas statute considered in Burchfield. This Kansas provision, K.S.A. 2011 Supp. 58-3062(a)(10), limits the prohibition against paying a commission to any person not licensed under the act to persons who are being paid “for performing any activity for which a license is required under this act.” (Emphasis added.) The activities for which a license is required are defined by K.S.A. 58-3036, which begins with the phrase “[ujnless exempt from this act under K.S.A. 58-3037.” Consequently, in contrast to the Texas statute, 58-3062(a)(10) does not absolutely prohibit splitting a fee with any nonlicensee and potentially allows payment of a commission if the nonlicensee’s activities are exempt from application of the KREBSLA.
Because McGrath relies on an exemption under 58-3037(c), this brings us to his argument.
Attorney Exemption
McGrath suggests our conclusion that there is not an absolute prohibition against sharing a commission would end the dispute between the parties because, he argues, RAN conceded in the stipulation of facts that the attorney exemption of K.S.A. 2011 Supp. 58-3037(c) applies if the fee-splitting provision is not absolute. We do not read RAN’s stipulation this broadly, however. RAN’s stipulation regarding McGrath’s right to receive a share of the commission was qualified, stating: “In the event that KREBSLA does not preclude RAN from paying the commission to McGrath, then RAN admits that McGrath is entitled to the funds held by the Court in full satisfaction of the commission due and owing for his services as a buyer’s agent.” This is not a stipulation that the KREBSLA allows payment of the commission to McGrath as the buyer s attorney; it limits the basis of the payment to the performance of services as a “buyer s agent.”
Yet, the attorney exemption does not refer to services as a buyer’s agent. Rather, the exemption provides: “The provisions of this act shall not apply to . . . (c) Services rendered by an attorney licensed to practice law in this state in performing such attorney’s professional duties as an attorney.” (Emphasis added.) K.S.A. 2011 Supp. 58-3037(c). Consequently, the stipulation does not answer the question of whether McGrath can receive a portion of his commission for his services as an attorney. Therefore, we must consider the parties’ arguments regarding the scope and application of the attorney exemption found in 58-3037(c).
In seeking application of the exemption, McGrath makes several arguments that we have organized into three categories. First, he maintains the attorney exemption is absolute. Second, he argues he is entitled to share in the brokerage commission even if the exemption is not absolute because he acted in his capacity as an attorney representing Lausier, not as a broker. Third, he makes a public policy argument as to why an attorney must be allowed to share in the commission.
Absolute Exemption
First, we consider McGrath’s argument that K.S.A. 2011 Supp. 58-3037(c) absolutely and unqualifiedly exempts attorneys from the KREBSLA and its fee-splitting prohibitions. If we accept this argument, an attorney could act in any capacity and perform any activity as a real estate broker without a license under the KREBSLA. Yet, 58-3062(a)(10) is phrased in terms of allowing payments for activities for which a license is required, not in terms of allowing payments to certain classifications of individuals, such as attorneys. Likewise, K.S.A. 2011 Supp. 58-3037 provides the KREBSLA “shall not apply to ... (c) [s]ervices” that are performed as the “professional duties as an attorney.” (Emphasis added.) This means that an attorney would have to have a real estate license to perform any services that are not encompassed within and incidental to the practice of law, are not within the context of an at torney-client relationship, and are not consistent with the attorney’s professional duties. The Court of Appeals appears to have recognized this limitation in In re Metcalf Assocs.-2000, 42 Kan. App. 2d 412, 213 P.3d 751 (2009), rev. denied 290 Kan. 1094 (2010).
In Metcalf Assocs.-2000, the question was whether an attorney could receive a finder’s fee as part of a real estate transaction under the exemption of 58-3037 even though the attorney was not a broker. The Court of Appeals did not answer the question because it determined it did not have jurisdiction over the attorney. Nevertheless, the court noted: “Arguably, . . . [the attorney] should not have been entitled to a finder’s fee simply because he is an attorney — his performance of professional duties as [an] attorney didn’t involve the task of finding a buyer.” Metcalf Assocs.-2000, 42 Kan. App. 2d at 428; see Kan. Att’y Gen. Op. No. 94-6 (concluding Kansas’ attorney exemption is limited to those professional activities that are encompassed within and incidental to the practice of law in the context of an attorney-client relationship).
Although not directly discussing Metcalf Assocs.-2000, McGrath argues for a different interpretation of the attorney exemption, one where there would not bé limitations on an attorney’s activities in a real estate transaction and an attorney would be allowed to receive a portion of the brokerage commission as a finder’s fee or for any other purpose. For support he cites this court’s decision in Lambertz v. Builders, Inc., 183 Kan. 602, 331 P.2d 559 (1958), and several out-of-state cases. These cases are distinguishable, however, because of differences between the language of the statutes at issue in those cases and the KREBSLA’s attorney exemption.
In Lambertz, the court considered an early version of the laws covering real estate licensees in Kansas. Lambertz brought suit for an alleged breach of contract by his employer, Builders. Lambertz was involved in Builders’ commercial real estate business, which included negotiating leases on Builders’ property. Lambertz alleged he had an oral contract to receive a commission on lease agreements that he negotiated. Builders denied the factual allegations and also argued Lambertz could not bring the suit because of a statute, G.S. 1949, 67-1019, which prohibited a person from bringing an action for compensation for real estate transactions without alleging and proving the person is a licensed real estate broker or salesperson. In response, Lambertz argued he did not have to be licensed because the real estate licensing act in effect at that time exempted real estate transactions made by the property owner or the owners employee when acting on behalf of the owner. See G.S. 1949, 67-1003. This court agreed with Lambertz, concluding he was not required to plead or prove that he was licensed under the act because tire services he performed fell within the exemption. Lambertz, 183 Kan. at 610.
According to McGrath, Lambertz stands for the proposition that “those specifically exempt from the statute can participate in real estate transactions and receive compensation.” While Lambertz can be read to stand for this principle, the holding is not directly applicable to the attorney exemption under K.S.A. 2011 Supp. 58-3037(c) because the statute does not provide that all activities performed by an attorney are exempt. Rather, as we have noted, under the clear terms of the provision, an attorney is exempt only to the extent he or she is “performing such attorney’s professional duties as an attorney.” K.S.A. 2011 Supp. 58-3037(c).
This limitation or qualification also distinguishes the KREBSLA attorney exemption from other state statutes that have been held to absolutely exempt an attorney from a state’s real estate licensure act regardless of the nature of the attorney’s activities. See, e.g., Weinblatt v. Parkway-St. Johns Place Corporation, 136 Misc. 743, 241 N.Y.S. 721 (1930) (section 442-f of the New York Real Property Law provided: “ ‘The provisions of this article shall not apply to . . . attorneys at law.’ ”); Kribbs v. Jackson, 387 Pa. 611, 620, 129 A.2d 490 (1957) (“Attorneys are specifically exempted from the requirements of the [Pennsylvania] Real Estate Brokers License Act.”); Elin v. Neal, 720 S.W.2d 224, 225-26 (Tex. App. 1986) (Texas Real Estate License Act, which states that “[t]he provisions of this Act shall not apply to ... an attorney at law licensed in this state,” “specifically and unequivocally” exempts attorneys from requirement that commission agreements be in writing); see also Atlantic Richfield Co. v. Sybert, 51 Md. App. 74, 83, 441 A.2d 1079 (1982) (statute exempts attorneys who do not regularly engage in real estate business or “ ‘hold themselves out by sign, advertisement or otherwise as offering to die general public die services authorized by this subtide to be performed by real estate brokers’ because attorney did not regularly engage in real estate business or hold himself out as a broker, he was entitled to standard real estate commission for procuring a willing buyer). But see Sherman v. Bruton, 497 S.W.2d 316, 321 (Tex. Civ. App. 1973) (neither cited by nor overruled in Elin, 720 S.W.2d 224; holding that critical phrase of exemption statute was “services rendered by an attorney of law” and that this phrase qualified the exemption as distinguished from the absolute exemption of prior version of statute at issue in Burchfield meaning exemption is not absolute and is limited to services rendered by a licensed attorney whose engagement for legal services has created the relationship of attorney and client).
In contrast to statutes that require only that an attorney have a law license in order to be exempt from real estate licensure requirements, K.S.A. 2011 Supp. 58-3037(c) requires an attorney, such as McGrath, to show that he or she was performing services consistent with his or her professional duties as an attorney to fall under tire KREBSLA exemption. Under this plain language, it is clear tire KREBSLA attorney exemption is not absolute.
Despite the limiting language in 58-3037(c), McGrath argues it was the “clear and unambiguous intent of the legislature” to exempt attorneys because there is no concern about dishonesty, fraud, or incompetence — which KREBSLA was created to prevent — because “attorneys, presumably, are better regulated than real estate salespersons.” See Furr v. Fonville Morisey Realty, Inc., 130 N.C. App. 541, 546-48, 503 S.E.2d 401 (1998) (splitting fee with a broker who is licensed in another state- does not violate the purpose of the real estate licensing act, which is to protect the public from fraud and abuse).
This argument is inconsistent with our rules of statutory interpretation. Under those rules, we give effect to the legislature’s express language. Only if the statute’s language or text is unclear or ambiguous does the court employ canons of construction, legislative history, or other background considerations to divine the leg islature’s intent and construe the statute accordingly. State v. Trautloff, 289 Kan. 793, 796, 217 P.3d 15 (2009).
Here, the express language is clear and unambiguous: K.S.A. 2011 Supp. 58-3037(c) does not allow an attorney to engage generally in the business of a real estate broker but does allow an attorney to perform some activities a broker would perform if the attorney s activities are encompassed within and incidental to the practice of law, are within the context of an attorney-client relationship, and are consistent with the attorney’s professional duties.
Professional Duties as an Attorney
This standard for application of the attorney exemption is consistent with and similar to the standard applied under many other states’ real estate licensing statutes. See, e.g., Spirito v. New Jersey Real Estate Comm’n., 180 N.J. Super. 180, 188-89, 434 A.2d 623 (1981) (attorney may perform some activities a broker would perform — such as negotiating a contract — if doing so is incidental to the practice of law and within the context of a relationship between an attorney and a client); Kan. Att’y Gen. Op. No. 94-6 (discussing and categorizing out-of-state cases and applying Spirito’s test to K.S.A. 58-3037[c]).
McGrath argues he met this standard because he provided legal services to Lausier within an attorney-client relationship. Consequently, he argues, his activities are exempt from the KREBSLA license requirement. Contrary to this argument, we conclude that most cases applying this standard do not support McGrath’s position and support a determination that, as a matter of law, McGrath is not entitled to share in the commission.
That does not mean there is no support for McGrath’s position. In applying a standard similar to that adopted in Spirito, at least one court has concluded an attorney is entitled to share in a broker’s commission. E.g., Lance v. Lyman, No. 549,853, 1999 WL 557968, at *1, *2 (Conn. Super. 1999) (unpublished opinion) (denying defendant’s motion to strike an attorney’s claim for enforcement of a cobrokerage real estate agreement allowing for split commissions because the attorney “allegedly performed [his] duties as such attomey-at-law” and consequently was exempt from the li- censure requirements and the restriction on his collection of a commission); cf. Queen of Angels Hospital v. Younger, 66 Cal. App. 3d 359, 136 Cal. Rptr. 36 (1977) (not dealing with split of commission but allowing attorney fees to be calculated as a percentage of lease income received by client and to be paid from that income even though attorney was not a licensed broker).
However, the prevailing view is that a buyer’s attorney cannot share in a commission with the seller’s broker. In essence, the courts adopting this prevailing view hold that fee-splitting is prohibited even if there is not a provision of the state’s real estate licensing act drat absolutely prohibits an attorney from splitting a brokerage commission. In other words, the attorney’s request to share in the brokerage commission survives a facial interpretation of the exemption statute but fails under an “as applied” interpretation of the exemption statute.
Often, as a starting point for analysis, courts note that the right to share in a commission originates in the contract between the seller and the seller’s broker; it is the seller who is obligated to pay the commission and the seller’s broker who agrees to split the commission. Many courts have found it significant that an attorney representing the buyer does not have an attorney-client relationship with or perform legal services for either the seller or the seller’s broker. On this basis alone, some courts have held that the buyer’s attorney is not entitled to share in the commission. E.g., Provisor v. Haas Realty, Inc., 256 Cal. App. 2d 850, 855-58, 64 Cal. Rptr. 509 (1967) (noting the attorney performed no legal services for seller’s broker; the only legal services were performed for the buyers); Tobin v. Courshon, 155 So. 2d 785, 785-87 (Fla. 1963) (locating properly for a client is not within tire “narrow avenue through which the lawyer, not licensed as a real estate broker or salesman, may enter the ambit of the real estate broker;” the court commented it was “unable logically to accept” the attempt of “so-called client” to avoid paying for legal services and instead “trying to fasten that obligation on the seller”); Krause v. Boraks, 341 Mich. 149, 155, 67 N.W.2d 202 (1954) (buyer’s attorney did not provide his cobroker with legal services; the only service tire attor ney provided to the seller and the seller’s broker was delivering willing buyers).
Implied in the rationale of these cases is a concept that is more extensively discussed in Sherman v. Bruton, 497 S.W.2d 316, 321 (Tex. Civ. App. 1973), and Matter of Roth, 120 N.J. 665, 667-69, 577 A.2d 490 (1990). These courts reason that the contractual trigger for earning a commission is producing a ready and willing buyer; in other words, the attorney is the procuring cause of the contract between the buyer and the seller. Consequently, it is this activity, which is primarily a broker’s service, that is the principal activity for earning a commission. These courts hold that any legal services are incidental to providing brokerage services, not vice versa.
For example, in the Texas case of Sherman, 497 S.W.2d at 321, tire court took a different view of the Texas attorney exemption than the one adopted by a different Court of Appeals panel in Elin, 720 S.W.2d at 226. As we have discussed, the Elin panel held that Texas attorney exemption was absolute. In contrast, the Sherman panel focused on the phrase “services rendered by an attorney at law” and noted that the phrase had not been included in the absolute exemption found in the earlier version of that statute, which was considered in Burchfield, 156 Tex. 329. The Sherman court accepted that “[i]f a lawyer is employed to render legal services, [the statute] exempts him . . . even though some of the services he renders as an attorney, such as negotiations for a sale or lease, would fall within the function of a real estate broker.” Sherman, 497 S.W.2d at 321-22. Even so, the court held an attorney, who was also a licensed real estate broker, could not circumvent a requirement in the real estate law requiring compensation contracts to be in writing by hiding behind the attorney exemption if the attorney primarily performed services as a broker and only incidentally provided legal services. Sherman, 497 S.W.2d at 322.
In reaching this conclusion, the Sherman court focused on the nature of the contract that allowed the attorney to earn the commission. According to the parties’ description of what the attorney was hired to do, the attorney was to “ ‘study the property and appraise it, expose it to the market, and find out the highest and best use and who wanted to pay the most money for it on a ground lease.’ ” Sherman, 497 S.W.2d at 318. In exchange for those services, the client agreed to pay the attorney a commission. In closing the deal, the attorney drafted lease proposals, but, the court noted: “This work was not done under any separate agreement for legal services for which a separate fee would be charged, but was incidental to plaintiff s efforts to secure a lease under the original indivisible contract of employment.” Sherman, 497 S.W.2d at 322. Because the attorney acted primarily as a broker and only incidentally as an attorney, the attorney’s compensation agreement had to be in writing under the Texas real estate licensing act and the attorney could not rely on the act’s attorney exemption to get around the requirement.
The New Jersey Supreme Court, in Roth, also noted that one earns a real estate commission by performing primarily brokerage services, meaning any legal services were subordinate to the brokerage services. Roth, 120 N.J. at 667-70. Roth is an attorney discipline case arising from an attorney’s attempt to share in a real estate commission and to have that share credited as a reduction in tire purchase price to the benefit of his client. The New Jersey Supreme Court concluded the attorney could not share in the commission. The court noted that for the New Jersey Real Estate Brokers and Salespersons Licensing Law’s exemption for “attorneys at law” to apply, an attorney not licensed as a broker must “confine any broker’s services to those that are obviously minor, incidental, ancillary, and subordinate to the legal services entailed in the client’s representation.” Roth, 120 N.J. at 672-73.
In determining if this test had been met, the Roth court found the manner of compensation to be highly relevant. The court noted die long-standing rule that a broker must be the efficient procuring cause of the contract between buyer and seller in order to receive a commission and concluded that a claim of entitlement to a commission is necessarily evidence of the performance of substantial brokerage services. Roth, 120 N.J. at 673. Thus, the court held:
“Common sense and ordinary experience tell us that an attorney who performs sufficient work as a broker to be entitled to a commission for tiróse services would not be acting as a broker in a manner only incidental to the normal practice of law. Conversely, an attorney performing brokerage services that are really only incidental to his or her work as a lawyer would not be entitled to a commission because . . . those incidental services would be substantially less significant than the ‘activities normally associated with a real estate broker.’ We therefore hold that an attorney whose actions as a broker are undertaken pursuant to the ‘attorney’ exemption to the licensing law, N.J.S.A. 45:15-4, may perform brokerage services that are only incidental to the normal practice of law, which cannot be the basis for a claim of compensation as a broker.” Roth, 120 N.J. at 673-74.
Similar to the New Jersey standard, this court has held that a real estate broker is entitled to a commission if he or she is “the efficient and procuring cause of a consummated sale.” Campbell-Leonard Realtors v. El Matador Apartment Co., 220 Kan. 659, Syl. ¶ 1, 556 P.2d 459 (1976). Given that test, the reasoning of the Roth court rings true. In fact, the Listing Agreement under which McGrath asserts his right to the real estate commission at issue in this appeal stated:
“a) Seller agrees to pay Reece & Nichols Realtors a Broker’s Administrative Commission of $175.00 and a sales commission of 6% of the selling price. . . . The commission is due and payable if BROKER or anyone else, including SELLER, produces or finds a purchaser ready, willing, and able to purchase the Property at the price and terms offered now or at the price and terms acceptable to SELLER at a later date. Seller authorizes the payment of the commission to BROKER from SELLER’S proceeds at closing.” (Emphasis added.)
Consequently, McGrath could have performed all manner and amounts of legal services, but he would not have been able to share in the commission if he had not produced a ready, willing, and able buyer. That action, not his providing legal services incidental to closing the sale, serves as the basis for claiming a right to split the brokerage commission with RAN. Yet, as our Court of Appeals noted in Metcalf Assocs.-2000, 42 Kan. App. 2d at 428, an attorney is not entitled to a finder’s fee because finding a property or a buyer for a property is not an activity that demands knowledge and application of legal principles. As such, it is not an activity encompassed within the practice of law. See State ex rel. Stephan v. Williams, 246 Kan. 681, 689, 793 P.2d 234 (1990) (“practice of law” has been explained to be “ ‘ “the rendition of services requiring the knowledge and application of legal principles and technique to serve the interests of another with his consent.” ’ ”). An attorney may apply legal knowledge to the task of procuring a sale, but those services are incidental to the brokerage service that can be performed by a nonattorney. In other words, entitlement to a commission presupposes the performance of substantial brokerage services, not legal services.
Consequently, any legal services performed by McGrath were incidental to his procuring a sale. See In re Adoption of B. C. S., 245 Kan. 182, 184, 777 P.2d 776 (1989) (defining “ ‘ “incidental” ’ ” as meaning “ ‘ “casual, minor importance, insignificant, and of little consequence” ’ ”). As noted by courts of other states, this conclusion is evidenced by the fact there is no additional contract between McGrath and Lausier for compensation for duties above and beyond the compensation that becomes due and owing once a willing and able buyer is procured. E.g., Sherman, 497 S.W.2d at 322.
An additional consideration arises under the KREBSLA’s attorney exemption because of two words in K.S.A. 2011 Supp. 58-3037(c) — “professional duties.” An attorney’s professional duties are many and varied, depending on the circumstances, but always include compliance with the Kansas Rules of Professional Conduct (KRPC) imposed by this court on all attorneys licensed in Kansas. See Preamble to KRPC (2011 Kan. Ct. R. Annot. 407). Rased on considerations of professional duties, other states have held an attorney cannot share in a real estate brokerage commission. See Kentucky Bar Ass’n v. Burbank, 539 S.W.2d 312, 313 (Ky. 1976) (attorney’s conduct in requesting a split in the broker’s commission for negotiating and drafting contracts was unethical); Roth, 120 N.J. at 677 (“an attorney who seeks to obtain a commission for brokerage services in connection with legal services rendered in the same transaction for the same client will have violated our ethics rules”); Estate of Schuldt, 428 N.W.2d 251, 258 (S.D. 1988) (improper for attorney to be dually compensated as an attorney and a broker) (Henderson, J., concurring) (“When a lawyer begins to hold himself out as being in the real estate business, he must obtain a real estate license.”).
In part, these courts determined that splitting a broker’s commission violated the respective state’s real estate license exemption. Therefore, the attorney’s conduct was unethical under attorney discipline provisions that prohibit an attorney from representing a client if the representation will result in a violation of a law and that require an attorney to uphold the integrity of the legal profession. See Kentucky Bar Ass’n, 539 S.W.2d at 313; Roth, 120 N.J. at 678; see also Preamble to KRPC (2011 Kansas Ct. R. Annot. 408) (“A lawyer s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer s business and personal affairs.”); KRPC 1.16(a)(1) (2011 Kan. Ct. R. Annot. 535) (“a lawyer shall not represent a client. . . if; [1] the representation will result in violation of the rales of professional conduct or other law”).
More significantly, tírese courts have focused on conflict of interest concerns. Conflict of interest complications arise, the courts noted, because in a commission-split situation the fee of a buyer’s attorney would be paid by the seller under an agreement the seller has made with the seller’s broker, meaning a third party would pay the attorney’s fee. This potential conflict is exacerbated by the attorney’s personal interest in the outcome of the transaction and is heightened where the attorney acts as an agent for the buyer because the attorney earns a higher fee if his or her client, the buyer, pays more for the property. Hence, the attorney’s personal benefit irreconcilably clashes with that of his or her client.
In finding this inherent conflict prevents the attorney from ethically making claim to the commission, the courts cited rules of professional conduct that correspond with KRPC 1.7(a)(2) (2011 Kan. Ct. R. Annot. 484) and KRPC 1.8 (2011 Kan. Ct. R. Annot. 494). KRPC 1.7(a)(2) provides that “[a] concurrent conflict of interest exists if: . . . (2) there is a substantial risk that the representation of one or more clients will be materially limited ... by a personal interest of the lawyer.” According to KRPC 1.8(f) (2011 Kan. Ct. R. Annot. 495), “[a] lawyer shall not accept compensation for representing a client from one other than the client.” See Roth, 120 N.J. at 677; Estate of Schuldt, 428 N.W.2d at 258.
These statements in KRPC 1.7 and KRPC 1.8 are followed by exceptions and qualifications that may allow an attorney to continue representation of a client despite a conflict. Both the New Jersey and South Dakota Supreme Courts recognized similar ex ceptions in their attorney discipline rules, yet both courts adopted a blanket rule prohibiting an attorney who does not have a real estate license from receiving all or a portion of a real estate commission. Roth, 120 N.J. at 676; Estate of Schuldt, 428 N.W.2d at 258-59. The New Jersey court found the conflict was “unacceptable.” Roth, 120 N.J. at 677. Similarly, the South Dakota court, after noting that under South Dakota’s equivalent to KRPC 1.8, an arrangement may normally “pass muster” if the client is given a reasonable opportunity to seek the advice of independent counsel, declined to limit its holding to allow for this possibility. The court concluded that “[a]n attorney should be an attorney first and foremost, not broker,” and that dual employment as an attorney and a broker put the attorney’s “economic interests airead of his promised loyalty to this client.” Estate of Schuldt, 428 N.W.2d at 259.
The South Dakota Supreme Court also expressed concerns about the reasonableness of the attorney fee. Estate of Schuldt, 428 N.W.2d at 259. Obviously, this is a fact-based determination; yet, it seems the odds will be high for this concern to arise in Kansas as well because there is not an inherent tie between the reasonableness of the sales price for real estate and an attorney’s services related to the sale. See KRPC 1.5 (2011 Kan. Ct. R. Annot. 470) (fees).
We note there are other potential issues under the KRPC. For example, KRPC 5.4(a) (2011 Kan. Ct. R. Annot. 593), prohibits splitting a legal fee with a nonattorney. This provision would be violated if the attorney is a seller’s broker sharing a fee with the buyer’s broker, and it arguably is violated if the attorney is the buyer’s broker. Further, in some cases, as noted by RAN, there will be a conflict between the duties of an attorney to maintain his or her client’s confidences and a broker’s duty of disclosure under the Brokerage Relationships in Real Estate Transaction Act, K.S.A. 58-30,101 et seq. See KRPC 1.6 (2011 Kan. Ct. R. Annot. 480) (confidentiality of information).
In summary, the very nature of the basis for a claim to a real estate commission — being the efficient and procuring cause of a consummated sale — means an attorney asserting a claim to a brokerage commission has performed primarily brokerage services. Even if legal services were performed, when an attorney claims a right to a brokerage commission, by default those legal services are incidental to the ultimate activity that produces the commission. While an attorney acting within the realm of an attorney-client relationship may perform some of the same services as would a real estate broker, those brokerage-type services must be incidental or ancillary to the performance of legal services for an attorney to fall within the attorney exemption under K.S.A. 2011 Supp. 58-3037(c). And, because of the inherent tension between a claim for fees arising from a real estate commission and the duties of an attorney under the KRPC, an attorney may not be separately compensated for brokerage services through the payment of a real estate commission.
Consequently, K.S.A. 2011 Supp. 58-3037(c), the attorney exemption to the KREBSLA does not exempt an attorney from the prohibition in K.S.A. 2011 Supp. 58-3062(a)(10) against splitting a fee with a nonlicensee because the commission is not earned by primarily performing services encompassed within and incidental to the practice of law, within the context of an attorney-client relationship, and in a manner consistent with the attorney s professional duties.
