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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Elizabeth Anne Hueben, of Kansas City, Missouri, an attorney admitted to the practice of law in Kansas in 2004.
On February 11, 2015, 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 March 9, 2015. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on April 14, 2015, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated Supreme Court Rule 203(c)(1) (2014 Kan. Ct. R. Annot. 306) (automatic temporary suspension of attorneys convicted of a felony crime) and KRPC 8.4(b) (2014 Kan. Ct. R. Annot. 680) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer).
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
“7. The Kansas Supreme Court admitted the respondent to the practice of law in the State of Kansas on April 30, 2004. On October 6, 2009, the Kansas Supreme Court entered an order suspending the respondent’s license to practice law for failing to pay the annual continuing legal education fees. Then, on August 5, 2014, the Kansas Supreme Court entered an order of temporary suspension due to the felony conviction described in paragraph 12, below.
“8. In September, 2003, the Missouri Supreme Court admitted the respondent to practice law in Missouri. On February 6, 2012, the respondent transferred her license to practice law in Missouri to inactive status.
“9. Following admission to the bar, the respondent briefly entered private practice with a firm in Missouri but soon left that firm and joined the Missouri public defenders’ office. She continued with the Missouri public defenders’ office until her transfer to inactive status. She has never practiced in Kansas.
“10. Prior to her admission to the practice of law, and as reported in her Kansas bar application, in 1991, respondent was arrested for driving under the influence of alcohol in Overland Park, Kansas. For the charge of driving under the influence of alcohol, the respondent participated in a diversion program.
“11. On July 2, 2010, the respondent was arrested in Jackson County, Missouri, for driving while under the influence of alcohol, a misdemeanor, and possession of cocaine, a felony. The respondent received a suspended imposition of sentence for the driving while under tire influence of alcohol charge. Regarding the possession of cocaine charge, the respondent entered into an agreement with the prosecutor. The prosecutor agreed to dismiss the charge if the respondent complied with certain conditions. By the respondent’s conduct set forth in paragraph 11 below, die respondent violated the agreement with die prosecutor. Accordingly, die prosecutor terminated die agreement. Thereafter, in February 2012, the respondent entered die Missouri Drug Court Diversion Program. The respondent successfully completed die diversion program and, diereafter, on March 28, 2013, the possession of cocaine charge was dismissed.
“12. On Februaiy 20, 2011, the respondent was arrested in Johnson County, Kansas, for driving under the influence of alcohol (third offense), in violation of K.S.A. 8-1567(a)(3), an unclassified felony and refusal of a preliminary breath test, in violation of K.S.A. 8-1012, a traffic infraction. On January 3, 2013, the respondent was convicted by the court of the two charges.
“13. During the period from the respondent’s arrest on July 2, 2010, while under the agreement with the prosecutor concerning the cocaine charge until her arrest on February 20, 2011, the respondent was demoted to a paralegal in the public defenders’ office. The respondent was reinstated in her attorney position when the agreement was reached widi die prosecutor regarding the felony charge. Following the Februaiy 20, 2011, arrest, she was dismissed.
“14. On March 28, 2013, the court sentenced the respondent to 12 months’ incarceration which was suspended to 48 hours in jail followed by 88 days of electronically monitored house arrest. Following the jail time and house arrest, the respondent served 12 months’ probation. On April 2, 2014, the court discharged the respondent from probation.
“15. On July 13, 2014, tire respondent self-reported the criminal cases to the disciplinary administrator.
“16. The respondent has not used drugs or alcohol since her February 20, 2011, arrest. During that period of time, she has been consistent in attending three to five AA meetings each week and has been a regular AA meeting leader.
“17. The respondent sought the assistance of Anne McDonald, Executive Director of KALAP, and has been under the supervision of KALAP during this period of sobriety. Ms. McDonald testified that tire respondent has complied willingly and completely with all KALAP suggestions and is an active successful participant in tire program.
“18. Following her last arrest, tire respondent underwent an extended period of unemployment. The respondent is currently working as a grocery store clerk with an annual income of approximately $25,000. The customers at the store where she works regularly include lawyers and judges with whom she previously practiced.
“Conclusions of Law
“19. Based upon the findings of fact, the hearing panel concludes as a matter of law that the respondent violated Kan. Sup. Ct. R. 203(c)(1) and KRPC 8.4(b), as detailed below. [Footnote: The disciplinary administrator alleged a violation of KRPC 8.4(g). However, based upon the facts alleged in the formal complaint as well as the evidence presented at the hearing, the hearing panel concludes that KRPC 8.4(b) is more specific and is therefore applicable to this case.]
“20. When an attorney is charged with a felony, the Supreme Court rules require the attorney to take certain steps:
‘Duty of attorney to report. An attorney who has been charged with a felony crime (as hereinafter defined) or a crime that upon conviction mandates registration by the attorney as an “offender” as defined by K.S.A. 22-4902(a), or with an equivalent offense in any federal court of the United States or the District of Columbia or in any other state, territory, commonwealth, or possession of tire United States shall within 14 days inform the Disciplinary Administrator in writing of the charge. The attorney shall inform the Disciplinary Administrator of the disposition of the matter within 14 days of disposition. Notice of appeal does not stay the reporting required under this rule.’
Kan. Sup. Ct. R. 203(c)(1). In this case, the respondent failed to comply with Kan. Sup. Ct. R. 203(c)(1) on four occasions. First, the respondent failed to inform the disciplinary administrator that she had been charged with a felony (possession of cocaine) in 2010 in Kansas City, Missouri, within 14 days. Next, the respondent failed to inform the disciplinary administrator of the disposition of tire possession of cocaine charge within 14 days. Third, the respondent failed to inform the disciplinary administrator that she had been charged with a felony (driving under the influence of alcohol) in 2011 in Johnson County, Kansas. Finally, the respondent failed to inform the disciplinary administrator of the disposition of the felony driving under the influence of alcohol charge within 14 days. The respondent did not malee any disclosures required by the rule until July 13, 2014. Accordingly, the hearing panel concludes that the respondent violated KRPC 203(c)(1).
“21. ‘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, tire Hearing Panel concludes that the respondent’s criminal activity, including her felony conviction for driving under tire influence of alcohol, adversely reflects on her fitness as a lawyer in other respects, in violation of KRPC 8.4(b).
“American Bar Association Standards for Imposing Lawyer Sanctions
“22. In making this recommendation for discipline, tire 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 tire duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and tire existence of aggravating or mitigating factors.
“23. Duty Violated. The respondent violated her duty to the public to maintain her personal integrity. Additionally, the respondent violated her duty to the legal profession to comply with court rales.
“24. Mental State. The respondent knowingly violated her duty to the public to maintain her personal integrity. The respondent negligently violated her duty to the legal profession to comply with court rules.
“25. Injury. As a result of the respondent’s misconduct, tire respondent caused actual and potential injury to the legal profession.
“Aggravating and Mitigating Factors
“26. 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:
“27. Pattern of Misconduct. The respondent engaged in a pattern of driving under the influence. In 1991, the respondent was arrested for driving under the influence of alcohol in Overland Park, Kansas. The respondent participated in a diversion program. In 2010, the respondent was arrested for driving while under the influence in Missouri. As a result of that arrest, the respondent received a suspended imposition of sentence. Finally, in 2011, die respondent was arrested for driving under the influence of alcohol in Johnson County, Kansas. The respondent was convicted by the court. The 1991 arrest is remote and were it a single event might be disregarded, however, driving under the influence of alcohol on three occasions is a pattern of misconduct.
“28. Illegal Conduct, Including that Involving the Use of Controlled Substances. The respondent engaged in illegal conduct, as evidenced by her felony conviction of driving under the influence of alcohol.
“29. 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:
“30. Absence of a Prior Disciplinary Record. The respondent has not previously been disciplined.
“31. Absence of a Dishonest or Selfish Motive. The respondent’s misconduct was not motivated by dishonesty or selfishness.
“32. Personal or Emotional Problems if Such Misfortunes Have Contributed to the Violation of the Kansas Rules of Professional Conduct. The respondent is an alcoholic. Additionally, the respondent has suffered personal loss through several deaths of immediate family members. The respondent’s profound loss was clear by observing the respondent during the hearing on the formal complaint. The respondent’s personal problems directly contributed to the violation of the rules.
“33. The Present and Past Attitude of the Attorney as Shoion by Her Cooperation During the Hearing and Her Full and Free Acknowledgment of the Transgressions. The respondent stipulated to the facts alleged in the formal complaint as well as to the rule violations. The respondent fully and freely acknowledged the misconduct.
“34. 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 her peers in Kansas City, Missouri, as evidenced by several letters offered into evidence by the respondent.
“35. Mental Disability or Chemical Dependency including Alcoholism or Drug Abuse When: (1) there is Medical Evidence that the Respondent is Affected by a Chemical Dependency or Mental Disability; (2) the Chemical Dependence or Mental Disability Caused the Misconduct; (3) the Respondent’s Recovery from the Chemical Dependency or Mental Disability is Demonstrated by a Meaningful and Sustained Period of Successful Rehabilitation; and (4) the Recovery Arrested the Misconduct and Recurrence of that Misconduct is Unlikely. The respondent has worked hard to recover from alcoholism. In this case, the hearing panel concludes that there is medical evidence that the respondent is affected by chemical dependency, the chemical dependence caused the misconduct, the respondent’s recovery from the chemical dependency is demonstrated by a meaningful and sustained period of successful rehabilitation, and the recovery arrested the misconduct and recurrence of that misconduct is unlikely. The hearing panel com mends the respondent’s commitment to maintaining her sobriety and her hard work to restore her license to practice law.
“36. Imposition of Other Penalties or Sanctions. As a result of the respondent’s conviction, she served 48 hours in jail and 88 days on house arrest.
“37. Remorse. The respondent expressed genuine remorse for engaging in the misconduct.
“38. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the following Standards:
‘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 injuiy or potential injuiy to a client, the public, or the legal system.’
“Recommendation
“39. The disciplinary administrator recommended that the respondent’s license to practice law be suspended for a period of 18 months, retroactive to the date of the temporary suspension, August 5, 2014. The disciplinary administrator further recommended that prior to consideration of a petition for reinstatement, the respondent undergo a reinstatement hearing. The respondent recommended that her plan of probation be adopted and that she be allowed to resume the practice of law, subject to the terms and conditions included in her plan of probation.
“40. The hearing panel is mindful of the seriousness of a felony conviction. However, because tire respondent timely filed a request for probation and because the Kansas Supreme Court rules do not exclude consideration of probation following a felony conviction, the hearing panel must consider whether probation is appropriate in this case. The hearing panel turns to Kan. Sup. Ct. R. 211(g), which provides, in pertinent part, as follows:
‘(1) 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 fourteen 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 the Supreme Court.
‘(2) If the Respondent provides each member of the Hearing Panel and the Disciplinary Administrator wflh a plan of probation, the Respondent shall immediately and prior to the hearing on the Formal Complaint put the plan of probation into effect by complying with each of the terms and conditions of the probation plan.
‘(3) The Hearing Panel shall not recommend that the Respondent be placed on probation unless:
(i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to the Disciplinary Administrator and each member of the Hearing Panel at least fourteen days prior to the hearing on the Formal Complaint;
(ii) the Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan;
(iii) the misconduct can be corrected by probation; and
(iv) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas.’
Thus, in order for the hearing panel to consider recommending to the Supreme Court that the respondent be placed on probation, the hearing panel must first find each of the elements in Kan. Sup. Ct. R. 211(g)(3).
“41. In this case, the respondent developed a workable, substantial, and detailed plan of probation and provided a copy of the proposed plan of probation to the disciplinaiy administrator and each member of the hearing panel at least 14 days prior to the hearing on the formal complaint. Further, the respondent put the proposed plan of probation into effect prior to the hearing on the formal complaint by complying with each of the terms and conditions of the probation plan. The testimonies of Ms. McDonald of KALAP and Martin J. Dressman, MSW, both support the granting of supervised probation to respondent and there was no contrary evidence offered. With die supervision proposed, it appears diat die misconduct can be corrected by probation. Finally, at this time, it appears that it is in the best interest of the legal profession and the citizens of die State of Kansas to recommend probation ....
“42. The hearing panel believes diat die 18-month retroactive suspension recommended by the disciplinary administrator would not be an effective sanction in this case. By the time a final decision were rendered by the Supreme Court, the 18-month suspension would have been served and the respondent would be immediately eligible for reinstatement without supervision or any remaining sanction. The hearing panel believes that the interests of die bar and public are best served if die respondent’s future practice were subject to monitoring and that a significant disciplinary sanction be available if the respondent violates probation.
“43. Accordingly, based upon die findings of fact, conclusions of law, and the Standards listed above, the hearing panel unanimously recommends to the Court that the respondent be suspended for a period of 2 years. However, die hearing panel further recommends to the Court that the imposition of the suspension be suspended and that the respondent be placed on probation subject to the following terms and conditions:
‘a. Period of Probation. The respondent will remain on probation for 2 years.
‘b. KALAP Monitoring Agreement. The respondent will comply with all tire terms and conditions of the KALAP monitoring agreement throughout the period of probation. The respondent will attend all self-help meetings, 12-step meetings, support group meetings, and psychotherapy appointments as required in the KALAP monitoring agreement. The respondent will submit to random screens for drugs and alcohol, at her own expense, at tire request of her KALAP monitor, the KALAP executive director, or die disciplinary administrator. The respondent will keep her KA-LAP monitor informed of her treatment plan and the names of any and all treatment providers. The KALAP monitor will provide written quarterly reports to the disciplinary administrator and the executive director of KA-LAP.
‘c. Releases. The respondent will execute all necessaiy releases to allow all treatment providers, die KALAP monitor, the KALAP executive director, any MOLAP monitor, die MOLAP executive director, and the disciplinary administrator to freely exchange information regarding the respondent.
‘d. Psychological Treatment. The respondent shall continue her treatment with Martin Dressman or other treatment provider approved by the disciplinaiy administrator, throughout the period of supervised probation, unless die treatment provider determines that continued treatment is no longer necessary. The treatment provider shall notify the KALAP monitor and die disciplinaiy administrator in die event diat the respondent discontinues treatment against the recommendation of die treatment provider during die probationary period.
‘e. Continued Cooperation. The respondent shall continue to cooperate with the disciplinaiy administrator. If the disciplinaiy administrator requests any additional information, die respondent shall timely provide such information.
*f. Practice Supervision. Prior to returning to die practice of law, the respondent will propose an attorney to supervise her practice who meets with the approval of the disciplinary administrator. The respondent will develop a plan of practice supervision diat meets with the approval of the practice supervisor and the disciplinary administrator. The plan of practice supervision will include appropriate oversight (1) of die respondent’s caseload and (2) of the respondent’s management of stress relating to the return to the practice of law. The respondent will meet with die practice supervisor on a mondily basis. The respondent will inform the practice supervisor of any events, issues, and problems experienced or expected in die pending cases. The respondent will allow the practice supervisor access to her client files, computer, calendar, and trust account records. The respondent will comply with any requests made by the practice supervisor. The practice supervisor will provide the disciplinary administrator and the respondent a quarterly report regarding the respondent’s status on probation. The practice supervisor will be acting as an officer and an agent of the court while supervising the probation and monitoring the respondent’s legal practice. As supervising attorney, the practice supervisor shall be afforded all immunities granted by Kan. Sup. Ct. R. 223 during the course of his supervising activities.
‘g. Additional Violations. The respondent shall not violate the terms of her probation or the provisions of the Kansas Rules of Professional Conduct. In die event that the respondent violates any of the terms of probation or any of die provisions of the Kansas Rules of Professional Conduct at any time during the probationary period, the respondent shall immediately report such violation to the practice supervisor and the disciplinary administrator. The disciplinary administrator will take appropriate action pursuant to Kan. Sup. Ct. R. 211(g).
li. Change of Address. The respondent will immediately notify the disciplinary administrator, the KALAP monitor, and the executive director of KALAP of any change of address within 14 days.
‘i. Release from Probation. The respondent will remain on probation until the respondent seeks and obtains a release from probation by the Supreme Court, pursuant to Kan. Sup. Ct. R. 211(g)(7).’
“44. Prior to her appearance before the Kansas Supreme Court for oral argument, the hearing panel directs the respondent to contact the Clerk of the Appellate Courts and the Kansas Continuing Legal Education Commission to determine what she must do in order to correct the administrative deficiencies relating to her law license. The hearing panel recommends that the respondent pay all fees and complete the requisite continuing legal education prior to the oral argument.
“45. 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 ICRPC 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) (2014 Kan. Ct. R. Annot. 363). Clear and convincing evi dence 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 she filed an answer, and adequate notice of the hearing before the panel and the hearing before this court. The respondent did not file exceptions to the hearing panel’s final hearing report. As such, the findings of fact are deemed admitted. Supreme Court Rule 212(c) and (d) (2014 Kan. Ct. R. Annot. 383).
The evidence before the hearing panel establishes by clear and convincing evidence the charged misconduct violated Supreme Court Rule 203(c)(1) (2014 Kan. Ct. R. Annot. 306) (automatic temporary suspension of attorneys convicted of a felony crime) and KRPC 8.4(b) (2014 Kan. Ct. R. Annot. 680) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), and it supports the panel’s conclusions of law. We adopt the panel’s conclusions.
The only remaining issue before us is the appropriate discipline for respondent’s violations. The hearing panel unanimously recommended that the respondent be suspended from the practice of law in Kansas for a period of 2 years, the imposition of such suspension to be suspended and respondent placed on probation for a period of 2 years subject to the terms and conditions stated in the final hearing report. At the hearing before this court, at which the respondent appeared, the Disciplinary Administrator recommended that the court follow the panel’s recommendation of a suspended 24-month suspension and 24-month probation, provided that respondent be required to apply to the Supreme Court for the termination of her probation.
Conclusion and Discipline
Based upon the circumstances of respondent’s criminal convictions and her concerted and consistent efforts to address the root cause of her disciplinary problems, the court determines that the recommendations of the hearing panel and the Disciplinary Ad ministrator as to the appropriate sanction in this case are appropriate.
It Is Therefore Ordered that, pursuant to Supreme Court Rule 203(a)(5), Elizabeth Anne Hueberis license to practice law in this state be suspended for a period of 2 years from the effective date of this order.
It Is Further Ordered that the above suspension be suspended and that Elizabeth Ann Hueben be placed on supervised probation, subject to those terms and conditions set forth above in the recommendations by the panel, for a period of no less than 2 years from the effective date of this order and until the Supreme Court shall grant respondent’s application for termination of probation.
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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Denied
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Denied
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The opinion of the court was delivered by
Nuss, C.J.:
Kenneth W. Sloop, Jr., appeals from an administrative action by the Kansas Department of Revenue (KDOR) suspending his driving privileges for 1 year under K.S.A. 2008 Supp. 8-1014(a)(l). Per this statute, privileges can be suspended for refusing to take a breath test the arresting officer is authorized to request under K.S.A. 2008 Supp. 8-1001(b). The district court and Court of Appeals affirmed the administrative suspension.
We conclude the officer s statutory authority to request Sloop to take the breath test depends upon a valid arrest. We additionally conclude the arrest was invalid because the officer had no probable cause to support it. And we further conclude Sloop’s refusal to take a breath test the officer had no statutory authority to request cannot be tire basis for suspending his driving privileges under K.S.A. 2008 Supp. 8-1014(a)(l). So we reverse the lower courts’ decisions and reinstate his driving privileges.
Facts
The essential facts are straightforward. Around midnight on October 24, 2008, Topeka police officer Cris Bergerhofer noticed Kenneth Sloop make a left-hand turn from the southbound lane of Gage Boulevard. While Sloop committed no traffic violations in making his turn, Officer Bergerhofer followed Sloop because he was “sitting unusually close to his steering wheel” and because he had been somewhat hesitant going into his turn (started turning, stopped, and started turning again). Bergerhofer followed Sloop for about 8 to 10 blocks. During that time, Sloop did not commit a traffic infraction. But because Sloop’s tag light was out, Berger-hofer activated his emergency lights and stopped Sloop.
Bergerhofer requested Sloop’s driver’s license, and Sloop handed it over without fumbling it. According to Bergerhofer, both Sloop and his unnamed passenger smelled of alcohol, and Sloop’s eyes were watery and bloodshot. When Bergerhofer asked if he had been drinking, Sloop replied, “Nothing really,” and then, according to Bergerhofer, said that he had “like one beer at a friend’s house.” Bergerhofer did not ask Sloop when he had consumed the beer.
Bergerhofer testified that Sloop’s speech was “impaired” but not “slurred.” According to Bergerhofer, “impaired” meant “not as clear as it could be but [] not inherently slurred either.”
Bergerhofer then ordered Sloop out of the car. Sloop did not stumble upon exiting and was steady when walking to the back of the car. Bergerhofer had him complete the horizontal gaze nystag-mus test, whose results were not offered at the later hearing. Sloop also performed a preliminary breath test, the results of which also were not offered at the hearing because Bergerhofer later realized at the police station the test had been administered improperly. After the preliminary breath test, Bergerhofer arrested Sloop and took him to tire station in handcuffs for further testing. Bergerhofer stated that he took Sloop to the station because he wanted to film the field sobriety tests and his squad car lacked video equipment.
At the station, Bergerhofer performed two field sobriety tests. On the walk-and-tum test, Sloop was expected to take nine heel to toe steps on a straight line, make a turn, and then take the same nine steps back to the starting position. Bergerhofer testified that Sloop failed to touch heel to toe on three of his first nine steps, i.e., Sloop missed by “[a]bout an inch, inch-and-a-half.” Sloop also made an incorrect turn because he pivoted instead of taking a series of small steps. The failure to execute a correct turn combined with the failure to touch heel-to-toe meant that Sloop exhibited two clues which, according to Bergerhofer, indicate a possibility of impairment.
On the one-leg stand test, Sloop was expected to stand on one leg with his arms to his side and count for about 30 seconds. Ber-gerhofer stated that Sloop swayed during this test, which presented one clue of impairment. When asked about how much swaying a person is allowed, Bergerhofer responded, “It’s to a degree subjective. Usually if they are swaying, they are swaying.” Bergerhofer testified that only one clue meant Sloop passed this test. After performing the two field sobriety tests, Sloop refused to take the evidentiary breath test Bergerhofer requested: the Intoxilyzer 8000.
The district court relied upon the following prearrest evidence: Sloop’s breath smelled of alcohol; he had bloodshot and wateiy eyes; he admitted to having one beer earlier in the evening; and he was stopped in the early morning hours. The court also relied upon the following postarrest evidence: Sloop’s failure to step properly on three occasions, his failure to turn as instructed during the walk-and-tum test, and his swaying on the one-leg stand test. Combining this evidence, and relying upon Sullivan v. Kansas Dept. of Revenue, 15 Kan. App. 2d 705, Syl. ¶ 2, 815 P.2d 566 (1991), the court concluded that a reasonable officer could have believed that it was “more than a possibility” that Sloop operated his vehicle while under the influence of alcohol. Although affirming the suspension, the court admitted “[t]he evidence of intoxication ... is much weaker than the evidence presented in the vast majority of the driver’s license suspension actions that come before this Court.”
The Court of Appeals affirmed. Sloop v. Kansas Dept. of Revenue, No. 103,334, 2010 WL 5140016 (Kan. App. 2010) (unpublished opinion). Among other things, it held substantial evidence supported the district court’s conclusion that Bergerhofer had reasonable grounds to believe Sloop was operating a vehicle while under the influence, in violation of K.S.A. 2008 Supp. 8-1001(b). It basically repeated the “more than a possibility” language from Sullivan but with a modifier: “A law enforcement officer has such reasonable grounds if, under all the circumstances, a reasonably prudent police officer would believe the person’s guilt is ‘more than a mere possibility. [Citations omitted.]’ ” (Emphasis added.) 2010 WL 5140016, at *4.
We granted Sloop’s petition for review. Our jurisdiction is under K.S.A. 60-2101 (b) and K.S.A. 20-3018(b).
Analysis
Issue 1: Sloop’s arrest was unlaioful, which means there was no authority to request he take the breath test under K. S.A. 2008 Supp. 8-1001(b).
Standard of review
Our analysis requires us to interpret K.S.A. 2008 Supp. 8-1001(b). Statutory interpretation is a question of law, and this court’s review is unlimited. Accordingly, we are not bound by the lower courts’ interpretations. State v. Hopkins, 295 Kan. 579, 285 P.3d 1021, 1023 (2012).
Discussion
By Kansas statute, any person who operates or attempts to operate a vehicle in this state is deemed to have given consent to submit to one or more tests of the person’s blood, breath, urine, or other bodily substance to determine the presence of alcohol or drugs. K.S.A. 2008 Supp. 8-1001(a). Subsection (b) of that statute establishes the conditions, some in the alternative, that a law enforcement officer must meet to obtain authority for requesting such tests. Because Officer Bergerhofer arrested Sloop and believed he had reasonable grounds to request the later breath test, two of the statute’s conditions apply to this case:
“(b) A law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a): (1) if [first] the officer has reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both . . . [a]nd [second] one of tire following conditions exists: (A) The person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both, ... in violation of a state statute or a city ordinance.” (Emphasis added.) K.S.A. 2008 Supp. 8-1001(b).
Sloop challenges the existence of both of these italicized conditions, which is within the scope of the matters allowed at the administrative hearing and thus within the reviewing court’s purview. Under K.S.A. 2008 Supp. 8-1020(h)(l), those matters are “(A) A law enforcement officer had reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both,” and “(B) the person was in custody or arrested for an alcohol or drug related offense.”
At oral arguments the parties addressed a number of points concerning both of these conditions. But we only need to examine one of Sloop’s contentions because we agree with him—and it is dis-positive. And here is why.
We begin by acknowledging Officer Bergerhofer arrested and handcuffed Sloop at the scene. The KDOR acknowledged at oral arguments that under our facts the arrest itself was a necessary condition for Bergerhofer to later request Sloop to take the Intox-ilyzer test at the station. We observe a number of courts have held that when arresting for any offense involving operation or attempted operation of a vehicle while under the influence of alcohol or drugs, the arrest must be a lawful one. See Schuster v. State Dept. of Tax. & Revenue, 283 P.3d 288,294 (N.M.2012) (collecting cases).
In Schuster, the New Mexico Supreme Court examined NMSA 66-8-112(F), which contained the conditions authorizing the motor vehicle division to administratively revoke a person’s driving privilege. Similar to K.S.A. 2008 Supp. 8-1001(b), two of the necessary threshold conditions included (1) the “officer had reasonable grounds to believe the driver was driving a motor vehicle while under the influence of intoxicating liquor or drugs,” and (2) “tire person was arrested.” NMSA 66-8-112(F)(l) and (2). The Schuster court focused on the latter condition, and in analyzing “arrest” it held:
“Whether the exclusionary rule applies in license revocation hearings does not control whether MVD [motor vehicle division] must analyze the constitutionality of the arrest of a driver charged with DWI. The question is did tire Legislature intend a finding under Section 66-8-112(F)(2) that ‘the person was arrested’ to include a finding drat tíre person’s arrest was constitutional. If the answer is no, even an unconstitutional arrest will satisfy the requirement in Section 66-8-112(F)(2). If the answer is yes, the legislature has provided the remedy for an unconstitutional arrest: MVD is prohibited from revoking tíre driver’s license. See Section 66-8-112(G)” [If, inter alia, the element of "the person was arrested” in 66-8-112(F)(2) is not found by the motor vehicle division, “the person’s license shall not be revoked.”] Schuster, 283 P.3d at 293.
The Schuster court concluded, “[C]onsistent with these other jurisdictions, . . . tire plain meaning of the word 'arrest’ means an arrest that complies with the protections of the Fourth Amend ment to the United States Constitution” and the New Mexico Constitution. 283 P.3d at 294. Accordingly, an arrest and the underlying police activity leading to the arrest were required to be constitutional before a driver’s license could be revoked under New Mexico’s Implied Consent Act.
Particularly under the plain language of our own statute, we agree the arrest must be lawful. See State v. Hendrix, 289 Kan. 859, Syl. ¶ 2, 218 P.3d 40 (2009) (“In interpreting a statute, the fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. Intent of the legislature is to be derived in the first place from the words used.”); Steffes v. City of Lawrence, 284 Kan. 380, Syl. ¶ 2,160 P.3d 843 (2007) (“An appellate court merely interprets the language as it appears; it is not free to speculate and cannot read into the statute language not readily found there.”). As noted, K.S.A. 2008 Supp. 8-1001(b)(l)(A) provides that the officer shall request a person to submit to a test deemed consented to if “[t]he person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both . . . .” (Emphasis added.)
By using die disjunctive “or” to introduce the phrase “or otherwise taken into custody,” the legislature clearly intended to distinguish that general categoiy from the more specific “arrest.” But if we interpret the legislature’s “arrest” to include an invalid arrest, or if we include an invalid arrest within the generic “otherwise taken into custody,” then the legislature’s arrest distinction becomes diluted at best and superfluous at worst. After all, the arrest, whether valid or invalid, would be amply covered by “taken into custody.” See Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, Syl. ¶ 5, 181 P.3d 549 (2008) (“As a general rule, statutes are construed to avoid unreasonable results. There is a presumption that the legislature does not intend to enact useless or meaningless legislation.”).
The same problems would occur with a comparable interpretation of the similar language and structure of K.S.A. 2008 Supp. 8-1020(h)(1)(B) regarding the permissible scope of the license sus pension hearing when the officer has certified that the driver refused the test. It too distinguishes whether “the person was in custody or arrested for an alcohol or drug related offense.” (Emphasis added.) See Schuster, 283 P.3d at 294 (making same point about New Mexico’s statutes: “the person was arrested” appearing in both N.M. Stat. Ann. § 66-8-112(E)(2) for permissible scope of the hearing and in subsection (F)(2) as a required condition of an order revoking driving privileges).
Now that we have established K.S.A. 2008 Supp. 8-1001(b) requires that the arrest be lawful, we next examine whether Officer Bergerhofer effected a lawful arrest of Sloop at the scene. To do so, we first look at the legal standard. To be lawful, a warrantless arrest must be supported by probable cause. See K.S.A. 22-2401(c); State v. Ramirez, 278 Kan. 402, 405, 100 P.3d 94 (2004). We have defined probable cause as follows:
“Probable cause is tire reasonable belief that a specific crime has been or is being committed and that tire defendant committed tire crime. State v. Abbott, 277 Kan. 161, 164, 83 P.3d 794 (2004). Existence of probable cause must be determined by consideration of the information and fair inferences therefrom, known to the officer at the time of the arrest. Bruch, 282 Kan. at 775-76. Probable cause is determined by evaluating the totality of the circumstances. State v. Hill, 281 Kan. 136, 146, 130 P.3d 1 (2006). As in other totality of the circumstances tests, there is no rigid application of factors and courts should not merely count the facts or factors that support one side of the determination or the other. State v. McGinnis, 290 Kan. 547, 552-53, 233 P.3d 246 (2010); see Smith, 291 Kan. at 515 (holding that tire defendant’s list of facts did not negate the other factors presented).” Allen v. Kansas Dept. of Revenue, 292 Kan. 653, 656-57, 256 P.3d 845 (2011).
We have attempted to further explain probable cause by placing its required quantum of proof lower on the evidentiary ladder than the amount of proof needed for a criminal conviction and lower than the amount needed for a civil judgment. So we have added that in attempting to establish probable cause:
“ ‘It is not necessary that the evidence relied upon establish guilt beyond a reasonable doubt. The evidence need not even prove that guilt is more probable than not. It is sufficient if the information leads a reasonable officer to believe that guilt is more than a possibility. [Citation omitted.]’ ” (Emphasis added.) Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 775-76, 148 P.3d 538 (2006) (quoting Sullivan v. Kansas Dept. of Revenue, 15 Kan. App. 2d 705, 707, 815 P.2d 566 [1991]).
Indeed, just last year Allen quoted this italicized language from Bruch. See Allen, 292 Kan. at 660 (“Trooper Walker had good reason to ‘believe that guilt [was] more than a possibility.' See Bruch, 282 Kan. at 775-76.”). But use of this additional, italicized factor is no longer approved for several reasons. First, it crept into our caselaw apparently without explanation. Second, it has received undue emphasis in the probable cause calculus, sometimes to the exclusion of other considerations. See, e.g., Campbell v. Kansas Dept. of Revenue, 25 Kan. App. 2d 430, 431, 962 P.2d 1150, rev. denied 266 Kan. 1107 (1998) (exclusively providing that “[p]robable cause to arrest is that quantum of evidence that would lead a reasonably prudent police officer to believe that guilt is more than a mere possibility.” [Emphasis added.]).
In exploring this unexplained creep, our research shows that for this particular language, Bruch cited Sullivan, 15 Kan. App. 2d at 707 (Probable cause does not require that the evidence prove guilt beyond a reasonable doubt nor to prove that guilt is more probable than not. “It is sufficient if the information leads a reasonable officer to believe that guilt is more than a possibility.”). In turn, Sullivan cited State v. Lamb, 209 Kan. 453, 467, 497 P.2d 275 (1972) (“It is only necessaiy that the information led a reasonable officer to believe that guilt is moré than a possibility . . . .”).
And Lamb in turn cited Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959). But the applicable pages in the Draper opinion, 358 U.S. at 311-13, do not contain any “more than a possibility” language. Indeed, according to Drapers primary reference: “Probable cause exists where ‘the facts and circumstances within their [the arresting officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.” 358 U.S. at 313 (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 69 L. Ed. 543 [1925]).
Now that we have clarified the appropriate standard of probable cause to arrest, we can apply it to the facts of this case. In other words, we must determine whether probable cause supports Sloop’s arrest—when considering “the information and fair infer- enees therefrom known to the officer at the time of the arrest.” Bruch, 282 Kan. at 775-76.
Typically, this court would follow the appropriate standards of review to examine the findings and conclusions of the district court regarding its holding of probable cause to arrest. But in this case that court did not examine this particular question. See Sloop, 2010 WL 5140016, at *2 (“The [district] court never did specifically address whether probable cause existed for the arrest.”). Nevertheless, at oral arguments the parties debated the issue of probable cause to arrest and effectively invited us to make the determination because the essential facts are undisputed.
In arguing support for probable cause, the KDOR pointed to the early morning hours and Sloop’s behavior during the left-hand turn; the strong odor of alcohol in the car, on the passenger, and then on Sloop; Sloop’s watery and bloodshot eyes; his “nothing really” response to whether he had been drinking; and his admission to consumption (one beer). In response to questioning, the KDOR cited Campbell, 25 Kan. App. 2d at 431, as its best legal support. As the Court of Appeals panel in this case approvingly summarized that decision:
“In Campbell, which, as here, involved an administrative appeal of a driver’s license suspension, this court held that probable cause to arrest the driver existed when an officer observed the driver speeding [72 mph in a 55 mph zone] at 1:10 a.m., die officer smelled alcohol on the driver, the driver admitted to having a few drinks, and the driver’s eyes were glazed and bloodshot.” Sloop, 2010 WL 5140016, at *4.
But we find it sufficiently distinguishable. The primary factual difference between Campbell and the instant case is that Campbell was speeding, i.e., committing a moving violation, while Sloop was driving legally before being stopped for an improper tag light.
More important, the Campbell court’s articulated test for probable cause to arrest was overly generous to the KDOR, i.e., requiring only “that quantum of evidence that would lead a reasonably prudent police officer to believe that guilt is more than a mere possibility.” (Emphasis added.) 25 Kan. App. 2d at 431. Furthermore, the Campbell panel was not making a de novo determination of probable cause. Rather, it was reviewing the district court’s hold ing of probable cause for the DUI arrest, a holding the panel declared it was reviewing only for substantial competent evidence to support. 25 Kan. App. 2d at 431. So there is a serious question whether the Campbell court felt restricted by either, or both, of these standards in arriving at its holding of probable cause.
We also note that while Bergerhofer observed Sloop’s behavior during the turn, he followed Sloop for 8 to 10 blocks without observing further driving concerns. Sloop’s speech was not slurred, he did not fumble while producing his license, and he did not stumble when exiting his vehicle and was steady when walking to the rear. We have no way of knowing how much the results of the preliminary breath test (which were later invalidated) contributed to Bergerhofer’s decision to arrest at the scene. But we do know that it was not until immediately after Bergerhofer received what he thought were valid results that he arrested Sloop. And unlike the lower courts when they determined that KDOR met the additional condition of “reasonable grounds to believe” under K.S.A. 2008 Supp. 8-1001(b)(l), we do not consider the results of Sloop’s field sobriety tests or other postarrest conduct in our probable cause to arrest calculus.
In short, we conclude de novo from the undisputed facts that there was no probable cause for Sloop’s arrest. See Allen, 292 Kan. at 657 (“Probable cause is determined by evaluating the totality of the circumstances.”) The arrest is therefore unlawful. See K.S.A. 22-2401(c) (warrantless arrest requires probable cause); Ramirez, 278 Kan. at 405. And a lawful arrest is required before the officer is authorized to request the driver to breathe into the Intoxilyzer 8000 under K.S.A. 2008 Supp. 8-1001(b). See Schuster, 283 P.3d at 294. So Officer Bergerhofer had no statutoiy authority to request Sloop to take this test at the police station.
Sloop’s driving privileges were administratively suspended by KDOR solely because he refused to take this breath test. See K.S.A. 2008 Supp. 8-1014(a)(l) (“if a person refuses a test, the division . . . shall . . . suspend the person’s driving privileges for one year”). So Sloop’s suspension, because it is based upon his refusal to take an unauthorized test, is invalid. Cf. K.S.A. 2008 Supp. 8-1002(f) (when breath test is requested and results in re fusal, if officer fails to meet the statutory certification requirements, the division shall dismiss the administrative proceeding and return any license surrendered by the person); K.S.A. 2008 Supp. 8-1020(k) (“the licensee has the burden of proof by a preponderance of the evidence to show that the facts set out in the officer’s certification are false or insufficient and that tire order suspending or suspending and restricting the licensee’s driving privileges should be dismissed.” [Emphasis added.]).
The judgment of the Court of Appeals is reversed. The judgment of the district court is reversed, and Sloop’s driving privileges are reinstated. | [
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Denied.
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In a letter signed October 21, 2015, addressed to the Clerk of the Appellate Courts, respondent Alan B. Gallas, an attorney admitted to practice law in Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2014 Kan. Ct. R. Annot. 403).
At the time the respondent surrendered his license, a complaint had been docketed by the office of the Disciplinaiy Administrator for investigation. The complaint alleged that the respondent violated Kansas Rules of Professional Conduct 1.15 (2014 Kan. Ct. R. Annot. 567) (safekeeping property) and 8.4(b) and (c) (2014 Kan. Ct. R. Annot. 680) (misconduct). The allegations involved conversion of client funds.
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 Alan B. Gallas be and he is hereby disbarred from the practice of law in Kansas, and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Alan B. Gallas 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 (2014 Kan. Ct. R. Annot. 414). | [
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Denied
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Denied
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Denied.
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The opinion of the court was delivered by
BEIER, J.:
Defendant Gustin Brownlee appeals his jury trial convictions of first-degree premeditated murder and criminal possession of a firearm, which arose out of the fatal shooting of Tony “Black” Irvin at a party in April 2012. Brownlee contends that (1) his statutory right to a speedy trial was violated, necessitating dismissal of this case; (2) the juiy should have been instructed on the lesser included offense of voluntary manslaughter; (3) the prosecutor committed misconduct during closing argument; (4) a mistrial or a new trial was necessary because of improper testimony by State witnesses; and (5) cumulative error compels reversal.
As detailed below, we ultimately reject Brownlee’s contentions and affirm.
Factual and Procedural Background
On the day of the shooting, John Doran lived with his girlfriend, Brandie Brownlee; Brandie’s four minor children; Brandie’s adult child, Dyran Robinson; and Doran’s son-in-law, Kenneth Brinson. Doran invited some friends over to watch a boxing match on television. In addition to those who lived with Doran, the party guests included Doran’s uncle, William Jackson; Doran’s nephew, Michael Thompson; Brandie’s two sisters, Shaella and Erin; Brandie’s cousins, Nicld and Shonda; and Irvin. Irvin, Brinson, Thompson, Doran, and Brandie had been there at Doran’s residence all day. The other guests started arriving at 8 or 9 p.m. Gustin Brownlee, who is the brother of Brandie, Shaella, and Erin, arrived at 10:30 or 11 p.m. The children were upstairs while the adults were in the basement of the house.
At about 2 a.m., police officers were dispatched to the house, where they discovered Irvin lying face down in the driveway, dead from apparent gunshot wounds. Coroner Altai Hossain later performed an autopsy and eventually would testify that Irvin’s body had nine bullet entry wounds, including two in the back and seven in the front. Six of the wounds would have been fatal, and one wound to tire back of Irvin’s head alone could have caused his death instantly. Irvin also had possible defensive wounds on his right forearm. Kansas Bureau of Investigation (KBI) firearm expert Zachary Carr eventually would testify that 15 of 16 fired cartridge cases found at the crime scene came from the same firearm.
Brandie gave a recorded statement to police at about 6 a.m. the morning after the shooting. She told officers that Irvin touched her disrespectfully, and they had an argument. Brownlee and Doran convinced her to calm down, and the men went outside. Brandie and Doran then went upstairs but could hear Brownlee and Irvin arguing in the basement. Irvin left the house but said he would be back to hurt Brownlee. Apparently Brownlee tíren also left the house. When Brandie tried to bring Brownlee back inside, he pulled out a gun and fired three shots into the ground. Brownlee and Irvin started arguing again, and Brownlee shot Iran multiple times. Brandie said she did not know if anyone else at the party had a gun.
Detective Clayton Bye also interviewed Shaella, Erin, and Doran that day. He also later interviewed Jackson and Thompson. Doran, Jackson, and Thompson also identified Brownlee as the person who shot Irvin.
Brownlee was arrested on May 23, 2012, and was charged with first-degree murder and criminal possession of a firearm. The parties do not dispute that Brownlee was held in jail pending trial. James Colgan was appointed as defense counsel. After a hearing set for June 5 was continued twice, Brownlee filed a July 12 pro se motion invoking what he said was his federal constitutional right to trial within 90 days.
On September 12, District Judge Ernest L. Johnson presided over Brownlee’s preliminary hearing. The defense waived formal arraignment. The judge noted, “Speedy trial is running. And I know drat Mr. Brownlee has already filed his notice that he wants his speedy trial.” A pretrial conference was set for September 28, 2012.
On September 28, Colgan appeared before District Judge Wesley K. Griffin. Brownlee was not present. The journal entry of the hearing states: “This pretrial conference will be continued by the defendant in order for the defendant to retain counsel. This matter will be continued until October 26, 2012 at 10:30. Time is assessed versus the defendant.” On October 26, 2012, Judge Griffin set a status hearing for October 31.
Both Brownlee and Colgan were present at tire October 31 hearing before Judge Griffin. The judge repeated that the time between September 28 and October 31 was assessed to the defense because of the request to retain counsel. This meant that 74 days remained on Brownlee’s 90-day speedy trial deadline, which would require trial to begin by January 8, 2013. Defense counsel agreed with this calculation, and the judge set a January 7, 2013, trial date.
At a December 18 hearing with Brownlee present, Colgan informed Judge Griffin that Brownlee had filed a second pro se motion for speedy trial. After argument before this court, Brownlee added the document defense counsel had described as Brownlee’s second motion to the record on appeal. The notarized document says only: “Dear Mr. Griffin I do not understand why my 90 day speedy trial has been delayed. Sincerely Gustin C. Brownlee.” The judge asked if Brownlee had another hold to keep him in jail, and Colgan said no. The State did not attempt to contest or correct this statement.
Brownlee did not believe that the time between September 28 and October 31 should be assessed to him. He explained that he had told Colgan he was not sure if lawyer KiAnn McBratney was getting involved in his case, and he had wanted Colgan to set a trial date at the September hearing. Colgan responded that he did not think he could schedule a trial for another attorney. The district court agreed, and the judge said he personally remembered talking to McBratney about October 26 and learning she was not going to be involved in Brownlee’s case. This time the judge assessed September 28 to October 26 to the defense but did not charge the continuance from October 26 to October 31 against the defense.
Colgan informed the judge that he had a scheduling conflict with a January 7, 2013, trial date and that Brownlee was unhappy with him. The judge warned Brownlee that appointment of a new attorney would mean Brownlee would not be able to go to trial on January 7. Brownlee asked the judge for an opportunity to think about this until January 4, the date set for the next hearing.
On December 31, 2012, Colgan moved to withdraw, alleging Brownlee would not reveal essential information about the case. At die January 4 hearing, Colgan renewed his request to be removed. Brownlee told Judge Griffin that he wanted to represent himself and go to trial on January 7. The judge tried to dissuade Brownlee and said that neither a new attorney nor Brownlee could possibly be prepared to go to trial in 3 days. Brownlee insisted, and the judge agreed to appoint a standby attorney to enable Brownlee to represent himself. Brownlee asked for McBratney as the standby. McBratney was appointed standby counsel, but the judge said other trial settings meant Brownlee’s trial could not begin until January 28.
Trial began as expected on January 28, 2013. As it opened, McBratney informed Judge Griffin that she would be representing Brownlee, who would “simply play the role of the defendant.”
The prosecutor and the defense agreed that witnesses who had told police that Brownlee had possessed guns at times before the Irvin killing should not be permitted to testify on that point at trial. The prosecutor promised to admonish the witnesses in advance, and the judge agreed with this course of action. Still, the following exchange took place between Bye and the prosecutor:
“Q. At that point were you starting to hear some common themes between the statements?
“A. Oh definitely.
“Q. Can you give us an example?
“A. Early on tried to find out everybody that had a gun. No one ever said anyone besides Gustin had a gun, no one ever said anyone besides Gustin shot a gun. No one said anyone besides Gustin killed Mr. [Irvin], Several people said they [had] seen Gustin with a gun in the past.”
Defense counsel asked for a mistrial, arguing the detective was a professional who should have known better than to mention Brownlee’s past gun possessions. She did not want the jury admonished because she feared it would only draw more attention to the detective’s statement. The prosecutor said the detective was the only State witness she had not reminded not to testify about Brownlee’s past gun possessions because she also thought the detective knew better than to bring the subject up. She nevertheless argued a mistrial was unnecessary because the jury would know Brownlee was prohibited from having a gun the day of the party because it would be instructed about his prior felony. The judge stated the prosecutor’s question had not been designed to elicit an inappropriate answer and took the motion for mistrial under advisement.
Also on the first day of trial, the prosecutor informed the judge that a 9mm gun recovered as a result of a burglary investigation involving Brownlee’s relative had been sent to the KBI that morning for testing. The prosecutor acknowledged that evidence about the gun would be irrelevant if testing showed the casings found at the scene of Irvin’s killing did not match. Nevertheless, the following exchange between the prosecutor and firearm expert Carr occurred during Carr’s direct examination:
“Q. Now you didn’t have a firearm to test in this case, correct?
“A. Not originally, no, ma’am.
“Q. And that’s not unusual, is it?
“A. No, it’s not.”
The defense lodged no contemporaneous objection to Carr’s response suggesting a gun was eventually tested. At a bench conference shortly thereafter, however, defense counsel alerted the judge to Carr’s oblique reference to later testing of a firearm. Counsel specifically expressed concern about the possible admission of additional testimony concerning this weapon. The prosecutor said she thought the examiner knew he was not to discuss the subject further, but the judge took a break to allow the prosecutor to warn Carr explicitly.
At trial, die party guests gave somewhat conflicting accounts of the events leading to Irvin’s death.
Brandie testified that Irvin had arguments with different people that day, including herself. At one point he said he would “snatch little niggas’ guns and beat ’em with [them].” Brandie thought he had directed that comment at Robinson or Brownlee because they were smaller than he was. At one point, she testified, Irvin touched her inappropriately on her waist and buttocks, and she and he argued. Doran and Irvin also had. an argument about the touching, which started inside the residence and then moved outside. According to Brandie, Brownlee convinced her to calm down and let the incident pass. Doran came back inside and went upstairs to the restroom. Irvin took off his shirt as though he was going to fight and went upstairs to find Doran. Brandie, Doran, and Irvin came back down the stairs. Then, according to Brandie, Thompson went outside first and shot his gun three times. Doran pushed Brownlee out the door. Doran and Irvin were arguing, and Brownlee was trying to calm them down. Brandie saw Irvin with a gun; Doran put his hand on top of the gun; and tire two men were talking. Doran told Brandie to go into the house, and she heard gunshots as she turned around. She then saw Irvin on the ground, and everyone began running. Brandie and her children got into a car with Nicld and drove away.
After dropping off the children, Brandie snorted cocaine and drove around until Doran called to be picked up. Doran told her that Brownlee had killed Irvin or told her to say so. Brandie went back to the crime scene and gave her statement to the police. Brandie testified at trial that she was drunk and high on cocaine during her police interview. She also claimed the investigating detective, Bye, badgered her, said she would never see her kids again, and said “cut the crap, bitch, we know your brother did it.” Bye denied calling Brandie a name and said he did not txy to intimidate her. He also testified that she did not appear to be under the influence of alcohol or drugs when she gave her statement.
Shaella testified that Brownlee did not have a problem with anyone downstairs at the party. He was the only man present who was calm and sober. Irvin and Brandie exchanged words for 15 minutes about him touching her, but Brownlee calmed them. Doran went upstairs, and Irvin followed him, saying that Brandie and Brownlee were talking about him. Doran asked Irvin to leave, and Irvin told Doran, “I’ll smack you and your bitch.” Brownlee again told everyone to calm down, but Doran and Iran began arguing and went outside.
Shaella said that Brinson shot at the ground three times and said, “[Y]’all gonna calm down or I’m—I’m gonna start acting crazy.” She also heard Irvin speak to Brownlee and heard Brownlee say he was not going to fight. Brandie went outside to tell Brownlee to stay out of tire argument. Then Doran pushed Brandie back into the house. When she first heard shots, Shaella ran upstairs. When the gunfire stopped, she went back downstairs and looked outside. She saw Brownlee and Irvin “rassling.” Doran was trying to bréale them up. Brinson and Thompson were standing nearby each hold ing a gun. She then heard more shots and ran back upstairs with Brinson behind her. Brinson was holding a gun and said she needed to get out of the house if she did not “wanna die.” Shaella ran out the front door with Brandie and the children and got into a car with a friend and Erin.
Eventually the people in the car with Shaella picked up Brandie and Doran, who had a “secret” conversation in the car. Shaella testified the group dropped Doran off near his house and later took Brandie back there as well. Police later spoke to Shaella, and she said that only Brownlee and Irvin were arguing. When confronted with this statement at trial, Shaella acknowledged that she provided more limited information to police than she did at trial and said she had been afraid to do otherwise.
Erin testified that she spent time both upstairs and downstairs at the party at Doran’s house. She observed Irvin “in [Brownlee]’s face” and said they were talking about a fight. In her police statement, Erin had said Brownlee was spitting on Irvin. Irvin said, “Bro, can you see or something,” and Brownlee responded, “I’m not your bro or your cuz.” Everybody was arguing, and she heard Irvin say that his “daddy taught him to take people’s guns and beat them up or something.” Erin said she was upstairs with the children when she heard “a lot of yelling.” Everything appeared to cool down; then she heard gunshots. Brinson came upstairs with a gun and told everyone to get out of die house.
Doran testified that Irvin touched Brandie and another female inappropriately. He talked to Irvin about it but said he was not really mad. He denied shooting Irvin. Doran said that Brownlee was carrying a gun in the side of his pants. Brownlee and Irvin had an argument, and Irvin said something about cowards having guns. Doran tried to get between the men but was pushed or pulled away and then heard gunshots. He reluctantly admitted that Brownlee shot Irvin, which was consistent with his earlier statement to police.
Jackson did not want to testify at trial and was uncooperative. He admitted to having a gun on the night of Irvin’s death but said he did not fire his gun. He could not testify with certainty about who shot Irvin. However, in his police statement, Jackson had said he saw Brownlee “walk back up to [Iran] and finish[] unloading a gun into his body.”
Brinson testified that Doran, Brownlee, and Irvin were outside but that he could not see them when he heard gunshots. He ran upstairs to warn the children to get out of the house. He denied having a gun with him.
Thompson testified that he heard a loud commotion and saw Irvin and Brownlee go outside. A few minutes later he heard 10 to 12 gunshots. He saw Doran and Brandie run outside. He looked outside to see what was going on and saw Brownlee shooting Irvin. He went back inside to make sure eveiyone else got out safely. Thompson denied having or firing a gun. His statement to the police was similar to his trial testimony.
During the jury instruction conference, Brownlee initially asked the district judge to instruct only on first-degree premeditated murder, i.e., not to give any lesser included offense instructions on the more serious charge. The district judge suggested that the evidence also supported a second-degree murder instruction. At that point, defense counsel argued that a voluntaiy manslaughter instruction should be given because some evidence established a quarrel between Brownlee and Irvin. The State disagreed, arguing the evidence did not establish adequate provocation as a matter of law. Ultimately the judge declined to give a voluntary manslaughter instruction, concluding the evidence was insufficient to show heat of passion or a sudden quarrel.
The jury was given the following definition of premeditation from PIK Crim. 4th 54.150(d): “Premeditation means to have thought the matter over beforehand, in other words, to have formed the design or intent to kill before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous, intentional act of taking another’s life.” During closing argument, the prosecutor made the following comments concerning premeditation:
“So let’s start with the premeditation, okay. That is defined as the defendant must have formed the design or intent to kill before tire act. There is no specific time period required. Obviously when we think of the textbook premeditation, we’re thinking of someone who’s like writing a journal about how they’re going to kill people maybe days, maybe months before. And that’s true, that is premeditation. However, Kansas law does not require that that be the case. What it requires is that the decision is not instantaneous, meaning the law requires that he has to have some time to think to himself and plan I’m going to kill Tony Irvin. And that can happen within a day, it can happen within a few hours, it can happen within minutes, just not instantaneously.
“So I’ve made a list of the things that I have found in the evidence that support premeditation. The first is going to be the testimony of the coroner. Mr. Tony Irvin . . . isn’t here, but his body still tells us some things about what happened to him that day that no witnesses can dispute in this case. He was shot nine times, okay. And I don’t ask you to consider each one by itself but all of these collectively. He was shot nine times. He loas shot six times fatally, most of these are in very vital areas of the body. As Mr. Carr told us, this gun’s not firing itself, it requires a process, it requires loading, it requires aiming, it requires pulling the trigger over and over again. That’s some period of time there to cause those things.
“We also have defensive ivounds on the victim on the right arm. He’s holding up his right arm. If you’re aiming and firing at someone and you see them holding up their arm or trying to move away, that gives you time to reflect. That’s not happening in just an instant.
“There’s two distinct series of shots. Where am I getting that from? Well, we have Shaella Brownlee for one who tells us that, we also had John Doran that mentioned it wasn’t all one group. So there is at least some time period where shots stopped and started again. Again, that wasn’t just an instant. That—during that time period this defendant could have reflected [on] what he teas doing to Mr. Irvin.
‘We also have that this defendant, Mr. Brownlee, went outside after [Irvin] went outside. He did not have to go outside, he didn’t have to take a gun outside, but he chose to do that. That’s a moment where he could have reflected upon what he was about to do to Mr. Irvin.
‘We have testimony from Shaella again and John Doran that this—that both John Doran and Brandie Brownlee were trying to calm Mr. Brownlee down. We have testimony from Brandie Brownlee herself, she says they were trying to calm him down, tell him it’s not worth it, pulled him back. That was an opportunity he had for him to reflect on what he wanted to do to Mr. Irvin.
“We have testimony from Brandie Brownlee that this defendant fired a warning shot into the ground. He could have fired that shot and said, Tony . . ., I’m tired of you, I’m tired of you touching my sister, I’m tired of you being loud, whatever the problem was, get going, but he didn’t. Instead he chose to fire more shots. That goes to premeditation.
“We also have testimony from Brandie Brownlee that Mr. Gustin Brownlee fired at Tony after he had fallen to the ground. Once someone falls to the ground and you continue firing at them, that’s an opportunity to reflect and form the intent to kill, plan on killing that person who in this case was Mr. Tony Irvin.
“We also had the fact that this defendant fled following die incident. You can consider that as to whether or not he intended to kill Tony Irvin. He fled, he wasn’t found until May 23rd.
“And finally for premeditation on my list is that Tony Irvin did not provoke diis defendant. He might have been loud, yes. Maybe he was disrespectful to his sister, but he didn’t pull a weapon on him. There’s no testimony that [Irvin] had a weapon at all. He didn’t get in his face or make any direats by anyone’s testimony that night, any threats of violence. Maybe he was obnoxious, that’s not provocation. And you do not have an instruction on self-defense and that’s why, because under the law, self defense is not a defense in diis case so it does not need to be considered.
“But those are the factors I suggest to you that support premeditation. And as a group, I think you can probably think of more too.” (Emphases added.)
After the jury returned guilty verdicts on the two charges, when the district judge was considering tire defense motion for mistrial based on Bye’s testimony, defense counsel asked if the court’s ruling would be affected if Carr’s testimony were considered as well. The judge observed that no objection or motion for mistrial had previously been based on Carr’s testimony but ruled that even any cumulative prejudice from Bye’s and Carr’s improper testimony would not require a mistrial to be declared.
The defense later filed a motion for new trial, raising several issues. Relevant to this appeal, Brownlee again challenged the testimony from Bye and Carr. At the hearing on the matter, the defense argued that Bye’s statement “leads the jury to believe [Brownlee] has a propensity for carrying guns and things of that nature when, as the court knows, our defense was that he was unarmed on the evening of the murder.” On Carr’s testimony, counsel argued that it could be inferred there was a weapon found when that was not accurate. The judge agreed with defense counsel’s decision not to seek an admonishment of the jury after Bye’s improper testimony. But the judge concluded that, although both witnesses injected error into the trial, neither incident was prejudicial enough under the state statutory harmless error standard, see K.S.A. 2014 Supp. 60-261, to warrant a new trial.
Brownlee also continued to argue posttrial that his speedy trial right had been violated, but neither party discussed the existence of a parole hold at the hearing on the motion for new trial. The judge again rejected Brownlee’s speedy trial argument.
Brownlee was sentenced to a hard 25 life sentence on the murder conviction, consecutive to 8 months’ imprisonment for the conviction of criminal possession of a firearm.
After Brownlee’s appeal was docketed in this court, the State added a May 17, 2012, warrant for Brownlee’s arrest issued by the Kansas Department of Corrections to the record on appeal. The parties have agreed that this document was not part of the record before the district court. The warrant states that Brownlee should be taken into custody and arrangements should be made for him to return to the designated institution to await a further hearing before the Kansas Parole Board. An accompanying report alleges that Brownlee violated the terms of his postrelease supervision based on the charges in this case and by failing to report travel and residence on May 16, 2012. Brownlee was not actually transported to the Hutchinson Correctional Facility for a hearing on his alleged postrelease supervision violations until June 19, 2013.
Statutory Speedy Trial
Brownlee first argues on this appeal that his statutory right to a speedy trial was violated, warranting vacation of his convictions and dismissal of the case with prejudice. He does not argue that any federal or state constitutional right to speedy trial was violated.
At the time Irvin was killed, K.S.A. 22-3402(1) provided in relevant part:
“If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within 90 days after such person’s arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (5).”
The statutory speedy trial clock, starts running at arraignment. State v. Sievers, 299 Kan. 305, 307, 323 P.3d 170 (2014). For Brownlee, waiver of formal arraignment took place on September 12, 2012. “Only the State is authorized to bring a criminal prosecution to trial, so it is the State’s obligation to ensure that a de fendant is provided a speedy trial within the statutory limits.” 299 Kan. 305, Syl. ¶ 2. Although Brownlee filed two motions asserting his right to a speedy trial, a defendant is not required to take any affirmative action to see that his or her right to a speedy trial is vindicated. 299 Kan. at 307-08.
Applicability of 90-day Time Limit
We first must dispense with the State’s assertion that the K.S.A. 22-3402(1) speedy trial limit of 90 days did not apply to Brownlee because he was not being held solely by reason of the charges pending in this case. See State v. Montes-Mata, 292 Kan. 367, Syl. ¶ 2, 253 P.3d 354 (2011) (“A defendant who is not being held "solely by reason’ of the pending charges is not entitled to the protections of the 90-day time limit for bringing a defendant to trial under K.S.A. 22-3402.”). The State concedes that this argument was not raised before the district court and that the supporting warrant and accompanying report were not part of die district court record. Because of this unusual circumstance, this court sought briefs from the parties on whether the documents could be added to the record on appeal or otherwise considered.
The State first asserts that the district judge was on notice of Brownlee’s parole hold because the journal entry in this case orders Brownlee’s sentence to run consecutive to his sentence in the case giving rise to the hold. We reject this argument. The journal entiy was not in existence during the time Brownlee’s speedy trial right was being ruled upon in district court, and the district judge never indicated any awareness of a parole hold when calculating time and setting the trial date. In fact, when defense counsel was asked if there was another hold, the answer was no, and the State did not interject. In addition, there is nothing about the journal entry that demonstrates the existence or vitality of a hold, as opposed to mere recognition of an earlier sentence not fully served. See Montes-Mata, 292 Kan. at 370-71 (“Unless a communication from another agency or jurisdiction constitutes a present custodial claim on a defendant, it cannot affect the speedy trial question of whether the defendant is being held solely on pending charges.”).
The State next argues that Supreme Court Rules 3.01 and 3.02 (2014 Kan. Ct. R. Annot. 20) provide authority for adding the warrant and report to the record on appeal. Rule 3.01(b)(2) provides that “[a]n appellate court may, on its own, order that additional parts of the entire record be filed.” (Emphasis added.) (2014 Kan. Ct. R. Annot. 20). Rule 3.02(d) provides that “[a] party may request adding to the record on appeal any part of the entire record under Rule 3.01(a).” (Emphasis added.) (2014 Kan. Ct. R. Annot. 21). Rule 3.01(a) (1 through 4) define the “entire record” as all original papers and exhibits filed in the district court, the court reporters notes and transcripts of proceedings, any other court-authorized record of the proceedings, and the entries on the appearance docket. (2014 Kan. Ct. R. Annot. 20). The warrant and report were not among the original papers filed in the district court and thus do not qualify as part of “the entire record” under Rules 3.01 and 3.02. These authorities do not assist the State.
The State also contends that this court is permitted to take judicial notice of the warrant and report under K.S.A. 60-409(b)(4), which provides: “(b) Judicial notice may be taken without request by a party, of . . . (4) specific facts and propositions of generalized knowledge which are capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy.” The State argues that parole holds issued by the Department of Corrections are amenable to immediate and accurate determination through “a quick online search and/or phone call to a state government agency.”
Brownlee responds that these documents are not amenable to “immediate . . . determination by resort” to an easily accessible source and that any source is not indisputably accurate. K.S.A. 60-409(b)(4). Rather, he asserts, the State would have had to follow certain procedures to admit the documents into evidence before the district court. See K.S.A. 2014 Supp. 60-460(o) (hearsay exception that allows for the admission of official records subject to authentication); see also K.S.A. 60-465 (exceptions for requiring evidence of authenticity of copies of records if (1) office in state, documents attested to as correct copies, (2) office in United States, documents attested to, authenticated by seal). In addition, Brown- lee asserts that mistakes can be and are made in such documents. See, e.g., In re K.B.J., No. 102,922, 2010 WL 348294, at *2 (Kan. App.) (unpublished opinion), rev. denied 290 Kan. 1094 (2010) (district court erred in taking judicial notice of criminal histoiy under K.S.A. 60-409; Department of Correction’s online system includes a disclaimer of accuracy of information); see also http://www.dc.state.ks.us/kasper.
Brownlee also relies on two other cases in support of his argument rebuttal to the State’s argument urging judicial notice. In State v. Taylor, 198 Kan. 290, 299, 424 P.2d 612 (1967), this court held uncertified machine copies of Federal Bureau of Investigation and KBI “ rap sheets’ ” to be hearsay evidence, absent from the list in Kansas statutes on judicial notice, and not to contain “ ‘facts of generalized knowledge capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy’ (K.S.A. 60-409[a] and [b]).” Brownlee also directs us to Leffel v. Kansas Dept. of Revenue, 36 Kan. App. 2d 244, 249, 138 P.3d 784 (2006), in which a Court of Appeals panel resisted taking judicial notice of Kansas Department of Health and Environment internal documents not readily accessible in published form.
We are not persuaded by the State’s arguments and authorities on Ae facts and record in this case. As Ae documents the State seeks to have us consider are not properly before us, they cannot be relied upon to demonstrate Aat Brownlee was in custody pending trial for reasons other Aan the first-degree murder and criminal possession charges against him. The 90-day time limit of K.S.A. 22-3402 was applicable to Brownlee.
Merits of Statutory Speedy Trial Claim
The issue of whether Ae State violated a criminal defendant’s statutory right to speedy trial raises a question of law subject to de novo review on appeal. Sievers, 299 Kan. at 307.
The 90 days from Brownlee’s waiver of formal arraignment on September 12 expired on December 11, 2012. But any “delays Aat result from the request of a defendant toll the statutory speedy trial period.” State v. Vaughn, 288 Kan. 140, 144, 200 P.3d 446 (2009). The statutory speedy trial right is waived if a defendant requests a continuance or files a motion that delays trial beyond the statutory deadline. 288 Kan. at 144. And defense counsel’s actions that delay trial are attributable to the defendant unless the defendant timely voices his or her disagreement with counsel’s actions. 288 Kan. at 144.
“For acquiescence to result in a waiver of speedy trial rights, the State must demonstrate more than mere passive acceptance and must produce some evidence of agreement to the delay by the defendant or defense counsel. The record must support a conclusion that the defendant expressly or impliedly agreed to the delay.” 288 Kan. at 145.
Brownlee argues his statutory speedy trial right was violated because the defense was erroneously assessed the time between September 28 and October 26, 2012. On the way to this mistake, Brownlee asserts, his constitutional and statutory right to be present was infringed on September 28, and he thus was not given an opportunity to object in person to the critical continuance. Brown-lee emphasizes that he had filed a pro se motion to protect his right to a speedy trial in July, i.e., even before his waiver of formal arraignment and the September 28 hearing; that he had advised defense counsel and the district court that the prospects of securing retained counsel were uncertain; and that he had instructed counsel to schedule the trial at the September 28 hearing.
K.S.A. 2014 Supp. 22-3208(7) provides that a Kansas criminal defendant has a right to be present at a hearing on any motion. See State v. Turner, No. 107,412, 2013 WL 4404176, at *2 (Kan. App. 2013) (unpublished opinion), review denied 299 Kan. 1273 (2014). In addition, “K.S.A.1998 Supp. 22-3405, as well as the Sixth Amendment’s Confrontation Clause and the Due Process Clause of the Fourteenth Amendment, require the defendant’s presence at eveiy critical stage of a trial. [Citations omitted.].” State v. Bell, 266 Kan. 896, 919-20, 975 P.2d 239, cert. denied 528 U.S. 905 (1999); see also Howard v. State, No. 106,782, 2012 WL 6217193, at *6 (Kan. App. 2012) (unpublished opinion) (panel assumed motion hearing critical stage; State did not contest error); State v. Taylor, No. 104,455, 2011 WL 3795481, at *4 (Kan. App. 2011) (unpublished opinion) (defendant’s absence prevented defendant from objecting to counsel’s continuance).
Here, the State concedes that K.S.A. 2014 Supp. 22-3208(7) granted Brownlee a statutory right to attend the September 28 hearing. Given this concession, and our agreement that it is sound and sensible, we need not reach the further question of whether every motion hearing qualifies as a critical stage of trial under other statutory or constitutional provisions.
The State likewise concedes that Brownlee did not acquiesce in the continuance and says he should not be bound by the actions of his counsel in requesting it. See Vaughn, 288 Kan. at 144 (actions of defense counsel attributable to defendant unless defendant timely voices disagreement); State v. Hines, 269 Kan. 698, 703-04, 7 P.3d 1237 (2000) (when defendant objects to continuance beyond statutory limit, time cannot be assessed against defendant); State v. Arrocha, 30 Kan. App. 2d 120, 127, 39 P.3d 101 (2002) (if defendant stands silent, neither advocating nor acquiescing in delay, State must beware). This also qualifies as a sound and sensible concession, and we hold that the district judge erred in assessing the time between September 28 and October 26 against the defense. Brownlee should have been present to voice his opinion on September 28; without his presence, we are left with his earlier motion making clear he had wanted his trial set within the statutory speedy trial period.
Reversibility
Having conceded statutory speedy trial error, the State nevertheless argues that tire error does not require reversal. It relies on a 2012 amendment to the speedy trial statute.
The meaning and applicability of a statutory amendment involve only questions of law arising on proved or admitted facts that will be finally determinative of the issue. See State v. Barnes, 293 Kan. 240, 255, 262 P.3d 297 (2011). We therefore address the issue on appeal, despite the lack of opportunity for the district judge to consider it.
Our standard of review is often repeated and familiar:
“The most fundamental rule of statutory construction is that the intent of tire legislature governs if that intent can be ascertained. When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, the court need not resort to statutory construction.” State v. Jolly, 301 Kan. 313, Syl. ¶ 2, 342 P.3d 935 (2015).
The speedy trial statute was amended effective July 1, 2012, 64 days after Irvin’s killing, to provide in relevant part:
“(g) If a defendant, or defendant’s attorney in consultation with the defendant, requests a delay and such delay is granted, the delay shall be charged to tire defendant regardless of the reasons for making the request, unless there is pros-ecutorial misconduct related to such delay. If a delay is initially attributed to the defendant, but is subsequently charged to the state for any reason, such delay shall not be considered against the state under subsections (a), (b) or (c) and shall not be used as a ground for dismissing a case or for reversing a conviction unless not considering such delay loould result in a violation of the constitutional right to a speedy trial or there is prosecutorial misconduct related to such delay.” (Emphasis added.) K.S.A. 2012 Supp. 22-3402.
The State acknowledges that a statute operates prospectively unless there is clear language indicating the legislature intended otherwise. State v. Waller, 299 Kan. 707, 718, 328 P.3d 1111 (2014). But it argues for application of an exception to this rule because, in its view, this statutory change did not prejudicially affect Brown-lee’s substantive rights and is merely procedural or remedial in nature. See State v. Williams, 291 Kan. 554, 557, 244 P.3d 667 (2010); see also State v. Hutchison, 228 Kan. 279, 287, 615 P.2d 138 (1980) (procedural amendment provides, regulates steps by which punishment for criminal act meted out; substantive amendment declares specific acts crimes, prescribes punishment).
The statute does not expressly state whether subsection (g) applies retroactively, and we discern no clear legislative intent on this point in other sources. See State v. Jaben, 294 Kan. 607, 613, 277 P.3d 417 (2012). Our research reveals no cases interpreting this amendment or exploring its retroactivity. And recorded legislative history provides no guidance.
Lacking these indicators, we observe that the provision does not alter the law on the acts that qualify as crimes. Nor does it alter the punishment for any crime. It does, on the other hand, regulate the steps of the judicial process. We therefore conclude that K.S.A. 2012 Supp. 22-3402(g) is a procedural provision, and it can be retroactively applied to Brownlee’s case. See Williams, 291 Kan. at 557.
On the subject of where retroactive application then leads, the State focuses on the second sentence of subsection (g) emphasized above. The State contends that the district judge’s error in assessing the time between September 28 and October 26 against the defense did not violate Brownlee’s constitutional right to a speedy trial or flow from prosecutorial misconduct. Thus, in the State’s view, we must disregard the mere statutory violation that resulted from exceeding subsection (a)’s 90-day time limit.
Brownlee counters that the first sentence of subsection (g) sets up a precondition for application of the second sentence to save a conviction on appeal. The first sentence assesses time attributable to delay sought by defense counsel to the defense only if the delay was sought “in consultation with the defendant” and only as long as there was no related prosecutorial misconduct. Because Brown-lee explicitly told his lawyer not to continue the trial setting, he reasons, neither the first sentence nor the second sentence of subsection (g) can be invoked by the State to affirm his convictions.
We disagree with Brownlee’s interpretation of what we believe is the plain language of the statute. The two sentences of the subsection are not worded to make them contingent upon each other. The first sentence clearly applies to situations, unlike this case, where the defendant himself, or upon consultation with his attorney, requests a delay that is granted. In such a factual scenario, the defense is charged with the delay for speedy trial purposes, barring related prosecutorial misconduct. The second sentence is much broader in its application. It involves situations where “a delay is initially attributed to the defendant[] but is subsequently charged to the state for any reason . . . .” (Emphases added.) K.S.A. 2012 Supp. 22-3402(g). The second sentence covers the factual scenarios encompassed by the first sentence, i.e., those in which the defendant alone or in consultation with counsel requested a delay. But it is not limited to such situations. Absent prosecutorial misconduct or a violation of a defendant’s constitutional speedy trial right, the second sentence also is applicable to any factual situation in which a delay initially charged to the defense is subsequently charged to the State.
The facts of this case fall squarely within the circumstances described by the second sentence of subsection (g). The district judge erroneously assessed the time between September 28 and October 26, 2012. We have now concluded the time should have been charged to the State. Brownlee does not assert on appeal that his constitutional right to a speedy trial was violated, and he says only that he “may” claim that prosecutorial misconduct had a role in the delay because the State did not secure his presence without alleging or demonstrating that he or his counsel ever sought to have him brought to court. The only speedy trial violation before us is purely statutory, arising out of application of what was then subsection (1)’s and is now subsection (a)’s 90-day limit. Under subsection (g), the legislature, which created the statutory right, has decided to eliminate the remedy for its violation in certain circumstances, providing explicitly that tire violation “shall not be used as a ground for dismissing a case or for reversing [Brownlee’s] conviction.” K.S.A. 2012 Supp. 22-3402(g). We are compelled by this plain language to affirm the district judge’s refusal to dismiss this case on statutory speedy trial grounds. In essence, the judge managed to arrive at the right destination via the wrong road. State v. Bryant, 272 Kan. 1204, 1210, 38 P.3d 661 (2002).
Voluntary Manslaughter Instruction
Brownlee next argues that the district judge erred by failing to instruct the jury on voluntaiy manslaughter.
“For jury instruction issues, the progression of analysis and [the] corresponding standards of review on appeal are: (1) First, tire appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).” State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
On reviewability, this court has observed that “[t]o fully preserve a claim that the district court erred in failing to give a lesser included offense instruction, the defendant must distinctly state an objection to the omission before the jury retires to consider its verdict. K.S.A. 22-3414(3).” State v. Wade, 295 Kan. 916, 924, 287 P.3d 237 (2012). This obligation to object was fulfilled in this case.
On the second question of whether a voluntary manslaughter instruction was legally appropriate, we recognize that voluntary manslaughter—the knowing killing of a human being committed upon a sudden quarrel or in the heat of passion, K.S.A. 2014 Supp. 21-5404(a)—is a lesser included offense of first-degree premeditated murder. See State v. Hayes, 299 Kan. 861, 864, 327 P.3d 414 (2014); State v. Gooding, 50 Kan. App. 2d 964, 979-80, 335 P.3d 698 (2014), rev. denied 301 Kan. 1049 (2015) (voluntary manslaughter lesser included offense of murder as lesser degree of same crime). An instruction on the elements of voluntary manslaughter was legally appropriate in this case. See State v. Story, 300 Kan. 702, 710, 334 P.3d 297 (2014).
We next turn to whether a voluntary manslaughter instruction was factually appropriate. In order to require the instruction, there must have been evidence that would reasonably justify a conviction of the lesser included crime. 300 Kan. at 710. This court does not speculate about hypothetical scenarios. 300 Kan. at 710 (quoting Wade, 295 Kan. at 925).
“The key elements of voluntary manslaughter under K.S.A. 21-3403 are an intentional killing and legally sufficient provocation. [Citation omitted.] When reviewing whether provocation was legally sufficient, an objective test is used. [Citation omitted.] ‘Heat of passion has been defined as ‘any intense or vehement emotional excitement of the land prompting violent and aggressive action, such as rage, anger, hatred, furious resentment, fright, or terror,’ based ‘on impulse without reflection.’ [Citation omitted.] The provocation “ ‘must be sufficient to cause an ordinary man to lose control of his actions and his reason.’ ” [Citations omitted.]
“[I]n order to reduce a homicide from murder to voluntary manslaughter, there must be an adequate provocation that deprives a reasonable person of self-control and causes that person to act out of passion rather than reason. Mere words or gestures, however offensive, do not constitute legally sufficient provocation for a finding of voluntary manslaughter.” Hayes, 299 Kan. at 864-66.
A sudden quarrel can be one form of heat of passion. State v. Johnson, 290 Kan. 1038, 1048, 236 P.3d 517 (2010). “[A]n unforeseen angry altercation, dispute, taunt, or accusation could fall within th[e] definition [of heat of passion] as sufficient provocation.” 290 Kan. at 1048. “ ‘The hallmark of heat of passion is taking action upon impulse without reflection.’ ” State v. Hilt, 299 Kan. 176, 194, 322 P.3d 367 (2014) (quoting Wade, 295 Kan. at 925).
Brownlee argues that numerous witnesses testified the shooting was part of an angry dispute or altercation. He points to evidence that Irvin inappropriately touched Brownlee’s sister, Brandie, and, when confronted, said “I’ll smack you [Doran] and your bitch [Brandie].” When Doran, Irvin, Brinson, Thompson, and Brown-lee went outside, one man shot at the ground saying, “[Y]’all gonna calm down or I’m . . . gonna start acting crazy.” Brandie said she tried to go outside to calm Brownlee down, and Doran testified that Irvin and Brownlee argued outside the house. Shaella testified that she saw Irvin and Brownlee “rassling” and that Doran was trying to bréale the fight up. Brownlee asserts that this evidence supported an “objectively sufficient provocation for an emotional state of mind of ‘rage, anger, hatred, [or] furious resentment.’ ” See State v. Horn, 278 Kan. 24, 40-42, 91 P.3d 517 (2004).
The State responds that even when the evidence is viewed in the light most favorable to the defense, it does not support legal, sufficient provocation. It points out that Brandie and Shaella testified that Brownlee was calm; that both Doran and Brandie tried to prevent Brownlee from confronting Irvin; that Irvin was provoking Brandie, not Brownlee; and that Irvin did not have a weapon or threaten Brownlee. See, e.g., State v. Stallings, 246 Kan. 642, 649, 792 P.2d 1013 (1990) (testimony that defendant, victim argued insufficient to warrant voluntaiy manslaughter instruction; no evidence of aggressive acts, physical threats, physical assault with insulting language by victim). The State also points out that a sudden quarrel between a victim and a third party will not support a conviction of voluntaiy manslaughter. See State v. Clark, 263 Kan. 370, 374, 949 P.2d 1099 (1997) (sudden quarrel voluntary manslaughter instruction inappropriate when defendant shot victim fighting with third person); State v. Harris, 27 Kan. App. 2d 41, 44, 998 P.2d 524 (2000) (sudden quarrel voluntary manslaughter inappropriate when party guest, not defendant, said he wanted victim dead).
Viewing the evidence in the light most favorable to the defense, Irvin had inappropriately touched Brandie, and they argued. At some point Irvin said he would “smack” both Doran and Brandie. But this behavior and comment were not directed at Brownlee. The only insulting or threatening language Irvin may have used toward Brownlee at some point during the night were his comments that he would “snatch little niggas’ guns and beat 'em with it” and that he would be back later to hurt Brownlee. Irvin was unarmed, but Brownlee was carrying a gun. Irvin and Brownlee argued outside the house, and one witness testified that they were “rassling” before the shots were fired. But no evidence was presented about who started the physical fight or what the two men were arguing or fighting about. The dispute was not sudden; it merely simmered. Such evidence does not rise to the level of “adequate provocation that deprives a reasonable person of self-control and causes that person to act out of passion rather than reason.” Hayes, 299 Kan. at 866.
Because a lesser included instruction on voluntary manslaughter would not have been factually appropriate in this case, the district judge did not err in refusing to give it. We need not reach the further question of whether any error was harmless.
Prosecutorial Misconduct
Brownlee argues tire prosecutor committed misconduct during closing argument by stating that a defendant can form premeditated intent to kill during the act of shooting a gun. Brownlee points to statements that Irvin was shot several times; that the shooting involved a process of loading, aiming, and pulling the trigger over a period of time; that Brownlee had time to reflect when Irvin took a defensive posture, which could not have happened in an instant; and that there were two distinct series of shots. The State’s response is that even a cursory review of the record disproves Brown-lee’s mischaracterization of the prosecutor’s comments.
We note first that no contemporaneous objection was necessary to preserve this issue for appeal. State v. Crawford, 300 Kan. 740, 744, 334 P.3d 311 (2014). We next must determine whether the prosecutor s comments were improper. “[W]hile a prosecutor has wide latitude in discussing evidence, the remarks must accurately reflect that evidence, accurately state the law, and cannot be intended to inflame the passions or prejudices of the jury or divert the jury from its duty to decide the case based on the evidence and controlling law.” State v. Marks, 297 Kan. 131, 136, 298 P.3d 1102 (2013).
“ ‘Premeditation means to have thought the matter over beforehand, in other words, to have formed the design or intent to kill before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous, intentional act of taking another’s life.’ ” State v. Jones, 298 Kan. 324, 336, 311 P.3d 1125 (2013) (quoting State v. Martis, 277 Kan. 267, 301, 83 P.3d 1216 [2004]). We have also recognized that “ ‘[premeditation is the process of thinking about a proposed killing before engaging in the homicidal conduct, but it does not have to be present before a fight, quarrel, or struggle begins.’ ” State v. McBroom, 299 Kan. 731, 756, 325 P.3d 1174 (2014) (quoting State v. Gunby, 282 Kan. 39, Syl. ¶ 9, 144 P.3d 647 [2006]).
This court considers the following factors to assist in determining whether evidence gives rise to an inference of premeditation: “(a) the nature of the weapon used; (b) the lack of provocation; (c) the defendant’s conduct before and after the killing; (d) the defendant’s threats and declarations before and during the occurrence; and (e) the dealing of lethal blows after the deceased was felled and rendered helpless.” State v. Lloyd, 299 Kan. 620, Syl. ¶ 5, 325 P.3d 1122 (2014). This determination is not driven by the number of factors present because one factor alone may constitute compelling evidence of premeditation. Lloyd, 299 Kan. 620, Syl. ¶ 5. “[P]remeditation and deliberation may be inferred from the established circumstances of a case, provided the inference is a reasonable one.” ’ ” Jones, 298 Kan. at 336.
Brownlee first contends the prosecutor’s argument that premeditated intent could be developed simultaneous to the act of firing gunshots misstated the law, eliminating the line between mere intent and the actual forethought required for premeditation. “[T]his court has repeatedly warned prosecutors about going outside of the approved language in PIK Crim. 3d 56.04(b) and making comments that are analogous to stating premeditation can occur in the same instant as the act that results in a death.” State v. Kettler, 299 Kan. 448, 474-75, 325 P.3d 1075 (2014) (prosecutor misstated law of premeditation by saying “ ‘[Y]ou could think it over, just a half second before you actually fired the fatal shot.’ ”).
Among the caselaw precedents cited by the parties is State v. Anthony, 282 Kan. 201, 145 P.3d 1 (2006). In that case, the victim was beaten with an object, and the prosecutor stated in closing argument:
“ ‘[I]f you think about it, the two blows that actually killed [the victim] had to occur at some point, they may have occurred last and [tire victim] went to the ground, but if they came last, then there is [sic] at least five blows before them. This person is thinking about what they are doing. They know what they are doing. If those two blows came first, then [the victim] is unconscious, defenseless on the ground, and this person continues to beat him at least five more times. That’s premeditation.’ ” 282 Kan. at 208.
We ruled there was no misconduct in this description of the number and possible order of the blows and of the potential for the defendant to think about what he was doing before inflicting additional blows on a victim already rendered helpless. 282 Kan. at 209.
Our decision 2 years later in State v. Warledo, 286 Kan. 927, 190 P.3d 937 (2008), is similar. In that case, the defendant had stomped the victim 15 times as she lay on the floor, and the prosecutor argued premeditation could be formed in between stomps and again as the defendant walked away and returned. This court held that multiple blows may afford a defendant an opportunity to think, that the infliction of additional blows once a victim is already helpless can show premeditation, and that the prosecutor’s comments on these subjects merely informed the juiy that the defendant could have developed the plan to commit murder once his fight with the victim began. This theory was supported not only by the number of stomps but by a 911 tape recording in which the defendant could be heard telling the victim she would die. 286 Kan. at 950.
In State v. Hall, 292 Kan. 841, 257 P.3d 272 (2011), the victim was shot once and then three more times in more rapid succession. The prosecutor argued that the defendant could have formed premeditation after the first trigger pull. We ruled the prosecutor committed misconduct by arguing that premeditation could be formed after the first trigger pull because all of the shots were still so closely spaced that the argument erroneously suggested that premeditation could be formed instantaneously. 292 Kan. at 852.
In Marks, the defendant challenged the prosecutor s statement that premeditation could be formed “ ‘during the act itself ” when the victim was stabbed eight times. 297 Kan. at 137. We observed that the stabbing made the case more similar to Warledo and Anthony than to Hall because the act of stabbing someone eight times is not instantaneous like rapid gunfire can be. Nevertheless, the prosecutor’s statement that premeditation could occur “ ‘during the act itself ” meant “the prosecutor confused the formation of premeditation from what was instructed given the particular fact pattern in this case and the conflict in the evidence.” 297 Kan. at 139. This meant there was error, but it was not reversible. 297 Kan. at 139-41.
This court has considered the fact that a victim was shot 11 times in rapid succession to evidence premeditation. See State v. Qualls, 297 Kan. 61, 68, 298 P.3d 311 (2013); see also State v. Cosby, 293 Kan. 121, 134, 262 P.3d 285 (2011) (evidence of premeditation in multiple shots fired at victim, including a pause between first and second shot). And in Jones, we decided that a prosecutor’s discussion of the defendant’s decision to put “ ‘five-pound pressure’ ” on a trigger and discussion of the amount of time required to raise his arm and pull the trigger did not imply instantaneous premeditation. Rather, the prosecutor identified key factual intervals when the defendant had an opportunity to think about the killing and proceed or change course. 298 Kan. at 336-37.
Predictably, Brownlee relies on Marks and Hall. The State persuasively distinguishes this case from Marks because the prosecutor never stated or implied that “ “intent can be formed during the act itself ” and did not imply that premeditation could be instantaneous. See 297 Kan. at 137. The State also distinguishes this case from Hall, in which all of the shots were fired in rapid succession. In that case, we explicitly left for another day consideration of the State’s assertion that it was “ “theoretically possible’ ” to fire one shot instantaneously and without premeditation and then to premeditate before firing additional shots. Hall, 292 Kan. at 852.
In this case, the prosecutor’s comments were within the bounds of the law because they described the totality of the evidence regarding premeditation, i.e., the use of a deadly weapon, the dealing of lethal blows after the victim had been rendered helpless, additional conduct before and after the killing, and tire lack of provocation. Lloyd, 299 Kan. 620, Syl. ¶ 5. After properly stating the definition of premeditation, tire prosecutor pointed out key factual intervals supported by the evidence that established premeditation: (1) the number and location of Irvin’s gunshot wounds; (2) the process and reflection necessary to fire a gun; (3) the defensive wounds on the body; (4) the two distinct series of shots with a pause between them; (5) Brownlee’s failure to calm down and his decision to follow Irvin outside; (6) Brownlee’s firing of warning shots into the ground before shooting Irvin; (7) Brownlee’s decision to continue to fire after Irvin was on the ground; (8) Brownlee’s action in fleeing the scene after the shooting; and (9) the lack of provocation. The prosecutor’s comments were not outside the wide latitude allowed in discussing the evidence of premeditation or the law governing tire jury’s evaluation of it.
Brownlee also argues that State v. Huddleston, 298 Kan. 941, 953, 318 P.3d 140 (2014), supports his view that the prosecutor committed misconduct by saying: “‘Once someone falls to the ground and you continue firing at them, that’s an opportunity to reflect and form tire intent to kill, plan on killing that person . . . .” In Huddleston, the defendant killed the victim by injecting him with insulin, and prosecutors repeatedly mentioned events that occurred after the injection without stating that premeditation could be in ferred from those events. We held that the suggestion that premeditation was going on after the homicidal act of giving the injection was a misstatement of the law because premeditation cannot occur “after a defendant commits an act that results in a death.” 298 Kan. 941, Syl. ¶ 1.
Again, the State persuasively responds to Brownlee’s argument. It asserts that there was no evidence here that Irvin was dead or even fatally wounded when he fell to the ground. The coroner testified that six of the nine shots were fatal, but he could not testify to the order in which the shots occurred. The coroner also testified it was hard to say, but Irvin probably was trying to use his right forearm to block the shot. He opined that Irvin “probably” fell down when he was shot in the back of the head, which would cause instantaneous death, and then a bullet “might have” hit the front side of his body. In Huddleston, the injection of insulin was unquestionably the homicidal act.
This argument of Brownlee also lacks merit because “a prosecutor may properly point out that the number and order of blows could have given the defendant ‘an opportunity to think about what he or she was doing’ and that ‘infliction of additional blows after the first blows’ which rendered the victim helpless could evidence premeditation.” Warledo, 286 Kan. at 950. In this case, in which evidence was presented of a pause between two sets of gunshots, of defensive wounds, and of shots fired while the victim was on the ground, the prosecutor was justified in discussing the additional shots fired after Irvin fell as evidence of premeditation.
Because we conclude that the prosecutor’s challenged statements were not improper, it is unnecessary to consider harmlessness. See State v. Hunt, 285 Kan. 855, 866, 176 P.3d 183 (2008).
Motions for Mistrial and New Trial
Brownlee next argues that the district judge erred by denying him a mistrial and/or new trial based on the improper statements from the detective and die firearm expert. Brownlee’s objection to tire detective’s testimony was ruled on as a motion for mistrial during trial and as part of a motion for new trial between conviction and sentencing. As discussed above, no objection to the firearms expert’s testimony was lodged at trial, but after Brownlee had been convicted, the defense asked the judge if the cumulative effect of both witnesses’ testimony would have warranted a mistrial. Thus the firearms expert’s testimony was ruled on at the motion for new trial hearing. Given these events below, we will address whether the detective’s testimony warranted a mistrial or a new trial and whether the firearms expert’s testimony, when considered in conjunction with the detective’s testimony, warranted a new trial. See State v. Clay, 300 Kan. 401, 412-15, 329 P.3d 484, cert. denied 135 S. Ct. 728 (2014) (mistrial, new trial standards of review applied to combination of alleged errors).
This court reviews a district court’s decision denying a motion for mistrial under an abuse of discretion standard. We ask: “(1) Did the trial court abuse its discretion when deciding if there was a fundamental failure in the proceeding? and (2) Did the trial court abuse its discretion when deciding whether the conduct resulted in prejudice that could not be cured or mitigated through jury admonition or instruction, resulting in an injustice?” State v. Waller, 299 Kan. 707, 726, 328 P.3d 1111 (2014).
“Under K.S.A. 22-3423(1)(c), a trial court may declare a mistrial if there was prejudicial conduct either inside or outside the courtroom that malees it impossible for the trial to proceed without injustice to either the defendant or the prosecution. This statute creates a two-step process. First, the trial court must determine if there was some fundamental failure of the proceeding. If so, the trial court moves to the second step and assesses whether it is possible to continue without an injustice. In other words, the trial court must decide if the prejudicial conduct’s damaging effect can be removed or mitigated by an admonition, jury instruction, or other action. If not, the trial court must determine whether the degree of prejudice results in an injustice and, if so, declare a mistrial.” Waller, 299 Kan. 707, Syl. ¶ 3.
Decisions on motions for new trial also are reviewed for abuse of discretion. Under K.S.A. 2014 Supp. 22-3501, a district judge should grant a defendant’s request for a new trial when doing so is in “the interest of justice.” The district judge abuses his or her discretion when the decision is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. Clay, 300 Kan. at 414.
We turn first to the detective’s testimony.
It is undisputed that the detective violated the court’s order by stating that several people had seen Brownlee with a gun in the past. Our motion for mistrial analysis thus shifts immediately to whether it was possible to continue the trial without an injustice. Waller, 299 Kan. 707, Syl. ¶ 3.
“Appellate courts reviewing . . . for an injustice may take a broader view than the trial court because appellate courts may examine the entire record. The degree of certainty required to conclude an injustice did not occur varies depending on whether the fundamental failure infringes on a constitutional right. To declare a nonconstitutional error harmless, the appellate court must apply K.S.A. 60-261 and K.S.A. 60-2105 to determine if there was a reasonable probability that the error affected the trial’s outcome. And if the fundamental failure infringes on a right guaranteed by the United States Constitution, the appellate court applies tire 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).” Waller, 299 Kan. at 726.
Brownlee contends that the detective’s testimony led the juiy to believe that Brownlee had a propensity for carrying guns. He asserts that this was prejudicial and that the district judge did not protect his right to a fair trial. He summarily concludes that the State cannot meet its burden to show harmlessness under the constitutional standard.
The State, in response, directs our attention to “more egregious” cases that did not require reversal. In one of those cases, State v. Ransom, 288 Kan. 697, 207 P.3d 208 (2009), a detective violated a pretrial limine order preventing discussion of gang affiliation at trial. The district judge denied a motion for mistrial, reasoning that the question posed to the witness had not been designed to elicit tire impermissible response and that the jury had been properly admonished to ignore the reference. On appeal, we found no substantial prejudice; we characterized the comment as brief and innocuous and said it had been cured by an admonition. 288 Kan. at 714-15.
State v. Tatum, 281 Kan. 1098, 135 P.3d 1088 (2006), teaches a similar lesson. In it, the district judge denied a motion for mistrial when a detective testified that the defendant’s name had come up during a prior homicide investigation and that the defendant had sold drugs in the past. We affirmed the district court, holding that the reference to the prior investigation was harmless because the defendant ultimately was not implicated in prior criminal activity, the evidence of his motive in the current case was abundant, and he had been identified as one of the shooters. 281 Kan. at 1111-12. We also ruled that the reference to previous drug sales was cured by an instruction, and we considered the existence of overwhelming evidence in holding that the defendant failed to establish substantial prejudice. 281 Kan. at 1113.
Here, the detective’s improper testimony was fleeting, and it was unresponsive to the prosecutor’s question. The district judge found neither the prosecutor nor the detective acted maliciously, and he agreed with defense counsel’s decision not to seek an admonishment of the jury to avoid calling more attention to the problem. See State v. Rinck, 256 Kan. 848, 853-54, 888 P.2d 845 (1995) (no abuse of discretion in denying motion for mistrial when witness referred to defendant being in prison; statement singular, unsolicited; limiting instruction refused; statement could not have affected trial result); State v. Hall, 45 Kan. App. 2d 290, 310, 247 P.3d 1050 (2011) (district judge’s refusal to draw more attention to brief, inadvertent, unsolicited testimony from detective by giving curative instruction considered; instruction would not have resulted in different verdict), aff'd on other grounds 297 Kan. 709, 304 P.3d 677 (2013).
We also note that in this case any prejudicial effect of the detective’s improper testimony was diminished becáuse several witnesses testified that Brownlee had a gun the night of the murder and that he shot Irvin several times. No reasonable probability exists that the detective’s testimony affected the trial’s outcome; the district judge did not abuse his discretion in denying the motion for mistrial or the later motion for new trial on this ground. State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
With regard to the firearms expert, the parties also agree that the district judge’s order was violated. The expert should have taken care not to imply that a firearm matching the casings found at the scene of the crime was eventually tested. So, again, our analysis shifts to whether Brownlee can establish substantial prej udice warranting a new trial in the interest of justice under K.S.A. 2014 Supp. 22-3501.
Brownlee provides minimal argument on this point, summarily contending that the expert’s testimony was prejudicial and not harmless beyond a reasonable doubt.
The State, for its part, argues that the testimony was fleeting and innocuous. We also note that the district judge took a break so that the witness could be advised by the prosecutor that he should not mention the tested firearm again. He followed this instruction.
As with the detective’s improper testimony, admonishing the jury about tire comment would probably have done more harm than good, and overwhelming evidence supported Brownlee’s convictions. Even when the erroneous testimony from both the detective and the firearm expert is considered together, Brownlee has failed to establish substantial prejudice warranting a new trial in the interest of justice under the statute. The district judge did not abuse his discretion in denying the motion for new trial on these grounds.
Cumulative Error
Finally, Brownlee asserts the cumulative effect of several errors warrants reversal of his convictions.
“Cumulative trial errors, when considered collectively, may require reversal of tire defendant’s conviction when the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. Notably, cumulative error will not be found when the record fails to support the errors raised on appeal by tire defendant. Furthermore, a single error cannot constitute cumulative error.” Waller, 299 Kan. 707, Syl. ¶ 4.
The only errors we have identified are a violation of Brownlee’s statutory right to speedy trial, for which the legislature has eliminated a dedicated, individual remedy, and the detective’s and firearm expert’s inadmissible statements. Under the totality of the circumstances, these errors did not substantially prejudice Brownlee nor deny him a fair trial, particularly in light of the truly overwhelming evidence presented to support his convictions. Cumulative error does not necessitate reversal.
Conclusion
Defendant Gustin Brownlee has not persuaded this court that his convictions of first-degree premeditated murder and criminal possession of a firearm were infected by reversible error. The judgment of the district court is affirmed. | [
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Denied.
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Denied.
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Denied
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Denied.
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Denied.
50 Kan. App. 2d 1155 | [
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MARQUARDT, J.:
This is a controversy between DeBruce Grain, Inc. (DeBruce), purchaser of corn under a contract for future delivery from Shore, Ltd. (Shore), and Ag Services of America, Inc. (Ag Services), which has a perfected security interest in Shore s corn. On appeal, DeBruce argues that the trial court erred in granting judgment to Ag Services. We affirm.
On February 1,1995, Shore, a farming partnership, entered into a contract with DeBruce whereby DeBruce agreed to buy 30,000 bushels of com from Shore for $2,735 per bushel. Delivery was to take place in December 1995.
On March 30, 1995, Shore executed a promissory note and security agreement with Ag Services which granted Ag Services a security interest in all of Shore’s equipment, accounts, farm products, crops, and other property. On May 9, 1995, Ag Services advanced Shore $132,000 to enable Shore to pay the expenses of growing its 1995 crops, which included the com to be delivered to DeBruce. Ag Services perfected its security interest by fifing its financing statements with the Secretary of State. On June 12,1995, Ag Services notified DeBruce of its security interest in Shore’s farm products as required by the provisions of the Federal Food Security Act, 7 U.S.C. 1631 (1994).
In December 1995, Shore delivered 8,288.04 bushels of com to DeBruce and notified DeBruce that it would make no further deliveries of com under their contract. The amount due to Shore for the delivered corn was $22,667.68. DeBruce bought corn on the open market for $21,870.47 to make up for the balance of what Shore had contracted to deliver to DeBruce. Instead of issuing a check to Ag Services and Shore for $22,667.68, DeBruce deducted the amount it paid for the com purchased on the open market and issued Shore and Ag Services a check for $797.21.
Ag Services sued DeBruce for $21,870.47, claiming that it acquired an interest in Shore’s com under the security agreement and that its security interest was superior to DeBruce’s right of setoff in Shore’s com. The case was tried on stipulated facts. The trial court found that Ag Services’ security interest in Shore’s corn was superior to DeBruce’s right of setoff and granted judgment to Ag Services in the amount of $21,870.47, plus interest. DeBruce timely appeals.
On appeal, DeBruce contends that the trial court erred in finding that Ag Services’ security interest was superior to DeBruce’s contractual right of setoff. This issue has not been addressed by the appellate courts of Kansas, and we have been unable to find cases from other jurisdictions in which appellate courts have ruled on the issue.
Barkley Clark’s treatise on the Uniform Commercial Code analyzed an example that is similar to the issue raised by DeBruce:
“Farmer forward-contracts with a local elevator to deliver 5,000 bushels of wheat presently growing on his farm. The wheat is to be delivered to the elevator at harvest. Shortly thereafter, Farmer grants a security interest in the growing wheat to Country Bank, which properly perfects by filing a local financing statement. After the wheat is harvested, but before delivery to the elevator, Farmer goes into default on his Country Bank loan. Both the local elevator and Country Bank claim priority to the wheat.
“In this forward-contract situation, Country Bank has a strong argument that Farmer had sufficient rights in the collateral for the security interest to attach. Country Bank would contend that Farmer had not contracted to sell particular wheat but only to deliver 5,000 bushels of wheat, which could be bought in the open market. More significantly, since wheat is fungible and not unique, the local elevator never had a right to specific performance under § 2-716; it had only a cause of action for damages. Therefore, Farmer still had rights in the collateral at the time the security interest was granted and before delivery, with power to prevail over the competing purchaser under § 9-201.” Clark, The Law of Secured Transactions Under tire Uniform Commercial Code ¶ 8.05[2][b], pp. 8-48-49 (rev. ed. 1994) (hereinafter referred to as The Law of Secured Transactions).