Public Policy
McGrath makes an additional argument, contending a determination that he cannot share in the commission would violate public policy because barring attorneys from participating in commission-based compensation unreasonably restrains competition in the brokerage service market. McGrath, however, cites no credible support for his argument. See McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 15, 61 P.3d 68 (2002) (“Simply pressing a point without pertinent authority, or without showing why it is sound despite a lack of supporting authority, is akin to failing to brief an issue.”)- Moreover, under our holding, McGrath may provide legal services in real estate transactions and in the course of that representation may incidentally perform brokerage services. He merely must contract with and be paid by his client independently of the real estate commission.
Conclusion
The district court reached the correct conclusion that McGrath was not entitled to share in the brokerage commission. The activities McGrath performed to earn the fee were primarily brokerage services, and any attorney services were incidental. Yet to fall within die attorney exemption of K.S.A. 2011 Supp. 58-3037(c), McGrath had to have primarily performed legal services and any broker’s services must have been minor, incidental, ancillary, and subordinate to die legal services performed. Furthermore, Mc-Grath sharing in the fee would be inconsistent with his professional duties as an attorney.
As a result, under K.S.A. 2011 Supp. 58-3062(a)(10), RAN cannot pay a share of the commission to McGrath, and McGrath is not entitled to the funds at issue in this interpleader action.
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The opinion of the court was delivered by
Moritz, J.:
Cherokee Nation, Intervenor, challenges the district court’s decision under the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq. (2001), to deviate from ICWA’s placement preferences, see 21 U.S.C. § 1915(a) (2001), based upon the bio logical non-Indian mother s preference that her child be placed with a non-Indian family. Because we conclude that absent a request for anonymity by a biological parent, a parent’s placement preference cannot override ICWA’s placement factors, we reverse the district court’s determination.
Factual and Procedural Background
D.R.W. (Mother) gave birth to T.S.W. on September 14, 2009. Approximately 2 months before T.S.W.’s birth, Mother decided to place her child for adoption. She contacted Adoption Centre of Kansas, Inc. (the Agency) to assist her in that process, and she identified two possible fathers of her child, one of whom was J.A.L.
In early August 2009, J.A.L.’s mother notified the Agency that J.A.L. was a member of Cherokee Nation (the Tribe). Because of the child’s potential eligibility for membership in the Tribe, the Agency requested that the Tribe provide profiles of potential adoptive families.
In early September, employees of the Agency exchanged several e-mails with employees of the Tribe. In these e-mails, the Agency advised that because the Tribe had no families that could pay the Agency’s $27,500 flat fee, the Agency wished to place Mother’s child with one of its own families. However, the Agency expressed concern that the Tribe might seek to remove the child at a later time. The Agency also pointed out that Mother had her own criteria for any adoptive family, including that the couple be Caucasian, childless, financially secure, and open to postadoption visitation.
The Tribe responded that it had identified several certified families that could meet Mother’s adoption criteria but that it had no families capable of paying the Agency’s $27,500 fee. The Tribe also pointed out that “fa]gency fees are not a reason to deviate from federal law.”
Eventually, on September 9, 2009, the Agency’s counsel, through an e-mail sent by an Agency employee, advised the Tribe that Mother would consider family profiles that met Mother’s “criteria” and the Agency would “base fees and cost on an appropriate sliding scale.” However, the Agency’s counsel noted that the Agency’s fees and costs could not be calculated absent information as to tíre prospective adoptive family’s overall financial condition. The following day, September 10, 2009, the Tribe sent profiles of two potential adoptive families to the Agency.
Mother gave birth to T.S.W. on September 14, 2009. On September 15, 2009, the Agency filed a petition in district court seeking to terminate the parental rights of the two potential biological fathers. The petition specifically noted: “Subsequent to this petition for termination of parental rights, a petition for the adoption of the subject minor child will be filed.”
After court-ordered paternity testing conclusively determined that J.A.L. (Father) was T.S.W.’s biological father, the Agency filed an amended petition on October 1, 2009, seeking termination of Father’s parental rights. Also on October 1,2009, the court granted temporary custody of T.S.W. to the Agency.
Father filed a handwritten objection to the petition, noting that although he was in jail, his mother was willing to raise T.S.W. However, the Agency did not contact any of Father’s family members regarding T.S.W.’s placement because Mother did not want T.S.W. to be placed with Father’s family.
Meanwhile, the Agency had not communicated with the Tribe regarding the Indian family profiles provided by the Tribe. Consequently, on September 28, 2009, the Tribe requested an update from tire Agency on T.S.W.’s placement. On September 30, 2009, the Agency responded that T.S.W. had been born on September 14, 2009; that paternity testing had confirmed that J.A.L. was T.S.W.’s biological father; that J.A.L. planned to contest the adoption; and that Mother had selected one of dre two families provided by the Tribe as a possible adoptive family for T.S.W.
Based on T.S.W.’s status as an Indian child, on October 21,2009, the Tribe moved to intervene in the action to terminate Father’s parental rights. The record on appeal contains no ruling on this motion. Nevertheless, on November 5, 2009, the Tribe filed both an answer to the Agency’s amended petition to terminate parental rights and a counter-petition requesting application of ICWA to the proceedings.
By November 2, 2009, both of the families proposed by the Tribe had withdrawn from consideration as potential adoptive families for T.S.W. The record reflects somewhat conflicting testimony regarding the reason for their withdrawal. According to testimony of the Tribe employees, one of the families withdrew because it received another placement while the other family withdrew because of concerns about the Agency’s fees as well as the cost of potential litigation with Father.
In any event, upon learning of the unavailability of these families, the Agency requested that the Tribe provide profiles of other available adoptive families. But before the Tribe could do so, the Agency reviewed with Mother the profiles of several of its own families. From these profiles, Mother chose a non-Indian family to adopt T.S.W.
Apparently unaware that Mother had selected a non-Indian family, on November 9, 2009, the Tribe provided the Agency with an additional 17 to 20 Indian family profiles. Mother reviewed those profiles, but according to an Agency employee, Mother did not prefer any of the Indian families over the non-Indian family she had already selected. Mother later testified that had she not been permitted to place T.S.W. with the family of her choice, shé would have withdrawn her consent to T.S.W.’s adoption.
Meanwhile, on November 18, 2009, the Agency filed a pleading entitled “Petition” seeking to deviate from ICWA’s placement' preferences in the pending action to terminate Father’s parental rights. Although to this point no adoption proceeding had been filed, the Agency recited that it sought to deviate from ICWA’s placement preferences. The pleading did not indicate whether the Agency sought to deviate from ICWA’s temporary or adoptive placement preferences, nor did it indicate whether an adoption petition had been filed or was forthcoming. Further, although the “petition” mentioned ICWA, it contained no statutory reference to the Act, nor did it identify or discuss ICWA’s placement preferences.
The docket sheet indicates the district court conducted a temporary placement hearing on December 4,2009, although the transcript of the hearing is not included in the record on appeal. The hearing apparently resulted in T.S.W.’s prospective adoptive placement with the non-Indian family selected by Mother. It is unclear from the record whether the district court considered if good cause existed to deviate from ICWA’s foster care and preadoptive placement preferences under 25 U.S.C. § 1915(b) before issuing a temporary placement order.
The record on appeal contains a pretrial order filed on January 12, 2010, reflecting a pretrial conference held on December 29, 2009. The pretrial order identifies the “Nature of hearing” as a “Termination of Parental Rights.”
Also on January 12, 2010, the district court conducted a hearing on the Agency’s petition to terminate Father’s parental rights. Again, although tire record on appeal contains no transcript of the hearing, it appears that at the conclusion of the hearing, the district court ruled from the bench, terminating Father’s parental rights. However, the district court did not issue a written order terminating Father’s parental rights until March 11, 2010.
On January 26 and 27, 2010, the district court conducted a hearing on the Agency’s petition to deviate from ICWA’s placement preferences. At the close of the hearing, the district court orally ruled from the bench, deviating from ICWA’s placement preferences based primarily upon Mother’s desire that the child be placed with the adoptive couple she had chosen and Mother’s threat to withdraw her consent to the adoption if her choice was not approved.
At the close of the hearing, the district court asked the Agency’s counsel to draft and circulate a journal entry memorializing the court’s finding within 10 days and indicated that if the parties did not sign the journal entry within 4 days after circulation, the court would sign the journal entry without signatures. The court stated: “I wanna make sure that this case keeps moving and it’s not sitting around for a couple of months waiting for the journal entry.”
However, tire journal entry formalizing the district court’s decision was not filed until more than 2 months later, on April 15, 2010. In the meantime, as discussed below, counsel for the Agency in this case apparently filed a separate adoption proceeding in district court. In that separate proceeding, counsel represented the adoptive parents chosen by Mother and, without notice to the Tribe, obtained a final decree of adoption of T.S.W.
In its April 15, 2010, journal entry, the district court found good cause existed to deviate from ICWA. Like the “petition” for deviation filed by the Agency, the journal entry contains neither a statutory reference to ICWA nor a description of ICWA’s placement preferences. Further, the journal entry does not specify whether the deviation is for temporary or adoptive placement. Nevertheless, in the journal entry the district court held: “Birth parents can revoke their consent at any time for any reason; and the birth Mother has final say.” Further, the district court conclusively stated that the “[b]irth mother’s preference is good cause under ICWA to deviate from the prescribed placement preferences.”
The Tribe appealed the district court’s April 15, 2010, order granting a deviation from ICWA’s placement preferences. The appeal was transferred from the Court of Appeals to this court pursuant to K.S.A. 20-3018(c).
Show Cause Order
Prior to oral argument, this court issued a show cause order advising the parties that the record contained insufficient information for the court to verify its jurisdiction to hear the appeal. Specifically, tire court noted the record contained no petition for adoption or final adoption decree, and the court directed the parties to address the finality of the order appealed from under K.S.A. 2011 Supp. 59-2401a(a)(l).
In response to the show cause order, the Tribe pointed out that the district court’s journal entry finding good cause to deviate from ICWA’s placement preferences was the final docket entry in the district court, other than appeal-related filings. The Tribe also noted that while the Agency had advised the Tribe that T.S.W. was adopted “a long time ago,” the Tribe received no notice of the adoption and assumed it occurred “under a different case number.” Finally, the Tribe advised that it had requested that the Agency provide confirmation of T.S.W.’s final adoption, but the Agency had not responded to its request.
In its “Response [to Show Cause Order] and Motion to Dismiss Appeal,” the Agency argued this appeal should be dismissed for lack of jurisdiction because the Tribe did not appeal the termination of Father’s parental rights and because the court’s decision regarding placement deviation was not an appealable order under “K.S.A. 59-2401 [sic]” or K.S.A. 60-2102. However, the Agency’s response did not address whether a separate adoption proceeding had been filed or a final adoption decree issued.
Nevertheless, during oral argument in this appeal, counsel for die Agency conceded that prior to die expiration of the appeal time in this action, he filed a petition to adopt T.S.W. in a separate proceeding and in that proceeding, he represented the adoptive parents chosen by Mother. Counsel represented at argument that the same judge that granted the deviation from ICWA in this case also entered a final adoption decree in the adoption proceeding. Finally, the Agency’s counsel conceded he did not notify or communicate with the Tribe about T.S.W.’s adoption until after this court entered its show cause order, when he advised the Tribe’s counsel that the adoption “happened a long time ago.”
Analysis
On appeal, the Tribe argues the district court erred in finding good cause to deviate from ICWA’s placement preferences as set forth in 25 U.S.C. § 1915. But before considering this issue, we must determine whether we have jurisdiction to hear this appeal in light of the unique procedural posture presented by this case.
The Tribe concedes that the Agency filed this action as a petition to terminate Father’s parental rights and that no party appealed tiie district court’s order terminating Father’s rights. The Tribe also concedes that no party filed a petition for an adoption proceeding in this case. Nevertheless, the Tribe urges us to find that this was a “de facto” adoption proceeding and that the district court entered a final decision satisfying all issues with respect to the Tribe when it deviated from ICWA’s placement preferences. In the alternative, and as further discussed below, the Tribe urges us to apply the collateral order doctrine, which permits an exception to the final order requirement in limited circumstances.
As discussed above, although the Agency had not previously raised a jurisdictional issue, it now contends this appeal should be dismissed for lack of jurisdiction. The Agency does not elaborate on the basis for dismissal other than to point out that no party appealed the order terminating Father’s parental rights. Further, the Agency suggests the district court’s decision permitting deviation from ICWA was not a final, appealable order under K.S.A. 2011 Supp. 59-2401 or K.S.A. 2011 Supp. 60-2102.
The collateral order doctrine provides a jurisdictional basis for this appeal.
We exercise unlimited review over jurisdictional issues, Shipe v. Public Wholesale Water Supply Dist. No. 25, 289 Kan. 160, 165, 210 P.3d 105 (2009), and we have a duty to question jurisdiction on our own initiative. When the record discloses a lack of jurisdiction, we must dismiss the appeal. State v. Gill, 287 Kan. 289, 294, 196 P.3d 369 (2008).
The right to appeal is entirely statutoiy and is not a right contained in the United States or Kansas Constitutions. Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 609, 244 P.3d 642 (2010). Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken within the time limitations and in the manner prescribed by the applicable statutes. Gill, 287 Kan. at 294.
This action was filed pursuant to the Kansas Adoption and Relinquishment Act (KARA), K.S.A. 59-2111 et seq. The KARA falls within the Kansas Probate Code and permits an appeal by “an interested party” from the district court to the appellate court of “any final order, judgment or decree entered in any proceeding pursuant to: . . . The Kansas adoption and relinquishment act.” K.S.A. 2011 Supp. 59-240.1a(b)(l).
Although the probate code does not define the phrase “final order, judgment or decree,” we derive guidance from the Kansas Code of Civil Procedure. See K.S.A. 2011 Supp. 59-2401a(b) (appeal procedures under the probate code are governed by article 21 of chapter 60 of the Kansas Statutes Annotated); In re Guardianship of Sokol, 40 Kan. App. 2d 57, 61, 189 P.3d 526 (2008). Under the civil code, an appeal may be taken to the Court of Appeals as a matter of right from any “final decision.” K.S.A. 2011 Supp. 60-2102(a)(4). A “final decision” generally disposes of the entire merits of the case and leaves no further questions or the possibility of future directions or actions by the court. We have noted that the phrase “final decision” is self-defining and refers to an order that definitely terminates a right or liability involved in an action or that grants or refuses a remedy as a terminal act in the case. Flores Rentals v. Flores, 283 Kan. 476, 481-82, 153 P.3d 523 (2007).
As noted, this case presents to us in an unusual procedural posture, making application of the “final decision” analysis difficult. The parties concede that the Agency filed this action to terminate Father s parental rights and not as an adoption proceeding. The pretrial order verifies that the sole purpose of the underlying proceeding was to terminate Father’s rights. Yet no party appealed the district court’s order terminating Father’s parental rights. Further, for reasons not apparent from the record, the district court entertained the Agency’s “petition” to deviate from ICWA’s adoptive placement preferences, although the petition did not indicate that the Agency sought temporaiy or adoptive placement of the Indian child. See 25 U.S.C. § 1915. Nevertheless, the Tribe now appeals from the district court’s order granting that déviation.
We have construed the phrase “final decision” as a decision “ ‘ “which finally decides and disposes of the entire merits of the controversy, and reserves no further questions or directions for the future or further action of the court.” ’ ” Kansas Medical Mut. Ins. Co., 291 Kan. at 610 (quoting Gulf Ins. Co. v. Bovee, 217 Kan. 586, 587, 538 P.2d 724 [1975]). Here, the district court’s decision to deviate from ICWA’s placement preferences clearly anticipates further action — specifically, T.S.W.’s placement with an adoptive family.
We are unwilling to find, as the Tribe urges us to do, that this was a “de facto” adoption proceeding. Significantly, the Tribe cites no authority for this novel approach, and we have found none. Further, this suggestion ignores the information gleaned from the show cause order issued by this court — i.e., that the adoptive cou- pie chosen by Mother filed a separate proceeding and obtained a decree of adoption in that proceeding, albeit without notice to the Tribe, while the instant action was still pending. Thus, the underlying action clearly was not intended by the Agency or understood by the court to be a “de facto” adoption proceeding.
Finally, we note that neither party suggests that this appeal is legislatively authorized as an interlocutory appeal under K.S.A. 2011 Supp. 60-2102.
Under the circumstances presented here, we conclude the district court’s order permitting a deviation from ICWA’s placement preferences did not dispose of the entire merits of the case and left open the possibility of future action by the district court with respect to T.S.W.’s placement. Thus, the Tribe has not appealed from a “final order, judgment or decree” under K.S.A. 2011 Supp. 59-2401a(b)(l), and we lack statutory authority to hear this appeal.
But that holding does not end our analysis. Alternatively, the Tribe urges us to exercise jurisdiction under the collateral order doctrine. That doctrine, which we sparingly apply, provides a narrow exception to the final order requirement. It “allows appellate courts to reach ‘not only judgments that “terminate an action,” but also a “small class” of collateral rulings that, although they do not end the litigation, are appropriately deemed “final.” [Citation omitted.]’ ” Kansas Medical Mut. Ins. Co., 291 Kan. at 611-12 (quoting Mohawk Industries, Inc. v. Carpenter, 558 U.S. __, 130 S. Ct. 599, 605, 175 L. Ed. 2d 458 [2009]).
As the doctrine is applied in Kansas, an order may be collaterally appealable if it (1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment. Kansas Medical Mut. Ins. Co., 291 Kan. at 612.
Here, the district court’s decision conclusively determined the disputed issue — i.e., whether to permit deviation from ICWA’s placement preferences. Further, we are satisfied that at least in this case, which was filed as an action to terminate Father’s parental rights, the district court’s decision granting deviation from ICWA’s placement preferences resolved an issue wholly separate from the merits of the proceeding.
We are persuaded that the third factor — whether the disputed issue will be effectively unreviewable upon appeal from a final judgment — also was met in this case in light of the separate adoption proceeding filed without notice to the Tribe. As the Tribe pointed out at oral argument, if we decline to review the district court’s deviation from ICWA’s placement preferences, that decision will be effectively unreviewable because of the Agency’s action in proceeding with a final adoption without notice to the Tribe.
Based upon the unique factual circumstances of this case, we conclude the district court’s order permitting deviation from ICWA’s placement preferences falls within that “small class” of collateral rulings that, although it did not end the litigation, is appropriately deemed “final.”
Having determined we have jurisdiction to hear this appeal, we turn to the merits of the underlying issue.
The district court erred in deviating from ICWA’s placement preferences.
On appeal, the Tribe argues the district court abused its discretion in finding good cause to deviate from ICWA’s placement preferences because the Agency: (1) failed to make reasonable efforts to seek placement within ICWA’s placement preferences beyond requesting the Tribe provide families that complied with the preferences and could meet the Agency’s fees of $27,500; (2) failed to impartially consider T.S.W.’s relatives for placement; and (3) offered non-ICWA placement options to Mother prior to offering the remaining ICWA-compliant families offered by the Tribe.
Further, the Tribe contends the district court erred in basing its good cause finding on Mother’s promise to withdraw her consent to the adoption if she was not allowed to choose the adoptive family. The Tribe contends Mother’s threat to withdraw her consent and/or her choice of adoptive parents cannot override ICWA’s mandatory placement preferences. Instead, the Tribe reasons that Mother’s preferences are relevant only in limited circumstances not present here.
The Agency does not argue that it complied with ICWA’s placement preferences. Rather, the Agency essentially contends that while it attempted to comply with the second placement preference, Mother s preference to place her child with non-Indian parents ultimately provided good cause to deviate from ICWA’s preferences. Alternatively, the Agency argues ICWA does not apply to a non-Indian biological parent’s voluntary placement of their child with a non-Indian adoptive family.
We review a district court’s finding that good cause exists to deviate from ICWA’s placement preferences for abuse of discretion. In re Adoption of B.G.J., 281 Kan. 552, 564, 133 P.3d 1 (2006) (finding that the district court abuses its “substantial discretion” if it fails to properly apply the ICWA factors).
“Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or tire exercise of discretion is based.” State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011).
This case also may require interpretation of ICWA. Interpretation of a statute is a question of law over which we exercise unlimited review. In re A.J.S., 288 Kan. 429, 431, 204 P.3d 543 (2009).
ICWA’s placement preferences extend to voluntary placements by a non-Indian parent.
Before considering whether the district court correctly applied ICWA’s placement preferences here, we first briefly consider what appears to be an alternative argument by the Agency. Although not precisely formulated, the Agency contends ICWA’s placement preferences should not be applied to the situation presently before us, i.e., where a non-Indian biological parent has voluntarily consented to the placement of her Indian child with a non-Indian family. Without benefit of authority, the Agency reasons:
“The most troubling aspect to the Cherokee Nation’s position is the attempt to use the Act to usurp the prenatal rights of a fit non-Indian mother to determine the best interest of her child. The Act was designed to prevent the unfair forcible removal of Indian children from their own homes and place them with non-Indian adoptive parents. Here, tire Cherokee Nation attempts to use the placement pref erences in an involuntary removal to overrule the placement desires of the fit non-Indian mother in a voluntary placement.”
But the Agency’s argument is contrary to the explicit language of 25 U.S.C. § 1915(a), which makes ICWA’s placement preferences applicable to “any adoptive placement of an Indian child.” Moreover, this issue was resolved, albeit in a different context, by the United States Supreme Court in Mississippi Choctaw Indian Band v. Holyfield, 490 U.S. 30, 109 S. Ct. 1597, 104 L. Ed. 2d 29 (1989). There, the Mississippi Band of Choctaw Indians argued ICWA’s jurisdictional provisions applied to an attempt by the biological Indian parents of twins to consent to their adoption by a non-Indian family. The tribe argued that the twins, like their parents, were “domiciled” on the reservation and the tribe had exclusive jurisdiction over their placement.
In Holyfield, the Supreme Court found that at the time of their birth, the twins were domiciled — like their parents — on the reservation. 490 U.S. at 48-49. In so holding, the Court noted that tribal jurisdiction under ICWA “was not meant to be defeated by the actions of individual members of the tribe, for Congress was concerned not solely about the interests of Indian children and families, but also about the impact on the tribes themselves of the large numbers of Indian children adopted by non-Indians.” 490 U.S. at 49. The Court reasoned:
“[I]t is clear that Congress’ concern over the placement of Indian children in non-Indian homes was based in part on evidence of the detrimental impact on the children themselves of such placements outside their culture. Congress determined to subject such placements to the ICWA’s jurisdictional and other provisions, even in cases where the parents consented to an adoption, because of concerns going beyond the wishes of individual parents.” (Emphasis added.) 490 U.S. at 49-50.
Thus, the Supreme Court in Holyfield held ICWA’s jurisdictional provisions apply even when both biological parents voluntarily attempt to place their Indian child with a non-Indian family. Further, the Court expressly extended its jurisdictional holding to ICWA’s “other provisions,” which include the placement provision at issue here, 25 U.S.C. § 1915(a). 490 U.S. at 49-50.
We also reject the Agency’s implied suggestion that ICWA’s placement preferences apply only when the parental rights of Indian parents are at issue. Simply stated, this argument is inconsistent with our recent holding in In re A.J.S. There, we abandoned the existing Indian family doctrine and held ICWA’s placement preferences applied to the placement of A.J.S., who had both Indian and non-Indian heritage. 288 Kan. at 442.
The Agency did not comply with ICWA’s placement preferences.
Although the district court’s order deviating from ICWA’s placement preferences did not identify or discuss the preferences, the language of the statute at issue, 25 U.S.C. § 1915(a), is a good place to start with our analysis. That statute provides:
“In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.” 25 U.S.C. § 1915(a).
It is undisputed that T.S.W. is an Indian child as defined in ICWA. See 25 U.S.C. § 1903(4) (2001) (an “Indian child” is an unmarried person under the age of 18 who is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe). Thus, in any “adoptive placement” involving T.S.W., ICWA required the court to consider the three placement preferences specified in § 1915(a) in the order specified in the statute absent good cause to the contrary. Further, the burden was on the Agency, as the party urging deviation from the preferences, to establish good cause to do so. See Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,594, 67,595 (November 26, 1979) (hereinafter “BIA Guidelines”).
In this case, we need not extensively consider whether the Agency followed the placement preferences before seeking a deviation from those preferences. It did not. While the Agency made some effort to satisfy the second placement preference when it requested the Tribe provide available adoptive family profiles, the Agency impermissibly qualified its request in at least two ways. First, the Agency provided the Tribe with Mother’s extensive “cri- teña” for any prospective adoptive family. Second, the Agency specified that prospective adoptive families be able to pay the Agency’s $27,500 fee requirement. And while the Agency eventually indicated a willingness to modify its fee based on an unspecified sliding scale, the parties never agreed as to the parameters of that scale because Mother chose a non-Indian family based on profiles presented to her from the Agency.
Essentially, tire Agency grafted its substantial fee requirement as well as Mother’s placement criteria (which ironically specified that the adoptive parents be Caucasian) onto ICWA’s placement preferences. Common sense dictates drat ICWA’s placement preferences cannot be undermined in this manner. In fact, the Agency’s actions appear to fly in the face of Congress’ intent in enacting ICWA. See Holyfield, 490 U.S. at 37 (ICWA “ ‘seeks to protect the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining its children in its society’ ... by establishing ‘a Federal policy that, where possible, an Indian child should remain in the Indian community’ ” and ensuring that Indian child welfare determinations are not based on a white, middle-class standard that often forecloses placement with an Indian family).
Moreover, even if we could conclude that the Agency appropriately and thoroughly attempted to comply with ICWA’s second placement preference, it is undisputed that it made no effort to comply with ICWA’s first and third preferences. Regarding the first preference — placement with the child’s extended family — an Agency employee testified that because Mother did not want T.S.W. to be placed with Father’s extended family, the Agency did not ascertain whether such placement was possible. Further, it is undisputed that the Agency made no effort to ascertain the availability of placement with other Indian families — the third placement preference.
Instead, the district court found “good cause” under this statute to deviate from the placement preferences, permitting T.S.W.’s placement with a non-ICWA compliant family. Therefore, we are asked to decide whether a biological parent’s preference for place ment of an Indian child can provide good cause to override ICWA’s placement preferences.