No party questions Ag Services’ perfected security interest in the corn that Shore delivered to DeBruce and that DeBruce is a buyer of farm products. The only question is whether Ag Services’ security interest in Shore’s com is superior to DeBrace’s right of setoff pursuant to its contract with Shore. Clark hypothesizes in his example that the bank probably had priority over the elevator for the following reasons:
“Reinforcing Country Bank’s argument [that it has priority] is § 2-402(1), which strongly suggests that unsecured creditors of a seller of goods (which under § 2-107[2] include growing crops sold apart from the realty) prevail over the rights of the buyer to recover the goods, at least in cases where the goods are not unique. If such priority is given to unsecured creditors of the seller, Article 9 secured creditors would seem to qualify even more strongly. In fact, § 2- 402(3)(a) makes it clear that nothing in Article 2 should be deemed to impair the rights of Article 9 secured creditors. To top it off, § 9-307 subordinates a buyer of crops in ordinary course to a security interest created by his seller. In short, Country Bank will probably have priority over the local elevator.” The Law of Secured Transactions ¶ 8.05[2][b], p. 8-49.
The parties agree that under DeBruce’s contract with Shore, DeBruce had certain rights. DeBruce and Ag Services stipulated
“[t]hat pursuant to the Contract, upon default in the delivery of the contracted for grain, DeBruce had the contractual right to buy in com in the open market for the account of Shore Ltd. to cover tire undelivered grain and to set off the additional costs against the proceeds due Shore Ltd. for grain delivered.” (Emphasis added.)
The stipulation does not address how such rights are affected by Ag Services’ perfected security interest in the same corn.
Once the corn was sold to DeBruce, Ag Services had a claim to the proceeds because of its security interest and the notice that it had given DeBruce. Under K.S.A. 84-9-306(1), proceeds are “whatever is received upon the sale, exchange, collection or other disposition of collateral or proceeds.” K.S.A. 84-9-306(2) states:
“Except where this article otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof unless the disposition was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds including collections received by tire debtor.”
K.S.A. 84-9-307(1) allows buyers of goods in the ordinary course of business to take free of a security interest; however, persons buying farm products are specifically not afforded the same protection. DeBruce took delivery of Shore’s corn with knowledge of Ag Services’ security interest. The notice that Ag Services sent to DeBruce in June 1995 stated:
“The payment obligation imposed upon you, as buyer, commission merchant or selling agent to or through whom the farm products are sold which is a condition for waiver or release by the Secured Party of tire security interest of the Secured Party in the farm products described above is as follows: issuance of a check in th efull amount of the sales proceeds of the farm products jointly in the names of: (1) the Secured Party set forth above [Ag Services], as one party, and (2) the Debtor or Debtors set forth above [Shore] as the other party. You are not authorized to deduct from such sales proceeds costs incurred to market or transport the farm products.” (Emphasis added.)
Ag Services did not give DeBruce authorization for a setoff.
DeBruce claims that its rights are derived from the forward contract and not from Ag Services’ notice. DeBruce claims that Ag Services was transformed into an account debtor when the com was sold to DeBruce and that K.S.A. 84-9-318(l)(a) applies. DeBruce states: “Unless an account debtor has made an enforce able agreement not to assert defenses or claims arising out of a sale, the assignee is subject to all of the contractual terms between the account debtor and the assignor and any defense or claim arising therefrom.” The Kansas Comment to the statute notes of K.S.A. 84-9-318 states:
‘This subsection subjects the rights of tire assignee of chattel paper or accounts to defenses of the account debtor arising out of the contract . . . under subsection (l)(a). For example, if the account debtor had no duty to pay the assignor because the goods delivered were defective, this defense could be raised against the assignee, who steps into the assignor’s shoes for this purpose.”
We agree that if defective com had been delivered, Ag Services would only be entitled to the value of the com that was delivered; and if no com had been delivered, Ag Services would have no claim against DeBruce. We do not agree that K.S.A. 84-9-318 applies to this case where DeBruce asserts that its claim for lost profits should take priority over the secured creditor who advanced the funds to grow the corn.
We fail to see how Ag Services is transformed from a secured party into an assignee of an account debtor. K.S.A. 84-9-317 clearly states: “The mere existence of a security interest or authority given to the debtor to dispose of or use collateral does not impose contract or tort liability upon the secured party for the debtor s acts or omissions.”
None of the cases cited by DeBruce for the proposition that Ag Services is nothing more than an assignee of account debtor Shore deal with the sale of farm products. The cases deal with situations where a specific assignment of the right had been executed, and that is not the fact in the instant case. In Commerce Bank, N.A. v. Chrysler Realty Corp., 76 F. Supp. 2d 1113 (D. Kan. 1999), even where there was an assignment of factory receivables, the Kansas United States District Court held that K.S.A. 84-9-318 did not apply because the debtor s obligation to pay was merely a collateral agreement in which the method of payment was established. 76 F. Supp. 2d at 1121-22.
Ag Services did all that was required under Kansas law and the Food Security Act in perfecting its security interest and notifying DeBruce of its interest in Shore’s com. We hold that a buyer of farm products in the ordinary course of business is not entitled to use setoffs it has against the seller to diminish the secured party’s interest in the farm products. Ag Services is not hable for the claims that DeBruce has against Shore. Ag Services’ right to the payment for the corn delivered to DeBruce by Shore is not subject to a setoff by DeBruce. Because DeBruce paid Ag Services only for the difference between the payment for corn purchased under the contract and the value of the delivered corn, Ag Services is entitled to $21,870.47, which is the balance of what was owed on the com delivered to DeBruce. The trial court did not err in awarding judgment to Ag Services.
Affirmed. | [
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BEIER, J.:
Defendant-appellant William J. Grace, Jr., appeals his conviction of possession of methamphetamine after a prior conviction. He questions the district court’s refusal to suppress evidence seized at the time of his arrest and argues that he should have been charged with possession with intent to sell, which, in his case, would have subjected him to less severe punishment. Because we reverse the district court’s ruling on the motion to suppress, the issue regarding the prosecutor’s choice of charge is moot.
Grace was a passenger in a car that pulled up to a Wichita bar so that another passenger could check whether a friend was inside. Two officers of the Wichita Police Department observed the car in its parking place outside the bar for approximately 5 seconds and decided to “make sure the driver wasn’t intoxicated” and to see if anyone in the car was “doing any illegal activity.” One of the officers was familiar with at least one of the two persons in the front seat, which caused him to initiate the contact.
There was no evidence of alcohol or drug use in plain sight when the officers walked up to the car. According to them, one of the officers asked the front-seat passenger to get out of the car, and Grace and the driver got out of the car at the same time. The officers conducted a warrant check on the occupants of the car, which took at least 15 minutes. One of the officers testified that, while he and his partner were waiting for the ultimately negative results, Grace was free to leave; but neither of the officers informed any of the occupants of the car that they were free to go. Grace testified that the officers had his and the other occupants’ identification cards while they were waiting for the warrant check results.
According to the police, one of the officers then asked Grace if he could search him for weapons and contraband. Grace responded, “Sure, go ahead.” The police found a black pouch on Grace’s ankle, which contained, among other things, several baggies of methamphetamine and three syringes.
Trista Reeves, the passenger of the car who had gone inside the bar to check on the whereabouts of a friend, came out of the bar during these events. She testified that, as she approached the car, the officers told her to step back and ordered everyone out of the vehicle. She and the other occupants of the vehicle were then searched, allowed to get back in the car, and told they could leave. According to Reeves, they did not leave at that point because the police returned to the car, asked Grace to get out, and searched him again.
Grace also testified that he was searched two times. He said that the officers ordered him out of the car and asked if they could search him. He said yes, and they conducted the search, finding nothing. After the warrant check was completed, according to Grace, the officers gave the occupants of the car their ID cards back and told them they were free to go. After he had gotten back into the car, Grace said the officers pulled him back out of the car and searched him again without his consent.
After his arrest, Grace told one of the officers that he had been using methamphetamine for about 10 years and said he usually used half of the drugs he obtained and sold the other half to support his habit.
The defense filed a motion to suppress the evidence found in the black pouch, asserting any consent to search was involuntary because the stop was illegal. The defense also filed a motion to dismiss, arguing Grace was improperly charged with violating the general statute prohibiting possession of a controlled substance after a prior conviction, rather than the specific statute of possession with intent to sell.
The district judge denied both motions, finding the decision to charge possession of methamphetamine after a prior conviction was within the prosecutor s discretion and stating with regard to the motion to suppress:
“I’ll find that because of the officer’s knowledge of the problems at the bar, the officer’s knowledge that the bar’s posted no loitering, because of the time of day, ... an early morning hour on ... a Friday morning, . . . the officers had probable cause to stop and investigate. . . . I’ll find that it’s more probably true than not true that Mr. Grace voluntarily exited the vehicle without being asked to do so. That he voluntarily consented to Officer Nichols [sic] doing a patdown search. . . . That the request for a patdown search was reasonable. The consent was voluntary. And the motion to . . . suppress is denied.”
At the time of Grace’s arrest, Wichita had in effect an ordinance that made it unlawful to
“loiter, loaf, wander, stand or remain idle either alone and/or in consort with others in a public place in such manner as to:
“(1) Obstruct any public street, public highway, public sidewalk or any other public place or building by hindering or impeding or tending to hinder or impede the free and uninterrupted passage of vehicles, traffic or pedestrians;
“(2) Commit in or upon any public street, public highway, public sidewalk or any other public place or building any act or thing which is an obstruction or interference to the free and uninterrupted use of property or with any business lawfully conducted by anyone in or upon or facing or fronting on any such public street, public highway, public sidewalk or any other public place or building, all of which prevents the free and uninterrupted ingress, egress, and regress therein, thereon and thereto.” Wichita City Ordinance § 5.48.020.
Motion to Suppress
We give deference to the factual findings of the district court on review of a ruling on a motion to suppress and uphold those find ings if they are supported by substantial competent evidence. State v. Bone, 27 Kan. App. 2d 582, 583, 6 P.3d 914 (2000). The voluntariness of a consent to search must be determined from the totality of the circumstances and is a question of fact. State v. Rice, 264 Kan. 232, 242, 955 P.2d 1258 (1998).
However, the ultimate determination of the suppression of evidence is a legal question requiring independent appellate determination. Bone, 27 Kan. App. 2d at 583. More specifically, if a person consents to a search after an illegal stop or during an illegal detention, the court must evaluate whether the consent purged the taint of the earlier illegality. Rice, 264 Kan. at 241. If the district court did not specifically apply the taint analysis to the consent, the appellate court is empowered to do so upon a sufficient record on appeal. State v. Crowder, 20 Kan. App. 2d 117, 122, 887 P.2d 698 (1994). The factors to be considered in the taint analysis are “the proximity in time of the Fourth Amendment violation and the consent, intervening circumstances, and particularly the ‘purpose and flagrancy’ of the officers’ misconduct.” Rice, 264 Kan. at 242 (quoting Crowder, 20 Kan. App. 2d at 122). If the appellate record is insufficient to enable the analysis, then the case must be remanded for further evidentiary hearing and findings by the district court. See United States v. Holt, 229 F.3d 931, 941 (10th Cir. 2000).
We must also bear in mind that, on a motion to suppress, the State bears the burden of proving the lawfulness of the officer’s conduct in question. See K.S.A. 22-3216(2); State v. Houze, 23 Kan. App. 2d 336, 337, 930 P.2d 620, rev. denied 261 Kan. 1088 (1997).
Based on these standards, analysis of a case such as this must follow these steps: (a) Did the interaction between the officers and the car’s occupants result from a voluntaiy encounter rather than a stop or seizure subject to Fourth Amendment evaluation? (b) If the initial contact did not qualify as a stop, did the continued contact convert an otherwise voluntary encounter into an investigatory detention? (c) If the initial contact qualified as a stop or the continued contact converted a voluntary encounter into an investigatory detention, was it based on a reasonable and articulable suspicion that the occupants of the car had committed, were committing, or were about to commit a crime? (d) If the stop or detention was unlawful, is the appellate record sufficient to enable us to analyze whether the consent purged whatever taint arose? and/or (e) If the appellate record is sufficient for us to make a determination, did the consent purge the taint here?
Voluntary Encounter or Stop
The State cites Crowder, 20 Kan. App. 2d at 120-21; State v. Marks, 226 Kan. 704, 709, 602 P.2d 1344 (1979); and State v. Reason, 263 Kan. 405, 951 P.2d 538 (1997), in support of its argument that the initial contact between Grace and the officers was a voluntary encounter.
In Crowder, the defendant initiated contact with the police. The Crowder panel found that fact “dispositive” in ruling that the initial contact was voluntary and that an ensuing consent to search was sufficient. 20 Kan. App. 2d at 122.
In Marks, a police officer approached two men seated in a parked car because he thought the men matched the general descriptions of those wanted in connection with criminal activities. Once he arrived at the car, the officer asked the occupants for identification. The Marks court held this initial interaction between the police officer and the defendant did not constitute a stop. 226 Kan. at 707-10.
In Reason, the defendant was sleeping in a parked car on a hot day when officers approached to find out why the car was there and if the defendant was intoxicated or unconscious. The defendant got out of the car and identified himself. He said that his wallet had been stolen, that he had no written identification, and that he owned the car. The officers ran a check of the car’s identification number, which revealed the car was registered to the defendant, with a Kansas tag. The defendant explained why the car in fact had a 30-day New Mexico tag, and the officers told him he was free to go. However, before the defendant could leave, the officers asked if they could search the car. The defendant consented, and the search turned up drugs. The Reason court found that the initial approach and questioning constituted a voluntary encounter but that, as it evolved over 20 minutes into a check for warrants and the car’s ID, the “voluntary encounter began to resemble an investigatory detention.” 263 Kan. at 412.
We believe the facts of this case are most closely analogous to Reason. Even if the officers’ initial approach of Grace and the other occupants of the car did not qualify as a stop, the continued interaction for approximately 25 minutes while the warrant checks were run converted what could have been characterized as a voluntary encounter into an investigative detention. Although officers are entitled to approach a stopped car and ask a few questions, see Reason, 263 Kan. at 410 (citing Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 111 S. Ct. 2382 [1991] [so long as reasonable person would feel free “ ‘ “to disregard the police and go about his business,” ’ ” encounter consensual]), they clearly did more than that here. See also State v. Damm, 246 Kan. 220, 224, 787 P.2d 1185 (1990) (scope, duration of seizure must be strictly tied to and justified by circumstances that made its initiation proper). “An investigative detention must last no longer than is necessary to effectuate the purpose of the stop. [Citation omitted.]” State v. DeMarco, 263 Kan. 727, 734, 952 P.2d 1276 (1998). Here the encounter probably ceased to be consensual when the officers took the occupants’ ID cards back to the police car to run checks. At that point, the occupants were no longer genuinely free to leave, and the encounter became an investigatory detention. The officers did not return Grace’s ID card until just before he was searched, approximately 25 minutes after the initial encounter. When the encounter became nonconsensual, the Fourth Amendment’s protections were implicated.
Reasonable and Articulable Suspicion
On appeal, the State asserts that the encounter was supported by reasonable and articulable suspicion because the officers suspected the occupants of the vehicle were violating the ordinance. K.S.A. 22-2402(1) permits a law enforcement officer to stop a person in a public place if the officer reasonably suspects that the person is committing, has committed, or is about to commit a crime. See Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); State v. Maybin, 27 Kan. App. 2d 189, 200-01, 2 P.3d 179, rev. denied 269 Kan. 938 (2000).
We cannot accept the State’s assertion on the district court’s conclusion that the officers had a particularized and objective basis for suspecting Grace was involved in criminal activity. See DeMarco, 263 Kan. at 735. The officers observed the car in its parking place for a mere 5 seconds before they elected to approach its occupants. They could not have reasonably concluded in that time frame that Grace and the others were guilty of or about to be guilty of loitering, which requires obstructive behavior. Loitering was not the reason the officer cited in the suppression hearing. In addition, once the officers drew closer to the car, they observed nothing to raise their suspicion or necessitate detention of Grace and the others. Unless Grace’s later consent to search purged the taint of his unlawful stop and/or detention, the motion to suppress should have been granted.
Sufficiency of Record and Taint Analysis
The district court concluded simply that Grace’s exit from the vehicle and his consent to search were “voluntary.” Because it did not view the initial encounter with the police or Grace’s detention as unlawful under the Fourth Amendment, it did not engage in an analysis of whether Grace’s consent purged the taint of the improper police conduct. Because we have reached the opposite legal conclusion, i.e., that either or both the initial interaction or the continued detention violated the Fourth Amendment, a taint analysis becomes necessary. As outlined above, we next must determine whether further facts are needed to conduct that analysis.
On this appeal, we are fortunate to have a fully developed record on the suppression issue. The district court presided over a lengthy evidentiary hearing in which one of the police officers, Grace, and Reeves all testified. Both sides of the issue were argued by counsel. We cannot conceive of any additional useful information that could be gained from further hearing in the district court. We therefore will not remand for such a hearing and will conduct the taint analysis based on the factual record before this court.
Consent to search removes the taint of a prior illegal seizure if it was voluntarily given under the totality of the circumstances. See Crowder, 20 Kan. App. 2d at 122. “This analysis requires consideration of the proximity in time of the Fourth Amendment violation and the consent, intervening circumstances, and particularly the purpose and flagrancy’ of the officers’ misconduct. U.S. v. Mendoza-Salgado, 964 F.2d 993, 1011 (10th Cir. 1992).” 20 Kan. App. 2d at 122.
In State v. Schmitter, 23 Kan. App. 2d 547, 556, 933 P.2d 762 (1997), the court stated: “[W]hen the consent to search is preceded by a Fourth Amendment violation, the State, in addition to proving the voluntariness of the consent, must also establish a break in the causal connection between the illegality and the evidence thereby obtained. U.S. v. Melendez-Garcia, 28 F.3d 1046, 1053 (10th Cir. 1994).”
Grace argues consent was obtained during the illegal detention and was a product of the illegal detention; there were no intervening events separating the detention from the consent; and the officers had no justification for unlawfully detaining him or for the search following the detention.
Grace correctly points out that the illegal detention and the request for consent to search were in close temporal proximity. Also, unless waiting for the results of the checks for warrants is considered an intervening circumstance, no intervening events separated the illegality and the request to search. Compare Rice, 264 Kan. at 241-44 (taint not purged when no intervening circumstances sufficient to adequately separate consent from unlawful detention).
In terms of the purpose and flagranoy of the officers’ misconduct, we can certainly imagine worse abuses of police authority. However, our review of the record persuades us that the stated purpose of the officers’ behavior has varied. Although appellate focus has been on the loitering statute, the officer testified that he and his partner were motivated by a desire to check whether the driver was intoxicated and whether anyone in the car was engaging in illegal activity. It also appears that the real purpose may have had more to do with one of the officer’s familiarity with the driver’s or front-seat passenger’s past accusations or arrests. This variability in the officers’ story does not fill us with confidence. Considering the totality of the circumstances, we hold that Grace’s consent did not purge the taint of the previous illegality. The evidence should have been suppressed as fruit of the poisonous tree under Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). This outcome on the suppression motion necessitates dismissal of the charge against Grace.
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Bullock, J.:
Bruce Moots was insured under a group policy of disability insurance from Bankers Life Co. Thereafter, Moots suffered disabling back injuries. As a result of these disabilities, Bankers paid Moots monthly benefits under the policy for approximately two years. For reasons not fully developed in the record, Bankers then terminated payments to Moots and Moots filed suit seeking both past due and future payments. Bankers moved for summary judgment, contending that Moots was not entitled to any payments for the sole reason that he had taken a job driving a bus subsequent to the termination of payments by Bankers. Upon these uncontroverted facts, the trial court granted summary judgment to Bankers. This appeal followed.
We turn first to the relevant portion of the disability contract:
“TOTAL DISABILITY. Total disability, for the purposes of this Policy, means the complete inability of the Person, due to accidental bodily injury or sickness, or both
(a) during the first twenty-four months of such disability, to perform any and every duty pertaining to his own occupation; and
(b) during any continuation of such disability following the first twenty-four months of disability, to engage in any work or occupation for which he is reasonably fitted by education, training or experience; and provided further, that he does not engage in any occupation, work or employment for wage or profit during any such disability.”
Bankers concedes that subparagraph (a) provides what is commonly known as “occupational” disability coverage for the first 24 months of disability. Under “occupational” coverage, if an insured is unable, by reason of his disability, to perform the usual and customary duties of his actual occupation, disability payments are owing. In the case at bar, Bankers further concedes that Moots was occupationally disabled for the first 24 months after his injuries and was thus entitled to the payments which Bankers paid.
The only question remaining is whether Moots is entitled to further payments under subparagraph (b) of the policy beyond the initial 24-month period of “occupational” disability coverage under subparagraph (a). Subparagraph (b) provides what is commonly described as “general” disability coverage. Under “general” disability coverage, in order to recover the insured must not only be unable to perform the duties of his actual occupation, but likewise be unable to “engage in any work or occupation for which he is reasonably 'fitted by education, training or experience . . . .” See 15 Couch on Insurance 2d § 53:45 (rev. ed. 1983), for a similar explanation of the difference between “occupational” and “general” disability coverage. “General,” or as is sometimes called “total,” disability insurance provisions have been often construed. For many years virtually all courts have held that although the insured must prove inability to perform all jobs for which he is suited by training, education or experience, total helplessness is not required as a condition precedent to recovery for “general” or “total” disability. Specifically, the mere fact that the insured continues to do some compensable work will not alone bar recovery. In Simmons v. Wilson Employees Mut. Benefit Fund, 145 Kan. 128, 64 P.2d 50 (1937), an insured was not denied total disability benefits despite the fact that he performed manual labor on relief jobs. The Simmons court observed:
“The fact plaintiff had done work on relief projects would indicate it was imperative he do something to provide food and shelter. He probably thought it was just as well to die trying to work as to starve to death. The fact he did some work at the risk of life did not mean he was not entitled to recover for total permanent disability. [Citations omitted.]” 145 Kan. at 130.
Although Bankers does not quarrel with these general principles pertaining to usual or typical “general” disability provisions, it argues that the final proviso of subparagraph (b) in the subject policy takes this case outside usual rules and alters the result in its favor. That proviso follows:
“[Pjrovided further, that he does not engage in any occupation, work or employment for wage or profit during any such disability.”
Bankers contends that under this so-called “conduct” clause, Moots is barred from all “general” disability benefits because, some four months after they terminated his payments, he accepted limited employment as a school bus driver. Although no Kansas cases have been found construing a similar “conduct” provision in a general disability insurance clause, other courts have done so.
In Stoner v. New York Life Ins. Co., 90 S.W.2d 784 (Mo. App. 1936), the policy contained a general clause defining total disability to be when the insured “is so disabled by bodily injury or disease that he is wholly prevented from performing any work, from following any occupation, or from engaging in any business for remuneration or profit . . . .” 90 S.W.2d at 787. The Stoner court held that the concluding phrase of the insuring clause did not alter the general insuring clause of the policy. The Stoner court held:
“[T]he insuring clause gives the right to benefits when insured is disabled so as to prevent the doing of certain things. The last clause but negatives his right to benefits when he is not so prevented, but when he is able so to engage and does so engage. They are correlative clauses. Both are to be given the same construction. It would be anomalous that the language employed when found in the insuring clause in one part of the policy should be given one construction and when found in another part of the policy should be given another. In the insuring clause, such language is construed to mean that insured is totally disabled when he cannot perform the material and substantial acts of his occupation [or others for which he is reasonably suited] and is thereupon entitled to benefits; in the last (so-called conduct) clause, it is to be construed as meaning that plaintiff is not totally disabled when he is able to and does perform the substantial and material acts of his occupation [or others for which he is reasonably suited] and is not in such event entitled to benefits. There is then no conflict between the two clauses. The latter has no effect to limit or vary the former. It is but declaratory of the former. It was doubtless inserted in the policies to enable the defendant to review the condition of plaintiff and his disabilities from time to time and to discharge itself of liability under the policies when it is found that plaintiffs disabled condition has so far improved that he is again able substantially to carry on his occupation or substantially to engage in others [for which he is reasonably suited].” 90 S.W.2d at 793.
In Mutual Life Ins. Co. v. Clark, 255 Ark. 741, 502 S.W.2d 110 (1973), the policy in issue defined total disability as “disability which wholly and continuously disables the member so that he can perform no duty pertaining to his occupation and during which he is not engaged in any occupation for remuneration or profit.” 255 Ark. at 745. The Arkansas court likewise refused to construe the clause literally, holding that the insured was not required to prove that he was not engaged in any occupation for remuneration or profit as a condition precedent to recovery. 255 Ark. at 748.
Considerations of policy militate a similar result. It is well known that severely disabled persons, for reasons of physical and mental health, are frequently encouraged by their physicians to take some type of work as therapy. If insureds were able to follow such valuable medical advice only at the peril of losing their only real means of financial survival, we would create for the already disabled a heavy burden indeed. Further, an opposite result would put all insureds at the absolute mercy of their insurers. In such a situation, the insurer could simply terminate disability benefits, wait until the insured is driven by dire necessity to seek any kind of employment, and then justify the termination retrospectively based on the subsequent employ ment. In a society which values work and applauds extraordinary effort by the handicapped, such a result would be anomalous, to say the least.
For all of these reasons we hold that a “conduct clause” appended to a general disability insuring agreement, which states, “provided further, that [the insured] does not engage in any occupation, work or employment for wage or profit during any such disability”:
(a) does not require a departure from customary rules of construction pertaining to the degree of disability necessary for recovery under general disability insurance policies, and
(b) is construed to be merely the negative or mirror image of the insuring clause; as such, the insured is barred from recovery only if he is able to perform “any work or occupation for which he is reasonably fitted by education, training or experience.”
Accordingly, we reverse the decision of the trial court and remand with directions to proceed with trial to determine whether Moots can prove he is “generally” disabled in accordance with this opinion. | [
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Briscoe, J.:
Lorraine Alvarado, the plaintiff, appeals a judgment in favor of defendants Dodge City, Aleo Discount Stores, and Robert Fox on her civil rights, false arrest, libel, and assault and battery claims. The claims arose out of the plaintiff s detention on January 16,1982, as a suspected shoplifter by Robert Fox, an off-duty city policeman working as a security guard for Aleo.
On that date, the plaintiff bought several items, including a pair of women’s shoes, at the Aleo store. Fox had observed her in the store, followed her outside, and asked her to return inside. The exact conversation is disputed but, essentially, Fox identified himself as a police officer, displayed his badge, and told the plaintiff he suspected her of shoplifting the shoes she was wearing. When the plaintiff refused to go voluntarily, Fox told her she was under arrest and took her to a storage area at the back of the store. He ordered the plaintiff to remove a shoe and asked a clerk to check whether the plaintiff s shoes came from the store. According to the plaintiff and the clerk, the shoes were obviously old and well worn. Fox testified they were “fairly new” with some scratches and worn spots. The clerk tóld Fox: “We don’t carry these shoes,” but he told her to check anyway.
While the clerk was checking the shoes, Fox .searched the plaintiff s purse and shopping bag, but found nothing. After the clerk confirmed the shoes were not stolen, Fox released the plaintiff. He filled out a report for Aleo and an arrest report, which he filed with the Dodge City Police Department.
The plaintiff raised four claims against the three defendants: false imprisonment, assault and battery, defamation, and denial of civil rights under 42 U.S.C. § 1983 (1982). The City moved for summary judgment on the civil rights claim. The trial court entered summary judgment on that claim in favor of all three defendants without making any findings of fact or conclusions of law. The trial court also dismissed all other claims against the City before trial. The false imprisonment, assault and battery, and defamation claims against Fox and Aleo were tried before a jury. The jury found for the defendants and the court entered judgment accordingly.
The plaintiff raises five issues on appeal: (1) whether the trial court erred in entering summary judgment in favor of the defendants on the civil rights claim; (2) whether the trial court erred in instructing the jury on the merchant’s privilege to detain rather than a police officer’s privilege to arrest; (3) whether the trial court erred in denying the plaintiff s requested instruction defining probable cause; (4) whether the trial court erred in excluding evidence of Alco’s own standards for detaining suspected shoplifters; and (5) whether there was sufficient evidence to support the verdict.
THE CIVIL RIGHTS CLAIM.
The plaintiff argues the trial court erred in entering summary judgment in favor of the defendants on the civil rights claim.
Summary judgment is proper only when the pleadings, affidavits and discovery record show there are no genuine issues of material fact, and that the moving party is entitled to judgment as a matter of law. Lostutter v. Estate of Larkin, 235 Kan. 154, 164, 679 P.2d 181 (1984). In reviewing a summary judgment, an appellate court must read the record in the light most favorable to the party who opposed the motion. McAlister v. Atlantic Richfield Co., 233 Kan. 252, Syl. ¶ 4, 662 P.2d 1203 (1983). The court therefore must give the plaintiff the benefit of all reasonable inferences arising from the record available to the trial court when it ruled on the motion.
The trial transcript cannot be considered on this issue. The trial court had only the pleadings and discovery record when it granted summary judgment.
There are two essential elements to a civil rights claim under 42 U.S.C. § 1983: (1) that the conduct complained of was committed by a person acting under color of state law, and (2) that the conduct deprived a person of rights, privileges or immunities secured by the Constitution and laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 68 L.Ed.2d 420, 101 S.Ct. 1908 (1981). The state courts are a proper forum for federal civil rights actions under 42 U.S.C. § 1983. Gumbhir v. Kansas State Board of Pharmacy, 231 Kan. 507, 509, 646 P.2d 1078 (1982), cert. denied 459 U.S. 1103 (1983).
A. The Claim Against Fox.
(i) Color of Law.
The defendants argue that Fox could not act under color of law because he was working as a private security guard while off duty.
They argue there must be official police department sponsorship of off-duty activities for those activities to be under color of law. This argument is without merit. An off-duty police officer may act under color of law. “ ‘It is the nature of the act performed, not the clothing of the actor or even the status of being on duty, or off duty, which determines whether the officer has acted under color of law.’ ” Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir. 1975); Johnson v. Hackett, 284 F.Supp. 933, 937 (E.D. Pa. 1968),
Here, Fox identified himself as a police officer, displayed his badge, told the plaintiff she was under arrest, and filed an arrest report with the police department. According to Fox, it was the City’s policy that an off-duty officer “was to be considered on duty, and if he saw illegal action going on, he was to take steps to prevent it.” The record was sufficient to preserve the factual claim that Fox acted under color of state law. See Layne v. Sampley, 627 F.2d 12 (6th Cir. 1980); Davis v. Murphy, 559 F.2d 1098 (7th Cir. 1977); Stengel v. Belcher, 522 F.2d 438.
(ii) Deprivation of Rights.
The plaintiff alleged that Fox arrested and searched her without probable cause. Arrest and search without probable cause are grounds for a civil rights claim under 42 U.S.C. § 1983. Monroe v. Pape, 365 U.S. 167, 5 L.Ed.2d 492, 81 S.Ct. 473 (1961), overruled on other grounds, Monell v. New York City Dept. of Social Services, 436 U.S. 658, 56 L.Ed.2d 611, 98 S.Ct. 2018 (1978); B.C.R. Transport Co., Inc. v. Fontaine, 727 F.2d 7 (1st Cir. 1984); Smith v. City of Oklahoma City, 696 F.2d 784 (10th Cir. 1983).
a. Arrest.
The record was sufficient to preserve the factual claim that there was an arrest. K.S.A. 1984 Supp. 22-2202(4) defines arrest as “the taking of a person into custody in order that such person may be forthcoming to answer for the commission of a crime.” According to Fox’s deposition, he told the plaintiff she was under arrest and ordered her back into the store. He testified she was not free to leave, and described the incident as an arrest in his police report. Fox detained the plaintiff to answer for a crime, for he acted on what he considered probable cause to believe she had committed misdemeanor theft.
b. Probable Cause.
Whether Fox had probable cause to arrest the plaintiff was an unresolved question of fact.
“Probable cause for arrest exists if facts and circumstances within an arresting officer’s knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe that an offense has been or is being committed.” State v. Press, 9 Kan. App. 2d 589, Syl. ¶ 2, 685 P.2d 887 (1984); State v. Abu-Isba, 235 Kan. 851, 854, 685 P.2d 856 (1984).
In his deposition, Fox explained why he believed the plaintiff had stolen a pair of shoes. He “felt” she had spent an unduly long time (five minutes) looking at a pair of shoes. A reasonable person could find Fox’s belief that this was suspicious activity to be unreasonable. Fox thought he saw the plaintiff put the shoes on after she left the shoe department. The plaintiff testified in her deposition, however, that when she tried on the shoes she was next to the shoe rack. There is nothing suspicious about trying „on shoes in a shoe department.
Fox thought he saw the plaintiff picking at the price tag on the shoes, and found a loose tag on the floor when the plaintiff moved on. The code number on the tag showed it was not from the shoe department, and the $2.00 price on the tag Fox found on the floor would be extremely low for a pair of shoes, even shoes on sale at a discount store. Fox could have checked the code number on the price tag he found on the floor against a tag from the shoe department, but did not. Instead, he asked a clerk, who may have been busy with a customer, if the tag was like the ones on the store’s shoes.
Fox observed the plaintiff go through the check-out line, but failed to notice that she bought a pair of shoes. A reasonable person could conclude that Fox did not have sufficient reason to make the initial arrest.
Even if there was probable cause for the initial arrest, a reasonable person could conclude there was no reason to search plaintiff s bag and purse.
Fox had a specific suspicion — that the plaintiff stole the shoes she was wearing. In their depositions, the plaintiff and a shoe department clerk described the shoes as old and well worn. Even Fox conceded they had scratches and worn spots. After inspecting the shoes, Fox asked the clerk if they were from Aleo. She told him positively that they were not, but he had her check in the shoe department and went on to search the plaintiff s purse and shopping bag. According to the plaintiff s deposition, the clerk returned and reconfirmed that the shoes were not stolen before Fox searched the bag and purse.
The bag and purse would have been within the scope of a search incident to a lawful arrest (New York v. Belton, 453 U.S. 454, 69 L.Ed.2d 768, 101 S.Ct. 2860 [1981]; State v. Sabater, 3 Kan. App. 2d 692, 601 P.2d 11, rev. denied 227 Kan. 928 (1979), cert. denied 446 U.S. 918 (1980), but if in fact Fox should have known his initial suspicion was groundless, probable cause for the arrest would have dissipated, making any further detention and search unlawful. United States v. Coughlin, 338 F. Supp. 1328 (E.D. Mich. 1972); People v. Quarles, 88 Ill. App. 3d 340,43 Ill. Dec. 497, 410 N.E.2d 497 (1980); McNeely v. State, 277 So. 2d 435 (Miss. 1973); Castellano v. State, 585 P.2d 361, 366 (Okla. Crim. 1978).
Whether Fox should have known his initial suspicion was groundless is a question of fact left unresolved by the record on summary judgment. The trial court erred in entering summary judgment in favor of Fox.
c. Immunity.
In their answers, the defendants raised good faith immunity as a defense. Although the parties have not addressed the issue, the court must because a judgment should be affirmed if it is correct for any reason.
In Pierson v. Ray, 386 U.S. 547, 557, 18 L.Ed.2d 288, 87 S.Ct. 1213 (1967), the court held that a defense of “good faith and probable cause” is available to defendant police officers in actions under 42 U.S.C. § 1983. Good faith or qualified immunity is an affirmative defense, to be pleaded and proved by the defendant. Gomez v. Toledo, 446 U.S. 635, 640-41, 64 L.Ed.2d 572, 100 S.Ct. 1920 (1980). See Harlow v. Fitzgerald, 457 U.S. 800, 819, 73 L.Ed.2d 396, 102 S.Ct. 2727 (1982).
In Harlow, the court limited the subjective element of good faith or qualified immunity, holding:
“[G]ovemment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. . . . [Citations omitted.]
“. . . If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained. But again, the defense would turn primarily on objective factors.” 457 U.S. at 818-19.
See McElveen v. County of Prince William, 725 F.2d 954, 957-58 (4th Cir.), cert. denied_U.S._, 105 S.Ct. 88 (1984).
In Deary v. Three Un-named Police Officers, 746 F.2d 185 (3d Cir. 1984), the court considered the effect of Harlow on the immunity defense in a civil rights claim based on a warrantless arrest. The court noted that the requirement of probable cause for an arrest is clearly established law. Because all police officers should know the requirement, the only real issue was whether the arresting officers had probable cause. The court explained:
“[0]n the facts and circumstances of this case, a finding of probable cause— which would preclude the finding of a constitutional violation for section 1983 purposes — and a finding of entitlement to qualified immunity — which would preclude liability even if the defendants had violated Deary’s constitutional rights — both turn on the reasonableness of the defendant police officers’ actions in arresting and detaining Deary — a determination which we have held presents a question of fact for the jury.
“Inasmuch as the reasonableness of the actions taken by the defendant police officers will determine the question of probable cause, it appears to us that although the doctrines which we have been discussing may be analytically different [citations omitted], both depend upon the jury’s answer to the question: was probable cause present?” 746 F.2d at 192.
See Losch v. Borough of Parkesburg, Pa., 736 F.2d 903, 910 (3d Cir. 1984); Trejo v. Perez, 693 F.2d 482, 487-88 (5th Cir. 1984).
Here, as in Deary, the civil rights claim is based on a warrant-less arrest. Because Officer Fox must be charged with knowledge of the probable cause requirement, subjective good faith cannot establish immunity. His liability depends on the objective test for probable cause.
B. The Claim Against the City.
Under 42 U.S.C. § 1983, a local government cannot be held liable for acts of its agents merely under a respondeat superior theory. Local governments are liable only when execution of a government policy or custom inflicts the injury. Monell v. New York City Dept. of Social Services, 436 U.S. at 690-94.
Cities are liable for unconstitutional policies officially adopted through formal channels. Tacit authorization or deliberate indifference to unconstitutional actions of employees is also sufficient to establish a government policy or custom. Tacit authorization or deliberate indifference may be inferred when there is a persistent pattern of misconduct. A single incident is not sufficient unless it is so outrageous that it warrants an inference that the city was at fault. Wellington v. Daniels, 717 F.2d 932 (4th Cir. 1983); Languirand v. Hayden, 717 F.2d 220 (5th Cir. 1983), cert. denied 467 U.S. 1215 (1984); Vela v. White, 703 F.2d 147 (5th Cir. 1983); Hays v. Jefferson County, Ky., 668 F.2d 869 (6th Cir.), cert. denied 459 U.S. 833 (1982); Turpin v. Mailet, 619 F.2d 196 (2d Cir.), cert. denied 449 U.S. 1016 (1980); Owens v. Haas, 601 F.2d 1242 (2d Cir.), cert. denied 444 U.S. 980 (1979). See Rizzo v. Goode, 423 U.S. 362, 46 L. Ed.2d 561, 96 S.Ct. 598 (1976).
Here, the plaintiff alleged only that Fox was a pbliceman employed by the city. She did not allege that Fox was following a city custom or policy of making arrests without probable cause, or of harassing minorities. The summary judgment record contains nothing to support the existence of a city custom or policy. In her deposition, Tana Freel testified that Fox had used force in a prior arrest at Aleo, but did not state or imply that the prior arrest was unlawful. There was no evidence of a pervasive pattern of conduct by Fox or other officers. Nor was there evidence of any outrageous single incident. There was no evidence of tacit authorization or unlawful conduct that could establish the existence of a city custom or policy.
Plaintiff s counsel made an oral proffer of evidence to support the existence of a city custom or policy at a hearing on November 29. He stated that witnesses would testify that the police discriminated against minorities and that city officials knew it. He also stated that witnesses would testify that Fox had been overzealous in two prior incidents.
Under K.S.A. 60-256(c), the record on a motion for summary judgment consists of the pleadings, discovery record, and affidavits. Oral proffers of proof should not be considered in deciding a motion for summary judgment. Timmermeyer v. Brack, 196 Kan. 481, Syl. ¶ 2, 412 P.2d 984 (1966). See Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 792, 420 P.2d 1019 (1966).
The trial court did not err in entering summary judgment in favor of the city.
C. The Claim Against Aleo.
Private parties may be liable under 42 U.S.C. § 1983 if they act jointly with state officials. Dennis v. Sparks, 449 U.S. 24, 66 L.Ed.2d 185, 101 S.Ct. 183 (1980). See Lugar v. Edmondson Oil Co., 457 U.S. 922, 941, 73 L.Ed.2d 482, 102 S.Ct. 2744 (1982); Duriso v. K-Mart No. 4195, Div. of S.S. Kresge Co., 559 F.2d 1274 (5th Cir. 1977).
Here, the record on summary judgment establishes only that Aleo had employed Fox as a security guard for several Christmas seasons. Just as a respondeat superior theory cannot support the liability of a local government, it should not support the liability of a private party. A person must cause a deprivation of rights to be liable under 42 U.S.C. § 1983. Monell v. New York City Dept. of Social Services, 436 U.S. at 691-92; Rizzo v. Goode, 423 U.S. at 371, 375; Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983).
The record does not show that Aleo did any more than hire Fox. There is nothing indicating that it authorized, encouraged or approved illegal actions. The trial court did not err in entering summary judgment in favor of Aleo.
JURY INSTRUCTION ON MERCHANT’S PRIVILEGE TO DETAIN.
Over the plaintiff s objection, the trial court instructed the jury on the merchant’s privilege to detain suspected shoplifters (PIK Civ. 2d 14.09 and 14.21A [1981 Supp.]). K.S.A. 21-3424(3) is the source of the merchant’s privilege. See Codner v. Skaggs Drug Centers, Inc., 224 Kan. 531, 533, 581 P.2d 387 (1978). Subsection (2) of the statute provides: “This section shall not apply to acts done in the performance of duty by any law enforcement officer of the state of Kansas or any political subdivision thereof.”
Fox’s own testimony established that he was acting in a dual capacity when he arrested the plaintiff. He was performing his duties as an Aleo security guard and his duties as a police officer. Admissions of a party are binding and conclusive upon that party. Simpson v. Davis, 219 Kan. 584, Syl. ¶ 4, 549 P.2d 950 (1976); Carnegie v. Gage Furniture, Inc., 217 Kan. 564, Syl. ¶ 2, 538 P.2d 659 (1975).
Fox’s employment by Aleo did not affect his duties and responsibilities as a police officer. He should be held to the standards required of a police officer. Aleo should be held to the same standards. Under the doctrine of respondeat superior, as Fox’s employer, Aleo is liable for his tortious acts committed within the scope of his employment. McGuire v. Sifers, 235 Kan. 368, 378, 681 P.2d 1025 (1984).
The store manager testified that he had a policy of hiring off-duty police officers as security guards. The practice has obvious advantages for Aleo. The store receives the benefit of the officer’s training, experience and legal authority. Because the store benefits from the practice, it should bear any corresponding burdens. A store that hires off-duty police officers as security guards should be held to the standards required of police officers when an officer-employee arrests a suspected shoplifter.
The merchant’s privilege to detain differs from a police officer’s privilege to arrest. A merchant may detain a person upon probable cause to believe that he or she has committed, is committing, or is about to commit a theft. K.S.A. 21-3424(3). The statute does not distinguish between felony and misdemeanor theft.
A police officer cannot make a preventive arrest upon probable cause to believe a suspect is about to commit a crime. Authority under those circumstances is limited to an investigative detention under Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968), and K.S.A. 22-2402.
Nor may an officer arrest merely upon probable cause to believe the suspect has committed or is committing a misdemeanor. K.S.A. 1984 Supp. 22-2401 sets out the standards for arrest by a police officer. Under subsections (c)(2) and (d), a warrantless misdemeanor arrest requires either exigent circumstances or a misdemeanor committed in the officer’s presence.
The arrest by Fox would be lawful only if the requirements of K.S.A. 1984 Supp. 22-2401 were satisfied. On retrial the court should give an instruction based on the statute.
PIK Civ.2d 14.21 is outdated and should not be used. It is based on case law decided before the Code of Criminal Procedure went into effect in 1970. See State v. Hart, 200 Kan. 153, 160, 434 P.2d 999 (1967). K.S.A. 1984 Supp. 22-2401(c)(2) changed the law on warrantless misdemeanor arrests. State v. Flummerfelt, 235 Kan. 609, 612-13, 684 P.2d 363 (1984).
JURY INSTRUCTION DEFINING PROBABLE CAUSE.
The trial court erred in denying the plaintiff s request for an instruction defining probable cause. The term has a legal definition likely to aid jurors in assessing whether Fox’s actions were reasonable.
On retrial the court should give an instruction based on State v. Abu-Isba, 235 Kan. at 854, and State v. Press, 9 Kan. App. 2d 589, Syl. ¶ 2, but should follow the practice of PIK Civ. 2d by substituting the term “reasonable belief’ for “probable cause.” The avoidance of the word “probable” will prevent confusion because “evidence sufficient for probable cause need not show that guilt is probable; it need only convince a ‘reasonable officer that guilt is more than a possibility.’ ” State v. Walters, 8 Kan. App. 2d 237, 655 P.2d 947 (1982), rev. denied 232 Kan. 876 (1983).
EXCLUSION OF ALCO’S OWN STANDARDS FOR DETAINING SHOPLIFTERS.
The plaintiff argues that the trial court erred in excluding evidence of Alco’s own standards for detaining suspected shoplifters. The plaintiff offered a poster and shoplifting control manual setting out the company policy in some detail.
Alco’s own shoplifting detention standards are stricter than the probable cause required by K.S.A. 1984 Supp. 22-2401. A merchant’s liability should depend on the minimum legal standards established by statute rather than the merchant’s own standards. See Jones v. Montgomery Ward, 49 Or. App. 231, 236-37, 619 P. 2d 907 (1980). The trial court did not err in excluding the evidence.
SUFFICIENCY OF THE EVIDENCE.
Because the errors in the instructions require reversal, we need not address the sufficiency of the evidence.
The summary judgment in favor of Aleo and the City on the civil rights claim is affirmed; dismissal of all state law tort claims against the City is also affirmed. The summary judgment in favor of Fox on the civil rights claim is reversed, as well as the judgment on the state law tort claims against Aleo and Fox. This case is remanded for trial of the civil rights claim against Fox, and retrial of the state law tort claims against Fox and Aleo. | [
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Woleslagel, J.:
Nancy Oehme (plaintiff-appellant) appeals from the dismissal of her damage suit filed September 21, 1983, accusing Frederick, her former husband, of fraud in inducing her to enter into a property settlement agreement approved by the court and incorporated in a divorce decree on June 15, 1981. She claims he failed to reveal over one hundred thousand dollars of assets in his possession which she knew nothing about until November, 1982. She seeks compensatory and punitive damages.
She does not ask that the agreement or the judgment approving it be set aside or modified. To the contrary, she affirms the contract and accepts the judgment, but maintains she can pursue this independent tort action.
The trial court noted that Frederick’s contentions in that court were the same as we understand them to be now: This is an unauthorized collateral attack on the judgment; if Nancy is to obtain a greater share of the marital property, she must attack the judgment directly under statutes providing relief from judgments — K.S.A. 60-260(b)(3) relating to relief from fraud, or K.S.A. 60-260(b)(6) relating to “any other reason justifying relief from the operation of the judgment.”
The journal entry dismissing this suit adopted Frederick’s contentions. In addition, it explained that no “specific support is found in Kansas law” for this suit. It also quotes 24 Am. Jur. 2d, Divorce and Separation § 505 (1983), as stating an attack is collateral if it “has an independent purpose other than impeaching or overturning the judgment.” The court also reasoned that the divorce action and this action both “have arisen from the same set of facts, i.e., the property accumulated by the parties during the course of their marriage,” and it concluded that ending up with two judgments on the same set of facts was neither efficient nor legal.
As we analyze this case the issues are simple and two in number: (1) May a party in Kansas maintain a separate action for fraud in inducing a property settlement agreement incorporated in a divorce decree; and (2) if so, have any circumstances been shown that would bar the action in this case? Answering the first proposition in the affirmative and the second in the negative, we reverse.
In Bushey v. Coffman, 109 Kan. 652, 201 Pac. 1103 (1921), the court held that a party to a partially performed contract may affirm it and also sue for fraudulent inducement. We see no legally significant difference in that this contract was fully performed. See also Hawthorn-Mellody, Inc. v. Driessen, 213 Kan. 791, 518 P.2d 446 (1974).
According to Frederick, this general principle cannot apply because all facts were litigated in the divorce case and the agreement was incorporated in the judgment. Being incorporated, he says, the contract terminated subject only to court construction of what the contract meant. He seems ‘to conclude that the judgment is all that is left, so any action has to seek a modification of the judgment. These conclusions appear to result from an erroneous interpretation of In re Estate of Sweeney, 210 Kan. 216, 500 P.2d 56 (1972), in which the result in the case did turn on interpreting the contract. But the case does not support Frederick’s conclusions, as will be shown anon.
Nothing shown us in this appeal gives us any indication that facts relating to the issue of fraud were litigated in the divorce case. The province, and we believe the customary practice, of our trial courts in passing approval on property settlement stipulations is stated in the case of Cook v. Cook, 7 Kan. App. 2d 179, 638 P.2d 980, rev’d 231 Kan. 391, 646 P.2d 464 (1982). While the two opinions reach incompatible results, they are compatible as to the function of the trial court. By its nature, fraud in the inducement will seldom appear on the face of an agreement; when nothing seems questionable, it would be a rare and unpopular trial judge who looks for and develops facts relative to fraud.
In National Bank v. Bartges, 120 Colo. 317, 210 P.2d 600 (1949), the court interpreted Kansas law when a wife pursued her damage suit for fraud inducing a property settlement in a divorce case against her deceased husband’s executors. It approved of the trial court’s conclusion that “[t]he parties in the divorce case in legal effect withdrew the property division issue from the consideration of the court by their contract of settlement.” 120 Colo, at 327. It observed that “[t]he issue of fraud in the procurement of said agreement was not raised by the pleadings in the Kansas court and no evidence was considered on any issue of fraud.” 120 Colo, at 327. Nothing has been brought to us indicating that this divorce case was any different in presentation or court inquiry. Facts as to fraud are simply not shown to have been advanced or considered.
Addressing the proposition that court approval of a settlement agreement causes the contract to lose its effect as a contract, we note that before the enactment of K.S.A. 60-1610(b)(3) a trial court would incorporate the agreement on request or pursuant to court inquiry. With the enactment of the statute, incorporation became automatic unless something pointed toward unfairness, improper influence, or fraud. When approved and incorporated by the court, the contract continued to be effective before adoption of the statute. We believe it still does. The certainty of an assertion that it no longer bound the parties was questioned in French v. French, 171 Kan. 76, 81, 229 P.2d 1014 (1951). If a question remained after French, it was answered by Thoele v. Thoele, 176 Kan. 655, 657, 272 P.2d 1082 (1954), when the court held that the agreement “may be sued upon separately and apart from the judgment of the decree.”
Two cases decided after enactment of the statute are of like effect — and conclusive. In In re Estate of Sweeney, 210 Kan. 216, an executor sought to enforce a child support provision in an incorporated property settlement agreement. The case turned upon interpretation of the contract; namely, whether the contract contemplated support after the death of the contractor. In reaching its decision the court made two observations: (1) it opined that “the confirmation of the agreement and its merger into the decree does not abolish the contractual aspects of the agreement,” and (2) “the effect of the court’s confirmation is to create a hybrid in the law having the characteristics of a judgment and retaining the contractual rights of the parties.” 210 Kan. at 224. In Long v. Brooks, 6 Kan. App. 2d 963, 636 P.2d 242 (1981), we faced a dormant judgment and set aside a contempt finding which necessarily relied on failure to comply with the judgment, since contempt lies only for dishonor of a judgment and not for failure to fulfill a contract. The contract, in fact, was not claimed to be a relevant factor. Our recital of the law then is as clear as we could make it now. “A property settlement agreement confirmed in a divorce decree, while retaining its character as a contract, becomes as well a judgment of the court.” 6 Kan. App. 2d 963, Syl. ¶ 1.
The trial judge mentioned that he could find no Kansas case which specifically authorized this suit. Neither have we been directed to one or able to find one, and it appears that this is the first time these exact issues have been raised in the appellate courts of Kansas. In addition to the Colorado case, National Bank v. Bartges, 120 Colo. 317, we do find Hood v. Hood, 335 F.2d 585 (10th Cir.), cert. denied 379 U.S. 915 (1964), which seems equally persuasive. In it, parties divorced in Kansas submitted a property settlement agreement which was approved and incorporated in the decree. The wife later brought a successful damage suit for deceit in the inducement. In affirming the trial court, the 10th Circuit stated, “We are of the opinion, that under the decisions of the Supreme Court of Kansas, the decree . . . should not be construed to have the effect of canceling and wiping out the property settlement part of the stipulation as an operative contract.” Hood v. Hood, 335 F.2d at 590. It also observed that “[a]n action to recover damages for fraud inducing a contract is founded on tort and not on contract and proceeds on the theory of affirmance of the contract fraudulently procured.” Hood v. Hood, 335 F.2d at 590.
The argument that this suit is an indirect or collateral attack on the judgment must also fail. For a judgment to be a bar to a new suit under the doctrine of res judicata, two conditions must be fulfilled. The judgment must have been obtained without fraud or collusion and there must be an identity of the thing sued for. In re Estate of Reed, 233 Kan. 531, 535, 664 P.2d 824, cert. denied 464 U.S. 978 (1983). See also Parsons Mobile Products, Inc. v Remmert, 216 Kan. 138, 531 P.2d 435 (1975), and 24 Am. Jur. 2d, Divorce and Separation § 444 (1983), for similar comments.
Frederick relies on Blair v. Duncan, 216 Kan. 718, 533 P.2d 1224 (1975), in which the court affirmed the dismissal of a divorced husband’s suit for fraud. The reason for that dismissal, however, was that the issue had already been litigated pursuant to a motion to modify the decree. In this case no such motion has been filed or litigated.
Res judicata is improper here for an additional reason. It was not properly before the trial court or before us now. This suit was filed September 21, 1983, and the motion to dismiss was filed eight days later. But estoppel and res judicata are affirmative defenses and must be affirmatively pleaded. If not so pleaded, they are waived as a defense. K.S.A. 60-208(c); U.S.D. No. 490 v. Celotex Corp., 6 Kan. App. 2d 346, Syl. ¶ 4, 629 P.2d 196, rev. denied 230 Kan. 819 (1981).
This brings us to the final proposition urged in support of dismissal; namely, that fraud can be raised only by setting aside the divorce judgment pursuant to K.S.A. 60-260(b). In his brief Frederick states:
“Defendant does not here seek to deny Plaintiff the right to her day in court on the allegations of fraud which she has brought. Defendant only seeks to insure that Plaintiffs remedy is pursued in accordance with the letter and intent of statutory provisions for seeking such relief.”
If this assertion seems strange because of the filing of the motion to dismiss, it becomes more so upon realizing that relief under that statute is not available.
Only three parts of K.S.A. 60-260 are material here. In subsection (b)(3) it specifies fraud as an item for which relief may be granted. In subsection (b)(6) it authorizes a motion “for any other reason justifying relief.” It also provides that motions under (b)(3) must be brought within one year after the judgment is entered. It contains one additional provision: “This section does not limit the power of a court to entertain an independent action to relieve a party from a judgment . . .
The divorce decree was entered June 15, 1981. This petition alleges the fraud was undiscovered until sometime in November, 1982. This forecloses the use of subsection (b)(3). Subsection (b)(6) allows for filing the motion “within a reasonable time.” Chowning, Inc. v. Dupree, 6 Kan. App. 2d 140, Syl. ¶ 1, 626 P.2d 1240 (1981), foreclosed the use of (b)(6), however, by deciding the six enumerated grounds for relief — of which fraud, (b)(3), is one — were mutually exclusive.
Independent of K.S.A. 60-260, Nancy always had a right to utilize K.S.A. 60-513(a)(3), which permits this action, brought within two years. She presents a constitutional point which we do not reach as it is unnecessary for the decision we reach.
Reversed and remanded. | [
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Abbott, J.:
This is an appeal in a workers’ compensation case from an order changing the treating physicians from a medical doctor to two chiropractic doctors, and ordering the employer to pay mileage and per diem in connection with the authorized medical treatment by the primary treating doctor located in Mt. Horeb, Wisconsin.
We raise the question of jurisdiction on our own motion. City of Overland Park v. Barron, 234 Kan. 522, Syl. ¶ 1, 672 P.2d 1100 (1983). When the district court lacks jurisdiction to enter an order, an appellate court does not acquire jurisdiction over the subject matter on appeal. In re Lakeview Gardens, Inc., 227 Kan. 161, 173, 605 P.2d 576 (1980).
The jurisdictional issue arises as follows: The claimant, Frank Dinkel, sustained a back injury while employed by Graves Truck Lines. The administrative law judge made an award that included permanent partial disability compensation, and also ordered “that claimant is entitled to future medical care from Dr. Reschly until further order of this Judge or the Director.”
On appeal, the district court judge adopted the administrative law judge’s award nearly verbatim, including the above provision for future medical care. Some five and a half months later, claimant filed a motion to modify the journal entry by substituting Dr. W. Alex Cox of the Gonstead Clinic of Chiropractic in Mt. Horeb, Wisconsin, and Dr. D. F. Rupp of Rupp Chiropractic Center in Garden City, Kansas, as the treating physicians, instead of Dr. Reschly. In the written reply, respondent maintained that the motion should be filed with the director or administrative law judge pursuant to K.S.A. 44-528 and K.A.R. 51-19-1. The district court heard claimant’s testimony, sustained his motion for modification of treating physicians, and ordered respondent to pay claimant’s treatment costs, necessary mileage, per diem and attorney fees. Respondent timely appeals.
The Workmen’s Compensation Act is complete and exclusive within itself and provides procedures on each phase of a claimant’s right to compensation. Hunter v. General Motors Corporation, 202 Kan. 166, 172, 446 P.2d 838 (1968); Walker v. Davis Van & Storage Co., 198 Kan. 452, 455, 424 P.2d 473 (1967); Bahr v. Iowa Beef Processors, Inc., 8 Kan. App. 2d 627, 632, 663 P.2d 1144, rev. denied 233 Kan. 1091 (1983). A district court’s jurisdiction is set forth in K.S.A. 1984 Supp. 44-556(b) as follows: “On any such appeal the district court shall have jurisdiction to grant or refuse compensation, or to increase or diminish any award of the director as justice may require.” Any party to the proceedings may appeal from a director’s decision to the district court where the cause of action arose. K.S.A. 1984 Supp. 44-556(a).
A trial judge now has authority to enforce its judgment as well as to modify it as authorized by law. In Dieter v. Lawrence Paper Co., 237 Kan. 139, Syl. ¶ 1, 697 P.2d 1300 (1985), the Supreme Court stated:
“In view of the 1979 amendment to K.S.A. 44-556(c), the procedural provisions of the Kansas Code of Civil Procedure pertaining to entry of judgment, post-judgment motions, and appeals are applicable to workers’ compensation appeals pending in the district court to the same extent as they are applied in other types of civil cases.”
Here, however, the judgment was final, and as we read the Workmen’s Compensation Act, the legislature intended to give, and did give, exclusive jurisdiction to the workers’ compensation director to authorize a change of treating physician under the facts before us here.
K.S.A. 44-510 states in pertinent part:
“(a) It shall be the duty of the employer to provide the services of a physician, and such medical, surgical and hospital treatment, including nursing, medicines, medical and surgical supplies, ambulance, crutches, and apparatus, and transportation to and from the home of the injured employee to a place outside the community in which such employee resides, and within such community if the director in the-director’s discretion so orders, as may be reasonably necessary to cure and relieve the employee from the effects of the injury. All fees, transportation costs and charges under this section shall be subject to regulations by the director and shall be limited to such as are fair and reasonable. The director shall have jurisdiction to hear and determine all disputes as to such charges and interest due thereon.
“(c) If the services of the physician furnished as above provided are not satisfactory to the injured employee, the director may authorize the appointment of some other physician subject to the limitations set forth in this section and the regulations adopted by the director.” (Emphasis supplied.)
Here, the trial court was not exercising appellate jurisdiction over a director’s decision when it heard and sustained the motion to change physicians. The judgment on the appeal was final and the motion to change physicians had no relationship to the issues on appeal. Nor does it come within any of the statutory provisions that allow a trial court to modify a final judgment. The motion is simply one to change treating physicians, which is a new issue the legislature intended to be heard first by the workers’ compensation director. The attempt to retain jurisdiction (if it was an attempt as opposed to a clerical act of simply retyping the administrative law judge’s order) for modification of future medical care in the journal entry is inconsistent with the exclusive provisions of the Workmen’s Compensation Act and thus ineffective. We thus hold the trial court lacked jurisdiction to consider the motion to change treating physicians, and the order doing so is vacated and remanded with directions to enter an order dismissing the motion for lack of jurisdiction.
Vacated and remanded with directions. | [
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Harman, C.J. Retired:
This is an appeal from an order granting summary judgment to appellee Forrest Lindsey against appellant U. R. Zeller for one-half the amount which Lindsey advanced in full payment of a promissory note which the two had cosigned in behalf of Zeller’s son Larry and Lindsey’s daughter, who was Larry’s wife. The issue is whether a three-year or a five-year statute of limitations governs the -action.
In early September 1979, Larry Zeller negotiated for a loan from a Topeka bank. Appellant Zeller and appellee Lindsey agreed to cosign the note to enable him to obtain it. September 5, 1979, Larry and his wife and their fathers signed the note for $20,500 which was due and payable in one month.
According to appellee he and appellant agreed each would be responsible for half of the debt if Larry failed to pay the note. Appellee says he signed the note as an accommodation to enable Larry to get the loan and never intended to be a principal on it. Larry failed to pay the note. When appellant refused to pay his half, appellee paid the entire loan in a series of three payments which were completed February 4, 1980. The bank then assigned all its rights and interest in the note to appellee.
Appellee commenced this suit March 15, 1983, seeking payment of one-half the amount he paid, with interest. Motions were filed by both sides, resulting ultimately in summary judgment for appellee. The court found appellee had signed the note as an accommodation party who has the rights of a surety and thus was subrogated to the rights of the bank on the note. Since the bank’s rights were on the note, appellee also had a right to sue on it, and the action was governed by the five-year statute of limitations stated in K.S.A. 60-511(1). It was not necessary for the court to address appellee’s further claim for relief based on promissory and equitable estoppel.
K.S.A. 84-3-415(1) provides:
“An accommodation party is one who signs the instrument in any capacity for the purpose of lending his name to another party to it.”
The official UCC comment to K.S.A. 84-3-415 provides in pertinent part:
“1. Subsection (1) recognizes that an accommodation party is always a surety (which includes a guarantor), and it is his only distinguishing feature. He differs from other sureties only in that his liability is on the instrument and he is the surety for another party to it.”
In Farmers State Bank v. Cooper, 227 Kan. 547, 608 P.2d 929 (1980), the court determined that the defendant, who was designated on the notes as “co-signer” or “co-maker,” was in fact an accommodation maker. The court stated:
‘The intention of the parties is the significant elerhent in determining whether a party is an accommodation party and the identity of the party accommodated.’ 2 Anderson, The Uniform Commercial Code § 3-415:9 (2d ed. 1971). Except as to holders without notice, accommodation status may be established by parol evidence when the note does not disclose the party’s status. K.S.A. 84-3-415(3).
“Two primary factors are indicative of accommodation status: (1) no benefits from the proceeds of the instrument are received by the accommodation party, and (2) the signature is needed by the maker to acquire the loan. See annotation, Who is Accommodation Party, 90 A.L.R.3d 342 (1979).” 227 Kan. at 553.
Appellee here meets both the proceeds and purpose tests and the trial court properly found that he signed as an accommodation party.
K.S.A. 84-3-415(5) provides:
“An accommodation party is not liable to the party accommodated, and if he pays the instrument has a right of recourse on the instrument against such party.”
Official UCC Comment (5) to this s.ection adds:
“Under ordinary principles of suretyship the accommodation party who pays is subrogated to the rights of the holder paid, and should have his recourse on the instrument.”
Appellant argues that the nature of the action is contribution for which a three-year statute is prescribed, citing Litwin v. Barrier, 6 Kan. App. 2d 128, 626 P.2d 1232 (1981). There Litwin and Barrier were co-makers of a note, later paid by Litwin. The obligee bank executed a written assignment to Litwin on the back of the note. Litwin sued Barrier for one-half the amount he had paid. The parties agreed they had executed the note as co-makers and not in any other capacity. This court held that the action was one for contribution under K.S.A. 60-2413 and that such a claim is considered an implied contract not in writing and is governed by the three-year statute of limitations stated in K.S.A. 60-512, obligations expressed or implied, but not in writing.
Appellee signed here not as a co-maker but as an accommodation party. Litwin clearly implies that an accommodation party would be entitled to sue on the note. 6 Kan. App. 2d at 131.
Rights of contribution may be based on an implied contract or on a written contract. See 18 C.J.S., Contribution § 2.
Appellant asserts that Blitz v. Metzger, 119 Kan. 760, 769, 241 Pac. 259 (1925) requires that appellee establish his reimbursement rights within the three-year period. Without further discussion of the matter, we believe, that with the advent of the UCC, the validity of the Blitz holding is questionable.
K.S.A. 84-3-603(2) provides:
“Payment or satisfaction may be made with the cons'ent of the holder by any person .... Surrender of the instrument to such a person gives him the rights of a transferee.”
K.S.A. 84-3-201 provides:
“(1) Transfer of an instrument vests in the transferee such rights as the transferor has therein. . .
Under these provisions the rights of a transferee are established by statute and appellee was not required to establish a right to subrogation in the courts within the three-year statutory period.
Appellant next asserts that K.S.A. 84-3-415(5) gives an accommodation party who pays a right of recourse on the instrument, but only against the party accommodated, citing Daigle v. Chaisson, 396 So. 2d 573, 576 (La. App. 1981). Halpin v. Frankenberger, 231 Kan. 344, Syl. ¶ 4, 644 P.2d 452 (1982) maktes it clear this is not the law in Kansas:
“A surety or guarantor, on paying the debt of the principal, is entitled to be subrogated to the rights of the creditor in all or any of the securities, means or remedies which the creditor has for enforcing payment against the principal debtor or against other sureties or guarantors.”
Appellant’s final argument asserts that when the note was paid the bank had no right to sue, ergo it had no right to sue on the note and therefore could assign no rights to appellee. In effect this argument has already been addressed. When appellee paid the note he obtained the right to sue either the maker or other sureties on the note. The trial court correctly determined that the suit was timely filed, no material facts were in dispute and entry of summary judgment was proper.
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Briscoe, J.:
Cynthia S. Stovall, respondent-appellant, appeals an order requiring her to pay child support.
The sole issue raised on appeal is whether res judicata precluded the trial court from awarding child support. Cynthia claims that because an order dated January 25, 1984, which awarded custody of a minor child of the parties, did not award child support, res judicata prevented Richard from seeking child support five weeks later unless he could establish a change in circumstances. Cynthia claims it was error to award child support because there was no change in circumstances.
K.S.A. 60-1610(a) gives the trial court authority to award child support and to make modifications “when a material change in circumstances is shown.” In Hardman v. Hardman, 203 Kan. 825, 827, 457 P.2d 86 (1969), the court stated:
“The general rule is that the court’s judgment is conclusive and final as to matters and facts which were actually litigated and determined. Not only is everything adjudicated between the parties which the parties chose to litigate, but everything incidental thereto, and which properly could have been litigated with due diligence.”
This general rule was modified in Hill v. Hill, 228 Kan. 680, 620 P.2d 1114 (1980):
“[W]here a custody decree is entered in a default proceeding, and the facts are not substantially developed and presented to the court, the trial court may later, in its discretion, admit and consider evidence as to facts existing at the time of the earlier order, and upon the full presentation of the facts the court may enter any order which could have been made at the initial hearing whether a ‘change in circumstances’ has since occurred or not. Our statements to the contrary in Hardman v. Hardman, 203 Kan. 825, . . . and in the other cases cited in the Court of Appeals decision,. [Hill v. Hill], 5 Kan.App.2d 1, are overruled.” 228 Kan. at 685.
Under Hill, it is no longer necessary that a movant demonstrate a change in circumstances to be entitled to relief when the issue was not previously litigated. The record does not reveal that any facts regarding the parties’ financial resources were developed and presented to the court prior to the change of custody being granted on January 25, 1984.
Rosenberg v. Rosenberg, 6 Kan. App. 2d 882, Syl. ¶ 3, 636 P.2d 200 (1981), rev. denied 231 Kan. 801 (1982), is analogous:
“Where a custody decree is entered in a default proceeding, and the facts are not substantially developed and presented to the court, the trial court may later, in its discretion, admit and consider evidence as to facts existing at the time of the earlier order, and upon the full presentation of the facts the court may enter any order which could have been made at the initial hearing whether a change of circumstances has since occurred or not.”
The instant case originated from a joint motion for change of custody. The parties did not litigate the issue of child support before the district court in connection with the change of custody. Therefore, the district court properly held the motion for support was not res judicata.
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Foth, C.J.:
The issue in this case is whether a Kansas resident who acquires taxable personal property after January T, but before July 1, must pay personal property taxes on it for the year of acquisition because of the provisions of K.S.A. 79-316. The Board of Tax Appeáls said “yes.” On appeal the district court said “no,” or at least “not under the facts of this case.”
The facts are undisputed. The taxpayer, Litho Stepping, Inc., (now Stepping Services, Inc.) is a Kansas corporation formed in October, 1980, to engage in the business of enlarging color photographs and preparing film for multiple reproduction. On January 1, 1981, it was still in the formative stage with its sole place of business in Prairie Village, Johnson County, Kansas. At that time it owned no taxable property, and in due course made a tax rendition to Johnson County reflecting that fact. In March and April of 1981 it relocated to Kansas City, in Wyandotte County, and purchased the equipment involved here. The major pieces were a camera and accessories purchased for $170,810.00 from a Johnson County manufacturer, and a film processor purchased from a Johnson County dealer for $27,475.82.
Upon discovering the taxpayer was a newly licensed Wyandotte County business, the Wyandotte County appraiser requested the taxpayer to provide a list of its personalty. The taxpayer complied, supplying a list in late spring, 1981. The county appraiser then appraised the property (99 percent of the value being the camera and processor), assessed it, and issued the taxpayer a notice that it owed $8,516.88 in 1981 ad valorem property taxes. The taxpayer paid the taxes under protest and filed a refund application with the Board of Tax Appeals under K.S.A. 79-2005.
In a series of orders the Board ruled, in substance: (1) K.S.A. 79-316 is a specific taxing statute which modifies the provisions of the general statutes taxing personalty; (2) it applies to any resident of the state, whether newly arrived or not, as well as to nonresidents; (3) it taxes all personalty brought into this state after January 1 and before July 1 for the full year of acquisition, unless the taxpayer can show that it was listed for taxation elsewhere for the same year; (4) it applies to personalty brought into the taxing county from another county in this state as well as from outside the state; and (5) showing that the taxpayer’s vendor paid a merchants’ or manufacturers’ inventory tax for the taxable year is insufficient to exempt the property under 79-316 because no property is specifically listed or identifiable in a merchants’ or manufacturers’ rendition of inventory.
Accordingly the Board rejected the taxpayer’s protest and application for refund. The taxpayer appealed to the district court.
The district court found the Board’s action arbitrary and capricious in two respects: (1) If the merchants’ and manufacturers’ inventory renditions of the taxpayer’s vendors were insufficient to exempt the property, it was arbitrary to require the taxpayer to furnish them; and (2) the statute only applies to property brought into the state from outside the state, and not to property moved from one county to another.
The district court, therefore, sustained the protest and ordered a refund. Wyandotte County has appealed to this court.
We regard the trial court’s first finding as something of a makeweight; the appellee makes no serious effort to support the judgment on this ground. The primary issue is the interpretation of the statute. We are unable to agree with the interpretation of either the Board or the district court. K.S.A. 79-316 provides:
“When any person, association or corporation settles or organizes in any county in this state, and brings personal property therein after January 1 and prior to July 1 in any year, or when any nonresident owner brings property into the state between such dates, the county appraiser shall list and return such property for taxation in that year, unless the owner thereof shows to the county appraiser under oath, and by producing a copy of the assessment, duly certified by the proper officers of the state or county in which such property was assessed, that the same property has been listed for taxation for that year in some other county in this state or in some other state or territory of the United States in which property is required to be listed for taxation.
“[The second paragraph provides for belated appraisal returns to the county clerk and belated equalization by the board of county commissioners.]”
Our difficulty with the Board’s interpretation begins with its reading of the language: “When any person, association or corporation settles or organizes in any county in this state.” The Board interprets this to mean simply “when any resident of this state” brings property into a county it is to be taxed. It seems to us that if the legislature meant “resident” it could easily have said so. We note that cosmetic amendments were made to this phrase in 1982 (Laws of 1982, ch. 391, § 23) changing “shall settle or organize” to “settles or organizes.” No attempt was made to abandon the “new settler” concept in favor of simple residency. The Board’s reading simply ignores the concept of settlement or organization; as will be discussed later in this opinion, the phrase was perceived as significant when it was first adopted. And cf. State ex rel. v. Dwyer, 204 Kan. 3, 13, 460 P.2d 507 (1969), Fromme, J., dissenting, where the “settle or organize” language of the statute is emphasized.
On the other hand, we cannot accept the trial court’s reading that the statute applies only to property brought in from outside the state. The statute speaks of one who settles or organizes in “any county of this state” and brings personal property “therein.” The word “therein” refers back to “county,” not “state.” Further, one way the exemption may be claimed is by showing that the property was listed “in some other county in this state.” One who could make such a showing would necessarily be dealing with property brought into the taxing county from some other county “in this state,” and not from outside the state.
We are troubled also by the discriminatory effect of both the Board’s and the district court’s interpretations. That discrimination takes three forms. First, the Wyandotte County businessman who buys his equipment in Wyandotte County is free of tax for the first year regardless of whether his vendor has paid taxes on it. The statute simply does not apply unless the taxpayer brought the property into the county. On the other hand, a Wyandotte County businessman who buys the same equipment in Johnson County (the Board’s reading) or in Kansas City, Missouri (both readings) would be taxed unless he could show his vendor was taxed for the same year. And, under the Board’s reading, he could not do that if he bought from a merchant or manufacturer. The discrimination between the two Wyandotte County businessmen is apparent; one pays $8,500.00 more in taxes for the identical transaction simply because he bought out-of-county.
The second type of discrimination is that between vendors. A Johnson County dealer under the Board’s reading, or an out-of-state dealer under either reading, must make a price concession of $8,500 to compete with a Wyandotte County dealer. The statute thus becomes a home-county protective tariff.
Third, under the Board’s reading there is in some cases discrimination between businessmen who move during the year, or at least the first half of the year, and those who do not. A Johnson County businessman who buys a piece of equipment locally pays no taxes on it for the current year if he stays in Johnson County. But if he moves to Wyandotte County before July 1 and takes the equipment with him, it will be taxed in Wyandotte County for that year. He has brought it into the county and cannot show that it was listed elsewhere simply because it was not required to be listed in the former home county.
These inequities, we believe, were never intended by the legislature. This view, we think, is supported by a cursory analysis of the history of personal property taxation in this state.
Chapter 34 of the Laws of 1876 was our first comprehensive taxing statute. It specified who was to list personal property and where, and in Section 11 established March 1 the day as of which all property was to be assessed. (That date was changed to January 1 by Laws of 1959, ch. 365. We shall refer to whichever is applicable as “Tax Day.”) By specific provision of the statute a sale of property after that day did not relieve the one who owned it on Tax Day of the duty to list the property and subsequently pay taxes on it for that year. By the same token, one who bought after Tax Day was not liable to list the property, even though the prior owner failed to do so. For example, where goods were in the county the entire year, one who purchased them on March 8, just one week after Tax Day, owed no taxes on them for that year. Howell v. Scott, 44 Kan. 247, 24 Pac. 481 (1890). With few exceptions, that remains the rule today. See State ex rel. v. Dwyer, 204 Kan. at 6, where the few exceptions are noted.
It was not long before the legislature’s attention turned to the vast herds of cattle being driven into Kansas after March 1, fattened on Kansas grass, and shipped out before the next March 1. Since the cattle were never here on Tax Day, they were never subject to Kansas personal property taxes. The result was Chapter 34 of the Laws of 1881, amending Section 7 of the 1876 act. The original Section 7 merely detailed where various types of personal property were to be listed. The amendment added that when any stock were driven into any county from either an unorganized county or from outside the state for grazing purposes any time before December 1, the owners would be liable for county taxes for the entire year as if owned and located in the county on March 1.
This act was held unconstitutional in Graham v. Comm’rs of Chautauqua Co., 31 Kan. 473, 2 Pac. 549 (1884). Justice Brewer, writing for the court, found this attempt to tax livestock specially to be a violation of the “uniform and equal” clause of the Kansas Constitution, Art. 11, § 1, saying “if in addition to the listing of all property present in the state on the first of March, an attempt is made to list property brought in after the first of March, it must apply to all property so brought in. No distinction can be made as to property after the first of March, any more than it can as to property on that day.” 31 Kan. at 478.
In 1899 the legislature took Justice Brewer at his word and passed the predecessor of the statute now before us, in Laws of 1899, ch. 248. The first three sections of the act provided:
“Section 1. When any personal property shall be located in any county in this state after the 1st day of March of any year which shall acquire an actual situs therein before the 1st day of September, such property is taxable therein for that year and shall be assessed and placed on the tax-roll, and the tax collected as provided by this act.
“Sec. 2. Whenever any live stock shall be located in this state for the purpose of grazing it shall be deemed to have acquired an actual situs therein as contemplated by this act.
“Sec. 3. When any person, association or corporation shall settle or organize in any county in this state, and bring personal property therein after the 1st day of March and prior to the 1st day of September in any year, it shall be the duty of the assessors to list and return such property for taxation that year, unless the owner thereof shall show to the assessors, under oath, that the same property has been listed for taxation for that year in some other county in this state.”
These became, through codification, K.S.A. 79-314, -315, and -316 respectively. In 1901, the third section was amended to permit exemption if the property had been previously listed “in some other state or territory” as well as in some other county. L. 1901, ch. 364, § 1.
Our Supreme Court promptly decided that the new act was inapplicable to a resident who listed his property in full on Tax Day and later brought property — even cattle — into the county from outside the state. In Hull v. Johnston, 64 Kan. 170, 67 Pac. 548 (1902), a Greenwood County resident of long standing bought Texas cattle in May and brought them into his home county. When the local assessor sought to tax them he sought an injunction. The court held they were not taxable under the 1899 act, but only after a considerable struggle to construe the act and find a place for it in the preexisting statutory scheme.
The court first looked at the title of the act, which was to tax property “in certain cases,” i.e., cases not covered by the general tax laws. (The act is referred to in later cases as “the special act.”) The court then recognized the “well-known evil” the act was designed to cure:
“Non-residents were in the habit of bringing into this state personal property after the 1st of March — the time fixed by the general law as the date at which to tax — and then before the next March to remove it, and thus wholly escape taxation; this being especially true with reference to live stock brought into the state for grazing purposes.” 64 Kan. at 172.
In attempting to construe the act the court found it necessary to ignore its literal language:
“While more explicit language could have been used, it seems to us apparent that the language of neither sections 1, 2 nor 3 was intended to apply to cases of this sort. If this language is read in the light of the object to be accomplished, the light which illuminated the mind of the legislator, and in which we must read it, it will be seen that while some general language is used, it is general only in the sense of covering everything within its scope and purpose, which scope and purpose was to catch and tax property which under the provisions of the law already in existence was not bearing its legitimate share of the public burdens.
“No portion of the general law was repealed. No cases therein provided for were intended to be again covered, but by sections 1 and 2 personal property which had theretofore escaped taxation was laid hold of for the purposes of taxation; while in section 3 is found a concession to those who should become actual residents after March 1.
“With this interpretation this chapter accomplishes its purpose, becomes a harmonious part of the general law, accomplishes no injustice, and is altogether intelligible and reasonable, which it is not in any of these particulars without this construction.” 64 Kan. at 172-73. Emphasis added.
Thus the contemporaneous construction of the act was that it aimed only at property which would otherwise escape all taxation. Sections 1 and 2 were the taxing sections; section 3, the section now before us, was not a taxing section but an escape section, a “concession” to those who became actual residents after Tax Day.
That reading was reinforced in Lingenfelter v. Ferguson, 71 Kan. 154, 80 Pac. 48 (1905). There Ferguson, a resident of Sumner County, listed his property there as of March 1, and then in April brought 852 head of cattle into Butler County from Oklahoma. The court once again held that the special act of 1899 did not make the cattle taxable. It construed the holding of Hull v. Johnston as being:
“[T]hat while this statute was in terms broad enough to require the taxation of all personal property brought into this state between March and September which had not been taxed elsewhere for that year, it must be interpreted as intended to affect only such property as would otherwise escape its just share of the burden of taxation, and has no application to property brought into a county by a resident thereof after the 1st of March, where such resident had fully listed all of his property under the general laws. ... It was there decided that the purpose of the statute was to provide a means for placing upon the tax-roll property which received the protection of the laws of the state and in fairness should bear a part of the expense of their administration, but which under the general law could not be reached because never found in the state at the usual time for the listing of property for taxation.” 71 Kan. at 156. Emphasis added.
As to the taxpayer Ferguson, the court noted that he had already paid his share of taxes in Sumner County on all property he owned on Tax Day, presumably including the money used to buy the cattle. It observed:
“Where foreign-owned property is sent into the state for a temporary purpose, and after several months is removed without having contributed anything to the public revenue, a manifest wrong is committed; but where it comes into the state in exchange for other property or money upon which taxes have already been here assessed and paid, an entirely different situation is presented. The statute was not designed to exact a further payment from the resident purchaser in such a case. To do so would not be to correct an existing injustice, but to perpetrate a new one.” 71 Kan. at 157.
Further, since the statute simply didn’t cover residents’ property purchased after Tax Day, whether Ferguson had adequately shown that the cattle were assessed in Oklahoma was irrelevant. He was not required to demonstrate an exemption under section 3 because his cattle were not taxed under section 1.
This limited view of the statute’s scope was carried over into a series of cases dealing with its applicability to cattle belonging to nonresidents. The first of these was Mosby v. Greenwood County, 98 Kan. 594, 158 Pac. 657 (1916). In upholding the statute’s taxation of nonresidents’ property while exempting that of residents, the court rationalized:
“In the case of a resident the theory is that all of his money and property will be regularly listed and assessed and that his obligation to the state will be fully discharged, while the nonresident who brings his property here after March 1 and takes it out before the next assessment will contribute nothing to the public for the protection afforded him. (Hull v. Johnston, 64 Kan. 170, 67 Pac. 548; Lingenfelter v. Ferguson, 71 Kan. 154, 80 Pac. 48.) The statute is not an unjust discrimination against the nonresident owner, nor does it offend the equal protection limitation of the federal constitution, as the intention of the provision is the imposition of taxes upon all the property in the state by the same method of valuation and at the same rate. To accomplish this, a separate provision was made to reach property that was brought to and kept in the state between the ordinary times of assessment and which would otherwise escape taxation.” 98 Kan. at 596. Emphasis added.
Mosby’s finding of no discrimination against nonresidents was overruled in Bivins v. Riley County Comm’rs, 141 Kan. 916, 44 P.2d 229 (1935). The court there reviewed the history of the act and concluded that taxing the nonresident while exempting the resident under identical circumstances denied the nonresident the equal protection of the law, contrary to the Fourteenth Amendment, and also violated the Privileges and Immunities clause of Article IV of the United States Constitution. The same result had been reached just two years earlier in Bivins v. Board of Com’rs of Wabaunsee County, Kan., 66 F.2d 351 (10th Cir. 1933).
During the pendency of the two Bivins cases the legislature, in the special session of 1930, amended section 3 of the act (79-316) to make the exemption for previously assessed property available to nonresidents as well as new settlers. The Kansas court thought this had solved the discrimination problem. 141 Kan. at 921. The Tenth Circuit expressed doubts. 66 F.2d at 353. As to both courts the comments were obiter dicta.
Although the statute has been cited in passing in later cases, the two Bivins cases of 50 years ago are the latest judicial attempts to fathom its meaning. The Kansas court, in its Bivins case, seemed to view the exemption for Kansas residents as depending on a showing of taxation elsewhere. The federal court read Mosby, Lingenfelter, and Hull as finding the property of residents acquired after Tax Day nontaxable on grounds lying outside the statute, i.e., “on the ground that it was shown or inferred that such resident taxpayer had listed for taxation all of his property in Kansas on March 1st, and a part or all of the property so listed and taxed must have been converted into the purchase of the cattle that were brought from outside the state. . . .” 66 F.2d at 353.
The quoted language clearly reflects the rationale, at least in part, of Lingenfelter. It does not take into account the holding of Hull, recognized in both Lingenfelter and Mosby, that the statute simply does not apply to residents unless they are moving their cattle in and out of the state between Tax Days.
One more historical fact bears noting. In 1965 the legislature repealed K.S.A. 79-314. L. 1965, ch. 511, § 12. That was section 1 of the special act of 1899, and was the section which actually declared that property acquiring a situs in Kansas after Tax Day was to be taxed. Section 2 (79-315), dealing with the situs of cattle, and section 3 (79-316), providing a possible exemption for new residents, were supplemental to section 1, and were originally designed as implementation measures. When section 1 of the act was repealed, the other two sections were left dangling, with no taxing statute left to implement.
What, then, are we to make of this statute? We believe our historical review reveals it to be an anachronistic anomaly, with no real place in our present statutory scheme of taxation. The transient cattle problem, we note, is now specifically dealt with in K.S.A. 79-316b and -316c. It may be that the 1930 amendment eliminated the discrimination between residents and nonresidents in the availability of an exemption for previously assessed property. It did not, however, address in any way the three types of discrimination among property of various classes of taxpayers noted in the early portion of this opinion.
In the final analysis, if we are to give any effect at all to this statute, we think we must return to the contemporaneous interpretation of Hull v. Johnston, without which, the court said, the statute would not accomplish its purpose, would not be harmonious with the general law, would result in injustice, and would be unintelligible and unreasonable. 64 Kan. at 173. Under that interpretation, despite its general terms the statute applies only to persons who bring property into the state after Tax Day and intend to remove it before the next Tax Day to evade paying taxes altogether.
The taxpayer here cannot be said to fall into that category. It was a Kansas resident on Tax Day of 1981, and made its rendition in its home county. The fact that it then owned no taxable property is of no moment. There is no suggestion that it intended to remove the property before the next Tax Day, January 1, 1982. In fact, it listed the property for 1982 and paid its taxes on it.
The situation of this taxpayer, as we see it, was no different from that of Ferguson in Lingenfelter v. Ferguson. Each made a full home-county rendition on Tax Day, and each thereafter brought property into another county. Ferguson was exempt in the new county because he didn’t own the property on Tax Day and, because he was a Kansas resident on Tax Day, the special act of 1899 did not apply to him. Because the act didn’t apply to him, the result would have been the same if Ferguson had moved from Sumner to Butler County, where the cattle were kept. Likewise this taxpayer is exempt because it didn’t own the property on Tax Day, and the statute does not apply to this taxpayer simply because it moved from Johnson to Wyandotte County. Such a move between counties of this state is not a significant taxable event, making taxable what is not taxable under the general law.
Finally, we note that the effect of the Board’s reading, and to a lesser extent the trial court’s reading, would be in many cases simply to move a resident’s Tax Day from January 1 to July 1. That is to say, a taxpayer’s rendition as of January 1 would be meaningless. It would be each taxpayer’s duty to update the rendition each year to reflect property purchased between January 1 and July 1, and the county appraisers’ duty to ferret out all such purchases and see that the property was assessed. The legislature may wish to do this, but we cannot find such an intent in this 85-year-old statute which has never before been given such a reading. It was not thought to do this when it was enacted, and we find nothing in any subsequent amendment which would demonstrate any intent to make such a drastic innovation in our tax laws.
The trial court found the property in question exempt and ordered a refund under a different theory than ours. Nevertheless, it reached the right result and must be affirmed. Farmers State Bank v. Cooper, 227 Kan. 547, 556, 608 P.2d 929 (1980).
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Meyer, J.:
Greg Haflich (defendant) appeals from orders by the district court of Gray County enforced in favor of plaintiff, Farmers State Bank (Bank), entitling it to judgment against defendant in the amount of $27,132.71 for indebtedness owing on a promissory note. The defendant was awarded $9,280 as damages on his cross-claim.
At issue herein is a promissory note executed by defendant for $18,216 with a 15% interest rate, to be paid in eleven equal monthly installments of $250.00, and a twelfth and final balloon payment of $18,179.19. This note was the culmination of four previous financial transactions between defendant and the Bank. As a result of this and other transactions, the Bank held (1) the promissory note in conjunction with a security interest in the inventory, accounts receivable, and contract rights of “Finney Fab,” an insulation company wholly owned by defendant; (2) certificates of deposit owned by defendant; (3) liens on four vehicles owned by defendant (three of which had first liens in favor of the General Motors Acceptance Corporation); and (4) a $20,000 second mortgage on defendant’s personal residence.
Defendant’s payments on the note were to begin January 5, 1981. From the beginning defendant began missing the installment payments. In April, the overdue amounts were made up by defendant, but since that time, defendant has made no further payments on the note.
The Bank claims it mailed several “past due” notices to defendant regarding his delinquent and overdue payments. The defendant, however, denies having received any notice until receipt of the “notice of right to cure default” sent him by the Bank pursuant to K.S.A. 16a-5-110, on September 24, 1981. Thereafter, on October 19, 1981, the Bank went to defendant’s business and repossessed inventory and personal property inside the building as well as four vehicles parked outside.
On November 3, 1981, the Bank petitioned the court for judgment against defendant in the amount of $16,269.98 principal owing on the note and $5,264.05 for money paid the principal lienholder on the vehicles, past due interest of $1,393.63, interest at 15% from November 3, 1981, costs of the action, and an order allowing the property held by the Bank to be sold to satisfy the indebtedness due it. The defendant answered with general denials of all amounts owing the Bank, and, in addition, counterclaimed for conversion and damages. A jury trial was held July 25,26, and 27,1983. At the close of the Bank’s case, the trial court found the Bank had a valid security interest in the inventory and vehicles it had repossessed. The court then found defendant indebted to the Bank in the amount of $16,269.98 plus interest of $5,598.60; and the further sum of $5,264.05 which the Bank had paid the principal lienholders on the vehicles, plus interest on this amount from July 25, 1983.
At trial, the Bank admitted it wrongfully took items of personal property belonging to defendant. The jury thus had before it the issue of damages with regard to the wrongful repossession of the property taken by the Bank which was not collateral under the security interest held by it. The jury returned a verdict on defendant’s counterclaim, assessing damages against the Bank in the amount of $9,280. As noted, the trial court determined that the inventory and vehicles were properly repossessed. As later explained herein, we conclude the trial court’s determination in this respect was error. Because of the trial court’s erroneous determination, the jury did not have before it the matter of determining what damages, if any, defendant suffered because of the repossession of inventory and vehicles. Since the jury thus had before it only the question of damages for the improper taking of property other than the inventory and vehicles, an ultimate determination must be made by the trier of fact as to how much the $9,280.00 verdict should be augmented by damages attributed to the improper repossession of the inventory and vehicles.
Initially we note that the defendant borrowed sums from the Bank as business loans and not for consumer purposes. Although the Kansas Uniform Consumer Credit Code (U.C.C.C.) does not ordinarily apply to business loans (see K.S.A. 16a-l-102, 16a-l-201, and 16a-l-301), the parties to an agreement may subject themselves to the provisions of the U.C.C.C. by written agreement signed by both parties. K.S.A. 16a-l-109. Here, the security agreement signed by defendant stated its terms were subject to the U.C.C.C. Thus, the rights of the parties herein are subject to both the Kansas Uniform Commercial Code (U.C.C.) and the U.C.C.C.
The defendant first contends that the trial court erred in not holding the repossession of all items, even the inventory otherwise properly subject to repossession by the Bank, was unlawful for failure to give proper notice of the right to cure default pursuant to K.S.A. 16a-5-110. Defendant claims compliance with the statutory provisions was not had; therefore, notice of the right to cure default was defective and the Bank’s repossession of the collateral was not proper. The Bank contends its notice was not defective, that it was “substantially accurate,” and that the decision of the trial court finding compliance with the statute should be affirmed.
In the case of default on a consumer credit transaction because of a missed installment, Kansas law now requires that the creditor wait ten days before sending a notice to the consumer of his “right to cure.” K.S.A. 16a-5-110. The creditor must then wait 20 days after sending the notice, during which time no acceleration of the unpaid balance or repossession of the collateral may occur. K.S.A. 16a-5-111. If the debtor pays the missing installment, plus any unpaid delinquency or deferral charges during the 20-day period, he has cured his default. If the debtor fails to cure or misses another installment, the creditor can accelerate and repossess the collateral under Article Nine of the U.C.C.
In the instant case, the security agreement contained a definition of default to include the failure to make an agreed payment. Under K.S.A. 16a-5-111(2), notice of default must be provided and the debtor must be given a right to cure the default. In the case at bar, notice of default and the right to cure was given defendant. The defendant had been in default for more than the 10-day period required by K.S.A. 16a-5-110. The issue in this case concerns the required content of that notice.
K.S.A. 16a-5-110 requires that the notice of right to cure be in writing and states that such notice shall conspicuously state:
1. the creditor’s name, address, and telephone number;
2. a brief description of the credit transaction;
3. a statement that the consumer has the right to cure the default;
4. the amount of payment due and the date by which payment must be made.
An examination of the notice sent to defendant reveals that it contained the name, address, and phone number of the Bank, and that it informed the debtor that he had the right to cure default. The notice, however, omitted any description or reference to the type of credit transaction involved; and although it did specify an amount then due, that amount was not the sum total of the missed installment payments, but was the accelerated full amount of the loan, $17,473.51. In other words, the notice of the “right to cure” sent to defendant was simply notice that the Bank was demanding all amounts due under the loan, rather than the $1,250.00 properly due at that time. The defendant was not given the right to make up the missed installments and continue under the terms of the original contract. In addition, the notice specified that the last date by which payment of even the full accelerated amount would be accepted was October 5, 1981. As stated in the Kansas Comments to K.S.A. 16a-5-110, the “last day for payment” which must be shown in the notice must be the date of the end of the cure period in K.S.A. 16a-5-111. That is, the “last day for payment” must be a date at least 20 days after notice of the right to cure was sent. In this case, as notice was sent September 24, 1981, the last day for payment was, and should have been stated as, October 14, 1981, and not October 5, 1981.
The trial court reviewed the notice sent defendant and concluded that although there was technical noncompliance with the statute, nevertheless the spirit and intent of K.S.A. 16a-5-110 was met. The court thus held that the Bank’s repossession of collateral listed on the security agreement was not rendered improper because of insufficient notice.
The plain wording of the statute contradicts the district court’s finding that compliance with the spirit and intent of the statute is acceptable. The notice of right to cure sent a debtor must strictly comply with the provisions of K.S.A. 16a-5-110 and 16a-5-111; otherwise any repossession thereafter by the creditor will be wrongful.
We note that K.S.A. 16a-5-110 states that the required notice shall contain a brief description of the credit transaction, and K.S.A. 16a-5-lll states a creditor may not accelerate maturity of the obligation until after notice is given. Moreover, the Kansas Comments to these two statutes state plainly that it is only the amounts of the missed installment payments which may be asked for and included in the notice. The creditor may not ask for the entire sum due under the terms of the loan. As evidenced by the statutes and comments, the legislative intent was to allow the debtor the opportunity to “cure” his default by making up the missed installments, and thereafter to continue under the terms of the contract. Where statutes are plain and unambiguous, courts must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Johnston v. Tony’s Pizza Service, 232 Kan. 848, 658 P.2d 1047 (1983). The district court in this case failed to give effect to the legislative intent. Thus, the district court erred in finding that compliance with the spirit of the statute was sufficient.
Because of insufficient notice, therefore, the Bank’s repossession of even that collateral properly the subject of the security interest (the inventory) was wrongful (see Medling v. Wecoe Credit Union, 234 Kan. 852, 859, 678 P.2d 1115 (1984); and Klingbiel v. Commerical Credit Corporation, 439 F.2d 1303 [10th Cir. 1971]), and the defendant is entitled to damages arising out of that wrongful repossession.
The Bank’s repossession of the vehicles on defendant’s premises was also wrongful for the reason that the Bank did not have an applicable security interest in them. As stated, the Bank’s security agreement with defendant provides it with a security interest in only the “inventory, accounts receivable and contract rights” of defendant’s business. No mention is made of defendant’s vehicles. A security interest which does not list items as secured collateral does not give a creditor a secured status with respect to them. K.S.A. 84-9-203(l)(a). Absent this, the Bank could not pursue the creditors’ remedies provided in K.S.A. 84-9-501 et seq.
We note with interest that a Bank officer testified at trial that although the vehicles were not on the security agreement, there were liens on the titles and a “secured title application” had been sent to the Motor Vehicle Department for recording. Again, later in questioning, the Bank officer made reference to a certain secured title application on each vehicle filed with the Kansas Motor Vehicle Department.
These statements indicate a security agreement may be in existence separate and apart from that executed in conjunction with the promissory note. If there were separate security agreements, these documents have not been provided this court and the Bank does not refer to them in its brief on appeal. Thus this court need not address this possibility. Therefore, in addition to damages for the wrongful repossession of the inventory, the trier of fact must also consider damages for the wrongful vehicle repossession. As conceded at oral argument, one of the vehicles was returned to defendant and need not be considered herein unless defendant claims damages for its temporary repossession.
Whether the Bank is liable for conversion in addition to damages for wrongful repossession of the inventory and vehicles depends upon whether the defendant has established a prima facie case for conversion. Conversion is an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another. Temmen v. Kent-Brown Chevrolet Co., 227 Kan. 45, 605 P.2d 95 (1980); Desbien v. Penokee Farmers Union Cooperative Association, 220 Kan. 358, 552 P.2d 917 (1976). The “intent” required for conversion is simply to use or dispose of the goods of another, and the knowledge or ignorance of the actor as to their ownership has no influence in deciding the question of conversion. Speer v. City of Dodge City, 6 Kan. App. 2d 798, 636 P.2d 178 (1981); see also Nelson v. Hy-Grade Construction & Materials, Inc., 215 Kan. 631, 527 P.2d 1059 (1974).
Based upon these rules, the wrongful taking of defendant’s inventory and vehicles appears to create at least a prima facie case for conversion. We conclude the decision of the district court regarding the sufficiency of the notice was error, and that the issue regarding damages suffered by the wrongful repossession and a determination of damages, if any, for conversion must be decided.
The defendant next contends that punitive damages are recoverable against the Bank because of its wrongful repossession.
Under Kansas law, an award of punitive damages is permitted whenever actual damages have been established and the elements of fraud, malice, gross negligence, or oppression are mingled into the controversy. Klingbiel v. Commerical Credit Corporation, 439 F.2d 1303; see also Slough v. J. I. Case Co., 8 Kan. App. 2d 104, Syl. ¶ 6, 650 P.2d 729, rev. denied 232 Kan. 876 (1982).
In the instant case, the trial court found as a matter of law that the jury could not consider the issue of punitive damages because of a lack of any evidence in the record to support such damages. Having examined the record, we conclude that the trial court is correct.
The defendant has presented no evidence which the trial court disregarded, nor has the defendant claimed bias, passion, or prejudice. As such, the decision of the district court regarding punitive damages will not be disturbed.
The defendant’s final contention is that the trial court erred in refusing to consider his motion for attorney fees. Because the Bank failed to comply with the notice provisions of K.S.A. 16a-5-110, the Bank was liable under the Kansas Uniform Consumer Credit Code for the attorney fees incurred by defendant in defending this action.
K.S.A. 16a-5-201(8) provides as follows:
“In an action in which it is found that a creditor has violated any provision of K.S.A. 16a-I-101 through 16a-9-102, the court shall award to the consumer the costs of the action and to his attorneys their reasonable fees. Reasonable attorney’s fees shall be determined by the value of the time reasonably expended by the attorney and not by the amount of the recovery on behalf of the consumer.” (Emphasis added.)
This statute is mandatory and is not a matter within the trial court’s discretion. United Kansas Bank & Trust Co. v. Rixner, 4 Kan. App. 2d 662, 668, 610 P.2d 116, aff'd 228 Kan. 633 (1980). Because of the conclusion reached that the Bank violated K.S.A. 16a-5-110 by sending deficient, notice to the defendant, the defendant is entitled to an award of attorney fees.
Because of the conclusions reached above, the award of damages in the amount of $9,280 to defendant for harm suffered as a result of the wrongful repossession of his personal property is affirmed. The decision of the district court regarding the sufficiency of the notice of right to cure and the propriety of the Bank’s repossession of defendant’s inventory and vehicles is reversed and remanded for a determination regarding the issue of how much defendant’s damages should be increased (beyond $9,280) by reason of such wrongful repossession of his inventory and vehicles, and for a determination of damages, if any, caused by conversion. Moreover, defendant is entitled to costs and reasonable attorney fees in an amount to be determined by the trial court in accord with K.S.A. 16a-l-101 et seq.