This is not an issue of first impression for this court. In B.G.J., we considered whether the district court abused its discretion in finding good cause to deviate from ICWA’s adoptive placement preferences in granting a non-Indian family’s petition to adopt an Indian child. Both parties here rely on B. G.J. to support dieir opposing positions regarding whether the district court properly found good cause to deviate from ICWA’s placement preferences in this case. For reasons discussed below, we conclude B.G.J. does not support the district court’s deviation from ICWA here.
The B. G.J. case does not support the district court’s finding of good cause to deviate from ICWA’s placement preferences in this case.
In B.G.J., the tribe offered placement of the Indian child, B.G.J., with four of her biological mother’s relatives. But the mother, who was one-half Indian, selected a non-Indian family profile from an adoption agency because she “did not want a member of the Tribe to raise B.G.J.” 281 Kan. at 555. After the prospective adoptive couple petitioned to adopt B.G.J., the district court found good cause to deviate from ICWA’s placement preferences.
On review, this court held the district court did not abuse its discretion in finding good cause to deviate from ICWA’s placement preferences. 281 Kan. at 566. The court first noted that 25 U.S.C. § 1915(c) provides that “ ‘[\v]here appropriate, the preference of the Indian child or parent shall be considered’ ” and that the tribe contended that appropriateness must be assessed in light of the congressional intent to protect the best interest of Indian children and promote the stability of Indian tribes and families. 281 Kan. at 565.
But the B. G.J. court pointed out that while placing Indian children with Indian families is a priority under ICWA, the legislation also provides that for good cause, courts may deviate from the placement preferences, allowing “the state courts flexibility in the placement of Indian children.” 281 Kan. at 565. The court then noted that the BIA Guidelines, specifically BIA Guideline F.3., permit a court to rely on “parental preference” in deviating from ICWA’s placement preferences. The B.G.J. court noted:
“It [BIA Guideline F.3] states that the good cause determination ‘shall be based on one or more of the considerations.’ (Emphasis added.) It does not limit tire consideration which may be given to the mother’s preference. Here, the mother knowingly and with full knowledge of the ICWA preferences executed her relinquishment. She was adamant that her child be placed with tire adoptive parents, and not with her extended family or the Tribe.” 281 Kan. at 565.
Relying upon this language in this case, the Agency contends B. G.J. supports the district court’s decision to deviate from ICWA based upon Mother’s “strong desire to place with the adoptive couple of her choosing.” However, we do not read B. G.J. so narrowly.
While B.G.J. emphasized the mother’s preference, it also specifically noted that the district court based its determination on two of the three factors suggested by BIA Guideline F.3. as a basis for deviation from the guidelines. The court concluded:
“B.G.J. had no extraordinary physical or emotional needs. Hence, the trial court based its determination on the other two factors. Giving as much if not more weight to the unavailability of suitable families offered by the Tribe for placement as to the birth mothers request, the trial court determined that good cause existed to deviate from the statutory preferences. The trial court’s analysis is in accord with the federal statutes and guidelines. We hold the district court did not abuse its discretion in finding that good cause existed to deviate from ICWA’s placement preferences.” (Emphasis added.) 281 Kan. at 565-66.
Thus, this court in B.G.J. did not base its decision to deviate from ICWA’s placement preferences solely, or even mostly, on the mother’s placement preference. But to the extent our opinion in B.G.J. can be read to suggest that a parent’s preference can solely override ICWA’s placement preferences, we disapprove that language as dicta.
Further, we find B.G.J. distinguishable in several key respects. Significantly, although the birth mother did not want B.G.J. placed with extended family, the district court made fairly extensive findings of fact and conclusions of law regarding the unsuitability of the four relatives offered by tire tribe as potential placements for B.G.J. This court then relied on those findings in concluding the district court did not abuse its discretion in deviating from the placement preferences. 281 Kan. at 566.
In contrast, in this case the district court made no such findings regarding the availability of placement with either natural parent’s extended family or the availability of Tribe families. Instead, the court expressly noted that “[n]either of [the birth mother s or birth father’s] families were [sic] considered as the birth mother did not want placement with them.” And regarding the Cherokee Nation families offered by the Tribe, the court held: “An additional seventeen (17) to twenty (20) families were presented which the birth mother did not like and rejected.” Significantly, the court further commented that “[t]here is no evidence to show that any of these families were disqualified for any legal or practical reason.”
Thus, the district court in this case did not rely upon the unavailability of either T.S.W.’s extended family or the families offered by the Tribe. Instead, the court permitted Mother’s desire not to place T.S.W. with extended family or any of the potential adoptive Tribe families to override these preferences.
B.G.J. is distinguishable in another significant respect. Namely, the district court there considered whether to deviate from ICWA’s placement preferences in the context of an adoption proceeding filed by the adoptive parents chosen by the mother. In ultimately determining that placement with the adoptive parents served the best interest of the child, the district court pointed out that the adoptive parents were experienced parents and foster parents who were socially and economically stable and who had provided a social assessment (unlike the extended family members offered by the tribe in that case). Further, the district court found that B.G.J. had “admittedly bonded with” the adoptive family, with whom the child was placed shortly after birth. 281 Kan. at 558-59.
The Agency points out that the district court in this case also referenced “the best interest of the child” in deviating from the placement factors. However, unlike in B.G.J., the district court’s reference to the best interest of the child in this case was not made in the context of an adoption proceeding, since no such proceeding had been filed. In fact, the court’s order makes no reference whatsoever to T.S.W.’s temporary placement or to the potential adop tive parents other than to indicate that the “subject minor child has been with the prospective adoptive couple since December 2009.” Thus, the court’s reference to the “best interest of the child” is confusing at best and appears to be based, like the court’s other conclusions, on Mother’s placement preference.
Because of its distinct facts, procedural context, and holding, we conclude B.G.J. does not support the district court’s decision in this case to deviate from ICWA based solely on Mother’s preference to place T.S ,W. with a non-Indian family of her choice. Therefore, we next consider whether the district court’s holding can stand under the factual circumstances of this case.
“Parental preference” has limited application in considering good cause to deviate.
The Tribe contends the parental preference referred to in 25 U.S.C. § 1915(c) has only limited application and is not meant to entirely override the placement preferences of § 1915(a). Specifically, the Tribe argues that parental preference can support a finding of good cause to deviate from the order of consideration of ICWA’s placement preferences only in the limited situation in which the consenting parent desires anonymity. In support, the Tribe points to the complete text of 25 U.S.C. § 1915(c), BIA Guidelines F.l. and F.3., and the commentary to those guidelines.
Notably, the Agency entirely fails to respond to this argument and instead relies simply on this court’s decision in B.G.J. as support for its contention that 25 U.S.C. § 1915(c) permits a parent’s preference to override the placement preferences of 25 U.S.C. § 1915(a). But we were not presented in B.G.J. with the argument that the parental preference provision of 25 U.S.C. § 1915(c) is limited to situations in which a consenting parent requests anonymity with respect to the placement of the child. Nor are we precluded from considering that issue now.
Significantly, in B.G.J. we recognized that 25 U.S.C. § 1915(c) provides in part that where appropriate, in considering the placement preferences of 25 U.S.C. § 1915(a), “the preference of the Indian child or parent shall be considered.” 281 Kan. at 565. But we did not consider the entire text of subsection (c). Instead, we omitted the proviso to that subsection which lends context and meaning to the scope of the parental preference language. Specifically, § 1915(c) states in full:
“In the case of a placement under subsection (a) or (b) of this section, if the Indian child’s tribe shall establish a different order of preference by resolution, the agency or court effecting the placement shall follow such order so long as the placement is the least restrictive setting appropriate to die particular needs of the child, as provided in subsection (b) of this section. Where appropriate, the preference of the Indian child or parent shall be considered: Provided, That where a consenting parent evidences a desire for anonymity, the court or agency shall give weight to such desire in applying the preferences.”
Thus, the entire text of 25 U.S.C. § 1915(c) indicates that a district court should modify the order of preferences in 25 U.S.C. § 1915(a) when (1) the tribe establishes a different order under certain circumstances or (2) a consenting parent seeks anonymity with respect to the placement of the child.
This interpretation is bolstered by BIA Guideline F.l. That guideline, which also was not discussed in B. G.J., closely tracks 25 U.S.C. § 1915(a) and (c). BIA Guideline F.l.(c) provides: “Unless a consenting parent evidences a desire for anonymity, the court or agency shall notify the child’s extended family and the Indian child’s tribe that their members will be given preference in the adoption decision.” (Emphasis added.) BIA Guidelines, 44 Fed. Reg. 67,594 (November 26, 1979). See also In re M.F., 290 Kan. 142, 143, 225 P.3d 1177 (2010) (recognizing BIA guidelines should be considered by district courts in applying ICWA).
The commentary to BIA Guideline F.l. further explains that § 1915(a):
“maíces clear that preference shall be given in the order listed in the Act. The Act clearly recognizes die role of the child’s extended family in helping to raise children. The extended family should be looked to first when it becomes necessary to remove the child from the custody of his or her parents. . . .
“The diird subsection [of Guideline F.l.] recommends that the court or agent malee an active effort to find out if there are families entided to preference who would be willing to adopt the child. This provision recognizes, however, tiiat the consenting parent’s request for anonymity takes precedence over efforts to find a home consistent with the Act’s priorities.” (Emphasis added.) BIA Guidelines, 44 Fed. Reg. 67,594 (1979).
While we did not discuss the full text of 25 U.S.C. § 1915(c) or BIA Guideline F.l. in B.G.J., we did consider BIA Guideline F.3., which discusses the meaning of the term “good cause.” 281 Kan. at 565. We pointed out that the guideline should be considered by district courts when deciding whether to deviate from ICWA’s placement preferences in an adoptive placement. BIA Guideline F.3. provides:
“(a) For purposes of foster care, preadoptive or adoptive placement, a determination of good cause not to follow the order of preference set out above shall be based on one or more of the following considerations:
(i) The request of the biological parents or the child when the child is of sufficient age.
(ii) The extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness.
(iii) The unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria.
“(b) The burden of establishing the existence of good cause not to follow the order of preferences established in subsection [F.2.](b) shall be on the party urging that the preferences not be followed.” (Emphasis added.) BIA Guidelines, 44 Fed. Reg. 67,594 (November 26, 1979).
However, we did not discuss in B. G.J. the relevant commentary to BIA Guideline F.3., which again supports the Tribe’s argument regarding the limitations of the parental preference language: “The Act indicates that the court is to give preference to confidentiality requests by parents in making placements. Paragraph (i) is intended to permit parents to ask that the order of preference not be followed because it would prejudice confidentiality or for other reasons.” (Emphasis added.) BIA Guidelines, 44 Fed. Reg. 67,594.
We should point out that while we did not discuss the confidentiality issue in B. G.J., it appears that confidentiality may have been relevant there. The Court of Appeals panel noted that mother did not disclose her pregnancy and extended family members were unaware of the pregnancy until the child’s birth. See In re Adoption of B.G.J., 33 Kan. App. 2d 894, 905, 111 P.3d 651, rev. granted 280 Kan. 982 (2005). Thus, tire panel speculated that mother’s confidentiality may have been the reason none of the prospective adoptive family members were subjected to social assessments be fore being considered as possible placement for the child. 33 Kan. App. 2d at 905.
In any event, in light of the text of 25 U.S.C. § 1915(c), BIA Guidelines F.l. and F.3., and the commentary to both of those guidelines, we are persuaded that the “parental preference” referred to in § 1915(c) was not intended to permit a biological parent’s preference for placement of a child with a non-Indian family to automatically provide “good cause” to override the adoptive placement preferences of 25 U.S.C. § 1915(a). Instead, a parent’s request for anonymity with respect to placement of the child must be considered along with other relevant factors, including the best interest of the child, in deciding whether to modify the order of consideration of ICWA’s placement references. See B.G.J., 281 Kan. at 565 (holding that “[t]he best interest of the child remains the paramount consideration, with ICWA preferences an important part of that consideration”).
Our holding is consistent with at least one other jurisdiction that has analyzed and considered the confidentiality aspect of 25 U.S.C. § 1915(c)’s parental preference provision. In Matter of M.B., 350 Mont. 76, 82, 204 P.3d 1242 (2009), the Montana Supreme Court concluded the commentaiy to BIA Guideline F.3. “indicates the purpose of this exception is to protect the biological parents’ confidentiality, if they so choose.” Because the biological parents did not seek to protect their confidentiality in that case, the court held the exception did not apply to the parents’ request that their children be placed with their current foster family. 350 Mont. at 82-83. But see In re B.B.A., 224 P.3d 1285, 1287-88 (Okla. App. 2009) (holding that the “persuasive language” of BIA Guideline F.3. “authorizes reliance upon only one factor to establish the existence of good cause” and that one factor could be the request of the biological parents).
Returning to tire facts of this case, we note that tire record contains no indication that Mother requested confidentiality with respect to T.S.W.’s placement. Rather, Mother simply did not want T.S.W. placed with Father’s extended family members or members of the Tribe. Applying the above analysis, we conclude the district court erred in permitting Mother’s preference to override ICWA’s placement factors absent some request for confidentiality. Accordingly, we reverse the district court’s decision deviating from ICWA’s placement preferences in this case. | [
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The opinion of the court was delivered by
Luckert, J.:
As required by K.S.A. 22-3717(d)(l)(G), the district court in this case sentenced Andray S. Cameron, in part, to lifetime postrelease supervision for his convictions of three counts of aggravated indecent solicitation of a child. On appeal, Cameron argues his sentence to lifetime postrelease supervision is a disproportionate and cruel and/or unusual punishment that violates § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. Cameron also argues the district court erred by not recognizing the court had the discretion to sentence him to a shorter postrelease supervision term of 24 months under a different statutory subsection, K.S.A. 22-3717(d)(1)(B).
We reject Cameron’s arguments regarding the constitutionality of his sentence, concluding the lifetime postrelease supervision sentence is not disproportionate to the seriousness of Cameron’s crime, is not grossly disproportionate to the sentences imposed for other crimes in Kansas or similar crimes in other states, and is not categorically unconstitutional. We also reject his argument that the district court had discretion to sentence him to a postrelease supervision term of 24 months, finding there is no reasonable doubt that the Kansas Legislature intended the more severe penalty of lifetime postrelease supervision must be imposed when a defendant is sentenced for a sexually violent crime. Consequently, we affirm Cameron’s sentence.
Facts and Procedural Background
Cameron pleaded guilty to three counts of aggravated indecent solicitation of a child, in violation of K.S.A. 21-3511(a), a severity level 5 person felony. A person commits aggravated indecent solicitation of a child by “[e]nticing or soliciting a child under the age of 14 years to commit or to submit to an unlawful sexual act.” K.S.A. 21-3511(a).
Under the facts of this case, 45-year-old Cameron was married to the victim’s biological grandmother, making him the stepgrand-father of the 12-year-old female victim. According to the factual statement offered by the State as the basis for the plea, Cameron’s wife was “raising” the victim at the time of the incident. The State proffered that the victim told her grandmother that Cameron “put his thing up and down on her butt, soliciting her to engage in acts of an unlawful sexual nature, those acts being — act of sexual intercourse, and an act of criminal sodomy, and an act of lewd fondling of [the victim.]” The State also proffered that Cameron admitted to police that he had been drinking heavily. Cameron, after initially denying the allegations, in a second interview “confessed to waking up with an erect penis and pressing that against the back side of [the victim] and soliciting her for the sex acts described previously.” The district court accepted Cameron’s plea and found him guilty of three counts of aggravated indecent solicitation involving enticement to commit or submit to sexual intercourse, sodomy, and lewd fondling or touching.
As part of the plea agreement, it was agreed that Cameron would be sentenced to 24 months’ postrelease supervision. The district court determined, however, it could not follow the plea agreement because K.S.A. 22-3717(d)(l)(G) expressly mandates lifetime post-release supervision for sexually violent offenders; Cameron’s offense meant he fell within the mandate. The court offered Cameron the opportunity to withdraw his guilty plea, but Cameron decided not to withdraw his plea and instead chose to ask that the plea agreement be enforced. Cameron also filed a motion requesting a downward departure from lifetime postrelease supervision and a motion arguing lifetime postrelease supervision was cruel and/or unusual punishment under the Kansas Constitution and the United States Constitution. Cameron’s motion was essentially the same as that of the defendant in State v. Mossman, No. 103,111 (this day decided), who was represented by the same trial counsel.
Specifically, Cameron noted that K.S.A. 22-3717(d)(l)(G) provides that an individual convicted of a sexually violent crime committed on or after July 1, 2006, who is released from prison “shall be released to a mandatory period of postrelease supervision for the duration of the person’s natural life.” An individual sentenced to lifetime imprisonment under K.S.A. 21-4643 is excepted from this requirement. Included in the definition of sexually violent crimes is the crime of aggravated indecent solicitation of a child, Cameron’s crime of conviction in all three counts in this case. See K.S.A. 22-37l7(d)(2)(G).
Mandatory lifetime postrelease supervision includes a general requirement that the person cannot commit a new criminal offense and may include several other specific “conditions targeted toward facilitating rehabilitation, restitution, and safe reintegration into society. [Citation omitted.]” State v. Gaudina, 284 Kan. 354, 359, 160 P.3d 854 (2007). These conditions may include payment of costs, fines, and restitution; completing educational requirements; performing community service; reporting to a supervising officer; and abiding by other special conditions allowed by administrative regulations and orders. K.S.A. 21-4703(p) (defining “postrelease supervision”); K.S.A. 22-3717(m) (listing possible conditions). In addition to discussing these general conditions, Cameron, in his motion, stressed the potential of life in prison if he violates his postrelease conditions by committing a new felony. See K.S.A. 75-5217(c) (“upon revocation [of postrelease supervision], the inmate shall serve the entire remaining balance of the period of postrelease supervision”). Both the restrictions that accompany lifetime post-release supervision and the potential for life in prison, Cameron argued in his motion, makes the sentence disproportionate.
At sentencing, the district court denied Cameron’s motion for a sentencing departure. In addition, citing State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), the district court rejected Cameron’s contention that lifetime postrelease supervision is unconstitutional.
On appeal, Cameron renews his argument that lifetime post-release supervision constitutes cruel and/or unusual punishment under § 9 of the Kansas Constitution Bill of Rights and tire Eighth Amendment to the United States Constitution. Although in this appeal, Cameron has different counsel than Mossman’s appellate counsel, Cameron’s arguments are very similar to those asserted by Mossman. However, Cameron does make the additional argument that the district court had the discretion to sentence him to a shorter postrelease supervision term under a different statutory provision.
This court transferred Cameron’s case from the Court of Appeals pursuant to K.S.A. 20-3018(c) (transfer on court’s own motion), along with Mossman’s appeal. At the time of the transfer and in light of Cameron’s challenge under the Eighth Amendment’s ban on cruel and unusual punishment, this court directed the parties to file “supplemental briefs addressing whether the categorical analysis set out in Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010), which was decided after [Cameron’s] briefs were submitted, should apply.” The State’s brief in this appeal and in Mossman’s appeal were filed by the Shawnee County District Attorney’s office and made similar arguments in both appeals. As a result, the legal arguments in this case are essentially the same as those considered in Mossman and it is only the factual circumstances of the two cases that are distinguishable. See Mossman, 294 Kan. at 903-04.
§ 9 of the Kansas Constitution Bill of Rights
With that in mind, we first turn to Cameron’s argument that his lifetime postrelease supervision sentence, imposed pursuant to K.S.A. 22-3717(d)(l)(G), violates § 9 of the Kansas Constitution Bill of Rights. In Mossman, we determined the applicable standard of review for this issue, stating:
“[l]n deciding whether a sentence is cruel or unusual under § 9 of the Kansas Constitution Bill of Rights, a district court must make both legal and factual determinations. [Citation omitted.] When the district court’s decision is appealed, an appellate court applies a bifurcated standard of review: All of the evidence is reviewed, but not reweighed, to determine if there is sufficient support for the district court’s factual findings, and the district court’s legal conclusions drawn from those facts are reviewed de novo. [Citations omitted.]” Mossman, 294 Kan. at 906.
We also explained in Mossman that “[b]oth a district court making the initial determination regarding whether a statute is constitutional and an appellate court conducting a review of that determination are required by the separation of powers doctrine to presume tire statute is constitutional.” This means, we explained, that “if there is any reasonable way to construe a statute as constitutional, courts have the duty to do so by resolving all doubts in favor of constitutionality. [Citations omitted.]” Mossman, 294 Kan. at 906-07.
This presumption arises from the separation of powers doctrine, which also imposes a limitation on courts by prohibiting judicial resolution of issues that are not ripe for decision. Although recognizing the requirement of ripeness, in Mossman we rejected the State’s argument that a defendant’s arguments regarding the constitutionality of lifetime postrelease supervision are not ripe for decision on direct appeal. We reached this conclusion because,
“[e]ven though die supervision will not begin until sometime in the future after the defendant has completed a term of imprisonment and no one knows exactly what conditions will be imposed on the defendant at that time, die claim is ripe because the postrelease supervision term is part of the sentencing judgment and it is known that the defendant’s rights and liberties will be restricted in some manner.” Mossman, 294 Kan. 901, Syl. ¶ 3.
In light of that conclusion, we considered Mossman’s arguments, and likewise can consider those made by Cameron.
Freeman Factors
Cameron’s arguments regarding constitutionality under § 9 of the Kansas Constitution Bill of Rights are framed by this court’s decision in Freeman. In that decision, this court recognized: “Punishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” Freeman, 223 Kan. at 367. This court set out a three-part test to aid in administering this principle, stating:
“(1) The nature of the offense and tire character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of tire prescribed punishment;
“(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and
“(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.” Freeman, 223 Kan. at 367.
Accord State v. Levy, 292 Kan. 379, 384-85, 253 P.3d 341 (2011); State v. Reyna, 290 Kan. 666, 689, 234 P.3d 761, cert. denied 131 S. Ct. 532 (2010); State v. Mondragon, 289 Kan. 1158, 1162-63, 220 P.3d 369 (2009).
No one factor controls. “Ultimately, one consideration may weigh so heavily that it directs the final conclusion,” but “consideration should he given to each prong of the test.” State v. Ortega-Cadelan, 287 Kan. 157, 161, 194 P.3d 1195 (2008). Particularly where the focus of an argument is proportionality, which is the focus of Cameron’s arguments, “the factual aspects are a necessary part of the overall analysis.” Ortega-Cadelan, 287 Kan. at 161. Further, this court has stated that the use of these factors is disfavored if analyzing any aspect of a criminal sentence other than its length. See State v. Kleypas, 272 Kan. 894, 1032-33, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002), overruled in part on other grounds by State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2004), rev’d on other grounds Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006).
• First Freeman Factor
With regard to the first Freeman factor — nature of the offense and the character of the offender — Cameron, in his written brief to the district court, pointed to facts particular to this case:
“The nature of the offense involved [Cameron’s] soliciting his 12-year-old step-grand-daughter to commit or submit to three different sex acts on one occasion. He spoke not once, but twice to law enforcement about it and showed remorse. He immediately went into inpatient alcohol treatment at his own expense. He was 46 years old [sic] with no prior felony record. He had held a job with Goodyear for many years.”
At the motions hearing, Cameron also pointed the district court to the report of Dr. George Hough for evidence regarding the nature of the offense and Cameron’s character. It appears from the record that Dr. Hough was a psychologist who evaluated Cameron, but Dr. Hough’s report was not included in the record on appeal.
With regard to the first Freeman factor, the district judge made the following findings on the record:
“[T]he circumstances of die case appear to be tíiat Mr. Cameron did engage in some sort of unlawful activity with a child. She was I think 11, close to 12, when it occurred. He was extremely intoxicated, according to his statements, at die time. . . . [H]is version of the events was mirrored in his statements to Dr. Hough and to law enforcement officers ... in several statements.
“Mr. Cameron was totally cooperative with law enforcement. Had he not given statements, this case would have been substantially more difficult to prove, because, of course, it would have necessitated the testimony of the victim.
“Mr. Cameron did choose to accept responsibility for his actions as part of his treatment program.
“. . . [T]he Court does note that [Dr. Hough’s] report did contain information assessing Mr. Cameron’s risk levels to the community, risk for reoffending, et cetera. And his numbers were all very low for risk of future type of sexual offense. That he ... is not attracted to young children. His . . . sexual preferences and attractions are to adult females.
“There was, of course, the alcohol, which was a primary element to the intent in tiiis case, or according to Dr. Hough.
“But the point is, on this case, tiiat die nature of the offense, even what he agreed to plead to, the lesser offense, were clearly offenses that fall within diose offenses . . . provided by statute to be addressed by Jessica’s Law.”
On appeal, Cameron makes no attempt to argue how the first Freeman factor should be analyzed under his particular facts or how the district court’s findings should impact his appeal. Instead, he merely argues that the district court’s “analysis was insufficient.” It is unclear why Cameron would characterize those findings as insufficient, and Cameron’s counsel was unable to identify insuf- ficiencies when asked to do so during oral argument. The findings address the components outlined in the first Freeman factor, and we find them sufficient for appellate review.
As Cameron admits, his crime involved activities with a 12-year-old girl, who was his stepgranddaughter. Although alcohol was viewed as a significant causative factor, more so than a proclivity to engage in sexual activities with a child, there is no question that the crime is very serious and one that can create significant psychological harm. Substantial competent evidence supports the district court’s findings relating to the first Freeman factor, and we will not reweigh that evidence. In turn, the district court’s factual findings support its legal conclusion that the first Freeman factor does not weigh in Cameron’s favor.
Moreover, Cameron’s failure to adequately brief the issue constitutes a waiver of any arguments regarding the first Freeman factor. See State v. Raskie, 293 Kan. 906, Syl. ¶ 5, 269 P.3d 1268 (2012). Nevertheless, we must address the other Freeman factors.
• Second Freeman Factor
Under the second Freeman factor — comparison of his punishment with punishments imposed in this jurisdiction for more serious offenses — Cameron argued in his presentencing motion, as he does on appeal, that his lifetime postrelease supervision sentence is disproportionate to other sentences in Kansas. He provides the example of intentional second-degree murder, which carries a longer prison sentence but carries a shorter postrelease supervision term of only 36 months. Cameron also provided the sole example of second-degree murder at the motions hearing before the district court. See K.S.A. 21-3402 (intentional second-degree murder is a severity level 1 person felony); K.S.A. 21-4704(a) (for a severity level 1 person felony, presumptive prison sentence with criminal history score of “I” is 165-155-147 months’ incarceration; presumptive prison sentence with criminal history score of “H” is 186-176-166 months’ incarceration); K.S.A. 22-3717(d)(l)(A) (36 months’ postrelease supervision). Although the district court did not specifically address the disproportionality of the sentence as compared to one imposed for second-degree murder, the judge concluded: “I’m without specific evidence to show that application of the law in this case would be disproportionate to . . . other sentences imposed within this jurisdiction.”
This same argument was discussed in Mossman. There, we concluded that while a defendant subject to lifetime postrelease supervision is under a longer cumulative sentence than a defendant sentenced for second-degree murder, a “sentence to lifetime post-release supervision [for a sexually violent offense] is not grossly disproportionate in relation to the sentence applicable to second-degree murder in Kansas when we consider the penological purposes, the seriousness of the crime, and the other concerns discussed in relation to the first Freeman factor.” Mossman, 294 Kan. at 917. In other words, the difference in proportionality between Cameron’s sentence, especially in light of the factual circumstances, and one imposed for second-degree murder is not so significant that the second Freeman factor outweighs the first Freeman factor.
But, we still must evaluate this conclusion in light of the third Freeman factor.
• Third Freeman Factor
Under the third Freeman factor — comparison of the penalty with punishments in other jurisdictions for the same offense— Cameron made the general acknowledgment in his presentencing motion and at the motions hearing that many states have passed some form of “Jessica’s Law.” He argued in his written motion that this did not foreclose his requested relief because “in Ortega-Cadelan, 287 Kan. 157,... the Court said, ‘Ultimately, one consideration may weigh so heavily that it directs the final conclusion.’ Not all three Freeman factors need to be found to find the sentence unconstitutional.” And in Cameron’s arguments at the motions hearing, he also pointed to Massachusetts as an example of a state that changed its laws to allow district courts to exercise discretion in deciding whether “to impose the life time” sentence. See Mass. Gen. L. ch. 265, § 45 (2010) (some enumerated sex offenders “may” be sentenced to lifetime parole supervision; others “shall” be sentenced to lifetime parole supervision).
The district court summarily rejected these arguments, concluding it did not “have sufficient information to show that application in this case would be disproportionate to the application in other jurisdictions.” On appeal, Cameron cites to the limited use of post-release supervision in other states for crimes similar to aggravated indecent solicitation of a child.
Essentially the same arguments regarding the third Freeman factor were presented in Mossman. If anything, Cameron presents a weaker argument because he admits six other states impose man-datojy lifetime postrelease supervision in cases involving crimes like Kansas’ aggravated indecent solicitation of a child. See Colo. Rev. Stat. § 18-1.3-1001 (2011) (Colorado); Mont. Code Ann. § 45-5~625(4)(b) (2011) (Montana); Nev. Rev. Stat. §§ 176.0931, 179D.097 (2011) (Nevada); N.J. Stat. Ann. § 2C:43-6.4(a), (c) (2005) (New Jersey); OHa. Stat. tit. 22, § 991a (A)(13); tit. 57, § 584 (N)(2) (2011) (Oklahoma); Utah Code Ann. § 76-3-202(3)(a) (2008) (Utah). In contrast, in Mossman, only three states had the same mandatory requirement for a crime comparable to aggravated indecent liberties with a child, although several states had similar provisions or made for discretionary imposition of lifetime post-release supervision for crimes like that committed by Mossman. See, e.g., Or. Rev. Stat. §§ 144.103(2), 163.375(l)(c) (2011).
While we find some merit to Cameron’s arguments that only a minority of states impose a similar punishment, the lifetime post-release supervision sentence is proportionate to sentences mandated in some other jurisdictions and is not grossly disproportionate in light of the strength of the first Freeman factor. As we held in Mossman:
“Under the facts of this case, a defendant’s sentence of lifetime postrelease supervision under K.S.A. 22-3717(d)(l)(G) for the crime of aggravated indecent liberties with a child is not cruel or unusual punishment under § 9 of the Kansas Constitution Bill of Rights; in other words, it is not so disproportionate to the crime that it shocks the conscience and offends fundamental notions of human dignity. F actors leading to this conclusion include: the nature of the offense, which is serious and is a sex crime against a minor that historically has been treated as a forcible or violent felony regardless of whether there is physical force; the defendant’s characteristics; and the penological goals of postrelease supervision, which include retribution, deterrence, incapacitation, and rehabilitation. These factors outweigh the lack of strict proportionality with other sentences in Kansas and other jurisdictions, especially given that the sentence is not grossly disproportionate.” Mossman, 294 Kan. 901, Syl. ¶ 5.
For these same reasons, Cameron’s sentence for the crime of aggravated indecent solicitation of a child does not violate § 9 of the Kansas Constitution Bill of Rights.
Eighth Amendment to the United States Constitution
Next, Cameron argues his lifetime postrelease supervision sentence violates the prohibition against cruel and unusual punishment under the Eighth Amendment to the Unites States Constitution. Under Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010), a challenge pursuant to the Eighth Amendment to a term-of-years sentence as disproportionate and therefore cruel and unusual punishment falls into one of two general classifications. “The first [category] involves challenges to the length of term-of-years sentences given all the circumstances in a particular case. The second comprises cases in which the Court implements the proportionality standard by certain categorical restrictions on the death penalty.” Graham, 130 S. Ct. at 2021; see State v. Gomez, 290 Kan. 858, 863-66, 235 P.3d 1203 (2010) (discussing Graham). These two classifications will be discussed separately.
1. Case-Specific Proportionality Challenge
With regard to the first federal classification — involving a case-specific proportionality analysis — in Mossman, we held this issue involves the same standard of appellate review as applies to the application of the Freeman factors. As opposed to the district court which decided Mossman’s motions and considered pre-Graham Eighth Amendment decisions, the district court in this case did not specifically address the Eighth Amendment. Nevertheless, Cameron does not suggest any reason why our application of the Freeman factors would not control the case-specific considerations under the Eighth Amendment. Cameron argues the Kansas Constitution provides him broader protection than does the Eighth Amendment. In contrast, he does not suggest any basis for finding case-specific disproportionality under the Eighth Amendment to the United States Constitution if we have rejected such an argument under § 9 of the Kansas Constitution Bill of Rights.
Further, as we noted in Mossman, the United States Supreme Court has emphasized that it is only the rare case where the threshold comparison of the gravity of tire offense and the harshness of the penalty will lead to an inference of gross disproportionality. Mossman, 294 Kan. at 922-23 (citing Graham, 130 S. Ct. at 2022). This case is not such a rare case given the severity of the crime. Moreover, while the sentence is lengthy, lifetime postrelease supervision is not as harsh a punishment as imprisonment and is aimed at safely integrating a sex offender into society and protecting the public. Given the seriousness of the offense, the vulnerability of Cameron’s victim, the potential psychological damage to the victim, and the penological goals of postrelease supervision, we conclude Cameron’s case-specific arguments are unavailing.
2. Categorical Proportionality Challenge
In response to this court’s order for supplemental briefing, Cameron also takes a broader approach by asserting that the second federal classification- — -a categorical proportionality — leads to the conclusion that lifetime postrelease supervision imposed for a certain class of offenders is cruel and unusual punishment under the Eighth Amendment to the United States Constitution. In Graham, the Court indicated its earlier decisions had considered two categorical subsets in the context of its death penalty cases: one related to the nature of the offense, the other to the characteristics of the offender. Graham, 130 S. Ct. at 2022.
Cameron describes this class of offenders as those who have committed “a sex offense, not involving pornography, where the offender and the victim do not engage in physical contact, much less a physical sexual act.” The State argues that Cameron tries to name a much too narrow class of offenders and that by making such a narrow and specific class at issue, Cameron essentially makes a “thinly veiled attempt at a second chance at the Freeman analysis.” The State also asserts that Cameron is not even a member of his proposed class of offenders in that “Cameron pled guilty to the act of placing his penis on a 12-year-old child’s buttocks along with other acts of solicitation.” In response to this latter point made by the State, Cameron argues: “Although the statement that Mr. Cameron pressed his penis against ‘the back side of J.M.’ was included in the State's factual basis [at the plea hearing], this was not an element of the charged crime.”
Regardless of the factual basis of the plea, as we held in Moss-man, we do not find a basis for considering a classification of an offense that is any narrower than the crime of conviction — aggravated indecent solicitation of a child. See Mossman, 294 Kan. at 929 (concluding category for analysis was crime of conviction, which in that case was aggravated indecent liberties with a child). Consideration of categorical challenges, we held in Mossman, presents an issue of law subject to unlimited review. Mossman, 294 Kan. at 925.
In Mossman, we rejected a categorical argument relying on United States v. Williams, 636 F.3d 1229 (9th Cir.), cert. denied 132 S. Ct. 188 (2011). In Williams, the Ninth Circuit Court of Appeals considered whether lifetime supervised release for child pornography was cruel and unusual punishment. In rejecting the constitutional challenge, the court stated:
“Here, ‘objective indicia’ suggest that society is comfortable with lifetime sentences of supervised release for sex offenders, as such sentences are common. According to the United States Sentencing Commission, in the last five years, federal courts have sentenced 1875 defendants convicted of child pornography and child prostitution crimes to lifetime supervised release. See U.S. Sentencing Comm’n, Federal Offenders Sentenced to Supervised Release 58-59 (July 2010), www.ussc.gov/general/20100722_Supervised_Release.pdf. Ry way of comparison, in banning the sentence of life without parole for juvenile nonhomicide offenders, the Supreme Court noted that there were then just 123 people in the county serving such sentences. See Graham, 130 S. Ct. at 2024. Further, the percentage of federal sex offenders receiving life terms of supervised release is increasing, climbing from 9.3 percent in 2005, to 20.5 percent in 2009. [Citation omitted.]” Williams, 636 F.3d at 1233-34.
In addition, as we have previously discussed here and in Moss-man, several other states have adopted lifetime postrelease supervision for many, if not, all sexually violent crimes. Mossman, slip op. at 20-22. Hence, the numbers cited in Williams do not reflect the total number of sex offenders subject to lifetime postrelease supervision.
The Williams court next exercised its “ ‘independent judgment’ ” by considering “ ‘whether the challenged sentencing practice serves legitimate penological goals.’ ” Williams, 636 F.3d at 1234 (quoting Graham, 130 S. Ct. at 2026). The Williams court noted that the goals of rehabilitation and incapacitation “are central purposes of the criminal justice system, and they are particularly critical here given the propensity of sex offenders to strike again.” More specifically, the court noted: “Supervised release can further the end of rehabilitating sex offenders. . . . Relatedly, supervised release helps incapacitate sex offenders by keeping them under the watchful eye of probation officers who may be able to detect problems before they result in irreparable harm to innocent children.” Williams, 636 F.3d at 1234.
The Ninth Circuit’s conclusion applies equally to those sentenced in Kansas to postrelease supervision for the crime of aggravated indecent solicitation of a child.
As a result, we hold that Cameron’s sentence of lifetime post-release supervision under K.S.A. 22-3717(d)(l)(G) for his conviction of aggravated indecent solicitation of a child is not categorically disproportionate and, therefore, is not cruel and unusual punishment under the Eighth Amendment to the United States Constitution.
K.S.A. 22-3717(d)(l)(B)
Finally, Cameron argues that the district court erred in imposing lifetime postrelease supervision under K.S.A. 22-3717(d)(l)(G) because the court had the authority and discretion to sentence him to a shorter postrelease supervision term, 24 months, under a different statutory subsection, K.S.A. 22-3717(d)(l)(B). This issue requires us to construe K.S.A. 22-3717(d)(l), and this task presents a question of law over which this court exercises unlimited review. See State v. Sellers, 292 Kan. 346, 356, 253 P.3d 20 (2011); State v. Ballard, 289 Kan. 1000, 1010, 218 P.3d 432 (2009).
The subsection of K.S.A. 22-3717 on which Cameron relies, (d)(1)(B), provides:
“Except as provided in subparagraphs (D) and (E), persons sentenced for non-drug severity levels 5 and 6 crimes and drug severity level 3 crimes must serve 24 months, plus the amount of good time and program credit earned and retained pursuant to K.S.A. 21-4722, and amendments thereto, on postrelease supervision.”
Cameron acknowledges that his offense also falls under K.S.A. 22-3717(d)(l)(G), which requires an offender convicted of a “sexually violent crime” committed after July 1, 2006, to receive lifetime postrelease supervision upon release from prison. “Sexually violent crime” includes aggravated indecent solicitation with a child under K.S.A. 21-3511. See K.S.A. 22-3717(d)(2)(G). But Cameron argues that both subparagraphs of subsection (d)(1) — (d)(1)(B) and (d)(1)(G) — apply because both are Usted in the statute and the language in (d)(1)(B) does not create an exception for offenses falling under (d)(1)(G). He essentially contends the rule of lenity requires the lesser of the two postrelease supervision terms.
A similar argument was considered in State v. Chavez, 292 Kan. 464, 254 P.3d 539 (2011), in which the defendant sought the application of the more lenient sentencing provisions of one subpar-agraph of a statute’s subsection rather than a harsher penalty in the same subsection. As in this case, the more lenient provision was more general and the harsher provision was more specific. The court noted that the circumstance of having to “reconcile two provisions within the same subsection of the same statute . . . triggers a responsibility that this court consider the various provisions of the act in pari materia with a view of reconciling and bringing the provisions into workable harmony, if possible. [Citation omitted.]” Chavez, 292 Kan. at 467. Discussing tire rules of strict construction and lenity that apply to the construction of ambiguous criminal statutes, the Chavez court noted: “[T]he general rule of strict construction of criminal statutes is constrained by the rule that the interpretation must be reasonable and sensible to effect legislative design and intent. [Citation omitted.] Moreover, the rule of lenity is subject to the existence of ‘any reasonable doubt’ as to the statute’s meaning.” Chavez, 292 Kan. at 468. In part because of the specific language of one subparagraph as compared to the more general language of the other subparagraph, the court concluded there could be no reasonable doubt that the legislature intended for the more specific and severe penalty to apply. Chavez, 292 Kan. at 468; see also State v. Martinez, 290 Kan. 992, 1001, 236 P.3d 481 (2010) (citing In re 285 Kan. 53, 82, 169 P.3d 1025 [2007], cert. denied 555 U.S. 937 [2008]) (indicating a specific provision within a statute controls over a more general provision within tire statute).
Likewise, when we consider tire provisions of K.S.A. 22-3717(d)(1) in pari materia with a view of reconciling and bringing the provisions into workable harmony there is no reasonable doubt that the legislature intended the more specific and more severe provision of (d)(1)(G) to apply to a sentence imposed for a conviction of a sexually violent offense rather than the more general provision of (d)(1)(B) that Cameron seeks to apply. This means that an offender convicted of a “sexually violent crime” committed after July 1, 2006, must be sentenced to receive lifetime postrelease supervision upon release from prison.
The district court did not err in imposing lifetime postrelease supervision under K.S.A. 22-3717(d)(l)(G).
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The opinion of the court was delivered by
Biles, J.:
Essex Sims directly appeals the summary denial of his pro se motion to correct an illegal sentence. He asserts five claims of error. Four challenge his convictions, not his sentence, and the fifth contends the district court’s order was unclear as to whether his sentences were consecutive or concurrent. We affirm the district court’s summary denial. A motion to correct an illegal sentence cannot be used to challenge a conviction, so the four claims at tacking his convictions are not properly raised. See State v. Deal, 286 Kan. 528, Syl. ¶ 2, 186 P.3d 735 (2008). As to the fifth argument, we have reviewed the sentencing hearing transcript and hold there is no reasonable interpretation that supports Sims’ argument.
Factual and Procedural Background
A jury convicted Sims of one count of first-degree felony murder, two counts of aggravated battery, one count of criminal discharge of a firearm at an occupied building, and one count of criminal possession of a firearm. The charges resulted from a 1995 drive-by shooting. Sims was sentenced to life in prison for felony murder and a consecutive 140 months for the remaining offenses. This court affirmed his convictions in State v. Sims, 262 Kan. 165, 936 P.2d 779 (1997).
More tiran 7 years later, Sims filed a K.S.A. 60-1507 motion collaterally attacking his convictions based on ineffective assistance of counsel. He argued his trial counsel failed to investigate Sims’ self-defense claim, object to prosecutorial misconduct, and object to the admission of gang-related evidence. The district court summarily denied the motion. The Court of Appeals affirmed. Sims v. State, No. 93,676, 2006 WL 995364, at *1 (Kan. App. 2006) (unpublished opinion). In 2011, Sims filed his current pro se motion to correct an illegal sentence, raising five new issues.
First, he argues the trial court lacked jurisdiction to convict him of criminal discharge of a firearm at an occupied dwelling because the complaint did not state that the crime was committed “maliciously” and “without authorization.” Sims claims these were essential elements of the criminal discharge offense. He also argues that the complaint was defective because it omitted the crime severity level, and the evidence admitted at trial did not fit the charge because the State claimed he was shooting “at” the people, not the building.
Second, Sims argues the trial court lacked jurisdiction to convict him of felony murder. He notes he was charged with criminal discharge of a firearm in violation of K.S.A. 1994 Supp. 21-4219(b), which served as tire underlying felony for the felony-murder conviction, but that the complaint did not specify which subsection of K.S.A. 1994 Supp. 21-4219 applied for the felony-murder charge. It simply charged him with an unlawful killing “in the commission of the crime of Discharging a Firearm at an occupied dwelling as defined by K.S.A. 21-4219.”
Third, Sims argues the trial court lacked jurisdiction to convict him of criminal possession of a firearm because the complaint did not indicate which subsection of the corresponding statute, K.S.A. 1994 Supp. 21-4204, was violated. The jury was instructed on K.S.A. 1994 Supp. 21-4204(a)(3).
Fourth, Sims contends the trial court lacked jurisdiction to convict him on two counts of aggravated battery because the charges, which stemmed from injuries to two different people during the same shooting spree, “arose from one single act.” He argues the second aggravated battery conviction violates double jeopardy principles. He asserts that sentence, which was ordered to run consecutive to the first aggravated battery conviction, must be vacated.
Fifth, Sims argues the trial court’s order was ambiguous as to whether consecutive sentences were imposed, even though he concedes the trial court clearly stated during the sentencing hearing that each sentence was to “run consecutive” to the previous one. But Sims claims his sentence was later made ambiguous when the trial court stated Sims was to be delivered to the Secretary of Corrections “to serve the sentences that have been imposed.” The journal entry of judgment, however, reflects that consecutive sentences were ordered.
In its response to Sims’ motion before the district court, the State argued drat Sims was challenging his convictions — not alleging he received an illegal sentence, which is what K.S.A. 22-3504 requires. Therefore, the State argued, the issues raised were inappropriate for a motion to correct an illegal sentence. The district court agreed and denied the motion without holding an evidentiary hearing. The handwritten journal entry states: “The defendant’s trying to use this motion as a collateral attack upon his conviction. The argument of the State in its written response is persuasive.” Sims filed a timely appeal. This court has jurisdiction over this motion to correct an illegal sentence because it was filed in a case in which the defendant received a life sentence. See K.S.A. 2011 Supp. 22-3601(b)(3) (appeal from life sentence).
Analysis
Through counsel before this court, Sims argues the district court erred by summarily denying his motion to correct an illegal sentence. He seeks remand for a hearing conducted with his personal presence and appointed counsel. Whether a sentence is illegal is a question of law over which this court has unlimited review. Deal, 286 Kan. at 529.
Sims first argues the district court lacked authority to summarily deny his motion to correct an illegal sentence. He urges us to overrule State v. Duke, 263 Kan. 193, 194-96, 946 P.2d 1375 (1997), in which a similar argument was raised and denied. But we have consistently declined to overrule Duke based upon the identical argument. See, e.g., State v. Pennington, 288 Kan. 599, 601, 205 P.3d 741 (2009) (“K.S.A. 22-3504 does not automatically require a full hearing, or appointment of counsel, upon the filing of a motion to correct an illegal sentence. The district court first makes a preliminary examination of the motion. Based upon that examination, the motion can be denied ‘ “without a hearing or appointment of counsel if the district court determines the motion, files, and records of the case conclusively show the defendant is not entitled to relief.” ’ ”); State v. Conley, 287 Kan. 696, 701-04, 197 P.3d 837 (2008); State v. Hoge, 283 Kan. 219, 223-25, 150 P.3d 905 (2007). Duke and Pennington were most recently affirmed in State v. Timley, Nos. 103,039, 103,040, 2011 WL 430567, at *2 (Kan. 2011) (unpublished opinion). Sims does not offer a persuasive argument or supporting authority on why we should now reconsider Duke and the decisions drat followed.
In the alternative, Sims argues the district court erred by summarily denying his motion because it raised substantial issues of fact and law that required a hearing, although he does not pinpoint what was raised that would require a hearing. The State counters that summary denial was proper because Sims’ contentions do not fit within the narrow category of claims appropriately raised in a motion to correct an illegal sentence under K.S.A. 22-3504. The State claims that rather than attacking his sentence, Sims is trying to collaterally attack the underlying convictions by essentially arguing that the criminal complaint was defective. Therefore, the threshold question is whether Sims’ claims can be raised in a motion to correct an illegal sentence.
K.S.A. 22-3504 only applies to claims that a sentence is illegal. An illegal sentence is a sentence that (1) is imposed by a court without jurisdiction; (2) does not conform to the statutory provision, either in character or the term of the punishment authorized; or (3) is ambiguous with regard to the time and manner in which it is to be served. Deal, 286 Kan. 528, Syl. ¶ 1. The only relief available under K.S.A. 22-3504 is correction of an illegal sentence. State v. Nash, 281 Kan. 600, 601, 133 P.3d 836 (2006). It does not provide the means to reverse a conviction. Deal, 286 Kan. at 529-30. Sims argues his claims fit within this narrow category of issues because he is arguing the trial court lacked jurisdiction to impose a sentence. We disagree.
The first three of Sims’ claims challenge the sufficiency of die complaint. Sims argues the felony-murder charge did not list all essential elements or indicate which subsection of K.S.A. 1994 Supp. 21-4204 was violated. He also contends the criminal discharge of a firearm and criminal possession of a firearm charges were insufficient on various grounds, including that the complaint omitted essential elements of the crime.
This court has previously held that a motion to correct an illegal sentence is an inappropriate vehicle to dispute whether a complaint was defective because such a claim challenges the conviction, not the sentence. Deal, 286 Kan. at 530 (arguing the complaint was defective); Hoge, 283 Kan. at 225-26 (same); Nash, 281 Kan. at 601-02 (same). The district court did not err by summarily denying Sims’ claims.
Sims’ fourth argument — that the trial court lacked jurisdiction to convict him on two counts of aggravated battery because the charges arose from the same shooting spree — appears to claim that the aggravated batteiy convictions were multiplicitous. See State v. Schoonover, 281 Kan. 453, 475, 133 P.3d 48 (2006) (multiplicity is the charging of a single offense in several counts of a complaint). In State v. Edwards, 281 Kan. 1334, 1338-39, 135 P.3d 1251 (2006), this court considered whether sentences imposed for mul-tiplicitous convictions in violation of double jeopardy may be challenged under K.S.A. 22-3504 because they are “sentences imposed by a court without jurisdiction.” The Edwards court held those claims cannot be brought under K.S.A. 22-3504 because multiplicity is not a jurisdictional defect. 281 Kan. at 1341. Therefore, this issue was not properly raised under K.S.A. 22-3504.
In contrast, Sims’ fifth argument does allege a sentencing error. He contends the trial court’s order is ambiguous as to whether his sentences for the lesser crimes were ordered to run concurrently or consecutively. See Deal, 286 Kan. at 529-30 (motion to correct an illegal sentence may be used to correct sentence that is ambiguous as to time that is required to be served). Therefore, this court must examine whether summaiy denial of that claim was appropriate.
When a motion to correct an illegal sentence is summarily denied, we review de novo whether the defendant’s motion, record, and files conclusively show defendant is entitled to no relief. State v. Jones, 292 Kan. 910, 913, 257 P.3d 268 (2011). “[Djeference need not be given to the district court’s factual findings because appellate courts have the same access to the motion, records, and files as the district court.” State v. Howard, 287 Kan. 686, 691, 198 P.3d 146 (2008).
But the problem with Sims’ fifth claim is that no reasonable interpretation of the trial court’s order supports a finding of ambiguity. At the sentencing hearing, the trial judge stated:
“HI impose a life sentence as required by law [for Count Number 2, felony murder]. Count Number 3, aggravated battery, Ill impose sentence of 75 months to run consecutive to Count Number 2. Count Number 4, I’ll impose a sentence of 43 months to run consecutive to Count Number 3. Count Number 1, I’ll impose a sentence of 13 months to run consecutive to Count Number 4. And, in Count Number 5, I’ll impose a sentence of 9 months to run consecutive to Count Number 1.”
The trial court then stated, “Mr. Sims will receive credit for time served in the Sedgwick County jail. He’ll be delivered by the Sheriff to the Secretary of Corrections to serve the sentences that have been imposed.” (Emphasis added.) This simply remanded Sims to State custody. It cannot be read to mean that the trial court meant to impose concurrent sentences instead. The sentence is not ambiguous.
We hold that the motion, record, and files conclusively show Sims was not entitled to relief. The district court did not err when it summarily denied the motion to correct an illegal sentence.
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The opinion of the court was delivered by
Biles, J.:
Anthony Ebaben appeals from the district court’s denial of his pre-sentence motion to withdraw an Alford plea to one count of sexual batteiy. By entering an Alford plea, Ebaben pleaded guilty without admitting he committed the crime. He now claims he should be permitted to withdraw this plea because: (1) the trial court erred by accepting his plea without establishing a factual basis for it; and (2) he felt pressured to enter the plea because his attorney had not subpoenaed any trial witnesses. The Court of Appeals affirmed. State v. Ebaben, No. 102,129, 2010 WL 1078464 (Kan. App. 2010) (unpublished opinion). We reverse and remand to the district court to permit Ebaben to withdraw his plea because the district court erred by not establishing the factual basis for the plea as required by K.S.A. 22-3210(a)(4). We do not address the second claim.