Affirmed in part, reversed in part, and remanded. | [
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Parks, J.:
This appeal involves two cases which arose out of the same transaction and were consolidated for trial. In the first lawsuit, Jimmie D. Scott and Cecilia T. Scott brought an action against Forrest Strickland for breach of contract and breach of implied warranties of fitness and workmanship for his performance of a contract to construct a foundation and basement. Strickland counterclaimed for the amount allegedly due for the work performed. In the second lawsuit, Jerry Wilson d/b/a Woods-Ringstaff Lumber Company (lumber company), which supplied materials to the Scott job site, sought to foreclose the mechanic’s lien it obtained against the Scotts’ realty for an unpaid lumber bill. The First National Bank of Elk City, which holds a prior mortgage on the Scotts’ property, was joined in this lawsuit as a defendant. Both cases were tried to a jury.
Testimony at trial indicated that in the summer of 1982, the Scotts, then New Jersey residents, started taking steps to retire in Kansas. They had bought some rural property in Elk County and planned to construct a log cabin on the site. Another log cabin owner in the area recommended that they contact Forrest Strickland to construct the concrete basement. Jimmie Scott called Strickland and asked if he could build the basement. Strickland replied that he could not build one from poured concrete but that he could use concrete blocks reinforced with cement poured through the blocks. Scott sent a set of blueprints to Strickland and requested his price for the job. Other estimates supplied to Scott amounted to $13,000 to $15,000 but Strickland estimated the job’s cost at about $8,000. Later Strickland contended that this price only included material and that labor would about double the total cost. The Scotts sent Strickland $5,000 and then an additional $2,000 and Strickland began work.
Since the Scotts still lived in New Jersey, Jimmie Scott asked his cousin, Roy Scott, to show Strickland the job site and monitor the progress of the work. Roy showed Strickland the site staked out by Jimmie for the basement and returned several times with a camera to take pictures of the job’s progress. Roy testified that during the excavation he noticed that the stakes Jimmie had used were dislodged by the backhoe and the site seemed to have been moved. On return visits he witnessed and photographed Strickland pouring concrete over dirt without the wire mesh reinforcements called for in the blueprints and without the sand ordinarily used to line a poured concrete floor. The floor was only poured to a depth of 3 Vz” to 4” deep although Strickland admitted Scott had asked for a six-inch depth.
After a phone conversation in which Scott refused to advance further funds, Strickland walked off the job on October 8, 1982, and did not return. He wrote the Scotts requesting payment of an additional $5,221 for materials used in the work completed. Jimmie Scott, who has some contruction experience and knows how to read blueprints, and Mai da Parrish, who at one time operated a ready-mix concrete company, testified concerning the many alleged deficiencies in Strickland’s work and the deviations from the blueprints. Some of these alleged defects included cracks in the concrete floor, failure to reinforce concrete block walls or to build them to the specified height, misplacement of windows and girder pockets, ill-constructed or absent lintels above windows and doorways and failure to vent or damp-proof the root cellar. Plaintiffs’ witnesses also testified that the structure erected by Strickland was unusable and would have to be removed before a proper basement could be built on the site. No evidence was presented to establish the expense of tearing down the structure erected by Strickland.
Plaintiffs also alleged fraud by Strickland by virtue of the discrepancy between the initial $8,000 estimate of the job and the cost eventually claimed by him. Plaintiffs sought to show that Strickland received discounts from suppliers and subcontractors which he concealed from the Scotts and that some of the materials ordered by Strickland for the Scott job were either removed from the site or never delivered to it. Plaintiffs also complained that although Strickland represented in October that outstanding bills for materials amounted to $5,200, additional debts of $3,400 to Woods-Ringstaff and $1,888 to Consolidated Oil Well Services, Inc. had been charged to the Scott job.
Following presentation of evidence, the trial court granted a directed verdict to the lumber company, foreclosing its lien and granting judgment for $3,935.63 against the Scotts. The trial court also granted a directed verdict to Strickland on the Scotts’ claim for fraud and punitive damages. The jury then returned its verdict in favor of Strickland on the Scotts’ claims and in favor of the Scotts on Strickland’s counterclaim. The Scotts and the Bank appeal.
At the outset, we note that a brief was filed on behalf of the First National Bank of Elk City complaining that the trial court’s journal entry failed to properly recognize the priority of its mortgage interest over the lien held by the lumber company. In reviewing the pretrial order filed in this case, it is clear that the parties stipulated that the bank has a valid and first mortgage against the Scotts’ real estate which is senior and superior to any lien of any other parties to this action. Accordingly, we direct that the trial court’s judgment be modified to reflect the priority of the Bank’s interest upon foreclosure.
Scott v. Strickland, District Court No. 82-C-93
The Scotts sought to characterize their suit against Strickland as seeking two distinct claims for relief: the first, breach of contract for failing to complete the construction at the agreed price and the second, a breach of the implied warranty of workmanlike performance.
The common law of this state has recognized that when a person contracts to perform work or to render a service, without express warranty, the law will imply an undertaking or contract on his part to do the job in a workmanlike manner and to exercise reasonable care in doing the work. Gilley v. Farmer, 207 Kan. 536, 542, 485 P.2d 1284 (1971). This implied warranty of workmanlike performance has its theoretical roots in both contract and tort law since an allegation of a breach entails the contention of both a breach of implied contract and the charge of negligence or a failure to exercise reasonable care. Gilley, 207 Kan. at 542. Therefore, a suit for breach of implied warranty may be premised on either a contract or tort theory of recovery or both. Gilley, 207 Kan. at 542.
In this case, the Scotts raised implied warranty allegations of both a contract and tort nature. They claimed that defendant Strickland breached the implied contract to perform the work in a workmanlike manner and committed a tortious breach of the duty to exercise reasonable care in doing the construction work. In addition, plaintiffs also charged that defendant breached their express oral contract to complete the basement according to the blueprints for a certain price. All three of these claims are alternative theories of relief for the damages allegedly sustained by plaintiffs on which they were entitled to plead and offer proof. However, in Ware v. Christenberry, 7 Kan. App. 2d 1, Syl. ¶ 7, 637 P.2d 452 (1981), this court held that in an action for breach of implied warranty, a party may plead and proceed upon the theories of both contract and tort until the facts have been developed and the case is ready to be submitted to the trier of the facts. However, one theory or the other must be elected prior to final submission of the claim to the jury. Therefore, plaintiffs were entitled to present to the jury their alternative claims for breach of the express contract and for breach of the implied warranty of workmanlike performance. They would have to choose, however, whether the implied warranty claim should be submitted as a charge of negligence or breach of an implied contract.
At best, the instructions given in this case outline the claim for breach of the express contract but only hint at a contract claim for breach of implied warranty. The instructions noted the Scotts’ allegations of defective materials and faulty workmanship but did not instruct the jury that such allegations, if true, would be a breach of implied warranty. Moreover, plaintiffs’ requested in structions and their request for punitive damages on the implied warranty claim evidence a desire to pursue the claim as a tort remedy. Punitive damages cannot be awarded for a mere breach of contract, but if there is evidence of negligence so gross as to amount to wantonness, punitive damages may be in order. Atkinson v. Orkin Exterminating Co., 5 Kan. App. 2d 739, 745, 625 P.2d 505, aff'd 230 Kan. 277, 634 P.2d 1071 (1981). Nevertheless, despite plaintiffs’ efforts to characterize their implied warranty claim in negligence terms the instructions did not define the duty to perform a contract in a workmanlike manner, or the legal definitions of negligence and proximate cause. Since all alleged damages were economic loss and not injury to person or property, comparative negligence would not have come into play. Haysville U.S.D. No. 261 v. GAF Corp., 233 Kan. 635, Syl. ¶ 4, 666 P.2d 192 (1983). However, had the claim for negligent breach of warranty been submitted to the jury, damages would have to have been measured from a tort point of view. In short, if it can be said that the implied warranty claim was submitted to the jury at all, it was submitted on a contract rather than a tort theory of relief.
A party is entitled to instructions explaining his theory of the case- so long as evidence has been introduced in its support. Allman v. Holleman, 233 Kan. 781, 785, 667 P.2d 296 (1983). In the present case there was sufficient evidence of the poor quality of Strickland’s work to support the choice of submitting this case to the jury as either a negligence or an implied contract claim. The implied warranty of workmanlike performance imposed a duty upon Strickland and there was ample evidence that he breached that duty. By usurping the Scotts’ right to choose which of their implied warranty theories to submit to the jury, the trial court erroneously foreclosed the Scotts from a course of possible relief they had repeatedly and consciously raised. Plaintiffs are entitled to a new trial on their implied warranty claim.
The Scotts also contend that the district court erred in granting directed verdict on their claim of fraud and in refusing to permit a claim for punitive damages based on the alleged fraud.
Actionable fraud includes an untrue statement of fact, known to be untrue by the party making it, made with the intent to deceive or recklessly made with disregard for the truth, where another party justifiably relies on the statement and acts to his injury. Weigand v. Union Nat’l Bank of Wichita, 227 Kan. 747, 753, 610 P.2d 572 (1980). Here, the Scotts charge that Strickland’s representation in his October letter that bills for materials amounting to $5,200 were outstanding when he knew that additional amounts were due Woods-Ringstaff and Consolidated Oil was such a fraudulent statement. They also point to evidence that Strickland attempted to overcharge them for excavation work and failed to pass on a discount extended by the excavator as evidence of fraudulent intent by Strickland. Finally, the Scotts charge that Strickland misrepresented his ability to perform the construction work contracted for and that the discrepancy between the promised performance and the actual work done evidence the injury suffered by the Scotts.
In reviewing a directed verdict, we are to resolve all facts and inferences in favor of the party against whom the ruling is sought and if the evidence is such that reasonable minds could reach a different conclusion thereon the motion should be denied. Iola State Bank v. Bolan, 235 Kan. 175, 187, 679 P.2d 720 (1984). Applying this test to plaintiffs’ evidence, we conclude that there was evidence which would suggest an intentional deception on Strickland’s part which, when coupled with the alleged representation concerning his expertise, presented a sufficient showing of fraud to avoid a directed verdict. Furthermore, an instruction regarding punitive damages should have accompanied the submission of the fraud issue. Kline v. Multi-Media Cablevision, Inc., 233 Kan. 988, Syl. ¶ 2, 666 P.2d 711 (1983).
We conclude that the trial court erroneously granted directed verdict on the fraud issue and prevented plaintiffs from presenting their implied warranty theory of relief to the jury. The Scotts are entitled to a new trial on this matter.
Woods-Ringstaff v. Scott, District Court No. 83-C-10
The case by Woods-Ringstaff against the Scotts for the cost of materials supplied to Strickland stands on an entirely separate footing from that between owner and contractor. The Scotts raise a number of technical issues concerning the validity of the lumber company’s lien and they also question the judgment of the court on the merits.
Since the mechanic’s lien is purely a statutory creation, only strict compliance with the provisions in the statute will give rise to an enforceable lien. Kopp’s Rug Co. v. Talbot, 5 Kan. App. 2d 565, 567, 620 P.2d 1167 (1980). Thus, the lien statement filed by a contractor must be timely and must include: (1) the name of the Owner; (2) the name of the claimant; (3) a description of the real property; and (4) a reasonably itemized statement and the amount claimed. K.S.A. 60-1102. The subcontractor’s lien statement, since it depends on the privity between the owner and contractor for its validity, must also identify the name of the contractor and be filed within three months of the last date services or materials were supplied. K.S.A. 60-1103(a). Most importantly, the subcontractor’s lien statement must be served upon the owner in the manner described by K.S.A. 60-1103(b). See Construction Materials, Inc. v. Becker, 8 Kan. App. 2d 394, 659 P.2d 243, rev. denied 233 Kan. 1091 (1983).
The lien statement filed by Woods-Ringstaff did not specify the lumber company as a subcontractor to Forrest Strickland as contractor, but stated that it furnished materials and labor to Jimmie D. Scott at the request of Forrest Strickland on behalf of Mr. Scott. The original lien statement was also deficient in that it only appeared to identify Jimmie Scott as owner, although the property in question is owned in joint tenancy by Cecilia and Jimmie Scott. Finally, the lien statement filed by plaintiff Woods-Ringstaff did not itemize the materials supplied, but incorporated an attachment of very poor photocopies of invoices allegedly representing the costs incurred. We turn now to determine whether any of the deficiencies alleged by the Scotts were sufficient to prevent foreclosure of the lien.
Since the Scotts hold the property in dispute in joint tenancy and the original lien statement failed to name Cecilia Scott as an owner, defendants contended that the lien could not attach to Cecilia’s undivided one-half interest. Plaintiff sought to secure the entire fee with their lien and, thus, although the time for filing the lien had expired, requested leave to amend the statement to name Cecilia as an owner. The court permitted the amendment and also granted foreclosure of the lien upon the Scotts’ joint interest. The Scotts essentially contend (1) that the failure of the lien to attach against Cecilia’s interest when it was first filed could not be cured by an amendment beyond the original time of filing and (2) that because Cecilia was not named in the lien statement, the notice requirement was not met as against her interest.
A mechanic’s lien may attach to any interest in the land held by the person for whom the materials were provided. In other words, a person holding any legal or equitable interest in realty may be an owner for the purposes of the mechanic’s lien statutes. Construction Materials, 8 Kan. App. 2d at 398. However, the lien does not attach to any interest not held by the owner specified in the lien statement. K.S.A. 60-1105(b) permits amendment of a lien statement upon leave of court and in the furtherance of justice so long as the amount of the lien is not increased. However, a predecessor of this statute was found not to permit an amendment outside of the original time limitation on the filing of the lien which would identify a different person as owner. Logan-Moore Lumber Co. v. Black, 185 Kan. 644, 651, 347 P.2d 438 (1959). Despite this conclusion, the court went on to state that there is an identity of ownership between spouses such that an amendment to a valid lien against one spouse to add the name of the other spouse would be proper. Therefore, based on the authorities cited in Logan-Moore Lumber, we conclude that the district court correctly permitted amendment of the lien statement to name Cecilia as an owner of the property.
Defendants also contend that, even if the belated identification of Cecilia satisfied the statutory owner identification requirement, the lien still could not attach to her interest because of insufficient notice. Defendants rely on the case of Schwaller Lumber Co., Inc. v. Watson, 211 Kan. 141, 505 P.2d 640 (1973), where the Court construed the notice requirement contained in the statutory predecessor of K.S.A. 60-1103(b). This statute required “a copy of the lien statement to be served personally upon the owner and any party obligated to pay the same ... by restricted registered or certified mail.” K.S.A. 1968 Supp. 60-1103(a) [Emphasis supplied.] The Court noted that the purpose of requiring service of notice of a lien is to advise the owner of the property of the existence of the lien, afford him the opportunity to investigate the claim and determine its validity and to avoid paying the same account twice. Schwaller Lumber, 211 Kan. at 145. The Court concluded that this statutory requirement was not fulfilled by the service of the notice on only one of the two joint owners even though the owners are married. The Court stated that neither the marriage relationship nor the relationship of joint tenancy is sufficient to create an agency relationship whereby service upon one cotenant will suffice to bind another. Schwaller Lumber, 211 Kan. 141, Syl. ¶ 5.
Defendants’ reliance on Schwaller Lumber is misplaced in light of the changes effected in K.S.A. 60-1103 since that decision was reached. The lien statement no longer has to be served upon “the owner” but must only be delivered to “any one owner of the property.” Thus, the statute now recognizes the possibility of joint ownership and inferentially overrules the conclusion of Schwaller Lumber that one owner is not agent for another. The statute now permits service on one owner to satisfy the entire notice to the owner requirement. Furthermore, the statute now provides that proof of actual receipt of the lien statement by the person to be served is sufficient. Since Jimmie Scott was served with notice of the lien against the property and Cecilia testified that she also saw the copy of the statement, a valid lien attached. The subsequent amendment of the statement to include Cecilia as owner clarifies that this lien was asserted against the ownership interests of both Jimmie and Cecilia.
The Scotts next contend that the plaintiff, Woods-Ringstaff, failédto specifically identify Forrest Strickland as the contractor in its lien statement. However, Strickland was named in the document as receiving the materials provided on behalf of the Scotts. Thus, the job and authority upon which the building material was provided were identified by the mere inclusion of Forrest Strickland’s name. We conclude that Strickland was adequately identified as the contractor.
Finally, the Scotts complain that the lien statement was not properly itemized. K.S.A. 60-1102(a)(4) requires that a statement be given which is neither excessive nor insufficient in detail but which is fair and sufficient to inform the landowner of the claim and to enable him to ascertain whether the material was furnished and the charges fair. Kopp’s Rug Co. v. Talbot, 5 Kan. App. 2d 565, 572, 620 P.2d 1167 (1980).
It is true that it is difficult to make out the specific descriptions and charges for all of the items listed on the invoices filed in this case. However, it can be determined that most of the materials furnished were blocks, cement, pallets or masonry — the type of materials Strickland would use on the project — and the total of each invoice can be read. In our opinion the lien statement is reasonably itemized in that it enables the landowner to determine whether the material was furnished and whether the amount claimed is reasonable. Kopp’s Rug Co., 5 Kan. App. 2d at 572.
We conclude that the lien statement filed by Woods-Ringstaff was not fatally defective and that the trial court correctly ordered foreclosure of the lien. We turn now to consider defendants’ final contention that the amount of the judgment entered in favor of the lumber company was erroneous.
The lumber company presented evidence that the actual unpaid cost of the materials it had supplied for use on the Scotts’ property was $3,331.12. Because the invoices which record the sale of these goods include an 18% per annum interest term, plaintiff lumber company sought judgment for the cost of the materials plus 18% pre- and post-judgment interest. The trial court complied by entering judgment against the Scotts for $3,935.63 plus 18% per annum interest from the 28th day of November 1983, until the judgment was satisfied.
Plaintiff was entitled to prejudgment interest on the amount due for supplying materials to defendants’ contractor because the figure owed and unpaid by Strickland was definitely ascertainable from the invoices filed with the lien statement. See Arrowhead Constr. Co. v. Essex Corp., 233 Kan. 241, 251, 662 P.2d 1195 (1983). However, the rate of that interest is fixed by statute unless the parties have contracted for a different rate. K.S.A. 16-201. The mere statement of a charge in an invoice without evidence that the parties agreed to such a rate is not sufficient to establish a contract varying the rate of interest. Jerry L. Phillips, Inc. v. Ratley, 6 Kan. App. 2d 157, 160-61, 627 P.2d 339 (1981). Moreover, even if a contract rate of interest was proven by the invoices, the contract relied on was between plaintiff and Forrest Strickland. A person who is not a party to the contract cannot be bound by the interest rate stated in that agreement. Sanders v. Park Towne, Ltd., 2 Kan. App. 2d 313, 321, 578 P.2d 1131, rev. denied 225 Kan. 845 (1978). Therefore, the trial court erred in awarding prejudgment interest at a rate different from that specified by statute.
The rate of post-judgment interest which could be assessed against the Scotts is also limited to the statutory rate since Woods-RingstafFs claim for relief arises out of a statutory right (the mechanic’s lien) and not a contract with the Scotts. K.S.A. 16-205; Sanders, 2 Kan. App. 2d at 321. Therefore, the trial court’s judgment was in error and should have limited the Scotts’ liability to the cost of materials provided with post-judgment interest of 15% per annum (K.S.A. 1983 Supp. 16-204[c]) and prejudgment interest of 10% per annum dating from the date the mechanic’s lien was filed.
Judgment is reversed in case No. 82-C-93 and remanded for a new trial. Judgment is affirmed in case No. 83-C-10 with directions to modify the judgment to only include liability for the cost of the materials used on the Scotts’ land plus interest at the statutory rate and to reflect the priority of the Bank’s interest upon foreclosure. | [
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Meyer, J.:
This is a workers’ compensation action by appellee Roberta Ruse (claimant). Separate actions were filed against Sedgwick County and the State of Kansas. The actions were consolidated in the Division of Workers’ Compensation. On November 16, 1983, the administrative law judge awarded judgment in favor of claimant and against the State of Kansas, appellant, and State Self-Insurance Fund, its insurance carrier. The District Court of Sedgwick County affirmed the award of the administrative law judge. The State of Kansas appeals.
Appellant first contends the district court erred in ruling claimant suffered a compensable traumatic neurosis as a result of her injury while employed by the State of Kansas. Appellant argues there was insufficient evidence to support the ruling of the trial court; and further, that claimant failed to sustain her burden of proof regarding causation.
In Kansas, traumatic neurosis or conversion hysteria (The terms are synonymous. See Berger v. Hahner, Foreman and Cale, Inc., 211 Kan. 541, 544, 506 P.2d 1175 [1973]) directly traceable to an on-the-job physical injury is compensable under the workers’ compensation laws. Hayes v. Garvey Drilling Co., 188 Kan. 179, Syl. ¶ 2, 360 P.2d 889 (1961). See also Jacobs v. Goodyear Tire ¿r Rubber Co., 196 Kan. 613, 412 P.2d 986 (1966); Barrv. Builders, Inc., 179 Kan. 617, 296 P.2d 1106 (1956); and Morris v. Garden City Co., 144 Kan. 790, 62 P.2d 920 (1936). It appears from the cases and statutes that four elements must be shown for a compensable traumatic neurosis or a conversion hysteria claim to exist. These elements are: 1) a physical injury, 2) claimant has symptoms of traumatic neurosis or conversion hysteria, 3) these symptoms are directly traceable to the physical injury, and 4) there is a causal connection between the work claimant performed and the neurosis. See K.S.A. 44-501; and Buck v. Beech Aircraft Corporation, 215 Kan. 157, 161, 523 P.2d 697 (1974).
Courts are more cautious in compensating for psychic injuries than purely physical ones because of the subjective nature of psychological problems. The claimant bears the burden of proving by a preponderance of the evidence that the neurosis exists and that it was caused by an accident arising out of and during the course of his or her employment. Berger v. Hahner, Foreman & Cale, Inc., 211 Kan. at 550. In addition, if the claimant’s psychiatric problems did not result from the nature and requirements of the claimant’s job, or are the result of external forces over which the employer has no control, then there is no causal connection between the claimant’s mental disability and the work being performed and, consequently, claimant cannot recover compensation. Rund v. Cessna Aircraft Co., 213 Kan. 812, 828, 518 P.2d 518 (1974).
The district court adopted in full the administrative law judge’s findings of fact. The findings adopted are very complete and specifically encompass all of the four elements hereinabove found to be necessary to support a compensable traumatic neurosis or conversion hysteria claim.
Appellant argues that the district court’s findings of causation, as adopted from the administrative law judge, are based on insufficient evidence and that the evidence which was presented does not support the requirement that claimant’s injuries be directly traceable to the work being performed at the time of injury.
The issue of causation, that is the issue of whether the mental problem is directly traceable to the physical injury, is a question of fact for the district court. Deines v. Greer, 216 Kan. 548, 550, 532 P.2d 1257 (1975). On appeal, the rule regarding review of factual findings in workers’ compensation cases is that the findings are conclusive if supported by substaiitial competent evidence. Day and Zimmerman, Inc. v. George, 218 Kan. 189, 542 P.2d 313 (1975). This scope of review is quite narrow. As stated in Crabtree v. Beech Aircraft Corp., 5 Kan. App. 2d 440, 442, 618 P.2d 849 (1980), rev’d on other grounds 229 Kan. 440, 625 P.2 d 453 (1981):
“Under K.S.A. 1979 Supp. 44-556(c), our scope of review is limited to questions of law. The question of whether a district court’s judgment is supported by substantial evidence is one of law and if, when viewed in the light most favorable to the party prevailing below, there is substantial evidence to support the district court’s factual findings, this Court is bound by those findings and has no power to weigh the evidence or reverse the final order of the court. The term ‘substantial evidence’ when applied to workers’ compensation cases means evidence that possesses something of substance and relevant consequence or evidence that furnishes a substantial basis of fact from which the issues presented can be reasonably resolved. Although this Court may feel the weight of the evidence as a whole is against the findings of fact made by the district court, it may not disturb those findings if they are supported by substantial competent evidence. Crow v. City of Wichita, 222 Kan. 322, 332-33, 566 P.2d 1 (1977).”
Applying the rules above to the instant case, it appears there was substantial evidence to support the district court’s finding that claimant’s injuries were traceable to, and caused by, her employment. The following evidence was before the court:
1. Dr. Wellshear, a psychiatrist, testified that although claimant had preexisting problems with dependency, “the injury gave her an unconscious method or gave her unconsciously a way to express some of those conflicts about dependency versus independence.” (Emphasis added.) He further stated that claimant “unconsciously saw [the injuries] as opportunities to express — to attend to some unconscious needs . . . .”
2. Although claimant had a history of stress and tension, she continued to function normally and perform her duties accordingly until, in the words of Dr. Wellshear, “her psychi [sic], her unconscious used that injury as a fortuitous oc currence in a sense” to relieve herself from the stressful working environment and take days off. (Emphasis added.)
3. Claimant’s doctor recommended she not return to work, stating: “But I think the Court Service Officer with just constant different kinds of things going to like a ringmaster, . . . serving the egos of a variety of people, both the accused, the attorneys, the judges, relatives and so on. You know, I think that could be a very stressful, very difficult job for anybody so I don’t see her as being able to manage any better than she was.”
4. When one of claimant’s doctors, Dr. Barnett, was questioned whether the pain and back problems claimant had told him were afflicting her were caused by claimant’s injury, the doctor responded by stating, “The history [of claimant’s problems] as described is compatible with her having had muscle strain at the time in December when she claims to have been injured.” (Emphasis added.)
5. Even though claimant was injured in 1978, she continued to work at her job despite occasional flare-ups until the 1980 injury prevented her from returning.
Appellant argues, however, that claimant was a “psychological accident waiting to happen” and that no one was able to state positively that the injuries caused claimant’s neurosis. Considering the subjective nature of any psychological injury it would be difficult to say any undisputed evidence either for or against causation was present. Rather, this case required a weighing of credibility and balancing of common sense which is the particular province of the district court. Further, while testimony such as that disclosed in this record can reasonably be the subject of opposite interpretations and even support opposing conclusions, the test is whether the record contains any substantial competent evidence which on any theory justifies the trial court’s findings. Day and Zimmerman, Inc. v. George, 218 Kan. 189, 196, 542 P.2d 313 (1975).
Appellant argues that claimant’s problems are the result of external forces and not her job and cites as support the case of Rund v. Cessna Aircraft Co., 213 Kan. 812, 518 P.2d 518 (1974). Rund, however, involved a situation different from the instant case. Rund, like the case now before the court, did concern a claimant who suffered a fall on the job and consequently began outwardly manifesting her previous emotional and mental prob lems. In Rund, the Kansas Supreme Court held the mental problems were caused by external forces and not the job-related injury, and thus denied compensation. The key to distinguishing Rund from the case now before the court, however, is the nature of each claimant’s injury and mental and emotional problems. In Rund, the claimant suffered mental problems relating to an unresolved guilt complex over sexual matters. Her problem with her own sexuality clearly was not related to her job with Cessna Aircraft. In the present case, claimant suffers from mental and emotional problems associated with stress and tension. These are characteristics of her job and thus claimant’s problems are symptomatically connected to her employment. Thus, while it may not be possible to prove causation with certainty, it cannot be said there is no relationship between the stress and tension of claimant’s job and the stress and tension causing claimant’s mental and emotional problems. And as long as there is substantial evidence before the district court upon which to base its findings, the decision of the district court must be affirmed.
Appellant next contends the district court committed error by assessing all the award against the State of Kansas instead of assessing a portion of the award against the Kansas Workers’ Compensation Fund.
For an employer to escape liability to an injured workman, the employer must show that he knowingly either hired or retained a handicapped person. (K.S.A. 1983 Supp. 44-567.) “Handicapped employee” is defined in K.S.A. 1983 Supp. 44-566(b). If an employer meets these tests he is not liable for injuries that would not have occurred “but for” the preexisting impairment (K.S.A. 1983 Supp. 44-567[A]); and additionally, if the preexisting condition contributed to the later injury for which recovery is sought, the employer is then liable for an amount determined by apportioning the liability attributable to claimant’s disability between that caused by the preexisting injury and that caused by the current injury. (K.S.A. 1983 Supp. 44-567[B].)
Thus, the initial burden is on the State of Kansas, in the instant case, to show either that it had knowledge of claimant’s preexisting mental and emotional problems or that it gained such knowledge during the course of claimant’s employment but retained her regardless of such knowledge.
The district court adopted the following findings of the administrative law judge:
“8. The respondent and insurance carrier have asked that a portion or all of any award be set off against the Workers’ Compensation Fund. It is necessary before any award be set off against the Fund that several things be proven by the respondent and insurance carrier. First, it must be shown that claimant was hired or retained in her employment with knowledge that she had a handicap. There is no evidence that claimant was hired with that knowledge. There was some testimony concerning whether or not respondent and insurance carrier knew of claimant’s pre-existing condition. A Form 88 was filed with the Director’s office, which was verified by this Judge, on March 22, 1979. This form simply shows ‘Robert [sic] Ruse No. 17’. No. 17 is the catch-all phrase on a Form 88 indicating any other physical condition that may constitute a handicap. There is no specific showing on the Form 88 of any particular type of handicap. Donald Farr, who is the Court Administrator and had been so since January 1, 1976, said there was in Roberta Ruse’s file a Form 88 showing a ‘ruptured disc’. Mr. Farr says he did not know which disc in claimant’s back was ruptured nor did he had [sic] any specific knowledge pertaining to claimant’s condition. Judge Klein testified that he knew the claimant had a lot of personal problems and that she was hurting physically when she worked for him in May, 1981. He said he didn’t see the claimant and she did not work under him between April, 1978, and December 8, 1980. Mr. Farr said that he had never been told prior to December 1980, that there were things claimant shouldn’t or couldn’t do physically. He did not consider the claimant to be handicapped.
“. . . The Judge has concluded that all of claimant’s disability results from her conversion reaction and that respondent and insurance carrier had no knowledge of her psychiatric problems prior to December 8,1980. The Judge is not satisfied that the respondent and insurance carrier had knowledge of claimant’s pre-existing back condition prior to December 8, 1980. The Judge would find that the respondent and insurance carrier have failed in their burden to prove liability on the part of the Workers’ Compensation Fund and would not order that any liability be set off against the Workers’ Compensation Fund.”
Appellant argues there was insufficient evidence before the district court from which it could base its findings of fact. Appellant points out there was testimony by Dr. Wellshear that claimant’s mental and emotional problems were preexisting and that, although the State of Kansas did not have specific knowledge of the exact kind of problem claimant had, it did possess general knowledge of her problems, as evidenced by the fact that a Form 88 was on file in claimant’s records with a check-mark by the caption “Other Physical Impairment,” and the fact that Judge Klein knew generally of claimant’s personal problems. This, the State argues, was sufficient to cause the scope of K.S.A. 1983 Supp. 44-567 to come into play.
Again appellant seeks to have us consider the evidence presented before the trial court which is in its favor and, in effect, would have us re-try the case and believe facts which quite obviously did not impress .the trial court. In this vein appellant asks that we give emphasis to the fact the employer knew she had some sort of trouble, mentally or emotionally, before the injury for which she has now obtained remuneration. In short though, the filing of a Form 88, standing alone, does not import such knowledge, nor does the inclusion thereon of “ruptured disc” constitute sufficient knowledge to shift the burden of liability.
In Carter v. Kansas Gas & Electric Co., 5 Kan. App. 2d 602, 607, 621 P.2d 448 (.1980), this court analyzed Kansas cases concerning handicapped employees and the scope of review used to determine whether an employee was “knowingly” retained or not. The Carter court set out certain principles for use in making such a determination. We will not repeat those principles here, but conclude that, applying them to the instant case, the trial court was correct in concluding nonliability of the Fund.
For example, the district court found the Form 88 filed in the State of Kansas’ files on claimant was inadequate and did not supply the State with any particularized knowledge of claimant’s condition. Further, the district court found the judge claimant worked for may have had some knowledge of claimant’s personal life and problems, but that he did not see claimant at all during the time period between the first and second injury. Finally, the district court noted that Donald Farr, the Court Administrator, said he had no specific knowledge regarding claimant’s back condition. As in Carter, these are negative findings. The State does not point to any “undisputed evidence” which it claims the court arbitrarily disregarded. The court found the State was aware of claimant’s 1978 injury, but that this knowledge alone was insufficient to provide the State with knowledge claimant was “handicapped.”
The court had evidence before it that although a Form 88 was filed with the Division of Workers’ Compensation on March 22, 1979, the claimant testified the signature on the Form 88 was not hers. Mr. Farr testified that there was no information in the claimant’s file regarding the 1978 accident. Mr. Farr also stated that claimant was evaluated on July 18, 1980, and again on October 18, 1981, receiving an overall rating of “good” both times. Mr. Farr stated he never considered claimant handicapped in any way.
Thus, the evidence before the court was such that the district court could have found the State of Kansas did not have knowledge that claimant was “handicapped” and therefore did not retain her as a handicapped employee. Although it is not necessary the State of Kansas have knowledge of claimant’s specific disease or mental or emotional problem in order to “knowingly” retain a “handicapped employee,” it cannot be said mere general knowledge of a claimant’s injury in every case is sufficient. As in Carter, “. . . a particular back injury need not affect the employee’s work ability or employment possibilities. It cannot be simply assumed that a single trauma back injury is likely to have recurring effects, particularly when the employee is released to full work duty by his or her doctor.” 5 Kan. App. 2d at 607. Such was the case in Carter, and such is the case here.
On the record in this case, then, it cannot be said the court erred in finding the State of Kansas to have failed in its burden of proof.
Finally, appellant argues the district court erred in ruling claimant did not suffer any permanent partial disability or permanent total disability as a result of the accident on April 6, 1978, while claimant was working for Sedgwick County. The appellant complains that it was error for the court to make the above ruling and for its failure to assess part of the award against Sedgwick County.
Reviewing the evidence before the court, Dr. Poole testified that claimant was without symptoms when he last saw her prior to the second injury and that “. . . at the last time that I saw this patient in 1979,1 thought the patient did not have any permanent disability attributable to the events of 1978.” In addition, Dr. Barnett also testified that as to the April 1978 injuries, “I would not expect her to have permanent problems from this.” Further, Dr. Wellshear testified that in August 1979 claimant was free from the pain and problems which had been plaguing her since the April 1978 accident. Dr. Wellshear stated, “At that moment in time, the history suggests that she was between symptoms.”
This evidence possesses substance and relevance and, in our opinion, furnishes a substantial basis of fact which supports the conclusion of the trial court that Sedgwick County was not liable for any part of the award.
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Abbott, J.:
The claimant, Hector Quinones, appeals from a judgment in a workers’ compensation case which held that the loss of sensation in his left lower extremity is not compensable under the Workmen’s Compensation Act.
The dispositive facts are simple and are largely undisputed. Claimant’s right arm was caught by two meat hooks and pulled into a machine, causing injuries that are not in question on appeal. In an attempt to restore maximum use and an ability to feel in the injured hand and arm, a nerve was transplanted from claimant’s left leg.
As a result of the nerve’s being removed, claimant has no feeling in an area several inches wide extending along the back of his left leg from his ankle to his knee and the lateral aspect of his foot. The question before us is whether this loss of sensation is a compensable injury.
The nerve that was transplanted controlled sensation only and had no bearing on motion or strength.
The administrative law judge gave claimant a permanent partial disability to the body as a whole because of the loss of sensation, reasoning as follows:
“Claimant’s general body disability results from the combination of injuries to his right arm and the harvest site of his left foot and leg of the nerve transplanted into his right arm. Both Dr. Artz, the treating orthopedic surgeon, and Dr. Schlachter gave a functional disability rating to the left leg. Dr. Goodpasture, Respondent’s examining doctor, testified claimant suffered a change from normal as a result of loss of sensation in the left leg, even though he assigned no functional loss to the Claimant’s left leg.”
The director reversed the award for compensation to the claimant’s leg and for general bodily disability, stating:
“After reviewing the record in this matter, the Director believes that the award should provide for compensation to claimant’s injured right arm, but should not include compensation for claimant’s leg nor for any general body disability. The Director notes that the physicians in this matter who did assign a percentage of disability did so on the basis of loss of sensation, but both physicians then added that there is no actual loss of use, but rather a loss of sensation. Unlike a loss of sensation to the fingers of the hand which could amount to a disabling result, there is no indication in the record that the loss of skin sensation on the back of claimant’s lower leg would result in any actual loss of the use of the leg. The only difference would be that claimant could burn the leg or cut the leg and not be aware that he had done so, however, the leg functions as though the nerve were never removed.”
The trial judge adopted the director’s findings of fact and conclusions of law. We reverse.
Disability resulting from skillful medical treatment for compensable injuries is compensable. Duncan v. Davidson Construction Co., 170 Kan. 520, 526-528, 227 P.2d 95 (1951). Both parties tacitly agree to this proposition.
In Anderson v. Kinsley Sand & Gravel, Inc., 221 Kan. 191, 196, 558 P.2d 146 (1976), the Supreme Court concluded: “[A] workman is entitled to recover an award equal to the percentage of his physiological capabilities lost by reason of an injury occurring within the scope of his employment.” (Emphasis supplied.) The same opinion defined functional disability as “the loss of a part of the total physiological capabilities of the human body.” p. 195. See also Gross v. Herb Lungren Chevrolet, Inc., 220 Kan. 585, 587, 552 P.2d 1360 (1976).
In this case, the three physicians who testified agreed that claimant had suffered a loss of sensation (pain, heat, cold) in his calf and lateral aspect of his foot. This loss could cause claimant to injure his leg or foot without being aware of it, and makes him less employable as a manual laborer since he cannot feel cold or heat and feels no sensation of pain.
The holdings in Anderson and Gross focus on the loss of physiological capabilities and totality of functions. Here, all three testifying physicians agreed that Quinones’ calf has suffered a loss of tactile sense, which we hold to be a compensable loss of physiological capabilities.
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Briscoe, J.:
The defendant, Joe R. Wilson, appeals the sentence imposed by the district court after his conviction for driving while under the influence of alcohol (K.S.A. 1983 Supp. 8-1567).
The defendant was sentenced as a third offender pursuant to K.S.A. 1983 Supp. 8-1567(e), which sets forth the penalties for third or subsequent convictions for driving while under the influence. K.S.A. 1983 Supp. 8-1567(i) defines the convictions which may be considered in determining whether the defendant is a first, second or third offender as follows:
“For the purpose of determining whether a conviction is a first, second or third or subsequent conviction for the purpose of sentencing under this section, the term ‘conviction’ -includes being convicted of a violation of this section or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section. For such purpose ‘conviction’ also includes being convicted of a violation of a law of another state or an ordinance of any municipality which prohibits the acts that this section prohibits or entering into a diversion agreement in lieu of further criminal proceedings in a case alleging a violation of such a law or ordinance. For the purpose of this section, only convictions occurring in the immediately preceding five years, including prior to the effective date of this act, shall he taken into account.” Emphasis added.
The sole issue raised by this appeal is whether under K.S.A. 1983 Supp. 8-1567(i) the sentencing court’s consideration of prior convictions is limited to those occurring within five years of the present conviction, or to those occurring within five years of the present offense.
Our present case began with defendant’s arrest on August 25, 1983, for driving while under the influence of alcohol. Defendant was convicted in municipal court on January 4, 1984. After appeal to the district court and a de novo trial, defendant was convicted in district court on June 29, 1984. Defendant had two prior convictions for driving while under the influence of alcohol; the first conviction was on February 8, 1979; the second, on April 1,1982. The district court considered both of these prior convictions and sentenced defendant as a third offender pursuant to K.S.A. 1983 Supp. 8-1567(e).
Wilson contends K.S.A. 1983 Supp. 8-1567(i) prohibits the district court from considering the February 8, 1979, conviction because that conviction occurred more than five years prior to his conviction in district court on June 29, 1984. Defendant argues the municipal court conviction date which fell within the five-year period is of no significance because his appeal and de novo review in the district court began his case anew. We conclude defendant was properly sentenced.
Although defendant would have us consider only those convictions occurring within the five-year period preceding the district court conviction, we believe consideration of convictions occurring within a five-year period preceding the present offense is more consistent with existing case law. In State v. Wilson, 6 Kan.App.2d 302, Syl. ¶ 1, 627 P.2d 1185, aff'd 230 Kan. 287, 634 P.2d 1078 (1981), the court held the enhancement of a defendant’s sentence as a third offender under K.S.A. 1980 Supp. 21-4504(2) required each succeeding offense be committed after the conviction for the preceding offense. Throughout its opinion, the court keyed its analysis of defendant’s offender status to the sequential relationship of preceding conviction to subsequent commission of an offense.
Again, in State v. Osoba, 234 Kan. 443, 672 P.2d 1098 (1983), the court addressed which convictions could be considered at sentencing. In Osoba the defendant claimed first offender status under K.S.A. 8-1567, alleging conviction of her first offense of driving while under the influence of alcohol must precede her commission of a second offense before the first conviction can be counted for sentencing purposes. The court agreed with the defendant and concluded the sequential relationship applied in Wilson should be extended by analogy to K.S.A. 8-1567(d). The court held K.S.A. 8-l567(d) requires that each succeeding offense be committed after conviction of the preceding offense.
In both Osoba and Wilson, the number of the defendant’s prior convictions was determined as of the date of the present offense. If the conviction occurred prior to defendant’s present offense, it was counted. If there was only a prior offense without a conviction, it was not counted. Here, when the defendant’s prior convictions are counted as of the date of his present offense, he has two prior convictions within the preceding five years. The district court properly considered defendant’s 1979 conviction in sentencing the defendant as a third offender.
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Abbott, J.:
The plaintiffs, John B. Hermes and John Back, initiated this action in replevin to recover cattle. The defendants counterclaimed for pasture rent and care of cattle, and Fred Stackley, Jr., also counterclaimed for past-due wages and miscellaneous items he claimed to be due pursuant to a contract of employment. The plaintiffs posted a replevin bond and obtained possession of the cattle. The trial court granted judgment to defendants on their counterclaim and the plaintiff John Back appeals. The record indicates that plaintiff John B. Hermes was declared a bankrupt and he is not a party to this appeal.
Fred Stackley, Jr., was employed by Hermes under a written employment agreement. Stackley was to obtain pasture leases for cattle owned by Hermes and, among other employment duties, take care of the cattle. Stackley obtained three leases in Butler County for that purpose in 1982 (the Doornbos lease, the Autry and Hull lease, and the Schmidt lease). Hermes did not make the lease payments on the leases, and when he told Stackley he was going to remove the cattle from the rented pastures, Stackley told him he could not do so until the pasture rent was paid to the owners. Stackley then, with the permission of the pasture owners, removed the cattle to his mother’s farm on November 19, 1982. Stackley and the landowners filed lien statements for pasture rental and for the care and custody of the cattle.
Hermes paid the rent on the Schmidt lease before this action was commenced and the Schmidts are not parties herein. Stackley included a claim for care provided the cattle on the Schmidt lease and his judgment is in part for that claim.
Neither Hermes nor Back testified at trial. None of the witnesses were acquainted with Back and they were unaware he claimed an interest in the cattle until this replevin action was filed. Back claimed an interest in the cattle in the replevin petition and executed the replevin bond. The only evidence presented at trial was on the counterclaim. Hermes and Back presented no evidence.
The trial court denied the plaintiffs’ replevin petition and entered judgment for the defendants on their counterclaim against both Hermes and Back. The judgment for Doornbos was in the amount of $1,900; for the Autrys and Hull, $1,203.75; and for Stackley, $3,443.
Back appeals, claiming there is insufficient evidence to support the judgment against him and that the trial court erred in finding the defendants’ lien valid.
The judgments in favor of Doornbos and the Autrys and Hull were based upon findings that their liens were valid and they were entitled to recover the amounts alleged in those liens. As will be discussed later, the defendants held agisters’ liens pur suant to K.S.A. 58-220, which grants a primary lien to owners to secure the payment of rent for pasture land which is leased or rented out exclusively for pasture purposes.
There was no evidence whatsoever that Back was involved in the contractual arrangements under which the leases were obtained. The testimony of Stackley and Kenneth Autry reveals that the defendants had no knowledge of Back’s interest in the cattle. That fact is of no comfort to Back because the agisters’ liens gave the pasture owners a lien upon the livestock. Back admitted a proprietary interest in the cattle; indeed, such an interest was necessary for him to maintain a replevin action. Back posted a replevin bond pursuant to K.S.A. 60-1005(b) to regain possession of the cattle during the pendency of this action.
Back argues that if there had been no replevin bond, there would have been no basis to support the judgment against him. Our reply is that if there had been no replevin bond, the cattle would have remained in the possession of the defendants. The defendants could then have sold the cattle and used the proceeds to satisfy their liens. Having executed the bond as principal, Back was liable for any judgment in favor of the defendants. See Kendall v. Black, 99 Kan. 101, 160 Pac. 1015 (1916). See generally Prather v. Johnson, 168 Kan. 149, 211 P.2d 98 (1949). The real question before us is whether the defendants’ liens were valid.
A similar analysis applies to Stackley’s lien, which was based upon care given the cattle and thus arose under K.S.A. 58-207. A lien granted under that statute is upon the livestock. Back’s claim of ownership of the cattle would be sufficient to support the judgment for Stackley if Stackley’s lien were valid.
At common law there was no agister’s lien for the care and pasturing of cattle. See Kelsey v. Layne, 28 Kan. * 218, * 222 (1882). Since the liens created by 58-207 and 58-220 are statutory in nature, their validity depends upon the terms of the statute. See generally Clark Lumber Co. v. Passig, 184 Kan. 667, 673, 339 P.2d 280 (1959). Back asserts numerous defects in the liens in issue.
K.S.A. 58-220, which provides an agister’s lien to a pasture owner who leases his property for pasture purposes, has been in effect since 1937. The statute states:
“Any owner of pasture lands, or the trustee or agent of such owner, who shall lease or rent such pasture lands exclusively for pasture purposes to any person, copartnership or corporation for the pasturing of cattle, horses, sheep or other livestock shall have a first and prior lien upon all of such livestock or so much thereof as may be necessary to secure the payment of the rent for said pasture land, only, and said lien shall be preferred to that of any prior security interest or other encumbrance and shall be valid irrespective of possession by the owner of such lands, or the owner’s trustee or agent: Provided, The lessor record a duly verified notice of his or her claim to a lien upon such livestock in the office of the register of deeds in the county where such livestock is pastured prior to the expiration of fifteen (15) days after such livestock is removed from the pasture.”
“If the contract price be not paid when the same is due and payable, the said livestock, or so much thereof as may be necessary to pay said lien and the expenses of sale, may be sold at public sale in the county where the lien arose, after giving ten days’ written notice to the owner, trustee or agent by registered mail at his or her last-known address, and by publishing notice of said sale once in a newspaper of general circulation in the county where said livestock may be located: Provided further, That foreclosure proceedings must be commenced on or before December thirty-first following the season for which such rent is owing.”
Back claims the Doombos lien is invalid because Doombos did not lease land exclusively for pasture purposes and the foreclosure proceedings were not commenced by December 31, 1982.
The word “exclusively” was not contained in the original version of 58-220. Rather, it was added to the statute in a 1939 amendment. See L. 1939, ch. 229, § 1. According to Hannah, The Legal Status of Tenant Farmers in Kansas, 7 Kan. L. Rev. 295, 303 (1959), the word was added so that landlords would not have an additional lien upon the crops of tenant farmers who also owned livestock.
The lease agreement on the Doombos land did not apportion the annual rent between the pasture and the farm land, but simply established a total rent of $2,400 for one year. The contract did, however, specifically provide that the lease was for 77 acres of cropland and 145 acres of pasture. Thus, in our opinion, the pasture lands were leased exclusively for pasture purposes. While there was not a “contract price” solely for the pasture rental, Stackley testified that the portion of the contract price attributable to the pasture land was based upon the average fee for pasture rental in the area and what that fee was. Plaintiffs presented no evidence to show that such calculations were unreasonable. Since the Doornbos lien simply sought to recover the payment of the rent for said pasture only, the lien, in our opinion, was valid.
The last provision in 58-220 is that foreclosure proceedings must be commenced on or before December 31 following the season for which the rent is owed. Although Doornbos filed his lien on November 19, 1982, he did not file his counterclaim seeking to foreclose upon the lien until February 22, 1983. Consequently, Back alleges that the lien expired on December 31, 1982.
This argument is without merit as to the Doornbos lease if the phrase “the season for which such rent is owing” is construed to mean the period for which the pasture contract is in effect. The rent on the Doornbos lease was due December 1,1982; however, the lease itself ran from March 1, 1982, until March 1, 1983. The parties may have intended that the lease continue until March 1 for farming rather than pasturing purposes, but plaintiffs presented no evidence to that effect. Although it is clear that the intent of the legislature is to require prompt action to foreclose an agister’s lien, it is unrealistic here to require that foreclosure proceedings commence before the termination of the lease period, even though the rent may have been due. Since the Doornbos lease was still in effect on December 31, 1982, this court need not determine whether the foreclosure of Doornbos’ lien was commenced in a timely fashion.
We hold that the Doornbos lien was valid and that the trial court did not err in granting Doornbos judgment for the amount alleged in that lien.
In addition to Back’s claiming that the proceedings to foreclose the Autry/Hull lien were not timely commenced, he also claims that these parties could not obtain the benefit of an agister’s lien under 58-220 because the owner of the pasture land did not enter into the lease agreement. On the one hand, Back argues that the Autrys, as lessees of Hull, were not the owners of the pasture lands; further, that they were not acting as agents or trustees for Hull because they subleased the pasture to Stackley for a profit (the Autrys leased the land from Hull for $800 a year, but charged Stackley $1,125 for a six-month period). On the other hand, Back argues that Hull was not a party to the lease agreement, therefore she is not a lessor entitled to the benefit of the lien.
Back’s argument that these parties were not entitled to the benefit of a lien fails on the merits. As lessees, the Autrys stood in the position of the owner of the pasture land for purposes of 58-220. “When land is leased to a tenant, the law of property regards the lease as equivalent to a sale of the premises for the term. The lessee acquires an estate in the land, and becomes for the time being the owner and occupier. . . .” Borders v. Roseberry, 216 Kan. 486, 488, 532 P.2d 1366 (1975). Thus, the Autrys were entitled to file a lien.
Hull may not have entered into the sublease agreement with Stackley; however, Kenneth Autry testified that he had an agreement with Hull under which he could pasture other people’s cattle on the property. More importantly, the Autrys and Hull filed a joint lien statement, and judgment was entered jointly in their favor. Since the lien itself was valid, and, there is no dispute as to how the judgment should be divided between the Autrys and Hull, the question becomes whether proceedings to foreclose their lien were timely commenced.
Unlike the Doornbos lease, the Autry lease did terminate in 1982 because the lease was in effect only until October 15, 1982. Although the Autry/Hull lien was filed November 30,1982, their counterclaim was not filed until February 22, 1983.
In our opinion, the “foreclosure proceedings” referred to in the second proviso to 58-220 is not a court action. The proviso must be read in light of the clause it is qualifying, which simply provides that if the contract price is not paid when due, the livestock may be sold after giving the owner written notice and publishing notice of the sale. The statute makes no mention of a judicial proceeding. By way of comparison, K.S.A. 60-1105, which governs the foreclosure of mechanics’ liens, does require court action for such a foreclosure. On the other hand, K.S.A. 84-9-504(3) uses the term “proceedings” in referring to the sale of collateral by a secured creditor following a default by a debtor.
The dispositive question is when such foreclosure proceedings were “commenced.” K.S.A. 58-220 provides in pertinent part that “foreclosure proceedings must be commenced on or before December thirty-first following the season for which such rent is owing.” Thus, the filing of the Autry/Hull counterclaim was too late to comply with the statutory requirement. According to Black’s Law Dictionary 243 (5th ed. 1979), to “commence” means to initiate by performing the first act. K.S.A. 58-220 requires that the first act in a foreclosure proceeding is to give ten days’ written notice to the owner of the livestock by registered mail at his or her last-known address, and by publishing notice of the sale as set forth in the statute. The lien statement filed by the Autrys and Hull expressly informed Hermes (but not Back) that if the amount due was not paid within 30 days, the cattle would be sold at public auction. Stackley testified that copies of the liens were sent to Hermes.
In our opinion, the notice referred to in 58-220 is notice that a sale will, in fact, take place. To meet due process requirements, this would require notice of a date, time and place of sale. There is no evidence in the record that such notice was given to Hermes or Back. We conclude that notice of an actual, imminent sale is required to constitute the commencement of foreclosure proceedings under 58-220. Thus, the judgment in favor of the Autrys and Hull should be vacated, for their lien lost its force and effect when foreclosure was not commenced before December 31, 1982, following the pasture season. See generally Boyce v. Knudson, 219 Kan. 357, 362, 548 P.2d 712 (1976) (mechanic’s lien lost when not timely foreclosed).
Stackley did not file a separate lien on his own behalf, but rather asserted a claim in each of the three pasture owners’ liens for expenses incurred in caring for the cattle. It appears that the $3,443 judgment in favor of Stackley included a claim of $1,750 for unpaid wages and $1,693 for care of the cattle.
Stackley’s lien presents a claim for care provided the cattle and is therefore based upon K.S.A. 58-207, which provides:
“The keepers of livery stables, and all others engaged in feeding horses, cattle, hogs, or other livestock, shall have a lien upon such property for the feed and care bestowed by them upon the same, and if reasonable or stipulated charges for such feed and care be not paid within sixty (60) days after the same becomes due, the property, or so much thereof as may be necessary to pay such charges and the expenses of publication and sale, may be sold as provided in this act: Provided, however, That any lien created by this act may be assigned.”
Contrary to Back’s assertion, Stackley’s not being engaged as an independent contractor in the occupation of caring for cattle does not render his lien ineffective. See Kelsey v. Layne, 28 Kan. at * 222-25, wherein it was held that the care provided for a single animal was sufficient to establish a lien. More troublesome, however, is Stackley’s possession of the cattle as an employee of Hermes. In Loader v. Bank, 113 Kan. 718, 216 Pac. 264 (1923), the court held that it is indispensable to the enforcement of the lien that the lien claimant be a bailee in possession. It may be possible to distinguish Loader and the possession requirement set forth therein since that case, and many other early cases arising under 58-207, involved a pasture contract and would now fall under 58-220. However, the court in Chasteen v. Childers, 218 Kan. 519, 525, 546 P.2d 935 (1976), relied in part on the plaintiff s lack of possession of certain horses in holding that the plaintiff was not entitled to a lien under 58-207.
Back argues that because Stackley was Hermes’ employee, Stackley’s possession of the cattle was not his own but rather was the possession of Hermes. The general rule is that a servant for hire is not entitled to the benefit of a lien since a servant’s possession is that of the master’s. See 4 Am. Jur. 2d, Animals § 74; 3A C.J.S., Animals § 59 c; Annot., 107 A.L.R. 1072. See generally 1 Jones on Liens § 689 (3rd ed. rev. 1914). Given that Stackley was not a bailee in possession of the cattle, as required by Loader, he was not entitled to a lien under 58-207. Thus, the finding that his lien was valid is reversed and the judgment in his favor vacated, even though he provided care for cattle in which Back had a proprietary interest.
The unpaid wages portion of the judgment is vacated against Back, because he was not a party to the employment contract. That was strictly between Stackley and Hermes. The record is void of any evidence of a partnership or agency relationship between Back and Hermes and gives no indication of when or how Back acquired his interest in the cattle (or what interest he acquired). The case was tried on the theory of an employment contract and a lien, not on quantum meruit or other equitable theory.
The judgment in favor of Doornbos is affirmed. The judgment in favor of Stackley, the Autrys and Hull is reversed.
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Gernon, J.:
Kevin Thomas appeals his conviction of possession of cocaine. He raises probable cause issues surrounding the search which provided the basis of the charges against him.
Thomas was stopped for a traffic violation. Deputy Sheriff Cooper discovered there was an outstanding warrant out for Thomas and arrested him. On the way to jail, Cooper noticed a strong odor of marijuana coming from Thomas.
Cooper advised the jail personnel of the odor and recommended a strip search. Thomas disrobed, and the officers conducting the search observed a portion of a baggie between his buttocks. The baggie contained cocaine, and Thomas was charged with possession of cocaine.
Thomas moved to suppress the cocaine and various statements he had made while in custody. The trial court concluded there was probable cause for the search and denied the motion.
The facts are not in dispute. “When the facts material to a motion to suppress evidence are not in dispute, the question of whether to suppress becomes a question of law, [citation omitted] upon which [the] scope of review is unlimited.” State v. Rexroat, 266 Kan. 50, 53, 966 P.2d 666 (1998). Additionally, this issue involves interpretation of statutes, also subject to unlimited review. State v. Patterson, 25 Kan. App. 2d 245, 247, 963 P.2d 436, rev. denied 265 Kan. 888 (1998).
K.S.A. 22-2521(a) provides: “No person detained or arrested solely for the violation of a statute, resolution or ordinance involving a traffic, regulatory or nonviolent misdemeanor offense shall be strip searched unless there is probable cause to believe that the individual is concealing a weapon or controlled substance.” This is supplemented by K.S.A. 22-2524(b), which states:
“The provisions of this act relating to strip searches other than subsection (b) of K.S.A. 22-2521 [requiring strip searches be conducted by members of the same sex as tire person being searched] shall not apply when a person accused of a crime is committed to a jail or other institution pursuant to a court order, nor when a person accused of a crime is, of necessity, confined with other prisoners in a jail while awaiting appearance before a magistrate.”
The question here is whether the provisions of K.S.A. 22-2521(a) are negated by the existence of a bench warrant.
The State argues that the probable cause requirement of K.S.A. 22-2521(a) does not apply because Thomas “was not detained or arrested solely for the violation of a traffic offense.” However, the restrictions of K.S.A. 22-2521(a) are not limited to those detained or arrested solely for traffic offenses, but also apply to those indi viduals detained or arrested for “regulatory or nonviolent misdemeanor offense[s].”
The record does not reveal the nature of the offense that was the basis for the bench warrant. There is nothing in the record to dispute Thomas’ assertion that it was for a traffic offense. The burden to prove that Thomas was arrested for something other than a traffic offense or a regulatory or nonviolent offense is on the State. The State failed to meet this burden.
The State also attempts to argue that a bench warrant is an order of the court and, therefore, falls within an action contemplated in K.S.A. 22-2524. If we were to accept the State’s argument and follow it to its logical end, then whenever a citizen is picked up on a bench warrant, for whatever the reason, that citizen would be subject to a strip search.
A more logical interpretation, in our view, of the reference in K.S.A. 22-2524 to commitment to “a jail or other institution pursuant to a court order” is to consider the “order” an order after a first appearance and after a court concludes it is necessary to keep an individual in custody pending trial.
The question becomes one of security and control of the institution, and those issues override some individual rights at that point.
In Bell v. Wolfish, 441 U.S. 520, 560, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979), the Supreme Court held that strip searches of pretrial detainees (including visual body cavity inspections) with less than probable cause were constitutional.
Kansas’ statutoiy scheme regarding strip and body cavity searches of persons in custody (K.S.A. 22-2520 through K.S.A. 22-2524) was enacted in 1981, shortly after the Bell decision. Presumably, this statutory scheme was intended to conform with the constitutional interpretation of the Bell Court. The intent of K.S.A. 22-2524(b) appears to be to codify the scope of allowable strip searches to the extent allowed by Bell. That being the case, a reasonable interpretation of the phrase negating the restrictions of K.S.A. 22-2521 with regard to persons accused of a crime and committed to jail pursuant to a court order leads to the conclusion that it means pretrial detainees like those in Bell, and not initial arrestees arrested on a warrant like Thomas.
This interpretation is further strengthened by the subsequent clause of K.S.A. 22-2524(b) “nor when a person accused of a crime is, of necessity, confined with other prisoners in a jail while awaiting appearance before a magistrate.” (Emphasis added.) This last clause makes a special exception to the requirements of K.S.A. 22-2521 for those persons awaiting appearance before a magistrate when the situation dictates that they must be confined with the general prisoner population. This specific reference to those awaiting appearance before a magistrate, and the absence of any such reference anywhere else in the statute, indicates that this is the only situation in which a person detained or arrested solely for a traffic, regulatory, or nonviolent misdemeanor offense can be strip-searched absent probable cause prior to appearing before a magistrate. Whether said detainee was arrested on a warrant is immaterial.
The State also argues that the provisions of K.S.A. 22-2524(b) render the limitations in K.S.A. 22-2521 inapplicable because Thomas presumably was to be confined with other prisoners in jail while awaiting appearance before the judge who issued the bench warrant. This argument fails. The provisions of K.S.A. 22-2524(b) apply only “when a person accused of a crime is, of necessity, confined with other prisoners in a jail.” (Emphasis added). The burden of showing such necessity is on the State. The State has failed to show that Thomas was, by necessity, confined with the general prison population. See Allen v. Board of Com'rs of County of Wyandotte, 773 F. Supp. 1442, 1449-50 (D. Kan. 1991).
The State’s argument that the applicable statute allows such a search under these circumstances is rejected.
We may, however, look for probable cause based on the odor of marijuana.
In State v. MacDonald, 253 Kan. 320, 324-25, 856 P.2d 116 (1993), the Kansas Supreme Court held that the mere odor of marijuana, standing alone, was sufficient to establish probable cause to conduct a warrantless search of an automobile. However, no Kansas court has addressed whether the mere odor of marijuana is sufficient to establish probable cause to search a person. The MacDonald court noted: “A majority of courts have found that marijuana odor detected by an experienced law enforcement officer can provide sufficient probable cause to support a warrantless search.” 253 Kan. at 325 (citing U.S. v. Padron, 657 F. Supp. 840 (D. Del 1987), aff'd without op. 857 F.2d 1466 (3d Cir.), cert. denied 488 U.S. 974 (1988). Padrón, like MacDonald, involved an automobile search. The Padrón court cited a series of federal circuit court opinions in which it was held that the odor of marijuana was sufficient to establish probable cause: United States v. Lopez, 111 F.2d 543 (10th Cir. 1985); United States v. Haley, 669 F.2d 201 (4th Cir.), cert. denied 457 U.S. 1117 (1982); United States v. Rivera, 595 F.2d 1095 (5th Cir. 1979); United States v. Garcia-Rodriguez, 558 F.2d 956 (9th Cir. 1977), cert. denied 434 U.S. 1050 (1978). However, like Padrón and MacDonald, these, too, involved automobile searches.
We recognize that the search of an automobile is far less intrusive than a strip search of an individual.
Under the unique facts of this case, we must recognize, as did the Court in Bell, that a detention facility is “a unique place fraught with serious security dangers.” 441 U.S. at 559.
The odor of marijuana on an individual about to enter a detention facility would give rise to concerns over the possible introduction of contraband into the facility, implicating the legitimate security interests of the institution, as recognized in Bell. 441 U.S. at 559-60 n. 40. Under MacDonald, there is already existing Kansas precedent for the conclusion that the odor of marijuana can form the basis for probable cause. 253 Kan. at 324-25. Therefore, it can be reasonably concluded that the odor of marijuana on a person in custody, coupled with the detention facility’s recognized security interest in preventing the introduction of such contraband within its walls, is sufficient to establish probable cause to strip search the person in question.
We find no reversible error and affirm. | [
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Beier, j.:
Plaintiff-appellant Lonnie Sprague seeks reversal of the district court’s summary judgment in favor of defendant Farm Credit Services of Central Kansas PCA (PCA). The parties agreed at oral argument that defendant Farm Credit Bank of Kansas (FCB) is to be dismissed from the action. We affirm.
This case arises out of fraud committed on both parties by Albert “Junior” Lewis. Lewis, who had a revolving line of credit with PCA for his cattle business, cheated PCA as well as Sprague, whose cattle were sold without authorization. By means of this lawsuit, Sprague sought to follow and retrieve some of Lewis’ ill-gotten gains from PCA, because the balance on the line of credit was partially paid with funds Lewis obtained by defrauding Sprague.
Lewis purchased cattle with Sprague’s authorization and money in early 1997. Prior to that time, Sprague had funded such purchases; Lewis had conditioned the cattle for market; and the two men had split any profits from eventual sales made with Sprague’s permission. This time, Lewis began selling the cattle without informing Sprague in April 1997 and continued selling them on various occasions thereafter. Checks for proceeds from these sales were made payable to Lewis and PCA jointly, and it is undisputed that nearly $350,000 was applied to Lewis’ line of credit balance at PCA. In the same period, PCA permitted Lewis to borrow approximately $400,000 in addition to the amounts he had borrowed previously.
Lewis concealed his fraudulent conduct until November 1997. Part of his pattern of deceit included a statement he had made to a PCA employee who visited Lewis’ operation in October 1996, when the line of credit was renewed. Lewis had submitted a balance sheet that showed a net worth in excess of $1 million, and he told the employee that all of the cattle observed on his land belonged to him.
In November 1997, Lewis came clean with PCA and Sprague. He admitted that he had provided PCA with false financial statements and monthly inventory reports, and PCA and FCB representatives who visited his property in the wake of the disclosures confirmed that Lewis owned only 20 head of cattle. Lewis also told PCA in November 1997 that he had “partnered cattle” with various individuals during the previous year to conceal his losses.
PCA and FCB began collection and foreclosure actions against Lewis. Lewis subsequently filed for bankruptcy. The PCA debt was exempted from discharge due to fraud. The record does not disclose whether Sprague attempted to recover out of Lewis’ bankruptcy. Lewis also entered a guilty plea in federal court to bank fraud.
In this action, Sprague has argued that he is entitled to recover from PCA under what is known as “the trust pursuit rule.” He maintains that there are genuine issues of material fact under that rule that preclude summary judgment in favor of PCA.
Our standard of review in summary judgment cases is well known and often stated:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999).
The trust pursuit rule permits a true owner of wrongfully converted property to follow it into a subsequent possessor’s hands. It applies where a constructive trust has affixed itself to property in a certain state or form. The rightful owner may follow the proceeds from sale of the trust property so long as no superior equities have intervened. 76 Am. Jur. 2d, Trusts § 292, p. 306.
Sprague argues that the rule applies here because PCA does not qualify as a bona fide purchaser for value who had no notice of Lewis’ defalcation and Sprague’s resulting claim. See 76 Am. Jur. 2d, Trusts § 311, p. 322. According to Sprague, there are genuine issues of material fact on whether PCA obtained the proceeds from the sales in good faith for value, whether it had notice of Sprague’s interest in the cattle, and whether it changed its position or acted in reliance to its detriment upon receipt of the proceeds.
PCA does not dispute that Lewis became a constructive trustee of the sales proceeds when he sold the cattle without authorization from Sprague. However, according to PCA, Sprague does not have the right to follow the money because his trustee-agent Lewis used it to pay a personal debt to a creditor with no knowledge of Sprague’s interest.
Kimmel v. Bean, 68 Kan. 598, 75 Pac. 1118 (1904), and Hubbard v. Home Fed’l Savings & Loan Ass’n, 10 Kan. App. 2d 547, 704 P.2d 399 (1985), guide us on Kansas’ application of the trust pursuit rule.
In Kimmel, Kimmel shipped hogs to the Wichita Livestock Commission, with directions to sell them and send a draft for the net proceeds. The hogs were sold, and the Commission sent a check for the proceeds to Kimmel. When the Commission deposited the check it had received from the purchaser in its bank, the bank, with no notice of Kimmel’s claim to the money, applied the proceeds to an earlier overdraft of the Commission. The result: When Kimmel presented his check from the Commission for payment, it was dishonored and Kimmel sued the bank for that amount. The district court rendered judgment in favor of the bank, a result upheld by the Supreme Court on appeal. 68 Kan. at 607.
The Supreme Court cited Smith v. Des Moines National Bank, 107 Iowa 620, 78 N.W. 238 (1899), which stated: “ ‘A cestui que trust cannot recover trust moneys which were deposited in a bank by the trustee in his own name and which, without notice of their trust character the bank applied to a matured individual note of the trustee, surrendering the note to the latter.’ ” 68 Kan. at 603-04. This Iowa decision, the court said, was in accord with the weight of authority and better reason. 68 Kan. at 604.
The Kimmel court also relied on Stephens v. Board of Education, 79 N.Y. 183, 186-87, 35 Am. Rep. 511 (1879), which said:
“ ‘The rule has been settled by a long line of cases, that money obtained by fraud or felony cannot be followed by the true owner into the hands of one who has received it bona fide and for a valuable consideration in due course of business. . . .
“ 'It is said that the case is to be governed by the doctrine established in this state that an antecedent debt is not such a consideration as will cut off the equities of third parties in respect of negotiable securities obtained by fraud. But no case has been referred to where this doctrine has been applied to money received in good faith in payment of a debt. It is absolutely necessary for practical business transactions that the payee of money in due course of business shall not be put upon inquiiy at his peril as to the title of the payor. Money has no earmark. The purchaser of a chattel or a chose in action may, by inquiry, in most cases, ascertain die right of die person from whom he takes the title. But it is generally impracticable to trace the source from which the possessor of money has derived it. It would introduce great confusion into commercial dealings if the creditor who receives money in payment of a debt is subject to the risk of accounting therefor to a third person who may be able to show that the debtor obtained it from him by felony or fraud. The law wisely, from considerations of public policy and convenience, and to give security and certainty to business transactions, adjudges that the possession of money vests the title in the holder as to third persons dealing with him and receiving it in due course of business and in good faith upon a valid consideration. If the consideration is good as between the parties, it is good as to all the world.’ ” 68 Kan. at 605-06.
Mindful of these precedents from other jurisdictions, the Kimmel court held that the bank was protected in applying the money to the past due debt of the Commission, the agent of the undisclosed principal, Kimmel. 68 Kan. at 607. If a trustee, in violation of his or her duty, uses trust money or proceeds from sale of trust assets to pay an antecedent debt of his or her own, and the creditor has no notice that the money is subject to the trust or that the trust is being violated, the creditor takes free of the trust. The money cannot be followed by the beneficiary into the hands of the creditor. 68 Kan. at 606.
We applied the holding of Kimmel as recently as 1985 in Hub-hard. There, when a bank had permitted a conservator to take out loans to pay personal debts, using a conservatorship asset as collateral, we said: “Under Kimmel there must be knowledge that the funds applied to a fiduciary’s debt are trust funds before a bank will be liable, even if it benefits from the trustee’s misuse of the trust funds.” 10 Kan. App. 2d at 555.
Kimmel and Hubbard make clear that Kansas law permits a third party to keep proceeds paid to it from the unauthorized sale or encumbrance of trust property by the trustee, absent a showing that the third party acted in bad faith, had notice of the trust, or did not give consideration for the payment. Kimmel and Hubbard also, at least by implication, stand for the proposition that forgiveness of an antecedent debt can constitute valuable consideration in such a context. See 68 Kan. at 605-07; 10 Kan. App. 2d at 554-55. It does not appear that Kansas additionally requires that the third party have changed its position or acted in rebanee to its detriment upon receipt of the proceeds, other than whatever change or rebanee is inherent in the giving of consideration. See 68 Kan. at 605-07; 10 Kan. App. 2d at 554-55; compare Tuloka Affiliates, Inc. v. Security State Bank, 229 Kan. 544, 548-49, 627 P.2d 816 (1981) (discussing equitable rule of setoff requiring change of position or superior equities on part of bank).
Thus, in order to survive PCA’s summary judgment motion in this case, Sprague needed to come forward with evidence sufficient to raise a genuine issue of material fact on whether PCA acted in bad faith, had notice, or did not give consideration. On the first two issues, Sprague rebes on PCA’s apparent knowledge that Lewis had cattle belonging to others in his possession before October 1996. Regarding consideration, Sprague argues that PCA never gave consideration (or altered its position to its detriment) for the payments it received beyond the credit it had already decided to extend to Lewis. Neither this evidence nor this argument supports reversal of the district court.
The undisputed evidence demonstrates that, whatever Lewis may or may not have told PCA representatives before October 1996, thereafter he duped PCA just as he duped Sprague, robbing Peter to pay Paul. Lewis continued to make payments on his PCA credit bne from proceeds of cattle sales, as he always had, while he actively concealed the true state of his financial affairs and the fact that he was conditioning and selbng cattle purchased by others such as Sprague. He submitted grossly inflated financial statements and bed with a straight face when asked whether the cattle on his property belonged to him. This conduct encouraged PCA to continue advancing funds in 1997, which it did to its detriment. Without the deceit, Lewis would have exceeded his credit bne bmit, and no further funds would have been advanced.
Under these facts, this is not a situation where a third-party creditor was in cahoots — even constructively — with the agent fraudfeasor. On the contrary, the third-party creditor was merely a fellow victim of the defrauded undisclosed principal. Sprague cannot recover from PCA under the trust pursuit rule. Superior equities have intervened under Kansas law.
We also note in closing that we disagree with the trial court’s application of K.S.A. 84-3-301 etseq. The parties acknowledge correctly that this case does not involve enforceability of an instrument under those statutory provisions. Further, we find K.S.A. 84-2-403 inapplicable, because Sprague was seeking to recover the proceeds of the cattle sales from a third-party creditor of Lewis rather than the cattle themselves or their worth from those who purchased them from Lewis.
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Elliott, J.:
Terry Winkle appeals the summary judgment in favor of Hutchinson Community College (HCC) on his claim for overtime pay under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. (1994).
We affirm.
The essential facts are uncontroverted; summary adjudication was appropriate. See Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999).
The trial court ruled Winkle’s employment was exempt from the overtime provisions of the FLSA. The FLSA requires payment of overtime for employees who work more than 40 hours per week. 29 U.S.C. § 207(a) (1994). But employees in an executive, admin istrative, or professional capacity are exempt from the overtime requirements. 29 U.S.C. § 213(a)(1) (1994).
Administrative exemption
Under 29 C.F.R. § 541.214(a) (1998), employees are exempt if their primary duty consists of the performance of nonmanual work directly related to management policies or the performance of functions in the administration of a school system or educational establishment in work related to academic instruction or training.
Winkle is the head athletic trainer at HCC; he developed and managed a sports medicine program. He also managed the administration of health care to student athletes at the college and trained and supervised a staff of student trainees. See 29 C.F.R. § 541.102(b) (1998). The administrative exemption applies and the trial court properly so held. See Szymula v. Ash Grove Cement Co., 941 F. Supp. 1032, 1038 (D. Kan. 1996).
Professional exemption
29 C.F.R. § 541.315(a) (1998) exempts employees if their primary duty is work requiring knowledge of an advanced type in a field of learning, or work as a teacher, including work requiring the consistent exercise of discretion.
Based on the uncontroverted facts here, Winkle is exempt both as a “learned professional” and as a “teacher professional.” As a learned professional, his position as head athletic trainer required advanced knowledge. See Dybach v. State of Fla. Dept. of Corrections, 942 F.2d 1562 (11th Cir. 1991); Paul v. Petroleum Equipment Tools Co., 708 F.2d 168, 173 (5th Cir. 1983); see also Owsley v. San Antonio Independent School Dist., 187 F.3d 521, 526 (5th Cir. 1999) (court ruled assistant athletic trainers with similar credentials were exempt as learned professionals), cert. denied 529 U.S. 1020 (March 20, 2000). 187 F.3d at 526. The same reasoning applies to Winkle. Similarly, as a “teacher professional,” he is a tenured, full-time faculty member, teaching 12 hours of sports medicine each academic year, and he also provides clinical instruction for student trainers. See Lamb v. Rantoul, 538 F. Supp. 34 (D. R.I. 1981). Further, Winkle’s teaching duties are intertwined with and related to his job as head athletic trainer; Winkle is required to exercise discretion and judgment.
The trial court properly granted summary judgment on this theory.
Combination
Additionally, the trial court properly held a combination of exempt activities constitutes a primary duty and leads to an exemption as well. 29 C.F.R. § 541.600 (1998) permits the “tacking” of exempt work and the combining of exemptions to qualify for exemption from overtime.
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PlERRON, J.:
In this breach of a commercial lease case, Leavenworth Plaza Association, L.P., (Plaza) appeals the trial court’s decision awarding only a portion of damages, denying a month of damages since Plaza failed to mitigate damages, and finding that Plaza was not entitled to any future rents accruing after the date of judgment. Plaza argues the issue of future rents was not pled, the rental obligation created a future monthly obligation, that Plaza’s failure to mitigate damages did not preclude future rent judgments, that the trial court’s ruling heightened the standards of reasonable mitigation, and that the finding of failure to mitigate damages was not supported by the evidence.
Plaza is a Kansas limited partnership which owns the Leavenworth Plaza Shopping Center. In 1987, Plaza leased space in the shopping center to L.A.G. Enterprises, Inc., (L.A.G.), a Kansas corporation which operated a Pizza Hut in the shopping center. The lease was amended and extended several times over the next 10 years. The most recent amendment extended the period of the lease from 1995 through 2000.
On May 29, 1998, L.A.G. gave written notice that it was ceasing to do business, vacating the premises and terminating the lease. Testimony at trial indicated that L.A.G. made a rental payment in June and then made payments in October, November, and December 1998. On July 23, 1998, Plaza sent L.A.G. a notice of default and demand for payment. On July 30,1998, Plaza sent L.A.G. a notice of termination of possession.
On August 25, 1998, Plaza filed its first petition seeking to recover $7,757.43 in damages plus any additional amounts as accrued but remaining unpaid under the lease prior to judgment. On October 9, 1998, Plaza filed its first amended petition seeking $15,744.81 in damages plus any additional amounts as accrued but remaining unpaid under the lease prior to judgment.
After an evidentiary hearing on January 14, 1999, the trial court awarded Plaza damages in the amount of $12,460.50, which reflected 3 months of rent and other obligations due under the lease prior to December 31, 1998. The trial court denied Plaza’s claim for damages for the month of January 1999, since the court found Plaza failed to mitigate damages with respect to that month. Although the trial court’s comments were not recorded on the record due to mechanical error, the parties stipulated that the trial court indicated that it was denying relief to Plaza for Januaiy 1999 and any future months. Plaza filed a motion to clarify, alter, amend or vacate judgment which was denied by the trial court.
Plaza first raises issues concerning the trial court’s jurisdiction to bar the collection of future rents because the issue was not pled in the petition, that each future monthly rental obligation under the lease was an independent obligation not yet accrued, and that Plaza’s failure to mitigate damages did not preclude future recoveiy.
The lease provided that if the tenant vacated or abandoned the leased premises, the lessor could make any repairs necessary to relet the premises and then receive rentals and credit towards the amount owed by the original tenant.
The issue of future rents and damages after the January 1999 judgment was not ripe. Plaza had not set forth a claim for future rents and damages. “An issue is not ripe for adjudication when there is only the possibility of a future controversy between the parties.” Stone v. Kansas State High School Activities Ass’n, Inc., 13 Kan. App. 2d 71, Syl. ¶ 8, 761 P.2d 1255 (1988). There is no real controversy between the parties for collection of future rents, only the possibility of future controversy.
Next, Plaza argues there was not substantial competent evidence to support the trial court’s decision that Plaza failed to mitigate damages. Plaza also argues the trial court’s ruling improperly heightens the standard for reasonable mitigation.
The rules in Kansas regarding a landlord’s duty to mitigate were stated in Lindsley v. Forum Restaurants, Inc., 3 Kan. App. 2d 489, Syl. ¶¶ 3, 4, 5, 596 P.2d 1250, rev. denied 226 Kan. 792 (1979):
“Where a tenant, under contract to pay rent on real property, abandons the property and notifies the landlord of that abandonment, it is the landlord’s duty to make a reasonable effort to secure a new tenant and obtain rent before he can recover from the old tenant under the contract so as to lessen the injury. Following Gordon, Executor v. Consolidated Sun Ray, Inc., 195 Kan. 341, Syl. ¶ 3, 404 P.2d 949 (1965).
“It is a general rule of law that one injured by reason of breach of contract by another is under a duty to exercise reasonable care to avoid loss or to mitigate and minimize the resulting damage. Such reasonable care does not require a party to execute a new or different contract. Following Iseman v. Kansas Gas & Electric Co., 222 Kan. 644, Syl. ¶ 1, 567 P.2d 856 (1977).”
“The duty to mitigate damages is not an unlimited one and an injured party is required only to exert reasonable efforts to prevent or minimize his damages within the bounds of common sense. Following Steele v. J. I. Case Co., 197 Kan. 554, Syl. ¶ 5, 419 P.2d 902 (1966).”
In Lindsley, the court found the lessor exercised reasonable mitigation efforts and was entitled to full recovery for rent and damages. The factors relied upon by the Lindsley court were as follows:
“Upon receipt of defendant’s [tenant] letter notifying him of the abandonment of die premises, plaintiff contacted Weigand [leasing company], who is recognized by bodi parties to be among the best qualified in his field, and urged him to be as diligent as possible in securing a tenant. Plaintiff [lessor] made contacts with other realtors and sought the assistance of a local banker. He had extra keys made to permit inspection of the premises. The evidence reveals that the vacancy was advertised and the premises were shown to various prospective tenants. Plaintiff transmitted all proposals of which he had knowledge for the approval of defendant. He did not reject any offers to relet the property, as none were received.” 3 Kan. App. 2d at 492.
In this case, L.A.G. had the burden to prove that Plaza failed to exercise reasonable efforts to mitigate damages. See Kelty v. Best Cabs, Inc., 206 Kan. 654, 659, 481 P.2d 980 (1971); Rockey v. Bacon, 205 Kan. 578, Syl. ¶ 6, 470 P.2d 804 (1970) (“Mitigation of damages is an affirmative defense and the burden of proving a failure to mitigate losses devolves upon the party who asserts it.”); Lindsley, 3 Kan. App. 2d at 492.
The determination of reasonable mitigation entails a case-by-case factual examination of the totality of the circumstances. The duty to mitigate is bounded by common sense and reasonableness. Lindsley, 3 Kan. App. 2d 489, Syl. ¶ 5. The trial court below found Plaza was not entitled to damages in January 1999 because it failed to mitigate damages. Our review is to determine whether the trial court’s decision was supported by substantial competent evidence.
“Where the trial court has made findings of fact and conclusions of law, the function of an appellate court is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support die trial court’s conclusions of law. Substantial evidence is evidence which possesses bodi relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. [Citation omitted.]” Sampson v. Sampson, 267 Kan. 175, 181, 975 P.2d 1211 (1999).
Here, the trial court first ruled in favor of Plaza in finding that it was not necessary for Plaza to provide a fresh coat of paint or new floor coverings to the vacant premises. The court stated such improvements were more applicable in the rental of residential property, that Plaza really did not know the needs of the next commercial tenant, and that it would have been impossible to know since L.A.G was storing property on the premises anyway.
The trial court then stated its biggest concern with Plaza’s mitigation efforts was that they were not reasonable for a 30-year-old mall, but were geared more toward efforts for leasing space in a new mall which was in demand. The court indicated that after a few months of using approaches for leasing space in a new mall, Plaza had to make some hard decisions. The court stated Plaza should have considered dividing up the space or changing the type of tenant. The court found there was no evidence of efforts to advertise in the local papers. At the later hearing on the motion to amend, the court further commented that the standard for what is commercially reasonable for a brand new mall in a growing area with national realtors competing for space is completely different from what is a commercially reasonable effort to lease a 30-year old mall with minimal improvements. The court stated Plaza should have emphasized advertising in local areas in addition to efforts on a national scale.
The trial court also based its decision on the testimony of David Bayer, the director of retail leasing for the company that managed Plaza. The court focused on Bayer’s testimony that the mall was 100% leased. The court stated the company’s priority was to have the mall leased, not to fill vacancies.
Other evidence also supports the trial court’s decision that Plaza failed to mitigate damages. There was testimony from Plaza that the leasing company discussed the leasing of the premises and also showed the premises to a number of prospective tenants. David Bayer provided such testimony and also indicated that prospective tenants usually like to view vacant premises on their own without the landlord present. However, it is apparent the trial court did not find this testimony credible. On cross-examination, Bayer could neither give the names of any specific representatives from the prospective tenants who looked at the premises nor the date when Plaza showed the property.
A factor relied upon by the Lindsley court was a finding that the landlord did not reject any offers to relet the property. 3 Kan. App. 2d at 492. In the present case, Valerie Hooper, the owner of the Baskin Robbins in the mall, testified that when the Pizza Hut premises was vacant, she inquired into leasing part of it to increase the visibility of her store. She testified that the leasing company told her that the space could not be rented because Pizza Hut was on the lease and Pizza Hut did not want it rented.
Other jurisdictions have held that a landlord’s failure to respond to inquiries in renting the vacant premises and in discouraging prospective tenants is cause for a finding that the landlord failed to use reasonable efforts to mitigate damages. See S.N. Mart, Ltd. v. Maurices, Inc., 234 Neb. 343, 451 N.W.2d 259 (1990); O’Brien v. Black, 162 Vt. 448, 648 A.2d 1374 (1994).
We find the trial court’s decision was supported by substantial competent evidence. It can be reasonably argued that Plaza failed to take reasonable efforts to mitigate its damages. Some of Plaza’s complaints are with the trial court’s judging of the credibility of the witnesses. The trial court is in the position to judge the witnesses’ credibility. An appellate court does not weigh conflicting evidence, pass on credibility, or redetermine questions of fact unless no reasonable person could have acted as the trial court did. That is not the case here. See Garvey Elevators, Inc. v. Kansas Human Rights Comm’n, 265 Kan. 484, 496-97, 961 P.2d 696 (1998). We also do not find the trial court’s decision heightened the standard of reasonable mitigation for breach of a commercial lease. To the contrary, the trial court examined the totality of the circumstances and used reasonableness and common sense to find that Plaza did not take proper efforts to mitigate its damages.
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BEIER, J.:
Appellant Robert J. Salas seeks review of a district court ruling on the scope of jurisdiction and the interpretation of the final decree in his 1990 default divorce. We affirm the district court’s decision that personal jurisdiction over Robert’s spouse was lacking in 1990 and that the decree did not allocate Robert’s military retirement benefits.
The pertinent facts are these: In 1990, Robert filed a petition for divorce from his wife, Yon, who had never resided in Kansas. Robert had not yet retired from military service. The petition stated Robert and Yon had “accumulated certain items of personal property” and prayed for “an equitable division of the personal property of the parties.” On his domestic relations affidavit, Robert did not answer questions about the ownership and amounts of the parties’ liquid assets and all “other personal property including retirement benefits.” Robert requested service of process upon Yon by certified mail.
Yon’s attorney in the state of Washington wrote a letter to Robert’s attorney and the court, advising that Yon denied Robert’s petition and that Kansas lacked jurisdiction. He also stated that the letter was not intended to submit Yon to the jurisdiction of the Kansas courts and requested that the petition be dismissed. Within a week, Robert’s attorney had a dismissal order signed and filed by the court.
Robert obtained the services of a new attorney, who filed a motion to vacate the dismissal order. The motion stated that the only issue “intended to be submitted to the Kansas Court is the issue of divorce.” The motion was granted the same day. The attorney sent copies of the motion to vacate the dismissal order, the order vacating the dismissal, and an amended petition to Yon’s attorney in Washington and to Yon by regular mail. The amended petition was filed 2 days later, seeking, among other things, division of the personal marital property within the court’s jurisdiction. A copy of the filed amended petition was sent to Yon’s attorney in Washington by regular mail but not to Yon. Yon did not respond to the amended petition in any fashion.
At the ensuing default hearing, Robert testified he had personal property in Kansas and Yon had personal property in Washington. He requested the court to grant the divorce and award each party the property he or she possessed. On November 8, 1990, the decree of divorce was granted and filed. It stated:
“IT IS FURTHER BY THE COURT ORDERED, ADJUDGED AND DECREED that [Robert] shall have set aside to him all personal property in his possession and [Yon] shall have set aside to her all personal property in her possession.”
Nearly 9% years later, Yon, through a new attorney, filed a petition for divorce in Washington and was given a stay of proceedings to resolve questions about the effect of Robert’s earlier Kansas proceeding. On February 10, 2000, Yon filed a motion in district court in Kansas to vacate the default divorce Robert had obtained. Yon argued the Kansas court had lacked personal and subject matter jurisdiction because none of the post-dismissal pleadings had been sent to her or her attorney by registered or certified mail.
Robert responded that the court had jurisdiction in 1990 because Yon was properly served with the original petition. Also, in his view, the allocation of his military retirement pay was decided in the default divorce decree. Robert also argued that Yon’s motion was untimely under K.S.A. 60-260(b).
The district court denied Yon’s motion “with the understanding that [it] only had jurisdiction in 1990 to 1.) grant a divorce to [Robert] on the grounds of incompatibility, and 2.) award the personal property in [Robert’s] possession in Kansas, to [Robert].” The court stated the military retirement was not personal property located within Kansas subject to the in rem jurisdiction the court possessed in 1990.
We must initially decide the nature of the Kansas district court’s jurisdiction at the time the default decree was entered. Jurisdictional questions are questions of law over which appellate review is unlimited. Carrington v. Unseld, 22 Kan. App. 2d 815, 817, 923 P.2d 1052 (1996).
Personal jurisdiction is defined as the court’s power over the defendant’s person and is required before the court can enter an in personam judgment. Its acquisition has both constitutional and statutory dimensions. Federal due process requires a nonresident defendant to have purposely established “minimum contacts” with the forum state. See Carrington, 22 Kan. App. 2d at 817; In re Hesston Corp., 254 Kan. 941, 959, 870 P.2d 17 (1994). If the constitutional standard has been met, our statutes set out methods for acquiring personal jurisdiction through voluntary appearance or the issuance and service of process.
We need not reach the parties’ disagreements over whether the statutory requirements for service were met, because we conclude Yon lacked the “minimum contacts” the Constitution requires for personal jurisdiction. Yon never lived in Kansas, in the marital relationship or otherwise. See K.S.A. 60-308(b)(8) (long-arm statute supports personal jurisdiction over defendant who once lived in marital relationship in Kansas); In re Hesston Corp., 254 Kan. at 951, 958 (Kansas long-arm statute liberally construed to the full extent constitutionally permissible).
Moreover, despite Robert’s assertions to the contrary, Yon never voluntarily appeared in the 1990 action. The only communication from Yon before the entry of the decree came in the form of a letter from her first attorney in response to the original petition. That letter explicitly stated that it was not to be construed as submission by Yon to the jurisdiction of the court and sought a dismissal the court ultimately granted.
Thus the only jurisdiction acquired by the Kansas court in 1990 was in rem. Such jurisdiction permitted the court to decide the status of the parties, i.e., whether they were to remain married or be divorced. See Perry v. Perry, 5 Kan. App. 2d 636, 639, 623 P.2d 513 (1981); Lillis v. Lillis, 1 Kan. App. 2d 164, 166-67, 169-70, 563 P.2d 492 (1977). It also permitted the court to divide property of the parties within the territorial limits of the state. See Giles v. Adobe Royalty, Inc., 235 Kan. 758, 762-63, 684 P.2d 406 (citing Wesner v. O’Brien, 56 Kan. 724, 725-27, 44 Pac. 1090 [1896] [“[T]hat the state has full power through its legislature and courts to regulate and control the status of its citizens, and to dispose of or control real property to whomsoever it may belong within its limits, will hardly be denied.”]); 1 Casad and Richman, Jurisdiction in Civil Actions at § 2-6[3][a] (3d ed. 1998) (discussing survival of “true in rem” and “quasi-in-rem type I” jurisdiction after United States Supreme Court decision in Shaffer v. Heitner, 433 U.S. 186 [1977], and noting Shaffer’s statement: “[W]hen claims to the property itself are the source of the underlying controversy between the plaintiff and the defendant, it would be unusual for the State where the property is located not to have jurisdiction.”); see also Elrod and Buchele, 1 Kansas Law and Practice, Kansas Family Law § 9.22(1) (1999) (“The court may divide property in the forum state. But for the court to transfer property other than that located in the state or to impose any financial obligations, the court must have personal jurisdiction over both parties.”); compare Abernathy v. Abernathy, 482 S.E.2d 265, 267-69 (Ga. 1997) (lack of personal jurisdiction over nonresident defendant does not prevent court from entering judgment in divorce that divides property within its territory); but see Perry, 5 Kan. App. 2d at 639 (finding no jurisdiction to divide property; location of property unclear); Lillis, 1 Kan. App. 2d at 165, 169-70 (reversing provisions for visitation and payment of expenses, saying jurisdiction limited to power to render judgment affecting status of parties). Other orders — e.g., having to do with child support and maintenance or dividing property outside of Kansas — were beyond the limits of the court’s power.
So, what of the district court’s language in the decree in this case, that purporting to award the personal property in the possession of Robert to Robert and the personal property in the possession of Yon to Yon? To the extent any of that personal property was within Kansas’ borders, it could be divided as the court stated. To the extent any of it was outside of Kansas’ borders, the decree was without force or effect.
The parties’ further substantive question — whether Robert’s retirement was personal property in his possession within Kansas— does not long consume us. There is no evidence in the record that the court was even aware of the potential for military retirement subject to division at the time the decree was entered. Robert failed to mention it on his domestic relations affidavit. His amended petition sought only a divorce. His testimony at the hearing expanded his prayer only to an award of the property in his possession. Robert was still in the military at the time, and the ultimate decree made no mention of any property expected to come into Robert’s possession at some future date. Under these circumstances, we agree with the district court that the decree’s language was not meant to divide Robert’s retirement benefits, and the appropriate allocation of those benefits remains open for resolution another day by a court with personal jurisdiction over both Robert and Yon.
Robert’s final argument is that Yon’s motion to vacate the judgment was untimely under K.S.A. 60-260(b). He cites In re Marriage of Bowers, 23 Kan. App. 2d 641, 933 P.2d 176 (1997), and In re Marriage of Larson, 257 Kan. 456, 894 P.2d 809 (1995), as support. This argument is misguided. Neither Bowers nor Larson dealt with an allegation of lack of jurisdiction. Although Yon cited K.S.A. 60-260(b)(6), which provides for relief from judgment for any reason justifying such relief, she was actually attacking any assertion of personal jurisdiction over her in 1990 to divide property. This challenge falls under K.S.A. 60-260(b)(4), which provides for an attack on a void judgment. Because a void judgment is a nullity, it may be vacated at any time. See In re Marriage of Welliver, 254 Kan. 801, 803-04, 869 P.2d 653 (1994).
The district court’s holding that the military retirement benefits were not divided in 1990 is affirmed. The district court’s denial of the motion to vacate that portion of the divorce decree purporting to award personal property outside Kansas is reversed.
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Marquardt, J.:
John E. Filor appeals his convictions for seven counts of criminal nonsupport of a child. We affirm.
John and Denise were married in October 1982. They had seven children. Denise filed for divorce in May 1995. John did not appear at the divorce hearing. A default decree of divorce was entered. Denise retained possession of the couple’s home. John was ordered to pay child support in the amount of $948 per month.
Denise received $4,923.19 in total support in 1996, $2,179.65 in 1997, and $324.50 in 1998. In August 1998, a complaint was filed charging John with seven counts of criminal nonsupport of a child. John waived his right to a jury trial. The trial court found John guilty on all seven counts. John timely appeals his convictions.
On appeal, John claims that there is no substantial competent evidence to support the trial court’s finding that he failed to support his children. John contends that failure to pay his entire child support obligation does not mean that he has failed to support his children. John contends that his child support obligation is too high because it was based on incorrect information presented at the default hearing. John alleges that he had a lawful excuse for his failure to entirely satisfy his child support obligation.
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the fight most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999).
Nonsupport of a child is a parent’s failure, neglect or refusal without lawful excuse to provide for the support and maintenance of the parent’s child who is in necessitous circumstances. K.S.A. 21-3605(a)(l). Criminal nonsupport of a child has three essential elements: (1) The defendant is the parent of a child under 18 years of age; (2) the defendant failed, neglected, or refused without lawful excuse to provide support and maintenance for the child; and (3) the child was in necessitous circumstances. K.S.A. 21-3605(a)(1) and (2). Constitutional mandates require that each element be proven beyond a reasonable doubt. State v. Rupert, 247 Kan. 512, 515, 802 P.2d 511 (1990).
John does not dispute that he is the father of these seven children. The oldest child was 16 years old at the time of this action. Our inquiry is limited to whether John failed, neglected, or refused to provide support for his children; whether John had a lawful excuse for such failure; and whether the children are in necessitous circumstances. See Rupert, 247 Kan. at 515.
In Rupert, the defendant was charged with criminal nonsupport of a child when he paid slightly more than half of his accumulated child support obligation. The Kansas Supreme Court found that substantial evidence existed to show that the defendant failed to provide support. 247 Kan. at 518.
The phrase “without lawful excuse” is equivalent to “without just cause.” State v. Kirkland, 17 Kan. App. 2d 425, 431, 837 P.2d 846, rev. denied 251 Kan. 941 (1992). The term “just cause” as used in the law, means any cause of sufficient import to reheve the defendant, who under the law is charged with the duty of providing for the support and maintenance of his child, from such duty and legal obligation, such as mental incapacity or physical disability of the defendant, rendering him unable to provide for the support and maintenance of such child; or financial conditions which the defendant has honestly, in good faith, endeavored to overcome. See Kirkland, 17 Kan. App. 2d at 429.
“Destitute” and “necessitous” mean virtually the same thing. They mean needing the necessaries of life, and the necessaries of life cover not only primitive physical needs, things absolutely indispensable to human existence and decency, but those things also which are in fact necessary to the particular person having the right to demand support and maintenance. State v. Knetzer, 3 Kan. App. 2d 673, 674, 600 P.2d 160 (1979). It is no defense to a charge of failure to provide for a minor child that the mother of such child, or any other person or organization, voluntarily or involuntarily furnishes necessary food, clothing, shelter, medical care, or any other remedial care for the child during the period of time the defendant failed to do so. 3 Kan. App. 2d at 674-75. In Knetzer, a child was in necessitous circumstances where the defendant’s ex-wife worked two jobs in an effort to support her family, yet still had to rely on her family, church, and proceeds from a fife insurance policy for assistance. Knetzer, 3 Kan. App. 2d at 675.
Mere nonpayment of support, without more, is not enough to convict a person of criminal nonsupport. There must be evidence that the child was in necessitous circumstances. See State v. Selberg, 21 Kan. App. 2d 610, 612-13, 904 P.2d 1014 (1995). Where the facts warrant, a child is deemed to be in necessitous circumstances if the child would have been in that condition had he or she not been provided for by someone else. State v. Sokolaski, 26 Kan. App. 2d 333, Syl. ¶ 3, 987 P.2d 1130 (1999).
In 1996, the first year after the divorce was final, John’s yearly child support obligation was $11,376. John paid $4,923,19. The obligation remained the same in 1997, and John paid $2,179.65. In 1998, at the point of trial, John’s child support obligation was $5,688. John paid approximately $325. We believe these numbers show that John failed to provide support for his children. Of course, our inquiry does not end here. We must examine the record on appeal to see if there is substantial competent evidence to support the trial court’s decision that John did not have a lawful excuse for his failure to pay support.
In 1994, John earned approximately $24,000. John was still employed at the same job when Denise filed for divorce. John was fired because he embezzled funds from his employer. John then went to work at Hardee’s. After 1 month, John went to work for American Mill Work. John then left American Mill Work for Creative Wood Products.
John currently resides in North Carolina. He moved there without securing employment before he moved. John presently works at Home and Hearth and has been there for approximately 14 months. He works only when needed. When he is not working, he cares for his second wife’s handicapped daughter. John claims that he cannot work full time because as a cabinetmaker he is not licensed to perform necessary installation work on gas pipes. However, he has not sought work in the field of cabinetmaking. John claimed that there was no law that required him to build cabinets for a living.
The trial court found that while John was likely not capable of earning $50,000 per year, he was capable of working full time. We agree. There is substantial competent evidence in the record on appeal to show that John is perfectly capable of working more than he is now. John testified that, at one point, he worked overtime. He is not even employed full time at this point. We believe that there is more than sufficient evidence in the record on appeal which shows that John’s failure to earn sufficient income is due to his choice to be employed less than full time. This does not qualify as a lawful excuse. See Kirkland, 17 Kan. App. 2d at 429.
We finally come to the critical question of whether the children are in necessitous circumstances. In 1997, Denise was employed at a gas station. She worked between 60 and 80 hours per week and relied on her 75-year-old mother to provide child care. Denise now works for the State of Kansas as a legal assistant. Denise’s net income is $750 every two weeks. She pays approximately $100 for health insurance for herself and the children.
Denise cannot provide for the children on her income alone. Her furnace malfunctioned a few years ago and her home was without heat. Denise borrowed approximately $5,000 from her mother. Denise is currently attending college. She takes out the maximum amount of student, loans in order to help with the children’s expenses. Denise received some public assistance but worked to get out of that system. Denise says her family does not eat very well. Denise buys the children’s clothing at garage sales or thrift stores.
Denise is currently making payments on the family’s mobile home. The basement of the trailer is inhabitable because of water leaks. The children sleep three to a room, with the exception of the oldest, and Denise sleeps on the couch. The roof of the trailer has leaked for 2 years. Denise cannot afford to have it repaired. The bathroom floor is rotten. The kitchen sink is supported by railroad ties and there are no kitchen counters.
We agree with the trial court’s finding that the children were in necessitous circumstances. The children are without adequate shelter or food. We believe there is sufficient evidence in the record on appeal to show that the children are in necessitous circumstances.