Factual and Procedural Background
The State charged Ebaben with one count of indecent liberties with J.P., a child between 14 and 16 years of age; one count of sexual battery of T.R., a person 16 years of age or older; one count of furnishing alcohol to a minor; and one count of driving on a suspended, canceled, or revoked license. But under a plea agreement all charges were dropped, except for a revised misdemeanor sexual battery charge naming J.P. as the victim. J.P. was 1 month short of her 16th birthday at the time of the offense. A written plea agreement is not included in the appellate record. A description of what occurred at the plea hearing is necessary to discuss the issues presented.
On the day Ebaben’s jury trial was to begin, the State advised the district court that Ebaben had agreed to plead guilty to the revised misdemeanor sexual battery charge under North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) (accused may plead guilty without admitting the commission of the offense if accused intelligently concludes his or her interests so require and the record strongly evidences guilt). See State v. Case, 289 Kan. 457, Syl. ¶ 2, 213 P.3d 429 (2009) (“An Alford plea is a plea of guilty to á criminal charge but without admitting to its commission, i.e., to the truth of the charge and every material fact therein. The defendant may accomplish this in two ways: by affirmatively protesting innocence or by simply refusing to admit the acts constituting the charge.”). The district court confirmed this with Ebaben’s attorney and then summarized the charge to Ebaben and advised him the maximum penalty was 1 year in county jail and a $2,500 fine.
The district court’s summary of the charge contained most of the details from the amended complaint, except that it omitted the victim’s date of birth and the location of the offense. The amended complaint stated:
“That on or between the 1st day of August, 2007, and tire 30th day of August, 2007, in Marion County, Kansas, Anthony Alexander Ebaben, then and there being present did unlawfully, intentionally and without consent touch JP (DOB: 9/4/91), who was 16 or more years of age and not the spouse of tire defendant, with the intent to arouse or satisfy the sexual desires of the defendant or another, in violation of K.S.A. 21-3517, SEXUAL BATTERY, a class A person misdemeanor.”
Ebaben was not asked at the time he entered his plea whether he was furnished a copy of the amended complaint.
The district court informed Ebaben that by entering a plea he would be giving up his right to a jury trial with appointed counsel at which the State would have to prove beyond a reasonable doubt that he committed the charged crime. Ebaben stated that he did not have any questions and agreed that no one had “threatened [him] in any way or pressured [him] to get [him] to plead” to the charge. Ebaben also indicated he understood the plea agreement and that the other charges would be dismissed if he pleaded to sexual battery. The district court then asked Ebaben, “[H]ow do you plead?” and Ebaben replied, “No contest.” The district judge responded by stating, “I don’t think thát’s an option (unintelligible).” Then, the following discussion between the district judge and Ebaberis attorney occurred:
“Mr. Harger: I’m not sure exactly what plea this is that’s being entered.”
“The Court: Uh—
“Mr. Harger: I’m not sure how to do the Alford plea, or what process you want to go through.
“The Court: I think he can — he can plead, and I’ll go through the questioning process with him, but if he’s going to plead, uh, Alford fashion, I think he needs to plead guilty.
“Mr. Harger: Okay. Well, we — we don’t want to make an admission to ... that misdemeanor through a guilty plea.
“The Court: Well, let me make . . . the inquiry in advance, and then well go back to this point.
“Mr. Harger: That makes sense.”
The district court asked Ebaben whether he thought it was in his best interest to enter a plea to the charge, even though he did not necessarily want to admit to the specific allegations. Ebaben said, “Yes.” The court then stated:
“It is possible for someone to plead to something that they say they didn’t specifically do, if they feel like there are other charges the State could bring that, uh, could, that they might have some . . . exposure to. . . . [T]hey feel like it’s in their best interest, as a part of a plea bargain to plead to something that they don’t necessarily admit drat they did, or that they don’t necessarily . . . think the State could prove. And that’s called an Alford plea. Basically, it means that, uli, you are pleading to something because you feel like you’re getting the benefit of the bargain you entered into, but you’re not necessarily admitting that it happened. Is that what you wish to do here?”
Ebaben indicated this was what he wanted to do, and the district judge informed him that he was “going to have to plead guilty,” stating “I don’t think you can plead no contest in — in an Alford plea. So, if you can make that plea ... by pleading guilty because you feel it’s in your interest to do so, as a part of your plea agreement.”
After the court’s Alford plea description, Ebaben’s attorney stated that he would “allow [Ebaben] to go ahead and plead guilty” based on the court’s inquiry and the record of the nature of the plea. Then, the district court asked Ebaben a second time how he would plead, and Ebaben stated “guilty.” The judge then stated, “I don’t need a factual basis from [the State].”
The district court found the plea was free, knowing, and voluntary, and it pronounced Ebaben guilty of sexual battery. A sentencing hearing was scheduled for another date, but before sentencing Ebaben filed a written motion to withdraw the plea. He claimed the district court had failed to comply with K.S.A. 22-3210(a)(4), the statute for accepting pleas, by not stating a sufficient factual basis of the evidence supporting the charge. He also claimed he was pressured into pleading guilty.
At the motion hearing, the district court found Ebaben had entered his plea freely, knowingly, and voluntarily, and had not established good cause to withdraw it. The district court noted that Ebaben had met with his attorney several times, that defense counsel was prepared for trial, and that the court and defense counsel had reviewed Ebaben’s rights with him on the day of the plea, although the court acknowledged this review was less extensive because Ebaben was pleading to a misdemeanor charge. The court also found there was clear evidence Ebaben benefitted from the plea.
As to the argument regarding the factual basis for the plea, the district court admitted the better practice would have been to require a proffer from the State and conceded that “we got ... a little cross-wise” based on the confusion as to whether Ebaben intended to plead guilty or no contest. But the court found that regardless of that confusion, the failure to proffer a factual basis was not relevant to whether there was good cause to set aside the plea and that it was less important to proffer a factual basis under an Alford plea because it allows a defendant to plead to something for which there may not be any factual basis.
Ebaben was sentenced to 42 days in jail with credit for time served as a condition of release on 12 months’ probation, with an underlying 12-month jail sentence. He timely appealed to the Court of Appeals, which affirmed. Ebaben, 2010 WL 1078464, at *4. Ebaben petitioned this court for review, which was granted. Jurisdiction arises under K.S.A. 20-3018(b) (review of Court of Appeals decision).
Analysis
Ebaben claims he established good cause to withdraw his Alford plea and advances two theories as to why the district court should have allowed him to proceed to a jury trial on the felony charges. First, Ebaben contends the trial court was required by K.S.A. 22-3210(a)(4) to satisfy itself that there was a factual basis for the plea before it was accepted and that no factual basis was presented. Second, he argues he was pressured into entering a plea because his trial was supposed to begin that morning and his attorney had not subpoenaed any witnesses for his defense. Because we agree with Ebaben that the district court erred when accepting the plea under the statute, we do not address the second argument.
Standard of Review
An appellate court reviews the district court’s decision on a pre-sentencing motion to withdraw a plea for an abuse of discretion. See K.S.A. 22-3210(d); State v. Williams, 290 Kan. 1050, 1053, 236 P.3d 512 (2010). Judicial discretion is abused if judicial action is (1) arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) based on an error of fact, i.e., if substantial com petent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. State v. McCullough, 293 Kan. 970, Syl. ¶ 5, 270 P.3d 1142 (2012).
Was a Factual Basis for Ebaben’s Plea EstablishedP
A district court considers three factors when determining if the defendant demonstrates good cause, including whether: (1) the defendant was represented by competent counsel; (2) the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) the plea was fairly and understanding^ made. Williams, 290 Kan. at 1053. But all three factors need not apply in the defendant’s favor, and tire district court may consider other factors when determining if good cause is shown. 290 Kan. at 1054 (citing State v. Aguilar, 290 Kan. 506, 513, 231 P.3d 563 [2010]).
Ebaben argues he established the good cause necessary to withdraw his plea because there was no proffer of a factual basis given for the plea before it was accepted by the trial court as required by K.S.A. 22-3210(a)(4). The State argues the trial court’s summary of the complaint was sufficient. We must first address what is required to establish the factual basis for Ebaben’s plea. K.S.A. 22-3210 states in relevant part:
“(a) Before or during trial a plea of guilty or nolo contendere may be accepted when:
(1) The defendant or counsel for the defendant enters such plea in open court; and
(2) in felony cases the court has informed the defendant of die consequences of the plea, including the specific sentencing guidelines level of any crime committed on or after July 1, 1993, and of the maximum penalty provided by law which may be imposed upon acceptance of such plea; and
(3) in felony cases the court has addressed die defendant personally and determined that die plea is made voluntarily with understanding of the nature of die charge and the consequences of the plea; and
(4) the court is satisfied that there is a factual basis for the plea.” (Emphasis added.)
K.S.A. 22-3210(a)(4) requires a trial court to establish that all elements of the crime charged are present before accepting a defendant's plea. State v. Edgar, 281 Kan. 30, 42-43, 127 P.3d 986 (2006) (Alford plea); State v. Shaw, 259 Kan. 3, 7, 910 P.2d 809 (1996) (no contest plea). But Ebaben argues that K.S.A. 22-3210(a)(4) requires more when the defendant pleads guilty while maintaining his or her innocence. We need not consider that argument because the factual basis set out for Ebaben’s plea was insufficient without regard to whether his plea was based on Alford.
We have held in both Alford and no contest plea cases that a factual basis for a plea may be satisfied: (1) by a complaint or information given or read to the defendant which sets forth the factual details and essential elements of tire particular crime charged; (2) by the prosecutor or defendant’s factual statement presented to the court at the plea hearing; or (3) based on the evidence presented at a preliminary hearing at which the same judge presided. Edgar, 281 Kan. at 42; Shaw, 259 Kan. at 10-11. But only the first method is applicable under the facts in this case because the district court merely attempted to summarize the complaint when accepting the plea, while dismissing the need for any proffer of evidence and making no mention of a preliminary hearing. This circumstance requires us to determine just how factually detailed the complaint or information must be to comply with the statute.
To demonstrate that Ebaben committed misdemeanor sexual battery, the essential elements the State was required to show were: (1) Ebaben intentionally touched J.P.; (2) the touching was done with the intent to arouse or to satisfy the sexual desires of the defendant or another; (3) J.P. was not Ebaben’s spouse; (4) J.P. did not consent to the touching; (5) J.P. was 16 or more years of age; and (6) the date the act occurred. See K.S.A. 21-3517; PIK Crim. 3d 57.19. As noted above, the trial court summarized the case against Ebaben by stating:
“[T]he charge against you alleges ... between the 1st of August, ‘07, and the 30th of August, ‘07, . . . that you had, . . . intentional, . . . physical contact and ... it was without consent, with a minor . . . identified with the initials J.P., who was 16 years of age or more, but under 18 and not your spouse . . . with the intent to satisfy sexual desires of yourself or others and (unintelligible).”
The caselaw holding that a factual basis can be established by reading a complaint containing the facts and essential elements of the crime derives from this court’s decision in Widener v. State, 210 Kan. 234, 237-40, 499 P.2d 1123 (1972); see also State v. Sny der, 10 Kan. App. 2d 450, 454-55, 701 P.2d 969 (1985) (stating that the factual basis requirement may be satisfied by an information given or read to the defendant which sets forth the factual details and essential elements of the crime; citing Widener and other cases). In Widener, the defendant pleaded guilty and later relied on federal caselaw to claim that his plea was involuntary because the court failed to personally interrogate him and determine whether he understood the charges. The Widener court held that a district court should not convict based on a plea without inquiring of the accused and satisfying itself that there is a factual basis for it. 210 Kan. at 237-38. And it noted that those requirements had been recently codified by statute, although the statute did not apply in Widener’s case. 210 Kan. at 238.
The Widener court then held that the factual basis requirement was satisfied because tire “factual circumstances were meticulously set forth in separate informations.” 210 Kan. at 238-40. The bur-glaiy information in Widener stated the essential elements of the crime:
“[Ojn June 11, 1970, in the night-time, Mr. Widener had unlawfully, feloniously and burglariously broke into a concession stand in the city ball park in Arkansas City by ripping tin from the roof of the stand, entered an inner room by opening a window and had stolen and carried away various described items of merchandise located therein which were tire property of the Arkansas City, Kansas Baseball Association.” 210 Kan. at 239.
Widener indicates the defendant had waived the reading of the information but acknowledged during the plea hearing that he had received a copy of it. The defendant also had confessed to the crime, stating that he was pleading guilty because he had burglarized the concession stand. See 210 Kan. at 238-39.
The amended complaint at Ebaben’s trial lacked any of the factual details presented in Widener, except that Ebaben’s complaint included the defendant’s name. Moreover, Ebaben did not confess to the crime.
Many of the other no contest pleas affirmed by this court also involved tire reading of an information or complaint — coupled with a confession or stipulation. See State v. Bey, 270 Kan. 544, 546-50, 17 P.3d 322 (2001) (describing factual basis for no contest plea as “rather Spartan”; however, amended information was read twice, State proffered limited factual statement, and the defendant’s signed motion admitted the facts were sufficient to support the plea); Shaw, 259 Kan. at 9 (no contest plea upheld based on reaching of the complaint and the defendant’s stipulation that the State had sufficient evidence to convict); see also Noble v. State, 240 Kan. 162, 170, 727 P.2d 473 (1986) (no contest plea predating K.S.A. 22-3210 was upheld after defendant waived reading of complaint and testified that he committed each element of the offense).
This court’s remaining cases relied upon the State’s proffer of a factual basis. See State v. Shears, 260 Kan. 823, 835-36, 925 P.2d 1136 (1996) (no contest plea upheld when defendant waived reading of complaint and the State described the evidence to tire court); State v. Reed, 248 Kan. 506, 512-13, 809 P.2d 553 (1991) (no contest plea upheld based on State’s proffer and judicial notice of evidence from a codefendant’s case).
The facts in Ebaben’s case are most similar to the evidence presented in Snyder, 10 Kan. App. 2d 450. In that case, the Court of Appeals held there was insufficient evidence to support the factual basis of a guilty plea for attempted aggravated interference with parental custody. 10 Kan. App. 2d at 455-57. At the plea hearing, the State read the amended complaint to the defendant and defense counsel stipulated that a factual basis existed. But the complaint was similar to the charge read to Ebaben. It simply recited the elements of the crime by stating the defendant “unlawfully, willfully and feloniously attempted to commit the crime of aggravated interference with parental custody as defined in K.S.A. 21-3422a but failed in tire [perpetration] thereof in violation of K.S.A. 21-3301 and K.S.A. 21-3422a.” 10 Kan. App. 2d at 456.The Snyder court held the purpose of K.S.A. 22-3210(a)(4) is to ensure that a plea was knowingly and voluntarily entered, and that purpose is defeated when there is no evidence presented to the district court showing that the defendant’s conduct falls within the charge to which the defendant pleaded. Therefore, it held the error required reversal. See 10 Kan. App. 2d at 456-57.
A comparison of the facts in Ebaben’s case with our prior case-law demonstrates the recitation at tire plea hearing was simply too bare-boned to conclude on review that the trial court fulfilled its statutory duty of “satisfying itself’ that a factual basis for the plea existed. Without fulfilling that duty, the trial court as a matter of law had no basis to find that Ebaben’s plea was fairly and understandingly made. See Williams, 290 Kan. at 1053. We hold the trial court abused its discretion in finding a sufficient factual basis to support the plea. The remaining question is whether Ebaben is entitled to withdraw his plea based on that error.
Does the error require reversal?
This court has held that the failure to strictly comply with K.S.A. 22-3210 may be reversible error unless a review of the entire record demonstrates that the plea was knowingly and voluntarily made and otherwise accepted by the trial judge in compliance with the statute. Shaw, 259 Kan. 3, Syl. ¶ 4; see also Trotter, 218 Kan. 266, 269-70, 543 P.2d 1023 (1975) (failure to comply with K.S.A. 22-3210 was harmless error, but disapproving of any failure to fully comply with K.S.A. 22-3210 since full compliance protects the accused’s due process guarantees).
In Ebaben’s case, the record does not demonstrate that the plea was knowingly and voluntarily made because there was no statement of the evidence presented to the district court showing the defendant’s conduct fell within the charge to which the defendant pleaded. As to this point, we agree with the Court of Appeals’ rationale in Snyder, 10 Kan. App. 2d at 456-57. K.S.A. 22-3210(a)(4)’s purpose of ensuring that a plea is knowingly and voluntarily entered is defeated if the district court is presented with no evidence to establish the defendant’s conduct falls within the elements of the charged crime.
The State argues that the error was harmless based on McPherson v. State, 38 Kan. App. 2d 276, Syl. ¶ 1, 163 P.3d 1257 (2007). In that case, the Court of Appeals held that a party may plead to a nonexistent or hypothetical crime, as long as the defendant: “(1) was initially brought into court on a valid pleading; (2) received a beneficial plea agreement; and (3) voluntarily and knowingly entered into the plea agreement.” 38 Kan. App. 2d at 281. But Mc Pherson is distinguishable because that court did not address whether a sufficient factual basis for the plea was established.
We hold that the district court committed reversible error because it did not establish a factual basis for Ebaben’s plea.
Reversed and remanded. | [
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The opinion of the court was delivered by
Beier, J.:
Defendant Steven Wilson appeals the sentence he received after pleading guilty to one count of off-grid aggravated indecent liberties.
Wilson challenges the district judge’s doubling of his 25-year mandatoiy minimum prison sentence under Jessica’s Law, K.S.A. 21-4643, because of his status as a persistent sex offender under K.S.A. 21-4704(j). In the alternative, he claims that he should be eligible for parole after 20 years rather than 25 years. He also argues that the district judge erred in sentencing him to lifetime postrelease supervision rather than lifetime parole.
The only one of Wilson’s three appellate issues that necessitates extended discussion is the first. The second issue has already been decided adversely to Wilson, see State v. Hyche, 293 Kan. 602, 604, 265 P.3d 1172 (2011) (collecting cases), and Wilson has not persuaded us to revisit our previous ruling. The third issue has already been decided adversely to the State. See State v. Cash, 293 Kan. 326, Syl. ¶ 2, 263 P.3d 786 (2011) (inmate serving off-grid indeterminate life sentence can leave prison only if successor to Kansas Parole Board grants inmate parole; sentencing court has no authority to order postrelease supervision).
We now turn to Wilson’s first issue.
Wilson was originally charged with two counts of aggravated indecent liberties and two counts of aggravated criminal sodomy, all off-grid Jessica’s Law felonies. He agreed to plead no contest to one of the aggravated indecent liberties counts in exchange for the State’s agreement to dismiss the remaining charges.
After entering his plea, Wilson moved for a departure from the 25-year mandatory minimum of Jessica’s Law. See K.S.A. 21-4643(a), (d). The State filed a mirror-image motion, asking the district judge to double the mandatoiy minimum pursuant to the persistent sex offender statute, K.S.A. 21-4704(j), noting that Wilson had a 1985 felony conviction for aggravated indecent solicitation of a child.
The district judge denied Wilson’s motion and granted the State’s motion, effectively sentencing Wilson to a hard 50 life sentence rather than a hard 25.
On this appeal, Wilson does not dispute that his prior conviction would have qualified him for persistent sex offender sentencing under K.S.A. 21-4704(j), had he been facing a new grid sentence. But he argues that the persistent sex offender statute has no application to off-grid Jessica’s Law crimes such as the one to which he pleaded guilty in this case.
This issue requires statutory interpretation, which raises a question of law we review de novo. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
K.S.A. 21-4704(j) provides in pertinent part:
“(j)(l) The sentence for any persistent sex offender whose current convicted crime carries a presumptive term of imprisonment shall be double the maximum duration of the presumptive imprisonment term. The sentence for any persistent sex offender whose current conviction carries a presumptive nonprison term shall be presumed imprisonment and shall be double the maximum duration of the presumptive imprisonment term.”
“(2) Except as otherwise provided in this subsection, as used in this subsection, ‘persistent sex offender’ means a person who: (A) (i) Has been convicted in this state of a sexually violent crime, as defined in K.S.A. 22-3717 and amendments thereto; and (ii) at the time of the conviction under paragraph (A) (i) has at least one conviction for a sexually violent crime, as defined in K.S.A. 22-3717 and amendments thereto in this state or comparable felony under the laws of another state, the federal government or a foreign government. . . .”
Wilson correctly points out that K.S.A. 21-4704(j)(l) authorizes a district judge to double the “maximum duration of the presumptive imprisonment term.”
A “presumptive imprisonment term” is the sentencing range provided in a grid block under the Kansas Sentencing Guidelines Act, see K.S.A. 21-4703(q), and not an indeterminate life sentence such as that imposed under Jessica’s Law. See State v. Ballard, 289 Kan. 1000, 1007, 218 P.3d 432 (2009) (grid sentence after departure from mandatory minimum of Jessica’s Law not a presumptive sentence because crime of conviction still off-grid); State v. Ortega-Cadelan, 287 Kan. 157, 163, 194 P.3d 1195 (2008) (hard 25 life sentence under Jessica’s Law does not meet definition of presumptive sentence under K.S.A. 214703[q]); but see State v. Jacobs, 293 Kan. 465, 263 P.3d 790 (2011) (in context of rejecting appellate jurisdiction over consecutive combination of grid sentence and sentence arrived at after departure from Jessica’s Law mandatory minimum, Jessica’s Law sentence described as “presumptive”).
Even if an indeterminate life term could be correctly described as “presumptive,” its “maximum duration” is life, not any applicable mandatory minimum that must be served before the inmate becomes eligible for parole. Thus the persistent sex offender statute cannot apply to double the mandatory minimum of 25 years’ imprisonment for an off-grid Jessica’s Law offense.
The sentence imposed by the district judge is vacated, and the case is remanded to the district court for resentencing consistent with this opinion. | [
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The opinion of the court was delivered by
Luckert, J.:
M.L. Snellings appeals his sentence, primarily arguing two of his convictions were assigned tire wrong severity level by the sentencing court. In making this argument, Snellings attempts to apply the identical offense sentencing doctrine. Under that doctrine, where two offenses have identical elements, an offender can be sentenced to only the less severe penalty applying to the two offenses. Specifically, Snellings argues:
(1) An offense of possession of ephedrine or pseudoephedrine with intent to manufacture a controlled substance as defined in K.S.A. 2007 Supp. 65-7006(a), a severity level 2 drug felony, must be classified as a severity level 4 drug felony because it has identical elements to the offense of possession of drug paraphernalia with intent to manufacture a controlled substance as defined in K.S.A. 2007 Supp. 65-4152(a)(3), which is a severity level 4 drug felony; and
(2) An offense of manufacturing methamphetamine as defined in K.S.A. 2007 Supp. 65-4159(a), a severity level 1 drug felony, must be classified as a class A misdemeanor because it has identical elements to the offense of compounding a controlled substance containing ephedrine or pseudoephedrine as defined in K.S.A. 65-4164(a), a class A nonperson misdemeanor.
We find merit in the first of these arguments and therefore vacate Snellings’ sentence for possession of ephedrine or pseudoe-phedrine with intent to manufacture a controlled substance and remand for resentencing on this count as a severity level 4 drug felony. However, we reject the second argument and also reject a third issue raised by Snellings, which is controlled by our decision in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002).
Factual and Procedural Background
Defendant Snellings pleaded no contest to eight drug related charges and a ninth charge of criminal possession of a firearm. At sentencing, the district court made findings regarding Snellings’ criminal histoiy, granted Snellings’ motion for a downward dura-tional sentencing departure, and imposed a controlling term of 144 months’ imprisonment. On direct appeal to the Court of Appeals, Snellings raised several issues, and the Court of Appeals affirmed in part, reversed in part, and remanded for resentencing. See State v. Snellings, No. 101,378, 2010 WL 2216900 (Kan. App. 2010) (unpublished opinion).
Snellings filed a petition for review seeking the discretionaiy review of this court on only three issues, which we have stated above. This court granted Snellings’ petition for review and has jurisdiction over these three issues under K.S.A. 22-3602(e) (petition for review) and K.S.A. 20-3018(b) (same). The other issues considered by the Court of Appeals are not before us for review. See Supreme Court Rule 8.03(a)(5)(c) (2011 Kan. Ct. R. Annot. 70) (“Issues not presented in the petition, or fairly included therein, will not be considered by the court.”).
Possession of Ephedrine or Pseudoephedrine
We first consider Snellings’ argument that the offense of possession of ephedrine or pseudoephedrine with intent to manufacture a controlled substance, defined in K.S.A. 2007 Supp. 65-7006(a), a severity level 2 drug felony, is identical to the offense of possession of drug paraphernalia with intent to manufacture a controlled substance, defined in K.S.A. 2007 Supp. 65-4152(a)(3), a severity level 4 drug felony. K.S.A. 21-4721(e)(3) grants an appellate court jurisdiction to consider a challenge to the severity level of the crime, even if the conviction and sentence follow from a plea agreement. See State v. Thomas, 283 Kan. 796, 805-06, 156 P.3d 1261 (2007).
Identical Offense Sentencing Doctrine
The principle behind the identical offense sentencing doctrine, which is the focus of Snellings’ argument, 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.’ ” State v. Cooper, 285 Kan. 964, 966-67, 179 P.3d 439 (2008) (quoting State v. Nunn, 244 Kan. 207, 229, 768 P.2d 268 [1989]); see State v. Fanning, 281 Kan. 1176, 1180, 135 P.3d 1067 (2006). Two policy considerations support this doctrine. First, courts cannot rationally interpret the legislative intent behind tire levels of punishment when two statutes prohibit the same conduct but impose different consequences for engaging in that conduct. Second, the doctrine prevents a prosecutor from indiscriminately choosing between the statutes in charging the offenses and, thus, impermissibly directing the range of sentences. Cooper, 285 Kan. at 968.