Most of John’s arguments on appeal are directed toward the inaccuracy of the information which went into the calculation of his child support obligation. That issue is irrelevant to our discussion here. John seems to confuse his common-law obligation to support his children with the obligation imposed by the trial court in the divorce action. John was not prosecuted for failing to pay child support ordered by the divorce court. He was prosecuted and convicted for failing to support his children. The common-law obligation to support the children continues despite John’s divorce and any child support orders issued by the divorce court. See State v. Krumroy, 22 Kan. App. 2d 794, 798, 923 P.2d 1044, rev. denied 260 Kan. 999 (1996). We also note that John was free to petition the trial court for a modification of his child support obligation. He failed to take that step. We reject John’s arguments on this matter.
John also claims that he should have been held in civil contempt of court before he was prosecuted for criminal nonsupport of a child. However, this argument is also predicated on the mistaken belief that John’s prosecution stems solely from his failure to pay child support. As we have already discussed, John’s prosecution stems from his common-law duty to support his children. See Krumroy, 22 Kan. App. 2d at 798. Civil contempt would not be an appropriate remedy for John’s breach of that common-law duty.
We find there is ample evidence in the record on appeal to support the trial court’s decision. John failed to provide support for his children who were in necessitous circumstances. He could not present a lawful excuse to the trial court. We reject John’s arguments to the contrary.
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Gernon, J.:
This appeal arises from attempts to enforce a judgment in a tort case.
Thomas D. Voyles and Ernesto M. Garcia were involved in an automobile accident. Voyles obtained a default judgment against Garcia for $100,000, plus court costs.
This controversy involves Voyles’ claim that Traders Insurance Company (Traders) is liable for the judgment against Garcia under a policy issued to Garcia’s father, Ramon Garcia.
Traders contends that the policy issued to Ramon Garcia was procured by fraud. Traders returned the premium to Rámon Garcia and rescinded the policy ab initio. Ramon Garcia accepted the return of the premium check, endorsed it, and cashed it.
Voyles sought to collect the default judgment by garnishment of Traders. Voyles filed a motion for summary judgment, arguing that an insurer could not rescind a policy ab initio to the detriment of a third party. Voyles’ motion was denied.
Traders then filed a motion for summary judgment, reasserting its position concerning the fraudulent procurement and rescission of the policy. The trial court granted Traders’ motion, finding that the policy was procured through fraud and that Ramon Garcia, the named insured, had accepted a refund of all policy premiums. Voyles appeals.
The issues on appeal focus on the garnishment attempts, an interpretation of K.S.A. 1999 Supp. 40-2,118, and Traders’ cross-appeal for costs.
Garnishment Issues
Voyles sought to enforce his judgment through a garnishment order served on Traders on May 14,1998. Traders timely answered on June 3, 1998, that it was not indebted to Garcia. Voyles contended he did not receive the answer and moved for judgment on the garnishment on July 15,1998. On July 20,1998, Traders served a response with a copy of the first garnishment answer. On July 22, 1998, Voyles’ counsel informed Traders, by letter, that he would abandon the first garnishment order and file a new one. On July 30, 1998, Voyles garnished Traders for the second time, and Traders answered on August 19, 1998, again denying that it held any property of or was indebted to Garcia.
The garnishment statute, K.S.A. 1999 Supp. 60-718, and the available case law lead us to conclude that the allegations of Traders’ first answer were conclusive. K.S.A. 1999 Supp. 60-718(c) states, in relevant part:
“Within 10 days after the filing of the answer the plaintiff or the defendant or both of them may reply thereto controverting any statement in tire answer. . . . If the garnishee answers as required herein and no reply thereto is filed within 10 days, the allegations of the answer are deemed to be confessed.”
See Phelps v. Schmuck, 151 Kan. 521, 526, 100 P.2d 67 (1940).
The garnishment question does not end there, however. The district court granted an oral motion by Voyles for leave to reply out of time. Neither the record on appeal nor the journal entry on this ruling articulate a basis for the ruling.
The cases available for guidance on this issue include: Bank of Whitewater v. Decker Investments, Inc., 238 Kan. 308, 315, 710 P.2d 1258 (1985) (defendant granted additional time to answer based on “excusable neglect,” which the appellate court stated must be determined on a case-by-case basis); Boyce v. Boyce, 206 Kan. 53, 55-56, 476 P.2d 625 (1970) (first case to discuss excusable neglect pursuant to K.S.A. 60-206[b]); Phelps v. Schmuck, 151 Kan. at 526 (if a plaintiff does not answer within the statutory time allowed to respond to the answer of a garnishee, the answer of the garnishee is deemed conclusive as to the facts therein stated, and such facts stand as true); Kansas Sand & Concrete, Inc. v. Lewis, 8 Kan. App. 2d 91, 96-97, 650 P.2d 718 (1982) (citing with approval the Phelps ruling).
The problem, as we see it, is that the rule in Phelps regarding the conclusiveness of an answer clashes with the discretion allowed under K.S.A.1999 Supp. 60- 206(b) to allow a reply to the answer out of time upon a showing of failure to act was the result of excusable neglect.
Several facts weigh in on our decision here. Voyles’ record on appeal does not provide a statement as to the “excusable neglect” he asserts. We further note that in the cases we examined, the party asserting excusable neglect immediately sought relief, sometimes within hours. Here, the passage of so much time leads us to the conclusion that the trial court should not have allowed Voyles the opportunity to reply to the first garnishment.
Voyles learned of the answer to the first garnishment no later than July 22, 1998, the date of his attorney’s letter acknowledging receipt of a copy. He did not move to file a reply out of time to the original answer of the garnishee until he made an oral motion on October 22, 1998. Prior to July 22, Voyles’ failure to act may have been a result of excusable neglect. However, beyond July 22, it is hard to imagine that a reasonable person could find Voyles’ course of action constituted excusable neglect. The proper procedure would have been to immediately move to reply out of time, and Voyles simply chose not to follow it.
K.S.A. 1999 Supp. 40-2,118(c)
Our ruling on the garnishment issue, coupled with our reading of K.S.A. 1999 Supp. 40-2,118(c), leads us to conclude that Traders’ position should prevail here.
In 1991, the Kansas Supreme Court held that K.S.A. 1990 Supp. 40-3118(b) controlled rescission of mandatoiy liability coverage, leaving an insurance company only the right to rescind nonliability features of the policy. Continental Western Ins. Co. v. Clay, 248 Kan. 889, 896, 811 P.2d 1202 (1991). The court went on to explain that those features could be severed and the liability provisions left in effect as follows:
“Where claims have been made by both the insured acquiring the insurance through fraudulent misrepresentation and an injured innocent third party, severance of the nonliability, noncompulsory features of the policy is proper, thereby permitting rescission ab initio as to the claim of the insured involving provisions not mandated by the Kansas Automobile Injury Reparations Act.” 248 Kan. at 896.
An amendment to K.S.A. 40-2,118 followed in 1994. Prior to the amendment, the statute consisted of a single section which simply defined the term “fraudulent insurance act.” See K.S.A. 40-2,118. The 1994 amendment placed the existing definition in subsection (a) and added three subsections. Subsection (b) provides for criminal penalties. Subsections (c) and (d) read as follows:
“(c) In addition to any other penalty, a person who violates this statute shall be ordered to make restitution to the insurer or any other person or entity for any financial loss sustained as a result of such violation. An insurer shall not be required to provide coverage or pay any claim involving a fraudulent insurance act.
“(d) This act shall apply to all insurance applications, ratings, claims and other benefits made pursuant to any insurance policy.” (Emphasis added.) K.S.A. 1999 Supp. 40-2,118.
“The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.” In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998).
K.S.A. 1999 Supp. 40-2,118 is found in Article 2, General Provisions, of Chapter 40, the state insurance code. The context would suggest it applies throughout the insurance code. The plain language of the statute — any and all — similarly indicates the legislature intended the provisions to apply to any and all insurance policies, including mandatory automobile liability policies, without exception. As if the intent of the legislature was not clear enough from the language of the statute and its placement in the code, as Traders points out, the legislature has twice failed to pass proposed amendments to 40-2,118 restricting its application to first-party claims. See S.B. 81, § 1 (1995) and H.B. 2503, §.l (1999). Therefore, we find the plain language of 40-2,118 allows an insurance company to rescind the policy, even as to innocent third-party claims, upon proof that it was procured by a fraudulent insurance act.
Denial of Costs
Finally, Traders contends the district court abused its discretion in overruling its motion for assessment of costs. The court allowed costs to Traders in its order granting summary judgment but overruled the motion for assessment of costs. We can only speculate as to the reason. The record does not contain a transcript of the hearing, although the minutes sheet indicates that a record was taken. The minutes sheet does not reflect a rationale for the ruling or the facts upon which it was based. Although the ruling contradicts the order allowing costs, Traders has failed to designate a record suf ficient to establish an abuse of discretion. See In re B.M.B., 264 Kan. 417, 435, 955 P.2d 1302 (1998).
Traders’ subsequent amended motion corrects an error: inclusion of the cost of the wrong deposition. Traders sought to reopen a matter previously decided in order to present evidence that could have been introduced with the original motion. The court’s ruling that it was barred from doing so is not facially unreasonable. Again, without a record of the hearing on the first motion, we cannot review the facts and the court’s reasoning. Traders has failed to show an abuse of discretion.
Traders’ cross-appeal regarding costs is denied. Voyles’ appeal as to the garnishment and statutory interpretation issues is denied. The judgment and rulings of the trial court are affirmed for the reasons stated herein.
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Knudson, J.:
The Kansas Department of Revenue (KDR) appeals the district court’s grant of partial summary judgment to Leon Rieke. The issues raised on appeal concern subject matter juris diction, service of process, and whether Rieke should have been awarded attorney fees and costs. We affirm the judgment of the district court.
Pursuant to K.S.A. 79-3617 and K.S.A. 79-3643, KDR issued a warrant for delinquent taxes directing the sheriff of Johnson County inter alia to levy upon and sell the property of Leon Rieke to satisfy taxes of $46,231.37 owed by Mid America Sports Complex, Inc. After this tax warrant was filed with the clerk of the district court in Johnson County, Rieke filed a K.S.A. Chapter 60 proceeding seeking injunctive relief. On cross-motions for summaiy judgment, the district court restrained enforcement of the warrant, declared the warrant illegally issued as to Rieke, decided KDR had the legal capacity to be sued, detennined it did have jurisdiction, decided KDR had been properly served with summons, and awarded attorney fees against KDR. KDR’s motion for reconsideration was denied.
In its answer to Rieke’s petition, KDR admitted service of process was accomplished under K.S.A. 60-304(d). Subsequently, KDR filed an unsuccessful motion to dismiss contending inter alia it lacked the legal capacity to be sued and venue was not proper in Johnson County. In its very detailed motion raising numerous issues, KDR did not raise an issue regarding service of process. Approximately 2 years after this lawsuit was filed, Rieke filed an amended petition that once again alleged service of process under K.S.A. 60-304(d). In its answer to this amended petition, KDR made a 180-degree turn and for the first time denied service of process was properly effected.
After filing its answer to Rieke’s petition, KDR unsuccessfully pursued judgment on the pleadings under K.S.A. 60-212(c). Inexplicably, in its very comprehensive motion, KDR did not allege that the tax warrant had been dismissed without prejudice shortly after Rieke filed suit. Later, at a hearing upon the motion, KDR still did not infonn the district court of the dismissal of the warrant or argue that the court had been divested of jurisdiction as a result.
In this appeal, KDR does not attack the district court’s ruling that the tax warrant was unlawfully issued. KDR’s decision to leave this stone unturned was preordained by our holding in Copeland v. Kansas Dept. of Revenue, 25 Kan. App. 2d 717, 970 P.2d 69 (1998), rev. denied 266 P.2d 1107 (1999), and the 1999 legislature’s amendment of K.S.A. 79-3643 (L. 1999, ch. 94, § 10).
After discovery was completed and over 2 years after the litigation had been filed, KDR filed its motion for summary judgment premised on the dismissal of the tax warrant. Rieke filed a motion for summary judgment premised upon a denial of due process and requested a permanent injunction, attorney fees, and costs. KDR countered with a second motion for summary judgment, raising issues of jurisdiction and the sufficiency of service of process. The district court partially granted Rieke’s motion — a permanent injunction was entered and attorney fees were awarded — and largely denied KDR’s motions. We now turn to a discussion of the issues KDR presents on appeal.
SUBTECT MATTER JURISDICTION
KDR contends it lacks capacity in law to be sued. In Mid American Credit Union v. Board of Sedgwick County Comm’rs, 15 Kan. App. 2d 216, 224, 806 P.2d 479, rev. denied 248 P.2d 996 (1991), the court held:
“[UJnless a statute specifically provides otherwise, a subordinate government agency does not have the capacity to be sued. Hopkins v. State, 237 Kan. 601, 606, 702 P.2d 311 (1985). Here, the State of Kansas was sued and served with process. While the KDR may not be able to be sued alone, it may be sued in conjunction with the State.”
KDR argues there is no statutory authority permitting KDR to be sued. The district court disagreed and provided the following rationale in its memorandum decision denying KDR’s motion for reconsideration:
“The Court rejected the KDR’s argument that it lacks capacity to be sued when it ruled on the KDR’s motion to dismiss in 1996. (Mem. Dec., 9/18/96, at p. 2.) At that time, the Court emphasized K.S.A. 79-3617 as the basis for its subject matter jurisdiction, but also discussed the nature of the Court’s authority under K.S.A. 60-907. (Mem. Dec., 9/18/96, at pp. 4-5). In its later ruling on the KDR’s motion for summary judgment, the Court concluded that subject matter jurisdiction is proper both under K.S.A. 60-907 and under the [Act for Judicial Review and Civil Enforcement of Agency Actions]. (Mem. Dec., 3/11/98, at p. 11.)”
KDR has conceded under our holding in Copeland, Rieke did not fail to exhaust administrative remedies. Regarding injunctive actions, K.S.A. 60-907(b) provides: “Injunctive relief may be granted to enjoin any public officer, board, or body from entering into any contract or doing any act not authorized by law that may result in the creation of an additional levy of a tax, charge or assessment.”
In R. D. Andersen Constr. Co. v. Kansas Dept. of Human Resources, 7 Kan. App. 2d 453, 457, 643 P.2d 1142, rev. denied 231 Kan. 801 (1982), the court stated:
“The rule of law allowing extraordinary judicial remedies to curtail or prohibit unlawful action by an administrative agency has long been recognized by the Kansas Supreme Court. In State, ex rel., v. Mohler, 98 Kan. 465, 472, 158 Pac. 408 (1916), in discussing administrative power, the Court said:
‘If this power is abused, the courts are open to the aggrieved party, if not by some statutory review, then by the extraordinary and prerogative remedies of injunction or mandamus.’ ”
KDR has conceded its issuance of the tax warrant was an unlawful action. We conclude the district court was correct in interpreting K.S.A. 60-907(a) as specifically authorizing suit against KDR to enjoin its unlawful action. Consequently, we need not consider the alternative basis for the assertion of jurisdiction also relied upon by the district court.
We also reject KDR’s alternative contention that the district court lacked subject matter jurisdiction after the tax warrant was dismissed. Once jurisdiction was conferred upon the Johnson County District Court under K.S.A. 79-3617, KDR’s dismissal without prejudice of the tax warrant did not divest the court of jurisdiction to consider and decide Rieke’s pending action brought under K.S.A. 60-907. Under the facts of this case, Rieke’s action was a “subsequent proceeding” within the meaning of K.S.A. 79-3617.
SERVICE OF PROCESS
KDR contends service of process delivered to the attorney general under K.S.A. 60-304(d) is legally inadequate. This issue was considered and decided in Copeland. “A party may obtain service upon any governmental agency of the state by serving the attorney general. K.S.A. 60-304(d)(5). Service delivered to the attorney general pursuant to K.S.A. 60-304(d) is effective service on the Director of the Kansas Department of Revenue.” 25 Kan. App. 2d at 721-22.
The district court did not err in concluding KDR has been properly served with summons.
ATTORNEY FEES
The district court granted Rieke attorney fees and expenses, the amount to be determined later. KDR argues the court incorrectly interpreted K.S.A. 79-3268(f). Interpretation of a statute is a question of law and our review is unlimited. See Rose & Nelson v. Frank, 25 Kan. App. 2d 22, 24, 956 P.2d 729 (1998).
K.S.A. 79-3268(f) states:
“Attorney fees and related expenses may be awarded to a taxpayer if it can be proved that an assessment or claim asserted by the department is without a reasonable basis in law or fact. A taxpayer must first exhaust its administrative remedies before an award of attorney fees may be made under this section.” (Emphasis added.)
KDR argues the statute requires a determination that its actions were without a reasonable basis in law and fact. The district court correctly rejected this assertion in its decision, denying KDR’s motion for reconsideration. The court noted the statute reads “law or fact” and based upon the plain language of the statute and the absence of any authority to the contrary, the ordinary meaning of “or” is disjunctive not conjunctive. See Davis v. Vermillion, 173 Kan. 508, 510-11, 249 P.2d 625 (1952).
The district court found KDR’s actions were unreasonable because it failed “to recognize the connection between the personal liability determination authorized by K.S.A. 79-3643 and the notice and hearing requirements of K.S.A. 79-3610 when it asserted its claim against the plaintiff through the issuance of a tax warrant without notice or opportunity for a hearing.” The court held that the issuance of the warrant without prior notice and hearing was a claim “ ‘without a reasonable basis in law.’ ” Since the court made this finding, it was within its discretion to award attorney fees. See Stevenson v. Robinson, 22 Kan. App. 2d 305, 307, 917 P.2d 893 (1996).
Also, KDR argues attorney fees should not be awarded for the period of time after the warrant was dismissed. KDR made the same argument in its motion for reconsideration. The court held: “The Court’s decision regarding the amount of attorney fees to be awarded is not final. The arguments raised by KDR in paragraphs 22, 26, and 29 are therefore premature. The KDR should raise these issues as part of the procedures outlined by the Court for assessment of costs.” We agree KDR’s attempt to appeal this issue is premature.
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Pierron, J.:
Perry A. Hilson was charged with criminal threat and aggravated kidnapping of his estranged wife. The jury acquitted Hilson of the kidnapping charge, but convicted him of criminal threat. Hilson appeals his conviction for criminal threat.
Perry and Darcy Zani Hilson were married after a brief courtship in April 1999. Their divorce was finalized in October 1999. While the couple was separated, Darcy lived with her mother in Wellington. In an effort to reconcile, Perry and his friend, T.L., drove from Wichita to Wellington on the evening of August 9,1999. Perry sent T.L. to Darcy’s house to arrange a meeting. Darcy agreed to meet Perry at a convenience store and followed T.L. in her own car.
Before she left, Darcy advised her mother to call the police if she did not return in 30 minutes. Darcy’s mother was under the impression that a restraining order was in effect against Periy. While Darcy had initiated proceedings against Perry pursuant to the Protection from Abuse Act, she had failed to appear at the hearing.
When Darcy arrived at the convenience store, Perry suggested they go to a quieter, more secluded spot. She agreed to go to Hargis Creek and again drove her own car. Darcy testified that when they arrived at Hargis Creek, Perry became very angiy and confronted her about her current boyfriend. Darcy told Perry she wanted to remain friends, and he asked if she wanted to return to Wichita with him.
Darcy testified that she refused to accompany Perry to Wichita. She claimed Perry told T.L. to get a gun and, if Darcy continued to refuse to go to Wichita, to shoot her. Darcy said Periy also instructed T.L. to hit her if she refused again. Darcy capitulated and went to Wichita with Periy and T.L. The remaining course of events relates only to the kidnapping charge, of which Perry was acquitted.
Periy flatly denied making any threats or accusations at Hargis Creek. According to Perry, the conversation at Hargis Creek was pleasant and the two discussed an upcoming trip. Perry testified that he did not confront Darcy about her affair until later in the evening. Although T.L. did not testify at trial, Perry claimed that neither he nor T.L. had brought any weapons with them to Wellington. Perry added he did not carry a gun and, in fact, was afraid of guns. He admitted that Darcy did not want to go to Wichita initially, but said she acquiesced after he begged her.
The State filed an information charging Perry with aggravated kidnapping and criminal threat. The information indicates that the criminal threat charge was predicated on Perry’s statement to Darcy that T.L. would shoot her if she refused to go to Wichita with him. At the close of the State’s evidence, Periy moved for a judgment of acquittal on both counts. The trial court denied the motion, finding there was sufficient evidence of the threat to shoot Darcy to support the criminal threat charge. The jury was instructed that in order to convict on the criminal threat charge, it must find beyond a reasonable doubt that Perry threatened to com mit violence and that the threat was communicated in reckless disregard of the risk of causing terror to Darcy.
Perry argues on appeal that he was denied his right to a unanimous jury verdict. He claims that because there were two possible acts that could have supported the criminal threat conviction, i.e., Perry’s threat to have T.L. shoot Darcy and his threat to have T.L. hit Darcy, the jury may not have unanimously agreed on the same act. In a multiple acts case, more than one act is alleged and any one of them could support the crime charged. In these cases, the jury must be unanimous as to which act constitutes the crime. State v. Kinmon, 26 Kan. App. 2d 677, 678, 995 P.2d 876 (1999). However, when the evidence establishes a continuous incident that cannot be factually separated, no multiple acts instruction is necessaiy. State v. Staggs, 27 Kan. App. 2d 865, Syl. ¶ 2, 9 P.3d 601 (2000). As a threshold matter, the court must first determine whether Perry’s conduct constituted two separate and distinct acts. Whether this was a multiple acts case is a question of law over which this court has unlimited review. Cf. State v. Vontress, 266 Kan. 248, 255, 970 P.2d 42 (1998) (applying a de novo standard to the issue of multiplicitous charges).
The Kansas Supreme Court tacitly adopted the State of Washington’s multiple acts analysis of State v. Kitchen, 110 Wash. 2d 403, 756 P.2d 105 (1988), in State v. Timley, 255 Kan. 286, 289-90, 875 P.2d 242 (1994) (distinguishing Timley as involving alternative means, not multiple acts). The Kansas Court of Appeals had previously adopted the view that failure to instruct the jury properly in a multiple acts case is structural error mandating reversal. See State v. Wellborn, 27 Kan. App. 2d 393, 4 P.3d 1178 (2000), rev. denied 269 Kan. 940; State v. Barber, 26 Kan. App. 2d 330, 988 P.2d 250 (1999).
After Kitchen, Washington refined its multiple acts analysis in State v. Crane, 116 Wash. 2d 315, 326, 804 P.2d 10 (1991), holding that, under a “continuous conduct” exception, a unanimous verdict is not required as to individual incidents of a continuing course of conduct during a limited time period. Under the Washington case law, continuous conduct does not require unanimity as to each act so long as the verdict is unanimous as to the conduct. This court recently carved out a similar exception in Staggs. In that case, the defendant was charged with aggravated battery, and there was evidence showing he both punched and kicked the victim. The court determined no unanimity instruction was required because the punching and kicking represented a continuous course of conduct and constituted only one “act” for purposes of the aggravated battery charge. See 27 Kan. App. 2d 865, Syl. ¶ 2.
Perry contends Darcy’s testimony at trial indicated the two threats were made at different times. This point is well taken. Even at trial, the State acknowledged there were two different threats. The record is unclear as to the chronology of the events, but it appears that Perry and Darcy stayed at Hargis Creek for approximately 30 minutes. After Darcy recalled Perry’s threat to have her shot, the State asked if any similar statements were made at any time. At that point, Darcy testified to Perry’s additional threat to have T.L. hit her, but she did not say when the second threat was made.
Perry’s conduct, however, still falls under the continuous conduct exception. Both threats took place over a relatively short period of time. Moreover, Periy made both threats to achieve the same objective — to coerce Darcy to go with him to Wichita. Therefore, the conduct in question does not constitute multiple acts and there is no question the jury delivered a unanimous verdict.
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Knudson, J.:
Brian Legg appeals from the trial court’s denial of his motion to set aside the underlying judgment of conviction and permit the withdrawal of his nolo contendere pleas. Legg asserts the trial court erred because the record does not affirmatively disclose that he made knowing and voluntary pleas.
Around 11:30 p.m. on September 26, 1998, four 16- and 17-year-old girls drove to Young’s Park in Overland Park, Kansas. Two of the girls, belonging to a traveling dance troupe, got out of their car and began dancing to show their friends some of their dances. When a car entered the parking lot without its lights on, the girls became scared and returned to their car.
The car was a police cruiser driven by Brian Legg, an Overland Park, Kansas, police officer. After some initial questioning, Legg searched each of the girls. The girls claimed Legg touched them in a sexual fashion by putting his hands on their buttocks, groping them, running his hands over their breasts or cupping their breasts, and touching their crotches. After searching the girls, Legg advised them to leave the area. He then returned to his police cruiser and left the parking lot.
The girls reported the incident to the Overland Park Police Department and identified Legg from a photo lineup.
Internal investigators interviewed Legg about the events at the park, and he gave many different versions of the incident. Initially, Legg denied having any contact with the girls but later admitted being at the park and touching the girls, albeit in a nonsexual manner.
The State charged Legg with four counts of misdemeanor sexual battery, K.S.A. 21-3517. Legg pled nolo contendere to all counts. The trial court sentenced Legg to 1 year of incarceration on each count and ordered the sentences to be served consecutively.
Shortly after sentencing, Legg filed his motion to withdraw the pleas, asserting his due process rights were violated when the pleas were entered. Subsequently, Legg filed a supplemental motion to withdraw his pleas alleging he was not advised by the trial court he would be required to register as a sex offender, pursuant to K.S.A. 22-4901 et seq. After a hearing, the trial court rejected each of Legg’s claims, and Legg appeals.
Legg contends there is no affirmative showing on the record the nolo contendere pleas were voluntary and understandingly made as required in Boykin v. Alabama, 395 U.S. 238, 244, 23 L. Ed. 2d 274, 89 S.Ct. 1709 (1969). This contention presupposes Boykins application to misdemeanor pleas and, therefore, that K.S.A. 1999 Supp. 22-3210(c) is not constitutionally adequate. For the reasons that follow, we will not resolve these issues in this appeal; we simply assume Boykin is applicable.
In Boykin, the trial judge accepted the defendant’s guilty plea to robbeiy without asking any questions to the defendant regarding his plea or allowing the defendant to address the court. The United States Supreme Court found plain error where the trial judge accepted a guilty plea without an affirmative showing on the record that the plea was voluntary and understanding^ made. 395 U.S. at 242, 244. When personal liberty is at stake in cases of imprisonment, “the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence” is demanded. 395 U.S. at 243-44.
The Boykin Court was unwilling to assume that the accused waived his federal constitutional right against compulsory self-incrimination, the right to a jury trial, and the right to confront one’s accusers in the face of a silent record. 395 U.S. at 243.
Determining the voluntariness of a plea involves a review of all the relevant circumstances surrounding it. Brady v. United States, 397 U.S. 742, 749, 25 L. Ed. 2d 747, 90 S. Ct. 1463 (1970). Intelligence may be measured by whether the defendant is competent, understands the nature of and consequences of the charges against him, and is represented by competent counsel. 397 U.S. at 756.
“The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision. A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State’s case or the likely penalties attached to alternative courses of action.” 397 U.S. at 757.
The trial court did not simply accept Legg’s pleas but rather conducted a detailed inquiry to insure that the pleas were made knowingly and understandingly. The trial court informed Legg that he was charged with four counts of misdemeanors and that each count carried a maximum penalty of up to 1 year in custody and a fine up to $2,500. The court further inquired into the voluntariness of Legg’s pleas by asking Legg his age and education level, if the pleas were discussed with his attorney, his satisfaction with his attorney, and if he was under the influence of alcohol. The trial court was satisfied with Legg’s answers and believed he was not under the influence and understood the nature and consequences of the pleas.
Although the trial court did not specifically inquire to see that Legg waived his right against compulsory self-incrimination, the right to a jury trial, and the right to confront one’s accusers, under Brady’s totality of the circumstances analysis, this failure is not fatal. Up until Légg was charged in this case, he served as a police officer and was well acquainted with the rights he was waiving, having read these rights to criminal defendants through Miranda warnings.
Legg’s nolo contendere pleas were voluntarily and intelligently made under the totality of the circumstances.
Next, Legg argues there was no factual basis for the pleas on the intent element to arouse or satisfy, and whether the defendant was the spouse of all four girls. K.S.A. 21-3517(a) states: “Sexual battery is the intentional touching of the person of another who is 16 or more years of age, who is not the spouse of the offender and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another.”
Legg’s representation that he might have inadvertently touched the girls’ breasts and crotch area during the pat-down search does not mean there was an insufficient showing of a factual basis to support his pleas. After the prosecution’s recitation of a factual basis to support the pleas, the trial court asked Legg’s counsel if he was satisfied there was a factual basis. Legg’s counsel responded, “I believe that if this was to go to trial, the jury heard that evidence, they could very well find Mr. Legg guilty on all four counts.” Legg also acknowledged an understanding of the factual recitation before entering his pleas.
The essential element of nonmarriage is implied by a commonsense construction. State v. Wade, 244 Kan. 136, 139, 766 P.2d 811 (1989). The record leaves the strong inference that Legg was a stranger to the four girls and met them for the first time in the park. Moreover, it is legally untenable that Legg could be married to all four girls because bigamy is a crime. See K.S.A. 21-3601.
We conclude the trial court did not err in finding there was a factual basis to support each of the charges and Legg’s pleas.
Legg also contends a denial of due process because the trial court failed to advise him of the mandatory registration under the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 etseq., as a consequence of his pleas. Legg argues the requirement of registration is a direct penal consequence arising from his pleas.
Sex offender registration is not penal in nature or a direct consequence to a plea. In State v. Wilkinson, 269 Kan. 603, 610, 9 P.3d 1 (2000), the Kansas Supreme Court commented on an earlier case involving KORA and stated “the registration requirement imposed no affirmative disability or restraint, and that, while the burden of registering may cause discomfort, the act of registration alone was not punishment.” See State v. Myers, 260 Kan. 669, 695-96, 923 P.2d 1024 (1996), cert. denied 521 U.S. 1118 (1997).
We have previously held a trial court is not required to inform a defendant of the collateral consequences of a plea. Bussell v. State, 25 Kan. App. 2d 424, 426, 963 P.2d 1250, rev. denied 266 Kan. 1107 (1998).
We conclude the trial court did not err in failing to inform Legg of the registration requirements under the KORA before accepting his pleas.
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Rees, J.:
In this adoption case, respondent, the natural father of the minor child J.G., appeals from a decree of adoption entered in favor of petitioner, J.G.’s stepfather. Dispositive of this appeal is our resolution of the question whether a natural parent may revoke his written consent, acknowledged before an officer authorized by law to take acknowledgments, before the consent is filed of record in the district court.
Briefly, the relevant factual background is this: On April 23, 1983, respondent, who was then separated from J.G.’s mother, signed and acknowledged a “general” or “blanket” consent to the adoption of J.G. (see In re Adoption of Chance, 4 Kan. App. 2d 576, 583-85, 609 P.2d 232, rev. denied 228 Kan. 806 [1980]). The acknowledgment was certified by a notary public. No adoption was imminent at that time. On May 2, 1983, respondent and J.G.’s mother were granted a divorce by emergency decree. Custody of J.G. was awarded to the mother. By May 27, respondent had changed his mind about the consent. On that date, respondent’s attorney notified the mother and petitioner and their attorney by telephone and in writing that respondent revoked his consent to any adoption of J.G. On June 4, petitioner and J.G.’s mother were married. Four days later, petitioner commenced this action in the district court by filing his petition to adopt J.G. Respondent’s and the mother’s written consents were filed with the petition.
At the hearing on the petition, respondent argued, among other things, that because he had revoked his consent before it was filed of record in the district court his consent was invalid. The district court rejected that argument, finding
“That [respondent’s] notice to [J.G.’s mother] and Petitioner of his intent to revoke his Written Consent to Adoption prior to the time said written consent was filed with the District Court was ineffective to revoke said consent and that said consent could only be revoked by a showing that it was not freely and voluntarily given.”
The court also found that the consent was freely and voluntarily given, and entered an order granting adoption of J.G. to petitioner and the mother. We reverse.
The natural parents’ consent to adoption of their child, where required by statute, is an essential requisite to the jurisdiction of the court to render a valid decree. In re Adoption of Chance, 4 Kan. App. 2d at 582. K.S.A. 59-2102 sets forth the requirements of a valid consent:
“(c) Consent in all cases shall be in writing and shall be acknowledged before the judge of a court of record or before an officer authorized by law to take acknowledgments. If consent is acknowledged before a judge of a court of record, the consent shall be irrevocable. If consent has been given in writing and has been filed of record in the district court, the consent may be revoked, but only if, prior to final decree of adoption, the consenting party alleges and proves that the consent was not freely and voluntarily given.”
We find it clear from the plain language of this statute that filing of record in the district court is a prerequisite to the irrevocability of a freely and voluntarily given written consent acknowledged before an officer authorized by law to take acknowledgments. When a statute is plain and unambiguous the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. Kansas City Power & Light Co. v. Kansas Corporation Commission, 9 Kan. App. 2d 49, 51, 670 P.2d 1369, rev. denied 234 Kan. 1076 (1983).
Relying on language in In re Adoption of Trent, 229 Kan. 224, 624 P.2d 433 (1981), petitioner urges that K.S.A. 59-2102(c) operates to make written and notarized consents irrevocable from the moment they are signed, barring proof by the consenting party that the consent was not freely and voluntarily given. 229 Kan. at 230. We disagree. For four reasons, we find Trent does not call for affirmance of the case before us.
First, the issue in Trent was whether the natural mother’s consent was valid when it had been acknowledged in Missouri by a Kansas notary public; Trent did not involve or discuss the issue before us. (In Trent, the mother attempted to revoke her written, acknowledged consent after the adoptive parents had filed it.) Second, the Supreme Court recognized in Trent that “a written consent filed in the district court becomes irrevocable absent proof that the consent was not freely and voluntarily given.” (Emphasis added.) 229 Kan. at 228. See also Treiber v. Stong, 5 Kan. App. 2d 392, 396, 617 P.2d 114, rev. denied 228 Kan. 807 (1980). Third is the policy that adoption statutes are to be strictly construed in favor of maintaining the rights of the natural parents in controversies involving termination of the parent-child relationship. E.g., In re Adoption of Chance, 4 Kan. App. 2d at 582. Finally, allowing a natural parent to revoke a notarized consent before the consent is filed in the district court appears to accord with legislative policy: to stabilize adoption by preventing revocation on a mere whim, which upsets the legitimate expectations of the child and adopting parents “once the adoption process has begun.” (Emphasis added.) In re Adoption of Iron, 235 Kan. 540, 552, 684 P.2d 332 (1984). See also Treiber v. Stong, 5 Kan. App. 2d at 396. (“The purpose of the statute was to establish rules between the natural parent or parents and the prospective adoptive parents on when and under what circumstances a consent to adoption can be revoked.”)
We conclude and hold that a natural parent may revoke his or her written consent to an adoption, acknowledged before an officer authorized by law to take acknowledgments, at any time before the consent has been filed of record in the district court. Our holding does not affect consents acknowledged before a judge. See K.S.A. 59-2102(c). Nor do we express an opinion on what may constitute a sufficient notice of revocation since all parties in this case concede they knew of respondent’s revocation before his consent was filed.
Reversed with directions that the decree of adoption be set aside. | [
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Rees, J.:
Defendant Cleveland Reed, Jr. was sentenced to consecutive terms of imprisonment pursuant to K.S.A. 1984 Supp. 21-4608(4) for felony convictions in two prosecutions against him. On appeal he asserts the trial court’s application of mandatory consecutive sentences under K.S.A. 1984 Supp. 21-4608(4) was erroneous. We agree.
On December 1, 1982, Reed was charged with attempted burglary, a class E felony, in violation of K.S.A. 21-3301, 21-3715 (Case No. 82-CR-2031). He was released on bond pending his appearance at preliminary hearing scheduled for April 8, 1983. On April 10, 1983, Reed tardily appeared. He waived preliminary hearing and formal arraignment. On that day, he also entered a plea of not guilty and requested a jury trial.
On September 12, 1983, Reed was charged with theft (K.S.A. 21-3701[a]) and burglary (K.S.A. 21-3715), both class D felonies, for crimes purportedly committed that day (Case No. 83-CR-1638).
Reed entered pleas of guilty to all charges in both cases on October 18, 1983. The trial court sentenced Reed to a term of two-to-five years and a fine of $500 for the attempted burglary conviction (Case No. 82-CR-2031). For the burglary and theft convictions in the second case (Case No. 83-CR-1638), Reed was sentenced to two concurrent sentences of three-to-ten years, plus a fine of $1,000. The sentences in the two cases were ordered to run consecutively. Reed’s motion to modify sentence was overruled.
From a review of the transcript on the motion to modify sentence, it is clear the trial court believed K.S.A. 1984 Supp. 21-4608(4) mandated imposition of consecutive sentences. That provision states as follows:
“Any person who is convicted and sentenced for a crime committed while on release for a felony pursuant to article 28 of chapter 22 of the Kansas Statutes Annotated shall serve the term consecutively to the term or terms under which the person was released.” (Emphasis added.)
Reed committed his second and third felonies upon release on appearance bond prior to trial for the first felony pursuant to K.S.A. 22-2802. Focusing on the last phrase in K.S.A. 1984 Supp. 21-4608(4), Reed argues on appeal that since he was released prior to any trial or sentencing, the statute does not mandate consecutive sentencing in his case; that there were no terms under which he had been released. We agree.
It seems incongruous to say that the mere filing of a felony complaint plus release on bond for appearance at preliminary hearing made Reed a person “on release for a felony.” Moreover, until Reed was convicted, he could not have been released under a term or terms. Cf. State v. Holmes, 222 Kan. 212, 563 P.2d 480 (1977) (holding a person is considered to be convicted of a crime after adjudication of guilt).
The State concedes the statute is at least ambiguous and admits the legislature neglected to explicitly include Reed’s situation — release on bond prior to trial — in the statute’s operation. It argues, however, that the clear legislative intent was to punish with consecutive sentences those defendants who abuse any provisional freedom granted them to commit another crime. But although this may have been the legislature’s intent, it is patently not reflected in the statutory language. Penal statutes must be strictly construed in favor of the person sought to be subjected to their operation. State v. Dubish, 234 Kan. 708, 712, 675 P.2d 877 (1984); State, ex rel., v. American Savings Stamp Co., 194 Kan. 297, 300, 398 P.2d 1011 (1965). We accordingly hold that K.S.A. 1984 Supp. 21-4608(4) does not mandate impo sition of consecutive sentences where, as here, a defendant commits another felony while on release on appearance bond prior to trial.
We note our holding controls only the situation presented here and outlined above. Cf. State v. Ashley, 236 Kan. 551, 693 P.2d 1168 (1985); State v. Sayles, 10 Kan. App. 2d 180, 694 P. 2d 918 (1985).
We have examined Reed’s other contentions and find them to be without merit.
In summary, we conclude that this case must be remanded to the trial court for resentencing of the defendant. When the defendant is resentenced, our holding here does not affect the general sentencing discretion and authority granted to the trial court elsewhere in the statutes.
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Abbott, J.:
The claimant, Allan T. Osmundson, appeals in a workers’ compensation case, contending that the trial court did not have jurisdiction and that it erred in computing his average weekly wage.
We are satisfied the trial court had jurisdiction. The Workers’ Compensation Director is required to enter an order in every workers’ compensation case, even when review is not requested, and an appeal may be taken from any order of the director. K.S.A. 1984 Supp. 44-551; K.S.A. 1984 Supp. 44-556(a). If a review by the director is not requested within 10 days after the administrative law judge makes an award, the director must enter an order. The parties then have 20 days from the director’s order within which to file a notice of appeal to the district court.
In this case the notice of appeal to the district court states that it is from the order of the director made on March 29, 1984. A review of the record shows that the director received the administrative law judge’s order on March 29, but that his order of approval of the administrative law judge’s award was not filed until April 9.
A similar situation was presented in Elwood v. General Motors Corporation, 200 Kan. 686, 438 P.2d 44 (1968), wherein the notice of appeal stated the claimant was appealing from the order of the administrative law judge entered on January 11, 1967. The appeal should have been from the order of the director entered on January 23,1967. Finding that the incorrectly worded notice of appeal substantially complied with the requirements of the statute, the Supreme Court said:
“It cannot be denied that the notice of appeal is, strictly speaking, incorrectly worded. It should have stated that the appeal was from the order of the director of January 23 — and counsel for claimant — admitting a ‘clerical error’ — so concedes. On the other hand, there being only one ‘award’ here — may it be said that respondent was in any way misled? We think not. Under the facts of this case — and, given the liberal construction to which it is entitled (Russell v. Lamoreaux Homes, Inc., 198 Kan. 447, 424 P.2d 561 [1967]) — the notice of appeal was, as a practical matter, from the order of the director, for the order of the examiner and that of the director were one and the same. Although its literal wording is not recommended as a ‘model’ for future guidance to parties seeking to appeal from awards of the director — we believe there was a substantial compliance with the provisions of K.S.A. 44-556.” 200 Kan. at 688-89.
The same is true here. The “clerical error,” stating the date the director received the administrative law judge’s award rather than the date he entered his order of approval, is not misleading. Only one award was in question, and in approving the order of the administrative law judge, his “decisions, findings, awards or rulings” became those of the director. The notice of appeal substantially complied with the requirements of K.S.A. 1984 Supp. 44-556- The trial court did not err in concluding it had jurisdiction.
The trial judge found, and the parties agree, that the earnings of the claimant were determined by his output, not on an hourly, weekly or monthly rate of pay and that K.S.A. 44-511(b)(5) was the proper statute to use in determining his average weekly wage. That statute provides in pertinent part:
“[I]f the employee has been employed by the employer at least one (1) calendar week immediately preceding the date of the accident, the average gross weekly wage shall be the gross amount of money earned during the number of calendar weeks so employed, up to a maximum of twenty-six (26) calendar weeks immediately preceding the date of the accident, divided by the number of weeks employed, or by twenty-six (26) as the case may be ... . In making any computations under this paragraph (5), work weeks during which the employee was on vacation, leave of absence, sick leave or was absent the entire work week because of illness or injury shall not be considered.” (Emphasis supplied.)
The employer’s work is seasonal in nature insofar as claimant is concerned and claimant had worked eleven of the preceding 26 weeks. During the 26-week period, work was not available to claimant for 13 of 14 consecutive weeks.
He earned $3,583.26 during the 11-week period he was employed, and the administrative law judge divided the amount earned by 11 to arrive at an average weekly wage of $325.75. Review by the director was not requested. The trial judge apparently used the figures supplied by the employer and arrived at an average weekly wage of $119.75 by dividing 26 weeks (10 worked — 16 not worked) into $3,113.43 (actual wages earned 9-2-82 through 2-24-83). The figures used by the trial judge do not include the last 9 days the claimant worked but do include 9 days the claimant did not work, which should not be considered because they are outside the 26-week statutory period.
Claimant was eligible for and was paid unemployment compensation when he was not working for respondent. The employer testified he considered claimant a full-time employee. The employer also testified that “the unemployment people” considered it a “layoff’ when drivers such as claimant had no work, but that he, the employer, considered it “an interruption” even though the period when no work was available might last several months.
The employer argues that claimant was “employed” during the entire six-month period preceding the accident, even though he did not actually work during a number of those weeks. “Employee” is defined in K.S.A. 1984 Supp. 44-508(b) as “any person who has entered into the employment of or works under any contract of service,” and the employer contends that claimant worked under a specific contract of service for Sedan Floral.
This court is to determine legislative intent and nothing more; it cannot nullify legislative will nor concern itself with the wisdom of legislative policy. In re Estate of Bowman, 172 Kan. 17, 22, 238 P.2d 486 (1951). What we might consider fair and equitable under the circumstances is immaterial. In construing the Workmen’s Compensation Act, the general rules of statutory construction are our guideline. We are instructed to broadly interpret the statute to achieve the purpose of the act and carry out legislative intent. See Hormann v. New Hampshire Ins. Co., 236 Kan. 190, 200, 689 P.2d 837 (1984).
The statute itself does not define “employed.” Black’s Law Dictionary 617 (4th ed. rev. 1968) states that the term “signifies both the act of doing a thing and the being under contract or orders to do it.” Obviously-, pursuant to the Workmen’s Com pensation Act, the term “employ” is not to be construed in a strict sense but in such a manner that it will accomplish the purpose of the act and be consistent with legislative intent.
Another statute, the Employment Security Law, is designed with the broad purpose of protecting employees. It defines “unemployment” by stating that “an individual shall be deemed ‘unemployed’ with respect to any week during which such individual performs no services and with respect to which no wages are payable to such individual.” K.S.A. 1984 Supp. 44-703(m).
There were comprehensive amendments to the Workmen’s Compensation Act in 1974. (L. 1974, ch. 203.) Prior to those changes, the provision for computing an employee’s average gross weekly wage was as follows:
“Where prior to accident the rate of wages is fixed by the output of the employee the daily wage shall be calculated by dividing the number of days the workman was actually employed into the total amount the employee earned during the preceding six (6) months . . . .” K.S.A. 44-511(2)(Weeks).
Interpreting the meaning of “actually employed,” Our Supreme Court said in Zeitner v. Floair, Inc., 211 Kan. 19, 24, 505 P.2d 661 (1973): “We think ‘actually employed’ as used in 44-511(2) means the time the workman was actually employed and on the job, and it is not the day of hiring that controls.” The Court held that the trial court erred as a matter of law in finding that the deceased workman had been an employee of the respondent for 18.71 weeks at the time of his accident. Although the workman had been hired and was on call during those 18.71 weeks, the Court found that he was actually employed only one day — the day he was flying for the respondent and met with his fatal accident.
A review of the legislative history of the 1974 amendments made after the Zeitner case reveals an intent to clarify the language in the various sections of 44-511, and an intent to increase the amount of benefits available through the inclusion of several fringe benefits in the computation. Nothing in the legislative history reveals an intent to change the meaning of “actually employed” as interpreted by the court in Zeitner when the word “actually” was deleted from the statute. As we view it, the legislature deleted the word because it was redundant..
Two other cases, McKinstry v. Coal Co., 116 Kan. 192, 194, 225 Pac. 743 (1924), and Horn v. Elm Branch Coal Co., 141 Kan. 518, 41 P.2d 751 (1935), involved the computation of wages on an output basis in the mining business. In McKinstry the workman did not work full-time because the mine did not operate full-time. In Horn the workman was on call as a shot-firer, but not paid during a eight-month period while the mine was not mining hard coal. In both cases, the Court relied on a portion of the statute which stated that wages should be “undiminished by loss due to . . . other unavoidable cause.” In neither case were the weeks in which the workman did not work included in arriving at the average wage.
As we construe K.S.A. 44-511(b)(5), the legislative intent is for the word “employed” to continue to mean the time the worker is employed and on the job. It does not intend for the average weekly wage computation to include time during which a worker is entitled to draw unemployment compensation and is free to seek and accept other employment until work is again available from the regular employer.
The trial court should not have included the weeks when no work was available to claimant. It does not matter whether claimant is designated as having been “laid off’ or placed on “leave of absence” status; the determining factor is that the worker is not employed because there is no work available for him to perform. The end result is the same. Those weeks when the worker is not employed are not to be used in computing his average weekly wage pursuant to K.S.A. 44-511(b)(5).
Reversed and remanded with directions to reinstate the award of the director. | [
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Meyer, J.:
Appellant Eddie Jaso (defendant) appeals following a jury verdict finding him guilty on two counts of selling controlled substances in violation of K.S.A. 65-4127b(b)(l) and K.S.A. 65-4107e. Defendant was sentenced to 9-30 years on each count.
The facts were fully set out in State v. Jaso, 231 Kan. 614, 648 P.2d 1 (1982) (hereinafter referred to as Jaso I), and will not be repeated herein.
Defendant first contends that the oral application providing the basis for the issuance of the search warrant for apartment # 3003 did not contain sufficient facts to support a finding of probable cause. He contends there was insufficient analysis of the substances purchased on May 22, 1980, to support a determination the substances were Quaaludes containing methaqualone, and further argues there was no indication in the application for the warrant that access to the drugs was limited to apartment # 3003.
The State contends first that the issue of sufficient probable cause supporting the search warrant was adjudicated in Jaso I, and that the Supreme Court’s finding of sufficient probable cause therein negates defendant’s right to challenge the warrant now. In Jaso I, the issue was whether probable cause existed to support a search of the contents of the brown Chevrolet which Eddie Jaso used to flee the Riverbend Apartments (which included apartment # 3003 above referred to). The Supreme Court made no specific determination regarding probable cause to search apartment # 3003. However, the court did find that the validity of the automobile search depended on facts obtained in the search of the apartment. Thus, under the “fruit of the poisonous tree doctrine,” if the search of the apartment was illegal, so would be the search of the car. And inasmuch as the Supreme Court held the search of the car was legal and was based on facts gleaned by the search of the apartment, it could be argued that a conclusion had been reached by that court that the apartment search was legal. While the State does not argue the “poisonous tree” doctrine, such is the only theory which would be applicable if we were to conclude the court in Jaso I had determined the validity of the apartment search. Since such a holding would be by way of implication, and perhaps too nebulous for application in a criminal case, we will consider this issue on the merits.
The complaint in the instant case was supported by the sworn testimony of Douglas Roth, assistant district attorney. Roth’s testimony was based on statements made by a detective who actually purchased Quaaludes from Espinoza and who followed Espinoza’s and the defendant’s activities during the course of the investigation. Although it would appear much of Roth’s testimony was hearsay, it is noted that hearsay may be relied upon and form the basis for a probable cause finding. Wilbanks v. State, 224 Kan. 66, 72, 579 P.2d 132 (1978). The federal rules also so provide: “The finding of probable cause may be based upon hearsay evidence in whole or in part.” Rule 4(b) Fed. R. Crim. Proc.
The sworn testimony given before the magistrate from whom the search warrant was obtained contained the following information:
—Detective Brewer purchased 100 Quaaludes from Joseph Espinoza on May 22, 1980.
—At this first purchase, Detective Brewer was told by Espinoza he (Espinoza) would go to his “source” and get the Quaaludes and Espinoza was seen entering an apartment at the Riverbend Apartments.
—Detective Brewer was familiar with Quaaludes and knew the drugs he purchased on May 22, 1980, were drugs containing methaqualone.
—On May 23, 1980, Detective Brewer spoke with Espinoza who told the detective he could get 10,000 Quaaludes from his source.
—Espinoza told Detective Brewer to meet him on May 23, 1980, at a parking lot near the Riverbend Apartments to pick up 10,000 Quaaludes.
—Detectives observed Espinoza enter and leave apartment # 3003 of the Riverbend Apartments.
—Espinoza approached Detective Brewer, at the nearby parking lot, told him the Quaaludes were being counted, and then returned to Riverbend Apartments and entered apartment # 3003.
—Espinoza returned to the parking lot with 5,000 Quaaludes, gave them to Detective Brewer, and stated 3,000 more were being counted out in apartment # 3003.
Based upon this showing we conclude the magistrate had before him sufficient evidence to support a finding that there was probable cause to issue the search warrant.
In pressing his argument that there was insufficient probable cause to issue the search warrant, defendant relies on State v. Whitehead, 229 Kan. 133, 622 P.2d 665 (1981), and State v. Morgan, 222 Kan. 149, 153, 563 P.2d 1056 (1977). Neither of these cases supports defendant’s contentions. In Whitehead, the court affirmed the finding of probable cause, relying on statements to the effect that the only place where the drugs could have come from was the place searched. In the instant case, while there was no specific statement that apartment # 3003 was the only place where the Quaaludes could have come from, there was testimony that the only place Espinoza did indeed enter and exit was apartment # 3003. Thus, the meaning of what was said in Whitehead, and in the instant case, is the same. In Morgan it was held that the evidence of a single drug sale may not give probable cause to believe drugs are present at a particular location. Morgan is distinguishable from the instant case in that, here, there was more than a single sale. And Morgan held that while a single sale may be insufficient to show probable cause, evidence indicating protracted or continuous conduct at a par ticular location may support a finding of probable cause.'Morgan, 222 Kan. at 153. Furthermore, the court in State v. Jacques, 225 Kan. 38, 587 P.2d 861 (1978), held that a single isolated drug sale might be sufficient to support a finding of probable cause if the sale had occurred recently. Jacques, 225 Kan. at 42. Thus, Morgan does not prohibit a finding of probable cause merely because only one drug sale occurred.
Appellee cites Massachusetts v. Sheppard, 468 U.S.__, 82 L.Ed.2d 737, 743, 104 S.Ct. 3424 (1984), and United States v. Leon, 468 U.S.__, 82 L.Ed.2d 677, 104 S.Ct. 3405 (1984), where the court held that the exclusionary rule should not be applied when the officer conducting the search acted in objectively reasonable reliance on a warrant issued by a detached and neutral magistrate that subsequently is determined to be invalid. Such cases are, however, not necessary to our disposition of the issue before us.
The defendant next contends the search of apartment #3003 exceeded the authority of the warrant. Defendant specifically complains that officers seized not only drugs but evidence of identification as well. There is no merit to this contention. The search warrant did not list identification items, but did list 3,000 Quaalude pills. Since there was no way of knowing whether the pills would all be in one place, it is obvious that items as small as a single pill could legitimately be searched for. This being the situation, there was virtually no place too small for the officers to search. And so long as the officers were legitimately searching in a given area, items coming into their plain view were subject to seizure. Three tests were set out in State v. Jones, 233 Kan. 112, 114, 660 P.2d 948 (1983), to determine whether the plain view exception to the Fourth Amendment comes into play. The exception applies when it is shown that (1) the initial intrusion which afforded the authorities the plain view was lawful by virtue of a warrant (search or arrest), waiver or exigent circumstances; (2) the discovery of the evidence was inadvertent; and (3) the authorities immediately had reasonable or probable cause to believe the evidence observed in plain view was incriminating in nature.
Here, the intrusion was lawful because, as found above, the officers were executing a valid search warrant. The second test, that of inadvertence, is met because while the searching officers were looking for “identification” it cannot be said they knew they would find the subject bill or card in the apartment. As the court in United States v. Liberti, 616 F.2d 34 (2nd Cir.), cert. denied 446 U.S. 952 (1980) held:
“On the other hand, we have considered and find most persuasive the Government’s contention that the postal inspectors did not ‘know’ in advance that they would find the additional cosmetics in plain view and that, in the absence of this knowledge, their discovery was inadvertent. ‘What Coolidge proscribes is an anticipated discovery, where the police know in advance the location of the evidence and intend to seize it.’ United States v. Bolts, 558 F.2d 316, 320 (5th Cir.), cert,. denied, 434 U.S. 930, 98 S.Ct. 417, 54 L.Ed.2d 290 (1977); see Mapp v. Warden, 531 F.2d 1167, 1172 (2d Cir.), cert,. denied, 429 U.S. 982, 97 S.Ct. 498, 50 L.Ed.2d 592 (1976). For the Government to be charged with advance knowledge, it must at the very least have had probable cause to believe that the additional cosmetics w,ould be found. United States v. Hare, 589 F.2d 1291, 1293-96 (6th Cir. 1979); United States v. Marshall, 452 F. Supp. 1282, 1287 (S.D. Fla. 1978); United States v. Winston, 373 F. Supp. 1005, 1007 (E.D. Mich. 1974), aff'd, 516 F.2d 902 (6th Cir. 1975). Mere expectation or suspicion that discovery would occur does not preclude application of the plain view doctrine. United States v. Hare, supra, 589 F.2d at 1294; United States v. Worthington, 544 F.2d 1275, 1280 n. 4 (5th Cir.), cert. denied, 434 U.S. 817, 98 S.Ct. 55, 54 L.Ed.2d 72 (1977); United States v. Cushnie, supra, 488 F.2d at 82. 616 F.2d at 37.”
The third test of Jones, the “incriminating character” of the seized evidence, is likewise met. The seizing authority need only have reasonable or probable cause to believe that the object is evidence of a crime. No more is required of an officer’s judgment than that it be reasonable on the appearances to them, and the determination is made by considering the surrounding circumstances. State v. Galloway, 232 Kan. 87, 652 P.2d 673 (1982). Since the cleaning bill and postcard indicated defendant resided at the place where the drugs were found, they were clearly incriminating.
Defendant also contends the application of the search warrant contained false and misleading statements, and that under State v. Jacques, 225 Kan. 38, 587 P.2d 861 (1978), any evidence seized by the searching officers should have been suppressed. However, we note that Jacques also holds that there is a presumption of validity with respect to oral testimony or a written affidavit supporting a search warrant. Despite the presumption, however, the warrant may be challenged if false statements are made in the application knowingly or recklessly. State v. Jacques, 225 Kan. 38, Syl. ¶ 5. We have carefully examined defendant’s con tentions in this regard, and find that much of what defendant complains are words or phrases which are subject to more than one interpretation. Such do not appear to us to have been made either with knowledge of falsity or with reckless disregard for truth. Further, given the presumption of validity, the complained of language does not appear to be false. To “chase down” all of the nuances possible under defendant’s claimed falsities is not necessary, but we give the following examples to demonstrate why we feel defendant’s contentions lack merit. Detective Brewer testified he actually stated Espinoza told him “his man” was supplying the drugs purchased, and that he did not actually use the words “his source” as stated in the application. Defendant contends that because of such difference the phrase “his source” is false. This is typical of defendant’s claims of falsehood; yet, rather clearly we think, when the meaning intended is examined, the phrase is true. Another example is where defendant claims it was false to say the Quaaludes had been subjected to laboratory analysis when, in fact, they were not. A reading of the context, however, in which the statement appears discloses, to us, that what the witness meant was that he recognized Quaaludes when he saw them because he had on other occasions seen Quaaludes being subjected to laboratory analysis. These types of phrases do not even reach the falsehood plateau; certainly it cannot be said they are falsehoods knowingly and recklessly made.
Defendant’s final contention is that his cross-examination of Joseph Espinoza was unduly restricted.
Limitations on cross-examination are within the discretion of the trial court, and will be overturned only upon a showing of abuse which is clearly prejudicial. State v. Ogden, 210 Kan. 510, Syl. ¶ 9, 502 P.2d 654 (1972). And one who claims abuse of discretion has the burden of proving that contention. Lone Star Industries, Inc. v. Secretary, Kansas Dept. of Transp., 234 Kan. 121, 131, 671 P.2d 511 (1983); Hoover Equipment Co. v. Smith, 198 Kan. 127, 134, 422 P.2d 914 (1967). It is true that a defense counsel should be allowed leeway to establish a witness’s subjective reason for testifying. State v. Corn, 223 Kan. 583, 588, 575 P.2d 1308 (1978). However, a prerequisite for witness testimony on a matter is that there is evidence the witness has the requisite personal knowledge. K.S.A. 60-419. Furthermore, conjecture or speculation can never be the rule in giving testimony. Staudinger v. Sooner Pipe & Supply Corporation, 208 Kan. 100, 105, 490 P.2d 619 (1971). Repetitious questions may be excluded and such is not an abuse of the trial court’s discretion. State v. Belote, 213 Kan. 291, 296, 516 P.2d 159 (1973). Furthermore, it is for the trial court to determine in its discretion when questioning becomes unduly argumentative.
Defendant presents us with a number of instances where objections by the prosecution were sustained, which he claims as error. However, when we apply the foregoing rules to these instances, we find they involve one or more of the following: (1) a matter which the witness cannot be said to be qualified to answer; (2) where only the form of the question was objected to and where, the defense having rephrased the question, same was answered; (3) those already asked and answered; and (4) argumentative questions. All of the rulings objected to by defendant, and cited to us, come within one or more of the above categories; clearly none of them have merit. The trial court made a correct ruling in each instance.
There is no merit to any of the issues raised by defendant.
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Parks, J.:
Plaintiff Roy N. Brown brought this action against defendant Lester Zackert for personal injuries arising out of an automobile collision in Missouri. Defendant filed no counterclaim. Plaintiff filed a motion for voluntary dismissal which the trial court granted without prejudice but upon the condition that plaintiff pay all of the costs and attorney fees incurred by defendant. Plaintiff s motion to modify the order was denied and he appeals.
Although the accident underlying this case took place in Missouri, plaintiff filed his suit in this state presumably because both he and defendant were Kansas residents. The action was originally filed on June 30, 1982, but was dismissed on April 25, 1983, for lack of prosecution. Plaintiff refiled the case on May 23, 1983, and a pretrial conference was held on September 29. Trial was set for January 9, 1984, and plaintiff was to file a completed pretrial order and witness list by December 1, 1983. Plaintiff failed to meet the December deadline and filed a motion for voluntary dismissal pursuant to K.S.A. 60-241(a)(2) on December 21. Defendant objected to the motion for dismissal arguing that if the court granted dismissal it should do so on the condition that plaintiff pay his costs and expenses. Defendant filed an affidavit stating that he had incurred expenses of $445.65 in deposition costs, $125.50 in obtaining plaintiffs medical records and $4,056.25 in attorney fees in defending the action thus far. The district court granted the dismissal but ordered plaintiff to pay a total of $4,627.40 for defendant’s costs.
Plaintiff then filed a motion to modify the court’s order. In oral argument on the motion, plaintiff s attorney stated that the dismissal was sought because of a conflict in trial settings and the difficulty of obtaining the attendance of out-of-state witnesses. He indicated his belief that Missouri was the more appropriate forum for this suit and that the action would be refiled in that state. The court denied plaintiff s motion to modify the dismissal order. On appeal, plaintiff does not dispute the propriety of the court’s action in requiring him to pay some of defendant’s expenses but claims that the court abused its discretion in failing to consider the amount of the costs he could properly be required to pay.
K.S.A. 60-241(a)(2) provides that the district court may grant a voluntary dismissal “upon such terms and conditions as the judge deems proper.” Plaintiff contends that the trial court abused its discretion in requiring that he bear, as a condition of dismissal, all of defendant’s litigation expenses incurred in the dismissed action because some of those expenditures may have resulted in evidence or work product which may be used in a subsequent action. He argues that the court’s failure to separately consider the future utility of defendant’s past expenses evidences an abuse of discretion. We agree.
Decisions applying Federal Rule of Civil Procedure 41(a)(2) are authoritative in interpreting our parallel provision. Cheek v. Hird, 9 Kan. App. 2d 248, 252, 675 P.2d 935 (1984). In Bishop v. West American Ins. Co., 95 F.R.D. 494, 495 (N.D. Ga. 1982), the court stated that the purpose of Rule 41(a)(2) is to fully compensate the defendant for reasonable expenses incurred before dismissal and to deter vexatious litigation. Good faith and diligence exercised by the plaintiff in seeking dismissal will not deprive the defendant of the right to receive protection from the prejudice or inconvenience he may have sustained. GAF Corp. v. Transamerica Ins. Co., 665 F.2d 364, 369 (D.C. Cir. 1981). On the other hand, the rule may not be relied upon to provide a windfall to the defendant. In McLaughlin v. Cheshire, 676 F.2d 855, 857 (D.C. Cir. 1982), the court held that the requirement that plaintiff pay defendant’s expenses as a condition of dismissal must be limited to those expenses uselessly incurred. The court stated that when a plaintiff seeks dismissal in one forum to pursue pending litigation against the defendant in another forum, the defendant is not entitled to reimbursement for expenses incurred in preparing work product that has been or will be useful in the continuing litigation. Accord Kern v. TXO Production Corp., 738 F.2d 968, 973 (8th Cir. 1984). In sum, a voluntary dismissal may be conditioned on the payment of defendant’s costs and attorney fees but the amount of reimbursement should only include those expenses which will not benefit defendant in pending litigation or litigation to be filed in another forum.
It is the longstanding rule in this jurisdiction that each party to litigation should bear his own costs and expenses absent some specific statutory provision to the contrary. Newton v. Hornblower, Inc., 224 Kan. 506, 525, 582 P.2d 1136 (1978). The portion of K.S.A. 60-241(a)(2) which permits the imposition of conditions upon a dismissal without prejudice is such a specific statutory provision. Peterson v. Garney Constr. Co., 2 Kan. App. 2d 587, 590, 584 P.2d 1269 (1978). However, the authority of that exception is limited to measures which will protect the defendant from any harm which may have resulted from the dismissal. Cheek, 9 Kan. App. 2d at 251. The actual expenses of any further litigation must still be borne by the party who incurs them, absent any other statutory provision which might vary the rule. Therefore, while the conditions of dismissal are within the discretion of the court, the range of that discretion is confined to terms which relieve the defendant from the potential waste occasioned by the dismissal. Appropriate conditions are not limited to measures which protect defendant from immediate financial harm (Cheek, 9 Kan. App. 2d at 251), but neither may they be devised to shift responsibility for litigation expenses unaffected by the dismissal.
Defendant’s affidavit of expenditures breaks the expenses down into deposition costs, attorney fees and the expenses of securing medical records. Although defendant concedes the likelihood of further litigation on this matter in Missouri, he contends that the court’s order was proper because none of his expenses would relate to this future litigation. While it would seem difficult to conclude that neither the medical records nor the depositions generated evidence which would be of value in subsequent proceedings, this is an issue we need not decide. The district court did not consider whether any of the expenses would have a future use for defendant and we hold that the proper exercise of discretion under K.S.A. 60-241(a)(2) requires that such an inquiry must be made. Therefore, we conclude that the trial court abused its discretion in ordering plaintiff to pay all of defendant’s costs and attorney fees without considering whether any of those expenses will benefit defendant in future litigation.
The judgment allowing the requested costs and fees is reversed and the case is remanded so that the order can be modified to exclude any costs or fees which may still be beneficial to defendant. | [
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Beier, J.:
Cowley County (County) appeals the district court’s ruling affirming the Kansas Board of Tax Appeals’ decision that a closed oil refinery is realty rather than personal property. We affirm.
Appellee-taxpayer Total Petroleum, Inc., (Total) shut down its oil refinery in Arkansas City and removed certain key components necessary to run it. Total did not intend to reopen the refinery, although it continued to run a small asphalt storage operation on the premises.
While the refinery was still operating, the County appraised it, using a guide prepared by the Property Valuation Division (PVD) of the Kansas Department of Revenue. The guide allocated 90 percent of the calculated value of the refinery to real estate, approximately $19.1 million, and 10 percent to personal properly, approximately $2 million.
After the refinery closed, the County’s appraiser testified that use of the PVD guide for valuation was no longer appropriate. Appellant categorized the remaining refinery property other than the land itself as personal property and valued it at $12.6 million, based on a third-party’s purchase offer, which was ultimately rescinded. Two parcels of land underlying the property were separately appraised as real property at $422,890 and $1,026,860.
Total appealed this valuation to the Board of Tax Appeals (BOTA), arguing that the County had improperly divided the refinery assets into personally and realty and that the property had a negative value because of environmental remediation costs.
At the BOTA hearing, the County presented expert testimony that the value of the remaining property was $9,944,640. However, on cross-examination, the County’s expert admitted he arrived at the figure by using the amount of the rescinded offer to purchase. He also admitted he was not a licensed appraiser and had no experience in valuing oil refineries.
Total presented the testimony of three witnesses who addressed the salvage value of the remaining property. Total’s corporate property tax manager testified that the net book value of the fixed assets at the refinery location was $1,596,699. The national director of the complex property tax group for Ernst & Young, LLP, opined the value of the property was $3,260,000, based on data obtained concerning the sale of a comparable refinery one year earlier. Total’s operations manager, Harold Green, testified that he believed the remaining refinery property would be worth $2.5 million to $3 million if cut down and sold for scrap.
Green also testified regarding the physical characteristics of the improvements, including how the tanks and operating units were originally constructed, attached, and interconnected. Green explained that the tanks were constructed using sheet metal, which was welded to the ground, and that their side walls were put up one sheet at a time until each was 3 inches thick. Green also testified that the tanks were not portable, were never moved, and would have to be cut down a piece at a time to be hauled away.
Green also testified about the construction of the towers at the refinery:
“The towers, they usually railed them in because they were too long to come in by truck. One that comes to mind was about 120 feet tall, weighed 175,000 pounds. That’s empty weight without the trays. It has got the trays in it about every 18 inches. They go down about 20 feet and start pouring a big base of foundation with rebar and then come up to pedestals. The pedestals has got usually an inch and a half anchor bolts. You take — after you get the tower set, leveled, it’s grouted in, usually an epoxy grout which is real hard to remove. It’s supposed to withstand a windload of a hundred mile an hour.”
Green also said that, when certain components were removed earlier, it had taken two crews 4 weeks to obtain two items, a reactor and a heater.
An environmental engineer for Total’s successor company also testified. He said the amount of the reserve the company maintained to cover the cost of cleaning up environmental contamination at the refinery was more than $21.7 million over a 10-year period. The remediation would include, among other things, asbestos removal, cleaning, and disposal of hazardous sludge.
The County did not take issue with any of Green’s testimony about the size and weight of the property or about the difficulty of removing it from the land. It merely emphasized that the property could be removed.
BOTA made the following findings in concluding that the appraised value of the subject property for the tax year at issue was $0:
“First, the Board finds that the County erroneously reclassified the fixtures of the refinery to personal property. Nearly all improvements to real property may be salvaged to a certain extent. A house may be uninhabitable, but still have salvage value in the wood and fixtures. Merely because a fixture is no longer useable for its intended purpose, but may have some salvage value, does not warrant classifying the fixture as personal property. Second, the Board finds that the County failed to make any attempt to value the subject property according to accepted appraisal standard. The County did attempt to support its recommended value, after the fact, through the testimony of Ronald Cook. However, Mr. Cook did not apply any recognized appraisal method in his review of the subject property, but also used the ‘offer’ as the basis for arriving at his value. Essentially, Mr. Cook arrived at a salvage value of $9,460,632. It is further noted that Mr. Cook is not a licensed appraiser and has no experience in valuing oil refineries as his area of expertise is limited to the valuation of oil and gas leases. The Board finds that Mr. Cook’s estimate of salvage value is still far less than the cost to cure the environmental problems associated with the land and the fixtures.”
The County appealed BOTA’s decision to the district court. The district judge affirmed, finding BOTA’s decision that the property constituted fixtures, i.e., part of the realty, was supported by substantial evidence and was not unreasonable, arbitrary, or capricious. The court also concluded it was proper for BOTA to offset any positive salvage value of the fixtures by any negative value of the land itself, including the environmental liability associated with the land and the cost of remediation. See K.S.A. 1999 Supp. 79-412 (“It shall be the duty of the county or district appraiser to value the land and improvements; but the value of the land and improvements shall be entered on the assessment roll in a single aggregate.”); see also In re Tax Appeal of Andrews, 18 Kan. App. 2d 311, 323, 851 P.2d 1027 (1993) (holding the aggregate value of the land and its improvements is the controlling value).
This appeal by the County focuses only on the finding that the remaining refinery property was realty rather than personal property.
Our standard of review requires us to recognize that BOTA specializes in deciding taxation issues and that courts generally give its decisions deference on such issues unless its interpretation is erroneous as a matter of law. In re Tax Appeal of Boeing Co., 261 Kan. 508, 515, 930 P.2d 1366 (1997).
“When reviewing an agency’s action, an appellate court’s scope of review is limited to determining whether the district court reviewed the action in accordance with die Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. Board of Douglas County Comm’rs v. Cashatt, 23 Kan. App. 2d 532, 538, 933 P.2d 167 (1997).
“K.S.A. 77-621(c) allows the court to grant relief from the agency action under certain circumstances, including when the agency erroneously interpreted or applied the law, when the agency’s decision is not supported by substantial competent evidence in die record, or when the agency’s action is unreasonable, arbitrary, or capricious. K.S.A. 77-621(c)(4),(7), and (8). The party who asserts that die agency’s decision is invalid bears the burden of proving the invalidity. K.S.A. 77-621(a)(l).” In re Equalization Appeal of Ottawa Housing Assoc., L.P., 27 Kan. App. 2d 1008, 1009-10, 10 P.3d 777 (2000).
K.S.A. 79-102 provides that the terms “real property,” “real estate,” and “land” “shall include not only the land itself, but all buildings, fixtures, improvements . . . and . . . rights and privileges appertaining thereto.”
In Kansas, the test for determining whether personal property becomes a fixture is: “(1) annexation to the realty; (2) adaptation to the use of that part of the realty with which it is attached; and (3) the intention of the party making the annexation.” Stalcup v. Detrich, 27 Kan. App. 2d 880, 10 P. 3d 3 (2000) (citing U.S.D. No. 464 v. Porter, 234 Kan. 690, 695, 676 P.2d 84 [1984]).
In Stalcup, this court found that a metal building attached by metal bolts to a concrete slab was personal property because (a) it could be removed, (b) it was not particularly adapted to the farmland on which it sat, and (c) the owners’ intention at the time of annexation for it to remain personal property was borne out by their provisions that it be separately taxed and that the taxes be paid by a distinct party. 27 Kan. App. 2d at 886-87. In Porter, the court noted that the propane tank at issue was not attached to the soil, was not buried underground, and was easily movable. It finally concluded that the tank was personal property. 234 Kan. at 695.
“Most modem authorities recognize the practical difficulties in formulating a comprehensive principle for determining what are fixtures, and hold that the determination can only be made from a consideration of all the individual facts and circumstances attending the particular case. [Citation omitted.]” Kansas City Millwright Co., Inc. v. Kalb, 221 Kan. 658, 664, 562 P.2d 65, modified 221 Kan. 752, 564 P.2d 1280 (1977). In this case, substantial competent evidence supports the district court’s finding that the remaining refinery property should be classified as fixtures rather than personalty.
First, with regard to annexation, Green testified that the refinery property was firmly attached to the land and not easily removable, unlike the tank in Porter. The refineiy tanks involved here are so large that the sheet metal to make them had to be transported to the site on semi trucks. It was welded down to create the floor of the tank, and the sides sheets were welded together until they formed a wall three inches thick. In order to remove the tanks, Green testified, they would have to be cut down a piece at a time. The refineiy towers, weighing as much as 175,000 pounds, were built 20 feet into the ground with concrete foundations and designed to withstand 100-mile-an-hour winds. All of the property was originally interconnected, and it had not been severed from the land on the day of valuation. These facts constitute substantial competent evidence that the property was annexed to the realty.
In terms of adaptation, the County argues the property ceased to be of any value or usefulness to the land when the refinery closed down. However, a small part of the property was still being used on the valuation date to store asphalt. In addition, evidence was presented that the land was devoted to the placement of an oil refinery; and some of the property, including the towers and tanks, was specifically constructed for placement on that particular land. Much of the property would have to be cut down in pieces in order to be removed from the land, and such removal would result in environmental contamination that would have to be treated. This evidence was sufficient to meet the adaptation part of the test for fixtures.
Finally, with regard to intention, the County asserts Total intended that all of the property become personal property when the refinery was permanently closed. That is not the period of time we examine to determine this question. Af the time of annexation, the taxpayer clearly intended that the property would be a permanent part of the land. It was firmly affixed to the ground, and the property was interconnected in such a way that removal of any portion would be exceedingly laborious and complicated. Moreover, the fact that the property still was not severed from the land on the date of valuation provides another piece of substantial competent evidence that the taxpayer’s intention at the time of annexation was the creation of fixtures, not personal property.
Our review of the facts and the governing law in this case persuades us that BOTA did not erroneously interpret or apply the law; that its decision was supported by substantial competent evidence; and that its action was not unreasonable, arbitrary, or capricious.
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Schmisseur, J.:
Michael B. Sharp appeals his conviction by a jury of endangering a child. We reverse and remand for a new trial.
On June 13, 1999, at about 3:30 a.m., Sharp returned to an apartment he shared with his girlfriend, Kristin Lockwood, after a night of shooting pool. Sharp woke the couple’s 3-week-old daughter and began holding her. Lockwood was upset with Sharp, and a verbal argument ensued, which eventually proceeded outside the apartment, with Sharp still holding the baby. Lockwood testified there was a possibility Sharp was under the influence of alcohol or drugs because it was late. She also testified she did not think the baby was in any danger with Sharp.
Lockwood told Sharp she was going to call the police if he left with the baby. After arguing for about an hour, Lockwood locked Sharp out of the apartment. Sharp left on foot with his daughter, and Lockwood called the police. The weather that evening was described as mild, and the baby was wearing a Onesie and was wrapped in a blanket the entire time.
Officer Thomas contacted Lockwood at the couple’s apartment. Lockwood advised Thomas she thought Sharp “was under the influence of amphetamine or something similar to that.” Thomas then apprised the officers in contact with Sharp of this information.
Officer Bordman, while en route, was advised by dispatch that Sharp had an active warrant for his arrest. When Bordman arrived at the scene, about 1 block from Sharp’s apartment, Officers God-den and Garcia were already engaged in conversation with Sharp. Garcia asked to hold the baby, and Sharp refused. Sharp indicated he wanted to leave the area and walk back to his apartment with the baby. The officers surrounded him and refused to let him leave. Bordman testified the officers wanted Sharp to give them the baby because Sharp had a warrant out for his arrest. At that time, the officers had not advised Sharp he was under arrest.
Bordman testified that Sharp appeared agitated by the way he was holding the baby, from the manner in which he was talking, and from the fact he had just left a domestic disturbance. According to Bordman, there was no safe way the officers could have approached Sharp without endangering the baby. The officers were concerned for the welfare of the baby and could not predict Sharp’s next action. Bordman also testified that Sharp never threatened to harm the baby and, in fact, did appear concerned for the child.
Shaip eventually agreed to hand over the baby in return for some cigarettes. An officer retrieved a pack of cigarettes from a nearby store. Bordman gave Sharp a cigarette and let him smoke it while still holding the baby. While Sharp was smoking the cigarette, another officer told Sharp that there was a warrant for his arrest and he was going to jail. Sharp finished smoking the cigarette and then handed the baby to the police. Approximately 14 minutes elapsed from the time the police first requested that Sharp release the baby to the time Sharp was placed in custody.
After Sharp was in custody, Lockwood walked down the street to retrieve the baby, who was released to her unharmed. En route to jail, Sharp informed Bordman he knew about the warrant but wanted a cigarette before being arrested. Following a trial by jury, Sharp was convicted of endangering a child.
Although our opinion focuses on the jury instructions, we will first review the sufficiency of the evidence argument, as the child endangerment law is extremely fact sensitive.
Sharp asserts there was insufficient evidence to convict him of endangering a child. The standard of review for challenging the sufficiency of evidence in a criminal case is whether, after review of all the evidence, viewed in the fight most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Wilson, 267 Kan. 550, 568, 987 P.2d 1060 (1999).
“Endangering a child is intentionally and unreasonably causing or permitting a child under the age of 18 years to be placed in a situation in which the child’s fife, body or health may be injured or endangered.” K.S.A. 21-3608(a). Sharp argues his actions and conduct did not endanger his child and did not violate the statute. The State argues that based on testimony of Sharp’s possible intoxication, his defiant acts throughout police negotiations, and his reluctance to release the baby until a cigarette was provided, the jury was within its province to find Sharp guilty of endangering a child.
In State v. Fisher, 230 Kan. 192, 631 P.2d 239 (1981), the Kansas Supreme Court interpreted the language and purpose of K.S.A. 21-3608(a) (which was at that time found in K.S.A. 21-3608[l][b] [Ensley 1981]) and concluded it was not unconstitutionally vague. 230 Kan. at 199-200. The court held the purpose of the statute is salutary, to protect children and to prevent their being placed where it is reasonably certain injury will result. 230 Kan. at 199. Although the wording of the statute is broad, the purpose is likewise broad: “to prevent people from placing children in situations where their fives and bodies are obviously in imminent peril .... it is the likelihood of injury against which the statute speaks.” 230 Kan. at 199-200. After reviewing how other states have construed similar statutes, the court held the word “may,” as used in 'ho Kansas statute, “means something more than a faint or remote possibility; it means that there is a reasonable probability, a likelihood that harm to the child will result.” 230 Kan. at 195. The court concluded the statute conveys a sufficiently definite warning when measured by common understanding, and it was not void for vagueness. 230 Kan. at 200.
More recently, in Wilson, the Kansas Supreme Court upheld its earlier ruling in Fisher, declaring once again that K.S.A. 21-3608(a) is not void for vagueness. 267 Kan. at 556. The Wilson court also addressed the sufficiency of evidence needed in a conviction for child endangerment. See 267 Kan. at 568. In Wilson, the court ruled failure to act was not in itself sufficient to create criminal liability because the defendant had neither control nor authority over the child or her abuser, i.e., the defendant was not in a position to “permit” the child’s placement in the abusive situation. 267 Kan. at 568. Although Wilson involved a dissimilar factual scenario, the court’s rulings offer guidance in the present case.
The Wilson court stated that the goal of the child endangerment statute is to protect children from abuse and neglect, but it declined to “expand criminal liability to every circumstance which would arguably protect children despite the statute’s express or implied limitations or the factual situations which the legislature expressly declined to reach when it had the opportunity of doing so.” 267 Kan. at 567 (ruling the statute does not create criminal liability in persons for failing to attempt to stop or report known abuse, if such persons have no authority or control over the child or abuser). The court also held:
“[I]n order to be found guilty of child endangerment, one must either (1) cause a child under the age of 18 years to be placed in a situation where tire child’s life, body, or health may be injured or endangered, or (2) have authority or control over either the child or the abuser and permit a child under the age of 18 years to be placed in such a situation where the child’s life, body, or health may be injured or endangered.” 267 Kan. at.567-68.
Here, Sharp obviously had control over the child and caused the child to be in this certain situation. Thus, the determinative ques tion is whether the situation was one in which the child’s life, body, or health might have been injured or endangered. This question cannot be addressed without first articulating what specific act or situation the State was claiming violated the statute. In its closing argument, the State claimed the crime started when the police stopped Sharp to check on the welfare of the child and to execute the outstanding warrant. It argued Sharp used his 3-week-old baby as a shield from the police to buy himself time and ultimately buy himself a cigarette.
As discussed earlier, the word “may” has been judicially defined to mean more than a faint or remote possibility; it means there is a reasonable probability, a likelihood that harm to the child will result. Fisher, 230 Kan. at 195. The real issue then becomes whether, after Sharp was stopped by the police, the child was ever in a situation in which there was a reasonable probability or likelihood she would be harmed.
Sharp was stopped by the police and asked to hand his baby over to them. He initially refused. Sharp then asked to walk the baby home. The officers denied his request. At that time, the police had not informed Sharp he was under arrest. The State claims that Sharp was defiant and the police were afraid of a flight situation and were concerned for the infant’s welfare. Yet it fails to show how the baby was ever in any danger. Sharp did not actively resist or ever place the baby in any danger. There is no evidence he ever moved or attempted to flee. When the police finally told Sharp he was under arrest for an outstanding warrant, he handed the baby to the police moments later. The fact that Sharp knew he had a warrant out for his arrest is academic.
The only evidence presented which would tend to show there was even a remote possibility the baby could have been injured was testimony claiming Sharp may have been under the influence of alcohol or drugs and testimony that Sharp appeared to be in an agitated state when the police arrived. However, there was little evidence presented to show Sharp was actually under the influence of alcohol or drugs. Further, Lockwood testified she did not believe the baby was in any danger with Sharp. Bordman also testified Sharp seemed concerned for the infant by the way he was holding her.
The State seemed to concede in its closing argument it had no legal reason to stop Sharp and demand he turn over the baby had there not been a warrant for his arrest. Once the police finally told Sharp he was under arrest, Sharp gave his child to the police moments later. There is no evidence the child was actually ever in danger. Further, the purpose of the statute, as illustrated by prior case law, is to protect children from abuse and neglect and to prevent them from being placed in situations where their Uves and bodies are obviously in imminent peril. Wilson, 267 Kan. at 567; Fisher, 230 Kan. at 199-200. There must be a reasonable probability, a likelihood, that harm to the child will result. 230 Kan. at 195.
The standard of review on an insufficiency of the evidence argument is difficult for an appellant to satisfy. Giving appropriate deference to the jury and the trial court, we struggle on the sufficiency issue. Since we reverse on the issue of the jury instructions, we decline to determine as a matter of law that the evidence was insufficient to support a conviction.
The controlling issue is whether the jury instruction defining the elements of endangering a child was clearly erroneous. We determine that it was.
Sharp argues the jury instruction containing the elements of endangering a child did not properly and fairly state the law as applied to the facts of this case, and the instruction was constitutionally defective. Sharp acknowledges the trial court gave the standard PIK instruction, PIK Crim. 3d 58.10, without objection. The PIK Committee has substituted the word “might” for the word “may” used in the statute. When a defendant did not object to a jury instruction, the defendant, on appeal, must show the instruction was clearly erroneous. An instruction is clearly erroneous if the reviewing court is convinced there is a real possibility the jury would have rendered a different verdict had the error not occurred. State v. Henry, 263 Kan. 118, 131, 947 P.2d 1020 (1997).
The Kansas Supreme Court has advised trial courts that PIK language is preferable, and absent particular facts requiring mod ification, the PIK language should be followed. State v. Moncla, 262 Kan. 58, 71, 936 P.2d 727 (1997). However, if the particular facts in a given case require modification or additions to the relevant instruction, the court should not hesitate to make such changes. 262 Kan. at 71.
Here, the jury instruction at issue follows the language of the statute. It reads, in pertinent part: “That the defendant intentionally and unreasonably caused or permitted Zoe Sharp to be placed in a situation in which Zoe Sharp’s life, body, or health might be injured or endangered.” Sharp asserts it was clear error for the court not to define the term “might” as used in the instruction.
The Fisher court noted the word “may,” in ordinary usage, means permissive or connotes- a possibility, however remote, of occurring. 230 Kan. at 194. In Fisher, the court discussed and adopted the rationale of the Colorado Supreme Court in defining the word “may” as used in the child endangerment statute. 230 Kan. at 194-95. The Colorado Supreme Court, in People v. Hoehl, 193 Colo. 557, 560, 568 P.2d 484 (1977), stated “may” normally means in some degree likely, expressing permission, possibility, probability, or contingency. The Colorado court concluded: “So construed, we seriously doubt whether ‘may’ in a criminal statute provides a fair description of the prohibited conduct, since virtually any conduct directed toward a child has the possibility, however slim, of endangering the child’s life or health.” 193 Colo, at 560. In Fisher, the Kansas Supreme Court agreed with this rationale and held the word “may” as used in the child endangerment statute, “means something more than a faint or remote possibility; it means that there is a reasonable probability, a likelihood that harm to the child will result.” 230 Kan. at 195.
Although the Fisher court goes on to conclude the statute “is clear and understandable; that ordinary persons can determine what conduct is proscribed by a common-sense reading of the statute,” its earlier discussion on the different meanings of the word “may” iterates why it is important that that particular word be defined in the context of this statute. 230 Kan. at 195, 200. Simply saying a child “might” be injured, in its ordinaxy meaning, is not sufficient to convict someone of endangering a child. See 230 Kan. at 195 (adopting the rationale of the Colorado court that concluded the word “may” does not provide a sufficient description of the prohibited conduct). The logical conclusion of this analysis means the term “might,” as used in the jury instruction, must be judicially defined in the same manner.
The jury instruction given in this case does not reflect the proper legal standard to consider in determining whether a crime has been committed. The ordinary or normal meaning of the word “may” was specifically rejected by the Fisher court in favor of a definition containing a legal standard: reasonable probability. 230 Kan. at 195. There is a very real possibility, especially under the facts of this case, that the jury would have returned a different verdict had the term “might” been properly defined as more than a faint or remote possibility, a reasonable probability, a likelihood that harm to the child wifi result or that the child will be placed in imminent peril. See Comment to PIK Crim. 3d 58.10.
Reversed and remanded for a new trial. | [
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Pierron, J.:
Matthew S. Asher entered an Alford plea to a charge of misdemeanor theft. See North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162, 91 S. Ct 160 (1970). He appeals the district court’s denial of his motion to dismiss based on a violation of his right to a speedy trial. We dismiss the appeal for lack of jurisdiction.
On April 23, 1997, Asher was charged with falsely reporting a crime, presenting a false claim, theft, and obtaining a prescription-only drug by fraudulent means. All the crimes were class A nonperson misdemeanors. Asher was never formally arraigned on these charges. On May 8, 1997, Asher’s attorney entered an appearance and filed a request for a jury trial. The jury trial was set for July 28,1997. On July 17,1997, Asher filed a motion for a continuance in order to complete a diversion check.
On September 15,1997, Asher entered a 12-month diversionary agreement. On February 20, 1998, his diversion agreement was revoked because he received another diversion for a new crime of shoplifting in Arkansas City during the time of his Shawnee County diversion. Asher appealed his revocation to our court and later filed a motion for voluntary dismissal. Our mandate dismissing the case was filed on December 31, 1998.
The case lay inactive until the State filed a renewed motion to revoke diversion on October 28, 1999. In response, Asher filed a motion to dismiss on the grounds that his right to a speedy trial had been violated. On November 17, 1999, the district court denied Asher’s motion, holding that it was the policy in Shawnee County to not arraign misdemeanor defendants and, therefore, Asher’s speedy trial clock never commenced running. Asher was immediately arraigned on the charges, and the case was set for trial on February 7, 2000.
Due to tlxe very peculiar facts of this case, it would be difficult to judge Asher’s claim of a speedy trial violation. However, we need not reach that issue. On March 22, 2000, Asher entered an Alford plea to the misdemeanor theft charge and the other charges were dropped.
At the plea and sentencing hearing, Asher’s counsel attempted to reserve the issue of the violation of the right to speedy trial for appeal. Apparently, the State agreed that the jurisdictional challenge to the theft conviction would be reserved for the appellate court.
Parties cannot create jurisdiction in our court. “An agreement between the parties that the right to appeal is not waived cannot invest an appellate court with jurisdiction when it is otherwise lacking.” Varner v. Gulf Ins. Co., 254 Kan. 492, 496, 866 P.2d 1044 (1994).
Asher’s plea divested this court of jurisdiction to consider his claim of a violation of his right to a speedy trial. We recently rejected the same argument in State v. Hartman, 27 Kan. App. 2d 98, 102, 998 P.2d 128 (2000):
“In State v. Rodriguez, 254 Kan. 768, Syl. ¶ 2, 869 P.2d 631 (1994), the Supreme Court held: ‘The general rule is that a defendant waives his right to a speedy trial by a plea of guilty in the district court.’ We apply that general rule in this case and hold defendant waived his statutory and constitutional rights to a speedy trial by his pleas of guilty. See Witt v. State, 197 Kan. 363, Syl. ¶ 2, 416 P.2d 717 (1966); Cooper v. State, 196 Kan. 421, Syl. ¶ 4, 411 P.2d 652 (1966); Moore v. Hand, 187 Kan. 260, 263, 356 P.2d 809 (1960).”
An Alford plea allows a defendant to knowingly and intelligently plead guilty, based on the strength of the prosecution’s case, without the express admission of guilt, in order to take advantage of plea negotiations. See Alford, 400 U.S. at 37-38. Although a strange kind of guilty plea, a guilty plea it is. We have no jurisdiction to hear this appeal.
Appeal dismissed. | [
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Green, J.:
James E. Thomas appeals his convictions of driving while a habitual violator, no proof of liability insurance, and driving without an assigned tag. On appeal, Thomas argues (1) the evidence is insufficient to sustain his convictions; (2) the trial court erred in instructing the jury; and (3) the trial court erred in denying his Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), challenge to the State’s use of peremptory strikes. We disagree and affirm.
On May 30, 1999, Officer Michael Conrady and his partner observed a vehicle with no tag that was traveling approximately 15-20 miles per hour. The officers observed the car turn onto another street and shortly thereafter turn onto a driveway. After the vehicle stopped, the officers approached the driver, James Thomas, and asked for his driver’s license and proof of insurance. Thomas stated that he did not have a driver’s license or proof of insurance and that he was on probation for felony driving while suspended. The officers verified that Thomas’ driver’s license was revoked and that he was on probation for felony driving while suspended. Thomas told the officers that the vehicle did not run. Thomas, a mechanic, indicated that he was going to fix the car so he had pushed it to get it going and then had coasted it down the hill and around the corner.
Thomas was charged with single counts of felony driving while a habitual violator, no proof of liability insurance, windshield materially obstructed, and driving without an assigned tag.
At Thomas’ jury trial, Officer Conrady testified that he did not hear the engine of the car running. He also testified that the street where Thomas was driving was downhill, so it was possible that Thomas could have pushed the car to get it going, jumped into it, and traveled downhill to his driveway. Officer Conrady testified that he did not ask Thomas to try to start the car as proof it could not run.
Garvis Williams testified on Thomas’ behalf. Williams testified that the car in question was her 1987 Chevy Nova and that the vehicle did not run. Williams testified that she offered to pay Thomas to fix her vehicle. She said that her car was parked at her aunt’s house, which was approximately a third of a mile from Thomas’ residence. She agreed that the windshield of the vehicle was cracked and that the car did not have a license plate.
Thomas testified that while the vehicle was at Williams’ aunt’s residence he put in a new battery and attempted to start the car, but the car would not run. He stated that his mechanic’s tools were located in his garage, so he pushed the car to get it rolling and then steered it onto his driveway.
The jury found Thomas guilty of driving while a habitual violator, no proof of insurance, and driving without an assigned tag. He was sentenced to 11 months’ confinement to run concurrent with sentences imposed in two other cases.
Sufficiency of the Evidence
Thomas first contends that the evidence is insufficient to sustain his convictions. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999).
Thomas claims that the evidence is insufficient because the State failed to prove beyond a reasonable doubt that he was operating a motor vehicle. To establish the driving while a habitual violator charge, the State was required to prove that Thomas operated “a motor vehicle in this state while [his] driving privileges [were] revoked pursuant to K.S.A. 8-286 and amendments thereto.” (Emphasis added.) K.S.A. 2000 Supp. 8-287. To prove the offense of no proof of liability insurance, the State had to prove that Thomas failed to “display, upon demand, evidence of financial security to a law enforcement officer” while he was “operating a motor vehicle upon a highway.” (Emphasis added.) K.S.A. 40-3104(d). In addition, to prove that Thomas violated K.S.A. 2000 Supp. 8-142, the State had to establish that Thomas operated upon a highway “any vehicle, as defined in K.S.A. 8-126, and amendments thereto, which . . . does not have attached thereto and displayed thereon the license plate or plates assigned thereto by the division for the current registration year.” (Emphasis added.)
“Motor vehicle” is defined as “every vehicle, other than a motorized bicycle or a motorized wheelchair, which is self-propelled.” K.S.A. 2000 Supp. 8-126(b). In addition, “vehicle” is defined as “[e]very device in, upon or by which any person or property is or may be transported or drawn upon a public highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks.” K.S.A. 2000 Supp. 8-126(a).
Although Kansas appellate courts have not addressed the issue of whether a vehicle must be operable to constitute a motor vehicle, the question has been considered in other jurisdictions. For example, Rosenbaum v. Commonwealth, 12 Va. App. 61, 402 S.E.2d 498 (1991), addressed whether the defendant was properly convicted of driving while a habitual offender. The defendant was sitting on the seat of a motorcycle touching two wires together in an attempt to make the engine turn over while parked in the emergency lane of an interstate. The Rosenbaum court found that this evidence was sufficient to support the defendant’s conviction even though he never drove or moved the motorcycle, the motorcycle was inoperable, and the defendant was merely attempting to start the motorcycle. The court rationalized that “[t]he fact that the motorcycle did not start or was incapable of starting is irrelevant.” In so holding, the Rosenbaum court relied on Nicolls v. Commonwealth, 212 Va. 257, 259, 184 S.E.2d 9 (1971), which held that “‘[e]very vehicle . . . which is self-propelled or designed for self-propulsion’ is contemplated under the law as a motor vehicle.” 12 Va. App. at 64.
Similarly, State v. Osgood, 135 N.H. 436, 605 A.2d 1071 (1992), held that it is not necessary that a motor vehicle actually be operable in order for an individual to drive it for purposes of violating the driving while a habitual offender statute. In Osgood, an officer observed the defendant traveling on a highway in the breakdown lane at a speed of approximately 15 to 20 miles per hour. The officer noticed that the motorcycle did not have a license plate. When the officer stopped the defendant, who had been certified a habitual offender, the defendant stated that he recently purchased the motorcycle and he was attempting to start it by rolling it down the road.
The Osgood court affirmed the defendant’s conviction of driving while a habitual offender, finding that “one who puts a motorcycle in motion on the highway through coasting, even though the motor may be inoperable, is ‘in actual physical control’ of the vehicle.” 135 N.H. at 438; see State v. Griffin, 152 Vt. 41, 563 A.2d 642 (1989) (holding that despite alleged mechanical inoperability, the defendant had actual physical control of coasting vehicle). The Osgood court reasoned that “[t]he habitual offender statute is intended to promote public safety ‘by removing irresponsible drivers from the highways of the State.’ [Citation omitted.] The danger to the public occurs when an habitual offender places a motor vehicle, ‘whether powered by its engine or gravity,’ in motion on the highway. [Citation omitted.]” 135 N.H. at 438.
We find the rationale applied in Rosenbaum and Osgood persuasive and interpret K.S.A. 2000 Supp. 8-126(b) as including within the definition of “motor vehicle” those devices which are designed for self-propulsion. An individual operates a motor vehicle when he or she puts a self-propelled device, other than a motorized bicycle or a motorized wheelchair, into motion on a public thoroughfare, whether powered by its engine or by coasting. The 1987 Chevy Nova Thomas operated constituted a motor vehicle because it was designed for self-propulsion and was put into motion through coasting.
Moreover, we read K.S.A. 2000 Supp. 8-126(a) as including within the definition of “vehicle” an inoperable motor vehicle traversing a public thoroughfare by coasting. Because the 1987 Chevy Nova Thomas operated was an inoperable motor vehicle which traversed by coasting, it constitutes a “vehicle.” Accordingly, Thomas’ convictions are supported by sufficient evidence.
Jury Instructions
Thomas next contends that the jury instruction stating the elements of driving while a habitual violator was clearly erroneous because it allowed the juxy an alternate means of convicting him of that crime which was not included in the statute. Thomas, however, failed to object to the instruction. Accordingly, our standard of review is as follows:
“[N]o party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds of his or her objection, unless the instruction or the failure to give the instruction is clearly erroneous. K.S.A. 22-3414. 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. Henry, 263 Kan. 118, 131, 947 P.2d 1020 (1997).
The trial court instructed the jury that to convict Thomas of driving while a habitual violator, the State had to prove that Thomas “drove or attempted to drive a motor vehicle.” Thomas contends that it was error to instruct the jury in this manner because the driving while a habitual violator statute does not include attempting to drive a motor vehicle as a means of committing the offense.
As noted previously, the offense of driving while a habitual violator is committed when an individual operates “a motor vehicle in this state while one’s driving privileges are revoked pursuant to K.S.A. 8-286 and amendments thereto.” Our interpretation of this statute is a question of law subject to unlimited review. State v. Patterson, 25 Kan. App. 2d 245, 247, 963 P.2d 436, rev. denied 265 Kan. 888 (1998).
“It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. [Citation omitted.] The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. [Citation omitted.] Stated another way, when a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute. [Citation omitted.]” In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998).
K.S.A. 2000 Supp. 8-287 specifies that a habitual violator may only violate the statute by operating a motor vehicle. Unlike our driving while intoxicated statute (K.S.A. 2000 Supp. 8-1567), the driving while a habitual violator statute does not criminalize attempting to operate a motor vehicle. Stated another way, K.S.A. 2000 Supp. 8-287 does not provide an alternative means for committing the offense of driving while a habitual violator. Moreover, our rules of statutory construction prevent us from reading into the statute an alternative means for committing the offense.
Because attempting to drive a motor vehicle while a habitual violator is not criminalized by K.S.A. 2000 Supp. 8-287, the trial court misstated the law when instructing the jury. Curiously, the PIK instruction for driving while a habitual violator contains language similar to that used by the trial court. PIK Crim. 3d 70.11 (1999 Supp.). It is unclear why the PIK contains “attempted to drive” language since K.S.A. 2000 Supp. 8-287 does not criminalize attempting to drive while a habitual violator. Accordingly, we recommend trial courts refrain from using this part of the PIK language.
While the jury instruction in question constituted a misstatement of the law, we must determine whether there is a real possibility the jury would have rendered a different verdict had the trial error not occurred. The instruction would bé clearly erroneous if the jury could have reasonably acquitted Thomas of driving while a habitual violator had the “attempted to drive” language not been included in the instruction. However, there was no evidence presented to the juiy that Thomas was merely attempting to drive the vehicle. Instead, the evidence showed that Thomas was in actual physical control of the vehicle in that he maneuvered it approximately a third of a mile by steering it and applying the brakes when necessary. See K.S.A. 8-1416 (defining “driver” as “every person who drives or is in actual physical control of a vehicle”). The facts presented in this case established that Thomas was in actual physical control of the 1987 Chevy Nova and, as a result, he was driving it rather than attempting to do so.
A jury instruction is not constitutionally flawed where one of the possible bases of conviction was neither unconstitutional nor illegal but “merely” unsupported by sufficient evidence. Griffin v. United States, 502 U.S. 46, 59-60, 116 L. Ed. 2d 371, 112 S. Ct. 466 (1991). Here, although the jury instruction constituted a misstatement of the law by reason of the attempting to drive language, this inappropriate theory of conviction was not supported by die evidence. We can reasonably assume that the jury did not behave capriciously and convict on a theory in which there was no evidence, when strong evidence existed supporting the theory that Thomas drove the vehicle. See State v. Ice, 27 Kan. App. 2d 1, 7, 997 P.2d 737 (2000). As a result, although the trial court erred in instructing the jury, the instruction was not clearly erroneous because no real possibility existed that the jury would have rendered a different verdict had the trial error not occurred.