This court has explained there are three situations where offenses may have identical provisions: (1) where one offense is a lesser included offense of the other; (2) where some provisions in two statutes overlap, the overlapping provisions apply to the charged crime, and the overlapping provisions are identical except for the penalty provisions; and (3) where all provisions in two statutes are identical except for the penalty provisions. The identical offense sentencing doctrine applies to the second and third situations. State v. Campbell, 279 Kan. 1, 14-15, 106 P.3d 1129 (2005) (quoting 4 LaFave, Israel & King, Criminal Procedure § 13.7[a], pp. 95-99 [2d ed. 1999]).
Sneilings’ arguments suggest it is tire second situation — overlapping statutes — that applies to his argument. “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.” Cooper, 285 Kan. at 967 (citing Campbell, 279 Kan. 1). This argument requires us to interpret the relevant statutes, which presents a question of law subject to unlimited review. Cooper, 285 Kan. at 966.
In Campbell, 279 Kan. 1, this court applied these general principles to prior versions of the statutes at issue in the present case, K.S.A. 65-7006(a) and K.S.A. 65-4152(a)(3). The Campbell court held the elements of K.S.A. 65-7006(a) overlapped with the elements of K.S.A. 65-4152(a)(3) and, to tire extent of the overlap, the elements were identical. Applying the identical offense sentencing doctrine, the Campbell court held the defendant must be sentenced to the less severe penalty of the two identical offenses. Campbell, 279 Kan. at 16-17. In reaching this decision, tire Campbell court approved a Court of Appeals decision, State v. Frazier, 30 Kan. App. 2d 398, 42 P.3d 188, rev. denied 274 Kan. 1115 (2002), which had reached the same result.
After the decision in Campbell, the legislature amended K.S.A. 65-7006(a). The State argues the amendments removed the overlapping provisions so that the elements of the two statutes are no longer identical. Snellings argues the legislature failed to remove all of the overlapping and identical elements, meaning the holdings in Campbell and Frazier still apply and only the less severe sentence can be imposed. To determine which of these arguments is correct, we first will consider the basis for the decisions in Campbell and Frazier and then examine the statutory amendment.
Campbell and Frazier
Campbell, like Snellings, was accused of possessing ephedrine or pseudoephedrine with the intent to manufacture methamphetamine. At the time Campbell was decided and at the time Snellings committed the crime at issue in this case, K.S.A. 65-7006 provided in part: “(a) It shall be unlawful for any person to possess ephedrine, pseudoephedrine, red phosphorus, lithium metal, sodium metal, iodine, anhydrous ammonia, pressurized ammonia or phen-ylpropanolamine, or their salts, isomers or salts of isomers with intent to use the product to manufacture a controlled substance.” At the time of the Campbell decision, this offense was classified as a severity level 1 drug felony. See K.S.A. 65-7006(d). Under the version of the statute in effect when Snellings acted, it was a severity level 2 drug felony. See K.S.A. 2007 Supp. 65-7006(f).
Campbell, like Snellings, argued his conviction should be classified as a severity level 4 drug felony because K.S.A. 65-4l52(a)(3), a severity level 4 drug felony, had identical elements to K.S.A. 65-7006. K.S.A. 65-4152(a)(3), at the time of both Campbell’s and Snellings’ offenses, stated in relevant part: “No person shall . . . possess with intent to use ... (3) any drug paraphernalia to . . . manufacture [or] compound ... a controlled substance in violation of the uniform controlled substances act.”
In comparing the two statutes, the Campbell court noted there were two components that had to be identical for the identical offense sentencing doctrine to apply: (1) the offender had to pos sess a prohibited item and (2) the offender must intend to use the item in his or her possession for the purpose of manufacturing a controlled substance. Because of the charge that was made against Campbell, the specific item at issue was ephedrine and the manufactured controlled substance was methamphetamine. Thus, for there to be overlapping and identical elements, both statutes had to prohibit the possession of ephedrine or pseudoephedrine with the intent to manufacture methamphetamine. See Campbell, 279 Kan. at 16. The only way for both statutes to prohibit this conduct was for ephedrine or pseudoephedrine to be considered “drug paraphernalia” under K.S.A. 65-4152. The Campbell court concluded ephedrine or pseudoephedrine fell within tire definition of “drug paraphernalia” and, therefore, the elements overlapped and were identical to the extent of the overlap. The court explained:
“The definition of drug paraphernalia in K.S.A. 65-4150(c) includes products and materials of any land’ which are intended for use in manufacturing a controlled substance. Thus, the conduct prohibited by K.S.A. 65-4152(a)(3) may include a defendant’s act of knowingly possessing a product with the intent to use it to manufacture a controlled substance. Ephedrine and pseudoephedrine are products used in the manufacture of a controlled substance, methamphetamine. Indeed, in K.S.A. 65-7006(a) the legislature used the term ‘product’ as a synonym for ephedrine or pseudoephedrine. In the circumstances of this case, the elements of the offense were knowingly possessing ephedrine or pseudoephedrine with the intent to use it to manufacture a controlled substance. The elements were the same whether Campbell had been charged under the ephedrine statute or the drug paraphernalia statute. Consequently, he must be sentenced under the lesser penalty provisions for violation of 65-4152(a)(3).” Campbell, 279 Kan. at 16-17.
In arguing for this result, Campbell cited and relied on the Court of Appeals decision in Frazier, 30 Kan. App. 2d 398. The Frazier court had found that because the list of items in K.S.A. 65-4150(c) contained both the terms “products” and “materials,” “[e]phedrine and pseudoephedrine fall within the definition of drug paraphernalia because they are materials used to manufacture a controlled substance.” (Emphasis added.) Frazier, 30 Kan. App. 2d at 404-05. Hence, like the Campbell court, the Frazier court held the defendant could only be charged with the lesser sentence applicable to possession of paraphernalia with intent to manufacture. Frazier, 30 Kan. App. 2d at 405.
2006 Legislative Amendments
Subsequent to the decision in Campbell, the legislature amended the definition of drug paraphernalia found in K.S.A. 65-4150(c) to remove the word “products.” L. 2006, ch. 194, sec. 33. The amended statute continues to include as drug paraphernalia “equipment and materials of any land.” (Emphasis added.). K.S.A. 2007 Supp. 65-4150(c). Thus, after the amendment, it is unlawful under K.S.A. 2007 Supp. 65-4152(a)(3) to use or possess with intent to use any equipment and materials of any kind to manufacture a controlled substance. This amendment was in effect at the time Snellings committed the offense for which he was convicted.
Relying on Campbell and emphasizing the language used by the Court of Appeals in Frazier, Snellings argues ephedrine and pseu-doephedrine are “materials” used in the manufacture of a controlled substance. The Court of Appeals panel in this case, relying on a previous decision by another panel, State v. Dalton, 41 Kan. App. 2d 792, 207 P.3d 257 (2008), rev. denied 287 Kan. 767 (2009), rejected this argument. Snellings, 2010 WL 2216900, at °3. Snell-ings argues that Dalton was incorrectly decided and the panel in this case erred in relying on that decision.
In Dalton, the defendant had argued that red phosphorus qualifies as “materials of any kind” in the definition of drug paraphernalia under K.S.A. 2006 Supp. 65-4150(c). The Dalton court rejected this argument, however, reasoning: “Since Campbell, the legislature has removed the term product’ from K.S.A. 65-4150(c). [Citation omitted.] By this enactment, we believe the legislature clearly communicated its intent that drug paraphernalia does not include tire products listed in K.S.A. 2006 Supp. 65-7006(a).” Dalton, 41 Kan. App. 2d at 795.
The Dalton court also explicitly rejected the argument that a contrary legislative intent was expressed by the legislature’s use of the terms “materials” and “precursor chemicals” in K.S.A. 2006 Supp. 21-4717(a)(l)(D). That statute, which relates to aggravating factors that may be considered at sentencing, lists as a factor “[t]he presence of manufacturing or distribution materials such as, but not limited to, drug recipes, precursor chemicals, laboratory equip ment, lighting, irrigation systems, ventilation, power-generation, scales or packaging material.” (Emphasis added.) K.S.A. 2006 Supp. 21-4717(a)(1)(D). Because K.S.A. 65-7003(l)(17) classifies red phosphorus as a “regulated chemical,” Dalton referenced K.S.A. 2006 Supp. 21-4717(a)(1)(D) to argue that “materials” in K.S.A. 2006 Supp. 65-4150(c) includes “precursor chemicals.” Dalton, 41 Kan. App. 2d at 797-98.
The Dalton court did not see this reference as either binding or persuasive. The court noted that tire purpose behind K.S.A. 21-4717 is to provide aggravating factors to be considered in determining whether there are substantial and compelling reasons for a departure sentence and not to provide definitions for terms used in the criminal code. Dalton, 41 Kan. App. 2d at 797-98. Because of this difference in purpose, the Dalton court concluded “it would be incorrect to rely upon K.S.A. 21-4717(a)(l)(D)’s description of manufacturing materials to define drug paraphernalia, i.e. ‘materials] of any kind’ in K.S.A. [2006] Supp. 65-4150(c), as including ‘regulated chemicals,’ such as red phosphorus. If the legislature wished to define material in that way, it could have done so.” Dalton, 41 Kan. App. 2d at 798.
Several Court of Appeals cases have explicitly relied on Dalton to reject the argument that the “products” listed in K.S.A. 2007 Supp. 65-7006(a) fall within “materials of any kind” in the statutory definition of “drug paraphernalia” under K.S.A. 2007 Supp. 65-4150(c). See, e.g., State v. Adams, 43 Kan. App. 2d 842, 853-56, 232 P.3d 347 (2010), aff'd in part and rev’d in part 294 Kan. 171, 273 P.3d 718 (2012); State v. Terrill, No. 103,105, 2011 WL 781614 (Kan. App. 2011) (unpublished opinion); State v. Savage, No. 104,012, 2011 WL 420727 (Kan. App. 2011) (unpublished opinion); State v. Busse, No. 101,703, 2010 WL 5490725 (Kan. App. 2010) (unpublished opinion); State v. Montgomery, Nos. 101,507, 102,393, 2010 WL 2502875 (Kan. App. 2010) (unpublished opinion); State v. Moon, No. 101,556, 2010 WL 445924 (Kan. App. 2010) (unpublished opinion); State v. Claussen, No. 100,899, 2009 WL 4035202 (Kan. App. 2009) (unpublished opinion); State v. Sutton, No. 101,522, 2009 WL 3428670 (Kan. App. 2009) (unpublished opinion). The State urges this court to follow Dalton and these other Court of Appeals decisions and conclude that K.S.A. 2007 Supp. 65-7006(a) and K.S.A. 2007 Supp. 65-4152(a)(3) do not have identical elements.
Reliance on Dalton is justified, the State argues, because the legislature clearly intended to exclude the items listed in K.S.A. 2007 Supp. 65-7006(a) from the definition of drug paraphernalia in K.S.A. 2007 Supp. 65-4150(c). As the State points out, when the legislature revises an existing law, the court presumes that the legislature intended to change the law that existed prior to the amendment. See State v. Preston, 287 Kan. 181, 184, 195 P.3d 240 (2008); Dalton, 41 Kan. App. 2d at 795; see also State v. Keeley, 236 Kan. 555, 560, 694 P.2d 422 (1985) (stating that “old statutes must be read in the light of later legislative enactments; an older statute must be harmonized with a newer one; if a conflict exists, the older statute must be subordinated to die newer one”).
But as Snellings notes: “A statute should not be read to add something that is not found in the plain words used by the legislature or delete something that is clearly found within the ordinary language used.” Farmers Ins. Co. v. Southwestern Bell Tel. Co., 279 Kan. 976, 978, 113 P.3d 258 (2005). Applying this general rule, Snellings argues the Court of Appeals in this case and in Dalton ignored the words “materials of any kind.” Because, he suggests, ephedrine or pseudoephedrine still fall into the definition of drug paraphernalia as “materials of any kind” used to manufacture a controlled substance, such as methamphetamine, the Court of Appeals erred. Citing Frazier, Snellings claims the legislature’s “ poor research or inept drafting’ ” has contributed to its unsuccessful “fix” of the definition of drug paraphernalia.
Indeed, while the legislature’s deletion of the word “products” paralleled the Campbell court’s focus on that word, the failure to delete the word “materials” ignored the Court of Appeals decision in Frazier, which stated: “Ephedrine and pseudoephedrine fall within the definition of drug paraphernalia because they are materials used to manufacture a controlled substance. [Citation omitted.]” (Emphasis added.) Frazier, 30 Kan. App. 2d at 405. The Campbell court did not explicitly adopt that language, but it approved the Frazier decision and did not correct or criticize the Frazier court’s reliance on the term “material.” Instead, the Campbell court focused on the most obvious connection between the two statutes, noting that both K.S.A. 65-7006(a) and K.S.A. 65-4150(c) used the words “product” or “products” and K.S.A. 65-7006(a) used the term “product” in a manner that made it clear the term was a synonym for the listed items. Campbell, 279 Kan. at 16. Given this obvious connection, it was not necessary to continue the analysis to show additional overlap arising because the listed items were also “materials.” Thus, the Campbell court’s focus on “products” in K.S.A. 65-4150(c) does not necessarily imply that the same reasoning would not apply to the word “materials.”
As Snellings points out, general rules of statutory interpretation require courts to give ordinary words their ordinary meaning. See State v. Finch, 291 Kan. 665, 670, 244 P.3d 673 (2011). “Material” is defined in part as “the substance or substances out of which a thing is or can be made; [c]omposed of or relating to . . . substances.” Webster’s II New Collegiate Dictionary 675 (1995). Because ephedrine and pseudoephedrine are items that are precursor chemicals used in the manufacture of methamphetamine, they fit within this definition of “material.” This point is illustrated by the legislature’s own use of the word “materials,” in K.S.A. 21-4717(a)(1)(D), which includes “precursor chemicals” as an example of “materials” that may warrant an aggravated sentence: “The presence of manufacturing or distribution materials such as, but not limited to, drug recipes, precursor chemicals, Iaboratoiy equipment, lighting, irrigation systems, ventilation, power-generation, scales or packaging material.” (Emphasis added.) While we agree with the Dalton court that this sentencing statute does not provide a definition that applies under the Uniform Controlled Substances Act, K.S.A. 65-4101 et seq., the legislature’s own use of the word “material” illustrates the common understanding of the term.
Hence, we conclude ephedrine and pseudoephedrine are “materials” and, consequently, the offense of possession of ephedrine or pseudoephedrine with intent to manufacture methamphetamine under K.S.A. 2007 Supp. 65-7006(a) is identical to the offense of possession of drug paraphernalia with intent to manufacture methamphetamine under K.S.A. 2007 Supp. 65-4152(a)(3). As a result, the district court erred in sentencing Snellings for a severity level 2 drug felony. We therefore vacate Snellings’ sentence for possession of ephedrine or pseudoephedrine with intent to manufacture a controlled substance and remand for resentencing on this count as a severity level 4 drug felony.
Manufacture of Methamphetamine
In the other identical offense sentencing issue, Snellings argues he should have been sentenced to a class A misdemeanor under K.S.A. 65-4164(a) (compounding a controlled substance containing ephedrine or pseudoephedrine) and not a drug severity level 1 penalty under K.S.A. 2007 Supp. 65-4159 (manufacture of methamphetamine). The same identical offense sentencing doctrine principles discussed in the prior issue control this question.
The statute under which Snellings was charged, K.S.A. 2007 Supp. 65-4159(a), states it is unlawful for any person to “manufacture any controlled substance.” A violation of this law is a severity level 1 drug felony. K.S.A. 2007 Supp. 65-4159(b). There are two components to this crime. The first is “manufacture.” Notably, the definition of manufacture includes “compounding.” K.S.A. 2007 Supp. 65-4101(n). The second component requires that the result of tibe manufacturing process be “any controlled substance.” A “controlled substance” is defined by K.S.A. 2007 Supp. 65-4l50(a) as “any drug, substance or immediate precursor included in any of the schedules designated in K.S.A. 65-4105, 65-4107, 65-4109, 65-4111 and 65-4113, and amendments thereto.” K.S.A. 65-4105 lists Schedule I substances, K.S.A. 65-4107 lists Schedule II substances, K.S.A. 65-4109 lists Schedule III substances, K.S.A. 65-4111 lists Schedule IV substances, and K.S.A. 2007 Supp. 65-4113 lists Schedule V substances. Methamphetamine is a Schedule II controlled substance. See K.S.A. 2007 Supp. 65-4101(e); K.S.A. 65-4107(d).
The statute under which Snellings argues he should be sentenced, K.S.A. 65-4164(a), makes it is unlawful for any person to “possess, . . . control, . . . [or] compound . . . any controlled substance designated in K.S.A. 65-4113.” (Emphasis added.) A violation of K.S.A. 65-4164 is a class A nonperson misdemeanor unless the drag was “prescribed for or administered, delivered, distributed, dispensed, sold, offered for sale or possessed with intent to sell to a child under 18 years of age.” K.S.A. 2007 Supp. 65-4113, which lists Schedule V substances, includes compounds “containing any detectable quantity” of ephedrine or pseudoephedrine.
Snellings argues this misdemeanor statute overlaps with K.S.A. 2007 Supp. 65-4159(a) because “compounding” is the same as “manufacturing” and because a “controlled substance” is manufactured. The Court of Appeals panel rejected this argument.
The panel agreed with Snellings that “compounding “ and “manufacturing” were the same conduct, but the panel concluded the misdemeanor statute does not specifically apply to the manufacture of methamphetamine. The panel explained that K.S.A. 65-4164(a) only applies to “any controlled substance designated in K S.A. 65-4113.” (Emphasis added.) Methamphetamine is designated a controlled substance under K.S.A. 65-4107(d)(3), which defines Schedule II controlled substances, not K.S.A. 2007 Supp. 65-4113, which defines Schedule V controlled substances. Hence, the Court of Appeals concluded the elements are not identical. Snellings, 2010 WL 2216900, at *1-2.
In seeking our review, Snellings argues first that the specific controlled substance that is manufactured is irrelevant; what counts, Snellings contends, is that there is an intent to manufacture some type of a controlled substance. We disagree. Snellings was specifically charged with the manufacture of methamphetamine. Hence, that is what the State had to prove. In order for the statutes to be subject to the identical offense sentencing doctrine, both statutes must be ones under which the State could prosecute the charged crime. If one of the statutes could not be used to convict the defendant of the charged crime, it does not matter that the statutes may overlap in other respects. Rather, “[wjhen 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.” State v. Cooper, 285 Kan. 964, 967, 179 P.3d 439 (2008) (citing Campbell, 279 Kan. 1). Because K.S.A. 65-4164(a) does not cover any con trolled substances other than those listed in K.S.A. 2007 Supp. 65-4113 and that statute does not list methamphetamine, the statute does not appear to overlap with K.S.A. 2007 Supp. 65-4159(a), as it applies in this case. Snellings suggests that although the overlap is not obvious, it exists.
To make this alternative argument, Snellings points out that the K.S.A. 2007 Supp. 65-4113 list of controlled substances includes “(e) [a]ny compound, mixture or preparation containing any detectable quantity of ephedrine, its salts or optical isomers, or salts of optical isomers” and “(f) [a]ny compound, mixture or preparation containing any detectable quantity of pseudoephedrine, its salts or optical isomers, or salts of optical isomers.” (Emphasis added.) Snellings argues that ephedrine and pseudoephedrine are two ingredients commonly used to manufacture methamphetamine and, therefore, there is overlap. To support this argument, Snellings cites State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), and Campbell, 279 Kan. 1. Snellings’ reliance on these cases is misplaced.
McAdam was convicted of conspiracy to unlawfully manufacture methamphetamine in violation of K.S.A. 21-3302(a) and K.S.A. 65-4159(a). On appeal, he argued his sentence was illegal because it was imposed under K.S.A. 65-4159(a), a severity level 1 drug felony, rather than the lesser penalty under K.S.A. 65-4161(a). At the time of the McAdam decision, K.S.A. 65-4159(a) read: “Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to manufacture any controlled substance or controlled substance analog.” In turn, as in the present case, “manufacture” was statutorily defined as “the production, preparation, propagation, compounding, conversion or processing of a controlled substance . . . .” (Emphasis added.) K.S.A. 65-4101(n). And methamphetamine was classified as a controlled substance under K.S.A. 65-4101(e) and K.S.A. 65-4107(d)(3).
McAdam argued that under the identical offense sentencing doctrine, he should have been sentenced under the lesser offense defined in K.S.A. 65-4161(a), which at the time, read in part:
“ ‘Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to sell, offer for sale or have in such person’s possession with intent to sell, deliver or distribute; prescribe; administer; deliver; distribute; dispense or compound any opiates, opium or narcotic drugs, or any stimulant designated in subsection (d)(l), (d)(3) or (f)(l) ofK. S.A. 65-4107 and amendments thereto.’ ” (Emphasis added.) McAdam, 277 Kan. at 142.
The court agreed with McAdam and found that the two statutes had identical elements; both forbade the compounding of methamphetamine. Because the two statutes were identical with respect to McAdam’s conduct, he could be sentenced under only the lesser penalty found in K.S.A. 65-4161(a). This court vacated McAdam’s sentence and remanded for resentencing as a severity level 3 drug felony. McAdam, 277 Kan. at 146-47.
That holding does not apply in this case, however, because the statute considered in McAdam is distinguishable from the statute Snellings wishes to have applied. More specifically, the statute at issue in McAdams, K.S.A. 65-4107(d)(3), listed methamphetamine by name. Consequently, the McAdam court did not analyze whether there would have been identical offenses if the defendant had been charged with manufacturing methamphetamine and the allegedly overlapping statute had prohibited the manufacture of a product containing a detectible quantity of ephedrine or pseudoe-phedrine.
Likewise, the second case cited by Snellings does not support his argument. In State v. Campbell, 279 Kan. 1, 14-15, 106 P.3d 1129 (2005), this court applied the identical offense sentencing doctrine analysis from McAdam to conclude that possession of drug paraphernalia with the intent to use it to manufacture methamphetamine in violation of K.S.A. 65-4152(a)(3) was identical to possession of ephedrine or pseudoephedrine with the intent to produce a controlled substance in violation of K.S.A. 65-7006(a). Again, both statutes overlapped to include methamphetamine as a controlled substance and the Campbell court’s analysis hinged on whether ephedrine and pseudoephedrine were items of drug paraphernalia, not on whether methamphetamine was identical to a compound containing detectable quantities of ephedrine or pseu-doephedrine.
While neither McAdams nor Campbell assist in our analysis on this point, a comparable analysis is found in Cooper, 285 Kan. 964. The defendant in Cooper pleaded guilty to manufacturing methamphetamine under K.S.A. 65-4159(a), but he argued that the offense was identical to a less severe offense, the use of drug paraphernalia to manufacture methamphetamine under K.S.A. 65-4152(a)(3). This court held that the offenses were not identical because the general statute prohibiting the manufacture of methamphetamine did not require “the State to prove that a defendant used paraphernalia to manufacture methamphetamine.” Cooper, 285 Kan. at 967. Therefore, even though, as a factual matter, paraphernalia must have been used to manufacture methamphetamine and evidence could had been admitted to establish the use of that paraphernalia, the jury was not required to find beyond a reasonable doubt that tire defendant used paraphernalia to gain a conviction for manufacture of methamphetamine. Cooper, 285 Kan. at 967. The Cooper court also observed that tire legislature designed tire statutes to more severely punish those who manufacture methamphetamine and to less severely punish those who merely possess drug paraphernalia used to manufacture methamphetamine. Cooper, 285 Kan. at 967-68; see State v. Thompson, 287 Kan. 238, 260-61, 200 P.3d 22 (2009) (following Cooper).
While Cooper is not controlling, its analysis is persuasive. Just as the prosecution did not have to prove that Cooper used ephedrine or pseudoephedrine to manufacture methamphetamine, the prosecution in this case did not have to prove that Snellings manufactured a product containing detectable quantities of ephedrine or pseudoephedrine. Thus, the Court of Appeals correctly concluded that manufacture of methamphetamine under K.S.A. 2007 Supp. 65-4159(a) is not identical to compounding a controlled substance containing ephedrine or pseudoephedrine under K.S.A. 65-4164(a). Snellings, 2010 WL 2216900, at *2. Accord State v. Dick, No. 98,120, 2009 WL 1393738, at *10-11 (Kan. App. 2009) (unpublished opinion), rev. denied 290 Kan. 1097 (2010); State v. Beal, No. 98,682, 2009 WL 743156, at *3-4 (Kan. App.) (unpublished opinion), rev. denied 289 Kan. 1280 (2009).
After reaching this conclusion, the Court of Appeals panel took a detour in its analysis that seems to arise from confusion over the application of our previous cases. In explaining the reason for the detour, the panel stated that “based on the analysis used in both tire Cooper and [State v. Fanning, 281 Kan. 1176, 1180, 135 P.3d 1067 (2006),] cases, this court must examine the facts of the case before reaching a definitive ruling on the similarity of the statutes for sentencing purposes.” Snellings, 2010 WL 2216900, at *2. Instead of examining the facts for the limited purpose of determining whether the statutes overlapped, the Court of Appeals examined die factual proffer presented at the plea hearing to determine if there was a showing that Snellings “had a substance which retained both the characteristics of the pseudoephedrine that it used to be and the methamphetamine diat it would become.” Snellings, 2010 WL 2216900, at *2. The Court of Appeals further noted: “It would have been impossible for the State to prove diat Snellings 'compounded’ a mixture containing pseudoephedrine under K.S.A. 65-4164(a), because there was no 'compounding’ occurring in the vehicle at the time of Snellings’ arrest.” Snellings, 2010 WL 2216900, at *2.
On other occasions, the Court of Appeals has engaged in a similar analysis of how the facts of die particular case may fit the statute that is argued to be identical. Often these cases comment on confusion caused by some language in Fanning. See State v. Moore, 39 Kan. App. 2d 568, 590, 181 P.3d 1258, rev. denied 286 Kan. 1184 (2008) (“This court has sometimes struggled with the application of Fanning. However, generally, we have concluded that where the record contains evidence that the defendant actually used paraphernalia, manufacturing and possession of drug paraphernalia are identical offenses for sentencing purposes.”); State v. Allen, No. 95,628, 2007 WL 4158070, at *3 (Kan. App. 2007) (unpublished opinion) (“[T]he outcome of Fanning would apparently have been different if the record had supported Fanning’s argument that he used drug paraphernalia to attempt to manufacture methamphetamine.”).