Thomas also contends that the trial court erred when it failed to instruct on attempted driving while a habitual violator. Thomas, however, did not request such an instruction. “No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objections unless the instruction or the failure to give an instruction is clearly erroneous.” K.S.A. 2000 Supp. 22-3414(3).
It cannot be said that the failure to instruct on attempted driving while a habitual violator was clearly erroneous because, as we previously determined, the evidence did not support a finding that Thomas attempted to drive the vehicle. As a result, the trial court did not err in instructing the jury.
Batson Challenge
Thomas further argues that the State used peremptory strikes to exclude potential jurors on the basis of race. Our standard of review is whether the trial court abused its discretion in determining the challenged strikes were constitutionally permissible. State v. Vargas, 260 Kan. 791, Syl. ¶ 1, 926 P.2d 223 (1996). Because the trial judge’s findings in the context under consideration turn on evaluation of the credibility of the prosecutor, we give those findings great deference. State v. Walston, 256 Kan. 372, 378, 886 P.2d 349 (1994).
The United States Supreme Court has outlined a three-part test to determine if the State’s use of peremptory strikes violates the Equal Protection Clause. The Kansas Supreme Court restated the test in State v. Poole, 252 Kan. 108, Syl. ¶ 1, 843 P.2d 689 (1992):
“First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.”
The second step of the Batson process does not demand an explanation by the prosecutor that is persuasive, or even plausible, but one that is merely facially valid. Further, unless a discriminatory intent is inherent in the prosecutors explanation, the reason offered will be deemed race neutral. The ultimate burden of persuasion rests with, and never shifts from, the opponent of the strike. Vargas, 260 Kan. 791, Syl. ¶ 3.
In the present case, the State used three of its peremptoiy strikes to remove three of the four African-Americans from the jury. Thomas is an African-American. Thomas concedes that the removal of two African-Americans from the jury was proper but insists that the prosecutor’s reasons for striking a third African-American, Ms. B, were constitutionally insufficient.
The State noted to the trial court that Ms. B was removed because she gave the prosecutor “very funny, weird looks and she wasn’t responding very well.” Thomas alleges that this response is not sufficient because Ms. B responded to the questions appropriately. Even though Ms. B’s responses may have been appropriate, we have no way of knowing whether the State believed Ms. B or what her demeanor was when she answered the questions. The State provided racially neutral reasons for the removal of Ms. B. Moreover, Thomas failed to show that these race neutral reasons were a pretext for discrimination. As a result, the trial court did not abuse its discretion in denying Thomas’ Batson challenge to the removal of Ms. B.
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Prager, C.J.:
This is an appeal by the defendant, Howard J. Banks, Jr., from convictions of two counts of aggravated indecent liberties with a child. Banks’ principal argument is that the trial court improperly failed to give a multiple acts juiy instruction. We disagree. In addition, we determine that Banks’ other contentions of error are fatally flawed. Accordingly, we affirm.
The evidence in the case is not greatly in dispute. In June 1998, T.N. and L.H., 11-year-old females, were walking to L.H.’s house when it started to rain. They entered a laundromat to escape the rain and noticed a dog outside. When it stopped raining, the girls went outside and saw Banks.
They asked Banks if the dog was his. He replied it was not but that he would take care of it. The girls saw that Banks had a gun in a pouch by his side, but Banks did not tell them he had it or show it to them. The gun, however, did scare T.N.
While outside the laundromat, Banks pulled T.N. down to the ground, had hold of her arm, and began touching her pelvic area on the outside of her clothing. He failed in his efforts to get inside her clothes. During part of this encounter, L.H. went back inside the laundromat, but she was present at least part of the time Banks was touching T.N. According to T.N., Banks also touched L.H.’s breasts.
When T.N. pulled her arm away, she got up, and she and L.H. picked up the dog and left the laundromat to go to L.H.’s house. Banks followed them. At some point while they were walking, L.H. handed the dog over to Banks. They neared Banks’ house, and he called the girls over to see where he was going to keep the dog. When the girls went over to him, Banks touched L.H.’s breasts. According to T.N., Banks also touched T.N.’s pelvic area. L.H. elbowed Banks, and the girls ran to L.H.’s house.
Initially, the girls did not tell anyone what had happened, but they eventually told T.N.’s mother, who notified the police. Banks was charged with two counts of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A). Count I pertained to T.N.; count II pertained to L.H.
At trial, both T.N. and L.H. identified Banks as the person who had touched them that day. T.N. testified she was very scared when Banks was touching her. L.H. testified she felt very uncomfortable when Banks touched her.
The prosecution called as witnesses two licensed clinical social workers, Pat Peters and John Theis, who testified regarding their evaluations of T.N. and L.H. Peters, who conducted a sexual abuse evaluation on T.N., testified that she diagnosed T.N. with “adjustment disorder unspecified,” with a recent cause of stress being T.N.’s “[r]ecent report of sexual abuse.” Similarly, Theis had conducted a sexual abuse evaluation on L.H. and diagnosed her as having an “adjustment disorder with anxiety,” which is typically a reaction to a stressful event.
The defense rested it's case without calling any witnesses. The judge denied Banks’ request for a jury instruction on the lesser included offense of battery, and Banks objected to the verdict form only on that basis.
The jury returned a guilty verdict on both counts. On November 5, 1999, the trial court imposed consecutive sentences of 55 months’ imprisonment for count I and 49 months’ imprisonment for count II. Banks filed a timely appeal.
On appeal, Banks first contends that the trial court erred in failing to give an instruction requiring the jury to be unanimous about which act it relied on in reaching a verdict because this was a multiple acts case. Banks argues this is a multiple acts case because there was evidence of multiple acts of touching as to each girl at the laundromat and en route to L.H.’s house. In State v. Timley, 255 Kan. 286, 289-290, 875 P.2d 242 (1994), the court stated:
“ ‘In multiple acts cases, . . . several acts are alleged and any one of them could constitute the crime charged. In these cases, the jury must be unanimous as to which act or incident constitutes the crime. To ensure juiy unanimity in multiple acts cases, we require drat eidier the State elect dre particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury tiiat all of them must agree that the same underlying criminal act has been proved beyond a reasonable doubt.’ [Citation omitted.]”
In this case, Banks did not object at trial to the court’s omission of a multiple acts instruction. Generally, a party may not claim error in the failure to give an instruction without first objecting thereto, unless such failure is clearly erroneous. K.S.A. 1999 Supp. 22-3414(3). “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. Henry, 263 Kan. 118, 131, 947 P.2d 1020 (1997).
The State presented evidence, predominantly through the testimony of T.N., that Banks touched both girls outside the laundromat and both girls near his house. L.H. gave overlapping testimony that Banks only touched T.N. outside the laundromat and only touched L.H. near his house. Banks contends that these multiple acts of touching call into question whether the jury unanimously agreed on which act constituted the crime of aggravated indecent liberties with a child under each count.
In State v. Staggs, 27 Kan. App. 2d 865, Syl. ¶ 2, 9 P.3d 601 (2000), this court stated: “When the factual circumstances of a crime involve a short, continuous, single incident comprised of several acts individually sufficient for conviction, jury unanimity requires only that the jury agree to an act of the crime charged, not which particular act.” As a result, we must determine whether the evidence showed factually separate incidents or whether the evidence showed a short, continuous, single incident comprised of several acts individually sufficient for conviction.
Although the time frame in the present case appears to have been a little longer than in Staggs, this court believes that the acts outside the laundromat and near Banks’ house were not factually separate. L.H.’s house was about 2 blocks away from the laundromat and Banks’ house was located somewhere in between. Given that the second encounter took place as they walked from the laundromat toward L.H.’s house, it does not seem that much time had elapsed between the first and second touchings. Because the touching outside the laundromat and the touching near Banks’ house occurred in relative proximity to one another, the acts were not separate incidents. Rather, they were a continuing course of conduct — a single unbroken chain of events.
In further support of this continuing course of conduct determination, we note that Banks used the girls’ attraction to the dog outside the laundromat and his promise to look after the dog to entice the girls. Banks’ use of the dog started outside the laundromat and continued until the girls stopped to say goodbye to the dog near Banks’ home. Banks’ use of the dog in this manner showed a single, continuous incident over a short period of time.
Finally, although we are aware of several cases holding to tire contrary, we believe these cases are distinguishable from the present case. For example, in three cases the factual circumstances of the crime do not involve a single, continuous incident over a short period of time. See State v. Wellborn, 27 Kan. App. 2d 393, 394, 4 P.3d 1178, rev. denied 269 Kan. 940 (2000) (the crimes were alleged to have occurred between May and July 1995; January and June 1996; and April 1997); Crutcher v. State, 27 Kan. App. 2d 674, 675-76, 8 P.3d 1, rev. denied 268 Kan. 885 (1999) (the crimes were alleged to have occurred between January 1, 1992, and November 1, 1992); State v. Barber, 26 Kan. App. 2d 330, 331, 988 P.2d 250 (1999) (the defendant possessed a gun during a disturbance, left the area, threw the gun away, got another gun, and later returned).
Furthermore, in State v. Kinmon, 26 Kan. App. 2d 677, 678-79, 995 P.2d 876 (1999), the defendant was convicted of possession of cocaine and possession of drug paraphernalia. This court reasoned that the drug paraphernalia charge could relate to the cocaine found in either a cigarette case or a key holder. As a result, the jury could have convicted defendant for possession of either item. This court determined that the trial court erred in failing to give a multiple acts instruction. The Kinmon case is distinguishable from the current case because the alleged possession of the cigarette case and the key holder involved factually separate incidents.
The key holder was discovered under a couch in the house. The defendant presented evidence that the key holder belonged to another defendant. In addition, Kinmon testified that the cigarette case belonged to a woman who was in the residence. He testified that he took the cigarette case out of the woman’s coat pocket to get a cigarette just before the police arrived. Clearly, in voting to convict Kinmon, the jurors could have relied on different acts.
In addition, Kinmon is distinct from the present case because Kinmon presented legally separate defenses concerning the key holder and the cigarette case. As stated earlier, Kinmon maintained the key holder belonged to another defendant. As to the cigarette case, Kinmon contended that he was an innocent possessor of the case. On the other hand, in the present case, Banks simply maintained that he did not molest either girl. As a result, Banks did not present legally separate defenses.
Unlike Kinmon, the testimony of both T.N. and L.H. was consistent about Banks’ touching T.N. outside the laundromat and touching L.H. near Banks’ house. The main inconsistency between T.N.’s and L.H.’s testimony involved the number of times each girl alleged she was molested. .
T.N. testified that they were each molested twice, and L.H. testified that they were each molested once. This inconsistency is not important because of the factual circumstances surrounding Banks’ crimes. Because Banks was involved in a short, continuous, single incident comprising one or more acts of molestation against each girl, jury unanimity requires only that the jury agree to an act of the crime charged, not which particular act. Here, the compatible evidence showed that each girl had been molested at least once. As a result, because the evidence showed that no real possibility existed for juror confusion, Banks was not deprived of a unanimous verdict.
Banks’ second argument on appeal is that the trial court erred in admitting the testimony of Pat Peters and John Theis concerning their diagnoses of the two girls. Banks claims the social workers were unqualified to diagnose the girls and that their testimony only served to pass upon the credibility of the witnesses. Defendant did not object to this testimony at trial.
As the State correctly notes, Banks’ failure to object at trial precludes this court’s consideration of the issue. State v. Cheeks, 258 Kan. 581, 593, 908 P.2d 175 (1995). However, it should be noted that both Peters and Theis are licensed clinical social workers with master’s degrees in social work. They regularly conduct sexual abuse evaluations. They were clearly qualified as expert witnesses in this case. Peters’ and Theis’ evaluations and the findings resulting from those evaluations were relevant evidence because the victims’ behavior following the reported assaults is relevant corroborating evidence of the assaults. State v. Reser, 244 Kan. 306, 310, 767 P.2d 1277 (1989). The trial court did not abuse its discretion in admitting their testimony.
Banks’ third contention is that the trial court erred in admitting testimony of prior consistent statements made by T.N. and L.H. Banks did not object to this testimony at trial. Banks wrongly states that this testimony was the only evidence offered by the State and that Banks was convicted on the basis of prior statements of the victims to family members, police, and social workers. This contention ignores the important fact that both victims testified at length about what happened. This testimony was admissible under K.S.A. 1999 Supp. 60-460(a).
Banks’ fourth point is that the trial court erred in failing to instruct the jury on the lesser included offenses of battery and attempted aggravated indecent liberties with a child. At the trial, defendant requested, but was denied, a jury instruction on the lesser offense of battery. Whether a crime is a lesser included offense is a question of law giving this court unlimited review. State v. Scott, 28 Kan. App. 2d 418, 17 P.3d 966 (2001). In Scott, the court held that the giving or failure to give 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 error had not occurred and that an instruction on a lesser included offense is not proper if a jury could not reasonably have convicted of the lesser offense on the evidence presented.
Battery is defined in K.S.A. 21-3412(a) as “[ijntentionally or recklessly causing bodily harm to another person” or (b) “intentionally causing physical contact with another person when done in a rude, insulting or angry manner.” In its instructions, the trial court gave the following definition of lewd fondling or touching as provided in PIK Crim. 3d 53.00:
“[L]ewd fondling or touching may be defined as a fondling or touching in a manner which tends to undermine the morals of the child, which is so clearly offensive as to outrage the moral senses of a reasonable person, and which is done with the specific intent to arouse or satisfy the sexual desires of either the child or tire offender or both.”
Clearly, the word “lewd” is not equivalent to “rude or insulting” as Banks contends. The evidence required to prove aggravated in decent liberties with a child would not prove this form of battery. Hence, battery is not a lesser included offense, and the court did not err in failing to give such an instruction.
As to the failure of the court to instruct on the offense of attempted aggravated indecent liberties with a child, it is important to note that Banks did not request such an instruction. The law is clear that in the absence of an objection, a party cannot complain of the failure to give an instruction unless that failure is clearly erroneous. Both of the girls testified that Banks actually did touch them in a lewd manner. Banks did not claim he only attempted to touch the girls in a lewd manner. We hold that the trial court did not commit error on this issue because the evidence did not support a mere attempt.
Banks’ last claim of error is that the State committed prosecutorial misconduct in its closing argument rendering this trial fundamentally unfair. Banks admits that he failed to object to statements made by the prosecutor in closing argument. We have considered the record and find there were no prosecutorial statements so gross and flagrant as to prejudice the jury against the defendant; even if there were, the evidence against the defendant was so overwhelming the prosecutor’s remarks would not have changed the result of the trial. When viewed in their entirety, the prosecutor’s statements made during the trial and during closing argument did not prejudice Banks and were at the most harmless error.
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Marquardt, J.:
Richard Arlen Miller appeals the trial court’s denial of his K.S.A. 60-1507 motions requesting sanctions and removal of an arrest charge from his record, and he objects to the assistant district attorney’s drafting of the order denying his motions.
Miller was charged with aggravated burglary with the intent to commit a theft occurring on December 28,1992. In the alternative, he was charged with aggravated burglary with intent to commit rape. At the preliminary hearing, B.E.A. testified that while she was home alone one evening, she heard glass breaking in her base ment. B.E.A. opened the basement door and saw a shadow. She heard footsteps and boxes being moved. A person’s hand grabbed at the stair railing at the bottom of the stairs. B.E.A. locked the basement door, called 911, and went to a neighbor’s house.
The police found Miller about a block away from B.E.A.’s residence with a large laceration to his lower right leg, blood on his sock and shoe, and glass fragments on his jacket. Blood samples taken from B.E.A.’s basement floor and the sidewalk at the back of B.E.A.’s residence matched the blood on Miller’s sock and shoe.
After waiving his Miranda rights, Miller said that he cut his leg when he tripped over a barbed wire fence after leaving a bar. About 1 month later, Miller again waived his Miranda rights and advised the police that after drinking for a lengthy period, he decided to visit a friend who lived in the other half of B.E.A.’s duplex. Walker stated that he slipped on some ice as he walked up to his friend’s back door and cut his leg when it went through the window.
Miller was bound over on the charge of aggravated burglary with intent to commit theft. The trial court dismissed the charge of aggravated burglary with intent to commit rape. Miller asked the trial court to strike the words “intent to commit a rape” from the complaint. The State advised the trial court that it could delete that reference by interlineation. The trial court decided that interlineation was not required because the journal entry of the preliminary hearing would suffice, and the jury would not see the complaint. Miller did not object to this decision.
Subsequently, Miller entered an Alford plea as to the charge of aggravated burglary with intent to commit theft. As part of the plea agreement, the State recommended a 4-to 10-year prison sentence and agreed not to seek imposition of the Habitual Criminal Act, K.S.A. 21-4504. During allocution, Miller admitted that he was under the influence of alcohol on the evening of the offense. He said that he could remember going to see a friend at the residence next door to B.E.A. and being in a basement. Miller denied any intent to commit a theft or felony. The trial court accepted Miller’s plea and found him guilty. Miller was sentenced to imprisonment for a term of 4 to 10 years. Miller did not file a direct appeal of his criminal conviction.
In 1993, Miller filed two motions requesting that the trial court set aside his plea, alleging ineffective assistance of counsel. A hearing was held, and Miller appeared with his new counsel and withdrew the motions. In 1997, Miller filed a motion for conversion of his sentence, which was denied.
In 1998, Miller filed a 1507 motion to withdraw his plea, alleging malicious or discriminatory prosecution and manifest injustice. He also filed an amended motion to impose sanctions and remove the erroneous charge because of malicious prosecution and manifest injustice. In both motions, Miller requested an evidentiary hearing, sanctions against the prosecution, and “[removal of] the alleged charge of aggravated burglary with the intent to commit a rape from all documents that contain this erroneous information.” On October 6, 1998, Miller also requested appointment of counsel.
The trial court did not hold a hearing on these motions or appoint counsel. The trial court denied Miller’s motions, stating that Miller had not presented any substantial issues of law or triable issues of fact. It found that the motions were successive because Miller had previously filed a motion to withdraw his plea, which he withdrew. The record on appeal clearly shows that the trial court had a factual basis for accepting Miller’s plea after hearing facts presented by the State which Miller agreed were “pretty accurate.” The trial court stated that Miller was receiving a significant benefit in accepting the plea agreement by avoiding imposition of the Habitual Criminal Act. The trial court also found Miller’s allegations conclusory and meritless. The order on these motions was prepared and submitted by the assistant district attorney. Miller timely appeals.
Drafting of the Order by the Assistant District Attorney
Miller contends that under State v. Nunn, 247 Kan. 576, 802 P.2d 547 (1990), he was entitled to counsel and to be represented at a hearing. The factual similarity between Nunn and the instant case is that the district attorney drafted the order in both cases. In Nunn, the district attorney was present at a hearing and the defendant was not. In the instant case, there was no hearing. Nunn does not apply.
Miller argues that the trial court violated his due process rights and Supreme Court Rule 183(j) (1999 Kan. Ct. R. Annot. 197) by having the assistant district attorney prepare the order denying his motions. The order does not reflect that a hearing was held, and we do not believe that ordering the State’s attorney to prepare the journal entry of judgment in a 60-1507 proceeding constitutes a hearing. The trial judge’s signature on the order signifies that the findings and conclusions are those of the trial judge, not the assistant district attorney. However, in a proceeding under K.S.A. 60-1507, where the district judge decides not to grant a hearing and directs the State’s attorney to draft the journal entry of judgment, the State’s attorney is required to follow Supreme Court Rule 170 (1999 Kan. Ct. R. Annot. 191). If the movant is not represented by counsel, the State’s attorney shall serve the movant with a copy of the draft of the journal entry. If having the assistant district attorney draft the order was error here, it was harmless for all the reasons cited below.
Malicious or Discriminatory Prosecution
Miller claims that he filed his motions under K.S.A. 60-1507. However, he admits that the amended motion does not contest his plea or challenge his sentence. He also admits that a motion pursuant to K.S.A. 60-1507 is not the proper proceeding for seeking sanctions for malicious or discriminatory prosecution. Nevertheless, he argues that the trial court erred by not removing all references to the charge for burglary with intent to commit rape from his record. One of his alleged reasons for removal of the charge is that it could be used against him if he is later prosecuted under the Sexually Violent Predator Act, K.S.A. 59-29a01 et seq.
The State responds that dismissal of the charge of aggravated burglary with intent to commit rape does not prove malicious prosecution. We agree. If Miller wanted to file a malicious prosecution action, the time for such a filing was 1 year from the date of the dismissal. See K.S.A. 60-514(b). The State also contends that Miller’s argument about the possibility of a subsequent proceeding under the Sexually Violent Predator Act was not raised to the trial court and should not be considered on appeal because considera tion of the issue would result in an advisory opinion. Miller s claim of malicious prosecution has no merit.
Removal of Arrest Charge from Miller’s Record
K.S.A. 60-1507 provides a civil action to challenge the validity of a sentence. It must be separately docketed and is exclusively for motions “to vacate, set aside or correct sentences.” Supreme Court Rule 183(b) (1999 Kan. Ct. R. Annot. 197). Clearly, none of the relief requested in Miller’s motions could be classified as vacating, setting aside, or correcting his sentence. Therefore, the issues are not properly brought under K.S.A. 60-1507.
Regardless of whether Miller’s motions are considered as post-conviction proceedings in the criminal case or as civil proceeding pursuant to K.S.A. 60-1507, the appellate standard of review is the same where the trial court has made findings of fact and conclusions of law. First, we must determine whether the trial court’s findings of facts are supported by substantial competent evidence. Second, we must determine whether the factual findings are sufficient to support the trial court’s conclusions of law. This is a question of law and our review is unlimited. State v. Ratley, 253 Kan. 394, 398, 855 P.2d 943 (1993); Taylor v. State, 252 Kan. 98, 103, 843 P.2d 682 (1992).
The real issue here is whether the trial court correctly concluded that both motions were successive and not entitled to consideration again. We conclude that the trial court reached the correct decision that the motions were not entitled to consideration, but for the wrong reason. Because Miller’s amended motion eliminated the language about withdrawing his plea, and neither motion requested the withdrawal of his plea to aggravated burglary with intent to commit a theft, Miller’s amended motion was not a successive motion. It is curious that neither the trial court’s ruling, nor the parties’ arguments, address any statutory authority for the relief Miller sought, which was the deletion of the charge for aggravated burglary with intent to commit rape from his arrest record.
The legislature enacted K.S.A. 1999 Supp. 22-2410, which provides for expungement of arrest records, effective July 1,1998. The statute mandates that notice be given to the prosecuting attorney and the arresting law enforcement agency and that a hearing be held. Miller s motions were filed several months after the effective date of the expungement statute.
Miller did not cite K.S.A. 1999 Supp. 22-2410(b); however, it was clear he was alleging that no probable cause existed for the charge of aggravated burglary with intent to commit rape and that it should be deleted from his records. Expungement of the arrest record for aggravated burglary with the intent to commit rape should be pursued under K.S.A. 1999 Supp. 22-2410 and not under K.S.A. 60-1507.
A motion filed under K.S.A. 60-1507 does not entitle Miller to any of the relief requested in his motions. According to the record on appeal, the charge of aggravated burglary with intent to commit rape was dismissed in March 1993. Miller s motion to expunge his arrest record should have been brought under K.S.A. 1999 Supp. 22-2410.
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BEIER, J.:
Defendant-appellant Biomat, Inc. (Biomat), seeks review of the district court’s partial denial of its motion to compel arbitration in this dispute over its Stock Redemption Agreement (Agreement) with plaintiffs-appellees Blaine and Margaret Sampson. We reverse, because we conclude that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (1994), applies to the Sampsons’ claim that Biomat fraudulently induced them to enter into the Agreement.
Blaine Sampson worked for Biomat as its chief financial officer, and the Sampsons purchased 350,000 shares of Biomat stock. Biomat also issued stock to citizens of other states. The record demonstrates that Biomat sold its products — biodegradable seed mats for grass, flowers, and herbs — throughout the nation.
After Blaine Sampson resigned from his Biomat position, the Sampsons entered into a contract with Biomat in which Biomat agreed to repurchase the Sampsons’ stock. After several months, Biomat informed the Sampsons that it would be unable to perform by the redemption deadline. Several months after the deadline had passed, the parties entered into a second contract, the Agreement at issue in this case. In the Agreement, Biomat again promised to redeem all of the Sampsons’ stock.
The Agreement provided in pertinent part:
“Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. . . . Any such controversy or claim shall be submitted to and resolved by one arbitrator selected by the American Arbitration Association, and the venue for such arbitration shall be Prairie Village, Kansas.”
Because Biomat again failed to redeem any of the Sampsons’ stock, the Sampsons filed this action. They sought damages for breach of the Agreement in Count III and asserted fraud in the inducement of the Agreement in Count IX. In support of federal securities claims not at issue on this appeal, the Sampsons also contended that shares of Biomat’s stock were offered and sold “by the use of instrumentalities of interstate commerce or of the mails.” The Sampsons’ pleadings further reflected that they were residents of Kansas and that Biomat was a Delaware corporation with its principal place of business in Kansas.
Based on the arbitration clause, Biomat moved to compel arbitration of the Sampsons’ claims arising from or relating to the Agreement, or, in the alternative, to dismiss Counts III and IX.
After hearings, the district court dismissed Count III alleging breach of contract, but it denied Biomat’s alternative motions with respect to Count IX, the fraud-in-the-inducement claim. The court stated:
“[T]he Court finds no statute that compels plaintiffs’ arbitration of Count IX of the amended petition. The arbitration clause ... is thus ineffective to compel plaintiffs to arbitrate Count IX. The Court concludes that the subject of the Stock Redemption Agreement — the redemption of stock issued only to Blaine and Margaret Sampson — is purely a local issue. As such, the agreement does not ’involve commerce’ and falls outside of the U.S. Congress’ commerce clause power. As a result, the Federal Arbitration Act cannot compel the plaintiffs’ arbitration of Count IX.
“Neither does the Kansas act compel arbitration of Count IX. . . . the Court finds that Count IX states a claim sounding in tort. The Kansas Uniform Arbitration Act expressly exempts tort claims from its scope.
“Because no statute compels arbitration of Count IX, plaintiffs may revoke the arbitration clause with respect to that count at their sole election. Plaintiffs have elected to revoke that clause by their filing of Count IX. This Court thus reserves subject matter jurisdiction . . . with respect to Count IX.”
The first issue we must resolve on this appeal is whether the Federal Arbitration Act (Act) preempts application of state law.
“The Federal Arbitration Act . . . preempts conflicting state laws which exempt enforcement of arbitration agreements involving interstate commerce.” Skewes v. Shearson Lehman Bros., 250 Kan. 574, Syl. ¶ 1, 829 P.2d 874 (1992). It applies in state courts as well as federal, and “requires state courts to enforce an applicable arbitration clause despite contrary state law or policy.” R.J. Palmer Constr. Co. v. Wichita Band Instrument Co., 7 Kan. App. 2d 363, 365, 642 P.2d 127 (1982) (citing Allison v. Medicab Int’l., 92 Wash. 2d 199, 597 P.2d 380 [1979]). “ Tn creating a substantive rule applicable in state as well as federal courts, Congress intended to foreclose state legislative attempts to undercut the enforceability of arbitration agreements.’ ” Skewes, 250 Kan. at 579 (quoting Southland Corp. v. Keating, 465 U.S. 1, 16, 79 L. Ed. 2d 1, 104 S. Ct. 852 [1984]).
Section 2 of the Act provides:
“A written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2 (1994).
The district court found the subject matter of the Agreement was “purely a local issue” rather than evidence of a transaction involving commerce. Biomat argues the district court erred in reaching this conclusion.
The issue of whether the transaction evidenced by the Agreement involved commerce under the Act is a question governed by federal substantive law. R.J. Palmer Constr. Co., 7 Kan. App. 2d at 365. Our review of a district court’s conclusions of law is unlimi ted. Lindsey v. Miami County National Bank, 267 Kan. 685, 689-90, 984 P.2d 719 (1999).
The Sampsons argue the proper test for determining whether a contract evidences a transaction involving commerce is whether the parties “contemplated substantial interstate activity” under Metro Industrial Painting Corp. v. Terminal Const. Co., 287 F.2d 382, 387 (2d Cir.), cert. denied 368 U.S. 817 (1961), a case favorably cited by this court in R.J. Palmer Constr. Co., 7 Kan. App. 2d at 367. The Sampsons are a bit behind the times.
The United States Supreme Court specifically considered and rejected the “contemplation of the parties” test in Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 277-78, 130 L. Ed. 2d 753, 115 S. Ct. 834 (1995). The proper test is instead whether the transaction in fact involved interstate commerce. (Emphasis added.) 513 U.S. at 281; see also Baer v. Terminix Intern. Co., LTD. Partnership, 975 F. Supp. 1272, 1277-78 (D. Kan. 1997) (plaintiffs assertion that he had no idea transaction involved commerce unsupported and possibly sanctionable in light of Allied-Bruce ruling). This broad interpretation “ ‘embodies Congress’ intent to provide for the enforcement of arbitration agreements within the full reach of the Commerce Clause.’ ” Allied-Bruce, 513 U.S. at 274 (quoting Perry v. Thomas, 482 U.S. 483, 490, 96 L. Ed. 2d 426, 107 S. Ct. 2520 [1987]). “[T]he Act’s ‘control over interstate commerce reaches not only the actual physical interstate shipment of goods but also contracts relating to interstate commerce.’ ” 513 U.S. at 274 (quoting H.R. Rep. No. 96, 68th Cong., 1st Sess., 1 [1924]).
Biomat first argues that the subject of the agreement directly affected interstate commerce because it was made between a corporation incorporated in Delaware and citizens of Kansas. In Sigco Sunplant, Inc. v. Harrison, No. 89-2229-0, 1989 WL 134462 (D. Kan. Oct. 18, 1989), a North Dakota corporation brought suit against a Kansas resident, alleging breach of contract, and the defendant filed a motion to dismiss. Judge Earl E. O’Connor indicated in a footnote that the parties’ diversity of citizenship was among the factors weighing in favor of application of the Act. Sigco Sunplant does not, however, stand for the proposition that diversity alone is enough to bring the Act into play, and we are not willing to do so either.
The question thus becomes whether relevant factors in addition to the parties’ diversity of citizenship are present here. Our review of the record in light of the analogous precedents persuades us they are.
In Prima Paint v. Flood & Conklin, 388 U.S. 395, 18 L. Ed. 2d 1270, 87 S. Ct. 1801 (1967), Prima Paint, a Maiyland corporation, acquired a New Jersey paint business with clients in several states and secured F&C’s assistance as consultants in arranging the transfer of manufacturing and selling operations from New Jersey to Maryland. The Court found that, because the consulting agreement between Prima Paint and F&C was inextricably tied to the interstate transfer and operations of the paint business, the consulting agreement was a contract evidencing a transaction in interstate commerce under the Act. 388 U.S. at 401.
In Allied-Bruce, an Alabama homeowner hired a local franchise of Terminix International Company, Allied-Bruce, to inspect his home for termites before selling it, and Terminix incorrectly reported that there was no termite problem. The new homeowners immediately brought suit against the homeowner, Allied-Bruce, and Terminix; Terminix argued the claims should be arbitrated pursuant to a clause in the written contract. The Supreme Court of Alabama found the arbitration clause was inapplicable under state law. On appeal, the United States Supreme Court found the transaction involved interstate commerce because of the multistate nature of Terminix coupled with Allied-Bruce’s procurement of treatment materials outside Alabama. 513 U.S. at 282.
Similarly, in Baer, 975 F. Supp. 1272, a Kansas homeowner hired a local branch of Terminix International Company to treat his home for termites, and Baer later claimed that Terminix was responsible for termite damage to his home after several re-treatments. Despite engaging in arbitration pursuant to the written agreement, Baer filed a petition in state court, seeking damages for breach of contract, negligence, and gross negligence. The case was removed to federal court.
On appeal, Baer argued that the Act did not apply to his case because there had been no showing that the transaction involved interstate commerce. Baer dealt with a local contractor to make limited repairs; the representatives of Terminix were local residents; and he said he had no idea he was engaging in interstate commerce by hiring the local personnel.
The court emphatically rejected Baer s arguments:
“Baer s reliance on these facts is misplaced, for they do not remove this transaction from the realm of interstate commerce. [Citation omitted.] Interstate commerce is involved so long as some part of the transaction has a nexus to it. Rather than limiting consideration to the plaintiff s duties and expectations under the contract, the courts have generally ‘focused on the nature of the defendant’s business.’ Nicholson v. Labor Ready, Inc., No. 97-0518-FMS, 1997 WL 294393, at °3 (N.D. Cal. May 28, 1997). The interstate character of Terminix here is enough to satisfy the interstate commerce element of the [Act], [Citations omitted.]” 975 F. Supp. at 1278.
Because Terminix operated in 48 states and used chemicals manufactured and stored in other states, its dispute with Baer was covered by the Act. 975 F. Supp. at 1278.
In this case, the Sampsons themselves alleged that the “shares of the Corporations’ stock were offered and sold to Plaintiffs by the use of means or instrumentalities of interstate commerce.” Biomat issued shares of its stock to citizens of various states, and Biomat sells its product throughout the country. Indeed, Biomat would have had to use revenues from its nationwide sales to redeem the Sampsons’ stock. Thus, the plan to redeem the stock as memorialized in the Agreement actually involved commerce, and the parties’ resulting dispute must be arbitrated under the Act.
With regard to the district court’s conclusion that Count IX alleging fraud in the inducement of the Agreement sounded in tort rather than contract, we are doubtful. The Sampsons’ desire to avoid compulsory arbitration under the Agreement is plain, see Beeson v. Erickson, 22 Kan. App. 2d 452, 455-56, 917 P.2d 901, rev. denied 260 Kan. 991 (1996) (one cannot change nature of action merely by naming it something that sounds like a tort; effort to avoid mandatory arbitration thwarted); and they seek basically the same remedies under both Count III and Count IX, see Heller v. Martin, 14 Kan. App. 2d 48, 782 P.2d 1241 (1989) (breach of contract action cannot be turned into action for fraud merely by alleging reliance on representation that contract would be performed; independent fraud must cause damages beyond those caused by breach). But we need not resolve this question because, even if the fraud-in-the-inducement claim alleges tortious conduct, the federal Act, unlike its Kansas counterpart, the Kansas Uniform Arbitration Act, K.S.A. 5-401 et seq., contains no exceptions for tort claims.
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PlERRON, J.:
Jason A. Fulton appeals his convictions for aggravated burglary; conspiracy to commit aggravated burglary; aggravated battery; aggravated kidnapping; possession of opiate, opium, or narcotic drugs with intent to sell; failure to pay drug tax; and three counts of aggravated robbery.
Maurice Jones testified that Steven Hunter and Fulton forced their way into his house claiming Maurice owed them money for drugs he had stolen. Maurice gave them his rings, chains, and bracelet, but they demanded more. Maurice drove a Geo Prism to his parents’ house where he got $2100 from under a mattress. Hunter kept him at gunpoint for the entire trip. Maurice and Hunter returned to Maurice’s house where Fulton indicated he knew that Maurice was worth more money.
Fulton cut the side of Maurice’s face with a steak knife. When Maurice said he did not have any more money, Fulton began cutting Maurice’s chest. Maurice said he could get more valuables from his parents’ house. Maurice drove to his parents’ house, again at gunpoint, and retrieved a 9 mm handgun and gave it to Fulton. They returned to Maurice’s house. Still demanding $7000, Maurice called his father, Odell Jones, and told him he needed $7000.
The group left Maurice’s house and checked into the Country Club Motel. Maurice testified his wrists were bound together with duct tape. In the motel room, Fulton repeated the demand for $7000 and Maurice again called his father who said he would have the money at his office. Later, the group left the County Club Motel and checked into the Days Inn Motel. Maurice testified he was forced to smoke marijuana and drink alcohol. After several hours, the group loaded into the Geo Prism again and Maurice was bound with duct tape. Fulton purchased additional duct tape and taped Maurice’s wrists, ankles, mouth, and eyes. Maurice testified that after he was driven around for awhile, he was taken from the Geo Prism and placed into the trunk of another car. This car was parked in front of Fulton’s mother’s house. Maurice was freed when she heard pounding coming from the trunk and called the police. Later in the day, the police apprehended Fulton at the Days Inn Motel.
Odell testified about the two times Maurice came to his house on the evening of the incident and the phone calls requesting $7000. Odell stated he eventually went to the police station to report that Maurice had been kidnapped and was being held for $7000 ransom.
Fulton testified there was no kidnapping. Fulton claimed that Maurice, Hunter, Maleek Hughes, and he had conspired to extort money from Odell Jones. Fulton presented testimony from Rahmann Saleem who stated that the four men were at Hunter’s sister’s house the night before the alleged incident and were getting along and having fun together. As a rebuttal witness for the State, Hughes testified he did not participate in a kidnapping hoax involving Maurice, and he denied owning the Geo Prism in which the drugs were ultimately found.
A jury convicted Fulton on all counts. The trial court sentenced Fulton to 356 months’ for aggravated kidnapping and then ordered consecutive sentences for the remaining charges. Fulton’s sen tences were ordered to run consecutive to his sentence in an unrelated conviction for felony murder.
First, Fulton argues the State improperly commented on his silence. At the trial, during cross-examination, the State asked Fulton the following:
“Q. [BY MR. RUES] Well, you thought it was serious when law enforcement were talking to you, didn’t you?
MR. ROSEL (DEFENSE COUNSEL): Judge, I’m not sure this has any relevance.
THE COURT: Overruled. I think it’s proper cross. Overruled.
Q. (BY MR. RUES) You thought it was a very serious allegation against you when die police were talking to you on the 9th or the 14th. Correct?
A. Breaking the laws in general is serious, isn’t it?
Q. Yes, but I’m asking about this particular event, Mr. Fulton.
A. Yes, Sir.
Q. It was serious that you would consider it. “Yes” or “no.”
A. It was serious.
Q. But it wasn’t serious enough for you to explain to law enforcement right then and there that this was a hoax?
MR. ROSEL: Judge, I will object. He has indicated diat he contacted his attorney.
THE COURT: Well, that’s not the same. Overruled.
MR. ROSEL: And that his attorney advised him —
THE COURT: That’s not the same. Overruled.
Q. (BY MR. RUES:) Do you want me to ask the question again?
A. Yes, sir.
Q. Well, if you diought this was very serious, why didn’t you think it serious enough to explain to everyone, including law enforcement, that this was made up, this kidnapping?
A. ’Cause they stated I was charged already with these crimes.
Q. But, even if you were charged, wouldn’t you want to explain diat it was a hoax or a story?
A. Wasn’t nobody going to help me but my lawyer.”
Fulton argues the State violated his constitutional rights by improperly introducing evidence of his post-arrest silence for purposes of impeachment.
It is unconstitutional for the State to elicit evidence at trial of a defendant’s post-Miranda silence. Doyle v. Ohio, 426 U .S. 610, 618, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976). In Doyle, two defendants were arrested and given Miranda warnings. They remained silent at this time. However, at trial, the defendants made a viable argument that they had been framed. In order to impeach their testimony, the State cross-examined them about their failure to tell the frame-up story when they were first arrested. The Supreme Court held that the use of the defendants’ post-arrest, post-Miranda silence in this manner violated due process:
“Despite the importance of cross-examination, we have concluded that the Miranda decision compels rejection of the State’s position. The warnings mandated by that case, as a prophylactic means of safeguarding Fifth Amendment rights, see Michigan v. Tucker, 417 U.S. 433, 443-444 [41 L. Ed. 2d 182, 94 S. Ct. 2357] (1974), require that a person taken into custody be advised immediately tlrat he has the right to remain silent, diat anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nodiing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. See United States v. Hale, [422 U.S. 171, 177, 45 L. Ed. 2d 99, 95 S. Ct. 2133 (1975)]. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” 426 U.S. at 617-18.
“A Doyle violation occurs when a defendant’s post-arrest silence is used to impeach the defendant when an exculpatory explanation is subsequently offered at trial.” State v. Searles, 246 Kan. 567, 572-73, 793 P.2d 724 (1990). In State v. Edwards, 264 Kan. 177, 195, 955 P.2d 1276 (1998), the Kansas Supreme Court stated:
“A Doyle violation occurs when the State attempts to impeach a defendant’s credibility at trial by arguing or by introducing evidence that the defendant did not avail himself or herself of the first opportunity to clear his or her name when confronted by police officers but instead invoked his or her constitutional right to remain silent.”
The State argues Doyle is not applicable since Fulton has failed to demonstrate he ever received a Miranda warning. The State cites State v. Gadelkarim, 256 Kan. 671, 685, 887 P.2d 88 (1994), where the court indicated it was impermissible to question or comment on a defendant’s silence “at the time of arrest and after the accused has received the Miranda warnings.” (Emphasis added.) The State contends Fulton’s factual assertions that he had been advised of his constitutional rights at the relevant time period are without keyed citation to the appellate record and unsupported by the evidence.
The State argues Fulton cannot invite error and then complain about it on appeal since Fulton testified on direct examination that he refused to make any statements to law enforcement at the time of his arrest. See State v. Saleem, 267 Kan. 100, 109, 977 P.2d 921 (1999) (a litigant may not invite and lead a trial court into error and then complain of the trial court’s action on appeal).
The State’s questioning of Fulton as to why he did not profess the innocence of the scheme at the time of his arrest clearly violated his right to remain silent. Similar to the facts in Doyle, the intentions of the State were clearly to impeach Fulton’s credibility by cross-examining him on why he did not reveal this alternative motive/scheme when he was first arrested. The trial court should have sustained defense counsel’s objection and admonished the prosecution to steer clear of that type of questioning.
We must therefore consider whether the State’s misconduct was so prejudicial as to require a new trial. The appropriate standard of review for this issue is stated in Gadelkarim, 256 Kan. at 685:
“Claims that there has been an impermissible comment or question about a defendant’s post-Miranda silence are measured by the harmless error standard. Only error which fails to meet the federal standard of harmless error, defined as belief beyond a reasonable doubt that the error did not contribute to the verdict, requires reversal. To facilitate the determination of whether a prosecutor’s comments are harmless error, Kansas appellate courts consider the nature and extent of the comment in comparison with the strength of the evidence of the defendant’s guilt, and .further consider whether the language used was manifestly intended to be, or was of such character that the jury would naturally and necessarily take it to be, a comment on the failure of the defendant to testify. [Citation omitted.]”
Although we find the State violated Fulton’s constitutional rights, we hold the error to be harmless. First, the comment on Fulton’s silence constituted a little over 2 pages in a 666-page trial transcript. See Brecht v. Abrahamson, 507 U.S. 619, 638-39, 123 L. Ed. 2d 353, 113 S. Ct. 1710, reh. denied 508 U.S. 968 (1993) (improper references to a defendant’s post-Miranda silence were found to be harmless error because, inter alia, the references comprised less than 2 pages of a 900-page transcript and a few minutes in a 4-day trial).
Second, the State’s error was not magnified through other testimony or in other parts of the trial. In State v. Higgins, 243 Kan. 48, 755 P.2d 12 (1988), the court rejected the State’s contention that the error was harmless. Over objection, the prosecutor questioned a police officer in detail about defendant’s refusing to talk to him after arrest, and in closing argument the prosecutor “entertained the jury with an extensive exploration of the motivations for defendant’s silence. The State repeatedly asked, if defendant was innocent why did he not protest his innocence at the time of his arrest?” 243 Kan. at 52. See also State v. Heath, 222 Kan. 50, 53, 563 P.2d 418 (1977). In the current case, the constitutional error was mentioned only once and not repeated, as was the case in Higgins and Heath. We find the error to be an isolated instance.
Third, considering the nature and extent of the comment in comparison with the strength of the State’s case against Fulton, we find the error to be nonprejudicial. While we agree with Fulton that his credibility was a central issue in the case, we find the evidence of his guilt through the testimony of Maurice and Odell Jones to be consistent and corroborated by the rest of the evidence in the case.
Finally, we note that Fulton injected the issue into the trial, albeit briefly, in his own direct testimony.
We find no reversible error.
Next, Fulton argues the trial court erred by failing to give the jury a unanimity instruction requiring agreement on which act constituted the crime of aggravated battery. Fulton contends the jury could have relied on four different acts to support the aggravated battery conviction: (1) when Fulton struck Maurice on the head with the gun; (2) when Fulton struck Maurice on the ear with the gun; (3) when Fulton cut Maurice on the face with a knife; and (4) when Fulton cut Maurice on the chest with a knife.
The court in State v. Timley, 255 Kan. 286, 289-90, 875 P.2d 242 (1994), explained the concept of a multiple acts case where several acts are alleged and any one of them could constitute the crime charged. If a multiple acts situation arises, the jury must be unanimous as to which act or incident constituted the crime. To ensure jury unanimity, courts require that either the State elect the particular criminal act upon which it will rely for conviction, or the trial court should give the jury a unanimity instruction requiring them to agree on the underlying criminal act supporting the charge.
A unanimity instruction was not required in this case, because there were no multiple acts upon which the State attempted to rely for Fulton’s conviction of battery.
The aggravated battery jury instruction gave the injury element as “great bodily harm” or “disfigurement,” but then provided a detailed definition only of “disfigurement” and not of “great bodily harm.” In conjunction with the jury instruction, the State was clear on the testimony it relied upon for the aggravated battery charge. In closing argument, the State made what we regard as the functional equivalent of a formal election among the incidents by focusing only on the cutting or “carving” of Maurice’s face and chest and not the blows with the gun, stating:
“Let me back you up a second. There is one twist on this that comes back. That twist is before they go back to Odell’s residence over on Lincoln - excuse me - Polk, that aggravated battery takes place. That’s the carving. The carving also ties into die aggravated kidnapping. On die aggravated kidnapping, you have the bodily harm. On aggravated battery, you have die disfigurement. You saw the pictures, you saw him pull his jumper down. You decide, based upon those facts, if it fits within those instructions. We submit it does.”
This focus and argument by the State was sufficient to ensure jury unanimity on the cutting versus the blows.
Fulton also argues that the cutting of Maurice’s face was distinct from the cutting of his chest and that he required a unanimity instruction even if only those incidents are considered. The testimony does not support him.
Maurice testified that Fulton told him, “We’re going to make you give us money,” and then Fulton took a knife and cut the side of Maurice’s face. When Maurice replied that he did not have any more money, Fulton used the same knife and cut or “carved” Jones’ chest. This constituted one continuous incident, not two multiple acts. If the cutting on the two parts of Maurice body had been charged separately, one charge would have been subject to dismissal as multiplicitous. See State v. Staggs, 27 Kan. App. 2d 865, 867, 9 P.3d 601 (2000).
Fulton next argues his convictions for aggravated kidnapping and aggravated battery are duplicitous. Fulton argues the crimes are duplicitous because the prosecution is relying on the cutting of Maurice Jones, one act, to convict him of both aggravated battery and aggravated kidnapping.
The established law in Kansas is that a charge of aggravated battery is not multiplicitous with a charge of aggravated kidnapping. In State v. Diaz & Altemay, 232 Kan. 307, 310-11, 654 P.2d 425 (1982), the court held that because the kidnapping charge did not require proof of all the elements of aggravated battery, the crimes could not be multiplicitous. Fulton acknowledges Diaz but argues the law of multiplicity is inapposite to the law on duplicity.
Duplicity is the joining in a single count of a complaint two or more distinct and separate offenses. Duplicitous charging confuses the defendant as to how he or she must prepare a defense and confuses the jury. State v. Anthony, 257 Kan. 1003, Syl. ¶ 9, 898 P.2d 1109 (1995). The problem with duplicity is that jurors are unable to convict of one offense and acquit of another offense when both are contained in the same count. State v. Campbell, 217 Kan. 756, 778, 539 P.2d 329, cert. denied 423 U.S. 1017 (1975).
The defendant mischaracterizes the issue as duplicity. Just as the court properly indicated in State v. Mason, 250 Kan. 393, 399, 827 P.2d 748 (1992), Fulton’s reliance on authority quoted in State v. Lassley, 218 Kan. 758, 761, 545 P.2d 383 (1976), concerns multiplicity, not duplicity:
“ ‘In State v. Lora, 213 Kan. 184, 515 P.2d 1086, we stressed that duplicity [multiplicity] does not depend on whether the facts proved at trial are actually used to support the conviction of both offenses; rather, it turns on whether the necessary elements of proof of the one crime are included in the other.’ 218 Kan. at 761.” 250 Kan. at 399.
Fulton’s charges of aggravated battery and aggravated kidnapping are not duplicitous. His argument is more akin to an issue of multiplicity of which we find no merit.
Fulton also challenges the sufficiency of the evidence supporting his conviction for possession of cocaine with intent to sell. Fulton argues there is not enough evidence to support a charge that he possessed the cocaine found in the Geo Prism outside of his hotel room.
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999).
Officers testified that when they entered the hotel room, there were two double beds. There was a single female in one bed, and Fulton and another female in the other bed. Officer David S. Gifford stated that he did a quick perimeter sweep of Fulton’s bed and picked up a large coat on the side of the bed. When Fulton was being moved into the hallway, he did not have a lot of clothes on. Officer Gifford stated he asked Fulton if he wanted his coat, the large coat Gifford was holding, and Fulton said yes. Inside the pocket of Fulton’s coat were the keys to the Geo Prism parked in front of the hotel room.
When the officers searched the Geo Prism, they discovered a yellow bag on the passenger’s front floor. The yellow bag contained a .45 caliber pistol and a .25 caliber pistol. Inside the yellow bag was also a gray bag which contained 48 individually wrapped baggies of cocaine. Among other things, officers discovered a roll of duct tape on the front floor of the car. Two finger prints were obtained from the duct tape and, after analysis, the fingerprints were matched to Fulton.
Fulton contends the State’s only evidence that he possessed the cocaine was that he had driven the Geo Prism and he argues this limited evidence was insufficient as a matter of law to demonstrate that he possessed the drugs found in the car.
The evidence in support of Fulton’s conviction for possession with intent to sell is circumstantial. That fact alone does not undermine Fulton’s conviction. See State v. Bullocks, 2 Kan. App. 2d 48, 49, 574 P.2d 243, rev. denied 225 Kan. 846 (1978), citing State v. Faulkner, 220 Kan. 153, Syl. ¶ 13, 551 P.2d 1247 (1976) (“Possession and intent, Eke any element of a crime, may be proved by circumstantial evidence.”). Possession need not necessarily be immediate and exclusive but may be constructively estabEshed. State v. Rose, 8 Kan. App. 2d 659, 664, 665 P.2d 1111, rev. denied 234 Kan. 1077 (1983).
As the court stated in Faulkner:
“[W]hen illicit drugs are found in an automobile containing more than one person, the defendant’s mere presence in the vehicle, without more, would not sustain his or her conviction for possession. Other circumstances which have been held sufficiently incriminating to link a defendant with illicit drugs in a vehicle are [the defendant’s] previous participation in the sale of drugs, use of narcotics, proximity to die area where drugs are found, and the fact the drugs were found in plain view. While no one of these circumstances, by itself, may be sufficient to support a conviction, taken togedier they provide a sufficient inference of knowing possession to support a verdict.” 220 Kan. at 160.
Other factors noted in cases involving nonexclusive possession include incriminating statements of the defendant, suspicious behavior, and proximity of the defendant’s possessions to the drugs. Bullocks, 2 Kan. App. 2d at 50.
Construing the facts favorably to the prosecution, we find there was enough circumstantial evidence in this case for the jury to find Fulton guilty beyond a reasonable doubt of possession of cocaine with intent to sell. The evidence indicated that Fulton was in and out of the Geo Prism during the entire criminal incident. Fulton admitted that the keys to the Geo Prism were found in his coat pocket recovered at the hotel room, and he testified that he was the last person to drive the Geo Prism before the arrest.
Fulton argues that since he was the last known driver of the Geo Prism, the drugs found on the passenger side of the car cannot be construed as his. He contends the drugs were clearly in the possession of the front passenger and not him as driver. While Fulton’s argument is more persuasive in a situation where a car is stopped with a number of occupants and drugs are found, the bag carrying the two pistols and 48 individually wrapped baggies of cocaine was found on the passenger floor board in a car where Fulton was the last known driver. The State also argues Fulton’s knowledge of the drugs can be inferred through the testimony that Fulton had previously participated in the sale of drugs. The State supports this inference through Maurice Jones’ testimony that he had purchased Fulton’s drugs at an extremely reduced rate and Fulton was looking to get the full value.
Finally, Fulton argues the trial court denied him his statutory right to allocution at the sentencing hearing.
The standard of review for denial of allocution is harmless error. State v. Jones, 24 Kan. App. 2d 669, 676, 951 P.2d 1302 (1998). “[Ejrrors that do not affirmatively cause prejudice to the substantial rights of the complaining party do not require reversal when substantial justice has been done. [Citation omitted.]” State v. Clark, 263 Kan. 370, 376, 949 P.2d 1099 (1997).
At sentencing, the trial judge stated, “Mr. Rosel, do you have anything that you want to tell me, or does Mr. Fulton have anything that he wants to tell me.” Defense counsel replied, “Judge, I would speak on behalf of Mr. Fulton,” and then defense counsel asked the court to run the sentences concurrently and then concurrent with Fulton’s unrelated conviction for felony murder. The trial court then specifically addressed Fulton, “All right. Now, Mr. Fulton, do you want to address the Court at all?” Fulton replied, “No, sir.”
Fulton argues the trial court inquiry was insufficient to appraise him of his right to allocution. He states the law requires a very specific colloquy between the trial court and the defendant, and that he was deprived of his ability to influence the trial court’s sentencing decision in hopes of mitigating his punishment.
K.S.A. 22-3424(e)(4) requires: “Before imposing sentence the court shall: . . . address the defendant personally and ask the defendant if the defendant wishes to make a statement on the defendant’s own behalf and to present any evidence in mitigation of punishment.”
Fulton cites two cases supporting his position that the right of allocution should be strictly construed. In both State v. Heide, 249 Kan. 723, 822 P.2d 59 (1991), and State v. Spencer, 252 Kan. 186, 843 P.2d 236 (1992), the court remanded for resentencing based on a violation of the defendant’s right of allocution. In Heide, the court asked the defendant “if he had any legal reason why judgment, order, and sentence should not be imposed” 249 Kan. at 726; in Spencer, the court addressed the defendant as follows: “[Bjefore I proceed to sentencing, are there any comments you want to make to the Court?” 252 Kan. at 187. Fulton argues his case is indistinguishable from Heide and Spencer and we should remand for resentencing.
The parties agree that the trial court did not strictly comply with K.S.A. 22-3424(e)(4). The trial court specifically asked Fulton if he wanted to address the court, but the court did not inquire whether Fulton wished to make a statement or present evidence in mitigation of punishment. Although the trial court erred in not following the mandate of the allocution statute, we find the error harmless by a lack of prejudice to Fulton. The court in State v. Borders, 255 Kan. 871, 879 P.2d 620 (1994), stated:
“We believe the requirement of a showing of prejudice to the substantial rights of the defendant is equally applicable to alleged violations of the allocution statute as it is to the many other areas of criminal procedure where prejudice must be shown to justify a reversal. The defendant here has shown absolutely no prejudice, and while failure to comply with a mandatory statute, such as K.S.A. 1992 Supp. 22-3424(4), is error, but not reversible error unless prejudice to die substantial rights of the defendant is shown.” 255 Kan. at 881.
In State v. Hunt, 257 Kan. 388, Syl. ¶¶ 9, 10, 894 P.2d 178 (1995), the court stated:
“K.S.A. 1994 Supp. 22-3424(4) states in pertinent part: “Before imposing sentence the court shall: . . . (d) address the defendant personally and ask the defendant if die defendant wishes to make a statement on die defendant’s own behalf and to present any evidence in mitigation of punishment.” This provision in K.S.A. 22-3424(4) establishes the right of a defendant to allocution, and this right is not waived by the defendant’s silence or by argument of counsel.”
“For a defendant to successfully assert error based upon a denial of die opportunity to present evidence in mitigation of punishment pursuant to the right to allocution in K.S.A. 1994 Supp. 22-3424(4), the defendant must make a proffer of the contemplated evidence comparable to that required by K.S.A. 60-405.”
The only prejudice Fulton claims is that he personally did not have the opportunity to argue that his sentences should run concurrent with each other. Although we recognize that statements of counsel are no substitution for the right of allocution, State v. Webb, 242 Kan. 519, Syl. ¶ 1, 748 P.2d 875 (1988), we realize Fulton has raised no argument, or proffered any contemplated evidence, that was not argued to the trial court by defense counsel. Fulton has not made the requisite proffer of the contemplated evidence, nor does the record show that his substantial rights were prejudiced. We do not find Fulton was prejudiced by the court’s failure to provide allocution. The denial of allocution was harmless error.
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Beier, J.:
Defendant-appellant Emeline Hazley brings this direct appeal after her jury convictions for possession of methamphetamine and marijuana. She argues five issues: (1) The prosecutor improperly questioned a State witness regarding post-Miranda silence; (2) the prosecutor made improper comments during closing argument; (3) the trial court erred by failing to give a unanimity instruction; (4) the trial court erred in failing to give an instruction on nonexclusive possession of premises and the definition of “possession” as used in the charges; and (5) the evidence at trial was insufficient for conviction. We reverse and remand.
Hazley’s convictions were based on evidence seized from her house pursuant to a search warrant. Warren P. Welch, II also was living in the house. At the time the warrant was executed, Hazley, Welch, and four other persons were present. Officers found cigarette papers in a bowl, rolling papers, and methamphetamine in containers in two locations in the living room; several syringes, cigarette filters, a corner from a plastic bag, marijuana, methamphetamine in a man’s shirt, and methamphetamine residue on a mirror in a southeast room; methamphetamine on a hot water heater in a small room off the southeast room; marijuana in a glass bowl, three straws, metal tubing, and hemostats in the kitchen; a spoon with methamphetamine residue in the bathroom; and methamphetamine in the bedroom.
Hazley was charged with possession of methamphetamine, possession of marijuana, and possession of drug paraphernalia. Her defense was that the seized items did not belong to her but to one of the individuals who did not live at the house.
During the State’s case, the prosecutor posed the following series of questions to one of the officers who participated in the execution of the search warrant:
“Q. Now, after the individuals are all restrained, what did you do then?
“A. After all the individuals were restrained?
“Q. Yes.
“A. [The defendant] was given a copy of the search warrant, and they were mirandized, which is tire Miranda rights and waiver to see if — to make them aware of their rights, of what’s going on, that they don’t have to talk. They have the right to an attorney. They have the right to representation. If they can’t afford it, to have it given to them. And at the end of it, we asked if they wanted to talk to us. None of them, wanted to talk to us.
“Q. Was [the defendant] removed from die house at that time or shortly thereafter?
“A. Shortly thereafter.
“Q. Now, did she indicate to you prior to that that she didn’t want to answer any questions P
“A. She indicated that she didn’t want to talk so we didn’t — we didn’t discuss anydiing.
“Q. Didn’t want to talk to you at all?
“A. That’s correct.
“Q. Did [the defendant] . . . tell you she was a diabetic and took shotsP
“A. No, she didn’t. We didn’t, once she refused any questioning, we don’t question her at all.
“Q. Did anybody in the house tell you they were diabetic and used those syringes for shots?
“A. No.” (Emphasis added.)
The defense did not object at the time of trial to the admission of any of this testimony.
Welch was the sole witness for the defense. He testified that the drugs and paraphernalia belonged to one of the other individuals who was present at the house when the warrant was issued. Welch testified this individual was in the house for a couple of hours before the police got there, first sitting in the front room. By the time of the search, this individual had made his way to the kitchen. The State did not introduce any direct evidence that the drugs or paraphernalia belonged to Hazley; rather, it called upon the jury to draw an inference that she possessed the items from the circumstantial evidence that they were found in so many different parts of her home.
During closing argument, the prosecutor referred to Welch’s testimony several times, saying, among other things, that he had no doubt Welch knew of facts contrary to his testimony. He also remarked that people generally lie when it is convenient and called Welch “Sir Galahad,” sarcastically characterizing him as riding to the rescue of the woman he loved. The prosecutor also argued that Welch’s story was suspect because he waited to tell it at trial rather than at the time of the search:
“Now, we have Mr. Welch come in. He hasn’t moved in yet on May 8, but he spent a lot of time there, and he comes in, and he tells you that Mr. Purcell brought all of these drugs in there. Mr. Purcell is the no good low life that brought everything in. Mr. Welch told you from the witness stand, ‘I’ve never said this before, but it was that nasty old Mr. Purcell. I’ve never said this before.’
“This happened on May 8. And I mis-figured these days. There actually should have been 22 days in May he didn’t say anything, or 23, since it’s a 31-day month. I figure it’s 136 days before he has come in and told you that it was Mr. Purcell that brought it in. Actually, that’s wrong. There should be an additional 23 days— should be about 159 days he kept his secrets, then he comes in here to defend the woman he loves.”
Finally, the prosecutor also inaccurately accused the defense attorney of arguing that the testifying police officer had lied. None of these comments by the prosecutor during closing argument drew a defense objection.
The trial court did not instruct the jury on the necessity of unanimity, on the evidentiary weight of nonexclusive possession of premises, or on the definition of “possession” as used in the charges. The defense had not sought a unanimity instruction, but had requested both the nonexclusive possession and the possession instructions.
Hazley was convicted on the two drug possession charges and acquitted on the paraphernalia charge.
Questioning Regarding Post-Miranda Silence
We agree with the defendant that the controlling authority for analysis of comments on post-Miranda silence is Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976). In Doyle, the United States Supreme Court ruled that a defendant’s post-Miranda silence could not be used to impeach the defendant at trial without violating the due process clause. In essence, the Court found that the Miranda warnings imply that an arrestee’s invocation of his or her right to be silent will cany no penalty; “it would be fundamentally unfair ... to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” 426 U.S. at 618.
However, a question or comment challenged under Doyle requires a timely and specific objection to preserve the issue for appeal. State v. Scott, 28 Kan. App. 2d 418, 426, 17 P.3d 966 (2001) (citing State v. Haddock, 257 Kan. 964, 973, 897 P.2d 152 [1995]). Because Hazley’s trial counsel did not object to the officer’s testimony about post -Miranda silence, the issue is not properly before us for review.
Prosecutorial Comments During Closing Argument
According to the Kansas Supreme Court’s recent decision in State v. Pabst, 268 Kan. 501, 504, 996 P.2d 321 (2000), the absence of a contemporaneous objection is not necessarily fatal to a claim of prosecutorial misconduct during closing argument. If the claimed error has been determined to implicate a defendant’s right to a fair trial, our standard of review is the same regardless of whether an objection was made.
Further, the court stated:
“The analysis of the effect of a prosecutor’s alleged improper remarks in closing argument is a two-step process. First, we decide whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. . . . Second, we must decide whether the remarks constitute plain error; that is, whether they are so gross and flagrant as to prejudice the jury against the accused and deny a fair trial, requiring reversal.” 268 Kan. at 505.
The questioned comments of the prosecutor in this case fall into three categories of potential impropriety: comments that the sole defense witness was aware of facts contrary to his testimony and that people he when convenient, i.e., an expression of personal opinion on the witness’ credibility; argument focusing on the post-Miranda silence of the same witness; and a misstatement of defense counsel’s argument.
In Pabst, the Supreme Court found reversible error when, during closing argument, a prosecutor had made 11 references to the defendant lying, and the trial judge had compounded the problem by overruling one of the related objections. 268 Kan. at 505-11. As Justice Six observed for the unanimous court, both the Kansas Rules of Professional Conduct (KRPC) and the American Bar Association Standards of Criminal Justice (3d ed. 1993) clearly state that it is improper for a lawyer to comment on a witness’ credibility, and it is the responsibility of both the prosecutor and the trial judge to ensure that closing argument “is kept within the proper bounds.” 268 Kan. at 506-07. See KRPC 3.4 (2000 Kan. Ct. R. Annot. 389); ABA Standard 3-5.8.
The question of prejudice was discussed in Pabst, 268 Kan. at 508, where Justice Six quoted this court’s decision in State v. Lockhart, 24 Kan. App. 2d 488, 492, 947 P.2d 461 (1997), with approval:
“When determining whether prosecutorial misconduct was prejudicial, factors that should be considered include: (1) Is the misconduct so gross and flagrant as to deny the accused a fair trial? (2) Do the remarks show ill will on the prosecutor’s part? (3) Is tile evidence against the defendant of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors? [Citation omitted.]” ’ ”
Both before and since Pabst, this court has recognized the potential prejudice of a prosecutor’s negative comments on the defendant’s or defense counsel’s credibility. See State v. Magdaleno, 28 Kan. App. 2d 429, 17 P.3d 974 (2001) (comments labeling defense counsel liar); State v. Smith, 28 Kan. App. 2d 56, 11 P.3d 520 (2000) (repeated references to defendant as liar); State v. Pham, 27 Kan. App. 2d 996, 1005, 10 P.3d 780 (2000), (statements to jury that defense counsel not interested in truth); Lockhart, 24 Kan. App 2d at 491-93 (references to both defendant and defense counsel as Mars); State v. Hutcherson, 25 Kan. App. 2d 501, 506-07, 968 P.2d 1109 (1998) (reference to defendant as his own sole witness as “a liar, a criminal, and a drug dealer”).
The rationale of these cases was stated forcefully in Pabst-.
“A prosecutor is a servant of the law and a representative of the people of Kansas. We are unable to locate an excuse for a prosecutor’s failure to understand the remarkable responsibility he or she undertakes when rising in a courtroom to announce an appearance for the State of Kansas. . . .
‘The State’s characterization of the prosecutor’s statement that a defendant is lying, as a comment on the evidence, misses the mark. The point of not allowing a prosecutor to comment on the credibility of a witness is that expressions of personal opinion by the prosecutor are a form of unsworn, unchecked testimony, not commentary on the evidence of the case. . . . Here [the prosecutor] introduced into the case his personal opinion of [the defendant’s] credibility. He ignored his special obligation as a prosecutor to avoid improper personal insinuations. Because he represented the State of Kansas the jury might have been misled into thinking his personal opinions were validated by the weight of the State of Kansas. Such prosecutorial vouching places the prestige of die State behind the prosecutor’s personal assurances.” 268 Kan. at 510-11.
This rationale is no less persuasive when the maligned witness is someone other than the defendant or his or her counsel, as Welch was here. When we review the three considerations recited above, we conclude that the prosecutor’s statements regarding Welch were so gross and flagrant as to deny Hazley a fair trial and showed ill will on the prosecutor’s part. Further, given the State’s purely circumstantial case against Hazley, and Welch’s direct testimony about the possession of the drugs and paraphernalia, the evidence against Hazley was not of such a direct and overwhelming nature that we can say the misconduct had little weight.
Our conclusions are bolstered by the prosecutor’s additional improper statements during argument. As discussed in relation to the first issue, under Doyle, it is a violation of the defendant’s due process rights for the State to introduce evidence of the defendant’s silence after Miranda warnings were given. 426 U.S. at 618. Again, we see no meaningful analytical distinction between prosecutorial comment on such silence when the defendant has chosen to invoke his or her Fifth Amendment privilege against self-incrimination and such silence when the defendant’s sole witness has relied on the same privilege. In both cases, the State has struck the implicit bargain outlined in Doyle: Silence that follows Miranda warnings will not be used to cast doubt on a later explanation.
We are also troubled by the prosecutor’s misstatement of defense counsel’s argument, i.e., saying that defense counsel argued that the police officer lied. It was improper because it was inaccurate, but it was also improper for the same reason that the prosecutor’s injection of his personal opinion about witness credibility was improper. As the prosecutor wears the mantle of the State, so does a police officer. Defense counsel was placed in false opposition to a person most jurors are bound to see as a figure of authority and veracity. Prosecutors do not need to resort to “don’t forget who wears the white hats” statements to be effective.
In sum, we view the prosecutorial misconduct during closing argument as reversible error. Even if it did not qualify as reversible error on its own, however, this case would require reversal under the doctrine of cumulative error because of the prosecutorial misconduct and our holdings set forth below regarding the instructions on nonexclusive possession of premises and the definition of “possession.” See State v. Allison, 259 Kan. 25, 37-38, 910 P.2d 817 (1996).
Unanimity Instruction
Hazley next argues the trial court erred by failing to instruct the jury on the necessity for unanimity on a given criminal act for each count. This issue is not moot because it may arise again on retrial. The argument arises out of the prosecution’s failure to specify which illegal items it was relying on for conviction on each charge.
Hazley urges us to hold that State v. Kinmon, 26 Kan. App. 2d 677, 995 P.2d 876 (1999), controls this issue. In that case, weight of the State’s evidence was that the defendant possessed cocaine in two places: in his pocket and under a couch. The first would constitute actual possession and the second constructive possession. Because either factually and legally distinct act could have supported the crime charged, we ruled that the trial judge committed error by failing to instruct the members of the jury that they must agree unanimously on which act was proved by the State. 26 Kan. App. 2d 678-79.
We do not find Kinmon controlling. In this case, the State pursued convictions only on a constructive possession theory for drugs found simultaneously throughout the house in which Hazley lived. On the methamphetamine count, for example, Hazley was accused of constructively possessing all of the methamphetamine in her home. The same was true of the marijuana count. There were no truly multiple acts on which the prosecution relied and thus there was no need for a unanimity instruction.
Instruction on Nonexclusive Possession of Premises
Hazley also argues the trial court erred when it denied her requested instruction on nonexclusive possession. Our standard of review is “independent.” State v. Sims, 265 Kan. 166, 168, 960 P.2d 1271 (1998). We must view the evidence in a light most favorable to Hazley, ultimately determining whether the trial court instructed the jury “ ‘on the law applicable to the defendant’s theories for which there is supporting evidence.’ ” 265 Kan. at 168 (quoting State v. Scott, 250 Kan. 350, Syl. ¶ 4, 827 P.2d 733 [1992]).
Hazley is correct that: “ ‘ “When a defendant is in nonexclusive possession of premises on which drugs are found, the better view is that it cannot be inferred that the defendant knowingly possessed the drugs unless there are other incriminating circumstances finking the defendant to the drugs.” ’ ” State v. Galloway, 16 Kan. App. 2d 54, 63, 817 P.2d 1124 (1991) (quoting State v. Washington, 244 Kan. 652, 654, 772 P.2d 768 [1989]).
The evidence in this case, when viewed in the fight most favorable to Hazley, supported the giving of an instruction on nonexclusive possession. The jury needed to understand how to weigh the evidence of Hazley’s residence in the home. The trial court’s failure to include the instruction was error.
Instruction on Definition of “Possession”
Hazley concedes she failed to request a definition of “possession.” We therefore analyze this issue under the “clearly erroneous” standard of review. K.S.A. 2000 Supp. 22-3414(3). “An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there is a real possibility the jury would have returned a different verdict.” State v. Deavers, 252 Kan. 149, 164-65, 843 P.2d 695 (1992), cert. denied 508 U.S. 978 (1993).
This was a constructive possession case because none of the illegal items was found on Hazley’s person. “Possession” under the law involves “[hjaving control over a . . . thing with knowledge of and the intent to have such control.” PIK Crim. 3d 53.00. The omission of that definition in this case of constructive possession was clearly erroneous, particularly in fight of the State’s theory and argument. In essence, the State asked the jury to conclude that Hazley was guilty simply because she lived in the place where the drugs and paraphernalia were found. It focused on the strong circumstantial evidence of “knowledge” to the virtual exclusion of the “control” aspect of the legal definition. The absence of the instruction further promoted that imbalance.
Sufficiency of the Evidence
We have thoroughly reviewed the record in this case and conclude that the evidence, viewed in the light most favorable to the prosecution, could have supported a rational factfinder s conclusion that Hazley was guilty beyond a reasonable doubt. See State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999). A conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Smith, 268 Kan. 222, 236, 993 P.2d 1213 (1999).
However, in view of the prosecutorial misconduct and the failure of the trial court to give instructions regarding the possession issues raised, both of which constitute error, this matter must be reversed and remanded for a new trial.
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Lorentz, J.:
The Kansas Department of Human Resources (KDHR) appeals the decision of the district court overturning its order for Dillard Department Stores, Inc., to pay a former employee for earned vacation days following the employee’s involuntary termination.
Barrett Cook was employed by Dillard Department Stores, Inc. (Dillard’s) until he was involuntarily terminated on October 11, 1996. At the time of his termination, Cook had accrued 58 hours of vacation time. Dillard’s written employee benefits policy provided for a cash payment of accrued vacation hours upon termination as follows:
“Vacation is a benefit and not an earned wage. ‘Accrued Vacation’ is only considered an earned benefit, and payable upon termination, if the associate terminates due to death, retirement, or voluntarily terminates employment by (1) providing a written two weeks notice on the Company’s NOTICE OF RESIGNATION form to the Operating Location Manager’s office (or Senior Executive on Duty) prior to termination, and (2) working all hours scheduled during the two week period, or shorter period as determined by management. Associates involuntarily terminated for cause are not eligible for vacation pay.”
Because Cook was involuntarily terminated, Dillard’s refused to pay him for his accrued vacation time. Cook subsequently filed a wage claim against Dillard’s with KDHR. KDHR determined that Cook had been terminated without cause and was, therefore, entitled to payment of his accrued vacation time plus interest and a penalty for Dillard’s willful failure to pay, and also ordered payment of some unpaid commissions. KDHR then issued its initial order directing Dillard’s to pay Cook accordingly. Upon review, the Secretary of KDHR upheld the order, making it the agency’s final order. Dillard’s appealed that portion of the order relating to vacation pay and associated interest and penalties to the district court. The district court ruled that under the precedents established by Sweet v. Stormont Vail Regional Medical Center, 231 Kan. 604, 647 P.2d 1274 (1982), and Mid America Aerospace, Inc. v. Department of Human Resources, 10 Kan. App. 2d 144, 694 P.2d 1321, rev. denied 237 Kan. 887 (1985), KDHR had made an erroneous conclusion of law and vacated its order.
Additional facts will be set out as necessary.
KDHR contends the district court erred in ruling that Cook was not entitled to the payment for accrued vacation.
In examining a district court’s review of an administrative agency’s action, “an appellate court must first determine whether the district court observed the requirements and restrictions placed upon it and then make the same review of the administrative agency’s action as does the district court.” Water District No. 1 v. Kansas Water Authority, 19 Kan. App. 2d 236, 240, 866 P.2d 1076 (1994). The district court’s review is governed by the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. The court may consider only the grounds for relief set forth in K.S.A. 77-621(c). Sunflower Racing, Inc. v. Roard of Wyandotte County Comm’rs, 256 Kan. 426, 431, 885 P.2d 1233 (1994). “The district court must presume the agency’s findings valid. It may not set aside an agency order merely because the district court would have reached a different conclusion if it had been the trier of fact.” 256 Kan. at 431. The court may grant relief only if the evidence shows the agency’s determination “is so wide of the mark as to be outside the realm of fair debate.” Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 217 Kan. 604, 617, 538 P.2d 702 (1975).
The conditions under which a court may grant relief when an agency action is challenged are defined by K.S.A. 77-621(c). Dillard’s sought relief in the district court under K.S.A. 77-621(c)(4), which authorizes judicial relief if “the agency has erroneously interpreted or applied the law,” and K.S.A. 77-621(c)(7), which authorizes relief if “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.”
The only pertinent issue of fact that is disputed is whether Cook was terminated for cause. The burden of proving cause logically falls on Dillard’s. See Farmland Foods, Inc. v. Abendroth, 225 Kan. 742, Syl. ¶ 1, 594 P.2d 184 (1979) (holding employer has burden of proving employee misconduct by a preponderance of the evidence when disputing a claim for unemployment compensation). In proceedings before KDHR, Dillard’s stated that Cook was terminated for insubordination, but provided no further evidence or explanation.
KDHR’s finding that Cook was terminated without cause necessarily establishes that Dillard’s failed to meet its burden of proving misconduct on Cook’s part. “[A] negative finding that a party did not cany its requisite burden of proof will not be disturbed on appeal absent proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice.” Thomason v. Stout, 267 Kan. 234, 238, 978 P.2d 918 (1999). The district court concluded that whether Cook was terminated with or without cause was immaterial and did not address that issue. However, that issue is material to KDHR’s decision and it is material to determining Cook’s rights under Dillard’s policy. The failure of the district court to address this issue of fact does not require a remand as the case was decided upon documentary evidence and the district court had no particular opportunity to evaluate the credibility of witnesses or assess physical evidence not contained in the record. In such a situation, a reviewing court has the same opportunity to examine and consider the evidence as did the court below and it can make its own de novo determination. See Garvey Elevators, Inc. v. Kansas Human Rights Comm’n, 265 Kan. 484, 492, 961 P.2d 696 (1998).
A thorough review of the record reveals nothing to indicate an arbitrary disregard of undisputed evidence or bias, passion, or prejudice on the part of KDHR. Dillard’s presents no argument to the contrary, and, accordingly, KDHR’s finding that Cook was terminated without cause must stand as fact.
The next question is whether KDHR’s ultimate ruling was based on an erroneous interpretation of the law. KDHR correctly noted that under Kansas law, cash payment for accrued vacation time is not required unless provided for in the employer’s policies. See Sweet, 231 Kan. at 610. However, KDHR found that Dillard’s policies did provide for cash payment of vacation time at termination and that under those policies, Cook was entitled to such payment because he was terminated without cause. KDHR further found that the accrued vacation was earned wages and ordered the payment of interest and a penalty for willful nonpayment under K.S.A. 1999 Supp. 44-315.
K.S.A. 1999 Supp. 44-315(a) requires employers to pay earned wages to employees who have been fired. K.S.A. 44-313(c) defines “wages” as “compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis less authorized withholding and deductions.” K.A.R. 49-20-l(d) defines “or other basis” as used in the foregoing statute to include:
“all agreed compensation for services for which the conditions required for entitlement, eligibility, accrual or earning have been met by the employee. Such compensation may include, but is not limited to, profit sharing, fringe benefits, or compensation due as a result of services performed under an employment contract that has a wage rate required or implied by state or federal law.”
Vacation pay has been recognized by the courts as a type of wage. Mid America, 10 Kan. App. 2d at 146. KDHR’s determination that Cook’s accrued vacation time constituted wages under K.A.R. 49-20-l(d) and K.S.A. 44-313(c) was correct and was recognized as correct by the district court. Where KDHR and the district court diverged was on whether Cook’s vacation pay constituted earned wages under K.S.A. 1999 Supp. 44-315(a).
The resolution of this issue is controlled by the employment contract and employer policies. Sweet, 231 Kan. 604, Syl. ¶¶ 1,3, and 4; Mid America, 10 Kan. App. 2d at 147. The district court did not truly address Dillard’s vacation payment policy, but rather based its decision solely on the general principles set down in Sweet and Mid America. In both of those cases, the courts held terminated employees were not entitled to vacation pay. However, neither case held terminated employees are never entitled to pay for unused vacation, but that the issue must be decided based on the employment agreement and company policies in any given case. 231 Kan. at 611; 10 Kan. App. 2d at 147. Moreover, both cases are factually distinguishable from the present case.
The Mid America case is not directly on point because its holding was based on the fact that there was no agreement or policy in place to pay employees for unused vacation time. 10 Kan. App. 2d at 147. In this case, Dillard’s clearly has a policy of paying some terminated employees for accrued vacation time. The issue hinges on the interpretation of that policy.
Sweet, although very similar to the case at bar, is distinguishable because of two important differences. First, in Sweet, the employer’s policy did not contain any provisions concerning employees involuntarily terminated. Second, Sweet involved an employee who voluntarily quit without notice, rather than an employee terminated without cause.
The employer’s vacation policy at issue in Sweet reads: “Employees resigning from the hospital are expected to give their supervisor 2 weeks’ written notice . . . Any unused accumulated vacation that does not exceed 1-Vz times an employee’s annual vacation benefit will be paid to an employee who resigns and gives the proper notice.” 231 Kan. at 606.
The policy above differs from Dillard’s policy in that it specifies only terms of inclusion and none of exclusion. It imposés clear and specific conditions for the lump sum payment of unused vacation. By obvious implication, failure to meet the specific conditions excludes one from receiving vacation pay. It clearly excludes those who resign voluntarily without 2 weeks’ notice and those who are involuntarily terminated, with or without cause. Dillard’s policy, on the other hand, as KDHR points out in its brief, does not impose clear conditions, but is ambiguous and subject to interpretation. It now falls to this court to interpret Dillard’s policy.
The legal effect of a written instrument is a question of law. On appeal, a written instrument may be construed and its legal effect determined by the appellate court regardless of the construction made by the district court. First Financial Ins. Co. v. Bugg, 265 Kan. 690, 694, 962 P.2d 515 (1998). At the outset, certain established rules of interpretation must be kept in mind:
“ ‘There is an elementary rule of law that where one party to a contract is privileged to set down in writing the terms to which another party is to give assent, and a controversy arises as to their meaning, tire contract should be construed strictly against the writer and liberally toward the other party.’ ” Francis v. Shawnee Mission Rural High School, 161 Kan. 634, 639, 170 P.2d 807 (1946) (quoting Bankers Mortgage Co. v. Dole, 130 Kan. 367, 286 Pac. 258 [1930]).
Also, “a document should be read to give effect to all its provisions and to render them consistent with each other.” Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 63, 131 L. Ed. 2d 76, 115 S. Ct. 1212 (1995); see Restatement (Second) of Contracts § 203(a) (1979).
Dillard’s policy clearly states that employees who terminate because of death, retirement, or voluntary resignation with 2 weeks’ notice are entitled to vacation pay. The policy also clearly states that employees involuntarily terminated for cause are ineligible for vacation pay. Thus, the policy contains express provisions of both inclusion and exclusion. The policy does not, however, specifically address employees who voluntarily resign without giving 2 weeks’ notice or employees who are involuntarily terminated without cause.
One way to determine the rights of these latter classes of terminated employees is by application of the maxim expressio unius est exclusio alterius — the expression of one thing implies the exclusion of another. By expressly declaring that employees who voluntarily terminate with 2 weeks’ notice are entitled to vacation pay, Dillard’s policy implicitly excludes from receiving vacation pay those employees who voluntarily resign without giving 2 weeks’ notice. In fact, if the policy ended there, as did the policy in Sweet, the logical implication would be that all employees not expressly declared eligible would be ineligible. Thus, employees involuntarily terminated, with or without cause, would be ineligible because there was no mention of them.
Dillard’s policy, however, goes a step further. It expressly mentions involuntarily terminated employees. It declares that employees involuntarily terminated for cause are not eligible for vacation pay. This additional term, specifically addressing employees involuntarily terminated for cause, by implication excludes from its op eration those employees involuntarily terminated without cause. It would, therefore, be reasonable to conclude that employees terminated without cause, such as Cook, are eligible to receive payment for their accrued vacation pay. That is the interpretation adopted by KDHR.
Alternatively, one could take the view urged by Dillard’s and adopted by the district court and interpret Dillard’s policy to place specific conditions precedent on the right to receive vacation pay on termination. Under this view, the. only conditions under which a terminated employee would be eligible for vacation pay would be those specifically spelled out in the policy — death, retirement, or voluntary termination with 2 weeks’ notice. Termination without meeting those conditions precedent would preclude an employee from receiving vacation pay. That was the situation and holding in Sweet.
The latter interpretation minimizes the factual differences between the two cases and ignores the previously mentioned rules of interpretation. Adopting Dillard’s interpretation would render superfluous the term specifying that employees terminated without cause are not eligible to receive vacation pay. It would simply be without any meaning or effect. This violates the rule set out in the Restatement (Second) of Contracts § 203(a) and recognized by the United States Supreme Court in Mastrobuono, 514 U.S. at 63, that an interpretation giving reasonable, effective meaning to all terms is preferred to one that leaves some terms with no effect. KDHR’s interpretation, on the other hand, does give effect to all the terms of Dillard’s policy — limiting application of the conditions precedent to voluntary terminations and making it clear that those involuntarily terminated for cause are ineligible.
The fact that Dillard’s wrote the policy also weighs in favor of KDHR’s interpretation. The terms of the policy are not crystal clear; they are open to different, yet reasonable interpretations. It is a common-law rule of interpretation that in such situations, a court should construe the terms of a writing against the drafter. See Mastrobuono, 514 U.S. at 63; Francis, 161 Kan. at 639. The purpose for this rule “is to protect the party who did not choose the language from an unintended or unfair result.” Mastrobuono, 514 U.S. at 63. In this case, Dillard’s chose the language and chose poorly. Giving Dillard’s the benefit of its own interpretation would subject Cook to an unfair result. Cook would lose his vacation pay, which under the policy he fully expected to receive, after being terminated by Dillard’s without cause.
Under the policy as written, it was reasonable for Cook to believe that the conditions precedent to receiving vacation pay applied only in cases of voluntary termination. Thus, it was reasonable for Cook to expect to be paid for his vacation time so long as he neither quit without the required notice nor committed acts of misconduct justifying his involuntary termination for cause.
Sweet and Mid America are distinguishable from the case now before us and it was error for the district court to rely on those cases in vacating KDHR’s order.
Reversed with directions to reinstate the order of KDHR.
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Green, J.:
Deffenbaugh Industries, Inc. (Deffenbaugh) and Hartford Casualty Insurance Co. (Hartford) appeal from a declaratory judgment granted to Dan Lykins, a Topeka attorney, and his client William E. Wilcox, in an action to recover attorney fees under K.S.A. 44-504. On appeal, Deffenbaugh and Hartford argue that they are not required to pay a proportionate share of Lykins’ attorney fees under K.S.A. 44-504 because Deffenbaugh and Hartford were reimbursed for workers compensation expenses under an indemnity contract and not under statutory subrogation. We agree and reverse.
On October 1, 1997, Wilcox was injured in a work-related accident during the course of his employment with Deffenbaugh. Wilcox was injured when a can of window cleaner manufactured or packaged by Sherwin-Williams exploded in his hand.
On October 10, 1997, Deffenbaugh entered into an indemnity agreement with Sherwin-Williams regarding Wilcox’s accident and injury. In that agreement, Sherwin-Williams agreed to reimburse Deffenbaugh and Deffenbaugh’s workers compensation insurer, Hartford, for any expenses Deffenbaugh might incur as a result of any workers compensation claim Wilcox might make against Deffenbaugh. Specifically, the indemnity agreement provided in part as follows:
“Sherwin-Williams . . . hereby agrees to indemnify Deffenbaugh Industries, Inc. for reasonable out-of-pocket expenses arising out of the work related injury of Mr. Wilcox, including but not limited to temporary disability payments, medical bills, handling charges and other administrative costs associated with handling the compensation claim. Additionally Sherwin-Williams . . . agrees to make indemnity payments directly to Hartford . . . when billed, providing sufficient backup documentation is provided by Hartford.”
On October 22, 1997, Wilcox entered into a contract for legal services with Lykins wherein Lykins agreed to represent Wilcox in his personal injury claim against Sherwin-Williams. The agreement for attorney fees was 33 1/3% of whatever might be recovered on the personal injury claim by settlement without filing a lawsuit. Wilcox was represented by another attorney in Lykins’ law firm, Roger D. Fincher, in his workers compensation claim against Deffenbaugh.
On October 22, 1997, Lykins sent a letter to Hartford stating that he represented Wilcox’s interests. The next day, Deffenbaugh informed Lykins that Sherwin-Williams agreed to reimburse Deffenbaugh for any workers compensation benefits paid as a result of Wilcox’s accident.
On November 30, 1998, Wilcox settled his workers compensation claim against Deffenbaugh and Hartford for $27,902.75. Including the settlement amount of $27,902.75, Deffenbaugh and Hartford incurred $50,788.79 in expenses in connection with Wilcox’s workers compensation claim. Lykins later negotiated a total settlement with Sherwin-Williams on Wilcox’s personal injury claim. Lykins claims he negotiated a settlement for all of Wilcox’s claims, including the workers compensation claim. The total settlement was for $275,000. From that amount, $50,788.79 was to be paid to Deffenbaugh and Hartford as reimbursement for their workers compensation expenses, with the remaining $224,211.21 going to Wilcox in satisfaction of his personal injury claim.
However, before Sherwin-Williams reimbursed Deffenbaugh and Hartford for the workers compensation expenses, Lykins notified Sherwin-Williams that under K.S.A. 44-504(b) he had an attorney fees lien on Deffenbaugh and Hartford’s workers compensation subrogation claim. Specifically, Lykins claimed attorney fees in the amount of $16,929.60, which was one-third of the reimbursement amount. Instead of getting involved in the attorney fees dispute, Sherwin-Williams sent a check in- the amount of $50,788.79 to Lykins. The check was made out to Wilcox, Lykins, Deffenbaugh, and Hartford. Lykins and Wilcox endorsed the check and sent it to Deffenbaugh and Hartford. Lykins enclosed a letter with the check which read:
“As you can see, Mr. Wilcox and I have endorsed the subrogation check and will allow your client to cash die check with the understanding that one-third of the check be deposited in an interest bearing trust account by your office in die amount of $16,929.60 which represents the attorney fee I am claiming regarding the recovery óf the workmen’s compensation subrogation claim. . . . I am also enclosing a letter from . . . Sherman [sic] Williams ... in which [SherwinWilliams] requests] that die workmen’s compensation check not be negotiated until die General Release is signed by all of the parties on die signature page of die Release.”
Deffenbaugh and Hartford filed a declaratory judgment action against Wilcox and Lykins for a determination of whether Lyldns was entitled to attorney fees relating to Sherwin-Williams’ indemnification of Deffenbaugh’s workers compensation expenses. Both parties moved for summary judgment.
At oral argument on the parties’ cross motions for summary judgment, the trial court asked Lykins when he was informed of Deffenbaugh and Hartford’s indemnity agreement with Sherwin-Williams. Lyldns told the court that he did not learn of the indemnity agreement until “very late” in the process. After hearing arguments, the trial court granted Lykins and Wilcox’s summary judgment motion. The trial court ruled that as a matter of law, Lykins was entitled to attorney fees in the amount of $16,929.60. The trial court rationalized:
“I am concerned that by sanctioning the indemnity agreement in this case that we would be encouraging tort defendants to make deals with employers. I do not believe that would be good for the system. . . . [T]he employer and die employee should be on the same side when diere is a third-party tort defendant out diere. They should be working together. . . .
“Secondly, Mr. Lykins didn’t know whether or not there was a[n] indemnification agreement. That’s not a part of die record, but at argument here . . . Mr. Lykins said it was late in die processing of the case before he found out. That is a tremendous admission of liability on the part of Sherwin-Williams . . . [and] had diat admission of liability been disclosed by the employer to Mr. Lykins .. . maybe the whole situation changes. I mean, he would certainly be in a stronger bargaining position because lie’s got Sherwin-Williams basically saying I’m liable. ... In diis case, diis type of agreement would eliminate the financial motivation or incentive for Deffenbaugh to investigate liability facts as to injured employees. If you have an indemnity agreement, diat incentive is gone.”
Instead of basing its decision on K.S.A. 44-504, the trial court used public policy to support its ruling. Moreover, the trial court was apparently persuaded by Lykins’ statement that he was informed of the indemnity agreement late in the processing of the case.
After the trial court’s ruling, however, Lykins sent a letter to the trial court which stated in pertinent part as follows:
“After I received [die transcript of the hearings on the cross motions for summary judgment], I checked my records and found a memo to the file indicating that on October 23rd, 1997 I spoke with ... an attorney for Deffenbaugh, Inc. and the memo states the followfing], ‘3M [i.e., Sherwin-Williams] did not man ufacture the product that caused Mr. Wilcox injuries but it appears they are accepting full responsibility since they have told Deffenbaugh, Inc. that they will pay for all of Mr. Wilcox workmen’s compensation payments ....’”
The letter, however, is contradictory because in a later paragraph Lykins stated: “I did not know about the Indemnity Agreement until [an attorney for Deffenbaugh and Hartford] sent it to me when he filed the Petition for Declaratory Relief in February of 1999.” Nevertheless, Lykins did not originally provide the trial court with accurate information regarding his knowledge of the indemnity agreement.
On September 29, 1999, Deffenbaugh and Hartford moved to alter or amend the trial court’s judgment based on Lykins’ admission that he knew of the indemnity agreement early in the processing of the case. Deffenbaugh and Hartford argued that the trial court believed that the date by which Lykins was informed of the indemnity agreement was material to its decision for summary judgment. The trial court denied the motion to alter or amend judgment.
On appeal, Deffenbaugh and Hartford contend that Lykins is not entitled to recover attorney fees under K.S.A. 44-504 because Deffenbaugh and Hartford were not reimbursed for workers compensation benefits under statutory subrogation rights. The construction and interpretation of K.S.A. 44-504 is a question of law, subject to unlimited appellate review. Lemery v. Buffalo Airways, Inc., 14 Kan. App. 2d 301, 304, 789 P.2d 1176, rev. denied 246 Kan. 767 (1990). Moreover, this court has held that the issue of whether the trial court had authority to impose attorney fees is a question of law over which this court has plenary review. Walker v. State, 26 Kan. App. 2d 410, 411, 988 P.2d 283, rev. denied 268 Kan. 896 (1999). In the present case, the challenge is not to the amount of attorney fees awarded, but whether the court had the power to award fees in these circumstances. Accordingly, our standard of review is de novo.
K.S.A. 44-504 provides, in pertinent part:
“(a) When the injury or death for which compensation is payable under the workers compensation act was caused under circumstances creating a legal liability against some person other than tire employer or any person in die same employ to pay damages, the injured worker or the worker’s dependents or personal representatives shall have the right to take compensation under the workers compensation act and pursue a remedy by proper action in a court of competent jurisdiction against such other person.
“(b) In the event of recovery from such other person by die injured worker or die dependents or personal representatives of a deceased worker by judgment, settlement or otherwise, the employer shall be subrogated to the extent of die compensation and medical aid provided by die employer to die date of such recovery and shall have a lien therefor against the entire amount of such recovery, excluding any recovery, or portion thereof, determined by a court to be loss of consortium or loss of services to a spouse. The employer shall receive notice of the action, have a right to intervene and may participate in die action. . . .
“(c) . . . The court shall fix the attorney fees which shall be paid proportionately by the employer and employee in the amounts determined by die court.
“(g) In any case under die workers compensation act in which the workers compensation fund or an insurer or a qualified group-funded workers compensation pool, as provided in K.S.A. 44-532 and amendments thereto, is subrogated to die rights of the employer under the workers compensation act, die court shall fix the attorney fees which shall be paid proportionately by the workers compensation fund, insurer or qualified group-funded workers compensation pool and the worker or such worker’s dependents or personal representatives in die amounts determined by die court based upon die amounts to be received from any recoveiy pursuant to an action brought under this section.”
Resolution of the attorney fees issue hinges on a determination of whether Deffenbaugh and Hartford were reimbursed for their workers compensation expenses as a subrogee under K.S.A. 44-504(b) or whether they were reimbursed under the terms of the indemnity agreement.
“Subrogation is a creature of equity invented to prevent a failure of justice and is broad enough to include every instance in which one party is required to pay a debt for which another is primarily answerable.” Western Surety Co. v. Loy, 3 Kan. App. 2d 310, 312, 594 P.2d 257 (1979). More specifically, subrogation exists to prevent double recovery. For example, an injured employee cannot claim a right to both the workers compensation payments and the cause of action against a third party as this would violate the principle of indemnity by permitting double recovery. See generally Stempel, Law of Insurance Contract Disputes § 11.01 (2d ed. 1999). Instead, an employer receives reimbursement for the amount of its expenditures as a claim against the proceeds of a third-party recoveiy, and the employee gets the excess. K.S.A. 44-504(b); 6 Larson, Workers’ Compensation Law § 117.01 [1] (2000). Several Kansas appellate cases have addressed this type of subrogation. See, e.g., Nordstrom v. City of Topeka, 228 Kan. 336, 613 P.2d 1371 (1980); Lemery, 14 Kan. App. 2d 301.
Under Kansas law, one who asserts the right of subrogation must step into the shoes of, or be substituted for, one whose claim or debt he or she paid and can only enforce those rights the latter could enforce. Corley v. Wichita Elec. Co., Inc., 163 F.R.D. 12, 13 (D. Kan. 1995). On the other hand, the right to subrogation may be waived. Flott v. Wenger Mixer Manufacturing Co., 189 Kan. 80, Syl. ¶ 3, 367 P.2d 44 (1961).
Subrogation is distinguishable from a contract of indemnity, which is “where the promisor agrees to save a promisee harmless from some loss, irrespective of liability to a third party.” Restatement of Security § 82, comment 1 (1941). An example of indemnity is “when C promises A that he will reimburse A in the event that A is compelled to pay B. Here C is called an indemnitor against loss.” Camari & Perillo, The Law of Contracts § 17-6 (2d ed. 1977); see Ronnau v. Caravan International Corporation, 205 Kan. 154, 160, 468 P.2d 118 (1970).
As outlined in the above example, Deffenbaugh and Hartford’s agreement with Sherwin-Williams constituted a contract for indemnity. Sherwin-Williams became an indemnitor against loss. Sherwin-Williams promised to reimburse Deffenbaugh and Hartford in the event those companies paid workers compensation benefits to Wilcox.
Although K.S.A. 44-504 grants an employer legal subrogation rights to certain proceeds recovered by its employee against a third-party tortfeasor, nothing in the statute prevents an employer from waiving that right. Deffenbaugh and Hartford waived their right to statutory subrogation by contracting with Sherwin-Williams for repayment of Wilcox’s workers compensation benefits and by giving early notice of this agreement to Lyldns.
It was reasonable for Deffenbaugh and Hartford to elect reimbursement under the indemnity agreement rather than statutory subrogation. First, unlike the statutory right to subrogation, the indemnity agreement guaranteed Deffenbaugh and Hartford repayment of the workers compensation expenses, regardless of whether Wilcox was successful in a claim against Sherwin-Williams. Moreover, the indemnity agreement did not require Sherwin-Williams to wait for Wilcox’s tort litigation to be settled before repayment of the workers compensation expenses was due. In addition, while the indemnity agreement worked to Deffenbaugh and Hartford’s advantage, the agreement did not limit Wilcox’s right to pursue a claim against Sherwin-Williams. As a result, we find that Deffenbaugh and Hartford were reimbursed for Wilcox’s workers compensation expenses under the terms of the indemnity agreement.
Because Deffenbaugh and Hartford recovered their workers compensation expenses under the indemnity agreement, it was unnecessary for Deffenbaugh and Hartford to step into Wilcox’s shoes during Wilcox’s negotiations with Sherwin-Williams. Conversely, it was unnecessary for Wilcox to protect Deffenbaugh and Hartford’s subrogation rights during negotiations with Sherwin-Williams. As such, it is unclear why Lykins negotiated a total settlement of $275,000 with Sherwin-Williams, considering part of that recovery went to Deffenbaugh and Hartford. We also do not understand why Sherwin-Williams placed Wilcox’s and Lykins’ names on the reimbursement check because the indemnity agreement required Sherwin-Williams to make the indemnity payments directly to Deffenbaugh and Hartford. Nevertheless, although Wilcox and Lykins may have ostensively protected Deffenbaugh and Hartford’s subrogation rights, this was unnecessary because Deffenbaugh and Hartford waived their right to statutory subrogation by entering into the indemnity agreement and by giving early notice of this agreement to Lykins.
Kansas follows the American Rule that courts do not have authority to award attorney fees in civil cases except those authorized by statute or agreed to by the parties. United States Fidelity & Guaranty Co. v. Maish, 21 Kan. App. 2d 885, 905, 908 P.2d 1329 (1995). Likewise, a court does not have authority to impose attorney fees under its equitable powers in the absence of statutory authorization. 21 Kan. App. 2d at 905-06; see Golconda Screw, Inc. v. West Bottoms Ltd., 20 Kan. App. 2d 1002, 1009-10, 894 P.2d 260 (1995). Because Deffenbaugh and Hartford were not subrogated under K.S.A. 44-504, Lykins is not entitled to attorney fees on the reimbursement payment from Sherwin-Williams under that statute. As a result, the trial court lacked the statutory authority to award Lykins the attorney fees awarded in this case.
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Rulon, C.J.:
Defendant William H. Chacon-Bringuez appeals the conviction of driving under the influence (DUI), i.e., operating a vehicle while his blood alcohol concentration was .08 or more, in violation of K.S.A. 2000 Supp. 8-1567. We affirm.
The material facts are as follows:
On April 3, 1999, at 8:35 p.m., Kansas Highway Patrol Trooper Dallas Gilmore observed a pickup truck displaying a personalized license tag ‘WILLIAM” on the rear of the vehicle but not on the front, in violation of K.S.A. 2000 Supp. 8-133. Gilmore pulled the vehicle over to the shoulder and asked the driver for identification. A valid driver’s license identified the driver as the defendant.