In Fanning, 281 Kan. 1176, this court 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. One of Fanning’s arguments was tiiat attempted manufacture was an identical offense to possession of drug paraphernalia with intent to manufacture because “the term "use’ in K.S.A. 65-4152(a)(2) is equivalent to the term ‘manufacture’ in K.S.A. 65-4159.” Fanning, 281 Kan. at 1183 (K.S.A. 65-4152[a][2] prohibited the possession or use of drug paraphernalia to “use ... or otherwise introduce into the human body a controlled substance”.). After indicating that, in resolving identical offense issues, courts must consider “the underlying facts in relation to the statutory elements to determine whether the offenses are identical,” the Fanning court concluded the doctrine did not apply. Fanning, 281 Kan. at 1183. This court stated:
“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 [prevented or intercepted in actually manufacturing methamphetamine]. Consequently, the two crimes are not identical under the rules applied in both McAdam and Campbell, which required die elements proven to be exacdy the same under each statute.” Fanning, 281 Kan. at 1183.
After reaching this conclusion, the Fanning court went on to address the defendant’s “use” argument and found “the record does not support Fanning’s argument that he used drug paraphernalia to attempt to manufacture methamphetamine. The evidence in this case merely establishes possession of drug paraphernalia. There are no facts to establish that Fanning actually used the paraphernalia for any reason.” Fanning, 281 Kan. at 1184. This appears to be a peripheral analysis of the term “use” that was not intended to circumvent the court’s focus on the statutory elements at issue in the case. In other words, even if the record had supported Fanning’s argument that he used drug paraphernalia to attempt to manufacture methamphetamine, the elements would not have been identical because there remained an additional element in the attempt crime. But it is this discussion in Fanning that appears to have caused the confusion.
Despite this factual examination, the Fanning court returned its focus to the statutory elements, holding: “Limiting our analysis to McAdam and Campbell and the facts as supported by the record in relation [to] the statutory elements of these crimes, we hold that the offense of attempted manufacture of methamphetamine is not identical to the offense of possession of drug paraphernalia with the intent to manufacture methamphetamine.” Fanning, 281 Kan. at 1184.
Two years later in Cooper, this court cited Fanning for the concept that “[o]ffenses are identical when they have the same elements” and to reiterate that “for sentencing purposes, an appellate court must consider the statutory elements in conjunction with the underlying facts. [Citations omitted.]” Cooper, 285 Kan. at 966. The Cooper court then clarified that the identification of elements ultimately controls. As we have previously quoted, the Cooper court stated: “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.” Then, in the next sentence, the court stressed: “That determination is made from the statute.” (Emphasis added.) Cooper, 285 Kan. at 967 (citing Campbell, 279 Kan. 1). In other words, the facts of the case are only relevant to determine which provisions of a statute apply — a preliminary step — not as a final step of examining the record to determine what evidence was used to prove the overlapping elements.
For example, in this case, we look to the facts to tell us that Snellings was convicted of manufacturing methamphetamine. Once this is established, a comparison of the elements of K.S.A. 2007 Supp. 65-4159(a) and K.S.A. 65-4164(a) reveals that there is no overlap because methamphetamine is not a controlled substance to which K.S.A. 65-4164(a) applies. Consequently, the manufacture of methamphetamine under K.S.A. 2007 Supp. 65-4159(a) does not overlap with and is not identical to compounding a controlled substance containing ephedrine or pseudoephedrine under K.S.A. 65-4164(a).
We therefore affirm Snellings’ sentence for manufacture of methamphetamine as a severity level 1 drug felony.
Apprendi/Ivory Issue
Snellings’ final argument is that the district court violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), when it considered his prior convictions in determining his sentence without requiring those convictions to be included in the criminal complaint or proved to a juiy beyond a reasonable doubt.
Snellings aclmowledges that this court has consistently rejected this argument. See, e.g., State v. Bennington, 293 Kan. 503, Syl. ¶ 9, 264 P.3d 440 (2011); State v. Riojas, 288 Kan. 379, 388, 204 P.3d 578 (2009); State v. Fewell, 286 Kan. 370, 394-96, 184 P.3d 903 (2008); State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). This court continues to hold that the use of prior convictions for sentencing enhancement is constitutional; thus, the Court of Appeals correctly found no merit to Snellings’ contention. Snellings, 2010 WL 2216900, at *4.
The Court of Appeals is affirmed in part and reversed in part. The district court is affirmed in part and vacated in part. Specifically, Snellings’ sentence for violation of K.S.A. 2007 Supp. 65-7006(a) is vacated and remanded with directions to the district court to resentence Snellings to a severity level 4 drug felony under K.S.A. 2007 Supp. 65-4152(c).
Moritz, J., not participating.
Paula B. Martin, District Judge, assigned.
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Uzo L. Ohaebosim, of Kansas City, Missouri, an attorney admitted to the practice of law in Kansas in 2003.
The office of the Disciplinary Administrator filed a formal complaint against the respondent on August 8, 2011, alleging violations of the Kansas Rules of Professional Conduct (KRPC). That office filed an amended formal complaint on September 29, 2011, which the respondent answered on October 4, 2011. A panel of the Kansas Board for Discipline of Attorneys conducted a hearing on the complaint on October 13, 2011, at which the respondent appeared in person and by counsel. The hearing panel determined that respondent violated KRPC 1.1 (2011 Kan. Ct. R. Annot. 416) (competence); 1.3 (2011 Kan. Ct. R. Annot. 433) (diligence); 1.4(a) (2011 Kan. Ct. R. Annot. 452) (communication); 1.15(b) (2011 Kan. Ct. R. Annot. 519) (safekeeping property); 1.16(d) (2011 Kan. Ct. R. Annot. 535) (termination of representation); 8.1(b) (2011 Kan. Ct. R. Annot. 609) (failure to respond to lawful demand for information from disciplinary authority); Kansas Supreme Court Rules 207(b) (2011 Kan. Ct. R. Annot. 314) (failure to cooperate in disciplinary investigation); and 211(b) (2011 Kan. Ct. R. Annot. 334) (failure to file answer in disciplinary proceeding).
At the conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“DA10361, DA10503, and DA10686
“11. On December 23, 2009, the Respondent entered into the attorney diversion program, pursuant to Kan. Sup. Ct. R. 203(d). In the diversion agreement, tire Respondent stipulated to the following facts:
T>A10,361
‘a. Respondent was in a firm.
‘b. [W.B.] had a lien placed on them for proceeds in a workers’ compensation case.
‘c. Payment of the funds was delegated to a non-lawyer staff member who paid the funds to the client, not to the lien holder.
‘d. The funds were kept in a bank account that was not designated as a trust account.
‘e. The firm paid over $6,000 to the lien holder.
‘DA10,503
‘a. Respondent and his partner, Lawrence Williamson, filed a sexual harassment claim against the Wichita State University Police Department on behalf of [K.D.J.].
‘b. The suit did not survive summary judgment.
‘c. The court ruled that Wichita State University was immune to the state court claims and the conduct complained of was not “sever [sic] and pervasive.”
‘d. Respondent was the primary attorney on the case.
‘e. In the middle of the case, Williamson left the firm to open a new practice in a different city.
‘f. Complainant had difficulty getting her file delivered to her after the case was dismissed.
‘DA10,686
‘a. Respondent was retained to represent [D.B.] Complainant in an age discrimination case against a nursing home that had discharged Complainant.
‘b. Respondent filed the case in federal court.
‘c. The case was dismissed on a summary judgment motion in September 2008.
‘d. Complainant had difficulty locating Respondent during the pendency of her case.
‘e. Respondent did not tell Complainant he had moved offices.
‘f. Respondent did not promptly tell Complainant tire case had been dismissed.
‘g. Complaint did not get all of her documents returned to her.
‘h. Respondent did not fully cooperate with the investigation.’
“12. Additionally, in the diversion agreement, the Respondent agreed that he violated KRPC 1.1, KRPC 1.4, KRPC 1.5, KRPC 1.15, KRPC 1.16, and Kan. Sup. Ct. R. 207.
“13. The Respondent failed to comply with the terms of die diversion agreement. The Respondent failed to have quarterly audits of his flies completed by the practice supervisor. The Respondent failed to provide written office procedures. The Respondent failed to pay the required diversion fees. Finally, the Respondent failed to provide die Disciplinary Administrator widi his new address as required by the diversion agreement.
“14. The Respondent’s diversion agreement contained the following provision:
‘If die Respondent fails to comply with any of die terms and conditions of diversion, the Disciplinary Administrator may extend die term of die Diversion Agreement, otherwise modify the Diversion Agreement, or report such compliance to the Review Committee. The Review Committee may order that the Respondent be informally admonished or that the matter be set for a Formal Hearing before a Hearing Panel. See Kan. Sup. Ct. R. 203(d)(2)(vii).’
“15. The Deputy Disciplinary Administrator reported the Respondent’s violation of the terms of the diversion agreement to the Review Committee and the Review Committee directed tíiat DA10361, DA10503, and DA10686, be set for a formal hearing before a Hearing Panel.
“16. On October 8, 2008, the Kansas Supreme Court entered an order suspending the Respondent’s license to practice law in the State of Kansas for failing to pay die annual attorney registration fee. Thereafter, the Respondent paid die annual attorney registration fee. On December 10, 2008, the Kansas Supreme Court reinstated die Respondent’s license to practice law.
“17. On October 18, 2010, the Kansas Supreme Court again entered an order suspending the Respondent’s license to practice law in die State of Kansas for failing to pay the annual attorney registration fee. Subsequently, die Respondent paid the annual attorney registration fee. On May 12, 2011, die Kansas Supreme Court reinstated the Respondent’s license to practice law. Throughout die period of suspension, the Respondent practiced law in violation of the order of die Kansas Supreme Court.
“DA11136
“18. [E.M.] retained the Respondent to represent him in a removal case before die immigration court in Kansas City. The Respondent entered his appearance in behalf of Mr. [M.].
“19. On April 23, 2010, Mr. [M.] appeared in immigration court as ordered. The Respondent, however, failed to appear in court with Mr. [M.]. The immigration judge attempted to contact the Respondent by telephone. However, the judge was unable to reach the Respondent. After the hearing, die immigration judge ordered Mr. [M.] to voluntarily depart the United States widiin 120 days.
"20. Mr. [M.] retained Matthew Hoppock to appeal the immigration court’s decision. In order to file an appeal, Mr. Hoppock needed to obtain the Respondent’s file regarding Mr. [M.].
“21. On May 6, 2010, Mr. Hoppock called the Respondent and left a detailed message, requesting Mr. [M.’s] file. That same day, Mr. Hoppock sent the Respondent a letter requesting that the Respondent provide the original case file to Mr. Hoppock. Mr. Hoppock enclosed an original waiver and release executed by Mr. [M.]. Finally, Mr. Hoppock also sent the Respondent an electronic mail message requesting that the Respondent forward Mr. [M.’s] file to Mr. Hoppock.
“22. The Respondent did not respond to any of Mr. Hoppock’s initial inquiries.
“23. On June 4, 2010, Mr. Hoppock called the Respondent. Mr. Hoppock received a recorded message that the Respondent’s voice mail box was full. That same day, Mr. Hoppock sent the Respondent a second letter and a second electronic mail message, requesting that the Respondent forward his file regarding Mr. [M.] to Mr. Hoppock.
“24. The Respondent replied to the electronic mail message, acknowledging Mr. Hoppock’s May communications. The Respondent agreed to provide an electronic copy of Mr. [M.’s] file within 24 hours. The Respondent failed to provide Mr. [M.’s] file as promised.
“25. On June 6, 2010, the Respondent informed Mr. Hoppock that he would not be able to access Mr. [M.’s] file until June 19, 2010.
“26. In early July 2010, Mr. Hoppock received a compact disc with 8 pages. On July 10, 2010, Mr. Hoppock detailed what he had received and also detailed what he needed to receive from the Respondent. The Respondent never provided any additional documentation to Mr. Hoppock. Mr. Hoppock was required to represent Mr. [M.] without the benefit of the Respondent’s complete file.
“CONCLUSIONS OF LAW
“27. Based upon the findings of fact and the Respondent’s stipulation made in the diversion agreement, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.15, KRPC 1.16, Kan. Sup. Ct. R. 207, and Kan. Sup. Ct. R. 211, as detailed below. [Footnote: The Respondent stipulated to a violation of KRPC 1.5 (unreasonable fees) in tire diversion agreement. However, the facts included do not support a conclusion that the Respondent violated KRPC 1.5. Accordingly, the Hearing Panel dismisses the allegation that tire Respondent violated KRPC 1.5. ]
“28. 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 employ the requisite thoroughness and preparation in his representation of Mr. [M.]. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.1.
“29. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The Respondent failed to diligently and promptly represent Mr. [M.] by failing to appear in court as directed. Because tire Respondent failed to act with reasonable diligence and promptness in representing his client, the Hearing Panel concludes that the Respondent violated KRPC 1.3.
“30. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about die status of a matter and promptly comply with reasonable requests for information.’ In this case, the Respondent violated KRPC 1.4(a) when he failed to adequately communicate with Ms. [B.]. The Respondent failed to inform Ms. [B.] diat he moved his office and diat her case had been dismissed. Accordingly, die Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“31. Lawyers must deal properly widi the property of their clients. Specifically, KRPC 1.15(b) provides:
‘(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement widi the client, a lawyer shall promptly deliver to the client or tiiird person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.’
The Respondent violated KRPC 1.15(b) when he failed to notify the workers’ compensation carrier that he had received settlement funds and when he failed to properly distribute the settiement funds regarding Mr. [B.]. Accordingly, the Hearing Panel concludes diat the Respondent violated KRPC 1.15(b).
“32. KRPC 1.16 requires lawyers to take certain steps to protect clients after die representation has been terminated. Specifically, KRPC 1.16(d) provides die requirement in this regard:
‘Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.’
The Respondent violated KRPC 1.16(d) when he failed to return Ms. [J.’s] file to her, when he failed to return Ms. [B.’s] documents to her, and when he failed to properly forward Mr. [M.’s] file to Mr. Hoppock. The Hearing Panel concludes that die Respondent repeatedly violated KRPC 1.16(d).
“33. Lawyers must cooperate in disciplinary investigations.
‘It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.’ Kan. Sup. Ct. R. 207(b).
The Respondent knew that he was required to timely forward a written response to Ms. [B.’s] complaint. Because the Respondent knowingly failed to provide a timely written response to the initial complaint filed by Ms. [B], the Hearing Panel concludes that tire Respondent violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b).
“34. The Kansas Supreme Court rules require attorneys to file an answer to formal complaint. Kan. Sup. Ct. R. 211(b) provides the requirement:
‘The Respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.’
In this case, the Respondent violated Kan. Sup. Ct. R. 211(b) by failing to file a timely written answer to the formal complaint and by failing to file a timely written answer to the amended formal complaint. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 211(b).
“AMERICAN BAR ASSOCIATION
“STANDARDS FOR IMPOSING LAWYER SANCTIONS
“35. 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 die 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.
“36. Duty Violated. The Respondent violated his duties to his clients to provide adequate communication and to properly safeguard, distribute, and return property. Further, the Respondent violated his duties to the profession to cooperate in disciplinary investigations and to comply with the rules of the court by paying the annual attorney registration fees.
“37. Mental State. The Respondent knowingly violated his duties.
“38. Injury. As a result of the Respondent’s misconduct, tire Respondent caused actual injury to his clients and to the legal profession.
“39. 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:
“40. Prior Disciplinary Offenses. The Kansas Supreme Court has previously suspended tire Respondent’s license to practice law twice for failing to pay the annual registration fee. Additionally, the Respondent practiced law during the period of suspension, in violation of tire order of suspension.
“41. A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct. The Respondent violated the Kansas Rules of Professional Conduct in four separate cases. Some of the misconduct was similar in nature. Accordingly, the Hearing Panel concludes that the Respondent engaged in a pattern of misconduct.
“42. Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.15, KRPC 1.16, Kan. Sup. Ct. R. 207, and Kan. Sup. Ct. R. 211. As such, the Hearing Panel concludes that the Respondent committed multiple offenses.
“43. Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. The Respondent engaged in a bad faith obstruction of the disciplinary proceeding by failing to timely answer Ms. [B.’s] complaint and by failing to timely file an answer to the formal complaint and the amended formal complaint. The Hearing Panel concludes that the Respondent’s obstruction of the disciplinary proceeding is an aggravating factor in this case.
“44. Vulnerability of Victim. Mr. [M.] and tire other clients were vulnerable to the Respondent’s misconduct.
“45. 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:
“46. Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent enjoys the respect of his friends and peers as evidenced by the letters offered and received as Respondent’s Exhibit A.
“47. In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘4.12 Suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client.
‘4.42 Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injuiy to a client; or
(b) a lawyer engages in a pattern of neglect and causes injuiy or potential injuiy to a client.
‘6.22 Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injuiy to a client or a party, or interference or potential interference with a legal proceeding.
‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injuiy or potential injuiy to a client, the public, or the legal system.’
“RECOMMENDATION
“48. The Disciplinary Administrator recommended that the Respondent be suspended for no more than a year and that the Respondent undergo a reinstatement hearing so that the Respondent can have a plan of probation in place that would address his difficulties. Counsel for the Respondent suggested drat die appropriate discipline would be something less than a suspension. Counsel for the Respondent also suggested that the Hearing Panel could develop a plan of probation sw sponte and place the Respondent on probation.
“49. Kan. Sup. Ct. R. 211(g) provides responding attorneys with an opportunity to develop a plan of probation in advance of attorney disciplinary hearings. The Respondent failed to comply with the rule. Further, the rule does not allow the Hearing Panel to develop a plan of probation for the Respondent and place him on probation pursuant to the plan. As such, probation is no longer an option for the Respondent in this case.
“50. The Hearing Panel is concerned by the Respondent’s misconduct as well as his approach to the attorney disciplinary case. First, the Respondent practiced law in violation of die Kansas Supreme Court’s order suspending the Respondent’s license. Second, the Hearing Panel had the opportunity [to] observe the Respondent during the hearing. The Respondent appeared to the Hearing Panel unconcerned about die pending attorney disciplinary case. Finally, the Disciplinary Administrator worked out a diversion agreement for the Respondent regarding the first three disciplinaiy complaints. The Respondent failed to take advantage of this opportunity by complying with the diversion agreement. Conversely, the Respondent’s total disregard to his obligations under the diversion agreement clearly establish the Respondent’s lack of interest in doing what it takes to be an attorney in good standing in Kansas.
“51. Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends tiiat the Respondent be suspended from the practice of law for a period of six months. The Hearing Panel further recommends tiiat the Respondent undergo a reinstatement hearing, pursuant to Kan. Sup. Ct. R. 219.
“52. Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2011 Kan. Ct. R. Annot. 334). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
The respondent filed no exceptions to the hearing panel’s final hearing report. As such, the findings of fact are deemed admitted. Supreme Court Rule 212(c), (d) (2011 Kan. Ct. R. Annot. 352). Those admitted facts support the hearing panel’s conclusions of law, and we therefore adopt the panel’s findings and conclusions. Thus, the only issue before us is the appropriate discipline.
At the hearing before this court, at which the respondent appeared, the office of the Disciplinary Administrator recommended that the respondent be suspended for no less than 1 year and that he undergo a reinstatement hearing. The respondent requested something less than a suspension; he also suggested a hearing panel-developed probation plan. The hearing panel recommended that respondent be suspended from the practice of law for a period of 6 months and undergo a reinstatement hearing pursuant to Kansas Supreme Court Rule 219 (2011 Kan. Ct. R. Annot. 380).
“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 the Disciplinary Administrator.” Supreme Court Rule 212(f) (2011 Kan. Ct. R. An-not. 353).
Here, the respondent’s failure to take advantage of the diversion agreement and his substantial disregard of his obligations under that agreement, as well as the seriousness of respondent’s misconduct during the pendency of the diversion agreement, convince this court that the panel’s recommended 6-month suspension is an insufficient sanction in this case.
Accordingly, we find the appropriate sanction is a 1-year suspension from the practice of law, to commence upon the filing of this opinion.
Conclusion and Discipline
It Is Therefore Ordered that Uzo L. Ohaebosim be suspended for 1 year from the practice of law in the state of Kansas, effective on the filing of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2011 Kan. Ct. R. Annot. 280).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2011 Kan. Ct. R. Annot. 379).
It Is Further Ordered that the respondent must undergo a Supreme Court Rule 219 (2011 Kan. Ct. R. Annot. 380) hearing before the court will consider any readmission of the respondent to the practice of law in Kansas.
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas reports. | [
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The opinion of the court was delivered by
Rosen, J.:
In Sedgwick County District Court case No. 07CR3805, Steven R. Hernandez was charged with aggravated indecent liberties with a child. After the trial, the jury returned guilty verdicts on both aggravated indecent liberties with a child and the lesser included offense, attempted aggravated indecent liberties with a child. The trial court imposed a life sentence, without possibility of parole for 25 years, for aggravated indecent liberties with a child.
In an unrelated case, case No. 07CR2807, Hernandez pleaded guilty to aggravated sexual battery. In that case, the trial court imposed a sentence of 32 months’ incarceration, to run consecutive to his sentence in case No. 07CR3805. On Hernandez’ motion, the trial court consolidated these two cases for appeal.
On the aggravated indecent liberties conviction, we consider the issues raised by the inconsistent jury verdicts and the failure to prove Hernandez’ age. That conviction is reversed and remanded. On the aggravated sexual battery conviction, we affirm the trial court’s use of criminal history for sentencing.
Factual and Procedural History
On October 9, 2007, Steven Hernandez pleaded guilty to aggravated sexual battery in case No. 07CR2807. This charge was based on events occurring September 8, 2007, with L.M.C., a 17-year-old female. Hernandez was released on bond pending sentencing.
On December 15, 2007, while on bond and awaiting sentencing in 07CR2807, Hernandez called R.F. several times to see about getting together. Hernandez eventually went to R.F.’s home to visit him. R.F. had been friends with Hernandez’ grandfather for about 15 years and had known Hernandez for several years. R.F. testified that Hernandez knew his oldest son and had met his oldest daughter previously but Hernandez did not know the two younger children who were at home that night. R.F. introduced Hernandez to his youngest daughter, V.F., age 11, and his youngest son, age 7.
R.F. and Hernandez sat at the table drinldng beer and talking until R.F.’s wife, B.F., got home from work. B.F. put the younger children to bed and then watched a movie on television in the living room, where R.F. and Hernandez joined her. Eventually, both R.F. and B.F. went to bed and left Hernandez to sleep on the sofa.
V.F. testified that she went to sleep that night wearing her panties, bra, and a shirt. She woke up when Hernandez, identifying himself as one of her older brothers, asked to lie down with her. V.F. allowed him to lie on top of the covers, as she often let her brother share her bed on top of the covers. Hernandez lay down touching V.F.’s buttocks with the back of his hand; V.F. described this contact as accidental. He then got close to V.F. and hugged her with one arm, pressing his chest against her back and placing his hand on her stomach. Suspecting that the person in her bed was not one of her brothers, V.F. made an excuse about getting her MP3 player and got out of bed. She turned on the lights and saw Hernandez lying naked on top of her bed. She ran to her parents’ room and woke her mother.
B.F. testified that V.F. woke her saying, “Mom, he’s in my bed and he’s naked.” B.F. went into V.F.’s room and saw Hernandez “stark naked” on top of the covers of her daughter’s bed. She then woke R.F., who began arguing with Hernandez. B.F. hit Hernandez several times before calling the police.
Hernandez was charged with one count of aggravated indecent liberties with a child, an off-grid person felony, based on the December incident with V.F. Over Hernandez’ objection at trial, the jury was instructed on both aggravated indecent liberties and the lesser included offense of attempted aggravated indecent liberties. On separate pages of the verdict form, the jury returned guilty verdicts on both charges. Hernandez moved for a mistrial, claiming that there was a fundamental error in the jury verdicts. In response, tire State likened the situation to one where a defendant is charged with alternative counts and the jury convicts on both alternative counts. The court denied Hernandez’ motion for mistrial and set the matter for further argument at sentencing.
At sentencing, the court denied Hernandez’ motions for new trial, judgment of acquittal, and sentence departure, and imposed a life sentence on the aggravated indecent liberties with a child conviction in case No. 07CR3805. The court also imposed the presumptive sentence of 32 months for the aggravated sexual battery in case No. 07CR2807, to be served consecutive to the life sentence. The cases were consolidated for appeal on Hernandez’ motion. Further facts will be presented as necessary for the analysis.
Inconsistent Verdicts
Over Hernandez’ objection, the trial court instructed the jury on the lesser included offense of attempted aggravated indecent liberties with a child. The jury instructions did not include PIK Crim. 3d 68.09, which is the pattern instruction that explains how a jury should consider lesser included offenses. Contrary to PIK Crim. 3d 68.10, which provides a single comprehensive verdict form for each criminal offense charged, including any lesser included offenses, the court provided tire juiy with two separate verdict forms. Hernandez did not request PIK Crim. 3d 68.09 or object to the verdict forms. The verdict forms, each presented to the juiy on separate sheets of paper, read:
“VERDICT
_We, the jury, find the defendant guilty of aggravated indecent liberties with a child.
_We, the jury, find the defendant not guilty of aggravated indecent liberties with a child.
If the juiy finds the defendant not guilty of aggravated indecent liberties with a child, please complete Verdict Form B.”
“VERDICT (Form B)
_We, the jury, find the defendant guilty of attempted aggravated indecent liberties widi a child.
_We, the jury, find the defendant not guilty of attempted aggravated indecent liberties with a child.”
Contrary to the language on the bottom of the first verdict form, the jury returned a guilty verdict on both forms. After reviewing the completed verdict forms, the court held a brief off-the-record discussion with counsel outside the hearing of the juiy and the court reporter. The court read the verdicts into the record and discharged the jury. After the jury left the courtroom, the court referred back to the off-the-record discussion and asked the parties to restate their arguments. The State argued that the verdicts were not a problem, as this was similar to a situation where the State charged a case under alternative theories; therefore, any problem with the verdicts could be addressed at sentencing. Defense counsel argued that Hernandez had not been charged under alternative theories in this case; therefore, the two inconsistent verdicts caused a fatal problem, resulting in Hernandez’ request for a mistrial.