During the initial contact with defendant, Gilmore detected the odor of alcohol on defendant’s breath and noticed his eyes were bloodshot and watery. Additionally, there were nine beers left in a 12-pack box in the truck. Based on these observations, Gilmore requested defendant exit his vehicle and come back to the patrol car. As defendant exited the truck, he had to lean on it to maintain his balance while he was walking back to the patrol car.
Inside the patrol car, defendant admitted he had consumed three beers earlier in the day. Gilmore requested defendant to submit to a prehminary breath test (PBT) and defendant agreed.
Gilmore testified he was certified to use the device and followed the instructed protocol in giving the PBT. The test resulted in a red display, indicating the breath sample was over the legal limit.
After the PBT, Gilmore requested defendant to perform some field sobriety tests. The first test administered was the walk and turn test. This test was developed to help the officer obtain clues about a driver’s possible impairment by requiring the driver to perform more than one task at once. The test requires the driver to: (1) maintain a heel-to-toe position while being instructed, (2) not use his or her arms for balance, (3) walk nine steps in a heel-to-toe fashion, (4) make a specifically instructed turn, and (5) return to the starting point with nine heel-to-toe steps.
Gilmore noticed the following clues of impairment during defendant’s performance of the test: (1) defendant lost his balance three times during the instructions, (2) defendant walked off the line, and (3) defendant made an improper turn.
The second field sobriety test administered was the one-leg stand. This test requires the driver to stand with his heels together and his arms at his side while being instructed. The driver is instructed to count to 30 — 1001,1002,1003, and so on — while keeping one leg raised about 6 inches off the ground.
Gilmore noticed several clues of impairment during the test: (1) defendant swayed once while he was trying to balance himself and (2) it took him 40 seconds to count to 30, which Gilmore interpreted as indicating that defendant’s system was depressed. However, at the suppression hearing, Gilmore stated swaying was not an actual clue but it simply helped the officer to evaluate the driver’s condition.
After completing the field sobriety tests, Gilmore arrested defendant at 9 p.m. While waiting for a towing truck, Gilmore conducted a vehicle inventory and logged in nine unopened cans of beer from a 12-pack box. Gilmore transported defendant to jail and requested defendant to submit to a blood test, after giving the required implied consent advisories to him. A medical technologist took the blood sample at 10:02 p.m. and mailed it to the Kansas Bureau of Investigation for testing. The test results showed the blood alcohol concentration was .17.
Prior to the preliminary hearing, defendant filed a motion to suppress the results of the blood test, claiming that Gilmore lacked probable cause for an arrest. Defendant additionally filed a motion challenging the constitutionality of K.S.A. 2000 Supp. 8-1012, which allows an arrest based solely on the results of a PBT.
After the preliminary hearing, the trial court simply denied the motion to suppress without making factual findings on the record. The court held that K.S.A. 2000 Supp. 8-1012 did not violate the separation of powers doctrine because the statute did “not interfere with the Court’s ability to review whether the officer did in fact have probable cause to make said arrest.”
Defendant was convicted of DUI, defined as driving while having a blood alcohol concentration of .08 or more as measured within 2 hours of the time of operating the vehicle. See K.S.A. 2000 Supp. 8-1567(a)(2). Defendant was placed on 2 years’ probation after serving a mandatory 90-day sentence, with an underlying sentence of 12 months in jail.
Defendant appeals his conviction.
Constitutionality of K.S.A. 2000 Supp. 8-1012
Defendant argues a statute that allows a law enforcement officer to make an arrest based solely on the results of a PBT is unconstitutional because of a violation of the separation of powers doctrine.
K.S.A. 2000 Supp. 8-1012, in part, provides:
“If a person submits to the test, the results shall be used for the purpose of assisting law enforcement officers in determining whether an arrest should be made and whether to request the tests authorized by K.S.A. 8-1001 and amendments thereto. A law enforcement officer may arrest a person based in whole or in part upon the results of a preliminary screening test. Such results shall not be admissible in any civil or criminal action except to aid the court or hearing officer in determining a challenge to the validity of the arrest or the validity of the request to submit to a test pursuant to K.S.A. 8-1001 and amendments thereto.” (Emphasis added.)
Interpretation of a statute is a question of law, and an appellate court’s review is unlimited. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998). The general rules of constitutional construction are as follows:
“ ‘It is fundamental that our state constitution limits rather than confers powers. Where the constitutionality of a statute is involved, the question presented is, therefore, not whether the act is authorized by the constitution, but whether it is prohibited thereby. [Citations omitted.]
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 die constitution. [Citations omitted.]
‘In determining constitutionality, it is the court’s duty to uphold a statute under attack radier than defeat it and if diere is any reasonable way to construe die statute as constitutionally valid, that should be done. [Citations omitted.]
‘Statutes are not stricken down unless die infringement of die superior law is clear beyond substantial doubt. [Citations omitted.]
‘Courts do not strike down legislative enactments on die mere ground diey fail to conform with a strictly legalistic definition or technically correct interpretation of constitutional provisions. The test is radier whether the legislation conforms with the common understanding of the masses at the time they adopted such provisions and the presumption is in favor of the natural and popular meaning in which the words were understood by the adopters. [Citations omitted.]’ ” State ex. rel. Stephan v. Parrish, 257 Kan. 294, 297, 891 P.2d 445 (1995) (quoting State ex. rel. Schneider v. Kennedy, 225 Kan. 13, 20-21, 587 P.2d 844 [1978]).
The principle of separation of powers is not enumerated specifically in the Kansas or United States Constitutions, but is implied from the structure of federal and state government. State v. Greenlee, 228 Kan. 712, 715, 620 P.2d 1132 (1980) (citing Dreyer v. Illinois, 187 U.S. 71, 47 L. Ed. 79, 23 S. Ct. 28 [1902]). However, it does not necessarily flow that an entire and complete separation is either desirable or was ever intended by the framers of the constitution. State v. Ponce, 258 Kan. 708, 711, 907 P.2d 876 (1995). Early decisions attempted to apply the doctrine strictly, refusing to tolerate any overlapping of powers, but the more recent cases have modified the doctrine, taking a more pragmatic, flexible, and practical approach giving recognition to the fact there may be a certain degree of “blending or admixture” of the three powers of government. Greenlee, 228 Kan. at 715-16.
There are two types of cases involving the separation of powers doctrine: (1) the unlawful delegation of legislative authority to another branch of government and (2) the usurpation of the powers of one branch by another branch. Ponce, 258 Kan. at 712.
When a statute is challenged under the constitutional doctrine of separation of powers, the court must search for a usurpation by one department of the powers of another department on the specific facts and circumstances presented. Greenlee, 228 Kan. at 716. The issue here involves a claim of an executive branch’s usurpation of power to determine probable cause by the judicial branch in K.S.A. 2000 Supp. 8-1012. A usurpation of powers exists when there is a significant interference by one department with operations of another department. A court should consider (1) the essential nature of the power being exercised; (2) the degree of control by one department over another; (3) the objective sought to be attained by the legislature; and (4) the practical result of the blending of powers as shown by actual experience over a period of time. Greenlee, 228 Kan. at 716.
Here our inquiry is whether the language in K.S.A. 2000 Supp. 8-1012, which allows law enforcement officers to rely solely on the PBT results to arrest a driver for DUI, is a violation of the separation of powers between the judicial and executive branches of state government. The essential nature of the power being exercised here involves the probable cause determination for a lawful arrest without a warrant. See K.S.A. 2000 Supp. 22-2401(c). Probable cause is defined in terms of facts and circumstances sufficient to warrant a prudent person in believing that the suspect had committed or was committing an offense. Gerstein v. Pugh 420 U.S. 103, 111, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975). The United States Supreme Court further discussed the necessary accommodation between the individual’s right to liberty and the State’s duty to control crime:
“ ‘These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable [persons] acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.’ ” Gerstein, 420 U.S. at 112 (quoting Brinegar v. United States, 338 U.S. 160, 175-76, 93 L. Ed. 1879, 69 S. Ct. 1302 [1949]).
Making an arrest without a warrant where the officer is faced with a possible DUI suspect is essential to enforcement of the law when weighed against the grave dangers caused by drunk driving. Relying on the results of a PBT in arresting the suspect is a practical consideration for officers when faced with an ambiguous situation.
In State v. Favela, 259 Kan. 215, 911 P.2d 792 (1996), the State argued that the sentencing court’s decision to sentence the defendant as if he had been convicted of aggravated assault, instead of the attempted murder charge of which he was convicted, was a violation of the separation of powers between the judicial and executive branches. The Favela court followed the analysis for separation of powers doctrine and concluded that if the sentencing court usurped the power of the prosecutor at all, it did so in a very limited way and did not violate the separation of powers doctrine. 259 Kan. at 224.
The Kansas courts have consistently approved the legislature’s certain control over the judiciary’s power to impose sentence in criminal cases. K.S.A. 2000 Supp. 8-1012 provides that a law enforcement officer may request a person to submit to a PBT if the officer has reasonable grounds to believe the person (1) has alcohol in the body, (2) has committed a traffic infraction, or (3) has been involved in a vehicle accident or collision. Furthermore, refusal to take and complete the test is a traffic infraction. The degree of control by the legislature is limited to the arrests made for possible DUI based on the test results of a PBT.
K.S.A. 2000 Supp. 8-1012 is a part of K.S.A. 8-1001 et seq., known as the Kansas Implied Consent Law. The ultimate goal of the measures of the implied consent law is “to protect the health and safety of Kansas citizens by reducing the incidences of drinking and driving, alcohol-related crashes, injuries, and fatalities.” State v. Mertz, 258 Kan. 745, 757-58, 907 P.2d 847 (1995).
A PBT is an important tool for law enforcement officers to determine whether an arrest should be made in order to protect the health and safety of citizens.
Defendant argues that if a person failed a PBT, the statute compels a finding that probable cause existed, regardless of the other circumstances. However, the arrest is not mandatory; the statute states a “law enforcement officer may arrest a person based in whole or in part upon the results” of the test. (Emphasis added.) K.S.A. 2000 Supp. 8-1012. At the time the test is requested, an officer is required to give oral notice that (1) there is no right to consult with an attorney regarding whether to submit to testing, (2) refusal to submit to testing is a traffic infraction and (3) further testing may be required. The statute further provides that “the results shall be used for the purpose of assisting law enforcement officers in determining whether an arrest should be made and whether to request the tests authorized by K.S.A. 8-1001 and amendments thereto.” K.S.A. 2000 Supp. 8-1012.
Here, Gilmore did not, in fact, arrest defendant immediately after defendant’s failed PBT; instead, Gilmore requested defendant perform field sobriety tests. Defendant was arrested after he failed all the tests.
Furthermore, the results of a PBT are not “admissible in any civil or criminal action except to aid the court ... in determining a challenge to the validity of the arrest or the validity of the request to submit to a test pursuant to K.S.A. 8-1001 and amendments thereto.” K.S.A. 2000 Supp. 8-1012. The PBT results are not evidence of guilt for a DUI charge because it is not admissible at trial. K.S.A. 2000 Supp. 8-1012 does not have a chilling effect on the defendant’s ability to challenge an arrest for lack of probable cause. Judicial determination of probable cause in a warrantless arrest is always available; it is not abrogated by the provisions in K.S.A, 2000 Supp. 8-1012.
In summary, the portion of K.S.A. 2000 Supp. 8-1012 allowing an officer to make his or her determination whether to make an arrest based solely or in part upon the results of a PBT does not constitute a significant interference by the legislature with the function of judiciary. Taking a more pragmatic, flexible, and practical approach to dealing with possible DUI suspects under the specific facts and circumstances presented here, a certain degree of blending of the powers of legislature and judiciary should be recognized. See Greenlee, 228 Kan. at 715-16. After considering the four factors enumerated in Greenlee, with the presumption of constitutionality of the statutes in mind, we conclude K.S.A. 2000 Supp. 8-1012 is constitutionally valid.
Failure to Suppress
Defendant argues his performance on the field sobriety tests was good enough to pass the tests and, therefore, there was no probable cause to arrest him under the totality of the circumstances.
The standard of review on the trial court’s decision on motion to suppress is stated:
“When reviewing a trial court’s decision as to tire suppression of evidence, an appellate court normally gives great deference to the factual findings of the trial court. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate determination.” State v. Vandiver, 257 Kan. 53, 58, 891 P.2d 350 (1995); see State v. DeMarco, 263 Kan. 727, 732, 952 P.2d 1276 (1998).
After listening to Gilmore’s testimony and arguments by counsel, the court denied defendant’s motion to suppress the blood alcohol concentration test results without making specific findings of facts. In a DUI case, the answer to the probable cause to arrest question depends on the officer’s factual basis for concluding that defendant was intoxicated at the time of arrest. Our review of the trial court’s determination of whether an officer had probable cause to make a warrantless arrest in a DUI case is a mixed question of law and fact. City of Dodge City v. Norton, 262 Kan. 199, 203, 936 P.2d 1356 (1997).
At the time of the defendant’s arrest, Gilmore had the following undisputed information: (1) Gilmore detected the odor of alcohol on defendant’s breath and noticed defendant’s eyes were bloodshot and watery. (2) There were nine beers in a 12-pack box in the truck. (3) As defendant exited the truck, defendant had to lean on it to maintain his balance while he was walking back to the patrol car. (4) The PBT resulted in a red display, indicating the breath sample was over the legal limit. (5) Defendant admitted he had three beers earlier in the day. (6) Gilmore noticed several clues of impairment during defendant’s performance of the walk and turn test: Defendant lost his balance three times during the instructions, defendant walked off the fine, and defendant made an improper turn. (7) Gilmore noticed two clues of impairment during the one-leg stand test: Defendant swayed once while he was trying to balance himself and it took 40 seconds to count to 30, which Gilmore interpreted to indicate defendant’s system was depressed.
Unquestionably, there was sufficient evidence to establish probable cause to arrest defendant. The trial court did not err in denying defendant’s motion to suppress blood alcohol concentration test results, because defendant’s arrest was supported by probable cause.
Additionally, the State argues Gilmore was justified in arresting defendant for a license tag violation under K.S.A. 2000 Supp. 22-2401(d). Gilmore testified he noticed the violation of K.S.A. 2000 Supp. 8-133 which required that personalized license tags be displayed on both the front and rear of a vehicle. The State argues this violation is not a traffic infraction, but a misdemeanor, and Gilmore could make a warrantless arrest based on K.S.A. 2000 Supp. 22-2401(d). Although neither party argues this point on appeal, K.S.A. 2000 Supp. 22-2401(c)(2)(A) seems to apply in this case where the officer had probable cause to believe that the person was committing a misdemeanor and the person would not be apprehended unless the person was immediately arrested. State v. Hayes, 8 Kan. App. 2d 531, 533, 660 P.2d 1387 (1983), held that the arresting officers had probable cause to stop defendant’s vehicle because its license tag was obscured in violation of K.S.A. 8-133 and, consequently, properly seized marijuana in plain view.
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Green, J.:
Jill M. Street appeals from the revocation of her probation. On appeal, Street argues that the trial court abused its discretion in revoking her probation because (1) the trial court failed to make the proper findings regarding her failure to pay ordered costs and fees and (2) mitigating factors outweighed the probation violations. We affirm.
In 1994, Street pled no contest to trafficking contraband into a correctional institution. The trial court sentenced her to probation for 3 years, with an underlying sentence of 14 months’ incarceration. Street’s probation included the terms and conditions that she report to the court services officer as directed and pay certain costs and fees, among other requirements.
Street later committed numerous probation violations. As a result of the violations, five motions for revocation of Street’s probation were filed. The trial court resolved the first four motions by revoking Street’s probation, ordering her to serve 30 days in jail or to complete a community corrections program, and reinstating her probation. However, after the fifth motion, the trial court permanently revoked Street’s probation. The trial court found that Street violated the terms of her probation by failing to report to the court services officer and failing to pay ordered costs and fees. Street did not contest the allegations contained in the fifth motion for revocation of probation. Street was ordered to serve the underlying sentence of 14 months.
On appeal, Street argues that the trial court abused its discretion in revoking her probation. A probationer may not have his or her probation revoked unless it is made to appear that he or she has failed to comply with the terms and conditions of probation. Swope v. Musser, 223 Kan. 133, 137, 573 P.2d 587 (1977). Once there has been evidence of a violation of the conditions on which probation was granted, revocation is in the sound discretion of the trial court. State v. Walker, 260 Kan. 803, 808, 926 P.2d 218 (1996). Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. State v. Williams, 268 Kan. 1, 8, 988 P.2d 722 (1999).
Street first contends that the trial court abused its discretion because it failed to make the proper findings regarding her failure to pay the ordered costs and fees. Street insists that to revoke her probation for failure to pay costs and fees, the trial court was required to find that it was a conscious refusal on her part not to pay. According to Street, because the trial court failed to make such a finding, it improperly revoked her probation on that basis.
To support her argument, Street cites Bearden v. Georgia, 461 U.S. 660, 672, 76 L. Ed. 2d 221, 103 S. Ct. 2064 (1983). Bearden held that
“in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment.”
The record shows that the trial court failed to make a sufficient inquiiy into the reasons for Street’s failure to pay the costs and fees. The trial court did not determine whether the failure to pay was willful or the extent of her efforts to obtain the resources to pay. If Street’s failure to pay were the only grounds for revoking her probation, we would remand this case in compliance with Bear-den.
However, the trial court found that Street violated her probation by not only failing to pay costs and fees, but also because she failed to attend appointments with the court services officer. When a probationer is charged with multiple probation violations, a finding on appeal that some of the alleged violations are invalid does not necessarily invalidate the revocation proceeding. When one or more, but not all, of the findings of probation violations are set aside on appeal, the order of revocation and the sentence should be set aside and the case remanded to the trial court for a new disposition hearing, unless the record clearly shows the trial court would have made the same disposition even without consideration of the violations set aside on appeal. See State v. Ojeda, 159 Ariz. 560, 561, 769 P.2d 1006 (1989).
Here, Street admitted that she missed 11 appointments with the court services officer. As a result, although the trial court erred in not making the constitutionally required inquiry into the reasons for Street’s failure to pay, the error was harmless provided the trial court did not abuse its discretion in revoking Street’s probation for the other violations.
Street contends that the trial court abused its discretion in revoking her probation for failure to attend appointments with the court services officer because the violations are outweighed by mitigating factors. Specifically, Street argues that she missed the appointments because she was caring for her father, her son, and a friend who were ill.
Street argued to the trial court that she was unable to keep an appointment on November 18,1998, due to the death of her father 9 days earlier, and an appointment on January 13, 1999, because she was caring for her son who had appendicitis on December 25, 1998. However, Street fails to account for missing the additional nine appointments, other than to suggest she was caring for an ill friend. Because Street failed to provide sufficient mitigating factors explaining her failure to attend nine scheduled appointments, we cannot say that mitigating factors outweighed the violations of that condition of probation.
The record clearly shows that the trial court would have revoked Street’s probation even without consideration of her failure to pay costs and fees. As a result, the trial court did not abuse its discretion in revoking Street’s probation.
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Pierron, J.:
Craig E. Hogue appeals the district court’s granting of summary judgment in favor of Jeremy Johnson. The court found Hogue’s claim was barred by the statute of limitations due to untimely service of process on Johnson.
On April 13, 1995, Hogue and Johnson were involved in a two-car automobile accident which caused slight damage to both vehicles. Hogue waited to file suit against Johnson until April 10, 1997, 3 days prior to the expiration of the 2-year statute of limitations in K.S.A. 1996 Supp. 60-513. Pursuant to K.S.A. 60-203(a), Hogue had 90 days in which to obtain service on Johnson in order to have the action commenced on the date of the filing of the petition. The 90-day time period ended on July 9, 1997.
On June 30,1997, Hogue’s counsel retained Kansas Investigative Services to locate and obtain service of process on Johnson. Hogue was unable to obtain service on Johnson within the 90-day time period. On July 1,1997, Judge Lahey granted Hogue an additional 30 days from and after July 8,1997, in which to obtain service upon Johnson. Hogue was still unable to serve Johnson. On August 6, 1997, Judge Lahey entered an order pursuant to K.S.A. 60-517 that the service of process upon Johnson would not expire so long as Johnson continued to conceal himself from service of process.
Hogue continued efforts to obtain service of process on Johnson. Hogue continued the use of a private investigator. He contacted Johnson’s insurance carrier and the Kansas Department of Motor Vehicles for a possible change of address for Johnson. On October 2,1997, Hogue attempted service on Johnson by serving his father, Larry Johnson, at his residence in Wichita.
Johnson answered the petition on November 12, 1997. He argued that Hogue’s claim was barred by the statute of limitations, Hogue’s noneconomic damages were barred by the Kansas Automobile Injury Reparations Act, and there was insufficiency of process and insufficiency of service of process. On February 9, 1998, Johnson filed a motion for summary judgment, contending the service on his father was invalid and, even if valid, was outside both the 90-day and 120-day time periods provided in K.S.A. 60-203(a). Johnson also argued that Hogue had provided no evidence at the previous hearings that Johnson had absconded or concealed himself from service of process.
Judge Malone granted summary judgment to Johnson. Judge Malone found that Hogue had not obtained a private investigator until a few days before the expiration of the statute of limitations. He also found it troubling that Judge Lahey had issued an order extending the statute of limitations pursuant to K.S.A. 60-517, yet the order was obtained ex parte — no motion was filed, no hearing was held, no evidence was presented. Judge Malone acknowledged Judge Lahey’s order, but found it was not binding or controlling in the case. Judge Malone considered the evidence and determined that Johnson had never attempted to conceal himself. Judge Malone stated that just because Hogue was unable to serve Johnson did not constitute sufficient evidence that Johnson had tried to conceal himself. Judge Malone stated that the only evidence of any concealment-type activity was that Johnson’s father had given the private investigator a wrong address for Johnson, which was not an affirmative action by Johnson and was insufficient under K.S.A. 60-517.
Hogue’s only argument on appeal is that the district court erred in granting summary judgment because Judge Malone’s finding that Johnson did not conceal himself from service of process was inconsistent and irreconcilable with Judge Lahey’s earlier decision.
Since Hogue has not addressed the merits of Judge Malone’s decision, instead only arguing that Judge Malone could not contradict Judge Lahey, we agree with Johnson that Hogue has waived that issue on appeal. An issue not raised on appeal is waived or abandoned. See Pope v. Ransdell, 251 Kan. 112, 119, 833 P.2d 965 (1992). However, the two issues are related in that we must consider the appropriateness of Judge Malone’s actions. We find them well justified.
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Saliba v. Union Pacific R.R. Co., 264 Kan. 128, 131, 955 P.2d 1189 (1998).
Hogue obtained an ex parte order from Judge Lahey based merely on evidence that Hogue and/or his private investigator were unable to obtain service of process on Johnson. The only evidence of this order in the record is an entry in the appearance docket. At the hearing on the motion for summary judgment, plaintiffs counsel explained that to obtain the ex parte order he had informed Judge Lahey of his efforts to serve Johnson and that it was plaintiff s counsel’s “best belief and on good cause shown that [Johnson] was trying — was concealing himself from service of process as evidenced by the fact even his own insurance company, who I was talking to, didn’t know where he was.”
The evidence presented at the ex parte hearing was not sufficient to support a finding that Johnson absconded or concealed himself from service of process. In Johnson v. Miller, 8 Kan. App. 2d 288, 655 P.2d 475 (1982), the court granted summary judgment to the defendant based on the expiration of the statute of limitations because the only evidence submitted by the plaintiff was that she was unable to locate the defendant after fifing suit. The Johnson court stated: “The mere inability of a plaintiff to locate a defendant where there has been no attempt by defendant to conceal himself is not sufficient to establish concealment within the meaning of the tolling statute.” 8 Kan. App. 2d at 290.
K.S.A. 60-517 does not contemplate a district court issuing an ex parte order tolling the statute of limitations until service of process can be obtained on a party. Rather, K.S.A. 60-517 contemplates that a plaintiff will at all times exercise due diligence to obtain service on a defendant. If service of process is obtained outside of the 90-day or 120-day time period provided for in K.S.A. 60-203(a), a defendant can raise the affirmative defense of expiration of the statute of limitations in the first pleading filed with the court. See K.S.A. 60-208(c). The defendant has the burden to prove this affirmative defense. See Slayden v. Sixta, 250 Kan. 23, 26, 825 P.2d 119 (1992). In response, a plaintiff can then oppose imposition of the affirmative defense by asserting that the statute of limitations was tolled pursuant to K.S.A. 60-517 based on presentation of evidence that the defendant either was out of the state or absconded or concealed from service of process. K.S.A. 60-517 provides:
“If when a cause of action accrues against a person he or she be out of the state, or has absconded or concealed himself or herself, the period limited for the commencement of the action shall not begin to run until such person comes into the state, or while he or she is so absconded or concealed, and if after the cause of action accrues he or she depart from the state, or abscond or conceal himself or herself, the time of the absence or concealment shall not be computed as any part of the period within which the action must be brought.”
The plaintiff has the burden to prove the existence of facts to toll the running of the statute of limitations. Slayden, 250 Kan. at 26.
Motions under K.S.A. 60-517 are not handled on an ex parte basis. The district court must weigh all the facts in determining whether the statute of limitations was tolled while plaintiff was unable to serve a defendant. Since a defendant must take some affirmative act to conceal himself or herself from service of process, a defendant’s version of the facts is often essential for the court to make such a determination. We agree with Judge Malone’s statement at the summary judgment hearing that if a plaintiff can come before the court prior to the expiration of the statute of limitations, present a self-serving sét of facts with only an assumption of a defendant’s affirmative conceálment or absconding, and receive an order tolling the statute of limitations, then the statute of limitations is rendered meaningless.
With that background, Hogue’s only real argument on appeal is that Judge Malone could not enter findings inconsistent and irreconcilable with those made by Judge Lahey. He cites two cases for authority. In State v. Meyer, 17 Kan. App. 2d 59, 832 P.2d 357 (1992), this court reversed a decision where the trial court, in a bench trial, acquitted the defendant on charges of forgery but found him guilty on charges of issuing or delivering a forged instrument. 17 Kan. App. 2d at 61, 70. In McDonnell v. The Music Stand, Inc., 20 Kan. App. 2d 287, 886 P.2d 895 (1994), rev. denied 256 Kan. 995 (1995), we applied Meyer in the civil context. There, we reversed where a trial court granted summary judgment in favor of a music store, finding the conduct of its hired collection agency was not outrageous. Then, a week later, the trial court entered judgment against the collection agency, finding the collection agency’s conduct was outrageous. 20 Kan. App. 2d at 288, 294.
Meyer and McDonnell are not applicable. In both cases, the trial court entered inconsistent rulings that simply could not stand. Here, we do not have inconsistent rulings, we have a judge changing a previous ruling in a case after additional evidence was heard. The ability of a trial judge to change a previous ruling is clearly within the judge’s discretion. Furthermore, the appointment of a new judge does not alter this discretion. In Burrowwood Assocs., Inc. v. Safelite Glass Corp., 18 Kan. App. 2d 396, 398, 853 P.2d 1175 (1993), the court stated:
“It is axiomatic that a trial judge may reverse himself or herself during the course of an action if he or she believes an incorrect ruling has been made. Had Judge Buchanan, who heard the motion in the first place, presided over the trial, lie could have, without question, reversed himself once he was satisfied of the probability that Burrowwood would prevail. Safelite would have us deny to Judge Anderson, the assigned trial judge, the same authority Judge Buchanan would have had. This we will not do.”
It was not an abuse of discretion for Judge Malone to change Judge Lahey’s order or find that it was not binding. We find Hogue’s argument on inconsistent rulings to be unpersuasive. We also find the district court did not err in granting summary judgment to Johnson.
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PlERRON, J.:
Thomas Britt Nichols appeals the district court’s dismissal of his action against the Kansas Governmental Ethics Commission (Commission). Nichols argues the district court erred in finding he did not have standing to seek review of the Commission’s decision, that the Commission’s decision as affirmed by the district court impermissibly infringed on his constitutional rights of speech, equal protection, and association and that the district court erred in sealing the record on appeal.
The facts in this case are for the most part set forth in the Kansas Supreme Court’s recent decision of Nichols v. Kansas Political Action Committee, 270 Kan. 37, 11 P.3d 1134 (2000). In that case, Nichols sued individuals, unincorporated associations, and a corporation, alleging the defendants acted in concert to harm him by illegally contributing to the campaign of his opponent in the 1996 election for the Kansas House of Representatives seat for the 22nd District. Nichols alleged multiple violations of the Kansas Campaign Finance Act (CFA), K.S.A. 25-4142 et seq. The court rejected his claim, finding, “The Kansas Campaign Finance Act, K.S.A. 25-4142 et seq., does not create a private cause of action in favor of one aggrieved or damaged by a violation of the Act. The remedy for a violation is an administrative one.” 270 Kan. 370, Syl. ¶1-
With regard to the case at bar, in 1998, Nichols submitted numerous complaints to the Commission against the same individuals he had sued in district court. In accordance with the CFA, the Commission reviewed the complaints in executive session on November 19,1998, and found the complaints were sufficient enough to warrant an investigation of Nichols’ allegations of CFA violations. After an investigation, the Commission met in executive session on December 17, 1998, and January 21, 1999, to determine whether there was probable cause to believe the respondents had violated provisions of the CFA. The Commission dismissed the complaints against all the respondents, stating in respective dismissal orders that “the Commission found there is insufficient evidence to believe the respondent did intentionally violate K.S.A. 25-4153(a)(2), 25-4154(a), 25-4145(a) and 25-4146(c), as alleged in the complaint.”
Pursuant to the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., Nichols filed a petition for judicial review of the agency action in Shawnee County District Court. The Commission filed a motion to dismiss, claiming Nichols lacked standing to file his claim. The district court agreed with the Commission and concluded that Nichols was not an “aggrieved party” pursuant to K.S.A. 25-4185 of the CFA, and therefore he lacked standing to seek judicial review of the Commission’s decision. In dicta, the district court also stated Nichols could not meet the constitutionally required minimum standards to invoke standing.
Nichols appeals the district court’s dismissal of his case.
Nichols first argues the district court erred in finding he lacked standing to seek judicial review of the Commission’s decision.
Standing is a jurisdictional issue. See Moorhouse v. City of Wichita, 259 Kan. 570, 574, 913 P.2d 172 (1996). Whether a district court has jurisdiction is a question of law over which we exercise unlimited review. In re Marriage of Killman, 264 Kan. 33, 34, 955 P.2d 1228 (1998).
Complaints concerning violations of the CFA are submitted to the Commission, which was previously known as the Kansas Commission on Governmental Standards and Conduct. K.S.A. 1999 Supp. 25-4119a(b). Through the CFA, the legislature has granted the Commission broad interpretive, investigative, adjudicative, and enforcement powers. See, e.g. K.S.A. 1999 Supp. 25-4158; K.S.A. 25-4160; K.S.A. 25-4161; K.S.A. 25-4178; K.S.A. 1999 Supp. 25-4180; K.S.A. 1999 Supp. 25-4181; K.S.A. 25-4182-K.S.A. 25-4184.
K.S.A. 25-4160 provides that any person may file “with the commission a verified complaint in writing stating the name of any person to whom or to which the campaign finance act applies who is alleged to have violated any provision of the campaign finance act, and which shall set forth the particulars thereof.” After an individual files a complaint alleging violations of the CFA, the initial actions of the Commission are controlled by K.S.A. 25-4161, which provides as follows:
“(a) If a complaint is filed and the commission determines that such verified complaint does not allege facts, directly or upon information and belief, sufficient to constitute a violation of any provision of the campaign finance act, it shall dismiss the complaint and notify the complainant and respondent thereof.
“(b) Whenever a complaint is filed with the commission alleging a violation of a provision of the campaign finance act, such filing and the allegations therein shall be confidential and shall not be disclosed except as provided in the campaign finance act.
“(c) If a complaint is filed and the commission determines that such verified complaint does allege facts, directly or upon information and belief, sufficient to constitute a violation of any of the provisions of the campaign finance act, the commission shall promptly investigate the alleged violation.
“(d) The commission shall notify the attorney general of any apparent violation of criminal law or other laws not administered by the commission, which is discovered during the course of any such investigation.
“(e) If after the investigation, the commission finds that probable cause does not exist for believing the allegations of the complaint, the commission shall dismiss the complaint, if after such investigation, the commission finds that probable cause exists for believing the allegations of the complaint, such complaint shall no longer be confidential and may be disclosed. Upon making any such finding, the commission shall fix a time for a hearing of the matter, which shall be not more than 30 days after such finding. In either event the commission shall notify the complainant and respondent of its determination.
“(f) The remedies and protections provided by K.S. 75-2973 and amendments thereto shall be available to any state employee against whom disciplinary action has been taken for filing a complaint pursuant to this act.”
The first question for resolution on appeal concerns the situation in K.S.A. 25-4161 (e) where the Commission determines probable cause does not exist for believing the allegations in the complaint and the complaint is dismissed. Does the individual who filed the complaint have any recourse from the Commission’s order of dismissal?
Only a handful of cases have addressed the CFA and none are of much assistance to the question at hand. See Kansans For Life, Inc. v. Gaede, 38 F. Supp. 2d 928 (D. Kan. 1999); Legislative Coordinating Council v. Stanley, 264 Kan. 690, 957 P.2d 379 (1998); State v. Palmer, 248 Kan. 681, 810 P.2d 734 (1991); State v. Kearns, 229 Kan. 207, 623 P.2d 507 (1981); Governmental Ethics Comm’n v. Cahill, 225 Kan. 772, 594 P.2d 1103 (1979); State v. Doyen, 224 Kan. 482, 580 P.2d 1351 (1978); Gietzen v. Feleciano, 25 Kan. App. 2d 487, 964 P.2d 699 (1998).
The court in Nichols did not specifically address Nichols’ standing to appeal an order from the Commission, only that he should seek administrative relief. However, the court’s opinion could be read to imply that he has standing in the present case.
“The principal ground on which the district court dismissed Nichols’ action was that all counts involved alleged violations of the CFA, which implies no private cause of action. There is no private right of action under the CFA, but there is a fully articulated administrative procedure for the Commission’s receiving, inves tigating, deciding, and referring privately filed complaints. The CFA further provides that any person aggrieved by any order of tire Commission ‘may appeal such order in accordance with the provisions of the act for judicial review and civil enforcement of agency actions.’ K.S.A. 25-4185.” 270 Kan. at 54.
The district court below held the legislature’s broad delegation of powers to the Commission provided strong evidence of the intent to grant the Commission exclusive authority over CFA controversies and that the district court can only become involved in limited circumstances. Specifically, a district court’s involvement is limited to situations in which (1) the Commission has referred a violation of the CFA to the appropriate division of the attorney general’s office and to the county or district attorney who then files a criminal action in district court, (2) the Commission requests some form of enforcement assistance, (3) the respondent brings an action for malicious prosecution, or (4) an aggrieved person appeals the Commission’s order. K.S.A. 25-4162 - K.S.A. 25-4164; K.S.A. 25-4185.
Is Nichols an “aggrieved” person under the CFA? Black’s Law Dictionary 65 (6th ed. 1990), defines “aggrieved” as “[hjaving suffered loss or injury; damnified; injured.” Black’s Law Dictionary 65 (6th ed. 1990), also defines “aggrieved party” as
“[o]ne whose legal right is invaded by an act complained of, or whose pecuniary interest is directly and adversely affected by a decree or judgment. One whose right of property may be established or divested. The word ‘aggrieved’ refers to a substantial grievance, a denial of some personal, pecuniary or property right, or the imposition upon a party of a burden or obligation.”
The district court held Nichols was not an aggrieved party because the purpose of the CFA is to protect the public as a whole, and it does not confer standing to individual members of the public. See State v. Palmer, 248 Kan. at 699 (the purpose of the CFA is to “prevent unscrupulous persons and organizations from contributing unlimited sums of money in order to obtain improper influence over candidates for elective office or to affect the outcome of elections”). The district court found that Nichols, as a citizen, was a member of the public as a whole and violations of the CFA would affect the public generally and not him individually. The court cited DPR, Inc. v. City of Pittsburg, 24 Kan. App. 2d 703, 706-07, 953 P.2d 231, rev. denied 264 Kan. 821 (1998), where the court stated the “constitutionality of government action can only be challenged by a person directly affected and such challenge cannot be made by invoking rights of others.”
The district court also rejected Nichols’ claim that candidates and office holders have an additional separate and identifiable interest in the election process. The court also found that since Nichols was not a candidate or officeholder when he filed his complaints, his argument was meritless.
In fine with the district court’s decision, the Commission argues Nichols is not an aggrieved party under the CFA since he was not a candidate, nor had he been a candidate for 2 years, when he filed his complaints with the Commission. The Commission points out that Nichols was simply bringing the violations of the CFA to the attention of the Commission and was not seeking any cease and desist or restraining orders as allowed in K.S.A. 25-4182 or K.S.A. 25-4183 to prevent any ongoing violation. The Commission argues that Nichols could neither reap any personal benefit from any enforcement action taken by the Commission nor claim any personal, particularized injury by the Commission’s failure to act.
The Commission also argues Nichols lacked sufficient personal interest in the resolution of his own complaints concerning his own legislative race to warrant standing as a real party in interest. The Commission cites Doniphan County v. Miller, 26 Kan. App. 2d 669, 670, 993 P.2d 648 (1999), where the court held that standing arises where “a party has sufficient interest in a justiciable controversy to obtain judicial resolution of the controversy.” The Commission ties this definition of standing in with the recognized principle in Kansas that a “private person may not, in general, maintain an action to vindicate or enforce a mere public right in which his interest is no different than those of the public in general.” Watson v. City of Topeka, 194 Kan. 585, 587, 400 P.2d 689 (1965) (citing Dunn v. Morton County Comm’rs, 162 Kan. 449, 177 P.2d 207 [1947]).
The Commission uses an analogy of its right and ability to enforce the public’s interest in violations of the CFA as being similar to the ability of the courts and the district attorney’s office to en force the criminal code. The Commission maintains that members of the public do not have standing to challenge an adverse decision of a prosecutor not to prosecute or an adverse decision of the court that there was a lack of probable cause to believe a defendant had committed a crime.
The first problem with the Commission’s analogy is that under K.S.A. 22-2301(2), members of the general public can challenge an adverse decision by a prosecutor not to charge on a particular case. Additionally, the CFA clearly provides that “[a]ny person aggrieved by any order of the commission” can pursue an appeal pursuant to the KJRA. K.S.A. 25-4185.
The district court’s claim that a district court has extremely limited involvement in the CFA does riot conform to the Act’s general appeal provision. We are not bound by the district court’s interpretation of a statute. See Smith v. Printup, 262 Kan. 587, 604, 938 P.2d 1261 (1997). We do not believe the legislature provided for the Commission to have practically unreviewable interpretation, application, or discretionary enforcement of the CFA.
K.S.A. 25-4185 does not speak only to respondents who are punished for violating the CFA or only to orders entered after a full trial-type hearing before the Commission. Instead, K.S.A. 25-4185 allows “[a]ny person” who is aggrieved by “any order” of the Commission to appeal under the KJRA.
Nichols is an “aggrieved party” under the simplest use of that phrase. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should be. See In Re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998). Nichols filed a complaint with the Commission alleging multiple violations of the CFA in his own legislative race as a candidate. He was listed as the complainant in each case. The Commission rejected his allegations and found they lacked probable cause. Under the Commission’s interpretation of the CFA, the Commission’s dismissal of any complaint, no matter how valid, for lack of probable cause would go unchallenged. We believe the legislature neither intended nor stated such a process.
Further, to deny Nichols standing on the basis that he was not a candidate at the time he filed his complaints, and had not been a candidate for 2 years, ignores the reality that most campaign contributions in violation of the CFA are probably not discovered until after an election. Cf. Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 145 L. Ed. 2d 886, 120 S. Ct. 897 (2000) (premising cause of action on fact that statutory limitations prevents PAC from giving larger contributions in the past).
A large portion of each party’s appellate brief addresses the constitutional requirements for standing. As stated previously, the district court’s decision on constitutional standing is dicta since the court found Nichols was not an aggrieved party pursuant to K.S.A. 25-4185. However, the Commission argues that even if we find Nichols is an aggrieved party under the CFA, he must still meet the constitutional minimum standards set forth in United States v. Hays, 515 U.S. 737, 742-43, 132 L. Ed. 2d 635, 115 S. Ct. 2431 (1995), to acquire standing. The Commission relies on Families Against Corporate Takeover v. Mitchell, 268 Kan. 803, 1 P.3d 884 (2000), to support its argument.
The Commission’s cited authority does not support its premise that a person with standing pursuant to statute must still always meet the three-part constitutional test for standing under Hays. In Families Against Corporate Takeover (“FACT”), the Kansas Supreme Court reversed a district court’s decision that FACT did not have standing to seek judicial review of the Kansas Department of Health and Environment’s (KDHE) authorization of a permit for construction of a 14,300-head hog farm. 268 Kan. at 803-04. The court referenced the general standing provisions of the KJRA. Standing under the KJRA is controlled by K.S.A. 77-611, which provides:
“The following persons have standing to obtain judicial review of final or non-final agency action:
“(a) A person to whom the agency action is specifically directed;
“(b) a person who was a party to the agency proceedings that led to the agency action;
“(c) if the challenged agency action is a rule and regulation, a person subject to that rule; or
“(d) a person eligible for standing under another provision of law.”
The court in FACT found that FACT had standing under K.S.A. 77-611(b) as a “person who was a party to the agency proceedings that led to the agency action.” The court found FACT had fully participated in the agency proceedings through permit review and public comment that led to the agency’s action of granting the hog farming permit. 268 Kan. at 810. The court also noted NEA-Coffeyville v. U.S.D. No. 445, 268 Kan. 384, 996 P.2d 821 (2000), as support for its holding. We find FACT analagous to the present case.
In its decision, the district court below rejected Nichols argument that the constitutional standing requirements in Hays do not apply when standing is expressly conferred by statute — in this case K.S.A. 25-4185. The court based its decision on Lujan v. Defenders of Wildlife, 504 U.S. 555, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992). In Lujan, a group of environmentalists filed suit against the Secretary of the Interior under the Endangered Species Act of 1973 (ESA) seeking a declaratory judgment that new regulations not extending protection of the ESA to foreign nations was in error and seeking an injunction requiring the Secretary to promulgate a new regulation restoring the initial interpretations of the ESA which provided such protection. Justice Scalia, writing for the majority, concluded that the environmentalists did not have standing under the ESA. 504 U.S. at 578.
The bulk of the Lujan opinion discusses whether the environmental groups had standing to sue under the ESA and whether the groups could meet the constitutional minimum standards to acquire standing of injury in fact, causal connection, and redressability. 504 U.S. at 560-61. The Lujan Court rejected the lower court’s finding that the environmental groups had standing because they had suffered a “procedural injury.” The citizen-suit provisions of the ESA provide, in pertinent part, that “any person may commence a civil suit on his own behalf (A) to enjoin any person, including the United States and any other governmental instrumentality or agency . . . who is alleged to be in violation of any provision of this chapter.” 16 U.S.C. § 1540(g) (1994). The Lujan Court stated:
“We have consistently held that a plaintiff raising only a generally available grievance about government — claiming only harm to his and eveiy citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large — does not state an Article III case or controversy.” 504 U.S. at 573-74:
The Lujan. Court extensively discussed the separation of powers in permitting the judiciary to only hear cases and controversies as provided in Article III of the Constitution. The Court held that Congress could not convert a public interest into a private interest through the citizen suit provisions of the ESA. “Vindicating the public interest (including the public interest in Government observance of the Constitution and laws) is the function of Congress and the Chief Executive,” not the judiciary. 504 U.S. at 576.
In his concurring opinion,.Justice Kennedy stated that in exercising its powers to define injuries and causation that will give rise to Article III cases or controversies, Congress ■
“must at the very least identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit. The citizen-suit provision of the Endangered Species Act does not meet these minimal requirements, because while the statute purports to confer a right on ‘any person ... to enjoin . . . the United States and any other governmental instrumentality or agency . . . who is alleged to be in violation of any provision of this chapter,’ it does not of its own force establish that there is an injury in ‘any person’ by virtue of any ‘violation.’ 16 U.S.C. § 1540(g)(1)(A).” 504 U.S. at 580 (Kennedy, J., concurring).
In its plurality decision, the Lujan Court held that the environmental groups still must satisfy the three-part constitutional standing test despite the citizen suit provisions of thé ESA.
In the present case, the district court held the sáme is true for Nichols under the CFA. However, there áre differences that set Lujan apart from the case at bar. Here, we are dealing with an appeal from an administrative decision, whereas in Lujan the court considered an initial action filed in district- court. Second, we are dealing with the district court’s jurisdiction as provided by law in Article 3 of the Kansas Constitution, and not the cases and controversies requirement in Article III of the United States Constitution. Article 3, § 6(b) of the Kansas Constitution provides: “The district courts shall have such jurisdiction in their respective districts as may be provided by law.” Finally, under our statute, anyone can file a complaint with the Commission. In Lujan, only parties meeting the cases and controversies requirement could file a cause of action in district court.
Because we find that Nichols is an aggrieved person under K.S.A. 25-4185, he is entitled to an appeal under the KJRA. Administrative appeals pursuant to the KJRA are controlled by K.S.A. 77-621(c):
“The court 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;
“(2) the agency has acted beyond the jurisdiction conferred by any provision of law;
“(3) the agency has not decided an issue requiring resolution;
“(4) the agency has erroneously interpreted or applied the law;
“(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure;
“(6) the persons taking the agency action were improperly constituted as a decision-making body or subject to disqualification;
“(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
“(8) the agency action is otherwise unreasonable, arbitrary or capricious.”
A review of the Commission’s decision in Nichols’ situation under K.S.A. 77-621(c)(4) and (7) could certainly be made by the district court or this court on appeal with the proper record. Such a review appears to be required under the applicable statutes.
Nichols also contests certain aspects of the confidentiality provisions of the CFA. See K.S.A. 25-4161. These provisions were enacted to promote the fair investigation and enforcement of the CFA. These provisions are used to prevent public disclosure of the record during litigation. With necessary confidentiality protections in place, the Commission could turn over to the reviewing court the results of its investigation and the standards by which it judged the probable cause of Nichols’ complaint to permit a review under the KJRA. Further disclosure would not be necessary or appropriate under these facts.
Nichols also argues that if he cannot appeal the Commission’s order of dismissal, the CFA impermissibly infringes upon his equal protection, speech, and association rights as protected by the Kansas Constitution and the First Amendment to the United States Constitution.
The Commission objects to review of this issue based on Nichols failure to raise the alleged underlying constitutional violations in the district court. The Commission appears to be correct.
In any event, as stated recently in Nichols, the campaign contribution limitations of the CFA are constitutional. 270 Kan. at 42-43. See also Buckley v. Valeo, 424 U.S. 1, 20-21, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976) (a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor’s ability to engage in free communication). “[T]he weighty interests served by restricting the size of financial contributions to political candidates are sufficient to justify the limited effect upon First Amendment freedoms.” 424 U.S. at 29.
Since we find that Nichols has an appeal under the KJRA, it is not necessary to address his allegations of a violation of the rights of due process and equal protection that were premised on lack of available review.
Last, Nichols argues the trial court and this court erred in sealing the record. We disagree.
The CFA clearly provides that all records, complaints, documents, and reports filed with or submitted to or made by the Commission and all records and transcripts of any investigations, inquiries, or hearings of the Commission under the Act shall be confidential and shall not be open to inspection by any individual other than a member or employee of the Commission or a state officer or employee designated to assist the Commission. K.S.A. 25-4165. As quoted above in K.S.A. 25-4161(e), if the Commission finds probable cause exists for believing the allegations of a complaint, the complaint “shall no longer be confidential and may be disclosed.”
The confidentiality provisions serve a necessary purpose in the Commission’s investigation of complaints by helping to guard against adverse effects of false allegations against a candidate or officeholder. The exposure of confidential information could well cause harm to the Commission’s ability to conduct further investigations and obtain confidential information and could cause harm to the individual respondents whose identities would be made public by the unsealed inclusion of evidence in the record.
Nichols’ arguments concerning the requirements for entering a restraining order or injunction under K.S.A. 60-901 et seq. are not relevant. The relief entered by the courts was to seal the record and require Nichols to preserve confidentiality as per the applicable statutes.
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Gernon, J.:
The State of Kansas appeals from the dismissal of misdemeanor charges of contributing to the misconduct of a child against the defendants, William VanHecke and Thomas Gault, both of whom were high school teachers.
VanHecke was a teacher at Bishop Miege High School and had been the coach for the girls’ and boys’ cross-country team for a number of years. Gault was a forensics and drama teacher at Blue Valley High School during the 1998-99 school year. VanHecke was in his late 40s and had been married for 30 years at the time of the charges. Gault was 27 during the 1998-99 school year.
VanHecke became romantically involved with K.K. when she was a sophomore and a member of the girls’ cross-country team. K.K.’s date of birth is August 5, 1979. VanHecke made advances to K.K. and began to hug and kiss her. The activity increased during the rest of K.K.’s high school years. During the spring of 1998, when K.K. was a senior, she and VanHecke engaged in consensual sexual intercourse and oral sex, which continued during the summer after her graduation.
Gault became involved with J.T., a sophomore at Blue Valley during the 1998-99 school year. J.T.’s date of birth is December 29, 1982. J.T. would sneak out of her house, and Gault would pick her up. J.T. would often spend the night with Gault, where the two would engage in sexual activity. J.T. would then sneak back early in the morning.
K.K. eventually reported the activities with VanHecke after she left for college. J.T.’s relationship with Gault was reported to police by a school counselor.
VanHecke and Gault were each charged with contributing to the misconduct of a child, K.S.A. 2000 Supp. 21-3612.
K.S.A. 2000 Supp. 21-3612 states, in relevant part:
“(a) Contributing to a child’s misconduct or deprivation is:
(1) Causing or encouraging a child under 18 years of age to become or remain a child in need of care as defined by the Kansas code for care of children;
(2) causing or encouraging a child under 18 years of age to commit a traffic infraction or an act which, if committed by an adult, would be a misdemeanor or to violate tire provisions of K.S.A. 41-727 or subsection (j) of K.S.A. 74-8810 and amendments thereto;
“Contributing to a child’s misconduct or deprivation as described in subsection (a)(1), (2), (3) or (6) is a class A nonperson misdemeanor.” (Emphasis added.)
K.S.A. 2000 Supp. 21-3612(a)(l) refers to the child in need of care (CINC) code as an element of the offense. The CINC code provides, in relevant part:
“(a) ‘Child in need of care’ means a person less than 18 years of age who:
“(3) has been physically, mentally or emotionally abused or neglected or sexually abused.” (Emphasis added.) K.S.A. 38-1502.
“Sexual abuse” is defined in the CINC code as “any act committed with a child which is described in article 35, chapter 21 of the Kansas Statutes Annotated and those acts described in K.S.A. 21-3602 or 21-3603, and amendments thereto, regardless of the age of the child.” (Emphasis added.) K.S.A. 38-1502(c).
In dismissing the charges against VanHecke and Gault, the trial court concluded the statute under which they were charged, K.S.A. 2000 Supp. 21-3612, did not apply to their sexual activities with the 17-year-old students. Accordingly, resolution of this appeal turns upon interpretation of the relevant statutes.
The standard of review is clear. Interpretation of a statute is a question of law over which an appellate court’s review is unlimited. State v. Lewis, 263 Kan. 843, 847, 953 P.2d 1016 (1998).
The trial court dismissed the charges against the defendants, concluding (1) the legislature did not address the conduct involved in this case in the sex crime statutes; (2) the CINC code was not intended to change the criminal code on sex offenses; (3) the statutes were ambiguous and had to be strictly construed in favor of the defendants; and (4) the State’s interpretation would “criminalize behavior that our court and associates accept as pretty common occurrences between consenting older teenagers.”
The last rationale is troublesome. It seems to suggest that such sexual activity should not be recognized or prosecuted, regardless of the statutory language, if a “court and associates accept (the behavior) as pretty common occurrences between consenting older teenagers.” That is not the law.
VanHecke and Gault argued that the statute did not apply to persons engaged in sexual relations with minors who were older than 16 years of age.
The State argued K.S.A. 2000 Supp. 21-3612 applied to children under the age of 18 and incorporated the CINC code. The CINC code, in turn, defined sexual abuse as any act contrary to K.S.A. 21-3501 et seq., regardless of the child’s age. K.S.A. 38-1502(c). Therefore, the State argued that contributing to the misconduct of a minor included any sexual conduct with a person under age 18 and was simply the least serious criminal offense involving sexual activity with minors.
The trial court found the statutes involved to be ambiguous and therefore construed them in favor of the defendants. We find no ambiguity and reverse.
A plain reading of the relevant provisions in pari materia show no ambiguity. K.S.A. 2000 Supp. 21-3612(a)(l) criminalizes conduct which causes a person under the age of 18 to fall within the CINC definition of a child in need of care; a crime occurs under this statute even if the child has not been subject to a CINC proceeding or adjudged a juvenile offender. K.S.A. 2000 Supp. 21-3612(b). The CINC code defines a child in need of care to include any child under age 18 who has been subjected to sexual intercourse or unlawful sexual touching described in K.S.A. 21-3501 et seq., or the incest statutes (K.S.A. 21-3602 and 21-3603), regardless of the child’s age.
Neither the trial court nor the parties provide any alternative interpretation of the plain language of K.S.A. 2000 Supp. 21-3612(a)(1) and K.S.A. 38-1502. Instead, the defendants and the trial court choose to ignore the plain terms of the latter provision, asserting the “regardless of the age of the child” language in 38-1502(c) should not be incorporated into 21-3612(a)(l). However, under standard rules of statutory construction, the court cannot add to that which is not readily found in an unambiguous statute, nor read out what, as a matter of ordinary language, is in it. Endorf v. Bohlender, 26 Kan. App. 2d 855, 861, 995 P.2d 896 (2000).
Appellate courts are required to strictly construe criminal statutes in favor of the accused. This rule, however, is subject to the rule that judicial interpretation must be reasonable and sensible to effect the legislative design and intent. State v. Hall, 270 Kan. 194, Syl. ¶ 3, 14 P.3d 404 (2000); State v. Chaney, 269 Kan. 10, 25, 5 P.3d 492 (2000). The strict construction rule cannot be used to rewrite the plain language of criminal statutes. See State v. Bolin, 266 Kan. 18, 24, 968 P.2d 1104 (1998); State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 (1998).
VanHecke and Gault correctly note that as a general rule, specific statutes control over more general ones absent legislative intent otherwise. State v. Creamer, 26 Kan. App. 2d 914, 919-20, 996 P.2d 339 (2000). They contend that because the statutory rape and indecent liberties statutes would not apply in this case, they cannot be prosecuted for a lesser or different criminal sanction for conduct involving victims who are older than 16 and younger than 18. VanHecke and Gault’s argument is nonsensical. Under their theory, the legislature could never create different levels of crimes for the similar conduct because the most severe statutes would always control and make less serious conduct noncriminal.
The specific versus general statute principle could be applied to 21-3612 only in one context. The State could not convict a defendant of contributing to the misconduct of a minor — criminalizing sexual abuse of minors regardless of their age — if the defendant’s acts would fall within the more specific statutes of statutoiy rape or indecent liberties prohibiting sexual intercourse or touching with persons under the age of 16. See Carmichael v. State, 255 Kan. 10, 19, 872 P.2d 240 (1994) (defendant convicted of rape should have been charged with the more specific statute of aggravated incest). See also State v. Wilcox, 245 Kan. 76, 79, 775 P.2d 177 (1989) (persons accused of welfare fraud must be charged under K.S.A. 39-720 and not under K.S.A. 21-3711). Article 35 crimes would not apply in this case. Thus, there is no more specific statute to override 21-3612 here.
VanHecke and Gault further contend that the legislative intent was not to extend the “regardless of their age” provision into the criminal arena. We reject this argument. When a statute is unambiguous, appellate courts will not speculate as to the legislature’s intent but will give full effect to the intent as expressed by the words found in the statute. State v. Thrash, 267 Kan. 715, 716-17, 987 P.2d 345 (1999).
Kansas appellate courts have consistently refused to delve into legislative intent behind unambiguous statutes. See In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998); State v. Taylor, 27 Kan. App. 2d 62, 67, 998 P.2d 123, rev. denied 269 Kan. 940 (2000); In re A.C.W., 26 Kan. App. 2d 468, 472, 988 P.2d 742 (1999).
Standard rules of statutory construction teach us that the legislature is presumed to have acted with full knowledge of the subject matter of the statute and related laws. Szoboszlay v. Glessner, 233 Kan. 475, 478, 664 P.2d 1327 (1983). Thus, this court may presume the legislature was aware of the incorporation of the CINC statute into 21-3612 when it enacted House Bill 2709 in 1984, adding the language “regardless of the age of the child” to 38-1502(c). L. 1984, Ch. 153, § 1. Had the legislature intended to limit the “regardless of the age” language to the CINC statutes, it could have amended 21-3612 to include age limits such as those found in the sex crimes statutes.
The legislature did nothing to indicate that House Bill 2709 limited the language therein to CINC statutes.
This matter is reversed with directions that the cases be remanded and that the charges be reinstated consistent with this opinion. | [
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Lewis, J.;
This is a products liability action in which the plaintiff, Ronny Jackson, alleges that he was damaged by a solvent that was sold by defendants Gerald E. Thomas, d/b/a Wichita Solvent Company (WSC), and Arrowhead Marketing to his employer. Summary judgment was granted to defendants, and Jackson appeals.
Jackson had worked on automobile transmissions for many years and used a solvent to clean the automobile parts. The solvent he used was purchased by his employer from Thomas, doing business as WSC.
In Februaiy 1995, a rash developed on Jackson’s arms. On March 6,1995, Jackson went to see his family physician concerning the rash. The doctor apparently told him that he had dermatitis, which was solvent induced. The initial recommendation of the physician was that Jackson protect his skin with Vaseline before beginning work; he later recommended that Jackson wear surgical gloves at work. Jackson admits he knew after this visit that the rash was solvent induced but for some reason waited for 2 years and 12 days before filing the action.
WSC was a small, unincorporated operation owned by Thomas. It purchased solvent manufactured by a refinery at a wholesale price and resold the solvent to various buyers, including Jackson’s employer, at a retail price. Arrowhead Marketing was the company which found the refinery for WSC that offered the lowest priced solvent. WSC receives the solvent from the refinery in bulk and delivers it to its customers in a quantity requested. WSC does not and did not at any time alter, modify, or test the solvent it purchased from refineries. The record indicates that during February and March 1995, Jackson’s employer was using a solvent purchased from WSC.
Prior to Jackson’s development of dermatitis, WSC changed its solvent supplier from Texaco to either Arcadia or Kerr-McGee. Prior to this change in solvents, Jackson had used solvent purchased by his employer from WSC without developing dermatitis for 18 years.
The principal evidence in this case was given by an expert retained by Jackson, who stated in a report that the solvent used prior to the change was a 140-degree flash point solvent. The new solvent has a flash point of 100 degrees. The old solvent had a xylene content of 580 parts per million, whereas the new solvent had a xylene content of 2,000 parts per million. Despite the increase in xylene content, Jackson offered no evidence that a xylene content of 2,000 parts per million was unacceptably or dangerously high.
Jackson’s petition alleged that the solvent was defective due to an unacceptably high xylene content. This was the theory on which Jackson attempted to establish liability. Despite this claim, there is no evidence which indicated that either WSC or Arrowhead Manufacturing had any knowledge that the solvent it sold contained unacceptably high xylene content. Jackson contends WSC was neg ligent and breached implied warranties as well as a breach of warranty for a particular purpose.
In granting summary judgment to defendants, the trial court determined that any judgment against the manufacturer of the solvent would be reasonably certain of being satisfied.
The trial court granted summary judgment before discovery was totally complete. It stated that the uncontroverted statements of fact established all of the elements within K.S.A. 60-3306, the sellerá’ immunity provision of the Kansas Product Liability Act. As a result, the trial court concluded that WSC had complete immunity under the statute and was entitled to judgment as a matter of law.
Our standard of review on an issue of summary judgment is well known:
“Summaiy 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 die 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, die facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]” Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999).
“Ordinarily, summary judgment should not be granted when discovery is incomplete.” Bank IV Wichita v. Arn, Mullins, Unruh, Kuhn & Wilson, 250 Kan. 490, 498, 827 P.2d 758 (1992). Despite this general rule, if the facts pertinent to die material issues are not controverted, summary judgment may be appropriate even though discovery has not been completed. See Parker v. Farmway Credit Union, 11 Kan. App. 2d 223, 227, 718 P.2d 643, rev. denied 239 Kan. 694 (1986).
K.S.A. 60-3302(c) states:
“ ‘Product liability claim’ includes any claim or action brought for harm caused by die manufacture, production, making, construction, fabrication, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging, storage or labeling of the relevant product. It includes, but is not limited to, any action based on, strict liability in tort, negligence, breach of express or implied warranty, breach of, or failure to, discharge a duty to warn or instruct, whether negligent or innocent, misrepresentation, concealment or nondisclosure, whether negligent or innocent, or under any other substantive legal theory.”
We note that Jackson’s claims of negligence, breach of implied warranties, and failure to warn are all product liability claims as defined by the statute. In addition, the defendants were in the business of selling solvent, and they fall under the definition of “product seller.” K.S.A. 60-3302(a) defines product seller as “any person or entity that is engaged in the business of selling products, whether the sale is for resale, or for use or consumption. The term includes a manufacturer, wholesaler, distributor or retailer of the relevant product.” The Kansas Product Liability Act is, as a result, controlling over the claims involved in this action.
The principal issue we must determine on appeal is whether the defendants were immune under K.S.A. 60-3306. K.S.A. 60-3306 provides immunity to product sellers if the conditions of the statute are met. It states that a product seller shall not be subject to liability in a claim arising from alleged defects in the product if the product seller can establish:
“(a) Such seller had.no knowledge of the defect;
“(b) such seller in the performance of any duties the seller performed, or was required to perform, could not have discovered the defect while exercising reasonable care;
“(c) the seller was not a manufacturer of the defective product or product component;
“(d) the manufacturer of the defective product or product component is subject to service of process either under the laws of the state of Kansas or die domicile of the person making the product liability claim; and
“(e) any judgment against the manufacturer obtained by die person making the product liability claim would be reasonably certain of being satisfied.”
The trial court found that all five of the requirements of 60-3306 were uncontroverted facts and, as a result, granted summary judgment to the defendants. It was uncontroverted that the defendants had no knowledge that the solvent was defective because of a high xylene content, nor could WSC have discovered the defect while exercising reasonable care in the performance of any duties that it performed or was required to perform. The only way to determine the amount of xylene in a solvent under these facts would be to perform certain tests. WSC received the solvent in bulk and delivered it to the end users in smaller quantities but also in bulk. Arrowhead Marketing never had physical possession of the solvent. The record shows that neither defendant could have discovered a high xylene content. Neither WSC nor Arrowhead Marketing were manufacturers of the solvent. The manufacturers of the solvent were both subject to service of process in the state of Kansas, and the trial court concluded that any judgment Jackson may have obtained against the manufacturers would be reasonably certain of having been satisfied.
It appears to us that the legislature has decided to shift the product liability responsibility to the manufacturer of the product under the circumstances shown in this case. In other words, when the seller of the product in question was not the manufacturer and could not have discovered the defect in the product, it is immune from liability when the manufacturer of that product can be served in Kansas and when any judgment against the manufacturer would be reasonably certain of being satisfied. All of those requirements are satisfied in the uncontroverted facts in this case, and we agree with the trial court’s conclusion that the defendants in this case were immune from liability under the provisions of K.S.A. 60-3306.
Jackson argues that the defendants had access to the manufacturer’s safety data sheets and that those sheets prohibited the use for which the defendants sold the solvent. He further argued that Thomas knew that the employees of the transmission repair shop regularly inhaled and had prolonged skin exposure to the solvents he sold as they cleaned the automobile parts.
Jackson argues that WSC did not prove it had no knowledge of the defect. He suggests that the defect was not inherent in the solvent itself but was created by the seller in the manner it was used and that the seller knew that the use of the solvent for cleaning automobile parts would cause damage to individuals. Accordingly, he argues he should be able to recover under K.S.A. 84-2-315, which outlines an implied warranty of fitness for a particular purpose. The problem with Jackson’s argument is that WSC did not sell the solvent to Jackson’s employer for a particular purpose. “Particular purpose” means an unusual, nonordinary purpose. K.S.A. 84-2-315, Kansas Comment, 1996 ¶ 3; see International Petroleum Services, Inc. v. S & N Well Service, Inc., 230 Kan. 452, 461, 639 P.2d 29 (1982). WSC sold the solvent to clean automobile parts. Under the facts shown, this use would be the solvent’s ordinary purpose, and K.S.A. 84-2-315 is inapplicable when chemicals are used for their ordinary purpose. Carson v. Chevron Chemical Co., 6 Kan. App. 2d 776, 787, 635 P.2d 1248 (1981).
When the summary judgment motion was filed, it was Jackson’s duty to come forward with some evidence to establish disputed issues of material fact which had legal controlling force as to the controlling issue. He failed to do so. The record shows that Jackson admitted that the defendants had no knowledge of the defect but that the negligence came in the selection of the solvent.
We conclude that the record shows that the defendants were immune pursuant to the provisions of K.S.A. 60-3306, and we affirm the trial court’s decision granting summary judgment to the defendants.
The defendants have suggested that Jackson’s claim was not timely filed and is barred by virtue of the statute of limitations. See K.S.A. 2000 Supp. 60-513. Although we do not agree with the defendants’ arguments, we conclude that this issue is moot by virtue of the fact that we have determined that the defendants were immune from liability. Accordingly, we do not reach the statute of limitations issue.
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Buchele, J.:
On August 15,1998, the appellant, Rosa Albright, was a passenger in a vehicle that was involved in a collision at the intersection of McNew Road and Longview Road south of Hutchinson in Reno County. The appellant claims that the Kansas Department of Transportation (KDOT) is responsible for her personal injury as there was no stop or yield sign at the intersection.
In August 1998, KDOT closed the intersection of K-96 and K-17 for construction. KDOT had established an official detour around the intersection for the K-17 traffic. There was no provision for an official detour for traffic headed west on K-96 desiring to turn south on K-17 other than going 17 miles out of the way on the official detour. Access to a local business called Crupper s Corner (Cruppers) was affected by the detour. Crupper’s approached KDOT and requested permission to erect signs directing traffic to its business via county dirt roads. Permission was granted by KDOT for Crupper s to put up signs directing traffic to its place of business.
The appellant argues that KDOT “controlled” the Crupper’s detour by giving Crupper’s permission to erect the signs and requiring Crupper’s to remove some refrigerators upon which Crupper’s had painted the detour signs. Subsequent to the accident, KDOT directed Crupper’s to paint over the word “detour.” One of the signs placed by Crupper’s directed traffic off of K-96 onto Longview Road. The driver of the vehicle in which the appellant was a passenger claims he relied on this “detour” sign to get him onto Long-view Road, which was a shorter and more direct route for him to travel.
Since KDOT did not consider the Longview Road to be an official detour, KDOT had not taken any steps to erect traffic control signs at intersections.
The appellant sued KDOT alleging it was negligent in permitting an illegal and dangerous nonstatutory detour. She filed a motion for partial summary judgment claiming she was entitled to judgment as a matter of law on the unofficial detour as a nondiscretionary act, if she established that the detour was negligently established. KDOT opposed the motion, claiming the signs posted by Crupper’s were not official detour signs and, therefore, KDOT had no duty to maintain the roads with posted signs. After a hearing on the motion, the trial court found that KDOT had no duty or liability and dismissed the case.
Statutory interpretation is a question of law. Appellate review of questions of law is unlimited. See State v. Patterson, 25 Kan. App. 2d 245, 247, 963 P.2d 436, rev. denied 265 Kan. 888 (1998).
“ ‘ “It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained.” ’ [Citation omitted.] ‘When a statute is plain and unambiguous, tire court must give effect to the intention of the legislature as expressed, rather than determine what tire law should or should not be.’ [Citation omitted.] ‘[T]he legislature is presumed to intend that a statute be given a reasonable construction, so as to avoid unreasonable or absurd results.’ [Citation omitted.]” State v. Patterson, 23 Kan. App. 2d 346, 347, 930 P.2d 22 (1997).
Appellant relies on K.S.A. 68-406(c) for her position that KDOT had a duty to sign and maintain the local roads where the accident occurred. She argues that KDOT established a detour when it allowed Crupper’s to place direction signs to its business. K.S.A. 68-406(c) provides:
“The secretary of transportation may mark and maintain existing roads as detours, but detour roads shall not be part of the state highway system, except that such roads shall be marked and maintained by the secretary of transportation only until that portion of the state highway system for which such road is substituted is completed and open for travel.”
This statute provides that the Secretary of KDOT may mark roads as detours around road work on state highways. However, if these designated detour roads are marked, the Secretary must maintained the detour roads until the road work is completed. This statute alone does not answer whether KDOT created a detour within the meaning of the statute by permitting Crupper’s to erect a sign directing traffic to the business or whether KDOT owed the appellant a duty. However, when the statute is read in context of the statutory scheme, the legislature’s intent becomes clearer.
The relevant part of K.S.A. 2000 Supp. 68-2103 states:
“In all cases where any municipality or the secretary of transportation shall engage in the making of any improvement on any highway and shall not permit public use of such highway while so engaged, . . . such municipality or the secretary shall construct a detour or establish a detour route which shall at all times be passable and free from danger, and place suitable warning signs thereto, advising the public of the change in such highway; and in the nighttime, until such improvement is completed, shall keep and maintain warning lights in such manner as to warn the public of the temporary change in the highway.”
The duty to provide suitable warning signs is mandated only for detours constructed by KDOT. Giving permission for a local business to erect signs to the business does not create a duty upon KDOT to sign the routes. The signs directing traffic to Crupper’s were not an official detour, and KDOT did not have a duty to maintain the road the appellant travelled on. The detour signs placed by Crupper’s in this case would not be confused with KDOT’s signs, and a reasonable person would not assume they were on an official detour.
Absent a duty to erect signs on local roads, the discretionary function exception to the Kansas Tort Claims Act is applicable to KDOT’s authorizing a private business to erect directional signs.
K.S.A. 75-6104(e) provides that a governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from “any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved.”
In order for a court to find the discretionary function exception does not apply, it must find that KDOT violated a “legal duty” or “mandatory duty or guideline.” See Schmidt v. HTG, Inc., 265 Kan. 372, 392, 961 P.2d 677 (1998).
The appellant relies on K.S.A. 2000 Supp. 68-406(c) to pierce governmental immunity by imposing a legal duty on KDOT to maintain the roads where it had authorized signs. The appellant’s reliance on the statute is misplaced because the statute does not impose a duty on KDOT to maintain the roads due to Crupper’s signs. We find no other statute, policy manual, or guideline that removes KDOT’s discretion in granting permission to local businesses to erect signs to the businesses.
The district court did not err in granting summary judgment in favor of KDOT.
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Beier, J.:
Defendant-appellant Jerry D. Magdaleno appeals his convictions of one count of rape and two counts of aggravated indecent liberties with a child.
Magdaleno argues that (1) his right to cross-examine key prosecution witnesses was unconstitutionally limited; (2) the district court’s refusal to admit evidence of the gang affiliation of the alleged victim and her friend to show bias was improper; and (3) the prosecutor’s improper remarks during closing argument deprived him of a fair trial.
We reverse.
Magdaleno’s alleged victim, S.V., was not biologically related to Magdaleno and his wife but was raised by them as a member of their family. S.V. first learned that she was not the Magdalenos’ biological daughter when she was in the sixth or seventh grade. About the same time, according to Magdaleno’s wife, S.V. began to be a discipline problem. S.V. expressed a desire to live with her biological mother, who, according to the Magdalenos, would provide less strict supervision.
S.V. testified that Magdaleno first inappropriately touched her when she was in the second grade. The touching progressed to S.V.’s compelled masturbation of Magdaleno and eventually to intercourse, which continued, S.V. said, until she was in the sixth or seventh grade. S.V. further testified that she told Magdaleno’s wife that Magdaleno was “touching” her when she was in sixth grade, and that the wife started taking S.V. with her more often so she would not be alone with defendant. This and other efforts did not stop the abuse, S.V. said, but made it less frequent.
In the eighth grade, S.V. told a friend that Magdaleno had been touching her, and the friend testified that she encouraged S.V. to tell a social worker at school, Pam Keller. S.V. told Keller that she had been sexually abused by defendant over a period of time while she was in fifth grade, that she had told Magdaleno’s wife, and that the wife had barricaded her room with a gate and plastic bags. Keller reported this information to the Kansas Department of Social and Rehabilitation Services (SRS).
When investigators initially interviewed S.V., she told them that defendant had sexual intercourse with her on one occasion. Defendant was initially charged with aggravated indecent liberties with a child, and S.V. was moved from the Magdalenos’ home to that of her biological mother. While preparing for trial, S.V. told the prosecutor that the abuse had happened more than once. Charges were refiled, with two counts of aggravated indecent liberties with a child and one count of rape.
At trial, defense counsel examined S.V., S.V.’s friend, and defendant and his wife in an effort to establish that S.V.’s allegations were nothing more than a part of her scheme to be allowed to move to her more permissive biological mother’s home. As part of this effort, defense counsel attempted to introduce evidence of the shared gang affiliation of S.V. and her friend to show bias and motive to lie for one another. The district court disallowed this evidence.
During closing argument, defense counsel argued:
“Don’t you think that if there had been sexual intercourse a doctor, a nurse, some medical professional would be able to tell about it? And don’t you think that the State would have brought that person forward to tell you? Yeah, I did a sexual assault exam, I examined her, I could tell there had been penetration, because you know that if there was penetration on a girl in the eighth grade it’s going to show up on a medical exam.”
The prosecutor objected, saying that defense counsel knew what she was saying was not true. The court agreed and sustained the objection. Later, during the prosecutor’s closing, she argued:
“[T]his is die last time that I get to speak with you. [Defense counsel] just said in her closing arguments it’s scary, scaiy that an innocent man can be convicted of these crimes. Well, he’s not an innocent man. I’ll tell you what’s more scaiy, what’s scary is that an attorney can come up here and argue facts that she knows isn’t true.
Defense counsel objected to this statement as an attack on her, and the trial court said: “Well, why don’t you be specific about what you’re referring to.” The prosecutor was thus encouraged to continue:
“Yes, I will. The reason why I say that, ladies and gentleman, is that she spent a good period of time telling you there’s no physical evidence in this case and that diere would have to be physical evidence in this case if the defendant were really having sexual intercourse with die victim. And ladies and gentlemen, let me tell you right now that is not true. That is not true and [defense counsel] knows that diat is not true.”
After defense counsel objected again, the court directed counsel to approach the bench, and, out of the hearing of the jury, said:
“I know based on a lot of testimony diat I’ve had in diis courtroom that you don’t have to have physical evidence diat a young woman has had sex in order for diat to be true. And I assume both of you are experienced enough to know that. You were making an argument that referenced facts that were not in evidence, I’m going to give her a little bit of leeway, but not 12 minutes of it on diat issue.”
Defense counsel responded that the prosecutor should not be permitted to attack her personally, and the court directed the prosecutor to rephrase.
The members of the jury found defendant guilty of both counts of aggravated indecent liberties with a child, but they were unable to reach a unanimous verdict on the rape charge. Magdaleno subsequently entered a no contest plea to the rape charge.
Limitation of Cross Examination
The admission or exclusion of evidence rests within the sound discretion of the trial judge. State v. Davis, 256 Kan. 1, 6, 883 P.2d 735 (1994). Judicial discretion is abused only when no reasonable person would take the view adopted by the district court. State v. Williams, 268 Kan. 1, 8, 988 P.2d 722 (1999).
Defendant argues he tried to demonstrate that S.V. had a motive to fabricate these charges against him, and the district court denied him due process and a fair trial by repeatedly excluding defense evidence of bias or motive and unfairly limiting his cross-examination of key prosecution witnesses. Defendant contends the district court improperly sustained many of the State’s objections on the basis of relevance, keeping him from adequately attacking S.V.’s credibility.
Despite some limitation of cross-examination by the trial court, our review of the record persuades us that defendant was able to present his theory of defense attacking S.V.’s credibility. Defense counsel elicited testimony from several witnesses that S.V. thought the Magdalenos were too strict and that she wanted to live with her biological mother instead.
Defense counsel was permitted to cross-examine S.V. about the rules in the Magdaleno household. S.V. testified that her friends were able to do more things than the Magdalenos permitted her to do — including wearing makeup, staying out late, hanging out with certain friends, and wearing baggy clothes. S.V. also testified that she would fight with the Magdalenos because she wanted to live with her mother and said that the Magdalenos would not permit her even to see her mother.
The defense theory was further supported by the testimony of S.V.’s friend, who admitted that the Magdalenos were very strict with S.V. and that S.V. had complained. A family friend also testified that Magdaleno’s wife was a strict mother. Defendant testified that he and his wife ran a strict household, and S.V. had chores she had to do around the house. He also testified about the fights he and his wife had with S.V. over whether she would be permitted to see her mother. Magdaleno’s wife echoed this testimony and elaborated on S.V.’s rebelliousness.
All of this evidence made the essential point for the defense: S.V. was motivated to he about the abuse to further her plan to escape the rules and chores of the Magdalenos’ household. The district court did not abuse its discretion in limiting the admission of other evidence regarding whether S.V.’s dreams of more freedom had been realized. Regardless of whether things at her mother’s home turned out as S.V. expected them to, the jury could not have missed the message that S.V. had a motive to fabricate her story.
We see no abuse of discretion on this issue.
Gang Affiliation Evidence
Magdaleno next argues that the district court improperly excluded evidence that S.V. and her friend shared a gang affiliation. As with the first issue, our standard of review is abuse of discretion. State v. Valdez, 266 Kan. 774, 796, 977 P.2d 242 (1999).
Defendant contends' evidence of gang involvement was relevant to show two things. First, it would have demonstrated that S.V. had a strong motive to fabricate the charges so she could adopt the gang lifestyle. Second, the evidence of the girls’ shared gang membership would show their bias and willingness to he for one another, undercutting the credibility of both of them.
The first argument lacks merit. The district court excluded evidence of a photograph of S.V. wearing gang clothing and flashing a gang sign, and it did not allow defense counsel to ask S.V. if she went by a gang name. These decisions, as discussed above, did not prevent Magdaleno from advancing his theory that S.V. fabricated the accusations to enable her to move to her mother’s home and enjoy less supervision. Again, the fact that her hopes were realized was irrelevant.
Magdaleno’s second argument on this issue has merit. In Kansas, evidence of gang membership is admissible if relevant. State v. Jamison, 269 Kan. 564, 7 P.3d 1204 (2000). For example, we have permitted prosecutors to admit gang evidence to show motive for an otherwise inexplicable crime. Valdez, 266 Kan. at 796. We have also permitted the State to admit evidence of gang membership to demonstrate witness bias. State v. Roaden, 26 Kan. App. 2d 441, 445, 988 P.2d 745, rev. denied 268 Kan. 894 (1999). As the Kansas Supreme Court has stated:
“The probative value of evidence of gang membership as it pertains to witness bias is high. In United States v. Abel, 469 U.S. 45, 49, 83 L. Ed. 2d 450, 105 S. Ct. 465 (1984), the United States Supreme Court held that evidence of gang membership is probative of witness bias, and that ‘[pjroof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’ testimony. 469 U.S. at 52.” State v. Knighten, 260 Kan. 47, 54, 917 P.2d 1324 (1996).
We can see no principled distinction between allowing the State to use evidence of a witness’ shared gang membership with a defendant to show bias and allowing defense counsel to use evidence of a witness’ shared gang membership with a victim to show bias. We therefore hold that it was an abuse of discretion for the district court to exclude evidence placing S.V. and her friend in the same gang. Mere proof of their friendship would not have the same impact. As our Supreme Court has noted, “[s]imple friendship does not create the same inference of incentive to protect another person that is created by evidence of membership in the same gang.” 260 Kan. at 55. Magdaleno is entitled to reversal of his convictions on this basis.
Closing Argument
Magdaleno’s last argument is that the prosecutor’s accusatory statements regarding defense counsel constituted gross misconduct and deprived him of a fair trial.
“An appellate court’s analysis of the effect of a prosecutor’s allegedly improper remarks in closing argument is a two-step process: First, the appellate court must determine whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. Second, the appellate court must determine whether the remarks constituted plain error. [Citation omitted.]” State v. Finley, 268 Kan. 557, 571-72, 998 P.2d 95 (2000).
“ ‘ “When determining whether prosecutorial misconduct was prejudicial, factors that should be considered include: (1) Is the misconduct so gross and flagrant as to deny the accused a fair trial? (2) Do the remarks show ill will on the prosecutor’s part? (3) Is the evidence against the defendant of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors? [Citations omitted.]” ’ ” State v. Lockhart, 24 Kan. App. 2d 488, 491, 947 P.2d 461, rev. denied 263 Kan. 889 (1997).
“In deciding whether improper remarks by the prosecution during closing argument constitute harmless error, the reviewing court must be able to find that the error had little, if any, likelihood of changing the result of the trial. Such a belief must be declared beyond a reasonable doubt.” State v. Gibbons, 256 Kan. 951, Syl. ¶ 9, 889 P.2d 772 (1995).
Recently in State v. Pham, 27 Kan. App. 2d 996, 10 P.3d 780 (2000), this court found that the same prosecutor essentially called defense counsel a liar by making statements during closing argument that defense counsel did not “want the truth,” that defense counsel did not “care about the truth,” and “if you’re going to be looking at the credibility of the witnesses, you might also start with some of these lawyers.” 27 Kan. App. 2d at 1005. This court found these statements reflected both ill will on the part of the prosecutor and gross and flagrant misconduct that denied defendant a fair trial. 27 Kan. App. 2d at 1005.
Likewise, in Lockhart, the prosecutor suggested that defense counsel lied on behalf of his client in closing argument, and after a sustained objection, the prosecutor again said defendant and defense counsel had lied. The district court ordered the statement stricken, but it did not instruct the jury to disregard the remark.
This court viewed “the prosecutor’s comments referring to the defendant and the defense counsel as liars to be serious breaches of the standard of fair comment permitted to lawyers when making closing arguments.” 24 Kan. App. 2d at 492. We found the pros ecutor’s statements were gross and flagrant, and we found ill will on the part of the prosecutor for repeating the statement after the district court sustained the objection. In addition: “When a prosecutor’s statement transcends the limits of fair discussion of the evidence and the trial judge fails to instruct the jury to disregard the remark after the defense counsel objects, a new trial is required to assure the constitutional right to a fair trial.” 24 Kan. App. 2d at 493.
In this case, the prosecutor labeled defense counsel a liar by saying, “I’ll tell you what’s more scary, what’s scary is that an attorney can come up here and argue facts that she knows isn’t true.” After defense counsel objected to this statement as a personal attack, the district court compounded the problem rather than curing it by telling the prosecutor to be more specific as to what she was talking about. The prosecutor again told the juiy defense counsel was lying by referring to her statement regarding a lack of medical evidence and saying “let me tell you right now that is not true. That is not true and [defense counsel] knows that that is not true.” After another objection, the district court told the prosecutor to rephrase the comment, but the court did not instruct the jury to disregard the statements. It was the trial court’s duty to do so. See State v. Majors, 182 Kan. 644, 648, 323 P.2d 917 (1958) (duty of trial court to “try to stop the unprofessional discussion of the county attorney”; when attempt fails, juiy should be admonished).
Under both Pham and Lockhart, the statements made by the prosecutor suggesting that defense counsel lied to the jury reflected ill will on the part of the prosecutor toward the defendant, and they constituted gross and flagrant misconduct. Because the comments were limited in number, this error standing alone might not have merited reversal. However, our Supreme Court has recognized the cumulative error rule:
“Cumulative trial errors, when considered collectively, may be so great as to require reversal of die defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied him a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant. [Citations omitted.]” Valdez, 266 Kan. at 802.
In Pham, this court found cumulative trial errors, including an improper admission of gang membership and prosecutor misconduct, collectively required reversal of Pham’s conviction. 27 Kan. App. 2d at 1006-07. In this case, the prosecutor’s closing remarks cannot be characterized as harmless when combined with the trial court’s abuse of discretion in excluding evidence of the girls’ shared gang affiliation.
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GREEN, J.:
The adoptive parents of D.S.D. appeal the trial court’s order assessing as costs to them a portion of the biological father’s attorney fees. On appeal, the adoptive parents argue that the trial court lacked the statutoiy authority to assess attorney fees against them. We disagree and affirm.
The adoptive parents sought to adopt their grandchild. Although the biological mother executed a consent to the adoption, the biological father objected. Under K.S.A. 59-2136(h), the trial court appointed an attorney to represent the biological father in the proceeding to terminate his parental rights. After a hearing on the matter, the trial court terminated the biological father’s parental rights. The order of termination was not appealed by the father and the adoption was finalized. In a post-adoption order, the trial court assessed as costs a portion of the biological father’s attorney fees against the adoptive parents.
The adoptive parents contend that the trial court erred in ordering them to pay attorney fees for the biological father’s counsel. A court lacks authority to assess attorney fees under its equitable powers absent statutory authority. United States Fidelity & Guaranty Co. v. Maish, 21 Kan. App. 2d 885, 905-06, 908 P.2d 1329 (1995). Here, whether the trial court had the authority to impose attorney fees is a question of law; our review is plenary. See Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998).
When an indigent parent asserts parental rights in an adoption proceeding, a trial court is required under K.S.A. 59-2136(h) to appoint an attorney to represent the indigent parent. The statute, however, does not specify how the court-appointed attorney is to be compensated. The trial court relied on K.S.A. 59-2134(c) in assessing the indigent father’s attorney fees against the adoptive parents. The statute provides that “[t]he costs of the adoption proceedings shall be paid by the petitioner or as assessed by the court.” The trial court determined that the fees for the court-appointed attorney may be assessed as costs under this statute.
Absent express statutory authority, attorney fees are not part of costs. See Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 700, 366 P.2d 219 (1961). Attorney fees may be chargeable as costs where specific statutory provisions allow for recovery. See Allison v. Board of Johnson County Comm’rs, 241 Kan. 266, 269, 737 P.2d 6 (1987). Examples of legislative enactments which have specifically addressed attorney fees in relationship with costs include K.S.A. 2000 Supp. 61-2709(a) (appeals from small claims court), K.S.A. 2000 Supp. 60-1610(b)(4) (divorce actions), K.S.A. 2000 Supp. 60-2006(a) (motor vehicle negligence cases), and K.S.A. 38-1122 (determination of parentage cases).
Here, although K.S.A. 59-2134(c) does not specifically address attorney fees in relationship with costs, to determine whether the legislature intended attorney fees to be included as costs we must consider the entire act. See KPERS v. Reimer & Roger Assocs., Inc., 262 Kan. 635, 643, 941 P.2d 1321 (1997). We interpret articles 1 and 2 of chapter 59 as general provisions applicable to all cases arising under that chapter, including adoption cases. In support of this reading, we note that several statutes in those articles make specific reference to adoption matters. See K.S.A. 2000 Supp. 59-104(a); K.S.A. 2000 Supp. 59-212(a)(2); K.S.A. 2000 Supp. 59-214.
K.S.A. 2000 Supp. 59-104 provides for docket fees and court costs for those cases filed under chapter 59, including adoption cases. Section (d) of that statute states, in part, that “[ojther fees and expenses to be assessed as additional court costs shall be approved by the court, unless specifically fixed by statute. Other fees shall include, but not be limited to . . . attorney fees" (Emphasis added.)
When K.S.A. 59-2134(c) is read in conjunction with K.S.A. 2000 Supp. 59-104(d), it is apparent the legislature intended that the fees of an attorney appointed to represent an indigent biological parent could be included as costs that may be assessed against a petitioner in an adoption proceeding. As a result, the trial court had the authority to tax the fees of the biological father’s court-appointed attorney against the adoptive parents because specific statutoiy provisions allow for the assessment of such attorney fees as costs.
In further support of this determination, we note that the legislature did not create a provision in the Adoption and Relinquishment Act providing for payment of an indigent parent’s court-appointed attorney by the county as suggested by the adoptive parents. Legislative intent for payment of attorney fees by the county in other matters are, however, expressly stated elsewhere in our code. For example, payment of certain attorney fees from the county’s general fund is provided in the Kansas Parentage Act, K.S.A. 38-1122 (providing for payment of an indigent party’s portion of reasonable fees of counsel and a child’s guardian ad litem from the county’s general fund); the Kansas Juvenile Offenders Code, K.S.A. 38-1613(b) (providing for payment of court-appointed attorney fees from the county’s general fund in juvenile offender cases); and the Kansas Code for Care of Children, K.S.A. 38-1505(e); K.S.A. 38-1511(b) (providing for payment of fees for a child’s guardian ad litem or attorney appointed for parents from the county’s general fund). Because the legislature did not specify that the attorney fees of an indigent parent are to be paid by the county and, instead, expressly provided in K.S.A. 2000 Supp. 59-104(d) and K.S.A. 59-2134(c) that attorney fees may be assessed as costs, the trial court had the authority to order the adoptive parents to pay the fees for the biological father’s court-appointed attorney.
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Elliott, J.:
Following the affirmance by the Kansas Supreme Court of his convictions of first-degree premeditated murder and aggravated kidnapping, see State v. Cellier, 263 Kan. 54, 948 P.2d 616 (1997), Lance C. Cellier filed a K.S.A. 60-1507 motion based on five allegations of ineffective assistance of counsel. He appeals the denial of his motion. We affirm.
A thorough understanding of the factual and procedural background of the criminal trial underlying this 60-1507 action as documented in the Supreme Court’s opinion is important in understanding the arguments Cellier now advances. Throughout this opinion, the “1507 court” refers to the district court which heard the 1507 motion and the “trial court” refers to the court which heard the underlying criminal trial.
For present purposes, the two landmark cases on the issue of ineffective assistance of counsel are Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, reh. denied 467 U.S. 1267 (1984), and Chamberlain v. State, 236 Kan. 650, 694 P.2d 468 (1985). Strickland announced the now familiar test of evaluating a claim of ineffective assistance of counsel. A defendant must show: (1) counsel’s performance “fell below an objective standard of reasonableness,” 466 U.S. at 688, and (2) the deficient performance prejudiced the defendant, 466 U.S. at 694.
Regarding the “performance prong,” our Supreme Court wrote in Chamberlain:
“The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. 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 court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” 236 Kan. at 656-57.
Chamberlain also set forth the generally applicable standards for evaluating the prejudice prong as follows:
“ 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. at 657.
We need not address the performance prong if the defendant fails to prove prejudice. State v. Pink, 236 Kan. 715, 732, 696 P.2d 358 (1985), overruled in part on other grounds State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986).
As with all applications of the Strickland test, whether a defendant has made the requisite showing depends on the facts of the particular case. See Strickland, 466 U.S. at 695-96. When, as here, the 60-1507 court has made findings of fact and conclusions of law, this court on appeal reviews whether the decision reached by the trial court follows as a matter of law from the facts stated as its basis and also whether the facts so stated have any substantial support in the evidence. State v. Orr, 262 Kan. 312, 322, 940 P.2d 42 (1997). We do not reweigh the testimony or the credibility of witnesses. At the same time, our review of the performance and prejudice components remains de novo as mixed questions of law and fact. 262 Kan. at 322. We now turn to Cellier s five claims.
Was trial counsel ineffective when counsel failed to preserve one issue for direct appeal?
The trial court denied Cellier’s motion to suppress four statements made to police. Cellier, 263 Kan. at 63. The Supreme Court refused to address Cellier’s appeal of that ruling because trial counsel did not properly object at trial to the admission of the statements. 263 Kan. at 65 (citing State v. Milo, 249 Kan. 15, 18, 815 P.2d 519 [1991]) (“When . . . a motion to suppress is denied, the moving party must object to the evidence at trial to preserve the issue on appeal.”). Cellier now argues trial counsel was ineffective by failing to preserve the issue for appellate review.
Following an evidentiary hearing on Cellier’s K.S.A. 60-1507 motion, the 1507 court held that while counsel breached an essential duty in failing to object to the admission of the evidence, there was no prejudice because “the statements were knowingly and voluntarily made in compliance with the Miranda requirements”; thus, “there was not a reasonable probability that the trial court’s suppression of the defendant’s confession would have been overturned [on appeal].”
Cellier argues the 1507 court erred because counsel’s deficient performance is ineffective per se and prejudice is presumed. As noted above, the State does not contest the 1507 court’s finding that trial counsel breached an essential duty; thus, the only issue is whether Cellier suffered prejudice. We begin by addressing what prejudice Cellier must demonstrate.
Generally, in order to demonstrate prejudice, a defendant must show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Roe v. Flores-Ortega, 528 U.S. 470, 145 L. Ed. 2d 985, 120 S. Ct. 1029 (2000). This showing of prejudice is required in cases where the defendant’s claim involves counsel’s performance during the course of a legal proceeding, either at trial or on appeal. In these cases involving mere “attorney error,” the defendant is required to demonstrate die errors “ ‘actually had an adverse effect on the defense.’ ” 528 U.S. at 482 (quoting Strickland, 466 U.S. at 693). Thus, if Cellier’s claim is one where reliability is presumed, he then must show, but for counsel’s failure to object, he would have prevailed on appeal. See, e.g., Jackson v. Shanks, 143 F.3d 1312, 1320 (10th Cir. 1998).
The United States Supreme Court has noted, however, two types of cases when the strong presumption of reliability gives way and prejudice is presumed because “the adversary process itself [is] presumptively unreliable.” United States v. Cronic, 466 U.S. 648, 659, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984). First, prejudice is presumed when there has been a complete denial of counsel. See Penson v. Ohio, 488 U.S. 75, 88-89, 102 L. Ed. 2d 300, 109 S. Ct. 346 (1988). Second, prejudice is presumed when there are “various kinds of state interference with counsel’s assistance.” Strickland, 466 U.S. at 692. In these two types of cases, prejudice is presumed because a “case-by-case inquiry into prejudice is not worth the cost.” 466 U.S. at 692 (citing Cronic, 466 U.S. at 658). Further, these impairments of the right to effective assistance of counsel are easily identified and easy for the government to prevent because the prosecution is directly responsible. Strickland, 466 U.S. at 692.
The United States Supreme Court has further noted two types of cases where a “similar, though more limited, presumption of prejudice” is warranted. Strickland, 466 U.S. at 692. The first of these two situations occurs when “counsel is burdened by an actual conflict of interest.” 466 U.S. at 692. In this situation, “[prejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’ ” 466 U.S. at 692 (quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 64 L. Ed. 2d 333, 100 S. Ct. 1708 [1980]).
Flores-Ortega illustrates the second situation where a more limited presumption of prejudice is warranted. There, the habeas cor pus petitioner alleged counsel was ineffective for failing to file a notice of appeal. In discussing prejudice, the Court stated counsel’s deficient performance deprived the defendant “of more than a fair judicial proceeding; that deficiency deprived [the defendant] of the appellate proceeding altogether.” 528 U.S. at 483. The Court stated this case was unusual because “counsel’s alleged deficient performance arguably led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself,” the appeal process. 528 U.S. at 483. In these circumstances, the Flores-Ortega Court held there cannot be “any presumption of reliability’ ... to judicial proceedings that never took place.” 528 U.S. at 483 (quoting Smith v. Robbins, 528 U.S. 259, 286, 145 L. Ed. 2d 756, 120 S. Ct. 746 [2000]).
While holding in these circumstances a defendant need not make a further showing of prejudice with respect to the reasonable probability of success on appeal on the underlying merits of his claim, a defendant must still show “a reasonable probability that, but for counsel’s deficient failure to consult with him about an appeal, he would have timely appealed.” Flores-Ortega, 528 U.S. at 484. This is because “counsel’s deficient performance must actually cause the forfeiture of the defendant’s appeal. If the defendant cannot demonstrate that, but for counsel’s deficient performance, he would have appealed,” he has not been deprived of anything and is not entitled to relief. 528 U.S. at 484 (citing Peguero v. United States, 526 U.S. 23, 143 L. Ed. 2d 18, 119 S. Ct. 961 [1999]). Otherwise stated, “when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal.” Flores-Ortega, 528 U.S. at 484.
Cellier contends he need only show he would have appealed the denial of his motion to suppress because like the Flores-Ortega situation, his trial counsel’s deficient performance effectively denied him an appellate proceeding on the merits of his appeal. If Cellier’s analogy to Flores-Ortega is correct, then he has succeeded on his claim of ineffective assistance of counsel because he did attempt to appeal the merits of the denial of his motion to suppress. See Cellier, 263 Kan. at 62-66.
The Seventh Circuit was presented with a similar question in Kitchen v. United States, 227 F.3d 1014 (7th Cir. 2000). In Kitchen, the defendant filed a post-trial, pre-appeal motion for new trial based on newly discovered evidence. The motion was denied. On direct appeal, the conviction was affirmed in part and reversed in part. United States v. Kitchen, 57 F.3d 516 (7th Cir. 1995). On remand, the defendant filed a motion to vacate his sentence, alleging counsel was ineffective in failing to appeal the denial of his motion for a new trial.
After holding counsel was deficient, the Seventh Circuit declined to extend Flores-Ortega. The Seventh Circuit noted prejudice is presumed when there is a complete denial of counsel, meaning “the defendant never receive [d] the benefit of a lawyer’s services in constructing potential appellate arguments.” Kitchen, 227 F.3d at 1021 (quoting Castellanos v. United States, 26 F.3d 717, 718 [7th Cir. 1994]). The critical factor identified by the Seventh Circuit is the difficulty “for a court to evaluate the likelihood of success on appeal when the potential issues on that appeal were never identified.” Kitchen, 227 F.3d at 1021. Because counsel’s deficient performance did not force the court “to employ [its] imagination[] to determine what appealable issues were present,” this did not present “a situation as one in which [defendant] was ‘abandoned’ by his attorney or the denial of counsel on appeal was ‘complete.’ ” 227 F.3d at 1021. Rather, counsel’s deficient performance
“foreclosed our review of one issue — whether Kitchen was entitled to a new trial on the basis of newly discovered evidence. This is unlike the situation in which die possible issues on appeal have not even been identified by an advocate, and prejudice must be presumed. [Citation omitted.] Here, the abandoned issue has been clearly defined, and no reason has been offered why any prejudice resulting from its abandonment may not be reliably determined.”
Kitchen, 227 F.3d at 1021. The Seventh Circuit then analyzed the claim to determine whether an appeal based on the denial of that motion could have resulted in reversal.
Here, the crucial question is whether Cellier’s claim warrants the “limited” presumption of prejudice as described in Flores-Ortega or the generally applicable presumption of reliability. The answer to this question, in turn, hinges on whether a presumption of reliability may be accorded to appellate proceedings that took place on some, but not all, of the issues Cellier wished to advance. See Flores-Ortega, 528 U.S. at 483-84 (requiring a showing of “actual” prejudice when the proceeding in question is presumptively reliable, but presuming prejudice when violation of the right to counsel rendered the proceeding “entirely nonexistent”). For the reasons that follow, we find the Seventh Circuit’s reasoning persuasive.
Appealing an issue not preserved and failing to file a notice of appeal results in similar outcomes. In both situations, one issue or all issues are procedurally barred from a decision on the merits. However, it is not the similarity in outcomes that must be examined. The Flores-Ortega Court was not concerned with the outcome, but rather, it was concerned with the unfairness of requiring “an indigent, perhaps pro se, defendant to demonstrate that his hypothetical appeal might have had merit before any advocate has ever reviewed the record ... in search of potentially meritorious grounds for appeal.” Flores-Ortega, 528 U.S. at 486. As the Seventh Circuit recognized, this is not a situation where the defendant was “ ‘abandoned’ by his attorney or the denial of counsel on appeal was ‘complete.’ ” Kitchen, 227 F.3d at 1021. As noted in Strickland, prejudice is only to be presumed where “[prejudice ... is so likely that case-by-case inquiry into prejudice is not worth the cost.” Strickland, 466 U.S. at 692. Here, Cellier has offered no reason why prejudice is likely to occur or why we may not reliably determine if he has incurred any prejudice. We thus turn to the question of whether, but for counsel’s unprofessional error, there is a reasonable probability the conviction would have been reversed on appeal.
On appeal of the denial of his K.S.A. 60-1507 motion, Cellier only argues the Supreme Court would have overturned the trial court’s ruling that he voluntarily, knowingly, and intelligently waived his Miranda rights. Thus, only Cellier’s second, third, and fourth statements as described in the Supreme Court’s opinion need be considered, as the first statement was not preceded by a Miranda warning. See Cellier, 263 Kan. at 62-63.
Both the Fifth and Fourteenth Amendments to the United States Constitution require that a confession be voluntary before it can be admitted into evidence. Dickerson v. United States, 530 U.S. 428, 147 L. Ed. 2d 405, 120 S. Ct. 2326 (2000). After the warnings as described in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), have been given, an individual may knowingly and intelligently waive his constitutional rights and agree to answer questions or make a statement. State v. Lewis, 258 Kan. 24, 31, 899 P.2d 1027 (1995). The burden is on the State to prove a knowing and voluntary waiver of Miranda rights. State v. Hedges, 269 Kan. 895, 8 P.3d 1259 (2000).
Essential to this inquiry is the determination the statement was the product of the free and independent will of the accused. State v. Esquivel-Hernandez, 266 Kan. 821, 825, 975 P.2d 254 (1999). In this vein, coercive police or State activity is an essential and necessary predicate to finding a confession is not “voluntary” within the meaning of the Fourteenth Amendment. State v. Snodgrass, 252 Kan. 253, 259, 843 P.2d 720 (1992) (citing Colorado v. Connelly, 479 U.S. 157, 93 L. Ed. 2d 473, 107 S. Ct. 515 [1986]). As the United States Supreme Court explained, “[o]nly if we were to establish a brand new constitutional right — the right of a criminal defendant to confess to his crime only when totally rational and properly motivated — could respondent’s present claim be sustained.” 479 U.S. at 166. The Kansas Supreme Court has recognized only one exception to this rule — a statement may be involuntary and, thus, inadmissible if the defendant is found to be insane under the M’Naughten test, even absent State coercion. Snodgrass, 252 Kan. at 261 (citing State v. Boan, 235 Kan. 800, 804, 686 P.2d 160 [1984]).
If this were on direct review, the Kansas Supreme Court would have accepted the trial court’s determination that Cellier’s statements were freely and voluntarily given if that determination was supported by substantial competent evidence. See Esquivel-Hernandez, 266 Kan. at 826. The Supreme Court would not have rew eighed the evidence. See Hedges, 269 Kan. at 908-09. Finally, we note the “harmless error” doctrine has no application to this question. Use of an involuntary statement against a criminal defendant is a denial of due process of law, even though there is ample evidence aside from die confession to support the conviction. Esquivel-Hernandez, 266 Kan. at 825.
The 1507 court, after listening to the tapes of the interviews and applying the Supreme Court’s scope of review noted above, found there was no reasonable probability the trial court’s suppression of the defendant’s confession would have been overturned, because the tapes “are compelling evidence that Cellier had the mental capacity to appreciate and understand the Miranda warnings and, therefore, the statements were knowingly and voluntarily made in compliance with the Miranda requirements.” There was no finding of police or State coercion.
The tapes relied on by the 1507 court in finding a knowing and voluntary waiver were not included in the record on appeal. Cellier has the burden of furnishing a record affirmatively showing the prejudicial error of the 1507 court. See Esquivel-Hernandez, 266 Kan. at 827. Absent the tape or even a transcript of the confession on appeal, we presume the 1507 court’s factual finding was correct that Cellier had the mental capacity to appreciate and understand the Miranda warnings. Absent the tapes, we are in no position to determine whether there were coercive police practices in obtaining the confession and, thus, affirm the 1507 court’s holding.
Was counsel ineffective in failing to call certain witnesses at the motion to suppress?
Cellier next contends trial counsel was ineffective by failing to call any witnesses at the suppression hearing to testify about his mental state when he waived his Miranda rights. At the 1507 hearing, Dr. Wurster, a psychiatrist, opined on the day of the murder that Cellier was incapable of “making rational statements, rational decisions, rational judgments.” Dr. Wurster concluded that because of Cellier’s irrational, psychotic, and delusional behavior, Cellier was unable to knowingly and intelligently waive his Miranda rights. Dr. Wurster also testified he had reported this conclusion to defense counsel prior to the hearing on the motion to suppress but was not called to testify. Cellier’s defense counsel testified at the 1507 hearing he could not recall why he did not call Dr. Wurster to testify at the suppression hearing.
The 1507 court found defense counsel was not constitutionally ineffective and Cellier did not suffer any prejudice. Without addressing the performance prong, we find for the reasons discussed below, Cellier suffered no prejudice. To prove prejudice, Cellier must show, but for counsel’s unprofessional conduct, there is a reasonable probability the result of the proceeding would have been different. Strickland, 466 U.S. at 694. In the context of the challenge brought here, Cellier must show not only that the evidence would have been suppressed, but also that the result of the trial would have been different. See Kimmelman v. Morrison, 477 U.S. 365, 379-80, 91 L. Ed. 2d 305, 106 S. Ct. 2574 (1986).
The witnesses Cellier now complains counsel failed to call at the suppression hearing would only have testified as to Cellier’s ability to knowingly and intelligently waive his Miranda rights. We have held that Cellier has failed to prove any police coercion in obtaining the statements now challenged. Therefore, we must determine whether there was a reasonable probability that the testimony of these witnesses would have established Cellier was legally insane pursuant to the M’Naughten test. See Snodgrass, 252 Kan. at 261 (holding one must prove police coercion before a statement is involuntary, unless one is legally insane).
At the 1507 hearing, Cellier presented no new testimony on the issue of legal insanity (other than that cumulative evidence noted below in Issue 4). For the reasons stated in the Supreme Court’s decision holding there was sufficient evidence of Cellier’s legal sanity, we find there is no reasonable probability that had Cellier presented expert testimony on the issue of insanity at the motion to suppress, the motion would have been granted. See Cellier, 263 Kan. at 72-73. Given these facts, we find no reasonable probability the trial court would have granted the suppression motion even if the defense had presented testimony on the issue of Cellier’s legal sanity.
Further, even if the three statements had been suppressed as a result of these witnesses’ testimony, there is no reasonable probability the outcome of the criminal trial would have been different because there was overwhelming evidence outside those three statements that Cellier committed the crimes charged. As noted above, Cellier only challenges his ability to waive his Miranda rights. Therefore, only the second, third, and fourth statements Cellier made to police, i.e., those statements made after Cellier was read his Miranda rights, are at issue.
As noted in the Kansas Supreme Court’s opinion on Cellier’s direct appeal, Cellier, covered with blood, voluntarily entered the Lyon County Sheriff s office and told Officer Eric Brunner he had shot the victim, Scott Payton, in self-defense. Cellier, 263 Kan. at 57. Cellier then voluntarily directed the Lyon County Sheriff to the scene of the crime, and, upon arrival and confirmation that the victim was dead, stated: “I shot him, I shot him.” Cellier, 263 Kan. at 58. It was only at this time that Cellier was first advised of his Miranda rights, and Cellier made the statements whose admission he now challenges. See Cellier, 263 Kan. at 58.
The only significant pieces of information that came of the three Mirandized interviews that would not have been before the jury had those statements been suppressed is Cellier’s recantation of his claim of self-defense and his statements to police that he knew shooting the victim was wrong. 263 Kan. at 58-62. There was, however, overwhelming evidence outside these three statements that the act was not one of self-defense and that he was not legally insane at the time of the shooting.
First, the testimony of Nishantha Pitigala and Donald Miles as described in the Supreme Court’s decision of Cellier’s direct appeal is overwhelming evidence outside the three challenged statements that- this was not an act of self-defense.
We also find there is no reasonable probability the admission of the three statements had any impact on the jury’s finding of legal sanity. In this regard, the only statement that would not have been before the jury was Cellier’s statement he knew what he did was wrong. On direct appeal, Cellier contended the evidence was insufficient for the jury to find beyond a reasonable doubt that he was sane at the time of the murder or that he was guilty of premeditated murder and aggravated kidnapping. In rejecting this argument, the Kansas Supreme Court did not discuss his statements during the third interview that he knew what he had done was wrong. In fact, the Kansas Supreme Court relied little on any evidence coming from those three interviews that otherwise would not have been before the jury via the subsequent psychiatric evaluations in finding “Cellier knew the nature and quality of his act and knew right from wrong with respect to that act.” 263 Kan. at 72. We also note the State’s expert, who opined Cellier was legally sane at the time of the shooting, relied primarily on his own examination of Cellier. The expert never stated he relied on Cellier’s statement obtained during those interviews that he knew what he was doing was wrong when he did it. We find, beyond a reasonable doubt, that the statements in question did not have any impact on the expert’s opinion or on the jury’s verdict.
We, therefore, believe there is no reasonable probability the outcome of the trial would have been any different had counsel called the witnesses and the trial court suppressed the statements. Cellier, therefore, suffered no prejudice from counsel’s failure to call these witnesses at the suppression hearing. This claim of ineffective assistance of counsel must fail.
Was counsel ineffective in failing to pursue a diminished mental capacity defense?
Cellier next contends counsel was ineffective in failing to pursue the defense of diminished mental capacity. The 1507 court ruled: “Although it certainly would have been better practice for trial counsel to request the diminished capacity instruction,” Cellier did not suffer prejudice and, therefore, the court denied this ground of Cellier’s 1507 motion.
The concept of diminished capacity requires the presence of a mental disease or defect not amounting to legal insanity that the jury may consider in determining whether the defendant had the required specific intent for the crime charged. State v. Wilburn, 249 Kan. 678, 686, 822 P.2d 609 (1991); see PIK Crim. 3d 54.12-B. Cellier’s defense counsel testified at the 1507 hearing that while Cellier knew and understood the diminished capacity defense and believed it applied, he could not remember why it was not pursued. The State’s brief apparently concedes the 1507 court’s finding that it would have been better practice to request the diminished capacity instruction. We, therefore, will presume counsel was deficient in failing to pursue this defense.
Cellier must still show, but for counsel’s failure to pursue the defense of diminished mental capacity and a juiy instruction on the defense, there is a reasonable probability the result of the trial would have been different. Cellier presented no evidence either at the criminal trial or the 1507 hearing that he did not have the ability to form the specific intent required by the aggravated kidnapping statute, that specific intent being “to inflict bodily injuiy or to terrorize the victim.” K.S.A. 21-3420, K.S.A. 21-3421. It clearly appears from the facts of this case that in fact it was the intent of Cellier “to inflict bodily injury or to terrorize the victim” in taking and confining the victim by force, threat, or deception. Since he did in fact form that specific intent, it necessarily follows he had the ability to form specific intent. There is no likelihood the jury would have found he was able to form one specific intent (to inflict bodily injuiy) while at the same time unable to form a different specific intent (to kill). It may well be that Cellier did not in fact specifically intend to kill the victim with the first shot, but there is strong evidence he did form that specific intent on the second and third shots. Nonetheless, the question is not whether he did in fact form the specific intent, but rather, whether he had the ability to form the specific intent. The finding he did form one specific intent is almost irrefutable evidence he had the ability to form another specific intent. Cellier suffered no prejudice.
Was counsel ineffective in failing to call certain witnesses at trial?
Cellier next claims trial counsel was ineffective in failing to present several witnesses who could have testified as to Cellier’s mental state at the time of the shooting. Cellier identifies 11 such witnesses. They include mental health professionals, family, friends, and acquaintances. The 1507 court held counsel’s conduct was not deficient because these witnesses could only have provided evi dence that was cumulative in nature to evidence already before the jury. It is thus necessary to examine what evidence was put on at trial with respect to Cellier’s mental illness and then compare it to the testimony Cellier now faults counsel for failing to present.
At trial, Cellier s history of mental illness was chronicled by the professional opinions of Doctors Wurster, Polom, and Lacoursiere. This testimony was supplemented by the lay testimony of two of Cellier s friends, Nishantha Pitigala and Donna Miles, the two officers who initially interviewed Cellier and called the county attorney for advice due to concerns of delusional problems, attorney Ty Wheeler, who represented Cellier during the care and treatment case, Chris Criner, who was an intern at the Mental Health Center of East Central Kansas and was assigned to work with Cellier during the care and treatment case, and the care and treatment case file. The Supreme Court’s decision noted that “[t]he sole focus of the trial was Cellier’s mental state.” Cellier, 263 Kan. at 62.
Comparatively, at the 1507 hearing, Cellier presented the professional testimony of Dr. Bao Duong, who diagnosed Cellier as a paranoid schizophrenic 3 months before the shooting. Through the testimony of his criminal trial counsel, Cellier also established that three other mental health professionals had diagnosed him as paranoid schizophrenic, two of them making this diagnosis after the shooting. Cellier also presented the testimony of seven lay witnesses, mostly family members, who testified about Cellier’s bizarre behavior throughout his childhood and in the months before and after the shooting. Defense counsel did not interview Dr. Duong and four of the lay witnesses prior to trial.
Cellier contends the failure to investigate, interview, and call witnesses whose testimony could be favorable to the defense position is “patently ineffective advocacy” such that the prejudice prong of the Strickland analysis need not be demonstrated. To support this proposition, Cellier cites King v. State, 810 P.2d 119 (Wyo. 1991). In King, the Wyoming Supreme Court held prejudice is presumed when counsel unjustifiably fails to interview and secure witnesses for trial who could have rebutted testimony of the prosecution’s witnesses. 810 P.2d at 122-23. This court recently required a defendant to prove prejudice when counsel unreason ably failed to contact and interview alibi witnesses. See State v. Sanford, 24 Kan. App. 2d 518, 523-26, 948 P.2d 1135, rev. denied 262 Kan. 968 (1997). Cellier s allegations of ineffectiveness do not rise to a complete denial of counsel, where prejudice is to be presumed. See Penson v. Ohio, 488 U.S. 75, 102 L. Ed. 2d 300, 109 S. Ct. 346 (1988). Thus, in order to prove prejudice, Cellier must demonstrate, but for counsel’s failure to investigate and call these witnesses, there is a reasonable probability the outcome of the trial would have been different.
We agree with the 1507 court that Cellier failed to demonstrate this prejudice. Cellier’s delusional behavior and beliefs were well presented to the juiy, both by the defense and State’s cases. The testimony of the lay witnesses at the 1507 hearing was not significantly different or more expansive than that offered at the criminal trial. The record also reveals the State presented evidence of Cellier’s paranoid schizophrenia; thus, the expert testimony offered at the 1507 hearing would also have been cumulative in nature. We can, therefore, say there is no reasonable probability the outcome could have been different had this testimony been presented to the jury. This claim fails.
Was counsel ineffective in failing to pursue a motion to recuse the trial judge?
Cellier’s last claim of ineffective assistance of counsel is based on counsel’s failure to file a motion with the administrative/chief judge pursuant to K.S.A. 20-311d(b) when the criminal trial judge denied Cellier’s motion to recuse. The criminal trial judge in this case presided over Cellier’s mental health commitment and ordered Cellier released from the state hospital 2 months prior to the shooting. Cellier offers three reasons why the recusal should have been pursued. First, the judge might have had an interest in guarding from criticism his decision to release Cellier 2 months prior to the shooting; second, the effect on the jury of the judge’s previous ruling that Cellier was sane enough to be released; and third, the judge was part of the system that had failed Cellier, which was the theme of the defense. Thus, the juiy may have felt a finding of insanity would be like “indicting the very judge sitting on the case.”
We agree with the 1507 court’s finding that the abandonment of the motion to recuse was a reasonable strategic decision and, thus, his claim must fail. See Flores-Ortega, 528 U.S. at 479 (“we have held that the Federal Constitution imposes one general requirement: that counsel make objectively reasonable choices.”).
Trial counsel testified at the 1507 hearing that after discussing the matter with Cellier, the defense chose not to pursue the motion to recuse the trial judge in order to pursue a strategy that the judge was on their side. That strategy was to argue to the jury that the judge only approved of Cellier’s release from Topeka State Hospital upon the condition Cellier took his medication. Cellier did not take his medication and, thus, this judge must believe Cellier was insane when the shooting occurred.
This strategy was consistent with the defense of legal insanity. We conclude this strategy falls within the wide range of reasonable conduct. Counsel was not ineffective.
Finally, we are compelled to comment on the State’s scant brief. After receiving three extensions of time within which to file its brief, the former county attorney filed his brief 2 days late; the argument section of the brief contains a mere eight paragraphs. Further, the argument section consists mainly of case citations describing our standards of review.
This apparent lack of interest in the proceedings was also recognized by the 1507 trial judge, who stated review of the case was “made even more difficult by the failure of the State to present evidence and arguments to support it’s [sic] claim that Cellier had the effective assistance of counsel.”
On this appeal, the State’s brief was of very little, if any, assistance to the court. See Seaton v. State, 21 Kan. App. 2d 104, 105, 998 P.2d 131 (2000); State v. Law, 203 Kan. 89, 92-93, 452 P.2d 862 (1969).
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Green J.:
Plaintiff Travis Wright appeals from the decision of the trial court granting summary judgment in favor of the defendants, Unified School District No. 379 (U.S.D. No. 379), Benny Wallace, and Keith George. Wright sued the defendants, claiming that the proximate cause of his injury was the negligence of the defendants in allowing Wallace, who was a former high school wrestler, to wrestle Wright. Defendants moved for summary judgment, maintaining that they were immune from liability under K.S.A. 75-6104(0), the recreational use exception of the Kansas Tort Claims Act. Although the trial court initially granted defendants’ motion, the trial court later reversed itself. The trial court had determined that K.S.A. 75-6104(o) was only applicable to outdoor areas, and since the wrestling room was not outdoors, defendants were not immune from liability under the recreational use exception. Later, the trial court granted defendants’ motion for summary judgment based on the discretionary function exception. Defendants cross-appeal from the judgment of the trial court denying their summary judgment motion on different grounds.
The issues are: (1) Whether the defendants are immune from liability under the recreational use exception of K.S.A. 75-6104(o); and (2) if they are, whether the trial court erred in denying the defendants’ motion for summary judgment on those grounds. We conclude that the trial court should have granted the defendants’ motion based on the recreational use exception. As a result, we affirm in part and reverse in part.
During February 1996, Wright was a student at Clay Center Community High School, a high school under the control of U.S.D. No. 379 and operating under the laws of the State of Kansas. Wright was participating in wrestling practice under the direction of Keith George, Wright’s wrestling coach. George was an employee of U.S.D. No. 379. Wallace, a former student at Clay Center Community High School, was asked by George to come wrestle Wright because there was no one on the team with Wright’s size and wrestling skills. As Wallace and Wright were wrestling, Wallace placed a move on Wright which caused a severe injury to Wright’s left knee. When the accident occurred, George and his assistant coach were wrestling other students.
The practice and injury occurred in the wrestling room, which is in the southeast corner of the gym, adjacent to the weight room, and connected to the weight room by common double doors. The wrestling room, weight room, and gym are physically connected and are considered part of the school’s physical education facility.
The gym, wrestling and weight rooms, and the surrounding outdoor areas are open to the public for activities. The gym is utilized by the public for kids’ wrestling, drill team, professional wrestling, twirling, alumni basketball, tournaments, and pep rallies. The surrounding outdoor areas have been utilized by the public for tennis, flag football, golf, camping for Bike Across Kansas, and walking and jogging on the track. The wrestling and weight rooms have been utilized by the public for weightlifting, aerobics, and wrestling activities. The school district’s general policy for use of its areas is that unless an organized school activity is utilizing those areas, they are open to the public. When a school activity is occurring in one area, the other areas are simultaneously open for public use.
K.S.A. 75-6104 provides, in pertinent part:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
“o) any claim for injuries resulting from the use of any public property intended or permitted to be used as a park, playground or open area for recreational purposes, unless the governmental entity or an employee thereof is guilty of gross and wanton negligence proximately causing such injury.”
Wright argues the wrestling room is not a “park, playground or open area” within the meaning of K.S.A. 75-6104(o). He also urges this court to remand for a determination of whether any alleged recreational use intended or permitted in the wrestling room was more than incidental.
Our Supreme Court, in Jackson v. U.S.D. 259, 268 Kan. 319, 995 P.2d 844 (2000), recently resolved this issue. In Jackson, the plaintiff was injured while he participated in a required physical education class at a Wichita middle school. The teacher allowed students to use a large wooden springboard to catapult themselves into the air to try to touch the basketball goal rim or dunk the basketball. Jackson was injured attempting this act.
The Jackson court held that the indoor high school gymnasium was an “open area” for the purposes of K.S.A. 75-6104(o). 268 Kan. at 325. Jackson specifically rejected the argument that the application of K.S.A. 75-6104(o) was limited to outdoor areas. “It defies common sense to hold that K.S.A. 75-6104(o) provides immunity from injuries which occur on a football field, a baseball field, a track and field area, and a sledding area, but not on an indoor basketball court solely because it is indoors.” 268 Kan. at 325. Accordingly, it also defies common sense to hold K.S.A. 75-6104(o) provides immunity from injuries which occur in a gymnasium but not in a wrestling room. Jackson further emphasized that the injury need not be the result of participating in “recreation” so long as the injury results on public property “ Intended or permitted to be used ... for recreational purposes.’ ” 268 Kan. at 326.
Finally, a remand of this case is unnecessary because the record in the present case contains sufficient factual information about the use of the Clay Center Community High School wrestling room. The wrestling room and weight room are connected by common double doors. The wrestling room, weight room, and gym are physically connected and considered part of the high school’s physical education facility. Along with physical education activities during the school day, the wrestling and weight rooms have been utilized by the public for weightlifting, aerobics, and wrestling activities. The gymnasium has been used by the public for kids’ wrestling, drill team, professional wrestling, twirling, alumni basketball, tournaments, and pep rallies. It is the school district’s general policy that unless an organized school activity is utilizing the aforementioned areas, they are open to the public. When a school activity is occurring in one area, the other areas are simultaneously open for public use. Further, the wrestling room is obviously the location where wrestling practice is held. Being a member and practicing with the school wrestling team is a noncompulsoiy, extracurricular activity which, unlike compulsory physical education, is considered a recreational activity.
As a result, we determine that the wrestling room was permitted to be used for recreational purposes and that such use was more than incidental.
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Beier, J.:
Plaintiff SOS Tele-Data, Inc. (SOS), appeals the district court’s ruling granting summary judgment in favor of Hartford Insurance Group (Hartford) in this declaratory judgment action and directing SOS to pursue a garnishment action. Hartford cross-appeals the district court’s ruling that it is estopped from litigating issues already decided in a liability action against its insured and the court’s finding that it participated in certain settlement negotiations.
The parties’ various arguments require us to answer four questions:
• Did the district court abuse its discretion by dismissing SOS’s declaratory judgment action and finding that a garnishment proceeding was a more appropriate avenue for SOS to pursue?
• Did the district court find that Hartford breached its duty to defend SOS’s judgment debtor, Aselco, Inc. (Aselco)?
• What consequences follow from an insurance company’s breach of its duty to defend and its failure to reserve its rights under the policy?
• Did the district court err in finding that Hartford attended settlement negotiations in die underlying litigation?
Hartford insured Aselco under a commercial general liability policy. Hartford is a foreign insurance corporation registered to do business in Kansas. Aselco is a Maryland corporation with its principal place of business in Maryland.
The Hartford policy applied to “ ‘[advertising injury’ caused by an offense committed in the course of advertising [Aselco’s] goods, products or services.” It defined “[advertising injury” to include: “injury arising out of . . . [misappropriation of advertising ideas or styles of doing business.” The beginning date on the policy was August 1, 1994, and its ending date August 1, 1995.
Aselco had no insurance from August 1, 1995, until December 1, 1995. It then obtained insurance from Maryland Casualty Insurance Company (Maryland Casualty) until December 1, 1996.
In February 1996, SOS, a Colorado corporation with its principal place of business in Harbinger, North Carolina, filed a civil action against Aselco and several of its officers and employees in state court in Johnson County, Kansas. SOS alleged defendants had misappropriated information concerning telecommunications products from March 4, 1995, to December 31, 1997.
Aselco first notified Hartford of the lawsuit in June 1997. Hartford denied Aselco’s tender of defense. Maryland Casualty also denied a duty to defend or indemnify Aselco but provided a defense under a reservation of rights.
Maryland Casualty filed this declaratory judgment action against Aselco in October 1997 to determine if it had a duty to defend in the underlying litigation. Aselco brought in Hartford as a third-party defendant, and SOS was granted leave to intervene. Aselco eventually filed a petition for bankruptcy in February 1998.
On August 14 and 15,1998, SOS, Aselco, and Maryland Casualty participated in settlement negotiations in the underlying litigation. They reached a settlement agreement under which Maryland Casualty agreed to pay $300,000 to SOS, and Aselco agreed to an entry of judgment against it for $1.5 million.
A few days later, one judge of the district court presided over an abbreviated trial in which he took judicial notice of the volumes of depositions, pleadings, and exhibits filed in the case. Only one witness testified, and his testimony was limited to the amount of SOS’s damages. As previously agreed by the parties, the judge found Aselco liable to SOS in the amount of $1.5 million for a pattern of continuing tortious conduct that began before March 4, 1995, and continued until at least December 31, 1997.
The judge also made the following pertinent findings:
“On plaintiffs claim for misappropriation, the Court finds that Aselco: 1) misappropriated SOS’ advertising ideas or styles of doing business . . . f) [A]s part of defendant’s advertising and marketing activities, defendant created marketplace confusion as to SOS, its goods and services, and its ability to provide those goods and services.”
Two days later, Hartford was notified of the judgment against Aselco in the underlying litigation. Hartford did not attempt to file a motion for new trial or a motion to modify the judgment in the underlying litigation.
The next month, Maryland Casualty dismissed its portion of the declaratory judgment action against Aselco. SOS was granted leave to file a petition seeking indemnification against Hartford in the declaratory judgment action a month later, and the parties were realigned, with SOS and Aselco as the plaintiffs and Hartford as the defendant. Hartford and Aselco later reached an agreement in which Aselco agreed to dismiss its petition in declaratory judgment and release all claims against Hartford for an undisclosed sum. This left only the parties to this appeal in the declaratory judgment action: SOS as plaintiff and Hartford as defendant.
Hartford filed a motion for summary judgment, arguing that SOS should be forced to pursue any remedy through a garnishment proceeding rather than through a declaratory judgment action. SOS sought partial summary judgment on the issue of whether Hartford was collaterally estopped from relitigating issues decided in the underlying litigation.
After two hearings on the cross-motions, a different district judge issued her ruling. She held that Hartford was bound by what she saw as the noncollusive judgment entered in the underlying litigation, including “a determination that one of the torts committed by Aselco involved advertising injury.” She described its policy as an “occurrence policy” that “only provides coverage for acts or offenses which occur while the policy was in effect” and continued:
“The issue that is not resolved by this decision is a factual one. Clearly . . . [the] decision [of the judge who heard the underlying litigation] was that the tortious conduct took place over a period that far exceeded tire period when Hartford’s policy was in effect. His decision was that Aselco engaged in tortious conduct from March 4, 1995 to December 31, 1997. Of that approximately thirty-four month period, Hartford only insured Aselco until August 1, 1995, approximately five months.
“This Court’s ruling is that the factual issue of how to apportion the total damages assessed by [the judge who heard tire underlying litigation] between Hartford, Maryland Casualty, and Aselco, which acted as a self-insurer for a period of some four months, is a factual issue which should be determined in a garnishment proceeding. A garnishment proceeding is more appropriate to the determination of factual issues tiran is a declaratory judgment action, and [the judge who heard tire underlying litigation] is much more conversant with the facts of the underlying case and will therefore be able to make a more informed decision about what portion of the total judgment is covered by Hartford’s policy.
“. . . Obviously, the portions of the damage judgment for offenses occurring after August 1, 1995, are outside the coverage, and Hartford should not be held liable for that portion of the judgment.”
SOS filed a motion to alter or amend judgment, arguing that the court erred in finding that Hartford was not responsible for those portions of the damages related to offenses occurring after August 1, 1995. The judge refused to amend her journal entry on that point.
Declaratory Judgment Action v. Garnishment Proceeding
The entertainment of a declaratory judgment action rests within the discretion of the district court. Wichita Computer & Supply, Inc. v. Mulvane State Bank, 15 Kan. App. 2d 258, 260-61, 805 P.2d 1255, rev. denied 248 Kan. 999 (1991). Judicial discretion is not abused if reasonable persons could disagree as to the propriety of the decision of the district court. State v. Ford, 23 Kan. App. 2d 248, 251, 930 P.2d 1089 (1996), rev. denied 261 Kan. 1087 (1997). However, “[t]he discretion lodged within a court is not a boundless, but a judicial, discretion. It is a discretion limited to sound judgment to be exercised, not arbitrarily, but with regard to what is right and equitable under the circumstances and the law.” State v. Collins, 195 Kan. 695, 700, 408 P.2d 639 (1965).
SOS argues the district court abused its discretion by forcing it to file a garnishment to obtain a remedy. It contends that this decision would unnecessarily prolong the litigation and that issues of insurance coverage are routinely determined in declaratory judgment actions. SOS is correct.
“Any person having an interest under a . . . written contract ... or whose rights, status or other legal relations are affected by 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 [in a declaratory judgment action].” K.S.A. 60-1704.
In addition, the existence of a factual issue or issues is no obstacle to pursuit of a declaratory judgment action. Such issues “may be tried and determined in the same manner as issues of fact in other civil actions in the court in which the proceeding is pending.” K.S.A. 60-1710. Despite Hartford’s reliance on it, Alliance Mutual Casualty Co. v. Bailey, 191 Kan. 192, 198, 380 P.2d 413 (1963), is not authority for the contrary proposition. It was decided before the effective date of the Kansas Declaratory Judgment Act (Act), K.S.A. 60-1701 et seq., which governs this case, and even it includes language acknowledging that a declaratory judgment proceeding in which questions of fact are incidental to the determination of the main issue may be maintained. 191 Kan. at 200-01.
The Act also provides that the existence of another adequate remedy is no basis for rejecting or short-circuiting declaratory relief in cases where it is appropriate. K.S.A. 60-257.
The district judge relied primarily on a federal district court case to find that a garnishment would be a more appropriate avenue for SOS. Although it is true that the cited federal decision, Sapp v. Greif, 961 F. Supp. 243, 246, (D. Kan. 1997), stated: “Kansas law provides that a garnishment action is the proper procedure for determining a garnishee-insurer’s liability” (emphasis added), the case it cited, Bergeson v. Dilworth, 749 F. Supp. 1555 (D. Kan. 1990), aff'd 959 F.2d 245 (10th Cir. 1992), relied in turn upon Gilley v. Farmer, 207 Kan. 536, 544, 485 P.2d 1284 (1971). 749 F. Supp. at 1558. In Gilley, our Supreme Court found only that “[ujnder the circumstances . . . garnishment was a proper procedure for determining the garnishee’s indebtedness.” (Emphasis added.) 207 Kan. at 544. Furthermore, neither Sapp nor Bergeson nor Gilley is authority on its facts for granting summary judgment to a defendant in a long-pending, fully developed and discovered declaratory judgment action so that a garnishment action addressing the same issues can be instituted against it by the same opponent.
Kansas appellate decisions also provide ample support for SOS’s contention that insurance coverage issues are frequently determined in declaratory judgment actions. See Garrison v. State Farm Mut. Auto. Ins. Co., 258 Kan. 547, 907 P.2d 891 (1995) (insurers bringing declaratory judgment action seeking determination that policies did not provide personal injury protection or liability coverage); State Farm Fire & Cas. Co. v. Martinez, 26 Kan. App. 2d 869, 995 P.2d 890, rev. denied 269 Kan. 934 (2000) (insurer bringing declaratory judgment action against insured business owner to determine whether insured had coverage under business liability policy); State Farm Ins. Co. v. Gerrity, 25 Kan. App. 2d 643, 968 P.2d 270 (1998), rev. denied 267 Kan. 890 (1999) (insurer seeking declaratory judgment on whether homeowner’s personal liability umbrella policies provided coverage for claims arising from insured’s sexual molestation of minor victim).
Here, SOS’s original petition in the declaratory judgment action sought resolution of the question of whether Hartford bore a duty to defend and indemnify Aselco in the underlying litigation and definition of the contours of Hartford’s obligation to pay the judgment entered against Aselco. SOS, as judgment creditor, clearly had a potential interest in the Hartford policy, and it was entitled to a determination of its legal rights to any insurance proceeds.
This determination could have been made through a declaratory judgment action or as a garnishment proceeding. Given that each was an avenue properly available to SOS, and that it selected declaratory judgment and proceeded to litigate its claims fully for more than 2 years, we view the district judge’s belated decision to jettison that action in favor of a yet-to-be-filed garnishment as an abuse of discretion. It simply did not reflect “sound judgment to be exercised, not arbitrarily, but with regard to what is right and equitable under the circumstances and the law.” Collins, 195 Kan. at 700. Even if it was true that the judge who heard the underlying litigation was more familiar with the facts of the case, the less drastic action of a transfer back into his division could have been pursued rather than forcing the litigants and counsel to make additional substantial expenditures of time and resources in a new action. This portion of the judgment granted below must be reversed.
Breach of Duty to Defend
We must next address the question of whether the district court determined that Hartford breached its duty to defend Aselco. Hartford asserts that this issue remains to be decided.
SOS’s motion for partial summary judgment argued that Hartford was collaterally estopped under Kansas law from relitigating issues from the underlying action because it failed to provide a defense to its insured. In Hartford’s response to this motion, all of its legal arguments proceeded from the assumption that there was a duty to defend in this instance. Hartford made several arguments as to why it was not bound by the underlying judgment and how it was still entitled to litigate coverage issues, but it did not argue what it now argues on appeal: that Maryland law controls on the issue of whether it had a duty to defend and that genuine issues of material fact remain on the existence of that duty.
At the summary judgment hearings, the judge stated: “In my mind, at least at this point, it’s pretty clear to me that Hartford had a duty to provide a defense in this case, and they didn’t do it.” Hartford’s counsel responded that the outcome on that issue would depend on whether Maryland or Kansas law applied, and he referred the judge to his brief. However, as mentioned, the choice of law issue was not addressed in the brief. Instead the brief s arguments proceeded from the assumption that such a duty existed and had been breached.
In its amended journal entry, the district court did not make explicit findings that Hartford had a duty to defend Aselco and breached it. Rather, the judge discussed the duty to defend and consequences that flow from its breach, citing Patrons Mu. Ins. Ass'n v. Harmon, 240 Kan. 707, 709-711, 732 P.2d 741 (1987), regarding collateral estoppel. The court went on to find, under Kansas law, that Hartford had the opportunity but did not provide a defense and that Hartford was bound by the judgment in the underlying litigation. What is not explicit is therefore implicit: According to the district judge, Hartford had a duty to defend and breached it. Otherwise, the decision that Hartford was bound by the underlying judgment would be factually unsupported.
We uphold these implicit findings for procedural and substantive reasons.
Procedurally, we need not address issues not raised before the district court. Lindsey v. Miami County National Bank, 267 Kan. 685, 690, 984 P.2d 719 (1999). As noted, Hartford did not rely on its choice of law argument below. In addition, Hartford attempts to raise the choice of law issue on appeal only in response to SOS’s allegation that the judge misinterpreted the policy’s wording. If it was interested in obtaining reversal of the judge’s implicit findings on the duty to defend and its breach, it should have cross-appealed on this issue. It did not do so. See Otta v. Johnson, 204 Kan. 366, 367, 461 P.2d 758 (1969).
Nevertheless, because these implicit findings are relevant to the next issue, we address their merits as well.
First, we observe that the district judge was correct in employing Kansas law to determine the existence of the duty to defend. “The law of the place of performance determines the manner and method as well as the legality of the acts required for performance.” Restatement (First) of Conflict of Laws § 358, comment (a) (1934). Because Hartford’s performance of its duty to defend would have taken place in Kansas, Kansas law governs the determination of the existence of the duty.
The district court was also correct in its application of Kansas law. In Steinle v. Knowles, 265 Kan. 545, 554, 961 P.2d 1228 (1998), our Supreme Court described when an insurer has a duty to defend:
“ ‘Under the present code of civil procedure, an insurer must look beyond the effect of die pleadings and must consider any facts brought to its attention or any facts which it could reasonably discover in determining whether it has a duty to defend. If those facts give rise to a “potential of liability,” even if remote, under die policy, the insurer bears a duty to defend. MGM, Inc. v. Liberty Mut. Ins. Co., 253 Kan. 198, 202, 855 P.2d 77 (1993). The duty to defend rests primarily on die possibility that coverage exists, and the possibility of coverage must be determined by a good faith analysis of all information die insurer may know or could have reasonably ascertained. If ambiguities in coverage, including exclusionary clauses, are judicially determined against the insurer, the ultimate result controls the insurer’s duty to defend. [Citation omitted].’ ” (Quoting Spivey v. Safeco Ins. Co., 254 Kan. 237, 245-46, 865 P.2d 182 [1993].)
Here, it is clear that Hartford had some “potential of liability” under Aselco’s policy. The petition alleged that Aselco had misappropriated SOS’s trade secrets, including customer and supply lists. The evidence obtained in discovery indicated that Aselco had copied SOS’s line card and put its letterhead in place of that of SOS. Line cards are used to inform potential purchasers of the products that suppliers sell, essentially functioning as catalogs. There was at least a “potential of liability” under the language of the Hartford policy, giving rise to a duty to defend under Kansas law, and there is no dispute that Hartford refused to provide a defense to Aselco. The district judge’s implicit findings in this regard are affirmed.
Consequences of Breach of Duty to Defend and Failure to Reserve Rights
Because the district court has determined that Hartford bore a duty to defend and breached it, the court must then determine the character and extent of the consequences that flow from the breach and Hartford’s failure to reserve its rights. Although the district judge began this analysis, in our view, she did not complete it, and we remand for a decision following the pattern outlined below.
Kansas state and federal courts have discussed three possible consequences of an insurer’s breach of its duty to defend and its failure to reserve its rights under the policy.
1. Damages in Excess of Policy Limits
The first consequence is that an insurer can be held liable for damages in excess of policy limits. In Snodgrass v. State Farm Mut. Auto. Ins. Co., 15 Kan. App. 2d 153, Syl. ¶ 7, 804 P.2d 1012, rev. denied 248 Kan. 997 (1991), this court found:
“An insurer who wrongfully declines to defend and who refuses to accept a reasonable settlement within the policy limits in violation of its duty to consider in good faith the interest of the insured in the settlement is liable for the entire judgment against the insured even if it exceeds the policy limits.”
However, a failure to defend, without a settlement offer, does not alone justify judgment in excess of the policy limits. George R. Winchell, Inc. v. Norris, 6 Kan. App. 2d 725, 729, 633 P.2d 1174, rev. denied 230 Kan. 817 (1981). Thus, in determining whether a judgment in excess of policy limits is a possible or actual consequence of Hartford’s breach, the court must decide if a settlement offer was in fact made and rejected in bad faith.
2. Collateral Estoppel
Second, under Kansas law, as the district judge realized, an insurer is collaterally estopped from relitigating issues that were actually litigated and determined in the underlying litigation. In Patrons, the court found that, because Patrons had failed to provide its insured with a defense or reserve its rights under its policy, it was collaterally estopped from relitigating the issue of the insured’s intent in a subsequent action. 240 Kan. at 710.
The answers to three questions are pertinent to whether an insurer is bound by decisions on issues decided in the underlying litigation: “Was the issue decided in the prior adjudication identical with the one presented in the action in question? Was there a final judgment on the merits? Was the party against whom the claim is asserted a party or in privity with a party to the prior adjudication?” 240 Kan. at 711.
As we see it, Hartford was in privity with Aselco as its insurer, but there was a prior adjudication and final judgment in the underlying litigation on only two issues: (1) Aselco’s liability to SOS for certain torts; and (2) the existence of consequential damages in the amount of $1.5 million. Under Patrons, Hartford is bound by these two determinations. We do not, however, agree with SOS that Hartford is also bound to a finding that the damages arose from an “advertising injury,” as that phrase is employed in the Hartford policy. We do not believe that issue was actually litigated in the underlying case. The necessity of reaching the issue now is subject to our determination of whether Kansas law requires application of the third possible consequence in Hartford’s situation.
3. Equitable Estoppel
The third of the possible consequences involves the applicability of the doctrine of equitable estoppel. Before we can ask the district judge to rule upon which policy defenses Hartford can invoke in this case, we must determine whether Kansas law prohibits an insurer in its position from raising any at all as a consequence of its failure to defend and reserve its rights.
Judge Lungstrum opined on his perceptions of Kansas authority on this point in Johnson v. Studyvin, 828 F. Supp. 877, 886-87 (D. Kan. 1993). In that case, he concluded that an insurer was not estopped from raising policy defenses:
“The Johnsons argue that, if given the opportunity, Kansas would adopt a rule of law that if an insurer breaches its duty to defend its insured from some claim, it is estopped from denying coverage for that claim. The court disagrees. The Johnsons have not cited any authority that Kansas courts have adopted or are inclined to adopt such a rule. Such a rule is a minority position among the states. See R. Jerry, Understanding Insurance Law, § 111[6] at 581 (1987).
“Kansas courts have addressed situations in which this rule could have been applied if the courts were so inclined but have not done so. In Spruill Motors Inc. v. Universal Underwriters Ins. Co.[,] 212 Kan. 681, 512 P.2d 403 (1973), the insurer breached its duty to defend the insured but the Kansas Supreme Court dealt with the merits of the insurer’s policy defenses anyway. A similar situation was present in Snodgrass v. State Farm Mut. Auto Ins., 15 Kan. App. 2d 153, 804 P.2d 1012 (1991), in which a jury determined that State Farm had breached its duty to defend but on appeal, the appellate court considered State Farm’s policy defenses concerning coverage. In either of these cases, had they chosen to do so, the court could have estopped the insurer from asserting its policy defenses after finding that it breached it duty to defend.
“Many courts have declined to follow such a rule because it has the potential of creating coverage where none has been contracted for. . . .
“Because Kansas courts have been presented with situations in which they could have estopped insurers who have breached their duties to defend from denying coverage and have not done so, this court will not find that Kansas courts would so hold. Although there may be arguably sound public policy grounds for doing so, that is a matter better left to the Kansas courts or legislature.”
We must also consider the Kansas Supreme Court’s clear statement in Patrons that the proper way for an insurer to protect both its insured’s and its own interests in cases of conflict is to hire independent counsel for the insured and reserve all of its own rights under the policy. 240 Kan. at 712. Again, there is no dispute that Hartford took neither action here. Nevertheless, the court’s actions in Patrons speak louder than its words. Despite the insurer’s earlier refusal to provide a defense, the court considered the insurer’s policy arguments and held that coverage was excluded.
Like Judge Lungstrum, we believe the cases decided to this point mean our Kansas Supreme Court would not adopt a bright line rule that insurers who fail to provide a defense and reserve their rights are inevitably equitably estopped from raising their coverage defenses. We are persuaded that an insured in SOS’s position should not automatically reap coverage without limits. Hartford is therefore free to argue in the district court that, despite the breach of its duty to defend and its failure to reserve rights, Aselco did not contract for coverage for this loss.
The district judge will need to determine which coverage defenses are available and meritorious. Because these questions will require construction of the language of the policy, they must be decided under Maryland law. “In interpreting an insurance contract where there is a conflict of laws, Kansas follows the lex loci rule, and the law of the state where the contract is made governs.” Safeco Ins. Co. of America v. Allen, 262 Kan. 811, Syl. ¶ 1, 941 P.2d 1365 (1997).
The district judge must first decide whether Aselco’s tortious conduct was covered under Hartford’s policy, i.e., led to an “advertising injury.” If the outcome on that question favors coverage, then the judge must also determine how a continuing course of conduct or injury was intended to be treated. In the underlying litigation, the court found a pattern of continuing conduct by Aselco that began before March 4, 1995, and continued until at least December 31, 1997. Applying Maryland law, the court must determine whether the Hartford policy was an occurrence or an offense policy. Likewise, it must determine under Maryland law whether damages should be apportioned or whether Hartford would be jointly and severally liable for the entire judgment. We agree with SOS that the district judge’s previous statements related to these issues were at least premature.
Attendance at Settlement Conference
Hartford also argues the district court erred in making the following finding:
“On August 14 and 15, 1998, a settlement conference on the Division 4 case was held. Counsel for SOS, Aselco and Maryland Casualty participated, and at the special insistence of Judge Elliott (Division 4), counsel for Hartford attended the settlement conference, but refused to participate in the negotiations or payment of die amount diat was finally agreed upon.”
Based on this finding of fact, the court later found that “[i]t is extremely difficult for Hartford to take the position that the judgment was collusive when Hartford’s presence at the August 14 and 15 settlement conference was required by Judge Elliott. Hartford [has] only itself to blame if a compromise was reached that was not to its liking, as it steadfastly refused to participate in the settlement.”
The function of an appellate court is to determine whether the trial court’s findings of fact are supported by substantial competent evidence. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as sufficient to support a conclusion. Sampson v. Sampson, 267 Kan. 175, 181, 975 P.2d 1211 (1999).
Hartford is correct that no evidence in the record supports a finding that Hartford was actually present at the settlement negotiations on the evening of August 14 and August 15, 1998. Following arguments in the declaratory judgment action on August 14, Hartford’s counsel was informed by Aselco’s counsel that Judge Elliott wanted to meet with all of the parties to discuss the status of the settlement negotiations in the underlying litigation. At the meeting, the new allegations against Aselco were recited orally and Judge Elliott told that parties that they should attempt to settle the matter. However, a later letter from SOS’s counsel to Hartford’s counsel indicates that Hartford was neither present nor participating at negotiations on August 14 and 15.
In that letter, dated August 20, 1998, SOS informed Hartford of the parties that participated in the negotiations “[ljate Friday and early Saturday” and the various agreements that were reached. Had Hartford been present, this letter would not have been necessary. We therefore rule that substantial competent evidence does not support the quoted finding and reverse it. Should the absence of evidence be corrected on remand, so be it. If not, the district judge may decide she needs to revisit the collusion argument.
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Briscoe, J.:
The defendant, John P. Gardner, appeals a jury-conviction of aiding and abetting the crime of possession of marijuana with intent to sell. K.S.A. 21-3205 and K.S.A. 1984 Supp. 65-4127b(b)(3).
Highly summarized, the factual background of this case is as follows: At about 1:30 a.m. on January 7, 1983, a DC-7 made an unannounced landing at the Dodge City Municipal Airport. When law enforcement officers later approached the plane, no one responded to their command for any occupant to disembark. Upon boarding the plane, the officers found no one on the plane but they did observe many bales of marijuana. The interior of the plane, including the cockpit and radio instrument panel, was dusted for fingerprints. Maps, directories and manuals were confiscated from the cockpit area.
Two men were noticed at the pay phones of a shopping mall the next morning. When the men were still in the area at 1:00 p.m., the police' were contacted. A police officer arrived at the mall soon thereafter and questioned one of the men, who identified himself as Barry Herston. The second man, who was the defendant, walked away while the officer questioned Herston. After the officer assisted Herston in locating a cab, Herston took the cab to the bus station. The defendant, who identified himself as John Gardner, was located a short time later in one of the shops. Both Gardner and Herston told the officer they were just passing through.
At approximately 6:00 p.m., law enforcement officers from Arizona arrived in Dodge City. The Arizona police had information that Gardner piloted the DC-7 into Dodge City. Within the hour, Gardner was arrested, without a warrant, at the bus station. A subsequent search of Gardner’s billfold revealed a pilot’s license bearing his name.
Fingerprints taken from the seized maps and directories matched the defendant’s known prints. The defendant’s fingerprints also matched a print taken from the toggle switch located in the cockpit area of the plane. In addition, cigarette butts taken from the defendant’s jail cell were the same brand as cigarettes seized from the airplane’s dashboard.
On July 7, 1983, a jury convicted the defendant of aiding and abetting the crime of possession of marijuana with intent to sell.
I. WARRANTLESS ARREST AND SEARCH INCIDENT TO ARREST.
Defendant contends that his warrantless arrest was improper because it was without probable cause (see K.S.A. 1984 Supp. 22-2401[c]), and that the items taken from him incident to the arrest were inadmissible. In challenging his arrest, defendant relies upon Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509 (1964), and argues the State failed to prove the reliability of the confidential informant and his information.
When analyzing the constitutional validity of an arrest, we must determine whether the facts within the knowledge of the officers at the moment of arrest and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the person arrested had committed or was committing an offense. In establishing probable cause for a warrantless arrest, the principle applies that among peace officers working together and keeping each other informed, the knowledge of each is the knowledge of all. State v. Parks, 5 Kan. App. 2d 644, 647-48, 623 P.2d 516 (1981). However, the police officer initiating the chain of communication must either have had firsthand knowledge or received the information from some person — normally the putative victim or an eyewitness — who it seems reasonable to believe is telling the truth. State v. Clark, 218 Kan. 726, Syl. ¶ 3, 544 P.2d 1372, cert. denied 426 U.S. 939 (1976).
At the outset, we note that the viability of informant information is no longer determined by the two-pronged test of Aguilar. In its place, Illinois v. Gates, 462 U.S. 213, 76 L.Ed.2d 527, 103 S.Ct. 2317 (1983), adopted a review of the “totality of the circumstances.” Accord State v. Rose, 8 Kan. App. 2d 659, 665 P.2d 1111, rev. denied 234 Kan. 1077 (1983). As applied here, we must determine whether, based on all of the circumstances known to the police at the time of defendant’s arrest, there was a fair probability that the defendant had committed a crime.
In this case, a confidential informant told the initiating officer, Agent Miller, that Gardner was flying the plane. Although information provided by a confidential informant may be viewed with a questioning eye (State v. Lamb, 209 Kan. 453, 466, 497 P.2d 275 [1972], it still may be given some credence. As in Illinois v. Gates, the totality of the circumstances before us includes information provided by an informant which was corroborated by subsequent events. Here, the subsequent events which contributed to the belief that defendant was involved in criminal activity are as follows:
(1) A DC-7 landed, unannounced, in Dodge City, carrying a large quantity of marijuana.
(2) The occupants of the plane had abandoned it.
(3) The defendant was traveling on foot within hours after the plane landed.
(4) The defendant momentarily disappeared when his associate was questioned by a law enforcement officer.
(5) The defendant was from Indiana, allegedly on his way to Wichita to make travel connections out of the state.
When the information from other law enforcement agencies is considered with the events in Dodge City, the totality of the circumstances could have reasonably led the police to believe the defendant had committed a crime. Since there was probable cause to arrest, the pilot and aircraft radio operator’s licenses taken from the defendant were properly admitted into evidence as the fruit of a search incident to a lawful arrest. K.S.A. 22-2501.
The defendant’s second argument that the documents were inadmissible hearsay is also without merit. Evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter is hearsay evidence and inadmissible. K.S.A. 60-460. The documents in question were not offered to prove the truth of their contents; rather, they had an independent value merely by being in the defendant’s possession when he was arrested. Cf. State v. Boyd, 206 Kan. 597, 599, 481 P.2d 1015 (1971), cert. denied 405 U.S. 927 (1972) (“Physical evidence clearly is not hearsay evidence.”).
II. WARRANTLESS SEARCHES OF AIRPLANE AND JAIL CELL.
The defendant next contends the warrantless searches of the airplane and his jail cell were improper. In response, the State argues that the defendant abandoned the airplane and therefore is without standing to challenge its search.
An illegal search can only violate the rights of those who have a legitimate expectation of privacy in the invaded place. State v. Whitehead, 229 Kan. 133, Syl. ¶ 2, 622 P.2d 665 (1981). If an individual has abandoned property, he no longer has a reasonable expectation of privacy in the property which is protectable under the Fourth Amendment. State v. Chiles, 226 Kan. 140, Syl. ¶¶ 4, 5, 595 P.2d 1130 (1979).
In this case, the defendant never claimed an interest in the aircraft. The plane was left unattended on the runway of a public airport without evidence of who the owner was or why the plane landed. The warrantless search of the airplane did not violate the Fourth Amendment where the plane appeared to have been abandoned, since the Fourth Amendment does not extend to locations where there is no basis for a reasonable expectation that materials stored therein will be accorded privacy. See United States v. Ramapuram, 632 F.2d 1149 (4th Cir. 1980) (warrantless search of an abandoned car). Even if we were to assume the defendant had standing to contest the search of the plane, the exigent circumstances and probable cause which were present here excused the warrant requirement. United States v. Sigal, 500 F.2d 1118, 1120 (10th Cir.), cert. denied 419 U.S. 954 (1974).
Here, a DC-7 landed, unannounced, in a small city airport. When police officers approached the plane, no one responded to their commands for any occupants to disembark, and bales believed to be marijuana were observed through the windows. Under these facts, a prudent person would be justified in believing that criminal activity was afoot.
Exigent circumstances were also present here. In Chambers v. Maroney, 399 U.S. 42, 52, 26 L.Ed.2d 419, 90 S.Ct. 1975 (1970), the court held:
“For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.”
The court’s distinctive treatment of automobiles “has been based in part on their inherent mobility.” United States v. Chadwick, 433 U.S. 1, 12, 53 L.Ed.2d 538, 97 S.Ct. 2476 (1977).
Here, the inherent mobility of the airplane was sufficient to establish exigent circumstances. United State v. Gooch, 603 F.2d 122,125 (10th Cir. 1979). The presence of exigent circumstances, when coupled with the officers’ probable cause to search, compel us to conclude that the search of the plane and the seizure of the items from the plane were proper.
The defendant also questions the validity of the search of his jail cell in his Issue 3, but he does not discuss the question in his brief. An issue which is not briefed is deemed abandoned. State v. Words, 226 Kan. 59, 63, 596 P.2d 129 (1979). Even if the issue were reached, there was substantial evidence to support the trial court’s conclusion that the cigarette butts taken from the floor of defendant’s jail cell were abandoned property in which the defendant had no legitimate expectation of privacy. State v. Chiles, 226 Kan. at 144.
III. HEARSAY TESTIMONY.
The defendant next contends the trial court erred in not striking the testimony of Lieutenant Ken Rogers which referred to communications from federal customs agents not available at trial.
Prior to trial, the judge granted defendant’s motion in limine prohibiting the State and its witnesses from referring to any communications' received by the federal government or other state law enforcement agencies, because none of the other officers were scheduled to testify at trial. During Rogers’ testimony, he made this statement: “At that point we had communication off and on with customs aircraft.”
Upon defendant’s objection, a hearing was held outside the jury’s presence and defense counsel asked the court to instruct the State witnesses to keep their testimony within the boundaries set by the motion in limine. When the judge asked the defense counsel if he wanted a mistrial declared or the jury instructed to disregard Rogers’ statement, counsel replied:
“I’d just as soon, you didn’t do that.
“. . . [Wje’re asking that the State be instructed as to the scope of the Motion In Limine and there won’t be any further references of such [non-verbal aspects of the communication, i.e. that communications occurred, but not the content of the communications] further down the line.”
The court refused to issue an additional order, but noted that any intentional reference to non-verbal aspects of the communication would be inappropriate.
The defendant contends the trial court erred in not striking Rogers’ testimony, alleging that defendant’s rights had been prejudiced. Given counsel’s own direction to the court regarding the treatment to be accorded Rogers’ statement, the defendant’s argument must fail because “[a] litigant may not invite error and then complain of that error on appeal.” State v. Reynolds, 230 Kan. 532, Syl. ¶ 3, 639 P.2d 461 (1982).
IV. PHOTOGRAPHS.
The defendant contends the trial court erred in admitting photographs of the 377 marijuana bales found on the plane. After the marijuana was photographed on the plane, it was laid on the ground and each bale was numbered with spray paint and again photographed. Samples were taken from each of the 377 bales and sent to the Kansas Rureau of Investigation laboratory for testing. The bales were then loaded on a semi-trailer which was parked next to the Dodge City Law Enforcement Center. All of the bales except two were burned, apparently without a court order.
At trial, the State introduced the two bales which had not been burned, as well as photographs of all 377 bales. Defense counsel objected to the admission of the photographs because they were not the best evidence, and because they were repetitious. The court denied the best evidence argument because it was impractical, and allowed the admission of any photographs which did not contain duplication. The defendant renews his arguments on appeal.
As the best evidence rule, K.S.A. 60-467, applies only to written documents, the defendant’s real contention here is that his due process rights were violated when the bales were destroyed without court order and without the defendant having an opportunity to inspect them. Although the better practice would have been to notify the defendant or his attorney and receive a court order prior to the burning of the marijuana (State v. Antioine & McHenry, 6 Kan. App. 2d 900, 904, 636 P.2d 208 [1981], rev. denied 230 Kan. 819 [1982]), under the facts of this case, the defendant’s conviction was not tainted by failing to follow that procedure.
Here, there was no indication that the defendant was prejudiced by not having access to the burned marijuana bales. The samples taken from each bale were available for inspection by the defendant. Further, the burning of the marijuana appears to have been done in good faith. The 377 bales of marijuana were temporarily stored in a semi-trailer. Considering the lack of a more secure depository, the law enforcement officers were justifiably concerned with the security of this contraband.
Photographs of the bales were admissible if the State laid a proper foundation for their admission, and “if they accurately represent matters relevant to the issues in the case . . . .” State v. Hollaway, 214 Kan. 636, 639, 522 P.2d 364 (1974). The admissibility of photographs rests within the sound discretion of the trial court. State v. Diaz & Altemay, 232 Kan. 307, Syl. ¶ 7, 654 P.2d 425 (1982).
The defendant does not challenge the foundation or relevance of the photographs, but rather he argues that the pictures of the numbered bales showed some of the bales more than once, thereby misleading the jury as to the quantity of the marijuana.
Although the photographs were not properly included in the record on appeal, a review of the photographs challenged by defendant indicates there was only one duplication. Howéver, the bales were clearly numbered so the jury could easily ascertain the duplication and the exact quantity involved. Under these circumstances, the trial judge did not abuse his discretion in admitting the photographs into evidence.
V. EVIDENCE OF PRIOR CRIMES.
The defendant next contends the trial court erred in admitting evidence of a prior crime. A former drug enforcement administration agent was allowed to testify regarding his contact with the defendant while the agent was working in an undercover capacity in an aircraft smuggling operation.
Prior to the agent’s testimony, the trial court determined the evidence was admissible to prove intent, identity, motive, plan and absence of mistake or accident. K.S.A. 60-455. State v. Faulkner, 220 Kan. 153, Syl. ¶ 1, 551 P.2d 1247 (1976). The admission of prior crimes evidence rests with the sound discretion of the trial court. State v. Bly, 215 Kan. 168, 175, 523 P.2d 397 (1974).
A review of the record indicates that the trial court did not abuse its discretion in admitting the prior crimes evidence. The defendant’s argument that there was an insufficient showing of similarity between the incidents to use the testimony to establish identity is not compelling. Both incidents involved the trans portation of large quantities of marijuana in a late model airplane. The evidence was also relevant to establish defendant’s intent in that this prior evidence would indicate that the defendant knew what he was doing in the present instance. See State v. Faulkner, 220 Kan. 153.
The trial court did not abuse its discretion in determining that the probative value of the prior crime outweighed the tendency to prejudice the defendant. Any prior crime has the potential for strengthening the State’s case; however, that may be the only method of proof for some elements of the crime.
VI. JURISDICTION/SUFFICIENCY OF THE EVIDENCE.
The defendant contends that the trial court was without jurisdiction to try the offense charged or, in the alternative, that there was insufficient evidence to support his conviction.
The defendant bases his jurisdictional argument on State v. Palermo, 224 Kan. 275, 579 P.2d 718 (1978). In Palermo, the defendant neither intended to sell drugs in Kansas, nor knew the drugs were purchased from him in Missouri for resale in Kansas. The court concluded Kansas courts were without jurisdiction to try the defendant absent a showing that the criminal act was committed, intended to be committed, or foreseeably could have been committed within the state seeking to prosecute the defendant. 224 Kan. at 277.
Palermo is inapplicable to this case because there is evidence that defendant committed a criminal act within Kansas; at the very least, possession of marijuana. The defendant’s fingerprints were found on items taken from a plane which had landed in Kansas and contained a large quantity of marijuana. See also K.S.A. 21-3104(2), 22-2607, 22-2608. The court had jurisdiction over the defendant.
Defendant also contends there was insufficient evidence to convict him of aiding and abetting. In considering the sufficiency of the evidence to sustain a conviction, this court looks only to the evidence in favor of the verdict, it does not weigh the evidence. If the essential elements of the charge are sustained by any competent evidence, the conviction stands. State v. Fosnight, 235 Kan. 52, 53, 679 P.2d 174 (1984). Direct evidence, as distinguished from circumstantial evidence, is not essential to a criminal conviction. State v. Ward, 233 Kan. 144, Syl. ¶ 1, 660 P.2d 957 (1983).
The defendant relies upon State v. Doyen, 224 Kan. 482, 490, 580 P.2d 1351 (1978), to contend the lack of competent evidence establishing a principal committed the crime of possession of marijuana with intent to sell nullifies his aiding and abetting conviction under K.S.A. 21-3205(1). The thrust of the Doyen decision was that Doyen could not be charged with the non-crime of causing false campaign reports to be filed.
To show guilt of one who aids and abets, the law requires that the person knowingly associate with the unlawful venture and participate in a way which indicates that such person is furthering the success of the venture. State v. Hobson, 234 Kan. 133, 138, 671 P.2d 1365 (1983). See State v. Burton, 235 Kan. 472, 477, 681 P.2d 646 (1984); 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).
Here, the record contains competent evidence that the defendant had associated himself with a criminal venture and that he intended by his actions to make the venture succeed. Proving beyond a reasonable doubt that a specific person is the principal is not an element of the crime of aiding and abetting. It is not even essential that the identity of the principal be established. United States v. Harper, 579 F.2d 1235, 1237-39 (10th Cir.), cert. denied 439 U.S. 968 (1978). Acquittal of an identified principal does not necessarily foreclose prosecution of an alleged aider and abettor. United States v. Coppola, 526 F.2d 764, 776 (10th Cir. 1975). The jury could conclude in the case at bar that another person or persons, though unidentified, instigated this mass transport of marijuana with intent to sell it and that the defendant assisted in the criminal act.
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Briscoe, J.:
Scott D. Gantz, the petitioner, appeals a judgment of the district court dismissing his appeal of the suspension of his driver’s license for refusal to submit to a chemical test.
The Department of Revenue suspended the petitioner’s driver’s license for refusal to submit to a chemical test. The petitioner filed a notice of appeal in the district court within 30 days and mailed a copy to the Legal Services Division of the Department of Revenue.
The Department answered with a general denial and moved to dismiss for insufficient service of process, arguing the petitioner had failed to obtain service of process on the Attorney General under K.S.A. 60-304(d)(5). The trial court agreed and dismissed the petitioner’s appeal.
The petitioner contends service of process upon the Attorney General is not required in an appeal pursuant to K.S.A. 8-259 to the district court challenging a driver’s license suspension. K,S.A. 8-259 provides in part:
“(a) Any person denied a license or whose license has been canceled, suspended, or revoked by the division except where such revocation is mandatory under the provision of K.S.A. 8-254, or any amendments thereto, shall have the right to file a petition within sixty (60) days thereafter for a hearing in the matter in the district court in the county wherein such person shall reside, and such court is hereby vested with jurisdiction, and it shall be its duty to set the matter for hearing upon ten (10) days’ written notice to the division and thereupon to take testimony and examine into the facts of the case, and to determine whether the petitioner is entitled to a license or is subject to suspension, cancellation, or revocation of license under the provisions of this act: . . . Provided further, The trial on appeal as herein provided for shall be a trial de novo and the licensee shall have the right of trial by jury upon demand therefor. . . .
“(b) The clerk of any court to which an appeal has been taken under this section shall within ten (10) days after the final disposition of such appeal forward a notification of such final disposition to the division.” Emphasis added.
The Department argued, and the trial court ruled, that because a driver’s license suspension appeal begins with a “petition” in district court, service of process upon the Attorney General under K.S.A. 60-304(d)(5) is required. The Department also relies on Lira v. Billings, 196 Kan. 726, 731, 414 P.2d 13 (1966), where the Supreme Court stated: “K.S.A. 8-259(a) requires a trial de novo . . . governed by the rules applicable to civil proceedings in district court. . . .” The Department interprets this statement to mean that the rule governing service of a civil action, K.S.A. 60-304(d)(5), must be followed to commence an appeal in district court under K.S.A. 8-259(a).
The petitioner argues that K.S.A. 60-304(d) does not apply because a challenge to a driver’s license suspension is an appeal rather than an original action. He contends that K.S.A. 8-259 contains its own notice requirement. The statute provides that after the filing of a petition, it is the court’s “duty to set the matter for hearing upon ten (10) days’ written notice to the division. . . .”
In our review of other administrative appeal statutes, we note a variety of methods for notifying an agency that an appeal has been taken, e.g., K.S.A. 1984 Supp. 60-2101(d) does not require service of process; K.S.A. 41-323 and 65-1628 require service of process; K.S.A. 2-2452 requires service of a notice of appeal in person or by certified mail; K.S.A. 47-1216 requires service in person or by registered mail; K.S.A. 44-1011 requires that “notice in writing” be “given” to all parties and to the KCCR; K.S.A. 16a-6-108(l), 44-709 and 65-1121 require service of a petition upon the agency; and K.S.A. 1-314, 42-703, 47-833 and 65-438 require service of a notice of appeal upon the agency.
Although the method chosen by the legislature to notify an agency of an appeal varies from statute to statute, we do note each statute sets forth its method of notification without reference to K.S.A. 60-304.
In construing a statute, the courts should determine the intent of the legislature from general consideration of the entire statute. State v. Flummerfelt, 235 Kan. 609, Syl. ¶ 2, 684 P.2d 363 (1984). It is a general rule that a statute should be construed to avoid unreasonable results. Wells v. Anderson, 8 Kan. App. 2d 431, 433, 659 P.2d 833, rev. denied 233 Kan. 1093 (1983). The courts should not adopt a construction that requires parties to perform vain, idle or useless acts. In re Adoption of Baby Boy L., 231 Kan. 199, 209, 643 P.2d 168 (1982).
K.S.A. 8-259 contains two notice provisions. One requires the court to give notice of hearing and the other requires the court to give notice of disposition. Both require that the notice be given to the Division of Vehicles, not to the Attorney General. Consideration of the entire statute shows that the legislature intended these actions to be appeals, and not original civil actions. Twice in the language of K.S.A. 8-259 the action contemplated under the statute is described as an “appeal.” It is also clear that the legislature did not intend to involve the Attorney General in driver’s license suspension appeals.
Unless statutorily required to obtain jurisdiction, service of process upon the Attorney General would serve no practical purpose. As stated by counsel for the Department at oral argument, the Department defends driver’s license suspension appeals without the entry of appearance or assistance of the Attorney General’s office.
Whatever method of giving notice of an appeal K.S.A. 8-259 requires, consideration of the entire statute indicates that the notice should be given to the Department, and not to the Attorney General.
What kind of notice must the Department receive? Service of process is not required. When the legislature intends to require service of process upon an administrative agency to commence an appeal to the district court, it includes that requirement in the appeal statute. See K.S.A. 41-323 and 65-1628. K.S.A. 8-259 contains no such requirement.
K.S.A. 60-205 is the only possible statutory source for a requirement of reasonable notice to the Department. Service under K.S.A. 60-205 is sufficient for all pleadings except an “original petition.” The statute provides:
“The method of service and filing of pleadings and other papers as provided in this section shall constitute sufficient service and filing in all civil actions and special proceedings, but they shall be alternative to, and not in restriction of different methods specifically provided by law.
“(a) When required. Except as otherwise provided in this chapter, every order required by its terms to be served, every pleading subsequent to the original petition unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar paper shall be served upon each of the parties. . . .
“(b) How Made. Whenever under this article service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party himself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address or, if no address is known, by leaving it with the clerk of the court.” Emphasis added.
Here, the petitioner’s “Notice of Appeal” was not an original petition commencing a civil action. It was a petition for review commencing a special proceeding. By mailing a copy of his notice of appeal to the Department’s legal staff, the petitioner complied with K.S.A. 60-205(b) and provided the Department with sufficient notice of his appeal.
K.S.A. 60-205 refers to both “civil actions” and “special proceedings.” Only civil actions must commence with service of process. An appeal to the district court from an administrative decision is not the commencement of a civil action. Kansas Turnpike Authority v. Jones, 7 Kan. App. 2d 599, Syl. § 1, 645 P.2d 377 (1982). It is “in the nature of a ‘judicial review’ ” of the agency decision. Flanigan v. City of Leavenworth, 232 Kan. 522, 528, 657 P.2d 555 (1983). See Nurge v. University of Kansas Med. Center, 234 Kan. 309, 315, 674 P.2d 459 (1983).
The “petition” referred to in K.S.A. 8-259 is not a petition commencing a civil action, but a petition for review commencing a “special proceeding” for judicial review of the agency decision. Service of the petition upon the Department pursuant to K.S.A. 60-205 is sufficient; service of process is not required. Although mistitled as a “Notice of Appeal,” petitioner’s pleading was sufficient to provide notice to the Department of his intention to appeal his suspension to district court.
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Abbott, J.:
This is an action brought by the plaintiff, Broadway National Bank, to recover certain machinery, equipment and inventory in which it claims a security interest. The trial court held the defendants to be buyers not in the ordinary course of business with priority over Broadway National Bank’s unperfected security interest.
Broadway National Bank (Bank) extended a line of credit to G & L Bowling Supplies, Inc., (G & L) and secured it by taking a security interest in G & L’s equipment and inventory. G & L is a Missouri corporation engaged in the wholesale and retail sale of bowling equipment and bowling shirts. Sam J. Giangreco (Sam) was president of G & L at all times material to this appeal. Defendant Marilyn Farmer Giangreco (Marilyn) was employed as secretary and office manager at G & L from 1972 to 1977. Marilyn and Sam had lived together as husband and wife from June 1972 through September 1982.
In 1979, G & L experienced financial difficulties, and Sam enticed Marilyn to return to work for G & L by promising her half the business (the silk screen and custom bowling shirt portion). Marilyn worked at G & L until October 1981.
In July 1981, Marilyn, her sister and her brother-in-law formed a Kansas corporation, G & L Athletic Supplies, Inc., (Athletic Supplies). Marilyn, her sister and her brother-in-law were the officers and shareholders of Athletic Supplies.
In September 1981, the Bank’s collateral was moved from G & L in Missouri to Ottawa, Kansas. On October 1, 1981, a bill of sale was signed by Sam in favor of Marilyn, evidencing the silk screen and custom bowling shirt half of the business, which was at that time in Kansas. Marilyn transferred the equipment and supplies to Athletic Supplies, Inc., in return for stock.
Since October of 1981, Athletic Supplies has operated its business out of Ottawa, Kansas. Sam has continued to operate G & L out of Missouri.
The Bank discovered in October (or possibly September) of 1982 that its collateral had been transferred to Ottawa. The Bank has never perfected its security interest in Kansas. Marilyn claims she was unaware of the Bank’s security interest in the equipment and inventory until the Bank officials contacted her in Ottawa in October of 1982 to investigate the situation and claim its collateral. The Bank subsequently filed this action to set aside the transfer and foreclose its security interest.
K.S.A. 84-9-103(1)(d) provides a four-month grace period for a secured party to perfect its security interest in collateral that has been brought into this state from another. If the secured party fails to perfect in the new jurisdiction, the security interest is deemed unperfected as against one who becomes a purchaser after removal of the collateral from its original jurisdiction. The Bank contends that defendants are not protected by this provision because they purchased the collateral in Missouri, before its removal to Kansas.
The record reveals that in the trial court the Bank contested the priority question solely on the ground that defendants had knowledge of the security interest and thereby failed to meet the provisions of K.S.A. 84-9-301(1)(c). The time of the purchase was not an issue as reflected by the parties’ own statements of issue in the pretrial order. Nor was it raised by their statement of facts. In addition, the timing of defendants’ purchase of the collateral was not raised in the Bank’s motion to amend the judgment or for a new trial. Finally, the journal entry of judgment reflects that the trial judge did not make a specific finding of fact on this issue now raised by the Bank. The Bank has raised this argument for the first time on appeal, and consequently this court cannot now consider it. Anderson v. Overland Park Credit Union, 231 Kan. 97, 107, 643 P.2d 120 (1982).
As we view the record, the entire trial proceeded on the dispute of whether or not defendants had knowledge of the Bank’s security interest. The issue on appeal is a priority question between an unperfected security interest holder (Bank) and a buyer not in the ordinary course of business (defendants) under K.S.A. 84-9-301(1)(c). This section provides that certain classes of persons take priority over an unperfected security interest, including the class known as buyers not in the ordinary course of business. The section provides in pertinent part:
“[I]n the case of goods, instruments, documents, and chattel paper, [an unperfected security interest is subordinate to the rights of] a person who is not a secured party and who is a transferee in bulk or other buyer not in ordinary course of business ... to the extent that he gives value and receives delivery of the collateral without knowledge of the security interest and before it is perfected.” (Emphasis supplied.)
The Bank contends that the defendants had knowledge of the Bank’s security interest in the equipment and are therefore precluded from relying on 84-9-301(l)(c) to gain priority over the Bank. The trial court found that defendants were purchasers without knowledge of the Bank’s security interest and entitled to priority under 84-9-301(l)(c). The Bank appeals.
The Bank essentially is contesting the trial court’s finding of fact, namely the absence of actual knowledge. When a trial is to the court, a trial judge’s findings of fact will not be set aside unless they are clearly erroneous, and due regard shall be given to the trial court’s opportunity to judge the credibility of the witnesses. Funke v. Fieldman, 212 Kan. 524, 529, 512 P.2d 539 (1973). The function of the appellate court, then, is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. NEA-Wichita v. U.S.D. No. 259, 234 Kan. 512, 515, 674 P.2d 478 (1983); City of Council Grove v. Ossmann, 219 Kan. 120, 126, 546 P.2d 1399 (1976).
The trial court found that the Bank failed to meet its burden of proof that defendants had actual knowledge of its security interest in the equipment. A negative finding of fact is more difficult to overcome on appeal. Lostutter v. Estate of Larkin, 235 Kan. 154, 162-63, 679 P.2d 181 (1984). A finding that the party upon whom the burden of proof was cast has failed to sustain it is a negative finding. Brown v. Lang, 234 Kan. 610, 616-17, 675 P.2d 842 (1984).
K.S.A. 84-9-103(1)(d) provides:
“When collateral is brought into and kept in this state while subject to a security interest perfected under the law of the jurisdiction from which the collateral was removed, the security interest remains perfected, but if action is required by part 3 of this article to perfect the security interest, (i) if the action is not taken before the expiration of the period of perfection in the other jurisdiction or the end of four months after the collateral is brought into this state, whichever period first expires, the security interest becomes unperfected at the end of that period and is thereafter deemed to have been unperfected as against a person who became a purchaser after removal.”
K.S.A. 84-9-301(1)(c) provides:
“Except as otherwise provided in subsection (2), an unperfected security interest is subordinate to the rights of
“(c) in the case of goods, instruments, documents, and chattel paper, a person who is not a secured party and who is a transferee in bulk or other buyer not in ordinary course of business, or is a buyer of farm products in ordinary course of business, to the extent that he gives value and receives delivery of the collateral without knowledge of the security interest and before it is perfected.” (Emphasis supplied.)
The Uniform Commercial Code (UCC) does not define knowledge. Nor has Kansas directly interpreted “knowledge” under the UCC. The Bank relies on Thomas v. Evans, 200 Kan. 584, 438 P.2d 69 (1968), to support its position that having “reason to know” is within the meaning of actual knowledge. As we read Thomas, it is not a case that arose under the UCC. The question there was whether the plaintiff, in an action to recover the unpaid balance due under a contract, had actual knowledge that he was dealing with a corporation rather than with individuals. In Thomas, the Kansas Supreme Court was not defining actual knowledge under the UCC, thus Thomas is not controlling.
The definitional section of the UCC makes a distinction between “notice” and “knowledge.” As set forth in K.S.A. 84-1-201(25):
“A person has ‘notice’ of a fact when (a) he has actual knowledge of it; or (b) he has received a notice or notification of it; or (c) from all the facts and circumstances known to him at the time in question he has reason to know that it exists. A person ‘knows’ or has ‘knowledge’ of a fact when he has actual knowledge of it.’’
It is apparent from 84-1-201(25) that notice encompasses both “actual knowledge” and “reason to know” and is, therefore, a much broader concept than knowledge. However, if actual knowledge included “reason to know” within its meaning, then the definition of notice would be repetitious. That is to say, subparagraph (c) would be surplusage with the presence of subparagraph (a). It is logical to conclude that by using both (a) and (c), the drafters intended different meanings. Under this rationale, “reason to know” is not within the meaning of actual knowledge.
A recent Kansas case somewhat analogous to our factual situation construes 84-9-103(l)(d) and 84-9-301 and, at least indirectly, suggests that actual knowledge of a security interest does not encompass “reason to know.” Victory Nat’l Bank of Nowata v. Stewart, 6 Kan. App. 2d 847, 636 P.2d 788 (1981). In Stewart, an Oklahoma bank, which had a security interest in a car, sued a Kansas used car dealer, who ■ had purchased the car from its owners, for conversion. The trial court held the car dealer liable for conversion, noting that the dealer was located near the Oklahoma line, should have been familiar with the Oklahoma laws, and could easily have ascertained that the Oklahoma bank had a valid, perfected security interest in the car. The trial court held that although the dealer might not have had actual knowledge of the bank’s security interest, he had sufficient knowledge to be put on notice that such a lien might indeed exist and he was under an absolute obligation to make inquiry.
A panel of this court reversed the trial court, holding that under K.S.A. 84-9-301 the Kansas car dealer had priority over the Oklahoma bank because the bank had failéd to properly perfect its security interest in Kansas when the car was moved. This court indicated that the Kansas car dealer had no actual knowledge of the Bank’s security interest at the time the car was purchased. Although the meaning of knowledge under 84-9-301(l)(c) was not directly in issue in Stewart, the opinion suggests that the trial court erred on that point. Clearly, 84-9-301(l)(c) makes no reference to “notice” of a security interest as the trial court appeared to adopt. Rather, the statute explicitly requires “knowledge.” This court disregarded the facts and circumstances that would put a party on notice of a security interest and therefore under an obligation to inquire. By implication, this court required actual knowledge.
Those jurisdictions that have interpreted knowledge under § 9-301(l)(c) of the Uniform Commercial Code do not support the Bank’s position here that actual knowledge includes “reason to know.” The point is made in Bloom v. Hilty, 427 Pa. 463, 234 A.2d 860 (1967), that actual knowledge of a security interest more than a year before the collateral was purchased is not actual knowledge under the code. Even though such information may be sufficient to constitute notice, it is insufficient to establish actual knowledge. The two concepts are distinguished under the UCC. The Pennsylvania Supreme Court reasoned that there was nothing to prevent the secured party’s claim from being paid by the debtor during that time interval, thereby terminating the security interest. Under the rationale of Bloom, then, the purchaser must have actual knowledge that the security interest still exists at the time the collateral is purchased. Similarly, knowledge by the puchaser that a seller may still owe money on the collateral is not actual knowledge of a security interest. Kibbe v. Rohde, 285 Pa. Super. 379, 427 A.2d 1163 (1981); Whitmire v. Keylon, 12 U.C.C. Rep. Serv. 1203 (Tenn. App. 1973).
“Actual knowledge” was construed in Clark Oil & Refining Co. v. Liddicoat, 65 Wis. 2d 612, 223 N.W.2d 530 (1974). There, a lien creditor was given priority over a holder of an unperfected security interest pursuant to UCC § 9-301. The gasoline supplier (unperfected security interest) argued that the lien creditor, a wholesale gasoline supplier, should have known that a security interest existed in the gasoline it purchased. The Wisconsin court pointed out, however, that the UCC contains no provision requiring an inquiry into whether a security interest exists. The court examined the definition of knowledge under the code and stated:
“By this definition, it is apparent that the framers of the code required proof of actual knowledge on the part of the lien creditor if he is to be subordinated to the holder of an unfiled security interest. Whether the judgment creditor had reason to know, or might have been alerted to, circumstances that should reasonably have impelled him to check beyond the filed record is irrelevant under the code.” 65 Wis. 2d at 622-23.
We conclude that actual knowledge does not encompass “reason to know” within its meaning. The trial court found that defendants lacked actual knowledge of the Bank’s security interest. Marilyn Farmer Giangreco testified she did not know of the Bank’s security interest in 1981 when she purchased the goods. She did know that G & L owed money to the bank on a loan and that she helped compile an inventory of G & L in 1976 to furnish to the Bank. She was corporate secretary of G & L during 1976 and later from 1979 to 1981, and she lived with the president of G & L as his wife from 1972 through September 1982.
We are unable to conclude that the trial court erred in holding that the defendants did not have actual knowledge of the Bank’s security interest.
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Parks, J.:
Defendant, Donald E. Norris, appeals a jury conviction of indecent liberties with a child. K.S.A. 21-3503.
This appeal raises a question of first impression concerning the manner in which the trial court submits its instructions to the jury. In an attempt to accommodate defense counsel, the court did not instruct the jury before closing arguments. Neither the prosecutor nor defense counsel objected to the omission prior to giving their closing arguments and both attorneys referred to the instructions during their argument. At the conclusion of the arguments, the following colloquy took place:
“MR. AUSTIN: I think we need to read the instructions to the jury.
THE COURT: I’m going to waive that and just submit them.”
After the lunch recess, the jury was given a set of written instructions signed by the judge. There is no indication in the record that the jury was instructed to read the written instructions prior to beginning deliberation.
Following a read-back of certain testimony requested by the jury, defense counsel moved for a mistrial because the court had failed to read the instructions to the jury. This motion was denied and defendant was convicted. He now appeals.
The procedure followed by the court in instructing the jury departed from that usually followed in criminal cases in two important respects. First, the court did not instruct the jury at the close of evidence and before closing argument as provided by K.S.A. 22-3414. Secondly, the court did not read the instructions to the jury but simply submitted a copy of the written instructions to it. The State contends that neither of these circumstances worked to defendant’s prejudice and that in any event, defendant acquiesced in the procedure followed by the court.
The order in which instructions and closing argument should be delivered varies among the different jurisdictions. The longtime rule in Kansas is that instructions should be given at the close of the evidence before final arguments. State v. Bennington, 44 Kan. 583, 584, 25 Pac. 91 (1890). This rule is currently codified in K.S.A. 22-3414, which states in part as follows:
“(3) . . . The judge shall instruct the jury at the close of the evidence before argument and the judge may, in his discretion, after the opening statements, instruct the jury on such matters as in his opinion will assist the jury in considering the evidence as it is presented.
“(4) ... In arguing the case, comment may be made upon the law of the case as given in the instructions, as well as upon the evidence.”
This rule permits the attorneys to shape their closing arguments with the knowledge that the jury has finished hearing both the evidence and the law. The possibility that counsel will misstate or misrepresent the instructions is lessened because the court has already advised both the jury and counsel of its view of the law. In addition, the jury will hear the persuasive statements of counsel and their attempts to emphasize those portions of the instructions which are favorable to them, only after having heard the entire context of the law to be applied. The jury is in a better position to understand the arguments of counsel once they have been advised of both the criminal elements the prosecution must show and the nature and effect of the defense asserted.
There is no question but that the court’s failure to instruct the jury prior to closing argument violated the direction of K.S.A. 22-3414(3) and was error. Defendant was denied the benefit of addressing closing argument to an informed jury, which the statute seeks to secure. However, we cannot find that an error in the order in which argument and instructions are delivered to the jury is in itself so substantial as to deny defendant a fair trial. In the first place, despite the persuasiveness of the rationale behind the Kansas rule regarding the order of instructions, other authorities have found equal justification for an obverse rule. For example, Federal Rule of Criminal Procedure 30 provides that “the court shall instruct the jury after the arguments are completed.” It is contended that this rule is preferable because the court has the last word and can correct any misstatement made during argument. United States v. Piascik, 559 F.2d 545, 550 n. 9 (9th Cir. 1977).
Moreover, defendant acquiesced in the procedure followed by failing to object. The jury may have been belatedly informed of the law, but the court provided counsel with its proposed instructions in advance of the completion of trial. The court then met with counsel to hear objections and suggestions concerning the instructions and made its final rulings regarding the content of the instructions before closing arguments were commenced. Finally, both counsel incorporated comments on the instructions into their final arguments. Thus, the court’s procedure did not leave counsel uninformed of the instructions the court would give or deprive them of the opportunity to comment upon the instructions to the jury. In sum, under the circumstances of this case, we fail to see how the court’s departure from the statutorily prescribed order of trial in itself resulted in prejudice to defendant. On the other hand, we believe the court’s decision to forgo oral delivery of the instructions was both erroneous and prejudicial.
Historically, instructions to the jury were delivered orally and somewhat extemporaneously. In order to facilitate review of the law stated by the court and to permit the parties to have the opportunity to review and suggest changes in the proposed instructions, statutes were passed requiring judges to reduce their instructions to writing before reading them to the jury. G.S. 1868, ch. 82, § 236; Bennington, 44 Kan. 583. The written instructions could then be given to the jury for reference during deliberations at the discretion of the judge. State v. Bundy, 71 Kan. 779, 784, 81 Pac. 459 (1905).
Our current statute simply states that the court “shall instruct” the jury — it does not mandate oral delivery or written recordation. Moreover, there are no Kansas cases which have stated that oral delivery is required but in each of the old cases concerned with the sufficiency of written instructions, it was assumed that the jury would first hear the instructions in open court. See, e.g., Bundy, 71 Kan. at 784; State v. Labore, 80 Kan. 664, 666, 103 Pac. 106 (1909). In addition, modern cases have also stated in dicta that current practice is to orally recite instructions. For example, State v. Stephens, 168 Kan. 5, 9, 209 P.2d 924 (1949), stated that “written instructions should be read to the jury prior to the argument of the counsel.” State v. Egbert, 227 Kan. 266, 268, 606 P.2d 1022, cert. denied 449 U.S. 965 (1980), also declares that “ordinarily, the original set of instructions which the court reads to the jury is then handed to the jury for its use in the jury room.” (Emphasis supplied.) Finally, our research has revealed no cases approving the delivery of written instructions without their oral recitation by the court, although there is authority for the contrary proposition from other jurisdictions.
In United States v. Noble, 155 F.2d 315, 318 (3rd Cir. 1946), the court stated that an adequate written statement of the law is insufficient if it is not orally delivered as well. The court reasoned, in part, as follows:
‘■‘Moreover, we think that even if the information had contained a full recital of all the applicable legal principles the trial judge would not have fulfilled his duty in this regard merely by sending the information out with the jury to read if they chose to do so, during their deliberations. For not only are counsel and the defendant entitled to hear the instructions in order that they may, if they are incorrect, object to them and secure their prompt correction by the trial judge, but it is equally important to make as certain as may be that each member of the jury has actually received the instructions. It is therefore essential that all instructions to the jury be given by the trial judge orally in the presence of counsel and the defendant. We. conclude that the failure in the present case to instruct the jury upon the elements of the crime was error.”
See also Morris v. United States, 156 F.2d 525, 531 n. 4 (9th Cir. 1946).
In a more recent line of Indiana cases, a similar conclusion was reached as follows:
“Thus, neither the Court of Appeals nor the Supreme Court in the three cases above changed the law in regard to sending written instructions into the jury room. Rather, they found it was the law that this was not to be done, but found it to be harmless error in the cases presented. In this case, the trial court went further and not only sent the instructions into the jury room, but also failed to instruct the jury either preliminarily or finally in open court. This duty was delegated to the foreman of the jury under circumstances where it cannot be known how the job was done, or whether it was done at all. This was not only in violation of the settled law in Indiana as set out above, but it was also directly in violation of Ind. R. Tr. P. 51(A), (B) and Ind. Code § 35-1-35-1 (Burns 1975).” Purdy v. State, 267 Ind. 282, 288-89, 369 N.E.2d 633 (1977).
See also Foresta v. State, 274 Ind. 658, 659-60, 413 N.E.2d 889 (1980); Drake v. State, 271 Ind. 400, 401, 393 N.E.2d 148 (1979).
The Indiana statute referred to in Purdy is similar in content to K.S.A. 22-3414. It does not require oral delivery of the instructions but states that the instructions drawn by the court, as opposed to those prepared by counsel, shall be in writing when any party so requests. Nevertheless, despite the absence of a requirement of oral instruction, the court concluded that written submission of the instructions without oral recitation was contrary to the statute. A subsequent Indiana case went on to hold that the error of failing to orally instruct was not rendered harmless by the absence of an objection by defendant. Drake, 271 Ind. at 401. Thus, the duty of the court to take all possible steps to see that all members of the jury had received the instructions was held to be so fundamental that the defendant could not waive the requirement of oral instruction by failing to object.
K.S.A. 22-3414, like the Indiana statute, does not mandate that the court “shall instruct” the jury orally. However, we too conclude that oral instruction is vital to the fulfillment of the court’s duty to instruct the jury. Instruction of the jury is one of the most fundamental duties of the court and it is only through their oral delivery that the court can be assured that each member of the jury has actually received all of the instructions. If, for example, written copies of the instructions are given to each juror, a divergence in literacy and reading comprehension may well leave some jurors uninstructed. On the other hand, if the foreman is directed to read the instructions to the other jurors, defendant is deprived of the opportunity to witness the manner in which the foreman intones the instructions. A judge is obligated to act in an impartial and unbiased manner in delivering instructions. He may not sneeringly describe the defendant’s defense or make editorial comments while reading the instructions.A jury foreman is under no such constraint once the case has been submitted. Moreover, if, as in this case, the court does not even instruct the jury to read the instructions before deliberating, there is no assurance that the instructions were in fact read or that the verdict is based upon an application of the law to the evidence.
Finally, we note that, despite the absence of specific statutory direction in K.S.A. 22-3414, other statutes indicate that communications from the judge to the jury should be oral and in open court. K.S.A. 22-3420 provides that questions and requests from the jury after it has retired for deliberation be responded to in court and in the presence of the defendant and his counsel after notice to the prosecutor. State v. Dunnan, 223 Kan. 428, 573 P.2d 1068 (1978). This statute protects the defendant’s right to participate and witness the giving of added instructions, but it also underscores the need to verify that the court’s instructions are shared by all of the jurors.
In this case, the court did not read the instructions to the jury and it did not even instruct the foreman of the jury to do so. We cannot assume that despite this deficiency, the instructions were read by all members of the jury.
We conclude that the trial court erred in failing to orally instruct the jury and that this error was prejudicial. In light of this conclusion, we need not consider defendant’s other allegations of error. Judgment is reversed and the case remanded with directions to grant defendant a new trial. | [
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Abbott, J.:
This is a workers’ compensation appeal by the claimant, Saleta Nuttle, from a judgment denying her application for a civil penalty pursuant to K.S.A. 44-512a against the self-insured respondent, CertainTeed Corporation, and the Workers’ Compensation Fund.
The dispositive facts are not disputed nor is the amount of the award in dispute. The Kansas Workers’ Compensation Fund (Fund) was ordered to pay all compensation and medical expenses of the claimant. An award was then made “[i]n favor of the claimant, Saleta M. Nuttle, and against the respondent, Certain-Teed Corporation, a self-insured, and the Kansas Workers’.Compensation Fund.” (Emphasis supplied.)
The Fund failed to make timely payments to claimant and she filed two separate written demands for payment on the respondent and the Fund pursuant to 44-512a. Payments were not made in full and claimant requested civil penalties and attorney fees as provided by 44-512a. The administrative law judge, the director and the trial judge all denied the application for civil penalties and attorney fees. The claimant appeals.
The claimant contends that the respondent, as the employer, has the primary obligation to an injured employee. She argues that the Fund’s liability is derivative to that of the employer. The claimant cites and relies on Arduser v. Daniel International Corp., 7 Kan. App. 2d 225, 640 P.2d 329, rev. denied 231 Kan. 799 (1982), for support. Moreover, claimant notes the language used in the award. The district court made the award against both the respondent and the Fund. Claimant argues that the part of the judgment directing all payment be made by the Fund is merely a procedural matter and does not relieve respondent from liability for the award. Under claimant’s reasoning, then, respondent can be held liable for civil penalty under 44-512a because respondent was the “employer liable for compensation” and did not pay compensation when due.
Arduser is distinguishable on its facts and is not controlling in the instant case. It was noted in Arduser that an employer is liable for the full, amount of an award unless he can-shift the loss. 7 Kan. App. 2d at 230. Arduser merely holds' that you cannot proceed directly against the Fund — you must first establish that the employer is responsible under the act. We are dealing with post-judgment responsibility in this case, and we believe legis lative intent in K.S.A. 1984 Supp. 44-569(c) is readily ascertainable.
The underlying purpose of K.S.A. 1984 Supp. 44-567 is to encourage employment of handicapped workers. The incentive provided to employers is the relief, in whole or in part, from payment of compensation benefits when the handicapped employee is injured in certain situations. Stanley v. A & A Iron Works, 211 Kan. 510, 512, 506 P.2d 1120 (1973); Morgan v. Inter-Collegiate Press, 4 Kan. App. 2d 319, 606 P.2d 479 (1980). Provided an employer can satisfy its burden of proof and procedural requisites under K.S.A. 1984 Supp. 44-567(b) and (d), respectively, the employer effectively shifts liability to the Fund. In short, an employer’s liability for an award entered pursuant to K.S.A. 1984 Supp. 44-567(a)(A) is secondary to the Fund’s liability. Thus, we hold that the Fund was liable for payment of the compensation award while respondent’s liability was only secondary.
K.S.A. 1984 Supp. 44-569(c) authorizes reimbursement by the Fund to an employer who has had to pay compensation because the Fund had insufficient funds to make payments for which it was liable. Under K.S.A. 1984 Supp. 44-569(c) the employer becomes liable for the payment of a compensation award upon receiving notice that the Fund has insufficient funds. In the instant case, the respondent received no written notice that the Fund had insufficient funds to satisfy the award. The claimant argues that the Fund’s failure to comply with the notice requirement is irrelevant to respondent’s liability for the award; the employer has the primary obligation for a compensation award and 1984 Supp. 44-569(c) does not change this liability.
Our reading of K.S.A. 1984 Supp. 44-569(c) supports our previous conclusion that the employer is only secondarily liable after judgment is entered against the Fund. The statute in dispute provides that the employer “shall assume and become liable for the payment of compensation” upon receiving notice of insufficient funds. This language would be meaningless if the employer were already primarily liable for the award. Moreover, the notice requirement would be unnecessary if the employer were already primarily liable for the award. By implication, then, the reimbursement statute contemplates that the employer was not primarily liable for payment of the award in the first instance.
We conclude that the legislature intended K.S.A. 1984 Supp. 44-569(c) to allow the Fund to shift an employer’s obligation for an award from one of secondary liability to one of primary liability. Written notice by the Commissioner of Insurance that there are insufficient funds with which to pay the award is a prerequisite to imposing primary liability on the employer. In the absence of such notice, the employer does not “become liable” for payment.
The Fund may not be assessed a penalty. Hall v. City of Hugoton, 2 Kan. App. 2d 728, 587 P.2d 927 (1978).
The claimant has not satisfied the statutory penalty requirement that “the employer is liable for the compensation awarded” because the insurance commmissioner admittedly did not notify the employer that the Fund had insufficient funds with which to pay the award as is required by K.S.A. 1984 Supp. 44-569(c). Thus, the trial judge did not err in denying civil penalties against the self-insured respondent and the Workers’ Compensation Fund.
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Parks, J.:
This is an appeal of a workers’ compensation case by the employer IML Freight, Inc. The significant issue is whether claimant, Mitchell Edward Springston, sustained a compensable injury which arose out of his employment. The administrative law judge found the injury was not compensable but the director reversed. The district court adopted the findings of the director and the employer appeals.
The injury to claimant occurred when he and another employee, Hinds, quarreled over who had the right to drive a particular truck from Goodland to Kansas City. The dispute arose from differences in interpretation of company policy concerning priorities among drivers. Claimant and Hinds argued and then scuffled. The two men separated and claimant was struck from behind by an unseen assailant. The blow to his head caused serious injury to claimant. Although claimant could not identify his assailant, the only other person in the vicinity at the time of his argument with Hinds was another employee, Holder.
In order for a worker’s injury to be compensable, the worker must be able to establish that the injury occurred by accident “arising out of” and “in the course of” employment. K.S.A. 44-501. The two phrases, “arising out of’ and “in the course of,” have separate and distinct meanings and they are conjunctive; each condition must exist before compensation is allowable. Martin v. U.S.D. No. 233, 5 Kan. App. 2d 298, 299, 615 P.2d 168 (1980). Generally, the requirement that the injury be sustained “in the course of employment” simply means that the injury happened while the worker was at work in his employer’s service. The phrase refers to the time, place and circumstances under which the accident occurred. Lentz v. City of Marion, 222 Kan. 169, 174, 563 P.2d 456 (1977). The specification that the injury arose “out of” employment points to the cause or origin of the accident and requires some causal connection between the accidental injury and the employment. An injury arises “out of’ employment if it arises out of the nature, conditions, obligations and incidents of the employment. Martin, 5 Kan. App. 2d at 299. Finally, whether an accident arises out of and in the course of the worker’s employment depends upon the facts peculiar to the particular case. Messenger v. Sage Drilling Co., 9 Kan. App. 2d 435, Syl. ¶ 3, 680 P.2d 556, rev. denied 235 Kan. 1042 (1984).
In this case, there is no question but that the claimant’s injury was sustained in the course of his employment. Claimant was attempting to carry out his job when he was injured. However, the employer has consistently argued that the injury did not arise out of claimant’s employment but was the result of personal differences with the other employees involved. Both the director and the district court disagreed with the employer’s characterization of the evidence, concluding that the accident did arise out of claimant’s employment.
At one time it was held that an employee could not recover compensation for an on-the-job assault by another employee unless the wrongful conduct had become so habitual that the employer knew or should have known of the likelihood of its recurrence. Peavy v. Contracting Co., 112 Kan. 637, 211 Pac. 1113 (1923). This rule was followed until Peavy was overruled in Brannum v. Spring Lakes Country Club, Inc., 203 Kan. 658, 668, 455 P.2d 546 (1969). Brannum rejected the application of the tort concepts of foreseeability and negligence which had been applied in earlier cases and held that an injury by assault arises “out of’ employment when it arises out of the nature, conditions, obligations and incidents of the employment in the same manner as any other injury. As a consequence, Brannum held that a supervisor who was assaulted by an employee disgruntled over the conditions of work imposed upon him by the supervisor in the discharge of his duties was entitled to workers’ compensation benefits.
The employer contends that the holding of Brannum should be confined to cases in which the assault is perpetrated by an employee upon a supervisor and should not apply to the fight between two similarly situated employees. It contends that when the claimant is assaulted by a co-employee, he must satisfy the old rule and prove that the employer had knowledge of the danger to the claimant before his injury can be said to have arisen out of his employment. Such a holding would illogically condition compensability on the worker’s position in the job hierarchy; a supervisor could qualify for compensation under circumstances in which a laborer could not. The employer’s proposed rule would also impose the tort concept of foreseeability, which Brannum concluded was irrelevant to a worker’s right to compensation (Brannum, 203 Kan. at 666), on only one isolated portion of workers’ compensation law. Such a narrow construction of Brannum is not justified.
Turning now to the particulars of this case, the director held that the injury to claimant arose out of a combination of preexisting animosity toward claimant and a current dispute over work rules. However, the director concluded that the existing animosity of the probable assailant also resulted from a work dispute and not personal feeling which would have arisen outside of the work context. The employer contends that this conclusion is not supported by the evidence because claimant could not identify his assailant. Since claimant was struck from behind and could not identify with certainty who hit him, the employer argues that there was no causal connection shown between the injury and claimant’s work.
Here, we have a factual finding by the district court that the assault was work-related. Also, there was strong circumstantial evidence that the assault was committed by another IML employee, Ulin Holder. Claimant testified that about six or seven months earlier, Holder and Hinds had acted together in trying “to get [him] in trouble” over a broken drive shaft in Goodland. Immediately before claimant confronted Hinds about his disputed right to use the first available truck, he saw Holder in the cab of the next truck over. Claimant also testified that no one else was in the vicinity when he approached Hinds. Therefore, since Hinds and Holder had acted in concert against claimant in the past, and since no one other than Holder, Hinds and claimant were in the vicinity at the time, the logical inference would be that Holder struck claimant in defense of his friend Hinds.
In sum, the employer has failed to demonstrate that the district court applied an incorrect test to determine whether claimant’s injury arose out of his employment. Since there was evidence indicating that both the scuffle and the injury arose out of a disagreement over the conditions and incidents of the job, we conclude that the district court properly found that the injury arose out of the claimant’s employment.
The employer also argues that regardless of whether an assault injury arose out of work, compensation should be denied when the claimant himself started the fight. The employer points to authority in a minority of jurisdictions which holds that an aggressor’s injury can never arise out of his employment or that certain statutory language prohibits compensation because an aggressor’s injury results from willful misconduct. 1 Larson, Workmen's Compensation Law § 11.15 (1985). The employer contends that the director and district court erroneously held that the identity of the aggressor was irrelevant to this case; it argues that claimant should have been disqualified from coverage as the aggressor.
It must initially be noted that the identity of the aggressor is far from clear-cut. Claimant testified that he and Hinds quarreled about who had the right to drive the truck back to Kansas City; that he grabbed the bills from the truck out of Hinds’ hands and ■started to lay them in the truck; that Hinds came up to him from behind with his fists up in the air; and that claimant then pushed Hinds backward. Claimant stated that when he pushed Hinds, Hinds somehow knocked off his glasses. The claimant stood and watched with his arm in front of him as Hinds regained his balance. Claimant then noticed Hinds looking behind him but was immediately struck from behind.
The difficulty of always pinpointing a single aggressor in a scuffle is demonstrated by this case. Claimant may have made the first move in grabbing the truck bills but Hinds made the first threat of a punch. In addition, all of the contact was fairly minimal and certainly not intended to cause great injury, until claimant was hit on the head. Therefore, even if claimant was the aggressor, it was not his aggression but the overreaction of his assailant which caused his injury. Nevertheless, since the fact-finders made no finding in this case concerning the identity of the aggressor, it is the underlying legal question of whether such a status may be ignored which must now be resolved.