The court denied the motion for a mistrial and set the matter for further hearing at sentencing. The trial court proceeded to treat these verdicts as guilty verdicts on alternative charges, even though Hernandez was only charged with the completed crime. The attempted aggravated indecent liberties with a child instruction was given, over the defendant’s objection, as a lesser included charge. Because Hernandez was not charged with aggravated indecent liberties or, in the alternative, attempted aggravated indecent liberties, the trial court could not correct this problem at sentencing.
It is a legal impossibility to both attempt tire commission of a crime and complete the commission of the same crime, because the failure to complete commission of the crime is an element of attempt. See PIK Crim. 3d 55.01(3). As Professor Paul H. Robinson put it: “It is almost universally the rule that a defendant may not be convicted of both a substantive offense and an inchoate offense designed to culminate in that same offence.” 1 Robinson, Criminal Law Defenses § 84(b), p. 414 (2011). Kansas law specifically prohibits conviction of both the crime charged and an attempt to commit the crime charged. K.S.A. 21-3107(2)(c).
Arguing that the verdicts are inherently inconsistent and therefore a fatal problem in the case, Hernandez relies primarily on the following language from State v. Culbertson, 214 Kan. 884, Syl. ¶ 2, 552 P.2d 391 (1974): “When a jury, contrary to the court’s instructions, finds a defendant guilty of both the greater and lesser offenses, it is the duty of the trial court to order the jury to reconsider and correct its verdict.”
In Culberison, the jury returned guilty verdicts on both possession with intent to sell and the lesser included crime of possession. The judge explained that the defendant could not be found guilty of both the greater and lesser offenses and sent the jury back to reconsider. The jury soon returned with guilty verdicts on the charges of possession with intent to sell. We rejected arguments that (1) sending tire juiy back to reconsider its verdicts violated the defendant’s double jeopardy rights and (2) the trial court erred in not accepting the jury’s verdicts finding him guilty of the lesser offenses, which would have acquitted him of the greater offenses. We concluded that accepting either of the verdicts would have been error because the verdicts were defective by virtue of finding the defendant guilty of both the greater and lesser offenses. Culbertson, 214 Kan. at 886-87.
Despite the language in Culbertson, we have not considered the consequence of the type of situation presented here, where the trial court failed to order the juiy to reconsider and correct the verdict. In State v. Winters, 276 Kan. 34, 72 P.3d 564 (2003), the jury returned guilty verdicts on both the severity level 4 and severity level 7 aggravated battery charges, which had been charged in the alternative. The trial court had found that the charges were multiplicitous, the verdicts on the two counts therefore merged into the more serious charge, and the defendant should be convicted of the level 4 aggravated battery only. The Court of Appeals reversed and remanded, ruling that the level 4 aggravated battery conviction should be vacated and sentence imposed on the level 7 aggravated battery conviction. This court reversed the Court of Appeals and affirmed the trial court. We first determined that level 7 aggravated battery is a lesser included offense of level 4 aggravated battery because all elements of the level 7 aggravated battery are identical to some of the elements of the severity level 4 aggravated battery. Because one charge is a lesser included offense of the other, it was error to instruct on these charges as if they were alternative crimes. Winters, 276 Kan. at 36-39. When a defendant is convicted of multiplicitous offenses, the court must vacate the lesser sentence and impose sentence only on the greater offense. Winters, 276 Kan. at 43.
Faced with the inconsistent verdicts in this case, the trial court should have sent the jury back into deliberation with new verdict forms. Under Culbertson, the trial court had a duty to order the jury to reconsider and correct its verdicts. Aggravated indecent liberties with a child, under K.S.A. 21-3504(a)(3)(A), requires proof of “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.” Attempted aggravated indecent liberties with a child, under K.S.A. 21-3301(a), requires proof of an “overt act toward tire perpetration of [aggravated indecent liberties with a child] done by a person who intends to commit such crime but fails in tire perpetration thereof or is prevented or intercepted in executing such crime.” Unlike the charges in Winters, the charges in this case— aggravated indecent liberties with a child and attempted aggravated indecent liberties with a child — cannot merge, because each crime requires proof of an element not necessary to prove the other offense. In fact, a finding of guilty on one of these charges requires a finding of not guilty on the other because die elements are logically inconsistent. Unfortunately, the record does not include the discussion at the bench before the verdicts were read, so we can only speculate as to what options the trial court considered by virtue of counsel’s recounting of the discussion after the juiy was excused. Ultimately, Hernandez requested a mistrial.
We have recendy articulated the standard for reviewing a motion for mistrial:
“On appeal, the trial court’s decision denying a motion for mistrial is reviewed under an abuse of discretion standard.”
“Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, Syl. ¶¶ 2, 3, 256 P.3d 801 (2011).
K.S.A. 22-3423(1) allows the trial court to declare a mistrial “at any time” because:
“(a) It is physically impossible to proceed with the trial in conformity with law; or
“(b) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law and the defendant requests or consents to the declaration of a mistrial.”
When defense counsel was asked to restate his arguments from the off-the-record discussion between the court and counsel prior to the reading of the verdicts, he requested a mistrial on the record. By that time, it was impossible to proceed with the trial in conformity with the law. Culbertson required that the trial court order the jury to reconsider and correct its verdict; however, the jury had already been discharged in spite of Hernandez’ counsel pointing out the legal impossibility presented by the inconsistent verdicts and the flawed position of the State that the problem could be cured at sentencing.
A mistrial was appropriate under K.S.A. 22-3423(l)(b) because these verdicts are legally and factually inconsistent. The trial court could not legally enter judgment on either verdict because the jury’s finding on the other verdict precludes such judgment. Aggravated indecent liberties with a child requires a completed crime. Attempted aggravated indecent liberties with a child requires that the crime was not completed. Logic prevents these crimes from merging, and K.S.A. 21-3107(2)(c) prohibits conviction of both the crime charged and an attempt to commit the crime charged.
In this case, the trial court abused its discretion in denying Hernandez’ motion for a mistrial. The trial court’s action was based on an error of law, that is, the trial court erroneously concluded that it could deal with the problem at sentencing as if the charges had been brought in the alternative, or as if the charges merged so that the defendant was only convicted of the greater offense. As a result, defendant’s conviction must be reversed and the case remanded for a new trial.
Proof of Age
Issues that implicate jurisdiction, statutory interpretation, and constitutional interpretation are subject to unlimited review by this court. State v. Bello, 289 Kan. 191, 195, 211 P.3d 139 (2009). We have previously determined that a defendant’s age of 18 or older is an element of the off-grid Jessica’s Law aggravated indecent liberties charged in this case. See, e.g., State v. Sellers, 292 Kan. 117, 132, 253 P.3d 20 (2011); State v. Gonzales, 289 Kan. 351, 370, 212 P.3d 215 (2009). Accordingly, if the defendant’s age was not submitted to the jury and proved beyond a reasonable doubt, under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the sentencing court is precluded from imposing the enhanced off-grid severity level sentence. Bello, 289 Kan. at 199-200.
When the trial record shows evidence of age that was overwhelming and essentially uncontroverted, the failure to give the jury an instruction on the element of age in Jessica’s Law cases may be harmless. See, e.g., State v. Huerta-Alvarez, 291 Kan. 247, Syl. ¶ 7, 243 P.3d 326 (2010); State v. Reyna, 290 Kan. 666, 682, 234 P.3d 761, cert. denied 131 S. Ct. 532 (2010). If the trial record does not include such evidence, we have held that the defendant can be exposed to punishment only for the on-grid form of the crime. See, e.g., Sellers, 292 Kan. at 133; Bello, 289 Kan. at 179-200; Gonzales, 289 Kan. at 371.
In this case, the amended information did not allege that Hernandez was 18 or older at tire time of the crimes, but it did list his year of birth as 1988, with the crime committed on December 16, 2007. At trial, an officer testified that “a mother was calling stating there was an approximately 20-year-old Hispanic male in bed with their 12-year-old daughter.” The victim testified that she was 11 years old at tire time of trial. The victim’s mother, B.F., testified that she had never met Hernandez before the night of the offense. She also testified that she had no idea what she said on the 911 call because she was upset and simply wanted an officer to arrive quickly. This testimony is weak because B.F. had no reason to know Hernandez’ age and misstated the age of her own daughter.
The victim’s father, R.F., testified that Hernandez was friends with his son. The State argues this testimony suggests Hernandez was the same age as R.F.’s son. But according to R.F., Hernandez called several times wanting R.F., not his son, to come over and hang out. Hernandez eventually came to the house to visit with R.F., although neither the 19-year-old son nor the 14-year-old son was home that evening. Whether Hernandez was friends with R.F. or either of his sons, this evidence does not establish Hernandez’ age at the time of these crimes.
The trial record in this case does not show overwhelming and essentially uncontroverted evidence that Hernandez was 18 years old or older at the time of his crimes. Ordinarily, we would remand for resentencing for the on-grid form of the crime. See, e.g., Sellers, 292 Kan. at 133; Bello, 289 Kan. at 199-200; Gonzales, 289 Kan. at 371. But we are reversing Hernandez’ convictions on other grounds and therefore we do not ordinarily address other claims of error. In this situation, we would address other claims of error for only two reasons: (1) to provide guidance to the trial court on issues likely to arise on remand; or (2) to determine a sufficiency of the evidence claim for double jeopardy purposes. See Ball v. United States, 163 U.S. 662, 671-72, 16 S. Ct. 1192, 41 L. Ed. 300 (1896) (double jeopardy does not apply to bar retrial where defendant appeals and obtains reversal based on error in the proceeding); see also Burks v. United States, 437 U.S. 1, 16-18, 98 S. Ct. 2141, 57 L. Ed. 1 (1978) (recognizing exception to Ball where conviction is reversed for evidentiary insufficiency; a reversal based on a determination the evidence was insufficient to support the verdict is akin to a determination the trial court should have entered a judgment of acquittal warranting the double jeopardy protection); State v. Dumars, 37 Kan. App. 2d 600, 608, 154 P.3d 1120 (2007) (citing Lockhart v. Nelson, 488 U.S. 33, 39, 109 S. Ct. 285, 102 L. Ed. 2d 265 [1988], and Burks, 437 U.S. at 18).
The question, then, is whether a violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), is a determination that the evidence was insufficient to support the conviction within the meaning of the United States Supreme Court’s double jeopardy jurisprudence. As noted below, double jeopardy does not apply to noncapital sentencing determinations. It is an open question whether the requirement of Apprendi — that sentencing facts are the “functional equivalent” of elements of an offense for purposes of the Sixth Amendment right to jury trial, 530 U.S. at 494, n.19 — -affects that double jeopardy principle. The Supreme Court has not resolved the question, we have never addressed it, and tire parties have not raised and briefed it. Therefore, we find it is not appropriate to determine it sua sponte here and now.
Under current Supreme Court precedent, double jeopardy principles do not apply in the sentencing context. Monge v. California, 524 U.S. 721, 724, 118 S. Ct. 2246, 141 L. Ed. 2d 615 (1998). A “narrow exception” exists, however, for capital sentencing proceedings. Monge, 524 U.S. at 730; Bullington v. Missouri, 451 U.S. 430, 439, 445, 101 S. Ct. 1852, 68 L. Ed. 2d 270 (1981) (double jeopardy applies to capital sentencing proceedings that “have the hallmarks of the trial on guilt or innocencef;]” a jury’s determination the prosecution did not prove beyond a reasonable doubt facts necessary to impose a sentence of death is an “acquittal” under double jeopardy and thus double jeopardy bars the State from seeking the death penalty on retrial).
Monge was decided before Apprendi and was based on double jeopardy’s “distinction between facts that are elements of a criminal offense and facts that go only to the sentence[.]” Monge, 524 U.S. at 738 (Scalia, J., dissenting). At the time Monge was decided, that “same distinction also delimit[ed] tire boundaries of other important constitutional rights, like the Sixth Amendment right to trial by jury and the right to proof beyond a reasonable doubt.” 524 U.S. at 738 (Scalia, J., dissenting). Presaging die Apprendi decision, Justice Scalia argued for elimination of the distinction.
Apprendi eliminated the distinction between certain sentencing facts and elements of an offense for purposes of the Sixth Amendment right to jury trial. Apprendi, 530 U.S. at 494. Nevertheless, an Apprendi violation is a sentencing error. Blakely, 542 U.S. at 304 (Sixth Amendment right to jury trial is violated “[w]hen [the] judge inflicts punishment that the jury’s verdict alone does not allow”). This frames the fundamental question for noncapital sentencing determinations: does Apprendi s elimination of the distinction between sentencing facts and elements for purposes of the right to jury trial extend to other constitutional rights like double jeopardy?
There is no clear answer. The Supreme Court has hinted that Monge, which relied on the distinction between sentencing facts and elements of tire offense in holding that double jeopardy does not apply to noncapital sentencing determinations, may be subject to question in light of Apprendi. See Sattazahn v. Pennsylvania, 537 U.S. 101, 111-12, 123 S. Ct. 732, 154 L. Ed. 2d 588 (2003) (citing Monge, 524 U.S. at 738 [Scalia, J., dissenting]) (“ The fundamental distinction between facts that are elements of a criminal offense and facts that go only to the sentence’ not only ‘delimits the boundaries of... important constitutional rights, like the Sixth Amendment right to trial by jury,’ but also provides the foundation for our entire double jeopardy jurisprudence.’ ”). At this point, though, Monge remains good law; double jeopardy does not apply to noncapital sentencing determinations.
Whether Apprendi would or should change that rule is the kind of question that should be resolved only after thorough consideration based on a full presentation of the question through briefing and argument. This is but one question that may be litigated upon remand. We have no doubt that skilled advocates would be able to identify others and present persuasive arguments elaborating on or countering the issues relating to potential retrial. By engaging in speculative conclusions without benefit of a district court ruling and the resulting briefs and arguments on appeal, the dissent has engaged in a “pick-off play” without realizing there are no runners on base. “ ‘The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.’ ” National Aeronautics and Space Admin. v. Nelson, 562 U.S. 134, 131 S. Ct. 746, 757, n.10, 178 L. Ed. 2d 667 (2011) (quoting Carducci v. Regan, 714 F.2d 171, 177 [C.A.D.C. 1983] [opinion for the Court by Scaha, J.]); see also State v. Puckett, 230 Kan. 596, 600-01, 640 P.2d 1198 (1982) (When exceptional circumstances justify an appellate court’s sua sponte consideration of an issue not raised on appeal, the parties must be given “a fair opportunity to brief the new issue and to present their positions to the appellate court before the issue is finally determined.”). Only after this issue has been briefed, argued, and decided at the trial court and consequently briefed and argued on appeal would this issue be ripe for decision by this court.
Conclusion
As a result of our ruling on the two issues discussed above, we do not reach the following issues: (1) whether the jury instructions were clearly erroneous because the lesser included offense instruction, PIK Crim. 3d 68.09, was not given or because the verdict form did not conform to PIK Crim. 3d 68.10; (2) whether Hernandez should be eligible for parole after 20 years, under K.S.A. 22-3717(b)(2), rather than after 25 years, under K.S.A. 21- 4643(a)(2)(c); (3) whether the district court erred in denying Hernandez’ motion for downward departures; (4) whether Hernandez is entitled to a new trial because the trial court accepted the jury’s verdicts without inquiring into the accuracy of the verdicts, as required by K.S.A. 22-3421; and (5) whether cumulative error requires a new trial.
The only remaining issue Hernandez raised in the aggravated indecent liberties case is whether the district court erred in denying his motion to suppress his interrogation statements. When the trial court has denied a motion to suppress, the moving party must object to the introduction of that evidence at the time it was offered at trial to preserve the issue for appeal. State v. McCaslin, 291 Kan. 697, 726, 245 P.3d 1030 (2011). We will not address this issue because no objection was made at trial during the officer’s testimony.
As his only issue in case No. 07CR2807, in which Hernandez pleaded guilty to aggravated sexual battery, Hernandez argues that because his prior convictions were not included in the complaint or proved to a jury beyond a reasonable doubt, the use of his criminal history score in sentencing violates Apprendi. Hernandez acknowledges that this court has previously decided this issue, but seeks to preserve it for federal review. See State v. Ivory, 273 Kan. 44, 47-48, 41 P.3d 781 (2002).
Hernandez’ convictions and sentences in the aggravated indecent liberties case are reversed and remanded for new trial in accordance with this opinion. | [
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Stephen R. Robinson, of Lawrence, an attorney admitted to the practice of law in Kansas in 1986.
On September 20, 2010, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). On November 8, 2010, respondent filed a motion to continue the formal hearing to allow him time to transfer his license to disabled inactive status but did not follow through with that transfer and failed to file an answer to the formal complaint.
On December 13, 2011, a hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys. Respondent was not personally present and was not represented by counsel. The hearing panel determined that respondent violated KRPC 1.15 (2011 Kan. Ct. R. Annot. 519) (safekeeping property) and 8.4(c) (2011 Kan. Ct. R. Annot. 618) (engaging in conduct involving misrepresentation). The panel made the following findings of fact and conclusions of law, with a recommendation for disbarment. This court agrees and orders disbarment.
“FINDINGS OF FACT
“6. On October 6, 2009, the Kansas Supreme Court suspended the Respondent from the practice of law in the State of Kansas for failing to fulfill the continuing legal education requirements and for failing to pay the noncompliance fee to the Kansas Continuing Legal Education Commission. The Respondent’s license to practice law remains suspended.
“7. In a letter dated April 23,2010, the Respondent self-reported misconduct. The Respondent’s letter provides:
‘This is to memorialize our telephonic conversation Monday, April 19, at approximately 1 pm. As we discussed, I believe I have committed one or more ethical violations with regard to a transaction concerning one particular client. The facts are these: 1) the client gave me funds to file a patent prosecution document before the United States Patent and Trademark Office (USPTO); 2) the funds were intended to cover both my fee for doing the work and a USPTO filing fee associated with the official filing; 3) I commingled the funds by depositing them in my own personal account (I do not currently have either a professional or trust account); 4) I spent the funds for my personal use (a total of approximately $2,400); and 5) the document in question has not yet been filed with the USPTO.
‘As we also discussed, before you and I had talked, that same day I had contacted the client and advised her of the facts in the preceding paragraph. She is a long-standing client and stated that she was not concerned about the funds and wanted the work to go foiward (she was already aware that the document had not yet been filed with the USPTO). We made arrangements to begin preparing the document the weekend after next, i.e., May 8-9. The document to be prepared is a highly technical patent matter and so will require a collaborative effort with the client. The amount of the governmental filing fee is $810. I will either reimburse the client for this amount or reach agreement for additional services for that amount. I will report to you when the document has been filed with the USPTO.
T have decided to quit practicing law as soon as possible, with the exception of one client not previously mentioned. Concerning this client we have an understanding that he will maintain the official address of record (i.e., I will no longer be receiving the official correspondence directly from die USPTO) and further that going forward all funds required for his legal matters will be handled by money orders or the like and only after any work product prepared by me has been completed and is ready for filing.
‘In the meantime, I am contacting my other clients and advising them that I will refer them to another patent attorney, or if diey insist, I will complete any outstanding work on one last document (if such is a pending requirement) in order to further die patent prosecution in a given case, provided die client will agree to the conditions recited in the previous paragraph.’
The Respondent failed to provide the Disciplinary Administrator with proof that he completed the document for which he was paid the $2,400.00. Additionally, the Respondent provided no additional information regarding the status of the representation of his remaining clients.
“8. On May 24, 2010, Martin L. Miller, Special Investigator for the Office of the Disciplinary Administrator, spoke by telephone widi die Respondent. Mr. Miller informed die Respondent that on October 6, 2009, his license had been suspended for failing to comply with the annual administrative requirements. The Respondent indicated that he was previously unaware that his license to practice law had been suspended.
“9. On September 20, 2010, the Disciplinary Administrator filed the Formal Complaint and Notice of Hearing, scheduling a formal hearing for November 17, 2010. The Disciplinary Administrator sent a copy of the Formal Complaint and Notice of Hearing to the Respondent at his last registered address by certified mail. Additionally, the Disciplinary Administrator sent a copy of the Formal Complaint and Notice of Hearing to the Respondent’s current address.
“10. On November 8, 2010, the Respondent filed a motion to continue the formal hearing to allow tire Respondent time to transfer his license to disabled inactive status. The Hearing Panel granted the Respondent’s motion and the hearing on the Formal Complaint was continued indefinitely. However, thereafter, the Respondent took no steps to transfer his license to disabled inactive status.
“11. On November 18, 2011, the Disciplinary Administrator prepared an Amended Notice of Hearing, scheduling a formal hearing for December 13,2011. The Disciplinaiy Administrator sent a copy of the Notice of Hearing to the Respondent at his last registered address by certified mail. Further, the Disciplinaiy Administrator sent a copy of the Amended Notice of Hearing to the Respondent at his current address.
“12. On November 29, 2011, Mr. Miller spoke by telephone with the Respondent. The Respondent confirmed that he had received the Notice of Hearing and was aware of the December 13, 2011, hearing. The Respondent indicated that he wished to surrender his license to practice law.
“13. Mr. Miller forwarded the necessary paperwork to allow the Respondent to surrender his license to practice law. However, the Respondent did not complete and return the surrender paperwork.
“14. On December 12, 2011, Mr. Miller spoke by telephone with the Respondent again. The Respondent informed Mr. Miller that he would not be attending the hearing on tire following day.
“15. On December 13, 2011, the Respondent failed to appear at the hearing on the Formal Complaint and did not file an Answer to the Formal Complaint at any time.
“CONCLUSIONS OF LAW
“16. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.15 and KRPC 8.4(c), as detailed below.
“17. The Respondent failed to appear at the hearing on the Formal Complaint. It is appropriate to proceed to hearing when a Respondent fails to appear only if proper service was obtained. Kan. Sup. Ct. R. 215 governs service of process in disciplinary proceedings. That rule provides, in pertinent part as follows:
‘(a) Service upon tire respondent of the formal complaint in any disciplinary proceeding shall be made by the Disciplinary Administrator, either by personal service or by certified mail to the address shown on tire attorney’s most recent registration, or at his or her last known office address.
‘(c) Service by mailing under subsection (a) or (b) shall be deemed complete upon mailing whether or not the same is actually received.’
In this case, the Disciplinary Administrator complied with Kan. Sup. Ct. R. 215(a) by sending a copy of the Formal Complaint and the Amended Notice of Hearing, via certified United States mail, postage prepaid, to the address shown on tire Respondent’s most recent registration. Additionally, the Disciplinary Administrator sent a copy of the Formal Complaint and Amended Notice of Hearing to the Respondent’s current address in Lawrence, Kansas. The Respondent received a copy of tire Formal Complaint and acknowledged the hearing date. The Hearing Panel concludes that tire Respondent was afforded the notice that tire Kansas Supreme Court Rules requirefs] and more.
“18. Lawyers must keep the property of their clients safe. See KRPC 1.15. In this case, the Respondent failed to properly safeguard his client’s property when he deposited unearned attorney fees in the amount of $2,400.00 into his personal bank account and converted the unearned attorney’s fees by spending tire fees on personal expenses. Therefore, tire Hearing Panel concludes that tire Respondent violated KRPC 1.15.
“19. ‘It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). The Respondent engaged in conduct that involved dishonesty when he converted $2,400.00 of client money to his own use. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(c).
“AMERICAN BAR ASSOCIATION
“STANDARDS FOR IMPOSING LAWYER SANCTIONS
“20. In making this recommendation for discipline, the Hearing Panel considered tire factors outlined by tire American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are tire 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.
“21. Duty Violated. The Respondent violated his duly to his client to properly safeguard his client’s property.
“22. Mental State. The Respondent intentionally violated his duty.
“23. Injury. As a result of tire Respondent’s misconduct, tire Respondent caused actual serious injury to his client.
“24. Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in tire degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“25. Dishonest or Selfish Motive. Converting client property is dishonest and selfish. Accordingly, the Hearing Panel concludes that the Respondent’s misconduct was motivated by dishonesty and selfishness.
“26. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to the practice of law in 1986. As such, the Respondent has substantial experience in the practice of law.
“27. 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 circumstance present:
“28. Absence of a Prior Disciplinary Record. Apparently, the Respondent has not previously been disciplined.
“29. In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘4.11 Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client.’
“RECOMMENDATION
“30. The Disciplinary Administrator recommended that the Respondent be disbarred.
“31. Based upon the findings of fact, conclusions of law, and tire Standards listed above, the Hearing Panel unanimously recommends that the Respondent be disbarred.
“32. Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Discussion
In a disciplinaiy proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of tire parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2011 Kan. Ct. R. Annot. 334). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
In this case, respondent filed no exceptions to the panel’s final hearing report. As such, the findings of fact are deemed admitted. Supreme Court Rule 212(c), (d) (2011 Kan. Ct. R. Annot. 352). Respondent also was given adequate notice of the formal complaint, to which he failed to file an answer, and adequate notice of both the hearing before the panel and the hearing before this court. The evidence before the hearing panel establishes the charged misconduct of the respondent by clear and convincing evidence and supports the panel’s conclusions of law. We therefore conclude the hearing panel’s findings are supported by clear and convincing evidence and adopt the panel’s findings and conclusions. The remaining issue is the appropriate discipline.
At the hearing before this court, the office of the Disciplinary Administrator recommended that respondent be disbarred. Respondent did not appear. Based on his failure to appear, as well as the hearing panel’s findings and conclusions, this court agrees disbarment is the appropriate discipline.
Conclusion and Discipline
It Is Therefore Ordered that Stephen R. Robinson be disbarred from the practice of law in the state of Kansas, effective on the filing of this opinion, in accordance with Supreme Court Rule 203(a)(1) (2011 Kan. Ct. R. Annot. 280).
It Is Further Ordered that respondent shall comply with Supreme Court Rule 218 (2011 Kan. Ct. R. Annot. 379).
It Is Further Ordered that the costs of these proceedings be assessed to respondent and that this opinion be published in the official Kansas Reports. | [
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