There are no Kansas cases which have adopted the aggressor defense. Although Larson indicates that Kansas has taken the minority position, the citation in support of this statement is to a Utah case, Wilkerson v. Industrial Comm’n, 71 Utah 355, 266 Pac. 270 (1928). 1 Larson § 11.15(a), n. 84.1. Moreover, none of the cases since Brannum have presented a situation where the assault resulted from a quarrel; both Craig v. Electrolux Corporation, 212 Kan. 75, 510 P.2d 138 (1973), and Hensley v. Carl Graham Glass, 226 Kan. 256, 597 P.2d 641 (1979), involved workers who were the victims of shootings perpetrated by non-employees. Therefore, whether the director and district court correctly held that claimant’s possible status as the aggressor was irrelevant to his recovery is a matter of first impression.
The employer contends that the language of K.S.A. 44-501 demonstrates a legislative intent to exempt aggressors from coverage under the act. Specifically, the employer points to the following:
“If it is proved that the injury to the employee results from the employee’s deliberate intention to cause such injury, or from the employee’s willful failure to use a guard or protection against accident required pursuant to any statute and provided for the employee, or a reasonable and proper guard and protection voluntarily furnished the employee by the employer, or substantially from the employee’s intoxication, any compensation in respect to that injury shall be disallowed.” K.S.A. 44-501.
Since under this provision, a worker may be ineligible for compensation if his work-related injury resulted from his deliberate intent to cause the injury or the willful failure to use a safety device, employer argues that the statute evidences an intent to disqualify a woi'ker whose responsibility for his own injuxy goes beyond mere negligence. However, the primary rule to be applied in interpreting the workers’ compensation law is that it should be liberally construed in order to award compensation when it is reasonably possible to do so. Lackey v. D & M Trucking, 9 Kan. App. 2d 679, 687 P.2d 23 (1984). The exceptions in K.S.A. 44-501 are fairly specific; the worker is not entitled to compensation if the injury is self-inflipted, if it was due to intoxication or if it results from the willful failure to use safety equipment. Had the legislature intended to include aggression in a work-related dispute in the list of disqualifying factors, it could have done so. As it is, one cannot say that a person who initiates a bit of shoving while arguing about work but who is injured when another person grossly escalates the amount of force being used had a deliberate intention to cause himself injury. To interpret K.S.A. 44-501 as including such a disqualification would be to ignore the principle of liberal construction.
Significant theoretical difficulty is also encountered if the “arising out of’ criterion is used as a device for weeding out injuries to aggressors. A majority of courts considering the advisability of such a holding have rejected it on grounds such as those stated in the following quotation:
“Subsequent cases in other jurisdictions rejecting or abolishing the aggressor defense have adopted similar grounds: that the aggression defense does not appear in the statute; that it is a fault-based concept borrowed from tort law and out of place in compensation law; that the chain of causation is not necessarily broken by the fact of striking the first blow if the episode originated in the employment; that the sole contract between the disputants was employment related; and that disapproval of an employee’s misconduct is no ground for frustrating the main purpose of workmen’s compensation, which is to prevent dependency of the claimant and his family.’’ 1 Larson § 11.15(c), p. 3-221.
See, e.g., Colvert v. Industrial Commission, 21 Ariz. App. 409, 520 P.2d 322 (1974); Andrews v. Hoss, 286 Minn. 514, 174 N.W.2d 134 (1970). Contra, Berryman v. Fettig Canning Corp., 183 Ind. App__, 399 N.E.2d 840 (1980).
In light of the holding in Brannum which rejected the application of tort fault principles to workers’ compensation law despite the presence of intentional conduct, and the absence of any statutory language disqualifying the person who starts a fight from coverage under the law, we conclude that the director and district court correctly decided that identification of the aggressor was unnecessary. So long as there is evidence that the injury arose out of and in the course of employment, it is compensable. Since we have already concluded that there was evidence in this case indicating that both the scuffle and the injury arose out of a disagreement over the conditions and incidents of the job, the finding that the injury arose out of the claimant’s employment must be affirmed.
Affirmed. | [
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Parks, J.:
Defendant Willie McKinney appeals from the district court’s denial of his pro se motion entitled “Motion for Transcripts.”
At the hearing on the motion, despite defendant’s failure to comply with Rule 183 (e) (232 Kan. clvi), the district court treated the motion both as a motion for transcripts and a motion for K.S.A. 60-1507 relief. The district court held there was no requirement that defendant be provided a transcript and that he was precluded from seeking post-conviction relief because he failed to raise his claim in his direct appeal.
Both the State and defense counsel contend that the district court should not have converted the motion for transcripts into a motion for relief under K.S.A. 60-1507. We agree. K.S.A. 60-1507 and Supreme Court Rule 183 state that only the prisoner has the right to seek collateral relief. Defendant’s motion did not, in any respect, substantially comply with the form mandated by the rule. In addition, the only relief sought was the provision of transcripts to aid in the preparation of a K.S.A. 60-1507 motion. Therefore, we reverse the district court on this point and hold that should defendant desire to file a proper 60-1507 motion, it should be regarded as his first application for relief under this statute.
We next consider whether the district court erred in denying defendant’s motion for trial transcripts.
K.S.A. 1984 Supp. 22-4506 requires a prisoner to file a petition for writ of habeas corpus or a motion attacking sentence under K.S.A. 60-1507 and an affidavit of indigency before a determination is made whether a transcript should be supplied. Having determined that a proper 60-1507 motion has not been filed in this case and since the defendant did not comply with K.S.A. 1984 Supp. 22-4506, the district court’s denial of defendant’s request for transcripts did not violate his constitutional rights. See United States v. MacCollom, 426 U.S. 317, 48 L.Ed.2d 666, 96 S.Ct. 2086 (1976).
Finally, defendant claims the district court erred in failing to appoint counsel for purposes of his motion for transcripts. Since defendant’s motion was not properly before the court because he had not first filed a 60-1507 motion, this issue is moot. Furthermore, a point not raised before, nor presented to the trial court, will not be considered for the first time on appeal. Lostutter v. Estate of Larkin, 235 Kan. 154, 166, 679 P.2d 181 (1984).
The judgment of the district court denying the defendant’s motion for transcripts is affirmed. The judgment of the district court to treat the motion as a motion for K.S.A. 60-1507 relief is reversed. | [
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Mller, J.:
David Kimzey, plaintiff, has appealed the order of the trial court granting summary judgment to the defendant Interpace Corporation, Inc., plaintiff’s employer, in a products liability action.
On or about April 11, 1980, while operating a pyramid roll machine in the course of his employment, plaintiff received an injury to his foot and leg. The machine was designed, manufactured and distributed by the Lock Joint Pipe Co., Inc., (Lock Joint) prior to a corporate merger in 1962.
In September, 1962, Lock Joint was dissolved and merged into another corporation which later merged into the defendant Interpace Corporation. As a part of the merger agreement, Inter-pace contracted to assume “all debts, liabilities, restrictions, duties and obligations” of Lock Joint.
After receiving workers’ compensation benefits from his em ployer’s insurance carrier, plaintiff brought the present action against his employer, claiming that he was injured due to the negligence, design defect and breach of warranty by Lock Joint in the design and manufacture of the roll machine, and that Interpace, as corporate successor to Lock Joint, was liable by reason of its agreement to assume Lock Joint’s liability for product defects and negligence.
The defendant’s motion for summary judgment was sustained on the ground that plaintiff s exclusive remedy against his employer was under the Workmen’s Compensation Act.
The policy and purpose of workers’ compensation acts is to provide a swift and sure source of benefits to the employee for injuries arising out of and in the course of his employment, and to shift from the employee to the industry the burdens incidental to modern industrial operations. Duncan v. Perry Packing Co., 162 Kan. 79, 174 P.2d 78 (1946).
Under such acts, the employee is required to relinquish his right to sue for damages sustained in job-related injuries, and the employer is required to accept a no-fault liability for a measure of damages prescribed by statute. In effect, a form of strict liability is imposed upon the employer to pay for industrial accidents.
The exclusive remedy provision of the Kansas Workmen’s Compensation Act states:
“If in any employment to which the workmen’s compensation act applies, personal injury by accident arising out of and in the course of employment is caused to an employee, his or her employer shall be liable to pay compensation to the employee in accordance with the provisions of the workmen’s compensation act. . . . Except as provided in the workmen’s compensation act, no employer, or other employee of such employer, shall be liable for any injury for which compensation is recoverable thereunder nor shall an employer be liable to any third party for any injury or death of an employee which was caused under circumstances creating a legal liability against a third party and for which workmen’s compensation is payable by such employer.” K.S.A. 44-501.
Under this statute, the well-established rule is that if an employee recovers benefits under the Workmen’s Compensation Act, he cannot maintain a common law negligence action against his employer for damages. Zehring v. Wickham, 232 Kan. 704, 658 P.2d 1004 (1983); Fugit, Administratrix v. United Beechcraft, Inc., 222 Kan. 312, 564 P.2d 521 (1977).
The act has been liberally construed “to bring workers under the act whether or not it is desirable for the specific individual’s circumstances.” Mays v. Ciba-Geigy Corp., 233 Kan. 38, 65, 661 P.2d 348 (1983).
If, however, the worker’s injuries for which compensation is payable were caused by the negligence of a third person not in the same employ as the injured worker, the worker is not precluded from accepting the compensation and also pursuing a cause of action against the third person. K.S.A. 1983 Supp. 44-504(a); Houk v. Arrow Drilling Co., 201 Kan. 81, 439 P.2d 146 (1968); Zehring v. Wickham, 232 Kan. 704.
This kind of third party liability provision has prompted considerable discussion in the law as to whether there are ever any circumstances under which an employer may be sued by an injured employee as a third-party tortfeasor, 2A Larson’s Workmen’s Compensation Law § 72.81 (1983), and it has given rise to the so-called dual capacity doctrine under which plaintiff asserts liability in this case.
According to the dual capacity doctrine, an employer who is generally immune from tort liability to an employee injured in a work-related accident may become liable to his employee as a third-party tortfeasor if he occupies, in addition to his capacity as an employer, a second capacity that confers upon him obligations independent of those imposed upon him as an employer. It is in this second capacity that liability to an employee may be imposed.
In Weber v. Armco, Inc., 663 P.2d 1221 (Okla. 1983), the Oklahoma Supreme Court discussed in some detail the appropriate application of the dual capacity doctrine. Relying on the reasoning of Professor Arthur Larson, the nation’s leading authority on the subject, the court stated:
“This concept of duality, which confers third party status upon the employer, is more meaningful when viewed in terms of an employer having a dual persona. An employer may become a third person if he possesses a second persona so completely independent from and unrelated to his status as an employer, that by established standards, the law recognizes it as a separate legal person.” 663 P.2d at 1225.
The court, in accordance with the great weight of authority in this country, rejected application of the dual capacity doctrine under a products liability theory in cases where the employer manufactures, distributes or installs a product used in the employee’s work on the ground that the employer’s duty to provide a safe workplace for its employee and its duty as a manufacturer to make a safe product are so inextricably intertwined that it cannot logically be separated into two distinct legal persons.
Professor Larson has criticized the dual capacity doctrine, noting that the term “capacity” has no fixed legal meaning and that it is not uncommon for an employer to occupy many capacities simultaneously, such as landowner, products manufacturer, vendor, repairman, and lessor, among others. He concedes, however, that there are exceptional situations in which the concept may legitimately be employed as, for example, a trustee-owner of a business, or a one-man corporation, where immunity is not conferred upon the individual for torts he commits upon the employees of the business. 2A Larson’s Workmen’s Compensation Law § 72.81. See also Duprey v. Shane, 39 Cal.2d 781, 249 P.2d 8 (1952).
If the roll machine involved in this case had been manufactured by defendant Interpace, it is clear that workers’ compensation would be plaintiffs exclusive remedy. Annot., 66 A.L.R. 3rd 824; Annot., 9 A.L.R. 4th 873; 2A Larson’s Workmen’s Compensation Law § 72.83.
If Lock Joint were a separate corporation still in existence, it is equally clear that plaintiff could maintain an action against Lock Joint as a third-party tortfeasor, and the employer would be subrogated to the extent of the compensation it provided. K.S.A. 1983 Supp. 44-504(a), (b). The problem is that Interpace, the successor corporation, fits neither category.
Plaintiff argues that defendant’s liability in this case does not arise out of the employment relationship or because of any negligence or fault on the part of defendant. Rather, its liability as successor corporation is premised on the tortious conduct of Lock Joint, a third party. Thus, he argues, the exclusivity provision of the Workmen’s Compensation Act does not bar an action against Interpace, who has contractually assumed the obligations and liabilities of a third-party tortfeasor. The issue is one of first impression in this state.
The leading case on this question is Billy v. Consolidated Mach., 51 N.Y.2d 152, 432 N.Y.S.2d 879, 412 N.E.2d 934 (1980). The essential facts are closely similar. The deceased worker’s widow collected compensation death benefits and then instituted a common law action against her deceased husband’s employer. The action was based upon the design and manufacture of a defective machine by a prior corporation which had been acquired by the succeeding corporate employer through a series of consolidations and mergers.
As a part of the merger, the defendant corporation contracted to assume the liabilities and obligations of the predecessor corporations, including those of the corporation that had designed and manufactured the defective machine. The defendant employer argued that it was immune from the action because of the exclusivity provisions of the New York workers’ compensation law.
The court discussed at some length the dual capacity doctrine and its proper application and, in a well-reasoned opinion, held that where the employer’s liability is alleged to arise solely by reason of its independent assumption, by contract or operation of law, of the obligations of a third-party tortfeasor, the exclusivity provisions of the workers’ compensation law do not bar a common law action by an employee against his employer for injuries sustained in the course of his employment. Billy v. Consolidated Mach., 51 N.Y. 2d at 156.
Defendant contends, however, that our Supreme Court has consistently held on numerous occasions that where an employee is injured and the Workmen’s Compensation Act applies, the remedies provided thereunder are exclusive. Defendant further maintains that the Act does not exempt any theories of recovery from its exclusivity provision, and therefore an employee who has received benefits under the act may not maintain an action against his employer on any other theory.
Undeniably, our Supreme Court has consistently upheld the exclusivity provision of the Act. Zehring v. Wickham, 232 Kan. 704; Yocum v. Phillips Petroleum Co., 228 Kan. 216, 612 P.2d 649 (1980); Fugit, Administratrix v. United Beechcraft, Inc., 222 Kan. 312; Bright v. Bragg, 175 Kan. 404, 264 P.2d 494 (1953). But the court in those cases has never been called upon to decide a case in which the employer’s liability is alleged to have arisen solely from its independent assumption by contract of the obligations and liabilities of a third-party tortfeasor.
The problem with a rule such as advocated by defendant is that it would cloak the employer with absolute immunity from liability under any theory to an injured employee who is eligible for or has received workers’ compensation even though the liability asserted arises outside the employment relationship. As we have previously noted, there are exceptional circumstances under which application of the dual capacity doctrine is appropriate.
The doctrine should not be used for the purpose of simply evading the exclusivity provision of the Workmen’s Compensation Act. When properly applied, it will be limited to those exceptional situations where the employer-employee relationship is not involved because the employer is acting as a second persona unrelated to his status as an employer, that confers upon him obligations independent of those imposed upon him as an employer. As such, it will not defeat the purposes or policies of the act. Nor, in our view, will it erode the employer’s immunity under the exclusivity provision of the act where the claim of liability is properly within the purview of the act. Wright v. United States, 717 F.2d 254 (6th Cir. 1983); Handley v. Wyandotte Chem., 118 Mich.App. 423, 325 N.W.2d 447 (1982).
Plaintiff s action is essentially an attempt to recover from a third-party manufacturer of a defective machine through a suit against its successor corporation. Interpace, the successor corporation, by reason of the merger and its agreement to assume the liabilities of Lock Joint, the third-party manufacturer, stands in the shoes of Lock Joint with respect to the question of liability. Since Lock Joint had no basis to invoke the exclusivity provision of the Workmen’s Compensation Act against plaintiff, Interpace is similarly precluded here.
The trial court erred in granting summary judgment to the defendant.
Reversed and remanded. | [
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Meyer, J.:
This is a declaratory judgment action in a teacher nonrenewal case. The school board appeals from the trial court’s order granting summary judgment in favor of plaintiff Jerome Hein, thereby awarding the teacher reinstatement and damages.
At issue in this appeal are the due process provisions of the Teacher Tenure Law, K.S.A. 72-5436 et seq. Specifically, under the Teacher Tenure Law, an individual teacher’s contract is deemed to continue for succeeding years “unless written notice of termination or nonrenewal is served as provided in this section.” K.S.A. 1984 Supp. 72-5437. Under the law as it existed at the time notice of Hein’s nonrenewal was sent, such written notice had to be served upon the teacher by April 15th of the year of termination. K.S.A. 72-5437. No contention is made that the notice sent Hein was other than timely served.
The specific procedure for serving a notice of nonrenewal and the content such form must take is outlined in K.S.A. 72-5438:
“Whenever a teacher is given written notice of intention to not renew the teacher’s contract as provided in K.S.A. 72-5437, or whenever such a teacher is terminated before the end of his or her contract term, the teacher shall be given a written notice of the proposed nonrenewal or termination including (1) a statement of the reasons for the proposed nonrenewal or termination, and (2) a statement that the teacher may have the matter heard by a hearing committee, upon written notice filed with the clerk of the board of education or the board of control, or the secretary of the board of trustees within fifteen (15) days from the date of such notice of nonrenewal or termination that he or she desires to be heard and designating therein one hearing committee member.”
Did the school board comply with the provisions of K.S.A. 72-5438 when it discharged Hein? An examination of the “notice” sent answers the query. The “notice” sent Hein provided as follows:
“As previously discussed with you on Thursday, April 7, 1983, this motion is taken from the minutes of the regular monthly meeting of the Board of Education of USD-238.
‘It was moved and seconded that Mr. Hein be notified that due to staff reduction his position has been eliminated. The new position will be English,
Speech, Drama and Creative Writing for next school term. Motion carried 7-0.’ “If you have questions, please feel free to contact me.
Sincerely,
/s/ J. S. Wagner”
This letter does not state specifically that Hein’s individual teaching contract was being nonrenewed for the 1983-84 school year and it does not inform him that he has a statutory right to a due process hearing on the board’s decision. The school board, by its own admission in its answer to Hein’s petition for declaratory judgment, acknowledges its failure to follow the statutory requirements of K.S.A. 72-5438.
Hein makes no contention that the school board acted arbitrarily or capriciously in its decision to nonrenew his contract, and he does not contend that he was disallowed a full and fair hearing as provided by the due process statutes. Instead, Hein argues that the “notice” of April 12,1983, was deficient and that, therefore, the provision of K.S.A. 1984 Supp. 72-5437 mandating that a contract for the next school year shall continue unless notice is served as provided “in this section” requires the extension of his contract for another year regardless of any subsequent due process hearing. We disagree.
Although strict interpretation of K.S.A. 72-5436 et seq. would require this court to find the noncompliance with K.S.A. 72-5438 required reinstatement of Hein to his teaching position and awarding him damages, we conclude that the subsequent due process hearing renders any issue with regard to the propriety of the notice of hearing moot. In this we note that although Hein was not specifically told he was nonrenewed and although the April 12th notice did not fully comply with K.S.A. 72-5438, Hein nevertheless, within the statutorily provided 15-day period, on April 25th requested a due process hearing on his nonrenewal. Thus, despite deficient notice, Hein exercised all rights he otherwise would have been entitled to had proper notice been given.
It is the duty of our 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.” City of Roeland Park v. Cross, 229 Kan. 269, 270, 623 P.2d 1332 (1981). (Citations omitted.) The rule was also summarized in Hannon v. Maynard, 3 Kan. App. 2d 522, 523, 597 P.2d 1125 (1979), as follows:
“ ‘The general rule is that appellate courts do not decide moot questions or render advisory opinions. In re Browning, 1 Kan. App. 2d 652, Syl. ¶ 1, 573 P.2d 1095 (1977). The mootness doctrine is one of court policy (Knowles v. State Board of Education, 219 Kan. 271, Syl. ¶ 2, 547 P.2d 699 [1976]). This policy recognizes that it is the function of a judicial tribunal to determine real controversies relative to the legal rights of persons and property which are actually involved in the particular case properly brought before it, and to adjudicate those rights in such manner that the determination will be operative, final and conclusive. 1 C.J.S., Actions § 17.’ ”
We must next address whether Hein’s repeated attempts at the due process hearing and before to preserve his right to object to the insufficiency of the notice prevent the subsequent due process hearing from rendering Hein’s claim moot. We conclude they do not.
While Hein asserts his appearance at the due process hearing was “special” only, and that he did not waive his rights, we deem it important to set out his letter to the school board as follows:
“Kensington, Kansas 66951
April 25, 1983
Mrs. Lee Clarke, Clerk USD 238 Board of Education Kensington, Kansas 66951
Dear Mrs. Clarke,
Please be advised that without waiving any statutory rights, I am, hereby, requesting a due process hearing pursuant to KSA 72-5438.
I hereby name Max Dibble, Kensington, Kansas 66951, as my appointee to the Hearing Committee. Please notify me, my appointee, and my counsel of the name and address of the board’s appointee to the Hearing Committee within fifteen (15) days of this letter.
Asher Bob White, 221-A East 8th Street, Hays 67601, will act as my counsel at any hearing. I request a certified shorthand reporter to record and transcribe the hearings.
In closing, I reiterate that this demand for a hearing does not constitute any waiver, nor is it intended to constitute a waiver or any acquiesence of any rights under KSA 72-5436 et seq., and it is my belief that Mr. Wagner’s letter of April 12 is wholly and totally defective as a notice of nonrenewal or termination.
Sincerely,
Is/ Jerome Hein Jerome Hein
CC: J.S. Wagner, Superintendent
Francis Sweat, President USD 238 Asher Bob White”
Although Hein objects to the deficient notice, as can be seen from the above letter and other facts of record, pursuant to that notice, Hein requested a hearing in writing, filed this request with the Clerk of the Board of Education, notified the school board he had selected counsel, designated a hearing committee member, requested his counsel be notified of the other hearing committee member appointed by the school board, and even requested that a certified reporter transcribe the hearing. As previously stated, a hearing was held, and Hein acknowledges he had a fair hearing and an opportunity to present his side of the controversy. In sum, we can find no harm caused by the deficient notice. Hein received all rights he would have been entitled to had proper notice been served.
Moreover, even if the notice sent Hein was defective, his request for a hearing before the school board and his subsequent participation therein constituted a waiver of any deficiencies present in the notice. Million v. Board of Education, 181 Kan. 230, Syl. ¶ 4, 310 P.2d 917 (1957).
It has been stated in 68 Am. Jur. 2d, Schools § 187 that “[a] teacher who participates in a hearing for his dismissal waives any defect in the notice of dismissal.” The rule has also been stated in 78 C.J.S., Schools and School Districts § 204, p. 1095 as follows: “Waiver. Defects in the notice may be waived by the teacher, such as by appearing at, and participating in, the hearing.” Accord White v. South Park Independent School Dist., 693 F.2d 1163 (5th Cir. 1982); Board of Education v. Jewett, 21 Cal. App. 2d 64, 68 P.2d 404 (1937); Bd. of Education in Wilm. v. Delaney, 52 Del. 213, 155 A.2d 51 (1959); Van Peursem v. Consolidated Ind. Sch. Dist., 240 Iowa 1100, 38 N.W.2d 615 (1949). Following the rules just enunciated, we find no merit to Hein’s contention that his objection to deficient notice before his participation in the due process hearing preserved his claim.
It is significant to this court that Hein has not demonstrated that the deficient notice has in any way caused him harm. Hein received a full and fair due process hearing within the statutory time constraints just as if he had been given proper notice. As such, the issue regarding deficient notice is moot, and the decision of the district court must be reversed.
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Briscoe, J.:
Defendant Myers appeals criminal convictions and sentencing on drug charges.
On July 15, 1982, a search warrant was issued for a residence owned and occupied by the defendant and his wife in Emporia, Kansas. The search warrant was issued for amphetamines, items for the sale or use of amphetamines, and items which would identify the occupants of the residence. The warrant was executed the next day, July 16. The defendant’s residence was searched and various items of personal property were seized. As items of property were collected, Officer Paul Yonally, using a tape recorder, described the items and the locations from which they were taken within the residence. As a result of the search, numerous charges were filed against the defendant.
The defendant filed a motion to suppress all of the seized items, alleging they were beyond the scope of the search warrant. A suppression hearing was held, during which the defendant moved to strike the testimony of Yonally because the evidence inventory tape had been erased. The district court denied the motion to suppress and the motion to strike Yonally’s testimony.
With the defendant reserving the right to appeal on issues of law, the case was tried to the court upon the parties’ stipulation to the facts. The district court found the defendant guilty of possession of a hallucinogenic drug (K.S.A. 1984 Supp. 65-4127b[a][3]) and possession of a depressant (65-4127b[a][l]). Both counts were held to be class D felonies because of defendant’s prior conviction under 65-4127b. K.S.A. 1984 Supp. 65-4127b(a).
The defendant was sentenced to two concurrent terms of three to ten years. Subsequent motions to modify the sentence were denied. Defendant raises three issues on appeal:
(1) Whether the district court erroneously refused to strike the testimony of Yonally when his tape-recorded inventory statement had been erased;
(2) Whether the evidence seized by the police officers in the course of their search of defendant’s home was inadmissible; and
(3) Whether there was sufficient evidence of a prior conviction under 65-4127b for the district court to sentence the defendant for a class D felony.
Prior to oral argument, we questioned the timeliness of defendant’s appeal and ordered the parties to address at argument our jurisdiction to hear the appeal. We turn first to an examina tion of the jurisdictional issue raised on our own motion. State v. Bickford, 234 Kan. 507, 509, 672 P.2d 607 (1983).
Several dates are relevant to this issue. The defendant was orally sentenced from the bench on June 1,1983. He then filed a motion to modify his sentence, which was denied. On September 21, 1983, the defendant filed a second motion to modify his sentence, 112 days after sentencing. This second motion was orally denied on October 5,1983,126 days after sentencing, with the journal entry memorializing the denial filed on October 20, 1983, 141 days after sentencing. Defendant filed his notice of appeal on October 26, 1983, 147 days after sentencing.
The time within which a criminal defendant may appeal is fixed by statute. K.S.A. 22-3608(1) provides:
“If sentence is imposed, the defendant may appeal from the judgment of the district court not later than ten days after the expiration of the district court’s power to modify the sentence.”
K.S.A. 1984 Supp. 21-4603(3) provides:
“Any time within 120 days after a sentence is imposed . . . the court may modify such sentence ... by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits. If an appeal is taken and determined adversely to the defendant, such sentence may be modified within 120 days after the receipt by the clerk of the district court of the mandate from the supreme court or court of appeals.”
The two statutes, read together, appear to give a criminal defendant 130 days after sentencing in which to take a direct appeal. Kansas cases have so held. See, e.g., State v. Moses, 227 Kan. 400, 404, 607 P.2d 477 (1980); State v. Smith, 223 Kan. 47, 47, 574 P.2d 161 (1977).
The jurisdictional issue raised in this appeal is whether judicial interpretation of K.S.A. 1984 Supp. 21-4603(3) extending the time in which a district court can rule on a sentence modification motion also extends the appeal time under K.S.A. 22-3608(1). See State ex rel. Owens v. Hodge, 230 Kan. 804, 641 P.2d 399 (1982).
General principles of appellate jurisdiction are well established and often stated:
“The right of appeal is entirely a statutory right; no appellate review is required by the federal constitution [citation omitted] or the Kansas Constitution. [Citations omitted.] It is the established rule in this state that this court has no jurisdiction to entertain an appeal by defendant in a criminal case, unless he takes his appeal within the time prescribed by the statutes providing for such an appeal. [Citations omitted.] The supreme court has only such appellate jurisdiction as is conferred by statute pursuant to Article 3, Section 3, of the Kansas Constitution, and when the record discloses lack of jurisdiction, it is the duty of the supreme court to dismiss the appeal. [Citations omitted.]” State v. Smith, 223 Kan. at 48.
See also State v. Moses, 227 Kan. at 404; City of Kansas City v. Sherman, 9 Kan. App. 2d 757, 758, 687 P.2d 1383 (1984).
The jurisdictional issue we address is one of first impression and arises as a corollary to the decision in State ex rel. Owens v. Hodge, 230 Kan. 804. In Hodge, the petitioner district attorney sought a mandamus against the respondent district judge which would require the judge to withdraw an order placing a convicted criminal defendant on probation. The issue posed was “whether a district court in Kansas loses jurisdiction to act upon a motion for reduction of a sentence or for probation under K.S.A. 21-4603(3) ... at the expiration of the applicable 120-day period, even though a motion for reduction of sentence or for probation was timely filed by the defendant within that time period.” 230 Kan. at 804. Relying on federal precedent and enunciating Kansas Criminal Code and Kansas Code of Criminal Procedure philosophy, Hodge rejected literal interpretation of K.S.A. 21-4603(3) and held that “a district court does not lose jurisdiction to act upon a motion for reduction of sentence or for probation at the expiration of the 120-day period after sentence was imposed, where a timely motion has been filed by defendant within that time period and where the district judge reasonably needs the time to consider and act upon the motion.” 230 Kan. at 814.
Here, the defendant timely filed his second motion to modify sentence by filing it 112 days after the oral pronouncement of his sentence, which is within the 120-day period after sentence was imposed. K.S.A. 1984 Supp. 21-4603(3). Although the district court ruled on the motion to modify 126 days after the pronouncement of sentence, the court still had jurisdiction to make that ruling under State ex rel. Owens v. Hodge, 230 Kan. at 814.
The time limitation on a criminal defendant’s right to a direct appeal is statutorily linked to the time in which a district court may modify his sentence. K.S.A. 22-3608(1) and K.S.A. 1984 Supp. 21-4603(3). Under K.S.A. 22-3608 (1), the defendant has 10 days after the district court’s decision on the motion to modify in which to perfect his appeal. The statute provides the defendant may appeal “not later than ten days after the expiration of the district court’s power to modify the sentence.” Since the district court’s power to modify is extended beyond the 120-day period under Hodge, the defendant would have 10 days from the date the district court ruled on the motion to modify to file his notice of appeal.
Although this procedure may result in the extension of the 130-day time limitation for the filing of a direct criminal appeal in certain cases, that extension is required under K.S.A. 22-3608(1) and K.S.A. 1984 Supp. 21-4603(3) when read with Hodge. This procedure also has the avoidance of concurrent jurisdiction to recommend it. In State v. Dedman, 230 Kan. 793, 796-97, 640 P.2d 1266 (1982), the court held the district court lacked jurisdiction to modify a sentence after the notice of appeal was filed, referring to the general rule that district court jurisdiction ends upon appellate docketing. This position was reaffirmed in State v. Williams, 235 Kan. 485, 495, 681 P.2d 660 (1984). Dedman is distinguishable from the case at bar in that defendant Dedman perfected his appeal, including an attack on his sentence, before filing a motion in the district court to modify his sentence. Nonetheless, we think it significant that, in dicta, the court stated a policy position that criminal actions be lodged in only one court at a time. 230 Kan. at 797. If a criminal defendant’s appeal time were strictly limited to 130 days, regardless of a pending motion to modify sentence, defendant would have to file his direct appeal within 130 days on all issues except those pertaining to his sentence. Issues pertaining to his sentence could not be appealed until decided by the district court, and the appellate court would have no alternative but to stay the appeal until determination of the motion to modify. In effect, defendant’s appeal would not move forward, and two courts would be involved in the case. The potential for drift in the system is enormous.
In the case at bar, the defendant’s notice of appeal was filed six days after the journal entry denying the motion to modify, but 21 days after the court’s oral denial. The crucial issue in this case then becomes whether the 10-day period of K.S.A. 22-3608(1) begins to run from the oral denial of the motion, or from the filing of the journal entry denying the motion. We conclude the 10-day period to file a notice of appeal must run from the filing of the journal entry deciding the motion, not from the oral ruling.
The rationale for running the 120-day appeal time from oral pronouncement of the sentence is unique to sentencing. See State v. Moses, 227 Kan. 400, 402, 607 P.2d 477 (1980), and cases cited therein. K.S.A. 1984 Supp. 22-3405(1) requires that the defendant be present when sentence is imposed. The defendant’s presence at sentencing insures defendant’s immediate notice of the sentence imposed and the opportunity to timely pursue an appeal. However, the presence of a defendant at the pronouncement of the decision on a post-sentencing motion is discretionary with the district court. State v. Bryant, 227 Kan. 385, 390, 607 P.2d 66 (1980).
As the defendant has no right to be present when the district court rules on his motion to modify, the court’s power to modify a sentence upon a motion filed within the 120 days should end upon the filing of the order denying the motion. If the district court acts on a timely filed motion to modify sentence beyond the 120-day statutory limit, the criminal defendant has ten days from the filing of the journal entry deciding the motion in which to perfect his appeal. Here, defendant’s notice of appeal was timely when filed six days after the journal entry denying the motion to modify.
Having determined jurisdiction, we turn to defendant’s first issue. Defendant contends the district court erred in failing to strike Detective Yonally’s testimony at the suppression hearing when his tape-recorded inventory of items seized had been erased prior to the hearing. As a result of this erasure, the State could not produce the tape pursuant to the defendant’s request under K.S.A. 22-3213. Defendant also raised the discrepancy in the number of items on the two typed property returns as further support of his motion to strike. One return listed 74 items; the other, 75 items.
The district court should consider the following factors when ruling upon a motion to strike testimony for failure to comply with K.S.A. 22-3213:
“why the statement was not produced; if it was lost, the facts and circumstances surrounding the loss; the negligence or fault on the part of the state; the nature, relevance and importance of the statement; the risk of prejudice to the defendant;the essentiality of the testimony to the state; and the other evidence in the case.” State v. Wilkins, 220 Kan. 735, 741, 556 P.2d 424 (1976).
Whether the testimony will be stricken is within the district court’s discretion, subject to reversal on appeal only if no reasonable person would adopt the district court’s view. Wilkins, 220 Kan. at 741-42.
In the case at bar there was no evidence or contention that Detective Yonally acted in bad faith. He erased the tape after he read and reviewed what he believed were accurate transcriptions of the tape. The detective explained the discrepancy in the number of items listed by testifying item number 75 was some residue he scraped from a scale seized in the search of defendant’s residence. Item 75 was not on the original tape of the items seized, but was added upon Detective Yonally’s request after the search. The record reveals the defendant thoroughly cross-examined Detective Yonally regarding this discrepancy.
The defendant has failed to show that he was prejudiced by the erasure of the tape. As in State v. Eubanks, 2 Kan.App.2d 262, 264, 577 P.2d 1208, rev. denied 225 Kan. 846 (1978), verbatim transcriptions were made of the tape, and the defendant was afforded complete access to the transcriptions. Defendant had the opportunity to cross-examine Detective Yonally regarding the tape and the transcripts, and also Officer Finger regarding the items seized at defendant’s residence.
The district court did not abuse its discretion in refusing to strike the testimony of Detective Yonally.
Defendant next contends the evidence seized by police officers in the course of their search of defendant’s home was inadmissible. Specifically, defendant alleges the police acted beyond the scope of the search warrant in violation of the Fourth Amendment’s prohibition against unreasonable search and seizure, and that the search did not fall within the “plain view” exception to the warrant requirement as set out in State v. Galloway, 232 Kan. 87, 94, 652 P.2d 673 (1982).
Defendant’s contention that the officers’ search exceeded the scope of the search warrant is without merit. The search warrant authorized a search of defendant’s house for amphetamines. One of the officers who conducted the search testified that amphetamines can be in powder, tablet or capsule form. The container search conducted here, which included search of Tylenol bottles and prescription bottles, was reasonable given the object searched for. As stated in United States v. Ross, 456 U.S. 798, 820-822, 72 L.Ed.2d 572, 102 S.Ct. 2157 (1982):
“A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found. . . . When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home . . . must give way to the interest in the prompt and efficient completion of the task at hand.”
In order to conduct a search for something which was as small in size as amphetamines, the officers acted reasonably in searching containers and small areas. Further, it appears logical that a search for amphetamines would include a search of pill bottles.
The defendant also contends that the seizure of items not listed on the search warrant was illegal. Defendant argues the search had become a “general search” resulting in the “wholesale collection of any and all medicines, tablets, capsules or other things located within the home.” We find seizure of these additional items proper under the plain view exception to the Fourth Amendment.
The plain view exception is applicable where it is shown:
“1) The initial intrusion which afforded the authorities the plain view was lawful by virtue of a warrant (search or arrest), waiver or exigent circumstances; 2) the discovery of the evidence was inadvertent; and 3) the authorities immediately had reasonable or probable cause to believe the evidence observed in plain view was incriminating in nature.” State v. Galloway, 232 Kan. 87, 94, 652 P.2d 673 (1982).
The defendant concedes the initial intrusion into the defendant’s residence was lawful by virtue of a valid search warrant. The police officers testified the Tylenol and prescription bottles were of such a size that they could contain amphetamines. Detective Yonally testified the reason he opened a prescription bottle was because he was looking for amphetamines and/or any other controlled substance. As previously stated, a search for something the size of amphetamines would require the search of small containers. Here, the officers’ discovery of other narcotics while embarked on a reasonable search for amphetamines was inadvertent, satisfying the second requirement of the plain view exception. State v. Galloway, 232 Kan. at 94.
A search of the Tylenol bottles and prescription bottles revealed pills and substances other than Tylenol. The officers testified as to the various shapes and forms amphetamines can have and that they believed it was possible the contents of the bottles could be amphetamines. These facts taken together would give authorities both reasonable and probable cause to believe the evidence observed in plain view was incriminating in nature. Therefore, the search satisfies all of the requirements of the plain view exception as set out in State v. Galloway, 232 Kan. at 94. The evidence seized by the police officers was clearly admissible.
The defendant contends there was insufficient evidence of a prior conviction under 65-4127b for the district court to sentence the defendant for a class D felony. K.S.A. 1984 Supp. 65-4127b(a) provides in pertinent part:
“Any person who violates this subsection shall be guilty of a class A misdemeanor, except that upon conviction for a second or subsequent offense, such person shall be guilty of a class D felony.”
The parties stipulated to certain facts at a trial to the court. One of the facts offered by the State was that the defendant had previously been convicted of a violation of 65-4127b, making both of the offenses charged class D felonies. In the presence of the defendant, defense counsel objected to the introduction of evidence of the prior conviction because, although the conviction was under 65-4127b, it was for marijuana or THC and not diazepam or lysergic acid diethylamide. At sentencing, the defendant indicated he had received a copy of the presentence report and that he knew of no amendments or deletions which should be made to the report. Although not in the record on appeal, both parties acknowledge that the report indicated defendant had been previously convicted of possession of marijuana and possession of phenobarbital.
Evidence of prior convictions is not an element of the offense charged, but rather is pertinent only to sentence enhancement under K.S.A. 1984 Supp. 65-4127b and should be presented in the same manner as such evidence is presented under the habitual criminal act, K.S.A. 1984 Supp. 21-4504. State v. Loudermilk, 221 Kan. 157, 161, 557 P.2d 1229 (1976) (analyzing K.S.A. 65-4127a). K.S.A. 1984 Supp. 21-4504(e) provides that “[a] judgment may be rendered pursuant to this section only after the court finds from competent evidence the fact of former convictions for felony . . . Where a defendant admits prior convictions of felonies, competent evidence of prior convictions has been provided by the admission. See State v. Hazelwood, 209 Kan. 649, 658, 498 P.2d 607 (1972); Tuscano v. State, 206 Kan. 260, 264-65, 478 P.2d 213 (1970); Darling v. Hoffman, 180 Kan. 137, 138, 299 P.2d 594 (1956).
In the case at bar, the defendant’s attorney admitted the defendant’s prior convictions in the presence of the defendant at the time of the stipulations and at the time' of sentencing. These statements provided evidence of prior convictions which was sufficient for the court to enhance the penalty under K.S.A. 1984 Supp. 65-4127b to class D felonies. State v. Ralph, 194 Kan. 356, 360-61, 399 P.2d 548 (1965); Reffitt v. Edmondson, 177 Kan. 83, 85, 276 P.2d 341 (1954).
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Parks, J.:
Petitioner, William Ronald Hearron, appeals from the trial court’s order denying him relief sought under K.S.A. 60-1507.
On February 1, 1979, Detective Ernest Orr of the Kansas City Police Department filed an affidavit for a search warrant seeking permission to search the petitioner’s residence for various items which had been stolen in residential burglaries. The judge also heard oral testimony from Detective Orr and a confidential informant regarding the application for the search warrant and this testimony was recorded on tape. However, a transcription of the tape was not filed with the clerk of the district court until June 28, 1984. The confidential informant, whose identity was not revealed because of fear for his safety, testified that he was aware that stolen property was inside the residence because he had been to the house, he was “familiar with the little system” used for selling stolen merchandise and the resident told him the items were stolen.
Based on the affidavit and oral testimony, the judge signed a search warrant for petitioner’s residence. Detective Orr and members of the S.C.O.R.E. Unit executed the search warrant on February 1,1979. In addition to the property listed on the search warrant, the officers found Jerome and James Scaife hiding behind a false ceiling in the attic. The petitioner and the Schaifes were suspects in a homicide committed in the course of a burglary attempt. James Scaife and petitioner were subsequently convicted of felony murder and several burglary and theft charges.
On direct appeal, the petitioner challenged only the murder conviction, which was affirmed. State v. Hearron, 228 Kan. 693, 619 P.2d 1157 (1980). On February 14, 1983, petitioner filed this motion to vacate his sentence pursuant to K.S.A. 60-1507, alleging that he had been denied effective assistance of counsel. The only allegation of error was based on trial counsel’s failure to attempt to suppress .the evidence seized during the execution of the 1979 search warrant. After considering the argument of the State and petitioner, the trial court held: (1) The written affidavit of Detective Orr, standing alone, was inadequate to support a finding of probable cause for the search warrant; (2) the oral proceedings were adequate for a finding of probable cause despite the fact that the informant’s identity was not disclosed; and (3) the failure of trial counsel to request suppression of the fruits of the search warrant did not violate the petitioner’s right to effective assistance of counsel. Petitioner filed a timely appeal.
The sole issue on appeal is whether petitioner was denied effective assistance of counsel by the failure of his trial attorney to file a motion to suppress the evidence seized in the execution of the search warrant.
Recently, in Chamberlain v. State, 236 Kan. 650, 694 P.2d 468 (1985), our Supreme Court adopted the standards for evaluating a claim of ineffective assistance of counsel announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984). Our Court held that, although our own existing state guidelines remain viable, the prevailing yardstick for a Sixth Amendment claim should be the following Washington standards:
“First: The Sixth Amendment right to counsel is the right to the effective assistance of counsel, and the benchmark forjudging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.
“Second: A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or setting aside of a death sentence requires that the defendant show, first, that counsel’s performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.
“(a) The proper standard forjudging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. 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 court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.
“(b) 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.” Chamberlain, 236 Kan. at 656-57.
Petitioner contends that the evidence seized in the search of his home was critical to his convictions. He argues that the search warrant authorizing this search was defective and, thus, that defense counsel’s failure to obtain suppression of the evidence amounted to a denial of effective assistance. Petitioner alleges the following defects in the warrant: (1) the oral testimony was not reduced to writing as required by K.S.A. 22-2502 (a); (2) the identity of the confidential informant was not revealed; (3) the testimony offered in support of the application was insufficient for a probable cause finding; and (4) the warrant was the product of pretext and deception.
To evaluate petitioner’s argument in light of the standards adopted in Chamberlain, we must first decide whether, considering all of the circumstances, counsel’s failure to file a motion to suppress the seized evidence indicates defective representation. To accomplish this task we must consider the likelihood that such a motion would have been successful from the perspective of trial counsel. If we conclude that the representation received by petitioner fell below an objective standard of reasonableness, we must then determine whether there is a reasonable probability that, but for this conduct, the outcome of petitioner’s trial would have been different.
The evidence offered in support of the issuance of the search warrant consisted of written and oral testimony. After reviewing Detective Orr’s written affidavit, we concur with the district court that, standing alone, it was insufficient to support the issuance of the warrant. However, the additional sworn oral testimony of the confidential informant that within the previous 72 hours he had seen stolen property in the residence to be searched, that he was told by a resident that it was stolen and that he was familiar with the residents’ system of selling stolen merchandise, supplied probable cause for the warrant’s issuance. Therefore, taking into account all of the evidence provided to the magistrate, a motion to suppress based on insufficiency of probable cause would have been denied. However, petitioner contends that the oral testimony would have to have been excluded from a probable cause review because a transcript of the testimony was not prepared in accordance with K.S.A. 22-2502(a).
K.S.A. 22-2502 provides, in part, that any statement which is made orally shall be either taken down by a certified shorthand reporter, sworn to under oath and made part of the application for a search warrant, or recorded before the magistrate from whom the search warrant is requested and sworn to under oath. It further states that any statement orally made shall be reduced to writing as soon thereafter as possible. In this case, the sworn oral testimony was recorded but a transcript was not prepared until four years later. Petitioner contends that this irregularity in the preservation of the testimony given in support of the warrant’s issuance disqualifies it from the court’s consideration of whether probable cause was established. We disagree.
The oral testimony taken before the magistrate was sworn and sufficient to supply probable cause for the search warrant. Thus, there is no constitutional reason for the testimony not to be considered. State v. McMillin, 206 Kan. 3, 6, 476 P.2d 612 (1970). Petitioner cites United States v. Hittle, 575 F.2d 799 (10th Cir. 1978), claiming that the failure to conform to K.S.A. 22-2502 is sufficient reason on its own to disqualify the testimony. In Hittle, unrecorded sworn testimony was offered to meet the probable cause requirement unsatisfied by the written affidavit. Focusing on K.S.A. 22-2502 (b), the court noted that the purpose of this statute was to insure a means of examining the evidentiary basis of a search warrant if later questions arose. Since the oral testimony was not recorded it could not be examined or considered in the probable cause review.
In this case, the testimony was recorded; it simply was not transcribed until a much later date. The preservation purpose of K.S.A. 22-2502 was satisfied by the tape recording taken of the testimony and the transcription could be made whenever it became necessary. K.S.A. 22-2511 provides that no search warrant shall.be quashed or evidence suppressed because of technical irregularities not affecting the substantial rights of the accused. Since the testimony was recorded and our review of the transcribed evidence reveals that it provided probable cause in support of the warrant’s issuance, petitioner’s rights were in no way impaired by the earlier unavailability of the transcript. Therefore, the State’s failure to have the recording transcribed at an earlier date, if contrary to the statute at all, is merely a technical irregularity which is insufficient to compel disregard of the testimony itself.
Petitioner also argues that the search warrant was defective and susceptible to a successful motion to suppress because the confidential informant was not identified and because the warrant was the product of pretext and deception.
When probable cause for a search warrant is in issue rather than the defendant’s guilt or innocence, the State generally need not disclose the identity of the informant. State v. Jacques, 2 Kan. App. 2d 277, 288, 579 P.2d 146, aff'd as modified 225 Kan. 38 (1978). The informant testified in person, under oath, and was subjected to examination by the court. We fail to see how the confidentiality provided the informant in any way undermined the basis for the warrant.
We also fail to see any merit in petitioner’s claim that the court was somehow deceived concerning the police motives for seeking the warrant. Detective Orr testified that he received the information that stolen property could be found at the residence sought to be searched during the course of an investigation of a homicide committed after a burglary. He further informed the court that he had been told that two of the individuals living at the residence had committed burglaries characterized by the same method of operation as that employed in the burglary which preceded the homicide he was investigating. The court was thus made completely aware of the police suspicion that evidence yielded by the search might bear on the homicide case as well as suspected property crimes.
Having concluded that petitioner’s allegations that the search warrant was defective are without merit, we are unable to conclude that trial counsel’s failure to challenge the warrant constituted deficient representation. Therefore, petitioner has failed to establish even the first prong of the Chamberlain test, and his claim of ineffective assistance of counsel was correctly denied relief by the district court.
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Parks, J.:
Plaintiff Postal Savings & Loan Association brought this action to foreclose its mortgage against the defendants’ residence. Defendants Marion K. Freel and Charlene A. Freel contend that plaintiff waived its right to foreclose. The trial court entered judgment allowing the foreclosure. Defendants appeal.
We first consider defendants’ claim that plaintiff waived its right to accelerate the payment of the note and mortgage.
The plaintiff has always maintained that the letter of January 12, 1981, written when the defendants were two and almost three payments behind on their loan obligation, effected a declaration of default and acceleration of the entire balance owed. Defendants contend that because they had fallen behind in their payments before and default was never declared, plaintiff waived its right to do so in January.
It is generally accepted that a mortgagee’s acceptance of a late or partial payment will effect a waiver of the right to declare default and accelerate a debt because of the lateness of that payment. Rawhide Farms v. Darby, 267 Ark. 776, 589 S.W.2d 210 (1979). In addition, a past practice of excusing defaults occasioned by late payments may under certain circumstances be construed as an implied waiver of an acceleration clause. See, e.g., Smith v. Smith, 186 Kan. 728, 735, 352 P.2d 1036 (1960); Mariash v. Bastianich, 88 App. Div. 2d 829, 452 N.Y.S.2d 190, 191 (1982). However, in the present case, the parties agreed to the following provision in the promissory note:
. . Any waiver of any payment hereunder or under the instrument securing this note at any time, shall not, at any other time, be taken to be a waiver of the terms of this note or the instrument securing it.”
This provision clearly provides that the mortgagee’s past waivers of default have no bearing on its rights to accelerate for subsequent delinquencies. It benefits the debtor by permitting the creditor to liberally forgive late or missed payments which could have compelled acceleration, while protecting the creditor’s right to accelerate the debt upon the commission of each new default.
Promissory notes and mortgages are contracts between the parties and the ordinary rules of construction applicable to contracts apply to them. Carpenter v. Riley, 234 Kan. 758, 763, 675 P.2d 900 (1984). Waiver is an intentional relinquishment of a known right and intention may be inferred from conduct. Iola State Bank v. Biggs, 233 Kan. 450, 458-59, 662 P.2d 563 (1983). However, no such inference of waiver can be drawn when the unambiguous language of the contract states a contrary intention. Therefore, defendants’ contention that they reasonably relied on the plaintiff s past practice of overlooking defaults as an implied waiver of their obligation to pay the installments promptly must fail in light of the unambiguous and contrary provision of the note.
We conclude that the trial court correctly held that the mortgagee did not waive its right to accelerate the payment of the note and mortgage or to demand that the defendants negotiate a new loan where, as here, the note expressly provides that the waiver of any payment at any time, shall not, at any other time, be taken as a waiver bf the terms of the note or the mortgage.
Defendants also argue that by accepting installment payments from them after January, the right to accelerate the debt was waived and the original loan agreement restored. However, each time plaintiff was tendered a payment after acceleration, it notified the defendants that the full amount of the balance was still due and that it would either apply the payment to the total amount due or return it. There is no evidence in this case from which any intentional waiver could be inferred. Therefore, this argument is without merit.
Finally, defendants’ contention in their brief that the plaintiff s actions violated the Uniform Consumer Credit Code (UCCC) is misplaced. The UCCC does not apply to first mortgages such as the one involved in this case. K.S.A. 16a-l-301(13)(b).
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BEIER, J.:
Defendant-appellant Sabrina Carrasco challenges her conviction of possession of marijuana, contending her action in removing a bag of marijuana that had been tossed into her lap could not constitute possession.
The essential facts are these: Police stopped a car driven by Carrasco’s boyfriend. Carrasco was sitting on the passenger side of the front seat. When the car was pulled over, Carrasco’s boyfriend threw a bag of marijuana onto her lap. She recognized it as marijuana and placed it between her seat and the door next to it. She testified she was trying to conceal the marijuana from the police and prevent her boyfriend, who had a previous drug conviction, from getting into trouble.
When one of the officers observed the marijuana and its location, he arrested Carrasco for possession. Carrasco told the officer that the marijuana did not belong to her, that she did not know to whom it belonged, and that “they were being set up.”
At trial, the district court made the following ruling from the bench:
“Well, even giving her the benefit of the doubt on the story, the county attorney’s correct that the mere act of taking something and sticking it down there would be obviously not an egregious case of possession, but it is exercising control over the property which is general intent. I think that they’ve proven it. I guess that, as I said, assuming what she said was the sequence of events, it would not be a particularly egregious violation, but it is, and I find her guilty.”
Carrasco identifies the standard of review in this case as de novo, arguing the district court incorrectly ruled as a matter of law that her actions in picking up the marijuana and tossing it constituted possession. She is actually challenging the sufficiency of the evidence supporting her conviction. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, this court is convinced a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999).
Possession of marijuana requires the follow essential elements: “(1) that the defendant possessed the marijuana, and (2) that [s]he did so intentionally. Possession of a controlled substance requires that one have control over the substance with knowledge of and the intent to have such control.” State v. Geddes, 17 Kan. App. 2d 588, 590-91, 841 P.2d 1088 (1992), rev. denied 252 Kan. 1094 (1993) (quoting State v. Flinchpaugh, 232 Kan. 831, Syl. ¶ 1, 659 P.2d 208 [1983]). Knowledge of the presence of the controlled substance with the intent to exercise control is essential. State v. LaGrange, 21 Kan. App. 2d 477, 479, 901 P.2d 44, rev. denied 258 Kan. 861 (1995).
Carrasco argues she had no intent to control the marijuana because she merely removed it from her lap. She contends that, if she can be found guilty, anyone who has a bag of marijuana dropped unexpectedly in his or her lap could be convicted of possession. This is untrue. Even if Carrasco’s version of events were the one we must accept on appellate review, there would be sufficient evidence to convict her of possession.
Carrasco fails to mention that after she identified the substance in her lap as marijuana, she did not simply push or throw it away. Rather, she testified to picking the marijuana up and placing it between the passenger door and the passenger seat in an effort to hide it from the police. This was a calculated action demonstrating knowledge of the presence of the marijuana and intent to exercise control over it. As the district court noted, this possession was fleeting but adequate to meet the State’s burden of proving guilt beyond a reasonable doubt.
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Lewis, J.:
This is a battle between the two adult daughters of Zeta Stump over the terms of her last will and testament. One daughter, Ona Mae Maydew, seeks to recover mileage for trips made from Topeka to Lebanon, Kansas, to visit her mother. Ona Mae’s claim is contested by her sister, Doris Lea Merritt. The trial court ruled in favor of the position advocated by Doris Lea, and Ona Mae appeals.
These cases are always unfortunate because of the damage they do to familial relationships. In this case, the only two children of Elmer and Zeta Stump are involved in a litigation which has become increasingly bitter over approximately $17,000. It is clear that, at times, money causes adversity in familial relationships.
Elmer and Zeta Stump resided near Lebanon. Elmer died on January 13, 1995, and after his death, Zeta continued to live at her home with the help of her daughters. Ona Mae lived in Topeka, but made weekly trips from Topeka to Lebanon to assist with her mother’s care. As a rule, she would leave Topeka on Friday and return on Monday. On the other hand, Doris Lea, whose home was in Lebanon, lived within a mile of Zeta’s home and cared for her mother during the week.
It is quite obvious that Zeta wanted her daughters to be treated equally. In her last will and testament, she provided that Ona Mae should be reimbursed for mileage incurred for traveling to and from Topeka to stay with and take care of her. In January 1997, Zeta broke her hip. The ultimate result is that she was required to move into a nursing home in Downs, where she remained until her death in July 1999. During the period of time Zeta remained in the nursing facility, Doris Lea and Ona Mae continued to make weekly trips to visit with her. Ona Mae would stay in Zeta’s home and maintain it when she came back for visits.
The difficulties between the sisters arose out of the proper interpretation of paragraph Eighth of Zeta’s last will and testament:
“My daughters, Doris Lea Merritt and Ona Mae Maydew, have equally shared in the responsibility of taking care of me in my home and staying with me on a weekly basis since the death of my husband as this was my personal desire and I am eternally grateful to them both for the time and hardship it may have created in their personal lives. Neither daughter has been paid any compensation. However, I realize the expense and mileage Ona Mae Maydew bore in driving to and from Topeka, Kansas, and I direct that my Co-executors shall first reimburse her for this mileage at the IRS rate in existence at the time.”
Paragraph Ninth of the decedent’s last will and testament also has some bearing upon our decision herein, and it reads as follows:
“I nominate and appoint my daughters, Doris Lea Merritt and Ona Mae May-dew, as Co-executors of this my Last Will and Testament, without bond. I hereby direct that said Co-executors shall receive no compensation for serving as said Co-executors but that my daughter Ona Mae Maydew will be reimbursed for her mileage to and from Topeka, Kansas, at the IRS rate in existence at the time.” (Emphasis added.)
The will was duly admitted to probate, and Ona Mae and Doris Lea were appointed co-executors. Ona Mae then filed a petition for allowance and classification of demand, seeking reimbursement of $29,334.99 for her mileage in traveling to and from her mother s home from January 8, 1995, until Zeta’s death.
Doris Lea opposed the claim, contending that Ona Mae should only be reimbursed for trips made to Lebanon while her mother was still living at home. Doris Lea had no objection to Ona Mae’s claim from January 8, 1995, up until January 2, 1997. It was on January 2, 1997, that Zeta was moved into the nursing home in Downs.
Doris Lea argued the will clearly and unambiguously provided reimbursement for Ona Mae only while she helped take care of and stayed with her mother while Zeta resided in her own home near Lebanon. The trial court agreed with Doris Lea and entered an order allowing reimbursement of $12,570.60 to Ona Mae for trips made to Zeta’s home while Zeta was still living there.
Ona Mae appeals the magistrate’s decision to the district court, which affirmed the magistrate’s decision. The trial court found the language of the will to be clear and unambiguous that Ona Mae was to be reimbursed for mileage expenses incurred only in taking care of and staying with Zeta while she resided in her own home. Accordingly, the trial court denied any reimbursement for trips made after Zeta was placed in the nursing home.
We note also that Ona Mae received reimbursement for mileage while acting as co-executor of the will, and Doris Lea did not object to this item of reimbursement.
This appeal is from the findings of the trial court set forth above.
IS PARAGRAPH EIGHTH OF THE DECEDENT’S WILL CLEAR AND UNAMBIGUOUS?
Perhaps the most important issue that we must determine on appeal is whether the provision of the decedent’s will regarding the payment of mileage was clear and unambiguous. If it was, we would affirm the trial court. If it was not, extrinsic evidence can be and should have been admitted, and we would reverse and remand.
The legal effect of a written instrument is a question of law for the court to decide. On appeal, a written instrument may be construed and its legal effect determined by the appellate court regardless of the construction made by the trial court. In re Estate of Mildrexter, 25 Kan. App. 2d 834, 836, 971 P.2d 758, rev. denied 267 Kan. 888 (1999).
“Where a court is to determine the effect of a will, its first duty is to survey the instrument in its entirety and determine whether its language is so indefinite and uncertain as to require employment of rules and judicial construction. [Citation omitted.] The critical test in determining whether a will is ambiguous is whether tire intention of the testator can be gathered from the four corners of the instrument itself. If so, ambiguity does not exist. [Citation omitted.] Whether an instrument is ambiguous is a matter of law to be decided by the appellate court. [Citation omitted.] If the testator s intent can be ascertained, neither rules of construction nor extrinsic evidence should be allowed to vary the clear intent expressed on the face of tire instrument. [Citation omitted.]” 25 Kan. App. 2d at 836.
In considering a will, a court cannot begin by inferring a testator s intention and then construe the will to give effect to such intention, however probable it may be, nor can it rewrite the will in whole or in part to conform to such presumed intention. It is the duty of a court to construe, not to construct, a will. In re Estate of Sanders, 261 Kan. 176, 182, 929 P.2d 153 (1996).
We conclude that the terms used in paragraph Eighth of the decedent’s last will and testament are ambiguous, and we reverse the trial court’s decision to the contrary. Paragraph Eighth of the will states that Doris Lea and Ona Mae have equally shared the responsibility of caring for Zeta in her home and “staying with her on a weekly basis.” We believe that statement is ambiguous in the context in which it is used and will require extrinsic evidence to determine the intention of the testatrix in the use of that language. The statement could be read as a separate clause which we might interpret to include the weekly nursing home visits if it can be determined that was the intention of the decedent. The facts are clear that Ona Mae’s travel from Topeka to Lebanon and back remained substantially the same prior to the placing of her mother in the nursing home and after that time. We believe it is possible to interpret that clause to indicate that Zeta wished to reimburse Ona Mae for weekly travel expenses both to her home and to the nursing home. An illustration of Zeta’s intent we believe is shown by paragraph Ninth, which provided for reimbursement of travel expenses after Zeta’s death for services as a co-executor.
The will provides for reimbursement to Ona Mae for taking care of the decedent in her home. We believe the statement “taking care of me” is also somewhat ambiguous. We are unable to state with any certainty just exactly what Zeta meant by that statement. The argument made by Ona Mae is that she continued to care for her mother’s home and continued to provide a situation wherein her mother could believe she might possibly return home at some time in the future. In addition, Ona Mae took care of Zeta’s home after she moved to the nursing home.
The most important issue is ascertaining the intent of the testatrix. We are unable to discern that intent from the four corners of the will and conclude that extrinsic evidence must be heard in an effort to determine what the testatrix intended by paragraph Eighth of her will. The law is clear that in order to ascertain the intent of a testator, all provisions of the will must be construed and read together. One provision must not be given controlling significance by ignoring the other provisions of the will. In re Estate of Brecklein, 6 Kan. App. 2d 1001, 1006-07, 637 P.2d 444 (1981).
We hold that the will is ambiguous and that the trial court erred in concluding that it was not.
EXTRINSIC EVIDENCE
Since we have held that the decedent’s will was ambiguous, it follows that extrinsic evidence becomes admissible to assist in defining the testator’s intent. McClary v. Harbaugh, 231 Kan. 564, 567, 646 P.2d 498 (1982). It follows from our conclusion that the trial court erred in determining the will to be unambiguous that the trial court also erred in refusing to admit extrinsic evidence concerning the intention of the testatrix.
We note that Ona Mae filed an affidavit to show what testimony she anticipated and, in that affidavit, it is stated that her mother often expressed to her that she appreciated the sacrifices Ona Mae was making to attend to her needs while in the nursing home. Zeta, according to Ona Mae, often expressed her gratefulness to Ona Mae for travel time and time away from family.
We reverse the trial court’s decision and remand the matter for trial to determine the testatrix’s intent and the meaning of the terms of paragraph Eighth of her will. In making this determination, the trial court must allow the admission of extrinsic evidence in order to ascertain the decedent’s intent.
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Miller, J:
Reginald Earl Davis appeals his conviction of one count of possession with intent to use drug paraphernalia in violation of K.S.A. 1999 Supp. 65-4152, and one count of possession of cocaine in violation of K.S.A. 1999 Supp. 65-4160. He claims evidence introduced against him at trial should have been suppressed due to an illegal search. We agree and reverse.
Because search and seizure cases are often fact sensitive and the outcome of such cases depend on the existence or nonexistence of particular facts, the facts of this case will be set out in some detail.
On Februaiy 12, 1999, Detective James Davis of the Emporia Police Department was advised that Dorothea Smith, a suspect in a forgery case he was investigating, was in a taxi en route to the bus station. Detective Davis arrived at the bus station and Officer Stormont also arrived at the same time in another vehicle. Upon arrival, the officers noticed a parked taxi occupied by two backseat passengers, Smith and the appellant.
Detective Davis approached the taxi, removed Smith, and arrested her. He then patted her down for weapons. He directed Officer Stormont to remove the appellant from the taxi and pat him down.
The officers testified that they had no reason to believe Smith was armed and dangerous or that any evidence of the forgery would be found in the taxi or on Smith’s person. Further, the appellant was not a suspect in the forgeiy or any other investigation. The appellant complied peaceably and without resistance to Officer Stormont’s direction that he get out of the taxi and submit to a pat-down search. Nothing was found on appellant’s person as a result of the search. When the appellant was patted down, Smith was already under arrest and in handcuffs on the other side of the car.
After patting down the appellant, Officer Stormont reached into the taxi to retrieve the appellant’s jacket. He intended to return the jacket to the appellant and allow him to go on his way. Before giving the jacket to the appellant, however, Officer Stormont felt it for weapons. In doing so, he felt something hard which was about the size of an ink pen. He testified at both the suppression hearing and at trial that he had no idea what the object was. He further testified that it was not immediately apparent to him that the object was either a weapon or contraband.
The object turned out to be three small metal pipes which later were determined to contain cocaine residue. The appellant was placed under arrest for possession of drug paraphernalia, He later admitted that the pipes belonged to him and that he had smoked them.
The appellant filed a motion to suppress, claiming the officer was not justified in searching him or his jacket. The trial court denied the motion to suppress.
The appellant asserts three grounds as the basis for his motion to suppress: (1) The search of him cannot be upheld as a search incident to Smith’s arrest; (2) Officer Stormont had no reasonable suspicion to search him; and (3) the evidence seized was not immediately apparent as a weapon or contraband, so it should not have been removed from his jacket.
“Upon the hearing of a motion to suppress evidence, the State bears the burden of proving to the trial court the lawfulness of the search and seizure.” State v. Damm, 246 Kan. 220, 222, 787 P.2d 1185 (1990). The factual findings of a trial court will be reviewed for substantial competent evidence. State v. DeMarco, 263 Kan. 727, 732, 952 P.2d 1276 (1998). When facts material to a decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law subject to unlimited review. State v. Rexroat, 266 Kan. 50, 53, 966 P.2d 666 (1998). The material facts in this case are not in dispute.
Search Incident to Smith’s Arrest
The appellant claims that the searches of his person and his jacket were illegal because he should not have been searched incident to Smith’s arrest. Absent reasonable suspicion to do so, he argues, he should not have been searched.
Searches conducted without a warrant based on probable cause are per se unreasonable, subject to a few exceptions. New York v. Belton, 453 U.S. 454, 457, 69 L. Ed. 2d 768, 101 S. Ct. 2860, reh. denied 453 U.S. 950 (1981). One exception is a search conducted pursuant to a lawful arrest. Chimel v. California, 395 U.S. 752, 763, 23 L. Ed. 2d 685, 89 S. Ct. 2034, reh. denied 396 U.S. 869 (1969). The purpose for allowing searches of an arrestee and the immediately surrounding area is to allow law enforcement officers to remove any weapons and to prevent the concealment or destruction of evidence. 395 U.S. at 763. However, “[t]he scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Terry v. Ohio, 392 U.S. 1, 19, 20 L. Ed 2d 889, 88 S. Ct. 1868 (1967) (quoting Warden v. Hayden, 387 U.S. 294, 310, 18 L. Ed 2d 782, 87 S. Ct. 1642 [1967]).
K.S.A. 22-2501 codifies the search incident to a lawful arrest doctrine:
“When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person s immediate presence for die purpose of
“(a) Protecting the officer from attack;
“(b) Preventing the person from escaping; or
“(c) Discovering die fruits, instrumentalities, or evidence of the crime.”
The issue presented here is whether an individual may be searched incident to the arrest of another person if the individual is within the arrestee’s immediate area. Here, in denying the appellant’s motion to suppress, the trial court relied heavily on State v. Thompson, 3 Kan. App. 2d 426, 596 P.2d 174 (1979). In Thompson, the defendant was convicted of attempted aggravated robbery of a liquor store, during which he brandished a firearm. While investigating the crime, the police instituted a stakeout of a local motel. The defendant, another male companion, and Caprice Stark, a known female companion of the defendant, emerged from the motel. They entered an automobile thought to have been used in the crime, and the police gave chase, eventually catching them.
During the arrest of the defendant, a detective on the scene observed that Stark’s purse seemed to be unusually heavy. He removed it from her arm and tossed it to the rear of the vehicle. As he took the purse, he felt an object he thought to be a firearm. After Stark was secured, the detective opened the purse and found a gun. A subsequent search of the purse produced another gun. Both guns were admitted into evidence over the defendant’s objection.
On appeal, this court noted: “The determinative question is whether the search of Stark’s purse was based upon reasonable suspicion (K.S.A. 22-2402) and/or a search incident to a lawful arrest (K.S.A. 22-2501).” 3 Kan. App. 2d at 431. This question was disposed of with the following analysis:
“The facts here undeniably support that there was probable cause to arrest the defendant, and in connection with that arrest to malee a search of his person and the area within his immediate presence as contemplated by K.S.A. 22-2501. We think the facts also fairly show that the defendant was known to have a woman companion, even though it is not contended that she personally participated in any of the alleged crimes under discussion. The fact that Ms. Stark was in the company of the two suspects under the existing circumstances brings the search of her purse within the permissible limits of warrantless search and seizure as described in [Terry]; State v. Jackson, 213 Kan. 219, 515 P.2d 1108 (1973); State v. Hazelwood, 209 Kan. 649, 498 P.2d 607 (1972); and K.S.A. 22-2402. The fact that the purse was thrown to the road after being taken from Stark’s person was not such a removal from the area under her control so as to prohibit the protective search at the scene prior to returning the purse to Ms. Stark before transporting the defendant to the police station.” 3 Kan. App. 2d at 431.
The appellant argues the search in Thompson was upheld based on reasonable suspicion, not as a search incident to arrest. The quoted passage seems to indicate otherwise. The decision appears to be based both on reasonable suspicion and on a search incident to a valid arrest. Though there is not a detailed explanation of the Thompson court’s reasoning, the point seems to be that Stark could be searched because she was within the immediate area of the defendant at the time of his arrest.
The State argues that due to the appellant’s and Smith’s close proximity in the taxi, the search was warranted. Both sides cite various cases involving vehicles stopped for traffic violations where passengers were searched or seized. The case at bar does not involve a traffic violation and does not lend itself squarely to a comparison to those cases. The most helpful is State v. Burks, 15 Kan. App. 2d 87, 803 P.2d 587, rev. denied 248 Kan. 997 (1991). Burks involved the stop of a vehicle for speeding. This court held that absent reasonable suspicion a hitchhiker in the passenger seat could not be removed from the vehicle and searched. 15 Kan. App. 2d at 95. The court listed one of the subissues to be resolved was whether the pat-down of the defendant could be justified as incident to the “arrest” of the driver. 15 Kan. App. 2d at 89. The court noted: “The pat-down search of defendant was separate and distinct from the stop of the vehicle for speeding. Therefore, pursuant to the statute, the troopers must have had reasonable suspicion to search defendant.” 15 Kan. App. 2d at 92. Though the opinion never again explicitly mentions the “arrest” of the driver, it seems as though a search of the passenger within the immediate area of the driver would not have been justified.
In this case, the question is whether the appellant may be searched under K.S.A. 22-2501 because he was near Smith when she was arrested. There is no indication that Officer Stormont saw any movement between Smith and the appellant that would have led him to believe that the two were exchanging weapons or attempting to hide contraband or evidence. Officer Stormont had no information that the appellant was involved in the forgery or that there would be any evidence found in the taxi. By following the State’s reasoning, an individual’s Fourth Amendment rights would be lost for being in close proximity to an arrestee. Without requiring reasonable suspicion, any individual within the immediate area of an arrestee could be searched, whether or not the individual is associated with the arrestee. Thompson may indicate that under its particular facts, a panel of this court felt mere proximity was sufficient to justify an individual’s search incident to the arrest of another person. However, Burks is a more recent and clearer case and sets forth the more logical requirement: There must be a reasonable, articulable suspicion to search an individual in close proximity to an arrestee. Based on this requirement, the trial court erred in denying the appellant’s motion to suppress by finding his close proximity to Smith justified the search of his person.
Reasonable Suspicion to Search Davis
K.S.A. 22-2402 concerns the stopping of a suspect. It allows a law enforcement officer, without making an arrest, to stop any person in a public place whom the officer reasonably suspects is committing, has committed, or is about to commit a crime, and demand the name and address of the suspect and an explanation of the individual’s actions. K.S.A. 22-2402(1). The officer may also frisk the person for weapons if the officer reasonably suspects it is required for his or her personal safety. K.S.A. 22-2402(2).
This statute is patterned after the Terry test. Burks, 15 Kan. App. 2d at 92. “The officer must have a reasonable conclusion That crim inal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous.’ ” 15 Kan. App. 2d at 92 (quoting Terry, 392 U.S. at 30). In State v. Jackson, 213 Kan. 219, 225, 515 P.2d 1108 (1973), the court interpreted the requirements K.S.A. 22-2402:
“[I]n order to justify the search for weapons authorized under the provisions of subsection (2) of 22-2402, the officer must have prior knowledge of facts or observe conduct of the person or receive responses to the limited interrogation authorized by subsection (1) which, in the light of his experience, would cause the officer to reasonably suspect that his personal safety requires such search.”
Again, Officer Stormont did not articulate any fear or concern for his personal safety. He testified Detective Davis had Smith under control, presumably causing Officer Stormont no concern. There would have been no need to do anything beyond removing the appellant from the car and asking for identification. Officer Stormont did not testify about anything that would have led him to believe the jacket contained any weapons. His only explanation for removing the jacket from the taxi was that he was going to return it to the appellant and allow him to leave, but he first wanted to ensure there were no weapons in the jacket.
The Thompson case is again relevant here. The Thompson court upheld the search of Stark’s purse even though there was no evidence she was involved in the crimes. The court stated that Stark being in the company of the suspects under the existing circumstances made the search valid. 3 Kan. App. 2d at 431. Thompson involved the attempted armed robbery of a liquor store and the officers had reasonable suspicion to believe the suspects were armed. It can easily be assumed that the officers also would have believed anyone with the suspects during the time they had been fugitives would also be armed. In the present case, Officer Stormont testified he had no information that either Smith or the appellant were armed, but he knew he was dealing with a suspected felon, Smith. He did not testify to any fear on his part. Thompson is distinguishable and does not validate the search of the appellant or his jacket.
The State cites State v. Johnson, 253 Kan. 75, 853 P.2d 34 (1993), in support of its position. Johnson involves the search and arrest of an individual who was acting very suspiciously. The circumstances in Johnson are not analogous to the one at bar, and Johnson is not helpful to the State’s position. •
The Plain Feel Exception
Even if the searches of the appellant and his jacket were valid, there still remains the question whether the officer was justified in removing the items from the jacket. The appellant argues the plain feel exception to the warrant.
The plain feel exception is an extension of the plain view exception to the warrant requirement. State v. Wonders, 263 Kan. 582, 590, 952 P.2d 1351 (1998). The United States Supreme Court defined the “plain view” doctrine in Minnesota v. Dickerson, 508 U.S. 366, 375, 124 L. Ed. 2d 334, 113 S. Ct. 2130 (1993):
“Under that doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. [Citations omitted.] If, however, the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object — i.e., if ‘its incriminating character [is not] “immediately apparent,” ’ [citation omitted] — the plain-view doctrine cannot justify its seizure.”
Dickerson also applied this “immediately apparent” standard to a discovery made during a pat-down (plain feel exception). 508 U.S. at 375. The plain feel exception was made applicable to Kansas in Wonders. 263 Kan. at 592. Therefore, if the identity of the items in the appellant’s pocket was not immediately apparent to Officer Stormont, there was no basis for their removal.
“Immediately apparent” has been interpreted to mean the officer must have reasonable or probable cause to believe it is immediately apparent that what the officer is feeling is a weapon or contraband. 263 Kan. at 598. By any definition of “immediately apparent,” that requirement was not met in this case.
At the hearing on the motion to suppress, Officer Stormont testified he opened the door to the taxi, took out the jacket, and patted it down to ensure there were no weapons in it. He did this because he was going to give the jacket back to the appellant and let him go. He felt something hard and could not tell what it was, so he removed the items. On cross-examination, Officer Stormont repeated several times that he had no idea what the objects were when he felt them. He also testified that the items were approximately 2 to 3 inches long and he could not rule out that the items may have been something innocent, such as an ink pen.
Officer Stormont’s testimony at trial was virtually identical. He repeated that he did not know what the items were and felt nothing that was immediately apparent to him as being a weapon or contraband.
In its ruling, the trial court stated that Officer Stormont had the right to search the appellant because he was sitting next to a suspected felon and things could have been handed back and forth. The court then found that the search of the jacket was a logical extension of the search of the appellant’s person since the jacket could have contained weapons. Finally, the court ruled that although there were a number of legitimate items that Officer Stormont could have been feeling in the jacket, it was reasonable for him to take them out to determine if they were in fact weapons.
The trial court misapplied the Wonders requirements. The identity of the metal pipes was not immediately apparent to Officer Stormont. His direct testimony contradicts the very assertion. It is not required that the officer be certain of the identity of the object. 263 Kan. at 596. However, under all the circumstances, he must have reasonable or probable cause to believe the object is associated with criminal activity. 263 Kan. at 597. Officer Stormont had absolutely no idea what he was feeling. Under Wonders, he had no reason to remove the objects from the jacket.
The appellant Davis should not have been searched incident to Smith’s arrest. Officer Stormont did not have reasonable suspicion of criminal activity sufficient to justify a search of Davis independent of Smith’s arrest. Further, Officer Stormont had no basis to remove the items from the appellant’s jacket. The evidence seized and the statements made later by the appellant must be suppressed as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 9 L. Ed 2d 441, 83 S. Ct. 407 (1963).
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Miller, j.:
Appellant, Ascención Schultz, intended to sue an individual for injuries resulting from a car accident. The petition to initiate the suit was mailed to the clerk of the Douglas County District Court in Lawrence on Thursday, January 15, 1998. The petition was mailed from the office of the appellant’s attorney, Jerry Levy, also located in Lawrence. The statute of limitations for the cause of action expired on Tuesday, January 20, 1998. The courts were closed January 17 through January 19,1998, for the weekend and the observance of the Martin Luther King holiday. There was no mail service on Sunday, January 18, or Monday, January 19, 1998. The petition was file-stamped by the clerk’s office on January 21, 1998, 1 day after the running of the statute of limitations. The exact date the petition arrived at the clerk’s office could not be ascertained with complete certainty, although circumstantial evidence indicates that it did not arrive until January 21, 1998.
The appellant then filed suit against the appellees, Jay Coffman, Clerk of the Douglas County District Court, and Dr. Howard Schwartz, Judicial Administrator for the State of Kansas, alleging they were negligent in training, staffing, and supervising the clerk’s office, which resulted in the late filing of the appellant’s suit and loss of that cause of action. The appellant took the position that based on previous experience, the petition must have arrived at the clerk’s office no later than January 20,1998, and only the negligent failure of court personnel to immediately file-stamp the petition could explain the late filing.
The first issue raised by the appellant is that district trial court erred in determining the respective duties of the appellees. Whether a duty exists is a question of law, independent of the specific facts of the case, so appellate review is de novo. McCleary v. Boss, 24 Kan. App. 2d 791, 792, 955 P.2d 127(1997).
With respect to Coffman’s duties, it is apparent that the appellant either misinterpreted or simply did not understand the district court’s conclusions of law. She argues that the clerk’s office has a duty to timely file all documents and alleges that the court found that the clerk had no such duty. However, in its conclusions of law in the journal entry, the court clearly stated: “The Clerk of the District Court has a duty to make sure his office timely files documents.” In its subsequent journal entry following rehearing, the court further stated that Coffman had the duty to ensure that his office was run properly, a conclusion which supplemented rather than contradicted the court’s earlier ruling. The court granted summary judgment and held that both duties were performed properly.
Thus, there is no disagreement between the appellant’s position and the conclusions of the trial court on the issue of Coffman’s duties. Indeed, the law is quite clear that a clerk of a district court has the duty to file and stamp with the date and time, all documents received on the day of receipt. K.S.A. 60-2601(d). The appellees do not argue otherwise, and the trial court’s ruling is in no way contrary.
The appellant also contends that Schwartz has a duty to oversee the operations of the various district court clerks’ offices, which includes ensuring the timely stamping and filing of documents. The trial court found that Schwartz “has no duty to train, supervise or staff the Office of the Clerk of the Douglas County District Court.” Whether such a duty exists is a question of law. 24 Kan. App. 2d at 792.
Under K.S.A. 20-318, the judicial administrator is responsible for implementing the policies of the Kansas Supreme Court with respect to the operation and administration of the lower courts and for such other duties as are assigned by law, the Supreme Court, or the Chief Justice. The specific duties of the judicial administrator are found in subsection (c) of Rule 1.03 of the Kansas Supreme Court Rules. Those articulated duties include supervising and examining the “administrative methods and systems employed in the offices of the district courts, including the offices of the clerks and other officers, and making recommendations to the Supreme Court for the improvement of administration of said courts.” Rule 1.03(c)(5) (1999 Kan. Ct. R. Annot. 2).
In practice, the judicial administrator does not oversee the day-to-day operations of the various court clerks’ offices. The judicial administrator’s office only looks into the operations of a specific clerk’s office if a complaint is filed. The general supervisory authority over the day-to-day clerical and administrative functions of the court clerk’s office lies with the chief judge of the judicial district. K.S.A. 1999 Supp. 20-329. The court clerk is appointed by the chief judge of the district, with the approval of a majority of the other district judges. K.S.A. 1999 Supp. 20-343. While there is no statutory provision for the training of court clerks and their personnel, logic leads to the conclusion that since the appointing and supervisory authority He with the chief judge of the district, overall responsibility for training also lies with the chief judge. The judicial administrator has no role in the training of court clerks and their personnel except for providing some basic logistical and administrative support for training events.
There is no authority for the appellant’s position that the judicial administrator has a direct supervisory role over the various clerks of the district courts and their personnel. While the judicial administrator does have some oversight responsibilities, the general supervisory authority for day-to-day operations lies with the chief judge of the district court. It stretches reason to suggest that the judicial administrator has a direct responsibility to ensure that the mail in a specific clerk’s office is opened and documents are stamped. The trial court was correct in determining that Schwartz had no such duty.
The appellant argues there was a genuine issue of material fact— whether the petition arrived on time and whether Coffman breached his duty by not ensuring that it was promptly filed— which should have precluded summary judgment.
Under K.S.A. 1999 Supp. 60-256(c), summary judgment is only proper if “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” A genuine issue of fact exists only if a controverted fact has controlling legal force as to a controlling issue. P.W.P. v. L.S., 266 Kan. 417, 423, 969 P.2d 896 (1998) (quoting Seabourn v. Coronado Area Council, B.S.A., 257 Kan. 178, 189, 891 P.2d 385 [1995]). In other words, “ *[i]f the disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of a material fact.’ ” P.W.P., 266 Kan. at 423. The burden of proving that no genuine issue of material fact exists is on the moving party. Glenn v. Fleming, 247 Kan. 296, 304, 799 P.2d 79 (1900). However, in opposing a motion for summary judgment, the adverse party must come forward with some evidence to establish a material dispute of fact. 247 Kan. at 305.
In ruling on a motion for summary judgment, “[t]he 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.” Bacon v. Mercy Hospital of Ft. Scott, 243 Kan. 303, 306, 756 P.2d 416 (1988). On review, appellate courts apply the same rule, and where “reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” 243 Kan. at 306.
Because the appellees filed the motion for summary judgment, the burden was on them to prove that no genuine issue of material fact existed. They submitted a list of uncontroverted facts, including that the petition was mailed from Levy’s office on January 15, 1998; on the evening of January 20,1998, an employee of the court clerk, Terri Kilburn, opened and file-stamped all civil petitions that arrived in the mail that day; Kilburn opened the mail on January 21, 1998, and it was on that date she first saw the appellant’s petition; and the petition was filed on January 21, 1998. To support their list of uncontroverted facts, the appellees submitted the affidavit of Kilburn, which stated she was the employee responsible for opening and filing civil petitions and confirmed the above-stated facts.
The appellant attempted to controvert the facts submitted by the appellees, arguing that the time the petition actually arrived at the clerk’s office was in dispute. The appellant’s position was that the petition could not have arrived later than January 20,1998, and the clerk’s office was negligent in failing to file it at that time. However, to preclude summary judgment, the party in opposition must do more than simply allege the facts are controverted. The adverse party must come forward with probative evidence to establish a dispute of material fact. Saliba v. Union Pacific R.R. Co., 264 Kan. 128, 131, 955 P.2d 1189 (1998) (citing Glenn v. Fleming, 247 Kan. 296, 305, 799 P.2d 79 [1990]; Slaymaker v. Westgate State Bank, 241 Kan. 525, 531, 739 P.2d 444 [1987]). “Probative evidence is that which ‘furnishes, establishes or contributes toward proof.’ ” Saliba, 264 Kan. at 131 (quoting Akin v. Estate of Hill, 201 Kan. 306, 311, 440 P.2d 585 [1968]).
In support of her position, the appellant submitted Levy’s deposition testimony, which stated something to the effect that in his experience in mailing items to the clerk’s office, the petition should have arrived by January 20,1998. Levy also stated that upon learn ing about the late fifing, he called the clerk’s office to find out what happened and was told by an unnamed person that there was a large volume of mail after the holiday and the petition apparently did not get filed. Levy also stated that since that time, he has kept track of when documents are filed following mailing from his office and found that they are always filed the next business day.
The question before this court is whether the appellant has presented probative evidence establishing a genuine issue of material fact. The statement by Levy that based on his experience, the petition should have arrived on time is not really evidence. It is an opinion and not the type of opinion that establishes or contributes to proof of the fact allegedly controverted. Granting that, based on his experience, Levy is qualified to state an opinion on the matter, the fact that the petition should have arrived on time in no way establishes or helps to establish that it did arrive on time. What happened on prior occasions is in no way dispositive of what happened on this occasion.
Levy’s testimony that some unnamed person at the clerk’s office told him that the petition did not get filed on time because of the volume of mail is, of course, hearsay. However, that in itself does not render the testimony devoid of probative value because the rules of evidence recognize the probity of various types of hearsay. In Mastin v. Kansas Power & Light Co., 10 Kan. App. 2d 620, 624, 706 P.2d 476 (1985), it was held that admissible hearsay was sufficient to establish a genuine issue of material fact, precluding summary judgment.
The problem with Levy’s hearsay statement is that it is not admissible hearsay. It does not fit into any of the recognized hearsay exceptions. None of the various indicia of reliability that provide the basis for the hearsay exceptions are present. The statement is not only uncorroborated, it is completely incapable of being corroborated. There is no way of knowing who made the alleged statement or what was actually said. Unlike the Kilburn affidavit submitted by the appellees, there is no way to bring the declarant before the court to confirm or explain the statement. The statement would not be admissible at trial. It would make no sense to deny summary judgment and proceed to trial on the basis of evidence that could not be presented at trial.
Finally, Levy’s testimony regarding his subsequent tracking of mailed documents and their filing dates is no more probative than his “previous experience” which led him to opine that the petition should have arrived on time. By relying on this, the appellant has fallen prey to the fallacy oiignoratio elenchi — reliance on irrelevant evidence proving an unrelated point instead of the point at issue. The fact that subsequently mailed documents arrived at their destination in a day or so in no way proves that the petition in question was delivered in the same time frame. It only proves the transit time of the documents thus tracked. This does not establish or contribute to the proof of the date on which the petition in question arrived and, thus, is not probative evidence in that regard.
The district court was left with Kilbum’s sworn affidavit stating that (1) she filed all petitions received on January 20, 1998; (2) when she left the clerk’s office on January 20, 1998, there were no civil petitions waiting to be filed; and (3) the appellant’s petition was among those she filed on January 21, 1998. These facts are uncontroverted. Levy’s opinion of when the petition should have arrived and his subsequent tracking of mailed documents do not in any way contradict Kilburn’s affidavit. The hearsay statement of some unknown person at the clerk’s office is not reliable, probative evidence that could be admitted at trial. Even when viewed in the light most favorable to the appellant, the statement does not actually furnish proof that the petition arrived earlier than January 21, 1998; it only establishes that there was a large volume of mail on January 20, 1998. The appellant failed to come forward with probative evidence to establish a genuine issue of material facts.
The only inference that can be reasonably drawn from the facts before us is that the petition did not arrive at the court clerk’s office until January 21,1998. That being the case, the petition was timely filed on the day it arrived. Neither Coffman nor any of the court clerk’s personnel were negligent in their duties. The appellees were entitled to summary judgment as a matter of law.
Because we conclude that the trial court was correct in concluding that Schwartz had no legal duty to the appellant herein and that Coffman was not negligent in the filing of the petition on the day the uncontroverted evidence suggests it was received, we need not reach the issue of whether either of the appellees is entitled to discretionary immunity under the Kansas Tort Claims Act, K.S.A. 75-6101 et seq.
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Parks, J.:
The Kansas Corporation Commission (KCC) granted a certificate of convenience and necessity to the Phoenix Trucking Company (Phoenix). The parties who opposed issuance of the certificate, which included Chris Hunt Water Hauling, appealed to the Kearny County District Court pursuant to K.S.A. 66-118d. The district court vacated the KCC action as unreasonable and unlawful and the KCC appeals.
Phoenix is a motor common carrier in the business of hauling crude oil, fresh and salt water in southwestern Kansas. On April 27, 1983, Phoenix filed an application with the KCC for an extension of its certificate of convenience and necessity. Phoenix sought to expand its operations from the five counties in which it was already authorized to do business to seven additional neighboring counties. At the hearing on this application, five other common carriers in the business of hauling fluids used or generated in oil production appeared to oppose extension of Phoenix’s authority.
The KCC found that (1) Bill Phoenix had shown by his own testimony that he is fit, willing and able to render the proposed service applied for; (2) Phoenix is seeking authority in counties adjacent to its present authority and has enough equipment to service the area proposed to be served; (3) Phoenix’s financial statement supports its testimony that it can add new equipment as the need arises; (4) the protestants failed to show that, if the application was granted, Phoenix would take any business away from them; and (5) the protestants provided no evidence that the granting of the application would be inconsistent with the public convenience and necessity.
Following the granting of the application, an application for rehearing was denied and the protestants appealed the decision of the KCC to the district court. The district court held that the commission’s order was unlawful because it failed to take into account the public’s convenience and necessity and was unreasonable because the facts did not reasonably support a finding that the proposed service would be consistent with the public convenience and necessity. The district court further stated that the commission did-not err in finding that the applicant was fit, willing and able to perform.
When an order or decision of the KCC is appealed pursuant to K.S.A. 66-118d, our scope of appeal, as well as that of the district court, is limited to determining whether the order is lawful and reasonable. Southwestern Bell Tel. Co. v. Kansas Corporation Commission, 233 Kan. 375, 376, 664 P.2d 798 (1983). An order is lawful if it is within the statutory authority of the commission and if the prescribed statutory and procedural rules are followed in making the order; it is generally considered reasonable when based upon substantial competent evidence. Kansas City Power & Light Co. v. Kansas Corporation Commission, 9 Kan. App. 2d 49, 50, 670 P.2d 1369, rev. denied 234 Kan. 1076 (1983).
At the time Phoenix applied for the extended certificate of convenience and necessity, the statute provided as follows:
“Except as hereinafter provided, it shall be unlawful for any public motor carrier to operate as a carrier of intrastate commerce within this state without first having obtained from -the corporation commission a certificate of convenience and necessity. ...
“If the commission finds that the proposed service or any part thereof is proposed to be performed by the applicant and that the applicant is fit, willing and able to perform such service, the commission shall issue the certificate, except that if the commission finds that evidence shows that the proposed service is inconsistent with the public convenience and necessity, the commission shall not issue the certificate.” K.S.A. 1984 Supp. 66-1,114.
Prior to 1982, K.S.A. 66-1,114 stated in pertinent part as follows:
“If the commission finds from the evidence that the proposed service or any part thereof will promote the public convenience and necessity, the commission shall issue the certificate; otherwise such certificate shall be denied. Before granting a certificate to a public motor carrier, the commission shall take into consideration other existing transportation facilities in the territory for which a certificate is sought, and in case it appears from the evidence that the service furnished by existing transportation facilities is reasonably adequate, the commission shall not grant such certificate.”
It is readily apparent from the language of the statute that the amendment of K.S.A. 66-1,114 was intended to loosen the regulatory constraints upon entry into the trucking field. However, in order to fully appreciate the significance of the changes effected in K.S.A. 66-1,114, it is important to have an understanding of the context in which they were made.
Since 1935, the motor carrier industry has been closely regulated. The Interstate Commerce Commission had the authority to control rates, routes and entry into the field of interstate trucking while state commissions similarly regulated the activity of intrastate motor carriers. In 1980, a federal law was enacted which changed the regulatory picture for interstate trucking. Motor Carrier Act of 1980, Pub. L. No. 96-296, 94 Stat. 793 (codified in scattered sections of 49 U.S.C. §§ 10101-11902a [1982]). In particular, this act sought to encourage greater competition by relaxing the burden of proof placed on applicants seeking authority to enter the trucking industry or to expand existing operations. Instead of proving that issuance of the requested certificate “is or will be required by the present or future public convenience and necessity” (49 U.S.C. § 307 [1976]), the applicant need only show that he is “fit, willing, and able” and that the service proposed “will serve a useful public purpose.” 49 U.S.C. § 10922(b)(1) (1982). The new law directs that a certificate be issued if the applicant makes such a showing unless the Interstate Commerce Commission finds, on the basis of evidence presented by persons objecting to its issuance, that the requested authority is “inconsistent with the public conveniénce and necessity.” Congress intended by these statutory changes to make it easier to enter the trucking field and to shift the burden of proof to those objecting to issuance of a permit when the applicant has established a prima facie case for his fitness. H.R. Rep. No. 1069, 96th Cong., 2d Sess. 3, 14, reprinted in 1980 U.S. Code Cong. & Ad. News 2283, 2296. Thus, the federal courts have consistently interpreted the current law concerning the issuance of authority to engage in interstate trucking as placing an initial burden of proof on the applicant to demonstrate his fitness and a useful public purpose to be served. However, once this burden is satisfied protestants must come forward with evidence before the certificate may be denied as inconsistent with public convenience and necessity. See, e.g., Containerfreight Corp. v. United States, 752 F.2d 419, 423 (9th Cir. 1985); Erickson Transport Corp. v. I.C.C., 737 F.2d 775, 776-77 (8th Cir. 1984); RTC Transp., Inc. v. I.C.C., 731 F.2d 1497, 1499 (11th Cir. 1984).
Kansas is among the states (Arizona, California, Delaware, Florida, Idaho, Kansas, Maine, New Jersey, New Mexico, New York, South Dakota, West Virginia, Wisconsin and Wyoming) which reacted to the federal reregulation of interstate trucking by altering its own scheme of regulation for intrastate trucking. Freeman & Beilock, State Regulatory Responses to Federal Motor Carrier Reregulation, 35 U. Fla. L. Rev. 56, 69, 70 (1983). Consistent with the federal law, the Kansas legislature loosened regulatory controls over entry into intrastate trucking by requiring only that the applicant prove his fitness for such authority prior to the issuance of a certificate. Once this showing is made, the certificate is to be issued unless the evidence shows that the proposed service would be inconsistent with public convenience and necessity. K.S.A. 1984 Supp. 66-1,114. Unlike the federal provision, the new Kansas statute does not specifically state that the burden of proof is shifted to the protestants to show an inconsistency with public convenience and necessity. However, such a shift of the burden of proof is implicit in the regulatory format, for no such evidence will be heard by the KCC unless persons protesting issuance of the certificate provide it. Furthermore, the legislative history of the Kansas law indicates that it was the intention of the legislature to shift the burden of proof to the protestant once the applicant shows that he is “fit, willing and able to perform.” Report on Kansas Legislative Interim Studies to the 1982 Legislature, p. 806. We conclude that in light of the alterations made in the language of the statute and its historical background, K.S.A. 1984 Supp. 66-1,114 requires the commission to issue a certificate if it finds the applicant fit, willing and able to perform the proposed service, unless protestants come forward with evidence demonstrating an inconsistency with public convenience and necessity. Thus, the applicant has the initial burden of persuasion; when that is met, the burden of persuasion shifts to the protestants.
Despite the changes effected in K.S.A. 66-1,114, the district court’s order reflects a belief that the commission was obliged to make an affirmative finding that the public convenience and necessity would be promoted by issuance of the certificate. No such affirmative finding need be made. If evidence is presented in an effort to demonstrate that issuance of the certificate would be inconsistent with public convenience and necessity, the commission must either deny the certificate based on that evidence or make a negative finding that the evidence was insufficient to show an inconsistency with public convenience and necessity and grant the permit. It is precisely this latter option which the commission found applicable to this case. The district court incorrectly held that the commission failed to follow the statutory scope of its authority and the court’s conclusion that the commission’s order was unlawful is in error. However, since the reversal of the order must be upheld if the court correctly decided that the order was unreasonable, we must also decide whether the commission acted unreasonably by making a finding unsupported by substantial competent evidence.
The district court agreed that the applicant was fit to provide the requested service; thus, the only finding remaining open to review was the commission’s negative finding that no showing of inconsistency with public convenience and necessity was made.
While a finding of fact will not be upset on appeal if there is any substantial competent evidence to support it, a negative finding will only be overturned if there is proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice. Lostutter v. Estate of Larkin, 235 Kan. 154, 162-63, 679 P.2d 181 (1984). This is true because a negative finding signifies the failure of the party on whom the burden of proof was cast to sustain it. Since it appears that the commission properly placed the burden of proof on the protestants to show an inconsistency with public convenience and necessity, and that it found that they failed to carry this burden of proof, the negative finding should stand unless there was a disregard of undisputed testimony.
All of the protestants’ testimony was concerned with the present market for the services sought to be offered by applicant. Each of the protestants is an oil field fluids hauler in the counties requested to be served by Phoenix. They testified that drilling was down in the area and that consequently their revenues were down. They essentially contended that authorization for another hauler in the area would stretch the available business too far and make it difficult for all of the existing haulers in the area to continue service. In addition to the claim of hardship to the existing carriers through increased competition, the protestants claimed that service to small neighboring counties would also suffer. For example, Keith Brady, of Brady Fluid Service, testified that he serviced 20 Kansas counties including the seven counties sought to be served by applicant. He stated that 30% of his business derived from the seven counties included in Phoenix’s application so that his service to the other 13 counties was subsidized by his work in the seven. Thus, he suggested that a loss of business in those seven counties through increased competition would make it difficult for him to serve the other 13 counties, to the detriment of the public. Brady did not present any evidence that there was a shortage of service to those other 13 counties; he simply said that applicant was not proposing to serve them and that it would be difficult for him to do so if he lost business in the seven counties which currently provide 30% of his business.
Bearing in mind that the standard to be considered by the KCC is the public convenience and necessity, evidence concerning the difficulties which might be suffered by existing haulers through competition is not sufficient to show an inconsistency with public convenience and necessity. In addition, the testimony concerning the hinted loss of service to small surrounding counties was inconclusive at best. Certainly, the record reflects no undisputed evidence which the commission ignored in concluding that protestants failed tp carry their burden of proof. Furthermore, even if the “substantial competent evidence” test is applied, the evidence of an inconsistency with public convenience and necessity fell short. In Film Transit, Inc. v. I.C.C., 699 F.2d 298, 301-02 (6th Cir. 1983), the Court upheld the grant of an interstate certificate by the I.C.C., stating as follows:
“We conclude that Film’s argument lacks merit and, accordingly, fails to rebut the applicant’s prima facie case. Merely showing that Mistletoe will divert some of Film’s revenue and traffic, which, consequently, may make it more difficult for Film to subsidize its rates in smaller communities, is insufficient to demonstrate a harm to the public’s convenience and necessity warranting the disallowance of carrier’s certificate. See 49 U.S. § 10922(b)(2)(B) (‘[T]he Commission shall not find diversion of revenue or traffic from an existing carrier to be in and of itself inconsistent with the public convenience and necessity.’). An economic disadvantage to a competitor is insufficient to deny the applicant’s certification. See I-H. Rose Truck Line, Inc., supra, 683 F.2d at 950. Paramount concern lies with the public interest and not with the economic disadvantages to competing carriers which may surface as a result of the Commission’s decision to issue an operating certificate. See Bowman Transportation, Inc., supra, 419 U.S. at 298, 95 S.Ct. at 448 (‘Our decisions have dispelled any notion that the Commission’s primary obligation is the protection of firms holding existing certificates.’); Hunt Transportation, Inc. v. Interstate Commerce Commission, 636 F.2d 190, 193 (8th Cir. 1980) (‘[T]he primary consideration is the interest of the public, and not the relative economic advantages or disadvantages of competing carriers.’).”
In this case, like Film Transit, all of the protestants’ evidence bore more on the difficulties they would face as competitors than on any inconvenience which the public might sustain. Existing holders of trucking permits have no immutable right to be free from competition. See Bowman Transp. v. Ark.-Best Freight System, 419 U.S. 281, 298, 42 L.Ed.2d 447, 95 S.Ct. 438 (1974). The district court erred in holding that the KCC order was unreasonable.
We conclude that when, as here, there is a finding by the commission that the applicant is fit, willing and able to perform the proposed service, the burden is upon protestants to present evidence to show that the proposed service is inconsistent with the public convenience and necessity. In the absence of such evidence, the commission shall, under K.S.A. 1984 Supp. 66-1,114, issue the certificate.
Reversed. | [
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